Brookingv.D.O.C.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIAMay 20, 2019
CIVIL ACTION NO. 3:15-cv-02134 (M.D. Pa. May. 20, 2019)

CIVIL ACTION NO. 3:15-cv-02134

05-20-2019

MARCUS DION BROOKING, #LU7017, Plaintiff, v. D.O.C., et al., Defendants.


(CAPUTO, J.)
() REPORT AND RECOMMENDATION

This is a pro se prisoner civil rights action. The plaintiff has been granted leave to proceed in forma pauperis in this action. The plaintiff alleges that prison officials were deliberately indifferent to his serious medical needs, a violation of his Eighth Amendment right to be free from cruel and unusual punishment, made actionable by 42 U.S.C. § 1983. The only remaining defendants are the Pennsylvania Department of Corrections (the "DOC") and Sgt. Cleaver, a correctional officer employed by the DOC. For relief, the plaintiff seeks an award of $11 million in damages.

The plaintiff originally asserted several other civil rights claims, but all other claims have been dismissed with prejudice as frivolous or for failure to state a claim. See Brooking v. D.O.C., No. 3:15-CV-02134, 2019 WL 355727 (M.D. Pa. Jan. 29, 2019) (Doc. 15; Doc. 16); see also Brooking v. D.O.C., Civil Action No. 3:15-cv-02134, 2018 WL 7140232 (M.D. Pa. Nov. 28, 2018) (Doc. 13), report and recommendation adopted in part and rejected in part by 2019 WL 355727 (M.D. Pa. Jan. 29, 2019) (Doc. 15; Doc. 16).

The plaintiff originally sought recovery against three additional named defendants: (a) Ms. Zobitne, unit manager of A-Block at SCI Camp Hill; (b) C/O Harrison, a correctional officer on A-Block at SCI Camp Hill; and (c) T. Williams, a DOC hearing examiner. But all claims against these three defendants have been dismissed with prejudice, and they have been terminated by the Clerk as party-defendants in this action. See Brooking, 2019 WL 355727 (Doc. 15; Doc. 16); see also Brooking, 2018 WL 7140232 (Doc. 13).

Although the plaintiff has requested "injunctive relief" in his pro se complaint, he has failed to specify any particular form of injunctive relief he would like to receive as a remedy for his alleged injury. The form of relief requested, however, is immaterial to both grounds upon which we recommend dismissal of the remaining claim against the DOC itself. --------

Because our prior report recommended dismissal of all claims against all defendants on substantive grounds, it did not address defenses or grounds for dismissal pertaining only to specific defendants. But it is very well established that the Pennsylvania Department of Corrections is entitled to Eleventh Amendment immunity from suit and is not a person subject to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) ("[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983."); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) ("The eleventh amendment's bar extends to suits against departments or agencies of the state having no existence apart from the state."); see also Foye v. Wexford Health Sources Inc., 675 Fed. App'x 210, 215 (3d Cir. 2017) (per curiam); Beckett v. Pa. Dep't of Corrs., 597 Fed. App'x 665, 667 (3d Cir. 2015) (per curiam); Tretter v. Pa. Dep't of Corrs., 558 Fed. App'x 155, 158 (3d Cir. 2014); Pettaway v. SCI Albion, 487 Fed. App'x 766, 768 (3d Cir. 2012) (per curiam); Hollihan v. Pa. Dep't of Corrs., 159 F. Supp. 3d 502, 510 (M.D. Pa. 2016); O'Donnell v. Pa. Dep't of Corrs., 790 F. Supp. 2d 289, 297-98 & n.8 (M.D. Pa. 2011).

Accordingly, we recommend that the plaintiff's remaining claim against the DOC be dismissed with prejudice—and without leave to amend—for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1), and that this matter be remanded to the undersigned for further pretrial proceedings with respect to the plaintiff's remaining claim against the lone remaining defendant, Sgt. Cleaver. Dated: May 20, 2019

s/Joseph F . Saporito , Jr.


JOSEPH F. SAPORITO, JR.


United States Magistrate Judge NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated May 20, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.


Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: May 20, 2019

s/Joseph F . Saporito , Jr.


JOSEPH F. SAPORITO, JR.


United States Magistrate Judge