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John Diaz v. C.O. Musker

January 10, 2012


The opinion of the court was delivered by: Rufe, J.


This is a prisoner civil rights action arising under 42 U.S.C. § 1983. Plaintiff John Diaz alleges that Defendants the Commonwealth of Pennsylvania Department of Corrections ("DOC") and Mary Canino *fn1 violated his due process rights when they prevented him from preparing and presenting a defense to disciplinary charges filed against him. Before the Court is Defendants' Motion to Dismiss the Second Amended Complaint. For reasons that follow, the Motion will be granted.


The facts alleged in the Second Amended Complaint are assumed to be true for the purposes of the Motion to Dismiss. In February 2006, Plaintiff John Diaz was an inmate at the Pennsylvania State Correctional Institution in Graterford, Pennsylvania ("SCI Graterford"). *fn2

Plaintiff alleges that on February 20, 2006, he was removed from his cell without warning, and taken to the Restrictive Housing Unit ("RHU"). *fn3 SCI Graterford correctional officers then searched Plaintiff's cell and belongings. *fn4

According to a misconduct report completed and filed by Officer Jeffrey McCusker eight days after the search, a confidential informant had told Officer McCusker that Plaintiff was planning to escape. *fn5 Officer McCusker also reported that, upon searching Plaintiff's cell, correctional officers found evidence that Plaintiff was trying to escape, including a map of the prison property, a description of inmate processing, and clothing. *fn6

Plaintiff received a copy of the misconduct report on February 28, 2006. The report charged Plaintiff with "Class 1 #6 escape, Class 1 #20 disguise, Class 1 #36 contraband, implements of escape, [and] Class 1 #26 violations of the Pennsylvania Criminal Code: 901 criminal attempt, 902 criminal solicitation, 903 criminal conspiracy, 5122 implement of escape, [and] 5121 escape." *fn7 In an attempt to prepare a defense for his disciplinary hearing, Plaintiff requested a copy of the inmate handbook and access to the law library, but his requests were denied, which hindered his ability to prepare his defense. *fn8

On March 2, 2006, after ten days in the RHU, Plaintiff appeared before DOC hearing examiner, Defendant Mary Canino, for a hearing. *fn9 Plaintiff pled "not guilty" to the charges filed against him. Plaintiff also waived his right to have a disciplinary hearing within the following six days, believing that by waiving this right, he would be given the opportunity to prepare a defense and present it at a later hearing. *fn10 During the March 2 hearing, Plaintiff admitted that the clothing found in his cell belonged to him, *fn11 but explained that "many of the inmates had different colored hats and pants," *fn12 to imply that no inference of a plan to escape could be drawn from this clothing. Canino did not ask him any other substantive questions about the report or give him the opportunity to call witnesses or present evidence in his defense. *fn13 According to Plaintiff, at some point prior to the hearing, Canino had interviewed Officer McCusker about the alleged confidential informant, but had not interviewed the informant directly, and did not call Officer McCusker as a witness at the hearing. *fn14
On March 3, 2006, Canino found Plaintiff guilty of all counts charged in the report, and "summarily sentenced him to 360 days in the RHU." *fn15 Plaintiff served the first three days of his sentence in the RHU of SCI Graterford; he was then transferred to SCI Smithfield in Huntingdon, Pennsylvania, where he served the remainder of his 360-day sentence. *fn16 Plaintiff avers that while in the RHU, he was exposed to "continuous searches, regular relocation of his cell, and was unable to sleep as a result of the lights that remained turned on." *fn17 He alleges that "[a]s a result of th[e] improper guilty verdict, [he] is forced to endure increased scrutiny by correction officers and prison officials, including but not limited to his cell being relocated on a monthly basis, routine strip-searches, and inability to participate in certain programs and activities." *fn18
On March 23, 2006, Plaintiff appeared before the Program Review Committee ("PRC") at SCI Smithfield and stated that he believed that he could not appeal the findings of Defendant Canino because he was no longer at SCI Graterford. *fn19 The Committee dismissed his statement, leading Plaintiff to believe he did not have the ability to appeal. *fn20 Later, at the suggestion of another inmate, Plaintiff sent several appeal requests to prison officials, but each request was denied. *fn21 On August 3, 2007, Plaintiff sent a letter to a prison official requesting leave to file an appeal. *fn22 His request was forwarded to the PRC, who interviewed Plaintiff on August 9, 2007. *fn23 Later that same day, Plaintiff received a letter stating that, because he had submitted appeals to the Superintendent and the Central Office, he had exhausted all avenues of appeal afforded to him. *fn24

In his Second Amended Complaint, Plaintiff alleges that Defendants violated his rights to due process under the Fourteenth Amendment of the United States Constitution (Count I) and Article I, § 9 of the Pennsylvania Constitution (Count II) "by failing to afford him a full and fair hearing before an impartial tribunal, upholding his guilty findings based on improper evidence and [an] inaccurate statement of alleged criminal conduct involved, and refusing to allow [him] to appeal the guilty verdict." *fn25 Plaintiff seeks monetary damages and injunctive relief. Defendants have moved to dismiss the Second Amended Complaint, arguing that Plaintiff's claims are barred by sovereign immunity, that Plaintiff has failed to exhaust his administrative remedies, and that Plaintiff has failed to state a claim upon which relief may be granted.


A. Motions Filed Pursuant to Federal Rule of Civil Procedure 12(b)(1)

Where a party asserts that the Eleventh Amendment of the United States Constitution deprives a federal court of subject matter jurisdiction, "the motion may properly be considered a motion to dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)." *fn26 "At issue in a Rule 12(b)(1) motion is the court's 'very power to hear the case.'" *fn27 Where a defendant does not challenge the truthfulness of the facts material to a jurisdictional analysis, a court evaluates the motion as a facial attack, accepting ...

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