The opinion of the court was delivered by: (Judge Caldwell)
The pro se plaintiff, Shawn Jordan, is an inmate at SCI-Rockview,
serving an unknown period of incarceration on a conviction unspecified in his pleadings.*fn1 He filed this civil-rights action challenging his expulsion on two occasions from the sex offender treatment program ("SOTP" or "program") at Rockview. He makes the following claims. First, the defendants retaliated against him by removing him from the program for exercising his First Amendment rights to free speech and to association. Second, his removal from the program violated substantive and procedural due process, the latter claim based on the mandatory nature of his participation in the SOTP before he can be eligible for parole. He also makes state-law claims invoking the substantively similar protections of the Pennsylvania Constitution.
Named as defendants are the following Pennsylvania Department of Corrections (DOC) employees: Secretary, Jeffrey A. Beard; SCI-Rockview Superintendent, Franklin Tennis; Deputy for Centralized Services, Robert Marsh; Deputy for Facilities Management, Brian Thompson; Corrections Program Manager, Melinda Smith; SOTP Director, Bethanne Burkholder; Unit Manager, Dean Gentzel; Corrections Officer (CO) Lee Phillips; and DOC's Chief Grievance Officer, Dorina Varner.
Defendants have filed a motion to dismiss, contending that the Amended Complaint fails to state a claim upon which relief may be granted. They also contend Plaintiff has failed to exhaust his administrative remedies. In addition to opposing Defendants' motion, Plaintiff has filed a Motion to Compel Discovery which requests that the court lift the stay on discovery that was imposed pending resolution of Defendants' Motion to Dismiss.
The court will grant Defendants' Motion to Dismiss except for their challenge to the procedural due process claim, but allow them another opportunity to seek dismissal of that claim. We deny Plaintiff's Motion to Compel Discovery and keep the stay in place pending the filing of another motion to dismiss.
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted). A court may consider documents that are attached to or submitted with the complaint, Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002), and matters of public record, Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), including court filings. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999)(citing Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
"Pro se complaints are 'liberally construed' and 'held to less stringent standards than formal pleadings drafted by lawyers[.]'" Jackson v. Div. of Developmental Disabilities, 394 F. App'x 950, 951 n.3 (3d Cir. 2010)(nonprecedential)(quoted case omitted). Nonetheless, the complaint still "must contain allegations permitting 'the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoted case omitted). Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend. See Fletcher--Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). However, leave to amend need not be granted if amendment would be futile. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
With these principles in mind, we set forth the background to this litigation.
In pertinent part, 42 Pa. Con. Stat. Ann. §9718.1 (West 2007), requires persons convicted of certain sex offenses against a minor to "attend and participate in a [DOC] program of counseling or therapy . . . ." Id. § 9718.1(a). That statutory section specifies that a sex offender "shall not be eligible for parole unless the offender has . . . participated in the program . . . ." Id. § 9718.1(b)(1)(ii). The DOC has "the sole discretion with respect to counseling or therapy program contents and administration, including the scheduling of an offender's attendance and participation." Id. § 9718.1(c). The provision disclaims the creation of any legal right in any individual seeking to be paroled who was required to participate. Id. § 9718.1(d)(3).
In November 2007, the SCI-Rockview SOTP Director, Ms. Burkholder, recommended Jordan's participation in the institution's SOTP. Doc. 25, Am Compl., CM/ECF p. 3.*fn2 On April 9, 2008, Jordan began participating in the program. Id. Soon after, Ms. Burkholder counseled Jordan "regarding his non-compliance with the program guidelines." Doc. 25-2, CM/ECF p. 13. He was "confronted with his failure to identify high risk situations and was asked to avoid inappropriate relationships." Id. Specifically, Jordan was cautioned about his relationship with another inmate in the program. However, Jordan "minimiz[ed] the consequences and extent of the relationship and the nature of the high-risk situation." Id.
Exercising their "professional opinion," treatment staff determined that Jordan's "actions and statements indicate[d] that he [was] not able to commit himself to serious sex offender treatment at [that] time." Id., CM/ECF p. 13. Jordan was removed from the program on May 19, 2008.*fn3 Doc. 25, CM/ECF p. 3.
Jordan challenged his removal in grievance no. 230199. Id., CM/ECF pp. 14-15. Deputy Superintendent for Centralized Services, Robert Marsh, responded to his grievance appeal. He advised Jordan that while he and the other inmate involved were counseled "on the effect this relationship was having on [their] SOP programming," only "[t]he other inmate heeded the advice of the unit management team and avoided you." Id., CM/ECF p. 14. Marsh stated that Jordan "continued to pursue engaging in a relationship with this inmate that was detrimental to [his] therapeutic progress in the SOP." Id. Jordan appealed this decision to Superintendent Tennis. Id., CM/ECF p. 15. Superintendent Tennis informed Jordan that Ms. Burkholder, Mr. Gentzel and other staff and inmates in the program observed his inappropriate behavior with the inmate.
On June 21, 2008, Jordan filed grievance no. 235649 (Id., CM/ECF p. 12) complaining that he was told by Ms. Burkholder and Mr. Gentzel that he would be "immediately moved back to the" SOTP in 60 days after his removal but that he had not yet been returned. He claims that Ms. Burkholder and Mr. Gentzel knew that he would have to wait six to 18 months before a single cell was available with the SOTP because he is required to be housed in a single cell, and "inmates who are not single cell, will be moved into the program first." Id.He complained that pursuant to section 9718.1, he must complete a SOTP program to be parole eligible. He sought to learn "why [he's] being discriminated against by staff." Id.
Melinda Smith, the Corrections Program Manager, denied the grievance upon initial review. Id., CM/ECF p. 13. She restated the grounds for Jordan's removal from the SOTP and that after 90 days, not 60 days, "he would be evaluated for readmission, not immediately moved back into the sex offender program." Id. In his appeal to Superintendent Tennis, Jordan defines what he meant when he said that Ms. Burkholder "discriminated" against him. Id. at CM/ECF p. 10. He claims Ms. Burkholder "made a clear distinction when she determined with no evidence, [he] was having an inappropriate relationship with another inmate." Id. He claims that her actions were taken on the basis of prejudice. Id. Superintendent Tennis denied Jordan's appeal. Id., CM/ECF p. 8. At final review, it was determined that Jordan "failed to provide any evidence that [his] rights were violated or that staff discriminated against [him] when" removing him from the SOTP. Id., CM/ECF p. 11.
On September 10, 2008, Jordan filed a third grievance, no. 243498, after CO Phillips told him that Ms. Burkholder was inquiring about his conduct outside of the SOTP. Id., CM/ECF p. 22. He asserts that if Ms. Burkholder denied him readmission to the SOTP on the basis of his association with fellow inmates, she would be violating his First Amendment rights. Id. He reasserts that his "removal from the program was based on false information from staff-members or inmates who may dislike [him]". Id. Melinda Smith responded that Ms. Burkholder did not violate Jordan's First Amendment rights by inquiring into his activities outside of the program as she was attempting to "determine if [he] has been able to avoid high-risk situations which led to his removal from the program." Id. at CM/ECF p. 23. In responding to Jordan's appeal, Superintendent Tennis advised him that: you are free to speak to whomever you choose but that does not prohibit staff from monitoring your actions and associations and taking appropriate action accordingly.
There are certain requirements of the SOP; one being to avoid high risk situations as determined by SOP staff.
Id., CM/ECF p. 18 (emphasis in original). On November 21, 2008, the appeal was denied at final review. Id., CM/ECF p. 19. In the response, it was noted that the reasons for his removal was addressed in a prior grievance (no. 235649) and would not be readdressed. Id.
In January 2009, Jordan reentered the SOTP and was "clearly told to not have any contact with this same inmate." Doc. 25, CM/ECF p. 3; Doc. 25-2, CM/ECF p. 26. On June 30, 2009, Ms. Burkholder submitted a "vote sheet" for his removal based on his association with another inmate. Doc. 25, CM/ECF p. 2. Jordan was removed from the program after "Corrections officers on the SOP have witnessed [Jordan] talking, walking, and standing with this inmate. Officers in the yard observed [Jordan] with this inmate in the yard. Ms. Burkholder and Mr. Regan report[ed] [Jordan] ...