Hankins v. Wetzel et al

Filing 40

MEMORANDUM (Order to follow as separate docket entry)Furthermore, under the standards set forth in Iqbal and Twombly, in order to survive a motion to dismiss, factual allegations cannot be speculative or conclusory. In addition, Rode requires that a complaint assert that a defendant had personal involvement in the constitutional misconduct. There are no facts presented which could support Plaintiffs speculative contention that being housed in the same unit as mentally ill prisoners posed a risk of serious harm. Likewise, his bald assertions of suffering sleep deprivation and headaches are not sufficiently developed.Once again, although the failure to protect claims as presently stated are subject to dismissal, Plaintiff will be granted opportunity to cure those deficiencies through the submission of an amended complaint. An appropriate Order will enter. (See Memorandum) re 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Signed by Honorable Richard P. Conaboy on 9/30/14. (cc)

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

ROBERT HANKINS,
Plaintiff
v.
SECRETARY JOHN WETZEL,
ET AL.,
Defendants

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CIVIL NO. 3:CV-13-2565
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Robert Hankins, an inmate presently confined at the State
Correctional Institution, Coal Township, Pennsylvania (SCI-Coal
Twp.), initiated this pro se civil rights action pursuant to 42
U.S.C. § 1983.

Service of the Complaint was previously ordered.

There are twenty-nine (29) Defendants named in the
Complaint, including Secretary John Wetzel; Chief Hearing Examiner
Robin Lewis; Vincent Mooney; Chief Grievance Officers Dorina Varner
and Tracy Williams of the Pennsylvania Department of Corrections
(DOC) as well as the following officials at Plaintiff’s prior place
of confinement the State Correctional Institution, Dallas,
Pennsylvania (SCI-Dalllas): Superintendent Jerome Walsh; Captain
Vincent Kopec; Deputy Superintendents Norm Demming and Lawrence
Mahally; Hearing Examiners Kerns-Barr and C.J. McKeown; Lieutenants
David Mosier and Daniel Zielen.
Plaintiff is also proceeding against the following officials
of the Rockview State Correctional Institution, Bellefonte,
Pennsylvania (SCI-Rockview): Superintendent Marirosa Lamas; Deputy
1

Superintendent Horton; Captain L. Eaton; former Deputy
Superintendent Robert Marsh; Lieutenant Hardy; Captain Kormatic;
Major Snedeker;1 Superintendent’s Assistants Jeffrey Rackovan and
Robin Lucas; and Captain Pall.2

Also named are numerous John/Jane

Doe defendants who are described as being employees of either the
DOC, SCI-Dallas, or SCI-Rockview.
Plaintiff generally alleges that due to a “systematic custom
& practice” of the DOC, he has been housed around prisoners who
have mental health problems “on many occasions over the years” in
the Restrictive Housing Units (RHU) at various state correctional
facilities.

Doc. 1, ¶¶ 2 & 4.3

Hankins vaguely claims that

because those mentally ill prisoners have not been provided with
proper treatment, they have assaulted him, contaminated their RHUs
with human waste, prevented him from sleeping through their
disruptive actions, and he has had to witness their self
destructive and bizarre behavior.
referenced in the Complaint.

There are no specific incidents

However, Plaintiff states that he is

seeking relief for conduct that stretches as far back as 1990 and
which purportedly transpired in the RHUs at seven (7) different
Pennsylvania state correctional facilities.

See id. ¶ 9 .

Hankins indicates that because of being exposed to the above
described conduct he as suffered sleep deprivation and headaches
and has not been properly evaluated by the DOC’s psychology staff.

1.

Snedeker is listed twice.

2. Pall and Kopec appear to be listed as being employed at both
SCI-Dallas and SCI-Rockview.
3. The Statement of Claim section of the Complaint is set forth in
a confusing manner as it contains multiple ¶¶ numbered 23-28 and
there are no ¶¶ 30-44.
2

See id. at ¶ 8.

The Complaint additionally raises general

contentions that Hankins has been subjected to unconstitutional
conditions of confinement, food is used as punishment by
correctional officers in that he was placed on a modified meal
restriction, there was interference with his legal mail and
delivery of publications, and he was denied due process with
respect to multiple retaliatory misconduct charges.

However, with

respect to many of those allegations, Plaintiff fails to state when
or where those deprivations and acts occurred.

Hankins seeks

nominal, compensatory, and punitive damages as well as injunctive
relief.
Discussion
Defendants claim entitlement to entry of dismissal on the
grounds that: (1) many of Plaintiff’s claims are barred by the
statute of limitations; (2) the allegations of interference with
legal mail fail to state a viable claim; (3) Plaintiff’s contention
of denial of publications does not rise the level of a
constitutional violation; (4) Hankins has failed to allege personal
involvement by many of the named Defendants; (5) the Complaint
fails to set forth an actionable retaliation claim; (6) since
Hankins enjoys no right to be housed in a particular housing unit,
his conditions of confinement allegations must fail; (7) a viable
claim of failure to protect Plaintiff’s safety has not been raised;
and (8) the Complaint has failed to set forth a cognizable denial
of due process claim with respect to Hankins’ misconduct
proceedings.

See Doc. 24, pp. 10-11.

3

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
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).”

4

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
complaint “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a
particular cause of action).

Additionally, pro se pleadings are to

be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
Statute of Limitations
Defendants argue that Plaintiff include claims that occurred
several years, if not decades ago, and that such claims are time
barred.

See Doc. 24, p. 17.

This Court agrees.

In reviewing the applicability of the statute of limitations
to a civil rights action, a federal court must apply the
appropriate state statute of limitations which governs personal
injury actions.

Wilson v. Garcia, 471 U.S. 261, 276 (1985);

Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 457 n.9, 25
(3d Cir. 1996).

The United States Supreme Court clarified its

decision in Wilson when it held that courts considering civil
rights claims should borrow the general or residual [state] statute
for personal injury actions.

Owens v. Okure, 488 U.S. 235, 250

(1989); Little v. Lycoming County, 912 F.Supp. 809, 814 (M.D. Pa.
1996).It has also been held that “state statutes of limitations
should be borrowed for suits under Bivens.”
F. Supp.2d 100, 104 (D. Puerto Rico 1999).

5

Roman v. Townsend, 48

Pennsylvania's applicable personal injury statute of
limitations is two years.

See 42 Pa. Cons. Stat. Ann. § 5524(7)

(Purdon Supp. 1996); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir.
1993); Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir.
1985).
The question of when a cause of action accrues is a question
of federal law.
1995).

Smith v. Wambaugh, 887 F. Supp. 752, 755 (M.D. Pa.

A civil rights claim accrues when the facts which support

the claim reasonably should have become known to the plaintiff.

If

a defendant’s conduct is part of a continuing practice, an action
is timely so long as the last act evidencing the continuing pattern
falls within the limitations period.
2d 1283, 1295 (3d Cir.

1991).

Brenner v. Local 514, 927 F.

It is also well settled that a

person may realize he has been injured but is not adequately
apprised as to the cause of his injury.
of Scranton, 759 F.2d 287 (3d Cir. 1985).

See McGowan v. University
In Oshiver v. Levin,

Fishbein, Sedran, & Berman, 38 F.3d 1380 (3d Cir. 1993), the Third
Circuit Court of Appeals recognized two doctrines, equitable
tolling and the discovery rule, which may extend the statute of
limitations.
The statute of limitations may be subject to equitable
tolling where it is shown that the plaintiff exercised reasonable
diligence in bringing his claims.
234, 236 (3d Cir. 2003).

Campbell v. Kelly, 87 Fed. Appx.

The discovery rule is a judicially

created principle which tolls the statue of limitations in cases
where a reasonable person in the plaintiff’s shoes lacks the
critical facts to put him on notice that he needs to investigate.

6

However, it has been recognized that the limitations period
in a civil rights action will begin to run even if the Plaintiff
does not know all the facts necessary for his claim, all that is
required is that the plaintiff have sufficient notice to place him
on alert of the need to begin investigating.
F. Supp.2d 264, 272 (E.D. Pa. 2000).

Gordon v. Lowell, 95

Under Gordon a “claim accrues

upon knowledge of the actual injury, not that the injury
constitutes a legal wrong.”

Id.

This Court is satisfied that

Plaintiff had the necessary information to pursue his pending
claims on the dates on which they occurred.
Under the standards announced in Houston v. Lack, 487 U.S.
266 (1988), Plaintiff’s Complaint will be deemed filed as of
October 9, 2013, the date the Complaint is dated.4
13.

See Doc. 1, p.

Furthermore, it has not been asserted, nor is it apparent to

this Court that the continuing pattern exception is applicable to
those allegations.

Accordingly, the motion to dismiss will be

granted with respect to any claims which occurred prior to October
9, 2011.5
Legal Mail
The Defendants’ second argument asserts that the Complaint
has not stated a claim regarding the assertion that there was
interference with Plaintiff’s legal mail.

See Doc. 24, p. 26.

In his Complaint, Hankins includes a vague claim that there
was interference with his legal mail at SCI-Albion is 2012.

He

4. The Court will assume that the Complaint was given to prison
personnel for the purpose of it being mailed to this Court on said
date.
5. It is noted that Plaintiff acknowledges that he was confined at
SCI-Albion on May 11, 2012. See Doc. 1, ¶ 22.
7

similarly claims that he suffered mail interference while
imprisoned at SCI-Mahanoy, SCI-Camp Hill, and SCI-Fayette.
However, no officials from those prisons are named as
Defendants in this matter.

There is also no indication as to when

those purported acts of interference transpired.

Moreover, SCI-

Albion and SCI-Fayette are not located within the confines of the
Middle District of Pennsylvania.

Accordingly, those claims as

stated simply cannot proceed.
Publications
The Complaint alleges that Hankins’ equal protection rights
were violated in that he was treated differently from similarly
situated “prisoners at Mahanoy, Camp Hill, Fayette and other DOC
facilities” regarding his ability to receive and purchase
publications.

Doc. 1, ¶ 45.

Once again it is noted that the

Complaint does not set forth the dates of these alleged acts.
Second, no officials from Mahanoy, Fayette, and Camp Hill are named
as Defendants in this matter.

As noted above, SCI-Fayette is not

even located withing the confines of this Court.
In addition to those deficiencies, a litigant seeking to
establish a viable equal protection claim must show an intentional
or purposeful discrimination. Wilson v. Schillinger, 761 F.2d 921,
929 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986).

However,

the Equal Protection Clause "does not deny to States the power to
treat different classes of persons in different ways."
Reed, 404 U.S. 71, 75 (1971).

Reed v.

The Court of Appeals for the Third

Circuit has observed that the Equal Protection Clause "is not a
command that all persons be treated alike but, rather, 'a direction
that all persons similarly situated should be treated alike.'"
8

Artway v. Attorney Gen., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439
(1985)); see also Kuhar v. Greensburg-Salem Sch. Dist., 616 F.2d
676, 677 n.1 (3d Cir. 1980) ("An equal protection claim arises when
an individual contends that he or she is receiving different
treatment from that received by other individuals similarly
situated.").
There are no facts alleged in the Complaint which could
support a claim that any Defendants engaged in intentional or
purposeful discrimination or that they treated Plaintiff
differently from similarly situated individuals on the basis of his
race, religious beliefs, or some other impermissible reason.

There

are simply no factual averments alleged which could support a claim
that the Defendants engaged in actions which intentionally
discriminated against the prisoner.

Based on the standards

announced in Wilson and Artway, a viable equal protection claim is
not set forth in the Complaint.
Personal Involvement
The next argument for dismissal contends that the Complaint
fails to allege any facts showing that many of the Defendants were
personally involved in any constitutional misconduct.

See Doc. 24,

p. 13.
A plaintiff, in order to state an actionable § 1983 civil
rights claim, must plead two essential elements:

(1) that the

conduct complained of was committed by a person acting under color
of state 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
9

628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d
1135, 1141-42 (3d Cir. 1990).
Furthermore, federal civil rights claims brought under §
1983 cannot be premised on a theory of respondeat superior.
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rode

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.
Inmates also do not have a constitutional right to a prison
grievance system.

See Jones v. North Carolina Prisoners Labor

Union, 433 U.S. 119, 137-138 (1977); 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.”) Consequently, any attempt by Plaintiff to establish
liability against the Warden solely based upon the substance or
lack of response to his institutional grievances does not by itself
support a constitutional due process 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);
10

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).
A review of the Complaint indicates that Hankins is
attempting to establish liability against a number of Defendants
either on the basis of their respective supervisory capacities
within the DOC, SCI-Dallas, or SCI-Rockview or based upon their
involvement in the handling of Plaintiff’s administrative
grievances and appeals.

Pursuant to the above discussion, either

approach is insufficient for the purpose of establishing liability
under § 1983.
Retaliation
According to the Complaint, Plaintiff has been retaliated
against for filing numerous lawsuits against DOC officials.
Doc. 1, ¶¶ 11, 15.

See

This purported retaliation included the

issuance of meritless misconducts and being placed on a modified
meal restriction at unknown times and places.

Defendants

argue

that the Complaint fails to set forth a viable claim of
retaliation.

See Doc. 24, p. 22.

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.
2001).

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

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
11

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

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

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

(3d Cir. 2005).

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).
Once Plaintiff has made a prima facie case, the burden
shifts to 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.
As noted in Allah, a prisoner litigating a retaliation claim
need not prove that he had an independent liberty interest in the
privileges that he was denied.

Thus, the relevant inquiry is not

12

whether the alleged retaliatory conduct was unconstitutional.

On

the contrary, Plaintiff only needs to establish that he was
subjected to adverse action in retaliation for his engagement in
constitutionally protected conduct.
Due to the vagueness of the Complaint, there are simply no
facts set forth by Hankins which could arguably support a claim
under Rauser that any of the named Defendants intentionally
subjected him to adverse action as a consequence for pursuing a
constitutionally protected activity.

The Defendants’ request for

dismissal of factually unsupported, wholly conclusory assertions of
retaliation will be granted.
RHU Placement
Defendants next assert that Plaintiff does not enjoy a right
to any particular custody or security classification.
p. 20.

See Doc. 24,

They add that he also does not have a right to be housed in

any particular prison or housing unit.

Accordingly, they conclude

that any challenge by Hankins to his RHU designation must fail.
The Fourteenth Amendment prohibits the states from depriving
“any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1.

In order to determine whether a

due process violation has occurred, an initial determination must
be made that a protected liberty interest exists and, if so, the
next step is to define what process is mandated to protect it.
Sandin v. Conner, 515 U.S. 472, 484 (1995).

See

A protected liberty

interest may be created by either the Due Process Clause itself or
by state law.

Id.

Due process requirements apply only when the

prison officials’ actions impose “an atypical and significant
hardship on the inmate in relation to the ordinary incidents of
13

prison life.”

Id. at 484.

Conversely, there can be no due process

violation where there is no protected liberty interest.
It is well-settled that a prisoner has no justifiable
expectation that he will be incarcerated in a particular prison.
Olim v. Wakinekona, 461 U.S. 238 (1983).

In Montanye v. Haymes,

427 U.S. 236, 242 (1976), the Supreme Court held that “[a]s long as
the conditions or degree of confinement to which the prisoner is
subjected is within the sentence imposed upon him and is not
otherwise violative of the Constitution, the Due Process Clause
does not in itself subject an inmate's treatment by prison
authorities to judicial oversight.”

Id. at 242.

On the same day, the Supreme Court decided the seminal case
of Meachum v. Fano, 427 U.S. 215, 216 (1976), holding that no
liberty interest under the Due Process Clause of the Fourteenth
Amendment is infringed upon when an inmate is transferred, with or
without a hearing, to another state correctional institution with
substantially less favorable conditions.

The Court added that the

state does not provide a liberty interest in being housed at a
particular institution.

Meachum, 427 U.S. at 228.

Pennsylvania law leaves the housing of inmates in particular
institutions to the discretion of state officials.

See 37 Pa. Code

§ 93.11(a); Hannon v. Terra, 1995 WL 129219 at *11 (E.D. Pa. 1995).
An inmate can only state a claim if a transfer was made for some
constitutionally impermissible reason such as retaliation against
the prisoner’s exercise of constitutionally protected rights.
Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989).
assertion is raised in the present action.

14

See

No such

Accordingly, this Court

agrees that Plaintiff did not have a protected liberty interest in
either being held or remaining at any particular prison.
Additionally, the United States Supreme Court has held that
an inmate has “no legitimate statutory or constitutional
entitlement” to any particular custodial classification even if a
new classification would cause that inmate to suffer a “grievous
loss.” Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); James v. Reno,
39 F. Supp. 2d 37, 40 ( D.D.C. 1999)(citation omitted) (a federal
inmate “has no liberty interest in his security classification”).
Therefore, any attempt by Hankins to challenge his security or
custodial classification must also fail.
With respect to the Plaintiff’s claim that he has been in
the RHU for thirteen (13) straight years (Doc. 1, ¶ 18), 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.

Sandin, 515 U.S. at 485.

Courts within this circuit, applying Sandin in various actions,
have found no merit in due process claims presented regarding short
term institutional disciplinary custody placement.

See Torres v.

Fauver, 292 F.3d 141, 150-51 (3d Cir. 2002)(placement in
segregation as a disciplinary sanction did not implicate a
protected 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).
Similarly, in

Griffin v. Vaughn, 112 F.3d 703 (3d Cir.

1997), the Court of Appeals for the Third Circuit addressed an
action initiated by a Pennsylvania state inmate who had been held
in administrative custody for a prolonged period.
15

The Court

applied Sandin and concluded that placement without any type of due
process hearing for a period of fifteen (15) months was not an
atypical and significant hardship.

However, in the present case

the magnitude of Plaintiff’s alleged thirteen (13) straight years
of RHU confinement arguably satisfies the atypical and significant
hardship criteria of Sandin and Griffin.
However, Plaintiff has not supported this claim with any
factual specificity whatsoever.

Hankins’ bald contention that he

has been denied due process as evidenced by his thirteen years in
the RHU does not satisfy the pleading requirements of Iqbal.
Accordingly, this Court agrees that said claim, as stated. cannot
proceed.

However, although the request for dismissal will be

granted, the pro se Plaintiff will be afforded the opportunity to
plead a sufficient claim relating to his purportedly excessive RHU
detention via submission of an amended complaint.
Plaintiff will be granted opportunity to submit a proposed
amended complaint within fourteen (14) days of the date of this
Memorandum and Order. The Amended Complaint should address the
concerns outlined herein, be limited to the allegations and
Defendants identified in the Original Complaint, and contain at
least a modicum of factual specificity, identifying the particular
conduct of the Defendant that is alleged to have harmed the
Plaintiff, so that a defendant has adequate notice to frame an
answer.
In the event that a proper amended complaint which
sufficiently addresses the deficiencies addressed herein is
submitted this matter will be reopened.

16

Misconduct Proceedings
With respect to the claims by Plaintiff that his due process
rights were violated during various institutional misconduct
proceedings, Defendants argue that said claims cannot proceed
because Hankins does not have a liberty interest in remaining free
of disciplinary custody and the prisoner was not subjected to an
atypical or significant hardship.

See Doc. 24, p. 26.

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.

Wolff, 418 U.S. at 563-71.

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

other courts applied the Wolff principles to prison disciplinary
hearings which did not result in withdrawal of good time credit but
17

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
inmate's environment; and (3) the state's action did not inevitably
affect the duration of inmate's sentence.
18

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); 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-902196 (M.D. Pa. Jan. 29, 1997) (Vanaskie, J.) (inmate's confinement
in disciplinary custody for ninety days in accordance with
Department of Corrections procedures did not give rise to a
protected liberty interest).
Based upon an application of the rules of law set forth in
Sandin and the subsequent line of decisions cited above to the
sparsely detailed complaint, this Court finds that the non-specific
false misconduct charge fails because Plaintiff does not allege
that the terms of disciplinary confinement were of such magnitude
as to implicate a protected liberty interest under Sandin.
As previously discussed, Plaintiff can reassert any such
claims against any of the named Defendants which transpired after
October 9, 2011 in an Amended Complaint, if he so chooses.
Conditions of Confinement
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.
19

See Farmer

v. Brennan, 511 U.S. 825, 832 (1994).

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).
Plaintiff generally alleges that he was held in a small
cell, constantly illuminated with poor ventilation. See Doc. 1, ¶
10.

Plaintiff also indicates that was provided with an

insufficient diet.

However, he does not state when, where, or how

long those purported unconstitutional conditions lasted.

Hankins

also fails to identify which, if any, of the Defendants were
directly involved in those alleged constitutional deprivations.
Due to those deficiencies, the pleading requirements of
Iqbal have once again not been met by the Complaint.

However, as

discussed above. Plaintiff will be granted opportunity to file a
proper amended complaint which sets forth sufficient facts to
support those wholly conclusory claims.
Failure to Protect
The final argument raised by defendants is that the claim
that they failed to protect Plaintiff’s safety is inadequate
because there are no facts alleged showing that a reasonable person
could have inferred and disregarded the existence of an excessive
risk to the inmate’s health or safety.

See Doc. 24, p. 22.

A prison official violates the Eighth Amendment when he acts
with deliberate indifference to a known objectively serious risk to
a prisoner’s health or safety.

See Farmer, 511 U.S. at 837; Beers-

Capitol v. Whetzel, 256 F. 3d 120, 125 (3d Cir.
20

2001).

This

requirement of actual knowledge means that “the official must both
be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference.”

Farmer, 511 U.S. at 837.

Furthermore, under the standards set forth in Iqbal and
Twombly, in order to survive a motion to dismiss, factual
allegations cannot be speculative or conclusory.

In addition, Rode

requires that a complaint assert that a defendant had personal
involvement in the constitutional misconduct. There are no facts
presented which could support Plaintiff’s speculative contention
that being housed in the same unit as mentally ill prisoners posed
a risk of serious harm.

Likewise, his bald assertions of suffering

sleep deprivation and headaches are not sufficiently developed.
Once again, although the failure to protect claims as
presently stated are subject to dismissal, Plaintiff will be
granted opportunity to cure those deficiencies through the
submission of an amended complaint.

An appropriate Order will

enter.

S/Richard P. Conaboy ________________
RICHARD P. CONABOY
United States District Judge

DATED: SEPTEMBER 30, 2014

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