ROSA-DIAZ v. SGT. DOW et al

Filing 37

MEMORANDUM ORDER granting 31 Partial Motion to Dismiss. The only claim remaining in this case is Plaintiff's Eighth Amendment failure to protect claim against Sgt. Dow. IT IS FURTHER ORDERED that Defendants Sheridan, Reed, Cameron, Beck, Lewi s, Wetzel, Varner, and Bearjar are dismissed with prejudice. IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 35 ) dated February 23, 2015, as supplemented, is ADOPTED as the Opinion of the Court. IT IS FURTHER ORDERED Defendant Dow shall file his responsive pleading in accordance with Federal Rule of Civil Procedure 12(a)(4). IT IS FURTHER ORDERED that this matter is remanded back to the magistrate judge for all further pretrial proceedings, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 3/10/2015. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GABRIEL ROSA-DIAZ,

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Plaintiff,

v.
SGT. DOW, et al.,
Defendants.

Civil Action No. 3: 14-cv-0005

United States District Judge
Kim R. Gibson

MEMORANDUM ORDER

On January 9, 2014, Plaintiff, Gabriel Rosa-Diaz ("Rosa-Diez") initiated this Section
1983 prisoner civil rights action in which he raised multiple Eighth Amendment and Due Process
claims in connection with the misconducts he received and the assessment process. The case
was referred to a United States Magistrate Judge for pretrial proceedings in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(l), and the Local Rules of Court.
On February 23, 2015, the Magistrate Judge filed a Report and Recommendation (ECF
No. 35) recommending that the Partial Motion to Dismiss filed by Defendants (ECF No. 31) be
granted. Plaintiff filed timely Objections to the Report and Recommendation on March 9, 2015
(ECF No. 36).
In his first objection, Plaintiff objects to the recommendation that defendants Reed,
Cameron, Beck, Lewis, Wetzel, Varner, and Bearjar be dismissed for lack of personal
involvement. In his objections, Plaintiff raises a new claim of "1983 civil conspiracy" against
these defendants. Plaintiff states that he "faults [these defendants] not for being personally
involved, but for a 1983 'civil conspiracy' were (sic) they all with actual knowledge acquiescent
in the falsification of all reports I appeals for their best interest defendant Sgt. Dow and the
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DOC." Obj. at 2. Plaintiffs conspiracy allegations were not included in his complaint, and he
cannot effect an amendment to the complaint by including this claim for the first time in his
objections to the Report and Recommendation.
In the alternative, to the extent that a conspiracy claim could be inferred in the
Complaint, Plaintiffs objection is without merit. Plaintiffs perceived conspiracies all revolve
around Plaintiffs claim that Defendants Dow and Sheridan issued false misconduct reports. As
discussed in the Report and Recommendation, however, a claim that a misconduct report was
false, standing alone, does not violate a prisoner's constitutional rights, so long as procedural due
process protections were provided. Richardson v. Sherrer, 344 F. App'x 755, 757-58 (3d Cir.
2007); Booth v. Pence, 141 F. App'x 66 (3d Cir. 2005); Smith v. Mensinger, 293 F.3d at 653-54.
Thus, even if Defendants had agreed to and/or acquiesced in the filing of false misconduct
reports against Plaintiff, they did not conspire to deprive Plaintiff of a constitutional right. Thus,
Plaintiffs objection is overruled.
Next, Plaintiff objects to the recommendation that Defendant Sheridan be dismissed
because Plaintiffs claims against him are procedurally defaulted.

Plaintiff argues that the

PLRA is not applicable because his "civil action 'is not about prison conditions."' The United
States Court of Appeals for the Third Circuit has held that a prisoner's claim alleging a failure to
protect from attack by a fellow inmate is a challenge to prison conditions for purposes of the
PLRA. Booth v Churner, 206 F.3d 289, 291 (3d Cir. 2000). Plaintiffs objection is, therefore,
overruled.
Plaintiffs final two objections can be overruled rather summarily. Plaintiff argues that
Defendants Reed, Cameron, Beck, Lewis, Wetzel, Varner, and Bearjar should not be dismissed
for lack of personal involvement. As the Report and Recommendation explains, the Complaint
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contains no averments as to the personal involvement of these supervisory defendants.
Therefore, this objection is overruled.
Plaintiffs final objection is that his claims of negligence and intentional infliction of
emotional distress are not barred by sovereign immunity. Plaintiff is mistaken. As Defendants
were employees of the state acting within the scope of their duties and no statutory exception
applies, the Pennsylvania Sovereign Immunity doctrine bars these claims.
For all these reasons, the Court finds that Plaintiffs Objections do not undermine the
recommendation ofthe Magistrate Judge.
After de novo review of the pleadings and documents in the case, together with the
Report and Recommendation, and the Objections thereto, the following order is entered:

AND NOW, this

1.

10Jh of March, 2015;
day

Defendants' partial motion to dismiss is GRANTED. The only claim remaining

in this case is Plaintiffs Eighth Amendment failure to protect claim against Sgt. Dow.
2.

IT IS FURTHER ORDERED that Defendants Sheridan, Reed, Cameron, Beck,

Lewis, Wetzel, Varner, and Bearjar are dismissed with prejudice.
3.

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No.

35) dated February 23, 2015, as supplemented, is ADOPTED as the Opinion ofthe Court.
4.

IT IS FURTHER ORDERED Defendant Dow shall file his responsive pleading

in accordance with Federal Rule of Civil Procedure 12(a)(4).

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5.

IT IS FURTHER ORDERED that this matter is remanded back to the

magistrate judge for all further pretrial proceedings.

'

~~~

Kim R. Gibson
United States District Judge

cc:

GABRIEL ROSA-DIAZ
FH-7313
SCI Forest
PO Box 945
Marienville, P A 16239
Mary Lynch Friedline
Office of the Attorney General
(via ECF electronic notification)

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