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Kirk v. Roan

September 14, 2006

NELSON KIRK, PLAINTIFF
v.
KENNETH ROAN, MR. KERSTETTER, MR. J. RACKOVAN, FRANK TENNIS, MAJOR SNEDEKER, ROBERT MEYERS, TSHANNA KYLER, AND H. CLIFFORD O'HARA, DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Defendants' Motion to Dismiss Plaintiff's complaint. The parties have briefed the issue and the matter is ripe for disposition. For the reasons set forth below, the court will grant Defendants' motion.

I. Background

A. Facts

Plaintiff Nelson Kirk is an inmate currently incarcerated at the State Correctional Institution at Coal Township, Pennsylvania ("SCI-Coal Township"). He was transferred to SCI-Coal Township from the State Correctional Institution at Rockview ("SCI-Rockview") on April 12, 2004. Events that occurred when Plaintiff was at SCI-Rockview are the grounds for his complaint. Defendants are employees and officials of the Pennsylvania Department of Corrections, most of whom are employed at SCI-Rockview.*fn1

On July 2, 2002, Plaintiff filed an Official Inmate Grievance form (hereinafter "Grievance") with Defendant Jeffrey Rackovan, the SCI-Rockview Grievance Coordinator, in accordance with the administrative rules of the Pennsylvania Department of Corrections.*fn2 Numbered 24096, the Grievance begins with the statement that Plaintiff filed the Grievance, in part, "[d]ue to the cronic [sic] desire of 6-2 [shift] Sgt. Kenneth Roan [ ] for expressing sexually distasteful remarks toward me."*fn3

In particular, according to the Grievance, on June 28, 2002, Defendant Roan made "lewd" responses to Plaintiff's request to use the housing unit's plunger. Further, Defendant Roan suggested to Plaintiff's cellmate that he be careful to "keep an eye on [Plaintiff]," implying that Plaintiff is homosexual. When Plaintiff expressed his discomfort with Defendant Roan's manner of joking, Defendant Roan responded with a "rash of sexually distasteful remarks" toward Plaintiff in front of a number of inmates who resided in Plaintiff's housing area. Defendant Roan then commented, in front of "several dozen" inmates, "If we were alone, we would be having sex."

B. Procedural History

Plaintiff filed his pro se complaint in this court on September 8, 2004. He was granted permission to proceed in forma pauperis under 28 U.S.C. § 1915 on September 17, 2004. After briefing, Defendants' Motion to Dismiss for failure to exhaust administrative remedies was granted on September 1, 2005. Plaintiff timely appealed the decision, and the Third Circuit vacated the order and remanded the case on December 20, 2005, for lack of sufficient evidence of failure to exhaust administrative remedies.

In its opinion, the Third Circuit identified the three essential claims asserted in Plaintiff's complaint, which are 1) sexual harassment by Defendant Roan, 2) retaliation by prison officials for having filed a grievance about the sexual harassment, and 3) the unconstitutionality of the administrative review process for Pennsylvania inmate grievances. Kirk v. Roan, 160 F. App'x 188, 189 (3d Cir. 2005) (per curiam). Because Plaintiff "did not file inmate grievances as to the [retaliation and review process] allegations in his complaint . . . any attempt . . . to now exhaust [those] claims would be untimely, [and therefore] the claims are procedurally defaulted." Id. (citing Spruill v. Gillis, 372 F.3d 218, 226 (3d. Cir. 2004)). The sexual harassment allegations contained in Grievance 24096 are the only claims not defaulted, thus only those allegations are properly before the court. Kirk, 160 F. App'x at 191 n.1.

On June 13, 2006, Plaintiff moved to include in his case a retaliation claim stemming from the facts alleged in Grievance 24096. The motion was denied. Plaintiff's appeal from that ruling is pending. Defendants filed a second Motion to Dismiss on June 15, 2006, and their brief in support followed on June 29, 2006. Plaintiff filed his opposition to the motion on July 18, 2006.

II. Legal Standard - Motion to Dismiss

When faced with a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences therefrom. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). "The complaint will be deemed to have alleged sufficient facts if it adequately put[s] the defendants on notice of the essential elements of the plaintiff['s] cause of action." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). The court will not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Port Auth. of New York & New Jersey v. Arcadian Corp.,189 F.3d 305, 311 (3d Cir. 1999). In the case of a pro se plaintiff, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Youse v. Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994).

In deciding a motion to dismiss, "courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). The court may consider "undisputedly authentic document[s] that a defendant attaches as an ...


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