Payne v. Duncan et al

Filing 35

MEMORANDUM Based on the foregoing, Defendants' motion will be granted. A separate order shall issue.Signed by Honorable Robert D. Mariani on 2/9/17. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA PAYNE,
Plaintiff

Civil No. 3:15-cv-1010

(Judge Mariani)

v.
DUNCAN, et al.,
Defendants

MEMORANDUM
I.

Background
Plaintiff Joshua Payne ("Plaintiff'), a Pennsylvania state inmate who, at all times

relevant, was housed at the Camp Hill State Correctional Institution ("SCI-Camp HiII"),1
commenced this action on May 19, 2015 pursuant to 42 U.S.C. § 1983. (Doc. 1). The
matter is proceeding via an amended complaint wherein Plaintiff names the following
Defendants: Duncan, Ziegler, Settle, McElwain, Whalen, and Bell. {Doc. 20-1). Presently
pending before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b) or, in the alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56. (Doc. 26). Despite being granted additional time to file a brief in
opposition to Defendants' dispositive motion, Plaintiff failed to oppose the motion. (Doc.
32). Accordingly, the motion will be deemed ripe for disposition and, for the reasons set

Plaintiff is currently confined at the Mahanoy State Correctional Institution in Frackville,
Pennsylvania.
I

forth below, will be granted.

II.

Summary Judgment Standard of Review
When a party moves to dismiss, but where "matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56." FED. R. CIV. P. 12(d). Typically, when a court converts a motion
to dismiss into a motion for summary judgment under Rule 56, notice must be given to all
parties of the court's intent to do so. Id.; Garcia v. Newtown Twp., 2010 WL 785808, at *3
(E.D. Pa. 2010). However, if a motion to dismiss has been filed with an alternative request
for summary judgment, the Third Circuit Court of Appeals has found that the alternative
filing is sufficient to "place the parties on notice that summary judgment might be entered."
Latham v. United States, 306 F. App'x 716,718 (3d Cir. 2009) (citing Hilfirly v. Shipman, 91
F.3d 573, 578-79 (3d Cir. 1996)). Accordingly, the Court will treat the Defendants' motion
as one for summary judgment.
Through summary adjudication, the court may dispose of those claims that do not
present a "genuine dispute as to any material fact." FED. R. CIV. P. 56(a). "As to materiality,
... [o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson v. Uberly Lobby, Inc.,
477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the burden of showing the absence

2

of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,106

S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving
party must offer specific facts contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'! Wildlife Fed'n, 497 U.S. 871, 888 (1990).
Therefore, the non-moving party may not oppose summary judgment simply on the basis of
the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S.
at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record ... or showing that the
materials cited do not establish the absence or presence of agenuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P.
56(c)(1)(A)-(S). In evaluating whether summary judgment should be granted, "[t]he court
need consider only the cited materials, but it may consider other materials in the record."
FED. R. CIV. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the
non-moving party, and where the non-moving party's evidence contradicts the movant's,
then the non-movant's must be taken as true." Big Apple BMW; Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993).
However, "facts must be viewed in the light most favorable to the nonmoving party
only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127
S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the

3

summary judgment rule,
its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts. Where the record taken as awhole could not
lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.
Id. (internal quotations, citations, and alterations omitted).

III.

Allegations of the Amended Complaint
Plaintiff alleges that on March 7, 2013, his cell was searched by Duncan and Ziegler.

(Doc. 20-1, 1f 12). Prior to the cell search, Plaintiff alleges that Duncan told Ziegler that
Plaintiff essentially got Duncan kicked out of the special management unit ("SMU"). (ld. at 1f
13). Duncan also allegedly told Ziegler that Plaintiff was a prolific filer of grievances and
lawsuits, and he should throwaway Plaintiffs property to deter him from filing more
grievances and lawsuits. (ld. at 1f 14). When the officers were preparing to search the cell,
Plaintiff alleges that he was strip searched and verbally harassed by Duncan. (ld. at 1f1f 16,
18,19).
During the cell search, the officers allegedly removed Plaintiffs legal materials,
religious material, and personal photographs. (ld. at 1f1f 19, 25-28, 30). Plaintiff claims that
Duncan and Ziegler discarded his property in retaliation for filing previous grievances and
4

lawsuits. (ld. at ~~ 13-14, 18, 23, 25-26, 28, 30, 55). Plaintiff requested a confiscation slip

to document the missing items, which was denied by the officers. (Id. at ~ 22). Plaintiff
claims that his property was never returned, even though he reported the missing property
to McElwain and Settle. (Id. at ~ 24). Plaintiff alleges that the confiscation of his legal
documents hindered his ability to present evidence in pending civil and criminal matters.
(Id. at ~~ 25-26). Plaintiff asserts that Duncan, Ziegler, Settle, McElwain, Whalen, and Bell

violated his equal protection rights by obstructing his ability to present his evidence in the
other cases. (Id. at ~~ 61-62).
Plaintiff alleges that Settle, McElwain, and Whalen conspired to violate Plaintiffs
First Amendment, due process, and equal protection rights by aSSisting Duncan and Ziegler
in the destruction of his legal materials. (Id. at ~~ 63-65). Plaintiff further alleges that Bell
conspired to violate Plaintiffs First Amendment and due process rights by assigning Whalen
as the grievance officer, which he claims was in violation of Pennsylvania Department of
Corrections ("DOC") policy. (Id. at ~~ 67, 71). He claims that Bell assigned Whalen as the
grievance officer in retaliation for Plaintiff 'filing previous grievances and lawsuits. (Id. at ~
40,72).
On March 20, 2013, Plaintiff filed agrievance against Duncan, Ziegler and Whalen
"describing the retaliatory acts of intentionally taking and destro[y]ing Plaintiffs personal
property and claims of conspiracy of these staff to cover up their actions." (Id. at ~ 37).
5

Plaintiff asserts that he also filed a grievance against McElwain and Settle for failing to stop

the actions of Duncan and Ziegler and conspiring with them to retaliate against Plaintiff. (ld.
at ~ 37).
IV.

Discussion

Defendants seek dismissal of the amended complaint, or an entry of summary
judgment, on the following grounds: (1) the damages claims against the Defendants in their
official capacities are barred by the Eleventh Amendment; (2) Plaintiff failed to properly
exhaust the administrative remedies prior to filing suit; (3) the amended complaint is barred
by the applicable statute of limitations; and, (4) assuming arguendo that Plaintiff properly
exhausted his administrative remedies and that the amended complaint is timely, he
nonetheless fails to state a plausible claim for relief. (Doc. 27). The Court will address
these claims seriatim.
A.

Official Capacity Claims

The Eleventh Amendment provides that each state is a sovereign entity and a
sovereign is not amenable to suit unless it consents. Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 54,116 S.Ct.1114, 134 L.Ed.2d 252 (1996); see also Alabama v. Pugh, 438 U.S.
781,782,98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). Thus, lithe Constitution does not provide
for federal jurisdiction over suits against nonconsenting States." Kimel v. Florida Board of

Regents, 528 U.S. 62, 73,120 S.Ct. 631,145 L.Ed.2d 522 (2000). The Commonwealth of
6

Pennsylvania has expressly withheld its consent to be sued. See Lavia v. Pa., Dept. of

Corr., 224 F.3d 190, 195 (3d Cir. 2000); Williard v. Pennsylvania, 1996 U.S. Dist. LEXIS
8407,8420 (E.D. Pa. 1996) (stating it is a "well-established proposition that the
Commonwealth of Pennsylvania has not consented to actions against it in federal court, and
thus has not waived its Eleventh Amendment immunity from lawsuits by its citizens").
Further, claims against state officials in their official capacities are suits against the state
and thereby barred by the Eleventh Amendment. Hafer v. Melo, 502 U.S. 21,25, 112 S.Ct.
358, 116 L.Ed.2d 301 {1991}.
Plaintiff is suing six employees of the Pennsylvania Department of Corrections. To
the extent that Plaintiff is suing the Defendants in their official capacities, Defendants enjoy
Eleventh Amendment immunity from suit for acts taken in their official capacities, and any
official capacity claims will be dismissed. See (Doc. 20-1, p. 2, ~ 11) (stating that each
Defendant is sued in their individual and official capacities).
B.

Exhaustion of Administrative Remedies

Under the Prison Litigation Reform Act of 1996 (the "PLRA"), a prisoner is required
to pursue all avenues of relief available within the prison's grievance system before bringing
afederal civil rights action. See 42 U.S.C. § 1997e(a}; Booth v. Churner, 532 U.S. 731,741
(2001). The exhaustion requirement is mandatory, see Williams v. Beard, 482 F.3d 637,
639 (3d Cir. 2007); see also Booth, 532 U.S. at 741 (holding that the exhaustion

7

requirement of the PLRA applies to grievance procedures "regardless of the relief offered

through administrative procedures"); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000)
(same), and "applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some
other wrong." Porter v. Nuss/e, 534 U.S. 516, 532 (2002).
Courts have also imposed a procedural default component on the exhaustion
requirement, holding that inmates must fully satisfy the administrative requirements of the
inmate grievance process before proceeding into federal court. Spruill v. Gillis, 372 F.3d
218 (3d Cir. 2004). Inmates who fail to fully, or timely, complete the prison grievance
process, or who fail to identify the named defendants, are barred from subsequently
litigating claims in federal court. See Spruill, 372 F.3d 218. "As for the failure to identify
named defendants on the grievance form, ...to the extent the identity of a defendant was 'a
fact relevant to the claim,' Pennsylvania's prison grievance policy mandated that the
identification be included in the inmate's statement of facts on the grievance form. And, ...in
the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly identify a
defendant constituted a failure to properly exhaust his administrative remedies under the
PLRA." Williams v. Pennsylvania Oep't of Corr., 146 F. App'x 554,557 (3d Cir. 2005)
(non-precedential). An "untimely or otherwise procedurally defective administrative
grievance" does not satisfy the PLRA's exhaustion requirement. Woodford v. Ngo, 548 U.S.

8

81,83-84 (2006). Thus, the PLRA mandates that inmates "properly" exhaust administrative
remedies before filing suit in federal court. Id. at 92.
The Pennsylvania Department of Corrections has an Inmate Grievance System
which permits any inmate to seek review of problems that may arise during the course of
confinement. 37 Pa.Code § 93.9(a); see also www.cor.state.pa.us. DOC Policies, Policy
No. DC-ADM 804, Inmate Grievance System. After an attempt to resolve any problems
informally, an inmate may submit a written grievance to the Facility's Grievance Coordinator
for initial review. This must occur within fifteen days after the events upon which the claims
are based. Within fifteen days of an adverse decision by the Grievance Coordinator, an
inmate may then appeal to the Facility Manager of the institution. Thereafter, within fifteen
days of an adverse decision by the Facility Manager, an inmate may file afinal appeal to the
Secretary's Office of Inmate Grievances and Appeals. See Booth v. Churner, 206 F.3d 289,
293 n. 2 (3d Cir. 2000) (outlining Pennsylvania's grievance review process). An appeal to
final review cannot be completed unless an inmate complies with all established
procedures. An inmate must exhaust all three levels of review and comply with all
procedural requirements of the grievance review process in order to fully exhaust an issue.
See Booth, 206 F.3d at 293 n. 2 (outlining Pennsylvania's grievance review process);
Ingram v. SCI Camp Hill, 448 F. App'x 275,279 (3d Cir. 2011) (same).
A declaration under penalty of perjury submitted by Deborah Alvord, Corrections

9

Superintendent's Assistant, states that based on a review of the DOC's Automated Inmate
Grievance Tracking System, Plaintiff submitted only one grievance relating to the
allegations in the amended complaint, Grievance Number 453709. (Doc. 27-3, pp. 2-3, ~~
1-4). Accompanying Alvord's declaration are copies of the relevant institutional
•

administrative remedy records. (Doc. 27-3, pp. 5-33).
Plaintiff filed his initial grievance on March 20, 2013. (Doc. 27-3, p. 32). The text of
the grievance only names Defendant Whalen, and fails to name Duncan, Ziegler, Settle,
and McElwain. (Id.). The grievance is addressed to grievance coordinator Bell. (Id.).
There is no other reference to Defendant Bell in the grievance. (ld.). The grievance states
that Plaintiffs legal materials, religious books, and personal pictures were taken from his
cell as retaliation, and that Whalen tried to cover-up the misconduct of SMU staff. (ld.).
The grievance does not mention any access to courts claim, equal protection claim, Eighth
Amendment claim, interference with religion claim, substantive due process claim, or
conspiracy claim. (Id.). The initial grievance was denied. (Id. at p. 31). Grievance officer
Bell responded as follows:
I have reviewed your grievance and investigated your claims. When I spoke
to you at your cell door about the request slip you had submitted on this
alleged incident, your response to me was "Don't worry about it." I then
informed you that I would still respond to the request slip. The findings are
still the same in that staff informed me the only items removed from your cell
were some paper items located on your desk that you designated as "trash"
as you were present for and observed the cell search. Staff stated once you
designated the paper items on your desk as "trash", they were searched for
10

contraband in your presence and then disposed of in your presence. As you
have provided no evidence to support any of your claims listed in your
grievance, this grievance and any requested relief are denied.
(Id.).

Plaintiff filed an appeal to the Facility Manager. (Id. at p. 29). In the appeal, Plaintiff
only mentions Whalen in reference to his response to the initial grievance. (Id.). The
appeal does not name Duncan, Ziegler, Settle, McElwain, or Bell. (Id.). Plaintiff asserts
that he never told the officers to throwaway his property, and requests compensation for
the lost items. (/d.). The Facility Manager denied the appeal and responded as follows:
I am in receipt of your appeal and have reviewed your original grievance as
well as the Grievance Officer's response. You appeal continuing to claim that
staff confiscated books and legal material from your cell on 317/13 and threw
those items away.
I find that the Grievance Officer properly investigated your grievance
concerns and provided an appropriate response. Staff were interviewed at
the time of investigation and I have had additional staff, present that day,
interviewed. All staff vehemently deny removing anything from your cell other
than what you proclaimed to be trash. Staff also indicate that following the
search, you remained at your door with no complaints or concerns. You
didn't request to speak to a ranking staff member about the situation at that
time. Further, your cell was searched on 3/7/13, yet you waited until 3/20 to
file a grievance. Clearly, your actions/behavior following the search on
317/13, was not indicative of an inmate that just had items inappropriately
confiscated. Your version of events is simply not credible. Your appeal and
any requested relief is denied.
(Id. at p. 30).

Plaintiff then appealed to final review. (Id. at p. 28). In the appeal, Plaintiff states
that the confiscation of his legal materials violated the constitution, and that the taking of his
11

religious books has burdened bis practice of religion. (Id.). The grievance contains no

assertions that it was improper for Whalen to review Plaintiffs initial grievance, and no
claims regarding access to courts, conspiracy, due process, Eighth Amendment, or equal
protection. (/d.). None of the named Defendants are mentioned in the final appeal. (/d.).
The Chief Grievance Officer denied the 'final appeal and found as follows:
A review of the record shows that you are filing an appeal on your claim that
staff confiscated your religious books and legal materials and threw them
away. You claim that as a result, you cannot practice your religion.
An investigation into the matter reveals that the staff was interviewed and
denied throwing away your legal materials or religious books. It was reported
that on 3-7-13, your cell was searched and the only things that were
confiscated were some paper items that you designated as trash when you
were there. A Confiscated Items Receipt was not needed for trash. The Unit
Manager interviewed you regarding this issue and you responded to him by
saying, "Don't worry about it." Based on this information, there is no evidence
to substantiate your claims that staff confiscated anything other than trash.
You failed to provide any evidence such as an Inmate Personal Property
Inventory Sheet to show that you possessed any of these items such as
books and/or legal materials. Your request for payment of $10,000 is denied.
(Id. at p. 27).

As noted above. the standard used in determining whether a prisoner has exhausted
the administrative process is whether he complied with the applicable grievance procedures
and rules. The relevant policy and the pertinent language states as follows:
The text of the grievance must be legible, understandable, and
presented in a courteous manner. The inmate must include a statement
of the facts relevant to the claim. The statement of facts shall include
the date, approximate time and location of the event(s) that gave rise to
12

the grievance. The inmate shall identify individuals directly involved in
the event(s).
The statement of facts must not exceed two pages and must be
handwritten or typed on writing paper.... The inmate will also
specifically state any claims he/she wishes to make concerning
violations of Department directives, regulations, court orders, or other
law. If the inmate desires compensation or other legal relief normally
available from a court, the inmate shall request the specific relief
sought in his/her initial grievance.
DC-ADM 804, § 1(A)(11-12). Notably, "[t]he inmate shall identify individuals directly
involved in the event(s)." DC-ADM 804, § 1(A)(11). The purpose of the regulation "is to put
the prison officials on notice of the persons claimed to be guilty of wrongdoing." Spruill,372
F.3d at 234. Plaintiff failed to utilize the DOC's Inmate Grievance System with respect to
Defendants Duncan, Ziegler, Settle, McElwain, and Bell by failing to identify these
individuals in the initial grievance or any subsequent appeal.
Additionally, Plaintiffs initial grievance only states that his legal material, religious
books, and personal pictures were taken as retaliation, and that Whalen attempted to
"cover-up" these actions. Plaintiffs final appeal complains that the confiscation of his legal
materials violated the constitution, and that the taking of his religious books burdened his
practice of religion. 2
Based upon Alvord's declaration, the submitted DOC administrative remedy records,

The amended complaint does not contain a claim for relief alleging interference with religion.
See (Doc. 20-1, pp. 10-15).
2

13

and Plaintiffs failure to dispute any of the record evidence, the Court finds that Plaintiff did
not properly exhaust his claims in the amended complaint with respect to any claims against
Defendants Duncan, Ziegler, Settle, McElwain, and Bell. In reaching this determination, the
Court notes that Plaintiff failed to oppose Defendants' motion and thus failed to provide any
evidence that he properly exhausted administrative remedies. "[I]t is clear, regardless of the
purpose of the requirement, that Spruill requires the prisoner-grievant-plaintiff to name in the
grievance those he eventually sues, upon pain of procedural default." Hemingway v. Ellers,
2008 WL 3540526, at *11 (M.D. Pa. 2008) (citing Williams, 146 F. App'x at 557). Under
Spruill, it is the plaintiffs burden to explain why he did not name a defendant in the
grievance. See Spruill, 372 F.3d at 234 ("Spruill did not [name Brown in his grievance], and
has offered no explanation for his failure to do so"). Moreover, a party opposing summary
judgment must come forth with "affirmative evidence, beyond the allegations of the
pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311,
315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e). This evidence must be adequate, as a matter
of law, to sustain ajudgment in favor of the non-moving party on the claims. See Anderson,
477 U.S. at 250-57; Matsushita Elee. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Plaintiff has not made any showing that
he should be excused from compliance with the exhaustion requirement. The undisputed
record establishes that Plaintiff failed to properly exhaust the available administrative
14

remedies with respect to Defendants Duncan, Ziegler, Settle, McElwain, and Bell.

To the extent that Plaintiff attempts to hold grievance coordinator Bell liable based on
his involvement in the grievance procedure and responses to inmate grievances, this claim
also fails. Inmates do not have aconstitutional right to a prison grievance system. Speight
V.

Sims, 283 F. App'x 880 (3d Cir. 2008) (citing Massey v. Hetman, 259 F.3d 641,647 (7th

Cir. 2001) C'[T]he existence of a prison grievance procedure confers no liberty interest on a
prisoner."). Consequently, dissatisfaction with a response to an inmate's grievances does
not support a constitutional claim. See Alexander v. Gennarini, 144 F. App'x 924 (3d Cir.
2005) (involvement in post·incident grievance process not a basis for § 1983 liability); Pryor-

EI 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 official's
failure to comply with grievance procedure is not actionable). Based on the foregoing,
Defendants Duncan, Ziegler, Settle, McElwain, and Bell are entitled to an entry of judgment
in their favor. 3
C.

Statute of Limitations

It is well-settled that claims brought pursuant to 42 U.S.C. § 1983 are subject to the
state statute of limitations for personal injury actions. Wilson v. Garcia,471 U.S. 261,266­
67 (1985); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451,457 n.9 (3d Cir. 1996).

3

The Court will nevertheless proceed to an analysis of the merits of Plaintiffs claims.

15

In Pennsylvania, the statute of lirnitations for a personal injury action is two years. See 42

Pa. C.S. § 5524. However, the date when a cause of action accrues is still a question of
federal law. Smith v. Wambaugh, 887 F.Supp. 752, 755 (M.D. Pa. 1995). Under federal
law, a civil rights cause of action accrues, and the statute of limitations begins to run, when
the plaintiff "knew or should have known of the injury upon which [the] action is based."
Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
The limitations period begins to run if a plaintiff has sufficient notice to place him on alert of
the need to begin investigating. Gordon v. Lowell, 95 F. Supp. 2d 264, 272 (E.D. Pa. 2000).
Under Gordon, a "claim accrues upon knowledge of the actual injury, not that the injury
constitutes a legal wrong." Id. The statute of limitations is tolled while an inmate plaintiff
exhausts his administrative remedies. See Pearson v. Sec}' Dep't of Carr., 775 F.3d 598,
603 (3d Cir. 2015) ("[T]he PLRA is a statutory prohibition that tolls Pennsylvania's statute of
limitations while a prisoner exhausts administrative remedies.").
Plaintiffs cause of action accrued on March 7, 2013, when Defendants Duncan and
Ziegler allegedly searched his cell. (Doc. 20-1, 1f 12). Consequently, the clock for filing a
civil rights action began on March 7, 2013, and Plaintiff had until March 9, 2015, to file a
timely civil rights action. Plaintiff filed his initial Inmate Grievance on March 20, 2013. (Doc.
27-3, p. 32, Informal Resolution Form). He appealed review of his administrative remedies
to the Secretary's Office of Inmate Grievance and Appeals, where the appeal was denied

16

on June 20, 2013, and the statutory period started to run again on this date. (ld. at pp. 27­
31). Assuming that the statutory filing period was tolled for the ninety-two days during
which Plaintiff was pursuing his administrative remedies, Plaintiff had approximately seven
hundred seventeen days of the two-year filing period remaining. Consequently, Plaintiff was
required to file his complaint approximately on or before June 8,2015. The original
complaint was filed on May 19, 2015. 4 The Court is satisfied that Plaintiff followed the
procedural rules regarding exhaustion and is entitled to statutory tolling while he exhausted
his administrative remedies. Accordingly, the Court will deny Defendants' motion to dismiss
the amended complaint as untimely.
D.

Access to Courts Claim

An inmate has a constitutional right of access to the courts. Lewis v. Casey, 518
U.S. 343, 349-56,116 S.Ct. 2174,135 L.Ed.2d 606 (1996); Bounds v. Smith, 430 U.S. 817,
97 S.Ct. 1491,52 L.Ed.2d 72 (1977); Abdul-Akbar v. Watson,4 F.3d 195,202-03,205 (3d
Cir.1993). "To state a cognizable access to courts claim, a plaintiff must plausibly show
that: (1) he suffered an 'actual injury' (Le., that he lost an opportunity to pursue a
nonfrivolous claim); and (2) he has no other remedy, save the present civil rights suit that
can possibly compensate for the lost claim." Williams v. Clancy, 449 F. App'x 87,89 (3d

4
Under the standards announced in Houston v. Lack, 487 U.S. 266,108 S.Ct. 2379,101
L.Ed.2d 245 (1988), Plaintiff's action will be deemed filed as of May 19, 2015, the date he signed his
original complaint.

17

Cir. 2011) (citing Monroe V. Beard, 536 F.3d 19B, 205 (3d Cir. 200B)). In addition, "[t]he

complaint must describe the underlying arguable claim well enough to show that it is 'more
than mere hope,' and it must describe the 'lost remedy.'" Id. In Lewis V. Casey, the
Supreme Court made clear that a plaintiff must demonstrate actual injury. In other words,
the inmate must allege some legal loss.
Plaintiff alleges that the confiscation of his legal documents hindered his ability to
present evidence in pending civil and criminal matters. (Doc. 20-1, 1f1f 25-26). Plaintiff
references two civil matters, Payne V. Wetzel, No. 3:12-cv-1932 and Payne V. Klemm, No.
3:12-cv-2243, and two criminal matters, Commonwealth V. Payne, No.
CP-51-CR-0904611-2005 and Commonwealth

V.

Payne, No. CP-27-CR-0000046-200B.

(ld.). Plaintiff fails to set forth any allegations pertaining to the merits of the claims he
wished to raise in these cases, and ultimately fails to establish an actual injury or legal loss.
A review of the state court docket5 in the two criminal cases reveals that the cases
have been closed since 2006 and 2009. See Commonwealth v. Payne, No.
CP-51-CR-0904611-2005 and Commonwealth

V.

Payne, No. CP-27-CR-0000046-200B.

Plaintiff could not possibly have lost the opportunity to present past legal claims or have
been denied access to the courts in these criminal cases that have been closed for several
years. Instead, Plaintiff complains that he no longer has "any personal records" pertaining
See Pennsylvania's Unified Judicial System Webportal, Common Pleas Courts Docket Sheets,
available at: http://ujsportal.pacourts.us/DocketSheets/CP.aspx.
5

18

to his criminal cases. (Doc.

20~1,

p. 10, ~ 51).

Next, the Court has reviewed this District's docket regarding the civil cases in which
Plaintiff was allegedly denied access to the courts. Upon review of the procedural posture
in Payne v. Wetzel, No. 3:12-cv-1932 (M.D. Pa.), there can be no dispute that the action is
pending and Plaintiff is pursuing his claims. On April 19, 2016, Magistrate Judge Carlson
issued a Report and Recommendation recommending that certain claims be dismissed
because Plaintiff failed to allege any facts to establish a plausible claim. Wetzel, No.
3:12-cv-1932 at (Doc. 88). Plaintiff failed to timely file any objections, and the Court
adopted the R&R. Wetzel, No. 3:12-cv-1932 at (Doc. 92). There is no indication in
Plaintiffs filings in that case that he was hindered in any way by prison officials. Wetzel,
No. 3:12-cv-1932 at (Doc. 91). Plaintiff continues to litigate that action and, currently, there
is a pending dispositive motion. Wetzel, No. 3:12-cv-1932 at (Doc. 110).
In Payne v. Klemm, No. 3:12-cv-2243 (M.D. Pa.), Plaintiff proceeded with the
assistance of counsel and the action was settled in May 2016 through the Court's mediation
program. Thus, the Court finds that Plaintiff has failed to establish that he was denied the
ability to litigate these civil cases. In failing to establish an actual injury or some legal loss,

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Plaintiff has failed to demonstrate that he was unconstitutionally denied access to the

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courts.

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E.

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Eighth Amendment

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Plaintiff alleges that Defendants failed to intervene in the destruction of his property.
(Doc. 20-1, p. 11, ~~ 57-58). A prisoner raising a failure to intervene claim under the Eighth
Amendment must show: "(1) that the defendant failed or refused to intervene when a
constitutional violation took place in his or her presence or with his or her knowledge; and
(2) there was a"realistic and reasonable opportunity to intervene.'" Knight v. Walton, 2014
WL 1316115, at *8 (W.O. Pa. 2014) (quoting Smith v. Mensinger, 293 F.3d 641, 651 (3d Gir.
2002)). However, "there must exist an underlying constitutional violation" for there to be a
failure to intervene. Id. (quoting Harper v. Albert, 400 F.3d 1052, 1064 (7th Gir. 2005)).
Because the Gourt finds that Plaintiff has not stated an access to courts claim, there was no
underlying violation and thus no duty to intervene.
Moreover, the Eighth Amendment protects against cruel and unusual punishment.
Estelle v. Gamble, 429 U.S. 97, 97 S.Gt. 285, 50 L.Ed.2d 251 (1976). To establish a
violation of the Eighth Amendment, the prisoner must show that he was deprived of the
"minimal civilized measure of life's necessities." Young v. Quinlan, 960 F.2d 351, 359 (3d
Gir. 1992) (internal quotes omitted), superseded by statute on other grounds as stated in
Ghana v. Holland, 226 F.3d 175, 184 (3d Gir. 2000). A deprivation of the minimal civilized
measure of life's necessities requires the prisoner to establish that he was denied "basic
human needs, such as food, clothing, shelter, sanitation, medical care and personal safety"
from physical assault. Griffin v. Vaughn, 112 F.3d 703,709 (3d Gir. 1997). Plaintiffs claim
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for destruction of property under the Eighth Amendment does not constitute a deprivation of

life's necessities.
F.

Substantive Due Process

Plaintiff sets forth a Fourteenth Amendment substantive due process claim based on
the theory that he was prevented from accessing the courts because his legal materials
were destroyed. (Doc. 20-1, p. 11, ~~ 59-60). This claim fails pursuant to the
"more-specific-provision" rule. In adopting the "more-specific-provision-rule" established in
County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998), the Third Circuit noted that
"[uJnder this rule, 'if a constitutional claim is covered by aspecific constitutional provision,
such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due process.'
United States v. Lanier, 520 U.S. 259, 272 n. 7,117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)
(clarifying prior holing in Graham v. Connor, 490 U.S. 386,109 S.Ct. 1865, 104 L.Ed.2d 443
(1989))." Betts v. New Castle youth Dev. Ctr., 621 F.3d 249, 260-61 (3d Cir. 2010).
Because Plaintiffs claim fits squarely within the access to courts claim, the
more-specific-provision rule forecloses Plaintiffs substantive due process claim.

G.

Equal Protection

Plaintiff also claims that the destruction of his property violated his rights to Equal
Protection. (Doc. 20-1, p. 12, ~~ 61-62). The Equal Protection Clause of the Fourteenth

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Amendment provides that a state may not "deny to any person within its jurisdiction the

equal protection of the laws," which is essentially a direction that all persons similarly
situated should be treated alike. U.S. CONST., amend. XIV; City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)).
Classifications involving suspect or quasi-suspect class, or impacting certain fundamental
constitutional rights, are subject to heightened or "strict" scrutiny. City of Cleburne, 473
U.S. at 439.
An equal protection claim can also be brought by a "class of one," a plaintiff alleging
that he has been "intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment." Viii. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000); Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003); see also

Jean-Pierre v. Bureau of Prisons, 497 F. App'x 164, 168 (3d Cir. 2012). If adistinction
between persons does not implicate a suspect or quasi-suspect class, state action will be
upheld if it is rationally related to a legitimate state interest. See Tillman v. Lebanon County

Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000). Proof of disparate impact alone, however,
is not sufficient to succeed on an equal protection claim; a plaintiff also must prove that the
defendant intended to discriminate. See Viii. of Arlington Heights v. Metro. Housing Oev.

Corp., 429 U.S. 252, 264-66 (1977); Washington v. Davis, 426 U.S. 229, 242, 244-45
(1976). Thus, discriminatory intent must be a motivating factor in the decision, even though
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it need not be the sole motivating factor. See ViII. of Arlington Heights, 429 U.S. at 265-66.

Moreover, to prove a lack of rational basis, a plaintiff must negate every conceivable
rational basis for his differential treatment. See Bd. of Trustees v. Garrett,531 U.S. 356,
367 (2001); Ramsgate Court Townhome Ass'n v. West Chester Borough, 313 F.3d 157,
160 (3d Gir. 2002).
Plaintiff has failed to allege any facts, or present any evidence, from which it can be
concluded that the Defendants engaged in intentional or purposeful discrimination or that he
was treated differently than similarly situated persons on the basis of his age, race,
nationality or gender. Additionally, Plaintiff does not allege that the conduct was intentional,
discriminatory treatment directed at just him. Accordingly, he has failed to state an Equal
Protection claim.
H.

Conspiracy

In order to demonstrate a conspiracy, "a plaintiff must show that two or more
conspirators reached an agreement to deprive him or her of a constitutional right 'under
color of law.'" Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685,700 (3d Gir. 1993)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144,150 (1970)), abrogated on other
grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392,
400 (3d Gir. 2003). "Bare conclusory allegations of 'conspiracy' or 'concerted action' will not
suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make
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averments of communication, consultation, cooperation, or command from which such an
agreement can be inferred." Flanagan v. Shively, 783 F.Supp. 922, 928 (M.D. Pa. 1992).
The Plaintiffs allegations of a conspiracy "must be supported by facts bearing out the
existence of the conspiracy and indicating its broad objectives and the role each Defendant
allegedly played in carrying out those objectives." Id. A plaintiff cannot rely on subjective
suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d
Cir. 1991).
Plaintiff alleges that Defendant Whalen conspired with the other Defendants to
cover-up the destruction of his legal documents thereby denying him access to the courts.
(Doc. 20-1, p. 12, ~ 63). There are no averments in the amended complaint that reasonably
suggest the presence of an agreement or concerted activity between the Defendants.
Plaintiff has not alleged any facts showing any communication or cooperation among any
Defendants from which an agreement could be inferred. Moreover, because the underlying
denial of access to the courts claim will be dismissed, the Court will likewise dismiss
Plaintiffs claim for conspiracy to commit that constitutional violation. See Dykes v.
Southeastern Pa. Transp. Auth., 68 F.3d 1564, 1570 (3d Cir. 1995) (determining that it is

not necessary to reach the issue of conspiracy because plaintiff failed to allege cognizable
violation of due process rights); Samuel v. Clark, 1996 WL 448229, at *4 (E.D. Pa. 1996)
(dismissing conspiracy claim where underlying claims for fraud and discrimination were

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dismissed).
I.

Violation of Prison Policy

Lastly, Plaintiff alleges that Defendant Bell violated DOC policy when he assigned
Defendant Whalen to review the initial grievance. (Doc. 20-1, p. 14, 1f 72). However,
Plaintiffs statement is unsupported, purely conclusory, and fails to state what prison policy
was allegedly violated. Plaintiff has failed to provide any evidence to support his statement.
Moreover, "[a]n inmate does not have a viable Section 1983 claim based solely upon a
prison official's failure to adhere to a prison regulation, directive, or policy statement."
Royster v. Beard, 2007 U.S. Dist. LEXIS 71368, *13 (M.D. Pa. 2007) (citing Elkin v. Fauver,
969 F.2d 48 (3d Cir. 1992)). Plaintiffs claim based solely upon the alleged failure to follow
prison policies fails to state aclaim upon which relief may be granted.
V.

Conclusion
Based on the foregoing, Defendants' motion will be granted. Aseparate order shall

issue.

Date: February

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2017

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