The opinion of the court was delivered by: Judge Munley
James Freeman ("Plaintiff"), an inmate presently confined at the State Correctional Institution, Cresson, Pennsylvania ("SCI-Cresson"), filed this prosecivil rights action pursuant to 42 U.S.C. § 1983. By Memorandum and Order dated October 4, 2010, Freeman's claims against Defendants Pennsylvania Board of Probation and Parole (Parole Board), Judge Robert Sacavage, District Attorney Rosini, Assistant District Attorney Michael Toomey, Trooper Kevin Kearney, and Magistrate Judge John Cyembic weresuaspontedismissed. See Doc. 26.
On August 26, 2011, a motion to dismiss filed by Defendants Doctor
Michael Weisner, Physician's Assistants (PA) Ms. Shylensburg and Davis
was granted. See Doc. 50. As a result of those rulings, Remaining
Defendants include the following twenty-five (25) employees at
Plaintiff's former place of incarceration, the State Correctional
Institution, Coal Township, Pennsylvania (SCI-Coal Twp): Correctional
Officers J.A. Miller, Kauffman, Hoot, R. Henz, J. Seedor, Lynn,
McDonald, and Fetterolf; Nurses Trautman and Shepperson; Sergeants
Burnhart; Lieutenants Gooler, Shipe, Faust, Burns, Mowrey, and
Eveland; Captains McCoy and
W. Miller; Grievance Coordinator K. K. Dascandi; Hearing Examiners
Kerns-Barr; Ms. Hamm; Food Manager Shaletsky; Teacher Ms. Lascavage;
and Mail Room Supervisor Jellen ("Corrections Defendants').*fn1
The other Remaining Defendants are multiple John and Jane Doe
employees at SCI-Cresson including an unidentified Hearing Examiner.
Plaintiff states that around August 25, 2009, he was placed in the SCI-Coal Twp. Restricted Housing Unit (RHU) on administrative custody status. After Freeman and his RHU cellmate, Inmate Williams, got into two fights with one another they allegedly asked Defendants Knorr, Miller, Kaufman, Erdly, Burnhart, Burns, McDonald, Gooler, and Mowry to be separated from one another. In addition, Inmate Williams also purportedly indicated to various correctional staff members that he was going to stab Plaintiff. However, those requests for separation were denied and Defendant Miller allegedly encouraged Williams to stab the Plaintiff in retaliation for his initiation of lawsuits against prison officials. See Doc. 1, p. 2 (2). On September 6, 2009, Sergeant Gooler purportedly warned Williams that he would be issued a misconduct if he assaulted Plaintiff but again failed to have the cellmates separated. According to the Complaint, Correctional Officer Fetterolf similarly failed to take preventive measures when informed by Plaintiff that his cellmate was threatening to stab him.
After Freeman went to sleep that evening, he was attacked and stabbed by Inmate Williams. See id. at p. 3 ¶ 5. During this incident, it is asserted that Defendants Hoot, Henz, and McCoy refused to open the cell door and restrain Williams but rather just stood outside the cell and yelled at the inmate to cease his assault.
The Complaint next contends that Defendant Miller verbally threatened Plaintiff and attempted to place him in harm's way by telling other prisoners that he was a rat and a rapist. See id. at ¶ 9. Thereafter, around November 22, 2009, Plaintiff claims that Miller subjected him to sexual harassment during a strip search. Freeman further maintains that during this same time period Freeman was receiving meals which had been contaminated.
It is next alleged that between February 12-18, 2009, Plaintiff was
placed in a hard cell within the RHU which had no desk, seat, clothes,
mattress, soap, recreation privileges, legal mail, or toilet paper.
See id. at ¶ 14. Due to the cold temperature in the cell, the
Complaint states that Freeman caught a cold, suffered from a massive
headache, and his feet went "numb" and started burning.*fn2
Id. In addition, Lieutenant Eveland told Plaintiff that he
would have to endure those conditions for a one (1) week period and
Defendants Eveland, Fetterolf Burnhart, Seedor, Marx, Trautman,
Shepperson, Faust, Captain Miller, Officer Miller, McCoy and Erdly
denied his requests for relief including a blanket. Despite those
physical problems, Plaintiff was purportedly not permitted to see a
doctor until February 14, 2009.
On February 16, 2010, Freeman states that he was strip searched by Officer Lynn and that during the procedure Lynn grabbed his penis and testicles and made improper remarks. Complaints made by Freeman regarding this incident to Lieutenants Faust, and Shipe, Sergeant Adams, Ms. Tomcavage, Deputy Elliot and Captain Baumbach were fruitless.
On March 18, 2010, correctional staff including Chell, Loy, Check, Captain Miller and Seedor allegedly encouraged prisoners in Plaintiff's housing unit to flood their cells which allowed the overflow, including sewage, to accumulate in Plaintiff's cell. It is next claimed that Freeman's incoming legal mail was improperly opened over 20 times with the approval of Defendant Dascandi.
The Complaint also maintains that Grievance Coordinator Dascandi and other officials improperly rejected institutional grievances filed by Freeman and also restricted his ability to file additional grievances. Plaintiff's final SCI-Coal Twp. related claim is that upon being transferred from the prison, his boxes of personal legal materials and pictures were confiscated and not forwarded to his new prison for over a month.
While housed at SCI-Cresson on August 25, 2010, Plaintiff contends that Ms. Judy Lascavage issued him a meritless retaliatory misconduct charge alleging that he had committed indecent exposure in her class room. In a related claim, Freeman states that during the resulting disciplinary proceeding, Hearing Officer Kerns-Barr violated due process by finding him guilty of the charge despite the fact that surveillance camera footage established that he had not committed the offense. Freeman seeks compensatory damages as well as injunctive and declaratory relief. Corrections Defendants have responded to the Complaint by filing a motion to partially dismiss the Complaint.*fn3 See Doc. 32. The motion is ripe for consideration.
Corrections Defendants seek dismissal of the Complaint on the grounds that: (1) Plaintiff fails to successfully allege a retaliation or conspiracy claim arising out of the stabbing incident; (2) a viable international law claim has not been asserted; (3) the Complaint does not raise a claim against defendant J.A. Miller; (4) there is no assertion that any Defendant was involved in the alleged incidents of food tampering; (5) Plaintiff's conditions of confinement claims stemming from his hard cell placement are subject to dismissal; (6) the pat down search conducted by Officer Lynn was within acceptable constitutional parameters; (7) there is no allegation that any Defendant was personally involved in the flooding of Freeman's RHU cell; (8) there is no assertion that any Defendant was personally involved in Plaintiff's assertion of mail tampering and the mail at issue was not privileged; (9)since there is no right to a grievance procedure, Freeman's claims regarding the handling of his grievances are meritless; (10) Plaintiff's due process claims relating to his institutional misconduct proceedings do not set forth an actionable claim; (11) there is no assertion that any Corrections Defendant committed any constitutional misconduct with respect to the alleged fractured hand which Freeman suffered on April 12, 2010; (12) the untimely delivery of Plaintiff's personal legal materials did not violate his right of access to the courts; (13) Freeman's parole related claims fail because there is no assertion that Defendant Hamm engaged in any constitutional misconduct; (14) any state law tort claims are precluded from consideration; and (15) the damage claims against Defendants in their official capacities are barred by the Eleventh Amendment. See Doc. 36, p. 2-3.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). A plaintiff must present facts that, if true, demonstrate a plausible right to relief. See Fed. R. Civ. P. 8(a)(stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" the necessary elements of the plaintiff's cause of action. Id. at 556. A complaint must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, ___ U.S. ____ , 129 S.Ct 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal, 129 S.Ct at 1949. Legal conclusions must be supported by factual allegations and the complaint must state a plausible claim for relief. See id. at 1950.
"Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, at 555. The reviewing court must determine whether the complaint "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562; see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to survive a motion to dismiss, a plaintiff must allege in his complaint "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a particular cause of action). Additionally, pro se pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
The initial argument for dismissal asserts that with respect to the stabbing incident, a viable claim of retaliation has not been set forth because "Plaintiff does not allege that any of the Defendants except for J.A. Miller were aware of any constitutionally protected conduct in which Plaintiff engaged, and therefore he cannot show the requisite causal relationship as to all the other Defendants." Doc. 36, p. 15.
To establish a Section 1983 retaliation claim, a plaintiff bears the burden of satisfying three (3) elements. First, a plaintiff must prove that he was engaged in a constitutionally protected activity. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Second, a prisoner must demonstrate that he "suffered some 'adverse action' at the hands of prison officials." (Id.)(quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This requirement is satisfied by showing adverse action "sufficient 'to deter a person of ordinary firmness' from exercising his First Amendment rights." (Id.)(quoting Suppon v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). Third, a prisoner must prove that "his constitutionally protected conduct was 'a substantial or motivating factor' in the decision to discipline him." Rauser, 241 F.3d at 333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The mere fact that an adverse action occurs after a complaint or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link between the two events.*fn4 See Lape v. Pennsylvania, 157 Fed. App'x. 491, 498 (3d Cir. 2005).
Once Plaintiff has made a prima facie case, the burden shifts to the Defendants to prove by a preponderance of the evidence that they "would have made the same decision absent the protected conduct for reasons reasonably related to penological interest." Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir. 2002)(internal quotation and citation omitted). When analyzing a retaliation claim, it must be recognized that the task of prison administrators and staff is difficult, and the decisions of prison officials require deference, particularly where prison security is concerned. Rauser, 241 F.3d at 334.
Filing of a lawsuit is protected activity under the First Amendment right of prisoners to petition the court. Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). The submission of grievances is also constitutionally protected conduct. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Based upon a review of the Complaint, there are no facts presented which would show that the Defendants involved in the stabbing incident with the exception of Officer J.A. Miller had knowledge that Plaintiff had previously initiated institutional grievances. With respect to those officials (sans Miller), this Court concurs that the Rauser, requirement that Plaintiff show that his constitutionally protected activity was a motivating factor for the adverse action.*fn5
The Complaint vaguely indicates that Plaintiff was the victim of a conspiracy. See Doc. 1, p. 2. The second portion of Corrections Defendants' argument asserts that any claim that the failure to intercede on Plaintiff's behalf with respect to his request for protection from his cell mate was the result of a conspiracy is meritless. See Doc. 36, p. 15.
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 Third Circuit Court of Appeals has further noted that "[a] conspiracy claim must . . . contain supportive factual allegations." Rose, 871 F.2d at 366. Moreover, "[t]o 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; Young, 926 F.2d at 1405 n.16; 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. 1991).
Viewing the Complaint in the light most favorable to Plaintiff, it is clear that he has failed to state a viable conspiracy claim against the Corrections Defendants. As correctly noted by the Corrections Defendants, "Plaintiff does not allege that any of the defendants acted together with a common purpose, nor does he allege any overt act." Doc. 36, p. 15. Rather, it appears to this Court that Plaintiff is simply contending that any objectionable action taken by any prison official establishes their involvement in the purported conspiracy. There are simply no averments of fact in the Complaint that reasonably suggest the presence of an agreement or concerted activity between the Defendants to violate Freeman's civil rights. Dismissal will be granted in favor of Corrections Defendants with respect to the claim of conspiracy.
Plaintiff generally contends that the conduct attributed to the Corrections Defendants violated International Law. See Doc. 1, p. 2. The Complaint references the Universal Declaration of Human Rights of 1948 (Universal Declaration). Corrections Defendants argue that "there is no cause of action for a generic violation of international law" which is enforceable in federal court. See Doc. 36, p. 16.
The United States Supreme Court in Sosa v. Alvarz-Machain, 542 U.S. 692, &34 (2004), Clearly stated that although the United States is a signatory to the Universal declaration, "it did not itself create obligations enforceable in the federal courts." Accordingly, this Court concurs with the Corrections ...