Opinion
Civil Action 2:20-cv-1376
07-14-2021
SHAMONE WOODS, Plaintiff, v. SGT BOWLIN, LT A.J. MORRIS, CO MISHLER, JOHN DOE CERT TEAM MEMBER, SCI GREENE and PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that the Court grant in part and deny in part Defendants' Motion to Dismiss Amended Complaint. (ECF No. 36.)
II. Report
A. Relevant Procedural History
Plaintiff Shamone Woods is a state prisoner currently housed at SCI Coal Township. He is proceeding pro se in this civil rights action, which he commenced in the United States District Court for the Middle District of Pennsylvania in July 2020. In his Complaint (ECF No. 1), he asserted claims related to a cell search that occurred when he was housed at SCI Greene. The District Court granted his motion for leave to proceed in forma pauperis and transferred the case to this Court.
The defendants named in Plaintiff's original complaint filed a motion to dismiss that was rendered moot when Plaintiff amended his complaint (ECF No. 27) in January 2021. In the Amended Complaint, which is Plaintiff's operative pleading, he names as defendants the Pennsylvania Department of Corrections (“DOC”), SCI Greene, and Sgt. Bowlin, Corrections Officer (“CO”) Mishler, and Lt. A.J. Morris, all of whom worked at SCI Greene during the events described in this lawsuit:. The Amended Complaint also includes a John Doe defendant, who is identified as a member of the CERT Team. Plaintiff brings constitutional tort claims against each defendant under 42 U.S.C. § 1983 as well as supplemental state law claims against CO Mishler and the John Doe defendant. The Court has jurisdiction over Plaintiff's § 1983 constitutional tort claims under 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction over his state tort claims under 28 U.S.C. § 1367.
Plaintiff listed in the original complaint the “Security Office” and “CERT Team” among the defendants. He did not name either entity as a defendant in the Amended Complaint. Thus, although the Defendants in their motion move to dismiss the Security Office and the CERT Team from this civil action, those entities were terminated in January 2021 when Plaintiff filed the Amended Complaint and dropped them from this lawsuit.
Pending before the Court is Defendants' Motion to Dismiss Amended Complaint. (ECF No. 36) which has been fully briefed. (ECF Nos. 37, 40.)
B. Factual Allegations in the Amended Complaint
At the time of the events in question, Plaintiff was housed at SCI Greene in the EA block, cell 23. (Amend. Compl, ECF No. 27, ¶¶ 2, 11.) On August 21, 2018, CO Mishler and John Doe entered Plaintiff's cell. They first searched him. After that search was completed, they handcuffed Plaintiff and searched his cell. (Id., ¶¶ 12-13.) Plaintiff overheard either CO Mishler or John Doe say: “Look[ ] he's suing the DOC.” (Id., ¶¶ 17-19.)
During the search of Plaintiff's cell, CO Mishler and John Doe confiscated and discarded Plaintiff's personal photographs as well as legal documents related to a lawsuit he had filed against Dr. Denise Smyth. (Id., ¶¶ 18-29, 50-61.) Among the legal documents they threw out was a certificate of merit that Plaintiff required in his lawsuit against Dr. Smyth. (Id., ¶¶ 58-59.) That lawsuit was “dismissed as a result of Plaintiff not having the certificate[, ]” and as a result, he “was unable to secure the damages award.” (Id., ¶¶ 60-61.) Plaintiff asked CO Mishler and John Doe why they confiscated his photographs and legal documents. (Id., ¶¶ 20-22.) In response, John Doe asked Plaintiff why he was suing the DOC. (Id., ¶ 23.)
Plaintiff was not issued a receipt for the items taken from his cell. (Id., ¶¶ 40-42). After the search had concluded he asked Sgt. Bowlin and Officer Rigglemon (who is not a defendant in this case) “to please let him retrieve his legal work and photographs.” (Id., ¶ 29.) They “[b]oth answered no[.]” (Id., ¶ 30.)
Plaintiff submitted a grievance following the August 21, 2018 incident. Lt. Morris denied this grievance. Plaintiff unsuccessfully appealed Lt. Morris' decision through the DOC's grievance process. (Id., ¶¶ 31-39; see also Amend. Compl. Ex. A, ECF No. 27-1 at pp. 2-4.)
On an unspecified date Lt. Morris told Plaintiff that he should drop his lawsuit against Dr. Smyth and if he did so “things will stop happening.” (Id., ¶ 63.) Not long afterwards, Plaintiff “was taken off of Medical Z code status and bottom bunk status[, ]” and he no longer got responses to his sick call slips. (Id., ¶¶ 64-65.) Plaintiff asked a nurse why this was occurring and she told him that Lt. Morris “requested it.” (Id., ¶ 66.)
The Amended Complaint raises four counts against one or more of the defendants. In Count 1, Plaintiff claims that CO Mishler and John Doe violated DC-ADM 203, which is the DOC's policy governing searches of inmates and their cells. (Id., ¶¶ 40-43.)
In Count 2, Plaintiff asserts that each defendant violated his rights under the Eighth and Fourteenth Amendments because they subjected him to an “unreasonable search” and destroyed his personal property during the search. (Id., ¶¶ 43-45.) He also claims that some of the defendants (presumably the DOC, SCI Greene, Lt. Morris and Sgt. Bowlin) failed in their “duty to investigate thoroughly” Plaintiff's complaints. (Id., ¶¶ 43-48; see also id. at p. 9, asserting that the DOC and SCI Greene are liable to Plaintiff because those entities “are responsive for actions of [their] employees.”)
In Count 3, Plaintiff claims that CO Mishler and John Doe subjected him to intentional infliction of emotional distress and were negligent because they “acted unprofessionally when they destroyed [his] possessions.” (Id., ¶¶ 49-62.) Additionally, reading the Amended Complaint liberally, as the Court must, Plaintiff claims that CO Mishler and John Doe denied him access to the court in violation of the First Amendment because they destroyed legal documents pertaining to his lawsuit against Dr. Smyth, including the certificate of merit that he needed for the litigation of that case. (Id., ¶¶ 57-61.) Plaintiff alleges that as a result of this conduct, his lawsuit against Dr. Smyth was dismissed. (Id.)
In Count 4, Plaintiff asserts that John Doe and Lt. Morris retaliated against him for filing a lawsuit against Dr. Smyth and/or the DOC. (Id., ¶¶ 62-69.)
As relief, Plaintiff seeks monetary damages of more than two million dollars and “any such other relief as the law may allow or this Court may deem appropriate.” (Id.)
C. Standard of Review
At the pleading stage, Rule 8 requires a “short plain statement” of facts, not legal conclusions, “showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When dismissing a civil rights case for failure to state a claim, a court typically must allow a plaintiff to amend a deficient complaint, 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). “An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” Alston v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
The Supreme Court held that, pertaining to Rule 12(b)(6)'s standard of review, 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, “[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.
The Court of Appeals has summarized this inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.
This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are
sufficiently alleged.Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
“A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation marks omitted); see also Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant's pleadings is well-established.”).
In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, attached exhibits and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). As a result, the Court may not consider the declarations that Plaintiff has attached to his response in opposition to Defendants' motion that purportedly were executed by fellow inmates who witnessed relevant events. (See ECF No. 40-1.)
D. Discussion
Section 1983 “provides a cause of action against state actors who violate an individual's rights under federal law.” Filarsky v. Delia, 566 U.S. 377, 380 (2012). Section 1983 does not create substantive rights but instead “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
A plaintiff must plead a defendant's personal involvement in the alleged deprivation of his constitutional right. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of § 1983 itself, only a person who “subjects, or causes to be subjected” another person to a civil rights violation can be held liable under § 1983. Thus, each defendant is liable only for his or her own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Correctional Medical, 766 F.3d 307, 316 (3d Cir. 2014) (rev'd sub. nom. on other grounds 575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)).
The doctrine of respondeat superior, which makes an employer automatically responsible for the wrongdoing of its employees, does not apply under § 1983. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); see, e.g., Rode, 845 F.2d at 1207. For that reason, supervisor-defendants cannot be held liable for every illegal act that takes place in a correctional facility. Rather, they are only liable for their own conduct.
The Court of Appeals has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may 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. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 11907 91 (3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Rode, 845 F.2d at 1208.
1. Claims Against the DOC, SCI Greene and Official Capacity Claims
Defendants assert that the DOC and SCI Greene are immune from suit under the Eleventh Amendment, which proscribes actions in the federal courts against states, their agencies and state officials acting within their official capacities. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985); Pennhurst State Sch. & Hospital v. Halderman, 465 U.S. 89 (1984).
The DOC and the facilities that comprise the DOC are agencies or arms of the Commonwealth of Pennsylvania and, as such, they are entitled to Eleventh Amendment immunity unless an exception to such immunity applies. See, e.g., Lavia v. Pennsylvania, Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (“Because [the DOC] is a part of the executive department of the Commonwealth.it shares in the Commonwealth's Eleventh Amendment immunity.”) “Such immunity.may be lost in one of two ways: (1) if the Commonwealth waived its immunity; or (2) if Congress abrogated the States' immunity pursuant to a valid exercise of its power.” Id. Neither exception applies in this case. The Commonwealth has not waived its immunity, see, e.g., id. (citing Pa. Const. Art. I, § 11 and 42 Pa. Cons. Stat. § 8521(b)), and Congress did not abrogate states' sovereign immunity when it enacted § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989); Quern v. Jordan, 440 U.S. 332, 339-46 (1979).
If Plaintiff is suing the individual SCI Greene employees in their official capacities (which the Amended Complaint refers to as their “professional capacities”), they are also entitled to Eleventh Amendment immunity. Official capacity claims against state employees are indistinguishable from claims against the entity that employs them (here, the DOC and SCI Greene). Graham, 473 U.S. at 165-66 (“Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.'”) (quoting Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690, n. 55 (1978)). Thus, “an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id.
Under the rule of Ex parte Young, 209 U.S. 123 (1908), a plaintiff may sue individual state officers in their official capacity for prospective injunctive and declaratory relief to end an ongoing violation of federal law. See, e.g., Pennsylvania Federation of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002). Ex part Young does not apply here because Plaintiff is not seeking prospective relief to end an ongoing violation of federal law. See, e.g., Verizon Md., Inc. v. Public Service Comm'n of Md., 535 U.S. 635, 645 (2002) (regarding the Ex parte Young exception, “a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.”)
For these reasons, it is recommended that the Court grant the Defendants' motion to the extent it seeks the dismissal of the DOC, SCI Greene and all claims brought against the individual defendants in their official capacities. Dismissal should be with prejudice because Plaintiff's claims against the DOC and SCI Greene, as well as his official capacity claims, are barred under Eleventh Amendment immunity.
2. Count 1: “Breach of Policy” Claim Against CO Mishler and John Doe
Plaintiff claims in Count 1 that CO Mishler and John Doe are liable to him because their conduct during the August 21, 2018 cell search violated DOC policy. Defendants contend that the Court should dismiss Count 1 with prejudice because, even accepting as true Plaintiff's allegations, there was no violation of federal law. Therefore, Count 1 fails to state a claim under § 1983.
“The simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension.” Lee v. Schrader, No. 2:13-cv-1757, 2014 WL 2112833, *4 (W.D. Pa. May 20, 2014) (citing United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981), Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“[T]here is no federal constitutional liberty interest in having state officers follow state law or prison officials follow prison regulations.”), Culbert v. Young, 834 F.2d 624, 628 (7th Cir. 1987) (adopting mere procedural guidelines does not give rise to a liberty interest; thus, the failure to follow regulations does not itself result in a violation of due process), and Shango v. Jurich, 681 F.2d 1091, 1101-02 (7th Cir. 1982) (“[A] state created procedural right is not itself a liberty interest States may decide to engage in such proceedings, but the due process clause does not compel them to do so because no constitutionally cognizable substantive interest of the prisoner is at stake.”)). “Thus, violations of state statutes or rules or regulations that require certain procedures, which are not compelled by the Federal Constitution because there is no liberty interest that those state mandated procedures protect, do not make out a claim under [§] 1983.” Id. (citations omitted).
Count 1 is premised solely upon Plaintiff's allegation that CO Mishler and John Doe did not follow DOC policy. Defendants are correct that this does not state a claim for relief under § 1983. Id.; see, e.g., Pettis v. Everhart, No. 3:19-cv-1308, 2020 WL 5548719, *5 (M.D. Pa. Sept. 16, 2020) (plaintiff's claims against defendants for violating DOC policies dismissed for failure to state a claim upon which relief can be granted), aff'd, No. 20-3032, - Fed.Appx. -, 2021 WL 1664111 (3d Cir. Apr. 28, 2021); Noble v. Wetzel, No. 18-cv-1160, 2019 WL 4279975, *10 (W.D. Pa. Aug. 1, 2019) (plaintiff's claim that defendants violated DOC policies must be dismissed with prejudice), report and recommendation adopted by 2019 WL 4279016 (W.D. Pa. Sept. 10 2019).
Thus, it is recommended that the Court grant Defendants' motion to the extent that it seeks the dismissal of Count 1's “Breach of Policy” claim. The dismissal should be with prejudice because amendment would be futile.
3. Count 2: Confiscation of Plaintiff's Property and Failure to Investigate
In Count 2, Plaintiff claims that each defendant violated his rights under the Eighth and Fourteenth Amendments because CO Mishler and John Doe subjected him to an “unreasonable” cell search, destroyed his property during that cell search, and the other defendants failed to investigate the matter and protect him from the alleged violation of his constitution rights. (Amend. Compl., ECF No. 27, ¶¶ 43-48.)
It is the Fourth Amendment, not the Eighth Amendment, that governs unreasonable searches and seizures. The Supreme Court has held that the Fourth Amendment's protections do not apply to an inmate's prison cell or personal property. Hudson v. Palmer, 468 U.S. 517, 526, 528 n.8 (1984) (holding that the Fourth Amendment proscription against unreasonable searches and seizures “does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objections of penal institutions.”); Crosby v. Piazza, 465 Fed.Appx. 168, 172 (3d Cir. 2012). Thus, Plaintiff's allegation that he faced an “unreasonable” cell search does not state a plausible claim under the Fourth Amendment.
The Eighth Amendment protects inmates from “cruel and unusual punishment.” U.S. Const. amend. VIII. In Hudson, the Supreme Court observed that cell searches amounting to “calculated harassment unrelated to prison needs” may constitute cruel and unusual punishment. 468 U.S. at 529. Plaintiff complains only about the cell search conducted on August 21, 2018, and although he challenges how the cell search was carried out, he does not allege that the search occurred without justification or for an improper reason. Thus, the Amended Complaint does not state a plausible Eighth Amendment claim since a single cell search generally cannot constitute an Eighth Amendment violation. See, e.g., Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir. 1989) (a single search of a prisoner's cell does not rise to the level of an Eighth Amendment violation); Schlager v. Beard, 398 Fed.Appx. 699, 700-02 (3d Cir. 2010) (defendants' conduct of confiscating the prisoner's legal materials as contraband during a cell search did not violate the Eighth Amendment); Tate v. Campbell, 85 Fed.Appx. 413, 417 (6th Cir. 2003) (“the single search of a prisoner's cubicle does not rise to the level of an Eighth Amendment violation”); see also Banks v. Beard, No. 2:03-cv-659, 2006 WL 2192015, *11 (W.D. Pa. Aug. 1, 2006) (“less than a handful of searches over the period of several months” did not violate the Eighth Amendment).
Plaintiff also alleges in Count 2 that the confiscation and destruction of his property during the cell search violated his due process rights under the Fourteenth Amendment. Accepting as true Plaintiff's allegations that his property was confiscated and destroyed, these allegations do not state a plausible claim that Plaintiff's due process rights were violated. The Supreme Court has stated that “the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.” Parratt v. Taylor, 451 U.S. 527, 542 (1981) (citation omitted), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Further, it is not relevant whether the alleged loss of the inmate's property occurred as the result of negligent or intentional conduct. Hudson, 468 U.S. at 533-34.
A number of courts have concluded that Pennsylvania provides an adequate remedy for inmates whose property is lost, stolen, or destroyed by prison officials. Inmate grievance procedures, as well as the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. §§ 8541-8546, are available to provide adequate post-deprivation remedies. See, e.g., Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008) (finding the DOC's grievance process to be an adequate remedy); Tapp v. Proto, 404 Fed.Appx. 563, 567 (3d Cir. 2010) (“deprivation of inmate property by prison officials does not state a cognizable due process claim if the prisoner has an adequate post-deprivation state remedy[, ]” and concluding that DOC grievance procedure provided adequate remedy); Mattis v. Dohman, 260 Fed.Appx. 458, 461 (3d Cir. 2008) (“A prisoner's due process claim based on a state actor's unauthorized deprivation of property is not actionable under § 1983 unless no adequate post-deprivation remedy is available.”)
As alleged in the Amended Complaint, SCI Greene had a grievance process and Plaintiff used that process to seek to remedy the destruction of his property. That he “did not prevail in this procedure in no way affects the procedure's adequacy as a post-deprivation remedy.” Austin v. Lehman, 893 F.Supp. 448, 454 n.4 (E.D. Pa. 1995) (citations omitted). Thus, Plaintiff cannot maintain a Fourteenth Amendment due process claim against any of the defendants.
Additionally, Plaintiff cannot proceed with a claim for “failure to investigate” or “failure to protect” against either Sgt. Bowlin or Lt. Morris. If Plaintiff seeks to hold them liable for the actions of CO Mishler and John Doe because they were supervisory officials at SCI Greene, he cannot do so under § 1983. As discussed above, the doctrine of respondeat superior does not apply under § 1983 and Sgt. Bowlin and Lt. Morris can be held liable only for their own conduct. Iqbal, 556 U.S. at 676; Rode, 845 F.2d at 12 07.
Moreover, the Amended Complaint includes only one factual allegation against Sgt. Bowlin-that he told Plaintiff “no” in response to Plaintiff's request for permission to retrieve the items that CO Mishler and John Doe allegedly threw out during the search of his cell. (Amend. Compl., ECF No. 27, ¶¶ 29-30.) That allegation fails to state a due process claim against Sgt. Bowlin because Plaintiff had a post-deprivation remedy for the alleged destruction of his property.
As for Lt. Morris, Plaintiff appears to seek to impose liability upon him in Count 2 because he denied the grievance that Plaintiff filed following the cell search. (Amend. Compl., ECF No. 27, ¶¶ 31-32; Amend. Compl. Ex. A, ECF No. 27-1 at p. 3.) It is well established that “an officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement” necessary to state a claim under § 1983. Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013). As a result, courts have routinely dismissed such allegations for lack of personal involvement. See, e.g., id. (“[The plaintiff] alleges that [defendants] were involved in the theft of his property; however, their involvement only relates to their review of [his] grievances regarding his property. While [the plaintiff's] grievances made [the defendants] aware that [the plaintiff] was missing property, this awareness does not amount to the requisite personal involvement.”); Kloss v. SCI Albion, 1:15-cv-282, 2018 WL 4609144, *4 (W.D. Pa. Aug. 15, 2018) (“If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official.”), report and recommendation adopted by, 2018 WL 4599814 (W.D. Pa. Sept. 25, 2018); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (same)
For these reasons, it is recommended that the Court grant Defendants' motion regarding the dismissal of Count 2 with prejudice. Amendment would be futile since the single cell search and destruction of Plaintiff's personal property cannot state a plausible claim under the Fourth, Eighth or Fourteenth Amendments. Similarly, it would be futile to provide Plaintiff with an opportunity to attempt to cure the pleading deficiencies of Count 2 regarding his claims against Sgt. Bowlin and Lt. Morris for their “failure to investigate” or “failure to protect.” While Plaintiff is attempting to impute liability based solely on their positions of authority over CO Mishler and John Doe, he cannot do so under § 1983.
4. Count 3: State Tort Claims and Denial of Access to Court Claim Against CO Mishler
In Count 3, Plaintiff asserts against CO Mishler and John Doe a § 1983 denial of access to court claim and state law claims of intentional infliction of emotional distress and negligence. These claims turn on Plaintiff's allegation that CO Mishler and John Doe destroyed his family photographs and legal documents, including a certificate of merit needed for the litigation of his lawsuit against Dr. Smyth. Defendants move to dismiss only the intentional infliction of emotional distress claim, arguing that it is barred by Pennsylvania's sovereign immunity law.
Pennsylvania's sovereign immunity law provides that: “Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that 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 (emphasis added).
Defendants argue that CO Mishler is entitled to sovereign immunity because “there is no evidence that [he] acted outside the scope of his employment at any time material to this action.” (ECF No. 37, at pp. 9-10) (emphasis added). The Court should reject this argument, however, because at this stage of the litigation Plaintiff is not required to direct the Court to evidence countering CO Mishler' sovereign immunity defense. Additionally, Defendants cite no authority to support a conclusion that it is apparent from the face of the Amended Complaint that CO Mishler was acting within the scope of his duties when he engaged in the actions as pled. Under the circumstances of this case, whether CO Mishler is entitled to sovereign immunity is an issue that should be addressed after the close of discovery as a dispositive motion.
Thus, it is recommended that the Court deny Defendants' motion to the extent that it seeks dismissal of the intentional infliction of emotional distress claim against CO Mishler in Count 3.
5. Count 4: Retaliation Claim Against Lt. Morris
Plaintiff asserts a retaliation claim against Lt. Morris in count 4. To state a plausible First Amendment claim for retaliation, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct; (2) the defendant at issue took adverse action against him; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take that adverse action. See, e.g., Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
Defendants argue that Plaintiff does not sufficiently allege the required elements of retaliation to state a claim. This argument is not persuasive. Plaintiff alleges in the Amended Complaint that Lt. Morris retaliated against him because he was pursuing his lawsuit against Dr. Smyth. The filing of a lawsuit is constitutionally protected conduct that satisfies the first element of a retaliation claim. See, e.g., DeFranco v. Wolfe, 387 Fed.Appx. 147, 157 (3d Cir. 2010). Plaintiff also alleges that he no longer received responses to his sick calls after Lt. Morris made the statement to him about the lawsuit, and a nurse told him that this was at Lt. Morris' direction. (Amend. Compl., ECF No. 27 ¶¶ 63-68.) These allegations satisfy the second and third elements of a retaliation claim. Since the Court must accept Plaintiff's allegations as true and draw all reasonable inferences in his favor, Plaintiff has stated a plausible retaliation claim against Lt. Morris.
For these reasons, it is recommended that the Court deny Defendants' motion regarding the dismissal of the retaliation claim against Lt. Morris.
III. Conclusion
It is respectfully recommended that the Court grant in part and deny in part Defendants' Motion to Dismiss Amended Complaint (ECF No. 36) as follows:
1. grant the motion to the extent that it seeks the dismissal with prejudice of the DOC, SCI Greene and all official-capacity claims from this lawsuit;
2. grant the motion to dismiss to the extent that it seeks the dismissal with prejudice of Count 1 and Count 2;
3. deny the motion to dismiss to the extent that it seeks the dismissal of the intentional infliction of emotional distress claim Plaintiff asserts against CO Mishler in Count 3; and
4. deny the motion to dismiss to the extent that it seeks the dismissal of the retaliation claim Plaintiff raises against Lt. Morris in Count 4.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).