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    Wayne Baker v. Donald Flagg, 3rd Cir. (2011)

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    This document summarizes a court ruling dismissing Wayne Baker's civil rights complaint. The complaint, prepared with assistance from another inmate, did not properly name any parties that could be sued under the relevant law and did not identify who may have delayed Baker's medical treatment. The District Court dismissed the complaint and denied Baker's request to amend it. On appeal, the Third Circuit affirmed, finding that none of the named defendants were properly sued, that the complaint did not allege personal involvement by the warden in any violation, and that the claims against state agencies and departments were barred by sovereign immunity. The court advised Baker that this dismissal constituted his second "strike" under the law, and cautioned him about the consequences of additional strikes on his

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    Wayne Baker v. Donald Flagg, 3rd Cir. (2011)

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    This document summarizes a court ruling dismissing Wayne Baker's civil rights complaint. The complaint, prepared with assistance from another inmate, did not properly name any parties that could be sued under the relevant law and did not identify who may have delayed Baker's medical treatment. The District Court dismissed the complaint and denied Baker's request to amend it. On appeal, the Third Circuit affirmed, finding that none of the named defendants were properly sued, that the complaint did not allege personal involvement by the warden in any violation, and that the claims against state agencies and departments were barred by sovereign immunity. The court advised Baker that this dismissal constituted his second "strike" under the law, and cautioned him about the consequences of additional strikes on his

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    Filed: 2011-07-25 Precedential Status: Non-Precedential Docket: 11-2190

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    This document summarizes a court ruling dismissing Wayne Baker's civil rights complaint. The complaint, prepared with assistance from another inmate, did not properly name any parties that could be sued under the relevant law and did not identify who may have delayed Baker's medical treatment. The District Court dismissed the complaint and denied Baker's request to amend it. On appeal, the Third Circuit affirmed, finding that none of the named defendants were properly sued, that the complaint did not allege personal involvement by the warden in any violation, and that the claims against state agencies and departments were barred by sovereign immunity. The court advised Baker that this dismissal constituted his second "strike" under the law, and cautioned him about the consequences of additional strikes on his

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    24 views7 pages

    Wayne Baker v. Donald Flagg, 3rd Cir. (2011)

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    Scribd Government Docs
    This document summarizes a court ruling dismissing Wayne Baker's civil rights complaint. The complaint, prepared with assistance from another inmate, did not properly name any parties that could be sued under the relevant law and did not identify who may have delayed Baker's medical treatment. The District Court dismissed the complaint and denied Baker's request to amend it. On appeal, the Third Circuit affirmed, finding that none of the named defendants were properly sued, that the complaint did not allege personal involvement by the warden in any violation, and that the claims against state agencies and departments were barred by sovereign immunity. The court advised Baker that this dismissal constituted his second "strike" under the law, and cautioned him about the consequences of additional strikes on his

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    of 7

    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 complaintwhich addressed an altercation between Baker and
    cellmate Donald Glagg/Flagg (Flagg), and the aftermath thereofwas 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 Bakers 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).
    Bakers 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 Bakers 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
    3

    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 inmateand, it
    appears, a person of limited, if any, involvement in the conduct complained of in the
    present actionis 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 violationa 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 Delawares criminals,
    i.e. as a principle [sic] arm of the States 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 Delawares immunity to suit. Cf. Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d

    Additionally, neither a State nor its officials acting in their official capacities are persons
    under 1983. Will v. Mich. Dept of State Police, 491 U.S. 58, 71 (1989).
    4

    Cir. 2000) (Because the Commonwealth of Pennsylvanias Department of Corrections is


    a part of the executive department of the Commonwealth, see Pa. Stat. Ann., tit. 71 61,
    it shares in the Commonwealths 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 suitan 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
    5

    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 hurdleand, of course, a prisoner can
    always retain counsel and pay the filing fees to avoid this requirementbut, 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 Bakers
    6

    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 Courtnone of which (to our
    knowledge) has met with success. 3
    Again, for the reasons given, we will summarily affirm the District Courts
    dismissal of Bakers complaint under 28 U.S.C. 1915(e)(2)(B). 4

    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 Bakers prior complaint, the District Court discussed Mendezs 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, Bakers 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

    Bakers 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

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