STEWART v. CAMEARON et al

Filing 21

MEMORANDUM OPINION granting in part and denying in part 14 Defendants' Motion to Dismiss for Failure to State a Claim. The motion will be granted as to Plaintiff's claims brought against the individual defendants in their official capaci ties and Plaintiff's Fourteenth Amendment due process claim against Defendant McKeown.The motion will be denied in all other respects. See attached memorandum opinion for details. Signed by Magistrate Judge Cynthia Reed Eddy on 2/12/2018. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEE STEWART,

)
)
Plaintiff,
)
)
v.
)
)
KENNETH CAMERON, Superintendent, )
C/O BRUMBAUGH,
)
C/O MOONEY,
)
CPT. MILLER,
)
HEARING EXAMINER C.J. McKEOWN, )
and C/O JOHN DOE,
)
)
Defendants.

Civil Action No. 3:17-cv-0066
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION1
Before the Court is the Defendants’ motion to dismiss Plaintiff’s Amended Complaint,
with brief in support (ECF No. 14 and 15) and Plaintiff’s response in opposition (ECF No. 18).
After careful consideration of the parties’ submissions, in light of the standards governing
motions to dismiss set forth by the United States Supreme Court in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009), and as articulated in
United States Court of Appeals Third Circuit precedent, see, e.g., Connelly v. Lane Const.
Corp., 809 F.3d 780, 790 (3d Cir. 2016), and for the following reasons, the motion will be
granted in part and denied in part.
Background
Plaintiff Lee Stewart (“Plaintiff” or “Stewart”) is a state prisoner in the custody of the
Pennsylvania Department of Corrections (“DOC”) currently confined at SCI - Dallas. Plaintiff
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All served parties have consented to jurisdiction by the undersigned Magistrate Judge. See 28
U.S.C. § 636, et. seq.; Consent to Trial / Jurisdiction by United States Magistrate Judge (ECF
Nos. 4 and 20). Defendant C/O John Doe remains unidentified and unserved.
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brings this civil rights action under 42 U.S.C. § 1983 alleging that his constitutional rights under
the First Amendment were violated when he was placed in Administrative Custody (“AC”) and
then transferred from SCI-Houtzdale to SCI-Dallas in retaliation for exercising his
constitutionally protected right to file a lawsuit and that his constitutional rights under the
Fourteenth Amendment were violated when he was denied an impartial misconduct hearing.
Defendants move to dismiss the Amended Complaint based upon Plaintiff’s failure to state a
claim.
For purposes of resolving the pending motion, the following facts are as alleged in the
amended complaint, viewed in the light most favorable to Plaintiff, and liberally construed.
Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Haines v. Kerner, 404 U.S.
519, 520-521 (1972).
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).
Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it
is appropriate.
In November of 2013, Plaintiff filed in this Court a civil rights action under § 1983
against several prison officials and medical personnel from SCI-Houtzdale, in addition to
Corizon Health Care, then a contractual medical service provider to the Pennsylvania
Department of Corrections, alleging that defendants denied him adequate medical care in
connection with a left ankle injury he suffered while playing basketball. See Civil Action No.
3:13-cv-0246.

In the instant lawsuit, Plaintiff alleges that during the course of his previous

litigation, Defendants Brumbaugh and Mooney frequently harassed him, by inter alia,
threatening to sabotage his lawsuit and throwing him in the “hole.” Through his Amended
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Complaint, Plaintiff alleges that on one occasion, Defendant Brumbaugh told him that he
“hate[d] inmates that sue hard working staff.” Amended Complaint, at ¶ 1.
In 2015, “tired of the threats harassment of Brumbaugh and Mooney,” Plaintiff sent
requests slips to Defendant Miller, who at the relevant time was the Shift Commander,
informally complaining about the harassing behavior of Brumbaugh and Mooney. Plaintiff
alleges that soon after his complaint(s), he was placed in RHU on administrative custody on May
8, 2015, per order of Defendant Miller, due to him being “a danger to some persons in the
facility.” Id. at ¶ 3. While in RHU, Plaintiff was served with a misconduct report, #B770230,
which charged him with “possession of a dangerous or controlled substance,” and “unauthorized
use of the mail or telephone.” Id. at ¶ 4. The Misconduct Report was authored by Defendants
Brumbaugh, Mooney, and C/O John Doe. Two days after receiving the misconduct report,
Plaintiff was “permanently” transferred to SCI-Dallas on May 14, 2015.2
On May 21, 2015, Plaintiff appeared before Defendant McKeown for his misconduct
hearing. According to the Amended Complaint, “before plaintiff could plead or submit a written
version, McKeown . . . [had] personally spoken with Capt. Miller of SCI-Houtzdale about the
charges of misconduct, and suggested for plaintiff to cop-out to charges for lenience.” Id. at ¶ 7.
Although Plaintiff told Defendant McKeown that the misconduct was in retaliation for his

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At the time of his transfer, Plaintiff’s prior lawsuit was pending and defendants had only
recently filed motions for summary judgment. See Docket, 3:13-cv-0246, ECF Nos. 87, 91, and
95. On May 28, 2015, the Court received a motion from Plaintiff asking for an enlargement of
time in which to respond to the motions for summary. ECF No. 100, dated May 19, 2015. In the
motion, Plaintiff stated that he had been in the RHU since May 8, 2015, and was informed on
May 14, 2015, that he was being transferred to SCI-Dallas. On June 8, 2015, Plaintiff filed a
Notice of Change of Address, indicating that he had in fact been transferred to SCI-Dallas. ECF
No. 103, dated June 1, 2015.
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ongoing lawsuit against SCI-Houtzdale staff, McKeown found Plaintiff guilty of the charges and
sanctioned him to 180 days of disciplinary custody in RHU.
In May of 2015, Plaintiff filed Grievance #570638 in which he charged that his transfer
to SCI-Dallas was in retaliation for his lawsuit against the prison officials and medical personnel
at SCI-Houtzdale. His grievance was rejected as “being in conflict with DOC policies 801 and
802.” Id. at ¶ 9.
On April 20, 2017, this case was initiated in this Court. (ECF No. 1). On July 17, 2017,
Defendants filed a motion to dismiss. (ECF No. 10). In response, Plaintiff filed an Amended
Complaint (ECF No. 13), which supersedes the original complaint and is the operative pleading
in this case. Presently pending is the Defendants’ motion to dismiss the amended complaint on
the following grounds: (1) Plaintiff has failed to show the personal involvement of
Superintendent Cameron, Hearing Examiner McKeown, and Captain E. Miller; (2) Plaintiff has
failed to state a claim against Defendants Brumbaugh, Mooney, and/or Miller relating to the
filing of a false misconduct report; (3) Plaintiff has failed to state a Fourteenth Amendment
claim; (4) Plaintiff has failed to state a claim against Defendants for retaliation; and (5)
Plaintiff’s claims against Defendants in their official capacities are barred by Eleventh
Amendment immunity. (ECF No. 15) Plaintiff has filed a brief in opposition. (ECF No. 18).
The matter is now ripe for disposition.
Discussion
Plaintiff brings his claims under 42 U.S.C. § 1983 for violations of his First and
Fourteenth Amendment rights. To successfully state a claim against any of the defendants for a
violation of his constitutional rights pursuant to 42 U.S.C. §1983, Plaintiff must allege that: (1)
the conduct complained of was committed by a person acting under color of state law; and, (2)
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the conduct complained of deprived Plaintiff of rights, privileges, or immunities secured by the
laws or the Constitution of the United States. See Rehberg v. Paulk, 566 U.S. 356, 361 (2012).
Plaintiff’s claims will be addressed seriatim.
1.

Official Capacity Claims

Defendants assert that, to the extent that Plaintiff is suing them in their official capacities
for monetary damages, they are immune from suit under the Eleventh Amendment. The Court
agrees.
It is well settled that suits for damages by individuals against state governments, state
agencies, or state officers acting in their official capacities are barred by the Eleventh
Amendment. Sossamon v. Texas, -- U.S. --, 131 S.Ct. 1651, 1657-58 (2011). No exceptions to
Eleventh Amendment immunity are applicable here. The Commonwealth of Pennsylvania has
not consented to be sued.

Congress has not expressly abrogated Pennsylvania’s Eleventh

Amendment immunity from civil rights suits for damages. Smith v. Luciana, No. 97-3613, 1998
WL 151803, *4 (E.D.Pa. March 31, 1998), aff’d, 178 F.3d 1280 (3d Cir. 1999) (Table). Thus,
Plaintiff’s claims against Defendants in their official capacities will be dismissed.
2.

Personal Involvement

It is well-settled that liability under § 1983 requires a defendant's “personal involvement”
in the deprivation of a constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d
Cir. Oct. 21, 2013) (citing Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60,
73 (3d Cir. 2011)). This means that the defendant must have played an “affirmative part” in the
complained-of misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit . . .
[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only
liable for his or her own misconduct.”); Oliver v. Beard, 358 F. App’x 297, 300 (3d Cir. 2009);

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Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Supervisory liability may attach if the
supervisor personally “participated in violating the plaintiff's rights, directed others to violate
them, or, as the person in charge, had knowledge of and acquiesced” in a subordinate's
unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572,
586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).3
Here, Defendants assert that Plaintiff's claims against Defendants Cameron, Miller, and
McKeown must be dismissed because he has failed to establish their personal involvement in the
alleged constitutional violations. The Court disagrees with this assertion for the following
reasons.
Defendants argue that the essence of Defendant Cameron’s involvement was that of the
role of Superintendent at SCI-Houtzdale. Plaintiff responds that Defendant Cameron approved
the order for AC-confinement and emergency transfer of Plaintiff to SCI-Dallas, and that
Defendant Cameron received direct information from Defendant Brumbaugh. At this early
juncture of the litigation, the Court finds that these allegations are minimally sufficient to
establish Defendant Cameron’s personal involvement in Plaintiff’s retaliation claim, the merits
of which will be discussed later in this opinion.
Next, Defendants argue that Defendant McKeown was the hearing examiner at SCIDallas who found Plaintiff guilty of a misconduct and that a conclusion adverse to what Plaintiff
would have preferred is not enough to demonstrate McKeown’s “acquiescence” in an alleged
constitutional violation that purported occurred at SCI-Houtzdale.

Plaintiff responds that

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The Court notes that supervisory liability may also attach if the supervisor, “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.” A.M. ex rel. J.M.K, 372 F.3d at 586 (quoting
Stoneking v. Bradford Area Sch. Dist, 882 F.2d 720, 725 (3d Cir. 1989). However, there are no
allegations regarding a relevant policy, practice or custom in this case.
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McKeown made his disciplinary decision “right after [a] phone conversation with Miller,” that
Plaintiff informed McKeown that the misconduct was issued in retaliation for a pending lawsuit
he had against SCI-Houtzdale staff, and that rather than take any action upon receiving this
information, McKeown imposed a substantial disciplinary punishment. As with the allegations
against Cameron, the Court finds that these allegations are minimally sufficient to establish
Defendant McKeown’s personal involvement in Plaintiff’s retaliation claim, the merits of which
will be discussed later in this opinion.
Defendants also argue that the allegations against Defendant Miller are insufficient to
establish personal knowledge of any constitutional violation. Plaintiff responds that Defendant
Miller investigated and approved his transfer to AC custody and the false misconduct report
issued by Brumbaugh, Mooney, and John Doe. Plaintiff alleges that Miller approved the transfer
and the misconduct in retaliation for Plaintiff’s pending lawsuit against fellow SCI-Houtzdale
employees. Again, the Court find these allegations to be minimally sufficient to establish
Defendant Miller’s personal involvement in Plaintiff’s retaliation claim, the merits of which will
be dismissed later in this opinion.
3.

The Issuance of a False Misconduct Report

Defendants move to dismiss the claims against Brumbaugh and Mooney based upon their
allegedly filing a false misconduct report. Defendants correctly state that the filing of a false
misconduct report does not state a cognizable constitutional claim. However, the Court finds that
Plaintiff’s allegations are more than allegations of filing a false misconduct report; rather the
Amended Complaint states that defendants’ actions were retaliatory based on Plaintiff’s filing of

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a lawsuit against SCI-Houtzdale staff.

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“[R]etaliation for the exercise of constitutionally

protected rights . . . ‘is itself a violation of rights secured by the Constitution actionable under
section 1983’.” Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting White v. Napoleon,
897 F.2d 103, 111-12 (3d Cir. 1990)).
4.

First Amendment Claims

As stated supra, Plaintiff alleges that he was placed in AC custody and then transferred
to SCI-Dallas in retaliation for exercising his constitutionally protected right to file a lawsuit5
and that the hearing examiner acquiescenced in the retaliatory conduct by finding him guilty. To
state a claim for retaliation, a prisoner must allege that: (i) he was engaged in constitutionally
protected conduct, (ii) he suffered some adverse action at the hands of prison officials, and (iii)
“his constitutionally protected conduct was ‘a substantial or motivating factor’ in the decision to
take that action.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citation omitted).
The Court finds that the allegations of the Amended Complaint state plausible First
Amendment retaliation claims to survive a motion to dismiss challenge.

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In their brief, Defendants argue that “Plaintiff contends the Defendants’ actions were based
on retaliation for Plaintiff filing a lawsuit several years ago against a former Superintendent and
‘six health care employees.’” Br. at 7 (ECF No. 15). This is not entirely accurate. As noted in
the Background section of this opinion, Plaintiff’s prior lawsuit was against several prison
officials, employees, and medical personnel working at SCI-Houtzdale. Further, the retaliatory
conduct alleged in this lawsuit occurred while that lawsuit was pending.
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At this juncture, the Court must note that in his opposition brief, Plaintiff appears to be
broadening his retaliation claim; specifically, that the adverse actions of Defendants “prevented
[him] from consummating an appeal of civil action no. 3:13-cv-00246.” Br. at 8. It is not clear
to the Court whether Plaintiff is attempting to amend his Amended Complaint in a response
brief, which is something he is not permitted to do under the Federal Rules. However, the Court
notes that Plaintiff did in fact file an appeal in that case, and the Court of Appeals for the Third
Circuit issued an Opinion on January 31, 2017, summarily affirming the decision of the District
Court. See Stewart v. Pennsylvania Dept. of Corrections, et al., Nos. 16-1897 & 16-2339, slip
op., filed Jan. 31, 2017.
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5.

Fourteenth Amendment claims

Plaintiff’s Fourteenth Amendment claim against Defendant McKeown is based upon the
same facts as alleged to support his retaliation claim against McKeown -i.e., that he acquiesced
in the improper retaliatory conduct by finding him guilty of the misconduct. The Supreme Court
of the United States has restricted the availability of Fourteenth Amendment due process claims
to those instances that are not covered by legal tests and standards applicable to other
constitutional amendments. See County of Sacramento v. Lewis, 523 U.S. 833 (1998). Thus,
any attempted Fourteenth Amendment claim against McKeown based upon the same facts as
alleged to support the retaliation claim is barred by the doctrine set forth Albright v. Oliver, 510
U.S. 266 (1994) (plurality) and Graham v. Connor, 490 U.S. 386 (1989).
“Where a particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment, not the more
generalized notion of “substantive due process,” must be the guide for analyzing these claims’.”
Albright, 510 U.S. at 273 (quoting Graham, 490 U.S. at 395). See also Kapp v. Wetzel, 2017
WL 1927731, at *3 (W.D. Pa. May 10, 2017) (same). Therefore, Plaintiff’s claims against
Defendant McKeown are properly evaluated under the First Amendment, and not as a Fourteenth
Amendment due process claim. Defendants’ request to dismiss this claim will be granted.
Conclusion
For all the above reasons, the pending motion to dismiss will be granted in part and
denied in part. Specifically, the motion will be granted as to Plaintiff’s claims brought against the

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individual defendants in their official capacities and Plaintiff’s Fourteenth Amendment due
process claim against Defendant McKeown. The motion will be denied in all other respects.
An appropriate Order follows.

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc:

LEE STEWART
GM-3632
SCI Dallas
Drawer K, Follies Road
Dallas, PA 18612
(via U.S. First Class Mail)
J. Eric Barchiesi
Office of Attorney General
(via ECF electronic notification)

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