Oliver v. Wetzel et al
Filing
88
MEMORANDUM (Order to follow as separate docket entry) re 50 51 MOTIONS TO DISMISS Signed by Honorable James M. Munley on 09/29/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY EDWARD OLIVER ,
:
:
Plaintiff
:
:
v.
:
:
JOHN WETZEL, et al.,
:
:
Defendants :
CIVIL ACTION NO. 3:16-cv-0407
(Judge Munley)
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MEMORANDUM
Plaintiff Anthony Edward Oliver (“Oliver” or “Plaintiff”), at all times relevant a
state inmate incarcerated at the State Correctional Institution at Huntingdon,
Pennsylvania (“SCI-Huntingdon”), commenced this civil rights action pursuant to 42
U.S.C. § 1983 on March 8, 2016. (Doc. 1). The matter is proceeding via an Amended
Complaint filed on May 10, 2016. (Doc. 27).
Presently pending are two separate Motions (Docs. 50, 51) to Dismiss the
Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The first
motion (Doc. 50) is filed on behalf of defendants Christopher Cook (“Cook”), James
Eckard (“Eckard”), Amy Himes (“Himes”), Craig Kyle (“Kyle”), Lonnie Oliver (“L.
Oliver”), John Smart (“Smart”), Jason Stevens (“Stevens”), Eric Tice (“Tice”), Shane
Treweek (“Treweek”), John Wetzel (“Wetzel”) and Grant Yohn (“Yohn”), collectively
referred to as the Commonwealth Defendants. The second motion (Doc. 51) is filed on
behalf of Dr. Kevin Kollman (“Kollman”), Mark McConnell, PA-C (“McConnell”), and
Michael Gomes, PA-C, identified as the Medical Defendants. For the reasons that
follow, the motions will be granted in part and denied in part.
I.
Standard of Review
Rule 12(b)(6) 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 (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,
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556 U.S. 662, 675 (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,
556U.S. at 679 (citing Twombly, 550 U.S. at 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 of the Amended Complaint
Oliver alleges that he began suffering from migraine headaches in his teenage
years and developed a seizure disorder in his mid-twenties. (Doc. 27, ¶ 39). He is on
SCI-Huntingdon’s medical department’s chronic care list because of his migraines and
seizures and is permanently classified for “bottom-tier/bottom bunk” status. (Id. at 60).
His complaint includes four separate time periods during which he alleges that he was
assigned a cellmate who smoked tobacco products and that this involuntary exposure to
environmental tobacco smoke (“ETS”) induced migraine headaches and seizures.
He alleges that he first challenged the no smoking policy beginning in February
2013. (Id. at 102). Throughout 2013, he experienced a number of incidents and
3
occurrences, and continued to seek enforcement of the no smoking policy. (Id. at 91120).
The allegations then leap forward to March 2015. On March 20, 2015, Oliver
notified Defendant Treweek that he suffered a seizure “as a result of prolonged exposure
to ETS as a result of his cell mate’s continuous cigarette smoking.” (Id. at 74, 75).
Defendant Treweek directed him to work it out with his cellmate. (Id. at 75). He alleges
that he suffered another seizure the following day and, in response, Treweek moved him
out of his cell and to the second tier top bunk with another known smoker. (Id. at 76, 77).
He allegedly had a third seizure on March 22, 2015, “as a result of ETS exposure due to
his cell-mate’s smoking.” (Id. at 78).
On March 23, 2015, he inquired as to whether Defendant Gomes forwarded the
“bottom-tier/bottom bunk” medical order. (Id.) He was informed that the bottom bunk
order was in place but not the bottom tier order. (Id. at 79). Oliver alleges that he
requested protective custody because the RHU is the only area in the facility that tobacco
use is prohibited and the no smoking policy is enforced. (Id. at 80). Oliver explained the
involuntary exposure to ETS and the repeated moves into cells with smokers to a
Captain and Lieutenant and again requested protective custody. (Id. at 81-83). He was
escorted to the RHU and subsequently received a misconduct report for refusing an order.
(Id. at 84, 85). Defendant Himes held a hearing and found Oliver guilty of the charged
misconduct on March 27, 2015. (Id. at 86-89). The PRC upheld the finding of guilt.
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The next occurrence took place on December 15, 2015, when Defendant Stevens
assigned him a “smoking tobacco user” as a cellmate. (Id. at 37). He avers that
“[b]ecause cigarette smoke exacerbates his headaches and migraine pain, frequently
triggers his seizures, [he] reported this as directed by medical staff.” (Id. at 38). He
accepted the cellmate because refusing to accept a cellmate results in issuance of a
misconduct. (Id. at 41). He alleges that he sought a medical pass after experiencing an
“aura” and lightheadedness due to “ETS exposure” caused by his cellmate’s constant
smoking. (Id. at 42-45). Upon returning from his medical visit, he requested that
Defendant Yohn transfer him to “protective custody” because “ ‘continuous exposure to’
high levels of ETS would to [sic] trigger seizures and that his cell-mate was a smoking
tobacco user and said he would not stop smoking in the cell.” (Id. at 46). Oliver alleges
that fifteen minutes later Yohn ordered him to Central Control and he was escorted to the
Restricted Housing Unit (“RHU”). (Id. at 47). Defendant Stevens issued him a
misconduct report for refusing to obey an order based on his refusal to accept a cellmate.
(Id. at 47).
Defendant Himes found him guilty of misconduct following a hearing. (Id. at 50).
The Program Review Committee (“PRC”) upheld the finding of guilt on appeal. (Id. at
51). The Facility Manager, Defendant Tice, and the Secretary’s Office of Inmate
Grievance Appeals, also upheld the finding of guilt on appeal. (Id. at 54, 55, 57, 58). He
alleges that upon his release from the RHU, Defendant Stevens advised him that
Defendant Yohn ordered him to fabricate the misconduct report. (Id. at 56).
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Upon release from the RHU, Stevens assigned him to a cell on the second tier.
(Id. at 61). After advising Defendants Stevens and Smart of his medical classification,
Smart contacted the medical department and, although his bottom bunk status was
confirmed, it was not clear that he was also classified bottom tier; he was advised to sign
up for sick call for purposes of clarifying his tier classification. (Id. at 64-66).
Oliver was seen by Defendant McConnell and, in response to his complaints about
ETS exposure and cell assignments, McConnell stated “this is a non-smoking facility”
and he “should discuss housing issues with unit management staff.” (Id. at 68). When
Oliver requested the treatment policy for ETS exposure, McConnell reiterated “this is a
non-smoking facility and there is no policy for treating [ETS] exposure.” (Id. at 69).
Defendant McConnell renewed his bottom tier/bottom bunk status. (Id.) Oliver alleges
that in the week it took for the approval of the new medical orders, he suffered four
seizures due to ETS smoke. (Id. at 70). He reported the seizures and the continued use
of tobacco by both prisoners and staff, as well as the fabricated misconduct report issued
by Stevens, to Defendant L. Oliver and Raymond Moore. (Id. at 71, 72). Both replied
“this is a non-smoking facility” but that they would look into it. (Id. at 73).
In Count I of his complaint, Oliver alleges that the Commonwealth Defendants
exhibited deliberate indifference to his health and safety by “willfully exposing him to
unreasonably high levels of ETS…,” disregarding his bottom tier/bottom bunk clearance,
and ignoring his requests to be transferred to an area of the prison with less ETS or to a
non-smoking facility. (Id. at 121-27). In Count two, Oliver alleges that the Medical
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Defendants, Kollman, McConnell, and Gomes, “failed to provide adequate medical care
to him following [his] repeated and involuntary exposure to unreasonably high levels of
ETS.” (Doc. 27, ¶ 128). He specifically alleges that they “refused to order reasonable
medical housing accommodations, separations, or a transfer to a non-smoking facility to
eliminate or mitigate the known harmful effects of ETS exposure, ignored plaintiff’s
requests for treatment of ETS-related symptoms, and justified his failure to provide
treatment by stating that ‘this is a non-smoking facility’.” (Id. at ¶¶ 129, 133, 135). In
Count 3, he alleges that Defendants Tice, Eckard, and L. Oliver, retaliated against him for
filing a Section 1983 action and for filing grievances. (Id. at 136-43).
III.
Discussion
A.
Statute of Limitations
Initially, Defendants seek to dismiss the allegations of the complaint directed at
Defendants Cook, Kyle, Eckard, Kollman, McConnell, and Gomes found at paragraphs
91-120, which concern conduct that occurred in 2013, as barred by the statute of
limitations. (Doc. 53, pp. 10, 11; Doc. 59, pp. 24, 25). A court may dismiss a complaint
for failure to state a claim, based on a time-bar, where “the time alleged in the statement
of a claim shows that the cause of action has not been brought within the statute of
limitations.” Bethel v. Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)
(citation omitted). A claim brought pursuant to 42 U.S.C. § 1983 is subject to the same
statute of limitations that applies to personal injury tort claims in the state in which such a
claim arises. See Wallace v. Kato, 549 U.S. 384, 387 (2007); Kach v. Hose, 589 F.3d
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626, 639 (3d Cir. 2009). Oliver’s claim arose in Pennsylvania; thus, the applicable
statute of limitations is Pennsylvania’s two year statute of limitations for personal injury
actions. 42 PA. CONS. STAT. ANN. § 5524(2). The statute of limitations period accrues
when the plaintiff knows or has reason to know of the injury which is the basis of the
section 1983 action. See Garvin v. City of Phila., 354 F.3d 215 (3d Cir. 2003); Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.1991). Oliver unequivocally knew or
had reason to know of the alleged injury that is the basis of this section 1983 action in
February 2013, when he first sought enforcement of the no smoking policy. He did not
commence this action until March 8, 2016, almost three years later. The allegations
against Cook, Kyle, Eckard, Kollman, McConnell, and Gomes, concerning conduct that
occurred in 2013, and contained in paragraphs 91-120 of the Amended Complaint, are
barred by the statute of limitations and will be dismissed.
B.
Official Capacity
Defendants seek dismissal of all claims to the extent that Oliver is attempting to
impose liability against them in their official capacities. Personal-capacity suits under
section 1983 seek to recover money from a government official, as an individual, for acts
performed under color of state law. Official-capacity suits, in contrast, generally
represent an action against an entity of which the government official is an agent.
Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988); see Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 n. 55 (1978). When suits are brought against state officials in their
official capacities, those lawsuits are treated as suits against the state. Hafer v. Melo, 502
8
U.S. 21, 25 (1991). However, the doctrine of sovereign immunity, established by the
Eleventh Amendment, protects states, such as the Commonwealth of Pennsylvania, from
suits by citizens. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100–01,
117 (1984); Seminole Tribe v. Florida, 517 U.S. 44, 54(1996); Lavia v. Pennsylvania,
224 F.3d 190, 195–96 (3d Cir. 2000). That immunity runs to state officials if they are
sued in their official capacity and the state is the real party upon which liability is to be
imposed. Scheuer v. Rhodes, 416 U.S. 232, 237–38 (1974). Congress has not abrogated
the immunity regarding Plaintiff’s claims; nor has Pennsylvania waived this grant of
immunity. See 42 Pa.C.S.A. § 8521(b). Consequently, any and all counts contained in
the complaint seeking money damages against the Defendants in their official capacity
are barred by sovereign immunity. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d
249, 254 (3d Cir. 2010).
C.
Personal Involvement
Section 1983 offers private citizens a cause of action for violations of federal law
by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as
follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. . . .
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Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). Accordingly, to establish a claim for relief under
Bivens, a plaintiff must demonstrate: (1) that the conduct was committed by a federal
actor, and (2) that conduct resulted in the deprivation of a right secured by the
Constitution or federal laws of the United States. See Brown, 250 F.3d at 801.
Individual liability will be imposed under Section 1983 only if the state actor
played an “affirmative part” in the alleged misconduct. See Evancho v. Fisher, 423 F.3d
347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1998)). Liability “cannot be predicated solely on the operation of respondeat superior.”
Id. In other words, defendants in Section 1983 civil rights actions “must have personal
involvement in the alleged wrongs . . . shown through allegations of personal direction or
of actual knowledge and acquiescence.” Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir.
2003); Rode, 845 F.2d at 1207-08. When a plaintiff merely hypothesizes that an
individual defendant may have had knowledge of or personal involvement in the
deprivation of his or her rights, individual liability will not follow. Atkinson, 316 F.3d at
271; Rode, 845 F.2d at 1207-08.
Defendants Eckard, Himes, Tice and Wetzel move to dismiss the Amended
Complaint based on a lack of personal involvement in the underlying alleged
unconstitutional conduct. They argue that “all allegations [against Eckard, Himes and
Tice] relate to their actions in reviewing grievances and/or misconducts.” (Doc. 53, p.
12). Likewise, Defendant Wetzel seeks dismissal arguing that “the only allegations
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against [him] are conclusory statement[s] that he knew of the hazards of ETS and
exercised deliberate indifference to Plaintiff’s health by failing to protect him from
effects of ETS.” (Doc. 53, p. 12, citing Doc. 27, ¶¶ 140-42). Oliver alleges that “Wetzel
was aware of the well known dangers of ETS exposure and the harm suffered by plaintiff
through plaintiff’s numerous written correspondence and exhausted grievances to the
Governor’s Office of General Counsel and the Chief, Secretary’s Office of Inmate
Grievances and Appeals – all of which were denied.” (Doc. 27, ¶ 141).
Allegations that prison officials and administrators responded inappropriately, or
failed to respond to a prisoner’s complaint or an official grievance, does not establish that
the officials and administrators were involved in the underlying allegedly
unconstitutional conduct. See Rode, 845 F.2d at 1207-08 (concluding that after-the-fact
review of a grievance is insufficient to demonstrate the actual knowledge necessary to
establish personal involvement); Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006);
see also Croom v. Wagner, No. 06-1431, 2006 WL 2619794, at *4 (E.D. Pa. Sept. 11,
2006) (holding that neither the filing of a grievance nor an appeal of a grievance is
sufficient to impose knowledge of any wrongdoing); Ramos v. Pennsylvania Dept. of
Corrections, No. 06-1444, 2006 WL 2129148, at *2 (M.D. Pa. July 27, 2006) (holding
that the review and denial of the grievances and subsequent administrative appeal does
not establish personal involvement). Hence, Oliver’s claims against Eckard, Himes, Tice,
and Wetzel which solely arise out of the alleged failure to protect him from ETS
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exposure based on information contained in grievances and misconduct proceedings and
appeals, and the failure to satisfactorily resolve his complaints, will be dismissed.
Moreover, Oliver’s allegations in Count Three, that Defendant Wetzel “directed
prison officials at SCI-Huntingdon to engage in a campaign of harassment and retaliation
against [him] to dissuade him from filing further grievances or litigate and ETS claim,”
are insufficient to establish personal involvement in any alleged retaliation. They are
wholly conclusory without any supporting factual averments. Further they rely on the
doctrine of respondeat superior in hypothesizing that Wetzel, based on his role as the
Secretary of the DOC, had knowledge of, or personal involvement in, the deprivation of
his rights. (Doc. 27, ¶¶ 6, 142).
D.
Count One
The Eighth Amendment “requires that inmates be furnished with the basic human
needs, one of which is ‘reasonable safety.’ ” Helling v. McKinney, 509 U.S. 25, 33
(1993) (quoting DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189,
200 (1989)). In Count One, Oliver alleges that at various times in 2015, and in early
2016, the Commonwealth Defendants continuously involuntarily exposed him to ETS in
violation of the Eighth Amendment. “There are two varieties of ETS claims—present
injury claims and future injury claims—and they are measured by different standards.”
Brown v. DiGuglielmo, 418 F.App’x. 99, 102 (3d Cir.2011) (citing Atkinson v. Taylor,
316 F.3d 257, 273 (3d Cir. 2003) (Ambro, J., dissenting in part)). Oliver sets forth a
present injury claim based on exposure to ETS which requires proof of: 1) a sufficiently
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serious medical need related to ETS exposure; and 2) deliberate indifference by the
prison authorities to that need. Id. at 266 (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976)).
Construing the allegations contained in Count One in conjunction with the
allegations contained in paragraphs 35- 90, in a light most favorable to Oliver, compels
the Court to deny The Commonwealth Defendants’ motion to dismiss with regard to
Count One. The Eighth Amendment claim will proceed against remaining
Commonwealth Defendants L. Oliver, Smart, Treweek, Yohn and Stevens.
E.
Count Two
For the delay or denial of medical care to rise to a violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment, a prisoner must
demonstrate “(1) that defendants were deliberately indifferent to [his] medical needs and
(2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference requires proof that the official “knows of and disregards an
excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318
F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Deliberate indifference has been found where a prison official: “(1) knows of a
prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner
from receiving needed or recommended treatment.” Rouse, 182 F.3d at 197. Deference
is given to prison medical authorities in the diagnosis and treatment of patients, and
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courts “disavow any attempt to second-guess the propriety or adequacy of a particular
course of treatment . . . (which) remains a question of sound professional judgment.”
Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting
Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). Allegations of negligent treatment
or medical malpractice do not trigger constitutional protections. Estelle v. Gamble, 429
U.S. 97, 105–06 (1976).
Oliver’s allegations that the Defendants Kollman, McConnell, and Gomes failed to
provide him adequate medical care when they “refused to order reasonable medical
housing accommodations, separations, or a transfer to a non-smoking facility to eliminate
or mitigate the known harmful effects of ETS exposure, ignored plaintiff’s requests for
treatment of ETS-related symptoms, and justified his failure to provide treatment by
stating that ‘this is a non-smoking facility’,” are sufficient to state an eighth amendment
claim for denial of adequate medical care. Count Two will proceed against the Medical
Defendants.
F.
Count Three
Retaliating against a prisoner for the exercise of his constitutional rights is
unconstitutional. See, e.g., Mitchell v. Horn, 318 F.3d 523, 529–31 (3d Cir. 2003);
Rauser v. Horn, 241 F.3d 330, 333–34 (3d Cir. 2001); Allah v. Seiverling, 229 F.3d 220,
224–26 (3d Cir. 2000). To establish a prima facie retaliation claim under 42 U.S.C. §
1983, a plaintiff “must prove that: (1) his conduct was constitutionally protected; (2) he
suffered an adverse action at the hands of prison officials; and (3) his constitutionally
14
protected conduct was a substantial or motivating factor in the decision to discipline
him.” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). With respect to the third
element, “once a prisoner demonstrates that his exercise of a constitutional right was a
substantial or motivating factor in the challenged decision, the prison officials may still
prevail by proving that they would have made the same decision absent the protected
conduct for reasons reasonably related to a legitimate penological interest.” Rauser, 241
F.3d at 334. This is a “deferential standard” meant to take into account “that the task of
prison administration is difficult, and that courts should afford deference to decisions
made by prison officials, who possess the necessary expertise.” Id.
Oliver alleges that when he reported suffering adverse effects from exposure to
ETS, prison officials retaliated against him to dissuade him from filing grievances or
pursuing litigation. (Doc, 27, ¶¶ 71, 72, 138). He specifically alleges that L. Oliver
“concealed evidence of prisoner’s smoking and had [him] conveyed to the RHU in order
to confiscate his legal materials to prevent further litigation.” (Doc. 27, ¶ 139).
Oliver’s ability to file grievances against prison officials is a protected activity for
purposes of a retaliation claim. See Milhouse v. Carlson, 652 F.2d 371, 373–74 (3d
Cir.1981) (finding retaliation for exercising right to petition for redress of grievances
states a cause of action for damages arising under the constitution). The second prong
requires a plaintiff to demonstrate that he suffered “adverse” action “sufficient to deter a
person of ordinary firmness from exercising his [constitutional] rights.” See Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). Oliver also meets this prong as he indicates
15
that he was issued a fabricated misconduct and was placed in the RHU because he
complained about being housed with a cellmate who smoked. This constitutes “adverse”
action. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2002) (holding that prisoner’s
allegation that he was falsely charged with misconduct in retaliation for filing complaints
against a correctional officer sufficiently alleged a retaliation claim); Allah, 229 F.3d at
225 (holding that an allegation that a prisoner was kept in administrative segregation to
punish him for filing civil rights complaints stated a retaliation claim). The third prong
requires that there be a causal link between the exercise of the constitutional right and the
adverse action taken against the prisoner. Rauser, 241 F.3d at 333–34. This may be
established by evidence of “(1) an unusually suggestive temporal proximity between the
protected activity and the alleged retaliatory adverse action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.” See Lauren W. ex rel. Jean W.
v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Estate of Smith v. Marasco, 318 F.3d
497, 512 (3d Ci r.2003) (holding that the temporal proximity between the protected
conduct and the alleged retaliatory action must be “unusually suggestive” before the court
will infer a causal link) (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 503–04
(3d Ci r. 1997)). Allegations that Oliver’s complaints about being housed with a cellmate
who smokes were immediately met with the issuance of a misconduct report for failing to
obey an order in refusing to accept a cellmate and transfer to the RHU, are sufficient to
meet the third prong. As such, the retaliation claim against Defendant L. Oliver will
proceed.
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G.
Conspiracy
To the extent that Oliver attempts to pursue a conspiracy claim, in any manner,
and in connection with any of the Three Counts of his complaint, such a claim will be
dismissed. In order to set forth a cognizable conspiracy claim, a plaintiff cannot rely on
broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational
Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992); Rose v. Bartle, 871 F.2d 331, 366
(3d Cir.1989); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989). The Third Circuit
has noted that a civil rights conspiracy claim is sufficiently alleged if the complaint
details the following: (1) the conduct that violated the plaintiff’s rights, (2) the time and
the place of the conduct, and (3) the identity of the officials responsible for the conduct.
Oatess v. Sobolevitch, 914 F.2d 428, 432 n. 8 (3d Cir.1990). See also, Colburn v. Upper
Darby Twp., 838 F.2d 663 (3d Cir.1988).
The essence of a conspiracy is an agreement or concerted action between
individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. A plaintiff must
therefore allege with particularity and present material facts which show that the
purported conspirators reached some understanding or agreement or plotted, planned and
conspired together to deprive plaintiff of a protected federal right. See id.; Rose, 871 F.2d
at 366. Where a civil rights conspiracy is alleged, there must be specific facts in the
complaint which tend to show a meeting of the minds and some type of concerted
activity. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir.1985). A plaintiff cannot rely
17
on subjective suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396,
1405 n. 16 (3d Cir.1991).
Viewing the Amended Complaint in the light most favorable to Oliver, it is clear
that he has failed to state a viable conspiracy claim against any of the Defendants. There
are no averments of fact in the complaint that reasonably suggest the presence of an
agreement or concerted activity between Defendants to violate Oliver’s civil rights. His
vague and conclusory allegations of a conspiracy fail to satisfy the pleading requirements
of Twombly and Iqbal.
IV.
Conclusion
Based on the foregoing, Defendants’ motions (Docs. 50, 51) to dismiss will
granted in part and denied in part.
An appropriate Order will enter.
BY THE COURT:
s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
Dated:
September 29, 2017
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