United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
Joshua Payne ("Plaintiff), a Pennsylvania state inmate
who, at all times relevant, was housed at the Camp Hill State
Correctional Institution ("SCI-Camp Hill"),
commenced this action on May 19, 2015
pursuant to 42 U.S.C. § 1983, (Doc, 1). The matter is
proceeding via an amended complaint wherein
Plaintiff names the following Defendants: Duncan, Ziegler,
Settle, McElwain, Whalen, and Bell. (Doc. 20-1). Presently
pending before the Court is Defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b) or, in the
alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56. (Doc. 26). Despite being granted
additional time to file a brief in opposition to
Defendants' dispositive motion, Plaintiff failed to
oppose the motion. (Doc. 32). Accordingly, the motion will be
deemed ripe for disposition and, for the reasons set forth
below, will be granted.
Summary Judgment Standard of Review
party moves to dismiss, but where "matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56." Fed, R. Civ. P. 12(d). Typically, when a court
converts a motion to dismiss into a motion for summary
judgment under Rule 56, notice must be given to all parties
of the court's intent to do so. Id.; Garcia v.
Newtown Twp,, 2010 WL 785808, at *3 (E.D. Pa. 2010).
However, if a motion to dismiss has been filed with an
alternative request for summary judgment, the Third Circuit
Court of Appeals has found that the alternative filing is
sufficient to "place the parties on notice that summary
judgment might be entered." Latham v. United
States, 306 F.App'x 716, 718 (3d Cir. 2009) (citing
Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir.
1996)). Accordingly, the Court will treat the Defendants'
motion as one for summary judgment.
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, ... [o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Natl Wildlife
Fed'n, 497 U.S. 871, 888 (1990). Therefore, the
non-moving party may not oppose summary judgment simply on
the basis of the pleadings, or on conclusory statements that
a factual issue exists. Anderson, 477 U.S. at 248.
"A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by citing to particular
parts of materials in the record ... or showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed.R.Civ.P.
56(c)(1)(A)-(B). In evaluating whether summary judgment
should be granted, "[t]he court need consider only the
cited materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3). "Inferences should
be drawn in the light most favorable to the non-moving party,
and where the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true." Big Apple BMW, Inc. v. BMW of N. Am.,
Inc. 974 F.2d 1358, 1363 (3d Cir.1992), cert.
Denied 507 U.S. 912 (1993).
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). If a
party has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact. When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
Id. (internal quotations, citations, and alterations
Allegations of the Amended Complaint
alleges that on March 7, 2013, his cell was searched by
Duncan and Ziegler. (Doc. 20-1, ¶ 12). Prior to the cell
search, Plaintiff alleges that Duncan told Ziegler that
Plaintiff essentially got Duncan kicked out of the special
management unit ("SMU"). (Id. at ¶
13). Duncan also allegedly told Ziegler that Plaintiff was a
prolific filer of grievances and lawsuits, and he should
throw away Plaintiffs property to deter him from filing more
grievances and lawsuits. (Id. at ¶ 14). When
the officers were preparing to search the cell, Plaintiff
alleges that he was strip searched and verbally harassed by
Duncan, (Id. at ¶¶ 16, 18, 19).
the cell search, the officers allegedly removed Plaintiffs
legal materials, religious material, and personal
photographs. (Id. at¶¶ 19, 25-28, 30).
Plaintiff claims that Duncan and Ziegler discarded his
property in retaliation for filing previous grievances and
lawsuits. (Id. at ¶¶ 13-14, 18, 23, 25-26,
28, 30, 55). Plaintiff requested a confiscation slip to
document the missing items, which was denied by the officers.
(Id. at ¶ 22). Plaintiff claims that his
property was never returned, even though he reported the
missing property to McElwain and Settle. (Id., at
¶ 24). Plaintiff alleges that the confiscation of his
legal documents hindered his ability to present evidence in
pending civil and criminal matters. (Id. at
¶¶ 25-26). Plaintiff asserts that Duncan, Ziegler,
Settle, McElwain, Whalen, and Bell violated his equal
protection rights by obstructing his ability to present his
evidence in the other cases. (Id. at ¶¶
alleges that Settle, McElwain, and Whalen conspired to
violate Plaintiffs First Amendment, due process, and equal
protection rights by assisting Duncan and Ziegler in the
destruction of his legal materials. (Id. at
¶¶ 63-65). Plaintiff further alleges that Bell
conspired to violate Plaintiffs First Amendment and due
process rights by assigning Whalen as the grievance officer,
which he claims was in violation of Pennsylvania Department
of Corrections ("DOC") policy. (Id. at
¶¶ 67, 71). He claims that Bell assigned Whalen as
the grievance officer in retaliation for Plaintiff filing
previous grievances and lawsuits. (Id. at
¶¶ 40, 72).
March 20, 2013, Plaintiff filed a grievance against Duncan,
Ziegler and Whalen "describing the retaliatory acts of
intentionally taking and destro[y]ing Plaintiffs personal
property and claims of conspiracy of these staff to cover up
their actions." (Id. at ¶ 37). Plaintiff
asserts that he also filed a grievance against McElwain and
Settle for failing to stop the actions of Duncan and Ziegler
and conspiring with them to retaliate against Plaintiff.
(Id. at ¶ 37).
seek dismissal of the amended complaint, or an entry of
summary judgment, on the following grounds: (1) the damages
claims against the Defendants in their official capacities
are barred by the Eleventh Amendment; (2) Plaintiff failed to
properly exhaust the administrative remedies prior to filing
suit; (3) the amended complaint is barred by the applicable
statute of limitations; and, (4) assuming arguendo
that Plaintiff properly exhausted his administrative remedies
and that the amended complaint is timely, he nonetheless
fails to state a plausible claim for relief. (Doc. 27). The
Court will address these claims seriatim.
Official Capacity Claims
Eleventh Amendment provides that each state is a sovereign
entity and a sovereign is not amenable to suit unless it
consents. Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); see
also Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057,
57 L.Ed.2d 1114 (1978). Thus, "the Constitution does not
provide for federal jurisdiction over suits against
nonconsenting States." Kimel v. Florida Board of
Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522
(2000). The Commonwealth of Pennsylvania has expressly
withheld its consent to be sued. See Lavia v. Pa., Dept
of Corr., 224 F.3d 190, 195 (3d Cir. 2000); Williard
v. Pennsylvania, 1996 U.S. Dist. LEXIS 8407, 8420 (E.D.
Pa. 1996) (stating it is a "well-established proposition
that the Commonwealth of Pennsylvania has not consented to
actions against it in federal court, and thus has not waived
its Eleventh Amendment immunity from lawsuits by its
citizens"). Further, claims against state officials in
their official capacities are suits against the state and
thereby barred by the Eleventh Amendment. Hafer v.
Meio, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301
is suing six employees of the Pennsylvania Department of
Corrections. To the extent that Plaintiff is suing the
Defendants in their official capacities, Defendants enjoy
Eleventh Amendment immunity from suit for acts taken in their
official capacities, and any official capacity claims will be
dismissed. See (Doc. 20-1, p. 2, ¶ 11) (stating
that each Defendant is sued in their individual and official
Exhaustion of Administrative Remedies
the Prison Litigation Reform Act of 1996 (the
"PLRA"), a prisoner is required to pursue all
avenues of relief available within the prison's grievance
system before bringing a federal civil rights action. See 42
U.S.C. § 1997e(a); Booth v. Churner, 532 U.S.
731, 741 (2001). The exhaustion requirement is mandatory,
see Williams v. Beard,482 F.3d 637, 639 (3d Cir.
2007); see also Booth, 532 U.S. at 741 (holding that
the exhaustion requirement of the PLRA applies to grievance
procedures "regardless of the relief offered through
administrative procedures"); Nyhuis v. Reno,204 F.3d 65, 67 (3d Cir, 2000) (same), and "applies to
all inmate suits about prison life, whether they involve