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Vernon v. Custer

United States District Court, M.D. Pennsylvania

May 7, 2014

TYRIK VERNON, Plaintiff,
CHARLES CUSTER, et al., Defendant.


MARTIN C. CARLSON, Magistrate Judge.


Tyrik Vernon is an inmate in the custody of the Pennsylvania Department of Corrections, currently incarcerated at the State Correctional Institution at Greene. Vernon has previously lodged three different, legally flawed complaints with this court. (Docs. 1, 10, and 20.) In each instance we have been compelled to dismiss these complaint. We have, however, provided Vernon with leave to amend his pleadings on multiple occasions in order to afford him every opportunity to state a claim.

In this action, the latest iteration of this lawsuit Vernon now files a fourth complaint (Doc. 38), which brings claims against a number of supervisory officials within the Department of Corrections, as well as a number of employees at SCI-Coal Township, where Vernon was housed before his transfer to SCI-Greene in the spring of 2013. Many of these claims mirror or closely parallel claims that we have previously found to be wanting. Thus, Vernon brings claims against the defendants for alleged violations of his right to procedural due process in connection with certain disciplinary proceedings that were brought against him in Fall of 2012. In addition, Vernon claims that the defendants retaliated against him for engaging in activities protected by the First Amendment, specifically for filing grievances challenging the actions of the disciplinary hearing officer who issued an adverse ruling in the disciplinary proceedings. Finally, Vernon claims that some of the defendants committed intentional torts against him in violation of federal law, in connection with his disciplinary proceedings.

The defendants have moved to dismiss this, Vernon's latest amended complaint. (Doc. 42.) The motion is fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted, and the complaint will be dismissed.


The background of this memorandum is taken chiefly from the well pleaded allegations set forth in Vernon's latest amended complaint (Doc. 38), which are in large measure substantially similar to those allegations in Vernon's prior amended complaint (Doc. 20), a complaint we previously found was inadequate to state a claim (Docs. 34, 35).[1]

In September 2012, Vernon was housed at SCI-Coal Township. Vernon claims that sometime during this month, he began experiencing problems with a Lieutenant Shipe at that institution, who warned Vernon that if he did not provide information about inmates that Lieutenant Shipe believed were smuggling drugs and contraband into the institution, "he would personally see to it that [Vernon] would not get another visit in that institution or any where else, from [his] wife." (Doc. 38, ¶ 22.) Nevertheless, Vernon alleges that he had no such information and therefore provided none, notwithstanding Lieutenant Shipe's threat. (Id.)

On September 18, 2012, Vernon clams that he submitted a Request to Staff form to Superintendent David Varano. It appears that when Vernon submitted this form, he had been held in restricted or administrative housing since September 2, 2012, pending an investigation into allegations that Vernon was receiving contraband from prison visitors, including his wife. It appears that these charges were filed by Lieutenant Shipe. Vernon submitted the request to Varano to inform the Superintendent that Vernon had been held in administrative custody for more than 15 days, while the investigation unfolded, and Vernon believed that under Department of Corrections' written policies, he was required to be released back into the general population of the prison following this brief investigative period.

However, at approximately 10:30 p.m. on September 18, 2012, Vernon received a DC-141 form that advised him that the prison was extending its investigation, and that he would be held in administrative custody for an additional 15 days. On September 20, 2012, Superintendent Varano responded to Vernon's request, stating that he understood Vernon was going to be held for an additional 15 days, and that Vernon had received adequate notice of this decision. (Doc. 20, ¶¶ 17-20; Doc. 38, ¶¶ 12-15.)

Also on September 20, Vernon met with members of the Program Review Committee (PRC), which was comprised of Defendants Linda Chesmar, George Miller, and Deputy Luscavage. During this meeting, Vernon argued that he was being held in administrative custody unlawfully or in violation of Corrections' policy, but was told that he was not going to be released on a technicality while the investigation into the charges continued. (Doc. 20, ¶¶ 21-23; Doc. 38, ¶¶ 16-17.)

On September 29, 2012, Vernon received a DC-141 misconduct report prepared by Lieutenant Shipe alleging that Vernon had engaged in an unlawful criminal conspiracy to possess a telecommunications device, as well as for violations of other unspecified Department of Corrections policies. (Doc. 20, ¶ 25; Doc. 38, ¶ 18.) The following day, Vernon submitted a DC-141 part 2A form, which is the form that inmates who are charged with misconduct may use to request representation and witnesses at their misconduct proceedings. Vernon requested that the disciplinary hearing officer review video surveillance and phone recordings as exculpatory evidence. (Doc. 20, ¶¶ 26-27; Doc. 38, ¶19.)

Notwithstanding his request, on October 4, 2012, Vernon was taken to his disciplinary hearing before the hearing examiner, Defendant Lisa Kerns-Barr, who declined his request for the presentment of exculpatory evidence, and did not review any other unidentified evidence that Vernon claims he provided. (Doc. 20, ¶ 28; Doc. 38, ¶ 20.) At this hearing, Vernon claims that Defendant Kerns-Barr threatened that she would find Vernon guilty of the misconduct if he refused to sign a waiver. (Doc. 38, ¶ 21.)

On October 23, 2012, Vernon was taken to his misconduct hearing, where he learned that Defendant Kerns-Barr still had not reviewed exculpatory evidence that Vernon wished her to consider. (Doc. 38, ¶ 23.) Instead, the hearing examiner rejected Vernon's request for the charges to be dismissed on the basis of her alleged violations of his due process rights, and instead took testimony from Lieutenant Shipe, the reporting officer who filed the misconduct against Vernon in the first place. (Id.) It appears that following this hearing, the hearing examiner found Vernon guilty of the charged misconduct, and Vernon filed an appeal of the decision, asserting that he did not receive due process.

On October 28, 2012, Vernon wrote to the Secretary of the Department of Corrections, John Wetzel and defendant Robin Lewis to complain about the misconduct he had been issued and the process that he received, but Wetzel declined to respond, and Lewis merely acknowledged receipt of Vernon's letter. (Doc. 20, ¶ 38; Doc. 38, ¶¶ 27-28.) On November 7, 2012, the appeal board upheld Defendant Kerns-Barr's decision in a ruling that Vernon claims was "untimely." (Doc. 38, ¶ 26.) On November 5, 2012, Superintendent Varano sanctioned Vernon for the misconduct conviction by indefinitely suspending visitation between Vernon and his wife. (Doc. 20, ¶ 39; Doc. 38, ¶ 30.)

Vernon continued his efforts to challenge what he perceived to be due process violations in connection with his disciplinary proceedings. To this end, Vernon filed grievances with Department of Corrections officials, including defendants Lewis and Wetzel, but he did not obtain any relief, and he claims these officials failed to investigate his claims. (Doc. 20, ¶¶ 40-41, 50-60; Doc. 38, ¶ 32-33.)

Vernon claims that in early 2013 he was subjected to various indignities, sexual harassment, and improper treatment by prison staff in early 2013, which Vernon challenged unsuccessfully through the prison grievance process. (Doc. 38, ¶¶ 42-51.)

March 7, 2013, Vernon was summoned to another PRC hearing where he was addressed by defendants Luscavage and Miller. (Id. ¶ 52.) During this meeting, Vernon was informed that due to filing bogus grievances, he was being transferred to SCI-Greene, and was urged to discontinue filing baseless grievances and to assist corrections officers by providing information about other inmates. (Id. ¶¶ 55-62.) Vernon was transferred to SCI-Greene on March 12, 2013.[2]


With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, ___ U.S. ___ , 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside , 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn from the complaint are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc. , 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a... plaintiff can prove facts that the... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters , 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for ...

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