1

 The second motion to dismiss is only filed on behalf of twenty-four Defendants, while

the first motion to dismiss is filed on behalf of twenty-five Defendants. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

DERRICK RANKINE, )

Plaintiff, )

)

vs. ) C.A. No. 03-313 Erie

) District Judge McLaughlin

RAYMOND SOBINA, et al. ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss or for a more definite statement

filed by Defendants Members of the PRC, Sobina, McNelis, Hughes, Troyan, Mailman,

Heckman, Herdman, Castania, Cross, Bertolino, Simosko, Munion, Prince, Chapley, Fey, Lucas,

Heiss, Huber, Kromell, Stayer, Delosh, Wilson, Joseph and Mulligan [Document # 69] be

granted in part and denied in part. The motion should be granted in that the additional

Defendants named in the amended complaints [Documents # 6 and # 33] should be dismissed

due to Plaintiff’s continued failure to serve them in accordance with the Federal Rules of Civil

Procedure. The motion should be denied in all other respects.

It is further recommended that the motion to dismiss filed by Defendants Sobina,

McNelis, Hughes, Troyan, Mailman, Heckman, Herdman, Castania, Cross, Bertolino, Simosko,

Munion, Prince, Chapley, Fey, Lucas, Heiss, Huber, Kromell, Stayer, Delosh, Wilson, Joseph

and Mulligan [Document # 73] be dismissed as inappropriate.1

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II. REPORT

A. Relevant Procedural History

On October 1, 2003, Plaintiff, Derrick Rankine, an inmate incarcerated within the State

Correctional System of Pennsylvania, filed this pro se civil rights action. Named as Defendants

are: Superintendent Sobina, Unit Manager McNelis, Unit Counselor Hughes, Correctional

Officer Trojan, Unit Manager Mailman, Correctional Officer Heckman, Unit Counselor

Herdman, Sgt. Castina, unnamed Members of the PRC, Hearing Examiner Cross, Unit Manager

Bertolino, Lt. Steve Simosko, Correctional Officer Munion, Correctional Officer Prince (aka

Pritts); Correctional Officer Chapley, Correctional Officer Fey, Correctional Officer Luke,

Correctional Officer Heiss, Correctional Officer Huber, Correctional Officer Kromell, Sgt.

Stayer, Sgt. Delosh, Lt. Wilson, Grievance Coordinator Joseph, and Mulligan.

In his original complaint, Plaintiff alleges that Defendants have conspired together to:

“1) obstruct[] the due administration of law in both state and federal courts;

2) deny Plaintiff access to the courts;

3) subject Plaintiff to cruel and unusual punishment;

4) deny Plaintiff due process of law;

5) threaten[] Plaintiff with death and physical harm in an effort to force

Plaintiff to withdraw Plaintiff’s lawsuit against SCI-Albion staff;

6) tamper[] with Plaintiff’s incoming and outgoing mail by destroy[ing] or

holding said mail until the deadline for Plaintiff to response as passed; and

7) falsify[] documentation and forcing Plaintiff to signed said documents

under threats of death and physical harm.”

Document # 3, Original Complaint. 

On January 15, 2004, Plaintiff filed a motion to amend the complaint. Document # 6. By

Order, this Court allowed the amendment. In his first amended complaint, Plaintiff adds new

Defendants and alleges that prison officials have actively conspired by:

“a) obstructing the due administration of justice in state and federal courts;

b) [...] obstructing the due administration of justice in state and federal by

tampering with, destroying, and reading Plaintiff’s incoming and outgoing

mails;

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c) assaulting, threatening to killed; threatening to [poison] Plaintiff and

holding Plaintiff in RHU in retaliation for Plaintiff seeking legal redress in

court; and in an effort to force Plaintiff to withdraw cases C.A. 3-313 and

C.A. 03-105Erie;

d) stealing Plaintiff’s property and claiming these property were sent home;

e) subjecting Plaintiff to unnecessary and unprovoked mental, emotion and

physical cruelty and denying Plaintiff proper medical and dental care;

f) [...] denying Plaintiff access to the courts by denying Plaintiff access to

and use of a law library and copy machine;

g) terroring [sic] and continues to terrorized Plaintiff from 10/29/03 to the

present time in retaliation for filing the original action.”

Document # 6. 

Following two extensions of time granted by this Court, on April 9, 2004, Defendants

filed a motion to dismiss and on April 22, 2004, they filed a supporting brief. Documents # 36

and 40. Defendants mis-characterized and over-simplified the allegations of the original and the

first amended complaint and moved to dismiss based upon failure to state a claim. Document #

40. Inexplicably, Defendants did not move to dismiss all of the claims, specifically ignoring

access to courts, interference with mail, destruction of property, denial of medical/dental care or

retaliation, all of which are clearly stated on the face of the original and first amended

complaints. 

By Order dated June 16, 2004, this Court allowed Plaintiff to further amend his

complaint. Document # 42. In his second amended complaint, Plaintiff adds many new

Defendants and makes allegations of retaliation against both the original and the additional

Defendants. Document # 33. This Court further ordered Plaintiff to serve the new Defendants

(with the original and both amended complaints) by U.S. Marshal Service. The motion to

dismiss was dismissed without prejudice in light of the filing of the second amended complaint.

Two weeks later, the original Defendants reasserted their previous motion to dismiss, in

spite of the filing of the second amended complaint (or the fact that the original motion to

dismiss did not address all of the claims of the original and amended complaints). Document #

43. By Report and Recommendation dated January 18, 2005, this Court recommended that the

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motion to dismiss be granted as to the due process claim and the verbal abuse claim. Document

# 47. Because Defendants had not moved to dismiss the other counts, the claims involving

access to courts, interference with mail, destruction of property, denial of medical/dental care and

retaliation (all of which were clearly stated on the face of the original and first amended

complaints) remained. 

Plaintiff has not served either the first or the second amended complaints on either the

existing Defendants or the new Defendants. Plaintiff has been repeatedly ordered to serve both

the original Defendants with the amended complaints and the new Defendants with all of the

complaints. See Documents # 47, 54, 64. Plaintiff has been repeatedly warned that his failure to

serve the new Defendants would result in their dismissal from this action for failure to prosecute.

Defendants have filed two motions to dismiss. The first motion to dismiss, or

alternatively, for a more definite statement, argues that the case should be dismissed in its

entirety under the “three strikes” provision of the Prison Litigation Reform Act; that the case

should be dismissed as to the “new Defendants” for failure of service by Plaintiff; and,

alternatively, that Plaintiff should be directed to file a more specific complaint. Document # 69. 

Defendants’ other motion to dismiss is styled as a motion to dismiss the third amended

complaint. Document # 73.

On April 28, 2006, this Court held a telephonic status conference to discuss the status of

this case. New case management deadlines have been issued.

B. Standards of Review

1. Pro se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if

it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

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legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation,

a district court should construe all allegations in a complaint in favor of the complainant. Gibbs

v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.

1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906

F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court must

consider facts and make inferences where it is appropriate.

2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v.

Gamble, 429 U.S. 97 (1976). The motion cannot be granted unless the court is satisfied “that no

relief could be granted under any set of facts that could be proved consistent with the

allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). The issue is not whether the

plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support

his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal Rules of

Civil Procedure states that a pleading must set forth a claim for relief which contains a short and

plain statement of the claim showing that the pleader is entitled to relief. Therefore, in order to

survive a motion to dismiss for failure to state a claim, the complaint must set forth sufficient

information to suggest that there is some recognized legal theory upon which relief can be

granted.

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3. Motion for More Definite Statement

 Rule 12(e) provides: "If a pleading to which a responsive pleading is permitted is so

vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading,

the party may move for a more definite statement." Fed.R.Civ.P. 12(e). Rule 12(e) motions,

however, “are highly disfavored since the overall scheme of the federal rules calls for relatively

skeletal pleadings and places the burden of unearthing factual details on the discovery process.” 

Hughes v. Smith, 2005 WL 435226, at * 4 (E.D.Pa., Feb. 24, 2005) (internal citation omitted). 

“The basis for granting a 12(e) motion is unintelligibility, not lack of detail.” Id.

C. The Prison Litigation Reform Act

Section 1915(g) of the Prison Litigation Reform Act (PLRA) provides that:

In no event shall a prisoner bring a civil action [...] under this section if the

prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

facility brought an action [...] that was dismissed on the grounds that it was

frivolous, malicious, or fails to state a claim upon which relief can be granted,

unless the prisoner is in imminent danger of serious physical injury. 

28 U.S.C. § 1915(g).

Defendants argue that Plaintiff has accumulated three strikes in the U.S. District Court for

the Eastern District of Pennsylvania. However, an inmate may overcome the “three strikes”

provision of the PLRA if he can show that he is under “imminent danger of serious physical

injury.” Abdul-Akbar v.McKelvie, 239 F.3d 307 (3d Cir. 2001). As Plaintiff’s complaints are

full of myriad allegations that he is in imminent danger of serious physical harm, Defendants’

motion to dismiss should be denied in this regard.

D. Service on “new” Defendants 

To date, Plaintiff has not served any of the additional Defendants in this case, despite

being ordered by this Court to do so. It is Plaintiff’s obligation to assist the U.S. Marshal Service

in it efforts to accomplish service on his behalf. In September of 2005, this Court issued its final

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 Amenti, Coughenour, Evans, Haywood, Regester, Hainworth, Bakos, Dayton, Miller,

Boylan, Neisser, McCool, Beard, O’Hara, James, Bitner, Rosum, White, Brothers, Wadworth,

Folge, Synder, Labosky, Kodish, Sroka, McCullough, Gauntner, Roman, Bringer, Visinsky and

Putnam. 

3

 This Court notes that failure to prosecute is also a valid basis justifying the dismissal

of the additional Defendants. In determining whether dismissal is appropriate, the court must

consider: 1) the extent of the party’s personal responsibility; 2) the prejudice to the adversary

caused by the failure to meet scheduling orders and respond to discovery; 3) a history of

dilatoriness; 4) whether the conduct of the party or attorney was willful or in bad faith; 5) the

effectiveness of sanctions other than dismissal, which entails an analysis of alternative

sanctions; and 6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and

Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). 

Applying the Poulis factors to the present matter, this Court recommends the dismissal

of this matter. Since the filing of this matter, Plaintiff has taken none of the necessary first steps

to prosecute this case as to the new Defendants. Further, Plaintiff has repeatedly ignored orders

by this Court involving service of both the original and additional Defendants. Plaintiff is

proceeding pro se and therefore bears all of the responsibility for any failure in the prosecution

of his claims. Alternative sanctions, such as monetary penalties, are inappropriate with indigent

parties. Although it is possible that Plaintiff’s allegations against these additional Defendants

could state a claim upon which relief could be ultimately be granted, the merits of the claim are

impossible to determine at this stage of the proceedings.

7

service order directing service of the second amended complaint. However, instead of serving

the new Defendants with the second amended complaint, Plaintiff provided instructions to the

U.S. Marshal Service to serve only the original Defendants. 

In accordance with Federal Rule of Civil Procedure 4, the new Defendants2 should be

dismissed from this action.3 Therefore, the motion to dismiss should be granted in this regard.

E. The Request for More Definite Statement

Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a

claim for relief which contains a short and plain statement of the claim showing that the pleader

is entitled to relief. The issue is not whether the plaintiff will prevail at the end but whether he

should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319

(1989); Scheuer v. Rhodes, 419 U.S. 232 (1974). Under this “notice pleading,” the complaint

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must only set forth sufficient information to suggest that there is some recognized legal theory

upon which relief can be granted. See Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 

Here, Plaintiff’s complaints do meet that minimum requirement to set forth sufficient

information to suggest that there is some recognized legal theory upon which relief may be

granted. Therefore, this Court recommends that the motion for a more definite statement be

denied. 

F. Motion to Dismiss Third Amended Complaint

Defendants’ second motion to dismiss is captioned as a “motion to dismiss third amended 

complaint without service.” In this motion, Defendants request that 

The original and amended complaint and second amended complaints be

dismissed under the three strikes rule of the PLRA and that the third amended be

similarly dismissed for the same reason and/or the second and third amended

complaints be dismissed additionally for not having been filed by leave of court

and without regard for Rule 15(c) and Rankine to be instructed not to file any

more amended complaints in this action without obtaining leave of court by

motion under Rule 15(c).

Document # 73, page 4.

Despite Defendants’ characterization, there have been only an original and two amended

complaints filed. Defendants’ motion is in error and as such should be dismissed.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motion to dismiss or

for a more definite statement filed by Defendants Members of the PRC, Sobina, McNelis,

Hughes, Troyan, Mailman, Heckman, Herdman, Castania, Cross, Bertolino, Simosko, Munion,

Prince, Chapley, Fey, Lucas, Heiss, Huber, Kromell, Stayer, Delosh, Wilson, Joseph and

Mulligan [Document # 69] be granted in part and denied in part. The motion should be granted

in that the additional Defendants named in the amended complaints [Documents # 6 and # 33]

should be dismissed due to Plaintiff’s continued failure to serve them in accordance with the

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Federal Rules of Civil Procedure. The motion should be denied in all other respects.

It is further recommended that the motion to dismiss filed by Defendants Sobina,

McNelis, Hughes, Troyan, Mailman, Heckman, Herdman, Castania, Cross, Bertolino, Simosko,

Munion, Prince, Chapley, Fey, Lucas, Heiss, Huber, Kromell, Stayer, Delosh, Wilson, Joseph

and Mulligan [Document # 73] be dismissed as inappropriate.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (c), and Local Rule

72.1.4B, the parties are allowed ten (10) days from the date of service to file written objections to

this report. Any party opposing the objections shall have seven (7) days from the date of service

of objections to respond thereto. Failure to timely file objections may constitute a waiver of any

appellate rights.

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: May 10, 2006

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