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Proctor v. Burke

United States District Court, W.D. Pennsylvania

May 19, 2014

ANTHONY E. PROCTOR, Plaintiff,
v.
SGT. BURKE, C.O. HART, CAPT. BEYERS, HEARING EXAMINER P. McKISSOCK, Defendants.

MEMORANDUM OPINION AND ORDER

CYNTHIA REED EDDY, Magistrate Judge.

Presently pending is the Motion to Dismiss filed by Defendants, with brief in support (ECF Nos. 9 and 10) and Plaintiff's brief in opposition (ECF No. 12). For the reasons that follow, the Motion will be denied.[1]

Factual Background

Plaintiff, Anthony E. Proctor, is a state prisoner committed to the custody of the Pennsylvania Department of Corrections and at all times relevant to this lawsuit was incarcerated at SCI-Mercer. Plaintiff originally filed his Complaint in the Court of Common Pleas of Mercer County. Defendants removed the action to this Court and thereafter filed a Motion to Dismiss. In response, Plaintiff filed an Amended Complaint, which remains the operative complaint (ECF No. 8). Named as Defendants are the following SCI-Mercer officials and employees: Sgt. Burke, C.O. Hart, Capt. Beyers and Hearing Examiner P. McKissock.

Plaintiff alleges that Defendants Burke, Hart, and Beyers retaliated against him for invoking his "right not to incriminate himself" when they unreasonably stopped and pat searched him, issued him two misconducts reports, and placed him in the restricted housing unit ("RHU"). Plaintiff also alleges that the rulings of the hearing examiner, Defendant McKissock, were "retaliatory actions" designed to "further the retaliatory conduct' of the correction officers: Sgt. Burke & C.O. Hart and Capt. Beyers."

Plaintiff further claims that Defendants each violated his "Constitutional Rights to due process of the law and to be free from cruel and unusual punishment in regard to Department of Correction's administrative custody procedures..."

According to the Amended Complaint, approximately three (3) weeks before the incidents complained of in this lawsuit occurred, inmate Keith Davis was punched in the face and knocked on his back by an unidentified assailant while in the prison yard. A rumor was circulating that Plaintiff was the person who had punched inmate Davis. About one (1) week after the fight in the prison yard, Defendant Burke ordered Plaintiff out of his cell and asked him if he knew anything about the assault on inmate Davis. Plaintiff replied, "I don't know what you are talking about. I have no comment about Keith, but what do you see in me that makes you think that I will give you statements incriminating myself to you." Amended Complaint. Defendant Burke then ordered Plaintiff back to his cell.

About a week later, on July 27, 2011, Plaintiff attempted to enter the prison yard during an unauthorized time. He was told to return to his cell and wait until his unit was called, which he did. Upon returning to the prison yard at the appropriate time, Plaintiff was ordered to step aside for a pat search. He was ordered numerous times to stand still and keep his arms up. Plaintiff did not comply as he kept turning around and eventually put his arms down. According to the Amended Complaint, during the pat search, Office Petre said to Plaintiff, "So you like to punch people in the face?" To which Plaintiff replied, "I don't know what you are talking about. I have no comment about acts of violence." Amended Complaint. During the pat down, Plaintiff became verbally abusive and eventually was placed in handcuffs. He was taken to RHU and placed in administrative custody pending a misconduct hearing. He was charged with (i) threatening an employee, (ii) using abusive, obscene or inappropriate language to an employee, (iii) presence in an unauthorized area; and (iv) refusing to obey an order. (Misconduct B 172125.)

Later that evening, Defendant Byers came to Plaintiff's cell while in the RHU and ordered him to put his hands through the wicket so that his hands could be photographed.[2] Although Plaintiff held his hands up, he refused to let them be photographed. He subsequently was issued a misconduct for refusing to obey an order. (Misconduct B 288794.)

On August 3, 2011, Hearing Examiner McKissock conducted a misconduct hearing on Misconduct Report B 172125. At the hearing, Plaintiff stated that he felt "set up." Defendant McKissock continued the hearing so that she could view a video of the incident. On August 10, 2011, the hearing was resumed and Defendant McKissock rendered her decision, finding Plaintiff guilty of (i) threatening an employee; (ii) using abusive, obscene or inappropriate language to an employee; and (iii) refusing to obey an order. Plaintiff was found not guilty on the charge of presence in an unauthorized area. Plaintiff was sanctioned to 150 days in disciplinary custody, effective July 27, 2011.

That same day, Defendant McKissock also conducted a hearing on Plaintiff's Misconduct B 288794. At the hearing, Plaintiff stated that he did not need to testify against himself and that if Defendants wanted a picture of his hands, they needed a court order. Defendant McKissock rendered her decision, finding Plaintiff guilty and sanctioning him to 30 days in disciplinary custody, concurrent with the sanction issued for Misconduct B 172125.

Plaintiff claims that no justification existed for the pat search or the order to photograph his hands, and that these orders, as well as his misconducts, were issued in retaliation for Plaintiff "invoking his 5th Amendment right to remain silent (no comment) in response to interrogation initiated by Sgt Burke and C.O. Petre...." Amended Complaint. Plaintiff also claims that the Hearing Examiner violated "his rights to due process of law and to be free from cruel and unusual punishment where the hearing examiner attempted to manipulate the record... to mask the fact that the stop and detain' was not for a pat search but rather for retaliatory conduct against the plaintiff to further investigate him...." Amended Complaint.

In their motion to dismiss, Defendants argue that Plaintiff (i) has failed to state a claim of retaliation, (ii) has failed to state a claim under the Due Process Clause of the Fourteenth Amendment, and (iii) has failed to state an Eighth ...


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