Fann, Jr. v. Salamon et al

Filing 34

MEMORANDUM (Order to follow as separate docket entry) re: 27 MOTION to Dismiss for Failure to State a Claim filed by Gregory Little, James Barnacle, Laurel Harry, D.R. Davis, Bobby-Jo Salamon, and Torres. Signed by Chief Judge Matthew W. Brann on 1/3/2025. (jr)

I N T H E U NI T E D S T A T E S DI S T RI C T C O U R T
F O R T H E MI D D L E DI S T RI C T O F P E N N S Y L V A NI A
G R E G O R Y O. F A N N, J R.,

N o. 4: 2 3- C V- 0 1 7 8 7

Pl ai ntiff,

( C hi ef J u d g e Br a n n)

v.
B O B B Y-J O S A L A M O N, et al. ,
D ef e n d a nts.
M E M O R A N D U M O PI NI O N
J A N U A R Y 3 ,2 0 2 5
Pl ai ntiff Gr e g or y O. F a n n, Jr., is c urr e ntl y i n c ar c er at e d at t h e St at e
C orr e cti o n al I nstit uti o n ( S CI) Pi n e Gr o v e, l o c at e d i n I n di a n a, P e n ns yl v a ni a. H e
fil e d t h e i nst a nt pr o s e S e cti o n 1 9 8 31 a cti o n i n l at e 2 0 2 3, cl ai mi n g c o nstit uti o n al
vi ol ati o ns b y m ostl y hi g h-l e v el pris o n offi ci als at t h e P e n ns yl v a ni a D e p art m e nt of
C orr e cti o ns ( D O C). Pr es e ntl y p e n di n g is

D ef e n d a nts’ m oti o n t o dis miss F a n n’s

a m e n d e d c o m pl ai nt p urs u a nt t o F e d er al R ul e of Ci vil Pr o c e d ur e 1 2( b)( 6). T h e
C o urt will gr a nt i n p art a n d d e n y i n p art D ef e n d a nts’ m oti o n.
I.

B A C K G R O U N D
F a n n’s l a ws uit c o n c er ns e v e nts t h at all e g e dl y o c c urr e d i n 2 0 2 2 at S CI

R o c k vi e w a n d S CI F a y ett e. A c c or di n g t o F a n n, o n A pril 2 5, 2 0 2 2, w hil e h e w as
1

4 2 U. S. C. § 1 9 8 3. S e cti o n 1 9 8 3 cr e at es a pri v ate c a us e of a cti o n t o r e dr ess c o nstit uti o n al
wr o n gs c o m mitt e d b y st at e offi ci al s. T h e st at ut e is n ot a s o ur c e of s u bst a nti v e ri g hts; it s er v es
as a m e c h a nis m f or vi n di c ati n g ri g hts ot h er wis e pr ot e ct e d b y f e d er al l a w. S e e G o nz a g a U ni v.
v. D o e , 5 3 6 U. S. 2 7 3, 2 8 4- 8 5 ( 2 0 0 2).

incarcerated at SCI Rockview, inmates on “A-block” participated in a protest,
causing the facility to go on lockdown.2 Fann recalls that he was housed on “Dblock” at that time and eventually figured out that the facility had been locked
down when he noticed the lack of inmate movement.3
The following day, DOC officials from “Central Office” came to D-block
and interviewed some of the inmates.4 Fann was interviewed by a female official
from SCI Coal Township, and he informed her about a previous grievance
(#972434) he had filed at SCI Rockview in March 2022 regarding hazardous
conditions on the block and various staff misconduct.5
The next day, April 27, Fann was escorted to the “Education building” for
another interview.6 He was questioned by a “Mr. Almo” about the inmate protest
as well as the conditions at SCI Rockview.7 Fann responded that he knew very
little about the protest, only that some of the inmates were upset because prison
officials were considering taking away “Night time blockout,” (i.e., evening outof-cell time).8 Fann also voiced his complaints about the conditions at SCI
Rockview, including serious misconduct by several corrections officers.9 Fann

2
3
4
5
6
7
8
9

Doc. 26 ¶ 13.
Id.
Id. ¶ 14.
Id. ¶¶ 10, 14; Doc. 26-1 at 1.
Doc. 26 ¶ 15.
Id. ¶ 16.
Id.
Id. ¶¶ 16, 17.
2

told Almo that certain officers on D-block “like to have sex in the hub on the unit,
in the bathroom, or in the counselor’s office” while working, and he reported other
sexually inappropriate or physically abusive behavior by multiple D-block
officers.10
The following day—April 28—Fann was transferred to SCI Fayette.11 He
was placed in the RHU at SCI Fayette, apparently in administrative custody.12 On
May 5, 2022, Fann received a misconduct (D539215) for “threatening an employee
or their family with bodily harm” and “engaging or encouraging unauthorized
group activity.”13 The misconduct was issued on May 4, 2022, by defendant
Captain D.R. Davis and stated that Fann had been identified by the DOC’s Bureau
of Investigations and Intelligence (BII) as being involved in a plot to take SCI
Rockview officials hostage during “an unauthorized inmate protest on April 25,
2022.”14
Fann denied the charges asserted in the misconduct, pointing out that he had
alibis for his whereabouts on April 25 (the day of the protest), and that he was
housed on D-block, not A-block—where the protest occurred.15 On May 10, Fann
attended a hearing with a Disciplinary Hearing Officer (DHO), where he asserted

10
11
12
13
14
15

Id. ¶¶ 17-19.
Id. ¶ 20.
Id. ¶¶ 20-21.
Id. ¶ 21; Doc. 26-1 at 5.
Doc. 26 ¶ 21; Doc. 26-1 at 5.
See Doc. 26 ¶ 22; Doc. 26-1 at 6.
3

his innocence in the protest and hostage plot and alleged that the misconduct had
been fabricated by Davis as retaliation for speaking out about the conditions and
staff misconduct at SCI Rockview.16 It appears that the May 10 hearing was
continued “to obtain additional information.”17
On May 18, 2022, the DHO resumed the hearing and determined that Fann
had committed both charged offenses.18 The DHO relied primarily on a May 13
in-camera interview with defendant BII Major Torres as to the reliability of a
“Confidential Human Source” (CHS) and the content of that source’s report.19
According to Torres, the informant had identified Fann as one of the inmates
involved with planning the protest and hostage incident and was “going to be
involved in taking hostages and protesting on D Block had the incident [gone]
according to plan.”20 Fann was sentenced to an aggregate punishment of 120 days’
disciplinary custody.21
In his initial complaint, Fann provided more information regarding the
recommendation—allegedly made by SCI Rockview officials—to be placed in the
“Security Threat Group Management Unit” (STGMU) at SCI Fayette.22 In the
original complaint and attached documents, Fann alleged that SCI Rockview
16
17
18
19
20
21
22

Doc. 26 ¶ 22.
Doc. 26-1 at 6.
Id. at 7-8.
See id. at 6, 7.
See id. at 6.
Id. at 7; Doc. 26 ¶ 24.
See Doc. 21 at 5.
4

officials had recommended that he be placed in the STGMU as retaliation for his
written and oral complaints about SCI Rockview.23 The documents he attached to
his complaint indicated that STGMU placement was officially “approved” on July
27, 2022.24 Fann mentions his STGMU recommendation and placement in his
amended complaint,25 but fails to include most of the explicit allegations or
documents provided as part of his original complaint.
In that initial complaint, Fann sued six defendants: SCI Rockview
Superintendent Bobby-Jo Salamon, Former DOC Secretary Gregory Little, Captain
D.R. Davis, BII Major Torres, DOC Secretary Laurel Harry, and BII Director
James Barnacle. Fann asserted the following Section 1983 claims: (1) an alleged
Eighth Amendment violation regarding his conditions of confinement at SCI
Fayette; (2) an alleged Fourteenth Amendment procedural due process violation
regarding the misconduct process; (3) a Fourteenth Amendment claim of
deprivation of property without due process; and (4) a First Amendment retaliation
claim regarding his transfer, the misconduct, and his STGMU designation.26
Defendants moved to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).27 The Court granted that motion. Specifically, the Court

23
24
25
26
27

Id.
See Doc. 1-1 at 33-34.
See Doc. 26 ¶¶ 4, 24, 30, 32, 46, 52.
See Doc. 1 at pp. 20, 22-46.
Doc. 16.
5

dismissed all claims against four of the six Defendants (Salamon, Little, Harry, and
Barnacle) for lack of personal involvement in the alleged constitutional
misconduct.28 The Court then examined the sufficiency of each of Fann’s Section
1983 claims.
Fann’s Eighth Amendment conditions-of-confinement claim involved
alleged conditions at SCI Fayette from April 28 to July 28, 2022, including lack of
showers, denial of recreation, and denial of hygiene products.29 The Court
assumed for the sake of argument that Fann had alleged a sufficiently serious
deprivation, but dismissed the conditions-of-confinement claim because Fann had
not plausibly alleged deliberate indifference to the purported conditions by any
named Defendant.30
The Court next examined and dismissed Fann’s Fourteenth Amendment
procedural due process claim.31 As the Court explained, Fann had alleged that he
was sanctioned with 120 days’ disciplinary custody. Such a sanction, however, did
not (and could not) implicate a protected liberty interest, and thus Fann’s
procedural due process allegations failed to state a claim upon which relief may be
granted.32

28
29
30
31
32

See Doc. 21 at 8-9.
Id. at 11.
Id.
Id. at 12-13.
Id.
6

Fann’s Fourteenth Amendment claim alleging deprivation of property
without due process likewise fell short. As the Court admonished, Fann had access
to adequate state post-deprivation remedies, so he failed to state a plausible
constitutional claim for deprivation of property.33 The deprivation-of-property and
procedural due process claims were dismissed with prejudice, as granting leave to
amend would be futile.34
Finally, the Court reviewed Fann’s First Amendment retaliation claims.
Those claims were found to be deficient because Fann had not properly alleged
causation—the third element of a prima facie retaliation case.35 In other words,
Fann had failed to “allege who took most of the adverse actions or why those
officials would retaliate against him for his protected conduct.”36
The Court granted leave to amend as to Fann’s conditions-of-confinement
and retaliation claims.37 Fann was specifically admonished that he would not be
permitted to reassert claims that had been dismissed with prejudice, and that he
could not combine unrelated claims against different defendants in violation of
Federal Rule of Civil Procedure 20(a)(2).38

33
34
35
36
37
38

Id. at 13-14.
Id. at 18-19.
Id. at 14-17.
Id. at 15.
Id. at 18-20.
Id. at 19.
7

Fann timely filed an amended complaint.39 He sues the same six
Defendants,40 this time asserting the following claims: (1) Eighth Amendment
conditions of confinement regarding his placement in “solitary confinement” at
SCI Fayette41; (2) Fourteenth Amendment procedural due process regarding his
disciplinary proceedings and STGMU placement42; and (3) First Amendment
retaliation concerning his grievance and oral complaints about SCI Rockview
conditions and staff misconduct.43
Defendants once again move to dismiss for failure to state a claim upon
which relief may be granted.44 Their Rule 12(b)(6) motion is ripe for disposition.
II.

STANDARD OF REVIEW
In deciding a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), courts should not inquire “whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims.”45 The
court must accept as true the factual allegations in the complaint and draw all
reasonable inferences from them in the light most favorable to the plaintiff.46 In
addition to the facts alleged on the face of the complaint, the court may also
39
40
41
42
43
44
45
46

Doc. 26.
Id. ¶¶ 4-9.
Id. ¶¶ 26-31.
Id. ¶¶ 32-40.
Id. ¶¶ 41-47.
Doc. 27.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.
1996).
Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).
8

consider “exhibits attached to the complaint, matters of public record, as well as
undisputedly authentic documents” attached to a defendant’s motion to dismiss if
the plaintiff’s claims are based upon these documents.47
When the sufficiency of a complaint is challenged, the court must conduct a
three-step inquiry.48 At step one, the court must “tak[e] note of the elements [the]
plaintiff must plead to state a claim.”49 Second, the court should distinguish wellpleaded factual allegations—which must be taken as true—from mere legal
conclusions, which “are not entitled to the assumption of truth” and may be
disregarded.50 Finally, the court must review the presumed-truthful allegations
“and then determine whether they plausibly give rise to an entitlement to relief.”51
Deciding plausibility is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”52
Because Fann proceeds pro se, his pleadings are to be liberally construed
and his amended complaint, “however inartfully pleaded, must be held to less

47
48
49
50
51
52

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and
quotation marks omitted) (footnote omitted).
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).
Id. (quoting Iqbal, 556 U.S. at 679).
Id. (quoting Iqbal, 556 U.S. at 679).
Iqbal, 556 U.S. at 681.
9

stringent standards than formal pleadings drafted by lawyers[.]”53 This is
particularly true when the pro se litigant, like Fann, is incarcerated.54
III.

DISCUSSION
Defendants contend that Fann’s amended complaint suffers from many of

the same material pleading deficiencies as his original complaint. After careful
consideration, the Court finds that only Fann’s retaliation claims may proceed.
A.

Personal Involvement

It is well established that, in Section 1983 actions, liability cannot be
“predicated solely on the operation of respondeat superior.”55 Rather, a Section
1983 plaintiff must aver facts that demonstrate “the defendants’ personal
involvement in the alleged misconduct.”56 Personal involvement can include direct
wrongful conduct by a defendant, but it can also be demonstrated through
allegations of “personal direction” or of “actual knowledge and acquiescence”;
however, such averments must be made with particularity.57 Furthermore, it is
equally settled that involvement in the post-incident grievance process alone does
not give rise to Section 1983 liability.58
53
54
55
56
57
58

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009) (affirming same principle in Bivens context).
Dooley, 957 F.3d at 374 (citing Rode, 845 F.2d at 1207).
Id. (quoting Rode, 845 F.2d at 1207).
See id. at 374 (affirming dismissal of claims against prison officials for lack of personal
involvement when officials’ “only involvement” was “their review and denial of [plaintiff]’s
grievance”); Lewis v. Wetzel, 153 F. Supp. 3d 678, 696-97 (M.D. Pa. 2015) (collecting cases);
10

Fann sues the same six Defendants, most of whom are high-level DOC
officials. Once again, Fann’s amended complaint is essentially silent as to the
alleged misconduct of defendants Harry and Barnacle. Although Fann asserts that
these high-level officials are responsible for the “care, custody, and control” of all
DOC inmates and staff,59 this is a quintessential respondeat superior allegation,
which does not give rise to Section 1983 liability. There is no allegation in the
amended complaint that Harry or Barnacle took unconstitutional action against
Fann. Fann even concedes that Barnacle does not have “a direct connection to” his
lawsuit.60 Accordingly, because Fann again does not allege how these Defendants
were personally involved in the incidents underlying his lawsuit, they must be
dismissed pursuant to Rule 12(b)(6).
B.

Eighth Amendment Conditions of Confinement

“[T]he Constitution does not mandate comfortable prisons, and prisons . . .
which house persons convicted of serious crimes[] cannot be free of discomfort.”61
Nevertheless, the state cannot subject an inmate to cruel and unusual punishment

59
60
61

Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006) (nonprecedential); Alexander v.
Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005) (nonprecedential) (explaining that prisoner’s
claims against certain defendants were “properly dismissed” because the allegations against
them “merely assert their involvement in the post-incident grievance process”).
See Doc. 26 ¶¶ 6, 9.
Id. ¶ 54.
Thomas v. Tice, 948 F.3d 133, 139 (3d Cir. 2020) (second alteration in original) (quoting
Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
11

or “inhumane treatment,” such as deprivation of “identifiable human need[s]” like
“food, clothing, shelter, medical care, and reasonable safety[.]”62
To prevail on an Eighth Amendment conditions-of-confinement claim, a
prisoner-plaintiff must plausibly allege both objective and subjective elements.63
Objectively, the inmate must demonstrate that “the prison official deprived the
prisoner of the minimal civilized measure of life’s necessities,” often referred to as
a “sufficiently serious” deprivation.64 “The benchmark for alleging such
deprivation is not that the inmate was merely uncomfortable; he or she must show
they [were] ‘incarcerated under conditions posing a substantial risk of serious
harm.’”65
Subjectively, the prisoner must show that “the prison official acted with
deliberate indifference” to the prisoner’s “health or safety.”66 Deliberate
indifference means that the defendant “acted or failed to act despite having
knowledge that her actions or inaction, as the case may be, would subject the
inmate to a substantial risk of serious harm.”67 Deliberate indifference is a high
bar and requires a plaintiff to show that the defendant “recklessly disregard[ed] a
substantial risk of serious harm.”68
62
63
64
65
66
67
68

See Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted).
See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 226 (3d Cir. 2015)
Id. (citing Farmer v. Brennan, 511 U.S. 825, 843 (1994); Wilson, 501 U.S. at 297).
Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2023) (quoting Farmer, 511 U.S. at 834).
Chavarriaga, 806 F.3d at 226 (citing Farmer, 511 U.S. at 834).
Id. at 227 (citing Farmer, 511 U.S. at 842).
Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citation omitted).
12

Fann’s amended complaint changes tact from his original pleading. In his
amended complaint, he alleges that he has unspecified “mental health conditions,”
and that being kept in solitary confinement at SCI Fayette for a substantial period
of time violated his Eighth Amendment rights.69
The problem with this new iteration of his conditions-of-confinement claim
is that it cannot be asserted as part of the instant lawsuit. As the Court clearly
explained in its prior opinion, Federal Rule of Civil Procedure 20(a)(2) prohibits
joinder of unrelated claims against different defendants.70 Fann has not plausibly
alleged that any SCI Rockview or high-level DOC official kept him in solitary
confinement at SCI Fayette for an extended period of time. Thus, he has failed to
allege deliberate indifference to his health and safety by any named Defendant, and
dismissal of his conditions-of-confinement is required. Such a claim, if Fann
desires to purse it, must be brought against the appropriate decisionmakers at SCI
Fayette in a separate lawsuit and filed in the appropriate court.71
C.

Fourteenth Amendment Procedural Due Process

Fann’s Fourteenth Amendment procedural due process claim in his original
complaint was dismissed with prejudice.72 Fann, moreover, was explicitly
instructed that he was not permitted to reassert any claims in his amended

69
70
71
72

Doc. 26 ¶¶ 26-31.
See Doc. 21 at 19-20.
See 28 U.S.C. § 1391(b).
See Doc. 21 at 12-13, 18-19.
13

complaint that had been dismissed with prejudice.73 Fann appears to have
disregarded the Court’s direction, reasserting a similar procedural due process
claim in his amended complaint.74 The Court will reiterate why Fann’s due
process claim cannot survive Rule 12(b)(6) scrutiny.
To plausibly state a Section 1983 claim for infringement of procedural due
process rights, “a plaintiff must allege that (1) he was deprived of an individual
interest that is encompassed within the Fourteenth Amendment’s protection of
‘life, liberty, or property,’ and (2) the procedures available to him did not provide
‘due process of law.’”75 If a plaintiff cannot identify a protected interest that is “at
stake,” the analysis is at an end.76
The gravamen of Fann’s procedural due process claim is that he was charged
with an allegedly fabricated misconduct, convicted of the charged offenses without
sufficient evidence, and given 120 days’ disciplinary custody as a punishment.
Fann cannot state a procedural due process claim because he has not identified a
protected liberty interest that is at stake.
The Supreme Court of the United States has held that disciplinary
segregation alone—under conditions that mirror those “imposed upon inmates in

73
74
75
76

Id. at 19.
See Doc. 26 ¶¶ 32-40.
Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki,
227 F.3d 107, 116 (3d Cir. 2000)).
See Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Hill, 455 F.3d at 234-35.
14

administrative segregation and protective custody”—generally does not reflect an
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life” such that it implicates a protected liberty interest under the
Fourteenth Amendment.77 And the United States Court of Appeals for the Third
Circuit has repeatedly held that disciplinary segregation for periods longer than
that which Fann experienced does not rise to the level of an atypical and significant
hardship.78 Therefore, because Fann has not identified a protected liberty interest
that is at stake for his Fourteenth Amendment procedural due process claim, the
analysis is at an end and this claim must again be dismissed.79
D.

First Amendment Retaliation

Although a prisoner’s constitutional rights are necessarily circumscribed, an
inmate still retains First Amendment protections when they are “not inconsistent”
with prisoner status or with the “legitimate penological objectives of the
corrections system.”80 To state a First Amendment retaliation claim, a plaintiff

77
78

79

80

Sandin v. Conner, 515 U.S. 472, 484, 486 (1995).
See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (seven months); Torres v. Fauver,
292 F.3d 141, 151 (3d Cir. 2002) (135 days); Griffin v. Vaughn, 112 F.3d 703, 705-07 (3d Cir.
1997) (fifteen months); Dunbar v. Barone, 487 F. App’x 721, 725 (540 days).
To the extent that Fann asserts in his amended complaint that his transfer to the STGMU
violated his procedural due process rights, that claim fails for identical reasons. “[T]ransfer to
the STGMU does not impose an atypical and significant hardship in relation to the ordinary
incidents of prison life,” Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002), and thus
“does not give rise to a protected liberty interest under the Due Process Clause,” Harris v.
Ricci, 595 F. App’x 128, 131 (3d Cir. 2014) (nonprecedential).
Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d
775, 781 (3d Cir. 2010)).
15

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.81
The only cause of action in the amended complaint that survives Rule
12(b)(6) scrutiny is Fann’s First Amendment retaliation claim. Fann plausibly
alleges that, after he filed a grievance complaining about conditions at SCI
Rockview (including staff misconduct) and spoke directly to DOC investigators
about these same issues, he was transferred to a different prison, charged with a
fabricated misconduct, and recommended for placement in the STGMU.
Fann has clearly identified protected First Amendment conduct: filing a
formal grievance and reporting staff misconduct to an investigator. He has also
plausibly alleged adverse actions taken against him: transfer to a distant prison
farther away from his family,82 a fabricated misconduct resulting in disciplinary
custody, and—possibly—the STGMU recommendation.

81
82

Id. (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)); Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003) (quoting Rauser, 241 F.3d at 333).
The specific allegations regarding distance from his family were raised in the original
complaint. See Doc. 1 at 22, 26. The Court will liberally construe Fann’s amended complaint
as also asserting that his transfer to SCI Fayette took him farther away from his family.
16

In his amended complaint—as opposed to his original pleading—Fann
plausibly alleges causation as to two Defendants. First, Fann asserts that
Superintendent Salamon learned about Fann’s grievance and complaints to
investigators and made the decision to transfer him to SCI Fayette and to
recommend him for the STGMU.83 Fann also alleges that Captain Davis was a
“co-worker and friend” of several of the D-block officials whom Fann reported for
improper conduct, and therefore was motivated to issue Fann a fabricated
misconduct.84 Accordingly, Fann’s First Amendment retaliation claims may
proceed against defendants Salamon and Davis. His retaliation claims against all
other Defendants will be dismissed for lack of causation.
E.

Leave to Amend

Generally, “in forma pauperis plaintiffs who file complaints subject to
dismissal under Rule 12(b)(6) should receive leave to amend unless amendment
would be inequitable or futile.”85 Further leave to amend will be denied because
Fann has failed to cure numerous deficiencies with his pleadings even after
“amendments previously allowed.”86 This case, therefore, will continue only as to
Fann’s First Amendment retaliation claims against defendants Salamon and Davis.

83
84
85
86

Doc. 26 ¶¶ 43, 46, 47, 52.
Id. ¶¶ 44-45, 47.
Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
See Foman v. Davis, 371 U.S. 178, 182 (1962); Jones v. Unknown D.O.C. Bus Driver &
Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding that, where inmate plaintiff “has
already had two chances to tell his story,” providing “further leave to amend would be futile”).
17

IV.

CONCLUSION
Based on the foregoing, the Court will grant in part and deny in part

Defendants’ motion (Doc. 27) to dismiss under Federal Rule of Civil Procedure
12(b)(6). An appropriate Order follows.
BY THE COURT:

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

18