Mutschler v. Tritt et al

Filing 34

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 7/17/2015. (emksec, )

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

TONY MUTSCHLER,
Plaintiff,
v.
BRENDA L. TRITT, et al.,
Defendants.

:
:
:
:
: CIVIL NO. 3:CV-14-1611
:
: (Judge Kosik)
:
:
MEMORANDUM

This civil rights action, pursuant to 42 U.S.C. § 1983, was filed by Tony
Mutschler, an inmate confined at the State Correctional Institution at Frackville
(“SCI-Frackville”), Pennsylvania. Pending before the Court is Defendants’ Motion to
Dismiss Plaintiff’s Amended Complaint. (Doc. 21.) For the reasons that follow, the
motion will be granted.
I.

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

dismissal of complaints that fail to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). 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)). Although the
court is generally limited in its review to the facts contained in the complaint, it “may
also consider matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the ... claim is and the grounds upon which it rests.”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)(quoting Bell Atl.
Corp v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). To
test the sufficiency of the complaint in the face of a Rule 12(b)(6) motion, the court
must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121,
130-31 (3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,
675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Next, the factual and legal elements
of a claim should be separated; well-pleaded facts must be accepted as true, while
mere legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside,
578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded factual allegations have
been isolated, the court must determine whether they are sufficient to show a
“plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at

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556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to
“raise a right to relief above the speculative level”). A claim “has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678.
II.

Allegations in the Complaint1
Named as defendants in this action are the following SCI-Frackville

employees: Brenda L. Tritt, Facility Manager; A. Kovalchik, Department
Superintendent; Sharon Luquis, Hearing Examiner; and Correctional Officers
Alsheski and Lynch. Plaintiff also names John Wetzel, Secretary of the Pennsylvania
Department of Corrections, and Robin Lewis, DOC Chief Hearing Examiner, as
defendants.
Plaintiff alleges that on April 8, 2014, Defendant Luquis denied him witnesses
and the opportunity to present evidence during a misconduct hearing, in violation of
his due process rights. (Doc. 1, Compl. at 2.) As such, her decision finding him
guilty was based on an incomplete record. He further claims that although he was
suppose to be paroled in April of 2014, parole never occurred due to the misconduct.
According to Plaintiff, if he was not found guilty of the misconduct, he would be out

Pursuant to the Court’s order dated October 22, 2014, the standing Complaint
in this action consists of Documents 1 and 9. (Doc. 10.)
1

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of prison.
Plaintiff also seeks to hold Defendants Kovalchik and Tritt responsible for the
violation of his due process rights with respect to their rulings on his misconduct
hearing appeals. As a result of these violations, he requests to be either: (1) reinstated
to parole status with an immediate parole hearing, and to receive the sum of $500.00
plus the costs associated with this lawsuit; (2) placed on the waiting list for a bed at a
halfway house or mental health placement in Danville State Hospital, and to receive
$200 plus costs; or (3) paroled to Danville State Hospital for treatment and then
released to a home plan, and to receive the amount of $250.00 plus costs. (Id. at 3.)
Plaintiff also alleges that Defendants Alsheski and Lynch deprived him of due
process when they issued the false misconduct report against him that contained lies.
(Doc. 9 at 2.) Plaintiff claims that he was deprived due process when he was not
given access to videotapes that would have revealed Defendants’ lies and
demonstrated his innocence. (Id.) Plaintiff states he plans to pursue retaliation
claims in a separate suit. (Id.)
Plaintiff lists Defendants Wetzel and Lewis in the caption of his amendment.
Lewis is never again mentioned in the body of the Complaint. Wetzel is only
mentioned to the extent that Plaintiff states he is the head of the DOC, and is legally
responsible for the overall operations of each institution within the DOC. (Id. at 2.)
With respect to these claims, Plaintiff seeks declaratory, injunctive, compensatory and

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punitive relief.
III.

Discussion
Section 1983 of Title 42 of the United States Code offers private citizens a

cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983;
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309
(2002). To state a claim under § 1983, a plaintiff must allege “the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West
v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).
A.

Personal Involvement

Defendants move to dismiss all claims against Defendants Tritt, Kovalchik,
Wetzel and Lewis, on the basis of failure to allege personal involvement. 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). A supervisory
defendant may be liable if he directed, or knew of and acquiesced in, the deprivation

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of a plaintiff’s constitutional rights. Rode, 845 F.2d at 1207-08. 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.” Id. at 1208, quoting Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir.
1990), cert. denied, 501 U.S. 1218 (1991).
Additionally, participation in the after-the-fact review of a grievance is not
enough to establish personal involvement. See, e.g. Rode, 845 F.2d at 1208 (finding
the filing of a grievance is not enough to show the actual knowledge necessary for
personal involvement); Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006)(per
curiam)(allegations that prison officials and administrators responded inappropriately
to inmate’s later-filed grievances do not establish the involvement of those officials
and administrators in the underlying deprivation); Burnside v. Moser, 138 F. App’x
4114, 416 (3d Cir. 2005)(per curiam)(failure of prison official to process
administrative grievance did not amount to a constitutional violation or personal
involvement in the alleged constitutional deprivation grieved). It has also been found
that simply alleging that an official failed to respond to a letter or request Plaintiff
may have sent raising complaints, is not enough to demonstrate they had 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 complaint
does not provide personal involvement necessary to maintain a § 1983 claim).

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The only mention of Defendants Wetzel, other than in the listing of
Defendants, is when Plaintiff identifies him as the head of the DOC and therefore
legally responsible for the operations of all institutions. Defendant Lewis is only
mentioned in the listing of Defendants, and nowhere in the body of the Complaint.
As such, dismissal of said Defendants is warranted on the basis of lack of personal
involvement.
Plaintiff seeks to hold Defendants Tritt and Kovalchik liable for the violation
of his rights due to the fact that they affirmed the Hearing Examiner’s finding of guilt.
Plaintiff complains that said Defendants failed to remedy the Hearing Examiner’s
errors, and therefore are also responsible for violating his rights. Because there are
no allegations that Tritt and Kovalchik were involved in the underlying incidents that
took place, they cannot be held accountable due to their failure to overturn the
Hearing Examiner’s findings on appeal. See Rauso v. Vaughn, 2000 WL 873285
(E.D. Pa. 2000); Bey v. Pennsylvania Dep’t of Corrections, 98 F. Supp. 2d 650 (E.D.
Pa. 2000). For these reasons, Defendants’ motion to dismiss will also be granted
with respect to Defendants Tritt and Kovalchik.
B.

Fourteenth Amendment Due Process

Defendants argue that Plaintiff also fails to state a claim that his due process
rights were violated by the falsified incident report, misconduct proceedings and
untimeliness of responses to his appeals therefrom.

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First, although Plaintiff maintains that the incident report issued against him
was false/contained lies, the filing of a false misconduct report does not violate an
inmate’s due process rights. The general rule, as stated in Freeman v. Rideout, 808
F.2d 949, 951 (2d Cir. 1986), provides that a “prison inmate has no constitutionally
guaranteed immunity from being falsely or wrongly accused of conduct which may
result in the deprivation of a protected liberty interest.” An inmate has the right not to
be deprived of a protected liberty interest without due process of law. Thus, where a
prisoner is provided due process, no constitutional violation results from his being
falsely accused of a misconduct.
In analyzing a 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 (1972)). Once the court determines 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 (1972)). Protected liberty or property interests generally
arise either from the Due Process Clause or from some specific state-created statutory
entitlement. See Board of Regents v. Roth, 408 U.S. 564, 575 (1972). However, in
the case of prison inmates,
[i]n Sandin v. Conner, the Supreme Court announced a new standard for
determining whether prison conditions deprive a prisoner of a liberty
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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).
Applying these legal benchmarks, it has been held that disciplinary
proceedings, which result in sanctions of disciplinary segregation for six months and
even more, do not impose atypical and significant hardships on the inmate in relation
to the ordinary incidents of prison life in similar situations, 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); see, e.g., Dunbar v. Barone, 12-1337, 2012 WL
2775024 (3d Cir. July 10, 2012)(finding that an inmate placed in disciplinary custody
for 540 days as a result of misconduct, and presenting no evidence that conditions he
faced in disciplinary custody amounted to an “atypical and significant hardship,” does
not amount to a due process violation under Sandin); Griffin v. Vaughn, 112 F.3d
703, 705-07 (3d Cir. 1997)(ruling that fifteen months in segregation was not an
atypical and significant hardship); Henderson v. Kerns-Barr, 313 F. App’x 451, 452

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(3d Cir. 2008)(90 days disciplinary confinement did not implicate a liberty interest).
As such, to the extent Plaintiff asserts due process claims against Defendants
Alsheski and Lynch for writing false documents, and against Defendant Luquis for
denying him the right to call witnesses and present evidence, he fails to articulate a
sufficient liberty interest to trigger a valid due process claim in the prison setting for
the following reasons. First, with respect to the challenged misconduct proceedings,
Plaintiff was only sanctioned to 180 days disciplinary confinement. (Doc. 28-2 at 7.)
Second, he does not raise any claims that the conditions of his confinement in
disciplinary segregation were significantly more restrictive than those imposed upon
other inmates in solitary confinement. See Shoats, 213 F.3d at 144.
Plaintiff appears to support his due process claim, as well as raise a cruel and
unusual punishment claim under the Eighth Amendment, by arguing that the
disciplinary confinement he received as a sanction for the misconduct, negatively
impacted his parole opportunity. Any such claim is wholly without merit. It is wellestablished that an inmate does not have a right to release on parole under
Pennsylvania law or the United States Constitution. Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 7 (1979)(“there is no constitutional or inherent
right of a convicted person to be conditionally released before the expiration of a
valid sentence”); Weaver v. Pa. Bd. of Prob. and Parole, 688 A.2d 766, 770 (Pa.
Commw. 1997)(under Pennsylvania law, parole is a favor, and the prisoner has no

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protected liberty interest in being released before a legitimately imposed sentence has
expired). Similarly, “. . . there is no constitutionally mandated right to enter a
discretionary parole release program.” Winsett v. McGinnes, 617 F.2d 996, 1005 (3d
Cir. 1980), cert. denied, 449 U.S. 1093 (1981); Rauso v. Vaughn, No. 96-6977, 2000
WL 873285, at *7 (E.D. Pa. June 26, 2000)(parole is not a constitutionally protected
liberty interest); Reider v. Commonwealth of Pa., 93 Pa. Commw. 326, 502 A.2d 272
(1985)(denial of pre-release status to inmate who met all minimum criteria for
participation was not a due process violation). Consequently, Plaintiff’s assertion
that the alleged fabricated misconduct impeded or prevented his parole release, even
though he believed he would be granted parole release, does not implicate the
violation of a constitutional right.
C.

Retaliation

The Defendants also move to dismiss any claim of retaliation Plaintiff seeks to
advance against them. In reviewing the Complaint, the only mention of retaliation the
Court can find is with respect to the following statement made by Plaintiff:
Because of recent events and continuing retaliation there is another suit
that will be filed separate (sic) from this suit for the beating I received
with my hands cuffed behind my back. This type of retaliation continues
because I made swore (sic) statements against the staff here in this
falicity (sic) that I personally witness (sic) and was expected to look the
other way and I did not.
(Doc. 9 at 3.) The only other mention of “retaliation” in the Complaint is when
Plaintiff uses the word “retaliation” when he lists his claims, and when he requests
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injunctive relief in the form of a transfer, claiming he would have been paroled or
moved to the Danville State Hospital for treatment if “the retaliation would not have
happened.” (Id. at 3-4.)
The First Amendment offers protection for a wide variety of expressive
activities. See U.S. Const. amend. I. These rights are lessened, but not extinguished
in the prison context, where legitimate penological interests must be considered in
assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78,
89 (1987). Retaliation for expressive activities may infringe upon an individual’s
rights under the First Amendment. See Allah v. Seiverling, 229 F.3d 220, 224-25 (3d
Cir. 2000). To prevail on a retaliation claim under 42 U.S.C. § 1983, plaintiff must
demonstrate (1) that he was engaged in protected activity; (2) that he suffered an
“adverse action” by government officials; and (3) that there is “a causal link between
the exercise of his constitutional rights and the adverse action taken against him.”
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001)(quoting Allah, 229 F.3d at 225).
The last Rauser prong requires a prisoner to establish a causal link between the
exercise of his constitutional rights and the adverse action taken against him. The
Court employs a burden-shifting regime to determine whether a causal link exists.
The prisoner bears the initial burden of proving that his constitutionally protected
conduct was a substantial or motivating factor in the decision to discipline him or
retaliate against him. See id. (citing Mount Healthy City Sch. Dist. Bd. of Educ. v.

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Doyle, 429 U.S. 274, 287 (1977)). The burden then shifts to the defendants to prove
by a preponderance of the evidence that they would have taken the same disciplinary
action even in the absence of the protected activity. See id. If defendants prove that
they would have made the same decision absent the protected conduct for reasons
reasonably related to a legitimate penological interest, they will prevail in the
retaliation action. See id. at 334.
In establishing the elements of a retaliation claim, a plaintiff must produce
more than “general attacks” upon the defendant’s motivations. A plaintiff must
produce “affirmative evidence” of retaliation from which a jury could find that he
carried his burden of proving the requisite motive. See Crawford-El v. Britton, 523
U.S. 574, 600 (1998)(internal citations omitted).
First, Plaintiff appears to state that he will be pursuing his retaliation claims in
a separate action to be filed with the Court. (Doc. 9 at 3.) As such, the Court does
not necessarily construe the instant Complaint as raising any retaliation claims in this
action. However, to the extent that the Court misconstrues Plaintiff’s intentions, any
claim for retaliation attempted to be advanced in the Complaint is wholly inadequate.
Plaintiff fails to set forth any facts alleging that he was engaged in any
constitutionally protected conduct when he was issued the misconduct by
Defendants.2 There are simply no facts alleged to support any inference that the
When Plaintiff states that he intends to pursue retaliation claims in a separate
action, he references being beaten “. . . because [he] made sworn statements against
2

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misconduct issued was done so for any reason other than Plaintiff’s behavior.
Plaintiff sets forth nothing but an unsupported legal conclusion.
Moreover, Plaintiff must allege facts to show that the adverse action he
allegedly suffered was “sufficient to deter a person of ordinary firmness from
exercising his First Amendment rights.” Allah v. Seiverling, 229 F.3d at 220, 224-25
(3d Cir. 2000)(internal quotation and citation omitted). Further, even if facts were
alleged to satisfy the first two Rauser prongs, nowhere in the Complaint are there any
facts alleged to suggest a causal link between any constitutionally protected activity
and the issuance of the alleged false misconduct. Rather, to the extent Plaintiff even
intends to pursue a retaliation claim in the instant action, the most he sets forth is a
completely conclusory, unsupported claim. For these reasons, any such claim will be
dismissed.
IV.

Conclusion
Based on the foregoing, Defendants’ motion to dismiss will be granted. An

appropriate order follows.

staff members.” (Doc. 9 at 3.) However, there is no indication whatsoever in the
Complaint that this conduct was the reason behind any alleged retaliation for the
filing of the false misconduct charges.
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