United States District Court, E.D. Pennsylvania
I. QUIÑONES ALEJANDRO, J.
Alan Presbury (“Plaintiff”), an inmate confined
at the State Correctional Institution at Houtzdale,
Pennsylvania (“SCI Houtzdale”), filed this civil
rights action pursuant to 42 U.S.C. §1983, against
several individuals in which he alleges that these
individuals violated his Fifth, Eighth, and/or Fourteenth
Amendment rights by (1) conducting and/or participating in
disciplinary hearings that did not comply with various
administrative rules and procedures and/or meet due process
requirements and/or (2) condoning and/or acquiescing to the
unlawful retaliatory conduct or deliberate indifference of
Defendant Thomas Dohman (“Defendant Dohman”).
[ECF 17]. Plaintiff seeks declaratory and injunctive relief.
before this Court is the motion to dismiss filed by
Defendants Michael Wenerowicz, Cynthia Link, Mary Canino,
Anthony Kot, and Jay Lane, pursuant to Federal Rule of Civil
Procedure 12(b)(1) and (6), [ECF 25], and a partial motion to
dismiss filed by Defendant Dohman pursuant to Federal Rule of
Civil Procedure 12(b)(1). [ECF 29]. Plaintiff filed responses
in opposition to these motions. [ECF 26 and 30]. The issues
raised in the motions to dismiss have been fully briefed and
are now ripe for disposition. For the reasons stated herein,
Defendants' motions to dismiss are granted.
noted, in his amended complaint,  Plaintiff alleges that each
of the Defendants, employees of the state correctional
system, violated his Eighth and Fourteenth Amendment rights
by conducting and/or participating in disciplinary misconduct
hearings that did not comply with various administrative
rules or procedures or meet due process requirements and by
condoning and/or acquiescing to the unlawful retaliatory
conduct of Defendant Dohman. Defendants move to dismiss the
amended complaint and argue that: Plaintiff's §1983
claims against all Defendants in their official capacities
are barred by the Eleventh Amendment; Plaintiff's
§1983 claims against Defendants Wenerowicz and Link fail
to state a claim because Plaintiff has not alleged facts
sufficient to show their personal involvement in any
constitutional violations; and Plaintiff's §1983
claims against Defendants Kot and Canino fail to state a
claim because Plaintiff has not alleged a constitutionally
protected liberty interest. [ECF 25 and 29]. Plaintiff has
opposed the motions. [ECF 26 and 30].
ruling on Defendants' motions to dismiss, this Court must
accept as true all relevant and pertinent factual allegations
in the amended complaint and construe these facts in the
light most favorable to Plaintiff. Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citing
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)). Because Plaintiff is proceeding pro
se, this Court will construe his amended complaint
liberally. See Erickson v. Pardus, 551 U.S.
89, 94 (2007). Briefly, the salient allegations are as
At all times relevant to the claims asserted in the amended
complaint, Plaintiff was an inmate at SCI Graterford. On
September 9, 2014, a disciplinary hearing was held before
Hearing Examiner, Defendant Mary Canino (“Defendant
Canino”) regarding Misconduct B709220. (Am. Compl. at
¶11). Plaintiff was found guilty of the misconduct
charges. (Id.). On January 22, 2015, another
disciplinary hearing was held via video conference before
Hearing Examiner, Defendant Anthony Kot (“Defendant
Kot”) regarding Misconduct #B639999. (Id. at
¶13). Defendant Kot refused to allow Plaintiff to
present witnesses to testify on his behalf. (Id. at
¶14). Plaintiff was found guilty and sanctioned to sixty
days disciplinary confinement in the Restricted Housing Unit
(“RHU”). (Id. at ¶¶14-15). On
January 27, 2015, Plaintiff filed an appeal to the Program
Review Committee (“PRC”) for Misconduct #B639999.
(Id. at ¶16). The PRC upheld Defendant
Kot's findings on February 3, 2015. (Id. at
¶17). On February 5, 2015, Plaintiff filed an appeal to
Defendant Michael Wenerowicz (“Defendant
Wenerowicz”), who remanded for a rehearing.
(Id. at ¶¶18-19). On March 5, 2015, a
rehearing was held before Defendant Kot, and Plaintiff was
found guilty of two of the three charges, to wit:
guilty of possession of a contraband and presence in an
unauthorized area, and not guilty of robbery, and was
sanctioned to sixty days disciplinary confinement.
(Id. at ¶¶21-22). Plaintiff contends that
the rehearing was held beyond the seven day working time
limit. (Id. at ¶22).
Plaintiff filed an appeal to the PRC, which was denied on
March 11, 2015. (Id. at ¶23). Plaintiff then
appealed to Defendant Wenerowicz, who denied the appeal on
March 16, 2015. (Id. at ¶24). On April 29,
2015, Plaintiff allegedly received information from the
Bureau of Commissions, Elections and Legislation that
Defendants Canino and Kot were not credentialed to administer
oaths or to conduct misconduct hearings. (Id. at
On March 11, 2015, Plaintiff attended a PRC Hearing, chaired
in part by Defendants Dohman and Deputy Superintendent Jay
Lane (“Defendant Lane”). (Id. at
¶25). Defendant Dohman allegedly conditioned
Plaintiff's release from the RHU upon him becoming a
confidential informant. (Id.). Plaintiff refused.
Defendant Dohman informed Plaintiff that he would be placed
on administrative custody status pending transfer to another
institution unless Plaintiff accepted the offer to become a
confidential informant. (Id. at ¶27). This
interaction was allegedly witnessed by Defendant Lane and
Lieutenant Jeffrey Brown. On March 27, 2015, following the
expiration of Plaintiff's disciplinary custody sanction,
Defendant Dohman placed Plaintiff on administrative custody
status. (Id. at ¶¶28, 30).
On May 20, 2015, Plaintiff wrote a letter to Defendant
Wenerowicz regarding his administrative custody status and
pending transfer based on Defendant Dohman's retaliation
for Plaintiff's filing of a civil suit against Captain
Etta Williams and his refusal to become an informant.
(Id. at ¶31). On May 22, 2015, Defendant
Wenerowicz responded that he had no control over remand
hearing results, and that there was no petition to transfer
on file even though the PRC recommended transfer.
(Id. at ¶32). Plaintiff remained on
administrative custody status for seven months, and on
November 17, 2015, he was transferred to SCI Houtzdale, a
mental/transgender institution outside of his home region.
(Id. at ¶34).
On November 15, 2015, prior to his transfer, Plaintiff was
taken to the Property Room to inventory his personal property
and discovered that numerous personal property items were
missing. (Id. at ¶¶35-36). Plaintiff filed
a grievance (#601714) on December 3, 2015, complaining of the
missing property, the retaliation for not becoming a
confidential informant and the transfer. (Id. at
¶37). On December 10, 2015, the grievance was dismissed
for not complying with DOC policy DC-ADM 804. (Id.
at ¶38). On December 21, 2015, Plaintiff filed an appeal
to Defendant Link, which Defendant Link dismissed on February
16, 2016, without an investigation. (Id. at
¶¶39-40). Plaintiff filed two subsequent appeals
which were denied by the Chief Hearing Examiner's Office
and by the Secretary of Corrections. (Id. at
Since being transferred to SCI Houtzdale, Plaintiff claims
that he has suffered depression and hardship from being
separated from his father and wife as well as not being
afforded access to the same college education he received at
SCI Graterford. (Id. at ¶¶42-44).