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Keeling v. Barrager

United States District Court, M.D. Pennsylvania

April 3, 2014

C.O. BARRAGER, et al., Defendants.


WILLIAM J. NEALON, District Judge.


On February 25, 2011, Michael E. Keeling, an inmate confined in the State Correctional Institution, Dallas ("SCI-Dallas"), Pennsylvania, filed the above captioned civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds via an amended complaint. See (Doc. 23, amended complaint). Keeling names as Defendants Dr. Jane Jesse, SCI-Dallas psychiatrist[1], Department of Corrections Secretary John Wetzel, and the following employees of SCI-Dallas: Acting Unit Manager Cicerchia, Hearing Examiner McKeown, Corrections Officers Barrager, Walsh, Mooney, Zakarauskas, Pall, Cirelli, Lucas and Martin. Id . He raises claims of retaliation, denial of due process, and denial of access to the courts. Id . For relief, he seeks compensatory and punitive damages. Id.

Presently pending is the Corrections Defendants' motion to dismiss the complaint. (Doc. 47). The motion is fully briefed and is ripe for disposition. For the reasons set forth below, the motion to dismiss will be granted.


I. Standard of Review

Motion to Dismiss

Rule 12(b) (6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). 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)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig. , 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the... claim is and the grounds upon which it rests." Phillips v. Cty. of Allegheny , 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp. , 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must tak[e] note of the elements a plaintiff must plead to state a claim.'" Id . (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675 (1009)). Next, the factual and legal elements of a claim should be separated, well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id .; see also Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have been isolated, the court must determine whether they are sufficient to show a "plausible claim for relief." Iqbal , 556 U.S. at 679, citing Twombly , 550 U.S. at 555-56 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678.

When the complaint fails to present a prima facie case of liability, however, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver , 213 F.3d 113, 116-17 (3d Cir. 2000). "[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips , 515 F.3d at 245 (citation omitted). The federal rules allow for liberal amendments in light of the "principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis , 371 U.S. 178, 182 (1962) (citations and internal quotations omitted).

II. Allegations in Complaint

Plaintiff's amended complaint revolves around his displeasure with the removal of his Z-Code single cell status, having to accept a cell mate, the termination of his psychotropic medication, and use the general population medication line. (Doc. 23, Amended Complaint at ¶¶ 1-50). Plaintiff levels the majority of these allegations again Dr. Jesse, who is not a party to the instant motion to dismiss. He also claims that these acts were all done in retaliation for the filing of Keeling v. Dameter, Civil Action No. 09-cv-0147, a civil action in which Dr. Jesse was a named Defendant. (Doc. 23, Amended Complaint at ¶¶ 1-50).

The remainder of Plaintiff's amended complaint alleges that the remaining Defendants engaged in episodes of retaliation against him in terms of prison housing decisions and misconducts, acts of retaliation that were allegedly based upon a lawsuit and grievances Plaintiff filed against Defendants. See id. at ¶¶ 51-211. Because Plaintiff's amended complaint encompasses twenty-nine (29) pages and 211 paragraphs of allegations, the Court will dispense with addressing the allegations seriatim and will address Plaintiff's allegations as they pertain to the individual Defendants.

A. Claims against Defendant Barrager

Plaintiff states that on January 13, 2010, Defendant Barrager, while "assigned to A-Block and collecting inmate's commissary slips for next weeks commissary", called Plaintiff "Mr. Grievance" in front of another inmate. (Doc. 23, amended complaint at ¶¶ 51, 52). Plaintiff claims that his "commissary slip was not turned in on January 13, 2010, because C.O. Barrager collected it but did not turn it in for processing." Id. at ¶ 53.

On January 28, 2010, Plaintiff claims that Defendant Barrager "deliberately filed bogus (retaliatory) DC-141 No. 725218 against Plaintiff alleging: threatening an employee or family member with bodily harm and abusive language to an employee." Id. at ¶ 55. Plaintiff claims that Defendant Barrager knew that such misconduct would immediately result in Plaintiff being placed in the Restricted Housing Unit ("RHU"). Id. at ¶ 56. He alleges that Defendant Barrager was "reassigned from A-Block within 48 hours of filing Plaintiff's DC-141", for "ethic code violations stemming from his unprofessional behavior." Id. at ¶ 58-60. Plaintiff believes that Defendant Barrager issued him a misconduct because "Barrager knew he was being reassigned within days." Id. at ¶ 67.

Plaintiff alleges that on March 11, 2010, the first time he again saw Defendant Barrager, he "attempted to bump into Plaintiff while Plaintiff was casually standing in the prison corridor outside of commissary as stated in [Plaintiff's] Grievance No. 312179." Id. at ¶ 71.

Plaintiff claims that on April 25, 2010, while walking to the dining hall, Defendant Barrager "used profanity toward Plaintiff while he was existing [sic] the hospital area." Id. at ¶ 76. Plaintiff states that he filed a grievance about the events of March 11, 2010 and April 25, 2010. Id. at ¶ 77. Plaintiff claims that Defendant Barrager is bipolar, has "a history of being anti-inmate, " is generally a poor employee, and that he has no respect for his supervisors and disregards their instructions regarding his behavior. Id. at ¶¶ 64, 83, 85.

Plaintiff alleges that Defendant Cirelli was assigned to investigate his claim in Grievance No. 317322, that Defendants Pall and Martin were assigned to investigate Grievance No. 312179, that "C.O. Barrager was literally trying to bump into Plaintiff", and that "instead of properly reprimanding C.O. Barrager, his supervisor Capt. Cirelli retaliated against Plaintiff for filing grievance no. 312322" by issuing "DC-141 no. A725218 alleg[ing] Plaintiff told C.O. Barrager I'm going to kill you'" and then "placed Plaintiff in the RHU by alleging Plaintiff lied, however the DVD tape shows Plaintiff was not lying." Id. at ¶¶ 87-91.

With respect to Grievance No. 312179, Plaintiff contends that "Captain Pall, in his attempt to protect C.O. Barrager, erroneously stated Plaintiff withdrew' grievance no. 312179 on a request slip to him", however, he claims that Superintendent Walsh remanded Grievance No. 312179, stating "I read offender Keeling's request slip dated, March 30, 2010 and nowhere does it state he is withdrawing grievance no. 312179, therefore it needs to be processed." Id. at ¶¶ 92-93. Plaintiff believes that Defendant Pall "should have suspended C.O. Barrager based on the DVD tape evidence of March 11, 2010", however, "Captain Pall and Lt. Martin ignored C.O. Barrager's conduct/history because staff loyalty supersedes staff integrity (sic) in the case at bar." Id. at ¶ 85.

Plaintiff states that on March 24, 2010, at Superintendent Walsh's request, he was "called to Major Zakarauskas' office regarding the March 11, 2010 event with C.O. Barrager." Id. at ¶¶ 98-99. Plaintiff believes that the interview was "more scrutinizing of [him] than its propose [sic] to get the facts on [his] problem." Id. at ¶ 101. He claims that "because of the overwhelming evidence and request slips for adequate supervision of this renegade officer, Supervisors Zakarauskas, Pall, Cirelli and Lt. Martin decided to retaliate against plaintiff instead of reprimanding their renegade officer with a poor conduct record." Id. at ¶ 102.

Plaintiff alleges that on June 1, 2010, "the same day grievance no. 317179 was completed", Captain Cirelli placed him in the RHU pursuant to DC-141 No. B079969 for lying to employee, even though, allegedly, "the DVD tape supported Plaintiff's version." Id. at ¶¶ 105-114. Plaintiff claims that "if Captain Cirelli felt plaintiff was lying he should have placed plaintiff in the RHU within (24) hours of the March 23, 2010 interview, not June 1, 2010." Id . He alleges that "because grievance no. 317179 was remanded and plaintiff refused to sign off, it was Major Zakarauskas, Captain Pall, Captain Cirelli whom retaliated on June 1, 2010 by placing plaintiff in the RHU on June 1, 2010, the identical day grievance no. 317179 was completed." Id. at 105. He claims that because "Grievance No. 317179 blamed Captain Pall, Major Zakarauskas and Lt. Martin for lack of supervision of C.O. Barrager, they all decided to retaliate." Id. at ¶ 115. He believes that Defendant Barrager "retaliated against [him] for his history of filing grievances." Id. at ¶ 116.

B. Claims against Defendant McKeown

Plaintiff alleges that on January 28, 2010, Defendant McKeown violated his due process rights with respect to the misconduct charges issued by Defendant Barrager, by refusing to delay the misconduct proceedings and finding Plaintiff guilty, even though Defendant Barrager lacks credibility and was allegedly disciplined for unprofessional conduct. Id. at ¶¶ 181, 187, 189.

With respect to the misconduct issued by Defendants Martin and Pall, Plaintiff alleges that Defendant McKeown violated his rights by not rejecting the misconduct charges on timeliness grounds, imposing an excessive sanction, and generally displaying partiality to staff members. Id. at ¶¶ 177, 186. He also claims that McKeown retaliated against him by failing to interpret the video footage in a way that supported Plaintiff's claim. Id.

C. Claims against Defendants Walsh and Wetzel

Plaintiff states that on April 12, 2010, Defendant Walsh "intentionally misused tax payer's funds by transferring at least 133 inmates to the State of Virginia prison system due to the state overcrowding but he permitted his unit managers to continue preferential treatment of at least one fifty hundred non-Z-coded inmates (A-Code) at SCI-Dallas whom single cells should have been revoked which is/was a misuse of Tax payer funds." Id. at ¶ 47. He claims that even with the current bed space crisis, "Superintendent Walsh is currently permitting preferential single cell (A-Coded) with not a trace of mental health case issues over plaintiff." Id. at ¶ 50.

Plaintiff alleges that "on February 22, 2012, [he] filed Grievance No. 402481 requesting to be placed back on the mental health care PRT roster by psychological staff and the grievance was denied by SCI-Dallas administration level (Warden Walsh) on March 26, 2012, causing intentional infliction of mental stress." Id. at ¶ 33. He further alleges that Defendant Walsh, along with Defendant Wetzel, deprived him of "his medical single cell status in order to continue preferential treatment' of non-Z-coded inmates in single cells throughout SCI-Dallas as stated in correspondence to Wetzel dated March 11, 2012 and administrative grievance no. 402481." Id. at ¶ 44.[2] Plaintiff believes that "Superintendent Walsh, knew or should know according to DOC policy during time of bed space crisis, he shall first revoke all inmate's from their non-Z-coded single cell status throughout his facility." Id. at ¶ 45.

Finally, with respect to the numerous grievances filed against Defendant Barrager, Plaintiff alleges that Defendant Walsh failed to instruct his staff to interview particular inmates in connection with the allegations made against ...

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