Jordan v. Beard et al

Filing 37

MEMORANDUM AND ORDER - AND NOW, this 12th day of March, 2012, in accord. w/the accompanying memorandum of law, it is ordered that: 1. Defts. mtn. to dismiss the amd. complt. 30 & 25 is granted in part & denied in part. 2. Plf.'s substantive due process & retaliation claims are hereby dism'd. 3. Defts. are granted 21 days from the dt. of this order to file another mtn. to dismiss the procedural due process claim. 4. Defts. C.O. Phillips, Tennis, Marsh, Thompson, Smith & Varner are d ism'd. from this action. 5. Plf.'s mtn. to dismiss 32 is denied. 6. Plf.'s mtn. to compel 34 is denied. 7. Defts.' mtn. 36 to stay disc. is granted, & disc. is stayed pending resolution of the procedural claim. (See memo for complete details). Signed by Honorable William W. Caldwell on 3/12/12. (am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN JORDAN,
Plaintiff
v.
JEFFREY A. BEARD, et al.,
Defendants

:
:
:
:
:
:
:

CIVIL NO. 1:09-CV-2394
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Shawn Jordan, is an inmate at SCI-Rockview,

serving an unknown period of incarceration on a conviction unspecified in his
pleadings.1 He filed this civil-rights action challenging his expulsion on two
occasions from the sex offender treatment program (“SOTP” or “program”) at
Rockview. He makes the following claims. First, the defendants retaliated against
him by removing him from the program for exercising his First Amendment rights to
free speech and to association. Second, his removal from the program violated
substantive and procedural due process, the latter claim based on the mandatory
nature of his participation in the SOTP before he can be eligible for parole. He also
makes state-law claims invoking the substantively similar protections of the
Pennsylvania Constitution.
1

Plaintiff filed a habeas petition under 28 U.S.C. § 2254 challenging a denial of a parole.
Jordan v. State Police, No. 04-CV-5450 (E.D. Pa.). According to the filings in that case, he pled
guilty to having committed involuntary deviate sexual intercourse with a minor and the third-degree
murder of the minor. According to Jordan’s 2254 petition, the judgment of conviction was on
December 16, 1990. According to the magistrate judge’s report in the habeas action, Plaintiff was
sentenced on October 15, 1990, to fifteen to forty years of imprisonment. 2005 WL 697428, at *1.
The length of Plaintiff’s sentence is also mentioned in an attachment to Plaintiff’s Amended
Complaint. (Doc. 25-2, CM/ECF p. 30).

Named as defendants are the following Pennsylvania Department of
Corrections (DOC) employees: Secretary, Jeffrey A. Beard; SCI-Rockview
Superintendent, Franklin Tennis; Deputy for Centralized Services, Robert Marsh;
Deputy for Facilities Management, Brian Thompson; Corrections Program Manager,
Melinda Smith; SOTP Director, Bethanne Burkholder; Unit Manager, Dean Gentzel;
Corrections Officer (CO) Lee Phillips; and DOC’s Chief Grievance Officer, Dorina
Varner.
Defendants have filed a motion to dismiss, contending that the
Amended Complaint fails to state a claim upon which relief may be granted. They
also contend Plaintiff has failed to exhaust his administrative remedies. In addition
to opposing Defendants’ motion, Plaintiff has filed a Motion to Compel Discovery
which requests that the court lift the stay on discovery that was imposed pending
resolution of Defendants’ Motion to Dismiss.
The court will grant Defendants’ Motion to Dismiss except for their
challenge to the procedural due process claim, but allow them another opportunity
to seek dismissal of that claim. We deny Plaintiff’s Motion to Compel Discovery and
keep the stay in place pending the filing of another motion to dismiss.

II.

Standard of Review
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[w]e

‘accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.’” Byers v. Intuit, Inc., 600 F.3d
-2-

286, 291 (3d Cir. 2010)(quoted case omitted). A court may consider documents that
are attached to or submitted with the complaint, Pryor v. Nat’l Collegiate Athletic
Ass’n, 288 F.3d 548, 560 (3d Cir. 2002), and matters of public record, Delaware
Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006), including court filings.
See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999)(citing
Pension Benefit Guaranty Corp. v. White Consolidated Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993)).
“Pro se complaints are ‘liberally construed’ and ‘held to less stringent
standards than formal pleadings drafted by lawyers[.]’” Jackson v. Div. of
Developmental Disabilities, 394 F. App’x 950, 951 n.3 (3d Cir.
2010)(nonprecedential)(quoted case omitted). Nonetheless, the complaint still
“must contain allegations permitting ‘the reasonable inference that the defendant is
liable for the misconduct alleged.’” Id. (quoted case omitted). Pro se litigants are to
be granted leave to file a curative amended complaint even when a plaintiff does not
seek leave to amend. See Fletcher–Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 252 (3d Cir. 2007). However, leave to amend need not be
granted if amendment would be futile. Grayson v. Mayview State Hospital, 293 F.3d
103, 106 (3d Cir. 2002).
With these principles in mind, we set forth the background to this
litigation.

-3-

III.

Background
In pertinent part, 42 Pa. Con. Stat. Ann. §9718.1 (West 2007), requires

persons convicted of certain sex offenses against a minor to “attend and participate
in a [DOC] program of counseling or therapy . . . .” Id. § 9718.1(a). That statutory
section specifies that a sex offender “shall not be eligible for parole unless the
offender has . . . participated in the program . . . .” Id. § 9718.1(b)(1)(ii). The DOC
has “the sole discretion with respect to counseling or therapy program contents and
administration, including the scheduling of an offender’s attendance and
participation.” Id. § 9718.1(c). The provision disclaims the creation of any legal right
in any individual seeking to be paroled who was required to participate. Id. §
9718.1(d)(3).
In November 2007, the SCI-Rockview SOTP Director, Ms. Burkholder,
recommended Jordan’s participation in the institution’s SOTP. Doc. 25, Am Compl.,
CM/ECF p. 3.2 On April 9, 2008, Jordan began participating in the program. Id.
Soon after, Ms. Burkholder counseled Jordan “regarding his non-compliance with
the program guidelines.” Doc. 25-2, CM/ECF p. 13. He was “confronted with his
failure to identify high risk situations and was asked to avoid inappropriate
relationships.” Id. Specifically, Jordan was cautioned about his relationship with
another inmate in the program. However, Jordan “minimiz[ed] the consequences
and extent of the relationship and the nature of the high-risk situation.” Id.

2

Unless otherwise noted, all citations to the record are to the docket number and page
number assigned by the electronic case filing system (CM/ECF) rather than to the page numbers of
the original documents.

-4-

Exercising their “professional opinion,” treatment staff determined that Jordan’s
“actions and statements indicate[d] that he [was] not able to commit himself to
serious sex offender treatment at [that] time.” Id., CM/ECF p. 13. Jordan was
removed from the program on May 19, 2008.3 Doc. 25, CM/ECF p. 3.
Jordan challenged his removal in grievance no. 230199. Id., CM/ECF
pp. 14-15. Deputy Superintendent for Centralized Services, Robert Marsh,
responded to his grievance appeal. He advised Jordan that while he and the other
inmate involved were counseled “on the effect this relationship was having on [their]
SOP programming,” only “[t]he other inmate heeded the advice of the unit
management team and avoided you.” Id., CM/ECF p. 14. Marsh stated that Jordan
“continued to pursue engaging in a relationship with this inmate that was detrimental
to [his] therapeutic progress in the SOP.” Id. Jordan appealed this decision to
Superintendent Tennis. Id., CM/ECF p. 15. Superintendent Tennis informed Jordan
that Ms. Burkholder, Mr. Gentzel and other staff and inmates in the program
observed his inappropriate behavior with the inmate.
On June 21, 2008, Jordan filed grievance no. 235649 (Id., CM/ECF p.
12) complaining that he was told by Ms. Burkholder and Mr. Gentzel that he would
be “immediately moved back to the” SOTP in 60 days after his removal but that he
had not yet been returned. He claims that Ms. Burkholder and Mr. Gentzel knew
that he would have to wait six to 18 months before a single cell was available with
the SOTP because he is required to be housed in a single cell, and “inmates who
3

Notably, this was the second time Jordan was removed from the SOTP for noncompliance with program requirements. Doc. 25-2, CM/ECF pp. 2 and 13.

-5-

are not single cell, will be moved into the program first.” Id. He complained that
pursuant to section 9718.1, he must complete a SOTP program to be parole eligible.
He sought to learn “why [he’s] being discriminated against by staff.” Id.
Melinda Smith, the Corrections Program Manager, denied the
grievance upon initial review. Id., CM/ECF p. 13. She restated the grounds for
Jordan’s removal from the SOTP and that after 90 days, not 60 days, “he would be
evaluated for readmission, not immediately moved back into the sex offender
program.” Id. In his appeal to Superintendent Tennis, Jordan defines what he
meant when he said that Ms. Burkholder “discriminated” against him. Id. at CM/ECF
p. 10. He claims Ms. Burkholder “made a clear distinction when she determined
with no evidence, [he] was having an inappropriate relationship with another
inmate.” Id. He claims that her actions were taken on the basis of prejudice. Id.
Superintendent Tennis denied Jordan’s appeal. Id., CM/ECF p. 8. At final review, it
was determined that Jordan “failed to provide any evidence that [his] rights were
violated or that staff discriminated against [him] when” removing him from the
SOTP. Id., CM/ECF p. 11.
On September 10, 2008, Jordan filed a third grievance, no. 243498,
after CO Phillips told him that Ms. Burkholder was inquiring about his conduct
outside of the SOTP. Id., CM/ECF p. 22. He asserts that if Ms. Burkholder denied
him readmission to the SOTP on the basis of his association with fellow inmates,
she would be violating his First Amendment rights. Id. He reasserts that his
“removal from the program was based on false information from staff-members or

-6-

inmates who may dislike [him]”. Id. Melinda Smith responded that Ms. Burkholder
did not violate Jordan’s First Amendment rights by inquiring into his activities outside
of the program as she was attempting to “determine if [he] has been able to avoid
high-risk situations which led to his removal from the program.” Id. at CM/ECF p.
23. In responding to Jordan’s appeal, Superintendent Tennis advised him that:
you are free to speak to whomever you choose but that
does not prohibit staff from monitoring your actions and
associations and taking appropriate action accordingly.
There are certain requirements of the SOP; one being to
avoid high risk situations as determined by SOP staff.
Id., CM/ECF p. 18 (emphasis in original). On November 21, 2008, the appeal was
denied at final review. Id., CM/ECF p. 19. In the response, it was noted that the
reasons for his removal was addressed in a prior grievance (no. 235649) and would
not be readdressed. Id.
In January 2009, Jordan reentered the SOTP and was “clearly told to
not have any contact with this same inmate.” Doc. 25, CM/ECF p. 3; Doc. 25-2,
CM/ECF p. 26. On June 30, 2009, Ms. Burkholder submitted a “vote sheet” for his
removal based on his association with another inmate. Doc. 25, CM/ECF p. 2.
Jordan was removed from the program after “Corrections officers on the SOP have
witnessed [Jordan] talking, walking, and standing with this inmate. Officers in the
yard observed [Jordan] with this inmate in the yard. Ms. Burkholder and Mr. Regan
report[ed] [Jordan] admitted to giving cosmetics to another inmate to pass along to
the inmate with whom you are to not have any contact.” Doc. 25-2, CM/ECF p. 26.

-7-

On June 27, 2009, Jordan filed a grievance regarding his recent
removal from the SOTP, no. 279025. Id. at CM/ECF p. 31. In that grievance, he
alleges that Ms. Burkholder removed him from the program because she was
“prejuduce (sic) and victimizing [him] with these unjustified reasons for removing
[him].” Id. He also contested the manner of his removal, via a vote sheet and not a
misconduct, as violative of his Due Process rights. Id. Melinda Smith provided the
first level grievance response. Id., CM/ECF p. 30. She noted that Jordan was
removed from the program:
primarily due to [his] inability to refrain from contact with
another inmate - after he had been warned on numerous
occasions not to be associating with him. Additionally,
Mr. Jordan passed off cosmetics to another individual on
the housing unit, asking him to give them to the inmate
with whom he was to have no contact.
Id. While no prison rules were broken, Jordan “did violate the conditions for
enrollment [in the SOTP] by continued involvement in inappropriate conduct.” Id.
In his appeal to the Superintendent, Jordan asserted that Ms.
Burkholder retaliated against him for the exercise of his First Amendment rights of
free speech and association. Id., CM/ECF p. 29. In denying the grievance appeal,
Superintendent Tennis noted that:
Corrections officers on the SOP have witnessed you
talking, walking, and standing with this inmate. Officers
in the yard have observed you with this inmate in the
yard. Ms. Burkholder and Mr. Regan report you also
admitted to this contact in both peer group and core
group. You also reportedly admitted to giving cosmetics
to another inmate to pass along to the inmate with whom
you are to not have any contact.

-8-

Id. He found Jordan’s removal from the SOTP appropriate. Id. Dorina Varner
denied the grievance at final review. Id., CM/ECF p. 25.
Jordan avers that Ms. Burkholder violated his First Amendment rights
of association and speech when she removed him from the SOTP program for his
relationship with another inmate. Doc. 25, CM/ECF p. 3. He also alleges that she
violated his Due Process rights by arbitrarily removing him from the SOTP program
by way of a “vote sheet” which did not afford him the same procedures afforded
inmates who seek to challenge a misconduct sanction. Id., CM/ECF p. 4. Next,
Jordan claims that all of the Defendants (except for CO Phillips) violated his Due
Process rights by failing to “correct, discipline, investigate and enforce” DOC policies
and procedures when they had the opportunity to address these issues as reported
through his various grievances. Id., CM/ECF p. 6. Finally, Plaintiff claims that
section 9718.1 vests him with a liberty interest in being parole eligible. Id. He
claims that all of the Defendants (except for CO Phillips)4 denied him this liberty
interest by removing him from the SOTP based on false and malicious statements
by staff and inmates. Id., CM/ECF pp. 6-7.

IV.

Discussion

A.

Procedural Due Process Claim
Jordan argues that he has a liberty interest in participating in the

SOTP as it is a prerequisite, pursuant to section 9718.1, for his parole eligibility and

4

CO Phillips “is not involved in any violations relating to this civil action.” Id.

-9-

thus he is entitled to due process prior to being removed from the program. He
alleges he was deprived of due process in the way Ms. Burkholder decided to
remove him, by way of a vote sheet and without the use of procedures employed in
disciplinary proceedings.
In considering a procedural due process claim, courts must first
determine if the plaintiff’s interest is a liberty or property interest within the meaning
of the Fourteenth Amendment. Evans v. Sec’y PA Dep’t Corr., 645 F.3d 650, 663
(3d Cir. 2011). Here, Plaintiff asserts he has a liberty interest in participating in the
SOTP arising from the statutory requirement that he complete the SOTP as a
condition of being eligible for parole.
At least one court would probably agree that this statutory requirement
creates a liberty interest. See Beebe v. Heil, 333 F. Supp. 2d 1011, 1016-17 (D.
Colo. 2004). However, the issue is far from clear, see Perry v. Pa. Dept. of Corr.,
441 F. App’x 833, 837 n.5 (3d Cir. 2011)(nonprecedential)(“any liberty interest
[section 9718.1] might convey would be quite narrow, limited to the right to pursue
such treatment if it is indeed required for parole”), and there are strong indications
from Plaintiff’s 2254 litigation that Plaintiff cannot advance this claim for the simple
reason that section 9718.1 does not apply to Plaintiff because his offenses occurred
before the effective date of the provision, December 20, 2000. See Evans v. Pa.
Bd. of Prob. & Parole, 820 A.2d 904, 908 (Pa. Commw. Ct. 2003)(section 9718.1
applies only to offenses occurring after its effective date); Porter v. Grace, No. 05CV-681, 2006 WL 680820, at *2 n.2 (M.D. Pa. Mar. 13, 2006)(Caldwell, J.)(same,

-10-

citing Evans). The difficulty is that Defendants have filed a motion to dismiss and
there is nothing in the Amended Complaint or in the documents attached that allow
us to conclude that Plaintiff’s offenses occurred before the section’s effective date.5
We must therefore deny the motion to dismiss the procedural due process claim.
However, the dockets for Plaintiff’s state-court criminal proceedings
would establish the date of the offenses, and the dockets are public records we
could rely on in deciding a motion to dismiss. Thus since it appears obvious that
section 9718.1 does not apply to Plaintiff, and it could easily be shown by public
records, we will grant Defendants leave to file another motion to dismiss the
procedural due process claim, this time properly supported. In the meantime, the
current motion to dismiss the procedural due process claim will be denied and
because any discovery should await whether the case will proceed, our stay of
discovery will remain in place.

B. Substantive Due Process Claim
Plaintiff has also claimed that his removal from the program violated
substantive due process. A substantive due process claim based upon alleged
arbitrary and capricious action is not easily mounted because the level of

5

As we noted above, the filings in Plaintiff’s 2254 proceedings in the Eastern District of
Pennsylvania contain factual allegations that would indicate that the offenses occurred before
December 20, 2000. But on a motion to dismiss we cannot rely on these allegations from separate
litigation. See M&M Stone Co. v. Pennsylvania, 388 F. App’x 156, 162 (3d Cir. 2010)
(nonprecedential)(on a motion to dismiss a court may take judicial notice of the existence of a prior
judicial opinion, but not of the truth of the facts asserted in the opinion); Parilla v. IAP Worldwide
Services, VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004)(judicial admissions are binding in the case in
which they are made).

-11-

arbitrariness required involves not merely action that is unreasonable, but rather,
something more egregious, at times “conscience shocking.” Hunterson v. DiSabato,
308 F.3d 236, 246-47 (3d Cir. 2002). Jordan was removed from the SOTP after
receiving repeated warnings of the inappropriateness of his relationship with another
inmate. This is not “conscience shocking,” and the substantive due process claim
will be dismissed.

C. Retaliation Claim for the Exercise of First Amendment
Free-Speech and Associational Rights
Jordan asserts that Ms. Burkholder wrongly retaliated against him by
removing him from the SOTP due to the exercise of his First Amendment right to
speak to, and associate with, another inmate.
“Retaliation for constitutionally-protected activity is itself a violation of
rights secured by the Constitution actionable under section 1983.” White v.
Napoleon, 897 F.2d 103, 112–13 (3d Cir. 1990). To prevail on a retaliation claim,
the prisoner must prove: (1) he engaged in constitutionally protected activity; (2) he
suffered “some adverse action” by a state actor; and (3) “a causal link between the
exercise of [the] constitutional right[ ] and the adverse action taken.” Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001). Once a prisoner establishes a prima facie
case, the burden shifts to the defendant to show by a preponderance of the
evidence that the same disciplinary action would have been taken even in the
absence of protected activity. Rauser, 241 F.3d at 334.
Prison regulations that infringe a prisoner's constitutional right are valid
so long as they are “reasonably related to legitimate penological interests.” Turner
-12-

v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). Deterrence
of crime, rehabilitation, and internal security within correctional facilities are
“legitimate penal objectives.” Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800,
2804, 41 L.Ed.2d 495 (1974).
The Supreme Court has identified four factors to consider when
determining the reasonableness of a prison rule: (1) whether there is a "valid,
rational connection between the prison regulation and the legitimate governmental
interest put forward to justify it"; (2) "whether there are alternative means of
exercising the right that remain open to prison inmates"; (3) "the impact
accommodation of the asserted constitutional right will have on guards and other
inmates and on the allocation of prison resources generally"; and (4) the "absence
of ready alternatives", or, in other words, whether the rule at issue is an
"exaggerated response to prison concerns." Turner, 482 U.S. at 89-90, 107 S.Ct. at
2261.
Jordan’s retaliation claim is based on treatment staff’s response to his
claimed right under the First Amendment to associate with another inmate while
participating in the SOTP and his right to speak with that inmate. We assume for
the sake of argument such constitutional rights exist for an inmate.6 Plaintiff has
failed to allege that he was retaliated against for the exercise of those rights.
6

Imprisonment does not automatically deprive a prisoner of his First Amendment rights.
Beard v. Banks, 548 U.S. 521, 528, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006); Sharp v.
Johnson,
F.3d , , 2012 WL 400667, at *9 (3d Cir. 2012). However, “freedom of association
is among the rights least compatible with incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131,
123 S.Ct. 2162, 2167, 156 L.Ed.2d 162 (2003). Accordingly, “[s]ome curtailment of that freedom
must be expected in the prison context.” Id. Courts owe “substantial deference to the professional
judgment of prison administrators.” Id., at 132, 123 S.Ct. at 2167.

-13-

Based on the Amended Complaint and the documents attached to it, it
is clear that Jordan was aware that one of the goals of the program was to help him
“[i]dentify his offense cycle and interrupt the cycle when high-risk behaviors begin”
and that what he did or said while in the program, would be scrutinized by treatment
staff as well as other inmates. Doc. 25-2, CM/ECF pp. 37-38. He was advised that
by engaging in inappropriate behavior he was not only hindering his own program
advancement but was also “interfering with every member’s therapeutic goals.” Id.
He was aware that prison staff believed his association with this other inmate was
contrary to his therapeutic advancement in the SOTP. Once removed from the
program for this reason, he was also aware that his choice to associate with this
particular inmate, or engaging in similar activity, would result in his dismissal from
the program, if readmitted.
The DOC is vested with “the sole discretion with respect to counseling
or therapy program contents and administration.” 42 Pa. Con. Stat. Ann. 9718.1(c).
Part of that administration is ensuring all participants adhere to the treatment goals
of the program to facilitate their own benefit from the program as well as avoiding
interfering with the rehabilitation efforts of others. Therefore, it cannot be said that
Jordan’s removal from the SOTP was an “exaggerated response,” as his alleged
right of association and free speech in this context was limited only to the extent
necessary to prevent interference with not only his own treatment progress, but that
of the entire SOTP community.
It follows that Plaintiff has failed to state a retaliation claim for the
exercise of his First Amendment right of association since he has failed to show a
-14-

causal link between the adverse action and the exercise of his constitutional right,
for the action of prison officials in removing Jordan from the SOTP after staff and
inmates reported his continued fraternization and gift of cosmetics to the other
inmate was action taken to advance a legitimate penological interest. Jordan’s
retaliation claim will be dismissed.

D. Dismissal of CO Phillips
CO Phillips is mentioned in Count 7 of the Amended Complaint as
having responded to an inquiry from Ms. Burkholder regarding Jordan. See Doc.
25 at CM/ECF p. 7. He is not identified as a defendant by Plaintiff, but rather as a
witness. Jordan expressly states that it is not his intent to name CO Phillips as a
defendant: “Correction Officer Phillips, is not involved in any violations relating to
this civil action.” Id. Based on Jordan’s expressed exclusion of this individual as a
defendant, as well as the lack of any allegations that he was involved in the alleged
misconduct, CO Phillips will be dismissed from this action. See Fed. R. Civ. P.
41(a)(1)(A)(I) and Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).

E. Lack of Personal Involvement of Beard, Tennis, Marsh,
Thompson, Smith and Varner
To state a viable § 1983 claim, a plaintiff must plead two essential
elements: (1) the conduct complained of was committed by a person acting under
color of state law; and (2) the conduct deprived the plaintiff of a right, privilege, or
immunity secured by the Constitution or laws of the United States. Natale v.
Camden County Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). A “defendant in

-15-

a civil rights action must have personal involvement in the alleged wrongdoing;
liability cannot be predicated solely on the operation of respondeat superior.”
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode, 845 F.2d at
1207). Individual liability can only be imposed if the state actor played an
“affirmative part” in the complained-of misconduct. Chinchello v. Fenton , 805 F.2d
126, 133 (3d Cir. 1986). “Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.” Argueta v. U.S. ICE,
643 F.3d 60, 72 (3d Cir. 2011) (quoting Rode, 845 F.2d at 1207). Alternatively, a
supervisor may also be held liable under § 1983 if it is shown that he or she
“established and maintained a policy, practice or custom which directly caused [the]
constitutional harm.” A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586
(3d Cir. 2004). Thus, supervisor liability may be imposed under Section 1983 only if
“the connection between the supervisor’s directions and the constitutional
deprivation [is] sufficient to demonstrate a plausible nexus or affirmative link
between the directions and the specific deprivation of constitutional rights at issue.”
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010). Additionally, the
absence of an underlying constitutional violation precludes any supervisory liability
on a “knowledge or acquiescence” or “failure to train” theory. Crawford v. Lappin,
446 F. App’x 413, 416 (3d Cir. 2011)(nonprecedential); Argueta v. U.S. ICE, 643
F.3d 60, 72 (3d Cir. 2011).
Turning to Jordan’s claims against Defendants Tennis, Marsh,
Thompson, Smith and Varner, these individuals were involved in the processing of
one or more of his grievances. Liability against a defendant based strictly on their
-16-

role in an after-the-fact review of a grievance or appeal is not enough to establish
personal involvement. See Rode, 845 F.2d at 1208. However, Jordan seeks to
assert personal liability against these individuals on the basis of their knowledge of
and acquiescence in Ms. Burkholder and Mr. Gentzel’s alleged wrongdoings.
However, as we have found, Jordan has failed to state an underlying violation of his
constitutional rights under the First Amendment or the Due Process Clause, thus he
cannot assert liability against this group of defendants on the theory of supervisory
liability. See Argueta, 643 F.3d at 72.

F. Motion to Compel Discovery
After the filing of his original Complaint, the defendants sought a stay
of discovery pending the resolution of their motion to dismiss. By order of June 16,
2010, we granted a stay. On June 28, 2010, Jordan sought leave to file an
amended complaint. Given Jordan’s right to file an amended complaint, the
defendants’ original motion to dismiss was denied as moot. Id. Defendants filed a
Motion to Dismiss the Amended Complaint shortly thereafter.
On February 3, 2012, Jordan filed a Motion to Compel discovery (doc.
34), noting that the defendants had not responded to his discovery even though
their first motion to dismiss was resolved by being denied as moot. The court will
deny Jordan’s motion to compel as the reasons for granting the defendants’ motion
to stay pending the resolution of their first motion to dismiss are still valid as we
have decided to grant Defendants leave to file another motion to dismiss the
procedural due process claim. The stay of discovery shall remain in effect.

-17-

G. Leave to Amend
“[I]f a complaint is vulnerable to [Rule] 12(b)(6) dismissal, a district
court must permit a curative amendment, unless an amendment would be
inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir.
2008). In this instance, based on the overwhelming amount of documentary
information Jordan attached to his Amended Complaint, any amendment as to his
substantive due process or retaliation claims would be futile. Accordingly, no leave
to amend will be granted.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: March 12, 2012

-18-

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN JORDAN,
Plaintiff
v.
JEFFREY A. BEARD, et al.,
Defendants

:
:
:
:
:
:
:

CIVIL NO. 1:09-CV-2394
(Judge Caldwell)

ORDER
AND NOW, this 12th day of March, 2012, in accordance with the
accompanying memorandum of law, it is ordered that:
1. Defendants’ Motion to Dismiss the Amended
Complaint (Doc. 30) is granted in part and denied in part.
2. Plaintiff’s substantive due process and retaliation
claims are hereby dismissed.
3. Defendants are granted twenty-one (21) days from
the date of this order to file another motion to dismiss the
procedural due process claim.
4. Defendants C.O. Phillips, Tennis, Marsh,
Thompson, Smith and Varner are dismissed from this
action.
5. Plaintiff’s Motion to Dismiss the Defendants’ Motion
to Dismiss (Doc. 32) is denied.
6. Plaintiff’s Motion to Compel (Doc. 34) is denied.
7. Defendants’ motion (Doc. 36) to stay discovery is
granted, and discovery is stayed pending resolution of
the procedural due process claim.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge