Brown v. Camp Hill et al

Filing 78

MEMORANDUM (Order to follow as separate docket entry) re 75 MOTION for Order filed by Charles Edward Brown, 68 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by William D. Sprenkle, Lori Lyons, Tanya Brandt, Michael D. Klopotoski, Jerome Walsh, Vincent Mooney.Signed by Honorable A. Richard Caputo on 9/29/16. (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
On December 17, 2010, Charles Brown, an inmate presently housed at the

Smithfield State Correctional Institution (SCI-Smithfield), in Huntingdon,
Pennsylvania, filed this action pro se and in forma pauperis pursuant to 42 U.S.C. §
1983. Mr. Brown alleged several Pennsylvania Department of Corrections (DOC)
staff members transferred him from SCI-Dallas to SCI-Smithfield in retaliation for his
filing of grievances. (ECF No. 1, Compl.) The DOC Defendants filed a motion to
dismiss which the Court resolved on September 25, 2015. (ECF No. 65, Order.)
The motion was granted in part and denied in part, and Mr. Brown was given leave
to file an amended complaint. See Brown v. Camp Hill, Civil No. 3:CV-10-2612,
2015 WL 5675575 (M.D. Pa. Sept. 25, 2015).
Mr. Brown filed his Amended Complaint on October 9, 2015. (ECF No. 66,
Am. Compl.) The following DOC employees are named as Defendants: William D.
Sprenkle, Tanya Brandt, Superintendent Michael Klopotoski, Vincent Mooney ,
Jerome Walsh, and Lori Lyons.

Currently pending before the Court is Defendants’ motion to dismiss the
Amended Complaint based on (1) Mr. Brown’s lack of a constitutional right to be
housed at any particular facility; and (2) his failure to state a claim of retaliation.
(ECF No. 68, Mot. to Dismiss Am. Compl.) Mr. Brown opposes the motion claiming
he was transferred in retaliation for filing grievances and complaints complaining of
the lack of heat in his cell. Defendants did not file a reply brief.
For the reasons set forth below, the Court will deny Defendants’ motion to
Dismiss the Amended Complaint.

II.

Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a

complaint, 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 the claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.
2000). The Court does not consider whether a plaintiff will ultimately prevail. Id. A
defendant bears the burden of establishing that a 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,

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551 U.S. 89, 93, 127 S. Ct. 2197, 220, 167 L.Ed. 2d 1081 (2007) (q uoting Bell Atl.
Corp. V. Twombly, 550 U.S. 554, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929
(2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555,
127 S.Ct. at 1964. However, 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). “W hile 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).
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 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). Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, m eaning
enough factual allegations “‘to raise a reasonable expectation that discovery will
reveal evidence of’” each necessary element. Phillips v. Cnty. of Allegheny, 515
F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1965).
“The plausibility standard is not akin to a `probability requirement,' but it asks for

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more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S.
at 678, 127 S.Ct. at 1949. “W hen 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, 129 S. Ct. 1950.
“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of public record, as well as undisputedly
authentic documents if the complainant's claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). 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." In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997).
Pro se litigants are to be granted leave to file a curative amended complaint
even when a plaintiff does not seek leave to amend, unless such an amendment
would be inequitable or futile. See Phillips, 515 F.3d at 245-46. Amendment is
futile where the complaint as amended would still fail to state a claim for relief. In re
Merck & Co., Inc. Sec., Derivative & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007)
(citation omitted).

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III.

Factual Allegations of the Amended Complaint1
In December 2008, Mr. Brown was housed at SCI-Dallas and held a single

cell, or Z-Code, housing designation. At some point during the winter of 2008, SCIDallas received a request from SCI-Smithfield seeking “a z-coded inmate that
displays ‘positive’ adjustment to swap with another inmate from SCI Smithfield.”
(ECF No. 66, p. 21.)
On or about December 5, 2008, Lori Lyons, a Counselor at SCI-Dallas,
presented a DC-46 Vote Sheet to the Transfer Unit Team, suggesting the transfer of
Mr. Brown to SCI-Smithfield. The Transfer Unit Team, which consisted of
Superintendent Michael Klopotoski and Deputy Superintendents Jerome Walsh and
Vincent Mooney, reviewed, approved, and agreed with the transfer. (Id., pp. 4 - 6.)
Tanya Brandt, Administrative Assistant in the DOC’s Office of Population
Management, who is authorized to approve or disapprove transfer requests, also
reviewed and approved the transfer request. (Id., p. 7 and p. 12.) Finally, DOC
Deputy Secretary William Sprenkle reviewed and approved with the transfer. (Id., p.
7.) “Deputy Mooney stated that [Mr. Brown had] been at SCI Dallas for a long
period and could benefit from a change of scenery.” (Id., p. 21.) Mr. Brown was
transferred from SCI-Dallas to SCI-Smithfield on December 16, 2008. (Id., pp. 3 4.)

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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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Mr. Brown claims he was transferred in retaliation for his filing of a grievance
(No. 25086) concerning the lack of heat in his F-Block cell and not for a “change of
scenery”. Specifically, he claims that on December 5, 2008, he placed
Superintendent Klopotoski “on notice” that he would be filing a lawsuit concerning
his conditions of confinement. SCI-Dallas’ Grievance Coordinator, Robing Lucas, a
non-defendant, issued Mr. Brown a response on December 12, 2008. (Id., pp. 16 19.)

IV.

Discussion
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). How ever, 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

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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.3d 523,
530 (3d Cir. 2003) (internal quotation marks and citations omitted); see also Watson
v. Rozum, No. 13-3510, 2016 WL 4435624, at *4 (3d Cir. Aug. 23, 2016) (same). 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.
The filing of a lawsuit is protected activity under the First Amendment right of
prisoners to petition the court. Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.
1997); Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). Likewise, the
submission of grievances is also constitutionally protected conduct. See Mitchell,
318 F.3d at 530.
Defendants argue that Mr. Brown has failed to state a retaliation claim as he
“fails to plead any facts to suggest he was engaged in a constitutionally protected
activity that could have served as the animus for the retaliatory treatment he alleges.
The closest Plaintiff actually comes to such averments are his vague, dateless,
circumstantial conclusions that he was engaged in the practice of ‘writing letters and
using the DC-ADM 804 grievance system.’” (ECF No. 69, p. 9.) As noted above,
the filing of grievances is a constitutionally protected conduct. As Mr. Brown points
out in his Opposition Brief, attached to his Amended Complaint is a DC-135A form,
Inmate’s Request to Staff Member, and a DC-804 Grievance (No. 253540) in which

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he complains about freezing in his unheated cell due to frigid temperatures and
places SCI-Dallas officials “on notice” of his intent to file a lawsuit over this issue.
(ECF No. 66, pp. 16 - 19.) The timing of Mr. Browns filings is also noteworthy. His
writings pre-date his transfer by approximately 11 days. Finally, it is well established
that a transfer to another facility is sufficiently adverse to support a retaliation claim.
DeFranco v. Wolfe, 387 Fed. App'x 147, 157 (3d Cir.2010). Thus, on the face of the
Amended Complaint, Mr. Brown has demonstrated the was engaged in a protected
activity, the filing of institutional grievances, that shared some temporal proximity to
the alleged retaliatory act, his transfer.

V.

Conclusion
Although Mr. Brown faces a substantial burden in proving his claim, his

Amended Complaint does allege sufficient facts to support a cause of action based
on retaliatory transfer. As such, the Defendants’ motion to dismiss will be denied.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: September 29, 2016

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