HENDERSON v. BICKEL et al

Filing 61

MEMORANDUM OPINION that 35 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by DORINA VARNER, LINDA TROUT, MARTUCCI, MICHAEL CLARK, CINDY CLARK, KUSIAK, GILES, JOANNE BICKEL, SCOTT BRECHENRIDGE, WETZEL will be granted in part and denied in part. An appropriate Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 2/2/18. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WARREN HENDERSON,
Plaintiff
v.
JOANNE BICKEL, et al.,
Defendants

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Civil Action No. 17-98 Erie

Magistrate Judge Baxter

MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter

I.

INTRODUCTION
A.

Relevant Procedural and Factual History

Plaintiff Warren Henderson, a prisoner incarcerated at the State Correctional Institution at
Albion, Pennsylvania ("SCI-Albion"), initiated this civil rights action on April 25, 2017, by
filing a pro se complaint pursuant to 42 U.S.C. § 1983 [ECF No. 4]. Plaintiff subsequently filed a
supplemental complaint on or about August 31, 2017 [ECF No. 40], which added further
allegations against the original Defendants. Named as Defendants are the following individuals,
all of whom were employed at SCI-Albion during the relevant time periods at issue: Librarian
Assistant Joanne Bickel ("Bickel"); Kitchen Supervisors Linda Trout ("Trout") and Scott
Breckenridge ("Breckenridge"); Grievance Coordinator Martucci ("Martucci"); Grievance
Officers Giles ("Giles") and Kusiak ("Kusiak"); Corrections School Principal Cindy Clark
("Clark"); Superintendent Michael Clark ("Supt. Clark"); Chief Grievance Officer Dorina Varner
("Varner"); and Pennsylvania Department of Corrections Secretary Wetzel ("Wetzel").

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The parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF
Nos. 14, 57].

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In general, Plaintiff claims that Defendants have retaliated against him for exercising his
constitutional rights and have discriminated against him based on his race in violation of the
Fourteenth Amendment's equal protection clause. In particular, Plaintiff alleges that he was
given a false misconduct for assaulting Defendant Bickel on March 28, 2016, and was sanctioned
to 60 days of disciplinary custody, which was later reduced to 45 days. As a result of the
misconduct and disciplinary sanction, Plaintiff claims that he was subsequently denied access to
the law library on multiple occasions, and he lost his job in the kitchen. Plaintiff alleges further
that Defendants Trout and Breckenridge violated his equal protection rights by not allowing him
to get his kitchen job back after he was released from disciplinary custody, claiming that
similarly situated white and Hispanic prisoners were commonly given their jobs back after
serving disciplinary time. Plaintiff alleges that Defendants Martucci, Giles, Kusiak, C. Clark, M.
Clark, Varner, and Wetzel, all participated in the complained of misconduct by denying
Plaintiff's grievances regarding alleged retaliation and equal protection violations.
Defendants have filed a motion to dismiss complaint and supplemental complaint [ECF
No. 35] arguing that Plaintiff has failed to allege the necessary personal involvement of
Defendants Wetzel, Giles, Kusiak, Varner, Martucci, C. Clark, and M. Clark, in the alleged
misconduct, and has failed to state claims upon which relief may be granted against Defendants
Bickel, Trout, and Breckenridge. Plaintiff has since filed two identical responses in opposition to
Defendants' motion [ECF Nos. 41, 45], as well as a document entitled "second Plaintiff's motion
to amendment [sic] complaint and opposition to Defendants' motion to dismiss" [ECF No. 52],
which is nothing more than a further response in opposition to Defendants' motion. This matter is
now ripe for consideration.

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B.

Standards of Review
1.

Motion to Dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (May 18, 2009) (specifically applying Twombly
analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions”). A Plaintiff’s factual allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 556, citing 5 C.Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004). Although the United States Supreme
Court does “not require heightened fact pleading of specifics, [the Court does require] enough
facts to state a claim to relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d
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Cir. 2008). “This ‘does not impose a probability requirement at the pleading stage,’ but instead
‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ the necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at
556.
The Third Circuit subsequently expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal,
we must take the following three steps:
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.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

2.

Pro se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). If the
court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read
“with measure of tolerance”). Under our liberal pleading rules, during the initial stages of
litigation, a district court should construe all allegations in a complaint in favor of the
complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds by

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Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). Because Plaintiff is a pro se
litigant, this court may consider facts and make inferences when appropriate.
C.

Discussion
1.

Personal Involvement

Defendants argue that Plaintiff has failed to establish the personal involvement of
Defendants Wetzel, Giles, Kusiak, Varner, Martucci, C. Clark, and M. Clark, in any of the
alleged constitutional violations and, thus, Plaintiff’s claims against them should be dismissed.
The Court agrees.
“A defendant in a civil rights action must have personal involvement in the alleged
wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she
neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir.2007).
Personal involvement in the alleged wrongdoing may be shown “through allegations of personal
direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d
Cir.2005), quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). See Ruff v. Health
Care Adm'r, 441 F. App'x 843, 846 (3d Cir.2011) (per curiam) (“[t]o be liable under § 1983, a
defendant must have some personal involvement in the underlying unconstitutional conduct”).
See also Kaucher v. County of Bucks, 455 F.3d 418, 432 n. 7 (3d Cir.2006), quoting Estate of
Smith v. Marasco, 430 F.3d 140, 151 (3d Cir.2005) (“[i]n order to prevail on a § 1983 claim
against multiple defendants, a plaintiff must show that each individual defendant violated his
constitutional rights”).
Moreover, when a supervisory official is sued in a civil rights action, liability can only be
imposed if that official played an “affirmative part” in the complained-of misconduct. Chinchello
v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Although a supervisor cannot encourage
constitutional violations, a supervisor has “no affirmative constitutional duty to train, supervise
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or discipline so as to prevent such conduct.” Id., quoting Brown v. Grabowski, 922 F.2d 1097,
1120 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991). Moreover, it is well-settled that section
1983 liability cannot be predicated solely on the basis of respondeat superior. Rizzo v. Goode,
423 U.S. 362 (1972). If a grievance official’s only involvement is investigating and/or ruling on
an inmate’s grievance after the incident giving rise to the grievance has already occurred, there is
no personal involvement on the part of that official. Rode, 845 F.2d at 1208; Cooper v. Beard,
2006 WL 3208783 at * 14 (E.D.Pa. Nov. 2, 2006).
Here, all of the alleged conduct of Defendants Wetzel, Giles, Kusiak, Varner, Martucci,
C. Clark, and M. Clark, occurred in connection with their participation in the prison grievance
and/or misconduct process and, therefore, none of said Defendants was personally involved in
the complained-of misconduct.2 As a result, Plaintiff's claims against Defendants Wetzel, Giles,
Kusiak, Varner, Martucci, C. Clark, and M. Clark will be dismissed.
2.

Retaliation

Prisoners alleging retaliation for exercising their First Amendment rights must show three
elements: (1) the conduct leading to the retaliation was constitutionally protected; (2) the
prisoner endured an adverse action by prison officials; and (3) the exercise of a constitutional
right was a substantial or motivating factor in the alleged retaliatory action. Rauser v. Horn, 241
F.3d 330, 333–34 (3d Cir. 2001). If a prisoner shows the three retaliation elements, prison

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The Court notes that Plaintiff also makes the general allegations that Defendants C. Clark, Kusiak, M. Clark, and
Wetzel "have blanket policies, customs and practices in place to deny plaintiff and other prisoners adequate law
library time …" (ECF No. 4, Complaint, at ¶ 25), and that Defendants C. Clark, Giles, Kusiak, and Martucci "chose
to use blanket policies to support [Defendants] Bickel's, Trout['s] and Brackenridge['s] retaliatory and racist actions
towards the plaintiff" (Id. at ¶ 47) ; however, by lumping multiple Defendants together in an attempt to establish the
existence of a "policy," the complaint fails to plausibly allege that any one of said Defendants was the final
policymaker, as is required to establish personal involvement. See, e.g., Summers v. City of Philadelphia, 2017 WL
2734277, at * 9 (E.D.Pa. June 26, 2017), citing McTernan v. City of York, PA, 564 F.3d 636 (3d Cir. 2009).

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officials “may still prevail by proving that they would have made the same decision absent the
protected conduct for reasons reasonably related to a legitimate penological interest.” Id. at 334.
An adverse action is sufficient “‘to deter a person of ordinary firmness from exercising
his First Amendment rights.’” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000), quoting
Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000). “‘Government actions, which standing
alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in
substantial part by a desire to punish an individual for exercise of a constitutional right.’” Allah,
229 F.3d at 224 quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en banc). It
“need not be great in order to be actionable” but must be “more than de minimus.” McKee v.
Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotations and emphasis omitted).
To prove that a protected activity was a substantial or motivating factor in an alleged
retaliatory action, a plaintiff must show “(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.” Watson v. Rozum, 834 F.3d 417, 424 (3d Cir.
2016). "[T]he timing of the alleged retaliatory action must be ‘unusually suggestive’ of
retaliatory motive before a causal link will be inferred.” Estate of Smith v. Marasco, 318 F.3d
497, 512 (3d Cir. 2003) (internal quotation marks omitted) quoting Krouse v. Am. Sterilizer Co.,
126 F.3d 494, 503 (3d Cir. 1997). When temporal proximity is not close enough to unduly
suggest a retaliatory motive, the test is “timing plus other evidence.” Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000).
a.

Defendant Bickel

Defendants seek dismissal of Plaintiff’s retaliation claim against Defendant Bickel,
arguing that Plaintiff has failed to show that he was engaged in a constitutionally protected

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activity and, thus, cannot satisfy the first prong of a retaliation claim. In particular, Defendants
assert that Plaintiff’s claim arises from his receipt of a misconduct from Defendant Bickel,
“which is not indicative of a ‘constitutionally protected activity;’” however, this assertion
overlooks Plaintiff’s allegations that Defendant Bickel removed him from weekly law library
callout in retaliation for grievances he filed against her on or about May 26, 2016. (ECF No. 4,
Complaint, at ¶¶ 14-15, 21, 23, 25). Since it is beyond dispute that the filing of grievances is a
constitutionally protected activity, the Court finds that Plaintiff has satisfied the first prong of his
retaliation claim.
Defendants also argue that Plaintiff cannot support his claim that he was denied access to
the law library because he was allotted the appropriate amount of law library time. In particular,
Defendants contend that Plaintiff initially failed to specify that he required additional library
time because he had a pressing court deadline, and that when he later claimed to have a court
deadline “for [his] civil case,” the docket in this case reflects that there were no deadlines
missed. Although unclear, it appears that Defendants are attempting to demonstrate either that
Plaintiff has failed to establish he was subject to an adverse action, or that Defendant Bickel
would have made the same decision to deny Plaintiff law library time in the absence of
Plaintiff’s protected conduct, because Plaintiff failed to show he was entitled to additional library
time due to a pressing court deadline. In either case, Defendants’ argument is unavailing because
Plaintiff’s claim is not based solely on Defendant Bickel’s denial of additional law library time
that he allegedly required due to a pressing court deadline. In his original complaint, Plaintiff
alleges that Defendant Bickel removed him from weekly law library callout and that “extra time
was not [at] issue.” (Id. at ¶¶21, 23). This alone is enough to establish adverse action and/or to

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counter Defendants’ argument that Defendant Bickel’s alleged denial of library time was
justified.
Based on the foregoing, therefore, Defendants’ motion dismiss Plaintiff’s retaliation
claim against Defendant Bickel will be denied at this early stage of the proceeding.
b.

Defendants Trout and Breckenridge

Plaintiff appears to allege a vague claim of retaliation against Defendants Trout and
Breckenridge arising from their refusal to give him his kitchen job back after he was released
from serving his disciplinary time resulting from the misconduct he received from Defendant
Bickel. In particular, Plaintiff alleges that said Defendants “both directly told [him] he was not
getting his job in the kitchen back, based on his actions toward Defendant Bickel when he went
to the (RHU) on 3-28-16.” (ECF No. 4, Complaint, at ¶ 32). In other words, Plaintiff is
essentially alleging that Defendants Trout and Breckenridge retaliated against him for assaulting
Defendant Bickel; however, the act of assaulting a prison staff member is not constitutionally
protected activity that would satisfy the first prong of a retaliation claim. For this reason,
Plaintiff’s retaliation claim against Defendants Trout and Breckenridge will be dismissed.
3.

Equal Protection Claim

Plaintiff claims that Defendants Breckenridge and Trout discriminated against him on the
basis of his race in violation of his Fourteenth Amendment right to equal protection when they
refused to give him his kitchen job back after he was released from disciplinary custody.
Specifically, Plaintiff alleges that all similarly situated White and Hispanic inmates were allowed
to return to their jobs after serving disciplinary time for their “work and non-work related
misconducts,” while black prisoners, like himself, were not. (Id. at ¶¶ 30-31, 35, 71). Defendants

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have moved to dismiss this claim, arguing that Plaintiff has failed to allege any facts to
demonstrate purposeful discrimination.
The Equal Protection Clause provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “This is not a
command that all persons be treated alike but, rather, ‘a direction that all persons similarly
situated should be treated alike.’” Artway v. Attorney General of State of N.J., 81 F.3d 1235,
1267 (3d Cir.1996), quoting City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432,
439 (1985). See also United States v. Armstrong, 517 U.S. 456 (1996) (Equal Protection Clause
prohibits decision to prosecute based on an unjustifiable standard such as race, religion, or other
arbitrary classification).
The level of scrutiny applied to ensure that classifications comply with this guarantee
differs depending on the nature of the classification. Classifications involving suspect or quasisuspect class, or impacting certain fundamental constitutional rights, are subject to heightened or
“strict” scrutiny. City of Cleburne, 473 U.S. at 439. Other classifications are subject to the
“rational basis” test, which requires that a classification need only be rationally related to a
legitimate state interest to survive an equal protection challenge. F.C.C. v. Beach
Communications, Inc., 508 U.S. 307 (1993) (statutory classification that neither proceeds along
suspect lines nor infringes fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of facts); Chapman v. United
States, 500 U.S. 453, 465 (1991).
Moreover, to demonstrate an equal protection violation, an inmate has the burden of
proving the existence of purposeful discrimination. Hernandez v. New York, 500 U.S. 352
(1991); McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Official action does not violate the

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Equal Protection Clause solely because it results in a disproportionate impact; proof of
discriminatory intent or purpose is required to show a violation. Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426
U.S. 229, 239 (1977); Stehney v. Perry, 101 F.3d 925, 938 (3d Cir.1996). Discriminatory
purpose implies more than intent as volition or intent as awareness of consequences. It implies
that the decisionmaker selected a particular course of action at least in part because of, not
merely in spite of, its adverse effects upon an identifiable group. Hernandez, 500 U.S. at 360. An
inmate must offer evidence specific to his own case that would support an inference that
unlawful considerations played a part in the adverse decision. McCleskey, 481 U.S. at 293.
Here, Plaintiff has alleged that “Defendants Trout and Breckenridge are known by black
prisoners, White prisoners, and Hispanic prisoners, at Albion, for being racist towards black
prisoners and has [sic] been heard calling black prisoners working inside Albion’s kitchen
Niggers!” (ECF No. 4, Complaint, at ¶ 31). Plaintiff alleges further that when he confronted
Defendants Breckenridge and Trout with his claim that they were being racist and favored White
and Hispanic prisoners over black prisoners, they responded, “you guys always trying to play the
race card. What you guys need to do is follow the rules and know your place, then you don’t
have to worry about how the White and Spanish guys are treated differently from you. They
know who’s in charge inmate Henderson.” (Id. at ¶ 36). Plaintiff has also submitted three
affidavits from other inmates generally declaring that they have witnessed Defendants
Breckenridge and Trout “treat black prisoners with racial discrimination and disrespect.” (ECF
No. 31-3, at pp. 4-5, 7). Although far from conclusive, these allegations are minimally sufficient
to implicate purposeful discrimination at the pleading stage. Thus, Defendants’ motion to dismiss
Plaintiff’s equal protection claim will be denied.

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An appropriate Order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

Date: February 2, 2018

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