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September 24, 1999


The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.


Plaintiff, presently an inmate at the State Corrections Institution at Albion, filed this pro se civil rights complaint against nine Department of Corrections ("DOC") officials: Mahanoy Superintendent Martin L. Dragovich, Mahanoy Deputy Superintendent Edward Klem, Mahanoy Unit Manager James Unell, Mahanoy Counselor John L. Johnson, Mahanoy Security Officer John Doe, DOC Secretary Martin Horn, DOC Deputy Commissioner William J. Love, DOC Coordinator of Classification Don Williamson, Pittsburgh Superintendent James S. Price, and Pittsburgh Counselor Dan DeFlora (collectively "defendants" or "Commonwealth defendants"), pursuant to 42 U.S.C. § 1983, alleging violations of his First, Eighth and Fourteenth Amendment rights in addition to state law tort claims. Plaintiff also seeks injunctive and declaratory relief.

Presently before the Court is the motion of the Commonwealth defendants to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of Civil Procedure 12(b)(1) (Document No. 22), and the response of plaintiff David McGrath ("McGrath") thereto. Jurisdiction is proper pursuant to 28 U.S.C. § 1331 & 1334. The Court has supplemental jurisdiction over the state and common law claims pursuant to 28 U.S.C. § 1367. Based on the following analysis, the motion will be granted in part and denied in part.

I. Background

McGrath is serving an 11-to-30-year sentence for murder, criminal conspiracy, possessing an instrument of crime, and two counts of aggravated assault to which he pled guilty. His minimum sentence date expired October 24, 1995; his maximum sentence date runs until October 24, 2014.

On April 21, 1996, McGrath incurred a misconduct for threatening Mahanoy Corrections Officer Koles and the officer's family with bodily harm, refusing to obey and order and using abusive or obscene language to an employee. McGrath was found guilty of the misconduct and appealed the decision. The Program Review Committee sustained the misconduct but released McGrath to a Level 3 housing unit on May 20, 1996, after serving thirty days of disciplinary custody sanction for the misconduct conviction.

On July 15, 1996, McGrath attempted to file a private criminal complaint in the Schuylkill County Court of Common Pleas against Officer Koles. (Amended Complaint ¶¶ 12, 22). McGrath filed the complaint because he believed that the misconduct was false and retaliatory. The Schuylkill County District Attorney ("DA") disapproved McGrath's attempted private criminal complaint because it is the practice of the DA to turn such matters over to the Special Investigations Unit of the Department of Corrections. (Id. at ¶ 13). On August 23, 1996, McGrath filed a Petition for Review of the criminal complaint.

On September 23, 1996, the Assistant District Attorney filed a response to the Petition for Review of McGrath's private criminal complaint. McGrath filed a reply, objecting to the denial because he (the victim of the alleged crime) was not interviewed and because having the DOC investigate itself was inadequate.*fn1 On October 15, 1996, McGrath moved for an evidentiary hearing in Schuylkill County and, in the alternative, requested an external investigation. On October 17, 1996, copies of McGrath's criminal complaint were served upon Mahanoy Superintendent Dragovich.

Also on October 17, 1996, Corrections Counselor Johnson conducted the annual review of McGrath's custody level classification, known as the Pennsylvania Additive Classification Tool ("PACT"). (Id. at ¶ 23). As a result of the PACT review, McGrath's custody level was upgraded from level three to level four. (Id. at ¶ 24).*fn2 His custody level was increased because his institutional records showed that McGrath had thirty-seven to thirty-eight misconducts. McGrath further alleges that Johnson stated that he was acting on "order from the top." (Id. at ¶ 33).

McGrath filed a grievance regarding the number of misconducts in his record. Despite McGrath's protestations, he was informed that he would remain in custody level four until his re-PACT in February 1997. On March 24, 1997, the number of class I misconducts was corrected to reflect eleven misconducts.

McGrath avers that his records accurately reflected eleven misconducts prior to filing a private criminal complaint but that after filing the complaint his records inexplicably reflected over thirty misconducts. (Id. at ¶¶ 33, 34). He further alleges that his increase in custody level was based upon these fictional misconducts. The increase in custody level in turn caused him to be transferred from a "minimum/medium" security prison near his home in Philadelphia to a "maximum" security prison in Pittsburgh. (Id. at ¶¶ 40, 41). On February 7, 1997, McGrath was placed in restricted housing ("RHU"). He never received a hearing on the reasons for his placement in RHU "as required by law and policy." (Id. at ¶ 41, 69). He alleges that his records were falsified to circumvent the DOC classification policies and to increase his custody level and transfer him in order to punish him for filing a private criminal complaint. (Id. at ¶¶ 48, 49).

McGrath further alleges that SCI Pittsburgh was a known place of danger to him as he had previously received threats to his life there. He avers that his transfer to Pittsburgh was intentionally designed to harm him because it was easy to foresee that he would either be harmed or locked up in the "hole." In short, he alleges that his transfer was punishment without a violation of the rules and in retaliation for filing a private criminal complaint. (Id. at ¶ 41-44).

II. Legal Standard

The defendants have moved to dismiss McGrath's complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) and for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). On a motion to dismiss, the district court must read a pro se plaintiff's allegations liberally and apply a less stringent standard to the pleadings of a pro se plaintiff than to a complaint drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n. 6 (3d Cir. 1997).

A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must determine whether the plaintiff is entitled to relief under any set of facts consistent with the allegations of the complaint. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255 (3d Cir. 1994). In deciding a motion to dismiss under Rule 12(b)(6), the factual allegations in the complaint must be accepted as true and all reasonable inferences that can be drawn therefrom must be viewed in the light most favorable to the plaintiff. Id. A motion to dismiss should only be granted if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (section 1983 claims are to be evaluated in accordance with the liberal standard enunciated in Rule 8(a)).

A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R.Civ.P. 12(b)(1) is proper only when "the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). Thus, the threshold required to withstand a motion to dismiss under 12(b)(1) is lower than that required to withstand a Rule 12(b)(6) motion. Id.; White v. United States Government Dept. of the Treasury, 969 F. Supp. 321, 323 (E.D.Pa.), aff'd, 135 F.3d 768 (3d Cir. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 2385, 141 L.Ed.2d 750 (1998). When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion, whereas under 12(b)(6) the defendant bears the burden to demonstrate that no claim has been stated. Id. However, for purposes of ruling on a motion to dismiss for want of standing, as here, "the trial court . . . must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992); Pfizer Inc. v. Elan Pharm. Research Corp., 812 F. Supp. 1352, 1357 n. 6 (D.Del. 1993).*fn3

III. Discussion

Defendants argue that McGrath's complaint should be dismissed for various reasons. Defendants argue that McGrath lacks standing because he has not alleged an injury and is precluded from bringing suit by statute because he has failed to allege a physical injury. The defendants also argue that some of McGrath's claims are barred because he failed to exhaust his administrative remedies. They argue further that his claims for injunctive relief are moot and that the Eleventh Amendment bars his other claims against those defendants that he is suing in their official capacities. In addition, defendants argue that McGrath failed to state a claim under the First Amendment, Eighth Amendment and Fourteenth Amendment as well as under state law. Finally, defendants argue that sovereign immunity bars any state law claim McGrath could reasonably allege against these defendants.

A. Standing

In order to have standing to bring a lawsuit in federal court, a plaintiff must satisfy the requirements of Article III of the United States Constitution. U.S. Const. art. III, ยง 2; Armstrong World Indus., Inc. v. Adams, 961 F.2d 405, 410 (3d Cir. 1992). The requirements of Article III standing (that there be a case or controversy) are satisfied when a plaintiff demonstrates that: (1) he has suffered an actual or threatened injury; (2) that the injury was caused by the allegedly illegal action of the defendants; and (3) that the injury must be subject to redress by a favorable decision in ...

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