Aulisio v. Chiampi et al

Filing 86

MEMORANDUM (Order to follow as separate docket entry) re: 85 MOTION for Recusal filed by Joseph G. Aulisio, and 69 MOTION for Summary Judgment filed by Ann Chiampi, Anne Plaska, Karen Stroup. Signed by Honorable Matthew W. Brann on 9/21/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH G. AULISIO,

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Plaintiff
v.
ANN CHIAMPI, ET AL.,
Defendants

No.: 4:14-CV-196
(Judge Brann)

MEMORANDUM OPINION
September 21, 2017
I.

BACKGROUND
Joseph G. Aulisio, an inmate presently confined at the Retreat State

Correctional Institution, Hunlock Creek, Pennsylvania (SCI-Retreat) initiated this
pro se civil rights action. Named as Defendants are three (3) SCI-Retreat
employees: Education Principal Ann Chiampi, Librarian Karen Stroup, and
Hearing Examiner Anne Plaska.
By Memorandum and Order dated March 4, 2015, Defendants’ motion to
dismiss the complaint was partially granted. See Doc. 20. Specifically, this Court
agreed that dismissal was warranted on the claim that the DOC’s grievance
procedure was unconstitutional as well as the retaliation allegations against
Defendants Plaska and Stroup. Dismissal was also granted with respect to the due
process claims against Hearing Examiner Plaska and the contentions of denial of
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equal protection. As a result, Aulisio’s surviving claims are (1) a retaliatory
confiscation of the second folder by Education Principal Chiampi; (2) denial of
access to the courts; (3) conspiracy; (4) violation of Plaintiff’s right of freedom of
speech.
It is undisputed that Aulisio was employed as a law clerk/legal reference
aide in the SCI-Retreat library on May 24, 2012. According to the Complaint, on
that morning the Plaintiff was singled out for harassment by Education Principal
Chiampi. Specifically, it is alleged that Chiampi entered the library asked Aulisio
whether two closed file folders which were sitting on his work desk were personal
or work related. Aulisio maintains that although he responded numerous times
that the folders were work related and that he was studying for a scheduled job
related test Chiampi seized both folders. Plaintiff describes the confiscation as
being enforcement of “a never before enforced rule.” Doc. 1, Section IV, ¶ 12.
One of the confiscated folders is described by Plaintiff as a seventy-four
(74) page civil rights manuscript containing hundreds of prison litigation cases
with a copy of the Bill of Rights as the first page.1 See id., ¶ 8. Aulisio adds that
this manuscript was intended to be published as a handbook for inmates wishing to
pursue civil rights claims. The second folder is described as consisting of

1

The confiscation slip given to Plaintiff notes that the items confiscated were stated by the
inmate as being work related. See Doc. 1, p. 25.
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handwritten notes.
Approximately ten (10) minutes after seizing the folders, Chiampi
purportedly returned for the purpose of returning the folder containing the
handwritten notes to the Plaintiff. However, when Aulisio informed Chiampi that
the confiscation of the other folder (manuscript) was improper because he was
engaged in constitutionally protected activity, Chiampi allegedly became angry,
decided to keep both folders as a retaliatory measure, and ordered the prisoner to
return to his cell block. As a result of the incident Aulisio was issued a
misconduct charge by Librarian Stroup which charged him with lying to an
employee and possession of contraband. He was later found guilty of the charge
by Hearing Examiner Plaska.
Aulisio contends that the improper confiscation of the manuscript and notes
impeded his ability to pursue litigation. On June 13, 2012, Plaintiff purportedly
discovered that Chiampi did not follow proper procedure with respect to the
confiscation. Specifically, on that date the folder containing the handwritten notes
was apparently offered back to the Plaintiff and the inmate was told that the other
confiscated folder (manuscript) had not been turned into “Control” as required
under prison policy. Id. at ¶ 10. The Complaint assumes that the confiscated
manuscript folder was destroyed in an effort to prevent Aulisio from pursuing

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litigation against Chiampi in violation of his right of access to the courts.2
Aulisio’s other surviving claims contend that Defendants engaged in a
conspiracy and violated his right of freedom of speech. See id. at ¶ ¶ 17-18. The
Complaint seeks compensatory and punitive damages as well as declaratory relief.
Presently pending is the Remaining Defendants’ motion for summary
judgment. See Doc. 69. The opposed motion is ripe for consideration. For the
reasons that follow, the motion will be granted.
II.

DISCUSSION
Defendants claim entitlement to entry of summary judgment on the grounds

that: (1) the undisputed facts show that the confiscation of Plaintiff’s documents
was not retaliatory; (2) the Complaint does not allege a viable denial of access to
the courts claim; (3) Defendants’ action did not violate the inmate’s right to
freedom of speech; and (4) Plaintiff cannot prove a conspiracy claim.
A.

Standard of Review

Summary judgment is proper if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
2

It is unclear as to whether the alleged second folder was eventually returned to Plaintiff. The
parties acknowledge that legal materials confiscated on the day in question were offered to
Aulisio at least twice.
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Cir. 2001). A factual dispute is “material” if it might affect the outcome of the suit
under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “genuine” only if there is a sufficient evidentiary
basis that would allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. at 248. The court must resolve all doubts as to the existence of
a genuine issue of material fact in favor of the non-moving party. Saldana, 260
F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609
(M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370
(3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to
support the claims of the non-moving party, the non-moving party may not simply
sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). Instead, it must “go beyond the pleadings and by [its]
own affidavits, or by the depositions, answers to interrogatories, and admissions
on file, designate specific facts showing that there is a genuine issue for trial.” Id.
(internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations
omitted).
Summary judgment should be granted where a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s
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case, and on which that party will bear the burden at trial.” Celotex, 477 U.S. at
322-23. “‘Such affirmative evidence – regardless of whether it is direct or
circumstantial – must amount to more than a scintilla, but may amount to less (in
the evaluation of the court) than a preponderance.’” Saldana, 260 F.3d at 232
(quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir.
1989)).
B.

Retaliation

Defendants Plaska and Stroup’s request for dismissal of the retaliation
claims against them was granted by this Court’s March 4, 2015 Memorandum and
Order. Aulisio’s remaining limited retaliation claim alleges that Chiampi changed
her mind about returning legal property to him because it followed his threat to file
a lawsuit against her.
The pending summary judgment motion asserts that because there “were no
ongoing hostilities between the two parties” at the time of the confiscation, a
viable retaliation claim has not been asserted. Doc. 71, p. 6. Defendants add that
the allegation of retaliation fails because the confiscation was not undertaken for
any improper or retaliatory reason and it was Defendant Stroup who issued Aulisio
a misconduct. Finally, they argue that since Aulisio was offered the return of the
confiscated materials at a later date, it was his own conduct which caused him to
suffer adverse action.
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In support of their argument, Defendants have submitted a declaration under
penalty of perjury signed by Defendant Chiampi. See Doc. 72, p. 82. Chiampi
acknowledges that she was employed as the SCI-Retreat Corrections School
Principal during the relevant time period. She indicates that her duties included
making rounds in the prison’s Educational Building which housed the library
where the Plaintiff was employed. Chiampi states while performing that task in
the library on the morning of May 24, 2012 she noticed that all the inmates were
performing janitorial duties with the exception of Aulisio, who was using the
photocopying machine.
Upon further investigation, Chiampi discovered that although Plaintiff
indicated he was performing a work related duty, he had not been assigned any
photocopying duties by his supervisor, Librarian Stroup. As a result, the
Defendant ordered the Plaintiff “to get to work.” Id. at p. 83, ¶ 4. Aulisio put
away his copies and walked away from the photocopier. As Chiampi was
subsequently preparing to exit the library, she noticed that while the other inmates
were still performing janitorial duties, Plaintiff was now on a law library
computer. When she questioned Aulisio about this activity, he repeatedly stated
that he was doing a work related task and became “confrontational and
argumentative” when Chaimpi asked if she could see his folder. Id. at ¶ 6.
Chiampi notes that she only recalls Aulisio possessing one folder. Chiampi took
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the folder which Aulisio was using and gave it to Stroup to determine if the
prisoner was doing personal work. Chaimpi then escorted Aulisio from the library
and instructed him to return to his housing unit. At this juncture, Aulisio admitted
that his folder contained personal work. Chiampi contends that she then told
Aulisio “to get the work from Ms. Stroup and to return” to his housing block. See
id. at ¶ 6.
According to Chiampi, Aulisio “went back into the library and then came
out smiling and stating that ‘there is only one folder, not two, and now I’m going
to sue you.’” Id. Chiampi concludes that because inmates are not authorized to
work on their personal matters while on duty and are prohibited from bringing
personal material to the library when they are working, the folder was properly
considered to be contraband by Stroup. Chiampi adds that she did not destroy any
material belonging to the Plaintiff.
Also submitted for consideration is a declaration under penalty of perjury by
SCI-Retreat Librarian Karen Stroup. See id. at p. 87. Stroup states that part of her
duties involved supervision of the library workers, including legal reference aides
such as Aulisio. Stroup avers that pursuant to Pennsylvania Department of
Corrections (DOC) regulations, “library workers are not allowed to bring personal
materials to the library and they are not to complete legal work during their work
hours.” Id. at ¶ 3. Stroup adds that upon being hired as a legal reference aide, the
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Plaintiff was given a written handbook advising him of his duties and work
restrictions.
Stroup reiterates Chiampi’s version of events which occurred on the date in
question, adding that at that time of the incident all library workers were to be
cleaning the library. However, Aulisio was not performing that duty but rather
was using the photocopier when Chiampi arrived. After being directed to return
to work and while the other prisoners were still busy with their cleaning duties, the
Plaintiff began using a computer.
Stroup states that in accordance with her duties as Librarian, “I confiscated
one folder of legal materials from him.” Id. at ¶ 7. The materials did not appear to
be either related to the legal reference aide exam or necessary for his work as a
legal reference aide. She provided Aulisio a confiscation receipt because his
folder contained “personal notes and photocopies.” Id. Stroup further admits that
she issued a misconduct to the Plaintiff because he was told not to bring personal
material to the library and for initially falsely stating that the material was work
related. Stroup adds that the folder was given to the Shift Commander and “I took
nothing out of the folder and kept nothing from it.” Id. at ¶ 10. Moreover, “I do
not recall seizing more than one folder of legal material from Aulisio.” Id. Finally
Stroup elaborates that she did not destroy the folder and does not have knowledge
of its whereabouts.
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Accompanying Stroup’s declaration is a copy of the relevant DOC
regulation prohibiting legal reference aides form working on personal legal
matters while on duty. See id. at Exhibit A. A copy of the misconduct charge is
also attached.
In his deposition testimony, Aulisio reiterates that Chiampi took two folders
from him on the date in question. As noted above, one folder contained a 74 page
typewritten manuscript on prisoner’s civil rights which he hoped would be
published. See Doc. 72, p. 25. The second folder is described by the inmate as a
pile of handwritten notes regarding questions which he was often asked by fellow
prisoners. See id. at p. 27. Plaintiff states that when Chiampi approached, he
along with Stroup were photocopying materials from one of his folders. See id., p.
29. Aulisio admits that Chiampi asked him what he was copying and directed him
to assist in the cleaning of the library. Shortly thereafter Chiampi left the library
with the two folders. According to Aulisio, Chiampi returned ten minutes later
and attempted to return the handwritten notes folder. Plaintiff testified that he
refused the offer because he was concerned about the manuscript.3 When Chiampi
denied the existence of a second folder, Aulisio threatened to sue which allegedly
prompted Chiampi to renege on returning the handwritten notes file describing it

3

A copy of a written statement by Aulisio which accompanies the Complaint only describes the
confiscated legal material as “notes full of nothing but case law.” Doc. 1, p. 11.
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as contraband. Plaintiff’s deposition testimony maintained that Stroup was not
involved in the exchange and her whereabouts at that point were unknown.
There is a disputed issue of material fact as to whether one or two folders
were confiscated. Chiampi and Stroup’s version of the incident clearly differs
substantially from Aulisio’s. The Principal and Librarian only recall one folder;
they also assert that it was Defendant Stroup who made the decision that the single
folder should be confiscated as contraband.
There are a series of discrepancies with Plaintiff’s story. For instance, in his
Complaint Aulisio states that Chiampi approached him and seized two closed file
folders which were laying on his desk. Doc. 1, p. 3. In his deposition, Plaintiff
states that when Chiampi approached, he along with Stroup were photocopying
materials from one of his folders. See Doc. 72, p. 29. Plaintiff also states that it
was Chiampi who refused to return the confiscated materials. However, his
opposing brief states that Stroup made an “instant confiscation of my legal
knowledge materials.” Doc. 75, ¶ 3.
To establish a Section 1983 retaliation claim, a plaintiff bears the burden of
satisfying three (3) elements. First, a plaintiff must prove that he was engaged in a
constitutionally protected activity. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001). Second, a prisoner must demonstrate that he “suffered some ‘adverse
action’ at the hands of prison officials.” Id.(quoting Allah v. Seiverling, 229 F.3d
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220, 225 (3d Cir. 2000)). This requirement is satisfied by showing adverse action
“sufficient ‘to deter a person of ordinary firmness’ from exercising his First
Amendment rights.” Id. (quoting Suppon v. Dadonna, 203 F.3d 228, 235 (3d Cir.
2000)). Third, a prisoner must prove that “his constitutionally protected conduct
was ‘a substantial or motivating factor’ in the decision to discipline him.” Id. at
333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The mere fact that an adverse action occurs after a complaint or grievance is filed
is relevant, but not dispositive, for the purpose of establishing a causal link
between the two events.4 See Lape v. Pennsylvania, 157 Fed. App’x. 491, 498 (3d
Cir. 2005).
Once a plaintiff has made a prima facie case, the burden shifts to the
defendants to prove by a preponderance of the evidence that they “would have
made the same decision absent the protected conduct for reasons reasonably
related to penological interest.” Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir.
2002)(internal quotation and citation omitted). When analyzing a retaliation
claim, it must be recognized that the task of prison administrators and staff is
difficult, and the decisions of prison officials require deference, particularly where
4

Only where the facts of a particular case are “unusually suggestive” of a retaliatory motive will
temporal proximity, standing alone, support an inference of causation. Krouse v. American
Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
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prison security is concerned. Rauser, 241 F.3d at 334.
Here Aulisio raises claims of retaliation with respect to the taking of his
legal material and Chiampi’s alleged change of heart when she would not return
the second folder after he threatened litigation. Despite the existence of some
disputed facts, it is apparent to this Court that entry of summary judgment is
appropriate with respect to the assertions of retaliation.
First, it is undisputed that there was no animosity between Plaintiff and the
Defendants prior to the incident. Second, the undisputed record shows that at the
time of the incident Aulisio was supposed to be performing his duties as legal
reference aide. However, he was in fact working on a manuscript which he
apparently intended to have published. As such, Plaintiff’s possession of his
personal legal materials at that point in time was in violation of DOC regulations.
Furthermore, Aulisio ignored a direct order to assist in cleaning the library and
initially lied about his activities there. Chiampi and Stroup also indicate that in
their opinion, Aulisio became confrontational and argumentative.
Thereafter, Plaintiff alleges that some materials were going to be returned to
him until he expressed an intention to initiate legal action against Chiampi. The
declarations of Chiampi and Stroup do not indicate that such an exchange
occurred. Rather, they state that a single folder was taken by Chiampi after the
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Defendant was found violating DOC regulations and had become confrontational
and argumentative. Chiampi indicates that this folder was given to Stroup.
According to the Principal when Aulisio admitted that the seized materials were
personal, Chiampi told him he could get his papers from Stroup and return to his
cell. After refusing to accept the material from Stroup, Plaintiff told Chaimpi that
a folder was missing and he was going to pursue legal action.
Stroup states that after she received the materials from Chiampi she made a
determination that they should be confiscated and a misconduct should be issued
to the inmate. Both Defendants deny destroying any of Plaintiff’s personal
materials. As such, it is apparent that Plaintiff’s participation in constitutionally
protected conduct was neither a substantial nor motivating factor in the decision to
discipline him.
The initial Rauser v. Horn requirement requires that Aulisio show that he
was engaged in a constitutionally protected activity. It is undisputed that there
was no animosity between Plaintiff and the Defendants prior to the incident.
Second, the undisputed record also shows that at the time of the incident Plaintiff
was supposed to be performing his duties as legal reference aide. The undisputed
record further shows that he was in fact working on a manuscript which he
intended to have published.
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In this case the initial confiscation of Plaintiff’s materials occurred before
he voiced any intent to file a grievance; as such, Aulisio was not engaged in a
constitutionally protected conduct. See Watson v. Rozum, 834 F. 3d 417, 422 (3d
Cir. 2016). Aulisio has failed to satisfy the first prong of Rauser with respect to
any of his contentions of retaliation related to the initial taking of his materials.
The second prong of Rauser requires that Aulisio allege that he suffered
adverse action sufficient to deter a person of ordinary firmness from exercising his
First Amendment rights. It is undisputed that the materials which Chiampi
allegedly refused to return were thereafter offered back to the Plaintiff by his Unit
Manager and that Aulisio refused to accept them. Here, the Rauser adverse action
requirement was not met since the alleged retaliatory act was de minimis. See
McKee v. Hart, 436 F.3d 165, 170-71 (3d Cir. 2006).
The third Rauser prong requires that a prisoner prove that his
constitutionally protected conduct was a substantial or motivating factor in the
decision to discipline him. It is apparent that the actions taken against Aulisio
resulted from his admitted violation of DOC regulations by doing personal work
and bringing personal materials into the library while on duty. Moreover, the
undisputed record clearly establishes that Plaintiff falsely told Chiampi and Stroup
that the material at issue was work related when it was not and then engaged in
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conduct which they deemed confrontational and argumentative. In his deposition
testimony, Plaintiff admits that when Chiampi offered to return a folder of legal
materials, he did not accept the offer but rather accused the her of withholding a
portion of his legal documents. See Doc. 72, p. 31.
It is my determination that none of the actions taken against Plaintiff on
May 24, 2012 were retaliatory. Rather, these disciplinary actions were based upon
his admitted violations of DOC rules and his conduct and behavior during the
incident. With respect to the surviving claim of retaliation against Chiampi,
Plaintiff did not satisfy the adverse action prong of Rauser. Nor has he satisfied
the third prong of Rauser since it was not his exercise of constitutionally protected
conduct which was a substantial or motivating factor here, but rather his refusal to
accept the return of the folder/contraband. Summary judgment will be granted as
to the retaliation claim against Chaimpi.
C.

Access to the Courts

Defendants next argue that entry of summary judgment is appropriate
because the Plaintiff cannot prove a denial of access to the courts claim since the
undisputed facts show that he did not suffer an actual injury to a non-frivolous
legal claim. See Doc. 71, p. 8. Aulisio counters that the confiscation of his legal

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materials interfered with his ability to initiate future litigation.5 See Doc. 75, pp.45.
It is well-settled that prisoners enjoy a constitutional right of meaningful
access to the law libraries, legal materials, or legal services. Bounds v. Smith, 430
U.S. 817, 821-25 (1977). Inmates have a right to send and receive legal mail
which is uncontroverted and implicates both First and Sixth Amendment concerns,
through the right to petition the government and the right of access to the courts.
“When legal mail is read by prison employees, the risk is of a 'chill,' rendering the
prisoner unwilling or unable to raise substantial legal issues critical of the prison
or prison employees.” Proudfoot v. Williams, 803 F. Supp. 1048, 1052 (E.D. Pa.
1992).
The United States Supreme Court in Lewis v. Casey, 518 U.S. 343, 351-54
(1996), clarified that an inmate plaintiff, in order to set forth a viable claim under
Bounds, must demonstrate that a non-frivolous legal claim had been frustrated or
was being impeded. A plaintiff must also allege an actual injury to his litigation
efforts. Under the standards mandated by Lewis, in order for an inmate to state a
claim for interference with his legal work, he must demonstrate that he has

5

Plaintiff indicates that the missing folder included a case which would allow him to prove
exhaustion. See Doc. 1, ¶ 11. There is no non-exhaustion argument pending before this Court.
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suffered actual injury. See Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir.
1997)(concluding that Lewis effectively requires a showing of actual injury where
interference with legal mail is alleged).
Following a detailed review of the undisputed record, it is clear to this Court
that Aulisio has failed to adequately demonstrate that he suffered any injury to a
non-frivolous legal claim as required under Lewis. Rather, the Plaintiff asserts
that the confiscated personal legal materials were part of a handbook for pro se
inmate litigants which he was writing. Plaintiff does not dispute that at the time of
the confiscation, he had no pending litigation, did not miss any legal deadlines,
and was not using the confiscated materials to prepare a lawsuit. Moreover,
Aulisio’s circular argument that the confiscation interfered with his future ability
to pursue litigation based upon the confiscation itself is meritless. The denial of
the opportunity to continue work on the writing of a book simply does not set forth
a viable claim of denial of access to the courts. Summary judgment will be
granted with respect to the claim of denial of access to the courts.
D.

Freedom of Speech

Defendants next argue that there was also no violation of Aulisio’s First
Amendment right of freedom of speech. See Doc. 71, p. 11. They explain that the
confiscation of Plaintiff’s legal materials was undertaken solely because he was
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using those documents in violation of prison rules. Specifically, inmate library
workers such as Aulisio are prohibited from working on personal matters while on
duty. Since the confiscation was reasonably related to a legitimate penological
interest (i.e. compliance with prison regulations), Defendants conclude that there
was no constitutional violation.
Inmates “do not forfeit all constitutional protections by reason of their
conviction and confinement in prison.” DeHart v. Horn, 227 F.3d 47, 50 (3d Coir.
2000) (quoting Bell v. Wolfish, 441 U.S. 441 U.S. 520, 545 (1979)). Prisoners, as
is well recognized, must be afforded “reasonable opportunities” to exercise their
freedoms guaranteed by the First Amendment. Cruz v. Beto, 405 U.S. 319, 322
n.2 (1972).
When confronted with a similar issue, the United States Court of Appeals
for the Third Circuit recognized that any restrictions placed on an inmate’s First
Amendment rights must be accomplished in a neutral manner. Abu-Jamal v.
Price, 154 F.3d 128, 133 (3d Cir. 1998). It held that a limitation placed on an
inmate’s right to free speech, if “a valid response to a potential security threat”
was constitutionally acceptable. Id. at 134.
The United States Supreme Court has held that “when a prison regulation
impinges on inmates' constitutional rights, the regulation is valid if it is reasonably
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related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89
(1987); see also O'Lone v. Shabazz, 482 U.S. 342 (1987)(reiterating recognition of
the Turner standards as being the applicable test for determining the
constitutionality of prison regulations). These interests include: “deterrence of
crime, rehabilitation of prisoners, and institutional security.” O’Lone, 482 U.S. at
348. This standard implies that a balancing test must be applied as between the
prisoner's claims of constitutional infringement and the prison’s need for internal
order and security.
In Turner, the Supreme Court set forth four factors to consider in this area:
(1) is there a “'valid, rational connection' between the prison regulation and the
legitimate governmental interest put forward to justify it” (citation omitted), 482
U.S. at 89; (2) does the prisoner have alternate means of “exercising the right that
remain open to prison inmates,” Id. at 90; (3) what “impact” would
“accommodation of the asserted constitutional right have on guards and other
inmates, and on the allocation of prison resources generally,” Id.; and (4) what
“ready alternatives” to the prison regulation exist. Id.
This Court agrees that a prison regulation barring inmate library workers
from working on personal matters while on duty is rationally connected to a
legitimate penological objective. Specifically, it requires those prisoners to focus
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on their job duties. Since Plaintiff could work on his personal matters while not
on duty, he had the alternative means required by Turner. It also noted that if
inmate library workers were permitted to ignore their assigned duties and could do
as they please while on duty it would have an adverse impact on both prison staff
and other prisoners. Accordingly, I conclude that the underlying prison regulation
satisfied the requirements of Turner.
This is not a case where a prisoner was punished for exercising his right of
freedom of speech, as has been suggested. See Castle v. Clymer, 15 F. Supp.2d
640 (E. D. Pa. 1998). Rather, the undisputed facts show that the confiscation of
legal materials occurred because Plaintiff was engaging in personal activity when
he was supposed to be performing duties related to his prison employment; he then
attempted to cover up his misconduct. Summary judgment will be granted with
respect to the First Amendment claim.
E.

Property Loss

As discussed above, Plaintiff’s action seeks relief based upon his contention
that the Defendants intentionally caused the loss of personal materials including a
manuscript which he had written. It is well settled that a civil rights claim cannot
be brought to vindicate a prisoner’s right to property when the deprivation occurs
as a result of a tortious and unauthorized act and where an adequate remedy exists
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to compensate those who have suffered tortious loss. Parratt v. Taylor, 451 U.S.
527, 543-544 (1981). The United States Supreme Court extended Parratt to
include intentional deprivations of property, holding that where a prisoner has an
adequate post-deprivation remedy for any loss suffered to his or her property, a
claim under § 1983 is not available. Hudson v. Palmer, 468 U.S. 517, 532-533
(1984).
In this matter, Plaintiff has alleged that there was an intentional seizure of
his personal property. However, Aulisio may not obtain relief via a civil rights
action for his loss of property if he has an adequate alternative remedy. As
acknowledged by the Complaint, Aulisio has sought administrative relief
regarding his purported loss of property via the DOC’s multi-tiered administrative
grievance system. Plaintiff can also file an action in Pennsylvania state court
regarding his deprivation of personal property claim. Since Plaintiff has adequate
post deprivation remedies, any claim for loss of personal property cannot proceed.
See Mattis v. Dohman, 260 Fed. Appx. 458, 461 (3d Cir. 2008).
F.

Conspiracy

Plaintiff also asserts that the Defendants participated in a conspiracy to
subject him to a false misconduct charge and loss of his manuscript. Defendants
contend that Plaintiff cannot prove a civil conspiracy. See Doc. 71, p. 14.
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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 further noted that “[a] conspiracy claim must . . . contain
supportive factual allegations.” Rose, 871 F.2d at 366. Moreover, “[t]o plead
conspiracy adequately, a plaintiff must set forth allegations that address the period
of the conspiracy, the object of the conspiracy, and the certain actions of the
alleged conspirators taken to achieve that purpose.” Shearin v. E.F. Hutton
Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989).
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.
Consequently, a plaintiff must 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. Id.; Rose, 871 F.2d at 366; Young, 926 F.2d at 1405 n.16;
Chicarelli v. Plymouth Garden Apartments, 551 F. Supp. 532, 539 (E.D. Pa.
1982). Where a civil rights conspiracy is alleged, there must be some specific
facts in the complaint which tend to show a meeting of the minds and some type of
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concerted activity. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). A
plaintiff cannot rely on subjective suspicions and unsupported speculation. Young
v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991).
Based upon the undisputed record, it is clear that Plaintiff has failed to state
a viable conspiracy claim against any Defendant. Aulisio has not alleged any
facts showing communication, cooperation, or command among any Defendants
from which an agreement could be inferred. Rather, it appears to this Court that
Aulisio is simply speculating that the alleged confiscation of his manuscript and
an institutional misconduct charge was the result of a conspiracy because
Defendant Chiampi’s husband holds a supervisory position within the DOC.
However, there are no averments of fact set forth in the Complaint that reasonably
suggest the presence of an agreement or concerted activity between any
correctional staff or state officials to violate Plaintiff’s civil rights. The
unsupported, speculative allegation of conspiracy cannot survive the request for
summary judgment.

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An appropriate Order follows.6

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

6

Also pending before the Court is Plaintiff’s third motion seeking recusal of the undersigned.
See Doc. 85. For the same reasons set forth in this Court’s December 9, 2015 and February 1,
2017 Orders, Plaintiff’s latest request will likewise be denied
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