CRAIG v. HARRY et al

Filing 61

MEMORANDUM AND/OR OPINION.. SIGNED BY DISTRICT JUDGE JOSEPH F. LEESON, JR ON 3/11/25. 3/11/25 ENTERED AND COPIES E-MAILED. (copy not mailed to pro se)(dt)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
RUBEN R. CRAIG, III,
Plaintiff,
v.
LAUREL HARRY, et al.,
Defendants.

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No. 23-cv-3608

MEMORANDUM

Joseph F. Leeson, Jr.
United States District Judge

March 11, 2025

Ruben R. Craig, III, a prisoner in state custody currently housed at SCI Benner, filed this
civil rights action pursuant to 42 U.S.C. § 1983 seeking monetary damages and injunctive relief
based principally on alleged violations of his First Amendment rights while housed at SCI
Phoenix (“SCIP”).1 The Court granted Craig leave to proceed in forma pauperis and directed
service on twenty-seven Defendants who were identified by name in the Complaint. ECF No. 5.
Presently before the Court are motions filed by all Defendants to dismiss the case pursuant to

1

Craig also seeks a declaration that his rights have been violated in the past. Declaratory
relief is unavailable to adjudicate past conduct, so Craig’s request for this declaratory relief is
improper. See Corliss v. O’Brien, 200 F. App’x 80, 84 (3d Cir. 2006) (per curiam)
(“Declaratory judgment is inappropriate solely to adjudicate past conduct” and is also not “meant
simply to proclaim that one party is liable to another.”); see also Andela v. Admin. Office of U.S.
Courts, 569 F. App’x 80, 83 (3d Cir. 2014) (per curiam) (“Declaratory judgments are meant to
define the legal rights and obligations of the parties in the anticipation of some future conduct.”).
A declaratory judgment is also not “meant simply to proclaim that one party is liable to another.”
Corliss, 200 F. App’x at 84 (per curiam); see also Taggart v. Saltz, No. 20-3574, 2021 WL
1191628, at *2 (3d Cir. Mar. 30, 2021) (per curiam) (“A declaratory judgment is available to
define the legal rights of the parties, not to adjudicate past conduct where there is no threat of
continuing harm.”).

Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motions will be granted
and the case will be dismissed in its entirety with prejudice.
I.

PROCEDURAL HISTORY
After the Defendants initially moved to dismiss the Complaint, see ECF Nos. 20, 22,

Craig filed an Amended Supplemental Complaint (“ASC”) including allegations about events
that occurred after the filing of the Complaint, including the circumstances of his transfer to SCI
Benner. ECF No. 26. The pending motions were denied and the Defendants were directed to
respond to the ASC. ECF No. 27. Presently before the Court are renewed Motions by all
Defendants to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF Nos. 32, 34.
Craig has filed a Responses to the Motions. ECF Nos. 48, 51.2
In an Order filed on December 10, 2024, see ECF No. 53, the Court directed the parties
to file supplemental briefs addressed to whether Craig’s claims under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) were rendered moot by his transfer to SCI Benner
as well as the expiration of the ban imposed on his participation in certain religious activities at
SCI Phoenix that forms the basis of his claim. The parties filed responses to the Order. ECF
Nos. 54, 55, 56, 57. Subsequently, the Court advised the parties that material outside of the
pleadings presented by the Commonwealth Defendants as part of their Motion pursuant to
Federal Rule of Civil Procedure 12, see ECF No. 32, would not be excluded and that the Court
would treat the Motion as one for summary judgment under Rule 56 to the limited extent only
that the Commonwealth argued that Craig had failed to exhaust internal prison grievance
procedures regarding his excessive force claim against Defendant Scott Emminger. The Court

2

The two docket entries are identical. Craig apparently refiled the Response believing that
prison officials did not properly forward the first version to the Clerk of Court.
2

directed the parties to present any material pertinent to the exhaustion of that claim no later than
January 31, 2025. Defendant Bauer filed a timely “Motion on Presentation of Materials
Pertinent to Claim Exhaustion,” ECF No. 59, stating that he is not in possession of any pertinent
material on the Emminger claim and that the claim is not directed to him. Id. The
Commonwealth Defendants filed a timely Notice, ECF No. 60, incorporating their prior filed
materials. Craig failed to submit any materials in response to the Order.
II.

FACTUAL ALLEGATIONS3
A.

Religious Claims

Craig primarily asserts constitutional claims and a claim under the RLUIPA, but also
raises myriad other allegations in his Complaint and ASC. He names all Defendants in their
individual and official capacities. Compl. at 2. Craig alleges that he is a practitioner of Judaism
who holds traditional religious views, adheres to the tenets of Orthodox Judaism, and is so listed
by the Pennsylvania Department of Corrections (“DOC”). ASC at 2. At SCIP he attended
Shabbat services, Jewish studies classes, and holiday observances. Id. Defendant David Dunn
Bauer is a contract chaplain hired by the DOC to minister to the Jewish congregation at SCIP.
He is allegedly a follower of Reconstructionist Judaism, which Craig asserts is a “fringe
community that practices a vaguely Jewish, ‘Jewishly-informed’ form of secular humanism.” Id.
Stated briefly, Craig does not agree with Bauer’s religious teachings, which he believes to be
cultural Marxism. See id. at 2-3. Craig asserts that Bauer harbors “animosity toward traditional,
Orthodox Judaism and its practitioners” and views them as a “hate group” that discriminates

3

The factual allegations set forth in this Memorandum are taken from the Complaint and
the ASC. The Court adopts the sequential pagination assigned to all pro se docket entries by the
CM/ECF docketing system. Grammar, spelling and punctuation errors in quotes from Craig’s
submissions are cleaned up where necessary. Where inconsistent, the Court will adapt the
spellings of Defendants’ names as they provided them in their moving papers.
3

against Reconstructionist Judaism. Id. at 3. Due to his beliefs, Bauer allegedly “failed to
demonstrate the neutrality and respect for other Jewish views required from government
officials,” demeaned Orthodox views, and alienated Orthodox members of the SCIP
congregation. Id. According to Craig, prior to Bauer taking his position, the majority of
attendees of Jewish services “held conservative/orthodox views and there was only a small
minority of ‘LGBTQ’ identifying individuals.” Id. Craig objected to Bauer’s devoting Jewish
studies sessions to Kabbalistic mysticism and to teaching it “from a queer theory perspective”
and intentionally misrepresenting metaphors contained in the Zohar, a work of Kabbalistic
literature. Id. at 4. Craig discusses his theological disagreements with Bauer at length in the
ASC. Id. at 3-4.
On December 6, 2022, Bauer allegedly attempted to impose an indefinite ban on Craig
attending religious services because Bauer was offended by a comment that Craig made during a
Shabbat service. Compl. at 2. He believes that Bauer interpreted his statement as antisemitic.
Id. Defendant Rafael Torres, Bauer’s supervisor, informed Craig that it was his policy to permit
chaplains to deny anyone religious services based on conduct that made the chaplain
uncomfortable. Id. Craig asked Torres how his policy would apply if Craig said to Bauer that he
believed that homosexuality was a sin and Bauer, whom he alleges is gay, denied him services
because of that belief, to which Torres responded that Bauer would have his permission to ban
Craig. Id. at 3. He allegedly told Craig “to keep his religion to himself,” made the sign of the
cross, and said “God bless you” in a dismissive way. Id. On two dates thereafter, Bauer
“advocate[d] for transgenderism” during “religious services/study sessions by wearing a protransgenderism badge,” leading Craig to file a grievance over what he believed to be improper
workplace activism and lack of respect for his religious convictions. Id. He also took issue with

4

Bauer’s substitution of prayer books with “Reconstructionist” versions that he asserts are not
recognized as legitimate by Orthodox believers like himself. Id. On another occasion, Bauer
directed all in attendance at a study session to introduce themselves and state their preferred
pronouns, but Craig refused to do, saying he would not play “pronoun games” because he found
it to be an affront to his sincerely held religious beliefs. Id. When he refused, Bauer told him
“it’s not a game.” Id.
Craig alleges that Torres, in his role as a grievance officer, demonstrated open hostility to
him based on his Orthodox beliefs. Id. at 3-4. He sent Torres a Request to Staff on July 15,
2023 “to have Torres correct some false claims that were made in the response to a grievance”
and request an apology from Torres for allegedly slandering him, but Torres did not respond. Id.
at 4. Rather, Torres emailed his own supervisor, Gary Olinger, and Olinger’s supervisor, Deputy
Superintendent Mandy Sipple, advising them that Craig was restricted from participating in
Shabbat and holiday observances, and study sessions for a fifteen-month period from July 15,
2023 to September 15, 2024. Id. Craig asserts it is unclear what policy or procedure permitted
Torres to make this decision. Id. Bauer and Defendant Chaplain Abdul-Lateef Sabir4 notified
Craig on July 21 of the ban and told guards on his housing unit to deny any request he made to
attend religious activities. Id. at 4-5. Bauer apparently identified the incident involving
pronouns as a disruptive action by Craig that led to his decision. Id. at 5. Craig was warned that
he would be sent to the RHU if he attempted to attend a religious program that evening. Id.
Craig also had a meeting with Torres and Defendant Chaplain Michael Comick on
August 3, 2023, during which Torres unfavorably compared his beliefs to those of Southern

This individual is also referred to as “Chaplain Lateef” on the docket and in the
Complaint.
4

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Baptists, refused to state how Craig had been disruptive, and allegedly told Craig to “just keep
your mouth shut at services. Just listen to whatever it is the Chaplain chooses to teach, and
learn.” Id. He was also allegedly told to choose a different religion to practice. Id. Defendant
CO Veronica Valdez refused to permit Craig to attend services on July 21 and July 25, 2023, and
created a flyer with his picture and the directive to deny him access to religious services. Id. at
5-6. Craig asked Defendant CO Selena Wanamaker to reposition the flyer to prevent other
inmates from viewing it, but she refused. Id. at 6. Defendant CO Ryan Beatty denied Craig
permission to attend religious service on August 18, 2023. Id. Bauer denied him access to a
study session on August 22, 2023. Id. He also responded to a Request to Staff telling Craig that
he refused to interact with or counsel him for the duration of the ban. Id. Craig asserts claims
based on these events against Defendants Olinger, Sipple, John Muick, Derek White, Charles
Hensley, Terra, Laurel Harry, Adrianna Rudolph, and a John Doe for violation of his
constitutional rights and the RLUIPA. Id. at 6-8. He seeks injunctive relief under the RLUIPA
to remove restrictions on his access to religious activities, and money damages. Id. at 8.
Craig also asserts a claim that Defendant Bauer did not conduct a celebration of
Chanukah because he did not come to work on the day of the holiday and Terra, Bissel, Olinger
and Torres failed to provide other staff to celebrate the holiday. ASC at 5. He concedes,
however, that Bauer’s presence was not needed to celebrate the holiday. Id.
B.

Access to the Law Library

Separately, Craig asserts that on August 26, 2023, CO Alison Grenon terminated his pass
to the law library because his shirt was allegedly untucked. Id. About one year earlier, on
August 13, 2022, Defendant Cara Cloninger terminated his law library session after he
questioned her about a DOC policy on access to the law library, requested a grievance form, and

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she refused to provide one. Id. Defendant David Medina removed him from the law library in
November 2022 because he did not like that Craig wrote down the number of a DOC policy and
mentioned that he saw Medina asleep. Id. at 9. Cloninger also directed that funds be taken from
Craig because he had two overdue books, even though, according to Craig, this violated DOC
policy.5 Id. at 9. On December 15, 2022, Cloninger issued a misconduct accusing Craig of
possession contraband and tampering with prison property when he tried to make a photocopy of
a Christmas – New Years holiday closing schedule for the library. Id. While DOC policy
allegedly requires the law library to open daily, Defendants Phillip Ephraim and Cloninger
closed the SCIP eastside library for extended periods over the holiday season, denying access to
Craig, who is housed on the eastside, even though the westside library remained open. Id. Craig
filed a grievance against the library staff alleging retaliation and he was, thereafter, confined to
the RHU on administrative custody. Id. at 10. He asserts that Defendants Charles Hensley,
Terra, and other members of the Program Review Committed (“PRC”) did not initially know
what the misconduct was for, but ultimately determined that he was investigated and confined to
the RHU for reading and discussing the holiday closing schedule.. Id. He claims he was held in
the RHU for the maximum time allowed without charges before being released, during which
time he could not access the law library even though he had legal deadlines pending, as
punishment for misusing the law library. Id. He also complains that the window in his cell was
opaque causing sensory deprivation. Id. at 11. He asserts First, Eighth, and Fourteenth
Amendment violations based on these allegations. Id.

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While he alleges the overdue fee violated a DOC policy, Craig does not state how his
constitutional rights were thereby violated.
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C.

Use of Oleoresin Capsicum Spray

Craig also alleges he was “attacked with [a] chemical weapon” wielded by Defendant
Scott Emminger on September 18, 2021 because he was sprayed with oleoresin capsicum (“OC”)
spray. He asserts that he was alone in his cell but “would not speak” and Emminger attacked
him through the wicket in the cell door. Id. He also recounts that on November 20, 2022, CO
Anthony Hamilton threatened to use OC spray when he requested to see a copy of a DOC policy.
Hamilton’s supervisor, CO Andrew Rodriguez, was present but did not intervene. Id. He was
also exposed to OC spray when CO Green used the substance on another inmate on August 25,
2023.6 Id. at 12. Craig alleges that these uses of OC spray on these occasions violated his rights.
Id.
D.

Denial of Books

Craig claims in his Complaint that his due process rights were violated because the prison
mailroom refused to deliver two books he had ordered, “Mechatronics For the Evil Genius” and
“Complete Guide to Sniping.” Id. at 12; ASC at 11. Defendant Mailroom Supervisor Long
falsified an Incoming Publication Review Committee (“IPRC”) denial form for the first book,
which Craig claims is a middle school/high school level book about robotics. Compl. at 12.
Long told Craig that the IPRC consisted of himself, CO Dusch, and Librarian Ephriam, but
Ephriam allegedly told Craig he had not been on the IPRC for five years and had no knowledge
of the book. Id. He claims another book he requested, “Lighting the Nude,” is on a Denied
Publication List, he was not approved to receive it, and the book was confiscated, violating his
First Amendment and due process rights, but he fails to attribute this to any particular Defendant.

Craig does not list “CO Green” in the caption of the Complaint or the ASC or in the list
of Defendants, and provides no other identification for this person. Nonetheless, the Clerk will
be directed to add “CO Green” as a named Defendant.
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Id. Also without attribution, Craig claims to have been denied no less than twelve books and
magazines. Id. at 12-13.
E.

Destruction of Sacred Texts

Craig adds additional religion claims in the ASC. He alleges that he had a collection of
what he describes to be sacred texts that were no longer usable and he gave them to Bauer to
dispose of in a manner conforming with Orthodox Jewish teachings, which he agreed to do.
ASC at 4. Two weeks later, Craig tried to give Bauer additional materials for disposal but he
refused to take them stating, “I don’t want your trash. Throw away your own trash,” which
Craig alleges denied him a religious accommodation. Id. Craig showed him a copy of DC-ADM
819, a policy he asserts applies to disposal of religious materials, but Bauer refused to give Craig
information about how he disposed of the first group of materials, leading him to believe that
they were not properly handled. Id. at 4-5.
Craig spoke with Defendant Torres and asked him to dispose of the materials properly,
but he refused to do so. Id. at 5. Torres told him that DC-ADM 819 only applies to DOCpurchased items, and that he, Torres, “gets to determine what is and is not a sacred text to an
Orthodox Jew.” Id. Defendant Olinger failed to correct Defendant Torres’s alleged violation.7 Id.
F.

Placement in the RHU

After the named Defendants were notified that Craig had filed this action, he again raised
the issue of disposal of sacred texts with Bauer. Id. at 6. While unclear how this relates to the
disposal of the sacred texts, Craig appears to allege that he received a misconduct accusing him

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In a separate part of the ASC, Craig alleges also that new uniforms worn by correctional
officers that affix an American flag patch to the sleeve, violate his religious beliefs because he
deems the American flag to be a sacred object requiring specific disposal methods just like
religious articles. ASC at 10.
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of using a homophobic slur concerning his interaction with Bauer. Id. at 6-7. He claims the
misconduct report was dismissed with prejudice following a hearing. Id. at 7. Nonetheless, he
was taken to the RHU later that day, allegedly at Bauer’s “behest” and that Bauer requested that
he be transferred to a different prison. Id. The Program Review Committee (“PRC”), consisting
of Defendants Hensley, Kertes, Muick, and others, allegedly denied him due process by ordering
him transferred to SCI Benner, even though he concedes that he received a hearing prior to the
action. Id. at 7-8. He asserts that Bauer retaliated against him for asserting his right to due
process in the misconduct proceeding and for asserting his free exercise right. Id. at 7. He also
complains that paperwork was not filled out and approved by a shift commander before he was
taken from his housing unit to the RHU. Id. at 8. While in the RHU from February 2 to 14,
2024, he was allegedly exposed to raw sewage leaking into his cell through cracks in the wall,
RHU staff acknowledged knowing about the problem, he had to eat his meals in these
conditions, and his complaints about this were ignored. Id. at 8-9. He asserts that the staff in the
RHU are supervised by Defendant Taylor.8 Id. at 9. He also was not permitted access to his
personal property, including legal materials, while he was housed in the RHU. Id. at 9. He
asserts that he has been denied access to the courts and the prison grievance process because he
did not have access to his legal materials or the law library, the denial of his religious items
violated RLUIPA, and the denial of other items violated his equal protection rights and the
Eighth Amendment. Id. at 9-10.

There is no Defendant named “Taylor” listed in the Complaint. Since Craig mentions
this person, the Clerk will be directed to add Taylor as a Defendant.
8

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III.

STANDARD OF REVIEW
“A 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint.”

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss under Rule
12(b)(6), the Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.)
“Although the plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted unlawfully.” Connelly
v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations
omitted). It is the defendant’s burden to show that a complaint fails to state a claim. See Hedges
v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (explaining that on a Rule 12(b)(6) motion to
dismiss, the “defendant bears the burden of showing that no claim has been presented”).
In resolving a Rule 12(b)(6) motion, “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). To determine whether a complaint filed by a pro se litigant states a claim, a
court must accept the facts alleged as true, draw all reasonable inferences in favor of the plaintiff,
and “ask only whether that complaint, liberally construed contains facts sufficient to state a
plausible . . . claim.” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (cleaned up)

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abrogation on other grounds recognized in Fisher v. Hollingsworth, 115 F.4th 197 (3d Cir.
2024); see also Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (pro se filings are construed
liberally). “To 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 Court has provided the parties notice that matters outside of the pleadings submitted
by the Commonwealth Defendants will be considered limited to the excessive force claim
asserted against Defendant Emminger, converting the motion to dismiss that claim to one filed
pursuant to Rule 56. A grant of summary judgment under Rule 56 is appropriate where “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). The moving party bears the burden of
demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). If the moving party has demonstrated
the absence of a genuine dispute of material fact, the nonmovant must then “come forward with
specific facts showing that there is a genuine issue for trial.” Id. at 587 (internal quotation marks
omitted). If the nonmoving party fails to make a sufficient showing on an essential element of its
case with respect to which it has the burden of proof, the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). During this process, the
Court will “draw all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).

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However, in order to defeat a motion for summary judgment, the nonmoving party must
“do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita, 475 U.S. at 586–87; see also Podobnik v. United States Postal Serv., 409 F.3d 584,
594 (3d Cir. 2005) (party opposing summary judgment “must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue”)
(internal quotation marks and citation omitted). 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) (emphasis in original). Facts that could alter
the outcome are “material,” and a factual dispute is genuine only where “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. “If the
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Id. at 249-50 (internal citations omitted). A party asserting that a fact cannot be – or,
alternatively, is – genuinely disputed must support the assertion either by citing to “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for the purposes of the
motion only), admissions, interrogatory answers, or other materials”; or by “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A),(B).
IV.

DISCUSSION
A.

Official Capacity Claims Against Commonwealth Employees

Craig has named each Defendant in his or her official capacity, asserts that each
Defendant other than Bauer is employed by the Commonwealth of Pennsylvania, and he seeks

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money damages on his constitutional claims. The Eleventh Amendment bars suits against a state
and its agencies in federal court that seek monetary damages. See Pennhurst State Sch. and
Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984); A.W. v. Jersey City Public Schs., 341 F.3d
234, 238 (3d Cir. 2003). Suits against state officials acting in their official capacities are really
suits against the employing government agency, and as such, are also barred by the Eleventh
Amendment. A.W., 341 F.3d at 238; see also Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). Additionally, the United States Court of
Appeals for the Third Circuit has held that, where a claim is filed against state officials who were
not directly involved in the activities that caused the alleged constitutional violation, but are
instead named as defendants because of their positions in state government, they are deemed to
be sued in their official capacities and thus entitled to Eleventh Amendment immunity. Downey
v. Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d Cir. 2020). As the Commonwealth has not waived
its Eleventh Amendment immunity for lawsuits filed in federal court, see 42 Pa.C.S. § 8521, it
and its departments, as well as their officials sued in their official capacities, are immune from
suits filed in federal court that seek damages.
B.

Claims Against Uninvolved Individuals and Unattributed Claims

While Craig lists as Defendants Patrick Judge, Michael Palmerchuck, and Jacob Smith as
Defendants, he asserts no substantive allegations against these individuals.9 Also, he alleges he
was denied unspecified non-religious books and magazines because they were placed on a

9

Smith is identified as a Unit Manager who is assigned to the RHU. Compl. at 2, 6, 8.
The only other allegation about Smith is he was the Unit Manager at a time that Craig was
denied access to the law library. Id. at 10. But there is no allegation that Smith personally acted
to deny Craig access to the law library. Judge and Palmerchuck are identified as “low level
management.” Id. at 1. There are no substantive allegations concerning Judge or Palmerchuck.
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Denied Publication List or otherwise, but he fails to attribute the denial of these unspecified
books to any particular Defendant.
“A defendant in a civil rights action must have personal involvement in the alleged
wrongs” to be liable. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). See also Iqbal,
556 U.S. at 676 (explaining that “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits,
a plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution”); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir.
2020) (“Personal involvement requires particular ‘allegations of personal direction or of actual
knowledge and acquiescence.’” (quoting Rode, 845 F.2d at 1207)); Jutrowski v. Twp. of
Riverdale, 904 F.3d 280, 290 (3d Cir. 2018) (“Each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.”) (quoting Iqbal, 556 U.S. at 677)
(emphasis in original). Because Craig does not allege how each of these individuals was
personally involved in a violation of his constitutional rights, they will be dismissed with
prejudice. Claims not attributed to a named Defendant involving unspecified books and
magazines will also be dismissed for lack of personal involvement by a named Defendant.
C.

First Amendment Claims

Craig asserts Free Exercise Clause claims against Bauer because Bauer barred him from
participating in Shabbat services, religious study classes, and holiday celebrations for fifteen
months; introduced Reconstructionist prayer books, advocated transgenderism, and pronouns
that did not conform with Craig’s religious views; and failed to be present to conduct Chanukah
services. He asserts claims against Torres because, as Bauer’s supervisor, it was his policy to
permit chaplains to deny anyone religious services based on conduct that made the chaplain
uncomfortable, and because he notified his own supervisors of Craig’s ban from participating in

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religious activities; he made the sign of the cross in Craig’s presence, compared him to a
Southern Baptist, told him to keep his religion to himself, and spoke to him dismissively when
Craig confronted him about the ban; and in his role as a grievance officer, demonstrated open
hostility to him based on his Orthodox beliefs. Chaplain Sabir allegedly violated Craig’s rights
because he notified Craig on July 21 of his ban and told guards on his housing unit to deny any
request he made to attend religious activities. Chaplain Comick is named because he was present
when Torres disrespected Craig’s religious beliefs. He also brings claims against Defendant
Valdez for allegedly refusing to permit Craig to attend services on July 21 and July 25, 2023, and
creating a flyer with his picture and the directive to deny him access to religious services;
Defendant Wanamaker for refusing to move where the flyer was posted; and Defendant Beatty
for denying Craig permission to attend religious service on August 18, 2023.10
1.

The Turner Test

The Supreme Court has recognized that the First Amendment guarantees that all
prisoners must be afforded reasonable opportunities to exercise their religious freedom. Cruz v.
Beto, 405 U.S. 319, 322 n.2 (1972); see also O’Lone v. Shabazz, 482 U.S. 342, 348 (1987)
(“Inmates clearly retain protections afforded by the First Amendment, . . . including its directive
that no law shall prohibit the free exercise of religion.” (citations omitted)). Specific to the
prison context, although inmates retain certain protections afforded by the First Amendment,
“lawful incarceration brings about the necessary withdrawal or limitation of many privileges and
rights, a retraction justified by the considerations underlying our penal system.” O’Lone, 482
U.S. at 348 (quotations omitted); see also DeHart v. Horn, 227 F.3d 47, 50-51 (3d Cir. 2000)

10

Craig does not allege the personal involvement of any other named Defendant in
connection to his First Amendment claims. They will, accordingly, be dismissed against the
other Defendants. See Rode, 845 F.2d at 1207.
16

(“[T]he fact of incarceration and the valid penological objectives of deterrence of crime,
rehabilitation of prisoners, and institutional security justify limitations on the exercise of
constitutional rights by inmates.” (citing Pell v. Procunier, 417 U.S. 817, 822-23 (1974))).
While the federal courts must take cognizance of valid constitutional claims of prison inmates,
the Supreme Court repeatedly has cautioned that the task of prison administration has been
committed to the responsibility of the legislative and executive branches of government and
federal courts should be reluctant to second-guess these authorities. See, e.g., Turner v. Safley,
482 U.S. 78, 84 (1987); O’Lone, 482 U.S. at 353. Only beliefs that are (1) sincerely held, and
(2) religious in nature are entitled to constitutional protection. See DeHart, 227 F.3d at 51. If a
prisoner-plaintiff alleges plausibly that he has a sincerely held religious belief, he must also
allege plausibly that the challenged prison practice or policy that allegedly infringes on his
religious belief is not reasonably related to penological interests under the factors set forth in
Turner. DeHart, 227 F.3d at 51.
In Turner, the Supreme Court held that a prison regulation that “impinges on inmates’
constitutional rights” is “valid if it is reasonably related to legitimate penological interests.” Id.,
482 U.S. at 89. A four-part test applies for assessing the overall reasonableness of the
regulation: (1) whether the regulation or practice bears a “valid, rational connection” to a
legitimate and neutral governmental objective; (2) whether prisoners have alternative ways of
exercising the circumscribed right; (3) “[what] impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison
resources generally”; and (4) whether alternatives exist that fully accommodate the prisoner’s
rights at de minimis cost to valid penological interests. Id. at 89-90. The absence of de minimis
cost alternatives can support the reasonableness of the action taken by prison officials. Id. at 91.

17

The United States Court of Appeals for the Third Circuit has noted that the first factor is
particularly important as “it tends to encompass the remaining factors, and some of its criteria are
apparently necessary conditions.” Waterman v. Farmer, 183 F.3d 208, 214 (3d Cir. 1999)
(quoting Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998)).
The Commonwealth Defendants and Bauer argue that Craig’s constitutional claims must
be dismissed citing Turner and Allah v. Al-Hafeez, 208 F. Supp. 2d 520 (E.D. Pa. 2002). See
Commonwealth Defs’ Mem., ECF No. 32, at 11-12; Bauer Mem., ECF No. 34, at 7. In Allah,
the court dismissed Free Exercise claims by an inmate who disagreed with a prison chaplain’s
teachings stating that, while the inmate did not raise his voice or stand when he interrupted a
service, in a prison setting “avoiding conflict is critical to maintaining order as well as a safe
environment.” 208 F. Supp. 2d at 529. The prisoner was barred from religious services “until
further notice,” although prison officials did permit him to attend “meetings” as well as services
“as long as he is able to conduct himself in accordance with our rules during Services.” Id. at
523. The decision to bar the prisoner from religious services was held to be rationally related to
the governmental interest in maintaining order and security inside the prison. Id. at 529.
The Commonwealth Defendants and Bauer argue that, similar to the situation in Allah,
they had a legitimate and neutral governmental objective in barring Craig from attending group
religious activities because of the numerous instances when he disrupted Defendant Bauer during
the course of services and study sessions. They cite the need to avoid conflict to support Craig’s
prohibition from attending group religious activities. See ECF No. 32 at 12-13; ECF No. 34 at 23, 11. They contend that the second Turner factor also supports the ban since Craig was not
prevented from practicing his religion in alternative ways, such as praying and studying with
other inmates who share his Orthodox Judaism outside of Defendant Bauer’s Reconstructionist

18

services. See ECF No. 32 at 12-13; ECF No. 34 at 9. On the third Turner factor, they again look
to Allah, where the court held that if an inmate’s behavior created a security concern requiring
prison officials to expend resources to monitor the religious service more closely, the effect on
prison staff and inmates would favor the ban. Id. (citing Allah, 208 F. Supp. 2d at 530). They
argue that, had Craig been permitted to continue to attend Bauer’s services and study sessions,
additional prison resources have had to be expended to monitor him. Finally, on the fourth
Turner factor, the Commonwealth Defendants argue that there was no readily available de
minimis cost alternative to Craig’s ban. While Craig sought to have the ban lifted and made a
Request to Staff that he be provided with individual chaplaincy services from Bauer (Compl. at
6), they argue that this alternative would have created renewed disagreements with Bauer and
required officials to expend additional resources to provide security and maintain order and
safety. Id. at 14.
Craig responds that the ban on his attending group religious activities cannot be
constitutional since DOC’s policy, specifically DC-ADM 819 Religious Activities Policy and
Procedures Manual, states that it is DOC policy to accommodate inmates’ religious beliefs
“consistent with the security needs and orderly administration of the facility by providing for the
orderly management of religious opportunities for all inmates.” Pl. Resp., ECF No. 48, at 49-50
(quoting DC-ADM 819); see also DC-ADM 819, “Religious Activities,” Pa. Department of
Corrections Policy and Procedures Manual (effective December 13, 2023),
https://perma.cc/TU3U-9CHV (last visited March 10, 2025).11 He asserts that the

DC-ADM 819 provides: “It is the policy of the Department to accommodate inmates’
religious beliefs consistent with the security needs and orderly administration of the facility by
providing for the orderly management of religious opportunities for all inmates under the
Department’s jurisdiction.” Id. at § III. It provides further that “This policy does not create
rights in any person nor should it be interpreted or applied in such a manner as to abridge the
11

19

Commonwealth Defendants “attempt to utilize [Turner] in a novel and unconvincing manner,
expanding its findings to the point of utter absurdity.” Pl. Resp. at 48. Regarding the first
Turner factor, he argues that “it would be irrational to assume that (1) PADOC policies are
expertly drafted to facilitate and effectuate [ ] legitimate penological interests, while at the same
time (2) PADOC has some sort of legitimate penological interests best served by allowing
employees to arbitrarily and capriciously violated the very policies that we are to assume best
embodies PADOC’s legitimate interests.” Id. at 49. Regarding the fourth Turner factor, de
minimis cost alternatives, Craig argues in circular fashion that, if he can point to an alternative
that accommodates his rights at de minimis cost, “a court may consider that ready alternative as
evidence that the regulation does not satisfy the reasonable relationship standard. So should
there be [a de minimis cost alternative] that would both satisfy the legitimate penological
interests of PADOC and preserve/protect the Constitutional rights of Ruben Craig . . . then
defendants are required to adopt such an alternative, and the fact that they did not proves that
their impinging conduct lacks a reasonable relationship to any legitimate penological interests of
the PADOC.”12 Id. at 50.
2.

Ban on Participation in Group Religious Events

The Court concludes that Craig’s free exercise claims based on his ban from participating
in Shabbat services, religious study classes, and holiday celebrations for fifteen months are not
plausible under the Turner test against the Commonwealth Defendants and Bauer. Craig

rights of any individual. This policy should be interpreted to have sufficient flexibility to be
consistent with law and to permit the accomplishment of the purpose(s) of the policies of the
Department of Corrections.” Id. at § VI.
12

While the Commonwealth Defendants appear to assert that Craig requested individual
chaplaincy services, he does not mention this alternative in his argument.

20

admittedly disrupted Defendant Bauer during the course of services and study sessions over
differences in religious teachings Compl. at 2; ASC at 3-4; ECF 32 at 12; ECF 34 at 2, 9. Craig
concedes that he disagrees with Defendant Bauer’s teachings on issues of faith, and that he made
comments about Bauer’s discussion of transgenderism and queer theory during two study
sessions, objected to his use of Reconstructionist prayerbooks, would not participate in a
discussion of preferred pronouns during a session, and interrupted a Shabbat service in a manner
that Bauer found offensive and interpreted as antisemitic, leading to the imposition of the ban.
Because Defendants’ ban on Craig’s attending organized religious activities had a valid, rational
connection to their legitimate and neutral objective of avoiding conflict and disruption during
Bauer’s organized religious activities, the free exercise claim is not plausible. Contrary to
Craig’s argument that the Commonwealth Defendants violated DC-ADM 819 in imposing the
ban, the policy charges prison officials with providing religious services to all inmates
“consistent with the security needs and orderly administration of the facility” through the
“orderly management of religious opportunities for all inmates.” Id. Their decision to ban Craig
enforced this policy to avoid Craig’s conceded disrupting of other inmates’ ability to practice
their faith.
Prison officials also argue that Craig has alternative ways of exercising his faith through
private prayer and unorganized activities that do not involve Bauer. Craig responds that denial
of communal prayer and one-on-one chaplaincy services meant that Bauer foreclosed all nonsolitary forms of worship, “constituting a substantial burden indeed, for an adherent of a religion
that requires group study and prayer, and which even has certain standard prayers – like
Mourner’s Kaddish – that may only be performed in groups.” Resp. at 9. This allegation is not

21

in the Complaint; also, Craig’s argument misstates the nature of the ban since performing
Kaddish or other prayers outside of Bauer’s organized activities are not included in the ban.
Prison officials also argue, with no response by Craig, that his disruptions of Bauer’s
activities impacted prison resources, and that an alternative in the form of individual chaplaincy
services could not be provided at de minimis cost since Bauer was the only Jewish chaplain at
SCIP and his fraught relationship with Bauer would only continue in one-on-one sessions.
While Craig addresses the fourth Turner factor, he fails to suggest that a de minimis alternative
to the ban existed.
Accordingly, the Motion to Dismiss the Free Exercise Clause claims will be granted as
to Defendants Bauer, Sabir, Valdez, and Beatty, all of whom were alleged to have violated
Craig’s rights by denying him access to religious services; and as to Defendant Torres based
upon his alleged role in creating or applying a policy to permit chaplains to deny religious
services. Allen v. Eckard, 804 F. App’x 123, 127 (3d Cir. 2020) (per curiam) (concluding that a
supervisory liability claim was meritless where the plaintiff failed to make a plausible showing
of an underlying constitutional violation).
3.

Other Claims Against Torres and Chaplain Comick

Additionally, to the extent Craig asserts a free exercise claim against Torres because he
demonstrated hostility, made the sign of the cross in Craig’s presence, compared him to a
Southern Baptist, told him to keep his religion to himself, and spoke to him dismissively when
Craig confronted him about the ban, the claim is dismissed. Verbal abuse or taunts, without
more, are insufficient to violate the Constitution. See Ayala v. Terhune, 195 F. App’x 87, 92 (3d
Cir. 2006) (per curiam) (“[A]llegations of verbal abuse, no matter how deplorable, do not
present actionable claims under § 1983.”); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000)

22

(“Standing alone, simple verbal harassment does not constitute cruel and unusual punishment,
deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the
laws.”). Also, to the extent Craig asserts a claim against Torres based on his role as a grievance
officer, the claim is not plausible because prisoners have no constitutional right to a grievance
process. Gerholt v. Wetzel, 858 F. App’x 32, 34 (3d Cir. 2021) (per curiam) (citing Massey v.
Helman, 259 F.3d 641, 647 (7th Cir. 2001) and Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991)
(per curiam)). Finally, (1) the claim against Chaplain Comick because he was merely present
when Torres allegedly disrespected Craig’s religious beliefs, and (2) the claim against Defendant
Wanamaker for refusing to move where a flyer was posted, will be dismissed since they do not
allege a violation of Craig’s free exercise rights or otherwise state a plausible constitutional
claim.
4.

Failure to Conduct Chanukah Service

Bauer also seeks dismissal of Craig’s Free Exercise Clause claim based on Bauer not
personally conducting Chanukah services. ECF No. 34 at 7. This claim will be dismissed. The
United States Supreme Court has held that “[a] special chapel or place of worship need not be
provided for every faith regardless of size; nor must a chaplain, priest, or minister be provided
without regard to the extent of the demand.” Cruz, 405 U.S. at 322 n. 2 (per curiam); see also
Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970) (holding that there is no affirmative duty to
provide an inmate with a clergyman of his choice); Garraway v. Lappin, 490 F. App’x 440, 445
(3d Cir. 2012) (same); Weir v. Nix, 114 F.3d 817, 820-21 (8th Cir. 1997) (“The Constitution does
not, however, require that a religious advisor be provided for every sect in a penitentiary. Nor is
a prisoner entitled to insist on a religious advisor whose beliefs are completely congruent with
[her] own.” (citations omitted)). Because Craig had no First Amendment right to have a

23

clergyman provided, he cannot base a claim on Bauer’s failure to conduct a particular holiday
service. Moreover, he concedes that Bauer’s presence was not needed to celebrate the holiday.
Thus, he cannot plausibly claim that his free exercise rights were infringed by Bauer’s absence
on Chanukah or the failure of other Defendants to provide substitute staff on that holiday.
5.

Claims Against Bauer Based on Doctrinal Disagreements

Craig may also be asserting an Establishment Clause claim based on his assertions that
Bauer introduced Reconstructionist prayer books, and advocated transgenderism and the use of
pronouns that did not conform with Craig’s religious views. See Resp. at 10 (“The defendants’
actions denied Mr. Craig a tolerant, neutral environment to exercise the free expression of his
religious beliefs, subjecting him to bias and open hostility due to said beliefs.”) (citing Compl.
Count 2 (alleging that Defendants Torres’s policy to permit his chaplains to deny anyone
religious services) and 10 (alleging that Torres made the sign of the cross and demonstrated
hostility toward Orthodox Jewish views), ECF No. 2 at 2-3 5); see also id. at 63 (challenging
whether that the Defendants’ need to prevent conflict “is so critical that a chaplain can and must
be permitted to define what is orthodox and permissible for one to believe, and he/she must be
able to take action against any deviation from this norm.”). This claim is also dismissed.
While Bauer cites to the test of Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)
(holding that state action must satisfy three conditions to avoid violating the Establishment
Clause: it “must have a secular legislative purpose,” “its principal or primary effect must be one
that neither advances nor inhibits religion,” and it “must not foster ‘an excessive government
entanglement with religion’”), see ECF No. 34-1 at 11, which was formerly the central
framework for Establishment Clause challenges, it is no longer the applicable test in the prison
context or otherwise, since the Supreme Court has “instructed that the Establishment Clause

24

must [instead] be interpreted by ‘reference to historical practices and understandings.’” See
Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 535 (2022) (quoting Town of Greece v.
Galloway, 572 U.S. 565, 576 (2014)). Under either test, any Establishment Clause claim based
on Bauer’s introduction of Reconstructionist prayer books, and discussing transgenderism and
the use of pronouns is not plausible. Craig does not allege that the use of certain texts or the
discussion of certain topics during services and study sessions violated historic institutional
practices of providing religious services to prisoners. Neither could the use of particular texts
and discussion of particular topics in group settings to, as Craig alleges, “define what is orthodox
and permissible for one to believe,” be the basis of an Establishment Clause claim since there is
no suggestion that Craig was forced to attend Bauer’s sessions, accept his teachings as
Orthodoxy, or prohibited from individually practicing his religion according to his own precepts.
Turner, 482 U.S. at 89-90; see e.g., Bobko v. Lavan, 157 F. App’x 516, 518 (3d Cir. 2005) (per
curiam) (“The government violates the First Amendment’s Establishment Clause when it
requires a prisoner to participate in a drug or alcohol rehabilitation program with a religious
component.”).
6.

Disposal Of Sacred Texts

Craig’s claim in the ASC concerning Bauer’s allegedly improper disposal of sacred texts,
see ADC at 5, is also dismissed. Craig’s clam is based on Section 3A, ¶ 12c of DC-ADM 819,
which provides that sacred texts that are no longer usable “shall be given to the FCPD/Faith
Group Leader for appropriate disposal as deemed acceptable by that faith tradition.” See DCADM 819. Accepting as true that Bauer or other prison officials failed to follow this regulation,

25

that failure does not state a plausible constitutional claim.13 “As many courts have held,
corrections officials cannot be held liable for failing to conform to procedures outlined in inmate
handbooks and other internal prison procedures.” Bowman v. Wetzel, No. 20-135, 2020 WL
3258946, at *6 (W.D. Pa. June 16, 2020) (citing cases); see also Curry v. McCann, No. 18-5444,
2019 WL 77441, at *7 (E.D. Pa. Jan. 2, 2019) (“Even if Curry was asserting a claim against C.O.
McCann based on this questioning, ‘a prison’s departure from the policies and procedures
outlined in the facility’s handbook does not, in and of itself, amount to a constitutional violation
actionable under § 1983.’”) (citing Laufgas v. Speziale, No. 04-1697, 2006 WL 2528009, at *7
n.7 (D.N.J. Aug. 31, 2006)).
The claim is also not plausible under the Turner test. While Craig appears to assert that
any material that contains the four-letter name of his deity is a “sacred text,” he does not
otherwise describe the materials, particularly whether they were officially sanctioned materials.
Notably, DC-ADM 819 provides that “homemade or other unauthorized sacred objects are not
permitted and shall be confiscated.” It also provides, alternatively, that an inmate “can elect to
send the unauthorized object(s) home at his/her expense or the sacred object(s) will be
destroyed.” DC-ADM 819, § 3A1, ¶ J. Craig does not allege that a clergy member was required
to dispose of the material or why he could not utilize the alternate disposal method of sending the
material home in order to observe his religious obligation.

13

Craig allegation about American flag patches on uniforms also fails to allege a plausible
claim since he does not allege that they are his objects and his belief that they may be improperly
disposed is mere speculation.
26

D.

Denial of Secular Books
1.

Due Process Claims

Craig alleges a due process violation based on the prison mailroom refusing to deliver
two books he had ordered, “Mechatronics For the Evil Genius” and “Complete Guide to
Sniping.” Id. at 12; ASC at 11. Defendant Mailroom Supervisor Long allegedly falsified an
Incoming Publication Review Committee (“IPRC”) denial form for the first book, which Craig
claims is a middle school/high school level book about robotics. Compl. at 12. The crux of his
due process claim is that Long told Craig that the IPRC consisted of himself, CO Dusch, and
Librarian Ephriam, but Ephriam allegedly told Craig he had not been on the IPRC for five years
and had no knowledge of the book. Id.
The Commonwealth argues that the due process claim involving these books is not
plausible because Craig had no protected property interest in receiving these books, the prison
had a reasonable interest in reviewing incoming publications, and the prison grievance process
provided Craig with an adequate post-deprivation remedy. Def. Mem. at 20-21. Craig responds
that his claim is plausible because the Defendants violated their own regulation, DC-ADM 803,
governing the review and receipt of publications and photographs.14 Resp. at 55. The regulation
provides that the mailroom supervisor, school principal, librarian, or other staff shall forward
suspect publications to the IPRC, which “must include at least three facility personnel selected
by the Facility Manager/designee [including] one member from the Education Department
(Librarian, Teacher, or School Principle), one member from the Facility Security Office, and the
Mailroom Supervisor.” Id. (quoting DC-ADM 803, § 2.D.1, at 2-4). Craig argues that Defendant

The regulation is available at DC-ADM 803, “Inmate Mail and Incoming Publications,”
Pa. Department of Corrections Policy and Procedures Manual (effective August 10, 2020),
https://perma.cc/D78Q-928K (last visited March 10, 2025).
14

27

Long violated the regulation when she did not convene the IPRC but denied the books “on her
own.” Id.
Craig argues that any assertion that he was denied the robotics book and the sniping book
because their subject matters posed a threat to institutional security should be rejected since the
DOC “readily accepts publications including the very same information that this screener found
objectionable.” Id. at 56. He argues his claim is plausible because Long denied the robotics
book feeling it posed a threat to security, while the prison library contains books about
electronics and transformers; and she denied the sniping book even though its publisher’s
magazine, Guns and Ammo, and other books about ballistics and long guns are permitted in DOC
institutions. Id. He concludes that Long denied the books based on personal prejudice rather
than institutional security. Id.
The Fourteenth Amendment provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To state a claim
under § 1983 for a violation of one’s procedural due process rights, “a plaintiff must allege that
(1) he was deprived of an individual interest that is encompassed within the Fourteenth
Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available to him
did not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d
Cir. 2006).
The procedural aspect of the Due Process Clause guarantees the availability of certain
procedural mechanisms, typically the right to notice and a hearing before the government can
deprive an individual of a liberty or property interest. To establish a procedural due process
violation, a person must first demonstrate that he has been deprived of a constitutionally
protected property or liberty interest. Renchenski v. Williams, 622 F.3d 315, 325 (3d Cir. 2010).

28

“A prisoner may be deprived of a liberty interest in violation of the Constitution in two ways: (1)
when severe changes in conditions of confinement amount to a grievous loss that should not be
imposed without the opportunity for notice and an adequate hearing, . . . and (2) when state
statutes and regulations create a liberty interest in freedom from restraint that imposes an
‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life[,]’ thereby triggering due process protection.” Id. (quoting Sandin v. Conner, 515 U.S. 472,
484 (1995), other internal citations omitted); see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d
Cir. 1997) (“In the prison context, “[d]ue process protection for a state created liberty interest is
. . . limited to those situations where deprivation of that interest ‘imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” (quoting Sandin)).
Craig’s due process claims involving the robotics and sniping books are dismissed. First,
accepting as true that Defendant Long failed to follow the procedures in DC-ADM 803, this is
insufficient in itself to allege a plausible due process claim. Bowman, 2020 WL 3258946, at *6;
Curry, 2019 WL 77441, at *7. Second, being denied books about robotics and sniping does not
amount to an atypical and significant hardship in relation to the ordinary incidents of prison life
as discussed in Sandin. Accord Crosby v. Ozmint, No. 12-440, 2013 WL 5306052, at *4 (D.S.C.
Sept. 18, 2013) (noting that Sandin indicated that “the search for a negative implication from
mandatory language in prisoner regulations has strayed from the real concerns undergirding the
liberty protected by the Due Process Clause,” (citation omitted) and stating that “Plaintiff was
denied access to a book after the CRS determined it was prohibited by Section 20.1.6 of SCDC
Policy No. PS-10.08. The Court does not find that being denied a book amounts to an atypical
and significant hardship in relation to the ordinary incidents of prison life as discussed in
Sandin.”).

29

2.

First Amendment Claim

According to Craig, a third book “Lighting the Nude,” is on a Denied Publication List, he
was not approved to receive it, and the book was confiscated in violation of his First Amendment
rights. Craig’s claim involving “Lighting the Nude” is dismissed because he failed to allege in
the Complaint or ASC which named Defendant, if any, violated his rights by putting the title on
the list of prohibited books or by refusing to permit him to order it. See Rode, 845 F.2d at 1207
(to be plausible, a plaintiff must allege the personal involvement of the defendant in the civil
rights violation). Even if he had done so, the claim would not be plausible and thus, no
opportunity for amendment will be afforded.
“Inmates have a First Amendment right to receive information while in prison to the
extent the right is not inconsistent with prisoner status or the legitimate penological objectives of
the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004). Regulations affecting
prisoners’ access to publications are valid in terms of the First Amendment if they are reasonably
related to legitimate penological interests. See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)
(citing Turner, 482 U.S. at 89). Thus, regulations that should be viewed with caution include
those which categorically prohibit access to a broad range of materials. See Keenan v. Hall, 83
F.3d 1083, 1093 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998) (allowing challenge to
prison’s “publisher’s only” rule that applied to soft-cover books); see also Johnson v. Moore,
948 F.2d 517, 520 (9th Cir. 1991) (rule categorically preventing inmates from receiving softcover books and magazines not sent directly from publisher must be scrutinized closely). At
issue in Thornburg was a federal Bureau of Prisons regulation that allowed the prison warden to
reject outside publications mailed to a prisoner if the publication was deemed to be detrimental
to the “security, good order, or discipline of the institution or if it might facilitate criminal

30

activity.” 490 U.S. at 403 n.1. The regulations in that case did not permit the rejection of a
publication “solely because its content is religious, philosophical, political, social or sexual, or
because its content is unpopular or repugnant.” Id. at 405. Rather, each issue had to be reviewed
separately and, if the warden rejected a publication, he was required to immediately notify the
inmate in writing of the rejection and the reasons therefor, including a reference to the specific
part of the publication deemed objectionable. Id.
Under Thornburg, courts generally apply the Turner four-factor test to determine whether
the restriction on a book is reasonably related to legitimate penological interests. Id.; Beerheide
v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (citing Turner, 482 U.S. at 89-91). The
Commonwealth Defendants cite Thornburg to argue that they have a reasonable interest in
reviewing incoming publications, especially publications like “Lighting the Nude” that contain
nudity. Def. Mem. at 20 (citing Thornburg, 490 U.S. at 416 and Dubar v. Wetzel, No. 484 M.D.
2018, 2019 WL 2997467, at *4 (Pa. Commw. Ct. July 10, 2019)); see also Key v. Dep’t. of
Corr., 185 A.3d 421 (Pa. Commw. Ct. 2018). Craig responds that nude photography “is a
legitimate art form; therefore a book teaching how to set up lighting for nude compositions is
both artistic and educational. However, despite qualifying for both the educational and artistic
exception under the DC-ADM 803, [his] book was denied.” Resp. at 54.
While not binding on this Court, in Key the Pennsylvania Commonwealth Court rejected
the prisoner-plaintiff’s assertion that the ban on books containing nudity in the then-applicable
version of DC-ADM 803 was invalid because it conflicted with the definition of obscenity in the
Pennsylvania Crimes Code, 18 Pa.C.S. § 5903. The Court held that, “[g]iven that inmates’
constitutionally [ ] protected rights may be subject to greater restrictions than those of the general
public, we agree . . . that simply because [DC-ADM 803] is more restrictive than the [Criminal]

31

Obscenity [Statute], [DC-ADM 803] is not unconstitutionally over restrictive. This is
particularly so where our Supreme Court has twice held that [DC-ADM 803], or its predecessors,
were reasonably related to legitimate penological interests.” Key, 185 A.3d at 424 (citing
Brittain v. Beard, 974 A.2d 479, 488 (Pa. 2009) (“where the Department advanced legitimate
penological interests supporting its anti-pornography policy, and Brittain did not raise a genuine
issue of material fact as to the unreasonableness of the Department’s belief that its policy
furthers such interests, Brittain has not met Turner’s high standard.”); Payne v. Dep’t of Corr.,
871 A.2d 795, 811 (Pa. 2005) (DC-ADM 803’s “underlying objectives of security and
rehabilitation are legitimate and neutral government interests”).
No leave to amend the First Amendment claim regarding “Lighting the Nude” will be
afforded because courts have found that the DOC has legitimate penological interests supporting
its ban on books containing nudity and Craig does not allege facts to support an inference that
the policy is unreasonable, that he has no alternate way to create or appreciate art without access
to the book, that there is no impact on correctional resources, or that there is not more than a de
minimis cost involved. Turner, 482 U.S. at 89-90. In other words, given the long line of
precedents about prison officials’ legitimate penological interests in banning books containing
nudity, any attempt to amend the claim involving “Lighting the Nude” would be futile. Grayson
v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002) (district courts should dismiss
complaints under the PLRA with leave to amend “unless amendment would be inequitable or
futile.”).
E.

RLUIPA Claims

Craig also asserts claims for injunctive relief under the RLUIPA based on his being
barred from participating in group religious activities at SCIP. He names Defendants Olinger,

32

Sipple, John Muick, Derek White, Charles Hensley, Terra, Laurel Harry, Adrianna Rudolph, and
a John Doe on this claim. Compl. at 6-8. He seeks injunctive relief under the Act to remove
restrictions on his access to religious activities.15 Id. at 8. Craig, however, is no longer housed at
SCIP where the fifteen-month ban on his participation in organized religious activities was
imposed, and the ban was due to expire while the Defendants’ motions were pending. The Court
thus required the parties to file supplemental briefs addressed to whether the RLUIPA claims
remained viable, ECF No. 53, and the Court has received those submissions, ECF Nos. 54-56.
The RLUIPA claim is dismissed as moot. Under Article III of the Constitution, federal
courts will only have jurisdiction over a matter where there is a live case or controversy to be
resolved. See, e.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998). The “case or controversy”
requirement ‘“subsists through all stages of federal judicial proceedings [and for jurisdiction to
exist the] parties must continue to have a ‘personal stake in the outcome of the lawsuit.’” Id.
(quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990)). Thus, where a plaintiff no

15

As with his First Amendment claims, Craig appears to assert his RLUIPA claims against
the Defendants in their individual and official capacities and also seeks money damages.
Damages are not available against states or their officials acting in their official capacities under
the RLUIPA. See Sossamon v. Texas, 563 U.S. 277, 293 (2011) (“We conclude that States, in
accepting federal funding, do not consent to waive their sovereign immunity to private suits for
money damages under RLUIPA because no statute expressly and unequivocally includes such a
waiver.”). The Act, however, does permit a plaintiff to “obtain appropriate relief against a
government.” Sharp v. Johnson, 669 F.3d 144, 153 (3d Cir. 2012) (citing 42 U.S.C. § 2000cc-2).
The statute defines “government” to include state entities, their agencies, and any other person
acting under color of state law. See id. (citing 42 U.S.C. § 2000cc-5(4)(A)). Thus, RLUIPA
applies to state employees acting in their official capacities, but not their individual capacities.
See id.; Mack v. Warden Loretto FCI, 839 F.3d 286, 303 (3d Cir. 2016) (“[S]tate officials . . .
cannot be held individually liable under RLUIPA”); Spada v. Klemm, No. 22-478, 2023 WL
2290258, at *6 (M.D. Pa. Feb. 28, 2023) (“RLUIPA does not permit an action against state
officials in their individual capacities.”). Because the RLUIPA does not provide a basis for
claims against individual officials in their individual capacities or for money damages, Sharp,
669 F.3d at 154, these RLUIPA claims will be dismissed.
33

longer has a personal stake in the outcome of a claim or case, his claim will become moot and
must be dismissed as such. Id.
Because RLUIPA does not permit the recovery of money damages against individual
defendants, and Craig can no longer receive injunctive relief as (1) he has been transferred from
SCIP, (2) the fifteen-month ban on his participation in group religious activities has expired, and
(3) there is no suggestion that he is unable to engage in group religious activities at SCI Benner.
The RLUIPA claims are therefore moot. See, e.g., Banks v. Sec’y Pa. Dep’t of Corr., 601 F.
App’x 101, 103-04 (3d Cir. 2015) (“[T]o the extent that Banks seeks that relief against
defendants at SCI-Retreat, his claims are moot because he was transferred to SCI-Somerset”).
Because the ban was imposed due to specific past conduct and there is also no suggestion that
Craig will be incarcerated at SCIP in future, his case not does not present an issue capable of
repetition, yet evading review.16 Id. (citing Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir.
2011). To the extent Craig bring any other claims for injunctive relief, those claims are also
moot for the same reasons.
F.

Law Library Access

Craig asserts that he was denied access to the prison law library (1) by CO Alison Grenon
because his shirt was allegedly untucked even though he told an unnamed correctional officer
who was Grenon’s superior that he had to meet a deadline; (2) by Defendant Cloninger after he
questioned her about a DOC policy about access to the law library, requested a grievance form
and she refused to provide one; when she charged him for overdue books; and when she wrote a
misconduct accusing him of possessing contraband and tampering with prison property; (3) by

16

Also pending is a motion filed by Craig, see ECF No. 56, to file an amended complaint.
In that motion, Craig seeks to add one named and one John Doe defendant to his RLUIPA claim.
As the RLUIPA claim is moot, the motion will be denied in the accompanying Order.
34

Defendant David Medina who removed him from the law library because he did not like that
Craig wrote down the number of a DOC policy and mentioned that he saw Medina asleep; and
(4) by Defendants Ephraim and Cloninger when they closed the SCIP eastside library for
extended periods over the holiday season. The Commonwealth Defendant argue that none of
these claims are plausible because Craig fails to allege that he suffered any actual injury from
having his access to the law library limited. ECF No. 32 at 18-19.
Prisoners maintain a “fundamental constitutional right of access to the courts,” embodied
in the First and Fourteenth Amendments. Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting
Bounds v. Smith, 430 U.S. 817, 828 (1977)); see Monroe v. Beard, 536 F.3d 198, 205 (3d Cir.
2008) (“Under the First and Fourteenth Amendments, prisoners retain a right of access to the
courts.”). Meaningful access to the courts is the touchstone, and there is no “abstract,
freestanding right to a law library or legal assistance” unmoored from the need to access the
courts Lewis, 518 U.S. at 351. Convicted prisoners like Craig “may only proceed on access-tocourts claims in two types of cases, challenges (direct or collateral) to their sentences and
conditions of confinement.” Monroe, 536 F.3d at 205; Shane v. Fauver, 209 F. App’x 87, 89 (3d
Cir. 2006) (per curiam) (“[T]he actual injury requirement is not met by every type of frustrated
legal claim; constitutional protections are applied only to a prisoner’s direct or collateral attack
on his or her sentence, or challenges to prison conditions”); see also Lewis, 518 U.S. at 355 (the
inability to litigate claims other than an attack on a sentence or conditions of confinements “is
simply one of the incidental (and perfectly constitutional) consequences of conviction and
incarceration”).
“A prisoner making an access-to-the-courts claim is required to show that the denial of
access caused actual injury.” Jackson v. Whalen, 568 F. App’x 85, 87 (3d Cir. 2014) (per

35

curiam) (quoting Lewis, 518 U.S. at 350). This is because the right of access to the courts
“rest[s] on the recognition that the right is ancillary to the underlying claim, without which a
plaintiff cannot have suffered injury by being shut out of court.” Christopher v. Harbury, 536
U.S. 403, 415 (2002). In other words, a prisoner claiming that he was denied access to the courts
must allege an injury traceable to the conditions of which he complains. Diaz v. Holder, 532 F.
App’x 61, 63 (3d Cir. 2013) (per curiam) (affirming dismissal of denial of access claims where
plaintiff failed to tie alleged deficiencies in library to harm in underlying action). In general, an
actual injury occurs when a prisoner demonstrates that a “nonfrivolous” and “arguable” claim
was lost because of the denial of access to the courts. Christopher, 536 U.S. at 415. “[T]he
underlying cause of action . . . is an element that must be described in the complaint.” Id.
Furthermore, the right to access the courts may be satisfied if the plaintiff has an attorney. Diaz,
532 F. App’x at 63 (citing Bounds, 430 U.S. at 831 and Peterkin v. Jeffes, 855 F.2d 1021, 1042
(3d Cir. 1988)); see also Prater v. City of Phila., 542 F. App’x 135, 137 n.4 (3d Cir. 2013) (per
curiam).
Craig fails to allege that he “lost” a non-frivolous claim concerning a direct or collateral
attack on his sentence or the conditions of his confinement. Although he mentions a deadline,
for none of the instances where he asserts that a Defendant impeded his access to the law library
does he make any allegation about his need to use the law library, let alone that the Defendants’
actions caused an actual injury. The claims concerning his access to the law library will be
dismissed.
G.

Use of OC Spray

Craig also appears to assert an excessive force claim against Defendant Emminger based
on his use of OC spray on September 18, 2021. Craig asserts that he was alone in his cell but

36

“would not speak” and Emminger used OC spray through the wicket in the cell door. He also
appears to assert claims based on Defendant Hamilton’s threat to use OC spray by on November
20, 2022 when he requested to see a copy of a DOC policy, and due to his exposure to OC spray
on August 25, 2023 when Defendant Green used it to control another inmate while Craig was
nearby. Compl. at 11-12.
The Eighth Amendment prohibits prison officials from unnecessarily and wantonly
inflicting pain in a manner that offends contemporary standards of decency. See Hudson v.
McMillian, 503 U.S. 1, 8 (1992). “Force that is used ‘maliciously and sadistically for the very
purpose of causing harm’ violates the Eighth Amendment.” Young v. Martin, 801 F.3d 172, 180
(3d Cir. 2015) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). When screening an
Eighth Amendment excessive force claim under § 1915, the Court asks whether the prisoner has
alleged plausibly that the force was applied “maliciously and sadistically to cause harm” rather
than “in a good-faith effort to maintain or restore discipline.” Jackson v. Bueno, No. 20-0687,
2020 WL 2847925, at *3 (E.D. Pa. June 2, 2020) (quoting Hudson, 503 U.S. at 7). The factors
used to determine whether the force applied was excessive include: (1) the need for the
application of force; (2) the relationship between the need and the amount of force that was used;
(3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as
reasonably perceived by responsible officials on the basis of the facts known to them; and (5)
any efforts made to temper the severity of a forceful response. Brooks v. Kyler, 204 F.3d 102,
106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321). Although the extent of an inmate’s
injuries is relevant to an Eighth Amendment analysis, “there is no fixed minimum quantum of
injury that a prisoner must prove that he suffered through objective or independent evidence in
order to state a claim for wanton and excessive force.” Id. at 104. Thus, while an injury may

37

inform whether the use of force was reasonable, the inquiry must be driven by the extent of the
force and the circumstances in which it is applied, not by the resulting injuries. Id. at 108; see
also Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).
The Eighth Amendment does not protect against a de minimis use of physical force, so
long as it is not of a sort “repugnant to the conscience of mankind.” Brooks, 204 F.3d at 107
(quoting Hudson, 503 U.S. at 9-10). Moreover, “[t]he use of chemical agents to subdue
recalcitrant prisoners is not cruel and unusual when reasonably necessary.” Gibson v. Flemming,
837 F. App’x 860, 862 (3d Cir. 2020) (quoting Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.
1984)); see also Passmore v. Ianello, 528 F. App’x 144, 147 (3d Cir. 2013) (per curiam)
(explaining that the use of chemical agents is not a per se constitutional violation).
1.

Defendant Emminger

Craig’s limited allegations fail to allege plausibly that Defendant Emminger used OC
spray maliciously and sadistically to cause harm, rather than in a good-faith effort to maintain or
restore discipline. He alleges only that Emminger used the substance by spraying it through the
wicket in the cell door when Craig refused to communicate with him. He provides no other facts
to explain the context of the use of force, specifically, the nature of their interaction, why he
refused to communicate with Emminger, or any circumstances that may have required Emminger
to communicate with him. Nonetheless, from his limited statement of facts, Craig concedes that
there was a need for the application of force – to restore discipline in the face of his otherwise
unexplained recalcitrance. He has not alleged sufficient facts to make plausible an assertion that
there was no relationship between the need to end his recalcitrance and the amount of force that
was used. See, e.g., Jones v. Shields, 207 F.3d 491, 496 (8th Cir. 2000) (“[L]imited application
of [OC spray] to control a recalcitrant inmate constitutes ‘a tempered response by prison

38

officials’ when compared to other forms of force.” (internal quotation omitted)). He also does
not allege that Emminger continued to use the substance after he had been subdued. Compare
Voorhis v. Lindsey, No. 23-93, 2024 WL 3862751, at *4 (W.D. Pa. July 29, 2024), report and
recommendation adopted, 2024 WL 3861408 (W.D. Pa. Aug. 19, 2024) (“[W]hile the use of tear
gas ‘to subdue recalcitrant prisoners does not constitute cruel and inhumane punishment,’ the use
of OC spray after an inmate ‘[has] been restrained in handcuffs and the altercation [has] ended
supports a plausible inference that force was no longer necessary.’”) (quoting Major v. Halligan,
No. 21-68, 2021 WL 6283944, at *7 (W.D. Pa. Nov. 17, 2021)). Because Craig’s allegations fail
to nudge his claim over the line from conceivable to plausible, the excessive force claim against
Emminger will be dismissed. See Doe v. New Castle Cnty., No. 23-3190, 2024 WL 4719143, at
*1 n.1 (3d Cir. Nov. 8, 2024) (“To survive a motion to dismiss, a complaint need only “nudge[ ]”
the claims “across the line from conceivable to plausible.” (quoting Iqbal, 556 U.S. at 680 and
Twombly, 550 U.S. at 570).
Craig will not be granted an opportunity to amend this claim for the additional reason that
he failed to exhaust his prison grievance remedies. The Prison Litigation Reform Act “mandates
that prisoners exhaust internal prison grievance procedures before filing suit.” Small v. Camden
Cnty., 728 F.3d 265, 268 (3d Cir. 2013); see 42 U.S.C. § 1997e(a) (“No action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”); Woodford v. Ngo, 548 U.S. 81, 85 (2006)
(“[E]xhaustion of available administrative remedies is required for any suit challenging prison
conditions, not just for suits under § 1983.”) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)).

39

In cases governed by the PLRA, courts must address whether the prisoner-plaintiff has
substantially “complet[ed] the administrative review process in accordance with the applicable
procedural rules.” Downey, 968 F.3d at 305 (quoting Woodford, 548 U.S. at 85), see also
Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018); Nyhuis v. Reno, 204 F.3d 65, 77-78
(3d Cir. 2000) (“[C]ompliance with the administrative remedy scheme will be satisfactory if it is
substantial.”). These procedural rules are supplied by the individual prisons. Jones v. Bock, 549
U.S. 199, 218 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.”); see also Smith v. Sec’y of Pa. Dep’t of Corr., 747 F. App'x
101, 103 (3d Cir. 2018) (stating that a prisoner must complete the administrative review process
in accordance with the applicable procedural rules of the grievance system at his institution);
Booth v. Churner, 206 F.3d 289, 299 (3d Cir. 2000) (explaining that a plaintiff must follow each
of the steps to exhaust his administrative remedies under the PLRA). “Just as inmates must
properly exhaust administrative remedies per the prison’s grievance procedures, prison officials
must strictly comply with their own policies.” Downey, 968 F.3d at 305 (citing Shifflet v.
Korszniak, 934 F.3d 356, 367 (3d Cir. 2019) (“[W]e hold that [the PLRA] requires strict
compliance by prison officials with their own policies.”)).
“There is one exception to the mandatory exhaustion requirement: administrative
remedies must be available to the prisoner.” Downey, 968 F.3d at 305 (citing Ross v. Blake, 578
U.S. 632 (2016)). “An administrative remedy is unavailable when it ‘operates as a simple deadend[,] . . . is so opaque that it becomes, practically speaking, incapable of use, or when prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.’” Id. (quoting Shifflett, 934 F.3d at 365). See
Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020).

40

The Commonwealth Defendants argue that Craig did not exhaust the excessive force
claim against Emminger. Def. Mem. 27-30. Attached to their motion is Grievance #946563,
filed by Craig on September 18, 2021 in which he grieved that Emminger used excessive force.
Craig asserted that he was using his toilet and had his window partially blocked, which he
claimed was “standard and permitted” under anti-sexual harassment standards, “although
technically against the rules.” ECF No. 32-3 at 4. Emminger knocked on the cell door and Craig
acknowledged him. Id. As he tried to comply with Emminger’s directive to unblock his cell
window, Emminger “sprayed [him] in the face with chemical spray.” The grievance was denied
on initial review. Id. at 2. The Commonwealth has provided a declaration of Rhonda House, a
facility grievance coordinator, asserting that the initial review response to the grievance was
delivered to Craig. Decl. of Rhonda House, ECF No. 32-1, at 2. Attached to the declaration is a
spread sheet of Craig grievance activity. Id. at 2-12. Based on the spread sheet, House asserts
that Craig filed four grievances within the month following the incident with Emminger, but only
Grievance #946563 relates to an allegation of abuse. The Commonwealth argues that Craig
failed to exhaust the grievance process with regard to the Emminger incident because he failed to
appeal after his initial review response found his claim to be unsubstantiated. Def. Mem. at 29.
Craig does not respond to the Court’s Order directing the parties to present any material
that may be pertinent to the exhaustion issue.17 Because the indisputably authentic documents

“[W]here a defendant moves to dismiss based on a failure-to-exhaust defense and the
exhaustion issue turns on indisputably authentic documents related to the inmate’s grievances, [a
court] may consider those documents without converting a motion to dismiss to a motion for
summary judgment.” Rinaldi v. United States, 904 F.3d 257 261 n.1 (3d Cir. 2018) (internal
quotations and alterations omitted); Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004) (“Given
that the exhaustion issue turns on the indisputably authentic documents related to Spruill’s
grievances, we hold that we may also consider these without converting it to a motion for
summary judgment.”); Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (“In appropriate cases,
failure to exhaust may be raised as the basis for a motion to dismiss.”); see, e.g., Walker v. Little,
17

41

indicate that he has not substantially completed the administrative review process in accordance
with the applicable procedural rules, Downey, 968 F.3d at 305, any attempt to amend the
excessive force allegation against Emminger would be futile. Grayson, 293 F.3d at 110.
2.

Defendants Hamilton and Green

The other excessive force claims involving the use of OC spray are not plausible and will
be dismissed without leave to amend. Defendant Hamilton’s mere threat to use OC spray is not
plausible because there is no allegation that force was actually used. See, e.g., Chamberlain v.
City of Albuquerque, 991 F.2d 805 (10th Cir. 1993) (“The mere threat of force, while perhaps
intimidating, is not excessive force.”); Cabral v. City of New York, No. 12-4659, 2014 WL
4636433, at *11 (S.D.N.Y. Sept. 17, 2014) (collecting cases and dismissing claim based on
drawing of gun stating that threats of force cannot constitute excessive force as a matter of law),
aff’d, 662 F. App’x 11 (2d Cir. 2016). Finally, the excessive force claim against Defendant
Green, based on Craig being exposed to OC spray when it was used it to control another inmate

No. 22-3451, 2023 WL 2570562, at *1 (3d Cir. Mar. 20, 2023) (affirming grant of motion to
dismiss based on failure to exhaust administrative remedies). Nonetheless, the Court placed the
parties on notice that the material appended by the Commonwealth would not be excluded and
provided them an opportunity to present any additional material pertinent to the exhaustion issue.
ECF No. 58.
Craig did not submit any materials in response to the Court’s notice and his time to do so
has now expired. The Court notes, however, that Craig did addresses exhaustion in his
Response, see ECF No. 48 at 66, where he argued that a Facility Grievance Coordinator at SCI
Fayette could not have “personally deliver[ed] grievances [to him at SCIP] and she has no firsthand knowledge regarding whether or not [he] ever received the grievance responses in
question” and would have “no first hand information or proof of delivery.” Id. He asserts that
he “was never provided any copy of the grievance in question, he did not have any tracking
number to follow up on it with; he could not follow any appeal for it; and thus he was denied
access to the grievance system with respect to the Emminger issue, and cannot be penalized for
any failure to exhaust.” Id. These allegations were not in the Complaint or ASC and Craig’s
failure to submit any materials in response to the prior Order renders the assertions in his
Response unsupported.
42

while Craig was nearby, is not plausible because it does not allege a malicious and sadistic use of
force against Craig for the very purpose of causing harm to him. Young, 801 F.3d at 180.
H.

Due Process and Retaliation Claims – Placement in the RHU/Transfer

Craig asserts two distinct claims based on his placement in the RHU. First, he asserts
that Defendant Cloninger issued a retaliatory misconduct accusing him of possessing contraband
and tampering with prison property when he tried to make a photocopy of a Christmas – New
Years holiday closing schedule for the library. Compl. at 9. He asserts that Defendants Charles
Hensley, Terra, and other members of the Program Review Committed (“PRC”) did not initially
know what the misconduct was for, but ultimately determined that he was investigated and
confined to the RHU for reading and discussing the holiday closing schedule. Id. He claims he
was held in the RHU for the maximum time allowed without charges before being released,
during which time he could not access the law library even though he had legal deadlines
pending, as punishment for misusing the law library. Id.
Separately, he asserts that after the named Defendants were notified that Craig had filed
this action, and he again raised the issue of disposal of sacred texts with Bauer, he also received a
misconduct accusing him of using a homophobic slur during his interaction with Bauer. ASC at
6-7. He claims the misconduct report for this latter incident was dismissed with prejudice
following a hearing. Id. at 7. Nonetheless, he was taken to the RHU later that day, allegedly at
Bauer’s “behest” and that Bauer requested that he be transferred to a different prison. Id. The
PRC, consisting of Defendants Hensley, Kertes, Muick and others, allegedly denied him due
process by ordering him transferred to SCI Benner, even though he concedes that he received a
hearing prior to the action. Id. at 7-8. He asserts that Bauer retaliated against him for asserting

43

his right to due process in the misconduct proceeding and for asserting his free exercise right. Id.
at 7.
Craig’s allegations concerning his two placements in the RHU do not state plausible
claims. First, it is well-settled that a convicted prisoner’s placement in segregated confinement
will generally not create a liberty interest. Sandin, 515 U.S. at 486; Allah v. Seiverling, 229 F.3d
220, 224 (3d Cir. 2000). Also, because a prisoner has no liberty interest in his housing
placement, he has failed to allege a plausible due process claim based upon his subsequent
transfer to SCI Benner. See Thompson v. Pitkins, 514 F. App’x 88, 89 (3d Cir. 2013) (“prisoners
have no liberty interest arising from the Due Process Clause in a particular place of
confinement”) (citing Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983)). Thus, there can be no
plausible due process claim arising from his placement in the RHU.
In order to state a plausible First Amendment retaliation claim, a prisoner must allege
that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action
sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3)
the constitutionally protected conduct was “a substantial or motivating factor” for the adverse
action. See Coit v. Garman, 812 F. App’x 83, 86 (3d Cir. 2020) (per curiam); Mitchell v. Horn,
318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). “An
adverse consequence ‘need not be great in order to be actionable[;]’ rather, it need only be ‘more
than de minimis.’” Watson, 834 F.3d at 423 (quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir.
2006)) (alterations in original). “[B]eing placed in lockdown, being moved to restricted housing,
and being issued misconduct charges are more than ‘de minimis’ adverse actions.” See Palmore
v. Hornberger, 813 F. App’x 68, 70 (3d Cir. 2020) (per curiam) (quoting McKee, 436 F.3d at
170); see also Mitchell, 318 F.3d at 530-31 (“Mitchell’s allegation that he was falsely charged

44

with misconduct in retaliation for filing complaints against Officer Wilson implicates conduct
protected by the First Amendment.”). The timing of the allegedly retaliatory behavior relative to
the constitutionally protected conduct may establish a causal link between the two for purposes
of establishing motivation. See Watson, 834 F.3d at 422.
A prisoner’s filing of a grievance is constitutionally protected conduct. See Robinson v.
Taylor, 204 F. App’x 155, 157 (3d Cir. 2006) (citing Mitchell, 318 F.3d at 530; Davis v. Goord,
320 F.3d 346, 35-53 (2d Cir. 2003)). The filing of a lawsuit also generally “satisfies the
constitutionally protected conduct prong of a retaliation claim.” DeFranco v. Wolfe, 387 F.
App’x 147, 157 (3d Cir. 2010) (stating that there is “no doubt that filing a lawsuit is
constitutionally protected conduct” for purposes of a retaliatory transfer claim). A prisoner must
allege a causal link between the protected conduct and the alleged act of retaliation. See, e.g.,
Hammonds v. Headman, 645 F. App’x 149, 152 (3d Cir. 2016) (per curiam) (“[B]ecause
Hammonds’ conclusory allegations fail to raise the required inference of a causal link between
his grievance and the filing of misconduct reports, he failed to state a retaliation claim.”);
Thomas v. Brinich, 579 F. App’x 60, 62 (3d Cir. 2014) (per curiam) (“Thomas’ claims against
Dr. Ahner consist of conclusory and somewhat cryptic allegations that Dr. Ahner took Thomas
off medication, directed others to do the same, and ordered others to create an extreme and
stressful prison environment in retaliation for his 2001 lawsuit. The complaint lacks all detail as
to the time, place, or manner surrounding the alleged deprivation and it is entirely unclear from
the allegations what level of involvement, if any, Dr. Ahner had in Thomas’ care”).
Craig also fails to allege plausible retaliation claims. His placement in the RHU
following his attempt to photocopy the library’s holiday closing schedule does not implicate
arguably protected conduct. While he asserts that he could not conduct legal research while he

45

was housed in the RHU, Craig’s allegations make clear that he was not retaliated against for
attempting to conduct legal research, but rather for possessing contraband and tampering with
prison property. His allegation that he was issued a misconduct based on his using a
homophobic or racial slur when interacting with Bauer about disposal of sacred texts, leading to
his placement in the RHU pending his transfer to SCI Benner, also does not implicate protected
conduct. Even a liberal construction of Craig’s allegations indicate he was transferred due to his
continued interpersonal conflict with Bauer rather than because of his exercise of protected
conduct.
I.

Conditions of Confinement in the RHU

Finally, Craig alleges that while in the RHU from February 2 to 14, 2024, he was
exposed to raw sewage leaking into his cell through cracks in the wall, RHU “staff”
acknowledged knowing about the problem, he had to eat his meals in these conditions, and his
complaints about this were ignored. ASC at 8-9. He asserts that Defendant Taylor supervised
the RHU. Id. at 9. He also complains that the window in his cell was opaque causing sensory
deprivation and he did not have access to his property. Id. at 9, 11.
The Eighth Amendment governs claims brought by convicted inmates challenging their
conditions of confinement. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005).
Unconstitutional punishment typically includes both objective and subjective components.
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). The objective component requires an
inquiry into whether “the deprivation [was] sufficiently serious” and the subjective component
asks whether “the officials act[ed] with a sufficiently culpable state of mind[.]” Id. (citing
Wilson v. Seiter, 501 U.S. 294, 298 (1991); Bell, 441 U.S. at 538-39, 539 n.20). In general, a
prisoner must assert that prison officials acted with deliberate indifference, meaning that they

46

consciously disregarded a serious risk to the detainee’s health or safety. See Seiter, 501 U.S. at
298-99; see also Wilson v. Burks, 423 F. App’x 169, 173 (3d Cir. 2011) (per curiam) (“‘[T]he
official must both be aware of facts from which the inference could be drawn that a substantial
harm exists, and he must also draw that inference.’”) (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)); cf. Edwards v. Northampton Cnty., 663 F. App’x 132, 135 (3d Cir. 2016) (per
curiam) (“[W]e agree with the District Court and find no reason to apply a different standard
here as we have applied the ‘deliberate indifference’ standard both in cases involving prisoners
and pretrial detainees.” (internal citations omitted)).
To establish an Eighth Amendment violation based on the conditions of confinement, a
prisoner must establish that prison officials’ acts or omissions denied him “the minimal civilized
measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Betts v. New
Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (stating that the Eighth Amendment’s
prohibition of cruel and unusual punishment requires that prison officials provide “humane
conditions of confinement.”). Such necessities include food, clothing, shelter, medical care and
reasonable safety. Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000).
“However, where conditions are not ‘cruel and unusual’ but merely ‘restrictive and even harsh,’
they do not violate the Eighth Amendment but rather ‘are part of the penalty that criminal
offenders pay for their offenses against society.’” Barndt v. Wenerowicz, 698 F. App’x 673, 677
(3d Cir. 2017) (per curiam) (quoting Rhodes, 452 U.S. at 347). Stated another way, conditions
that are merely unpleasant are not cruel and unusual. Payton v. Vaughn, 798 F. Supp. 258, 26061 (E.D. Pa. 1992) (“The Plaintiff has alleged that the prison conditions at SCIG were
unpleasant, however, unpleasant prison conditions in and of themselves do not state a cognizable
eighth amendment claim.”); Williams v. Lyons, No. 89-2278, 1989 WL 32764, *1 (E.D. Pa.

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April 3, 1989) (holding that presence of rats and bugs does not violate Eighth Amendment);
McKnight v. Murphy, No. 89-2196, 1989 WL 32768, *1 (E.D. Pa. April 3, 1989) (holding same
regarding allegations of “bugs, rats, unclean and unsanitary conditions”).
A prisoner must also establish that the defendants acted with deliberate indifference.
Farmer, 511 U.S. at 835. A claim based on mere negligence is insufficient to allege a plausible
Eighth Amendment violation. See Whitley, 475 U.S. at 319 (“It is obduracy and wantonness, not
inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and
Unusual Punishments Clause, whether that conduct occurs in connection with establishing
conditions of confinement, supplying medical needs, or restoring official control over a
tumultuous cellblock.”).
Craig’s allegations about the twelve days he spent in the RHU do not allege an
objectively serious deprivation. While exposure to human waste “carries particular weight in the
conditions calculus,” Martin v. Gearhart, 712 F. App’x 179, 187 (3d Cir. 2017) (per curiam)
(quoting DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)), the assertion that Craig’s cell
simply had a sewage leak and he had to have his meals in his cell are generally not the type of
claims that courts deem to be an objectively serious deprivation. See Smith v. U.S. Penitentiary
Lee, No. 11-77, 2011 WL 767165, at *2 (W.D. Va. Feb. 25, 2011) (plaintiff failed to state claim
based on allegations that he was required to eat meals in cell with toilet sometimes filled with
excrement). More importantly, Craig does not tie this allegation to a named Defendant who had
both objective knowledge of the condition and the subjective state of mind to make the claim
plausible, alleging only that “staff” on the unit were supervised by Defendant Taylor. The
assertion that his cell window was opaque is also not a serious deprivation since he does not
allege he was deprived of light. Although lack of access to natural light over a lengthy period

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may constitute a constitutional deprivation, see Robinson v. Corriveau, No. 95-1126, 1995 WL
736276 (10th Cir. 1995) (“[Plaintiff] alleged that he has been deprived of natural light and fresh
air for the past seven months (now thirteen months). It is unlikely that such extended deprivation
of natural light and air would meet the minimal health and safety needs of prisoners.”), a twelveday period where his window was “opaque” would not rise to the level of a constitutional
violation since Craig does not allege he had no access to light either natural or from another
source. See Palermo v. Coos Cnty. Dep’t of Corr., No. 08-109-JL, 2008 WL 4200102, at *4
(D.N.H. Sept. 11, 2008) (finding “no legal authority for the proposition that light must be natural
light to be considered constitutionally adequate”); Preece v. Cooke, No. 13-03265, 2014 WL
6440406, at *11 (D. Colo. Nov. 17, 2014) (“Plaintiffs allegations that he was denied access to
fresh air, outdoor exercise, a “pull-up bar,” and access to natural light do not allege that he was
deprived of a human need.”)
V.

CONCLUSION
For the reasons stated at length, the Motions to Dismiss Craig’s Complaint filed by David

Dunn Bauer and the Commonwealth Defendants will be granted.18 A final Order of dismissal
will be entered separately. Fed. R. Civ. P. 58(a).
BY THE COURT:

/s/ Joseph F. Leeson, Jr.
JOSEPH F. LEESON, JR.
United States District Judge

Having determined that none of Craig’s claims against the Defendants who were actually
served survive the pleadings stage, claims against unserved Defendants “John and Jane Does 18” will also be dismissed based on the Court’s screening authority in 28 U.S.C.
§ 1915(e)(2)(B)(ii) since Craig makes no substantive allegations about these unknown
defendants.
18

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