Hutchinson v. Pennsylvania Dept. of Corrections et al
ORDER ADOPTING IN PART AND RECTING IN PART REPORT AND RECOMMENDATIONS for 24 Motion to Dismiss filed by P. Lechner, Dorina Vamer, Connie Green, Shirley Moore Smeal, H. Wiedel, Sean P. Clapper, Brittney Johnson, C. Cook, C Conrad, B. Corbin, 43 Report and Recommendations. The Defendants Motion to Dismiss (Doc. 24) is GRANTED with respect to the Plaintiffs official capacity claims for monetary damages, his access to the courts claim and his ex post facto claim. These claims are DISMISSED. The Motion to Dismiss is DENIED in all other respects. This matter is REMANDED to Magistrate Judge Smyser for all further pre-trial management. Signed by Honorable John E. Jones, III on 3/27/12. (pw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHIRLEY MOORE SMEAL, et al., :
Hon. John E. Jones III
Hon. J. Andrew Smyser
March 27, 2012
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Before the Court is a Report and Recommendation (“R&R”) of Magistrate
Judge J. Andrew Smyser filed on January 18, 2012 (Doc. 43), that recommends we
grant in part and deny in part the Defendants’ Motion to Dismiss. (Doc. 24).
Specifically, the Magistrate Judge recommends that we dismiss all of the claims
contained within pro se Plaintiff Darnell Hutchinson’s (“Plaintiff” or
“Hutchinson”) amended complaint, save for his retaliation claims against
Defendants Cook, Wiedel, Clapper and Johnson. After being granted an extension
of time within which to do so, Hutchinson filed objections to the R&R on March
22, 2012. (Doc. 48). Accordingly, this matter is ripe for our review.
STANDARD OF REVIEW1
When objections are filed to the report of a magistrate judge, the district
court makes a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objections are made. 28 U.S.C. §
636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may
accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
As noted above, Magistrate Judge Smyser recommends that all of Plaintiff’s
claims, save for his retaliation claim against Defendants Cook, Wiedel, Clapper
and Johnson, be dismissed. Plaintiff objects to the Magistrate Judge’s
recommendation of dismissal of his due process, equal protection and conspiracy
claims. Before we turn to an analysis of the Magistrate Judge’s recommendations
The standard of review applied to F.R.C.P. 12(b)(6) motions to dismiss is set forth by
the Magistrate Judge at pages 9-11 of the R&R.
and the Plaintiff’s objections, we shall briefly summarize the salient facts that give
rise to this action.2
Plaintiff is an inmate at the State Correctional Institution at Huntington,
Pennsylvania. He claims that, during the interview process for prerelease and
parole, he was wrongfully accused of certain things in his past, including being
questioned about whether he had a previous rape conviction and whether he had
physically abused his spouse. This information concerning his spouse was
gleaned from information contained in a presentence report, wherein it states that
Plaintiff’s ex-wife had told the preparer of the report that he had physically and
mentally abused her. Based on this information, Defendant Cook recommended
that Plaintiff participate in the “Batterer’s Group,” which is a type of therapy
treatment program at the institution. Plaintiff responded by accusing Cook of
lying and retaliating against him for filing grievances. Plaintiff alleged that
Notably, the Plaintiff does not object to the Magistrate Judge’s recommendation that his
claims for monetary damages against the Defendants in their official capacities are barred by the
Eleventh Amendment. Nor does he challenge the Magistrate Judge’s recommendation that his
access to the courts claim be dismissed because it is well established that inmates do not have a
constitutional right to a grievance procedure. See Luckett v. Blaine, 850 A.2d 811, 820 (Pa.
Cmwlth. 2004)(“[G]rievance procedures were established by Department of Corrections
regulations and, as such, they do not implicate rights under the United States and Pennsylvania
Constitutions.” Sandin v. Conner, 515 U.S. 472 (1995)). Finding no error in these
recommendations, they shall be adopted.
Defendant Wiedel said that she did not have time to check out the information at
that time and that she would continue his participation in the program. Plaintiff
left Wiedel’s office and stopped at the sergeant’s desk to ask Defendant Clapper
for a grievance form.
Plaintiff alleges that Defendant Clapper informed Wiedel and Cook that he
was about to file a grievance, and that Plaintiff was then called back into Wiedel’s
office and questioned about why he was filing a grievance. Wiedel told Plaintiff
that she had checked with the records office and had been told that Plaintiff did
not have any rape convictions. Plaintiff told Wiedel that he was still going to file
a grievance against Cook because he felt Cook was retaliating against him for
prior grievances he had filed.
Plaintiff alleges that Wiedel then began questioning him about a 1972
conviction for assault, asking him whether he had assaulted his girlfriend.
Plaintiff told Wiedel to “check the records to see for herself,” and Wiedel
allegedly responded by insulting and belittling Plaintiff by saying: “You look
much older than fifty-six years old and you won’t get out of jail until you are
about eighty years old.” Plaintiff responded by saying this was “retaliatory BullSh” to prevent him from getting prerelease and making parole. After Wiedel told
Plaintiff he could return to his cell, Defendant Clapper allegedly came to his cell
and told Plaintiff to pack because he was going to the Restricted Housing Unit
Plaintiff next alleges that he was taken to the RHU and was given a
misconduct report charging him with using abusive language, disobeying an order
and threatening a staff member.3 Wiedel did write on the misconduct report that
Plaintiff had been correct about not having a rape conviction. She also wrote that
he had admitted to assaulting his girlfriend, which Plaintiff contends is a lie.
Plaintiff received sixty days of disciplinary custody time.
The Plaintiff objects to the Magistrate Judge’s conclusion that Plaintiff did
not have a due process right to notice and a hearing with respect to his assignment
in the Batterer’s Group.
“A prisoner may be deprived of a liberty interest 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
The threatening a staff member charge was later dismissed.
process protection.” See Renchenski v. Williams, 622 F. 3d 315, 325 (3d Cir.
2010) quoting Sandin v. Conner, 515 U.S. 472, 484 (1995).
Magistrate Judge Smyser rejected Plaintiff’s contention that by forcing him
to accept the Batterer’s Group programming without notice or a hearing, he was
being deprived of his due process rights. Plaintiff contended before Magistrate
Judge Smyser, as he does now on his objections, that he is similar to the inmate in
Renchenski. In Renchenski, the Third Circuit held that an inmate who had never
been charged with, nor convicted of, a sex offense, is entitled to due process
before being classified as a sex offender and required to undergo sex offender
treatment. Id. at 331. The court recognized that “prisons have a strong interest in
enrolling their inmates in various rehabilitative programs and that prison
administrators are in the best position to exercise discretion in administering those
programs.” Id. But, because of the highly stigmatizing nature of being labeled as
a sex offender, which label in the prison setting may endanger a prisoner’s safety,
and the intrusive nature of the sex offender therapy program, which consisted of
weekly psychotherapy sessions for approximately two years, the court held that
due process requires adequate process before labeling a prisoner a sex offender
and requiring him to undergo treatment. Id. Magistrate Judge Smyser reasoned
that, while being labeled a sex offender in prison is highly stigmatizing, that the
Plaintiff had not established that being labeled as a batterer in prison is highly
stigmatizing, and thus recommends that his due process claim be dismissed.
While the Court may ultimately conclude that being labeled a “batterer”
does not attach the same level of stigma as being labeled a sex offender, and as
such due process rights are not implicated, we find at this juncture in the litigation,
it would be premature to dismiss the Plaintiff’s due process claim. It is our view
that this claim needs further factual development before it can be appropriately
adjudicated. Accordingly, we shall exercise the greater caution and reject the
Magistrate Judge’s recommendation that the Plaintiff’s due process claim be
The Plaintiff also objects to the Magistrate Judge’s recommendation that his
equal protection and conspiracy claims be dismissed. Plaintiff claims that
Defendants Cook, Wiedel, and Clapper5 conspired to have him confined in the
RHU to prevent him from filing a grievance and that their actions were racially
motivated because he is a person of color and they objected to him filing a
We note that, in our view, the essence of Plaintiff’s ex post facto claim really is the same
as his due process claim pertaining to his assignment to the Batterer’s Group. Thus, we shall
dismiss the ex post facto claim and permit Plaintiff to argue principles of ex post facto violations
with respect to his due process claim going forward.
Plaintiff notes in his objections that he does not assert these claims against Defendant
grievance against a co-worker. Plaintiff alleges that these Defendants mutually
agreed to make false misconduct reports against Plaintiff based on his race. In our
view, Plaintiff has made sufficient factual allegations to move these claims past
the motion to dismiss stage. Thus, we respectfully disagree with Magistrate Judge
Smyser’s conclusions, which were made absent exhaustive analysis, and shall
reject his recommendation to dismiss these claims as well.
Accordingly, based on the foregoing, we shall adopt the R&R in part and
reject it in part and the Defendants’ Motion to Dismiss shall be granted in part and
denied in part as follows.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
The Report and Recommendation (Doc. 43) of Magistrate Judge
Smyser is ADOPTED IN PART and REJECTED IN PART as
The Defendants’ Motion to Dismiss (Doc. 24) is GRANTED
with respect to the Plaintiff’s official capacity claims for
monetary damages, his access to the courts claim and his ex
post facto claim. These claims are DISMISSED.
The Motion to Dismiss is DENIED in all other respects
This matter is REMANDED to Magistrate Judge Smyser for all
further pre-trial management.
s/ John E. Jones III
John E. Jones III
United States District Judge
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