HILL v. BARNACLE et al

Filing 20

MEMORANDUM AND OPINION and ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction filed by STEVEN GLUNT, JAMES BARNACLE, CAPTAIN BRUMBAUGH, DAVID CLOSE, HEATHER MOORE, KENNETH HOLLIBAUGH. Signed by Magistrate Judge Robert C. Mitchell on 1/3/2013. (spc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA M. HILL,
Plaintiff,
vs.
JAMES BARNACLE, et al.,
Defendants.

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Civil Action No. 12-1145

MEMORANDUM OPINION AND ORDER
Plaintiff, Donna M. Hill, brings this civil rights action pursuant to 42 U.S.C. § 1983,
alleging that her rights were violated when Defendants suspended her visiting privileges and
confiscated the mail she sent to her husband, incarcerated prisoner Dwayne Hill, and his
outgoing mail to her was confiscated. Named as Defendants are several prison officials assigned
to the State Correctional Institution at Houtzdale, Pennsylvania (SCI Houtzdale): Superintendent
Steven Glunt, Deputy Superintendent for Facilities Management David Close, Deputy
Superintendent for Centralized Services Kenneth Hollibaugh, chief security and intelligence
officer Captain Brumbaugh and mail inspector supervisor Heather Moore. In addition, she has
sued James Barnacle, the Director of the Office of Special Investigations and Intelligence for the
Department of Corrections (DOC).
Currently pending before the Court is a motion to dismiss, filed by the Defendants. It
requests that this action be dismissed based on the doctrine of abstention, because Plaintiff has
already filed a case in state court concerning the same subject matter. For the reasons that
follow, the motion will be granted.
Facts
Plaintiff is a United States citizen and a resident of the Commonwealth of Pennsylvania.

Her husband, Dwayne Hill, is an inmate currently incarcerated at SCI Houtzdale. (Compl. ¶ 3.)
She alleges that she received reports from her husband that he had been sexually fondled by an
officer and his complaints about this abuse were rejected; that she received correspondence from
him that the mental health unit stopped giving him medication and stopped seeing him for
counseling sessions; that they removed him from Z-code (single cell) status after he had been
living in a single cell for approximately 20 years; that when they put him in a double cell he
could not handle it and set a mattress on fire, which resulted in him being sent to the Restricted
Housing Unit (RHU); that in response, she conducted a letter campaign, writing to various news
media outlets, state law makers and prison officials out of concern for her husband’s health and
safety; that she received a report that he had been assaulted by staff on April 5, 2012 and later
that month she received reports that he was being denied mental health treatment; that most of
his personal property had been confiscated or stolen by staff; that he was held in a stripped cell
for almost a month and denied all hygiene practices, that staff had been spitting in his food and
had placed disinfectant in his food and denied him medical treatment based on attempts at acute
poisoning, but when he filed a grievance, they twisted his words around and denied it; that she
traveled to SCI Houtzdale on April 12, 2012 to visit him only to be informed that her visiting
privileges were suspended; that a week later she received correspondence from Glunt stating that
her privileges were revoked pending an investigation by Captain Brumbaugh; that she learned
through other correspondence that her mail privileges had been suspended as well; that on June
19, 2012, she filed a “writ of mandamus” in the Commonwealth Court seeking an order directing
Defendants to explain her suspension and return or deliver her mail; that four days after the
motion to proceed in forma pauperis was granted she received correspondence from Glunt
stating that her visiting privileges had been suspended indefinitely; and that Defendants gave no

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reason for their actions. (Compl. ¶¶ 10-20 & Exs. 2-11.)
Procedural History
Plaintiff initiated this action by filing a motion to proceed in forma pauperis on August
10, 2012 (ECF No. 1). The motion to proceed IFP was granted on August 13, 2012 and the
complaint was filed that same day (ECF No. 3). The Complaint alleges that Defendants violated
her rights to intimate association by suspending her visitation privileges in retaliation for her
investigation and complaints about her husband’s treatment; that they violated her right to be free
from cruel and unusual punishment; and that they violated her property interest in her mail. As
relief, Plaintiff seeks: an injunction restraining Defendants from enforcing the suspension and
restoring full visiting privileges; compensatory damages; punitive damages; and such other relief
as it may appear that she is entitled to receive.
On November 6, 2012, Defendants filed a motion to dismiss. Plaintiff filed her brief in
opposition on December 4, 2012.
Standard of Review
The Supreme Court recently issued two decisions that pertain to the standard of review
for a motion to dismiss for failure to state a claim upon which relief could be granted under
Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual
allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some
factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she
provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips v.
County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has
met this standard, a court must reject legal conclusions unsupported by factual allegations,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements;” “labels and conclusions;” and “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are
insufficient. Id. at 679. District courts are required to engage in a two part inquiry:
First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may
disregard any legal conclusions…. Second, a District Court must then determine
whether the facts alleged in the complaint are sufficient to show the plaintiff has a
“plausible claim for relief.” … In other words, a complaint must do more than
allege the plaintiff’s entitlement to relief. A complaint has to “show” such an
entitlement with its facts.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).
“Although a district court may not consider matters extraneous to the pleadings, ‘a
document integral to or explicitly relied upon in the complaint may be considered without
converting the motion to dismiss into one for summary judgment.’” U.S. Express Lines, Ltd. v.
Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (quoting In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997)). “Courts ruling on Rule 12(b)(6) motions may take judicial
notice of public records.” Anspach ex rel. Anspach v. City of Phila., 503 F.3d 256, 273 n.11 (3d
Cir. 2007). Thus, the exhibits attached to Plaintiff’s complaint (her letters to the prison, her
husband’s grievances, the letters advising her that her visitations rights had been suspended) and
the exhibits attached to the Defendants’ motion to dismiss (a docket sheet from the
Commonwealth Court indicating that Plaintiff has brought suit against the DOC and her
Amended Petition for Review in Case No. 419 MD 2012) (ECF No. 13 Exs. 1, 2), may be
considered without converting the motion into a motion for summary judgment.
Defendants argue that the Court should abstain from exercising jurisdiction pursuant to
Younger v. Harris, 401 U.S. 37 (1971). Plaintiff contends that this Court may retain this case

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even while the parallel case proceeds in state court.
Younger Abstention
As summarized by the Court of Appeals for the Third Circuit:
In certain circumstances, district courts must abstain from exercising
jurisdiction over a particular claim where resolution of that claim in federal court
would offend principles of comity by interfering with an ongoing state
proceeding. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423, 437, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). However, such abstention
is appropriate only when the following three requirements are satisfied: (1) there
are ongoing state proceedings that are judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the state proceedings afford an
adequate opportunity to raise the federal claims. Addiction Specialists, Inc. v.
Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005).
Lazaridis v. Wehmer, 591 F.3d 666, 670 (3d Cir. 2010) (footnote omitted).
Defendants contend that there are ongoing state proceedings (namely Plaintiff’s Petition
for Review in the Commonwealth Court), that the state proceedings implicate important state
interests and that they afford her an adequate opportunity to raise her federal claims (indeed she
has done so). The first and third prongs are plainly met, and Plaintiff does not contend
otherwise. See ECF No. 13 Ex. 2 at 1, 4 (raising First, Fourth, Eighth and Fourteenth
Amendment claims in her Commonwealth Court petition).
The only question is whether important state interests are implicated. Defendants
contend that courts have consistently found that states have a compelling interest in the safety
and security of their prisons, including the issue of visitors. See Overton v. Bazzetta, 539 U.S.
126 (2003) (certain prison regulations involving visitation did not violate prisoners’ rights to
substantive due process, free association or right to be free from cruel and unusual punishment);
Torres v. Fauver, 292 F.3d 141, 144 n.2 (3d Cir. 2002) (referring to the “strong state interest in
internal prison administration”).
The factors of Younger abstention have been met and therefore the case will be
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dismissed. In addition, the Court notes that Plaintiff does not appear to have stated a claim upon
which relief could be granted in any event.
The Supreme Court has held that “[t]he denial of prison access to a particular visitor is
well within the terms of confinement ordinarily contemplated by a prison sentence and therefore
is not independently protected by the Due Process Clause.” Kentucky Dep’t of Corrections v.
Thompson, 490 U.S. 454, 461 (1989) (citation omitted). Non-prisoners have a coextensive right
to reach out to those who are incarcerated, but not greater rights. See Thornburgh v. Abbott, 490
U.S. 401, 410 n.9 (1989) (rejecting magazine publishers’ argument that they had more rights
than those of the prisoners themselves); Neumeyer v. Beard, 301 F. Supp. 2d 349, 351 (M.D. Pa.
2004) (noting that “it is well-settled that there is not a constitutional right to visitation for
convicted prisoners, their family and spouses.”) (footnote and citations omitted), aff’d, 421 F.3d
210 (3d Cir. 2005)); Hill v. Washington Dep’t of Corrections, 628 F. Supp. 2d 1250, 1263 (W.D.
Wash. 2009) (same); Harris v. Murray, 761 F. Supp. 409, 412 (E.D. Va. 1990) (same).
The Court takes judicial notice of the fact that Plaintiff is well aware of this statement of
the law, because it was recently addressed in a nearly identical case she filed in the Middle
District of Pennsylvania. In Pfender v. Secretary Pa. Dep’t of Corrections, 2011 WL 680203
(M.D. Pa. Feb. 16, 2011), aff’d, 443 Fed. Appx. 749 (3d Cir. 2011), cert. denied, 132 S.Ct. 2403
(2012), Plaintiff (then named Donna Pfender) was barred from visiting any state correctional
institution from 2008 to January 7, 2011 after her then common-law husband, Dwayne Hill, was
found to be in possession of a satellite photograph showing a complete aerial view of SCI
Huntingdon’s layout, which could have been used as an implement of escape. After confirming
that the due process clause does not provide an interest in prison visitation and noting that
Plaintiff made no showing that Pennsylvania law created a protected liberty interest in visiting

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privileges, the Court of Appeals held that any right that might exist was necessarily
circumscribed by the need to afford deference to prison officials in the exercise of their
professional judgment. The court concluded that the suspension imposed on Plaintiff was
reasonably related to legitimate penological interests. 443 Fed. Appx. at 752 (citing Turner v.
Safely, 482 U.S. 78, 89 (1987)).
Based upon this case, Plaintiff is aware that she cannot state a cognizable due process
claim for relief arising out of the suspension of her visitation privileges. Her attempt at
reframing her claim as one of First Amendment retaliation may well be an attempt to plead
around the holding of the Court of Appeals in Pfender. The Court need not conclusively resolve
this issue, however, as Defendants’ motion to dismiss on the grounds of Younger abstention will
be granted.
An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA M. HILL,

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Plaintiff,
vs.
JAMES BARNACLE, et al.,
Defendants.

Civil Action No. 12-1145

ORDER
AND NOW, this 3rd day of January, 2013, for the reasons stated above,
IT IS HEREBY ORDERED that the motion to dismiss filed by Defendants (ECF No. 13)
is granted.
IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure if the plaintiff desires to appeal from this Order she must do so within thirty
(30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.

s/Robert C. Mitchell_______________
ROBERT C. MITCHELL
United States Magistrate Judge
cc:

Donna M. Hill
348 Country Club Road
Apt. 2
Washington, PA 15301-2712

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