BRACEY v. PRICE et al
Filing
50
MEMORANDUM OPINION AND ORDER granting in part and denying in part 39 Partial Motion to Dismiss. It is granted as to the claims against Defendant Anderson for allegedly sexually harassing Plaintiff when he conducted a strip search of Plaintiff on D ecember 13, 2007 and that claim is dismissed with prejudice. It is granted as to any Section 1983 claims against DOC and Defendant Beard, in his official capacity and those claims are dismissed with prejudice. It is granted with prejudice as to any Sixth Amendment claims, which are dismissed with prejudice. It is granted with prejudice as to any procedural due process claim against Defendant Cross but is denied as to Plaintiff's First Amendment retaliation claim against Defendant Cross. It is granted with prejudice as to any federal law claims against Defendants Varner, Coleman, and MaciIntyre because Plaintiff cannot allege their personal involvement. The Court sua sponte dismisses, with prejudice, 1) all federal law claims again st Defendant Gates for any potential procedural due process claim and any potential retaliation claim; 2) all federal law claims against Defendant Beard, in his personal capacity, for allegedly promulgating a policy, barring prisoners from having dec larations of other inmates; and 3) all federal law claims against Defendant Braunlich. The partial Motion to Dismiss is denied as to any Fourth Amendment invasion of privacy claims in connection with viewing Plaintiff nude in his cell and as to Plaintiff's state law claim of conversion.. Signed by Magistrate Judge Maureen P. Kelly on 7/1/2011. (dgg)
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I
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COREY BRACEY,
Plaintiff,
)
)
)
)
v.
)
)
LIEUTENANT PRICE; Correctional Officer I
)
EAGLE; Captain WORKMAN; Captain LEGGET; )
)
Correctional Officer II BITTNER; Lieutenant
LESURE; Correctional Officer II ANDERSON;
)
KERR! CROSS; Deputy GATES; Correctional
)
Officer II BRAUNLICH; MELISSA VARNER;
)
ROBERT MacINTYRE; JEFFREY BEARD; and )
BRIAN COLEMAN,
)
Defendants.
)
)
Civil Action No. 09-1662
Magistrate Judge Maureen P. Kelly
Re: ECF No. [39]
MEMORANDUM OPINION AND ORDER
Corey Bracey ("Plaintiff') is a prisoner of the Commonwealth of Pennsylvania ("State"),
who initiated this civil rights action in December, 2009. ECF No. [1]. In the operative
Complaint, Plaintiff complained about an alleged campaign of retaliation for filing complaints
against correctional officers. He also complained about the conditions of his confinement. He
alleged that this campaign of retaliation and his poor conditions of confinement continued from
December 13,2007, until sometime after March 2010. ECF No. [35]. Plaintiff alleged that
Defendants began to violate his rights when he was at the State Correctional Institution at Greene
("SCI -Greene") and, that the violations continued even after he was transferred to the State
Correctional Institution at Fayette ("SCI-Fayette"). Plaintiff named thirteen Defendants in the
operative Complaint. Some of the Defendants worked at SCI-Greene, some worked at SCIFayette and some worked in the central administrative offices of the Pennsylvania Department of
Corrections ("DOC"). Defendants, all of whom are represented by the Pennsylvania Attorney
(
General's Office, have filed a partial Motion to Dismiss, which is granted in part and denied in
part.
First, Plaintiffs claims arising before December 16,2007, are time-barred, and, as a
result, these claims are dismissed. Second, all of Plaintiffs Sixth Amendment claims are
dismissed because Plaintiffs Complaint does not involve any criminal proceedings. Third,
because Plaintiff fails to state a Section 1983 claim against DOC or Defendant Jeffrey Beard
("Beard"), in his official capacity, all federal claims against them are dismissed. However, the
Motion to Dismiss is denied as to the state law claim of conversion. Fourth, the Motion to
Dismiss is denied as to Plaintiffs Fourth Amendment claim of gratuitously viewing him in the
nude. Fifth, the Motion to Dismiss is granted as to Plaintiffs procedural due process claim
against Defendant Kerri Cross ("Cross") but is denied as to Plaintiff s retaliation claim against
her. Sixth, the Motion to Dismiss is granted as to the federal claims against Defendants Melissa
Varner ("Varner"), Brian Coleman ("Coleman") and Robert MacIntyre ("MacIntyre") because
they lack personal involvement in the alleged constitutional wrongs. Lastly, pursuant to the
screening provisions of the Prison Litigation Reform Act ("PLRA"), the Court sua sponte
dismisses the federal claims against Defendants Gates, Beard, and Braunlich.
A. Relevant Procedural History
Plaintiff is proceeding pro se and in forma pauperis ("IFP"). Plaintiff filed a Complaint,
ECF No. [3], an amended Complaint, ECF No. [9], and a supplemental/amended Complaint,
ECF No. [35], which is the operative Complaint. The operative Complaint invokes 42 U.S.c. §
1983 as a jurisdictional basis, alleging violations of Plaintiffs constitutional rights. In addition,
the operative Complaint also invokes this court's supplemental jurisdiction over a state law tort
claim, concerning the destruction of his property. Defendants filed a partial Motion to Dismiss
2
pursuant to Fed.R.Civ.P. 12(b)(6), ECF No. [39], and a Brief in Support. ECF No. [40].
Plaintiff filed a response. ECF No. [42]. All parties have consented to the exercise of plenary
jurisdiction by the Magistrate Judge. ECF Nos. [4]; [15] & [49].
B. Applicable Legal Standard
As the United States Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it
does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570
(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41,45-46
(1957)). See also Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Under this standard, the court must,
as a general rule, accept as true all factual allegations of the complaint and all reasonable
inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential
Bache Securities, Inc., 764 F.2d 939,944 (3d Cir. 1985). Nevertheless, under the 12(b)(6)
standard, a "court need not ... accept as true allegations that contradict matters properly subject
to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9 th Cir.
2001), amended by, 275 F.3d 1187 (9 th Cir. 2001). Nor must a court accept inferences drawn by
the 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)). A court also need not accept
legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
In addition, because Plaintiff is a prisoner proceeding IFP, who seeks redress from a
governmental entity or an employee of a governmental entity, and who has filed a civil action
concerning the conditions of confinement, the screening provisions of28 U.S.C. §§ 1915(e) and
3
1915A and 28 U.S.C. § 1997e(c) apply. Pursuant to these screening provisions, a court is
obliged to sua sponte dismiss complaints that are frivolous, malicious or that fail to state a claim
upon which relief can be granted. Moreover, if there is a ground for dismissal, which was not
relied upon by a defendant in a motion to dismiss, or, if a defendant did not even file a motion to
dismiss, the court may nonetheless dismiss the case or claim sua sponte, pursuant to the
screening provisions of the PLRA. See Lopez v. Smith, 203 F.3d 1122, 1126 n.6 (9th Cir. 2000);
Dare v. U.S., CIV.A.06-115E, 2007 WL 1811198, at *4 (W.D.Pa. June 21, 2007), aff'd, 264
F.App'x 183 (3d Cir. 2008).
Discussion
1. Statute of Limitations
Defendants raise the statute of limitations defense, pointing out that because Plaintiff
filed his Complaint no earlier than December 16, 2009, pursuant to the prisoner mail-box rule, I
any claims arising prior to December 16, 2007, are time-barred, including the claim that on
December 13, 2007, Defendant Anderson sexually harassed Plaintiff in the conducting of a strip
search. ECF No. [40] at 6 to 7.
Congress did not specify a statute of limitations for actions arising under 42 U .S.C. §
I The "prisoner mail box rule" provides that a pro se prisoner's complaint is "deemed filed at
the moment he delivers it to prison officials for mailing to the district court." Burns v. Morton,
134 F.3d 109,113 (3d Cir. 1998) (dealing with habeas petitions); Casanova v. DuBois, 304 F.3d
75, 79 (1 st Cir. 2002) (applying rule to civil rights complaint). In the absence of evidence as to
when Plaintiff gave his Section 1983 complaint to the prison authorities for mailing, the court
may deem, for purposes of applying the prisoner mail box rule, the complaint to have been filed
on the date Plaintiff signed his IFP application andlor complaint. Cromwell v. Keane, 27
F.App'x 13, 14 (2d Cir. 2001) ("In the absence of other evidence regarding the date on which
Cromwell's petition was handed to prison officials for mailing, we consider his petition to have
been filed on September 2, 1997, the date on which petitioner signed his in forma pauperis
application. See Rhodes v. Senkowski, 82 F.Supp.2d 160, 165 (S.D.N.Y. 2000) (collecting
cases). ").
4
1983. Wilson v. Garcia, 471 U.S. 261, 267 (1985), superseded by statute as recognized in,
Kasteleba v. Judge, 325 F.App'x. 153, 156 (3d Cir. 2009). Because of this, the courts are to
consider Section 1983 actions as tort actions and borrow the statute of limitations for personal
injury or tort actions from the appropriate state. See Wilson. The Court of Appeals for the Third
Circuit has declared that for Section 1983 actions brought in the federal courts located within the
Commonwealth of Pennsylvania, the appropriate statute of limitations is two years. Fitzgerald v.
Larson, 769 F.2d 160, 162 (3d Cir. 1985) ("the two-year Pennsylvania limitation for personal
injury actions of 42 Pa.Const.Stat.Ann. § 5524 governs all § 1983 actions brought in
Pennsylvania. "). The statute of limitations requires that a complaint be filed between the time
the cause of action accrues and the time when the limitations period runs out. See Sprint
Communications Co., L.P. v. F.C.C., 76 F.3d 1221, 1226 (D.C. Cir. 1996).
In response to the Defendants' argument that the two year statute of limitations bars
Plaintiff s claims against Defendant Anderson concerning the alleged sexual harassment that
occurred on December 13,2007, Plaintiff's sole argument is his invocation of the "continuing
violation" doctrine. ECF No. [42] at 3 to 4.
As succinctly explained by the Court of Appeals for the Third Circuit:
The continuing violations doctrine is an equitable exception to a strict
application of a statute of limitations where the conduct complained of consists of
a pattern that has only become cognizable as illegal over time. Cowell v.
Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). "[W]hen a defendant's conduct is
part of a continuing practice, an action is timely so long as the last act evidencing
the continuing practice falls within the limitations period; in such an instance, the
court will grant relief for the earlier related acts that would otherwise be time
barred." Brenner v. Local 514, United Bhd. of Carpenters, 927 F.2d 1283, 1295
(3d Cir.l991).
Foster v. Morris, 208 F.App'x 174, 177-78 (3d Cir. 2006) (emphasis added). However, the rule
is clear that where a potential plaintiff is aware of the injury or wrongdoing, at the time the
5
wrongful actions were taken, then the continuing violation doctrine is not applicable.
See,~,
Zied v. Barnhart, _ F.App'x _, 2011 WL 913199, at *4 (3d Cir. March 17,2011 )("as
explained by the District Court, the continuing violations doctrine for extending a statute of
limitation does not apply to injuries that occurred before the filing period if the plaintiff was
aware, as Zied was, of those injuries at the time they occurred."); Morganroth & Morganroth v.
Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003) ("Plaintiffs also assert
that the continuing violation theory tolls the statute of limitations. However, this theory does not
apply when plaintiffs are aware of the injury at the time it occurred. The Morganroths
successfully contested the transfer of Lamington Farm to Genesis during the Michigan action,
demonstrating that they were aware of the injury at the time and precluding resort to the
continuing violation theory of tolling.") (citations omitted).
Here, Plaintiff was clearly aware of the constitutional injury he allegedly suffered at the
hands of Defendant Anderson on December 13,2007, the date that Defendant Anderson
allegedly sexually harassed him in the course of a strip search.
See,~,
ECF No. [35] at 3, ~~
21 to 23 ("During the search Defendant Anderson ordered Plaintiff several times to bend over
while laughing, making comments as to the shape and size of Plaintiffs anus and buttock ...
Plaintiff was humiliated and embarrassed at the sexual harassment and refused to continue
bending over .... Plaintiff immediately filed a grievance-clearly stating on the official form, 'I
am grieving sergeant Anderson's aggressive and sexual behavior ..."') (some internal quotation
marks omitted). The fact that Plaintiff was immediately aware of the wrongdoing at the time of
Anderson's alleged actions, as evidenced by Plaintiffs filing of a grievance, renders the
continuing violation doctrine unavailable to Plaintiff to save his claims against Defendant
Anderson from being barred by the statute of limitations.
6
See,~,
Seawright v. Greenberg, 233
.
.
F.App'x 145, 149 (3d Cir. 2007) ("In her complaint, Seawright alleges that her attorney
complained to the judges in the prior proceedings about the defendants' behavior. Thus,
Seawright was aware of issues that she could have complained of previously, and indeed did
complain of, and she may not use the continuing violations doctrine to avoid the application of
the statute of limitations"); Hare v. Potter, 220 F.App'x 120, 134 (3d Cir. 2007) ("Hare also
argues her sexual harassment claim against McCullough should be saved by the continuing
violations doctrine. She argues his conduct should be viewed as part of a series of continuing
hostile work environment violations, including Hare's poor treatment by her managers after she
began pressing her claim. We disagree. Hare was immediately aware of her being sexually
harassed, and, consequently, the continuing violations doctrine does not apply."). Hence, the
claim against Defendant Anderson is dismissed as time barred and Defendants' partial Motion to
Dismiss is granted as to this claim.
2. Sixth Amendment
Defendants also move to dismiss Plaintiffs Sixth Amendment claims for failure to state a
claim. ECF No. [40] at 8. Plaintiff concedes that he cannot state a Sixth Amendment claim.
ECF No. [42] at 6. The Sixth Amendment has no applicability here. United States v. Ward, 448
U.S. 242, 248 (1980) ("the protections provided by the Sixth Amendment are available only in
'criminal prosecutions.'''). Hence, the partial Motion to Dismiss is granted as to Plaintiffs Sixth
Amendment claims.
3. DOC is not a Person
In order to establish a Section 1983 cause of action, a plaintiff must sufficiently allege:
1) that there was a person acting under color of state law; 2) whose actions under color of state
law caused himlher to be deprived of rights, privileges, or immunities secured by the
7
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988).
Plaintiff sued Defendant Beard, the former DOC Secretary, in his official capacity, as
well as, in his individual capacity.2 ECF No. [35] at 2, ~ 15. Plaintiff also apparently intended to
sue DOC itself, even though DOC was not named in the caption of the operative Complaint. Id.
at 3, ~ 19 ("Pennsylvania Department of Corrections is sued in their individual capacities.").
Defendants point out that DOC, and, inferentially, Beard, in his official capacity, do not
constitute a "person" as is required under Section 1983. Defendants are correct. Poole v.
D.O.C., 153 F.App'x 816, 818-19 (3d Cir. 2005) ("states, state agencies, and state officials
acting in their official capacities are not 'persons' subject to suit under 42 U.S.C. § 1983")
(citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)).
Plaintiff, in his response, concedes that DOC is not a person for purposes of Section 1983
but then goes on to say that Defendants have misconstrued Plaintiff's claims. ECF No. [42] at 4.
Plaintiff is wrong about the Defendants misconstruing his claims insofar as Plaintiff did include
Section 1983 claims against Defendant Beard in his official capacity and such claims are barred
under Will v. Michigan, given that Defendant Beard, in his official capacity, does not constitute
a "person" for Section 1983 purposes. However, Plaintiff does go on to clarify that he is suing
DOC under "state tort liability for the acts of its employees in illegally confiscating Plaintiffs
legal materials[,]" which Plaintiff calls "conversion." Id.
Defendants contend that Plaintiff's state law claim of "conversion" is barred by the
sovereign or governmental immunity Act found at 42 Pa. Cons. Stat. Ann. § 8522. ECF No. [40]
at 7 to 8. This statute generally reaffirms that the Commonwealth and Commonwealth parties
enjoy sovereign immunity from suit, but that such immunity is waived in nine enumerated
2 Plaintiff's claims against Defendant Beard in his individual capacity are addressed below.
8
instances. Defendants contend that conversion does not fall within any of the exceptions. Id. at
8. Plaintiff however, points out that there is an exception to immunity for the "care, custody or
control of personal property,,3 and argues that his claim regarding his legal property falls within
this exception. The Defendants did not file a reply and there is no apparent reason why
Plaintiff's claim regarding his property does not come within the plain language of the exception.
See,~,
Bonds v. Rhodes, No. 2:05CV241, 2006 WL 1617892, at *4 (W.D. Pa. June 8, 2006)
("Bond's conversion [claim] remains viable at this juncture because it comes within an exception
to the Sovereign Immunity statute. 42 Pa. Cons. Stat. Ann. § 8522(b)(3)."). Thus, the
Defendants' partial Motion to Dismiss is denied to the extent that it sought dismissal of
Plaintiff's state law tort claim regarding his legal property.
4. Fourth Amendment
Next, Defendants move to dismiss Plaintiffs Fourth Amendment claims. Defendants
construe Plaintiff's Complaint as complaining about the search of his cell and the seizure of
some of his property as being violative of the Fourth Amendment and point out that such claims
fail to state a Fourth Amendment claim. ECF No. [40] at 9. If Defendants' construction of the
342 Pa. Cons.Stat. Ann. § 8522(b)(3) provides in relevant part as follows:
(b) Acts which may impose liability.-The following acts by a Commonwealth
party may result in the imposition of liability on the Commonwealth and the
defense of sovereign immunity shall not be raised to claims for damages caused
by:
(3) Care, custody or control of personal property'-The care,
custody or control of personal property in the possession or control
of Commonwealth parties, including Commonwealth-owned
personal property and property of persons held by a
Commonwealth agency ....
9
'.
operative Complaint were correct, they would be entitled to dismissal of any such Fourth
Amendment complaint. However, their construction of the operative Complaint is not correct.
Plaintiff explains, in his response, that his Fourth Amendment claims are not based on
such cell searches and seizures of his property. Plaintiff explains that his Fourth Amendment
claims are based on his placement in the psychiatric observation cell in the nude where there
were cameras on 24 hours a day, which permitted him to be viewed going to the bathroom and
taking showers and, importantly, the contention that his placement in such cell was without
penological justification. Defendants have not argued that this factual allegation fails to state a
claim under the Fourth Amendment. Hence, the Motion to Dismiss will be denied as to
Plaintiffs Fourth Amendment claim. See,~, Canedy v. Boardman, 16 F.3d 183, 185 (7 th Cir.
1994) ("all forced observations or inspections of the naked body implicate a privacy concern").
5. Defendant Kerri Cross
Next, Defendants move to dismiss Plaintiffs procedural due process claim against
Defendant Cross. ECF No. [40] at 9 to 10. Plaintiff concedes that he does not have a procedural
due process claim against Defendant Cross. ECF No. [42] at 7 ("Plaintiff does not dispute the
14th Amendment being inapplicable as relevant to the actions of Cross."). Accordingly, any
procedural due process claim against Defendant Cross is dismissed.
Defendants also move to dismiss Plaintiff's First Amendment retaliation claim against
Defendant Cross. ECF No. [40] at 10. Defendants claim that the operative Complaint failed to
allege that Cross's finding Plaintiff guilty of a misconduct charge was retaliatory. Id. ("Although
Plaintiff claims that Cross violated his 1st [sic] Amendment rights as well, no where [sic] does he
claim that Cross retaliated against him by finding him guilty."). Plaintiff responds that, reading
the operative Complaint in a light most favorable to him and, given the liberality accorded to pro
10
se plaintiffs, the operative Complaint sufficiently alleged Defendant Cross retaliated against
Plaintiff. More specifically, Plaintiff points to the allegation that Defendant Cross said to
Plaintiff at the misconduct hearing, "maybe you shouldn't have filed a grievance" and "besides
you're just a prisoner." ECF No. [42] at 8. Plaintiff points to these allegations as permitting an
inference that Defendant Cross believed that Plaintiff was being retaliated against by Defendant
Bittner's filing of a false misconduct charge and that Defendant Cross, in further retaliation,
found Plaintiff guilty of the misconduct, even though she believed Plaintiff was not gUilty. See,
~,
ECF No. [35] at 8 to 9, ~ 79 (referencing "the biased decision of Kross [sic]"). While a
close call, the Court agrees that, in light of Plaintiffs pro se status and, giving him the benefit of
all reasonable inferences, the operative Complaint adequately alleges that Defendant Cross
retaliated against Plaintiff by her finding him guilty of the allegedly false misconduct charge.
Hence, Plaintiffs First Amendment retaliation claim against Defendant Cross survives the partial
Motion to Dismiss.
6. Personal Involvement
In their final argument, Defendants contend that Plaintiff insufficiently pleaded the
personal involvement of the following Defendants in the alleged violation of Plaintiff s rights:
Varner, Coleman, MacIntyre, Gates and Beard. ECF No. [40] at 10 to 12.
The general rule in Section 1983 cases, such as this one, is that a "defendant in a civil
rights action must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988).
Plaintiff concedes that he cannot plead the requisite personal involvement of Defendants
Varner, Coleman and MacIntyre. ECF No. [42] at 8 ("Plaintiff does not contest the lack of
11
personal involvement of Defendants Varner, Coleman, and Macintyre."). Accordingly,
Defendants' partial Motion to Dismiss is granted with respect to Plaintiffs Section 1983 claims
against Defendants Varner, Coleman and MacIntyre. The sole remaining claim against these
three Defendants is the state law tort of conversion. ECF No. [35] at 11, , 96.
7.
PLRA Screening
Plaintiff argues that with respect to Defendant Gates, the operative Complaint sufficiently
alleges his personal involvement insofar as it alleges that Defendant Gates ordered the
destruction of all six of Plaintiff s legal books whereas Defendant Cross had only ordered the
destruction of three of Plaintiffs legal t:0oks and that Defendant Gates ordered the destruction of
the additional three books without any penological interest, justifying such destruction.
We may assume that Plaintiffs explanation regarding Defendant Gates satisfies the
"personal involvement" requirement for Section 1983 claims. However, to the extent that
Plaintiff would complain about the mere confiscation of his six books, such fails to state a
procedural due process claim as a matter of law, given the presence of adequate state post
deprivation remedies in the form of, inter alia, a state law tort action. See Dantzler v. Beard,
NO. CIVA 09-275, 2010 WL 1008294, at *8 to *9 (W.D.Pa., March 15,2010). To the extent
Plaintiff complains about the destruction of all six books, Plaintiff had adequate pre-deprivation
process in the form of the grievance appeal system because he had notice of the intended
destruction of all six of the books via Defendant Gates' decision and the opportunity to be heard
via an appeal from Defendant Gates' decision to destroy all six of the books. This pre
deprivatiOn/pre-destruction remedy was in addition to having a post deprivation/destruction
remedy in the form of a state law tort suit. See id. Hence, Plaintiff cannot state a procedural
due process claim against Defendant Gates.
12
"
To the extent that Plaintiff may be attempting to make a retaliation4 claim against
Defendant Gates, i.e., Defendant Gates ordered the destruction of the three additional law books
to retaliate against Plaintiff for his filing of grievances, the operative Complaint fails to make any
plausible allegations of retaliation against Defendant Gates.
See,~,
ECF No. [35] at 9, " 80
85 (noting that Defendant Gates ordered the destruction of all six books, even though only three
were the subject of the misconduct hearing); id., at 11, , 98 (alleging Defendant Gates' actions
violated Plaintiffs First, Sixth and Fourteenth Amendment rights). Even in his response,
Plaintiff does not allege that Defendant Gates took the action of ordering the destruction of all
six books in order to retaliate against Plaintiff for any exercise of Plaintiff s rights.
See,~,
ECF No. [42] at 8 to 9. The most that Plaintiff alleges is "Plaintiff informed Gates that the books
were confiscated in furtherance of retaliation and [Plaintiff] could prove the books were indeed
his property if given the opportunity." Id., at 9. However, the mere fact that Plaintiff alleged, in
his grievance appeal to Defendant Gates, that the books were confiscated in furtherance of
retaliation does not thereby mean that Defendant Gates' denial of Plaintiffs grievance appeal
and his ordering the destruction of all six of the books, was itself an act of retaliation against
Plaintiff. See Bowman v. Mazur, No. CIV.A. 08-173J, 2010 WL 2606291, at *5 (W.D.Pa. June
4,2010) ("A prison guard, need not credit every assertion of a prisoner on pain of committing a
constitutional tort"). Because the operative Complaint lacks any allegations regarding Defendant
In order to state a retaliation claim, a plaintiff must sufficiently allege: (1) that he engaged in
constitutionally protected activity; (2) that he was subject to adverse actions by a state actor; and
(3) the constitutionally protected activity was a substantial motivating factor in the state actor's
decision to take adverse action. Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) (citing
Mt. Health City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)). Furthermore, in order to
demonstrate the second prong of adverse action, Plaintiff must allege an action sufficiently
negative to "deter a prisoner of ordinary firmness from exercising his First Amendment rights."
Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
4
13
Gates engaging in retaliation, any such claim must be dismissed with prejudice, given that
Plaintiff has already amended his Complaint several times, and any further amendment would be
futile or inequitable. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)
(district courts must extend plaintiffs an opportunity to amend before dismissing a complaint,
unless amendment would be inequitable or futile). Hence, the only remaining claim against
Defendant Gates is the state law tort of conversion. See ECF No. [35] at 11, ~ 97.
Lastly, Defendants claim that Plaintiff inadequately alleged the personal involvement of
Defendant Beard. Plaintiff, in his response, argues that he alleged Defendant Beard promulgated
a policy that prohibits prisoners from possessing affidavits or information fromlabout other
prisoners, even if such affidavits are needed for a particular prisoner's litigation activities. 5
Plaintiff contends that this is sufficient "personal involvement" and he claims that Beard's
promulgation of the policy violated Plaintiff's First, Sixth and Fourteenth Amendments. ECF
No. [35] at 11, ~ 98. We need not decide this question because we find that Plaintiff cannot
show that the promulgation of the alleged policy violated any of Plaintiff's rights. See, U,
Mosley v. Yaletsko, 275 F.Supp.2d 608, 613 (E.D.Pa. 2003) (to "make out a claim under Section
1983, a plaintiff must demonstrate that the conduct of which he is complaining has been
committed under color of state or territorial law and that it operated to deny him a right or rights
secured by the Constitution and laws of the United States. The plaintiff must also establish that it
was the acts of the defendant which caused the constitutional deprivation.").
To the extent that Plaintiff claims the alleged policy violated Plaintiff's Sixth
Amendment rights, Plaintiff has already conceded he has no Sixth Amendment claim. Hence,
5 We assume that Plaintiff is suing Defendant Beard in his individual capacity for the
promulgation of the policy, in addition to, suing Beard in his official capacity. See, U, ECF
No. [35] at 2, ~ 15 (naming Beard in "his individual and official capacity.").
14
the Sixth Amendment claim is dismissed.
To the extent that Plaintiff claims that Beard's promulgation of the policy violated
Plaintiffs procedural due process rights, Plaintiff is wrong as a matter of law. Procedural due
process is applicable to adjudicative kinds of acts and not to legislative policy making type acts.
Marshall v. Sawyer, 365 F.2d 105, 111 (9th Cir. 1966). In Marshall, the court explained that
[p ]rocedural due process requires that when, as a premise for
administrative [i.e., adjudicative] action, an agency of government
makes a determination of adjudicative facts, one who has a sufficient
interest or right at stake shall be afforded an evidentiary hearing before
the agency .... "Adjudicative facts are facts about parties and their
activities, businesses, and properties, usually answering the questions
of who did what, where, when, how, why, with what motive or intent;
adjudicative facts are roughly the kind of facts that go to a jury in a jury
case.... "
Id. (quoting Kenneth Culp Davis, The Requirement of a Trial-Type Hearing, 70 Harv.L.Rev.
193, 199 (1956)). See also County Line Joint Venture v. City of Grand Prairie, Texas, 839 F.2d
1142,1144 (5 th Cir. 1988), cert. denied, 488 U.S. 890 (1988) ("Generally, ifthe court views the
governmental conduct as legislative, the property owner has no procedural due process rights.");
Provost v. Betit, 326 F. Supp. 920, 923 (D.Vt. 1971) (distinguishing between legislative action
and judicial action whereas judicial action constitutionally requires procedural due process,
legislative action does not). Here, it is clear that defendant Beard's actions in allegedly
promulgating the policy was a legislative policy making type of action which did not require an
adjudicative fact finding to which procedural due process strictures apply. Thus, defendant
Beard's acts in allegedly promulgating the policy did not deprive Plaintiff of a liberty/property
interest without affording him procedural due process because Plaintiff was not entitled to any
individualized process in defendant Beard's actions in considering and promulgating that policy.
See Traweek v. City and County of San Francisco, 659 F. Supp. 1012, 1029 (N.D. Cal. 1984)
15
("the Due Process Clause does not grant to members of the public generally a right to be heard
by legislative or administrative bodies making decisions of policy."), affirmed in part and
vacated in part, 920 F.2d 589 (9 th Cir. 1990). Thus, Plaintiffs procedural due process claim fails
as a matter of law.
Hence, there appears to be only one remaining federal law claim against Defendant
Beard. The operative Complaint only elaborated on one federal right of Plaintiff's that was
violated by the alleged policy, i. e., his First Amendment right of access to the Courts.
See,~,
ECF No. [35] at 9, ~ 85 ("The malicious confiscation of Plaintiffs legal materials has hindered,
stymied, and effectively interfered with Plaintiffs ability to assert his rights as a pro se Plaintiff
in this civil action."). Specifically, Plaintiff complains that a declaration from another prisoner
was confiscated and destroyed and that this declaration related to Plaintiff's unsanitary cell
condition claim and, apparently, the related First Amendment retaliation claim, i.e., Plaintiff was
purposely placed in the unsanitary cell in order to retaliate against him. We find Plaintiff's claim
that Defendant Beard's promulgation of the policy insufficient to state a First Amendment denial
of access to courts claim.
Plaintiff has failed to state a First Amendment claim of denial of access to courts because
he has not sufficiently pleaded any "actual injury" to a lawsuit as is required in order to state a
First Amendment denial of access case. The court finds the case of Christopher v. Harbury, 536
U.S. 403 (2002) to require dismissal of this claim. In Christopher, the Supreme Court explained
requirements for making a denial of access to courts claim, which includes a requirement that a
plaintiff allege an actual injury to a non-frivolous suit. The Supreme Court explained that as part
of the pleading requirement to demonstrate actual injury caused by the official actions, the
plaintiff must plead that she has actually lost the opportunity to litigate that which she desired to
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litigate in the suit which was blocked by the official action. The Court explained that "the
complaint must identify a remedy that may be awarded as recompense [for the blocked suit] but
not otherwise available in some suit that may yet be brought." Id. at 415. In other words, if the
claims in the blocked suit may yet be brought, there is no sense in litigating an access to courts
claim because no actual injury was suffered if the claims in the blocked suit could still be
brought.
While Plaintiff tries to meet this requirement, he fails. Plaintiff claims that the policydriven confiscation of the declaration "interfered with Plaintiffs ability to assert his rights ... in
this civil action." ECF No. [35] at 9, ~ 85. However, Plaintiff is presently litigating his two
claims in this very lawsuit. He has not been shut out of court as to his claims of unsanitary cell
conditions and/or the related retaliation claim, both of which were subjects of the allegedly
destroyed declaration. These two claims are not being dismissed and Plaintiff will be permitted
to move forward with them. Accordingly, Plaintiffs First Amendment denial of access to courts
claim is hereby sua sponte dismissed pursuant to the screening provisions of the PLRA. 6
Lastly, the Court notes that the Plaintiff complains that Defendant Braunlich gave
Plaintiff an intentionally vague receipt for the items that Defendant Bittner ordered confiscated
and that this violated Plaintiffs federal rights. The receipt for the confiscated property listed the
property as "(4) soft back books[;] (I) hard back; (1) piece of paper with 'inmate name and
information' on it (declaration)." ECF No. [35] at 7, ~ 67. See also id at1I, ~ 95. Such a claim
fails as a matter of law to state a claim under Section 1983 because there simply is no
constitutional right to a receipt for confiscated property, yet alone, a confiscation receipt for
This same reasoning would dispose of any First Amendment denial of access to courts claim
against Defendant Gates and any and all other Defendants.
6
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property that possesses any certain level of specificity. See,
~
Parkhurst v. Ruettgers, 974
F.2d 1345 (Table), 1992 WL 219042, at *1 n.2 (lOth Cir. 1992) ("We assume as true Parkhurst's
allegations that Ruettgers failed to follow the prison's own rule, as provided in an inmate
handbook, requiring receipts for all confiscated material. Although the Supreme Court's decision
in Procunier v. Martinez, 416 U.S. 396,418 (1974), overruled on other grounds by, Thornburgh
v. Abbott, 490 U.S. 401 (1989), imposes certain procedural safeguards on the confiscation of
prisoner mail, the issuance of written receipts is not one of them. Because whatever grievance
Parkhurst may have regarding receipts is not of constitutional proportions, a § 1983 claim is not
the proper vehicle for its redress."); Ladd v. Davies, No. 90-3279, 1990 WL 203121, at *1
(D.Kan. 1990, Nov. 7, 1990) (granting motion to dismiss where prisoner alleged, inter alia, "that
defendants did not give him a receipt for the confiscated peanuts as required by written prison
policy"). The only remaining claim against Defendant Braunlich is a state law claim for
conversion. ECF No. [35] at 11, ~ 95.
Accordingly, in light of the foregoing, Defendants' partial Motion to Dismiss is
GRANTED IN PART and DENIED IN PART. It is GRANTED as to the claims against
Defendant Anderson for allegedly sexually harassing Plaintiff when he conducted a strip search
of Plaintiff on December 13,2007 and that claim is dismissed with prejudice. It is GRANTED
as to any Section 1983 claims against DOC and Defendant Beard, in his official capacity and
those claims are dismissed with prejudice. It is GRANTED as to any Sixth Amendment claims,
which are dismissed with prejudice. It is GRANTED with prejudice as to any procedural due
process claim against Defendant Cross but is DENIED as to Plaintiffs First Amendment
retaliation claim against Defendant Cross. It is GRANTED with prejudice as to any federal law
claims against Defendants Varner, Coleman and MacIntyre because Plaintiff cannot allege their
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personal involvement. The Court sua sponte dismisses, with prejudice, 1) all federal law claims
against Defendant Oates for any potential procedural due process claim and any potential
retaliation claim; 2) all federal law claims against Defendant Beard, in his personal capacity, for
allegedly promulgating a policy, barring prisoners from having declarations of other inmates;
and 3) all federal law claims against Defendant Braunlich. The partial Motion to Dismiss is
DENIED as to any Fourth Amendment invasion of privacy claims in connection with viewing
Plaintiff nude in his cell and as to Plaintiffs state law claim of conversion.
Date: July 1,2011
cc:
COREY BRACEY
OS 4754
SCI Smithfield
Box 999, 1120 Pike Street
Huntingdon, PA 16652
All Counsel of Record via CM-ECF
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