Pearson v. Williams

Filing 41

MEMORANDUM re Complaint 1 and mtn to dismiss 18 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 03/11/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTONIO PEARSON

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Plaintiff
vs.
THOMAS WILLIAMS,
UNIT MANAGER
Defendant

CIVIL NO. 1:CV-13-1988
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The pro se plaintiff, Antonio Pearson, is a state inmate formerly confined at

the state correctional institution in Coal Township, Pennsylvania.1 On July 17, 2013,
Pearson filed this civil-rights lawsuit alleging that his prison unit manager at Coal Township,
Thomas Williams, the only defendant named in the complaint, revoked his single-cell
housing status (known as a “Z Code”) in March 2011 in retaliation for his filing of
grievances and complaints. (Doc. 1, Compl.)
Presently before the court is Williams’ motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). (Doc. 18, Mot. to Dismiss). On August 28, 2014, after receiving several
enlargements, Pearson filed an opposition brief and requested leave to file an amended
complaint. (Doc. 34). He simultaneously submitted his proposed amended complaint.

1

Pearson is currently housed at SCI-Greene in Waynesburg, Pennsylvania. See Doc. 31.

(Doc. 33). Defendant then filed a brief in opposition to Pearson’s leave to amend. (Doc.
36).
For the reasons discussed below, the court will grant Defendant Williams’
motion to dismiss, deny Pearson’s request to file his proposed amended complaint, but
allow Pearson to file an amended complaint naming only Unit Manager Williams and
Counselor Aikey.

II.

Background
A.

Complaint
Plaintiff alleges that as of July 17, 2013, when he filed the Complaint, he had

been incarcerated for over twenty-four years. (Doc. 1, ECF p. 4). He is a 2000 graduate of
the Department of Corrections Special Management Unit (SMU). (Id.) He has been
housed in a single cell, pursuant to a “Z code” classification, from 1998 to 2011. (Id.) His Z
code was based on the accusation that he tried to rape and assault a former cellmate. (Id.)
Sometime in 2011 “defendants” revoked his single-cell status and required him to share a
cell with another inmate. (Id.) “Defendants say they took the plaintiff’s single cell because
of [his] good behavior, which is a lie, because 14 months previous to this, they said that
plaintiff had Assaulted another inmate in his cell ... [also] after these defendants took the
plaintiff’s Z-Code, these same defendants took the plaintiff’s [security] level up to a level (4)
four, from a lower level (3) three”. (Id. at ECF p. 5). Pearson argues that “defendants took
his single cell in retaliation for filing grievances against [SCI-Coal Township] staff”. (Id.,
ECF p. 4).

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Pearson does not want a cellmate. (Id. at ECF p. 5). He has warned the
defendants “because he would not be able to deal with another inmate and might hurt them
or they might hurt” him. (Id.) Even though “defendants” moved him frequently, and did not
“give the plaintiff the cellie he really wanted,” defendants were surprised when Pearson did
accept a cellmate. (Id.)
Unit Manager Thomas Williams is the only defendant named in the caption or
body of the Complaint.

B.

Proposed Amended Complaint
The proposed amended complaint seeks to add ten new defendants, all of

whom are DOC administrators or SCI-Coal Township employees: Secretary Wetzel;
Deputy Secretary Klopotoski; Chief Grievance Officer Dorina Varner; Executive Staff
Assistant Anthony Luscavage; SCI-Coal Township Superintendent Varano; Deputy
Superintendent Ellett; Deputy Superintendent McMillan; Major of the Guard, George Miller;
Major of Unit Management, Mike Miller; and Counselor Aickey. (Doc. 33, Proposed Am.
Compl.)
Pearson alleges that on March 23, 2011, Defendant Williams told him that his
single cell status was being revoked “and the vote sheet was going around.” (Id., ECF p.
9). Pearson then wrote to defendants McMillian, Ellett, Varano, M. Miller, Wetzel and
Klopotoski about “defendant Williams and Aickey trying to take his Z-Code in retaliation for
grievances” he has filed against staff. (Id.) He claims these defendants supported Wiliams’
and Aickey’s retaliatory actions “when they voted to take the Plaintiff’s Z-Code.” (Id.)

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Pearson avers that from June 2010 until March 2011, Williams “went on a
campaign of retaliation” against him for filing various grievances. He alleges Williams
retaliated against him by refusing to give him a unit job, moved him frequently from cell to
cell, and then by finally removing his Z-Code status. He claims Aickey and Williams
initiated the removal of his Z-Code in hopes that Pearson would refuse to accept a cellmate
so they could issue him a misconduct and place him in the Restricted Housing Unit (RHU).
(Id.) Defendants Varano, Ellett, McMillan, M. Miller, G. Miller, Wetzel and Klopotoski “all
voted to remove the plaintiff’s Z-Code,” knowing it was initiated for retaliatory reasons.
Since the removal of his Z-Code, Pearson “constantly worked with the defendants about
this cellie situation but it is not working and the plaintiff is getting more and more frustrated.”
(Id., ECF p. 10). Pearson seeks monetary damages from each defendant.

III.

Discussion
Where arguments presented in Defendant Williams’ motion to dismiss and his

opposition to Pearson’s request to amend his complaint intersect they will be addressed
jointly.

A.

Pearson’s Motion to Amend
In his proposed amended complaint, Pearson asserts that defendant Williams

and Counselor Aickey initiated the revocation of his Z-Code status in retaliation for his filing
of institutional grievances. He alleges Varano, Ellett, McMillan, M. Miller, G. Miller, Wetzel
and Klopotoski “all voted to take the plaintiff’s Z-Code.” (Doc. 33 at ¶ 21). He notes that
his Z-Code status was revoked on March 23, 2011. Defendant Williams asserts that

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Pearson’s motion to amend should be denied because any amendment of his present
Complaint would be time-barred or futile.
The limitations period for a § 1983 action is the limitations period for personal
injury suits in the state where the action arose. Wallace v. Kato, 549 U.S. 384, 387, 127
S.Ct. 1091, 1094, 166 L.Ed.2d 973 (2007); see also Estate of Lagano v. Bergen Cnty.
Prosecutor’s Office, 769 F.3d 850, 859-60 (3d Cir. 2014). Accordingly, Pennsylvania’s twoyear statute of limitations for personal injury applies to cases arising under 42 U.S.C. §
1983. See 42 PA. CONS. STAT. ANN. § 5524(7). The limitations period begins to run “‘when
the plaintiff knew or should have known of the injury upon which [his] action is based.’”
Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)(quoted case omitted)(brackets added).
The statute of limitations is tolled while an inmate plaintiff exhausts his administrative
remedies. See Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015)(“[T]he
PLRA is a statutory prohibition that tolls Pennsylvania’s statute of limitations while a
prisoner exhausts administrative remedies.”).
The statute of limitations in the present matter began to run on March 23,
2011, when Pearson’s Z-Code status was revoked. Leaving aside the tolling of the statute
while he exhausted his administrative remedies, any civil action would have to have been
filed by March 25, 2013.2 Under the prison mailbox rule, Pearson filed his Complaint on
July 17, 2013. This is ostensibly beyond the deadline by about four months. However, we

2

The two-year period would normally have expired on March 23, 2013, but that day was a
Saturday. Pursuant to Fed. R. Civ. P. 6(a)(C), “if a period would end on a Saturday . . . the period
continues to run until the same time on the next day that” does not fall on a weekend or legal
holiday. Thus, the limitations period was extended to Monday, March 25, 2011.

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cannot say the Complaint is untimely given that some of this time might have been taken
up with Plaintiff’s pursuit of his administrative remedies.
We cannot say the same, however, about the proposed amended complaint,
which Plaintiff sought leave to file on August 28, 2014. This date falls far beyond any
reasonably possible limitations period, and Defendant would appear to assert correctly that
the proposed amended complaint is time-barred, unless the claims against the new
defendants relate back to the date of the filing of the original complaint pursuant to Fed. R.
Civ. P. 15(c).
If a complaint is amended to include an additional defendant after the statute
of limitations has run, the amended complaint is not time-barred if it “relates back” to a
timely filed complaint. See Singletary v. Pennsylvania Dep’t of Corr., 266 F.3d 186, 195
(3d Cir. 2001) and Fed. R. Civ. P. 15(c). Fed. R. Civ. P. 15(c) describes the requirement
necessary for an amended complaint to relate back to an original complaint:
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows
relation back;
(B) the amendment asserts a claim or defense that arose out of
the conduct, transaction or occurrence set out — or attempted to
be set out — in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by
amendment:
(i) received such notice of the action that it would not be prejudiced
in defending on the merits; and
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(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.
Fed. R. Civ. P. 15(c)(emphasis added). When a plaintiff seeks to add a new party, the
plaintiff must demonstrate that all the requirements of Rule 15(c)(1)(C) are satisfied.
Specifically, an amendment seeking to add new defendants relates back to the date of the
original complaint only if it can satisfy this three-part conjunctive test: (1) the claim arises
out of the same conduct originally pleaded; (2) the party to be added by amendment, within
120 days of the original filing date, has received notice of the action such that the party will
not be prejudiced in defending the case on the merits; and (3) the party to be added by
amendment “knew or should have known that, but for a mistake concerning the identity of
the proper party, the action would have been brought against the party.” Singletary, supra,
266 F.3d at 189; Fed. R. Civ. P. 15(c)(1)(C).
As set forth above, the first requirement under Rule 15(c)(1)(C) is that the
claims against the newly named defendants arise out of the same occurrence set forth in
the presumed timely complaint. In the original complaint, Pearson alleges Williams
retaliated against him for filing grievances when he initiated the revocation of his Z-Code
status which was ultimately revoked on March 23, 2011. (Doc. 1, Compl.) He now seeks
to add several supervisory DOC employees to whom he complained of Williams’ and his
counselor’s (Aikey) retaliatory behavior. The claims against the new defendants arise from
the same facts pled in the original complaint, that they failed to intervene and prevent his ZCode from being taken for retaliatory purposes. Thus, the first requirement of the threepart test is satisfied.

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The second condition involves notice. Rule 15(c)(1)(C) requires that the new
defendants received notice of the original complaint within 120 days of its filing.3 “[N]otice
does not require actual service of process on the party sought to be added; notice may be
deemed to have occurred when a party who has some reason to expect his potential
involvement as a defendant hears of the confinement of litigation through some informal
means.” Singletary, 266 F.3d at 195. The Third Circuit recognizes two possible methods
by which a court may impute constructive or implied notice under Fed. R. Civ. P. 15(c)(3):
the shared attorney method and the identity of interest method. Id. at 189.
“The “shared attorney” method of imputing ... notice is based on the notion
that, when an originally named party and the party who is sought to be added are
represented by the same attorney, the attorney is likely to have communicated to the latter
party that he may very well be joined in the action.” Id. at 196. “[T]he fundamental issue ...
is whether the attorney's later relationship with the newly named defendant gives rise to the
inference that the attorney, within the 120 day period, had some communication or
relationship with, and thus gave notice of the action to, the newly named defendant.” Id. at
196-97. Thus, in order to succeed under the “shared attorney” method of imputing notice,
“the plaintiff must show that there was ‘some communication or relationship’ between the
shared attorney and the John Doe defendant prior to the expiration of the 120–day period.”
Garvin v. City of Philadelphia, 354 F.3d 215, 225 (3d Cir. 2003). Here, no attorney has
entered their appearance on behalf of the proposed defendants. While it is possible that

3

The 120-day period under Rule 4(m) is calculated from the formal filing date of the
complaint. Fed. R. Civ. P. 4(m). In this case, the Complaint was filed on July 17, 2013. Therefore,
the 120-day period ended on or about November 14, 2013. The proposed amended complaint was
filed in August 2014.

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the new defendants would be represented by Williams’ counsel, there is no evidence that
Williams’ counsel has placed any of the proposed defendants on notice, nor did they have
reason to believe prior to the filing of the amended complaint that they would be named as
defendants in this action. Plaintiff therefore cannot rely on the “shared attorney method.”
Notice will also be imputed if the parties are so closely related in their
business operations or other activities that filing suit against one serves to provide notice to
the others of the pending litigation. Garvin, 354 F.3d at 227. The Court of Appeals held in
Singletary, and affirmed in Garvin, that “absent other circumstances that permit the
inference that notice was actually received, a non-management employee . . . does not
share a sufficient nexus of interests with his or her employer so that notice given to the
employer can be imputed to the employee for Rule 15(c)(3) purposes.” Id. (quoting
Singletary, 266 F.3d at 200). Working for the DOC, or in the same institution, or even
office, is insufficient to establish constructive notice between an existing defendant and
prospective defendants. Brown v. McElwee, Civ. No. 12-3547, 2013 WL 5948026, *6 (E.D.
Pa. Nov. 7, 2013)(police officers sharing an office the night of the incident is insufficient to
find “identity in interest” for purposes of imputing constructive notice). Here, Unit Manager
Williams, a treatment staff employee, does not hold a sufficiently close relationship with the
proposed DOC administrative and managerial level central office defendants, or SCI-Coal
Township management level staff, for the purpose of imputing notice of the action through
a shared identity of interest with these individuals. However, it is possible to impute
knowledge of the action to Counsel Aikey who is alleged to have worked with Unit Manager
Williams to revoke Pearson’s Z-Code. Thus, constructive notice of Pearson’s suit may be
imputed to Counselor Aikey under the “identity of interest” method.
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Finally, Defendant Williams argues that even if Pearson overcomes the first
and second requirements of Fed. R. Civ. P. 15(c), “he has not alleged any facts indicating
that the additional Defendants knew or should have known that the action would have been
brought against them, but for a mistake of identity.” (Doc. 36, ECF p. 5). Defendant
Williams contends that Pearson’s attempt to add the new defendants does not constitute a
case of mistaken identity because he knew of their existence, and involvement in the
revocation of his Z-Code, at the time he filed his original complaint. (Id.) Therefore they
conclude he should not now be permitted to amend his complaint to include these
defendants. This argument is foreclosed by the United States Supreme Court’s decision in
Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541, 130 S.Ct. 2485, 1 77 L.Ed.2d 48
(2010). In Krupski, the Supreme Court held “that relations back under Rule 15(c)(1)(C)
depends on what the party to be added knew or should have known, not on the amending
party’s knowledge or timeliness in seeking to amend the pleading.” Because Defendant
Williams does not address the holding in Krupski, we cannot deny the leave to amend on
the basis that it is filed against new parties known to Pearson at the time that he filed his
original complaint.
Alternatively, Defendant Williams argues that Pearson’s request to file an
amended complaint should be denied because it would be futile as he fails to state a viable
claim against the newly named defendants. (Doc. 36, ECF p. 5). We will address each of
Defendant Williams’ arguments in turn.

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B.

Lack of Personal Involvement of Williams and Many of the
Proposed Defendants in Pearson’s Retaliation Claim.
Defendant Williams argues that Pearson fails to allege the personal

involvement of Secretary Wetzel, Deputy Secretary Klopotoski, Chief Grievance Officer
Dorina Varner, Executive Staff Assistant Anthony Luscavage, Superintendent Varano,
Deputy Superintendent Ellett, Deputy Superintendent McMillan, Major George Miller or
Major Mike Miller in the proposed amended complaint.
Under § 1983, an individual may sue state actors to enforce federal statutory
and constitutional rights. See 42 U.S.C. § 1983. To succeed on a § 1983 claim, an
individual must prove that: (1) the conduct in question was committed by an individual
acting under the color of state law, and, (2) the conduct deprived the claimant of a
constitutional right. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 46 L.Ed.2d 561 (1976);
Harvey v. Plains Tp. Police Dept., 421 F.3d 185, 189 (3d Cir. 2005). Section 1983 will not
support a claim based on respondeat superior or vicarious liability. Evancho v. Fisher, 423
F.3d 347, 353 (3d Cir. 2005)(citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988)). Personal involvement is an essential element of a civil rights action. Sutton v.
Rasheed, 323 F.3d 236, 249-250 (3d Cir. 2003). 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” in the
challenged practice. Argueta v. U.S. ICE, 643 F.3d 60, 72 (3d Cir. 2011)(quoting Rode,
845 F.2d at 1207). “In a § 1983 suit ... masters do not answer for the torts of their
servants.” Ashcroft v. Iqbal, 556 U.S. 662, 676-77, 129 S.Ct. 1937, 1948-49, 173 L.Ed.2d
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868 (2009). The mere assertion “that the constitutionally cognizable injury would not have
occurred if the superior had done more than he or she did” is insufficient to establish
liability. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
Likewise, participation in the after-the-fact review of a grievance or other
administrative remedy is not enough to establish personal involvement. See, e.g. Rode,
845 F.2d at 1208 (finding the filing of a grievance is not enough to show the actual
knowledge necessary for personal involvement); Mincy v. Chmielsewski, 508 F. App’x 99,
104 (3d Cir. 2013)(finding “an officer’s review of, or failure to investigate, an inmate’s
grievances generally does not satisfy the requisite personal involvement” requirement);
Pressley v. Beard, 266 F.App’x 216, 218 (3d Cir. 2008)(“The District Court properly
dismissed these [supervisory] defendants and any additional defendants who were sued
based on their failure to take corrective action when grievances or investigations were
referred to them.”); Brooks v. Beard, 167 F. App'x 923, 925 (3d Cir. 2006)
(nonprecedenital)(allegations that prison officials and administrators responded
inappropriately to inmate's later-filed grievances do not establish the involvement of those
officials and administrators in the underlying deprivation); Burnside v. Moser, 138 F. App'x
414, 416 (3d Cir. 2005)(nonprecedential)(failure of prison official to process administrative
grievance did not or amount to a constitutional violation or personal involvement in the
alleged constitutional deprivation grieved).
Pearson fails to allege the personal involvement of the following defendants in
the alleged retaliatory removal of his Z-Code status: Secretary Wetzel; Deputy Secretary
Klopotoski; Chief Grievance Officer Dorina Varner; Executive Staff Assistant Anthony
Luscavage; SCI-Coal Township Superintendent Varano; Deputy Superintendent Ellett;
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Deputy Superintendent McMillan; Major of the Guard, George Miller; and Major of Unit
Management, Mike Miller. First, it is noted that aside from naming Anthony Luscavage as a
potential defendant, Pearson does not allege his involvement in any alleged wrongdoing in
the Statement of Facts portion of his proposed amended complaint. See Doc. 33, ECF pp.
6-11. Next, Pearson cannot impose liability on Secretary Wetzel of Deputy Secretary
Klopotoski, Superintendent Varano, Deputy Superintendent Ellett, Deputy Superintendent
McMillian, Major of the Guard George Miller or Major of Unit Management Mike Miller on
the basis of their supervisory roles. Evancho, 423 F.3d at 353. Likewise, because Pearson
does not have a constitutional right to have his written or verbal requests answered or
investigated, his claims against these same defendants for their alleged failure to take
remedial action once alerted to Pearons’ claim that Williams had instituted there revocation
of his Z-Code status for retaliatory reasons also fails to alleged their personal involvement
in any violation of his constitutional rights. The same is true for his claim against Chief
Grievance Officer Varner. See Rode, 845 F.2d at 1208. Therefore, as Pearson fails to
allege the personal involvement of these potential defendants in the underlying claim of
retaliation, allowing Pearson’s proposed amended complaint to go forward against them
would be futile. Pearson may not file an amended complaint as to Secretary Wetzel;
Deputy Secretary Klopotoski; Chief Grievance Officer Dorina Varner; Executive Staff
Assistant Anthony Luscavage; SCI-Coal Township Superintendent Varano; Deputy
Superintendent Ellett; Deputy Superintendent McMillan; Major of the Guard, George Miller;
and Major of Unit Management, Mike Miller.
Next, the court addresses Defendant Williams’ motion to dismiss the
Complaint against him based on Pearson’s alleged failure to allege his personal
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involvement. (Doc. 19, ECF p. 6). While it does appear that Defendant Williams’ name
only appears in the caption of the Complaint, and therefore he is entitled to relief, it is also
clear that based on Pearson’s opposition brief and proposed amended complaint, it is clear
that Pearson could amend his Complaint to correct this deficiency. Thus, he will be
permitted to do so.

C.

Pearson’s Retaliation Claim against Williams and Aickey for
Initiating the Removal of his Z-Code Status.
Pearson alleges that although defendants Williams and Aickey advised him

“they took [his] single cell because of [his] good behavior,” he knows that to be “a lie” and
their true reason behind their action was much more nefarious. (Doc. 33, ECF p. 7). The
real reason for revoking his single-cell status was to punish him for filing grievances against
Williams and other prison employees on C-Unit “making [Williams] look bad.” (Id., ECF p.
9).
Retaliation for expressive activities, such as filing institutional grievances, can
infringe upon an individual’s rights under the First Amendment. See Allah v. Seiverling, 229
F.3d 220, 224-25 (3d Cir. 2000); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981).
To prevail on a retaliation claim, a plaintiff must show that “(1) he engaged in
constitutionally protected conduct, (2) he was subjected to adverse actions by a state actor,
and (3) the protected activity was a substantial motivating factor in the state actor's decision
to take the adverse action.” Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011). An
adverse action is conduct that is “sufficient to deter a person of ordinary firmness from
exercising his First Amendment rights.” Id. (internal quotation marks and quoted case
omitted). The requisite causal connection can be demonstrated by: “(1) an unusually
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suggestive 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.”
Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In the absence of that proof,
the plaintiff is required to show that from the “ ‘evidence gleaned from the record as a
whole’ the trier of fact should infer causation.” Id. (quoting Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 281 (3d Cir.2000)). The Third Circuit has emphasized that courts must
be diligent in enforcing these causation requirements. Id. A defendant may defeat the
claim of retaliation by showing that he would have taken the same action even if the plaintiff
had not engaged in the protected activity. Carter v. Dragovich, 292 F.3d 152, 159 (3d Cir.
2002).
In his proposed amended complaint, Pearson alleges that from June 2010
until March 23, 2011, Williams was “on a campaign of retaliation against” him. (Doc. 33,
ECF p. 9). He cites a series of grievances he alleges were the reasons for Williams’ and
Aickey’s retaliatory action of withdrawing his Z-Code status. Based on the allegations of
the Complaint, and the proposed amended complaint, Pearson fails to demonstrate a
causal link between his filing of grievances and the revocation of his single cell status. For
temporal proximity alone to establish causation the “timing of the alleged retaliatory action
must be ‘unusually suggestive’ of retaliatory motive because a causal link will be inferred.”
Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003)(quoting Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)). “[T]emporal proximity must be measured
in days, rather than in weeks or months, to suggest causation without corroborative
evidence.” Conklin v. Warrington Tp., Civ. O. 06-2245, 2009 WL 1227950, *3 (M.D. Pa.
Apr. 30, 2009). Because the dates of Pearson’s grievances is unknown, there is no way for
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the court to determine whether the alleged retaliatory action, the initiation of the removal of
his Z-Code status, was prompted by their filing. For this reason, Pearson will be allowed to
file an amended complaint to correct this deficiency.
He may file his amended complaint only with respect to his allegations that
Williams and Aikey retaliated against him by initiating the revocation of his Z-Code status to
punish him for filing grievances. Pearson will not be permitted to amend his complaint to
include other defendants or claims. The court notes that our granting of permission to file
an amended complaint does not resolve the issue of the timeliness of the filing of his
original complaint, as that is an issue that cannot be resolved on the face of the complaint.

D.

Eleventh Amendment Immunity
Defendant Williams argues that any claim for monetary damages against him

in his official capacity is precluded by the Eleventh Amendment of the United States
Constitution. (Doc. 19, Mot. to Dismiss Br., ECF pp. 5 - 6). The court agrees.
The Eleventh Amendment bars suits against a state and its agencies in
federal court that seek monetary damages. See Puerto Rico Aqueduct and Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687-88, 121 L.Ed.2d 605 (1993);
Lombardo v. Pennsylvania, 540 F.3d 190, 194 (3d Cir. 2008). Suits against state officials
in their official capacities are really suits against the employing government agency, and as
such, are also barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 25-27,
112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Will v. Mich. Dep’t of State Police, 491
U.S. 58, 70-71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Furthermore, as the
Pennsylvania Department of Corrections is an executive department of the Commonwealth
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of Pennsylvania, see 71 PA. STAT. ANN. § 61, it shares in the Commonwealth’s Eleventh
Amendment immunity. Lavia v. Pennsylvania, Dept. Of Corr., 224 F.3d 190, 195 (3d Cir.
2000). The Commonwealth of Pennsylvania has not waived its rights under the Eleventh
Amendment to be sued in federal court. See 42 Pa. Cons. Stat. Ann. § 8521(b); Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).
The Eleventh Amendment, however, does not bar claims for prospective
injunctive relief brought against state officials in their official capacities. See Iles v de
Jongh, 638 F.3d 169, 177 (3d Cir. 2011). It also does not bar a suit for monetary damages
against state officials in their individual capacities. See Hafer, 502 U.S. at 31, 112 S.Ct. at
364-65.
Here, to the extent Pearson sues Unit Manager Williams in his official
capacity, his claims for monetary damages will be dismissed.

E.

Pearson may file an Amended Complaint
“[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, 515 F.3d at 236. In this instance, any amendment against Secretary Wetzel;
Deputy Secretary Klopotoski; Chief Grievance Officer Dorina Varner; Executive Staff
Assistant Anthony Luscavage; SCI-Coal Township Superintendent Varano; Deputy
Superintendent Ellett; Deputy Superintendent McMillan; Major of the Guard, George Miller;
and Major of Unit Management, Mike Miller would be futile. However, with respect to
Pearson’s failure to allege the personal involvement of Unit Manager Williams, it appears
Pearson may be able to cure this deficiency. As for his claims that Counselor Aickey, if
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Pearson’s initial complaint was timely filed, it appears that he would be able to amend his
complaint to include a claim against Counselor Aikey. Again, we caution that due to lack of
information as to Pearson’s exhaustion efforts we could not definitely establish the
timeliness of his original complaint which is alleged to be time-barred.
Thus, Pearson will be granted twenty-one days to file an amended complaint.
If Pearson decides to file an amended complaint, he is advised that it must contain the
same docket number as the instant action and should be labeled “Amended Complaint.” In
addition, the "amended complaint must be complete in all respects. It must be a new
pleading which stands by itself as an adequate complaint without reference to the
complaint already filed." Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992).
Pearson is advised that any amended complaint he may file supersedes the original
complaint and must be “retyped or reprinted so that it will be complete in itself including
exhibits.” M.D. Pa. LR 15.1. Consequently, all causes of action alleged in the amended
complaint which are not alleged in the original complaint are waived.
Pearson is also advised that his amended complaint must be concise and
direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in an individually
numbered paragraphs in short, concise and simple statements. Id. The allegations should
be specific as to time and place, and should identify the specific person or persons
responsible for the deprivation of his constitutional rights and what each individual did that
led to deprivation of his rights. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948. He also shall
specify the relief he seeks with regard to each claim. Pearson’s failure to file an
appropriate amended complaint within the required time will result in his claim being

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dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) due to his failure to state a claim on
which relief may be granted.
An appropriate order follows.

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

March 11, 2015

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