United States District Court, M.D. Pennsylvania
John E. Jones III, Judge
Peter Shelbo (“Shelbo” or
“Plaintiff”), a Pennsylvania state inmate who, at
all times relevant, was incarcerated at the State
Correctional Institution at Mahanoy (SCI-Mahanoy),
Frackville, Pennsylvania, initially filed this civil rights
complaint pursuant to 42 U.S.C. § 1983, on February 6,
2015, in the United States District Court for the Eastern
District of Pennsylvania. (Docs. 1-3). The matter was
received in this Court on February 25, 2015, via a
February 18, 2015 Order of Transfer. (Docs. 2, 4). Named as
Defendants are the following individuals: John Wetzel
(“Wetzel”), Secretary of the Pennsylvania
Department of Corrections (“DOC”); John Kerestes,
Superintendent of SCI-Mahanoy; Security Captain
Sorber (“Sorber”); and Jane Hinman
(“Hinman”), Grievance Coordinator and
Superintendent's Assistant at SCI-Mahanoy.
pending is Defendants'motion (Doc. 34) to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiff filed a timely opposition brief, in which he
concedes that the claims against Defendants Wetzel and Hinman
are subject to dismissal based on lack of personal
involvement in the alleged underlying unconstitutional
conduct. (Doc. 37, p. 1). He also states that he is suing
remaining Defendants Kerestes and Sorber in their individual
capacity alone, not their official capacity. And, he
“agrees” that his Fifth and Fourteenth Amendment
due process claims are subject to dismissal. Shelbo then
indicates that “[i]n light of these admissions, what
remains is the central question of this case: Did plaintiff
adequately state a claim of retaliation against the two
remaining defendants, John Kerestes and Captain
Sorber?” (Id. at 2). This claim will be
addressed in the context of Defendants' motion to dismiss
and, for the reasons set forth below, Defendants' motion
will be granted.
STANDARD OF REVIEW
rendering a decision on a motion to dismiss, a court should
not inquire “whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer
evidence to support the claims.” Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Nami v.
Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must
accept as true the factual allegations in the complaint and
draw all reasonable inferences from them in the light most
favorable to the plaintiff. Innis v. Wilson, 334 F.
App'x, 454, 456 (3d Cir. 2009) (citing Phillips v.
County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
A district court ruling on a motion to dismiss generally
“relies on the complaint, attached exhibits, and
matters of public record.” Sands v. McCormick,
502 F.3d 263, 268 (3d Cir. 2007).
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.”). “First, the factual and legal
elements of a claim should be separated.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Second, the court must then determine whether the complaint
states a plausible claim for relief, which is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 211 (citing Iqbal, 556 U.S. at 679);
see also 28 U.S.C. § 1915A(b) (directing the
court to identify cognizable claims and to dismiss any
portion of the complaint that fails to state a claim).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged -- but it has not ‘show[n]'
-- ‘that the pleader is entitled to relief.'”
Iqbal, 556 U.S. at 679; Fed.R.Civ.P. 8(a)(2).
ALLEGATIONS OF THE COMPLAINT
declaration attached to his complaint,
Shelbo avers that during an April 26, 2014 phone conversation
with a family member he discussed the following:
(1) The possibility of hiring a lawyer.
(2) Possibility of contacting the State Police to bring
charges of official oppression against Superintendent John
Kerestes at S.C.I. Mahanoy.
(3) That it was my understanding Supt. Kerestes was ran [sic]
out of S.C.I. Coal Township for having to [sic] may
grievances and law suits filed against him.
(4) That he micro manages [sic] the prison and his staff
doesn't even fart without his permission.
(5) That he does retaliate against both staff and inmates who
challenge or ...