Moore v. Mann et al

Filing 52

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 06/16/2015. (emksec, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN C. MOORE,
Plaintiff
v.
ANGELA D. MANN, et al.,
Defendants

:
:
:
:
: CIVIL NO. 3:CV-13-2771
:
: (Judge Kosik)
:
:
MEMORANDUM

This civil rights action pursuant to 42 U.S.C. § 1983 was initiated by Plaintiff,
Brian C. Moore, an inmate confined at the State Correctional Institution at Smithfield
(SCI-Smithfield), Pennsylvania. The matter proceeds on an amended complaint (Doc.
10), wherein employees of the Pennsylvania Department of Corrections (DOC), who
work at SCI-Coal Township and John Wetzel, Secretary of the DOC, are named as
defendants. Presently pending is Defendants’ motion to dismiss the amended
complaint. (Doc. 28.) For the reasons that follow, the motion will be granted in part
and denied in part.
I.

Background
Plaintiff files this action against Counselor Mann, former Superintendent David

Varano, Unit Manager Foulds, Correctional Officers Briner, Zamboni, Hering and

Long, and DOC Secretary Wetzel. He alleges that while confined at SCI-Coal
Township in August/ September of 2011, he saw Defendant Mann participating in a
sexual act with an inmate. (Doc. 10, Am. Compl. at 2.) During this same period of
time, Mann began discussing the details of Plaintiff’s criminal case with other staff
members and inmates. In September of 2011, Mann told another staff member, who
then told Defendant Foulds, that Plaintiff had an “attitude problem.” (Id. at 3.)
Plaintiff believes Mann thereafter attempted to move him to a different unit in the
prison.
On or about September/October of 2011, Mann told Defendant Hering loudly
in front of other staff members and inmates on B-2 unit that “. . . inmate Moore is out
of his mind, he is a child rapist who belongs in a psychiatric hospital.” (Id.) on or
about October of 2011, Mann also told Defendant Briner that he would be glad when
Plaintiff left the institution, because he was a snitch and a pedophile. While Plaintiff
alleges that this statement was made on B-2 unit, he does not specify whether it was
made in front of other inmates.
Plaintiff alleges that as a result of Defendants Mann, Zamboni, Briner, Foulds
and Long discussing his criminal case with inmates and staff members, he was been
threatened with bodily harm at SCI-Coal Township in 2011-2012 and at SCISmithfield in 2013. Plaintiff brought his concerns about Mann’s behavior to
Defendant Foulds in September of 2011.

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On November 14, 2011, Plaintiff again observed Mann engaging in sexual
activities on B-2 unit in her office with an inmate. (Id. at 3.) He claims that
Defendants Zamboni and Briner were aware that this activity was taking place on said
date, but did nothing to stop it. (Id. at 4.) When the inmate left, Plaintiff entered
Mann’s office. During the 2 p.m.-10 p.m. shift that same day, Mann wrote a
misconduct report (#429102) on Plaintiff charging him with sexual harassment. After
being found guilty, Plaintiff was sanctioned to 270 days in the Restricted Housing
Unit. Plaintiff claims that because of the misconduct report and the harassment by
staff members, he forfeited months of earned wages during 2011-2012 at SCI-Coal
Township.
Plaintiff filed a grievance with respect to the above issues (#401780), and
Defendant Long was assigned to investigate the matter. Defendant Varano was also
made aware of the allegations set forth in this complaint pursuant to Plaintiff’s
grievance appeal. Plaintiff also made Defendant Wetzel aware of this information
pursuant to a letter he sent to the Office of Professional Responsibility in March of
2012. (Id. at 4.) An officer from the Office of Special Investigations and Intelligence
interviewed Plaintiff in March 2012 with respect to the above allegations.
Based on the above, Plaintiff identifies the following claims: (1) substantive
due process violation; (2) deliberate indifference to his health/safety; (3)
Pennsylvania state law tort claims for defamation and intentional infliction of

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emotional distress; (4) violations of the Pennsylvania Constitution and the DOC’s
sexual harassment policy addressing sexual contact with inmates; and (5) violations
of the Pennsylvania and Federal statutes prohibiting sexual contact between prison
employees and inmates. (Id. at 5.) He seeks declaratory, injunctive and monetary
relief.
II.

Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines

the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The factual allegations must be sufficient to make the claim for relief more than just
speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether to grant a motion to dismiss, a federal court must construe the
complaint liberally, accept all factual allegations in the complaint as true, and draw
all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks
Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in
detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather,
the Rules require a “short and plain statement” of the claim that will give the
defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. Id.
The “complaint must allege facts suggestive of [the proscribed] conduct.” Twombly,
550 U.S. at 564. Neither “bald assertions” nor “vague and conclusory allegations”

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are accepted as true. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d
Cir. 1997); Sterling v. Se. Pa. Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009)(quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The claim must
contain enough factual matters to suggest the required elements of the claim or to
“raise a reasonable expectation that discovery will reveal evidence of” those
elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(quoting
Twombly, 550 U.S. at 556).
“To decide a motion to dismiss, courts generally consider only the allegations
contained in the complaint, exhibits attached to the complaint and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993)(citations omitted); see also Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may consider “undisputedly authentic document[s] that
a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the [attached] document[s].” Pension Benefit, 998 F.2d at 1196.
III.

Discussion
To state a viable § 1983 claim, a plaintiff must plead two essential elements:

(1) the conduct complained of was committed by a person acting under color of state
law; and (2) the conduct deprived the plaintiff of a right, privilege, or immunity

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secured by the Constitution or laws of the United States. Natale v. Camden County
Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). Personal involvement in the
alleged wrongdoing is necessary for the imposition of liability in a civil rights action.
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005); Sutton v. Rasheed, 323 F.3d
236, 249-50 (3d Cir. 2003). Section 1983 liability cannot be predicated solely on
respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976); Rode v. Dellarciprete,
845 F.2d 1195,1207 (3d Cir. 1988). Individual liability can only be imposed if the
state actor played an “affirmative part” in the alleged misconduct. Chinchello v.
Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Although a supervisor cannot encourage
constitutional violations, a supervisor has “no affirmative constitutional duty to train,
supervise or discipline so as to prevent such conduct.” Rode, 845 F.2d at 1208,
quoting Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990), cert. denied, 501
U.S. 1218 (1991). Moreover, if an official’s only involvement is investigating and/or
ruling on an inmate’s grievance after the incident giving rise to the grievance has
already occurred, there is no personal involvement on the part of that official. Rode,
845 F.3d at 1208; Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006). Further,
simply alleging that an official failed to respond to a letter or request Plaintiff may
have sent raising complaints is not enough to demonstrate the official had the
requisite personal involvement. See Rivera v. Fischer, 655 F. Supp. 2d 235
(W.D.N.Y. 2009)(Finding that many courts have held that merely writing a letter of

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complaint does not provide personal involvement necessary to maintain a § 1983
claim.).
Defendants have filed a motion seeking to dismiss the amended complaint on
various grounds. The court will now address each of these grounds.
A.

Failure to demonstrate requisite personal involvement of
Defendants Varano, Wetzel and Long

As set forth above, liability under § 1983 requires personal participation in the
alleged wrongdoing. Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003); Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The doctrine of respondeat
superior may not be used to impose liability against a government or supervisor solely
by virtue of his position. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). The
supervising official must have played an “affirmative part” in the alleged misconduct.
Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986).
Plaintiff attempts to impose liability upon Defendants Varano and Long based
upon their handling/review of his grievance and the appeal therefrom. Participation
in the after-the-fact review of a grievance or appeal is not enough to establish
personal involvement for purposes of § 1983 liability. Rode, 845 F.2d at 1208 (mere
filing of a grievance is not enough to impute the actual knowledge necessary for
personal involvement); Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir.
2006)(holding that a state prisoner’s allegation that prison officials and administrators
responded inappropriately, or failed to respond to a prison grievance, did not establish
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that the officials and administrators were involved in the underlying allegedly
unconstitutional conduct). A “mere linkage in the prison chain of command” is not
sufficient to demonstrate personal involvement for purposes of section 1983. Ayers
v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).
Based on the foregoing, the motion to dismiss will be granted with respect to
Defendant Varano only on the basis of lack of personal involvement. Because
Plaintiff alleges that Defendant Long participated in discussions about his underlying
criminal case in front of inmates, the requisite personal involvement has been alleged
by Plaintiff. (Doc. 10 at 3, ¶ 22.)
It is also well-established that the mere fact that Defendant Wetzel may have
learned about Plaintiff’s claims through a piece of correspondence he sent to the
Office of Special Investigations and Intelligence is not enough to impute liability to
Wetzel. Courts have found that an allegation that an official ignored correspondence
from an inmate, and that the requesting of an investigation of his allegations, is
insufficient to impose liability on the supervisory official. See Padilla v. Beard, et al.,
Civ. Action 1:06-cv-0478 (M.D. Pa. Apr. 11, 2006.) While under some
circumstances a letter alerting local prison officials, who are in a position to take
steps to protect an inmate, may impose such duties to take reasonable measures to
guarantee the safety of the inmate, such is not the case here. Wetzel was not
employed at SCI-Coal Township. Further, as Plaintiff admits, by the time he became

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aware of the allegations via the letter Plaintiff wrote to the Office of Professional
Responsibility, the matter was under investigation. (Id. at 4.) See generally
Haywood v. Woods, No. 9:01-CV-0225, 2007 WL 1834641 at *10 (N.D.N.Y. June
25, 2007). For these reasons, the claims set forth against Defendant Wetzel will be
dismissed from the complaint.
B.

Claims for Monetary Damages against Defendants in their
official capacities

The Eleventh Amendment bars Plaintiff’s § 1983 claims against Defendants in
their official capacities. Absent consent by the State, the Eleventh Amendment bars
suits in federal court by private parties against states, state agencies, and state
officials in their official capacities. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 267-70 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996);
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984). The bar
extends to suits against departments or agencies that have no existence apart from the
state. Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). As when the state
itself is named as the defendant, a suit for damages against a state agency or official
in his official capacity is barred. Seminole Tribe, 517 U.S. at 58; Edelman v. Jordan,
415 U.S. 651,667 (1974). Therefore, Plaintiff’s § 1983 claims for damages against
Defendants in their official capacities are dismissed.
C.

State Law Tort Claims

Plaintiff requests that the court exercise its pendent jurisdiction over his state
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law claims. Because no federal common law exists on any state-based claims, the
court is required to apply Pennsylvania state law. In so doing, Plaintiff’s state claims
of defamation and intentional infliction of emotional distress are barred by sovereign
immunity. They are intentional torts that Plaintiff alleges to have been committed
within the scope of Defendants’ employment with the DOC. See LaFrankie v.
Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992).
To the extent Plaintiff attempts to raise claims in this action under the
Pennsylvania constitution, Section 1983 only provides relief for conduct by a state
actor who violates rights of a citizen that arise under federal law. As such, these
claims are not properly pursued herein.
D.

Due Process Claims

Defendants also move to dismiss Plaintiff’s substantive due process claims
challenging his misconduct and the resulting disciplinary time he received, as well as
the earned wages that he forfeited. Plaintiff’s attempt to cast his false misconduct
allegations as a due process violation fails to state a claim. Plaintiff was provided
with a “procedural opportunity to address his assertion that the misconduct report
w[as] false.” Pressley v. Johnson, 268 F. App’x 181, 184 (3d Cir. 2008)(citing Smith
v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002)(“as long as procedural requirements
are satisfied, mere allegations of falsified evidence or misconduct reports, without
more, are not enough to state a due process claim.”)). While Plaintiff protests the fact

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that he was sanctioned to disciplinary custody in the RHU as a result of being found
guilty, the sanction received of 270 days does not implicate a sufficient legal interest
to trigger specific due process protections.
In analyzing any procedural due process claim, “the first step is to determine
whether the nature of the interest is one within the contemplation of the ‘liberty or
property’ language of the Fourteenth Amendment.” Shoats v. Horn, 213 F.3d 140,
143 (3d Cir. 2000)(citing Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d
556 (1972)). Once we determine that a property or liberty interest asserted is
protected by the Due Process Clause, the question then becomes what process is due
to protect it. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L.
Ed. 2d 484 (1972)).
In the case of prison inmates, the following principles apply:
[i]n Sandin v. Conner, the Supreme Court announced a new standard for
determining whether prison conditions deprive a prisoner of a liberty
interest that is protected by procedural due process guarantees. Although
the Court acknowledged that liberty interests could arise from means
other than the Due Process Clause itself, the Court concluded that statecreated liberty interests could arise only when a prison’s action imposed
an ‘atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’ ... In finding that the prisoner’s thirtyday confinement in disciplinary custody did not present the type of
atypical, significant deprivation in which a State might conceivably
create a liberty interest, the Court considered the following two factors:
1) the amount of time the prisoner was placed into disciplinary
segregation; and 2) whether the conditions of his confinement in
disciplinary segregation were significantly more restrictive than those
imposed upon other inmates in solitary confinement.
Shoats, 213 F.3d at 143-44 (citations omitted, emphasis added).
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Applying these legal benchmarks, it has been held that disciplinary proceedings
which result in sanctions of disciplinary segregation for six months or more do not
impose atypical and significant hardships on the inmate in relation to the ordinary
incidents of prison life, and therefore do not give rise to due process claims. Smith v.
Mensinger, 293 F.3d 641, 654 (3d Cir. 2002)(7 months disciplinary confinement). In
the instant action, Plaintiff was sanctioned to 9 months in the RHU. As such, any due
process argument asserted with respect to his misconduct proceedings fails to
articulate a sufficient liberty interest to trigger a valid due process claim. The mere
change in Plaintiff’s custody level and placement in the RHU does not establish an
atypical or significant hardship when compared to the normal incidents of prison life.
Further, while Plaintiff complains of the loss of prison wages, it is wellestablished that an inmate has no property interest in his prison job. Bryan v. Werner,
516 F.2d 233, 240 (3d Cir. 1975); James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir.
1989), cert. denied, 493 U.S. 870 (1989)(inmate does not have either a liberty or
property interest in keeping a particular job entitled to Due Process protection). For
these reasons, Plaintiff’s due process claims are without merit and will be dismissed.1
F.

Violations of Criminal Statutes/DOC Regulations

Without unnecessary elaboration, Plaintiff’s claims that Defendants violated

Defendants also aptly point out that in the attachments to Plaintiff’s
complaint, the Initial Review Response to Plaintiff’s grievance reveals that he lost his
job due to his refusal to obey an order, and that Defendant Mann was not involved in
his removal from his job assignment. (Doc. 10 at 14.)
1

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criminal statutes are subject to dismissal. A private citizen has no constitutional right
to bring a criminal complaint against another individual. See Leeke v. Zimmerman,
454 U.S. 83, 85-87 (1981). Any such claim in the instant § 1983 action is improper.
In addition, any claim by Plaintiff that Defendant Mann failed to adhere to
DOC regulations with respect to sexual harassment and association with other
inmates is not cognizable in this action. It is well-established that “prison regulations
do not, in themselves, confer a liberty interest protected by due process, and the
failure of prison officials to follow DOC policy does not, in and of itself, result in a
violation of due process.” Tarselli v. Harkleroad, Civ.A. 10-1266, 2012 WL 603219
at *7 (W.D. Pa. Feb. 23, 2012)(citations omitted). The simple fact that state law
prescribes certain procedures does not mean that the procedures thereby acquire a
federal constitutional dimension. United States v. Jiles, 658 F.2d 194, 200 (3d Cir.
1981). As such, Defendants’ motion to dismiss will be granted with respect to these
claims.
G.

Failure to Protect

Plaintiff raises a failure to protect claim under the Eighth Amendment. He
claims that Defendants Mann, Zamboni, Briner, Foulds and Long discussed his
criminal case in front of other inmates which resulted in his receiving threats of
bodily harm while confined at SCI-Coal Township in 2011-12 and at SCI-Smithfield
in 2013.
Defendants contend that the amended complaint fails to state a claim upon
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which relief can be granted, because allegations of verbal abuse do not state a claim
under 42 U.S.C. § 1983. The court agrees that verbal abuse and threatening language,
without more, are not actionable. See Maclean v. Secor, 876 F. Supp. 695, 698-99
(E.D. Pa. 1995); Balliet v. Whitmore, 626 F. Supp. 219, 228 (M.D. Pa. 1986), aff’d,
800 F.2d 1130 (3d Cir. 1986). However, Plaintiff’s allegations go beyond mere
verbal abuse. He specifically alleges that Defendants referred to him as a “child
rapist”, a “snitch”, and a “pedophile” in front of other inmates. (Doc. 10 at 3.)
Prison officials have a duty to protect prisoners from violence at the hands of
others. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Prison officials and
employees may be liable for failure to protect an inmate from the use of excessive
force if they are deliberately indifferent to a substantial risk of serious harm to the
inmate. Id. at 834. To plead an Eighth Amendment failure-to-protect claim, a
plaintiff must plead facts raising a reasonable inference of (1) a substantial risk of
serious harm; (2) the defendants’ deliberate indifference to that risk; and (3)
causation. See Hamilton v. Leavy, 117 F.3d 742, 747 (3d Cir. 1997).
Plaintiff alleges that the Defendants labeled him a child rapist/pedophile and
snitch in front of other inmates. Such labels can lead to a substantial risk of serious
harm to the prisoner. Renchenski v. Williams, 622 F.3d 315, 326 (2010)(stating that
“[i]t is largely without question . . . that the sex offender label severely stigmatizes an
individual, and that a prisoner labeled as a sex offender faces unique challenges in the
prison environment” and citing studies which support the proposition in that inmate
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norms call for the savage beating of sex offenders). As such, the court concludes that
Plaintiff has stated a claim upon which relief can be granted. See Brown v. Nerves,
265 F. App’x 734 (10th Cir. 2008)(holding that allegations that prison official
disclosed that prisoner was a child molester to another inmate who then spread that
information in prison stated an Eighth Amendment claim upon which relief can be
granted); Benefield v. McDowell, 241 F.3d 1267 (10th Cir. 2001)(Inmate allegations
that officer labeled him a snitch in front of other inmates, even though inmate had not
in fact been assaulted, stated a claim under Eighth Amendment).
An inmate need not wait until an actual attack occurs to obtain relief.
Benefield, 241 F.3d at 1270-72. As in Benefield, Defendants in the instant case
contend that allegations of verbal harassment and psychological injury caused by
living in fear of other inmates is not sufficient to state an Eighth Amendment claim.
Id. at 1271. The United States Court of Appeals for the Tenth Circuit noted,
however, that the Eighth Amendment reaches conduct that “‘is sure or very likely to
cause’ serious injury at the hands of other inmates.” Id. at 1272 (quoting Helling v.
McKinney, 509 U.S. 25, 33 (1993)).
Although Plaintiff does not specifically allege that he was physically attacked
by other inmates due to Defendants’ statements, the court finds that, accepting
Plaintiff’s allegations as true, Plaintiff has sufficiently pled that Defendants violated
the Eighth Amendment by knowingly placing him in a class of inmates subject to
serious bodily harm. See Benefield, 241 F.3d at 1271-72; Brown, 265 F. App’x at
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735-36; Joseph v. Asure, et al., Civil Action No. 1:11-cv-1255 at 4-5 (M.D. Pa. Feb.
8, 2012). Plaintiff will be permitted the opportunity to present evidence from which a
reasonable fact finder could conclude that he suffered a physical injury or that he
faced a substantial risk of serious harm. Accordingly, Defendants’ motion to dismiss
will be denied with respect to the failure to protect claim.
An appropriate order follows.

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