Riley v. Kipple et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 3/29/19. (ep)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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NATHANIEL RILEY,
Plaintiff
v.
CO1 KIPPLE, et al.,
Defendants

CIVIL ACTION NO. 3:CV-17-1526
(Judge Caputo)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Nathaniel Riley, a state prisoner housed at the State

Correctional Institution in Coal Township (SCI-Coal Township), Pennsylvania, filed this
civil-rights action against twenty-eight defendants employed by the Pennsylvania
Department of Corrections (DOC) at either the Central Office, SCI-Coal Township, SCICamp Hill or SCI-Greene. Mr. Riley simultaneously filed a motion to proceed in forma
pauperis. (ECF No. 2.)
Mr. Riley’s Complaint (ECF No. 1) is before the Court for preliminary screening
pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B). For the reasons set forth
below, Mr. Riley’s motion to proceed in forma pauperis will be granted and he will be
directed to file an amended complaint.

II.

Standard of Review
When a litigant seeks to proceed in forma pauperis, without the prepayment of

fees, 28 U.S.C. § 1915 requires the Court to screen the complaint. Likewise, when a
prisoner seeks redress from a government defendant in a civil action, whether
proceeding in forma pauperis or not, the Court must screen the complaint. See 28
U.S.C. § 1915A. Both 28 U.S.C. § 1915(e)(2)(B) and § 1915(A) give the Court the
authority to dismiss a complaint if it is frivolous, malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) – (iii); 28 U.S.C. § 1915A(b)(1) – (2).
A complaint is frivolous if it lacks an arguable basis either in fact or law. See
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (citing Neitzke v. Williams, 490 U.S.
319, 327 – 28, 109 S.Ct. 1827, 1832 – 33, 104 L.Ed.2d 338 (1989)).

In deciding

whether the complaint fails to state a claim on which relief may be granted, the Court
employs the standard used to analyze motions to dismiss under Fed. R. Civ. P.
12(b)(6).

See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

Under Rule

12(b)(6), the Court must “accept all factual allegations contained in the Complaint as
true, but we disregard rote recitals of the elements of a cause of action, legal
conclusions, and mere conclusory statements.” James v. City of Wilkes–Barre, 700
F.3d 675, 679 (3d Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct.
1937, 1949-50, 173 L.Ed.2d 868 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 - 57, 127 S.Ct. 1955, 1964-1966, 167 L.Ed.2d 929 (2007)).
Finally, pro se pleadings are held to a less stringent standard than formal
pleadings drafted by attorneys and are to be liberally construed.

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See Erickson v.

Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Pro se litigants are to be granted leave to
file a curative amended complaint even when a plaintiff does not seek leave to amend,
unless such an amendment would be inequitable or futile. See Philips, 515 F.3d at 24546 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). However, a complaint
that sets forth facts which affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend.

Grayson v. Mayview State

Hospital, 293 F.3d 103, 106 (3d Cir. 2002).

III.

Allegations of the Complaint
Mr. Riley names twenty-eight DOC employees as defendants who work at four

different locations:

Central Office; 1 SCI-Camp Hill; 2 SCI-Coal Township; 3 and SCI-

Greene. 4
In his Complaint Mr. Riley asserts three distinct claims. First, he claims CO
Kipple of SCI-Coal, verbally threatened him in retaliation for his filing of a grievance
The following Defendants work at the DOC’s Central Office: Rev. Ulrich Klemm; the
members of the Religious Accommodation Review Committee; Tracy Smith; Regional Deputy
Secretary Tabb Bickell; Regional Deputy Secretary Michael Wenerowicz; and Secretary John
Wetzel.
1

The SCI-Camp Hill Defendants are: Islamic Chaplain Adeeb Rasheed; Mr. Orville
Larry Mills; John Doe; CO5 Horner; Deputy Kephart; Deputy Barry Smith; and Superintendent
Laurel Harry.
2

The SCI-Coal Township Defendants are: CO Kipple; Islamic Chaplain Amjad Ali; Rev.
Aaron Duncan; Linda Chismar; John Doe; Deputy Edward Baumbach; Deputy Anthony
Luscavage; Superintendent Thomas McGinley.
3

The SCI-Greene Defendants are: Islamic Chaplain Abubakar Muhammad; Rev.
Jabulani Sibanda; Karen Sokol; John Doe; Deputy John Doe; Deputy John Doe; and
Superintendent Robert Gilmore. Additionally, it is noted that SCI-Greene is in Greene County
which is located in the Western District of Pennsylvania.
4

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against the officer. (ECF No. 1 at 5.) Next, Mr. Riley, who is a practicing follower of the
“Islaam in the Sunniyy tradition,” claims the DOC’s policy prohibiting conjugal visits
violates his rights under the Religious Land Use and Institutionalized Persons Act of
2000 (RLUIPA) and the Pennsylvania Religious Protection Act (PRPA). Mr. Riley, who
has been married twice since his incarceration, claims Defendants Ali, Akinbode, Bickle,
Chismar, Baumbauch, Gilmore, Klemm, Kephart, Luscavage, Sibanda, Smith, Sokol,
Wenerowicz and Wetzel denied his 2014 and 2016 requests for a religious
accommodation for conjugal visits, so he may comply with his Muslim religion and
obligations to his wife. (Id. at 6 – 7.) He also claims that as a heterosexual male, the
DOC’s policy prohibiting conjugal visits violates his equal protection rights as the
“general homosexual prison population is able to engage in sexual conduct with one
another, but heterosexual males may not have sex.” (Id. at 7.) Plaintiff’s third claim
asserts that the DOC’s ADM-801, Religious Activities Procedures Manual, violates his
RLUIPA and PRPA rights in a variety of ways. He claims he cannot purchase or use
prayer oils necessary to practice his religion. The DOC’s inflexible dress code policy
which prohibits him from wearing the him of his pants above his ankles, violates a
central tenant of his faith. (Id. at 8 - 9.) He is also unable to buy the following items
from the institution’s commissary which are central to his practice of Islam in the
Sunniyy tradition: henna, kuhl, incense, miswaak, miswaak toothpaste, halaal soap and
cosmetics, as well as black seed products. (Id. at 9 – 14.) He wishes to acquire such
products from “Islaamic vendors” of his choosing. He also asserts an equal protection
violation based on his inability to purchase or possess a “white thaub (prayer robe),
white izaar, Kuffayn (leather socks), kuhl (eye-liner), prayer oil, incense and henna,”

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while other inmates from the Jewish, Native American, Buddhist and Christian faiths are
permitted to purchase yarmulkes, prayer shawls, cloth scapulars, and other items for
the practice of their religion. (Id. at 14.)

IV.

Discussion
A.

Mr. Riley’s Complaint Fails to Comply with Federal
Rules of Civil Procedure 8 and 20.
Rule 8 requires, inter alia, a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’ Fed. R.
Civ. P. 8(a)(2). The purpose of this rule is to ‘give the
defendant fair notice of what the … claim is and the grounds
upon which it rests.’ Bell Atl Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957)). Thus, dismissal for violation of Rule 8 ‘is usually
confined to instances in which the complaint is so verbose,
confused and redundant that its true substance, if any, is
well disguised.’ Hearns v. San Bernardino Police Dep’t, 530
F.3d 1124, 1131 (9th Cir. 2008) (quotation marks omitted);
see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)
(stating same).

Bhatt v. Hoffman, 716 F. App’x 124, 127 (3d Cir. 2017).

Rule 8(d)(1) requires that

“[e]ach allegation must be simple, concise, and direct. No technical form is required.”
Fed. R. Civ. P. 8(d). Rule 8 is satisfied when the allegations of the complaint “enable[s]
[the adverse party] to answer and prepare for trial.” Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir. 1988). If a pro se complaint does not comply with the requirements of Rule
8, a court may dismiss the complaint “on its own initiative or in response to a motion by
the defendant.” Id.
Rule 18(a) of the Federal Rules of Civil Procedure governs the joinder of claims.
Rule 18(a) provides: “A party asserting a claim . . . may join, as independent or

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alternative claims, as many claims as it has against an opposing party.” Fed. R. Civ. P.
18(a). With respect to the permissive joinder of parties, Fed. R. Civ. P. 20(a)(2) allows
persons to “be joined in one action as defendants if: (A) any right to relief is asserted
against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all defendants will arise in the action.”
The joinder of claims, parties, and remedies is “strongly encouraged” when
appropriate to further judicial economy and fairness.

See United Mine Workers of

America v. Gibbs, 383 U.S. 715, 724, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966);
Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009).

However, the policy behind Rule

20 is not a license to join unrelated claims and defendants in a single lawsuit. See
Pruden v. SCI Camp Hill, 252 F. App’x 436, 437 (3d Cir. 2007) (nonprecedential).
Additionally, given that Mr. Riley seeks to proceed in forma pauperis, Rule 20
“takes on additional importance in light of the Prison Litigation Reform Act of 1995
(“PLRA”),” as “a prisoner-plaintiff who is permitted to combine separate, independent
claims into one complaint is able to circumvent the PLRA’s filing fee requirements and
[its] potential ‘three strikes’ limitation.” Saltalamacchia v. Wentzel, Civ. No. 3:14-CV00868, 2017 WL 2843302, at *3 (M.D. Pa. June 9, 2017), report and recommendation
adopted, 2017 WL 2834507 (M.D. Pa. June 30, 2017).
Plaintiff’s Complaint names twenty-seven defendants and contains numerous
unrelated claims concerning defendants who work at three different correctional
facilities. Although Mr. Riley attaches over thirty pages of exhibits to his seventeen
paged Complaint, his Complaint fails to meet the requirements of Fed. R. Civ. P. 8. Mr.

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Riley’s retaliation and religious claims involve different individuals, at different
institutions, and do not arise out of the same transaction or occurrence, or series of
transactions or occurrences. Defendants could not frame an answer to the Complaint
as it currently stands. Accordingly, the Complaint, in its present form, will be dismissed
sua sponte for failure to comply with Rule 20 as well as Rule 8. Mr. Riley will be
granted leave to file a curative amended complaint strictly as to these claims.

B.

No Constitutional Right to Conjugal Visits while in
Custody

A plaintiff, in order to state a viable § 1983 claim, must plead two essential
elements: (1) that the conduct complained of was committed by a person acting under
color of state law, and (2) that said conduct deprived the plaintiff of a right, privilege, or
immunity secured by the Constitution or laws of the United States. See 42 U.S.C. §
1983; Rehberg v. Paulk, 566 U.S. 356, 361, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593
(2012); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir. 2016).
It is well settled that prisoners have no constitutional rights while incarcerated to
contact or conjugal visits. See Ky. Dep’t Corr. v. Thompson, 490 U.S. 454, 460, 109
S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (no due process right to unfettered visitation);
Block v. Rutherford, 468 U.S. 576, 585 – 88, 104 S.Ct. 3227, 3232 - 3234, 82 L.Ed.2d
438 (1984) (pretrial detainees have no constitutional due process right to contact visits);
see also Overton v. Bazzetta, 539 U.S. 126, 131, 123 S.Ct. 2162, 2167, 156 L.Ed.2d
162 (2003) (observing that “freedom of association is among the rights least compatible
with incarceration”). “The loss of the right to intimate association is simply part and
parcel of being imprisoned for conviction of a crime.” Gerber v. Hickman, 291 F.3d 617,

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621 (9th Cir. 2002). Thus, to the extent Mr. Riley seeks to assert that any of the
Defendants violated his constitutional rights be denying him conjugal visits, he fails to
state a cognizable claim under 42 U.S.C. § 1983. 5 The Court will not grant Mr. Riley
leave to file an amended complaint as to this claim as it would be futile.

C.

Leave to File Amended Complaint

Mr. Riley will be granted twenty-one days to file an amended complaint that
complies with Fed. R. Civ. P. 8 and 20 concerning his retaliation and religious claims. If
Mr. Riley decides to file an amended complaint, he is advised he must clearly designate
on the face of the document that it is the “Amended Complaint,” it must bear the docket
number assigned to this case, and it must be retyped or legibly rewritten in its entirety,
preferably on the court-approved form. In addition, the "amended complaint must be
complete in all respects.

It must be a new pleading which stands by itself as an

adequate complaint without reference to the complaint already filed."

Young v.

Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). Mr. Riley is advised that any
amended complaint he may file supersedes (replaces) the original complaint.

In

addition, it must be “retyped or reprinted so that it will be complete in itself including
exhibits.” M.D. Pa. LR 15.1; see also W. Run Student Hous. Assocs. V. Huntingdon
Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013).

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Consequently, all causes of action

Mr. Riley’s Equal Protection argument also misses the mark. Although he asserts
“general homosexual prison population is able to engage in sexual conduct with one another,
but heterosexual males may not have sex,” he is mistaken. The DOC’s DC-ADM 801, Inmate
Discipline Policy, makes “engaging in sexual acts with others or sodomy” (charge #19), a Class
I misconduct. See DC-AMD 801, Inmate Discipline Policy, see https://www.cor.pa.gov.

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alleged in the original complaint which are not replead in the amended complaint are
waived.
Mr. Riley is also advised that his amended complaint must be concise and direct.
See Fed. R. Civ. P. 8(d). Each allegation must be set forth in individually numbered
paragraphs in short, concise and simple statements. Id. The allegations should be
specific enough as to time and place and should identify the specific person or persons
responsible for the deprivation of his constitutional rights and what each individual
defendant did that led to deprivation of his rights. He must allege how each of the
named defendants participated in the alleged unlawful activity. Iqbal, 556 U.S. at 676,
129 S.Ct. at 1948. Plaintiff must also specify the relief he seeks against each defendant
for the harm allegedly caused by their actions. Mr. Riley’s failure to file an appropriate
amended complaint within the required time will result in the Court directing the Clerk of
Court to close the case. Finally, Plaintiff is reminded of his obligation to advise the
Court of any change of address. See M.D. Pa. LR 83.18. His failure to do so will be
deemed as his abandonment of the lawsuit resulting in the dismissal of the action.
An appropriate order follows.
Date: March 29, 2019

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

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