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David Cabello v. Officer Loop
March 29, 2011
DAVID CABELLO, PLAINTIFF
OFFICER LOOP, DEFENDANT
The opinion of the court was delivered by: Judge Caldwell
The pro se plaintiff, David Cabello, formerly an inmate at the
State Correctional Institution (SCI-Huntingdon), in Huntingdon,
Pennsylvania, filed this civil rights action alleging that Corrections
Officer (CO) Loop filed two false misconducts against him in
retaliation for his exercise of his First Amendment rights.*fn1
Doc. 1, Compl. Presently before the court is Loop's motion to
Plaintiff alleges as follows. He received the first misconduct on
20, 2008, allegedly in retaliation for his filing of Cabello v. Grace,
Pa.)(Caldwell, J.).*fn2 Id. at p. 2.*fn3
The incident giving rise to the September 2008 misconduct
involved a dispute between Cabello and another corrections officer who
prohibited Cabello from going to the law library while on cell
restriction. Id. at p. 3. CO Loop issued Cabello the second misconduct
on February 3, 2010, after he was assigned to escort Plaintiff from
his Restricted Housing Unit (RHU) cell to a meeting before the Program
Review Committee (PRC). CO Loop told Plaintiff that he was being
released from the RHU to population. In response, Cabello joyfully
said, "I guess I'll see you in pop." Id. at p. 3. After displaying an
unpleasant face, CO Loop walked away only to be called back by Cabello
to his cell. Id. Plaintiff then asked CO Loop "if there was going to
be any problems between Officer Loop and [himself]." Id. CO Loop
responded "not if I have to write you up and send you back to 'the
hole.'" Id. Later, Cabello learned from the PRC that he was not being
released back to general population because CO Loop had just issued
him a misconduct for threatening him. Id. at pp. 3-4. CO Loop noted on
the misconduct that Cabello was presently in the RHU due to a
misconduct he previously issued him. Id. at p. 4. He also noted that
Cabello had sued him because of the misconduct and that Plaintiff had
threatened him on numerous occasions while in the RHU. Id. Prison
officials issued a separation order to keep Cabello
away from CO Loop. Id. at p. 3. As a result, Plaintiff claims he had
to complete the remainder of his sentence, or until June 15, 2010, in
On a motion to dismiss, this court must "accept as true the factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor." West Penn Allegheny Health Systems, Inc. V. UPMC, 627 F.3d 85, 91 (3d Cir. 2010)(quoted case omitted). In making this determination, this court must consider "only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
A "finding of 'some evidence' to support a prison disciplinary determination" that an inmate violated prison rules defeats a prisoner's retaliation claim. See Nifas v. Beard, 374 F. App'x 241, 244 (3d Cir. 2010)(per curiam)(nonprecedential)(citing Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)). In his motion to dismiss, defendant Loop argues Plaintiff fails to state a claim because Plaintiff's complaint itself provides some evidence to support the February 3, 2010, misconduct: Cabello's remark that he would see Loop after Cabello was placed in general population. According to the misconduct report attached to the complaint, Cabello said this in a threatening manner, not a joyous one, as Plaintiff alleges.
We will deny Defendant's motion for two reasons. First, it does not address the retaliation claim based on the September 20, 2008, misconduct. Second, although Defendant attempts to bring the motion within the ambit of a motion to dismiss by arguing that Plaintiff's own allegations defeat his claim, nothing in the complaint establishes that Plaintiff's remark was "some evidence" to support the charge. To make that determination we would have to examine the disciplinary hearing record, meaning that Defendant's argument is probably better presented by way of summary judgment.
An appropriate order follows.
William W. Caldwell United States District Judge
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE ...
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