McFarlane v. Joseph Holly et al

Filing 27

MEMORANDUM (Order to follow as separate docket entry) re 19 MOTION to Dismiss for Failure to State a Claim filed by MR. M. Gourley, MR. M. Dunkle, MR. Stracco, MRS.Jacobson, MR. P. Woods, MRS. Cobian, MS. T. Heist, Joseph Holly, 21 MOTION to Compel Discovery filed by Robert Mcfarlane Signed by Honorable Malachy E Mannion on 3/11/2025. (gg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT MCFARLANE
CIVIL ACTION NO. 3:23-1185
Plaintiff
(JUDGE MANNION)
v.
JOSEPH HOLLY, et al.,
Defendants

MEMORANDUM

On August 21, 2021, Plaintiff Robert McFarlane was brutally assaulted
by another inmate while he was incarcerated at the State Correctional
Institution at Mahanoy, in West Mahanoy Township, Schuylkill County,
Pennsylvania (SCI-Mahanoy), leading to severe injuries, including nerve
damage and multiple facial fractures . Plaintiff brings this prose Section 1983
action, (Doc. 1), asserting First, Eighth and Fourteenth Amendment claims
against a multitude of prison officials and inmates, alleging that the prison
officials were warned of the threats against him and failed to protect him, and
that the prison officials subsequently stole his property and legal documents
while he was being transported to another correctional facility. Presently
pending before this Court is Defendants', Major Michael Dunkle, Security
Lieutenant Phillip Woods, Security Lieutenant Jodi Cobain, Unit Manager
Joseph Holly, Unit Manager Traci Jacobson, Superintendent Michael
Gourley, Corrections Superintendent's Assistant Tonya Heist, and Unit

Manager Eric Stracco ("DOC Defendants") motion to dismiss Plaintiff's First
and Fourteenth Amendment claims for failure to state a claim upon which
relief may be granted. (Doc. 19).1 Also pending before the Court is Plaintiff's
motion to compel discovery. (Doc. 21 ). For the reasons discussed below, the
Court will GRANT DOC Defendants' motion to dismiss and DENY Plaintiff's
motion to compel discovery.

I.

BACKGROUND

At all times relevant to the Complaint, Plaintiff was an inmate in the
custody of the Pennsylvania Department of Corrections ("DOC"), assigned
to various correctional institutions. (Doc. 1, p. 3). The events that give rise to
this action begins at SCI-Mahanoy, when Plaintiff's cellmate, Michael
Pennypacker - the nephew of Joseph Koran, the leader of the 215 prison
gang - and other 215 gang members accused Plaintiff of being a "rat" and
threatened to stab him and have his "throat slit at night while [he] was
sleeping." (Id., pp. 7-8). Plaintiff alleges that in the months of October and
November of 2020, he informed Defendants Holly, Dunkle, Cobain , Woods
and Jacobson of these threats and asked for help. (Id., pp. 8-9). Such

1

DOC Defendants do not challenge Plaintiff's Eight Amendment
failure-to-protect claims at this stage of the proceedings. (Doc. 20, p. 2).
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entreaties went ignored. (Id.). Consequently, Plaintiff wrote a letter to the
Pennsylvania State Police asking for help on March 21, 2021. (Id.).
Around this time, Defendant inmate Jeff Lafferty involved himself in the
situation and started threatening 215 gang members on behalf of Plaintiff
against Plaintiff's wishes. (Id., p. 8). Finding himself "caught up between the
Latin Kings [prison gang] and the 215," Plaintiff told his unit manager about
the trouble Lafferty was causing. As a result, Plaintiff was moved to a
different block on April 23, 2021 . (/d.). The new block (J-Block) "was a worst
block" and so Plaintiff reached out to Defendants Jacobson and Holly again
about the threats to his life. (Id., pp. 8-9). Plaintiff gets moved again to a
different block (8-Block) and feels safe for a short period of time, until Lafferty
gets moved over on the same block as Plaintiff on the orders of Defendant
Holly. (Id. , p. 9).
Plaintiff complains again of the threats he is facing by members of 215
and solicits the help of his mother to call prison officials on his behalf. Despite
the requests for a transfer, Plaintiff remains in 8-Block where he shares yard
time with Pennypacker, Koran, and Lafferty. (Id.). Around that time, Lafferty
recruits another inmate, Defendant David Reppert, to assault Plaintiff. (Id.) .
Then , on August 21, 2021, an unsuspecting Plaintiff is struck in the head with
a bag of bocce balls by Reppert. (Id.). As a result, Plaintiff suffered severe
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mJunes, including nerve damage and multiple facial fractures, and was
rushed to the hospital.
At first, Plaintiff was not aware of who the assailant was. Plaintiff
alleges that prison staff refused to provide him with the name of his attacker
or give him the information he needed to file prison grievances. (Id.). When
Plaintiff was moved out of the infirmary, he was held in administrative
custody in the Restricted Housing Unit (RHU) for three months, pending a
transfer to a different institution. He was then transferred to SCI-Camp Hill ,
and ultimately to SCI-Phoenix. (Id., p. 10). Plaintiff alleges that during these
transfers, prison staff stole his legal work and other property. (Id.).
Plai'ntiff initiated this action by filing a Complaint on July 12, 2023. (Doc.
1). He brings fai lure-to-protect claims under the Eighth Amendment related
to the assault, and Fourteenth Amendment due process claims and First
Amendment denial of access of courts related to the alleged theft of his
property. (See id., pp. 6-7). Plaintiff does not specify what particular claims
he brings against each individual Defendant. He seeks monetary damages
from all Defendants, an order compelling security to charge inmates Lafferty
and Koran for their role in the assault, and a single cell housing assignment
on the safest block in the prison. (Id., p. 11 ).

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DOC Defendants filed a motion to dismiss on October 9, 2023. (Doc.
19). Plaintiff filed an objection to the motion to dismiss and a motion to
compel Discovery on November 1, 2023. (Doc. 21 ). With briefs filed (Docs.
20, 22, 23, and 24 ), the motions are now ripe for review.
II.

LEGAL STANDARD
A. Motion to Dismiss

In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a
complaint for "failure to state a claim upon which relief can be granted." When
reviewing a motion to dismiss under Rule 12(b )(6), "[w]e must accept all
factual allegations in the complaint as true, construe the complaint in the light
favorable to the plaintiff, and ultimately determine whether plaintiff may be
entitled to relief under any reasonable reading of the complaint." Mayer v.
Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination,
we "consider only the complaint, exhibits attached to the complaint, matters
of public record , as well as undisputedly authentic documents if the
[plaintiff's] claims are based upon these documents." Id. at 230.
"A Rule 12(b)(6) motion tests the sufficiency of the complaint against
the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland
Valley Sch. Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). "Under
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Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and
plain statement of the claim showing that the pleader is entitled to relief."'
Ashcroft v. Iqbal, 556 U.S. 662 , 677-78 (2009) (quoting Fed. R. Civ. P.

8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair
notice of the nature of the plaintiff's claim and of the grounds upon which the
claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual
allegations are not required , but more is required than "labels," "conclusions,"
or "a formulaic recitation of the elements of a cause of action ." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint

must do more than allege the plaintiff's entitlement to relief." Fowlerv. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to 'show'

such an entitlement with its facts ." Id.
In considering whether a complaint fails to state a claim upon which
relief can be granted , the court "' must accept all facts alleged in the complaint
as true and construe the complaint in the light most favorable to the
nonmoving party."' Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir.
2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)).
But a court "need not credit a complaint's bald assertions or legal conclusions
when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist. , 132
F.3d 902 , 906 (3d Cir. 1997). A court also need not "assume that a ... plaintiff
-6-

can prove facts that the ... plaintiff has not alleged." Associated Gen.
Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519,

526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, it must recite factual
allegations sufficient to raise the plaintiff's claimed right to relief beyond the
level of mere speculation. In practice, consideration of the legal sufficiency
of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must
plead to state a claim ." Second, the court should identify
allegations that, "because they are no more than conclusions,
are not entitled to the assumption of truth." Finally, "where there
are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to
an entitlement for relief."
Santiago v. Warminster Twp., 629 F.3d 121 , 130 (3d Cir. 2010)

(footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and
'"however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers. "' Erickson , 551 U.S. at 94 (quoting
Estelle v. Gamble, 429 U.S. 97 , 106 (1976)). However, pro se complaints

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must still adhere to the Federal Rules of Civil Procedure and contain
'"sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face"' Fantone v. Latini, 780 F .3d 184, 193 (3d Cir. 2015)
(quoting Iqbal, 556 U.S. at 678). The Court need not accept "unsupported
conclusions and unwarranted inferences, " nor "legal conclusion[s] couched
as ... factual allegation[s] ." Castleberry v. ST/ Grp., 863 F.3d 259 (3d Cir.
2017) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)).
8. Motion to Compel Discovery
Federal Rule of Civil Procedure 37 of the Federal Rules of Civil Procedure
governs motions to compel discovery. Under Rule 37(a), a party may file a
motion to compel discovery when the opposing party fails to respond or
provides incomplete or evasive answers to properly propounded document
request or interrogatories. See Fed. R. Civ. P. 37(a)(3)(B)(iii-iv). Federal
Rule of Civil Procedure 26(b)(1) defines the scope of discovery as "any
nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case." This scope formally included matters
that were "reasonably calculated" to lead to the discovery of relevant
evidence, but Rule 26 as amended , no longer includes this language. A
matter is relevant if "it has any tendency to make a fact more or less probable
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than it would be without the evidence; and , the fact is of consequence in
determining the action. " Fed. R. Evid. 401.
The scope and conduct of discovery are within the sound discretion of the
trial court. In re Cendant Corp. Sec. Litig. , 343 F.3d 658, 661-62 (3d Cir.
2003); see also McConnell v. Canadian Pacific Realty Co. , 280 F.R.D. 188,
192 (M.D. Pa. 2011) ("Rulings regarding the proper scope of discovery, and
the extent to which discovery may be compelled , are matters consigned to
the Court's discretion and judgment. ").
Ill.

DISCUSSION
A. Fourteenth Amendment Due Process Claims

Plaintiff brings forth claims under the Fourteenth Amendment, alleging
that Defendants violated his due process rights "when they stole all [his]
property, and legal work ... " (Doc. 1, p. 5). DOC Defendants contend that the
Fourteenth Amendment claims against them fail as matter of law since
Plaintiff had access to an adequate post-deprivation remedy through the
prison grievance process. The Court agrees.
It has been established that when a citizen has been deprived of
property, by persons acting under color of state law, the focus of the court's

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inquiry then must be on whether the plaintiffs have suffered deprivations
without due process of law. Parratt v. Taylor, 451 U.S. 527, 537 (1981 ).
In Parratt, the Supreme Court of the United States made the distinction
between cases where the injured party was deprived of his property interest
without a pre-deprivation hearing when the deprivation was authorized by an
established state procedure, from those cases where it was the "result of a
random and unauthorized act by a state employee. " Id. at 541. The Supreme
Court found that where it was the result of an authorized state procedure,
due process required pre-deprivation notice and a hearing in order to serve
as a check on the possibility that a wrongful deprivation would occur. Id. at
538 . It further held that when the deprivation is the result of a random and
unauthorized act by some state employee, where the state cannot predict
when such might occur and is, therefore, unable to provide a hearing prior to
it taking place, procedural due process is satisfied if there is "available some
meaningful means by which to assess the propriety of the State's action at
some time after the initial taking. " Id. at 539.
The holding in Parratt was expanded by the Supreme Court, three
years later, in Hudson v. Palmer, 468 U.S. 517 (1984). In Hudson , the
Supreme Court held that meaningful post-deprivation hearings satisfy
procedural due process, even when the unauthorized acts of state
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employees are intentional. Id. at 533. Following the "underlying rationale" of
Parratt, the Hudson Court stated,

that when deprivations of property are effected through random
and unauthorized conduct of a state employee, predeprivation
procedures are simply "impracticable" since the state cannot
know when such deprivations will occur. We can discern no
logical distinction between negligent and intentional deprivations
of

property

insofar

as

the

'practicability'

of

affording

predeprivation process is concerned. The state can no more
anticipate and control in advance the random and unauthorized
conduct of its employees than it can anticipate similar negligent
conduct.
Id. The Supreme Court qualified that holding, as did the Supreme Court

in Parratt, by adding "intentional deprivations do not violate the [Due
Process] Clause provided , of course, that adequate state post-deprivation
remedies are available. " Id. Thus, in order to succeed on a due process
claim , an inmate must not only show that his property was confiscated but
that he was not afforded a post-deprivation administrative remedy. Ball v.
Campbell, 2011 WL 7080692, at *7 (M.D. Pa. Dec. 9, 2011 ), R & R adopted

as the Opinion of the Court in 2012 WL 201846 (M .D. Pa. Jan. 23, 2012).
The United States Court of Appeals for the Third Circuit has found that
adequate post-deprivation remedies include the ability to file a state tort
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action or use of the prison's grievance process. Tapp v. Proto, 404 F. App'x
563, 567 (3d Cir. 2010); Tillman v. Lebanon Cnty. Corr. Fae., 221 F.3d 410,
422 (3d Cir. 2000). The existence of either of these post-deprivation
remedies therefore "forecloses any due process claim ... even if [the] inmate
is dissatisfied with the result of the process." Iseley v. Horn , 1996 WL
510090, at* 6 (E.D. Pa. Sept.3, 1996), citing Austin v. Lehman, 893 F.Supp.
448, 454 (E. D. Pa.1995).
Here, Plaintiff avers that he filed grievances against the DOC
Defendants related to the alleged theft of his property at both SCI-Mahanoy
and SCI-Phoenix. (Doc. 1, pp. 10, 13, and 16). While Plaintiff may not be
satisfied with the responses he received for such grievances, the availability
of the grievance process to him constitutes an adequate post-deprivation
remedy and effectively "forecloses any due process claim." Horn , 1996 WL
510090, at * 6. Accordingly, Plaintiff's Fourteenth Amendment due process
claims will be dismissed with prejudice.
8. First Amendment Access-to-Court Claim

Plaintiff brings forth a claim under the First Amendment, alleging that
DOC Defendants barred his access to courts. DOC Defendants argue that
such a claim should be dismissed because Plaintiff has failed to plead his
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underlying claim in accordance with Fed. R. Civ. P. 8(a) and to describe it
well enough to show it is based on "more than hope," and to the extent
Plaintiff's access-to-court claims refers to claims he brings in the instant
lawsuit, it should be dismissed as moot. The Court agrees.
The law surrounding an access-to-the-courts claim has been aptly set
forth as follows :
"The right of access to the courts is sourced from both 'the First
and Fourteenth Amendments, ' and is typically framed as a due
process right in the inmate context, but in other contexts as 'an
aspect of the First Amendment right to petition the Government
for redress of grievances[.]"' Jutrowski v. Twp. of Riverdale, 904
F.3d 280, 295 n.17 (3d Cir. 2018) (citations omitted). "It is now
established beyond doubt that prisoners have a constitutional
right of access to the courts." Bounds v. Smith, 430 U.S. 817,
821 (1977). There are two general categories of actionable
federal claims based upon an alleged denial of access to the
courts. Christopher v. Harbury, 536 U.S. 403, 413 (2002).

The first category is forward-looking claims. Id. The essence of
such a claim is that official action is frustrating the plaintiff in
preparing or filing a legal action at the present time. Id. The
opportunity to litigate "has not been lost for all time, however, but
only in the short term; the object of the denial-of-access suit, and
the justification for recognizing that claim, is to place the plaintiff
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in a position to pursue a separate claim for relief once the
frustrating condition has been removed ." Id.

The second category is backward-looking claims. Id. at 413-14.
Such a claim does not look forward to future litigation, "but
backward to a time when specific litigation ended poorly, or could
not have commenced, or could have produced a remedy
subsequently unobtainable." Id. at 414 (footnotes omitted). "The
ultimate object of these sorts of access claims, then , is not the
judgment in a further lawsuit, but simply the judgment in the
access claim itself, in providing relief obtainable in no other suit
in the future. " Id.

The ultimate justification for recognizing each kind of access
claim is the same. Id. "Whether an access claim turns on a
litigating opportunity yet to be gained or an opportunity already
lost, the very point of recognizing any access claim is to provide
some effective vindication for a separate and distinct right to seek
judicial relief for some wrong ." Id. at 414-15. The right of access
to the courts "is ancillary to the underlying claim , without which a
plaintiff cannot have suffered injury by being shut out of court. "
Id. at 415. Therefore, a plaintiff must establish an actual injury by

identifying a nonfrivolous, arguable underlying claim blocked or
lost by the alleged denial of access to the courts. Id. The
underlying cause of action, whether anticipated or lost, is an
element of the access claim . Id.
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In the prison setting, "the injury requirement is not satisfied by
just any type of frustrated legal claim ." Lewis v. Casey, 518 U.S.
343 , 354 (1996). Rather, in the prison setting , actual injury is the
loss of, or inability to pursue, a nonfrivolous claim that relates to
a challenge , direct or collateral , to an inmate's conviction or
relates to a challenge to the conditions of confinement. Id. at
354-55. "Impairment of any other litigating capacity is simply one
of the incidental (and perfectly constitutional) consequences of
conviction and incarceration ." Id. at 355 (italics in [original]).

Wyatt v. Wilson , 2025 WL 539687, at *12 (M .D. Pa. Feb. 18, 2025)
(quoting Talley v. Wetzel, No. 22-cv-1712, 2023 WL 5163289 at *8-9 (M .D.
Pa. July 17, 2023)).
Here, the Court finds that Plaintiff's complaint does not allege an actual
injury-i.e. , that he lost a chance to pursue or is currently being hindered
from pursuing a nonfrivolous, arguable underlying claim. The Court further
finds , as DOC Defendants correctly argue, that Plaintiff's complaint does not
describe the nature of the nonfrivilous, arguable underlying claim well
enough to show that it is "more than hope[.]" See Christopher, 536 U.S. at
415 (footnote omitted). In other words, Plaintiff's Complaint does not plead
his access-to-courts claim in a manner that satisfies Rule 8(a) of the Federal
Rules of Civil Procedure. Thus, although Plaintiffs complaint sets forth
numerous allegations to show that his legal paperwork was stolen from him
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while he was being transferred to another correctional facility, his complaint
neither explains how he was injured by this denial nor alleges the potential
meritoriousness of his underlying claim, which he allegedly lost a chance to
pursue or is currently being prevented from pursuing. Furthermore, if the
underlying lost or rejected legal claims are the separate Eighth and
Fourteenth Amendments claims brought in this lawsuit, then Plaintiff's
access-to-courts First Amendment claim is moot given that they are
presently before the Court. Accordingly, Plaintiff's First Amendment claim will
be dismissed with prejudice.
C. Claims Against Defendants Gourley, Stracco and Heist

DOC Defendants note that the Complaint states that Defendants
Gourley, Stracco and Heist were all employed by SCI-Camp Hill and that
none of them were made aware of Plaintiff's issues with the 215 gang prior
to the August 2021 assault. (Doc. 1, pp. 5-6). Accordingly, the Court agrees
with DOC Defendants, that any claims related to events prior thereto are
inapplicable to those Defendants (particularly, Plaintiff's Eighth Amendment
failure-to-protect claims).
In the Complaint, Plaintiff asserts that Defendant Stracco moved
Plaintiff to a cell that was "one cell away from Joseph Koran's Co-defendant
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Robert Monacelli both 215 gang members" "in retaliation for filing
grievances, and a pending Civil Complaint[.]" (Doc. 1, p. 10). Despite the
temporary proximity to Monacelli, Monacelli never knew of Plaintiff's past
encounters with the 215 gang nor did Monacelli ever threaten or attack
Plaintiff. Plaintiff was later moved to SCI-Phoenix.
To state a First Amendment retaliation claim, a plaintiff must plausibly
plead that (1) "he was engaged in constitutionally protected conduct," (2) he
suffered an "adverse action" by prison officials sufficient to deter a person of
ordinary firmness from exercising his First Amendment rights, and (3) the
plaintiff's protected conduct was a "substantial or motivating factor" in the
prison officials' decision to take the adverse action. Id. (quoting Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001 )). "Although the elements of a First

Amendment retaliation claim remain constant, the underlying concepts that
they signify will vary with the setting-whether activity is 'protected' or an
action is 'adverse' will depend on context. ... " Thaddeus-Xv. Blatter, 175 F.3d
378, 388 (6th Cir. 1999). The fact of incarceration and the valid penological
objectives of deterrence of crime, rehabilitation of prisoners, and institutional
security justify limitations on the exercise of constitutional rights by inmates.
See Pell v. Procunier, 417 U.S. 817, 822-23 (1974). Thus, a prison inmate

"retains [only] those rights that are not inconsistent with his status as a
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prisoner or with the legitimate penological objectives of the corrections
system ." Id. at 822. Here, Plaintiff fails to state a First Amendment retaliation
claim.
First, Plaintiff's movement to another cell is not inconsistent with the
legitimate penological objectives of the corrections system at SCI-Camp Hill.
By Plaintiff's own admission , "DOC continued to move [him] around and
transfer [him] ... " to different cells and blocks. (Doc. 1, p. 10). He summarily
asserts that each of those moves placed in "harm[']s way" but fails to
demonstrate how Plaintiff's grievance filing was the motivating factor in the
prison officials' decision to move him . (Id.) . At best, Plaintiff states that
Defendant Stracco spoke with Plaintiff's "former unit manager Joseph Holly
concerning [Plaintiff's] pardon"2 and, vaguely, "[i]n retaliation for filing
grievances, and a pending [c]ivil [c]omplaint [Stracco] moves [Plaintiff] to KBlock 23 cell one cell away from Joseph Koran 's Co-defendant Robert
Monacelli both 215 gang members." (Id.). "To establish the causation
element of a retaliation claim , a plaintiff must prove that the exercise of his
First Amendment rights played some substantial role in motivating the
adverse action ." Conklin v. Warrington Twp. , 2007 WL 4248214, at *3

2

The Court is unable to discern what plaintiff means by "pardon ."
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(M .D.Pa.2007) (internal quotation marks omitted) aff'd sub nom. Conklin v.
Warrington Twp., 304 F. App'x 115 (3d Cir.2008). To make this showing , "a
plaintiff usually must prove either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action,
or (2) a pattern of antagonism coupled with timing to establish a causal link."
Lauren W ex rel. Jean W v. OeFlaminis, 480 F.3d 259, 267 (3d Cir.2007).
Here, Plaintiff has done neither. He fails to plead any of the particulars of
how and when Stracco came to know of his grievance filings, or even how
that played any factor in Plaintiff's transfer to K-Block. The conclusory
allegations Plaintiff lodges are insufficient to state a claim.
Second, Plaintiff admits that his temporary cell neighbor, Monacelli, did
not know of Plaintiff's identity, was unfamiliar with Plaintiff's past encounters
with the 215 gang, and never threatened or attacked Plaintiff before he was
later moved again to SCI-Phoenix. Neither did Plaintiff demonstrate that
Stracco knew of Monacelli's gang affiliation. Plaintiff makes the abstract
allegation that the cell transfer placed him in a "potential risk of serious
danger." (Doc. 1, p. 10). This is nothing more than Plaintiff's naked
speculation and this Court is not required to assume that the Plaintiff can use
the discovery process to prove facts not alleged. Evancho v. Fisher, 423 F.2d
347, 353-354 (3d Cir. 2005). Accordingly, Plaintiff suffered no harm nor an
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"adverse action" by prison officials sufficient to deter a person of ordinary
firmness from exercising his First Amendment rights, and the claim against
Defendant Stracco will be dismissed.
As to Defendants Gourley and Heist, Plaintiff alleges the following:
"I properly file a grievance in response to both complaint's and
both Facility Manager M. Gourley, and Facilities Manager
assistant T. Heist both cover up the crimes they [c]omitted
against me. Violating my protected Constitutional Rights, [m]y
due process of law, and a [b]latant [d]enial to access the Court ....

So they now decided to transfer me again on February 24th 2023
in which they [s]tole my legal work and the rest of my property
with the consent of Superintendent M. Gourley, and T. Heist.
Now also defendants in my civil action lawsuit."
(Doc. 1, p. 10). As explained above, the theft of property - Fourteenth
Amendment due process - claim will be dismissed. Thus, Plaintiff's
remaining allegations against Defendants Gourley and Heist appear to either
relate to their responses to certain grievances he filed or their role as
supervisors.
Individual liability can be imposed under Section 1983 only if the state
actor played an "affirmative part" in the alleged misconduct, and "cannot be
predicated solely on the operation of respondeat superior." Evancho , 423
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F.3d at 353 (quoting Rode v. Del/arciprete, 845 F.2d 1195, 1207 (3d Cir.
1998)). In other words, a defendant "must have personal involvement in the
alleged wrongs ... shown through allegations of personal direction or of
actual knowledge and acquiescence[.]" See Atkinson v. Taylor, 316 F.3d
257, 270 (3d Cir. 2003) (quoting Rode, 845 F.2d at 1207).
Allegations of personal involvement must be made with appropriate
particularity in that the complaint must allege the particulars of conduct, time,
place, and personal responsibility. Evancho, 423 F.3d at 354; Rode , 845
F.2d at 1207-08. Subsequent knowledge of an incident is insufficient to
demonstrate that a state actor played an "affirmative part" in the alleged
misconduct. See Rode , 845 F.2d at 1207-08 (the after-the-fact submission
of a grievance is "simply insufficient" to establish a defendant's knowledge of
an underlying constitutional violation at the time it occurred); Dooley v.
Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (Grievance Coordinator and

Superintendent's involvement in review and denial of grievance insufficient
to establish personal involvement). It is the plaintiff's burden to "show that
each and every defendant was 'personal[ly] involve[d]' in depriving him of his
rights. " Kirk v. Roan, No. 1:04-CV-1990, 2006 WL 2645154, at *3 (M.D . Pa.
Sept. 14, 2006) (quoting Evancho , 423 F.3d at 353). Allegations that broadly
implicate multiple defendants without delineating individual conduct are
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legally insufficient. See Van Tasse/ v. Piccione , 608 F. App'x 66, 69-70 (3d
Cir. 2015).
Here, to the extent the allegations against Defendants Heist and
Gourley relate to their responses to his grievances, such allegations are
insufficient to establish these Defendants' personal involvement in the
challenged conduct under §1983. See Watkins v. Horn, 1997 WL 566080 at
*4 (E.D. Pa. 1997) (concurrence in an administrative appeal process is not
sufficient to establish personal involvement); Mitchell v. Keane , 974 F.Supp.
332 , 343 (S.D.N.Y. 1997) ("it appears from the submissions before the court
that [Plaintiff] filed grievances, had them referred to a prison official , and
received a letter reporting that there was no evidence to substantiate his
complaints. [Plaintiff]'s dissatisfaction with this response does not constitute
a cause of action ."); Caldwell v. Beard, 2008 WL 2887810, at *4 (W.D. Pa.
July 23, 2008) ("Such a premise for liability [i.e., for performing a role in the
grievance process] fails as a matter of law. "), aff'd, 2009 WL 1111545 (3d
Cir. April 27, 2009); Orrs v. Comings , 1993 WL 418361, at *2 (E.D. Pa. Oct.
13, 1993) ("But an allegation that a defendant failed to act on a grievance or
complaint does not state a Section 1983 claim. "). "[T]he failure of a prison
official to act favorably on an inmate's grievance is not itself a constitutional
violation. " Little v. Mottern , 2017 WL 934464 , at *11 (M.D. Pa. Mar. 7, 2017)
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(quoting Rauso v. Vaughn, 2000 WL 873285, at *16 (E.D. Pa., June 26,
2000). Furthermore, to the extent the allegations against Defendants Heist
and Gourley solely relate to their roles as supervisors, such allegations
equally do not establish claims brought under §1983. Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988) (federal civil rights claims brought under
§ 1983 cannot be premised on a traditional theory of respondeat superior);
see a/so Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010).
Indeed, §1983 supervisory liability is available when: (1) the supervisor
personally "participated in violating the plaintiff's rights, directed others to
violate them , or, as the person in charge, had knowledge of and acquiesced
in [their] subordinates' violations"; or (2) policymakers are shown to have
acted with deliberate indifference when "establish[ing] and maintain[ing] a
policy, practice or custom which directly caused [the] constitutional harm."'
See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572 , 586
(3d Cir. 2004). A defendant shows deliberate indifference if they "acted or
failed to act despite having knowledge that her actions or inaction ... would
subject the inmate to a substantial risk of serious harm." Chavarriaga, 806
F.3d at 227 (citing Farmer v. Brennan, 511 U.S. 825, 840 (1994)). Here,
Plaintiff does not specify any policies, customs, or practices Defendants
Heist and Gourley maintained. Neither does Plaintiff show that these
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Defendants participated in violating his constitutional rights, directed others
to violate them, or, as the people in charge, had knowledge of and
acquiesced to their subordinates' violation and had "some affirmative
conduct .. . play[ ] a role in the discrimination." Andrews, 895 F .2d at 14 78.
Accordingly, the claims against Defendants Gourley and Heist will be
dismissed.
D. Official Capacity Claims

In his form Complaint, Plaintiff has marked that he brings claims
against the DOC Defendants in both their individual and official capacities.
(Doc. 1, pp. 3-6). DOC Defendants contend that official capacity claims for
money damages are foreclosed and should be dismissed with prejudiced .
The Court agrees.
The Eleventh Amendment provides that "[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or equity ,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or subjects of any Foreign State." U.S. CONST.
amend. XI. Eleventh Amendment protections also extend to state agencies
and officials of those agencies in their official capacities. See Capogrosso v.
Supreme Court of N.J. , 588 F .3d 180, 185 (3d Cir. 2009); Melo v. Hafer, 912

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F.2d 628, 635 (3d Cir. 1990). Thus, because DOC is a state agency, DOC
and its employees, to the extent that they are sued in their official capacity,
enjoy Eleventh Amendment protections. See Atkin v. Johnson, 432 F. App'x
47, 48 (3d Cir. 2011) (citing Will v. Mich. Oep't of State Police, 491 U.S. 58,
71 (1989)).
This immunity is not absolute. Three exceptions to sovereign immunity
exist: (1) abrogation by an act of Congress; (2) waiver by state consent to
suit; (3) suits against individual state officials for prospective relief to remedy
an ongoing violation. M.A. ex rel. E.S. v. State-Operated Sch. Dist., 344 F.3d
335, 344-45 (3d Cir. 2003) (citing MCI Telecomm Corp. v. Bell At/. Pa., 271
F.3d 491, 503 (3d Cir. 2001 )).
After review, Plaintiff's Section 1983 claims do not fit within these
exceptions. Congress has not abrogated states' sovereign immunity by
enacting Section 1983 and neither states nor employees acting in their
official capacities are recognized as "persons" under that statute. See Will
491 U.S. at 66, 71. Pennsylvania has also expressly invoked its sovereign
immunity under the Eleventh Amendment by statute. 42 Pa. Cons. Stat.
§8521 (b). Additionally, Plaintiffs Complaint cannot be construed to seek
prospective relief to remedy ongoing violations by the individual defendants
since plaintiff seeks money damages for past alleged wrongs. As such, the
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Court finds that DOC Defendants are entitled to sovereign immunity
protection under the Eleventh Amendment and all claims against them to the
extent they are sued in their official capacities will be dismissed.
E. Motion to Compel Discovery

In his motion to compel discovery, Plaintiff avers that on August 25,
2023, he "served Chief Counsel Timothy Holmes, Plaintiff's First Request for
Production of Documents, [w]hich was mailed via U.P.S. first class mail on
8-28-2023." (Doc. 21 , 113). Yet, DOC Defendants counter that Mr. Holmes is
not a party to this case and does not represent any defendant in this action.
(Doc. 23, p. 2). Furthermore, DOC Defendants note that Plaintiff did not
allege that he served any DOC Defendant or their undersigned counsel with
the request for production of documents at issue in his motion, or with any
other request for discovery. (Id.; see also Docs. 21-22). The Court is
constrained to agree.
Pursuant to Federal Rule of Civil Procedure 34(a), "[a] party may serve
on any other party a request within the scope of Rule 26(b ). " "The party to
whom the request is directed must respond in writing within 30 days after
being served or - if the request was delivered under Rule 26(d)(2) - within
30 days after the parties' first Rule 26(f) conference." Fed. R. Civ. P
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34(b )(2)(A). Here, given that Plaintiff has not shown to have properly served
the appropriate parties with the request for production of documents, his
motion will be denied.
IV.

CONCLUSION

Based on the foregoing , the Court will GRANT DOC Defendants'
motion to dismiss (Doc. 19) and DENY Plaintiff's motion to compel discovery
(Doc. 21 ). An appropriate order follows.

ates District Judge

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