MORRISON v. ROCHLIN et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 9/29/17. (Attachments: # 1 Unpublished Opinion(s))(bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
FABIAN T. MORRISON,
CIVIL ACTION NO. 3:16-1417
KAREN E. ROCHLIN, et al.,
Plaintiff, Fabian T. Morrison, an inmate currently housed in the Federal
Correctional Complex, Yazoo City, Mississippi, originally filed the above
captioned federal civil rights action pursuant to 28 U.S.C. §1331, in the United
States District Court for the Eastern District of Pennsylvania. (Doc. 5). The
named Defendants are located at either the Coleman Federal Correctional
Complex (“FCC-Coleman”), Coleman, Florida, the United States Penitentiary
Lewisburg (“USP-Lewisburg”), Pennsylvania or in Washington D.C. and/or the
Central Office. Id.
By Order dated February 1, 2016, pursuant to 28 U.S.C. §1404(a)1, the
United States District Court for the Eastern District transferred the above
Under 28 U.S.C. §1404(a), district courts may transfer a civil action to
any district where the action might have been brought “[f]or the convenience
of parties and witnesses, in the interest of justice.”
captioned action to the Middle District (Doc. 27, Order), where it was received
on July 18, 2016.2 (Doc. 41).
Plaintiff names the following individuals as Defendants in the above
Defendants Related to FCI-Coleman
Karen E. Rochlin:
Criminal Assistant United States Attorney
in Miami, Florida
FCC-Coleman Complex Warden
Former Coleman Warden, Retired
FCI-Jesup Warden, Formerly Associate
Warden at FCC-Coleman
FCI-Herlong Associate Warden, Formerly at
FCI-Coleman- Medium Lieutenant
USP-Yazoo City Unit Manager, Formerly at
USP-Florence ADMAX Complex Captain,
Formerly Lieutenant at FCC-Coleman
FCI-Aliceville, Associate Warden, Formerly Unit
Former Case Manager at FCI-ColemanMedium, Retired
DHO at FCC-Coleman
Defendants Related to USP-Lewisburg
Former USP-Lewisburg Warden, Retired
The Court notes that Plaintiff filed an appeal of the Eastern District
Court’s transfer Order, which was dismissed for lack of jurisdiction by the
United States Court of Appeals for the Third Circuit on June 20, 2016. (See
Docs. 35, 38, 39, 40).
Unit Manager, Retired
Retired, Former NERO Regional Director
Defendants Related to Washington D.C. and/or the Central Office
Glen A. Fine:
Acting Inspector General of the Department of
Defense, previously served as IG of the USDOJ
until January 2011
Thomas McLaughlin: Formerly in Office of the Inspector General
Mary Practice Brown: Office of Professional Responsibility
Former BOP Director-Retired
Retired Central Office Administrator of National
(Doc. 48-2, at 3, Declaration of Jonathan Kerr, Senior Consolidated Legal
Center Attorney for USP-Lewisburg).
Plaintiff raises the following six claims within his complaint:
(1) On June 17, 2011, Plaintiff requested the Miami Dade Sheriff
serve AUSA Karen E. Rochlin with a Petition seeking to amend
inaccurate information allegedly located in his Central File and on
July 6, 2011, is subsequently placed in the Special Housing Unit
(2) On July 12, 2011, at FCI-Coleman-Medium a Special
Investigative Services technician planted a weapon within his
lotion bottle and he was issued an incident report and sanctioned
despite exculpatory fingerprint evidence. Harell Watts upholds
sanction on appeal and refuses to turn over latent finger prints.
(3) Plaintiff composes letters to “offices of primary interest,
appealing” the FCI Colman-Medium incident report to BOP
Director Charles Samuels, Southeast Regional Director, Harell
Watts, Inspector General Glen Fine, Assistant Inspector General
Thomas F. McLaughlin, and Mary Practice Brown, Office of
(4) On November 29, 2011, Plaintiff has an SMU hearing and is
recommended for SMU placement by the Southeast Regional
Director, with the final decision illegally designating him to a SMU
made by the DSCC Chief.
(5) On January 29, 2013, at USP-Lewisburg, Plaintiff was issued
a Code 203 Incident Report for Disruption, Most like Extortion
based on fabricated evidence and sanctioned.
(6) While at USP-Lewisburg, Plaintiff was allegedly exposed to
toxic chemicals causing resultant eye irritation, exacerbation of
glaucoma, choking and sneezing.
(Doc. 5, at 3-8).
By Memorandum and Order dated March 29, 2017, Defendants’ motion
to sever and transfer Claim Nos. one through four (Doc. 47) was granted.
(Docs. 66, 67). Plaintiff’s claims, one through four, were transferred to the
United States District Court for the Middle District of Florida and Plaintiff’s
motion to transfer the above captioned action back to the United States
District Court for the Eastern District of Pennsylvania (Doc. 45) was denied.
Id. Plaintiff’s claims, numbered five and six proceed before this court.
Presently before the Court is a motion to dismiss and/or for summary
judgment, filed on behalf of Defendants R. Aderhold, J. Benfer, C. Berkoski,
M. Edinger, A. Jordan, D. Knox, R. Marr, J.L. Norwood, and J.E. Thomas, the
Defendants named in Plaintiff’s claims, numbered five and six. (Doc. 49). The
motion has been fully briefed and is ripe for disposition. For the reasons that
follow, Defendant’s motion to dismiss and for summary judgment will be
Standards of Review
A. Bivens Standard
Plaintiff’s claims are filed pursuant to 28 U.S.C. §1331, in accordance
with Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388, (1971). Under Bivens, the District Court has federal question
jurisdiction pursuant to 28 U.S.C. §1331 to entertain an action brought to
redress alleged federal constitutional or statutory violations by a federal actor.
Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury
to a constitutionally protected interest could invoke the general federal
question jurisdiction of the district court to obtain an award of monetary
damages against the responsible federal official.” Butz v. Economou, 438
U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent
of an action brought pursuant to 42 U.S.C. §1983 and the same legal
principles have been held to apply. See, Paton v. LaPrade, 524 F.2d 862, 871
(3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D.Pa. 1992);
Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D.Pa. 1992). In order
to state an actionable Bivens claim, a plaintiff must allege that a person has
deprived him of a federal right, and that the person who caused the
deprivation acted under color of federal law. See West v. Atkins, 487 U.S. 42,
48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D.Pa. 1992).
B. Motion to Dismiss
Defendants’ pending dispositive motion is supported by evidentiary
materials outside the pleadings. Federal Rule of Civil Procedure 12(d)
provides in part as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleading are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56. All parties must be given reasonable opportunity to present all
the material that is pertinent to the motion.
This Court will not exclude the evidentiary materials accompanying the
Defendant’s motion. Thus, the motion will be treated as solely seeking
summary judgment. See Latham v. United States, 306 Fed. Appx. 716, 718
(3d Cir. 2009) (when a motion to dismiss has been framed alternatively as a
motion for summary judgment such as in the present case, the alternative
filing “is sufficient to place the parties on notice that summary judgment might
C. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a) “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[T]his standard provides that 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A disputed fact is “material” if proof of its existence or nonexistence
would affect the outcome of the case under applicable substantive law.
Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070,
1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of
Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the
court must view the facts and all reasonable inferences in favor of the
nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.
Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v.
Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to
avoid summary judgment, however, parties may not rely on unsubstantiated
allegations. Parties seeking to establish that a fact is or is not genuinely
disputed must support such an assertion by “citing to particular parts of
materials in the record,” by showing that an adverse party’s factual assertion
lacks support from cited materials, or demonstrating that a factual assertion
is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex,
477 U.S. at 324 (requiring evidentiary support for factual assertions made in
response to summary judgment). The party opposing the motion “must do
more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,
586 (1986). Parties must produce evidence to show the existence of every
element essential to its case that they bear the burden of proving at trial, for
“a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex, 477 U .S.
at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). Failure
to properly support or contest an assertion of fact may result in the fact being
considered undisputed for the purpose of the motion, although a court may
also give parties an opportunity to properly provide support or opposition.
Statement of Facts3
On January 29, 2013, Morrison was issued Incident Report No.
2403114 for Conduct which Disrupts, most like Extortion, a code 2044
violation, after a review of his property at USP-Lewisburg revealed numerous
Middle District of Pennsylvania Local Rules of Court provide that in addition
to filing a brief in response to the moving party’s brief in support, “[t]he papers
opposing a motion for summary judgment shall included a separate, short and
concise statement of material facts responding to the numbered paragraphs set
forth in the statement [of material facts filed by the moving party] ..., as to which it
is contended that there exists a genuine issue to be tried.” See M.D. Pa. LR 56. 1.
The rule further states that the statement of material facts required to be served
by the moving party will be deemed to be admitted unless controverted by the
statement required to be served by the opposing party. See id. Because Plaintiff
has failed to file a separate statement of material facts controverting the statement
filed by Defendant, all material facts set forth in Defendant’s statement (Doc. 52)
will be deemed admitted.
This code section was amended by the Discipline Hearing Officer to
correct a typographical error and reflect the correct code to be 204, Extortion
(Attempt), not code 203. (See Doc. 52-1 at 69, Discipline Hearing Officer
Sovereign Citizen5 styled documents. (Doc. 52-1 at 54).
Specifically, Incident Report No. 2403114, which was delivered to
Morrison on January 29, 2013 at 4:45 p.m., states the following:
On January 29, 2013, I inspected the confiscated property of
inmate Morrison, Fabian #02835-265. Within his property were
numerous items generated by the inmate in an attempt to obtain
$35,000,000.00 from a Karen Rochlin, Assistant United States
Attorney, Miami, FL. The documents titled “INVOICE, Verified
Statement of Account, Non-Negotiable-Private Between the
parties” is a bogus, legal appearing document in which Morrison
claims he is a “creditor” owed money based on his allegation of
inaccurate information in his central file. The “debtor” is the AUSA
for not correcting the alleged error. Morrison states on the form
“Debtor is allowed 3 days to raise any objections to this account
statement. The amount is due and owing. Payment in full is
herewith demanded, and in no objection raised by debtor is a
contract agreement of the debt owed. Remit to Fabian Morrison.”
The erroneous document is signed by the inmate Morrison and
unidentified individuals. Morrison is attempting to create a
business type relationship for criminal/administrative matter, a
“Sovereign Citizen” type act, with absolutely no legal bearing of
relevance to criminal law or administrative action. In addition,
Morrison generated paperwork to have the AUSA served by the
US Marshals and Miami-Dade County Sheriff’s office with the
“Invoice.” In a statement hand written by Morrison, page three (3)
The Sovereign Citizen movement is a loosely organized collection of
groups and individuals who have adopted an anarchist ideology. Adherents
believe that virtually all existing government in the United States is illegitimate
and they don’t have to answer to any government authority, including courts,
taxing entities, or law enforcement. Members of sovereign citizen groups use
a variety of harassment and intimidation tactics against the government and
other authority, to include filing false liens against public officials. See
he states he attempt to have the “invoice” served to the AUSA.
Clearly, Morrison is attempting to intimidate and extort money or
services from AUSA via bogus, legal appearing paperwork under
the threat of a significant financial encumbrance. These items
(Doc. 52-1 at 54, Doc. 52-1 at 60).
On February 1, 2013, Morrison appeared before the Unit Discipline
Committee (“UDC”). (See Doc. 52-1at 54). Due to the severity of the offense,
the UDC referred the charge to the Disciplinary Hearing Officer (“DHO”) for
further hearing and further advised that if found guilty, to apply the “maximum
sanctions” to Morrison to “deter future misconduct of this nature.” Id. During
the UDC hearing, staff member, M Nicholas, informed Morrison of his rights
at the DHO hearing and provided him with a copy of the “Inmate Rights at
Discipline Hearing” form. (Id. at 58).
Also on February 1, 2013, Morrison was provided with a “Notice of
Discipline Hearing before the (DHO)” form. (Id. at 57). Morrison requested
the Warden appoint a staff representative, and he chose not to call any
On March 14, 2013, Morrison appeared for a hearing before Defendant,
Angelo Jordan, DHO. (Doc. 52-1 at 72). During the DHO hearing, Plaintiff was
again read his rights, and he indicated that he understood them. Id. The DHO
confirmed that Morrison received a copy of the incident report. Id.
During the DHO hearing, Morrison argued that the DHO had no
authority and submitted a lengthy statement discussing the authenticity of the
documents and claiming that he was allowed to pursue the $35 million dollar
sum for Privacy Act violations. (See Doc. 52-1 at 66-67). Morrison requested
“someone from the office of IA (Internal Affaires) or someone from the FBI to
be a witness”. Id. Upon further inquiry from the DHO to Morrison regarding the
necessity of the presence of a member from the “IA” or the “FBI”, the DHO
determined that it was not necessary to request the presence of a member
from the “IA” or the “FBI”. Id.
After considering the incident report and investigation for report no.
2403114, documentary evidence produced by Morrison, other fraudulent
forms confiscated from Morrison, and disposition of contraband forms, the
DHO determined that Morrison committed the prohibited act of Extortion
(Attempt), a 204A code violation). Morrison was advised of his appeal rights
at the conclusion of the hearing. Id.
Morrison appealed the DHO decision to the Northeast Regional
Office. (Doc. 52-1 at 69). On appeal, the Northeast Regional Office
determined that there was no evidence the fraudulent forms were ever placed
in the mail or received by the intended recipient. Id. At the resolution of the
appeal, the DHO concluded that the charge of code 305, possession of
anything not authorized, is more appropriate, as the charge is supported in
section 11 of incident report no. 2403114. Id.
On June 26, 2013, the DHO determined that Morrison committed the
prohibited act of violation to code 305, possession of anything not authorized.
Id. The DHO sanctioned Morrison to disallowance of fourteen (14) days good
conduct time; thirty (30) days disciplinary segregation; one year loss of
commissary, telephone, visiting and property privileges. (Doc. 52-1 at 72).
Morrison was advised of his appeal rights at the conclusion of the hearing. Id.
On July 11, 2013, Morrison appealed Incident Report No. 2403114 to
the Regional Office at Remedy No. 742356-1. (Doc. 52-1 at 36). August 9,
2013, the Remedy No. 742356-R1 was denied. Id.
On September 13, 2013, Morrison appealed the Regional Office’s denial
to the Central Office at Remedy No. 742356-A2 (formerly Remedy No.
742356-R1) with the Central Office. (Doc. 52-1 at 37). On September 18,
2013, Remedy No. 742356-A2 was rejected for not submitting more than one
continuation page and an improper number of copies of the permitted
continuation page. Id. Morrison was instructed to condense the information
into a continuation page and resubmit the appeal in proper form within fifteen
(15) days. Id. Additionally, on September 13, 2013, Morrison submitted an
additional, separate appeal (Remedy No. 742356-A1) to the Central Office.
Id. On September 18, 2013, Remedy No. 742356-A1 was voided in
accordance with the rejection of Remedy No. 742356-A2. Id.
On September 30, 2013, Morrison resubmitted his appeal to the Central
Office for final review, at Remedy No. 742356-A3, where it was denied on
April 8, 2014. Id. The charges and sanctions imposed in connection with
Incident Report No. 2403114 remain valid on Morrison’s disciplinary record.
(See Doc. 52-1 at 74-76).
A review of Morrison’s administrative remedies from June 1, 2011
through August 3, 2016, reveal that, although Morrison has filed sixty-one (61)
administrative remedies on various issues, there is no record to indicate that
Morrison ever exhausted, or attempted to exhaust, any administrative
remedies regarding his toxic exposure claim. (See Doc. 52-1 at 15-46).
Defendants contend that Morrison’s complaint regarding exposure to
toxic chemicals should be dismissed for his failure to exhaust available
administrative. In pertinent part, the Prison Litigation Reform Act provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
42 U.S.C. §1997e(a).
Under the Prison Litigation Reform Act (“PLRA”), exhaustion of
administrative remedies is required for all actions concerning prison
conditions brought under federal law. See 42 U.S.C. §1997e(a); Woodford v.
Ngo, 548 U.S. 81 (2006). The “exhaustion requirement 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. Nussle, 534 U.S. 516, 532 (2002). The PLRA “completely
precludes a futility exception to its mandatory exhaustion requirement.”
Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The PLRA also mandates
that inmates “properly” exhaust administrative remedies before filing suit in
federal court. Woodford, 548 at 92. “Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Id. Failure to substantially comply
with procedural requirements of the applicable prison’s grievance system will
result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 22732 (3d Cir. 2004).
A prisoner does not have to allege in his complaint that he has
exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287 (3d Cir.
2002). Failure to exhaust available administrative remedies is an affirmative
defense. Id. As such, it must be pleaded and proven by the Defendants.
Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Defendants have properly
raised the matter of exhaustion of administrative remedies made available to
inmates confined within the Bureau of Prisons (“BOP”).
“The Bureau of Prisons has established an Administrative Remedy
Procedure through which an inmate may seek formal review of a complaint
which relates to any aspect of his imprisonment if less formal procedures
have not resolved the matter. This procedure applies to all inmates confined
in Bureau of Prisons institutions. . . .” 28 C.F.R. §542.10. Inmates are to
informally present their complaints to the staff and the staff is to attempt to
resolve the matter. 28 C.F.R. §542.13(a). If informal resolution is
unsuccessful, the inmate is then to execute the appropriate form to bring the
matter to the attention of the warden. 28 C.F.R. §542.14(b). The warden is
then to respond to the inmate’s complaint within twenty (20) days. Id. at
§542.18. If an inmate is dissatisfied with the warden's response, he may then
appeal to the Regional Director. Id. at §542.15. If the response of the
Regional Director is not satisfactory, the inmate may then appeal to the
Central Office of the Federal Bureau of Prisons, which office is the final
administrative appeal in the Bureau of Prisons. Id.
Plaintiff’s complaint challenges Incident Report No. 2403114 as
“fabricated” and “fraudulent” and that Defendants “retaliated against Plaintiff
for bringing attention to the criminal activities of law enforcement” by “tak[ing]
[him] from one block to another where toxic chemicals were constantly
sprayed by staff, which caused the Plaintiff to choke, sneeze and caused
severe eye irritation...causing Plaintiff to lose more of his eye site to his eye
disease ‘Glaucoma’” and “caus[ing] a reduction in the Plaintiff’s life
expectancy.” (Doc. 1-4 at 6-8).
The record before this Court reveals that Plaintiff properly exhausted his
administrative remedies with respect to his DHO challenges to Incident Report
No. 2403114. However, despite having filed sixty-one (61) administrative
remedies on various issues, between June 1, 2011 and August 3, 2016,
Morrison has not filed any remedy pertaining to toxic exposure. In fact, there
is no record to indicate that Morrison ever exhausted, or attempted to
exhaust, any administrative remedies regarding claims of toxic exposure.
Thus, it is evident that Plaintiff failed to follow the procedural requirements of
the BOP. Failure to employ the system of administrative remedies, even if the
administrative process would be inadequate to grant full relief, procedurally
defaults any federal claim. See Spruill v. Gillis, 372 F.3d 218, 222-26 (3d Cir.
2004). Morrison’s failure to pursue the appropriate administrative process with
respect to his claims precludes the litigation of such claims.
In Spruill, supra, our Court of Appeals held that congressional policy
objectives were best served by interpreting the statutory “exhaustion
requirement to include a procedural default component.” The court further
ruled that procedural default under §1997e(a) is governed by the applicable
prison grievance system, provided that the “prison grievance system’s
procedural requirements [are] not imposed in a way that offends the Federal
Constitution or the federal policy embodied in §1997e(a).” Id. at 231, 232.
In this case, the record clearly discloses that Morrison failed to exhaust
his administrative remedies with respect to his toxic exposure claim. Thus,
Morrison has sustained a procedural default with respect to this claim.
Spruill cited with approval the Seventh Circuit decision in Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Spruill, 372 F.3d at 231.
In Pozo, the Seventh Circuit ruled that “to exhaust remedies, a prisoner must
file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025 (emphasis added).
Morrison offers no evidence to justify his failure comply with BOP
requirements. Consequently, he is now foreclosed from litigating his
remaining claims in this Court.
In Spruill, the Third Circuit found that a procedural default component
to the exhaustion requirement served the following congressional objectives:
“(1) to return control of the inmate grievance process to prison administrators;
(2) to encourage development of administrative record, and perhaps
settlements, within the inmate grievance process; and (3) to reduce the
burden on the federal courts by erecting barriers to frivolous prisoner
lawsuits.” 372 F.3d at 230. In Pusey v. Belanger, No. Civ. 02-351, 2004 WL
2075472 at *2-3 (D. Del. Sept. 14, 2004), the court applied Spruill to dismiss
an inmate’s action for failure to timely pursue an administrative remedy over
the inmate’s objection that he did not believe the administrative remedy
program operating in Delaware covered his grievance. In Berry v. Kerik, 366
F.3d 85, 86-88 (2d Cir. 2004), the court affirmed the dismissal of an inmate’s
action with prejudice where the inmate had failed to offer appropriate
justification for the failure to timely pursue administrative grievances. In Ross
v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004), the court
embraced the holding in Pozo, stating that “[a] prison procedure that is
procedurally barred and thus is unavailable to a prisoner is not thereby
considered exhausted.” These precedents support this Court’s decision to
enter judgment in favor of Defendants.
B. Claims Based on Disciplinary Proceedings
The sanctions levied against Morrison during his disciplinary hearing,
were all imposed as a result of prison misconduct. The Court finds that any
Fifth Amendment due process claim regarding his disciplinary rehearing is
barred under Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v.
Balisok, 520 U.S. 641 (1997).6 Under some circumstances, a prisoner may
bring a Bivens claim for monetary damages based on the denial of due
process during a prison disciplinary hearing. See Wolff v. McDonnell, 418
U.S. 539, 554 (1974) (stating that plaintiff’s §1983 “damages claim was ...
properly before the District Court and required determination of the validity of
the procedures employed for imposing sanctions, including loss of good time,
for flagrant or serious misconduct”). However, such due process claims
cannot be brought in a Bivens action where the claims “necessarily imply the
invalidity of the punishment imposed” unless the plaintiff shows that the
sanctions have been overturned. See Balisok7, 520 U.S. at 648 (finding claims
While Heck, and Balisok all involved §1983 cases, courts have
extended their holdings to Bivens actions. See Lora-Pena v. F.B.I., 529 F.3d
503, 506 n. 2 (3d Cir. 2008) (“Although Heck involved a §1983 action by a
state prisoner, the reasoning in Heck has been applied to bar Bivens claims”
(citing Williams v. Hill, 74 F.3d 1339, 1341 (D.C. Cir.1996) (per curiam)).
In Edwards v. Balisok, the Supreme Court applied the lessons of Heck
to a state prisoner action, seeking compensatory and punitive damages,
challenging the constitutionality of procedures used in a prison disciplinary
proceeding that resulted in the loss of good-time credits, but not necessarily
for declaratory and monetary relief based on allegations that plaintiff was
denied opportunity to present a defense and that hearing officer was biased
could not be brought pursuant to §1983); Heck, 512 U .S. at 486-87 (“We hold
that, in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a §1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ
of habeas corpus, 28 U.S.C. §2254.”). As the record before us demonstrates,
the charges and sanctions stemming from Incident Report No. 2403114
remain valid on Plaintiff’s disciplinary record.
C. Personal Involvement
To state a claim under Bivens, Plaintiff must allege that he was deprived
of a federal right by a person who was acting under color of federal law. See
challenging the result and not seeking the restoration of the good-time credits.
Again, the Court emphasized that such a claim is not cognizable under §1983
if a favorable outcome would necessarily imply the invalidity of the challenged
judgment, there the disciplinary finding and punishment. 520 U.S. at 646-8.
Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992); West v. Atkins,
487 U.S. 42, 48, (1988).
It is well established that personal liability in a civil rights action cannot
be imposed upon a state official based on a theory of respondeat superior.
See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976). It is also well-settled in the
Third Circuit that personal involvement of defendants in alleged constitutional
deprivations is a requirement in a civil rights case and that a complaint must
allege such personal involvement. Sutton v. Rasheed, 323 F.3d 236, 249–250
(3d Cir.2003). Each named defendant must be shown, through the
complaint's allegations, to have been personally involved in the events or
occurrences upon which Plaintiff's claims are based. Id. As the Court stated
in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1998):
A defendant in a civil rights action must have personal
involvement in the alleged wrongs.... [P]ersonal involvement can
be shown through allegations of personal direction or of actual
knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made
with appropriate particularity. (Citations omitted).
There is no evidence of record that Defendants Knox, Thomas,
Berkoski, Edinger, Marr, Aderhold, and Norwood were involved in the
issuance of Incident Report No. 2403114, or the disciplinary hearings that
followed. Consequently, these Defendants had no personal involvement in
addressing Plaintiff’s incident report. See Sutton, 323 F.3d at 249 (finding that
personal involvement or some affirmative action on the part of a defendant is
necessary before he or she may be found liable for a civil rights violation).
Moreover, aside from naming Warden Thomas in the caption of the
complaint, there are no allegations in the body of the complaint against this
Defendant. There is no evidence of record that this Defendant was personally
involved in any of the alleged incidents of constitutional deprivation. Thus, it
is apparent that Plaintiff is attempting to impose liability on the basis of
Lastly, Plaintiff’s allegations that Defendants Knox, Berkoski, Edinger,
Marr, Aderhold, and Norwood violated his constitutional rights by ostensibly
being aware of the proceeding or simply being a member of his unit team, fare
no better. 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 Fed.Appx. 923, 925 (3d Cir.
2006) ((holding that a state prisoner’s allegation that prison officials and
administrators responded inappropriately, or failed to respond to a prison
grievance, did not establish that the officials and administrators were involved
in the underlying allegedly unconstitutional conduct).
Based upon the undisputed facts of record, Defendants are entitled to
summary judgment with respect to Plaintiff’s claim of exposure to toxic
chemicals and his challenge to his misconduct rehearing. An appropriate
order shall issue.
s/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: September 29, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1417-02.wpd
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