Wayne Baker v. Donald Flagg

AMENDED CLD-220 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2190
___________
WAYNE T. BAKER,
Appellant
v.
DONALD FLAGG; JAMES T. VAUGHN CORRECTIONAL CENTER;
DEPARTMENT OF CORRECTIONS; WARDEN PERRY PHELPS; FIRST
CORRECTIONAL MEDICAL; INFIRMARY OF THE J.T.V.C.C.; STATE OF
DELAWARE
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1-10-cv-01144)
District Judge: Honorable Leonard P. Stark
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 23, 2011
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Opinion filed: July 25, 2011)
_________
OPINION
_________
PER CURIAM
On May 29, 2010, Wayne T. Baker (“Baker”), a Delaware state prisoner
incarcerated in the James T. Vaughn Correctional Center (“JTVCC”), filed a pro se and
1
in forma pauperis civil rights complaint in the United States District Court for the District
of Delaware. Prepared with the unmistakable assistance of fellow JTVCC inmate Ivan
Mendez (“Mendez”), 1 the complaint—which addressed an altercation between Baker and
cellmate Donald Glagg/Flagg (“Flagg”), and the aftermath thereof—was facially
defective, as it named no parties subject to suit under 42 U.S.C. § 1983 and did not
identify those actors who had potentially delayed Baker’s medical treatment. The
District Court issued an opinion advising Baker of these deficiencies and dismissed the
case without prejudice, while granting Baker leave to amend. Baker v. James T. Vaughn
Corr. Ctr., No. 10-482, 2010 U.S. Dist. LEXIS 70550, at *9 (D. Del. July 14, 2010).
Baker’s amended complaint fared little better, failing to cure the pleading deficiencies of
the original. Accordingly, the District Court dismissed the complaint with prejudice
under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). Baker v. James T. Vaughn Corr.
Ctr., No. 10-482, 2010 U.S. Dist. LEXIS 104400, at *8 (D. Del. Sept. 30, 2010). We
determined that the appeal presented no substantial question and summarily affirmed.
See generally Baker v. James T. Vaughn Corr. Ctr., No. 10-4010, 2011 U.S. App. LEXIS
8060 (3d Cir. Del. Apr. 19, 2011).
Before we ruled on his appeal, however, Baker commenced another civil rights
suit. Prepared (again) by Mendez, the complaint named as defendants Flagg, the JTVCC,
the Delaware Department of Corrections, JTVCC Warden Perry Phelps, First
1
Mendez composed most, if not all, of the filings in the suit; at one juncture, Baker submitted a
form giving Mendez Power of Attorney. That form was neither signed nor notarized.
2
Correctional Medical, the JTVCC infirmary, and the State of Delaware. Baker appeared
to complain that he had been deprived of “incident reports, grievances, X-rays reports,
admissions reports, medical reports . . . and any and all of the documents and evidence”
relating to his earlier assault by Flagg, connecting his failure to receive documents with
the dismissal of his previous lawsuit. Following the submission of several other
documents prepared by Mendez, the District Court dismissed the complaint as frivolous,
denied the intervening motions, and declined to grant leave to amend. Baker v. Flagg,
No. 10-1144, 2011 U.S. Dist. LEXIS 43209, at *13 (D. Del. Apr. 21, 2011). Baker filed
a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 and may summarily affirm the
District Court on any basis supported by the record. See Murray v. Bledsoe, ___ F.3d
___, 2011 U.S. App. LEXIS 11702, at *3 (3d Cir. Pa. June 10, 2011, No. 10-4397) (per
curiam); see also L.A.R. 27.4; I.O.P. 10.6. Our review of a sua sponte dismissal for
failure to state a claim is plenary, and we must accept as true all well-pleaded factual
allegations and draw all reasonable inferences in Baker’s favor. Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000).
Having reviewed the record, we are in full accord with the opinion of the District
Court. None of the defendants is properly sued under 42 U.S.C. § 1983, a statute that can
be marshaled only against “person[s]” acting “under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia.” In
other words, “a plaintiff seeking to hold an individual liable under § 1983 must establish
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that she was deprived of a federal constitutional or statutory right by a state actor.” Kach
v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Flagg, a private party and inmate—and, it
appears, a person of limited, if any, involvement in the conduct complained of in the
present action—is not clothed with the authority of the state, and is thus not subject to
suit under § 1983. Nor has Baker alleged any personal involvement by Warden Perry
Phelps in any constitutional violation—a fatal flaw, since “liability [in a § 1983 suit]
cannot be predicated solely on the operation of respondeat superior.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
With regard to the institutional and governmental defendants, it is well established
that, in the absence of waiver, “neither a State nor agencies acting under its control may
‘be subject to suit in federal court.’” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993) (quoting Welch v. Tex. Dept. of Highways and Pub.
Transp., 483 U.S. 468, 480 (1987) (plurality)). 2 The Delaware Department of
Corrections is “clearly a state agency. It was created via an enabling statute, is supported
by state tax dollars, and exists solely to regulate the activities of Delaware’s criminals,
i.e. as a principle [sic] arm of the State’s police power.” Murphy v. Corr. Med. Servs.,
No. 03C-04-271-PLA, 2005 Del. Super. LEXIS 287, at *7 (Del. Super. Ct. Aug. 19,
2005). The JTVCC and its institutions are subsidiaries of the DOC, and hence share the
State of Delaware’s immunity to suit. Cf. Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d
2
Additionally, “neither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
4
Cir. 2000) (“Because the Commonwealth of Pennsylvania’s Department of Corrections is
a part of the executive department of the Commonwealth, see Pa. Stat. Ann., tit. 71 § 61,
it shares in the Commonwealth’s Eleventh Amendment immunity.”); see also Robinson
v. Danberg, 729 F. Supp. 2d 666, 675 (D. Del. 2010) (“The State of Delaware has not
waived its sovereign immunity under the Eleventh Amendment. Hence, as an agency of
the State of Delaware, the [Department of Corrections] is entitled to immunity under the
Eleventh Amendment.”) (citations omitted).
Finally, with regard to defendant First Correctional Medical, we can discern no
allegations of unconstitutional wrongdoing directed its way. To the extent that Baker
claims that some failure by First Correctional Medical to provide him with records
caused the dismissal of his earlier District Court suit—an allegation that could be
construed as an access to the courts claim under the First Amendment, see Monroe v.
Beard, 536 F.3d 198, 205 (3d Cir. 2008)—we observe that it was not a failure to present
records that hobbled his suit, but his failure to state a claim upon which relief could be
granted.
Therefore, for the foregoing reasons and because no substantial question is
presented by this appeal, we will summarily affirm the judgment of the District Court on
all grounds.
However, we would be remiss if we ended our discussion before explaining to
Baker the consequences of his choices thus far and how they might affect his future
ability to bring suit in federal court. Under one of the changes to federal in forma
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pauperis status effected by the Prison Litigation Reform Act of 1996 (“PLRA”), a
prisoner may not “bring a civil action or appeal a judgment in a civil action or proceeding
[in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). In plain English, this means that prisoners who
have had three actions or appeals dismissed cannot take advantage of any of the benefits
of in forma pauperis status, such as avoiding the immediate payment of filing fees or
having pro bono counsel appointed by the court under § 1915(e)(1). See Brightwell v.
Lehman, 637 F.3d 187, 192 (3d Cir. 2011); see also Campbell v. Clarke, 481 F.3d 967,
969 (7th Cir. 2007) (explaining that dismissal of an appeal from a dismissed complaint
constitutes two independent strikes). This bar holds firm unless the prisoner can
demonstrate that he seeks relief from an imminent threat or danger that is present at the
time the complaint is filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir.
2001) (en banc). It is not an insurmountable hurdle—and, of course, a prisoner can
always retain counsel and pay the filing fees to avoid this requirement—but, in practice,
it can greatly limit the ability of three-strike litigants to bring suit.
Baker has now accrued two “strikes” under § 1915(g). We therefore suggest that
he exercise an extreme amount of caution in proceeding further. Baker should also
reconsider his selection of a jailhouse lawyer. Mendez, who has authored all of Baker’s
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submissions to both this Court and the District Court (and who, as mentioned supra,
attempted at one juncture to obtain power of attorney for Baker), is a three-strikes litigant
and a frequent filer, lodging at least 46 appeals in this Court—none of which (to our
knowledge) has met with success. 3
Again, for the reasons given, we will summarily affirm the District Court’s
dismissal of Baker’s complaint under 28 U.S.C. § 1915(e)(2)(B). 4
3
We do not discount the possibility that Mendez has “captured” a fellow JTVCC inmate to
further realize his passion for wasting both the time and the resources of federal courts. In
dismissing Baker’s prior complaint, the District Court discussed Mendez’s role, observing that
“Mendez may not act as an attorney for other individuals.” Baker, 2010 U.S. Dist. LEXIS
104400, at *7. It proposed an edict: “future documents prepared by Mendez will be docketed,
but not considered by the Court.” Id. at *8. Nevertheless, Baker’s second complaint, authored
by Mendez, was allowed to proceed. We encourage the District Court to apply its rule
henceforth, especially with regard to documents explicitly prepared by Mendez, as were those in
the instant case and appeal.
4
Baker’s request “to File Exhibits,” contained within his filing in support of his appeal, is
denied. To the extent that his other filings in this Court can be construed as requesting
independent relief, they are also denied.
7