United States District Court, M.D. Pennsylvania
October 6, 2005.
MICHAEL DAVIS, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Plaintiff, Michael Davis, an inmate at the United States
Penitentiary-Allenwood ("USP-Allenwood") in White Deer,
Pennsylvania, commenced this pro se action with a
Bivens*fn1 civil rights complaint (Doc. 1). Named as
Defendants are the United States of America,*fn2 as well as
the following USP-Allenwood officials: Warden Troy Williamson;
CODE*fn3 Coordinator Dr. Marie Trgovac; discipline hearing
officer ("DHO") Todd Cerney; and CODE treatment specialists Steve
Confair, Richard Drivers, and Suzanne Mitchell. The thrust of Plaintiff's allegations is that: (1) Defendants
conspired to and did retaliate against him for previously filing
a claim for injunctive relief against them; (2) Plaintiff was
denied due process at a disciplinary hearing; and (3) Williamson
acquiesced in the retaliation of his subordinates. (Doc. 1 at 5.)
Plaintiff seeks declaratory and injunctive relief, compensatory
and punitive damages, and expungement of his misconduct from his
Presently pending before the Court is Defendants' motion to
dismiss and for summary judgment (Doc. 13). The motion has been
briefed, and it is ripe for disposition. For the reasons set
forth below, Defendants' motion for summary judgment will be
Plaintiff was a participant in the USP-Allenwood CODE program,
a program aimed at teaching inmates positive social values and
life skills. Dr. Marie Trgovac is the Coordinator of the CODE
program. It appears from the record that Plaintiff and Trgovac
were often at odds, and Plaintiff ultimately initiated litigation
against Trgovac and others in this Court. Plaintiff alleges that
all of his difficulties at USP-Allenwood have stemmed from
Defendants' resentment over this litigation.
On May 25, 2004, an officer conducting a cell search allegedly
found a seven-inch sharpened metal rod taped inside a locked
locker which contained Plaintiff's personal belongings. As a
result of the discovery, Plaintiff was charged with the
prohibited act of possession, manufacture or introduction of a
weapon. Although Plaintiff does not dispute that the locker was his, he claims that the weapon was planted in
his locker by Defendants, in retaliation for his legal action and
his acrimony with Trgovac.
In preparation for his disciplinary hearing on the weapon
charge, Plaintiff alleges that he requested various Defendants to
view the surveillance tape of his cell, to verify that the weapon
was planted by Defendants; he claims this request was made of
Warden Williamson on May 28, 2004, of interviewing officer Lt.
Zoda "approximately one week later," of Mr. Snyder on June 3,
2004, of staff representative Wolever on June 8-10, 2004, and of
DHO Cerney on July 19, 2004. (Doc. 20 at 7-9.) However, Plaintiff
was told that the videotape was no longer available because it
had been "recycled due to standard time passage."
A disciplinary hearing for the weapon charge was held on July
21, 2004, and Plaintiff was found guilty. As a sanction for the
violation, Plaintiff was disciplined with sixty (60) days
disciplinary segregation, and he has forfeited no good conduct
time for the incident. Plaintiff claims that he was denied due
process at the hearing, as a result of a conspiracy among
Defendants in retaliation for the litigation against Trgovac.
Plaintiff infers that the requested tape was deliberately
destroyed, that the alleged weapon had previously appeared in
another inmate's cell, and Defendants had planted that weapon in
his cell to fabricate the violation.
A. Motion to Dismiss Standard
Defendants have filed a motion to dismiss Plaintiff's
complaint. The motion to dismiss is based, in part, upon a
contention that Plaintiff's complaint fails to state a claim upon
which relief can be granted, as provided by Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Rule 12(b) provides in part as
follows: If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim
upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the
court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule
56. . . .
Fed.R.Civ.P. 12(b). Defendants' brief in support of the motion
includes exhibits (Doc. 18-2) which incorporate several
declarations, two DHO reports, two administrative remedies, and
an operations memorandum for the CODE program. Since the Court
will not exclude the supplemental materials, the motion to
dismiss will be construed as a motion for summary judgment under
B. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment
may be entered only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." FED.R.CIV.P. 56(c). The party moving for
summary judgment has the burden of proving that there is no
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). Additionally, on summary judgment, the
inferences to be drawn from the underlying facts must be viewed
in the light most favorable to the non-moving party. Mraz v.
County of Lehigh, 862 F. Supp. 1344 (E.D. Pa. 1994).
Moreover, Rule 56 provides that the adverse party may not
simply sit back and rest on the allegations contained in the
pleadings. Rather, the adverse party must show by affidavits,
pleadings, depositions, answers to interrogatories, and
admissions on file that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). When addressing a summary judgment motion, our
inquiry focuses on "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52 (emphasis added).
Plaintiff claims that Defendants retaliated against him for an
injunction action he initiated against Tragovac and others.
Specifically, he claims Defendants: (1) planted a weapon in his
locker; and (2) conspired to deny his due process protections in
the resulting disciplinary hearing. To prove retaliation,
Plaintiff must demonstrate: (1) that he engaged in
constitutionally protected conduct; (2) an adverse action by the
Defendants sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) a causal link
between the exercise of his constitutional rights and the adverse
action taken against him. Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir. 2003), citing Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001); see also Allah v. Seiverling, 229 F.3d 220, 224-25
(3d Cir. 2000).
It is undisputed that Plaintiff has a protected interest in
seeking redress of his grievances through the courts. However, he
has failed to establish the second and third requisite elements
to sustain his retaliation claim. Plaintiff claims that he filed
a civil action for injunctive relief against one or more of the
Defendants, and that it is this action that sparked Defendants'
retaliation. He claims that on the day that injunctive relief was
denied to him in his civil action, Defendants retaliated against
him by planting a knife in his locker. (Doc. 20 at 5-6.) Assuming
this to be true, Plaintiff fails to present evidence that the
alleged retaliatory conduct would deter a person of ordinary
firmness from exercising his rights. Certainly, the alleged
retaliatory conduct has not deterred Plaintiff in pursuing this
action, or in challenging his misconducts through the
administrative process. Moreover, Plaintiff has not shown a proximity in time between
the initiation of litigation and the alleged retaliatory conduct.
Although Plaintiff claims that the trigger for the retaliation
was his request for injunctive relief in this Court, the record
does not support his contention. Plaintiff alleges that the same
day the "federal court denied issuance of the preliminary
injunction [in case No. 3:CV-04-2284] . . . an officer . . .
found a seven inch sharpened rod taped inside plaintiff's
locker." (Doc. 20 at 5-6.) Nevertheless, the alleged retaliation
(planting and discovery of the knife) took place on May 25, 2004
(Doc. 20 at 6), nearly five months prior to the day the alleged
triggering litigation, case No. 3:CV-04-2284, was filed (October
19, 2004). Therefore, Plaintiff fails to set forth the requisite
elements to sustain a retaliation claim, and summary judgment
will be granted on this issue.
D. Disciplinary Hearing
As a result of the weapon found in his locker, Plaintiff was
issued a misconduct. Plaintiff alleges that as a further act of
retaliation, Defendants conspired to deprive him of procedural
due process in his disciplinary hearing, in contravention of his
rights under the Fourteenth Amendment of the United States
Constitution. However, Plaintiff does not refer to any evidence
or facts in the record to support either the conspiracy claim or
the claim of due process violation.
In order to set forth a cognizable conspiracy claim, a
plaintiff cannot rely on broad or conclusory allegations. D.R.
by L.R. v. Middle Bucks Area Vocational Technical Sch.,
972 F.2d 1364, 1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079 (1993);
Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v.
Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). The United States
Court of Appeals for the Third Circuit has noted that "[a]
conspiracy claim must . . . contain supportive factual
allegations." Rose, 871 F.2d at 366. "To plead conspiracy adequately, a plaintiff must set forth allegations
that address the period of the conspiracy, the object of the
conspiracy, and the certain actions of the alleged conspirators
taken to achieve that purpose." Shearin v. E.F. Hutton Group,
Inc., 885 F.2d 1162, 1166 (3d Cir. 1989).
The essence of a conspiracy is an agreement or concerted action
between individuals. See D.R. by L.R., 972 F.2d at 1377;
Durre, 869 F.2d at 545. Consequently, a plaintiff must allege
with particularity and present material facts which show that the
purported conspirators reached some understanding or agreement or
plotted, planned and conspired together to deprive plaintiff of a
protected federal right. Id.; Rose, 871 F.2d at 366;
Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539
(E.D. Pa. 1982). Where a civil rights conspiracy is alleged,
there must be some specific facts in the complaint which tend to
show a meeting of the minds and some type of concerted activity.
Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). A
plaintiff cannot rely on subjective suspicions and unsupported
speculation. Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.
There are no averments of material fact in the complaint that
reasonably suggest the presence of an agreement or concerted
activity between Defendants to violate Plaintiff's civil rights.
Although Plaintiff sets forth "subjective suspicions and
unsupported speculation," Young, 926 F.2d at 1405, he offers
nothing more than this bare conjecture. Further, he does not set
forth the period of the conspiracy. While he claims that evidence
was denied or destroyed, and Defendants influenced "the DHO's
independent decision-making" (Doc. 20 at 11), again he offers
nothing more than conjecture and speculation. Moreover, Plaintiff
fails to establish a due process violation resulting from the
alleged conspiracy. F. Due Process
The Fourteenth Amendment of the United States Constitution
provides in pertinent part: "No State shall . . . deprive any
person of life, liberty, or property, without due process of
law. . . ." Liberty interests protected by the
Fourteenth Amendment may arise either from the Due Process Clause itself or
from state law. Torres v. Fauver, 292 F. 3d 141, (3d Cir.
2002). The Supreme Court has mandated a two-part analysis of a
procedural due process claim: (1) "whether the asserted individual
interests are encompassed within the . . . protection of `life,
liberty or property(,)'" and (2) "if protected interests are
implicated, we then must decide what procedures constitute `due
process of law.'" Ingraham v. Wright, 430 U.S. 651, 672 (1977);
Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000).
It is well-settled that "prison disciplinary proceedings are
not part of a criminal prosecution and the full panoply of rights
due a defendant in such proceedings does not apply." Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). Although the Supreme Court
has found that there can be a liberty interest at stake in
disciplinary proceedings in which an inmate loses good conduct
time, Id., Plaintiff's sanctions*fn5 did not include the
loss of good conduct time. Thus he has failed to identify a
liberty interest in this matter. If there is no protected liberty
or property interest, it is unnecessary to analyze what
procedures were followed when an alleged deprivation of an interest
occurred.*fn6 Therefore, summary judgment will be granted on
G. Respondeat Superior
Plaintiff claims that Defendant Williamson is liable solely in
his supervisory capacity as Warden. He is mistaken. It is
well-established that "[A] defendant in a civil rights action
must have personal involvement in the alleged wrongs; liability
cannot be predicated solely on the operation of respondent
superior." Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir.
1988). The personal involvement requirement can be satisfied by a
showing of "personal direction or of actual knowledge and
acquiescence." Id.; Pansy v. Preate, 870 F. Supp. 612, 630
(M.D. Pa. 1994), aff'd mem., 61 F.3d 896 (3d Cir. 1995).
Plaintiff claims that Williamson knew of and acquiesced in his
subordinates' misconduct. "[B]y approving, authorizing, condoning
or encouraging misconduct, either tacitly or positly [sic],"
(Doc. 20 at 15), Williamson had given knowing acquiescence to the
misconduct of his subordinates. However, other than Plaintiff's
conclusory assertion, he provides no documentation or facts that establish the claim. Accordingly,
Williamson's motion for summary judgment will be
Since Plaintiff has not established retaliation, conspiracy,
denial of due process, or supervisory liability, and Plaintiff's
complaint is devoid of allegations implicating the United States
of America, Defendants' motion for summary judgment will be
granted. An appropriate order follows. ORDER
AND NOW, THEREFORE, THIS 6th DAY OF OCTOBER, 2005, in
accordance with the foregoing memorandum, IT IS HEREBY ORDERED
1. Defendant's motion to dismiss or, in the
alternative, for summary judgment (Doc. 13) is
construed as a motion for summary judgment, and the
motion is GRANTED.
2. The Clerk of Court is directed to enter judgment
in favor of Defendants and against Plaintiff, and the
Clerk of Court shall mark this case closed.
3. Any appeal from this Order shall be deemed
frivolous, without probable cause, and not taken in
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