The opinion of the court was delivered by: A. Richard Caputo United States District Judge
On August 24, 2009, Atiba Wicker*fn1 and Jocelyn Stallworth-Destouet,*fn2 jointly filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983*fn3 as a result of a series of events that occurred at SCI-Frackville. Plaintiffs' Complaint includes claims of: due process violations related to institutional misconducts; retaliation claims exercising their First Amendment rights; race based equal protection claims; and a state law defamation claim. Named as defendants are the following Pennsylvania Department of Corrections (DOC) employees: Robert Shannon, former Superintendent of SCI-Frackville; S.K. Kephart, Program Manager; M. Wenerowicz, Deputy Superintendent of Centralized Services; A.J. Kovalchick, Deputy Superintendent of Operations; Sharon Luquis, Hearing Examiner; Corrections Officer (CO) Shultz; CO Solonoski; and Robert MacIntyre, Chief Hearing Examiner.
Presently before the Court is the Defendants' Motion to Dismiss the Complaint (doc. 19) in this matter. For the reasons set forth below, the Defendants' Motion to Dismiss will be granted in part and denied in part. Defendants will be required to file an Answer to the sole remaining claim. The Court will vacate the stay of discovery in this matter, and Defendants will be required to respond to any pending discovery.
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must accept as true the factual allegations in the complaint and construe any inferences to be drawn from the allegations in the plaintiff's favor. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Detailed factual allegations are not required, id. at 231 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007)), but the complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974, and factual allegations "that are 'merely consistent with' a defendant's liability" are not enough. Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949 (2009). "[M]ore than labels and conclusions" are required. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65.
Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). Pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
A. The May 12, 2009 Misconduct Issued by CO Solonoski
On May 12, 2009, Counselor Thomas told Atiba Wicker that he had an important legal phone call. (Doc. 1, Compl. at ¶ 13.) Mr. Wicker stated he could not take the call as he had to attend a treatment group mandated by the Pennsylvania Board of Probation and Parole. Counselor Thomas advised him that she would postpone the legal phone call until he returned from group. She instructed him to tell his unit officer upon his return that he had an important legal call and that it was confirmed by her. Id.
When Atiba Wicker returned from his treatment group he told CO Solonoski what his counselor had said. CO Solonoski replied that if he was lying he would receive a misconduct. (Id. at ¶ 14.) Mr. Wicker told CO Solonoski "if he called his counselor, she would confirm it ... then started walking toward his counselor's office." (Id.) CO Solonoski yelled "you're not going over there." (Id.) The incident was observed by Sgt. Cress. (Id.)
At that moment Sgt. Cress beckoned Mr. Wicker to his station. (Id. at ¶15.) After explaining what had occurred, Sgt. Cress told Plaintiff, "he would call his counselor to verify his approved legal call. He told plaintiff to return to his cell." (Id.) On his way back to his cell, Plaintiff asked CO Solonoski for a grievance form. CO Solonoski replied, "you trying to fuck with me?," and ordered Mr. Wicker to his cell. (Id. at ¶ 16.) Later, when Mr. Wicker was released from his cell, CO Solonoski "attempted to give [him] the grievance [form]", Mr. Wicker said he did not want it. (Id. at ¶ 17). CO Solonoski replied, "don't you ever threaten me again." (Id.)
Later that day, Lt. Gaudreau, a non-defendant, came to Mr. Wicker's cell and told him that CO Solonoski issued him a misconduct because he felt Mr. Wicker had threatened him. (Id. at ¶ 18.) Atiba Wicker was then removed from general population cell, placed in disciplinary custody, and handed misconduct A-818090 charging him with: threatening another person; presence in an unauthorized area; refusing to obey an order and using abusive language. (Id. at ¶ 19.)
Later that day, Mr. Wicker spoke with Capt. Clark, a non-defendant, complaining that the misconduct charges were bogus. (Id. at ¶ 22.) He requested Counselor Thomas, Sgt. Cress and Lt. Gaudreau as witnesses. (Id. at ¶ 25.) He felt Lt. Gaudreau was a necessary witness because he spoke to him about the issue before he received the misconduct, and because Hearing Examiner Luquis "prohibited inmates from talking at misconduct hearings to present or support their evidence." (Id. at ¶ 23.) Mr. Wicker also submitted an inmate version form stating that CO Solonoski falsified the facts of the misconduct, and that he needed his witnesses to substantiate his version of the facts. (Id. at ¶ 25.)
On May 14, 2009, Mr. Wicker's misconduct hearing was held. Hearing Examiner Luquis denied all of his witnesses "as not being required to establish guilt." (Id. at ¶ 26.) She also precluded him from defending himself and from presenting evidence and facts of his case. (Id.) Hearing Examiner Luquis dismissed the majority of charges against him (threatening another person; presence in an unauthorized area; and refusing to obey an order), but found him guilty of using abusive language charge. (Id.)Mr. Wicker filed an appeal to the Program Review Committee (PRC) which consisted of Deputy Wenerowicz, Deputy Kovalchick and Program Manager Kephart because they "had the power and authority to overrule defendant Luquis' unjust verdict". (Id. at ¶ 27.) The PRC affirmed the Hearing Examiner's decision. (Id.) However, after Counselor Thomas spoke with Deputy Kovalchick, Atiba Wicker was released from disciplinary custody after serving only 8 days of his original 45 day disciplinary sanction. The guilty verdict, however, was not disturbed. (Id. at ¶ 28.) Mr. Wicker's appeals to Supt. Shannon and the Chief Hearing Examiner, Robert MacIntyre, were denied. (Id. at ¶¶ 29-30.)
B. Ms. Stallworth-Destouet's 2008 Visiting Room Issues
In 2008, Ms. Stallworth-Destouet's visitation privileges were suspended after CO Krah, a non-defendant, claimed she had been loud and abusive. (Id. at ¶ 37.) She was required to apologize to CO Krah before her visitation privileges were restored. (Id.) After the reinstatement of her visits, on at least on occasion, both she and her 16-month old daughter were subject to inspection by a drug sniffing dog prior to entering the visiting area. Ms. Stallworth-Destouet protested this action because she is afraid of dogs. (Id. at ¶ 38.) Her car was also checked by the drug detection dog. Ms. Stallworth-Destouet told CO Cooney (non-defendant) and other officers that she was going to complain to her State Senator as to their treatment of her. Ms. Stallworth-Destouet believed the officers' actions were "retaliatory" because of her prior incident with CO Krah.*fn4 (Id.)
C. The May 25, 2009 Visitation Room Incident
On May 25, 2009, upon entering the visiting room area in anticipation of his visit with Ms. Stallworth-Destouet, CO Krah said to Mr. Wicker "you like to threaten guards, huh?" (Id. at ¶ 31.) When Ms. Stallworth-Destouet arrived at the facility, an unidentified officer told her "[you] won't have to worry about being 'checked' by our dog much longer." (Id. at ¶ 39.)
Mr. Wicker's visit with Mr. Stallworth-Destouet was terminated that day by prison staff after CO Shultz, the visiting room camera operator, allegedly witnessed Mr. Wicker's hands between Ms. Stallworth-Destouet's legs, playing with her genitals. (Id. at ¶ 32.) CO Shultz issued Mr. Wicker misconduct report A-818923 charging him with "engaging in ...