WATSON v. GILL et al

Filing 83

ORDER granting in part and denying in part 47 Defendant Teagarden's Partial Motion to Dismiss for Failure to State a Claim. The Motion to Dismiss is granted as to Plaintiffs calculated harassment and equal protection claims and these claims ar e dismissed with prejudice as to both Defendants. The Motion to Dismiss is denied as to Plaintiffs claim for assault and battery. Plaintiffs claim for retaliation will move forward. Plaintiffs due process claim is sua sponte dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Signed by Magistrate Judge Lisa Pupo Lenihan on October 17, 2018. (kcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DEVON WATSON,
Plaintiff,
v.
SHON GILL and CO 1
TEAGARDEN,
Defendants.

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Civil Action No. 17 – 545
Magistrate Judge Lisa Pupo Lenihan

ECF No. 47

MEMORANDUM OPINION
For the following reasons, the Partial Motion to Dismiss filed by Defendant Teagarden
(ECF No. 47) will be granted in part and denied in part. Specifically, the Motion to Dismiss will
be granted as to Plaintiff’s calculated harassment and equal protection claims and these claims
will be dismissed with prejudice as to both Defendants. The Motion to Dismiss will be denied as
to Plaintiff’s claim for assault and battery. Plaintiff’s due process claim that he raises for the first
time in his response in opposition to the Motion to Dismiss will be dismissed sua sponte but his
claim for retaliation will move forward.
A. Procedural Background
Plaintiff Devon Watson (“Plaintiff”) initiated the instant prisoner civil rights action
pursuant to 42 U.S.C. § 1983 by submitting a Complaint that was docketed on April 27, 2017.
(ECF No. 1.) Plaintiff filed an Amended Complaint on December 6, 2017 (ECF No. 30) that
was subsequently stricken from the record for his failure to receive permission before filing
(ECF Nos. 31, 32). He then requested and received permission to file an Amended Complaint

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(ECF Nos. 36, 38, 39) which was docketed on January 10, 2018 (ECF No. 40). Shortly
thereafter, Plaintiff filed a Second Amended Complaint (ECF No. 43) and a Third Amended
Complaint (ECF No. 46). 1 Defendant Teagarden responded by filing a Motion to Dismiss
Plaintiff’s Third Amended Complaint (ECF No. 47) to which Plaintiff filed a Brief in Opposition
(ECF No. 51). Plaintiff filed a Motion to Correct Errors (ECF No. 65) made on paragraphs 33
and 35 of his complaint, which was granted on August 13, 2018 (ECF No. 69). As a result,
paragraphs 33 and 35 were stricken and replaced by those in his motion. Defendant Teagarden’s
Motion to Dismiss is now ripe for review.
B. Factual Background
The following allegations are contained in Plaintiff’s Third Amended Complaint (ECF
No. 46). On November 2, 2016, Plaintiff was escorted from the Psychiatric Observation Cell
(“POC”) at SCI-Greene to Housing Block H (“H-Block”) by Defendants Gill and Teagarden.
Id., ¶¶ 6-7. Plaintiff states that during the escort, Defendants aggressively grabbed him, forcing
his arms into an awkward angle that caused him pain. Id., ¶¶ 6, 9. Plaintiff also states that while
he was being escorted, he heard “laughing and loud noises coming from down the hallway,
which prompted him to look in the direction the sounds were coming from.” Id., ¶ 11. At that
moment, he heard an unknown sergeant and Defendant Gill state that they were going to “fuck
him up” if Plaintiff turned his head again. Id., ¶ 12. This started a verbal exchange between
Plaintiff and Defendant Gill, which Plaintiff states consisted of threats made by Defendant Gill
that caused him to fear for his safety and well-being. Id., ¶¶ 13-14, 16. In response to Defendant
Gill threatening Plaintiff physical harm if he were to “turn his head,” Plaintiff stated to
Defendant Gill that he would “only do so on camera” or else it would be staff’s word against his

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Plaintiff incorrectly labeled his Third Amended Complaint as a Second Amended Complaint.
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own and no one would believe him. Id., ¶ 18. When they entered H-Block, Defendant Gill
gestured in the direction of something he said was a camera and told Plaintiff “there goes a
camera right there, now turn your fucking head.” Id., ¶ 20. Plaintiff turned his head and only
saw a circular mirror. Id., ¶ 21. He states that, at that moment, Defendant Gill “quickly
slammed [him] into the wall, while screaming ‘stop resisting.’” Id., ¶ 22. Plaintiff states that
Defendant Teagarden then joined in on the assault by assisting Defendant Gill with “slamming
him on the ground.” Id., ¶ 24. Defendant Gill then allegedly struck Plaintiff in the face and head
repeatedly with his knee. Id., ¶ 29.
He alleges that it is practice for correction officers at SCI-Greene to use the phrase “stop
resisting” in order to create a false record of resistance to justify the use of excessive force. Id., ¶
23. He also claims that force was used against him without provocation and as a means of
punishment and revenge. Id., ¶¶ 25, 27.
As a result of the force used by Defendants, Plaintiff claims to have hit the floor so hard
that his tooth went through his lip. Id., ¶ 28. He was escorted to medical triage where he was
treated by two unknown nurses and then transferred to a cage where he was strip searched before
being housed in the RHU. Id., ¶¶ 30, 32.
Later that night, Plaintiff was issued a misconduct for allegedly telling Defendant Gill
during the escort that he was going to spit on him if he didn’t get his property back and making
hawking sounds as if he was going to do so. (ECF No. 65, p.2.) Plaintiff claims that the
misconduct was falsified by Defendant Gill so that he had an excuse for using excessive force
against him and Plaintiff also claims that Defendant Gill had Defendant Teagarden confirm the
report to cover up Gill’s use of force. Id.

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Plaintiff states that he reported the alleged assault on him to the abuse hotline on
November 5, 2016, and, on February 3, 2017, the allegation of abuse was upheld as substantiated
by the security department at SCI-Greene and the Office of Special Investigations and
Intelligence. (ECF No. 46, ¶¶ 37-38.)
Plaintiff had another run-in with Defendant Gill on March 1, 2017, at which time
Defendant Gill allegedly tightened his grip on Plaintiff’s arm while he was escorting Plaintiff to
speak to the PREA Lieutenant and his counselor. Id., ¶ 39. Defendant Gill told Plaintiff, “When
I get a chance, I’m going to get you again.” Id., ¶ 40. Plaintiff reported Defendant Gill’s
behavior to Lieutenant Howells and Counselor Mansberry. Id., ¶ 43. In turn, Lieutenant
Howells spoke to Unit Manager Mankey who then reassigned Defendant Gill to a different work
station while she was present in the facility. Id., ¶ 44. However, Defendant Gill went back onto
Plaintiff’s unit when Mankey was not present in the facility, and Plaintiff states that this caused
him continued sleeplessness and paranoia. Id., ¶ 45.
Plaintiff also reported Defendant Gill’s continual harassment to Sergent Charney,
informing him that he may be “forced to strike [Defendant] Gill first before he’d allow Gill to
brutally beat on him again.” Id., ¶ 46. As a result of this admission, Plaintiff received another
misconduct. Id., ¶ 47.
Plaintiff was transferred from SCI-Greene’s RHU mental health unit to the RHU mental
health unit at SCI-Graterford on May 31, 2017. Id., ¶ 50. He states that he is still confined in the
RHU which prohibits him from meeting parole eligibility requirements. Id., ¶ 52. He also
claims that he is being treated differently than other inmates. Id., ¶ 53.
C. Standard of Review

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The United States Court of Appeals for the Third Circuit summarized the standard to be
applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a Plaintiff must come forward
with “a short and plain statement of the claim showing that the
pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009), a claimant must state a “plausible” claim for
relief, and “[a] claim has facial plausibility when the pleaded
factual content allows the Court to draw the reasonable inference
that the Defendant is liable for the misconduct alleged.” Although
“[f]actual allegations must be enough to raise a right to relief
above the speculative level,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a Plaintiff “need only put forth allegations
that raise a reasonable expectation that discovery will reveal
evidence of the necessary element.” Fowler, 578 F.3d at 213
(quotation marks and citations omitted); see also Covington v. Int’l
Ass’n of Approved Basketball Officials, 710 F.3d 114, 117–18 (3d
Cir. 2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than
when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972).
When presented with a pro se complaint, the court should construe the complaint liberally and
draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a §1983 action, the court must “apply the
applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d
244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this
is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently
alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at
688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege

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sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc.,
296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
D. Discussion
Plaintiff raises the following claims for relief: calculated harassment (count one);
excessive force (count two); equal protection (count three); and assault and battery (count four).
Defendants move to dismiss counts one, three and four.
a. Calculated Harassment
Plaintiff claims that Defendants violated his right to be free from cruel and unusual
punishment by their “initiation of calculated harassment through [the] overt and malicious use of
excessive force” against him and falsifying a misconduct report in order to “justify and[/]or
conceal their arbitrary conduct in the assault [on] November 2, 2016.” (ECF No. 46, ¶¶ 62-63.)
The Motion to Dismiss seeks dismissal of this claim because its description appears to be a
restatement of Plaintiff’s excessive force claim. Plaintiff, however, insists that it is not a
restatement of his excessive force claim, but rather evidence of a “pattern of calculated
harassment” such that “the cumulative effect is of a constitutional magnitude.” (ECF No. 51,
p.4.) According to Plaintiff, this appears to encompass Defendants’ threats to cause him physical
harm, manipulation of a situation so that they could engage in the arbitrary use of force, and the
subsequent falsification of official documents. Id., p.3.
Despite Plaintiff’s pleas to the contrary, “calculated harassment” is not a claim in and of
itself apart from the separate and discrete actions by the Defendants. Thus, while Plaintiff may
assert individual claims for excessive force and due process, which he does, he is not entitled to
relief based on the cumulative effect of Defendants’ actions that gave rise to those individual
claims. It is also noted that verbal abuse of inmates and threats by guards does not state a

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constitutional claim. See Robinson v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006) (citing
cases). For these reasons, the Court will grant the Motion to Dismiss as to this “calculated
harassment” claim and to any stand-alone claim based on the alleged verbal harassment and
abuse Plaintiff suffered.
b. Equal Protection
Plaintiff alleges that Defendants have violated his right to equal protection by treating
him differently from other inmates. How Plaintiff claims he was treated differently is less than
clear in his complaint, but he appears to clarify somewhat in his response in opposition to the
Motion to Dismiss. Specifically, he states that the Defendants treated him differently from other
inmates by intentionally provoking him into reacting in ways that would justify the use of force
against him and falsifying misconduct reports resulting in Plaintiff’s confinement in restricted
housing so that he is unable to satisfy the program requirements for parole. (ECF No. 51, pp.46.)
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).
Plaintiff’s equal protection claim does not implicate a suspect class, as prisoners are not a
suspect class, Myrie v. Comm’r, N.J. Dep’t of Corr., 267 F.3d 251, 263 (3d Cir. 2001); Abdul-

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Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001). Nor does Plaintiff’s equal protection
claim implicate a fundamental right, e.g., rights which implicate a fundamental human interest,
such as the right to vote, the right of association, the right of access to the courts, or any rights of
privacy. See, e.g., Abdul-Akbar, 239 F.3d at 317 (termination of parental rights and ability to
obtain a divorce are fundamental rights); Vill. Of Belle Terre v. Boraas, 416 U.S. 1, 7 (1974)
(citations omitted) (fundamental rights guaranteed by the Constitution include voting, the right of
association, the right of access to the courts, or any rights of privacy). Consequently, when a
plaintiff does not allege membership in a suspect class or interference with a fundamental right,
he “must at a minimum allege that he was intentionally treated differently from others similarly
situated by the defendant and that there was no rational basis for such treatment.” Phillips v.
County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).
Here, Plaintiff has failed to state a claim for an equal protection violation because he has
failed to identify any specific inmate(s) from whom he was treated differently. Instead, his
reference to “similarly situated inmates” appears to refer to all inmates in general. However,
Plaintiff seems to acknowledge that his circumstances are not in fact similar to all other inmates
and that he was treated differently based on his individual conduct. For example, he states in his
response in opposition to the Motion to Dismiss that Defendants attacked him as revenge for
making complaints against other officers. (ECF No. 51, p.5.) In fact, Plaintiff’s allegations
appear to be nothing more than a claim for retaliation. 2 Thus, having failed to describe any
similarly situated inmates who were treated differently, Plaintiff has failed to raise a right to

In his response in opposition to the Motion to Dismiss, and in connection with these factual
allegations, Plaintiff raises for the first time claims for retaliation and due process. (ECF No. 51,
p.6.) These claims were not included in his complaint but will nonetheless be addressed given
Plaintiff’s pro se status.
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relief under the Equal Protection Clause. Accordingly, Plaintiff’s equal protection claim will be
dismissed with prejudice.
c. Assault and Battery
Plaintiff claims that Defendants’ actions amounted to the state tort of assault and battery
under Pennsylvania law. Under Pennsylvania law, “the Commonwealth, and its officials and
employees acting within the scope of their duties, shall continue to enjoy sovereign immunity
and official immunity and remain immune from suit except as the General Assembly shall
specifically waive the immunity.” 1 PA. CONS. STAT. § 2310. Sovereign immunity applies to
intentional as well as negligent torts. Story v. Mechling, 412 F. Supp. 2d 509, 518-19 (W.D. Pa.
2006). There are, however, nine exceptions to sovereign immunity: (1) vehicle liability; (2)
medical/professional liability; (3) care, custody or control of personal property; (4)
Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous
conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard
activities; and (9) toxoid and vaccines. 42 PA. CONS. STAT. § 8522(b).
Although Plaintiff’s state law claims are not included in the categories for which
sovereign immunity has been waived, Defendants are only entitled to immunity if they were
acting within the scope of their employment during the alleged assault that occurred on
November 2, 2016. See 1 PA. CONS. STAT. § 2310. Under Pennsylvania law, conduct falls
within the scope of employment if it “is of a kind and nature that the employee is employed to
perform; it occurs substantially within the authorized time and space limits; it is actuated, at least
in part, by a purpose to serve the employer; and if force is intentionally used by the employee
against another, it is not unexpected by the employer.” Strothers v. Nassan, Civ. No. 08-1624,

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2009 WL 976604, at *8 (W.D. Pa. Apr. 9, 2009) (quoting Natt v. Labar, 543 A.2d 223, 225 (Pa.
Commw. Ct. 1988)).
If Plaintiff’s allegations are true, then Defendants use of force was unprovoked and
unwarranted by security concerns or penological interests. This alleged use of force is not the
type of force expected or permitted by employees with the Department of Corrections. While the
record may prove otherwise after discovery, neither Defendant is entitled to sovereign immunity
at this stage of the proceedings.
d. Retaliation
Plaintiff asserts that Defendants’ antagonization and use of force against him was revenge
for his filing of complaints against officers. (ECF No. 51, pp.5-6.)
It is well settled that retaliation for the exercise of a constitutionally protected activity is
itself a violation of rights secured by the Constitution, which is actionable under section 1983.
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir.
1990). However, merely alleging the fact of retaliation is insufficient; in order to prevail on a
retaliation claim, a plaintiff must show three things: (1) that the conduct in which he engaged
was constitutionally protected; (2) that he suffered “adverse action” 3 at the hands of prison
officials; and (3) that his constitutionally protected conduct was a substantial motivating factor in
the defendants’ conduct. 4 Rauser, 241 F.3d at 333 (adopting Mount Healthy Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977)).
An adverse action is one “sufficient to deter a person of ordinary firmness from exercising his
rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
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The crucial third element, causation, requires a plaintiff to prove either (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. See Lauren W. ex
rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Krouse v. American Sterilizer Co.,
126 F.3d 494, 503-04 (3d Cir. 1997)). The mere fact that an adverse action occurs after a complaint
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At this stage of the litigation, there are enough facts set forth by Plaintiff to raise a
reasonable expectation that further discovery in this case may reveal evidence of retaliatory
intent. 5 Although Plaintiff faces a substantial burden in proving his claim, he alleges sufficient
facts to support a cause of action based on retaliatory use of force.
e. Due Process
Plaintiff claims that the way he was treated by Defendants also gives rise to a due process
claim. (ECF No. 51, p. 6.) However, Defendants’ conduct in this case as alleged by Plaintiff
does not give rise to an actionable due process claim. Plaintiff was not denied a liberty or a
property interest, and therefore does not have a procedural due process protections, see Shoats v.
Horn, 213 F.3d 140, 143 (3d Cir. 2000), and Defendants’ action does not rise to the level of
conscience-shocking egregiousness so as to give rise to a claim of substantive due process, see
United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa., 316 F.3d 392, 399-400 (3d
Cir. 2003). Therefore, the Court will sua sponte dismiss this claim with prejudice. 6
In sum, the Motion to Dismiss will be granted as to Plaintiff’s calculated harassment and
equal protection claims and these claims will be dismissed with prejudice as to both Defendants.
The Motion to Dismiss will be denied as to Plaintiff’s claim for assault and battery. Plaintiff’s
or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link
between the two events. See Lape v. Pennsylvania, 157 F. App’x. 491, 498 (3d Cir. 2005).
A prisoner’s ability to file grievances and lawsuits against prison officials is a protected activity
for purposes of a retaliation claim. See Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir.
1981) (retaliation for exercising right to petition for redress of grievances states a cause of action
for damages arising under the constitution); Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995)
(prison officials may not retaliate against an inmate for complaining about a guard’s
misconduct).
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Because Plaintiff is proceeding in forma pauperis, the Court is granted the authority to sua
sponte dismiss his complaint, or any portion thereof, that (a) is frivolous, malicious, or fails to
state a claim upon which relief may be granted, or (b) seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
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due process claim that he raises for the first time in his response in opposition to the Motion to
Dismiss will be dismissed sua sponte but his claim for retaliation will move forward.
E. Amendment of Complaint
The court must allow amendment by the plaintiff in civil rights cases brought under §
1983 before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless
doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the
district court must offer the opportunity to amend unless it would be inequitable or futile). We
are cognizant of these holdings but find that allowing for amendment by Plaintiff would be futile.
Dated: October 17, 2018.
_________________________
Lisa Pupo Lenihan
United States Magistrate Judge
cc: Devon Watson
LA 4948
SCI Fayette
48 Overlook Drive
LaBelle, PA 15450
Counsel for Defendants
Via CM/ECF Electronic Mail

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DEVON WATSON,
Plaintiff,
v.
SHON GILL and CO 1
TEAGARDEN,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 17 – 545
Magistrate Judge Lisa Pupo Lenihan

ECF No. 47

ORDER
AND NOW, this 17th day of October, 2018;
IT IS HEREBY ORDERED that the Partial Motion to Dismiss filed by Defendant
Teagarden (ECF No. 47) is granted in part and denied in part. The Motion to Dismiss is granted
as to Plaintiff’s calculated harassment and equal protection claims and these claims are dismissed
with prejudice as to both Defendants. The Motion to Dismiss is denied as to Plaintiff’s claim for
assault and battery. Plaintiff’s claim for retaliation will move forward.
IT IS FURTHER ORDERED that Plaintiff’s due process claim is sua sponte dismissed
with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).

_________________________
Lisa Pupo Lenihan
United States Magistrate Judge
cc: Devon Watson
LA 4948
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SCI Fayette
48 Overlook Drive
LaBelle, PA 15450
Counsel for Defendants
Via CM/ECF Electronic Mail

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