United States District Court, E.D. Pennsylvania
April 29, 2004.
RONALD WESLEY, Plaintiff
N. HOLLIS, et al., Defendants
The opinion of the court was delivered by: JAMES KELLY, Senior District Judge
MEMORANDUM AND ORDER
Presently before the Court is a Motion to Dismiss, in Part,
Plaintiff's Complaint filed by Defendants Correctional Officer Nathaniel
Hollis ("Hollis"), Correctional Officer Kevin Marsh ("Marsh") and
Internal Security Lieutenant Kenneth Eason ("Eason") (collectively,
"Defendants") requesting that this Court dismiss some of the claims set
forth in the Complaint filed by pro se Plaintiff Ronald Wesley
("Plaintiff" or "Wesley"), an inmate incarcerated at the State
Correctional Institution at Graterford, Pennsylvania ("Graterford"),
against Defendants in their individual capacities.*fn1 Defendants move
for dismissal of the following claims pursuant to Federal Rule of Civil Procedure
12(b)(6): (1) First Amendment access to courts claim against Hollis for
allegedly kicking and confiscating Plaintiff's legal materials; (2)
Fourteenth Amendment procedural due process claim against Hollis for
allegedly writing a false misconduct report; (3) retaliation claim
against Hollis; (4) conspiracy claim against Hollis and Marsh; (5) claim
against Eason for conducting a delayed and incomplete investigation of
the alleged assault; and (6) pendent state law claims against all
Defendants. For the following reasons, Defendants' Motion to Dismiss, in
Part, Plaintiff's Complaint is GRANTED IN PART and DENIED
For the purpose of ruling on this Motion to Dismiss, we recite the
facts as alleged by Plaintiff and accept his allegations as true.
On June 10, 2001, Correctional Officer Hollis appeared at Wesley's cell
in the Restricted Housing Unit and announced a cell search. Hollis
handcuffed Wesley through the opening in the cell door, called control
operations to open the door and instructed Wesley to exit the cell.
Hollis frisked Wesley, then entered his cell and began the search.
During the cell search, Wesley observed Hollis going through a stack of
his "legal-related work-product materials." (Compl. ¶ E.6.) Hollis extracted "contrasting tablet-back materials from the
stack and tossed them to the floor, as though they were trash."
(Id.) Wesley objected to Hollis that the tablet-back materials
were legal-related work-product relating to pending and contemplated
civil rights and habeas proceedings. Hollis insisted that the tablet-back
material was contraband.
Wesley called Lieutenant Marsh, who was standing nearby, and asked him
to instruct Hollis to stop trashing his legal-related materials. Marsh
entered the cell, spoke briefly to Hollis, and left the cell.
Hollis concluded his search. While leaving the cell, he swept the
tablet-back legal-related materials out of the cell with his feet. Wesley
tried to kick the materials back into his cell, but Hollis prevented him
from doing so. Wesley requested a confiscation receipt, as required by
Department of Corrections policy, for the tablet-back materials from
Hollis. Hollis refused, stating, "I'm throwing the stuff in the trash."
(Compl. ¶ E.11.)
Wesley was then ordered to return to his cell. After the cell door was
closed, he stood with his back to the door to enable Hollis to remove the
handcuffs. Under the guise of removing the handcuffs, Hollis grabbed the
cuffs, yanking them with enough strength and force to tighten the cuffs
on Wesley's wrists to cause Wesley's back and head to bang into the steel
cell door. Wesley screamed and pleaded with Hollis to let go of the cuffs, stating "You're gonna break my wrists." (Compl. ¶
E.14.) Hollis refused to release his hold on the cuffs, even as Wesley
twisted in pain and agony while attempting to pull away.
Hollis held onto the handcuffs for approximately five minutes. Although
at least six officers, including Marsh, stood nearby, none of them
intervened at first. Eventually, Marsh stopped the assault, by ordering
Hollis to let go of the cuffs and give him the key. Hollis let go of the
cuffs, pulled the key from his pocket, and handed it to Marsh. Marsh then
struck the key into the lock and removed the cuffs from Wesley's wrists.
Wesley's hands and wrists were badly bruised, swollen, and bleeding. He
hollered to Marsh to have him taken to the infirmary for treatment and to
notify the State Police of his intent to file a complaint for an
Several minutes later, two officers appeared at Wesley's cell to escort
him to the infirmary.
Later that day, Wesley was served with a misconduct report written by
Hollis, in which Hollis blamed Wesley for provoking the assault, by
refusing to obey his orders to be uncuffed.
On June 10, 2001, Wesley submitted a grievance against Hollis. On June
12, 2001, he submitted a request to Deputy Superintendent of Internal
Security, Mr. Lorenzo, requesting investigations by the internal security
department and the State Police. Consequently, on June 23, 2001, Eason, a
lieutenant in Graterford's internal security department, interviewed
Wesley. On July 11, 2001, Eason notified Wesley in writing that he found
Wesley's allegations of assault by Hollis to be "unsubstantiated."
(Compl. ¶ E.28.)
On July 7, 2003, Plaintiff filed a Complaint seeking damages, and
declaratory and injunctive relief against Defendants. Defendants now move
for partial dismissal of Plaintiff's Complaint, contending that Plaintiff
fails to state viable claims for relief under § 1983 and that,
further, sovereign immunity bars his pendent state law claims.*fn2
We address, in turn, the sufficiency of each of Plaintiff's claims for
which Defendants move for dismissal.
II. STANDARD OF REVIEW
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. A court may dismiss a complaint only if the plaintiff can prove no
set of facts that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
A. First Amendment Access to Courts Claim
Plaintiff attempts to assert a First Amendment access to courts claim
against Hollis by alleging that Hollis kicked Plaintiff's "tablet-back
legal-related materials" out of his cell and threatened to trash them.
While it is unclear from Plaintiff's Complaint whether Hollis confiscated
the materials and/or threw out the materials, Plaintiff's response to
Defendants' partial Motion to Dismiss specifies that his materials were
"confiscated & destroyed." (Pl.'s Resp. at ¶ 2.) Even assuming
that Hollis never returned the legal materials, Plaintiff nevertheless
fails to state an access to courts claim.
Denial of access to legal documents may constitute a violation of a
prisoner's First Amendment right to petition the courts and/or Fourteenth
Amendment due process rights. Zilich v. Lucht, 981 F.2d 694,
695 (3d Cir. 1992). However, to state a cognizable claim for violation of
the right to access to the courts, a prisoner must allege and offer proof
that he suffered an "actual injury" to court access as a result of the
denial. Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997).
The United States Supreme Court has defined actual injury in the access
to courts context as the loss or rejection of a nonfrivolous legal claim
regarding sentencing or the conditions of confinement. See Lewis v.
Casey, 518 U.S. 343 (1996). Here, Plaintiff's Complaint alleges only
that Plaintiff's legal materials were taken away, but does not allege
that his efforts to pursue a legal claim were actually hindered.*fn3
See id. at 351. Since Plaintiff fails to allege the requisite
"actual injury" in connection with the confiscation of his legal
materials, his First Amendment access to courts claim must be dismissed
for failure to state a claim.
B. Fourteenth Amendment Due Process Claim
Plaintiff attempts to assert a Fourteenth Amendment due process claim
against Hollis for allegedly writing a false misconduct report.
Plaintiff's claim, however, is not cognizable under the Constitution. A
misconduct report, whether true or false, even if it leads to the
imposition of disciplinary action, does not in and of itself trigger the protection of the Due Process
Clause. See Sandin v. Conner, 515 U.S. 472, 486 (1995)
(concluding that administrative or disciplinary action does not establish
"atypical" deprivation of prison life necessary to implicate a liberty
interest). Furthermore, a claim by a prisoner that he was falsely accused
of misconduct under prison regulations, without more, does not state a
claim of a Constitutional violation. Freeman v. Rideout,
808 F.2d 949, 951 (2d Cir. 1986); Smith v. Luciani, 1998 U.S. Dist.
LEXIS 4291, at 14 (E.D. Pa. Mar. 31, 1998). Here, Plaintiff merely
alleges that Hollis falsely accused him of misconduct. Without more,
Plaintiff's due process claim must be dismissed for failure to state a
C. Retaliation Claim
Plaintiff alleges that after he voiced his "objections" to Hollis
during the cell search and attempted to kick his papers back into his
cell, Hollis retaliated against him by assaulting him and charging him
with misconduct. To state a prima facie retaliation claim under §
1983, a plaintiff must allege that: (1) the plaintiff had engaged in
constitutionally protected conduct; (2) the plaintiff suffered some
adverse action at the hands of the prison officials; and (3) there was a
causal link between the plaintiff's exercise of his constitutional rights
and the adverse action taken against him. Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001) (importing burden-shifting framework of Mount
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)
into the prison context). Once a prisoner demonstrates that his exercise
of a constitutional right was a substantial or motivating factor in the
challenged decision, the prison officials may still prevail by proving
that they would have made the same decision absent the protected conduct
for reasons reasonably related to a legitimate penological interest.
Id. at 334 (incorporating standard articulated in Turner
v. Safley, 482 U.S. 78 (1987) that courts should afford deference to
decisions made by prison officials, since they possess necessary
Defendants argue that Plaintiff fails to make a prima facie case of
First Amendment retaliation because his verbal objection was an admitted
act of interfering with the cell search and, thus, cannot be deemed
constitutionally protected activity. Prison officials may curtail First
Amendment freedoms to preserve order, stability or security, but they may
not retaliate against an inmate for engaging in communication which does
not threaten prison order, the security of other inmates or staff or
implicate other legitimate penological interests. Robinson v.
Barone, No. Civ. A. 92-1854, 1993 U.S. Dist. LEXIS 5045, at 13-14
(E.D. Pa. Apr. 16, 1993). Here, Plaintiff's Complaint alleges a prima
facie claim for retaliation, the merits of which may be better addressed on a motion for summary judgment, where the burden-shifting
analysis described above may be applied to the facts discovered by the
parties. Accordingly, Plaintiff's First Amendment retaliation claim
survives dismissal at this juncture.
D. Conspiracy Claim
Plaintiff alleges that Marsh and Hollis conspired to violate his civil
rights, but fails to articulate a cognizable conspiracy claim under §
1983. In the Third Circuit, a conspiracy claim must be stated with
specificity, and may not be based merely upon suspicion and speculation:
it is a longstanding rule in the Third Circuit
that a mere general allegation . . . [or]
averment of conspiracy or collusion without
alleging the facts which constituted such
conspiracy or collusion is a conclusion of law and
is insufficient [to state a claim].
Young v. Kann, 926 F.2d 1396
, 1405 n.16 (3d Cir. 1991)
(citing Kalmanovitz v. G. Heileman Brewing Co., Inc.,
595 F. Supp. 1385, 1400 (D. Del. 1984), aff'd, 769 F.2d 152
1985)). To state a claim for conspiracy under § 1983, a plaintiff
must alleged "specific facts suggesting that there was a mutual
understanding among the conspirators to take actions directed toward an
unconstitutional end." Duvall v. Sharp, 905 F.2d 1188
(8th Cir. 1990). There must be "allegations of a combination, agreement
or understanding among all or between any of the defendants," and
"factual allegations that the defendants plotted, planned, or conspired together to carry out the chain of
events." Safeguard Mutual Insur. Co. v. Miller, 477 F. Supp. 299,
(E.D. Pa. 1979) (quoting Ammlung v. City of Chester,
494 F.2d 811
, 814 (3d Cir. 1974)).
Here, Plaintiff states in conclusory fashion that Marsh and Hollis
conspired against him, but fails to allege any facts to show that there
existed an agreement or understanding between them, or that they
otherwise planned together to carry out the chain of events leading to a
violation of Plaintiff's constitutional rights. Rather, Plaintiff merely
expresses his suspicion that there exists "an underlying prison culture
of `cover up,' of unjustifiable use of excessive force against inmates,
by guards . . . (Compl. ¶ 35.) Without more specific allegations,
Plaintiff's conspiracy claim is legally deficient and must be dismissed.
E. Inadequate Investigation Claim
Plaintiff alleges that Eason violated his constitutionally protected
rights by conducting an inadequate or incomplete investigation of the
alleged assault by Hollis upon Plaintiff. In order to state a civil
rights claim under § 1983, "[a] defendant . . . must have personal
involvement in the alleged wrongs; liability cannot be predicated solely
on the operation of respondeat superior." Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The necessary involvement can be shown in two ways,
either through allegations of personal direction or of actual knowledge
and acquiescence, however, such allegations must be made with
"appropriate particularity." Id.
Here, Plaintiff claims that Eason, after the alleged incident took
place, failed to adequately investigate Plaintiff's grievances in finding
that Plaintiff's allegations were unsubstantiated. (Compl. ¶ 28.)
Plaintiff fails to allege any way in which Eason had knowledge of and/or
acquiesced in the alleged discriminatory conduct. Since Plaintiff fails
to sufficiently plead a civil rights action against Eason, his claim of
inadequate or incomplete investigation must fail.
F. Pendent State Law Claims
In addition to his 1983 claims, Plaintiff asserts a pendent state law
intentional tort claim against Hollis for assault and battery, and a
claim against all Defendants that they violated Plaintiff's rights under
the Pennsylvania Constitution. Defendants argue that they cannot be sued
in their official capacities because of sovereign immunity and, further,
that Plaintiff's pendent state law claims do not fall within the nine
narrow negligence exceptions set forth in 42 Pa. Cons. Stat. §
8522(b),*fn4 or any other statute. It appears from the Complaint, however, that Plaintiff is suing Defendants in their individual
capacities. (Compl. ¶ C.7.) To the extent that Plaintiff asserts
pendent state law claims against Defendants in their individual
capacities, at this procedural juncture, those claims will survive
Defendants' Motion to Dismiss.*fn5
For the foregoing reasons, Defendants' Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) is GRANTED IN PART and
DENIED IN PART to the extent that the following claims are
DISMISSED WITHOUT PREJUDICE: (1) First Amendment access to
courts claim against Hollis; (2) Fourteenth Amendment due process claim
against Hollis; (3) conspiracy claim against Hollis and Marsh; and (4)
inadequate investigation claim against Eason. All other claims remain
before the Court.
AND NOW, this day of April, 2004, in consideration of the
Motion to Dismiss, in Part, Plaintiff's Complaint filed by Defendants N.
Hollis, Kenneth Eason and Kevin Marsh (collectively, "Defendants") (Doc.
No. 13) and the Response in Opposition filed by pro se Plaintiff Ronald
Wesley ("Plaintiff") (Doc. No. 15), IT IS ORDERED that
Defendants' Motion to Dismiss is GRANTED IN PART and
DENIED IN PART to the extent that the following claims are
DISMISSED WITHOUT PREJUDICE:
(1) First Amendment access to courts claim
(2) Fourteenth Amendment due process claim
(3) conspiracy claim against Hollis and Marsh;
(4) inadequate investigation claim against Eason.
All other claims remain before the Court.