SHELBO v. WETZEL et al
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN WETZEL, et al.,
Hon. John E. Jones III
February 16, 2017
Plaintiff, Peter Shelbo (“Shelbo” or “Plaintiff”), a Pennsylvania state inmate
who, at all times relevant, was incarcerated at the State Correctional Institution at
Mahanoy (SCI-Mahanoy), Frackville, Pennsylvania, initially filed this civil rights
complaint pursuant to 42 U.S.C. § 1983, on February 6, 2015, in the United States
District Court for the Eastern District of Pennsylvania. (Docs. 1-3). The matter
was received in this Court on February 25, 2015, via a February 18, 2015 Order of
Transfer. (Docs. 2, 4). Named as Defendants are the following individuals: John
Wetzel (“Wetzel”), Secretary of the Pennsylvania Department of Corrections
(“DOC”); John Kerestes, Superintendent of SCI-Mahanoy; Security Captain
Sorber1 (“Sorber”); and Jane Hinman (“Hinman”), Grievance Coordinator and
Superintendent’s Assistant at SCI-Mahanoy.
This Defendant is incorrectly identified in Plaintiff’s complaint as “Sorba.” (Doc. 35, p. 1, n .1).
Presently pending is Defendants’motion (Doc. 34) to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed a timely opposition brief,
in which he concedes that the claims against Defendants Wetzel and Hinman are
subject to dismissal based on lack of personal involvement in the alleged
underlying unconstitutional conduct. (Doc. 37, p. 1). He also states that he is
suing remaining Defendants Kerestes and Sorber in their individual capacity alone,
not their official capacity. And, he “agrees” that his Fifth and Fourteenth
Amendment due process claims are subject to dismissal. Shelbo then indicates that
“[i]n light of these admissions, what remains is the central question of this case:
Did plaintiff adequately state a claim of retaliation against the two remaining
defendants, John Kerestes and Captain Sorber?” (Id. at 2). This claim will be
addressed in the context of Defendants’ motion to dismiss and, for the reasons set
forth below, Defendants’ motion will be granted.
STANDARD OF REVIEW
In rendering a decision on a motion to dismiss, a court should not inquire
“whether a plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must accept as
true the factual allegations in the complaint and draw all reasonable inferences
from them in the light most favorable to the plaintiff. Innis v. Wilson, 334 F.
App’x , 454, 456 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008)). A district court ruling on a motion to dismiss generally
“relies on the complaint, attached exhibits, and matters of public record.” Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007).
However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”). “First, the
factual and legal elements of a claim should be separated.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Second, the court must then
determine whether the complaint states a plausible claim for relief, which is “a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 211 (citing Iqbal, 556 U.S. at 679); see also
28 U.S.C. § 1915A(b) (directing the court to identify cognizable claims and to
dismiss any portion of the complaint that fails to state a claim). “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679; FED. R. CIV. P. 8(a)(2).
ALLEGATIONS OF THE COMPLAINT
In a declaration attached to his complaint, Shelbo avers that during an April
26, 2014 phone conversation with a family member he discussed the following:
(1) The possibility of hiring a lawyer.
(2) Possibility of contacting the State Police to bring charges of
official oppression against Superintendent John Kerestes at S.C.I.
(3) That it was my understanding Supt. Kerestes was ran [sic] out of
S.C.I. Coal Township for having to [sic] may grievances and law suits
filed against him.
(4) That he micro manages [sic] the prison and his staff doesn’t even
fart without his permission.
(5) That he does retaliate against both staff and inmates who challenge
or question his authority.
(Doc. 1, p. 13).
He alleges that two days later, on April 28, 2014, “Security” transferred him
from general population to the Restricted Housing Unit (“RHU”) in retaliation for
statements [he] made on the phone ….” (Id. at 3). On the same date he received
an “Other Report” which advised him as follows: “You are being placed in AC
status pending an investigation by SCI Mahanoy Security Office. This is in
accordance with DC ADM 802 VI A 1F ‘The inmate has been charged with, or is
under investigation for a violation of facility rules and there is a need for increased
control pending disposition of charges or completion of the investigation.’ This is
not disciplinary action.” (Id. at 3, 11, 16). He remained in the RHU until May
20, 2014, when the DOC transferred him to the State Correctional Institution at
Huntingdon (“SCI-Huntingdon”). (Id. at 12).
He specifically claims First Amendment violations based on Kerestes’s
decisions to transfer him to the RHU and SCI-Huntingdon, allegedly in retaliation
for his expression of his intentions to hire a lawyer and to contact the state police.
(Id. at 10). He also alleges that “security placed [him] in the R.H.U. under
investigation for unfounded alligations [sic].” (Id. at 3).
Shelbo brings this civil rights action pursuant to 42 U.S.C. § 1983. Section
1983 of Title 42 of the United States Code offers private citizens a cause of action
for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute
provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under §1983, a
plaintiff must allege “the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
While mindful that the pro se plaintiff may not be held to a heightened
burden of proof, the court should approach prisoner claims of retaliation “with
skepticism and particular care” due to the “near inevitability” that prisoners will
take exception with the decisions of prison officials and “the ease with which
claims of retaliation may be fabricated.” See Dawes v. Walker, 239 F.3d 489, 491
(2d Cir.2001); Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996); Woods, 60
F.3d at 1166; Colon, 58 F.3d at 873; Flaherty v. Coughlin, 713 F.2d 10, 13 (2d
The First Amendment offers protection for a wide variety of expressive
activities. See U.S. Const. amend I. These rights are lessened, but not
extinguished in the prison context, where legitimate penological interests must be
considered in assessing the constitutionality of official conduct. See Turner v.
Safley, 482 U.S. 78, 89 (1987). Retaliation for expressive activities can infringe
upon an individual’s rights under the First Amendment. See Allah v. Seiverling,
229 F.3d 220, 224-25 (3d Cir. 2000). To prevail on a retaliation claim under 42
U.S.C. § 1983, plaintiff must demonstrate: (1) that he was engaged in
constitutionally protected activity; (2) that he suffered an “adverse action” by
government officials; and (3) that 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 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
With regard to the protected conduct prong, “[f]ree speech is not absolute at
all times and under all circumstances.” Chaplinsky v. State of New Hampshire,
315 U.S. 568, 571-72 (1942). “[T]ypes of speech that are categorically
unprotected include: fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568,
62 S.Ct. 766, 86 L.Ed. 1031 (1942), threats, Watts v. United States, 394 U.S. 705,
89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), speech that imminently incites illegal
activity, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430
(1969), and obscenity, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d
419 (1973).” U.S. v. Stevens, No. 05-2497, 2008 WL 2779529 (3d Cir. July 18,
2008). As a general rule, a prisoner’s First Amendment rights are retained to the
extent they are not inconsistent with his inmate status or with the legitimate
penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817,
822 (1974); see also Jones v. North Carolina Dep’t of Corr. 433 U.S. 119, 132
(1977) (holding that a prisoner’s exercise of his First Amendment freedoms may
be curtailed if such speech poses “the likelihood of disruption to prison order or
stability, or otherwise interferes with the legitimate penological objectives of the
prison environment.”). Thus, an inmate’s First Amendment rights do not include
the right to debate staff orders prior to obeying them, disregard prison rules, or
engage in activities that may incite a disturbance. See, e.g., Durkin v. Taylor, 444
F. Supp. 879 (D.C.Va. 1977) (prisoner telling prison staff he was tired of “chicken
shit” rules was not protected speech).
Shelbo’s utterances, that he was entertaining the “possibility of contacting
the state police to bring charges of official oppression against Superintendent John
Kererestes,” that it is his understanding that Kerestes was forced to leave SCI-Coal
Township for having too many grievances and law suits filed against him, that he
micromanages the prison and “his staff doesn’t even fart without his permission,”
and that he “retaliate[s] against both staff and inmates who challenge or question
his authority,” pose a likelihood of disruption to prison order or stability and thus,
do not constitute constitutionally protected speech. (Doc. 3,p. 13). His failure to
establish that he was engaged in constitutionally protected activity is fatal to his
retaliation claim. Thus, the remaining retaliation claim against Defendants
Kerestes and Sorber will be dismissed.
Based on the foregoing, Defendants’ motion (Doc. 34) to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) will be granted.
An appropriate Order will issue.
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