Moore v. Lamas et al

Filing 39

MEMORANDUM (Order to follow as separate docket entry)A decision as to whether this Court should exercise jurisdiction over any state law tort claims against the Defendants will be held in abeyance pending resolution of all dispositive motions. An appropriate Order will enter. (See Memorandum) Signed by Honorable Richard P. Conaboy on 2/7/14. (cc)

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

THOMAS MOORE,
Plaintiff
v.
MARIROSA LAMAS, ET AL.,
Defendants

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CIVIL NO. 3:CV-12-223
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Thomas Moore, an inmate presently confined at the State
Correctional Institution, Albion, Pennsylvania (SCI-Albion),
initiated this civil rights action pursuant to 42 U.S.C. § 1983.
Following service of the Original Complaint, counsel entered an
appearance on behalf of the Plaintiff.
subsequently filed.

See Doc. 28.

An Amended Complaint was

Defendants responded to the

Amended Complaint by filing a motion seeking entry of partial
dismissal.

The motion (Doc. 35), which is opposed in part, is ripe

for consideration.
Named as Defendants are the Pennsylvania Department of
Corrections (DOC); and the following officials at Plaintiff’s prior
place of confinement the Rockview State Correctional Institution,
Bellefonte, Pennsylvania (SCI-Rockview):

Superintendent Marirosa

Lamas; Unit Manager Kenny Granlund; Captain Lynn Eaton; and
Correctional Officers Perks, Hall, and Fisher.1

1. Plaintiff was transferred from SCI-Rockview to SCI-Albion on or
about December 19, 2011.
1

Plaintiff states that prior to entering SCI-Rockview he was
diagnosed as having a cardiac condition as well as post traumatic
stress disorder from a rape which allegedly occurred during his
pre-trial confinement in a Philadelphia area prison.
¶ 3.

See Doc. 28,

During the Fall, 2010, Defendant Granlund purportedly

“engaged in improper sexual contact with Plaintiff in Granlund’s
office on several occasions.”

Id. at ¶ 12.

On October 12, 2010 and November 8, 2010, Moore claims that
he filed administrative grievances with Superintendent Lamas
regarding the purported sexual abuse by Unit Manager Granlund. In a
third grievance filed on or about December 3, 2010 Moore asserted
that Granlund had singled him out among several inmates all of whom
were engaging in the same conduct by issuing the prisoner a
disciplinary charge.

When Plaintiff was thereafter taken to

Granlund’s office, the Defendant allegedly subjected the prisoner
to verbal abuse.

See id. at ¶ 15.

The Amended Complaint next contends that on or about
December 6, 2010 Moore voluntarily visited Granlund in the latter’s
office regarding the disciplinary charge and accused the Defendant
of writing lies about him.

It is alleged that Unit Manager

Granlund became “enraged” and physically assaulted Moore.
at ¶ 18.

See id.

Plaintiff purportedly suffered injuries from the attack

which required a two day stay in the prison infirmary.
On December 8, 2010, Plaintiff states that he was visited by
Defendants Lamas and Eaton after he left the infirmary.

It is

alleged that those two Defendants refused Plaintiff’s request that
Granlund’s attack be reported to the Pennsylvania State Police.
However, they did provide Moore with the necessary forms to
2

initiate a private criminal complaint against Granlund.

The

Plaintiff was also transferred to the prison’s Restricted Housing
Unit (RHU) where he was purportedly held in a cold cell with no
blankets, telephone or exercise privileges and human waste on the
floor for the ensuing ten (10) months.
On December 9, 2010, Plaintiff had a disciplinary hearing
regarding charges by Granlund that Moore had been in an
unauthorized area on December 8, 2010, refused to leave, and had
threatened the Unit Manager.2

Plaintiff was found guilty of those

allegations and sanctioned to serve 270 days in the RHU.3
Thereafter, Plaintiff contends that he filed grievances
against Granlund regarding the assault and lack of subsequent
medical care which went unanswered.

It is also alleged that

Plaintiff received a contaminated food tray on December 13, 2010,
was denied meals, grievance forms, as well as medical care, and
suffered destruction of his personal legal papers in retaliation
for raising complaints against the Unit Manager.

The Amended

Complaint also maintains that Plaintiff was offered a twenty
thousand ($ 20,000.00) dollar settlement of his claims against
Granlund by someone who apparently was employed by the DOC during a
January 17, 2011 meeting.
It is next alleged that on February 19, 2011, one day after
Moore complained of not receiving food, prison staff including
Defendants Perks, Fisher, and Hall “mopped cleaning fluid into
2. Prior to this hearing Moore asserts that he was warned by Eaton
and the hearing examiner not to talk about his pending sexual abuse
claims against Granlund and to only address the pending charges.
3. Presumably the same ten (10) months of RHU confinement
previously mentioned by Plaintiff.
3

plaintiff’s cell” causing him to pass out onto the concrete floor
from the fumes and injure his head.

Id. at ¶ 42. Moore was

eventually released from the RHU on October 10, 2011 and
transferred to SCI-Albion on December 19, 2011.

The Amended

Complaint concludes that Defendants’ actions violated both federal
and state law.

Moore also asserts pendent state law tort claims.

Defendants’ motion for partial dismissal asserts: (1) the
claims for monetary damages against the individual Defendants in
their official capacities are barred by the Eleventh Amendment; (2)
the DOC is not a properly named defendant; (3) the allegations of
retaliation should be dismissed against all Defendants with the
exception of Unit Manager Granlund; (4) the failure to respond to
grievances claims against Superintendent Lamas lack merit; (5) the
false imprisonment and conspiracy claims are subject to dismissal;
(6) the allegations under the Fourth and Fourteenth Amendment as
well as the Pennsylvania state constitution lack merit; and (7)
Additional Defendants Eaton, Perks, Hall and Fisher were improperly
added to this action.
Plaintiff does not oppose the first two arguments but has
filed an opposing brief addressing Defendants’ remaining
contentions.
Discussion
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of complaints that fail to state a claim upon which
relief can be granted.

When ruling on a motion to dismiss under

Rule 12(b)(6), the court must “accept as true all factual

4

allegations in the complaint and all reasonable inferences that can
be drawn therefrom, and view them in the light most favorable to
the plaintiff.”

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.

2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
A plaintiff must present facts that, if true, demonstrate a
plausible right to relief.

See Fed. R. Civ. P. 8(a)(stating that

the complaint should include “a short and plain statement of the
claim showing that the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This requirement

“calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of” the necessary elements of the
plaintiff’s cause of action.

Id. at 556.

A complaint must contain

“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, ___ U.S. ____ , 129 S.Ct 1937, 1949
(2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Iqbal, 129
S.Ct at 1949.

Legal conclusions must be supported by factual

allegations and the complaint must state a plausible claim for
relief.

See id. at 1950.
“Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, at 555.

The reviewing court must determine whether the

complaint “contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain recovery
under some viable legal theory.”

Id. at 562; see also Phillips v.

County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to
survive a motion to dismiss, a plaintiff must allege in his
5

complaint “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a
particular cause of action).
Official Capacities
Defendants initially contend that the claims for monetary
damages against the individual Defendants in their official
capacities are barred by the Eleventh Amendment.
5.

See Doc. 36, p.

Plaintiff does not oppose this argument.
The Eleventh Amendment bars all suits against a state and

its agencies in federal court that seek monetary damages.

Walker

v. Beard, 244 Fed. Appx. 439, 440 (3d Cir. 2007); see also A.W. v.
Jersey City Public Schools, 341 F.3d 234, 238 (3d Cir. 2003).
Likewise, suits brought against state officials acting in their
official capacities are to be treated as suits against the
employing government agency.

Garden State Elec. Inspection Serv.

v. Levin, 144 Fed. Appx. 247, 251 (3d Cir. 2005).

As such, Moore’s

damage claims brought against the individual Defendants in their
official capacities are considered to be against the state itself
and are barred by the Eleventh Amendment.4
DOC
Defendants’ second argument asserts that because it is an
agency of the Commonwealth of Pennsylvania, the DOC is not a
properly named defendant.

See Doc. 36, p. 6.

This argument is

also unopposed.
The United States Supreme Court has ruled that a § 1983

4. It is noted that Plaintiff does not seek injunctive or
declaratory relief.
6

action brought against a “State and its Board of Corrections is
barred by the Eleventh Amendment unless [the State] has consented
to the filing of such a suit."
(1978).

Alabama v. Pugh, 438 U.S. 781, 782

The Court of Appeals for the Third Circuit has similarly

concluded that the Pennsylvania Board of Probation and Parole could
not be sued because "it is not a 'person' within the meaning of
Section 1983." Thompson v. Burke, 556 F.2d 231, 232 (3d Cir. 1977).
In Will v. Michigan Dep't of State Police, 491 U.S. 58
(1989), the Supreme Court reiterated its position that state
agencies are not "persons" subject to liability in § 1983 actions
brought in federal court.

The Court noted that a § 1983 suit

against a state official's office was "no different from a suit
against the State itself."

Id. at 71.

"Will establishes that the

State and arms of the State, which have traditionally enjoyed
Eleventh Amendment immunity, are not subject to suit under § 1983
in either federal or state court." Howlett v. Rose, 496 U.S. 356,
365 (1990).
Pursuant to the above discussion, the DOC is clearly not a
properly named defendant in a § 1983 action and therefore is
entitled to entry of dismissal.
Rule 15
Defendants next maintain that Additional Defendants Eaton,
Perks, Hall, and Fisher are entitled to dismissal because prior
defense counsel did not consent to the submission of an amended
complaint and Plaintiff did not obtain leave of court to file an
amended complaint.

See Doc. 36, p. 13.

7

Plaintiff opposes this argument on the grounds that his
Amended Complaint was timely prior to the submission of a
responsive pleading by Defendants.
Federal Rule of Civil Procedure 15(a) provides:
(a)

Amendments Before Trial.
(1) Amending as a matter of course.
A party may amend
its pleading once as a matter of course within:
(A) 21 days after serving it; or
(B) if the pleading is one to which a responsive
pleading is required, 21 days after service
of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.

Rule 15(a)(2) additionally provides that “[t]he court should freely
give leave when justice so requires.”
A review of the docket shows that Plaintiff did not
previously submit an amended complaint.

In addition, the Amended

Complaint was filed prior to the submission of a responsive
pleading by the Defendants.

Based upon an application of Rule 15

to those undisputed facts, Moore did not require either the consent
of opposing counsel nor court approval to file his Amended
Complaint.
Accordingly, the request for dismissal of the claims
against Defendants Eaton, Perks, Hall, and Fisher as being
improperly added will be denied.
Personal Involvement
Defendants’ next argument maintains that Superintendent
Lamas is entitled to entry of dismissal because the claims against
the Superintendent cannot be based upon either a theory of

8

respondeat superior or based upon her failure to respond to Moore’s
grievances and institutional requests.5

See Doc. 36, p. 8.

A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements:

(1) that the conduct

complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States.

See Groman v. Township of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1141-42 (3d Cir. 1990).
Federal civil rights claims brought under § 1983 cannot be
premised on a theory of respondeat superior.

Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rather, each

named defendant must be shown, via the complaint's allegations, to
have been personally involved in the events or occurrences which
underlie a claim.

See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976).

As

explained in Rode:
A defendant in a civil rights action must have
personal involvement in the alleged wrongs. . .
. [P]ersonal involvement can be shown through
allegations of personal direction or of actual
knowledge and acquiescence. Allegations of
participation or actual knowledge and
acquiescence, however, must be made with
appropriate particularity.
Rode, 845 F.2d at 1207.

5. Defendants correctly note that although Lamas refused
Plaintiff’s request that the Superintendent contact the State
Police, she did provide Moore with the necessary forms to initiate
a private criminal complaint.
9

Prisoners have no constitutionally protected right to a
grievance procedure.

See Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J., concurring)
(“I do not suggest that the [grievance] procedures are
constitutionally mandated.”); Speight v. Sims, No. 08-2038, 2008 WL
2600723 at *1 (3d. Cir. Jun 30, 2008)(citing Massey v. Helman, 259
F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a prison
grievance procedure confers no liberty interest on a prisoner.”)
While prisoners do have a constitutional right to seek
redress of their grievances from the government, that right is the
right of access to the courts which is not compromised by the
failure of prison officials to address an inmate’s grievance.

See

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance
regulations providing for administrative remedy procedure do not
create liberty interest in access to that procedure).
Pursuant to those decisions, any attempt by Plaintiff to
establish liability against any Defendant solely based upon their
handling of his administrative grievances or complaints does not
support a constitutional claim.

See also Alexander v. Gennarini,

144 Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident
grievance process not a basis for § 1983 liability); Pryor-El v.
Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because prison
grievance procedure does not confer any substantive constitutional
rights upon prison inmates, the prison officials' failure to comply
with grievance procedure is not actionable).
Based upon the above discussion, any claims against
Superintendent Lamas solely based upon her supervisory role within

10

the prison, or her purported failure to respond to internal
grievances and requests are subject to dismissal.6
However, the Amended Complaint does allege that Lamas and
Eaton had actual knowledge of unconstitutional conditions relating
to Plaintiff’s RHU confinement and failed to take any remedial
measures.

Since that allegation sufficiently satisfies the

personal involvement requirement of Rode at this juncture in the
proceedings, those claims against Eaton and Lamas will be allowed
to proceed.
Conspiracy
Defendants maintain that the Amended Complaint does not set
forth a viable conspiracy claim because there are no facts asserted
to show any agreement by Defendants to violate Plaintiff’s
federally protected rights.7

See Doc. 36, p. 10.

Plaintiff counters that the Amended Complaint shows that at
the least there was a “tacit” agreement to stifle his complaints.
See Doc. 37, p. 8.
In order to set forth a cognizable conspiracy claim, a
plaintiff cannot rely on broad or conclusory allegations.

D.R. by

L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364,
1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079 (1993); Rose v.
Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869
F.2d 543, 545 (10th Cir. 1989).

The Third Circuit Court of Appeals

has further noted that "[a] conspiracy claim must . . . contain
6. Based upon a review of the Amended Complaint there is no
assertion that Lamas implemented or approved any prison policy
which violated Plaintiff’s constitutional rights.
7. Count IV of the Amended Complaint is titled false imprisonment
and conspiracy.
11

supportive factual allegations."

Rose, 871 F.2d at 366.

Moreover,

"[t]o plead conspiracy adequately, a plaintiff must set forth
allegations that address the period of the conspiracy, the object
of the conspiracy, and the certain actions of the alleged
conspirators taken to achieve that purpose."

Shearin v. E.F.

Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989).
The essence of a conspiracy is an agreement or concerted
action between individuals.
Durre, 869 F.2d at 545.

See D.R. by L.R., 972 F.2d at 1377;

Consequently, a plaintiff must allege with

particularity and present material facts which show that the
purported conspirators reached some understanding or agreement or
plotted, planned and conspired together to deprive plaintiff of a
protected federal right.

Id.; Rose, 871 F.2d at 366; Young, 926

F.2d at 1405 n.16; Chicarelli v. Plymouth Garden Apartments, 551 F.
Supp. 532, 539 (E.D. Pa. 1982).

Where a civil rights conspiracy is

alleged, there must be some specific facts in the complaint which
tend to show a meeting of the minds and some type of concerted
activity.

Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985).

A plaintiff cannot rely on subjective suspicions and unsupported
speculation.

Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.

1991).
There are no averments of fact in the Amended Complaint that
reasonably suggest the presence of an agreement or concerted
activity between the Defendants.

Moore has simply not alleged any

facts showing any communication or cooperation among any Defendants
from which an agreement could be inferred.

While Plaintiff has set

forth some claims of constitutional misconduct, he has not
adequately alleged that those actions were the result of a
12

conspiracy.

Dismissal will be granted with respect to the claim of

conspiracy.
Fourteenth Amendment
The Amended Complaint alleges that Plaintiff was placed in
the RHU on December 8, 2010, possibly on administrative custody
status pending the outcome of pending disciplinary charges.

The

following day Moore was found guilty of multiple disciplinary
charges and sanctioned to a 270 day term of disciplinary custody.
Plaintiff asserts that this period of RHU confinement constituted
false imprisonment.

This claim will be construed in part as

asserting a violation of the Fourteenth Amendment.8
Defendants assert that the Amended Complaint to the extent
that it alleges that Plaintiff was improperly placed in
disciplinary custody in violation of his rights under the
Fourteenth Amendment is subject to dismissal.

See Doc. 36, p. 10.

Plaintiff counters that this claim is viable because he was the
victim of false charges, was prevented from testifying at his
disciplinary hearing about Granlund’s prior sexual abuse, and
denied the opportunity to present testimony by correctional
officers.

See Doc. 37, p. 10.

The Fourteenth Amendment of the United States Constitution
provides in pertinent part: “No State shall . . . deprive any
person of life, liberty, or property, without due process of law .
. . ."

The Supreme Court has mandated a two-part analysis of a

procedural due process claim:

first, “whether the asserted

individual interests are encompassed within the . . . protection of
8. To the extent that Plaintiff is asserting a pendent state law
tort claim, said allegation is addressed separately herein.
13

'life, liberty or property[,]'" and second, “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).

If there is no protected liberty or property interest, it is
obviously unnecessary to analyze what procedures were followed when
an alleged deprivation of an interest occurred.
Liberty interests protected by the Fourteenth Amendment may
arise either from the Due Process Clause itself or from state law.
Meachum v. Fano, 427 U.S. 215, 223-26 (1976).

In Wolff v.

McDonnell, 418 U.S. 539, 563-73 (1974), the Supreme Court held that
a prisoner facing serious institutional sanctions is entitled to
some procedural protection before penalties can be imposed.
418 U.S. at 563-71.

Wolff,

The Supreme Court set forth five requirements

of due process in a prison disciplinary proceeding: (1) the right
to appear before an impartial decision-making body; (2) twenty-four
hour advance written notice of the charges; (3) an opportunity to
call witnesses and present documentary evidence, provided the
presentation of such does not threaten institutional safety or
correctional goals; (4) assistance from an inmate representative,
if the charged inmate is illiterate or if complex issues are
involved; (5) a written decision by the fact finders as to the
evidence relied upon and the rationale behind their disciplinary
action. Id.
An additional procedural requirement was set forth in
Superintendent, Massachusetts Correctional Inst. at Walpole v.
Hill, 472 U.S. 445, 453-56 (1985).

In Hill, the Supreme Court held

that there must be some evidence which supports the conclusion of
the disciplinary tribunal.

The Third Circuit Court of Appeals, and
14

other courts applied the Wolff principles to prison disciplinary
hearings which did not result in withdrawal of good time credit but
instead in disciplinary or administrative segregation.

E.g.,

Grillo v. Coughlin, 31 F.3d 53 (2d Cir. 1994); Griffin v. Spratt,
969 F.2d 16 (3d Cir. 1992); Cook v. Lehman, 863 F. Supp. 207 (E.D.
Pa. 1994).
However, the United States Supreme Court's subsequent
decision in Sandin v. Conner, 515 U.S. 472 (1995), marked a shift
in the focus of liberty interest analysis from one "based on the
language of a particular regulation" to "the nature of the
deprivation" experienced by the prisoner.

Id. at 481.

In Sandin,

the Supreme Court reasoned, inter alia, that "[d]iscipline by
prison officials in response to a wide range of misconduct" is
expected as part of an inmate's sentence.

Id. at 485.

The nature

of an inmate’s confinement in disciplinary segregation was found
similar to that of inmates in administrative segregation and
protective custody at his prison. Id. at 486.
Focusing on the nature of the punishment instead of on the
words of any regulation, the Supreme Court held that the procedural
protections in Wolff were inapplicable because the "discipline in
segregated confinement did not present the type of atypical,
significant deprivation in which a state might conceivably create a
liberty interest."

Id.

The Sandin Court relied on three factors

in making this determination: (1)confinement in disciplinary
segregation mirrored conditions of administrative segregation and
other forms of discretionary confinement; (2) based on a comparison
between inmates inside and outside segregation, the state's action
in placing the inmate there did not work a major disruption in the
15

inmate's environment; and (3) the state's action did not inevitably
affect the duration of inmate's sentence.
Courts within this circuit, applying Sandin in various
actions, have found no merit in procedural due process claims
presented regarding institutional disciplinary hearings which
result in disciplinary custody placement.

See Torres v. Fauver,

292 F.3d 141, 150-51 (3d Cir. 2002)(because prisoners can
reasonably anticipate transfer to disciplinary custody, placement
in segregation as a disciplinary sanction did not implicate a
protected liberty interest); Griffin v. Vaughn, 112 F.3d 703, 70608 (3d Cir. 1997)(no liberty interest; Smith v. Mensinger, 293 F.3d
641, 645, 654 (3d Cir. 2002)(seven (7) months of disciplinary
confinement did not implicate liberty interest); Vorhauer v.
Conrad, No. 3:CV-90-2196 (M.D. Pa. Jan. 29, 1997) (Vanaskie, J.)
(inmate's confinement in disciplinary custody for ninety days in
accordance with DOC procedures did not give rise to a protected
liberty interest).

Plaintiff contends that he was found guilty of

multiple misconduct charges and as a result, served a 270 day
(approximately ten month) RHU term.
Considering the rules of law set forth in Sandin and the
subsequent line of decisions cited above, this Court finds that the
procedural due process claims set forth by Plaintiff because the
270 day term of disciplinary custody was not of such magnitude as
to implicate a protected liberty interest under Sandin.9
9. Plaintiff's action to the extent that it may allege that he was
improperly placed in administrative custody status for
approximately one (1) day is equally meritless because the
magnitude of any such admittedly brief placement in administrative
custody did not implicate a protected liberty interest.
16

Fourth Amendment
Moore also claims that his rights under the Fourth Amendment
were violated.

See Doc. 1, ¶ 66.

It appears that this contention

may relate to the assertion that Plaintiff’s legal papers were
destroyed.

Defendants seek dismissal of this claim as the Fourth

Amendment protections are not applicable within the confines of the
prison cell.

Since Plaintiff’s opposing brief does not

specifically address this argument, it will be deemed unopposed.
The Fourth Amendment prohibits unreasonable searches and
seizures.

Inmates are also protected from cruel and unusual

punishment under the Eighth Amendment.

However, reasonable

searches within the prison walls are constitutionally permissible.
See

Carroll v. United States, 267 U.S. 132, 147 (1925); Allegheny

County Prison Employees v. County of Allegheny, 124 Fed. Appx. 140,
141-42 (3d Cir. 2005).

When addressing the legality of searches

courts must balance “the need for the particular search against the
personal rights that the search entails.”
U.S. 520, 559 (1979).

Bell v. Wolfish, 441

It is also well recognized that one of the

consequences of entering a correctional facility is a diminished
expectation of privacy.
Moreover, any claim raised by Plaintiff relating to the
seizure of his personal legal papers is more properly asserted as a
violation of his right of access to the courts.10

Accordingly the

unopposed request for dismissal of the Fourth Amendment claim will
be granted.
10. Furthermore, the only correctional official who is actually
linked with the assertion of destruction of legal property has not
been named as a defendant. Consequently, it does not appear that
Moore intends to pursue such a claim.
17

Retaliation
Defendants next contend that with exception of the
allegations against Unit Manager Granlund, the Amended Complaint
fails to assert a viable retaliation claim. See Doc. 36, p. 6.
Specifically, it is asserted that Moore has not demonstrated a link
between his exercise of constitutionally protected conduct and the
alleged constitutional misconduct attributed to the other
Defendants.

They assert that since Plaintiff only filed grievances

against Granlund the assertions of retaliation against the other
Defendants must fail.
Plaintiff counters that although the other Defendants were
not the subjects of his internal complaints, the Amended Complaint
alleges that those officials attempted to cover up Granlund’s
misconduct and silence Moore.

See Doc. 37, p. 5.

It is especially

noted that alleged retaliatory acts took place after Plaintiff
refused to accept a twenty thousand ($20,000.00) dollar settlement.
Moreover, the assertion that Perks, Halls, and Fisher specifically
mopped chemicals into his cell one day after Moore raised a
complaint of being deprived food sufficiently sets forth a
retaliation claim.
To establish a Section 1983 retaliation claim, a plaintiff
bears the burden of satisfying three (3) elements.

First, a

plaintiff must prove that he was engaged in a constitutionally
protected activity.

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001). Second, a prisoner must demonstrate that he “suffered some
‘adverse action’ at the hands of prison officials.”

(Id.)(quoting

Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied by showing adverse action “sufficient ‘to
18

deter a person of ordinary firmness’ from exercising his First
Amendment rights.”
235 (3d Cir. 2000)).

(Id.)(quoting Suppon v. Dadonna, 203 F.3d 228,
Third, a prisoner must prove that “his

constitutionally protected conduct was ‘a substantial or motivating
factor’ in the decision to discipline him.”

Rauser, 241 F.3d at

333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)).

The mere fact that an adverse action occurs after a

complaint or grievance is filed is relevant, but not dispositive,
for the purpose of establishing a causal link between the two
events.11

See Lape v. Pennsylvania, 157 Fed. App’x. 491, 498 (3d

Cir. 2005).
Once Plaintiff has made a prima facie case, the burden
shifts to the Defendants to prove by a preponderance of the
evidence that they “would have made the same decision absent the
protected conduct for reasons reasonably related to penological
interest.”

Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir.

2002)(internal quotation and citation omitted).

When analyzing a

retaliation claim, it must be recognized that the task of prison
administrators and staff is difficult, and the decisions of prison
officials require deference, particularly where prison security is
concerned.

Rauser, 241 F.3d at 334.

It is alleged that on February 19, 2011, Defendants Perks,
Fisher, and Hall “mopped cleaning fluid into plaintiff’s cell when
he complained of not getting any food.”

Doc. 28, ¶ 42.

The

11.
Only where the facts of a particular case are “unusually
suggestive” of a retaliatory motive will temporal proximity,
standing alone, support an inference of causation. Krouse v.
American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
19

submission of grievances is a constitutionally protected conduct.
See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Thus, this
Court will accept that the first prong of Rauser, i.e., that the
Plaintiff be engaged in a constitutionally protected activity, has
been satisfied.
However, Plaintiff has clearly not demonstrated that his
exercise of a constitutionally protected right was a substantial or
motivating factor behind the alleged mopping of chemicals into his
cell as required by the third prong of Rauser.

The mere fact that

Moore made a complaint one day earlier about not receiving a meal
does not sufficiently show that said complaint was a substantial or
motivating factor in the alleged mopping of chemicals into his RHU
cell the following day as required under Rauser.

However, although

a viable retaliation claim has not been stated, this Court does
find that the allegation against Perks, Fisher, and Hall is
sufficient to set forth a claim that those three Defendants
subjected Moore to unconstitutional conditions of confinement.12
With respect to Superintendent Lamas and Captain Eaton, the
Amended Complaint alleges that those two officials visited

12.
The Eighth Amendment’s prohibition of cruel and unusual
punishment imposes duties on prison officials to provide prisoners
with the basic necessities of life, such as food, clothing,
shelter, sanitation, medical care and personal safety. See Farmer
v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S.
25, 31 (1993). Prison conditions may amount to cruel and unusual
punishment if they cause “unquestioned and serious deprivations of
basic human needs ... [that] deprive inmates of the minimal
civilized measure of life’s necessities.” Tillman v. Lebanon
County Correctional Facility, 221 F.3d 410 (3d Cir. 2000).
The allegations against Defendants Perks, Fisher, and Hall
with respect to their alleged conduct of February 19, 2011 will be
allowed to proceed to the extent that they assert a claim of being
exposed to unconstitutional conditions of confinement.
20

Plaintiff in his cell on December 8, 2010 .

During this visit they

refused Plaintiff’s request that they contact the State Police but
provided him with the necessary forms to pursue a private criminal
complaint.
It is also alleged that Lamas and Eaton had Plaintiff placed
in the RHU, failed to respond to his grievances/requests and that
Eaton told the inmate to limit his disciplinary hearing testimony
to the issue of whether he had committed the alleged infraction and
not to talk about Granlund’s alleged sexual misconduct.

Although

Plaintiff’s assertions could support a claim that Eaton and Lamas’
actions

may have been undertaken in an effort to cover up improper

conduct by Granlund, there are no facts asserted which could
support a claim that Lamas and Eaton were retaliating against the
Plaintiff for engaging in constitutionally protected activity as
required under Rauser.13
State Law Claims
Finally, federal courts have jurisdiction over state claims
which are related to the federal claims and result from a common
nucleus of operative facts.

See United Mine Workers v. Gibbs, 383

U.S. 715, 725 (1966).
28 U.S.C. § 1367(c)(3) (1997) provides that a district court
may decline to exercise supplemental jurisdiction over a claim when
the court has dismissed all claims over which it has original
jurisdiction.

Once the basis for federal jurisdiction disappears,

13.
Only where the facts of a particular case are “unusually
suggestive” of a retaliatory motive will temporal proximity,
standing alone, support an inference of causation. Krouse v.
American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
21

a district court should only exercise its discretion to entertain
pendent claims if extraordinary circumstances exist.

New Jersey

Department of Enviromental Protection v. Glouchester Enviromental
Management, 719 F. Supp. 325, 337 (D. N.J.

1989).

A decision as to whether this Court should exercise
jurisdiction over any state law tort claims against the Defendants
will be held in abeyance pending resolution of all dispositive
motions.

An appropriate Order will enter.14

S/Richard P. Conaboy_________________________
RICHARD P. CONABOY
United States District Judge

DATED: FEBRUARY 7, 2014

14. In an effort to bring this matter to timely eesolution, a
status conference will be scheduled by the Court.
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23