Firestone v. Rockovich et al
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRAVIS M. FIRESTONE,
MARK ROCKOVICH, et al.,
Hon. John E. Jones III
January 10, 2018
Plaintiff, Travis M. Firestone (“Firestone”), a state inmate incarcerated at the
Luzerne County Prison filed this pro se civil rights action pursuant to 42 U.S.C. §
1983, on November 17, 2017, naming as defendants Luzerne County Prison
employees Mark Rockovich and Sam Hyder, and Luzerne County Manager, C.
David Pedri. (Doc. 1). He seeks to proceed in forma pauperis. (Doc. 2).
For the reasons set forth below, the complaint will be dismissed pursuant to
28 U.S.C. §1915(e)(2)(B)(ii).
STANDARDS OF REVIEW
Section 1915(e)(2)(B)(ii), which pertains to in forma pauperis proceedings
states, in pertinent part, “the court shall dismiss the case at any time if the court
determines that…the action or appeal…fails to state a claim on which relief may
be granted.” 28 U.S.C. §1915(e)(2)(B)(ii). The applicable standard of review for
is the same as the standard for a motion pursuant to 12(b)(6) of the Federal Rules
of Civil Procedure, which provides for the dismissal of complaints that fail to state
a claim upon which relief can be granted.
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting
all well-pleaded allegations in the complaint as true and viewing them in the light
most favorable to the plaintiff, a court finds the plaintiff’s claims lack facial
plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). Although
the Court must accept the fact allegations in the complaint as true, it is not
compelled to accept “unsupported conclusions and unwarranted inferences, or a
legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d
160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007)). In deciding the motion, the Court may consider the facts alleged on the
face of the complaint, as well as “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
ALLEGATIONS OF THE COMPLAINT
Firestone alleges, in toto, as follows:
Get charged $100.00 booking fee when enter Luzerne County
Correctional Facility, which is to pay for reception in the jail which
includes the dispursement [sic] of socks, underware [sic], towels etc.,
which we get all used whites (socks, underware [sic], towels).
Mark Rockovich the Director of the jail allows this to happen, also
Sam Hyder Deputy Warden does nothing about it when you write
them with this concern.
David Pedri County Manager allows this fee to be imposed upon
reception when the taxpayers of the county pay for the necessities of
the jail and Inmate needs.
(Doc. 1, pp. 2, 3). He indicates that he fully exhausted remedies available through
the prisoner grievance procedure. (Id. at 2).
He seeks to have the “booking fee” removed or for inmates to be provided
with new socks, underwear and towels. (Id. at 3). He also seeks monetary
damages for emotional distress associated with the unlawful removal of 20 % of
his money from his inmate account every time he receives money. (Id.)
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. §
1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress....
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a
plaintiff must allege “the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Thus, § 1983 limits liability to persons who violate constitutional rights.
It appears that Firestone is attempting to advance a due process claim. It is
well-established that state prisoners maintain a property interest in the funds in
their inmate accounts. See Higgins v. Beyer, 293 F.3d 683, 693 (3d Cir. 2000); see
Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997). “Because the requirements
of due process are ‘flexible and cal[l] for such procedural protections as the
particular situation demands,’ ” Wilkinson v. Austin, 545 U.S. 209, 224 (2005)
(citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)), the Third Circuit has
recognized that where a state must act quickly or it would be impractical or
meaningless to provide pre-deprivation process, providing a post-deprivation
process may be enough to satisfy the requirements of the Due Process Clause.
Montanez v. Sec’y Pa. Dep’t of Corr., 773 F.3d 472, 483-84 (3d Cir. 2014).
For instance, “when deductions from inmate accounts involve ‘routine
matters of accounting’ based on fixed fees or where temporal exigencies require
immediate action, pre-deprivation hearings are not required.” Montanez, 773 F.3d
at 484 (3d Cir. 2014) (citing Tillman, 221 F.3d at 422) (holding that prison officials
could, consistent with the Constitution, deduct monies from inmates’ accounts to
recover some of the costs of their imprisonment).); see also Reynolds, 128 F.3d at
180). Although inmates are entitled to some pre-deprivation notice of the prison’s
deduction policy. Montanez at 484 (citing Reynolds, 128 F.3d at 180). The postdeprivation remedy to address any accounting “mistakes such as erroneous
assessments or incorrect takings might occur” through a grievance or other
administrative remedy program, i.e. a post-deprivation process. Tillman, 221 F.3d
The “booking fee” of which Firestone complains, involves a routine matter
of accounting based on a fixed fee. Consequently, no pre-deprivation hearing is
required. To the extent that Firestone is entitled to some pre-deprivation notice of
the prison’s deduction policy, he clearly alleges that, upon reception at the Luzerne
County Prison, inmates are notified of their responsibility to pay a $100.00
booking fee to cover the cost of socks, underwear, and towels, inter alia. (Id.)
Further, he indicates on the face of his complaint that there is a post-deprivation
remedy in the form of a prisoner grievance procedure available to him at the
Luzerne County Prison. (Doc. 1, p. 2). Firestone’s claim lacks facial plausibility.
He fares not better in alleging that he suffered emotional distress as a result
of the taking of his money. The Prison Litigation Reform Act prohibits recovery
of damages for mental and emotional injuries absent a showing of physical injury.
42 U.S.C. § 1997e(e); Mitchell v. Horn, 318 F.3d 523, 535-36 (3d Cir. 2003)
(requiring more than de minimis physical injury as predicate to allegation of
Based on the above, the complaint is subject to dismissal for failure to state a
claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
LEAVE TO AMEND
“In the absence of any apparent or declared reason—such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.—the
leave [to amend] sought should, as the rules require, be freely given.” Foman v.
Davis, 371 U.S. 178, 182 (1962) (interpreting Federal Rules of Civil Procedure);
FED.R.CIV.P. 15(a)(2). Affording plaintiff an opportunity to amend would clearly
be futile given the facts presented and the harm allegedly suffered.
For the reasons set forth above, the complaint (Doc. 1) will be dismissed
pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).
An appropriate Order will enter.
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