Mearin v. Swartz

951 F. Supp. 2d 776, 2013 WL 2641801, 2013 U.S. Dist. LEXIS 82224
CourtDistrict Court, W.D. Pennsylvania
DecidedJune 12, 2013
DocketCivil Action No. 11-669
StatusPublished
Cited by60 cases

This text of 951 F. Supp. 2d 776 (Mearin v. Swartz) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mearin v. Swartz, 951 F. Supp. 2d 776, 2013 WL 2641801, 2013 U.S. Dist. LEXIS 82224 (W.D. Pa. 2013).

Opinion

ORDER

NORA BARRY FISCHER, District Judge.

AND NOW, this 12th day of June, 2013, after Plaintiffs Thurman Mearin and Nathan Riley filed an action in the above-captioned case, and after a Motion to Dismiss Plaintiffs Amended Complaint was submitted on behalf of Defendants, and after a Report and Recommendation was filed by the United States Magistrate Judge and the parties were granted until June 7, 2013, to file written objections thereto, and upon consideration of the objections filed by Plaintiffs, and upon independent review of the record, and upon consideration of the Magistrate Judge’s Report and Recommendation, which is adopted as the opinion of this Court,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint, ECF No. 59, is granted in part and denied in part as follows: the Motion is granted as to Plaintiff Mearin’s Eighth Amendment claims revolving around his exposure to ETS brought against Defendants Winfield, Folino, Tomson, Williams, Meighen, Greenwall, Renera, Fearia and Varner; as to Plaintiff Riley’s Eight Amendment ETS claims brought against Defendants Folino and Palya; as to both Plaintiffs’ Eighth Amendment claims revolving around an alleged “snitch policy” brought against all Defendants; and as to both Plaintiffs’ First Amendment claims brought against all Defendants; the Motion is denied as to Plaintiff Mearin’s Eighth Amendment ETS claims brought against Defendants Swartz and Palya and as to Plaintiff Riley’s Eighth Amendment ETS claims brought against Defendants Swartz, Kennedy and Over.

REPORT AND RECOMMENDATION

MAUREEN P. KELLY, United States Magistrate Judge.

I. RECOMMENDATION

Plaintiffs Thurman Mearin (“Mearin”) and Nathan Riley (“Riley”) (collectively, “Plaintiffs”) are inmates in the custody of the Pennsylvania Department of Corrections (“DOC”), and are currently incarcerated at the State Correctional Institution at Greene (“SCI Greene”). Plaintiffs bring this pro se civil rights action against Unit Manager Carla Swartz (“Swartz”), Major of Unit Manager Major L. Winfield (“Winfield”), Superintendent Louis Folino (“Folino”), Chief Grievance Officer Dorina [779]*779Varner (‘Varner”), L-5 Unit Manager Paula Palya (“Palya”), Lieutenant Robert Kennedy (“Kennedy”), C.0.1 Tomson (“Tomson”), C.0.1 Williams (“Williams”), Lieutenant D.P. Meighen (“Meighen”), C.0.1 Greenwall (“Greenwall”), C.0.2 Renera (“Renera”), Sergeant Fearia (“Fearia”), and C.0.1 Over (“Over”) (collectively, “Defendants”), alleging that Defendants have allowed them to be exposed to environmental tobacco smoke (“ETS”) with deliberate indifference to their current and future health in violation of his rights provided by the Eighth Amendment to the United States Constitution.

Presently before the Court is a Motion to Dismiss Plaintiffs’ Amended Complaint (“the Motion”) submitted on behalf of Defendants. ECF No. 59. For the reasons that follow, it is respectfully recommended the Motion be granted in part and denied in part.

II. REPORT

A. PROCEDURAL BACKGROUND

Plaintiffs initiated this action on May 19, 2011, by submitting a Complaint to the Clerk of Court without the requisite filing fee or motion seeking leave to proceed in forma pauperis. ECF No. 1. The filing fee, however, was paid May 24, 2011, and the Complaint was filed on that same date. ECF Nos. 3, 5. An Amended Complaint was filed by Plaintiffs on October 10, 2011, but struck by this Court on November 2, 2011, because only one of the two Plaintiffs had signed it. ECF Nos. 14, 17. Plaintiffs were nevertheless directed to submit a jointly signed Amended Complaint on or before November 28, 2011, which they failed to do. ECF No. 17. Although Plaintiffs subsequently sought to amend the same unsigned Amended Complaint on February 14, 2012, that effort was thwarted for the same reason and on March 2, 2012, this Court issued another order giving Plaintiffs until March 23, 2012, to file a Consolidated Amended Complaint bringing all of the claims asserted in the original complaint and any new claims they wished to pursue in a single document. ECF Nos. 36, 38.

Plaintiffs filed an Amended and Supplemental Complaint (“Amended Complaint”) on March 26, 2012, which is now the operative complaint. ECF Nos. 39, 39-1. At Count I, Plaintiff Mearin has brought Eighth Amendment claims relative to his exposure to ETS against Defendants Swartz, Winfield, Folino, Palya, Tomson, Williams, Meighen, Greenwall, Renera, Fearia and Varner. ECF No. 39-1, ¶¶ 17-2Í, 29-31. Plaintiff Riley has brought the same claims against Defendants Swartzi, Folino, Palya, Kennedy, Over, and Varner. ECF No. 39-1, ¶¶ 24-28, 32-33, 38-41. See Id. at ¶¶ 47-48. At Count II, Plaintiff Mearin brings a First Amendment retaliation claim against Defendants Swartz, Winfield, Folino and Varner; Riley asserts the same claim against Defendant Swartz. ECF No. 39-1, ¶¶ 22-23, 34-37. See Id. at ¶¶ 49-50. Although not brought as a separate cause of action, both Plaintiffs have alleged that Defendants Greenwall, Tom-son, Williams, Meighen, Swartz, Winfield and Folino have violated their rights provided by the.Eighth Amendment by instituting a “snitch policy,” which requires them to inform on fellow inmates thereby placing them at risk of harm. ECF No. 39-1, ¶¶ 42-15.

Defendants filed the instant Motion on September 6, 2012, to which Plaintiffs responded on November 16, 2012. ECF Nos. 59, 63. As such the Motion is now ripe for review.

B. STANDARD OF REVIEW

In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all [780]*780material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir.2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See California Public Employees’ Retirement System v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir.2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id.

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Cite This Page — Counsel Stack

Bluebook (online)
951 F. Supp. 2d 776, 2013 WL 2641801, 2013 U.S. Dist. LEXIS 82224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mearin-v-swartz-pawd-2013.