Simon v. Mullgrav

CARL SIMON, Plaintiff, v. RICK MULLGRAV, DWAYNE BENJAMIN, LINDA CALLWOOD, RUSSEL WASHBURN,JULIUS WILSON, DONALD REDWOOD, JOHN P. DEJONGH, JR., KENNETH E. MAPP,VINCENT FRAZER, CORRECTIONS CORPORATION OF AMERICA,GOVERNMENT OF THE VIRGIN ISLANDS, NATASHA METCALF, DENNIS HOWARD,and OTHERS UNKNOWN, Defendants.

Civil Action No. 2017-0007

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

April 16, 2021

Appearances:

Carl Simon, Pro Se

Kevin A. Rames, Esq.,

St. Croix, U.S.V.I.

For Defendants Russell Washburn, Natasha Metcalf,

Dennis Howard, and Corrections Corporation of America

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER comes before the Court on a Report and Recommendation ("R&R") issued by Magistrate Judge George W. Cannon, Jr., pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A (Dkt. No. 45) and Carl Simon's ("Plaintiff") Objections thereto (Dkt. No. 56). Also before the Court is Plaintiff's "Motion for Hearing" (Dkt. No. 57).

In his R&R, the Magistrate Judge recommends that all claims against Defendants the Government of the Virgin Islands; John P. deJongh ("deJongh); Kenneth E. Mapp ("Mapp"), Vincent Frazer ("Frazer"), Dwayne Benjamin ("Benjamin"), Donald Redwood ("Redwood"), and Natsha Metcalf ("Metcalf") be dismissed. (Dkt. No. 45 at 31). He recommends that Counts 1, 3, 4, 5, 6, and 8 be dismissed for failure to state a claim; Count 2 be dismissed as frivolous; Count 7 be dismissed without prejudice because, in the Magistrate Judge's view, additional information was required in order to make a ruling; and Count 10 be dismissed as time-barred. Id. at 31-32. In addition, the Magistrate Judge recommends that Count 9 proceed against Dennis Howard ("Howard"), Russel Washburn ("Washburn"), Linda Callwood ("Callwood"), Julius Wilson ("Wilson"), and Rick Mullgrav ("Mullgrav"). Id. at 32.

For the reasons that follow, the Court will adopt the Magistrate Judge's R&R in part as modified herein and reject it in part. Specifically, the Court will adopt the R&R to the extent that it will dismiss Counts 1, 3 (in part), 5, 6 (in part), 7 (in part), and 8 for failure to state a claim; dismiss Count 2 as frivolous; and dismiss Count 10 as time-barred. The Court will also dismiss the breach of contract claims set forth in Counts 5 and 9—and any other intended breach of contract claim—for lack of standing. On the other hand, the Court will reject the Magistrate Judge's recommendation to dismiss Counts 3 (in part), 4, 6 (in part), and 7 (in part) and to allow Count 9 to proceed. The Court will also afford Plaintiff up to and including May 28, 2021 within which to file an Amended Complaint that addresses the deficiencies that the Court has found in Counts 1, 3 (in part), 5 (in part), 6, 7, 8, 9 (in part), and 10. In addition, the Court will deny Plaintiff's "Motion for Hearing" (Dkt. No. 57).

I. BACKGROUND

Plaintiff is a prisoner of the U.S. Virgin Islands Bureau of Corrections ("BOC") who was transferred from the Golden Grove Adult Correctional Facility ("Golden Grove") on St. Croix, U.S. Virgin Islands to the Citrus County Detention Facility ("CCDF") in Citrus County, Florida. (Dkt. No. 1-1 ¶¶ 31-32). According to Plaintiff, Defendants deJongh, Frazer, and Wilson initiatedthis transfer pursuant to a Contract for Professional Services ("Contract"), which failed to ensure that CCDF would provide "adequate dental care, jobs, vocational/educational programs, work release, furlough, classification, enhancement of acquired marketable skills, unmonitored attorney telephone calls and visitation programs in compliance with Virgin Islands law and provide the Plaintiff/V.I. prisoners with the applicable procedures to obtain and utilize these incentives." Id. ¶¶ 32-34. Plaintiff claims that he sent correspondence to Defendants deJongh, Frazer, and Wilson explaining that CCDF was not providing him with these "incentives," which they have allegedly ignored and taken no steps to rectify. Id. ¶ 35.

Plaintiff also argues that CCDF did not allow him to wear sufficiently warm clothing for the "chilly" weather in Florida. Id. ¶¶ 71-77. He further alleges that Defendants Wilson, Washburn, and other Corrections Corporation of America ("CoreCivic") agents and employees did not allow him to make "unmonitored calls" to his attorney regarding his criminal convictions and his conditions of confinement, id. ¶ 78, and that the "exorbitant" cost between $5.00 and $9.00 per fifteen minutes to make phone calls made it "virtually impossible" for him to communicate with his friends and family, id. ¶ 83.

Additionally, Plaintiff alleges that CCDF did not provide satisfactory vocational or educational programs. Id. ¶¶ 87-89. Plaintiff further asserts that when he was housed at CCDF, he was exposed to lighting in his cell for twenty-four hours per day, as a result of which he has suffered "deprivation of adequate sleep, irritability, headaches, eyestrain, fatigue, [and] difficulty concentrating and sleeping . . . ." Id. ¶ 85. Finally, Plaintiff claims that he has suffered because of a lack of timely and adequate dental services. Id. ¶¶ 90-91, 93.

After Plaintiff filed his pro se Complaint in the Superior Court of the Virgin Islands, Defendants CoreCivic, Washburn, and Metcalf removed the action to this Court. (Dkt. No. 1).

II. APPLICABLE LEGAL PRINCIPLES

A. Standard of Review

Parties may make "specific written objections" to a magistrate judge's report and recommendation "[w]ithin 14 days after being served with a copy of the recommended disposition." See Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1) ("Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court."). When a party makes a timely objection, the district court "make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Here, Plaintiff filed timely objections to the R&R after receiving two thirty-day extensions of time within which to do so. (Dkt. Nos. 48, 51, 53, 56). Accordingly, a de novo review of the R&R is appropriate.

B. Other Legal Principles

The evaluation of motions to proceed in forma pauperis under 28 U.S.C. § 1915 involves a two-step process. Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3rd Cir. 1990). "First, the district court evaluates a litigant's financial status and determines whether (s)he is eligible to proceed in forma pauperis under § 1915(a). Second, the court reviews the complaint under [§ 1915(e)(2)] to determine whether it is frivolous." Id. (citing Sinwell v. Shapp, 536 F.2d 15 (3rd Cir. 1976)); Schneller v. Abel Home Care, Inc., 389 Fed. App'x 90, 92 (3rd Cir. 2010). Only after a plaintiff's request to proceed in forma pauperis is granted may a court consider whether to dismiss the complaint as legally frivolous or for failure to state a claim upon which relief may be granted. See Jackson v. Brown, 460 Fed. App'x 77, 79 n.2 (3d Cir. 2012); see also Spuck v. Fredric, 415 F. App'x 358, 359 (3d Cir. 2011) ("When a complaint is submitted along with an [in forma pauperis]application, the complaint is not deemed filed unless and until [in forma pauperis] status is granted . . . . In that situation, the District Court must first rule on the [in forma pauperis] application and, only if it grants the application, proceed to determine whether the complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B).").

Here, Plaintiff's in forma pauperis application has been granted. (Dkt. Nos. 41, 42). Therefore, the Court may review Magistrate Judge Cannon's conclusions as to whether Plaintiff's Complaint is subject to dismissal. Section 1915(e)(2)(B) provides as follows:

"[T]he court shall dismiss the case at any time if the court determines that the action or appeal—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

Additionally, for prisoners—like Plaintiff—who seek relief from "a governmental entity or [its] officer or employee," 28 U.S.C. § 1915A provides a screening process to separate cognizable claims from those lacking merit. Like § 1915(e)(2), the screening process of § 1915A targets claims that are "frivolous, malicious, or fail[ ] to state a claim upon which relief may be granted; or . . . seek[ ] monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A.

Pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), an action is frivolous "when it lacks an arguable basis either in law or fact." Jean-Pierre v. B.O.P., 301 F. App'x 124, 127 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). Under the frivolous standard, a complaint should be dismissed "only if the petitioner cannot make any rational argument in law or fact which would entitle him or her to relief . . . ." Williams v. Faulkner, 837 F.2d 304, 307 (7th Cir. 1988). Unless there is "indisputably absent any factual or legal basis" for the wrong asserted in the complaint, the trial court, "[i]n a close case," should permit the claim to proceed at least to the point whereresponsive pleadings are required. Neitzke, 490 U.S. at 323 (internal quotations and citation omitted).

"The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)). The Third Circuit, through Connelly v. Lane Const. Corp., follows the analysis established by the Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal when dismissing under Rule 12(b)(6):

Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps.

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