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Alvarez v. Ebbert

United States District Court, M.D. Pennsylvania

July 2, 2019

WARDEN DAVID J. EBBERT, et al., Defendants



         I. BACKGROUND

         This case was initiated by the filing of a complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in Civil Action No. 18-716 by pro se Plaintiffs Camden Barlow, Christopher Alvarez (“Alvarez”), Justin Haynes, Darryl Taylor, Tabarus Holland, Terrell Wilson, Tony C. Knott, Agustin Argueta, Douglas Piggee, and Nathan A. Railey, all of whom were incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”) at that time. (Doc. No. 1.) In that complaint, Plaintiffs alleged that Defendants had violated their rights under the Equal Protection Clause of the Fourteenth Amendment, their First Amendment rights to access the courts, and their First Amendment rights regarding mail. Subsequently, Doreteo Garcia, Juan Carlos Valles, and David Jackson were added as Plaintiffs. Barlow v. Ebbert, Civ. A. No. 17-716 (M.D. Pa.) (Doc. No. 28). On July 24, 2018, the Court dismissed Plaintiffs' Equal Protection claim and their access to the courts claim and directed service of their First Amendment enhanced mail restriction claim. Id. (Doc. Nos. 38, 39). On October 10, 2018, the Court granted Plaintiff Railey's motion to sever and directed that each individual Plaintiff file an amended complaint under a separate civil action number by November 9, 2018. Id. (Doc. Nos. 89, 90).

         In his amended complaint, Alvarez alleges that Defendants violated his First Amendment rights by interfering with his incoming and outgoing mail and by retaliating against him by giving him disciplinary infractions, interfering with his correspondence, refusing legal copies, and conducting cell searches. He also contends that Defendants violated his due process rights under the Fifth Amendment by not following procedures before moving him “to a separate housing block for the purpose of interference and harassment of [his] correspondence.” (Doc. No. 16.) By Order entered on December 18, 2018, the Court directed Defendants Warden David J. Ebbert (“Ebbert”), Special Investigative Services (“SIS”) Officer Buebendorf (“Buebendorf”), and Officer/Counselor Tharp (“Tharp”) to respond to the amended complaint within twenty-one (21) days, and directed service of the amended complaint upon additional Defendants Gass and John Doe. (Doc. No. 15.)[1]

         After receiving an extension of time, Defendants Ebbert, Buebendorf, Tharp, and Gass filed a motion to dismiss and/or motion for summary judgment on March 13, 2019 (Doc. No. 24) and filed their supporting materials on March 27, 2019 (Doc. Nos. 27, 28). Shortly thereafter, the Court received a notice of future change of address from Alvarez, indicating that he expected to be transferred from USP Lewisburg. (Doc. No. 30.)

         In an Order entered on April 23, 2019, the Court directed the Clerk of Court to amend Alvarez's current address on the docket and, in an abundance of caution, directed Defendants to mail new copies of their filings to Alvarez at his new address. (Doc. No. 31.) The Court also noted that Defendants' motion to dismiss and/or motion for summary judgment asserts, inter alia, that Alvarez failed to properly exhaust his administrative remedies before filing this action. Pursuant to Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), the Court informed the parties that it would consider the exhaustion issue in the context of summary judgment, and by doing so, would consider matters outside the pleadings in its role as factfinder. (Id.) Accordingly, the Court also directed Defendants to, within fourteen (14) days, file an amended or supplemental brief and statement of material facts “to further address the issue of whether Plaintiff has exhausted his administrative remedies and present any additional materials pertinent to the issue to the extent they have not already done so.” (Id.) The Court directed Alvarez to file a brief in opposition within twenty-one (21) days from the date that Defendants filed their amended or supplemental materials. (Id.) The Court directed Alvarez to “specifically address the issue of administrative exhaustion and submit materials and documents pertinent to the issue.” (Id.) The Court also directed him to “file a statement of material facts specifically responding to the numbered paragraphs in Defendants' statements.” (Id.)

         Defendants did not file supplemental materials regarding the issue of exhaustion. In an Order entered on June 3, 2019, the Court noted that Alvarez had not filed a response to Defendants' motion and directed him to do so within twenty-one (21) days. (Doc. No. 33.) Despite the Court's Order, Alvarez has filed neither a brief in opposition nor a motion for an extension of time to do so. Accordingly, the motion to dismiss and/or motion for summary judgment is ripe for resolution.


         Defendants Ebbert, Buebendorf, Tharp, and Gass have filed a motion to dismiss and/or motion for summary judgment, arguing that: (1) they were not personally involved in the alleged violations of Alvarez's constitutional rights; (2) they are entitled to qualified immunity; (3) Alvarez's claims fail on the merits; (4) Alvarez failed to exhaust his administrative remedies; (5) Alvarez lacks standing; and (6) sovereign immunity bars Alvarez's claims against them in their official capacities.

         A. Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)

         When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court's inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal, pleading requirements have shifted to a “more heightened form of pleading.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the defendant is liable for the alleged misconduct. As the Supreme Court instructed in Iqbal, “where 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 (citing Fed.R.Civ.P. 8(a)(2)).

         Accordingly, to determine the sufficiency of a complaint under Twombly and Iqbal, the United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when determining the sufficiency of a complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained in the complaint “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).

         In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed. 2004)).

         In the context of pro se prisoner litigation specifically, the court must be mindful that a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded, ” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

         B. Motion for Summary Judgment

         Federal Rule of Civil Procedure 56(a) requires the court to render summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]his standard provides that 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The Third Circuit has held that filing a motion to dismiss, or in the alternative, a motion for summary judgment is sufficient “to place the parties on notice that summary judgment might be entered.” Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996).

         Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if there is sufficient evidence with which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson, 477 U.S. at 248). A factual dispute is “material” if it might affect the outcome of the case. Anderson, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the non-moving party. Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001); White v. Westinghouse Elec, Co., 862 F.2d 56, 59 (3d Cir. 1988).

         A party seeking summary judgment always bears the initial burden of informing the court of the basis of its motion and identifying those portions of the record that it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-moving party then has the burden to “come forth with ‘affirmative evidence, beyond the allegations of the pleadings,' in support of its right to relief.” U.S. Bank, Nat'l Ass'n v. Greenfield, No. 1:12-cv-2125, 2014 WL 3908127, *2 (M.D. Pa. Aug. 11, 2014) (quoting Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004)). “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), ” a court may grant summary judgment or consider the fact undisputed for purposes of the motion. Fed.R.Civ.P. 56(e)(2-3).

         Furthermore, the Court is permitted to resolve cross-motions for summary judgment concurrently. InterBusiness Bank, N.A. v. First Nat'l Bank of Mifflintown, 318 F.Supp.2d 230, 235 (M.D. Pa. 2004) (describing concurrent resolution of cross-motions for summary judgment as “a formidable task”); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 1998). When doing so, the Court is bound to view the evidence in the light most favorable to the non-moving party with respect to each motion. Fed.R.Civ.P. 56; Raymond Proffitt Found. v. U.S. Envtl. Prot. Agency, 930 F.Supp. 1088, 1096 (E.D. Pa. 1996).


         While Alvarez was incarcerated at USP Lewisburg, he was housed in the Special Management Unit (“SMU”). (Doc. No. 27 ¶ 6.)

         A. Facts Regarding Alvarez's Claims

         As an SIS technician, Defendant Buebendorf's duties include “communicating gang affiliations, participating in gang activities, and handling and processing mail in accordance with any applicable monitoring requiring or restrictions.” (Id. ¶ 44.) He performs these duties for an “assigned caseload of inmates.” (Id. ¶ 45.) Alvarez was never assigned to Defendant Buebendorf's caseload, and Defendant Buebendorf was never responsible for handling or processing Alvarez's mail. (Id. ¶¶ 46-47.) Defendant Buebendorf also never “[oversaw] any investigations ...

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