Vernon v. Custer et al

Filing 34

MEMORANDUM (Order to follow as separate docket entry) - IT IS HEREBY ORDERED THAT the defendants motion to dismiss (Doc. 25) is GRANTED and the amended complaint (Doc. 20) is DISMISSED without prejudice to the plaintiff filing an amended complaint to address the pleading deficiencies that we have identified for him, provided that the defendant acts within 30 days of this dismissal order. Signed by Magistrate Judge Martin C. Carlson on December 3, 2013. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TYRIK VERNON,
Plaintiff
v.
CHARLES CUSTER, et al.,
Defendant

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Civil No. 1:13-CV-1497
(Magistrate Judge Carlson)

MEMORANDUM
I.

INTRODUCTION
Tyrik Vernon is an inmate in the custody of the Pennsylvania Department of

Corrections, currently incarcerated at the State Correctional Institution at Greene. In
this action, Vernon brings claims against a number of supervisory officials within the
Department of Corrections, as well as a number of employees at SCI-Coal Township,
where Vernon was housed before his transfer to SCI-Greene in the spring of 2013.
Vernon brings claims against the defendants for alleged violations of his right to
procedural due process in connection with certain disciplinary proceedings that were
brought against him in 2012. In addition, Vernon claims that the defendants
retaliated against him for engaging in activities protected by the First Amendment,
specifically for filing grievances challenging the actions of the disciplinary hearing
officer who issued an adverse ruling in the disciplinary proceedings. Finally, Vernon

claims that some of the defendants committed intentional torts against him in
violation of federal law, in connection with his disciplinary proceedings.
The defendants have moved to dismiss the amended complaint. (Doc. 25) The
motion is fully briefed and is ripe for disposition. For the reasons that follow, the
motion will be granted, and the complaint will be dismissed without prejudice to
Vernon filing a final amended complaint that addresses the pleading deficiencies that
we identify and discuss below.
II.

BACKGROUND
The background of this memorandum is taken chiefly from the well pleaded

allegations set forth in Vernon’s amended complaint. (Doc. 20)
On September 18, 2012, Vernon was housed at SCI-Coal Township. On that
date, Vernon clams that he submitted a Request to Staff form to Superintendent David
Varano. It appears that when Vernon submitted this form, he was being held in
restricted or administrative housing pending an investigation into allegations that
Vernon was receiving contraband from prison visitors, including his wife. Vernon
submitted the request to Varano to inform the Superintendent that Vernon had been
held in administrative custody for more than 15 days, while the investigation
unfolded, and Vernon believes that under Department of Corrections’ written
policies, he was required to be released back into the general population of the prison
2

following this brief investigative period. However, at approximately 10:30 p.m. on
September 18, 2012, Vernon received a DC-141 form that advised him that the prison
was extending its investigation, and that he would be held in administrative custody
for an additional 15 days. On September 20, 2012, Superintendent Varano responded
to Vernon’s request, stating that he understood Vernon was going to be held for an
additional 15 days, and that Vernon had received adequate notice of this decision.
(Am. Compl., ¶¶ 17-20.)
Also on September 20, Vernon met with members of the Program Review
Committee (PRC), which was comprised of defendants Linda Chesmar, George
Miller, and Deputy Luscavage. During this meeting, Vernon argued that he was
being held in administrative custody unlawfully or in violation of Corrections’ policy,
but was told that he was not going to be released on a technicality while the
investigation into the charges continued. (Id., ¶ 21-23.) Vernon also complains that
he had requested the opportunity to make phone calls, but defendant Luscavage failed
to follow up on his requests. (Id., ¶ 24.)
On September 29, 2012, Vernon received a DC-141 misconduct report, which
was prepared by defendant Shipe, a Lieutenant at SCI-Coal Township. Vernon does
not describe the charges contained in this document, but other information in the
amended complaint suggests that it was related to the allegations that Vernon had
3

been receiving contraband at the prison. (Id., ¶ 25.) The following day, Vernon
submitted a DC-141 part 2A form, which is the form that inmates who are charged
with misconduct may use to request representation and witnesses at their misconduct
proceedings. Vernon requested that the disciplinary hearing officer review video
surveillance and phone recordings as exculpatory evidence. (Id., ¶¶ 26-27.)
Notwithstanding his request, on October 4, 2012, Vernon was taken to his
disciplinary hearing before the hearing examiner, defendant Lisa Kerns-Barr, who
declined his request for the presentment of exculpatory evidence, and did not review
any other unidentified evidence that Vernon claims he provided. (Id., ¶ 28.) At this
hearing, Vernon claims that defendant Kerns-Barr threatened that she would find
Vernon guilty of the misconduct if he refused to sign a waiver “relieving her of time
constrictions to conduct the hearing and review evidence.” (Id., ¶ 29.) Vernon
signed the waiver forms, “under duress.” (Id.)
On October 15, 2012, Vernon submitted a Request to Staff form to defendants
Luscavage, Chesmar, and Varano, informing that of the hearing officer’s alleged
“malfeasance and blatant disregard for [Vernon’s] due process.” (Id., ¶ 30.) Vernon
also filed a grievance against defendant Kerns-Barr, but this was rejected. (Id., ¶ 31.)
On October 19, 2012, Vernon remained in the restricted housing unit, and
informed Superintendent Varano that defendant Kerns-Barr had failed to conduct the
4

misconduct hearing, even after its postponement on October 4, 2012. (Id., ¶ 32.)
On October 23, 2012, Vernon was taken to his misconduct hearing, where he
learned that defendant Kerns-Barr still had not reviewed exculpatory evidence that
Vernon wished her to consider. (Id., ¶ 33.) Instead, the hearing examiner rejected
Vernon’s request for the charges to be dismissed on the basis of her alleged violations
of his due process rights, and instead took testimony from Lieutenant Shipe, the
reporting officer who filed the misconduct against Vernon in the first place. (Id., ¶¶
34-35.) It appears that following this hearing, the hearing examiner found Vernon
guilty of the charged misconduct, and Vernon filed an appeal of the decision,
asserting that he did not receive due process.
On October 28, 2012, Vernon wrote to the Secretary of the Department of
Corrections, John Wetzel, to complain about the misconduct he had been issued and
the process that he received, but Wetzel declined to respond. (Id., ¶ 38.) On
November 7, 2012, the appeal board upheld defendant Kerns-Barr’s decision in a
ruling that Vernon claims was “untimely.” (Id., ¶ 37.) On November 5, 2012,
Superintendent Varano sanctioned Vernon for the misconduct conviction by
indefinitely suspending visitation between Vernon and his wife. (Id., ¶ 39.)
Vernon continued his efforts to challenge what he perceived to be due process
violations in connection with his disciplinary proceedings. To this end, Vernon filed
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grievances with Department of Corrections officials, including defendants Lewis and
Wetzel, but he did not obtain any relief, and he claims these officials failed to
investigate his claims. (Id., ¶¶ 40-41, 50-60.)
Finally, on March 7, 2013, Vernon’s final level appeal was rejected. Five days
later, Vernon was transferred to SCI-Greene, which he alleges is located nine hours
away from his family, and was thereafter kept in solitary confinement for a period of
5 days, in conditions that he alleges were inhumane. (Id., ¶ 49.) Vernon alleges that
his sanction and brief period in segregation prevented him from engaging in certain
prison activities and opportunities to help him “becom[e] a productive citizen.” (Id.,
Part V.) Vernon alleges that he was transferred to SCI-Greene in retaliation for
challenging his misconduct proceedings and filing grievances.1
III.

STANDARD OF REVIEW
With respect to this benchmark standard for legal sufficiency of a complaint,

the United States Court of Appeals for the Third Circuit has aptly noted the evolving
standards governing pleading practice in federal court, stating that:

Vernon also alleges, with no specificity, that he has also been subjected to
sexual harassment, deprived of medical care, and limited in the amount of personal
property he has been able to store at the prison but he has provided no factual
detail to support this bald contentions, and these allegations are no more than
conclusory assertions unconnected with any well pleaded factual allegations.
1

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Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court's opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008)]and culminating recently with the Supreme Court's decision in
Ashcroft v. Iqbal –U.S.–, 129 S.Ct. 1937 (2009) pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than the
possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may
be granted, the court must accept as true all allegations in the complaint and all
reasonable inferences that can be drawn from the complaint are to be construed in the
light most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel,
Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a
complaint’s bald assertions or legal conclusions when deciding a motion to dismiss.”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally
a court need not “assume that a ... plaintiff can prove facts that the ... plaintiff has not
alleged.” Associated Gen. Contractors of Cal. v. California State Council of
Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a
plaintiff must provide some factual grounds for relief which “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
7

actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored
that a trial court must assess whether a complaint states facts upon which relief can
be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662
(2009), the Supreme Court held that, when considering a motion to dismiss, a court
should “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the
Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a
review of the adequacy of complaint, the Supreme Court has advised trial courts that
they must:
[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, a complaint must recite factual

8

allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level
of mere speculation. As the United States Court of Appeals for the Third Circuit has
stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to
state a claim, district courts should conduct a two-part analysis. First,
the factual and legal elements of a claim should be separated. The
District Court must accept all of the complaint's well-pleaded facts as
true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for relief.”
In other words, a complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such an entitlement
with its facts.
Fowler, 578 F.3d at 210-11.
In practice, consideration of the legal sufficiency of a complaint entails a
three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Iqbal, 129 S.Ct. at 1947. Second, the court should identify
allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Tp., 629
F.3d 121, 130 (3d Cir. 2010).

9

IV.

DISCUSSION
A.

Vernon’s Due Process Claims Fail as a Matter of Law

Vernon has alleged a string of due process violations stemming from his
charged misconduct, his initial disciplinary custody while these charges were
investigated, the hearing examiner’s refusal to consider exculpatory evidence during
his proceedings, and the adverse rulings on the misconduct and the appeals that
followed. However, no matter how Vernon frames his claims, he is unable to state
a claim for due process upon which relief can be granted in this case.
The Fourteenth Amendment to the United States Constitution provides, in
pertinent part, as follows: “No State shall . . . deprive any person of life, liberty, or
property, without due process of law . . . .” In the case of procedural due process,
which is implicated in Vernon’s claims, the Supreme Court has enunciated a two-part
analysis to determine the adequacy of the claims: (1) “whether the asserted individual
interests are encompassed within the . . . protection of ‘life, liberty or property[,]” and
(2) “if protected interests are implicated, we then must decide what procedures
constitute ‘due process of law.’ ” Ingraham v. Wright, 430 U.S. 651, 672 (1977); see
also Shoats v. Horn, 213 F.3d 140, 143 (2000). Protected liberty or property interests
generally arise either from the Due Process Clause or from state-created statutory
entitlement. See Board of Regents v. Roth, 408 U.S. 564, 575 (1972). If there is no
10

protected liberty or property interest at issue, it is unnecessary to consider the
procedures that were followed when an alleged deprivation of an interest occurred.
Brown v. Hanna, 850 F. Supp. 2d 471, 476 (M.D. Pa. 2012).
In the case of prison inmates, the court’s due process inquiry is grounded in
consideration of whether the state action resulted in an “atypical and significant
hardship” on the plaintiff-inmate:
[i]n Sandin v. Conner, the Supreme Court announced a new standard for
determining whether prison conditions deprive a prisoner of a liberty
interest that is protected by procedural due process guarantees.
Although the Court acknowledged that liberty interests could arise from
means other than the Due Process Clause itself, the Court concluded that
state-created liberty interests could arise only when a prison's action
imposed an ‘atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.’ . . . In finding that the
prisoner’s thirty-day confinement in disciplinary custody did not present
the type of atypical, significant deprivation in which a State might
conceivably create a liberty interest, the Court considered the following
two factors: 1) the amount of time the prisoner was placed into
disciplinary segregation; and 2) whether the conditions of his
confinement in disciplinary segregation were significantly more
restrictive than those imposed upon other inmates in solitary
confinement.
Shoats, 213 F.3d at 143-44(citations omitted) (emphasis added). In deciding whether
a protected liberty interest exists following Sandin, courts consider the duration of the
confinement and the conditions of that confinement in relation to other prison
conditions. Mitchell v. Horn, 318 F.3d 523, 532 (3d Cir. 2003). Whether a protected

11

liberty interest exists under Sandin thus requires inquiry into the specific facts alleged
in each case. Id. at 533. “Applying these legal benchmarks, it has been held that
disciplinary proceedings which result in sanctions of disciplinary segregation for six
months or more do not impose atypical and significant hardships on the inmate in
relation to the ordinary incidents of prison life in similar situations, and do not give
rise to due process claims. See e.g., Crosby v. Piazza, No. 11–1176, 2012 WL
641938 (3d Cir. Feb, 29, 2012) (270 days of disciplinary segregation); Foster v. Sec'y,
PA Dept. of Corr., 431 F. App'x 63, 65 (3d Cir.2011) (held, “transfer to a restricted
housing unit was not an atypical or significant hardship or a severe change in the
conditions of his confinement” triggering due process protections); Milton v. Ray,
301 F.App'x 130 (3d Cir.2008); Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir.2002)
(7 months disciplinary confinement).” Smith v. Donate, 4:10-CV-2133, 2012 WL
3537017 (M.D. Pa. June 15, 2012) report and recommendation adopted, 4:10-CV2133, 2012 WL 3537008 (M.D. Pa. Aug. 15, 2012).
In this case, Vernon claims that the brief detention in administrative custody
while officials at SCI-Coal Township conducted an investigation into the serious
charges against him constituted a deprivation of his right to due process.
Additionally, he believes that process was flawed throughout his disciplinary
proceedings and appeals, and he takes issue with receiving five days of segregation
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at SCI-Greene, the fact that he was transferred some distance from his family, and
that he has been deprived of visitation with his spouse. However, the case law in this
field makes clear that none of these claims are sufficient to allege that Vernon was
subjected to “atypical and significant hardship” necessary to support a due process
claim.
As a threshold matter, the fact that Vernon was held in administrative or
disciplinary custody for a period of a few weeks or even months during his
disciplinary proceedings at SCI-Coal Township does not present an atypical or
significant hardship. See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002)
(holding that seven months of disciplinary confinement was not an atypical and
significant hardship); Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (placement
of prisoner in administrative custody for 15 months did not involve an atypical,
significant deprivation).
This result is not altered if we consider Vernon’s vague assertions that the
Department of Corrections may have failed to follow its own internal regulations
regarding periods of administrative custody during investigations into misconduct.
See Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (“After Sandin, it is clear that the
touchstone of the inquiry into the existence of a protected, state-created liberty
interest in avoiding restrictive conditions of confinement is not the language of
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regulations regarding those conditions but the nature of those conditions themselves
‘in relation to the ordinary incidents of prison life.’ ”)
Likewise, Vernon’s transfer to SCI-Greene does not present a due process
issue, since the Supreme Court has made clear that inmates have no liberty interest
in being confined at any particular prison. See Olim v. Wakinekona, 461 U.S. 238,
245-46 (1983). Moreover, it is “well established that the decision where to house
inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536 U.S.
24, 39 (2002). Thus, although Vernon’s transfer more than nine hours from his
family no doubt imposed hardship on him and on them, this transfer in itself does not
implicate due process concerns.
The result is no different with respect to Vernon’s complaints that he has been
denied visitation with his wife for an extended period. Setting aside the fact that the
amended complaint suggests that Vernon was found guilty of receiving contraband
from visitors, including his wife, the suspension of visitation privileges does not
trigger due process consideration. It is axiomatic that inmates do not retain rights that
are found to be incompatible with their incarceration, and “freedom of association is
among the rights least compatible with incarceration.” Overton v. Bazzetta, 539 U.S.
126, 131 (2003). Accordingly, “some curtailment of that freedom must be expected
in the prison context.” Id. “The denial of prison access to a particular visitor ‘is well
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within the terms of confinement ordinarily contemplated by a prison sentence,’ . . .
and therefore is not independently protected by the Due Process Clause.” Kentucky
Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (quoting Hewitt v. Helms, 459
U.S. 460, 468 (1983)). Therefore, Vernon’s loss of visiting privileges with his wife
for even an indefinite amount of time does not at this time present an atypical and
significant hardship in relation to the ordinary incidents of prison life for purposes of
due process. See, e.g., Ware v. Morrison, 276 F.3d 385, 387 (8th Cir. 2002) (holding
18-month suspension of prisoner’s visiting privileges with his wife and two other
individuals did not impose an atypical and significant hardship).
As the foregoing case law makes clear, no matter how Vernon frames his due
process claims, they fail because he has not alleged that he suffered atypical and
significant hardships in relation to the ordinary incidents of prison life with respect
to his detention in administrative and disciplinary custody, or in connection with his
disciplinary proceedings, or in the sanctions that he received.
B.

Vernon’s Retaliation Claims Also Fail

Vernon claims that the defendants retaliated against him after he persisted in
seeking recourse for the alleged unlawful conduct of defendants Shipe and KernsBarr in connection with the issuance of a misconduct, and defendant Kerns-Barr’s
handling of his misconduct proceedings. Specifically, Vernon alleges that he
15

transferred from SCI-Coal Township to SCI-Greene, and denied visitation privileges
with his wife, in retaliation for filing grievances and seeking redress for what he
perceived to have been malfeasance by defendants Shipe and Kerns-Barr.
In order to make out a claim for First Amendment retaliation, a plaintiff must
show that (1) “the conduct which led to the alleged retaliation [is] constitutionally
protected”; (2) “he suffered some adverse action at the hands of prison officials . . .
sufficient to deter a person of ordinary firmness from exercising his constitutional
rights”; and (3) there is a “causal link between the exercise of his constitutional rights
and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001). Even if a prisoner makes out this showing, however, “prison officials may
still prevail by proving that they would have made the same decision absent the
protected conduct for reasons reasonably related to a legitimate penological interest.”
Id. at 334.
It is undisputed that the filing of inmate grievances constitutes activity
protected by the First Amendment. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003). Additionally, the defendants agree with Vernon that prison decisions that
subject an inmate to disciplinary custody, Allah v. Seiverling, 229 F.3d 220, 225 (3d
Cir. 2000), or that transfer an inmate to a prison at great distance from an inmate’s
family, Rauser, 241 F.3d at 333, may constitute “adverse action” for First Amendment
16

retaliation purposes. Id. However, although the defendants concede that Vernon has
made out the first two steps of a retaliation claim, they maintain that he has
nonetheless failed to allege facts to show a causal relationship between his
constitutionally protected activity, and his eventual transfer to SCI-Greene.
In order to establish a causal connection for purposes of a retaliation claim,
a plaintiff usually must prove either (1) an unusually suggesting
temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link. See Krouse v. American Sterilizer Co., 126 F.3d
494, 503-04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913,
920-21 (3d Cir. 1997). In the absence of that proof the plaintiff must
show that from the “evidence gleaned from the record as a whole” the
trier of fact should infer causation.” Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 281 (3d Cir. 2000).
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Moreover, when examining these causation issues, we are specifically admonished
that:
A court must be diligent in enforcing these causation requirements
because otherwise a public actor cognizant of the possibility that
litigation might be filed against him, particularly in his individual
capacity, could be chilled from taking action that he deemed appropriate
and, in fact, was appropriate. Consequently, a putative plaintiff by
engaging in protected activity might be able to insulate himself from
actions adverse to him that a public actor should take. The point we
make is not theoretical as we do not doubt that public actors are well
aware that persons disappointed with official decisions and actions
frequently bring litigation against the actors responsible for the
decisions or actions in their individual capacities, and the actors surely
17

would want to avoid such unpleasant events. Thus, it would be natural
for a public actor to attempt to head off a putative plaintiff with the
unwarranted expenditure of public funds. Courts by their decisions
should not encourage such activity and, by enforcing the requirement
that a plaintiff show causation in a retaliation case, can avoid doing so
as they will protect the public actor from unjustified litigation for his
appropriate conduct. In this regard we recognize that often public actors
such as those in this case must make a large number of decisions in
charged atmospheres thereby inviting litigation against themselves in
which plaintiffs ask the courts to second guess the actors' decisions.
Id. at 267-68.
Mindful of these concerns, courts have in the past carefully scrutinized inmate
claims of retaliation premised solely on circumstantial proof of a temporal proximity
between the plaintiff’s conduct and allegedly retaliatory acts. Indeed, this Court has
spoken directly to the issue of what must be shown to state a valid complaint in this
factual context, noting that:
To establish the causation element of a retaliation claim, a plaintiff must
prove that his or her participation in a protected activity motivated the
defendant to perform the retaliatory act. Ambrose v. Twp. of Robinson,
303 F.3d 488, 493 (3d Cir.2002); Meenan v. Harrison, Civ. A. No. 3:03CV-1300, 2006 WL 1000032, at *4 (M.D.Pa. Apr.13, 2006) (observing
that a plaintiff must demonstrate that the exercise of First Amendment
rights “played some substantial role” in the defendant's action). The
temporal proximity of a retaliatory act to a plaintiff's exercise of his or
her First Amendment rights is probative, but not dispositive, of the
causation element. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d
Cir.2003); see also Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173,
178 (3d Cir.1997) (stating that “temporal proximity merely provides an
evidentiary basis from which an inference can be drawn”). For temporal
proximity alone to establish causation, the “timing of the alleged
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retaliatory action must be ‘unusually suggestive’ of retaliatory motive
before a causal link will be inferred.” Marasco, 318 F.3d at 512
(quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.1997)).
In the employment context, the Third Circuit Court of Appeals has
suggested that a temporal proximity of two days is sufficient to establish
causation, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 & n.
5 (3d Cir.2000), whereas a temporal proximity of ten days is sufficient
to establish causation only when accompanied by other evidence of an
employer's wrongdoing, Shellenberger v. Summit Bancorp, Inc., 318
F.3d 183, 189 (3d Cir.2003). This suggests that the temporal proximity
must be measured in days, rather than in weeks or months, to suggest
causation without corroborative evidence.
Conklin v. Warrington Tp., No. 06-2245, 2009 WL 1227950, *3 (M.D.Pa. April
30,2009)
Applying this standard, courts in civil rights cases have frequently rebuffed
speculative efforts to infer causation from temporal proximity when a span of weeks
or months separated the plaintiff’s constitutionally protected conduct from the
defendants’ alleged acts of retaliation. Thus, “[o]ur sister courts have held that a
temporal proximity of as little as seventeen days was insufficient to establish
causation. See Killen v. N.W. Human Servs., Inc., No. 06-4100, 2007 WL 2684541,
at *8 (E.D.Pa. Sept.7, 2007) (holding that temporal proximity of seventeen days was
insufficient to establish causation); see also Farrell, 206 F.3d at 279 n. 6 (suggesting
that temporal proximity of seven weeks would be insufficient to establish causation);
Smith v. ABF Freight Sys., Inc., No. 04-2231, 2007 WL 3231969, at *11 (M.D.Pa.

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Oct.29, 2007) (holding that temporal proximity of one and one-half months was
insufficient to establish causation); Mar v. City of McKeesport, No. 05-19, 2007 WL
2769718, at *4 (W.D.Pa. Sept.20, 2007) (holding that temporal proximity of three
months was insufficient to establish causation).” Fischer v. Transue, 04-2756, 2008
WL 3981521, *10 (M.D.Pa. Aug. 22, 2008)(holding that temporal proximity of three
weeks was insufficient to establish causation).
In practice, application of these legal tenets has routinely led to the rejection
of retaliation claims as legally insufficient when those claims are like the retaliation
assertion made here by Vernon:

An assertion of retaliation based solely on

circumstantial proof of some temporal link between the plaintiff’s conduct and the
defendants’ actions when, in fact, the evidence shows that these events are separated
by months. See, e.g., DeFranco v. Wolfe, No. 08-1957, 2010 WL 2762968 (3d Cir.
July 14, 2010)(denying inmate cell transfer retaliation claim, two months temporal
proximity insufficient); Bailey v. Commercial National Insurance Co., 267 F.App’x.,
167 (3d Cir. 2008)(employment discrimination-retaliation case, four months temporal
proximity insufficient); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th
Cir.1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 117475 (7th Cir.1992) (4-month period insufficient); Conklin v. Warrington Tp., No. 062245, 2009 WL 1227950 (M.D.Pa. April 30, 2009)(two months temporal proximity
20

insufficient); Rogers v. Delaware, Dept. of Public Safety/DMV 541 F.Supp.2d 623,
627 (D.Del. 2008)(10 months insufficient);Brown v. Boeing, 468 F.Supp.2d 729
(E.D.Pa. 2007)(3-4 months insufficient); Lumban-Tobing v. Potter, No. 04-979, 2005
WL 2100691 (M.D. Pa. Aug. 30, 2005)(9 months insufficient temporal proximity, but
other proof creates factual issue precluding summary judgment).
In this case, although we are mindful of the deference that we must pay to the
facts alleged in the complaint, we nevertheless do not find that the plaintiff has
adequately alleged facts sufficient to support a claim for First Amendment retaliation.
As a threshold matter, Vernon has offered nothing to support his speculative
assertion that the decision to transfer him to SCI-Greene was retaliatory, and he has
effectively conceded in his amended complaint that the separate decision to prevent
Vernon from visitation with his wife was the “result of the misconduct conviction.”
(Doc. 20, Am. Compl., at 8) Vernon thus acknowledges that he was barred from
visiting with his wife after he was convicted of violating prison rules, and it appears
that this violation may be involved his receipt of contraband from visitors, including
his wife. Nothing in the amended complaint supports Vernon’s allegations that his
loss of visitation privileges was retaliation for his exercise of constitutionally
protected conduct.

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Although at first blush it may appear somewhat of a closer issue, we also find
that Vernon has failed to allege plausible facts to show that the Secretary of the
Department of Corrections, and the Superintendent of SCI-Coal Township, jointly
engaged in unlawful retaliation by ordering Vernon transferred to SCI-Greene.
Although Vernon has alleged that this transfer occurred very shortly after his
grievances were exhausted, he has alleged no other facts to plausibly connect his
transfer – which followed his conviction for serious prison infractions – to what he
described as his “supplications for recourse from [prison officials] to rectify the
malfeasance of defendant Kerns-Barr”. (Doc. 20, Am. Compl., at 16 ¶ 70) Vernon’s
allegations regarding his transfer are summary and conclusory, and lack adequate
factual allegations to support them as the predicate for a retaliation claim.
In short, Vernon has not alleged facts in the amended complaint sufficient to
show that his transfer to SCI-Greene was causally related to his act of writing to the
Superintendent at SCI-Coal Township, or to the letters he claims to have sent to the
Secretary of the Department of Corrections complaining about what he perceived
were flawed misconduct proceedings. Because the pleading fails to include sufficient
factual allegations, Vernon’s First Amendment retaliation claim will also be
dismissed.

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C.

Vernon’s State Tort Claims Must Be Dismissed

In addition to his federal claims brought under 42 U.S.C. § 1983, Vernon has
attempted to fashion state-law tort claims against the individual defendants for what
he alleges was intentional misconduct on their part, based upon the same general
course of conduct upon which he based his constitutional claims. As explained
below, these claims fail as a matter of law because state law expressly bars them.
Under Pennsylvania law, the Commonwealth, its agencies and employees enjoy
broad immunity from most state-law tort claims, as the General Assembly has by
statute provided that “the Commonwealth, and its officials and employees acting
within the scope of their duties, shall continue to enjoy sovereign immunity and
official immunity and remain immune from suit except as the General Assembly shall
specifically waive the immunity.” 1 Pa. Cons. Stat. Ann. § 2310; see also Moore v.
Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In other words, if the
Commonwealth is entitled to sovereign immunity under Act 152, then its officials and
employees acting within the scope of their duties are likewise immune.”). This grant
of immunity “applies to Commonwealth employees in both their official and
individual capacities, so long as the employees are ‘acting within the scope of their
duties.’” Larsen v. State Employees’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa.
2008). Conduct of an employee is within the scope of employment if “ ‘it is of a kind
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and nature that the employee is employed to perform; [and] it occurs substantially
within the authorized time and space limits . . . .’ ” Brautigan v. Fraley, No. 09-1723,
2010 WL 480856, *4 (M.D. Pa. Feb. 4, 2010) (Rambo, J.).
In this case, the defendants contend that they are each Commonwealth
employees or officials, who were acting within the scope of their employment in
committing each of the acts alleged in this case, which are limited to Vernon’s
complaints about his misconduct proceedings, his housing, his transfer, and
restrictions on his visitation privileges. The allegations in the amended complaint
support the defendants’ contention.
The defendants also contend that none of the nine recognized exceptions to
sovereign immunity apply here. In 42 Pa. Cons. Stat. Ann. § 8522(b), the General
Assembly defined nine separate, narrow exceptions to the broad grant of sovereign
immunity. These exceptions include: (1) vehicle liability; (2) medical-professional
liability; (3) care, custody or control of personal property; (4) Commonwealth real
estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care,
custody or control of animals; (7) liquor store sales; (8) National Guard activities; and
(9) toxoids and vaccines. “Because of the clear intent to insulate government from
exposure to tort liability, the exceptions to immunity are to be strictly construed.”
Lockwood v. City of Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000) (citation omitted).
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Based on fair reading of the amended complaint, it is clear that none of these
exceptions has application in this case.
Given the broad grant of immunity provided by Pennsylvania law, and mindful
of the narrow scope and application of the nine limited exceptions to sovereign
immunity that plainly do not apply to the conduct alleged in this case, which involve
the defendants’ acts and decisions made in the scope of their duties with the
Department of Corrections, we conclude that the defendants in this case are immune
from Vernon’s state-law tort claims, and these claims must be dismissed.
V.

CONCLUSION
For all of the foregoing reasons, we find that Vernon’s amended complaint fails

to state a claim upon which relief can be granted and must be dismissed.
In civil rights cases pro se plaintiffs often should be afforded an opportunity
to amend a complaint before the complaint is dismissed in its entirety, See FletcherHardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless
granting further leave to amend would be futile or result in undue delay. Alston v.
Parker, 363 F.3d 229, 235 (3d Cir. 2004). Although we find Vernon has failed to
plead claims for due process violations, First Amendment retaliation, and state-law
torts, we will in an abundance of caution permit him one final opportunity to amend
his complaint in order to address the deficiencies identified in this memorandum,
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provided he acts within 30 days to do so.2
Accordingly, IT IS HEREBY ORDERED THAT the defendants’ motion to
dismiss (Doc. 25) is GRANTED and the amended complaint (Doc. 20) is
DISMISSED without prejudice to the plaintiff filing an amended complaint to address
the pleading deficiencies that we have identified for him, provided that the defendant
acts within 30 days of this dismissal order.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Date: December 3, 2013

Vernon has now filed three complaints in this case. (Docs. 1, 10, and 20)
However, only the most recent iteration of the complaint has been tested by a
motion to dismiss, and we thus find it appropriate to allow Vernon one last
opportunity to cure the defects that we have identified, and that were first brought
to his attention in the defendants’ motion.
2

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