Brown v. Camp Hill et al

Filing 64

MEMORANDUM (Order to follow as separate docket entry) re 33 MOTION EQUITABLE TOLLING TO EXHAUST PRISON ADMINISTRATIVE REMEDIES filed by Charles Edward Brown, 26 MOTION to Dismiss filed by William D. Sprenkle, Daniell Zielen, Galen Miller, Lori Lyons, Mardiann I Vincent, Michael D. Klopotoski, Peter Cwalina, Jerome Walsh, Norm Demming, Vincent Mooney, Robin Lucas, Mike Truchon, Tanya Brandt. Signed by Honorable A. Richard Caputo on 9/25/15. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHARLES EDWARD BROWN,
Plaintiff
v.
CAMP HILL, et al.,
Defendants

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CIVIL NO. 3:CV-10-2612
(Judge Caputo)

MEMORANDUM
I.

Introduction
Mr. Brown, an inmate formerly housed at the Dallas State Correctional Institution

(SCI-Dallas), in Dallas, Pennsylvania, brings this action pro se and in forma pauperis
pursuant to 42 U.S.C. § 1983. Mr. Brown alleges that he was transferred to SCI-Smithfield
in retaliation for filing grievances and letters challenging his conditions of confinement. The
following Pennsylvania Department of Corrections (DOC) employees are named as
defendants: William D. Sprenkle, Mardiann I. Vincent, Tanya Brandt, Superintendent
Michael Klopotoski, Vincent Mooney, Jerome Walsh, Robin Lucas, Norm Demming, Galen
Miller, Peter Cwalina, Daniell Zielen, Lori Lyons and Mike Truchon.
Defendants have filed a motion to dismiss based on Mr. Brown’s failure to: (1) allege
the personal involvement of the supervisory defendants; (2) set forth a proper retaliation
claim; and (3) file his action within the applicable statute of limitations. (Doc. 26.) Also
pending is Mr. Brown’s motion for “equitable tolling.” He asks for a ninety day stay of these

proceedings so he may complete his administrative remedies as to the claims raised in the
Complaint. (Doc. 33.)
For the reasons that follow, the DOC defendants’ motion to dismiss will be granted
in part and denied in part. Mr. Brown will be allowed to file an amended complaint. Mr.
Brown’s motion for “equitable tolling” will be denied.

II.

Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a court may dismiss an action, in whole or in part, for

failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
When considering a Rule 12(b)(6) motion, the court’s role is limited to determining if a
plaintiff is entitled to offer evidence in support of their claims. See In re Rockefeller Ctr.
Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002). The court does not consider
whether the plaintiff will ultimately prevail. See id. A defendant bears the burden of
establishing that plaintiff’s complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain ... a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct.
2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). Detailed factual
allegations are not required. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964. However,

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mere conclusory statements will not do; “a complaint must do more than allege the
plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id.
“While legal conclusions can provide the framework of a complaint, they must be supported
by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173
L.Ed.2d 868 (2009). As such, “[t]he touchstone of the pleading standard is plausibility.”
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). “To survive a motion to dismiss, a
complaint must contain sufficient factual allegations, taken as true, to ‘state a claim to relief
that is plausible on its face.’” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.
2012)(quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974).
The requirement of making factual allegations extends to averments of conspiracy.
See Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir.
2009)(per curiam); see also Adams v. Teamsters Local 115, 214 Fed. Appx. 167, 175 (3d
Cir. 2007)(nonprecedential)(a conspiracy claim cannot proceed merely upon the
conclusory averment that a conspiracy took place but rather requires factual averments
that would support the inference that the defendants engaged in concerted or joint action).
“‘This requirement is established where the complaint sets forth a valid legal theory and it
adequately states the conduct, time, place, and persons responsible.’” Id. (quoting Lynn v.
Christner, 184 Fed. Appx. 180, 185 (3d Cir. 2006)(per curiam)(nonprecedential)).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and

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evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
In deciding a motion to dismiss, the court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The court may also consider “undisputedly authentic”
documents when the plaintiff's claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998
F.2d at 1196. The court need not assume the plaintiff can prove facts that were not
alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263
& n. 13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions.’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 - 30 (3d Cir. 1997)).

III.

Factual Background1
As of December 16, 2008, Mr. Brown was incarcerated at SCI-Dallas for twenty-

eight years. (Doc. 1, Comp., ECF p. 7.) During this time he filed at least one lawsuit,
numerous grievances and letters to prison officials and others complaining about his
conditions of confinement at SCI-Dallas. (Id.)

1

As required on a motion to dismiss, the court accepts all factual allegations as true, and
construes the Complaint in the light most favorable to the plaintiff. See Kaymark v. Bank of
America, N.A.,783 F.3d 168, 174 (3d Cir. 2015).

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On December 15, 2008, Mr. Brown enjoyed a visit with his family from the
Philadelphia area. (Id., ECF p. 17.) The scheduled visit was to last several hours. His
family purchased over fifty dollars worth of food from the institution vending machines to
share during the visit. (Id., ECF pp. 17 - 18.) After only an hour the visit was terminated
because Mr. Brown was required to pack his property for transfer to another facility the
next day. (Id.) The following day Mr. Brown was transferred to SCI-Smithfield. (Id., ECF
p. 7.)
Mr. Brown’s inmate account funds were not accessible to him at SCI-Smithfield until
January 29, 2009. (Id., ECF p. 18.) SCI-Smithfield officials denied him a razor during this
time. He could not watch cable tv due to lack of access to his prison funds. He paid
approximately forty dollars to have his extra personal property shipped from SCI-Dallas to
SCI-Smithfield. Additionally, although he had just paid his annual SCI-Dallas Lifer’s
Association membership fee of ten dollars, he would not be present at SCI-Dallas to enjoy
the benefits of that membership, including the group’s annual picnic. (Id.) SCI-Smithfield
does not hold such picnics. (Id.) Due to his transfer, Mr. Brown no longer enjoys access to
the law library five days a week. (Id., ECF p. 19.) Finally, Mr. Brown was given a
substantially lower paying job at SCI-Smithfield than the one he held at SCI-Dallas. (Id.,
ECF p. 18.)
On February 26, 2009, Samuel Popovich, Staff Assistant to Secretary Beard
advised Mr. Brown via letter that:
Your institution was contacted requesting a Z-coded inmate that
displays “positive” adjustment to “swap” with another inmate
from SCI-Smithfield. Deputy Superintendent Vincent Mooney
stated that you have been at SCI-Dallas for a long period of
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time, twenty-eighty (28) years, and could benefit from a change
of scenery.
(Id., ECF pp. 4 - 5.) Mr. Brown contends that his transfer was accomplished outside of the
DOC’s routine practice concerning transfers. No “Vote Sheet” was compiled regarding his
transfer to SCI-Smithfield. The rationale for his transfer was “Z-coded Swap with SMI.”
(Id., ECF p. 12.) His transfer was requested by Counselor Lori Lyons and approved of by
Administrative Assistant Tanya Brandt (Office of Population Management) and Executive
Deputy Secretary William Sprenkle. (Id., ECF pp. 12 - 13.) Mr. Brown’s Unit Team,
Deputy Superintendents Mooney and Walsh, and Facility Manager Klopotoski did not
initiate Mr. Brown’s permanent transfer to SCI-Smithfield. (Id., ECF p. 16.) The Unit
Team, Mooney, Walsh and Klopotoski “never” voted to transfer Mr. Brown to SCISmithfield. (Id.)
Mr. Brown had no behavioral, security, mental or physical issues that would have
necessitated his transfer from SCI-Dallas. (Id., ECF p. 19 - 20.) SCI-Smithfield “could
have requested a z-coded inmate from SCI-Huntingdon several blocks away from SCISmithfield.” (Id., ECF p. 15.) “Out of all of the other twenty-four (24) State prisons that
house fifty-two thousand (52,000) inmates and two thousand (2,000) at SCI-Dallas that
‘Plaintiff was the chosen one’ to be transferred.” (Id.) Mr. Brown believes defendants had
no legitimate penological reasons for transferring him after twenty-eight years at SCIDallas. (Id., ECF p. 19.)
Mr. Brown accuses defendants (William Sprenkle, Mardiann Vincent, Tanya Brandt,
Superintendent Klopotoski, Vincent Mooney, Jerome Walsh, Robin Lucas, Norm Demming,
Galen Miller, Peter Cwalina, Daniel Zielen, Lori Lyons and Mike Truchon) of conspiring to
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transfer him in retaliation for his filing of lawsuits, grievances and letters complaining of his
conditions of confinement. (Id., ECF p. 5.) These allegations span 1993 to 2008, and
cover a range of topics: heating problems; a broken toilet; a broken typewriter; the
improper handling of grievances; and over-inflated commissary prices. (Id., ECF pp. 25 32.)
On December 30, 2008, Mr. Brown filed a grievance with SCI-Dallas officials
concerning his “conspiracy retaliatory transfer.” (Id., ECF p. 16.) He gave SCI-Smithfield
prison authorities his Complaint for mailing on December 17, 2010. (Doc. 1, ECF p. 44.)

IV.

Discussion
A.

Statute of Limitations

There is no specific statute of limitations for actions filed pursuant to 42 U.S.C. §
1983. Pearson v. Sec’y Dept. of Corr., 775 F.3d 598, 602 (3d Cir. 2015). However, the
Supreme Court has held that the statute of limitations for a § 1983 claim is the state statute
of limitations for personal injury. Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091,
1094, 166 L.Ed.2d 973; see also Estate of Lagano v. Bergen Cnty. Prosecutor’s Office,
769 F.3d 850, 859 - 60 (3d Cir. 2014). Since Pennsylvania has a two year statute of
limitations for personal injury actions, the statute of limitations applicable to claims brought
under § 1983 in Pennsylvania is two years. See 42 PA. CONS. STAT . § 5524(7) (2014).
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 cases omitted) (brackets added). The statute of limitations is tolled while an

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inmate plaintiff exhausts his administrative remedies. See Pearson, 775 F.3d at 603
(“[T]he PLRA is a statutory prohibition that tolls Pennsylvania’s statute of limitations while a
prisoner exhausts administrative remedies.”).
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-71, as
amended, 42 U.S.C. § 1997e(a), before a prisoner may bring a civil rights action pursuant
to 42 U.S.C. § 1983, or any other federal law, he must exhaust all available administrative
remedies. See 42 U.S.C. § 1997e; Porter v. Nussle, 534 U.S. 516, 524, 122 S.C. 983,
988, 152 L.Ed.2d 12 (2002). Failure to substantially comply with procedural requirements
of the applicable prison's grievance system will result in the procedural default of a claim.
Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004). Dismissal of an inmate’s claim is
appropriate when the prisoner has failed to exhaust his available administrative remedies
before bringing a civil-rights action. Oriakhi v. United States, 165 F. App’x 991, 993 (3d
Cir. 2006)(nonprecedential)(citing Ahmed v. Dragovich, 297 F.3d 201, 209 & n. 9 (3d Cir.
2002))(“Indeed, there appears to be unanimous circuit court consensus that a prisoner may
not fulfill the PLRA’s exhaustion requirement by exhausting administrative remedies after
the filing of the complaint in federal court.”) Failure to exhaust is an affirmative defense the
defendant must plead and prove; it is not a requirement for the prisoner-plaintiff. Ray v.
Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (holding that failure to exhaust is an affirmative
defense and finding that the district court erred in imposing a heightened pleading standard
requiring prisoner to not only plead, but also prove, exhaustion in the complaint).
With these principles in mind, the court will deny the defendants’ motion to dismiss
the Complaint on the basis of the statute of limitations.

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Mr. Brown filed this action on December 17, 2010.2 Without considering the tolling
effect any grievance filed by Mr. Brown concerning his alleged retaliatory transfer may have
on this issue, any cause of action that accrued prior to December 17, 2008, is barred by
the applicable statute of limitations. Applying this statutory bar, it appears that Mr. Brown’s
action is filed one day beyond the limitations period.
Next, the court addresses the issue of whether Mr. Brown is entitled to any tolling of
the limitations period due to his filing of a grievance concerning his alleged retaliatory
transfer.3 Pursuant to the DOC Inmate Grievance System, DC-ADM 804, an inmate has
fifteen working days after the event upon which the claim is based to file a grievance. See
DC-ADM 804, Inmate Grievance System Procedures Manual, available at
http://www.cor.pa.gov/. Mr. Brown states he filed his grievance with the officials at SCIDallas on December 30, 2008. What happened to that grievance, and whether it was
properly handled by the DOC, or properly exhausted by Mr. Brown, is unclear at this point.
However, what is clear is that Mr. Brown did file his grievance within fifteen working days of
his transfer to SCI-Smithfield. Thus, his limitations period is tolled at least during this time
he was permitted to file, and did file, his grievance and any allowable grievance appeals.

2

The Complaint was docketed on December 22, 2010, but Mr. Brown affirms placing it in
the prison mail system on December 17, 2010. Accordingly, under the prison mailbox rule, the
court considers December 17, 2010, as the filing date. See Longenette v. Krusing, 322 F.3d 758,
761 (3d Cir. 2003).
3

It is important to note that defendants do not argue that Mr. Brown has failed to exhaust
his administrative remedies as to this claim. Thus the court need not examine whether Mr. Brown
has properly exhausted his administrative remedies as to his claim. At this time, the court
examines the filing of a related grievance only for the purpose of resolving the statute of limitations
issue. In doing so, the court will not address whether Mr. Brown properly, or improperly, exhausted
his administrative remedies related to claims pursued in this action as defendants specifically deny
raising such a challenge. See Doc. 56, ECF p. 4.

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Based on the facts in the Complaint, taken in the light most favorable to Mr. Brown, Mr.
Brown’s limitations period was sufficiently extended due to the filing of his December 30,
2008 grievance to make his December 17, 2010, Complaint concerning his December 16,
2008, retaliatory transfer timely filed.

B.

Conspiracy

“In order to prevail on a conspiracy claim under Section 1983, a plaintiff must prove
that persons acting under color of state law conspired to deprive him of a federally
protected right.” Watson v. Sec'y Pa. Dept. of Corr., 436 Fed.Appx. 131, 137 (3d Cir. 2011)
(internal quotation marks omitted). A plaintiff must plead an actual agreement between the
parties. (Id.) Because the “linchpin for conspiracy is agreement, concerted action without
more cannot suffice to state a conspiracy claim.” (Id.)
“As a threshold matter, however, a § 1983 conspiracy claim only arises when there
has been an actual deprivation of a right.” Perano v. Twp. of Tilden, 423 F. App'x 234, 239
(3d Cir. 2011) (nonprecedential) (quoting Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172
F.3d 238, 254 (3d Cir.1999)). A conspiracy claim requires more than mere speculation as
to an agreement. Plaintiff must provide “specific allegations of ‘combination, agreement, or
understanding among all or between any of the defendants to plot, plan or conspire to
carry out the challenged conduct.” Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D.
Pa. 2000); see also Wood v. Williams, 568 F. App'x 100, 107 (3d Cir. 2014)
(nonprecedential).

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Although Mr. Brown claims that all of the DOC defendants conspired to retaliate
against him by transferring him to SCI-Smithfield due to his filing of grievances and letters,
he does not state a cognizable conspiracy claim against any of them as he fails to provide
any particularized allegations as to the conspiracy. The factual allegations of Mr. Brown’s
Complaint do not support a plan or agreement of the defendants to conspire or engage in a
plot to violate his civil rights. Rather, he simply recites his various grievances and letter
and those who were involved in each. Therefore, pursuant to 28 U.S.C. § 1915, Mr.
Brown’s conspiracy claim against the defendants will be dismissed without prejudice and
with leave to amend.

C.

Personal Involvement of Supervisory Defendants

To successfully state a § 1983 claim, a plaintiff must allege: (1) the conduct
complained of was committed by a person acting under color of state law; and (2) the
conduct complained of deprived the plaintiff of rights, privileges, or immunities secured by
the laws or the Constitution of the United States. Rehberg v. Paulk,

U.S.

,

,

132 S.Ct. 1497, 1501, 182 L.Ed.2d 593 (2012); Barkes v. First Corr. Med., Inc., 766 F.3d
307, 316 (3d Cir. 2014).
To establish liability for the deprivation of a constitutional right, an individual
government defendant must have personal involvement in the alleged wrongs; liability
cannot be predicated based on the unconstitutional conduct of their subordinates under a
theory of respondeat superior. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948; Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). “It is uncontested that a government

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official is liable only for his or her own conduct and accordingly must have had some sort of
personal involvement in the alleged unconstitutional conduct.” Argueta v. U.S. I.C.E., 643
F.3d 60, 71-72 (3d Cir. 2011). This personal involvement can be shown where a
defendant personally directs the wrongs, or has actual knowledge of the wrongs and
acquiesces in them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); A.M.
ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)(noting
that “a supervisor may be personally liable under § 1983 if he or she participated in
violating the plaintiff's rights, directed others to violate them, or, as the person in charge,
had knowledge of and acquiesced in his subordinates' violations”). A defendant “cannot be
held responsible for a constitutional violation which he or she neither participated in nor
approved.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201-202 (3d Cir. 2000).
Likewise, a state prisoner’s allegation that prison officials and administrators
responded inappropriately, or failed to respond to a complaint or grievance, does not
establish their personal involvement in the underlying unconstitutional conduct. See Rode,
845 F.2d at 1207 - 08 (finding that after-the-fact review of a grievance is insufficient to
demonstrate the actual knowledge necessary to establish personal involvement); Mincy v.
Chmielsewski, 508 F. App'x 99, 104 (3d Cir. 2013) (nonprecedential) (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) (nonprecedential) ( “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.

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Beard, 167 F. App'x 923, 925 (3d Cir. 2006) (nonprecedential) (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 amount to a
constitutional violation or personal involvement in the alleged constitutional deprivation
grieved).
Defendants seek to dismiss the “supervisory” defendants named in the Complaint
on the basis of lack of personal involvement. They identify the supervisory defendants as
Sprenkle, Vincent, Brandt, Klopotoski, Mooney and Walsh. (Doc. 27, ECF p. 5.) Mr.
Brown argues that he named these defendants for reasons other than their role in
responding to his grievances or letters as defendants claim. (Doc. 32, ECF pp. 2 - 3.)
Based on a review of the Complaint, the court will deny the defendants’ motion to dismiss
the Complaint against supervisory defendants Sprenkle, Brandt, and Lyons as Mr. Brown
specifically identifies these defendants as being involved in his transfer. However, the
defendants’ motion will be granted with respect to the other defendants as Mr. Brown has
failed to identify how each participated in, or directed, his transfer in retaliation for his filing
of grievances, letters or lawsuits.
Mr. Brown will be given the opportunity to file an amended complaint as to the
remaining defendants involvement in the alleged conspiracy to transfer him in retaliation for
exercising his First Amendment rights.

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D.

Retaliatory Transfer

Due to the inherent issues of security within a correctional institution, prisoners do
not have a constitutionally protected right to remain at a particular facility, or housing unit
within a facility. See Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75
L.Ed.2d 813 (1983). However, moving or transferring an inmate in retaliation for exercising
his constitutional rights itself is a violation of the Constitution. See White v. Napolean, 897
F.2d 103, 111 - 12 (3d Cir. 1990); see also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001) (holding that the relevant question in a retaliation case is not whether Plaintiff had a
“protected liberty interest in the privileges he was denied, but whether he was denied those
privileges in retaliation for exercising a constitutional right.”).
“Retaliation against a prisoner for the exercise of his constitutional rights is
unconstitutional.” Bistrian, 696 F.3d at 376. “A prisoner alleging retaliation must show (1)
constitutionally protected conduct, (2) an adverse action by prisoner officials sufficient to
deter a person of ordinary firmness from exercising his constitutional rights, and (3) a
causal link between the exercise of his constitutional rights and the adverse action taken
against him.” Mitchell v. Horn, 318 F.3e 523, 530 (3d Cir. 2003) (internal quotation marks
and citations omitted); see also Bullock v. Buck, 2015 WL 1951895, at *2 (3d Cir. 2015). If
a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to
demonstrate he would have taken the same action even if the plaintiff had not engaged in
the protected activity. See Rauser, 341 F.3d at 334.
Defendants argue that even if it is assumed for the purpose of their motion to
dismiss that Mr. Brown was engaged in constitutionally protected activity, i.e., the exercise

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of his First Amendment rights when filing grievances, complaint letters, and lawsuits
concerning his conditions of confinement, he fails to demonstrate that he suffered an
adverse action as a result of his transfer. They argue that even after his transfer Mr.
Brown continued to file grievances, letters and lawsuits and thus cannot demonstrate that
his transfer caused any adverse consequence sufficient to “deter a person of ordinary
firmness” from exercising his First Amendment rights. (Doc. 27, ECF p. 8.) Mr. Brown
identifies the negative consequences of his transfer (loss of an extended family visit,
financial losses associated with Lifer’s Association dues, loss of lucrative employment, and
shipping costs of his personal property) as demonstrative of the adverse impact he
suffered as a result of the transfer. He argues these adverse actions are sufficiently
serious to deter a person of ordinary firmness from exercising his constitutional rights.
(Doc. 32, ECF pp. 4 - 14.) The Third Circuit Court of Appeals has held that a transfer “to a
distant prison where [an inmate’s] family could not visit him regularly,” and financial
penalties could satisfy the adverse consequences requirement to set forth a retaliation
claim. Rauser, 241 F.3d 330. Additionally, while Mr. Brown asserts a tenuous causal
connection between his grievances and letters and his transfer, and perhaps refutable by
defendants, at the motion to dismiss stage where the court must accept the allegations of
the complaint as true, Mr. Brown’s allegations satisfy the pleading requirements for a First
Amendment retaliation claim against defendants Lyons, Brandt and Sprenkle as they are
alleged to have recommended and/or approved his transfer. See Fantone v. Lantini, 780
F.3d 184, 194 (3d Cir. 2015)(remanding district court’s dismissal of retaliation claim on
motion to dismiss). However, for the reasons cited earlier as to Mr. Brown’s failure to

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allege the personal involvement of the other defendants, he will be granted leave to amend
this claim to assert.

E.

Mr. Brown’s Motion for Equitable Tolling

Mr. Brown has filed a motion seeking ninety “days of the equitable tolling doctrine to
exhaust his prison administrative remedies on the prison Grievance System DC-ADM 804.”
(Doc. 33.) In his motion he recounts how his December 30, 2008 grievance concerning his
transfer was mishandled by various DOC defendants. At this point in time, defendants are
not seeking to dismiss his Complaint on the basis that he failed to exhaust his
administrative remedies. Should defendants raise that affirmative defense, it would be
their burden to prove Mr. Brown’s non-compliance with the administrative remedy process.
Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). At that time Mr. Brown could present
argument as to defendants’ interference with his ability to exhaust his administrative
remedies. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (Section 1997e(a) only
requires that prisoners exhaust such administrative remedies “as are available”). However,
until challenged, Mr. Brown need not affirmatively plead his exhaustion of his administrative
remedies. See Ray, 285 F.3d at 295. Moreover, the court cannot grant Mr. Brown the
relief he requests as he must exhaust his administrative remedies before filing his a civilrights action. See Oriakhi, 165 F. App’x at 993. At best, if he has failed to exhaust his
administrative remedies prior to bringing this action, and defendants raise this affirmative
defense, Mr. Brown may always argue that defendants somehow interfered with his
administrative remedies, and if successful, Mr. Brown’s failure to exhaust his administrative

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remedies could be excused. See Brown, 312 F.3d at 110. Accordingly, Mr. Brown’s
motion for equitable tolling will be denied.

F.

Leave to Amend

“[I]f a complaint is vulnerable to [Rule] 12(b)(6) dismissal, a district court must permit
a curative amendment, unless an amendment would be inequitable or futile.” Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). In this case, it may be possible that
Mr. Brown could remedy the deficiencies of his conspiracy and retaliation claims by
amendment. If desired, Plaintiff may file an amended complaint and should provide more
facts about these claims if he elects to pursue them.
Mr. Brown will be granted twenty-one days to file an amended complaint. If he
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). Consequently, all causes of
action alleged in the first amended complaint which are not alleged in the second amended
complaint are waived. Therefore, if Mr. Brown seeks to continue with his retaliation claim
against defendants Lyons, Brandt and Sprenkle he must include these claims and
supporting allegations in his amended complaint.
Plaintiff 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

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paragraph 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. Plaintiffs’ failure to file an appropriate amended complaint
within the required time will result in this action proceeding only on Mr. Brown’s retaliation
claims against Lyons, Brandt and Sprenkle.
An appropriate order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: September 25, 2015

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