Cabrera v. Clark et al

Filing 44

MEMORANDUM and ORDER: 1. The dfts' to dismiss 29 as to Clark, Harris and Snyder is DENIED.2. Within 30 days of the date of this order Clark, Harris and Snyder shall file an answer to the amended complaint.3. All discovery shall be completed within 120 days of the date of this order.4. Any further dispositive mtons shall be filed within 30 days of the close of discovery. Signed by Honorable Sylvia H. Rambo on 2/10/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSE EMMANUEL ORTIZ
CABRERA,
Plaintiff
vs.
BRIAN S. CLARK,
et al.,
Defendants

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CIVIL NO. 1:16-CV-392

(Judge Rambo)

MEMORANDUM AND ORDER
Background
On March 4, 2016, Plaintiff Jose Emmanuel Ortiz
Cabrera, an inmate presently confined at the Franklin
County Prison, Chambersburg,

Pennsylvania, filed a pro

se civil rights complaint pursuant to 42 U.S.C. § 1983
against ten individuals employed at the Adams County
Prison, nine “John or Jane Does” and a Pennsylvania
State Trooper. (Doc. 1.)

The ten individuals employed

at the Adams County Prison were as follows: (1) Brian S.
Clark, Warden; (2) Michael Giglio, Deputy Warden of
Security; (3) Dzung Luong, Deputy Warden of Training;
(4) Alyssa Harris, Business Manager; (5) Robert Stevens,
Director of Treatment Services and Misconduct Hearing

Examiner; (6) Larry Snyder, (7) Jorge Alvarez, and (8)
Joe Boot, Lieutenants; and (9) Michael Smith and (10)
Benjamin Hersh, Correctional Officers. The Pennsylvania
State Trooper named as a defendant by Plaintiff was
George H. Kelly, Jr.

Along with his complaint, Cabrera

submitted a motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915.
The complaint was a rambling, disjointed, vague
and confusing document which consisted of 95 paragraphs.
It primarily set forth six incidents of alleged sexual
abuse or harassment by prison guards and, after Cabrera
reported those incidents, how the prison officials and
the Pennsylvania State Trooper responded to Cabrera’s
allegations. The court reviewed Cabrera’s allegations in
a 29-page memorandum and order and concluded that with
respect to all of the named defendants, except
Correctional Officer Michael Smith, the complaint failed
to state a claim upon which relief could be granted.
(Doc. 10.)
Cabrera alleged that he commenced his
confinement at Adams County Prison on June 12, 2015,
after he was sentenced to serve three to twelve months
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for a misdemeanor. Cabrera appeared to alleged that the
first incident of sexual abuse occurred on June 21,
2015, by two correctional officers but he only named one
of those officers, Defendant Smith.

Cabrera claimed

that Defendant Smith came into his cell and touched him
inappropriately and made suggestive comments.

Cabrera

alleged that Defendant Smith put his hands on Cabrera’s
nipples.

Cabrera further alleged that Defendant Smith

grabbed his genitals and attempted to kiss Cabrera on
the mouth.

Cabrera claimed that he smelled a strong

odor of alcoholic beverage emanating from Defendant
Smith’s mouth.
The court dismissed the original complaint,
except as it related to Defendant Smith, but granted
Cabrera leave to file an amended complaint with respect
to Defendants Clark, Giglio, Luong, Harris, Stevens,
Snyder, Alvarez, Boot, and Hersh.

The claims against

Trooper Kelly were dismissed without leave to amend.
Furthermore, the court deferred service of the original
complaint on Defendant Smith to give Cabrera an
opportunity to file an amended complaint.

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On April 14, 2016, Cabrera filed an amended
complaint which did not name any “John or Jane Doe”
defendants but named all of the original defendants
except Trooper Kelly and Correctional Officer Hersh.1
(Doc. 16.) In the amended complaint, Cabrera also named
the following individuals employed at the Adams County
Prison as defendants: (1) Correctional Officer Eyler;
(2) Lieutenant Hilterman; (3) Grievance Coordinator
Brent;(4) Medical Supervisor T. Killian; (5)
Correctional Officer Kinaub; and (6) Lieutenant
Leeberry.

Id.

The amended complaint consists of 58 pages and
416 paragraphs.

The first 25 pages, involving 209

paragraphs, are typewritten and the remainder
handwritten.

The amended complaint is a rambling,

disjointed, vague, conclusory, and to a great extent, a
grammatically incoherent document.

Cabrera, in addition

to the claim against Defendant Smith which was set forth

In the amended complaint Cabrera spells Defendant
Snyder’s last name “Snider.”
1.

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in the original complaint,2 raises a hodgepodge of
claims, including that Lieutenant Snyder failed to
prevent another inmate from assaulting him (Doc. 16,
Amended Complaint, at 29-32, ¶¶ 232 through 263) and he
was denied adequate medical care during the entire
period (June 12 through December 23, 2015) he was
confined at the Adams County Prison.
With respect to the medical care claim, Cabrera
reiterates the claims set forth in the original
complaint that Defendant Harris denied him a proper
medical diet but also claims that after being confined
at the Adams County Prison he suffered kidney pain
because Defendant Killian did not authorize a proper
medical diet. (Id. at 21-24, ¶¶ 168-196.)

He further

claims that a physician specializing in kidney disease
located in Philadelphia prescribed the diet and
Defendants Killian and Harris were aware of that
prescription. Id.

2. The amended complaint is not as detailed regarding
the alleged sexual touching by Defendant Smith.
Furthermore, the date of the incident is September 6,
2015, which conflicts with the date asserted by Cabrera
in the original complaint.
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In the amended complaint Cabrera also attempts
to set forth a retaliation claim under the First
Amendment. Cabrera’s claims, however, are vague and do
not specify the defendants by name or the date of the
alleged retaliation other than with respect to Warden
Clark.

Cabrera alleges that on September 6, 2015, he

was assaulted by Defendant Smith and that on the same
day he attempted to file a grievance regarding the
incident. (Doc. 16, at 6, ¶¶ 22-25.)

Cabrera then

alleges that the “Warden move[d] [him] to [an] isolation
cell for filling (sic) grievances and using his celli
Nathan Gilbert as a witness.”3 (Id.)
Cabrera also lists at least 10 incidents where
he was charged with violating prison regulations,
including for using abusive language towards staff and
refusing to obey orders. Cabrera appears to allege that
all of the misconduct charges were based on fabricated
evidence.

Cabrera alleges that “Prison Lieutenants” without
specifying them by name on orders from an unspecified
Deputy Warden and the Warden moved him to the isolation
cell.
3.

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Finally, Cabrera in the amended complaint
alleges that on December 23, 2015, when he was being
processed to be transferred to York County Prison that
Defendant Eyler destroyed his legal property, which
apparently included copies of grievances and request
slips, to prevent him from filing a lawsuit against
prison personnel.

(Id. at 20, ¶¶ 159-166.)

There are

no allegations that Defendant Eyler’s conduct prevented
Cabrera from filing a lawsuit or resulted in a court
action being dismissed.4
Cabrera requests declaratory, injunctive and
monetary relief. With respect to monetary relief
Plaintiff requests compensatory and punitive damages.
The court screened the amended complaint
pursuant to the Prison Litigation Reform Act, Pub. L.
No. 104-134, 110 Stat. 1321 (April 26, 1996) and on

There is no constitutional right to an inmate
grievance system. See, e.g., Heleva v. Kramer, 214 F.
App’x 244, 247 (3d Cir. 2007) (citing Massey v. Helman,
259 F.3d 641, 647 (7th Cir. 2001)) (“Prisoners do not
have a constitutional right to prison grievance
procedures.”).
However, obstruction of the grievance
proceedings may relieve Cabrera from his obligation to
exhaust administrative remedies.
4.

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April 28, 2016, determined that the bulk of Cabrera’s
claims should be dismissed. (Doc. 17.)
The court concluded that the claims
against Defendant Smith could not be dismissed. (Id.)
The court was also satisfied that the allegations in
the amended complaint of denial of a medical diet based
on a prescription from a kidney specialist, as described
by Cabrera, satisfied the serious medical need prong of
an Eighth Amendment violation and because Cabrera
alleged that Defendants Harris and Killian were made
aware of his dietary needs, the court could not conclude
that Cabrera failed to state a viable claim of
deliberate indifference under the Eighth Amendment.
(Id.)

Finally the claims against Warden Clark were

premised on an allegation that he retaliated against
Cabrera for reporting Defendant Smith’s alleged
misconduct and the court permitted that claim to
proceed. (Id.)
All of the claims set forth in the amended
complaint, other than the sexual abuse claim leveled
against Defendant Smith, the failure to protect claim

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leveled against Defendant Snyder, the medical care
claims leveled against Defendants Harris and Killian,
and the retaliation claim leveled against Defendant
Clark, were dismissed as violating Rules 8 of the
Federal Rules of Civil Procedure and as insufficient
under Rule 12(b)(6) without further leave to file a
second amended complaint. (Id.)

Furthermore, the United

States Marshal was directed to serve a copy of Cabrera’s
amended complaint (Doc. 16) on the following Defendants
employed at the Adams County Prison: (1) Brian S. Clark,
Warden; (2) Alyssa Harris, Business Manager; (3) Larry
Snyder, Lieutenant; (4) T. Killian, Medical Supervisor,
and (5) Michael Smith, Correctional Officer. (Id.)
The United States Marshal was directed to serve
the amended complaint on Defendants Clark, Harris,
Killian, and on June 24

and July 8, 2016, attorneys

entered appearances on their behalf. (Docs. 20, 23.) The
United States Marshals Service’s attempt to serve the
amended complaint on Defendant Michael Smith at the
Adams County Prison was unsuccessful.

It was informed

by the “Warden’s Office” that Smith “is not and has not

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been employed with the Adams County Prison.” (Doc. 22.)
On July 5, 2016, the summons issued with respect to
Defendant Smith was returned by the United States
Marshals Service as unexecuted. (Id.)

Cabrera on July

26, 2016, was directed to advise the court within 30
days of the correct name of the individual he claimed
sexually assaulted him at Adams County Prison. (Doc.
26.)
On July 27, 2016, Charles E. Wasilefski,
Esquire, withdrew his appearance on behalf of Defendant
Killian. (Doc. 28.)

On July 29, 2016, attorney

Wasilefski on behalf of Defendants Clark, Harris and
Snyder filed a motion to dismiss the amended complaint
and a brief in support thereof. (Docs. 29, 30.)

On

August 3, 2016, Cabrera advised the court that the
correct name of the individual who assaulted him was
Darryl Smith. (Doc. 32.)

Also, on August 3, 2016,

Defendant Killian filed an answer with affirmative
defenses to the amended complaint. (Doc. 33.) On August
17, 2016, a service order was issued by the court with
respect to Defendant Darryl Smith. (Doc. 35.) On August
19, 2017, Cabrera filed a brief in opposition to the
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motion to dismiss filed by Defendants Clark, Harris and
Snyder. (Doc. 37.)

On October 11, 2016, Defendant Smith

filed an answer to the amended complaint. (Doc. 40.)
The motion to dismiss filed by Defendants Clark, Harris
and Snyder became ripe for disposition on September 5,
2016, when Defendants Clark, Harris and Snyder elected
not to file a reply brief.

For the reasons set forth

below, the court will deny the motion to dismiss the
amended complaint.
Discussion
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which
relief can be granted.”

Under Rule 12(b)(6), we must

“accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008)).
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While a complaint need

only contain “a short and plain statement of the claim,”
Fed.R.Civ.P. 8(a)(2), and detailed factual allegations
are not required, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929
(2007), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.”

Id. at

570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d
929.

“The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868,

(2009) (quoting Twombly,

550 U.S. at 556, 127 S.Ct. at 1965.) “[L]abels and
conclusions” are not enough, Twombly, 550 U.S. at 555,
127 S.Ct. at 1964-65, and a court

“‘is not bound to

accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case
omitted).
In resolving the motion to dismiss, we thus
“conduct a two-part analysis.” Fowler, supra, 578 F.3d
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at 210. First, we separate the factual elements from the
legal elements and disregard the legal conclusions. Id.
at 210-11.

Second, we “determine whether the facts

alleged in the complaint are sufficient to show that the
plaintiff has a “‘plausible claim for relief.’” Id. at
211 (quoted case omitted).
The entire gist of Defendants’ motion is based
on their claim that the court should not accept the
allegations set forth in Cabrera’s amended complaint.
However, in ruling on a motion to dismiss we are
required to accept those allegations at face value.

The

court has already determined that those allegations
sufficiently state a cause of action against Defendants
Clark, Harris and Snyder. The present motion by
Defendants Clark, Harris and Snyder does not present
anything new which calls into question the court’s prior
decision finding that Cabrera had sufficiently stated a
cause action against Defendants Clark, Harris and
Snyder.

The court incorporates herein by reference the

memorandum and order of April 28, 2016, where the court
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found that Cabrera had sufficiently stated claims
against those Defendants.

The arguments presently being

raised by Defendants Clark, Harris and Snyder are more
appropriate in the context of a motion for summary
judgment supported by a statement of material facts and
evidentiary materials.

Consequently, the court will

deny the motion to dismiss.
ACCORDINGLY, this 10th day of February, 2017, IT
IS HEREBY ORDERED THAT:
1.

The motion to dismiss (Doc. 29) filed by

Defendants Clark, Harris and Snyder is DENIED.
2.

Within 30 days of the date of this order

Defendants Clark, Harris and Snyder shall file an answer
to the amended complaint.
3.

All discovery shall be completed within 120

days of the date of this order.

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4.

Any further dispositive motions shall be

filed within 30 days of the close of discovery.

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge

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