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MCGRATH v. JOHNSON
September 24, 1999
DAVID MCGRATH, PLAINTIFF,
MAHANOY COUNSELOR JOHN L. JOHNSON, MAHANOY SUPERINTENDENT MARTIN L. DRAGOVICH, MAHANOY DEPUTY SUPERINTENDENT EDWARD KLEM, MAHANOY UNIT MANAGER JAMES UNELL, 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, DEFENDANTS.
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
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
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,
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).
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
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.
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
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, § 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 ...