United States District Court, E.D. Pennsylvania
Quintez Talley, a prisoner proceeding pro se and
in forma pauperis, filed this civil action asserting
that the defendants violated the Americans with Disabilities
Act(ADA) and the First, Eighth and Fourteenth
Amendments. He also asserts a claim for federal
conspiracy and several state law torts. He has sued the
Pennsylvania Department of Corrections (DOC), Secretary John
Wetzel, former Superintendent Cynthia Link, Deputy
Superintendent Laura Banta, Corrections Evaluation Supervisor
George Ondrejka, Major Gina Clark, Captain David Mascellino,
Lieutenant David Jankoviak, the Unknown Extraction Team
(collectively, Commonwealth Defendants), Dr. R. Doyle, and
MHM (together, MHM Defendants).
defendants have moved to dismiss for failure to exhaust
administrative remedies pursuant to the Prison Litigation
Reform Act (PLRA) and failure to state a claim. The
Commonwealth Defendants also invoke qualified and sovereign
January 9, 2018, Talley smeared feces on the wall of his
Psychiatric Observation Cell (POC) to ward off the evil
spirits he believed to be present there. When he was told
that he was being discharged from the POC, he informed a
nurse he was suicidal. He was then recommitted.
January 10, 2018, Talley told Doyle that he was suicidal, had
been hearing voices, and wanted to sign himself into the
Mental Health Unit (MHU). Doyle responded that Talley required a
greater level of mental healthcare, but he had been directed
by Link, Banta, Ondrejka and Clark to place Talley in
restraints anytime he claimed he was suicidal. Doyle told
Talley that this practice had been implemented to deter him
from filing additional lawsuits.
evening Sergeant Mower informed Talley that Doyle was
discharging him from the POC. Talley claimed he was suicidal
and asked to speak to a psychiatrist.Mower
responded that pursuant to orders from Link, Banta and Clark,
if Talley claimed he was suicidal upon his discharge from the
POC, he would be placed in a Diversionary Treatment Unit
(DTU) camera cell in restraints. Mower left and returned
with Jankoviak and the Extraction Team. Talley was
escorted to a DTU cell, where he was placed in
attempted suicide that night. He was taken to medical triage
but recommitted to the POC by the on-call
psychiatrist. Although it was not part of the
commitment order, Talley was placed in restraints in the
POC. He complains that the POC was
“freezing cold” and that he was “virtually
unable to eat &/or properly use the facilities”
alleges that the DOC and Doyle violated his rights under the
ADA and the First, Eighth, and Fourteenth
Amendments. He claims that Doyle and MHM committed
medical malpractice when Doyle refused to allow Talley to
sign himself into the MHU in retaliation for his prior
lawsuits challenging the conditions of his
confinement. He alleges that the DOC, Wetzel, Link,
Banta, Ondrejka, Clark and Mascellino conspired to violate
his rights under the ADA and the First, Eighth, and
Fourteenth Amendments by implementing and carrying out a
policy whereby anytime he claimed he was suicidal he was
placed in restraints in retaliation for his prior
lawsuits. He claims that Jankoviak and the
Extraction Team violated his Eighth Amendment rights and
committed coercion, extortion and assault and battery when
they removed him from the POC and placed him in the DTU in
restraints rather that providing him the opportunity to speak
to mental health staff about his suicidal
to Rule 12(b)(6), a court may dismiss all or part of an
action for “failure to state a claim upon which relief
can be granted.” Fed.R.Civ.P. 12(b)(6). The complaint
must plead “factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The
plaintiff must allege facts that indicate “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. Pleading only “facts
that are ‘merely consistent with' a defendant's
liability” is insufficient and cannot survive a motion
to dismiss. Id. (quoting Twombly, 550 U.S.
conclusory recitation of the elements of a cause of action is
not sufficient. Phillips v. Cty. of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008). The plaintiff must allege facts
necessary to make out each element. Id. (quoting
Twombly, 550 U.S. at 563 n.8). In other words, the
complaint must contain facts which, if proven later, support
a conclusion that the cause of action can be established.
assessing the sufficiency of a complaint, a court must: (1)
identify the elements of the causes of action; (2) disregard
conclusory statements, leaving only factual allegations; and
(3) assuming the truth of those factual allegations,
determine whether they plausibly give rise to an entitlement
to relief. Palakovic v. Wetzel, 854 F.3d 209, 220
(3d Cir. 2017) (internal quotation marks and citations
omitted) (quoting Burtch v. Millberg Factors, Inc.,
662 F.3d 212, 221 (3d Cir. 2011)).
of Administrative Remedies
filing suit challenging prison life under any federal law, a
prisoner must exhaust all available administrative remedies.
Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir.
2018). The PLRA provides that “[n]o action shall be
brought with respect to prison conditions under [42 U.S.C.
§ 1983 or any other federal law] until administrative
remedies as available are exhausted.” 42 U.S.C. §
1997(e)(a). To properly exhaust, the prisoner must comply
with all deadlines and procedural rules. Woodford v.
Ngo, 548 U.S. 81, 90 (2006). He must pursue all
available steps in the process. Id. See also Ross v.
Blake, 136 S.Ct. 1850, 1859-60 (2016); Spruill v.
Gillis, 372 F.3d 218, 222 (3d Cir. 2004). If he fails to
do so, his action must be dismissed. Spruill, 372
F.3d at 227.
exhaustion requirement is mandatory, precluding judicial
discretion. A court may not excuse a failure to exhaust even
if there are “special circumstances.”
Ross, 136 S.Ct. at 1856. The only exception is where
an administrative remedy is not available. Section 1997e(a)
of the PLRA only requires the exhaustion of available
remedies. Stated differently, if the administrative remedies
are not available, there is nothing to exhaust.
administrative remedies are deemed unavailable where: (1) the
administrative procedure, in practice, does not afford
inmates a real chance for redress because the prison
administrators refuse or are unable to process the grievance;
(2) the procedure is so “opaque” that inmates
cannot “discern or navigate it”; and (3) the
prison administrators prevent or thwart inmates from pursuing
grievances through the process by “machination,
misrepresentation, or intimidation.” Ross, 136
S.Ct. at 1859-60.
maintains an official grievance process entitled the
“Inmate Grievance System” and is governed by
Administrative Regulation 804 (DC-ADM 804). Defendants
argue that Talley failed to exhaust administrative remedies
because he did not take any of the steps set forth in DC-ADM
804. As the Commonwealth Court has explained:
While DOC policy DC-ADM 804 provides that claims of inmate
abuse can be the subject of a grievance (DC-ADM 804
Procedures Manual § 1(B)(10)), the DOC policy governing
inmate abuse, DC-ADM 001, provides that inmates are not
required to use the prison grievance procedure to report
abuse, and may also proceed by other means, including
notifying a staff member of the abuse. DC-ADM 001 §
Parran v. Rozum, No. 239 C.D. 2012, 2013 WL 3942101,
at *3 (Pa. Commw. Ct. Jan. 4, 2013) (unreported panel
001 defines “abuse” as the use of excessive or
improper force, an unwarranted life-threatening act, or a
threat to inflict physical injury. It excludes “claims
of inadequate medical or intentionally denied medical
alleges that he made an on-camera verbal complaint to prison
personnel regarding the denial of mental health treatment and
the use of restraints. But, MHM and Dr. Doyle's denial
of mental health treatment in the MHU does not constitute
abuse.Rather, Talley claims they intentionally
denied him mental health treatment. Because Talley failed to
grieve this claim through the procedures provided by DC-ADM
804, we shall dismiss it for failure to exhaust
other hand, Talley's claim that the Commonwealth
Defendants improperly placed him in restraints constitutes an
allegation of abuse. They argue that he failed to grieve this
issue under DC-ADM 804, but they fail to explain why he was
required to do so where that policy provides that “[a]
grievance dealing with allegations of abuse shall be handled
in accordance with Department policy DC-ADM 001,
‘Inmate Abuse.'” In Parran, the
court concluded that dismissal was inappropriate at the
pleadings stage where the defendants failed “to discuss
whether the grievance procedure is mandatory for abuse
claims, in light of the language in DC-ADM 001.” 2013
WL 3942101, at *3. Because Talley exhausted the
administrative remedies available to him under DC-ADM 001, we
find dismissal for failure to exhaust administrative remedies
unwarranted as to the claims against the Commonwealth
Defendants at this time.
II of the ADA makes it unlawful for public entities,
including prisons, to discriminate against the disabled in
the provision of services, programs and activities.
Disability Rights N.J., Inc. v. Comm'r, N.J.
Dep't of Human Servs., 796 F.3d 293, 301 (3d Cir.
2015) (citing Tennessee v. Lane, 541 U.S. 509, 517
(2004)); Chisholm v. McManimon, 275 F.3d 315, 325
(3d Cir. 2001) (citing Pa. Dep't of Corr. v.
Yeskey, 524 U.S. 206 (1998)). To state an ADA claim, the
plaintiff must allege “that he is a ‘qualified
individual with a disability' [and] that he was excluded
from a service, program, or activity of a public entity . . .
because of his disability.” Disability Rights N.J.,
Inc., 796 F.3d at 301 (quoting 42 U.S.C. §
12102(1)(A)). Mental illness is a disability under the ADA.
42 U.S.C. § 12102(1)(A).
sues the DOC and Wetzel, Link, Banta, Ondrejka, Clark, and
Mascellino in their official capacities for denying him
placement in the MHU and POC because of the lawsuits he has
filed against the DOC and Wetzel. Thus, by his own
allegations, this denial was not “because of his
disability.” Disability Rights N.J., Inc., 796
F.3d at 301.
claim for retaliation under Title V of the ADA fails for a
similar reason. Talley must allege facts showing (1) he
engaged in protected activity, (2) he suffered an adverse
action after or contemporaneous with the protected activity,
and (3) a causal connection between the protected activity
and the adverse action. Fogleman v. Mercy Hosp.
Inc., 283 F.3d 561, 567-68 (3d Cir. 2002) (citing
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d
Cir.1997)). However, his allegations demonstrate a lack of a
causal connection between the protected activity and the
adverse action he suffered. According to Talley, he was
placed in restraints “because of [his] numerous civil
actions” against DOC personnel.
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The DOC, as a state agency, is not a “person”
under § 1983. Estate of Lagano v. Bergen Cty.
Prosecutor's Office, 769 F.3d 850, 847 (3d Cir.
2014). Nor do the facts pled by Talley establish a plausible
constitutional violation against any individual
state a First Amendment retaliation claim, Talley must allege
facts showing: (1) the conduct that instigated the
retaliatory action was constitutionally protected; (2) he
suffered an adverse action as a result of the prison
official's retaliatory acts; and (3) there was a causal
link between the exercise of his constitutional right and the
adverse action, that is, his constitutionally protected
conduct was a substantial or motivating factor in the state
actor's decision to take the adverse action. Rauser
v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
conceding that filing a lawsuit is constitutionally
protected, Commonwealth Defendants claim that Talley fails to
specify the lawsuits he filed. They have notice of
Talley's prior lawsuits. He has filed 15 lawsuits against
DOC personnel since 2016, as a docket search
shows. Contrary to Commonwealth Defendants'
assertion, three of these were filed prior to the events at
Defendants also argue that “the alleged retaliatory
conduct is not sufficiently adverse” because it
resulted in no lasting injury and would not “deter a
person of ordinary firmness” from exercising his
rights, as demonstrated by the fact that Talley continued to
file lawsuits. We disagree that placement in a cold
cell in restraints for 24 hours was insufficiently adverse.
As Allah v. Seiverling, cited by Commonwealth
Defendants, observes, “[g]overnment actions, which
standing alone do not violate the Constitution, may
nonetheless be constitutional torts if motivated in
substantial part by a desire to punish an individual for
exercise of a constitutional right.” 229 F.3d 220,
224-25 (3d Cir. 2000) (quotation omitted) (administrative
segregation could be sufficiently adverse). Further, if
Commonwealth Defendants were correct that the filing of a
lawsuit indicated that the retaliation was not adverse
enough, no plaintiff could ever maintain a retaliation claim.
also pleads a causal link between his prior lawsuits and his
placement in restraints. He claims that Doyle told him that
“because of [his] numerous civil actions” against
DOC personnel anytime he indicated he was suicidal he would
be denied treatment and placed in restraints “as a
deterrent.” He alleges that he was singled out for
this treatment “as punishment . . . for having been
successful in redressing previous violations by Defendant DOC
Defendants argue that they are protected by qualified
immunity. Government officials are immune from suit when
their actions do not violate “clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Tolan v. Cotton, 572
U.S. 650, 656 (2014) (citing Hope v. Pelzer, 536
U.S. 730, 739 (2002)).
evaluating a qualified immunity defense, we ask two
questions. First, do the alleged facts, viewed in a light
most favorable to the plaintiff, demonstrate that the
official's conduct violated a statutory or constitutional
right? Baloga v. Pittston Area Sch. Dist., 927 F.3d
742, 762 (3d Cir. 2019) (citing Dougherty v. Sch. Dist.
of Phila., 772 F.3d 979, 986 (3d Cir. 2014)). Second,
was the right “clearly established” at the time
of the challenged conduct? Id.
address these questions in either order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009). In other words, if
we find that the alleged right was not clearly established,
the inquiry ends and the official is entitled to qualified
immunity. To deny immunity, there must be sufficient
precedent at the time of the action to put the official on
notice that his or her conduct was prohibited.
Baloga, 927 F.3d at 762 (quoting Mammaro v. N.J.
Div. of Child Prot. & Permanency, 814 F.3d 164, 169
(3d Cir. 2016)).
relevant inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted. Saucier v. Katz, 533 U.S. 194, 202
this test, we find that the “right of prisoners to
petition the court” is clearly established.
Atkinson v. Taylor, 316 F.3d 257, 269 (3d Cir. 2003)
(citing Milhouse v. Carlson, 652 F.2d 371, 373-74
(3d Cir. 1981)). Further, “a reasonable prison official
would know that he violates this right if he retaliates
against a prisoner for filing a lawsuit.”
Atkinson, 316 F.3d at 269. ...