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Presbury v. Wenerowicz

United States District Court, E.D. Pennsylvania

November 5, 2017

ALAN PRESBURY Plaintiff-Pro se
v.
MICHAEL WENEROWICZ, . Defendants

          MEMORANDUM OPINION

          NITZA I. QUIÑONES ALEJANDRO, J.

         INTRODUCTION

         Plaintiff 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.

         Presently 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.

         BACKGROUND

         As noted, in his amended complaint, [1] 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].

         When 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 follows:

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 ¶33).
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 ¶41).
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).

         LEGAL ...


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