BROWN v. FOX et al

Filing 15

MEMORANDUM OPINION & ORDER that Defendants motion to dismiss 8 is DISMISSED without prejudice. IT IS FURTHER ORDERED that Plaintiffs motion for default judgment 14 is DENIED. IT IS FURTHER ORDERED that the proposed amended complaint 12 is deeme d filed. In response to the amended complaint, Defendants may file an answer or motion to dismiss before April 3, 2015. Defendants should take care to address all the allegations of the amended complaint. Signed by Magistrate Judge Susan Paradise Baxter on 3/17/2015. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAMAR BROWN,
Plaintiff,
v.
FOX, et al,
Defendants.

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Civil Action No. 14-109Erie
Magistrate Judge Baxter

MEMORANDUM OPINION AND ORDER1
M.J. Susan Paradise Baxter

Plaintiff, currently a state prisoner at SCI Albion, filed this action in the Erie County
Court of Common Pleas. Thereafter, the action was removed from the Court of Common Pleas
to this Court by Defendants. The basis of Defendants’ removal was that the complaint “purports
to raise civil rights claims for excessive force, deliberate indifference and retaliation, negligence,
assault and battery; asserting claims under Federal and state law.” ECF No. 1, page 1.

The Allegations of the Original Complaint
Named as Defendants to this action are: Fox, Morendo, Lt. John Doe, Sgt. O’Brien,
Dunmire, Streichart, and Correctional Officer John Doe 2, all of whom are prison staff at SCI
Albion. Although Plaintiff organizes his original complaint into three separate counts (entitling
them as Count I – Assault and Battery; Count II – Assault and Battery; and Count III – Willful
Misconduct, with all three counts directed against Defendants Fox and Morendo), his original
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment.
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complaint is full of numerous other claims directed against all the named Defendants. Because
Plaintiff is a pro se litigant2, this Court will review the allegations of the original complaint and
outline the allegations against each Defendant.
Defendants Fox and Morendo
Plaintiff alleges that on the morning of April 9, 2013, Defendants Fox and Morendo
assaulted him or used excessive force against him by slamming his face and head into a metal
fence and/or door. Plaintiff was then taken to the Medical Department where his injuries were
treated and documented.3 Following his treatment in the Medical Department, Plaintiff was
escorted to the Restricted Housing Unit (“RHU”). Plaintiff claims that this assault by Fox and
Morendo was in retaliation for the filing of a lawsuit against other Department of Corrections
employees at SCI Somerset. ECF No. 1-1, ¶ 96, 98.
On June 7, 2013, Plaintiff was released from RHU. Since his release therefrom, Plaintiff
alleges that Fox and Morendo have created a “campaign of harassment” against him in retaliation
for filing grievances about the April 9th incident. Id. at ¶ 51.
Plaintiff claims that the actions of Fox and Morendo violate the Eighth and Fourteenth
Amendments. Id. at ¶ ¶ 95-98.
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than
formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the
court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,
555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read
“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992);
Freeman v. Dep’t of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading
rules, during the initial stages of litigation, a district court should construe all allegations in a
complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g.,
Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard);
Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)(same).
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Plaintiff does not complain about the medical treatment he received.
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Defendants Lt. John Doe and Sgt. O’Brien
Lt. John Doe and Sgt. O’Brien were responsible for assigning Plaintiff to a psychological
observation cell in RHU, despite there being no legitimate reason for such a placement and other
regular RHU cells were available. Id. at ¶ ¶ 65-71. Plaintiff claims this cell assignment was
retaliatory. Id. at ¶ 99. Due to his placement in the psychological observation cell in RHU,
Plaintiff’s food trays were limited in size and he was thereby deprived of nutritionally adequate
meals. Id. at ¶ ¶ 73 – 80.
Defendant Dunmire
In April of 2013, Defendant Dunmire did not give Plaintiff grievance forms in order to
report the physical abuse by staff members. Id. at ¶ 72. Plaintiff claims that this conduct violated
his right to freedom of speech and right to redress of grievances under the First Amendment and
due process under the Fourteenth Amendment. Id. at ¶ 100.
Defendants Striechert and Correctional Officer John Doe
Due to the negligence of these two Defendants, two of Plaintiff’s personal photo albums
were lost, depriving him of his personal property. Id. at ¶ ¶ 81-89, 102.

Procedural History
Following removal to this Court, Defendants filed a motion to dismiss in response to the
original complaint. Defendants’ motion to dismiss seeks dismissal of the entire action on the
basis of sovereign immunity and qualified immunity. ECF No. 8. More specifically, Defendants
argue that state sovereign immunity bars Counts I, II, and III against Defendants Fox and

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Morendo because they are state law claims and sounding in tort. ECF No. 9. Defendants also
summarily argue that they are all entitled to qualified immunity4. Id.
Despite expressly moving for dismissal of the entire action, the motion to dismiss is
limited to a discussion of the “assault and battery” and “willful misconduct” claims against Fox
and Morendo. Defendants fail to address any of Plaintiff’s federal constitutional claims.5
Defendants’ motion to dismiss will be dismissed without prejudice.
In opposition to the motion to dismiss the original complaint, Plaintiff filed a proposed
amended complaint. ECF No. 12. The original complaint and the proposed amended complaint
are almost identical. See id. at ¶ ¶ 5, 6, 27, 28, and 90(d).
Plaintiff has also filed a Request for Entry of Default and a Motion for Default Judgment
based upon Defendants’ failure to answer the proposed amended complaint. ECF No. 13, ECF
No. 14. Plaintiff’s supposition that Defendants were under an obligation to respond to the
proposed amended complaint is erroneous because the proposed amended complaint was not
deemed filed by this Court. Plaintiff’s motion for default judgment will be denied.

An appropriate Order follows.

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The entirety of Defendants’ argument in support of qualified immunity reads:
“The Department of Corrections Defendants were acting within the course and scope of
their employment in the care, custody, and control of inmates at SCI Albion. Department
of Corrections Defendants did not knowingly violate Plaintiff’s rights when they
responded to another officers’ call to assist with inmates fighting in the yard. They were
acting under their duty of care, custody and control of inmates when they escorted
Plaintiff to the RHU following his fight with another inmate in the yard.”

ECF No. 9, page 10.
It is interesting to note that Defendants recognized Plaintiff’s federal constitutional claims when
removing this matter to federal court, yet focused only on the state law claims when moving for
dismissal.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAMAR BROWN,
Plaintiff,
v.
FOX, et al,
Defendants.

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Civil Action No. 14-109Erie
Magistrate Judge Baxter

ORDER
AND NOW, this 17th day of March, 2015;
IT IS HEREBY ORDERED that Defendants’ motion to dismiss [ECF No. 8] is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s motion for default judgment [ECF No. 14]
is DENIED.
IT IS FURTHER ORDERED that the proposed amended complaint [ECF No. 12] is
deemed filed. In response to the amended complaint, Defendants may file an answer or motion to
dismiss before April 3, 2015. Defendants should take care to address all the allegations of the
amended complaint.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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