United States District Court, Western District of Pennsylvania
Bissoon District Judge.
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE.
It is respectfully recommended that Defendants’ motion to dismiss second amended complaint [ECF No. 25] be granted in part and denied in part.
A. Relevant Procedural History
On August 23, 2013, Plaintiff Augustus Simmons, an inmate formerly incarcerated at the State Correctional Institution at Albion, Pennsylvania (“SCI-Albion”),  filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff subsequently filed an amended complaint [ECF No. 14] on December 16, 2013, and a second amended complaint on January 31, 2014 [ECF No. 25-1], the latter of which is the operative pleading in this case. Named as Defendants are three corrections officers at SCI-Albion: Captain Szelewski (“Szelewski”), C/O Williamson (“Williamson”), and C/O Silloway (“Silloway”).
Plaintiff alleges that Defendants violated his rights under the first, fourth, and fourteenth amendments to the United States Constitution when they confiscated his legal property during an investigative cell search and subsequently destroyed it. Plaintiff alleges further that Defendant Szelewski retaliated against him for exercising his constitutional right to file grievances and lawsuits.
Defendants have filed a motion to dismiss second amended complaint [ECF No. 25] arguing that Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has since filed a response in opposition to Defendants’ motion [ECF No. 30]. This matter is now ripe for consideration.
B. Relevant Factual History
Plaintiff alleges that on or about January 15, 2013, while he was absent from his cell, Defendants Silloway and Williamson conducted an investigative cell search in the presence of his cellmate (ECF No. 25-1, Second Amended Complaint, at ¶ 7). During the search, Defendant Williamson allegedly noticed a civil complaint Plaintiff had drafted against two corrections officers unrelated to the instant case, C/O Godshall (“Godshall”) and C/O Handwerk (“Handwerk”) (Id. at ¶ 8). The complaint included over ten witness affidavits accusing Handwerk of organizing an assault on Plaintiff and enlisting the assistance of rival gang members by giving them a cellphone (Id. at ¶¶ 9-10). According to Plaintiff, because Defendant Williamson is a close friend of Handwerk, he became “frustrated” and told Defendant Silloway to look for anything with the names of Handwerk or Godshall on them (Id. at ¶ 11-12).
Defendant Silloway then discovered a PCRA petition that Plaintiff had prepared, which included an affidavit discussing gang-related issues involving Plaintiff, Handwerk, and Godshall, “and a murder” (Id. at ¶¶ 13-14). According to Plaintiff, Defendant Silloway quickly gave Defendant Williamson the PCRA petition, which was over 25 pages long (Id. at ¶¶ 15-16). Defendants Silloway and Williamson then informed Defendant Szelewski of their discovery and Szelewski allegedly approved the confiscation of Plaintiff’s legal materials (Id. at ¶¶ 19-20). The alleged pretext for taking Plaintiff’s legal material, which allegedly comprised two excess boxes or approximately 12, 500 pages, was that it was gang-related (Id. at ¶¶ 19-29, 54). As a result, Plaintiff was issued a misconduct for possessing contraband (Id. at ¶ 30).
Plaintiff subsequently filed “several grievances and request slips” requesting the return of his legal material before the expiration of his legal filing deadlines (Id. at ¶ 31). Plaintiff also talked to Defendant Szelewski, explaining that he had filing deadlines to meet and that he only required the return of the legal material to meet those deadlines (Id. at ¶¶ 33, 35). Szelewski responded that he had received only about 91 pages of Plaintiff’s legal material, with some of the pages having gang-related information on them, and that there was never two boxes of legal material or any civil rights complaint or PCRA petition among the documents he received (Id. at ¶¶ 34, 36). Plaintiff then demanded the return of his legal materials by threatening to file a civil suit, in response to which Defendant Szelewski allegedly threatened to give Plaintiff more time in the RHU if he proceeds with his request for the return of his legal material (Id. at ¶¶ 37-38). When Plaintiff replied that he did not care about receiving more RHU time, Defendant Szelewski allegedly responded that he hated inmates who filed suits against “good officers” and “for that I’m sending you to the gang unit” (Id. at ¶¶ 39-41).
While Plaintiff was in the RHU, an unidentified corrections officer allegedly informed Plaintiff that he was ordered to destroy two boxes of legal material with Plaintiff’s name on them (Id. at ¶ 42). Plaintiff filed a grievance asking that his property be returned and not destroyed and that he be transferred with all of his legal material (Id. at ¶ 44). Plaintiff was subsequently transferred to SCI-Smithfield, where he was placed in the RHU; however, his legal material was not returned to him (Id. at ¶ 45-46). Plaintiff alleges that he “has now been time barred on his PCRA’s do [sic] to the Defendants’ actions by not returning all of [his] legal paper, also [he] has lose [sic] a very good law suit that would have been very victorious do [sic] to all ...