Robinson et al v. Wetzel et al
Filing
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MEMORANDUM OPINION In summary, the Court will not adopt Magistrate Judge Mannion's Report and Recommendation (Doc. 38) because it has been rendered moot by Plaintiffs' allegations that they have now exhausted their administrative remedies. (Doc. 41). Furthermore, Judge Mannion will re-screen the Second Amended Complaint once Plaintiffs file it. I ; Plaintiffs' Motion to Appoint Counsel (Doc. 4) is denied without prejudice. Plaintiff Robinson's Motion for Preliminary Injunctio n and TRO (Doc. 13) and Plaintiff Payne'sMotion for Preliminary Injunction and TRO (Doc. 32) are denied without prejudice. Plaintiffs' Motion to Amend Complaint (Doc. 44) is granted.The current Amended Complaint is insufficiently pleaded, s o Plaintiffs are ordered to re-file a Second Amended Complaint !, within thirty (30) days of the date of the attached Order. Because Plaintiffs are granted leave to re-file an amended complaint that states aclaim upon which relief can be granted, the Court denies Plaintiffs' Motion to add Plaintiff (Doc. 26) as moot. The Court denies Darryl Miller's Motion to Join Complaint (Doc. 34) without prejudice, subject to his alleging a claim against SCI-Camp Hill personnel. Finally, the Court denies Plaintiff Davis's and Plaintiff Edwards's Motions to Withdraw (Doc. 29, 50) because they may not be voluntary f withdrawals. Aseparate Order follows. Signed by Honorable Robert D. Mariani on 5/16/12. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK ANTHONY ROBINSON, et at,
Plaintiffs
v.
3:11·CV-2194
(JUDGE MARIANI)
JOHN WETZEL, et aI.,
Defendants
MEMORANDUM OPINION
I. Introduction
Before the Court are several motions from Plaintiffs seeking various forms of relief.
The Court will address each motion and remand the case to Magistrate Judge Mannion for
further screening pursuant to 28 U.S.C. § 1915A once Plaintiffs re-file an Amended
Complaint stating claims upon which relief can be granted.
II. Analysis
Report &Recommendation
Judge Mannion recommended dismissing the Complaint (Doc. 1) without prejudice
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to allow Plaintiffs to exhaust their administrative remedies before returning to this Court.
(Doc. 38). In their Objections (Doc. 41), Plaintiffs assert that though at the time they filed
their Complaint they had not exhausted their administrative remedies, they have now, so the
case should move forward.
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Moreover, after filing their Objections, Plaintiffs moved to amend their complaint and
submitted that Amended Complaint with their motion. (Docs. 44, 45). The Amended
Complaint excludes any references to Plaintiffs' previous failure to exhaust their
administrative remedies. (Doc. 45). Because Plaintiffs now assert that they have
exhausted their administrative remedies, the Court will not adopt the Report &
Recommendation because it is now moot. Instead, the Court will remand the case to Judge
Mannion for further screening under 28 U.S.C. § 1915A once Plaintiffs file another amended
complaint that states claims upon which relief can be granted.
Motion to Appoint Counsel to Represent Class Action
Plaintiffs filed a motion to appoint counsel to represent a class action. (Doc. 4). In
this case, there is neither a constitutional nor a statutory right to counsel for inmate civil
litigants. Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). Rather, a district court has broad
discretion to appoint counsel under 28 U.S.C. § 1915(e)(1), which provides that "[t]he court
may request an attorney to represent any person unable to employ counsel." If the Court
determines that the claims have some merit, the factors it should consider are:
(1) the plaintiff's ability to present his or her own case; (2) the complexity of
the legal issues; (3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such investigation; (4) the
amount a case is likely to turn on credibility determinations; (5) whether the
case will require the testimony of expert witnesses; [and] (6) whether the
plaintiff can attain and afford counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997). The Court notes that Plaintiffs must
make a separate motion to certify this case as a class action lawsuit under Federal Rule of
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Civil Procedure 23, which Plaintiffs have not yet done. To obtain class certification,
Plaintiffs must show that:
1) the class is so numerous that joinder of all members is impracticable; 2)
there are questions of law or fact common to the class; 3) the claims or
defenses of the representative parties are typical of the claims or defenses of
the class; and 4) the representative parties will fairly and adequately protect
the interests of the class.
FED. R. CIV. P. 23(a). Plaintiffs must make all four showings to certify this case as a class
action lawsuit. Furthermore, a pro se prisoner may not be the representative of aclass
action on behalf of his fellow inmates. Alexander v. New Jersey State Parole Bd., 160 Fed.
App'x 249, 250, n.1 (3d Cir. 2005). So, a licensed attorney must represent a class of inmate
plaintiffs.
At this time, it is too early in the case for the Court to determine whether appointment
of counsel is appropriate. The complaint has not yet been served on any of the defendants,
and the factual record is insufficiently developed for the Court to know whether the claims
have any merit. As such, the Court will deny the motion without prejudice.
Plaintiff Robinson's Motion for Preliminary Injunction
Plaintiff Robinson filed a motion for preliminary injunction and TRO against
Lieutenant Gardner, Unit Manager Chambers, Superintendent Ditty, and Property Officer
Huber, requesting the Court's intervention so he would have greater access to the prison
law library and storage for legal materials. (Doc. 13). This Court denied the very same
motion against the same actors in the case of Robinson v. Tennis, 3:11-CV-1724, on May
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15, 2012 when it adopted Magistrate Judge Mannion's Report and Recommendation in that
case. For the same reasons that Judge Mannion recommended denying the motion there,
the Court will deny the motion here.
Also, of the four actors sought to be enjoined by Plaintiff Robinson in his motion, only
Defendant Ditty is a named defendant in this case. Because Ditty is a named defendant,
the Court briefly will address the merits of Plaintiff Robinson's motion. As a threshold
matter, "it is a movant's burden to show that the 'preliminary injunction must be the only way
of protecting the plaintiff from harm.'" Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91
(3d Cir. 1992). In considering a motion for injunctive relief, the court must consider: (1)
whether the movant has shown probability of success on the merits; (2) whether the movant
will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will
result in even greater harm to the nonmoving party; and (4) whether granting the preliminary
relief will be in the public interest. Brian B. v. Commonwealth, 230 F.3d 582, 585 (3d Cir.
2000). The plaintiff must demonstrate each of the four (4) elements to be entitled to
preliminary injunctive relief.
Furthermore, to the extent that the plaintiff seeks injunctive relief against non-parties,
it is clear that a non-party cannot be bound by the terms of an injunction unless the nonparty is found to be acting "in active concert or participation with a party to the action. See
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FED. R. CIV. P. 65(d)(2)(C). It is also well-settled that "[t]he purpose of a preliminary
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injunction is to preserve the status quo, not to decide the issues on their merits." Anderson
v. Davila, 125 F.3d 148, 156 (3d Cir. 1997).
Plaintiff Robinson has failed to meet the initial burden required to obtain a
preliminary injunction, most notably, the probability of success on the merits because he
has not shown that he is entitled to a "properly prescribed legal cell and property room
exemptions." (Doc. 13, at 2-3). Thus, Plaintiff Robinson simply has failed to make the
requisite showing to warrant the relief requested.
Plaintiff Payne's Motion for Preliminary Injunction
Plaintiff Payne filed his own motion for preliminary injunction. (Doc. 32). In addition
to the same relief Plaintiff Robinson seeks, Plaintiff Payne seeks the additional remedies of
TROs against Southers, Unit Manager Chambers, Lt. Moore, Lieutenant Gardner, the
Special Management Unit ("SMU") Program Review Committee, Counselor Richards,
Psychotic Review Team ("PRT"), and psychologist Miller. This portion of the motion suffers
from the same primary defect in Plaintiff Robinson's motion: namely, none of these actors
are parties to the case, which severely limits the Court's ability to issue such extraordinary
relief. Furthermore, even were they named defendants, Plaintiff Payne has not sufficiently
pled his motion for the Court to issue a preliminary injunction or TRO.
Plaintiff Payne moves the Court to order these actors to: provide mental health
treatment and enjoin security staff from illegal searches, seizures, and destruction of
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Plaintiff Payne's property.1 (Doc. 33). In support of these requests, Plaintiff Payne alleges
that he has attempted to take his own life on numerous occasions since being placed in
SCI-Camp Hill's SMU. (Doc. 33 at 2). He was placed in restraints at a mental health facility
on at least one occasion after a suicide attempt (allegedly as punishment rather than
treatment), but was returned to SMU where corrections officers verbally threatened him and
sexually harassed him. (Id.). These non-party officers also allegedly issued misconducts to
him in retaliation for complaining and filing grievances related to the verbal threats and
sexual advances.
Plaintiff Payne's allegations, if true, are serious. However, Plaintiff Payne has not
addressed the issues of a preliminary injunction (discussed above) sufficiently for the Court
to determine whether relief is warranted. The motion for injunctive relief filed by Plaintiff
Payne is aimed at seeking injunctive relief against non-parties. The plaintiff has made no
showing that these individuals are acting in active concert or partiCipation with the named
parties in this action. See FED. R. CIV. P. 65(d)(2)(C). Therefore, at this time, the Court will
deny the motion for injunctive relief.
Motion to Amend Complaint
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Before addressing the motions to add plaintiffs and withdraw plaintiffs, the Court will
discuss the sufficiency of the Amended Complaint (Doc. 45). Currently, the only named
defendants are Secretary John Wetzel and Jeff Ditty, Acting Superintendent of SCI-Camp
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1 Plaintiff Payne also asks the Court to issue subpoenas to several named witnesses and to order the
production of videotapes. Because the complaint has not yet been served on any defendants, these discovery
requests are premature, and the Court will deny them without prejudice.
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Hill. However, nearly all of the relief requested is against unnamed defendants (non-party
actors). Under Section 1983 actions, for liability to attach to a defendant, a plaintiff must
aver a defendant's personal involvement in the alleged unlawful action. Plaintiffs must
specifically allege personal direction or actual knowledge and acquiescence in the
challenged practice. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005); Rode v.
Dallarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Plaintiffs must allege that each
defendant was personally involved in a violation of Plaintiffs' constitutional or statutory
rights. If he was not directly involved, he must have been aware of Plaintiffs' exercise of
rights before allowing the violation of those rights to occur to attach liability on afailure to
supervise/intervene/train. Santiago v. Warminster Twp., 629 F.3d 121,130 {3d Cir. 2010}
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(finding that plaintiff "must allege facts making it plausible that [defendant] had knowledge of
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[the] use of excessive force ... and acquiesced in [the] violations.").
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As the Amended Complaint currently stands, Plaintiffs have not sufficiently pled any
claims against the two named Defendants Wetzel and Ditty2 Linder theories of supervisory
liability, failure to intervene, or failure to adequately train. Plaintiffs assert that "despite
notification" of constitutional violations, Defendants did not protect, act, or otherwise
intervene. (Doc. 45, 1f1f 92,95). These are the only allegations contained in the entire
Amended Complaint with respect to Wetzel and Ditty. These allegations alone are
insufficient for liability to attach to either Defendant.
2 Plaintiff Robinson's motion for a preliminary injunction does refer to Defendant Ditty when Plaintiff
alleges that Ditty directly or indirectly attempted to deny plaintiff access to the court by retaliatorily (sic) denying
plaintiff a properly prescribed legal cell and property room exemptions." (Doc. 13).
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Collectively, Plaintiffs have vaguely pled claims of deliberate indifference, assault,
excessive force, and retaliation but nowhere in the Amended Complaint do they state who
violated their rights, when, and how. One common thread through the current Plaintiffs'
claims is that they are being housed improperly in the SMU, despite their mental health
limitations. To give the defendants notice as to what the claims are, Plaintiffs must be more
specific with their allegations. Who placed them in SMU? At which time? Another common
thread appears to be that Plaintiffs are receiving retaliatory misconducts when they
committed no wrongs. Who issued the retaliatory misconducts and when? What caused
this alleged retaliation? Plaintiff Robinson alleges that on December 20, 2011, he "had
excessive force used upon him." (Doc. 45,11 101). Plaintiff must allege how the force was
excessive, and to the extent he knows the identity of the actor, he must attempt to identify
that actor. These are only some of the specific deficiencies in the Amended Complaint
Plaintiffs must cure. It is only in the motions for preliminary injunctive relief that the Court
has been able to glean the identities of defendants who allegedly violated Plaintiffs' rights,
including but not limited to: Lieutenant Gardner, Unit Manager Chambers, Property Officer
Huber, Unit Manager Carberry, Lieutenant Moore, Counselor Richards, psychologist Miller,
and Southers. However, there may be more potential defendants that Plaintiffs have not yet
identified.
In addition, much of the Amended Complaint contains recitations of facts irrelevant to
this case, which is a matter regarding prison conditions at SCI-Camp Hill's SMU. The Court
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notes that all allegations with respect to what allegedly happened to Plaintiff Robinson at
SCI-Rockviewand SCI-Waymart are irrelevant to this case because none of the current or
potential defendants in this case worked at either facility. To the extent that the occurrences
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at Rockview are relevant to any defendant's retaliatory intent in this case, Plaintiff may, but
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need not, re-allege paragraphs 21-38. With respect to Plaintiff Payne, the events that
allegedly happened at SCI-Greene likewise are irrelevant to this action. It is unclear from
the Amended Complaint what Plaintiff Payne's allegations are regarding his time at SCICamp Hill. With respect to Plaintiff Borrero. the events that allegedly occurred at SCI-Forest
are irrelevant to this action. To the extent that the occurrences at Forest are relevant to any
defendant's retaliatory intent in this case, Plaintiff Borrero may, but need not, re-allege
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paragraphs 76-79.
Finally, the primary relief requested is Plaintiffs Edwards's, Davis's, and Payne's
immediate transfer from SMU to the Secure Special Needs Unit ("SSNU") and Plaintiffs
Robinson's and Borrero's transfer to another SCI. (Doc. 45, ~ 97,98). The Plaintiffs also
seek the lifting of all restrictions on them, including yard, shower, law library, and spit
masks. (Id. at ~ 99). The above remedies are all injunctive in nature and as the Court has
already stated. Plaintiffs must meet a high burden to obtain such injunctive relief.
In the prison context, however. there are even further restrictions on the courts'
authority to grant injunctive relief. Specifically, 18 U.S.C. § 3626 limits the authority of
courts to enjoin the exercise of discretion by prison officials, and provides that:
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Prospective relief in any civil action with respect to prison conditions shall
extend no further than necessary to correct the violation of the Federal right of
a particular plaintiff or plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such relief is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the
Federal right. The court shall give substantial weight to any adverse impact
on public safety or the operation of a criminal justice system caused by the
relief.
18 U.S.C. § 3626(a)(1)(A). Furthermore, when inmate plaintiffs: (1) seek to enjoin a wide
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array of non-parties and (2) request relief which goes beyond merely preserving the status
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quo in the litigation, but seek to impose new, mandatory conditions on prison officials, it
further decreases the likelihood of obtaining an injunction. For example, an injunction
against non-parties, like the injunction sought here, requires a specific legal showing. To the
extent that Plaintiffs seek to enjoin non-parties in this litigation it is clear that a non-party
cannot be bound by the terms of an injunction unless the non-party is found to be acting "in
active concert or participation" with the party against whom injunctive relief is sought. FED.
R. CIV. P. 65(d)." Arequest for some form of mandatory proactive injunctive relief in the
prison context "must always be viewed with great caution because judicial restraint is
especially called for in dealing with the complex and intractable problems of prison
administration." Goffv. Harper, 60 F.3d 518, 520 (3d Cir. 1995) (internal quotation marks
omitted). The Court is not ruling on the requests for relief in the Amended Complaint at this
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time. It is merely alerting Plaintiffs that they bear an extremely high burden if the Court is to
intervene in the management of internal prison procedures. 3
Before dismissing a complaint for failure to state a claim upon which relief may be
granted under the screening provisions of 28 U.S.C. § 1915A, the court must grant plaintiffs
leave to amend their complaint unless amendment would be inequitable or futile. Grayson
V.
Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Thus, the Court will grant
Plaintiff Robinson's Motion to Amend Complaint (Doc. 44) to re-plead his claims against
Defendants Wetzel and Ditty for claims upon which relief can be granted, and also to add
any other defendants against whom Plaintiffs feel they have a valid and legitimate claim.
Motions to Add and Withdraw Plaintiffs
Previously, Plaintiff Robinson filed a motion to add a plaintiff, Dave Iverson, to the
case. (Doc. 26). Separately, Darryl Miller filed a motion to be added as a plaintiff. (Doc.
34). Because the Court is granting Plaintiffs' motion to amend the Complaint, Plaintiffs are
free to add Dave Iverson, if they wish, when they re-file. Therefore, Plaintiff Robinson's
motion to add plaintiff (Doc. 26) will be denied as moot.
With respect to Darryl Miller's motion, the Court will deny it without prejudice. Miller's
brief in support of his motion (Doc. 35) states that corrections officers at SCI-Forest used
excessive force on him and sexually assaulted him before transferring him to the SMU at
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SCI-Camp Hill in retaliation for filing grievances. Based on the information presented to the
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Plaintiffs' request for monetary damages/relief is adequately pled and is a matter well within the purview
of the Court.
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Court, Miller has not alleged any violations of his constitutional rights by any personnel at
SCI-Camp Hill. Therefore, the proper action would be against the offending officers at SCIForest. If Miller can allege a violation of his rights at SCI-Camp Hili by Camp Hill personnel,
then he may either file his own case with this Court or join Plaintiffs in their Amended
Complaint (if they choose to allow him to join).
Finally, original plaintiffs Tyree Davis and Maurice Edwards each moved to withdraw
as a party (Docs. 29,47,50). Without explanation, Plaintiff Davis's motion simply said that
he "requestU that this honorable Court withdraw me from the above civil litigation at its
earliest convenience." (Doc. 29). Plaintiff Edwards's motion suggested that he was moving
to withdraw under duress because if he continued with his participation in this lawsuit, he
would continue to suffer mistreatment from prison officials. (Docs. 47, 50). Though he
claimed he was "right in mind at this time," Plaintiff Robinson has asserted at various times
that Plaintiff Edwards has an IQ of 79 and is incapable of fully comprehending what this
lawsuit entails. (Docs. 1, 45). Indeed, Plaintiff Robinson has asserted that each original
Plaintiff suffers from some form of mental health illness. (Docs. 1,45).
In a recent decision, the Third Circuit provided valuable guidance on when it may be
appropriate to appoint counsel for a pro se plaintiff who may be mentally incompetent. The
Court addressed the responsibility of the District Court under FED. R. CIV. P. 17{c)(2) to
inquire as to whether a pro se litigant is incompetent and thereby entitled to the appOintment
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of counsel. It concluded that a "district court need not inquire sua sponte into apro se
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plaintiffs mental competence based on a litigant's bizarre behavior alone, even if such
behavior may suggest mental incapacity." Powell v. Symons, Nos. 10-2157, 10-3069,2012
WL 1066740, at *4 (3d Cir. Mar. 30, 2012).4 The Third Circuit added that district judges had
aduty to inquire "whether there may be a viable basis to invoke Rule 17. That duty of
inquiry involves a determination of whether there is verifiable evidence of incompetence. In
the context of unrepresented litigants proceeding in forma pauperis, this inquiry would
usually occur after the preliminary merits screening under 28 U.S.C. § 1915A, or 28 U.S.C.
§ 1915(e)(2)." (ld.).
As yet, this case has not proceeded beyond the initial screening, and there is no
competent medical evidence before the Court as to any of the named plaintiffs' mental
competency. If the Court should be presented with such evidence, it will undertake a Rule
17 inquiry to determine whether appointment of counsel is appropriate.
Therefore, the Court will deny the motions to withdraw until it determines whether a
competency hearing is necessary because Davis's and Edwards's withdrawals may not be
entirely voluntary. Should the Second Amended Complaint survive the initial screening by
Magistrate Judge Mannion under 28 U.S.C. § 1915A, the Court will Order Defendants to
address the competency issues raised in Plaintiffs' pleadings. Upon receipt of Defendants'
response regarding the competency issues, the Court will consider appointment of counsel
for Plaintiffs under the criteria of Symons.
4 "[B]izarre behavior alone is insufficient to trigger a mandatory inquiry into a litigant's competency but 'if
there has been a legal adjudication of incompetence and that is brought to the Court's attention, the Rule's provision
is brought into play." ld.
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III. Conclusion
In summary, the Court will not adopt Magistrate Judge Mannion's Report and
Recommendation (Doc. 38) because it has been rendered moot by Plaintiffs' allegations
that they have now exhausted their administrative remedies. (Doc. 41). Furthermore,
Judge Mannion will re-screen the Second Amended Complaint once Plaintiffs file it.
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Plaintiffs' Motion to Appoint Counsel (Doc. 4) is denied without prejudice. Plaintiff
Robinson's Motion for Preliminary Injunction and TRO (Doc. 13) and Plaintiff Payne's
Motion for Preliminary Injunction and TRO (Doc. 32) are denied without prejudice. Plaintiffs'
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Motion to Amend Complaint (Doc. 44) is granted. The current Amended Complaint is
insufficiently pleaded, so Plaintiffs are ordered to re-file a Second Amended Complaint
within thirty (30) days of the date of the attached Order. Because Plaintiffs are granted
leave to re-file an amended complaint that states a claim upon which relief can be granted,
the Court denies Plaintiffs' Motion to add Plaintiff (Doc. 26) as moot. The Court denies
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Darryl Miller's Motion to Join Complaint (Doc. 34) without prejudice, subject to his alleging a
claim against SCI-Camp Hill personnel. Finally, the Court denies Plaintiff Davis's and
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Plaintiff Edwards's Motions to Withdraw (Doc. 29, 50) because they may not be voluntary
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withdrawals. A separate Order follows.
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Robert D. Mariani
United States District Judge
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