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Shelbo v. Wetzel

United States District Court, M.D. Pennsylvania

February 16, 2017

PETER SHELBO, Plaintiff,
JOHN WETZEL, et al., Defendants.


          Hon. John E. Jones III, Judge

         Plaintiff, 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[1] (“Sorber”); and Jane Hinman (“Hinman”), Grievance Coordinator and Superintendent's Assistant at SCI-Mahanoy.

         Presently 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.


         In 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).

         However, “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).


         In a 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 ...

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