MILLER v. NICKLES et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NIHEIM MILLER, 	:
Plaintiff 	:
v. 	: Case No. 3:24-cv-168-SLH-KAP
CORRECTIONS OFFICER NICKLES, 	:
et al., 	:
Defendants 	:
Report and Recommendation
Recommendation
I recommend that moving defendants’ motion to dismiss at ECF no. 27 be granted
as explained below, and that plaintiff’s motion at ECF no. 40 to voluntarily dismiss the
amended complaint be granted in part: the portion of the motion that seeks to dismiss
the amended complaint without prejudice should be denied.
Report
Plaintiff Miller is now at S.C.I. Smithfield. In mid-2024 Miller filed a civil
complaint complaining about conditions at the Blair County Prison where he had been a
pretrial detainee. Miller’s chief claim was that corrections personnel failed to prevent a
fellow inmate named Dustin Sutton from smuggling fentanyl into the prison and that
Miller obtained fentanyl from Sutton and overdosed on April 10, 2024. Miller added that
while he was in the RHU some of his personal property and legal materials were
destroyed, and that corrections personnel made insufficient efforts prevent Miller’s fellow
inmates from fouling their environment.
Once the complaint had been amended and the Blair County defendants served,
the Blair County defendants filed the motion to dismiss at ECF no. 27. 	I have an
independent duty to screen complaints under the Prison Litigation Reform Act and
because plaintiff’s only response to the motion to dismiss was for extensions of time, to
avoid an unnecessary issue I screened the amended complaint without reference to
defendants’ motion to dismiss. I found that the complaint failed to state a claim as to all
the defendants including the moving defendants, and I recommended that with one
exception no leave to amend be granted. ECF no. 36.
Miller sought and was granted additional time to file objections, see ECF no. 37
and ECF no. 38, but he did not file objections within the extended time period. Miller
subsequently sent correspondence in October at ECF no. 39 asking for still more time to
file objections, then the motion at ECF no. 40 that asks for free copy work and dismissal
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of the complaint without prejudice so that he can start over again as to all defendants.
In general, a motion to voluntarily withdraw a complaint without prejudice
pursuant to Rule 41 should be granted when the motion is filed at an early stage of a case.
The balance of equities changes, however, when defendants have been served and have
had to bear the cost of motions practice. Since I have independently evaluated the
complaint as not only meritless but in most respects as incapable of plausible amendment,
and after four months zero objection has been made to my evaluation, for reasons already
of record the dismissal of all the claims and all the defendants except Wagner should be
with prejudice.
As for Wagner, I have already reported that plaintiff’s inability to state a claim
against Wagner might be capable of repair. The limitations period for that claim has not
run. As to a potential claim against Wagner, reasonable minds could differ as to whether
dismissal should be with or without prejudice. But at this stage plaintiff has alleged no
claim against Wagner for the reasons stated in defendants’ unopposed brief, ECF no. 28
at 10. Miller names Wagner because he was the “first step” in the chain of command for
one of three shifts a day. It is not deliberate indifference to fail to correct a problem that
someone else is ultimately responsible for, Sample v. Diecks, 885 F.2d 1099, 1110 (3d
Cir.1989)(“Among the circumstances relevant to a determination of whether [deliberate
indifference] was present are the scope of the official's duties and the role he or she has
played in the everyday life of the prison. Obviously, not every official who is aware of a
problem exhibits indifference by failing to resolve it.”) Miller alleges that Wagner failed
to respond to Miller’s complaints, but that fails to plausibly allege that Wagner was
deliberately indifferent to a serious risk of injury to Miller.
I therefore recommend that dismissal as to Wagner also be with prejudice. There
is no lower tier of substantive law for pro se plaintiffs, and the liberality with which pro
se pleadings must be read does not imply that pro se litigants can set their own deadlines
or state the elements of claims piecemeal in response to repeated evaluations by the court
or motions by the opposing parties. The Court of Appeals, in Grayson v. Mayview State
Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, requires trial courts to allow
plaintiffs in civil rights cases to amend their complaints unless that amendment is futile
or inequitable. That interpretation of Rule 12(b)(6) does not mean that inmate plaintiffs
are wards of the court or that the court can repeatedly put a thumb on the scale for pro se
litigants. Miller decided at what point he would file a complaint against Wagner, and in
the more than a year since Miller made that decision he has offered no adequate
allegations showing that he has a claim against Wagner. It has ceased to be equitable for
Miller to have additional time to impose additional costs of defense on Wagner. But if the
court dismisses the complaint without prejudice as to Wagner, it should put a strict
deadline within the presumptive limitations period for Miller to file a complaint, after
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which point dismissal would be with prejudice.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written
objections to my recommendation. In the absence of timely and specific objections, any
appeal would be severely hampered or entirely defaulted. 	See EEOC v. City of Long
Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no
timely and specific objections are filed as limited to review for plain error).
DATE: November 24, 2025
Keith A. Pesto,
United States Magistrate Judge
Notice by ECF to counsel of record and by U.S. Mail to:
Niheim Miller HY-7383
S.C.I. Smithfield
1120 Pike Street
Huntingdon, PA 16652
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