Pino v. Carey et al
MEMORANDUM (Order to follow as separate docket entry) re 72 MOTION for Extension of Time to File filed by John A. Pino. Signed by Honorable Malachy E Mannion on 9/5/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOHN A. PINO,
: CIVIL ACTION NO. 3:15-1172
MICHAEL CAREY, et al.,
Pending before the court is the report of Magistrate Judge Carlson,
(Doc. 69), which recommend that defendant Carey’s motion for summary
judgment, (Doc. 41), be granted. All of the other defendants in this case,
except for defendant Carey, have previously been dismissed. Also pending
is the motion of plaintiff for a second extension of time to object to Judge
Carlson’s report and/or a motion to hold the case in abeyance. (Doc. 72).
Plaintiff’s request to hold this case in abeyance will be denied. The court will
grant plaintiff’s second request for an extension of time to file his objections.
Briefly, by way of background, on June 16, 2015, the plaintiff filed, pro
se, the instant civil rights action pursuant to 42 U.S.C. §1983 alleging
violations of his constitutional rights by the defendants in relation to events
leading to his arrest, conviction and current term of imprisonment at SCI-
Houtzdale.1 (Doc. 1). The plaintiff is now proceeding on his amended
complaint which he filed on July 9, 2015. (Doc. 9). Defendant Carey filed his
answer to plaintiff’s amended complaint with affirmative defenses on March
4, 2016. (Doc. 25).
Discovery then ensued, including the deposition of plaintiff.
On October 13, 2016, defendant Carey filed a motion for summary
judgment. (Doc. 41). The motion was briefed by the parties, a statement of
material facts was filed as well as exhibits.
On June 16, 2017, Judge Carlson issued his report and recommended
that defendant Carey’s motion for summary judgment be granted since he
found that Carey was entitled to qualified immunity. (Doc. 69).
On July 3, 2017, plaintiff filed a motion for an extension of time to file
objections to Judge Carlson’s reports which the court granted and gave
plaintiff until July 31, 2017 to file his objections. (Doc. 70, Doc. 71).
On August 1, 2017, plaintiff filed a motion for a second extension of
time to object to Judge Carlson’s report and/or a motion to hold the case in
abeyance “due to [plaintiff’s] mental incompetence to file a meaningful
appeal”, i.e., objections. (Doc. 72). In his motion, plaintiff requests the court
to place his case in abeyance “until his mental [condition] stabilizes and the
Since the full background of this case is stated in the court’s April 28,
2017 Memorandum, (Doc. 66), it shall not be fully repeated herein.
Additionally, the court will limits its discussion to information relevant to
plaintiff’s claims against remaining defendant Carey.
arrival of his corrective lenses.” He also requests that if his stay is denied,
that he be given another extension of time to file his objections.
Attached to this motion is a July 26, 2017 “Affidavit” of Jeffery Goodwin,
seemingly a fellow inmate of plaintiff at SCI-Houtzdale, which is only signed
by plaintiff.2 (Doc. 72-1). In the Affidavit, it is alleged by Goodwin that plaintiff
is “mentally uncapable (sic) to reply to any or all of [the court’s] request” due
to a fall plaintiff suffered in September 2015 in a non-handicap cell after the
prison doctor removed his required handicap cell status. The Affidavit also
alleges various instances of mistreatment plaintiff has suffered in prison. It
further re-asserts some of the alleged constitutional violations plaintiff raised
against the defendants in his pleadings in this case. Additionally, the Affidavit
alleges that the prison mental health doctors are not treating plaintiff’s mental
disorders, namely, bipolar and PTSD disorders.
In the Affidavit, Goodwin also alleges that “[plaintiff] is in a dangerous
state of depression that’s trigging (sic) PTSD TRAUMA EVENTS OF THE
The court notes that despite the fact that Goodwin “swear[s], that all
information, statements included in this Affidavit are true and correct to the
best of my knowledge and belief, and any false statement (sic) within may
subject me to the penalities (sic) of prejury (sic) pursuant to 42 Pa.C.S.A.
§4904”, since Goodwin did not sign his Affidavit, it is not a valid Affidavit and
is not admissible. Nor is the Affidavit, unsigned by Goodwin, valid pursuant to
28 U.S.C. §1746 since his signature is required. See Hughes v. Eitner, 2007
WL 2022088, *1 (W.D.Pa. July 10, 2007) (“Under 28 U.S.C. §1746, an
unsworn declaration that is dated and signed by the declarant under penalty
of perjury has the same force and effect as a sworn affidavit for purposes of
any requirement imposed by any federal rule or regulation.”) (citations
WAR HEARING VOICES WITH UNCONTROLABE (sic) MOOD SWINGS.
MENTALLY UNCAPABLE (sic) OF UNDERSTANDING ANY LEGAL
DOCUMENTS.” Attached to the Affidavit are exhibits, (Doc. 72-1), including
plaintiff’s medical records from the Lebanon VA Medical Center dated in
2008 showing his diagnoses of bipolar disorder and post traumatic stress
disorder (“PTSD”). Also, included as exhibits are copies of Inmate Request
to Staff Member forms plaintiff submitted in July 2017 in which he requested
mental health treatment.
Finally, it is alleged in the Affidavit that the prison medical staff deprived
plaintiff of his required eye drops for his glaucoma and that he has been
mistreated by prison staff regarding his medical need for dark glasses. It is
also indicated that the lenses of his glaucoma glasses are being properly
tinted and that plaintiff has not yet received them.
The court directed defendant Carey to respond to plaintiff’s motion and
he did so, through counsel, on August 18, 2017. (Doc. 74).
The court has reviewed the filings of the parties and will deny plaintiff’s
request to hold his case in abeyance and for an indefinite stay of his case
due to alleged mental incompetence. The court will grant plaintiff’s second
request for an extension of time to file his objections to Judge Carlson’s
report recommending that defendant Carey’s summary judgment motion be
granted and this case be closed.
At the outset, the court notes that none of plaintiff’s unsubstantiated
allegations of mistreatment at SCI-Houtzdale stated in the Affidavit are at
issue in this case and will not be addressed herein.3
Next, the court addresses plaintiff’s request to stay his case and hold
it in abeyance due to his alleged incompetency from his mental conditions.
In his Doc. 72 motion, plaintiff states that “[his] mental impairment compels
him to hear voices among experiencing delusional episodes until his
prescribed medications are calibrated to stabilize his psyche.” Thus, the court
will first address whether plaintiff is competent within the meaning of
The court in Monroe v. Bryan, 881 F.Supp.2d 623, 628 (D.Del. 2012),
discussed Rule 17(c) and stated:
The district court has a responsibility to inquire sua sponte, under
Fed.R.Civ.P. 17(c)(2), whether a pro se litigant is incompetent to
litigate his action. Powell v. Symons, 680 F.3d 301, 303, 307 (3d
Cir. 2012). Rule 17(c)(2) provides that “[t]he court must appoint
a guardian ad litem—or issue another appropriate order—to
protect a minor or incompetent person who is unrepresented in
The court notes that plaintiff is required to exhaust his administrative
remedies available with the DOC with respect to each of his claims of
mistreatment at the prison prior to filing an action in court. This “exhaustion
requirement applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). A prisoner must exhaust all available administrative remedies before
initiating a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739 (2001).
Rule 17(c) applies “[i]f a court [is] presented with evidence from
an appropriate court of record or a relevant public agency
indicating that the party had been adjudicated incompetent, or if
the court receive[s] verifiable evidence from a mental health
professional demonstrating that the party is being or has been
treated for mental illness of the type that would render him or her
legally incompetent.” Powell, 680 F.3d at 307 (3d Cir. 2012)
(citing Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196,
201 (2d Cir. 2003)). The court “need not inquire sua sponte into
a pro se plaintiff’s mental competence based on a litigant’s
bizarre behavior alone, even if such behavior may suggest
mental incapacity” but, “if there has been a legal adjudication of
incompetence ... that is brought to the court’s attention, the
Rule’s provision is brought into play.” Id. (citations omitted). The
decision whether to appoint a next friend or guardian ad litem
rests with the sound discretion of the district court. Powell, 680
F.3d at 303.
Plaintiff has failed to produce any recent mental health records that
indicate he is receiving mental health treatment and that he is incompetent.
Although plaintiff submitted records showing he was diagnosed with PTSD
and bipolar disorder in 2008 by the VA and was prescribed medications for
these conditions, (Doc. 17-2), he has not submitted any records reflecting his
current mental health conditions and their affect on him. Further, plaintiff has
not presented any evidence from “an appropriate court of record or a relevant
public agency indicating that [he] had been adjudicated incompetent,” nor
has he presented “any verifiable evidence from a mental health professional
demonstrating that [he] is being or has been treated for mental illness of the
type that would render him or her legally incompetent.” Id. (citing Powell, 680
F.3d at 307). Additionally, the court has not been provided with plaintiff’s
most recent mental health status examination by the prison medical staff.
Plaintiff’s requests to prison staff for mental health treatment are not
sufficient to constitute the necessary medical evidence under Rule 17(c).
Moreover, as defendant Carey points out, (Doc. 74 at 2), in his
response to plaintiff’s Doc. 72 motion:
plaintiff's self-serving claim of hearing “voices” predates his filing
of the present case and, in fact, was previously raised by him as
excuse for his criminal conduct on August 26, 2013 and which
lead to his arrest and present incarceration. Plaintiff’s alleged
mental status did not hinder plaintiff's initiation of the present
action nor does it justify abeyance of the present action or further
delay of the disposition of Responding Defendant Carey’s Motion
for Summary Judgment.
As such, the court finds that the evidence plaintiff submitted is not
sufficient to show that he is incompetent. “Inasmuch as there is no
substantial question regarding the competence of plaintiff, it is not necessary
to conduct a Rule 17(c) competency hearing.” Id.
Thus, based on the above discussion, the court finds plaintiff is
presently competent to proceed with his case. As such, plaintiff’s request for
appointment of counsel in the Affidavit, (Doc. 72-1), which simply states that
“a person who is mentally incompetent should be granted an Attorney”, will
be denied since the court has found plaintiff is competent. Therefore, the
court will not appoint a guardian or counsel to represent plaintiff’s interests.
See Monroe, 881 F.Supp.2d at 628-29. Nor will the court hold this case in
Because plaintiff is competent to proceed with his case, his request to
hold in abeyance and stay this matter will be denied. (Doc. 72). However, the
court will grant plaintiff’s second request for an extension of time within which
to file his objections to Judge Carlson’s Doc. 69 report finding that defendant
Carey is entitled to qualified immunity and recommending that Carey’s
summary judgment motion be granted. Plaintiff will be given until September
18, 2017 to file his objections. An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: September 5, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2015 MEMORANDA\15-1172-04.wpd
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