United States District Court, W.D. Pennsylvania
STEWART CERCONE, SENIOR UNITED STATES DISTRICT JUDGE
Palmore, an individual formally confined in the Clarion
County Corrections, filed this prisoner civil rights case on
July 16, 2018.  Plaintiffs motion to proceed in
forma pauperis was granted (ECF No. 4) and the case
was referred to United States Magistrate Judge Cynthia Reed
Eddy for pretrial proceedings in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the
Local Rules of Court for Magistrate Judges.
filed a motion to dismiss seeking to have the Complaint
dismissed on the grounds that the Complaint failed to state a
claim. (ECF No. 32). Plaintiff filed a Response in
opposition. (ECF No. 43).
8, 2019, Magistrate Judge Eddy filed a Report and
Recommendation ("R&R") recommending that the
motion be granted and that the case be dismissed with
prejudice in its entirety for failure to state a claim.
Plaintiff timely filed timely objections to the R&R. (ECF
as here, timely objections have been filed, the Court is
required to "make a de novo determination of
those portions of the report or specified findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). The district court may
accept, reject, or modify the recommended disposition, as
well as receive further evidence or return the matter to the
magistrate judge with instructions.
R&R explains, in his Complaint, Plaintiff raises three
claims: (1) a violation of his First Amendment right to
petition the government; (2) a violation of his First
Amendment Right against retaliation for engaging in protected
activity; and (3) a violation of his Fourteenth Amendment Due
Process rights. The R&R recommends that the Complaint be
dismissed in its entirety. Plaintiff only objects to the
dismissal of his retaliation and due process claims.
to his first objection, Plaintiff argues that the magistrate
judge erroneously focused on the issuance of the misconduct,
when in fact, the "[t]he order to lockdown is itself
retaliatory due to its position after Plaintiff asked for a
grievance and before the supposed failure to obey the
order." Obj. at 2. The Court finds that Plaintiffs first
objection is without merit and can be summarily denied.
to the Complaint, on May 1, 2018, an incident arose between
OIC Fink and Inmate Emerick, which caused unrest among
several of the inmates on D-Block. The Grievance Reply issued
by Deputy Warden David Sprankle, attached to Plaintiffs
Complaint, provides the following relevant information:
I have received your grievance, which you have dated as May
11, 2018. I am aware of the incident in which you refer to in
your grievance. I understand that you feel that this action
was taken in retaliation towards you. I spoke with CO Carr
and she clearly advised me that she instructed the block to
lock down, prior to Fink giving you the order to lockdown.
Giving the current issues with that block over the last
several weeks, I completely understand why the block was
ordered to lock down. Inmates have been extremely disruptive
in that particular block. We are required to maintain order
throughout this facility at all times. If inmates become
argumentative and/or disruptive in anyway, the Block can be,
and/or will be locked down. For OIC Fink to issue you a
misconduct for your actions is also his right, and duty. He
believed you were making false statements against him, he
felt that you were failing to obey orders and he took action
towards this conduct. You have the right to defend yourself
at the misconduct hearing, to which you did. As I recall, you
were found not guilty of all those charges, with the
exception of "failing to obey written/verbal
orders." The board felt that you failed to obey the
order to lockdown. Regardless of whether you felt it was
retaliation or not, you must follow orders given in this
facility, no exceptions.
Exh. 3 (emphasis added) (ECF No. 29-3). As our appellate
court has observed, "refusing orders ... is typically
punishable by time in the RH U.Such a policy is necessary to
advance the legitimate penologic interest in an orderly
facility. Mincy v. Klem, 277 Fed.Appx. 239, 243 (3d
Cir. 2008). Simply put, an inmate is not entitled to refuse
an order to lock down even if an inmate disagrees with an
officer's motivation for issuing that order.
plaintiffs contention that the sequence of his request for a
grievance form and CO Fink's order to lock down is in
itself sufficient to support a showing of causation for his
retaliation claim is misplaced. The setting in which
plaintiffs claim arises involved a disturbance by other
inmates and an order by CO Carr that had been issued for the
entire block to lock down, all of which occurred right before
CO Fink also ordered plaintiff to lock down. Thus, plaintiff
was under a duty to lock down independent of CO Fink's
order to lock down and he purposefully failed to comply with
the order. It is this course of admitted conduct that 1)
cannot be displaced by a bald assertion that CO Fink had some
other subjective motivation that placed plaintiffs
noncompliance outside the bounds of the exercise of
legitimate institutional discipline and 2) precludes
plaintiff from making a plausible showing that there was a
causal connection between the adverse action and his request
for a grievance form.
second objection meets the same fate as his first.
Interestingly, through his objection, Plaintiff seems to be
attempting to reframe his claim as one challenging the
Clarion County Corrections' policy to charge inmates if
found guilty through the misconduct process. Obj. at 3. In
his response to the motion to dismiss, however, Plaintiff
specifically argued that "Defendants Hornberger and
Sprankle refused to review video footage of an incident that
could have exonerated or exculpated the Plaintiff.... Here
Plaintiff was issued information statements, however he was
hindered in reviewing / bringing forward evidence to support
his defense (block video footage)." Resp. at 12 (ECF No.
43). As Plaintiff acknowledges, he has a pending lawsuit in
this Court filed at Civil Action No. 2:18-cv-1446, which
challenges the Clarion County Corrections' policy to
charge inmates if found guilty through the misconduct
process. The issue of whether Plaintiffs procedural due
process rights were violated by this policy is the central
issue in Civil Action No. 2:18-cv-1446.
Court has reviewed the matter and concludes that the R&R
correctly analyzes the issues and makes a sound
recommendation. Accordingly, after de novo review of
the pleadings and documents in the case, together with the
Report and Recommendation, the following order is entered:
NOW, this 5th day ...