United States District Court, Western District of Pennsylvania
LISA PUPO LENIHAN, Chief United States Magistrate Judge
Presently before the Court is Defendant’s Motion to Dismiss for Failure to State a Claim. For the reasons discussed below, the Motion will be granted.
A. Facts and Procedural Background
Plaintiff Johnnie Lee Smith (“Plaintiff” or “Smith”) filed the above-captioned Complaint in the United States District Court for the Middle District of Pennsylvania against Defendants the Pennsylvania Department of Corrections (“DOC”), and the former barbershop instructor at SCI-Greene, First Name Unknown Ketchum (“Defendant Ketchum”), in his individual and official capacities. (ECF No. 1.) United States District Judge John E. Jones III dismissed the action against the DOC on the basis of Eleventh Amendment Immunity. (ECF No. 8.) District Judge Jones further ordered that the matter be transferred to the United States District Court for the Western District of Pennsylvania because the cause of action arose at SCI-Greene, which is located in the Western District. (ECF No. 8.)
Defendant Ketchum filed this Motion to Dismiss on December 18, 2013. (ECF No. 32.) The Court ordered Plaintiff to file a Response by January 10, 2014. On January 8, 2014, Plaintiff filed a Motion to Proceed with the Instant Civil Action (ECF No. 34), and a Motion for 2nd Amendment of Civil Complaint (ECF No. 35). On January 8, 2014, due to the content of the motion, the Court ordered that the Motion to Proceed at ECF No. 34 would be construed as Plaintiff’s Response to Defendant Ketchum’s Motion to Dismiss. Further, the Court granted Plaintiff’s Motion to Amend at ECF No. 35 as it related to Plaintiff’s efforts to increase the amount of compensatory and punitive damages he seeks. Finally, on February 27, 2014, Plaintiff filed a Motion to Compel Defendants to Produce Plaintiff’s Missing Box of Legal Materials. (ECF No. 37.) On February 28, 2014, this Court denied Plaintiff’s Motion to Compel, indicating the following: “This issue was raised previously and addressed by the court at a conference on November 20, 2013. ECF No. 28. Defendant DOC was instructed to try to locate the alleged missing box and was unable to do so. ECF No. 29. This issue is closed.” (Feb. 28, 2014 text order.)
As noted by this Court on December 11, 2013, ECF Nos. 30 and 31 will be read together to comprise Plaintiff’s Amended Complaint, except as noted above regarding Plaintiff’s Second Amended Complaint requesting an increase in the amount of compensatory and punitive damages.
Plaintiff avers that he is a skilled barber and holds a license in Barber Management. (ECF No. 1 at ¶ 8.) On September 6, 2011, he was assigned to the barbershop at SCI Greene. Plaintiff alleges that he was told by Defendant Ketchum that he would not be compensated the maximum pay as required by DOC policy, but would be compensated at the beginners rate of pay. (ECF No. 1 at ¶ 9.) Plaintiff avers that he told Defendant Ketchum that he was entitled to the maximum rate, at which time Defendant Ketchum told Plaintiff to leave his office and return to his work area. (ECF No. 1 at ¶ 10.)
Following this exchange, Plaintiff spoke with other inmates who worked in the barbershop about their skill level and rate of pay. (ECF No. 11.) Plaintiff discovered that other skilled and licensed barbers working in the barbershop were not making the maximum pay rate. (ECF No. 1 at ¶ 12.) Plaintiff then approached Defendant Ketchum again to inform him of the DOC’s pay policy and that he and others were not being properly compensated. Plaintiff also asked Defendant Ketchum why he and others were not being paid the maximum rate for skilled and licensed barbers. (ECF No. 1 at ¶ 12.)
Plaintiff avers that he constantly pursued the issue, and “was labeled as being disruptive and having ongoing problems with other inmates within the barbershop by the [D]efendant Ketchum.” (ECF No. 1 at ¶ 13.) Plaintiff concludes that “as a result of Plaintiff being very verbal about the violation of the Department of Corrections policy by [D]efendant Ketchum, Plaintiff was suspended from work by [D]efendant Ketchum on September 22, 2011, pending a staffing for job removal.” (ECF No. 1 at ¶14.) Plaintiff states that had he not continued to pursue the issue, Defendant Ketchum would not have suspended him or requested a staffing for job removal. (ECF No. 1 at ¶16.)
Plaintiff avers that Defendant Ketchum’s actions in suspending Plaintiff and recommending his job removal was in retaliation for Plaintiff’s exercising his First Amendment right to free speech. (ECF No. 1 at ¶ 19.)
Plaintiff attempts to make out a claim for violation of his Fourteenth Amendment procedural due process rights for failure to provide Plaintiff with his legal materials that he had in his possession before his “questionable and abnormal” transfer to SCI Pittsburgh on August 23, 2013. (ECF No. 30 at 2, ¶ 2.)
Relatedly, Plaintiff also appears to allege an access to the courts claim in that he has not been able to “fight and pursue this civil action against the [D]efendant Ketchum in the most thorough manner available to the Plaintiff, therefore violating his right to due process.” (ECF No. 30 at 3, ¶ 7.)
Finally, Plaintiff appears to allege a conspiracy claim in light of his “questionable and abnormal” transfer to SCI Pittsburgh on August 23, 2013. Plaintiff avers that “there was a layered conspiracy between SCI Greene and SCI Pittsburgh, simply because of the underlying circumstances of his secret & unusual transfer from Greene to Pittsburgh.” (ECF No. 31 at 2, ¶ 5.) Plaintiff notes that he was transferred by himself in a DOC van in the middle of the afternoon, he was not permitted to assist in the packing of his property at SCI Greene, and he did not have his property properly inventoried at SCI Pittsburgh as required ...