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February 25, 2004.

DONALD VAUGHN, et al., Defendants

The opinion of the court was delivered by: JAMES KELLY, Senior District Judge


Presently before the Court is a Motion to Dismiss filed by Defendants Superintendent Donald Vaughn ("Vaughn") and Unit Manager William Lee ("Lee") (collectively, "Defendants") requesting that this Court dismiss the Complaint filed by pro se Plaintiff Ronald Wesley ("Plaintiff"), an inmate currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania ("SCI-Graterford"), for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff's Complaint contains a 42 U.S.C. ยง 1983 ("Section 1983") claim for violation of his rights under the First and Fourteenth Amendment of the United States Constitution, and other state constitutional and "tort law" claims, for Defendants' involvement in an alleged conspiracy against Plaintiff for having previously filed a lawsuit against SCI-Graterford employees. Plaintiff filed a response to the Motion, Defendants filed their reply thereto, and, with leave of this Court, Plaintiff filed a supplemental response. For the following reasons, Defendants' Page 2 Motion to Dismiss is GRANTED.


  For purposes of this Motion, we recount the facts as Plaintiff alleges them. Previously, Plaintiff filed a lawsuit in this Court, docketed at Civil Action No. 99-1228, against "W. Conrad, J. Riddick & R. Eldridge" and "Eric Thompson," who are employees of SCI-Graterford. Conrad, Riddick and Eldridge failed to appear for a March 26, 2001 trial date in that suit, as Superintendent Vaughn instructed them not to appear at trial. Thompson, however, appeared, as did Vaughn and Lee, who were not named as defendants. Counsel for the Commonwealth in that case informed the Court that she failed to serve notice of the scheduled trial date on Conrad, Riddick and Eldridge, but counsel for the parties, including Plaintiff's court-appointed counsel nevertheless agreed to proceed with trial without those three defendants present.*fn1 Plaintiff alleges that, sometime during the trial, Vaughn consulted with Lee for the purpose of retaliating against Plaintiff for filing that suit.

  The following day, Lee ordered Chuck Bobb, Plaintiff's prison counselor, to prepare Plaintiff's institutional file in Page 3 anticipation of a staffing meeting to discuss Plaintiff's housing accommodations. The meeting took place the following day, without providing Plaintiff notice or the opportunity to attend.

  Twelve days later, Plaintiff was informed that he was being moved to a new unit, run by non-defendant Unit Manager Dennis, where Plaintiff would have to share a cell with another inmate and sleep on the top bunk. Plaintiff's former Unit Manager, Lee, knew that Plaintiff had a medical restriction against sleeping on the top bunk. Plaintiff complained and was immediately moved to another cell, which he also had to share. Plaintiff's new cellmate, however, was an "admitted smoker of tobacco products." Plaintiff also had a medical restriction against sharing a cell with a smoker, and immediately complained to non-defendant Sergeant Cunningham, to no avail.

  Later, non-defendant Officer Leveque reprimanded Plaintiff for taking a short-cut to the dining hall from the Unit, rather than the circuitous route mandated by SCI-Graterford procedure. Officer Leveque threatened Plaintiff with disciplinary action if he did not take the longer route, even though the longer route had stairs and Plaintiff had a medical restriction allowing for "light-duty" only. Plaintiff complained to non-defendant Unit Manager Dennis, to no avail.

  Plaintiff became "frustrated and angry" and, after making several complaints about being double-celled with a smoker, and having to take the long way to the dining hall, he received a Page 4 misconduct and was placed in restricted custody.

  In response to his situation, Plaintiff attempted to file a grievance through the Commonwealth of Pennsylvania Department of Corrections grievance system. The parties to this matter agree that the Consolidated Inmate Review System consists of a three-part administrative process, which includes filing of an initial grievance with a grievance coordinator, an appeal of the grievance determination to appropriate intermediate review personnel, and a final review by the Central Office Review Committee. See Booth v. Churner, 206 F.3d 289, 293 n.2 (3d Cir. 2000) (outlining the grievance review process generally).

  On April 10, 2001, Plaintiff submitted a grievance, which was rejected on April 12, 2001 for his failure to file separate grievances based upon different events. On April 13, 2001, Plaintiff re-submitted the grievance, which was again rejected on April 17, 2001 for the same reason. The grievance coordinator further directed: "You have not indicated that you have requested an exception from the Unit Manager to be permitted to use the alternative route to the dining area. Send a request slip." Plaintiff then submitted the grievance for the third time on April 19, 2001, and, on April 27, 2001, the grievance coordinator directed Plaintiff again to file separate grievances for different events, and also instructed: "An attempt should be made to contact Deputy Lorenzo who will investigate this matter. If no response you can resubmit." Page 5

  By letter dated May 1, 2001, Plaintiff requested that Deputy Superintendent Lorenzo conduct an investigation. By letter dated May 28, 2001, Plaintiff re-submitted his grievance to the grievance coordinator for Deputy Superintendent Lorenzo's failure to respond to Plaintiff's May 1, 2001 letter. On May 30, 2001, Plaintiff's grievance was denied, noting as follows: "You can appeal to the Superintendent. You failed to show how you have been harassed." Plaintiff did not appeal this decision to Superintendent Vaughn or to the Central Office Review Committee.


  The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). We therefore accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom. Wisniewski v. Johns-Manvilie Corp., 759 F.2d 271, 273 (3d Cir. 1985). We are not, however, required to accept legal conclusions either alleged or inferred from the pleaded facts. Kost, 1 F.3d at 183. In considering whether to dismiss a complaint, courts may consider those facts alleged in the complaint as well as matters of public record, orders, facts in the record and exhibits attached to a complaint. Oshiver v. Levin, Fishbone, Sedan ...

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