EVERETT v. PIERCE et al

Filing 93

MEMORANDUM ORDER adopting 85 Magistrate Judge's Report and Recommendation; granting in part and denying in part 83 Motion to Dismiss; and denying 91 Motion to Amend/Correct. It is further ORDERED that C/O Rodger be added as a defendant to the existing retaliation claim(s) and that the Corrections Defendants shall file an Answer in accordance with Federal Rule of Civil Procedure 12(a)(4)(A). This matter is referred back to Magistrate Judge Eddy for all further pretrial proceedings. Signed by Judge Arthur J. Schwab on 11/29/2016. (eet)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEVON A. EVERETT,

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Plaintiff,

v.
SGT. PIERCE, et al.,
Defendants.

2: 15-cv-1383
ELECTRONICALLY FILED

MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (DOC. NO. 85) AND DENYING PLAINTIFF’S
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DOC. NO. 91)
This prisoner civil rights suit was commenced on October 26, 2015, with the filing of a
petition to proceed in forma pauperis and was referred to United States Magistrate Judge Cynthia
Reed Eddy for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b)(1) and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges.
The magistrate judge’s report and recommendation, dated November 3, 2016 (Doc. No.
85), recommended that pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, certain claims of the
Second Amended Complaint (Doc. No. 82), the operative complaint in this matter, be dismissed
with prejudice and that others claims be dismissed without prejudice. The magistrate judge also
recommended that the Corrections Defendants’ motion to dismiss (Doc. No. 83) be denied as to
Plaintiff’s retaliation claim and that C.O. Hann be added as a defendant.
A copy of the report and recommendation was sent to Plaintiff by First Class United
States Mail at his listed address and sent to all counsel electronically via the ECF system. The
parties were advised that written objections to the report and recommendation were to be filed
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fourteen (14) days after service of the report and recommendation. No party filed objections;
however, Plaintiff filed a “Motion for Leave to File an Amended Complaint.” (Doc. No. 91).1
After de novo review of the pleadings and documents in the case, together with the report
and recommendation, the Court finds that the report and recommendation should be adopted as
the opinion of the Court. Accordingly, the following claims are dismissed with prejudice:
1. All claims against the DOC and the individual prison officials sued in their official
capacities;
2. All claims against Superintendent Jay Lane;
3. All claims against Union Supply Direct;
4. All due process claims and claims against Sgt. Pierce relating to the refusal to give
Plaintiff his Norelco razor.
Turning to the merits of the motion to amend, Plaintiff seeks leave to file yet another
amended complaint,2 which would include claims for conspiracy, deliberate indifference to his
medical needs, an unspecified discrimination claim, a claim under the Americans with
Disabilities Act, and a claim under the Rehabilitation Act. (Notably, these are the same claims
that the magistrate judge recommended be dismissed without prejudice in the report and
recommendation, noting that the claims were not related to the claims in the Second Amended
Complaint.) Granting or denying a motion to amend lies within the discretion of the court.
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The Report and Recommendation advised Plaintiff that to the extent the Second
Amended Complaint was attempting to raise claims that were not raised in either his original
complaint or his amended complaint, he must file a separate motion for leave to amend to
include these claims. See report and recommendation at 8-9.
If allowed to amend, this would be Plaintiff’s third amended complaint. See Complaint
(Doc. No. 3), the Amended Complaint (Doc. No. 20), and the Second Amended Complaint (Doc.
No. 82).
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Krantz v. Prudential Investments Fund Management LLC, 305 F.3d 140, 144 (3d Cir. 2002). In
exercising that discretion, courts consider undue delay, bad faith or dilatory motive by the
movant, repeated failure to cure deficiencies, futility of the amendment and undue prejudice to
the opposing parties. Foman v. Davis, 371 U.S. 178, 182 (1962).
Initially, the Court notes that this case has been pending over 400 days, and yet it has not
progressed beyond the motion to dismiss phase. Plaintiff offers no explanation as to why he
could not have included these claims initially when he began this suit. Allowing Plaintiff to file
yet another amended complaint would clearly result in undue delay and prejudice to Defendants.
Moreover, claims of deliberate indifference to his medical needs, discrimination, and
violations of the Americans with Disabilities Act and Rehabilitation Act are not related to the
allegations in the Second Amended Complaint. These additional claims, if Plaintiff chooses to
pursue, should be filed in separate lawsuits. The Prison Litigation Reform Act of 1995
(“PLRA”), which substantially changed the judicial treatment of civil rights actions by state and
federal prisoners, also compels compliance with Rule 20. Allowing a prisoner to include a
plethora of separate, independent claims, would circumvent the filing fee requirements of the
PLRA. Mincy v. Klem, 2007 WL 1576444, at *1 (M.D.Pa. May 30, 2007). See George v. Smith,
507 F.3d 605, 607 (7th Cir. 2007) (“Unrelated claims against different defendants belong in
different suits, not only to prevent the sort of morass that this [multiple]-claim, [multiple]defendant suit produced but also to ensure that prisoners pay the required filing fees.”). See also
Smith v. Kirby, 53 F. App'x 14, 16 (10th Cir. 2002) (unpublished) (finding no abuse of discretion
where district court denied leave to amend or supplement the complaint where the “new claims
were not relevant to the claims before that court.. . .”).

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As to Plaintiff’s proposed conspiracy claim, the Court finds this claim would be
superfluous. As a member of this court recently explained:
“The doctrine of civil conspiracy extends liability for tort, here the deprivation of
constitutional rights, to persons other than the wrongdoer[.]” Hostrop v. Bd of Jr.
Coll. Dist. No. 515, Cook & Will Counties & State of Ill., 523 F.2d 569, 576 (7th
Cir. 1975). For example, even though A did not commit the act that actually
caused the plaintiff’s injury, he may nonetheless be held liable if he conspired
with B to do so. Still, “it is the acts causing damage to the plaintiff that give rise
to liability for damages, not the conspiracy itself.” Id. Plaintiff has pled one
underlying violation of his First Amendment Rights and alleges that each of the
conspirators were directly involved in it, so “[t]he conspiracy count . . . adds
nothing to the substantive count.” Id.
Miller v. Fayette County, No. 2:15-cv-1590, 2016 WL 1555526 at *6 n. 3 (Apr. 18, 2016). In
the present case, Plaintiff alleges that Defendant Lou Bozelli and C/O Hann and Rodger agreed
and acted in concert when they retaliated against Plaintiff for engaging in protected activity.
Thus, like the situation described in Miller, the conspiracy count adds nothing to the substantive
retaliation count.
For all these reasons, the only remaining claims in this lawsuit are as follows: Plaintiff’s
retaliation claims that Defendants Bozelli, Hann, and Rodgers retaliated against him when (1)
they placed his former cellmate back in this cell and then failed to protect him when the cellmate
attacked him; and (2) when Bozelli directed Hann and Rodgers to issue falsified misconducts
against him. It is further ORDERED that C/O Rodger be added as a defendant to the existing
retaliation claim(s).
It is further ORDERED that the Report and Recommendation (Doc. No. 85) is
ADOPTED as the Opinion of the Court.

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AND IT IS FURTHER ORDERED that the Corrections Defendants shall file an
Answer in accordance with Federal Rule of Civil Procedure 12(a)(4)(A).
This matter is referred back to Magistrate Judge Eddy for all further pretrial proceedings.

SO ORDERED this 29th day of November, 2016.
s/Arthur J. Schwab_______
Arthur J. Schwab
United States District Judge

cc:

JEVON A. EVERETT
HW1387
SCI Fayette
PO Box 9999
LaBelle, PA 15450-0999
(via U.S. First Class Mail)
Raymond W. Dorian
Pennsylvania Department of Corrections
(via ECF electronic notification)
Brian T. Feeney
Greenberg Traurig
(via ECF electronic notification)
Gregory T. Sturges
Greenberg Traurig LLP
(via ECF electronic notification)

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