Carr v. Borden et al

Filing 11

MEMORANDUM (Order to follow as separate docket entry). For the foregoing reasons, the court will dismiss Carr's claims alleging that defendants failed to protect him from harm by D.S. and Hinkle as misjoined in violation of Rule 20, sever Car rs claim alleging interference with his mail into a separate case for which Carr will be required to file an amended complaint and pay the requisite filing fee or move for leave to proceed in forma pauperis, dismiss with prejudice any claims Carr attempts to assert against Kothe for violation of a PFA or violation of DOC policy, dismiss Carrs deliberate indifference claim against Kothe without prejudice, and grant Carr leave to amend solely with respect to his deliberate indifference claim against defendant Kothe. An appropriate order shall issue. Signed by Honorable Malachy E Mannion on 9/25/2024. (ktt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CODY ALLEN CARR,

:

Plaintiff

: CIV. ACTION NO. 3:24-CV-1085

v.

:

SEAN BORDEN, et al.,

(JUDGE MANNION)

:

Defendants

:

MEMORANDUM
This is a prisoner civil rights case filed pursuant to 42 U.S.C. §1983.
For the reasons set forth below, plaintiff’s claims against defendant Kothe
will be dismissed, plaintiff’s claims against all other defendants will be
dismissed or severed from this case as misjoined in violation of Federal Rule
of Civil Procedure 20, and plaintiff will be granted leave to file an amended
complaint with respect to his deliberate indifference claim against Kothe only.
I.

BACKGROUND
Plaintiff, Cody Allen Carr, a pretrial detainee in Dauphin County Prison,

brings the instant case pursuant to 42 U.S.C. §1983. Carr’s complaint alleges
civil rights violations based on four separate and completely distinct
incidents: (1) defendant Kothe’s purported denial of Carr’s request to require
Carr to be separated from his ex-boyfriend, who was employed in Dauphin

County Prison as a correctional officer in June 2022; (2) various defendants’
purported failure to protect Carr from the risk of harm by another inmate,
D.S., beginning in March 2023; (3) various defendants’ purported failure to
protect Carr from sexual harassment by defendant Hinkle, a correctional
officer in the prison, beginning in November 2023; and (4) various
defendants’ purported interference with Carr’s ability to send mail to various
state and federal courts beginning in April 2022. (See Doc. 1). The complaint
is before the court for a preliminary screening pursuant to 28 U.S.C.
§1915(e)(2)1 and 28 U.S.C. §1915A. 2

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28 U.S.C. §1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if
the court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted; or
(iii) seeks monetary relief against a defendant who is
immune from such relief.

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28 U.S.C. §1915A provides:
(a) Screening.--The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing,
a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental entity.
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II.

MISJOINDER
Because the complaint contains claims that are obviously misjoined

in violation of Federal Rule of Civil Procedure 20, the court will address this
joinder issue at the outset in the interest of judicial economy.
Under Rule 20, claims against multiple defendants may be joined in
the same action only 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.
Fed. R. Civ. P. 20(a)(2).
A district court has two options when a plaintiff has misjoined claims:
(1) dismiss the misjoined claims without prejudice on “just terms” or (2) sever
the claims into separate lawsuits. Fed. R. Civ. P. 21; DirecTV, Inc. v. Leto,
467 F.3d 842, 845 (3d Cir. 2006). The statute of limitations for claims that

(b) Grounds for dismissal.--On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
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are dismissed without prejudice are not tolled because the initial complaint
is treated “as if it never existed.” Id. (quoting Brennan v. Kulick, 407 F.3d
603, 606 (3d Cir. 2005)). When, on the other hand, the claims are severed,
“the suit simply continues against the severed defendant in another guise.”
Id. (citing White v. ABCO Eng’g Corp., 199 F.3d 140, 145 n.6 (3d Cir. 1999)).
District courts have discretion to choose whether to dismiss or sever
misjoined claims but may only dismiss the claims if doing so would be just,
“that is, if doing so ‘will not prejudice any substantial right’” of the plaintiff. Id.
(quoting Sabolsky v. Budzanoski, 457 F.2d 1245, 1249 (3d Cir. 1972)).
“Hence, a court must analyze the consequences of a dismissal on a
claimant’s ability to meet the statute of limitations prior to choosing dismissal
over severance.” Id.
In this case, Carr has asserted civil rights claims based on four
completely distinct events that are not connected in any way other than the
fact that they occurred while he was incarcerated in Dauphin County Prison.
There is no basis for these claims to be joined under Rule 20. The court will
accordingly allow this case to proceed solely as to Carr’s claim against
defendant Kothe because that is the first claim mentioned in the complaint.
To determine whether dismissal or severance of the other claims is
appropriate, the court must consider the plaintiff’s ability to comply with the
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applicable statute of limitations in the event the claims are dismissed.
DirecTV, Inc., 467 F.3d at 845. Section 1983 civil rights claims arising from
actions that occurred in Pennsylvania are subject to Pennsylvania’s two-year
statute of limitations for personal injury actions. Wisniewski v. Fisher, 857
F.3d 152, 157 (3d Cir. 2017).
Carr’s claims arising from the alleged failure to protect him from assault
by D.S. and failure to protect him from sexual harassment by defendant
Hinkle will be dismissed without prejudice. These allegedly wrongful actions
did not begin until March 2023 and November 2023, respectively, meaning
there would not be any potential statute of limitations concerns until March
2025 at the earliest.
Carr’s claims arising from defendants’ purported interference with his
mail will be severed from this case and opened in a new lawsuit. The alleged
interference with Carr’s mail began in April 2022, meaning that at least some
of the facts related to these claims may be time barred if the claims were
dismissed. The court accordingly finds that severance of these claims, rather
than dismissal, is necessary in the interest of justice. The claims will be
reopened in a new case on this court’s docket. Carr will be required to file an
amended complaint with respect to these claims and pay a separate filing

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fee or file a separate motion for leave to proceed in forma pauperis in the
new case. 3
Having determined that the above-captioned case will proceed solely
as to plaintiff’s claims against defendant Kothe, the court will summarize the
factual allegations that are pertinent to those claims.
III.

ALLEGATIONS AGAINST KOTHE
The complaint alleges that on December 21, 2014, during a previous

incarceration in Dauphin County Prison, Carr submitted a complaint against
Battaglia pursuant to the Prison Rape Elimination Act (“PREA”). (Doc. 1 ¶
26). At some point after this date, prison officials purportedly issued a
“separation order” requiring Battaglia to avoid contact with Carr. (See id. ¶
27). On February 20, 2015, Carr submitted a grievance asserting that
Battaglia violated the separation order. (Id.)
After Carr was released from prison, he applied for a Protection from
Abuse order (“PFA”) against Battaglia. (See id. ¶ 28). A county judge granted
the PFA on November 20, 2015, based on a finding that Battaglia had come
to Carr’s residence and physically assaulted him. (Id.) The PFA was granted

Carr has filed a motion for leave to amend the identities of several
defendants in his complaint and to add one defendant. (Doc. 10). This motion
pertains to the claims that have been misjoined in this case. The motion for
leave to amend will accordingly be denied as moot.
3

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on a temporary basis. (Id.) Carr subsequently “chose not to show up” to a
hearing before the county judge that would have potentially converted the
temporary PFA into a permanent order. (Id.)
On June 4, 2022, Carr submitted a request to Dauphin County Prison
officials for a separation order requiring Battaglia to avoid contact with him.
(Id. ¶ 30). The request noted the previous PFA and the previous separation
order. (Id.) Kothe purportedly responded to the request by stating, “original
PREA investigation showed no PFA’s filed between you and CO Battaglia.
Separation will not be filed.” (Id. ¶ 31). Carr allegedly submitted a follow-up
request on June 7, 2022, in which he stated that Kothe had not found any
records of PFAs because he had searched for that information using Carr’s
birth name rather than his married name. (Id. ¶ 32). Kothe again denied the
request for a separation order, stating, “upon searching the portal, no record
exists of a PFA being issued by Judge Curcillo ever for your current name or
provided name. Stop filing false PREA allegations or you will be given a
misconduct.” (Id. ¶ 33).
On February 23, 2024, unnamed Dauphin County Prison officials
imposed a separation order requiring Battaglia to avoid contact with Carr.
(Id. ¶ 90). Battaglia allegedly violated the separation order on March 19,
2024, by coming into Carr’s housing block. (Id. ¶ 91). Battaglia then allegedly
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violated the separation order again on June 13, 2024, by coming into the
medical unit when Carr was there and not leaving the area when he saw
Carr. (Id. ¶ 93). There is no allegation that Battaglia harmed Carr in any way
during these alleged violations of the separation order.
IV.

DISCUSSION
A.

Screening

The court has conducted an initial screening of Carr’s complaint and
has determined that the complaint fails to state a claim upon which relief may
be granted against defendant Kothe. The court liberally construes the
complaint as asserting that Kothe was deliberately indifferent to the risk that
Battaglia would assault Carr. To plead a prima facie deliberate indifference
claim, a plaintiff must allege (1) he was incarcerated under conditions posing
a substantial risk of serious harm, and (2) the defendant was deliberately
indifferent to that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The
first element is an objective inquiry of whether the official “knowingly and
unreasonably disregarded an objectively intolerable risk of harm.” BeersCapitol v. Wetzel, 256 F.3d 120, 132 (3d Cir. 2001). The second element is
subjective: “the official must actually be aware of the existence of the
excessive risk; it is not sufficient that the official should have been aware.”
Id. at 133.
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In this case, it is alleged that Kothe denied Carr’s requests for a
separation order requiring Battaglia to avoid contact with him in 2022 and
that approximately two years later Battaglia made contact with Carr on two
occasions. The court finds these allegations insufficient to state a deliberate
indifference claim upon which relief may be granted. It is not clear from the
complaint that Battaglia harmed Carr—or even posed a risk of harm to
Carr— after Kothe denied the requested separation orders. The only
allegations of harm by Battaglia occurred approximately seven years before
Carr requested the separation orders, and it is not clear from the complaint
that Battaglia continued to pose a threat of harm to Carr so many years later.
Furthermore, even assuming that Battaglia harmed Carr in some way
when they saw each other in 2024, it is not clear from the allegations in the
complaint that Kothe’s actions caused this harm or even made the harm
more likely: Battaglia’s interactions with Carr occurred approximately two
years after Kothe’s actions, and other prison officials issued a separation
order requiring Battaglia to avoid contact with Carr in the interim. Any
connection between Battaglia’s actions in 2024 and Kothe’s actions in 2022
appears to be based on nothing more than speculation. The court will
accordingly dismiss the deliberate indifference claim against Kothe for failure
to state a claim upon which relief may be granted.
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To the extent that Carr alternatively seeks to bring claims alleging that
Kothe failed to enforce the terms of his earlier PFA against Battaglia or failed
to follow DOC policy regarding his requests for a separation order, these
claims fail as a matter of law. An individual who obtains a PFA against
another individual under Pennsylvania law does not have a protected due
process interesting entitling him to enforcement of the PFA. Burella v. City of
Philadelphia, 501 F.3d 134, 143-46 (3d Cir. 2007) (citing Town of Castle
Rock, Colorado v. Gonzalez, 545 U.S. 748 (2005)); accord Coon v. County
of Lebanon, 111 F.4th 273, 275-76 (3d Cir. 2024). Similarly, an alleged
violation of DOC policy does not by itself constitute a violation of an inmate’s
due process rights. See, e.g., Dominguez v. Governor of Pennsylvania, 574
F. App’x 63, 65 n.1 (3d Cir. 2014); McKeither v. Folino, 540 F. App’x 76, 78
(3d Cir. 2013). The court will accordingly dismiss the complaint to the extent
that it asserts any claims for alleged violations of the PFA or DOC policy.
B.

Leave to Amend

Before dismissing a civil rights complaint for failure to state a claim
upon which relief may be granted, a district court must permit a curative
amendment unless the amendment would be inequitable or futile. Phillips v.
County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The court will grant
Carr leave to amend in the instant case solely with respect to his deliberate
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indifference claim against defendant Kothe. Carr’s claims against all other
defendants are misjoined in violation of Federal Rule of Civil Procedure 20,
while his claims against Kothe based on alleged violations of the PFA or
DOC policy fail as a matter of law.
IV.

CONCLUSION
For the foregoing reasons, the court will dismiss Carr’s claims alleging

that defendants failed to protect him from harm by D.S. and Hinkle as
misjoined in violation of Rule 20, sever Carr’s claim alleging interference with
his mail into a separate case for which Carr will be required to file an
amended complaint and pay the requisite filing fee or move for leave to
proceed in forma pauperis, dismiss with prejudice any claims Carr attempts
to assert against Kothe for violation of a PFA or violation of DOC policy,
dismiss Carr’s deliberate indifference claim against Kothe without prejudice,
and grant Carr leave to amend solely with respect to his deliberate
indifference claim against defendant Kothe. An appropriate order shall issue.

s/ Malachy E. Mannion

Malachy E. Mannion
United States District Judge
Dated:
24-1085-01

September 25, 2024

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