The opinion of the court was delivered by: Magistrate Judge Baxter
United States Magistrate Judge Susan Paradise Baxter.
A. Relevant Procedural History
On February 1, 2010, Plaintiff Steven Smith, a prisoner formerly incarcerated*fn2 at the State Correctional Institution at Albion, Pennsylvania (ASCI-Albion@), filed a pro se civil rights complaint pursuant to 42 U.S.C. ' 1983 against The Pennsylvania Department of Corrections (ADOC@); SCI-Albion; The State Correctional Institution at Forest in Marienville, Pennsylvania (ASCI-Forest@); and unnamed Defendants identified as AJohn Does@ and AJane Does.@ [ECF No. 8]. Plaintiff subsequently filed an amended complaint on June 7, 2010, dropping all of the original Defendants from the lawsuit and naming the following individual Defendants: Jeffrey Beard, former Secretary of the DOC (ABeard@); Raymond Sobina, former Superintendent at SCIAlbion (ASobina@); Nancy Giroux, Deputy Superintendent at SCI-Albion (AGiroux@); John Hall, Deputy Superintendent at SCI-Albion (AHall@); Tammy Young, Unit Manager at SCI-Albion (AYoung@); Maxine Overton, Health Care Administrator at SCI-Albion (AOverton@); Mark Baker, Medical Director at SCI-Albion (ABaker@); Daniel Telega, Physician Assistant at SCIAlbion (ATelega@); Tammy Mowry, Physician Assistant at SCI-Albion (AMowry@); John Tiller, Counselor at SCI-Albion (ATiller@); and Carla Webb, Counselor at SCI-Albion (AWebb@). [ECF No. 15]. Plaintiff thereafter filed a second amended complaint against the same Defendants named in his previous amended complaint. [ECF No. 38].*fn3 The Court construes the second amended complaint as the operative complaint in this case. For ease of reference, Defendants Baker and Telega will be referred to collectively as AMedical Defendants,@ and all other Defendants, excluding Defendant Mowry,*fn4 will be referred to as ADOC Defendants.@
In his pro se second amended complaint, Plaintiff raises a number of claims, including: (i) retaliation claims against Defendants Hall, Giroux, Webb, Tiller, and Young; (ii) Fourteenth Amendment due process claims against the DOC Defendants challenging allegedly false misconducts and faulty disciplinary proceedings, and the denial of parole; (iii) an Eighth amendment claim of verbal harassment against the DOC Defendants; (iv) an Eighth Amendment claim of deliberate indifference to health and safety against Defendants Hall and Giroux; (v) a Fourteenth Amendment equal protection claim against the DOC Defendants; (vi) a conspiracy claim against Defendants Beard, Sobina, Giroux, and Hall, pursuant to 42 U.S.C. " 1985 and 1986; (vii) an Eighth Amendment claim of deliberate indifference to serious medical needs against Defendants Sobina, Giroux, Overton, Baker, Telega, and Mowry; (viii) retaliation claims against the Medical Defendants; (ix) a claim under the Americans with Disabilities Act (AADA@); and (x) state law claims of medical malpractice/negligence and intentional infliction of emotional distress. All Defendants are sued in their individual capacities only. (ECF No. 38, Second Amended Complaint, at && 2-11).
On November 3, 2010, the DOC Defendants filed a motion to dismiss second amended complaint [ECF No. 39], arguing, inter alia, that Plaintiff has failed to state a claim upon which relief may be granted. The Medical Defendants filed their own motion to dismiss second amended complaint on November 5, 2010 [ECF No. 41], arguing that: (i) all of Plaintiff=s claims, other than his Eighth Amendment claim for failure to treat an e-coli infection, should be dismissed due to Plaintiff=s failure to exhaust his administrative remedies; (ii) Plaintiff=s Eighth Amendment claim for failure to treat his Hepatitis C condition is barred by the applicable statute of limitations; (iii) Plaintiff=s claims against Defendant Baker should be dismissed for lack of personal involvement; and (iv) Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has since filed a brief in opposition to each motion. [ECF Nos. 44, 45]. This matter is now ripe for consideration.
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). AFactual allegations must be enough to raise a right to relief above the speculative level.@ Twombly, 550 U.S. at 555. Although the United States Supreme Court does Anot require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face.@ Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is Arequired to make a >showing= rather than a blanket assertion of an entitlement to relief.@ Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). AThis >does not impose a probability requirement at the pleading stage,= but instead >simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of= the necessary element.@ Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556.
The Third Circuit subsequently expounded on the Twombly/Iqbal/Phillips line of cases, as follows:
To prevent dismissal, all civil complaints must now set out Asufficient factual matter@ to show that the claim is facially plausible. This then Aallows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.@
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint=s well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a Aplausible claim for relief.@ In other words, a complaint must do more than allege the plaintiff=s entitlement to relief. A complaint has to Ashow@ such an entitlement with its facts. As the Supreme Court instructed in Iqbal, A[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not >show[n]= - >that the pleader is entitled to relief.=@ This Aplausibility@ requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)(emphasis added)(citations omitted).
Pro se pleadings, Ahowever inartfully pleaded,@ must be held to Aless stringent standards than formal pleadings drafted by lawyers@ Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant=s unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)(Apetition prepared by a prisoner... may be inartfully drawn and should be read >with a measure of tolerance=@); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997)(overruled on other grounds). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
1. Claims v. DOC Defendants
Plaintiff claims that he suffered many adverse consequences at the hands of various DOC Defendants in retaliation for his verbal and written complaints and grievances. In particular, Plaintiff claims that the following named Defendants unlawfully retaliated against him for exercising his constitutional rights, in the following ways: (i) Defendants Hall and Giroux filed an allegedly false misconduct against him on or about August 7, 2008, which resulted in a sanction of 45 days of disciplinary custody; (ii) Defendants Tiller and Webb filed an allegedly false misconduct against him on or about September 3, 2009; (iii) Defendants Young and Tiller refused to process his applications for halfway house placement; and (iv) Defendant Tiller deliberately omitted from his parole package that he completed recommended programming, which resulted in the denial of parole and/or halfway house placement.
ARetaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution actionable under section 1983.@ See White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir.1990). AGovernment actions, which standing alone, do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.@ Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003), quoting Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000).
In order to state a prima facie case of retaliation, a prisoner must demonstrate:
1) the conduct in which he was engaged was constitutionally protected;
2) he suffered Aadverse action@ at the hands of prison officials*fn5 ; and
3) his constitutionally protected conduct was a substantial or motivating factor in the decisions to discipline him.*fn6
Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002), quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Following the satisfaction of a prima facie case of retaliation, the burden then shifts to the defendants to demonstrate, by a preponderance of the evidence, that their actions would have been the same, even if Plaintiff were not engaging in the constitutionally protected activities. Carter, 292 F.3d at 158. AOnce a prisoner has demonstrated 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.@ Rauser, 241 F.3d at 334. In evaluating a prison official's opinion, A[p]rison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.@ Bell v. Wolfish, 441 U.S. 520, 547 (1979).
i. Constitutionally Protected Activity
The Court finds that Plaintiff has met the first prong of his retaliation claims, as voicing complaints and/or filing grievances are constitutionally protected activities. See Hawkins v. Brooks, 694 F.Supp.2d 434, 442 (W.D.Pa. 2010), citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)(holding that an inmate has a right under the First Amendment to file grievances against prison staff).
To satisfy the second prong, Plaintiff=s allegations regarding the actions of Defendants must rise to the level of adverse action; in other words, Plaintiff=s allegations must be sufficient to demonstrate that the alleged actions would deter a person of ordinary firmness from engaging in the protected activity of filing a grievance. AUnless the claimed retaliatory action[s] [are] truly >inconsequential,= the plaintiff=s claim should survive a motion for judgment as a matter of law.@ Tate v. Donovan, 2003 WL 21978141 at *4 (E.D.Pa. Aug. 14, 2003), citing, Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002).
With regard to Plaintiff=s first retaliation claim, this Court finds that a reasonable jury could determine that the filing of allegedly Afalse@ misconducts, which resulted in Plaintiff being sanctioned to disciplinary confinement, would be sufficient to deter a person of ordinary firmness from engaging in constitutionally protected activity. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2002)(holding that prisoner=s allegation that he was falsely charged with misconducts in retaliation for filing complaints against a correctional officer sufficiently alleged a retaliation claim); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)(holding that an allegation that a prisoner was kept in administrative segregation to punish him for filing civil rights complaints stated a retaliation claim). Furthermore, the allegedly retaliatory acts of refusing to process halfway house applications and causing the denial of parole are not Atruly inconsequential@ acts, and may be found sufficient to deter a person of ordinary firmness from engaging in constitutionally protected activity. As a result, Plaintiff has satisfied the second prong of his retaliation claims arising from such acts.
To satisfy the third prong of his retaliation claims, Plaintiff must allege a causal connection between the exercise of his constitutional rights and the Defendants= adverse actions. Plaintiff=s allegations make clear that his verbal complaints and/or filing of grievances occurred within, at least, a temporal proximity of the alleged retaliatory conduct, which suggests a causal link sufficient to satisfy the third prong of Plaintiff=s retaliation claims against the named Defendants. See Allah v. Al-Hafeez, 208 F.Supp.2d at 535.
Based on the foregoing analysis, therefore, Plaintiff has sufficiently stated prima facie cases of retaliation against Defendants Hall, Giroux, Webb, Tiller, and Young.
The burden thus shifts to said Defendants to demonstrate, by a preponderance of the evidence, that they would have taken the same adverse actions (i.e., filed the challenged misconducts, etc.) regardless of Plaintiff=s exercise of his constitutionally protected rights. This they are not able to sustain at this stage of the proceeding.
Accordingly, the DOC Defendants= motion to dismiss Plaintiff=s retaliation claims against Defendants Hall, Giroux, Webb, Tiller, and Young will be denied and said claims will be allowed to proceed at this time.
b. Fourteenth Amendment Due Process Claims
i. AFalse@ Misconducts and Disciplinary Proceedings Plaintiff claims that Defendants Hall, Giroux, Webb, and Tiller violated his Fourteenth Amendment right to due process when they issued allegedly false misconduct charges against him, which resulted in his placement in disciplinary custody, and that his due process rights were violated further by the hearing examiners= refusal to allow him to call witnesses at disciplinary proceedings. These claims are without merit.
Initially, the filing of a misconduct, even if later proven to be false, Ais not a constitutional violation so long as the inmate is provided with due process.@ Flanagan v. Shively, 783 F.Supp. 922, 931 (M.D.Pa. 1992), aff=d, 980 F.2d 722 (3d Cir. 1992), cert denied, 510 U.S. 829 (1993)(citations omitted). In this case, it appears from Plaintiff=s allegations that he was properly notified of the charges associated with each misconduct and was afforded a hearing regarding each of the misconducts. Thus, Plaintiff was provided with all due process to which he was entitled. As a result, Plaintiff=s claims that Defendants Hall, Giroux, Webb, and Tiller wrote false misconduct reports against him are not cognizable under the Fourteenth Amendment and will be dismissed.
As to Plaintiff=s complaints regarding the time he has spent in disciplinary custody, the Supreme Court has held that a prisoner=s state created liberty interest is limited to those situations that impose an Aatypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.@ Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme Court considered the question of whether segregated confinement implicated a constitutional liberty interest and concluded that Adiscipline in segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest.@ 515 U.S. at 486. See also Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997) (placement of a prisoner in administrative custody for a period of 15 months did not impose atypical and significant hardship on prisoner and, thus, did not deprive due process rights). Thus, the fact that Plaintiff has been found guilty of allegedly false misconducts and sanctioned to minimal terms of disciplinary custody does not implicate a violation of a constitutional liberty interest under the Fourteenth Amendment. Moreover, the hearing examiners= refusal to allow Plaintiff to call witnesses at his misconduct hearings did not violate his due process rights, since Plaintiff did not have a liberty interest to protect. Rivers v. Horn, 2001 WL 312236 at *2 (E.D.Pa. Mar. 29, 2001). Accordingly, Plaintiff=s Fourteenth Amendment due process claims against the DOC Defendants will be dismissed.
Plaintiff claims that the DOC Defendants violated his due process rights when they allegedly caused him to be denied parole. However, the granting of parole prior to the expiration of a prisoner's maximum term is not a constitutionally-protected liberty interest that is inherent in the Due Process Clause. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1 (1979).
Moreover, the Pennsylvania Probation and Parole Act, 61 Pa. Stat.
331.1, et. seq., does not grant Pennsylvania state prisoners any
constitutionally-protected liberty interest in being released on
parole prior to the expiration of their maximum terms.*fn7
Thus, the Plaintiff does not have a
constitutionally-protected liberty interest that arises under state
law. As a result, Plaintiff cannot support a claim based upon ...