Duganne v. Giroux et al

Filing 50

MEMORANDUM (Order to follow as separate docket entry) re 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM in Amended Complaint filed by Corizon Medical Department, Dr. Famiglio, 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Clemens, Harding, Wendy Nicholas, Frank Welsh, Moore, Boyles, Giroux Signed by Honorable Malachy E Mannion on 9/15/14. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
W.D. Pennsylvania.
John DARE, Plaintiff,
v.
UNITED STATES of America, et al., Defendants.
Civil Action No. 06-115 Erie.

to dismiss, or alternatively, for summary judgment [Doc.
No. 13] is GRANTED; the retaliation claim is
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A
and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state
a claim; and Plaintiff's motion to amend the complaint
[Doc. No. 19] is DENIED as futile.
The Report and Recommendation [Doc. No. 20] of
Magistrate Judge Baxter, filed on May 31, 2007, is
adopted as the opinion of the Court.
MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION

June 21, 2007.
John Dare, Silver Spring, MD, pro se.
Michael C. Colville, Pittsburgh, PA, for Defendants.
MEMORANDUM ORDER
SEAN J. McLAUGHLIN, United States District Judge.
*1 This civil rights action was received by the Clerk
of Court on May 17, 2006, and was referred to United
States Magistrate Judge Susan Paradise Baxter for report
and recommendation in accordance with the Magistrates
Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4
of the Local Rules for Magistrates.
The Magistrate Judge's Report and Recommendation
[Doc. No. 20], filed on May 31, 2007, recommended that
Defendants' motion to dismiss, or alternatively, for
summary judgment [Doc. No. 13] be granted; that the
retaliation claim be dismissed pursuant to 28 U.S.C. §§
1915(e)(2), 1915A and 42 U.S.C. § 1997e(c) due to
Plaintiff's failure to state a claim; and that Plaintiff's
motion to amend the complaint [Doc. No. 19] be denied as
futile. The parties were allowed ten (10) days from the
date of service to file objections. Service was made on
Plaintiff by certified mail and on Defendants. No
objections were filed. After de novo review of the motions
and documents in the case, together with the Report and
Recommendation, the following order is entered:
AND NOW, this 21st day of June, 2007;

SUSAN PARADISE BAXTER, Chief United States
Magistrate Judge.
I. RECOMMENDATION
It is respectfully recommended that the motion to
dismiss, or alternatively, for summary judgment
[Document # 13] be granted.
It is further recommended that the retaliation claim be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A,
and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state
a claim.
It is further recommended that Plaintiff's motion to
amend the complaint [Document # 19] be denied as futile.
II. REPORT
A. Procedural History
On May 17, 2006, Plaintiff, formerly a federal inmate
incarcerated at FCI-McKean in Bradford,
Pennsylvania, filed the instant action. Named as
Defendants are: the United States of America; James
Sherman, former Warden; Deanna Tronetti, Unit
Manager; Robert Fair, Case Manager, all currently or
formerly of FCI-McKean; and Steven Brunson, Analyst at
U.S. Parole Commission.
FN1

FN1. At the time of the filing of this lawsuit,
Plaintiff was incarcerated, but he has since been

IT IS HEREBY ORDERED that Defendants' motion
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released.
This is a combined Bivens /FTCA action based on
Plaintiff's allegation that he was confined in prison more
than twenty months past his parole eligibility date. In his
original complaint, Plaintiff alleges that staff at both
FCI-McKean and the U.S. Parole Commission provided
inaccurate information regarding his past criminal history
(relating to a 1973 juvenile conviction for Carnal
Knowledge) in an attempt to deny him parole. Plaintiff
claims that through their actions Defendants violated his
First, Fifth, and Eighth Amendment rights under Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971). Further, Plaintiff
alleges that the U.S. should be held liable for the gross
negligence of its employees under the Federal Tort Claims
Act. Finally, Plaintiff alleges that Defendants knew the
information to be false and provided it in retaliation for
exercising his constitutional rights. Document # 3, ¶ 37.
As relief for these alleged wrongs, Plaintiff seeks
monetary compensation.
*2 Defendants have filed a motion to dismiss or in the
alternative for summary judgment [Document # 13] and
Plaintiff has filed a brief in opposition [Document # 17].
Plaintiff has also filed a motion to amend the complaint
[Document # 19]. These issues are fully briefed and are
ripe for disposition by this Court.
B. Standards of Review
1. Pro Se Litigants
Pro se pleadings, “however inartfully pleaded,” must
be held to “less stringent standards than formal pleadings
drafted by lawyers” and can only be dismissed for failure
to state a claim if it appears “ ‘beyond a doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.’ “ Haines v. Kerner, 404
U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652(1972),
quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957). If the court can reasonably read
pleadings to state a valid claim on which the litigant could
prevail, it should do so despite failure to cite proper legal
authority, confusion of legal theories, poor syntax and
sentence construction, or litigant's unfamiliarity with
pleading requirements. Boag v. MacDougall, 454 U.S.

364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); United States
ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d
Cir.1969) (petition prepared by a prisoner may be
inartfully drawn and should be read “with a measure of
tolerance”); Smith v. U.S. District Court, 956 F.2d 295
(D.C.Cir.1992); Freeman v. Department of Corrections,
949 F.2d 360 (10th Cir.1991). Under our liberal pleading
rules, during the initial stages of litigation, a district court
should construe all allegations in a complaint in favor of
the complainant. Gibbs v. Roman, 116 F.3d 83 (3d
Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d
Cir.1996) (discussing Fed.R.Civ.P. 12(b)(6) standard);
Markowitz v. Northeast Land Company, 906 F.2d 100,
103 (3d Cir.1990) (same). Because Plaintiff is a pro se
litigant, this Court will consider facts and make inferences
where it is appropriate.
2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)
A motion to dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) must be viewed in the light most
favorable to the plaintiff and all the well-pleaded
allegations of the complaint must be accepted as true.
Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104
L.Ed.2d 338 (1989); Estelle v. Gamble, 429 U.S. 97, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976). The motion cannot be
granted unless the court is satisfied “that no relief could be
granted under any set of facts that could be proved
consistent with the allegations.” Hishon v. King &
Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d
59 (1984). The issue is not whether the plaintiff will
prevail at the end but only whether he should be entitled
to offer evidence to support his claim. Neitzke; Scheuer v.
Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal
Rules of Civil Procedure states that a pleading must set
forth a claim for relief which contains a short and plain
statement of the claim showing that the pleader is entitled
to relief. Therefore, in order to survive a motion to dismiss
for failure to state a claim, the complaint must set forth
sufficient information to suggest that there is some
recognized legal theory upon which relief can be granted.
3. Failure to state a claim under the PLRA
*3 The Prison Litigation Reform Act provides that:
(b) Grounds for dismissal-On review, the court shall
identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint-(1) is

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frivolous, malicious, or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from
a defendant who is immune from such relief.
28 U.S.C.A. § 1915A. Under Section 1915A, not only
is a court permitted to sua sponte dismiss a complaint
which fails to state a claim, but is required to do so. Nieves
v. Dragovich, 1997 WL 698490, at *8 (E.D.Pa.1997)
(“Under provisions of the Prison Litigation Reform Act
codified at 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. §
1997e(c), the district courts are required, either on the
motion of a party or sua sponte, to dismiss any claims
made by an inmate that are frivolous or fail to state a claim
upon which relief could be granted.”).
The PLRA also amended the statutory provisions with
respect to actions brought by prisoners who are
proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)
FN2
. Under this provision as well, not only is a court
permitted to sua sponte dismiss a complaint which fails to
state a claim, but it is required to do so by mandatory
language. See, e.g., Keener v. Pennsylvania Bd. of
Probation and Parole, 128 F.3d 143, 145 n. 2 (3d
Cir.1997) (describing 28 U.S.C. § 1915(e)(2)(B) as “the
PLRA provision mandating sua sponte dismissal of in
forma pauperis actions that are frivolous or fail to state a
claim.”). In performing a court's mandated function of sua
sponte reviewing a complaint under 28 U.S.C. § 1915(e)
and under § 1915A to determine if it fails to state a claim
upon which relief can be granted, a federal district court
applies the same standard applied to motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6). See, e.g
., Tucker v. Angelone, 954 F.Supp. 134, 135
(E.D.Va.1977) (“Under 28 U.S.C. §§ 1915A, 1915(e) and
42 U.S.C. § 1997e(c) the courts are directed to dismiss
any claims made by inmates that ‘fail to state a claim upon
which relief could be granted’ “.).
FN2. Title 28 U.S.C. § 1915(e)(2) provides:
“Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court
determines that-(B) the action or appeal-(i) is
frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is

immune from such relief.”
A motion to dismiss filed pursuant to Federal Rule of
Civil Procedure 12(b)(6) must be viewed in the light most
favorable to the plaintiff and all the well-pleaded
allegations of the complaint must be accepted as true.
Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104
L.Ed.2d 338 (1989); Langford v. City of Atlantic City, 235
F.3d 845, 847 (3d Cir.2000). The motion cannot be
granted unless the court is satisfied “that no relief could be
granted under any set of facts that could be proved
consistent with the allegations.” Hishon v. King &
Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d
59 (1984). See also Swierkiewicz v. Sorema N.A., 534
U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The issue
is not whether the plaintiff will prevail at the end but
whether he should be entitled to offer evidence in support
of his claim. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989); Scheuer v. Rhodes, 419
U.S. 232 (1974). However, a court need not credit a
complaint's “bald assertions” or “legal conclusions” when
deciding a motion to dismiss. Morse v. Lower Merion
School Dist., 132 F.3d 902, 906 (3d Cir.1997) citing In re
Burlington Coat Factory Securities Litigation, 114 F.3d
1410, 1429-30 (3d Cir.1997). Therefore, in order to
survive a motion to dismiss for failure to state a claim, the
complaint must only set forth sufficient information to
suggest that there is some recognized legal theory upon
which relief can be granted. See Swierkiewicz.
*4 The court's obligation to dismiss a complaint under
the PLRA is not excused even after the defendants have
filed a motion to dismiss if it appears that the complaint
fails to state a claim based upon grounds not raised by the
defendants in their motion to dismiss. See, e.g., Lopez v.
Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir.2000); Palay v.
United States, 125 F.Supp.2d 855, 860 (N.D.Ill.2000).
4. Motion for summary judgment pursuant to
Fed.R.Civ.P. 56
Federal Rule of Civil Procedure 56(c) provides that
summary judgment shall be granted if the “pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”

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Rule 56(e) further provides that when a motion for
summary judgment is made and supported, “an adverse
party may not rest upon the mere allegations or denials of
the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall be
entered against the adverse party.” Id.
A district court may grant summary judgment for the
defendant when the plaintiff has failed to present any
genuine issues of material fact. See Fed.R.Civ.P. 56(c);
Krouse v. American Sterilizer Company, 126 F.3d 494,
500 n. 2 (3d Cir.1997). The moving party has the initial
burden of proving to the district court the absence of
evidence supporting the non-moving party's claims.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Country Floors, Inc. v. Partnership
Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d
Cir.1990). Further, “[R]ule 56 enables a party contending
that there is no genuine dispute as to a specific, essential
fact ‘to demand at least one sworn averment of that fact
before the lengthy process of litigation continues.’ “
Schoch v. First Fidelity Bancorporation, 912 F.2d 654,
657 (3d Cir.1990), quoting Lujan v. National Wildlife
Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d
695 (1990).
The burden then shifts to the non-movant to come forward
with specific facts showing a genuine issue for trial.
Matsushita Elec. Indus. Company v. Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Williams v. Borough of West Chester, Pa., 891 F.2d 458,
460-461 (3d Cir.1989) (the non-movant must present
affirmative evidence-more than a scintilla but less than a
preponderance-which supports each element of his claim
to defeat a properly presented motion for summary
judgment). The non-moving party must go beyond the
pleadings and show specific facts by affidavit or by
information contained in the filed documents (i.e.,
depositions, answers to interrogatories and admissions) to
meet his burden of proving elements essential to his claim.
Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at
1061.
C. The Bivens Claim

*5 Defendants argue that Plaintiff's Bivens claim
should be dismissed pursuant to the favorable termination
requirement of Heck v. Humphrey [512 U.S. 447 (1994)
] and its progeny.
In Heck, the Supreme Court held that a state prisoner
could not maintain a § 1983 action for damages under the
civil rights laws if “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or
sentence ... unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” 512
U.S. at 487. The Court recently summarized this so-called
“favorable termination requirement” by explaining that a
“state prisoner's § 1983 action is barred (absent prior
invalidation)-no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's suit
(state conduct leading to conviction or internal prison
proceedings)-if success in that action would necessarily
demonstrate the invalidity of confinement or its duration.”
Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242,
161 L.Ed.2d 253 (2005). See also Hill v. McDonough, --U.S. ----, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006);
Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303, 158
L.Ed.2d 32 (2004).FN3
FN3. The federal courts consistently apply Heck
in Bivens-type actions. See Banks v. Hayward,
2007 WL 470472 (3d Cir. February 13, 2007)
(applying Heck favorable termination rule in
Bivens action); Williams v. Hill, 74 F.3d 1339,
1340 (D.C.Cir.1996) (per curiam) (applying
Heck to damages actions against federal officials
in actions brought under Bivens ); Tavarez v.
Reno, 54 F.3d 109, 110 (2d Cir.1995); Messer v.
Kelly, 129 F.3d 1259 (Table) (4th Cir.1997);
Stephenson v. Reno, 28 F.3d 26, 27 (5th
Cir.1994); Robinson v. Jones, 142 F.3d 905,
906-07 (6th Cir.1998) (“While Heck concerned
an action brought under 42 U.S.C. § 1983, we
adopt the rule espoused by the Fifth and Eleventh
Circuits that the Heck holding applies equally to
an action brought under Bivens.” ); Clemente v.
Allen, 120 F.3d 703, 705 (7th Cir.1997); Martin
v. Sias, 88 F.3d 774, 775 (9th Cir.1996); Reed v.
Smith, 182 F.3d 933 (Table) (10th Cir.1999);
Abella v. Rubino, 63 F.3d 1063, 1065 (11th
Cir.1995).

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presented by this appeal.”
So then, the law is well established that a claimant
cannot use a civil rights action as a vehicle to circumvent
the validity of his underlying conviction or the duration of
his sentence. Thus, in order to recover damages, a Bivens
plaintiff must prove that the conviction has been reversed
or declared invalid by a disciplinary appeal. See Banks v.
Hayward, 2007 WL 120045, at * 6 n. 7 (W.D.Pa. January
10, 2007), citing Avery v. Nichol, 2000 WL 282903, at *2
(6th Cir.2000). Plaintiff can make no such showing here.
In the instant complaint, Plaintiff alleges violations of
his constitutional rights arising out of the denial of his
parole eligibility.FN4 Not only has Plaintiff not proven that
the duration of his sentence has been reversed or declared
invalid, but the term of his incarceration has been
specifically upheld by this very Court, as well as the
United States Court of Appeals for the Third Circuit. By
Order dated May 3, 2006, United States District Judge
Sean J. McLaughlin denied the petition for writ of habeas
corpus following a Report and Recommendation issued by
this Magistrate Judge.FN5 See Dare v. United States Parole
Commission, Civil Action Number 05-257E. Plaintiff
appealed that determination to the Third Circuit, which
upheld this district court's determination on January 9,
2007.FN6
FN4. Plaintiff's parole history is long and
procedurally convoluted and need not necessarily
be related herein.
FN5. One of the claims raised in the petition was
summarized by this Court as “that he is being
denied release due to the [U.S. Parole]
Commission's improper use of a 1973 conviction
under the District of Columbia's Youth
Corrections Act to deny Dare access to a
Community Treatment Program. Indeed, his
status as a prior sex offender is premised upon
this conviction, and that status does limit his
ability to locate a suitable post-incarceration
placement.”
FN6. The Third Circuit granted the government's
motion for summary affirmance “because it
clearly appear[ed] that no substantial question is

Here, a finding by this Court that Defendants violated
Plaintiff's constitutional rights would “necessarily imply
the invalidity” of the sentence, a sentence which has been
upheld by this Court and the Third Circuit. Accordingly,
Plaintiff's constitutional claim is precluded by Heck and
the motion to dismiss should be granted as to this claim.
D. The FTCA Claim
1. The Favorable Termination Requirement of Heck
The FTCA claim should also be dismissed pursuant
to the favorable termination requirement of Heck. The
United States Court of Appeals for the Third Circuit has
not specifically applied the Heck rule in the FTCA
context. However, many other Circuit Courts of Appeal,
as well as district courts, have applied Heck to FTCA
actions, and this Court finds their reasoning persuasive.
See Parris v. United States, 45 F.3d 383, 385 (10th
Cir.1995) ( “[W]e conclude the same common law
principles that informed the Supreme Court's decision in
Heck should inform the decision of whether an action
under the FTCA is cognizable when it calls into question
the validity of a prior conviction. We conclude the FTCA,
like § 1983, is not an appropriate vehicle for challenging
the validity of outstanding criminal judgments.”); Rashid
v. Monteverde & Hemphill, 1997 WL 360922, at * 7 n. 15
(E.D.Pa.1997) (applying Heck to FTCA claims involving
false arrest, false imprisonment and malicious
prosecution); Hinton v. United States, 91 Fed. Appx.,
2004 WL 540473 (6th Cir.2003) (in applying Heck, the
appellate court held “here, plaintiff seeks return of the
documents for which he stands convicted of forging or
counterfeiting, and money damages for the allegedly
tortious confiscation of the documents.... plaintiff's claims
are not cognizable under the FTCA insofar as a ruling in
plaintiff's favor would imply the invalidity of plaintiff's
disciplinary conviction.”); Bradshaw v. Jayaraman, 205
F.3d 1339 (Table) 1999 WL 1206870, at *2 (6th
Cir.1999) (in an FTCA action alleging legal malpractice
by appointed criminal defense attorney, two law firm
employees and court reporter, the appellate court held “a
plaintiff may not bring such a suit for monetary damages
under federal law until his conviction has been reversed on
direct appeal, expunged by executive order, declared

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invalid by a state tribunal, or has otherwise been called
into question by a federal court's issuance of a writ o
habeas corpus. The holding in Heck bars such actions,
whether brought under Bivens, or the FTCA.”); Erlin v.
United States, 364 F.3d 1127, 1133 (9th Cir.1994) (an
FTCA claim “for negligently calculating a prisoner's
release date, or otherwise wrongfully imprisoning the
prisoner, does not accrue until the prisoner has
established, in a direct or collateral attack on his
imprisonment, that he is entitled to release from
custody.”); Watkins v. Holt, 2006 WL 2331090, at *2
(D.D.C.2006) (in an FTCA action alleging negligence by
Bureau of Prisons employees in miscalculating a prison
sentence, the district court applied Heck holding that
“absent a showing that plaintiff's conviction or sentence is
invalid, he cannot recover damages under the FTCA.”);
Echols v. Dwyer, 914 F.Supp. 325, 327 (E.D.Mo.1996) (in
an FTCA action alleging legal malpractice by a federal
public defender the district court applied Heck ruling “that
an action under the FTCA is not cognizable when it calls
into question the validity of a prior conviction”).
*6 Although this Court is not willing to apply Heck to
every FTCA case, its applicability to the facts as alleged
here is particularly relevant. The duration of Plaintiff's
sentence has been upheld by Third Circuit, the precise
determination he now challenges in this FTCA action. By
bringing a tort claim against the United States, Plaintiff is
asking this Court to necessarily determine the validity of
his allegedly increased sentence. Such an FTCA action in
this regard “is not an appropriate vehicle for challenging
the validity of outstanding criminal judgments.” Parris, 45
F.3d at 385.

“Retaliation for the exercise of constitutionally
protected rights is itself a violation of rights secured by the
Constitution actionable under section 1983.” See White v.
Napoleon, 897 F.2d 103, 111-12 (3d Cir.1990).
“Government actions, which standing alone, do not violate
the Constitution, may nonetheless be constitutional torts if
motivated in substantial part by a desire to punish an
individual for exercise of a constitutional right.” Mitchell
v. Horn, 318 F.3d 523, 530 (3d Cir.2003), quoting Allah
v. Seiverling, 229 F.3d 220, 224-25 (3d Cir.2000).FN7 See
also Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.1997)
(“An otherwise legitimate and constitutional government
act can become unconstitutional when an individual
demonstrates that it was undertaken in retaliation for his
exercise of First Amendment rights .”).
FN7. The Third Circuit has directed that district
courts should look carefully at allegations of
retaliation. “Because of many prisoners'
propensity to wield retaliation claims when
confronted with disciplinary actions, district
courts must view prisoners' retaliation claims
with sufficient skepticism to avoid becoming
entangled in every disciplinary action taken
against a prisoner.” Sims v. Dragovich, 1999 WL
37621 (E.D.Pa.1999), affirmed, 43 Fed.Appx.
523, 2002 WL 1800793 (3d Cir.2002).
In order to state a prima facie case of retaliation, a
prisoner plaintiff must demonstrate all three of the
following factors:
1) the conduct in which he was engaged was
constitutionally protected;

Accordingly, the FTCA claim should be dismissed.
2) he suffered “adverse action” FN8 at the hands of prison
officials; and

E. The Retaliation Claim
Finally, Plaintiff alleges that Defendants retaliated
against him by providing inaccurate information following
his exercise of some unspecified constitutional right.
Inexplicably, Defendants have not moved to dismiss this
claim. However, as Plaintiff has failed to state a claim for
relief, this Court recommends the dismissal of this action
pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42
U.S.C. § 1997e(c).

FN8. To show the “adverse action” necessary to
fulfill the second prong, the prisoner plaintiff
must demonstrate that defendants' action were
“sufficient to deter a person of ordinary firmness
from exercising his [constitutional] rights.” Allah
v. Al-Hafeez, 208 F.Supp.2d 520,535 (E.D. Pa.
June 24, 2002), quoting Allah v. Seiverling, 229
F.3d at 225.

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3) his constitutionally protected conduct was a
substantial or motivating factor in the decisions to
discipline him.
Carter v. McGrady, 292 F.3d 152, 157-58 (3d
Cir.2002) (emphasis added), quoting Rauser v. Horn,
241 F.3d 330, 333 (3d Cir.2001).FN9
FN9. Following the satisfaction of a prima facie
case of retaliation, the burden then shifts to the
defendants to demonstrate, by a preponderance
of the evidence, that their actions would have
been the same, even if plaintiff were not
engaging in the constitutionally protected
activities. Carter, 292 F.3d at 158. “Once a
prisoner has demonstrated that his exercise of a
constitutional right was a substantial or
motivating factor in the challenged decision, the
prison officials may still prevail by proving that
they would have made the same decision absent
the protected conduct for reasons reasonably
related to a legitimate penological interest.”
Rauser, 241 F.3d at 334.
In his complaint, Plaintiff has not specifically
identified any constitutionally protected conduct. This
Court has thoroughly examined and liberally construed all
of Plaintiff's filings in this case and cannot pinpoint any
constitutionally protected conduct in which Plaintiff was
engaged. As Plaintiff has not even alleged the first prong
of a prima facie case of retaliation, this claim should be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A,
and 42 U.S.C. § 1997e(c).
E. Futility of Amendment
*7 Plaintiff has filed a motion to amend his complaint
seeking to update this Court on happenings since his last
filing, as well as provide exhibits in support of his claims.
Federal Rule of Civil Procedure 15(a) states that
“leave [to amend] shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). “In the absence of any
apparent or declared reason-such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, futility of amendment,
etc.-the leave sought should, as the rules require, be freely
given .” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227,
9 L.Ed.2d 222 (1962) (interpreting Federal Rules of Civil
Procedure). An amendment would be futile when the
complaint, as amended, would fail to state a claim upon
which relief could be granted. In re NAHC, Inc. Securities
Litigation, 306 F.3d 1314, 1332 (3d Cir.2002).
Nothing in the proposed amendments overcomes the
bar of Heck v. Humphrey. Accordingly, the motion to
amend should be denied as futile.
III. CONCLUSION
It is respectfully recommended that that the motion to
dismiss, or alternatively, for summary judgment
[Document # 13] be granted.
It is further recommended that the retaliation claim be
dismissed from this action pursuant to 28 U.S.C. §§
1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c) due to
Plaintiff's failure to state a claim.
It is further recommended that Plaintiff's motion to amend
the complaint [Document # 19] be denied as futile.
In accordance with the Magistrate Judges Act, 28 U.S.C.
§ 636(b) (1)(B) and (C), and Local Rule 72.1.4 B, the
parties are allowed ten (10) days from the date of service
to file written objections to this report. Any party
opposing the objections shall have seven (7) days from the
date of service of objections to respond thereto. Failure to
timely file objections may constitute a waiver of appellate
rights. See Nara v. Frank, --- F.3d ----, 2007 WL 1321929
(3d Cir. May 08, 2007).
W.D.Pa.,2007.
Dare v. U.S.
Not Reported in F.Supp.2d, 2007 WL 1811198 (W.D.Pa.)
END OF DOCUMENT

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