SHELLEY v. PATRICK et al
Filing
60
MEMORANDUM OPINION that the 48 and 56 MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Defendants are hereby GRANTED because Plaintiff has failed to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 1 2(b)(6). The 59 REPORT AND RECOMMENDATION of Magistrate Judge Pesto filed on March 14, 2012 is modified as stated within this Memorandum Opinion. IT IS FURTHER ORDERED that the 46 Amended Complaint filed by BARRY E. SHELLEY is hereby DISMISSED with prejudice. Signed by Judge Maurice B. Cohill on 4/3/2012. (sjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARRY E. SHELLEY,
)
)
Plaintiff,
)
v.
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GEORGE PATRICK, RANDALL E.
)
BRITTON, NANCY SMITH, NORENE )
GREENLEAF, DEBRA YOUNKIN,
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PRISON HEALTH CARE
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ADMINISTRATION/STAFF, ERNEST )
OBROCK, MICHELLE DRISKEL,
)
MICHELLE IVICIC, and
)
WILLIAM CIVIELLO
)
)
Defendants.
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CV 09-181
MEMORANDUM OPINION
This matter was referred to Magistrate Judge Keith A. Pesto for pretrial proceedings in
accordance with the Magistrates Act, 28 U.S.C.§ 636(b)(l), and subsections 3 and 4 of Local
Rule 72.1 for Magistrate Judges.
I.
Procedural History
This is a pro se civil rights action originally filed by Plaintiff on July 9, 2009, while he
was incarcerated. Within weeks of filing his complaint and a motion for leave to proceed in
forma pauperis, he was released from prison. Plaintiff was thus ordered to submit a new address
and either submit the filing fee or a new in forma pauperis motion. Plaintiff complied; however,
we denied his motion for in forma pauperis. Plaintiff appealed and the Third Circuit Court of
Appeals reversed our Order finding that the motion for leave to proceed in forma pauperis was
proper and remanded the case with instructions to grant the motion and permit the case to
proceed. Shelley v. Patrick, No. 09-3947, slip op. (3 rd Cir. Jan. 20, 201 1)(per curiam).
After remand, motions to dismiss were filed by Defendants. We granted these motions
and dismissed the complaint. Again plaintiff appealed, and the Third Circuit Court of Appeals
found that we had abused our discretion by dismissing the complaint for failure to prosecute.
Shelley v. Patrick, No. 10-4762, slip op. (3 rd Cir. May 5, 2011) (per curiam). However the Court
agreed with us that Plaintiff s allegation of interference with his legal mail was time-barred. Id.
at n.3.
Additionally, the Court agreed that Plaintiffs Complaint was insufficient as it did not
state a claim to relief that was plausible on its face. Id. at 5. The Court declined to affirm on that
basis, however, as we had failed to permit Plaintiff an opportunity to amend his complaint.
Thus, the Court remanded the case so that Plaintiff could file an Amended Complaint. Id. at 4
5.
Plaintiff s original complaint, which both this court and the Third Circuit Court of
Appeals found to be insufficient to state a claim to relief that was plausible on its face, alleged
claims against prison administration and staff for violations of his constitutional rights. In
particular, he claimed that he received inadequate medical treatment for his foot and for dental
work at unspecified dates, and that his legal mail was improperly opened in 2006. As stated, the
Third Circuit Court of Appeals agreed with us that Plaintiffs claim regarding his legal mail was
time-barred.
On July 20,2011, Plaintiff filed his Amended Complaint with attached exhibits (ECF No.
46), followed by additional supporting exhibits on August 5, 2011 (ECF No. 52), and again on
September 8, 2011 (ECF No. 53). Plaintiffs Amended Complaint states in relevant part as
follows:
See attached Exhibits that Plaintiff s Records will explain claims as to medical
problems that Defendants neglected.
Amended Complaint, ECF No. 46. The attached exhibits consist of the following documents:
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A. PA Department of Public Welfare Employment assessment form, 1117/2011
B. Somerset Family Practice Radiology Examinations, 11120/2009
C. Somerset Hospital Bill dated 211112010
D. Bedford Surgical Associates Procedure check sheet, for procedure set for
3/28/2011
E. Prescription information sheets for Atenolol , Gemfibrozil, & Terazosin
1115/2010
F. Treatment Acceptance and Payment Arrangement form with detailed
itemization for Dental procedures, 411112011
G. Somerset Hospital Results for XR Esophagus-Barium Swallow (3115/2011);
Ultrasound of Liver (1112512009); XR Cervical Spine 2 or 3 Vws
(11118/2009); XR Lumbar Spine 2 or 3 Vws (11118/2009); XR Knee Bilat
Comp min 4 Vws (11118/2009); XR Thoracic Spine 3 Vws (11118/2009); XR
Chest PA & LAT (9/8/2009);
H. Podiatric doctor Eckerd (not filed but referenced in ECF No. 51)
I. Fabian Family Chiropractic Bill dated 811/2011 for services 11118/09
5/612011
J. Dr. David Faber (not filed but referenced in ECF No. 51)
K. Somerset Family Practice (not filed but referenced in ECF No. 51)
ECF Nos. 46, 51, 52, and 53.
Motions to dismiss were separately filed by Defendant Civiello (ECF No. 48) and the
remaining Defendants (ECF No. 56), arguing for dismissal for failure to state a claim upon
which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). The Magistrate
Judge issued a report and Recommendation dated March 14,2011, recommending granting
Defendant Civiello's motion. Plaintiff was given 14 days to object, but no objections were filed.
II.
Standard of Review
In ruling on a Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted a Court must "'accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief'"~ Phillips v. County of Allegheny, 515 F.3d
224,233 (3d Cir. 2008) , quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361,374 n. 7 (3d Cir.
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2002), and citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, n.8 (2007). A valid
complaint requires only Ita short and plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 "demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, --- U.S. ----, ---, 129 S.Ct.
1937, 1949 (2009), citing Twombly, 550 U.S. at 555.
"To survive a motion to dismiss a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949,
quoting Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 129 S.Ct. at 1949, citing Twombly, 550 U.S. at 556.
"Factual allegations of a complaint must be enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555. "This [standard] 'does not impose a probability requirement
at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234, quoting
Twombly, 550 U.S. at 556. Thus, "a plaintiffs obligation to provide the 'grounds' of his
'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of
the elements ofa cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted).
The Supreme Court in Iqbal explained that although a court must accept as true all of the
factual allegations contained in a complaint, that requirement does not apply to legal
conclusions; therefore, pleadings must include factual allegations to support the legal claims
asserted. Iqbal, 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice." Id., citing Twombly, 550 U.S. at 555.
See also Phillips, 515 F.3d at 232 ("We caution that without some factual allegation in the
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complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,'
but also the 'grounds' on which the claim rests.")(citing Twombly, 550 U.S. at 556 n. 3 (2007)).
Accordingly, to survive a motion to dismiss, a plaintiff must plead "factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Iqbal, 129 S.Ct. at 1949.
Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must next decide
whether leave to amend the complaint must be granted. As explained in Phillips,: "We have
instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a
curative amendment, unless an amendment would be inequitable or futile." 515 F.3d at 236,
citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).
III.
Analysis
We will dismiss Plaintiffs Amended Complaint for failure to allege sufficient facts to
support a cognizable legal claim. Plaintiff s Amended Complaint consists of his bare allegation
that he suffered "medical problems that Defendants neglected." (ECF No. 46.) This statement in
is "an unadorned, the-defendant-unlawfully-harmed-me accusation" that the Supreme Court has
determined is insufficient to satisfy Rule 8's requirement of alleging facts that show that the
pleader is entitled to relief. Iqbal, 129 S.Ct. at 1949.
Nor can Plaintiff rely on his attached exhibits to show that he has alleged "sufficient
factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal,
129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 570. The attached exhibits are various
medical records and bills, along with one employment assessment form, showing that Plaintiff
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has undergone various medical procedures but these records show no evidence of medical
neglect and have no connection to any claim against the named Defendants.
We have reviewed all of Plaintiff s documents. We find that there is no basis for a cause
of action and find that the documents taken together do not give defendants fair notice of what
the claims are and the grounds upon which they rest. Fed.R.Civ. P. 8(a)(2). We remain unable
to discern any factual allegation to support Plaintiffs claims, and can find no allegations of overt
acts committed by any defendant, as opposed to vague, ambiguous, and conclusory allegations.
Finally, Plaintiff has failed to provide an indication as to when any alleged event occurred.
Therefore, because Plaintiff s Amended Complaint fails to state sufficient facts to state a
claim to relief that is plausible on its face we will grant Defendants' motions and dismiss the
Amended Complaint. In addition, we will dismiss the Amended Complaint with prejudice.
Plaintiff has been given the opportunity to cure his originally filed insufficient Complaint and
has failed to do so. In fact, his Amended Complaint contains fewer factual allegations than his
original, insufficient Complaint. We therefore find that to permit Plaintiff to file another
amendment would be both "inequitable [and] futile." Phillips, 515 F.3d at 236.
IV.
Conclusion
For the reasons stated above Defendants' motions to dismiss will be granted, and
Plaintiffs Amended Complaint will be dismissed with prejudice.
An appropriate Order follows.
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ORDER
Upon de novo review of the pleadings and documents in the case, together with the report
and recommendation, the following Order is entered.
AND NOW, this
-3~ay of t.it#
,2012, it is hereby ORDERED, ADJUDGED,
and DECREED that Defendants' Motions to Dismiss (ECF No. 48 & 56) be and hereby are
GRANTED because Plaintiff has failed to state a claim upon which relief may be granted under
Federal Rule of Civil Procedure 12(b)(6).
The report and recommendation filed on March 14,2012, is modified as stated within this
Memorandum Opinion.
IT IS FURTHER ORDERED that Plaintiffs Amended Complaint is hereby DISMISSED
with prejudice.
cc:
counsel of record
Barry Shelley
364 Covered Bridge Road
Rockwood, PA 15557
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