Opinion
Civil Action 21-148
03-21-2022
ZACHARY R. GRAHAM and KEVIN R. SHAY, Plaintiffs, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS; MICHAEL ZAKEN; GREENAWALT; J. YODIS; and JOHN DOE, Defendants.
ARTHUR J. SCHWAB, DISTRICT JUDGE
RE: ECF NO. 58
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiffs Zachary Graham (“Graham”) and Kevin Shay (“Shay”) (collectively, “Plaintiffs”), inmates incarcerated at the State Correctional Institution at Greene (“SCI-Greene”), bring this action arising out of allegations that prison officials improperly refused to permit them to marry each other and retaliated against them. ECF No. 35.
Presently before the Court is a Motion to Dismiss filed by Defendants Greenawalt, the Pennsylvania Department of Corrections (“DOC”), J. Yodis (“Yodis”) and Michael Zaken (“Zaken”) (collectively, “Defendants”). ECF No. 58. For the following reasons, it is respectfully recommended that Defendants' Motion to Dismiss be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings
Plaintiffs initiated this action on February 1, 2021 by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. Plaintiffs then moved to amend their proposed Complaint. ECF Nos. 4 and 10. After Shay cured certain deficiencies with his filing and individually moved for leave to proceed in forma pauperis, the Court granted Shay's IFP Motion on March 4, 2021. ECF No. 14. The Court also granted Plaintiffs' request to amend their pleadings, and Plaintiffs' First Amended Complaint was filed on March 5, 2021. ECF Nos. 15, 18. Graham later cured certain deficiencies with his filing and individually moved for leave to proceed in forma pauperis, and the Court granted Graham's IFP Motion on June 28, 2021. ECF No. 44.
The Court granted in part Plaintiffs' further request to supplement their pleadings on April 13, 2021. ECF No. 26. Plaintiffs then filed the operative Second Amended Complaint on May 6, 2021. ECF No. 35.
Defendants filed a partial Answer to Plaintiffs' Second Amended Complaint on September 24,2021. ECF No. 60.
2. DOC's Policy on Inmate Marriages
Plaintiffs' claims arise in part out of the DOC's refusal to allow their marriage. The DOC has a policy on inmate marriages, DC-ADM 821. Under this policy, an inmate may not marry without prior DOC approval. The inmate must submit an initial marriage request in writing to his or her counselor. Id. § 1(B)(1). The counselor then interviews the inmate and his or her fiancee before submitting any final plans for the marriage to the Facility Manager for review. Id. § l(B)(2)-(3). The Facility Manager must deny a request for marriage under certain conditions, including if “there are legitimate penological interests that warrant the denial of a marriage for a period.” Id. § 1(A)(2)(d).
The DOC's policies are available on their website, at www.cor.pa.gov/About%20Us/Pages/DQC-Policies.aspx (last visited March 21, 2022).
3. Factual Allegations
a. Plaintiffs' requests to marry
In January 2021, Plaintiffs notified their counselor, Beers, that they wished to marry each other and requested that he conduct an interview under DC-ADM 821. ECF No. 35 ¶¶ 49-52. Beers did not conduct an interview. Id. ¶ 55. Instead, Beers deferred to the Unit Manager, Swartz, who in turn consulted the Prison Rape Elimination Act (“PREA”) Manager, Karen Sokol (“Sokol”). Id. ¶¶ 55-56. Beers relayed Sokol's response as: “You guys are the first same sex couple to ask for a marriage and we don't think we can condone that.” Id. ¶ 56.
Graham personally spoke to Swartz on January 14, 2021. Id. ¶ 57. Swartz told him that she needed to confer with Sokol because “no policy exists concerning same sex couples.” Id. Graham responded that this violated their rights. Id. That afternoon, Graham also spoke to Sokol, who told him that Central Office needed a policy for “same sex couples” to be married. Id. ¶ 58.
On January 20, 2021, Zaken told Graham that Plaintiffs' marriage request was denied for “penological reasons,” specifically, the PREA “prohibits gay sex,” that Plaintiffs are felons, and because he would “never approve a same sex couple that's nasty.” Id. ¶ 63.
On January 31, 2021, Shay submitted an inmate request to staff form to Zaken, requesting that he identify the purported “legitimate penological interests” that prevented them from marrying. ECF No. 35-4 at 3. Despite Zaken's comment that he does not “condone gay sex,” he stated, they were seeking a marriage, not sex. Id. Shay also asked that the grievance process be permitted to proceed, stating that “all grievances brought upon this administration were blocked by Grievance Coordinator, C. Greenwait.” Id.
Zaken responded:
I did not say: “I don't condone gay sex.” I explained several problems with inmates marriages such as: the DOC does not permit former inmates to visit or be placed on phone lists nor does the DOC permit sexual acts with other inmates. These policies are illustrations as to why inmate to inmate marriages would be against penological interest. I will copy Ms. Shawley about your grievances.Id.
Shay also wrote to the former DOC Superintendent, John Wetzel (“Wetzel”) about their marriage request. ECF No. 35 ¶ 67. In response, Staff Assistant J. S. Johnson wrote:
I am in receipt of your correspondence addressed to Secretary Wetzel. It has been assigned to me for review and response.
Mr. Shay, inquiries regarding marriage should be directed to your Facility Manager. At this time, the Department of Corrections has no interests in permitting inmate[s] to marry and this office is not supportive.
I trust the above direction sufficiently addresses your concerns.ECF No. 35-5 at 3.
b. Alleged assault
Shay was reported for lying to an employee about a PREA allegation. ECF No. 35 ¶ 65. On February 5,2021, he was told to collect his property and go to intake, where he would be given a hearing for the misconduct. Id.
While Shay was waiting in the “in-pro cage,” an area used to hold inmates awaiting transfer to the Restricted Housing Unit (“RHU”), two correctional officers asked Shay what he was doing in this area. Id. ¶ 66. After Shay told them about his misconduct, the officers directed him to “cuff up.” Id. Shay complied. Id. The officers then opened the cage and slammed his head into the wall, causing him to bleed. Id. The officers told Shay that Zaken had ordered the assault, and that Shay “better drop the lawsuit” or they would go after Graham. Id.
In their Brief in Response to the Motion to Dismiss, however, Plaintiffs argue they “never said Michael Zaken ordered the assault....” ECF No. 68 ¶ 20. If Plaintiffs do not, in fact, claim that Zaken ordered this assault, they should amend their Complaint as appropriate.
Shortly after this incident, a security officer noticed Shay's injury. Id. Shay was taken for medical treatment and questioned about what happened. Id. Because he was afraid, Shay reported that nothing happened. Id.
c. Grievances
(1) Grievance No. 910033
Shay submitted Grievance No. 910033 on January 12, 2021. ECF No. 35-2 at 6. He reported that Plaintiffs had submitted a marriage request to their counselor, no interview had taken place under DC-ADM 821, and that Swartz claimed they were the first gay couple to request marriage and she did not know “how to go about it.” Id. Shay asserted that discrimination against same-sex marriages is illegal, and he requested to be interviewed with Graham. Id.
On January 15, 2021, Grievance No. 910033 was rejected for two reasons: (1) it was not timely submitted within 15 working days of the events, and (2) the “[g]rievance does not indicate that you were personally affected by a Department of facility action or policy.” Id. at 5.
(2) Grievance Nos. 910024 and 910035
On January 14, 2021, Graham submitted Grievance No. 910024 and Shay submitted Grievance No. 910035. In these grievances, Plaintiffs said that they wished to be married, that it was unconstitutional to deny their request, and that they requested an interview under DC-ADM 821. ECF No. 35-1 at 4, 6. Both grievances were rejected for the stated reason that “[g]rievance does not indicate that you were personally affected by a Department or facility action or policy.” Id. at 3, 5.
(3) Grievance No. 910028
On January 14, 2021, Graham also submitted Grievance No. 910028. ECF No. 35-2 at 4.
This grievance relates to DC-ADM 821 § 2(B)(4), which states that “[t]he bride will be permitted to carry a simple two flower array during the ceremony.” Id. Graham complained that this language is discriminatory, because the use of the word “bride” does not apply to marriages between men. Id. She also wrote that she was being denied the right to marry, she sought the relief of having DC-ADM 821 § 2(B)(4) changed to gender-neutral language, and she requested to be interviewed under DC-ADM 821. Id.
On January 15, 2021, Grievance No. 910028 was rejected for two reasons: (1) it was not timely submitted within 15 working days of the events, and (2) “[g]rievance does not indicate that you were personally affected by a Department of facility action or policy. Id. at 5.
Plaintiffs claim they could not appeal from their rejected grievances, and that the grievances were denied as part of a conspiracy to interfere with their ability to access the judicial process. Id.¶ 61.
4. Legal Claims
Based on these allegations, Plaintiffs bring claims against Defendants Zaken, the DOC, Greenawalt, J. Yodis, and “John Doe.” Id. ¶¶ 9-13. Defendants are named both individually and in their official capacities. Id. ¶ 14.
Plaintiffs assert the following claims against all Defendants: Fourteenth Amendment violation of the Equal Protection Clause; Fourteenth Amendment violation of substantive due process; “Monell” claim; Eighth Amendment claim for cruel and unusual punishment; Eighth Amendment claim for excessive force; conspiracy claims under 42 U.S.C. §§ 1985(2), 1983(3), and 1986; retaliation claim under 42 U.S.C. § 1997d; and “state law tort claims” for: violation of constitutional rights; assault; battery (against John Doe, only); excessive force; and retaliation. Id. ¶¶ 34-46.
Plaintiffs also purport to bring their claims on behalf of a class action under Federal Rule of Civil Procedure 23. Id. ¶ 4.
5. Motion to Certify Class Action
On October 4, 2021, Plaintiffs moved to certify a class action. ECF No. 57. The Court denied this request without prejudice, based on the parties' discussion with the Court during a telephonic status conference on October 4, 2021. ECF Nos. 64 and 66.
6. Motion to Dismiss
On September 24, 2021, Defendants filed the instant Motion to Dismiss and Brief in Support. ECF Nos. 58 and 59. Plaintiffs filed a Response to the Motion to Dismiss and Brief in Support on October 18, 2021. ECF Nos. 68 and 69. The Motion to Dismiss is now ripe for consideration.
B. STANDARD OF REVIEW
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys, v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds')', see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239,245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiffs are Pro se litigants, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Claims against John Doe
Plaintiffs bring all claims against a fictitiously named “John Doe.” If the identity of a defendant is unknown at the time of pleading, in certain situations a plaintiff may name John Doe defendants “until reasonable discovery permits the true defendants to be identified.” Blakeslee v. Clinton Cty., 336 Fed.Appx. 248, 250 (3d Cir. 2009). Because Plaintiffs do not specifically plead any allegations involving “John Doe,” however, they fail to state a claim against this individual. For these reasons, the Court should dismiss all claims against “John Doe.”
Under the Prison Litigation Reform Act, the Court can sua sponte dismiss claims that fail to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915A and 1915(e); 42 U.S.C. § 1997(e). The Court also has authority under Federal Rule of Civil Procedure 21 to, “at any time, on just terms, add or drop a party.” Fed. R. Civ. P.21.
2. Claims against Yodis and Greenawalt
In support of their Motion to Dismiss, Defendants argue that Yodis and Greenawalt should be dismissed because Plaintiff does not plead their personal involvement in any underlying wrong. Defendants argue that Plaintiffs include no allegations relative to Yodis in their Complaint. As for Greenawalt, they argue that Plaintiffs' claims solely arise out of his involvement in the grievance process, which cannot establish his liability. ECF No. 59 at 8.
In response, Plaintiffs ask the Court to dismiss Yodis and Greenawalt. ECF No. 68 ¶ 16. Based on this, the Court should dismiss Plaintiffs' claims against Greenawalt and Yodis.
3. Claims against Defendants in their Official Capacities
Plaintiffs have sued Defendants in their official and individual capacities. ECF No. 35 ¶ 14. To the extent that Plaintiffs seek monetary damages, Defendants argue they are immune from suit in their official capacities. ECF No. 59 at 4.
Plaintiff do not contest this point, arguing that they are only suing Defendants in their official capacities for injunctive relief, which they may do. ECF No. 68 ¶¶ 8-12. For that reason, to the extent Plaintiffs' Second Amended Complaint can be construed as seeking monetary damages from Defendants in their official capacities, any such claim should be dismissed.
The Court notes that Plaintiffs request the Court not to dismiss individual defendants, including John Wetzel (“Wetzel”), on this basis. ECF No. 68 ¶¶ 15, 17. However, Wetzel is not named as a defendant in Plaintiffs' Second Amended Complaint. See ECF No. 35 ¶¶ 9-13.
4. Section 1983 Claims against the DOC
Defendants also argue that Plaintiffs claims under 42 U.S.C. § 1983 against the DOC should be dismissed. Defendants argue that Plaintiffs' claims against the DOC are improper because, as an agency of the state, the DOC is not a “person” subject to liability under 42 U.S.C. § 1983 and is immune from suit. ECF No. 59 at 5.
Although Defendants argue that “all” claims against the DOC should be dismissed on this basis, they only specifically brief this issue relative to Plaintiffs' § 1983 claims. See ECF No. 59 at 5 (citing Will v. Michigan, 491 U.S. 58, 71 (1989) (“[N]either a state nor its officials acting in their official capacities are ‘persons' under 42 U.S.C. § 1983)). As a result, the Court only considers Defendants' argument relative to Plaintiffs' § 1983 claims.
In response, Plaintiffs argue that the DOC can be sued for injunctive relief to force it to obey the Constitution, pursuant to Ex Parte Young, 208 U.S. 123 (1908). ECF No. 68 ¶ 14.
Section 1983 provides a private cause of action for violations of federal constitutional rights. The statute provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress ....42 U.S.C. § 1983.
In this case, Plaintiffs bring a claim for conspiracy, as well as Eighth and Fourteenth Amendment claims, under § 1983. Upon review, the Court should dismiss these claims against the DOC.
Only “persons” can be sued under § 1983. See id. The United States Court of Appeals for the Third Circuit has held that the DOC cannot be sued under § 1983 because “it is not a ‘person' within the meaning of 42 U.S.C. § 1983.” Adams v. Hunsberger, 262 Fed.Appx. 478, 481 (3d Cir. 2008); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that a State is not a “person” within the meaning of § 1983); Lavia v. Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (“Pennsylvania's Department of Corrections is a part of the executive department of the Commonwealth”). Therefore, Plaintiffs § 1983 claims against the DOC should be dismissed on this basis.
The DOC is also entitled to immunity under the Eleventh Amendment as to these claims. The Eleventh Amendment generally precludes private individuals from bringing suit against a state, or one of its agencies, in federal court. Sheffer v. Centre Cnty., No. 4:18-cv-2080, 2019 WL 2621836, at *4 (M.D. Pa. May 23, 2019) (citing U.S. Const. Amend. XI; Pennhurst State Sch. & Hosp, v. Halderman, 465 U.S. 89 (1984)). This is a jurisdictional bar, which applies regardless of the relief sought, including claims brought in equity. Id. (citing Pennhurst, 465 U.S. at 100). Such immunity is not absolute, however, and is “subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc, v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
As an executive department of the Commonwealth, the DOC shares in the Commonwealth of Pennsylvania's Eleventh Amendment immunity. Lavia, 224 F.3d at 195. Moreover, no exception applies. “The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa. C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983.” O' Hara v. Ind. Univ. of Pa., 171 F.Supp.2d 490, 495 (W.D. Pa. 2001). For these reasons, the Court should grant the Motion to Dismiss Plaintiffs' claim for conspiracy under § 1983 and his Eighth and Fourteenth Amendment claims against the DOC.
5. Retaliation Claims
Defendants argue that Plaintiffs' First Amendment retaliation claim should be dismissed. Because Defendants were not served with this lawsuit before Shay was allegedly assaulted, they argue, the assault did not occur in retaliation for Plaintiffs' lawsuit. ECF No. 59 at 6.
Plaintiffs do not specifically address this claim in their Response. ECF No. 68. But they do argue that Defendants knew this lawsuit would be filed. Id. ¶ 20.
Upon review, Plaintiffs' retaliation claims should be dismissed. Although Defendants argue that Plaintiffs fail to state a claim under the First Amendment, Plaintiffs have not pleaded a First Amendment retaliation claim. Instead, Plaintiffs claim that Defendants are liable under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997d, which prohibits retaliation against persons reporting conditions which violate 42 U.S.C. §§ 1997a-j. Because there is no private cause of action under § 1997d, however, this claim should be dismissed. See Chruby v. Kowaleski, No. CV 11-225J, 2012 WL 12875987, at *8 (W.D. Pa. June 5, 2012); Weisman v. N.J. Dep't of Hum. Servs., 817 F.Supp.2d 456, 462 (D. N.J. 2011).
Plaintiffs also bring a “state tort claim” for “retaliation.” Because there is no such claim under Pennsylvania law, this claim should also be dismissed. Therefore, the Motion to Dismiss should be granted as to Plaintiffs' retaliation claims.
6. Monell Claim
Defendants argue that Plaintiffs' Monell claim fails as a matter of law because Defendants are not local municipalities against whom a Monell claim can be brought. Plaintiffs do not address this argument in their Response. ECF No. 69.
Upon review, this claim should be dismissed. As Defendants point out, “Monell stands for the proposition that local governments are not liable under § 1983 for the acts of their employees unless those acts were taken pursuant to a policy or custom of the municipality.” Sims v. City of Phila., 552 Fed.Appx. 175, 177 (3d Cir. 2014) (citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)). “Monell was ‘limited to local government units which are not considered part of the State for Eleventh Amendment purposes . . . .” Quern v. Jordan, 440 U.S. 332, 338 (1979) (quoting Monell, 436 U.S. at 690 n. 54).
As discussed, the DOC is an agency of the State and is therefore entitled to the same Eleventh Amendment immunity the Commonwealth enjoys. Sloan v. Dep't of Corr., No. 2:16-cv-1182, 2017 WL 9487087, at *4 (W.D. Pa. Aug. 16, 2017), report & recommendation adopted, 2017 WL 3910494 (W.D. Pa. Sept. 7, 2017). Neither the DOC nor the individual defendants are municipalities against whom a Monell claim can be brought. See id. (dismissing Monell claim against DOC). For these reasons, the Court should grant the Motion to Dismiss relative to Plaintiffs' Monell claim.
7. Conspiracy Claims
a. Sections 1985(2) and 1986
As for Plaintiffs' conspiracy claims under 42 U.S.C. §§ 1985(2) and 1986, Defendants argue that these statutes are criminal statutes under which there is no private cause of action. ECF No. 59 at 11-12. Plaintiffs do not specifically address these claims in their Response. ECF No. 68.
Upon review, Plaintiffs' conspiracy claims under §§ 1985 and 1986 should not be dismissed on this basis. Contrary to Defendants' claim, these are not criminal statutes. There is a private cause of action under both provisions. See, e.g. . Clark v. Clarbaugh, 20 F.3d 1290, 19596 (3d Cir. 1994); Fetzer v. Cambria Cty. Hum. Servs., 384 F.Supp.2d 813, 817 (W.D. Pa. 2005). As a result, the Motion to Dismiss should be denied relative to Plaintiffs' §§ 1985(2) and 1986 claims.
b. Section 1983
Defendants argue that Plaintiffs fail to state a conspiracy claim under § 1983 because they do not articulate any federal civil right that is the object of the conspiracy, and they rely on insufficient conclusory statements that do not identify who participated in the conspiracy or what was done to further that conspiracy. ECF No. 59 at 12-13. Based on this, Defendants argue that Plaintiffs' conspiracy claim under § 1983 should be dismissed. Id.
Plaintiffs do not specifically address this claim in their Response. ECF No. 68.
Upon review, the Court should not dismiss this claim against Zaken. “To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law ‘reaching an understanding' to deprive him of his constitutional rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018).
For the reasons discussed, this claim should be dismissed on other grounds against Yodis, Greenawalt, John Doe and the DOC. Therefore, this discussion is limited to Plaintiffs' claim against Zaken.
In the Amended Complaint, Plaintiffs claim that Zaken directed two officers to assault and threaten Shay to interfere with Plaintiffs' lawsuit, and that those officers carried out this plan. ECF No. 35 ¶¶ 65-66. This alleged plot implicates a constitutional right because inmates have a First Amendment right of access the courts. Allah v. Sieverling, 229 F.3d 220, 224 (3d Cir. 2000). At this preliminary stage, Plaintiffs sufficiently plead a conspiracy claim. Therefore, the Motion to Dismiss should be denied relative to Plaintiffs § 1983 conspiracy claim against Zaken.
8. State Law Tort Claims
Defendants argue that Plaintiffs' state law tort claims should be dismissed because they are barred by sovereign immunity. ECF No. 59 at 10-11. Or, if the Court dismisses all of Plaintiffs' federal claims, they also argue the Court should decline to exercise supplemental jurisdiction over Plaintiffs' state law tort claims.
The Court notes that Defendants have not moved to dismiss all of Plaintiffs' federal claims. Therefore, it is not necessary to consider this argument.
In response, Plaintiffs argue that sovereign immunity does not apply to officials sued in their individual capacities for monetary damages. ECF No. 68 ¶ 27. They therefore argue that the state law claims should not be dismissed.
In this case, Plaintiffs assert various tort claims under Pennsylvania law for violation of constitutional rights; assault; battery (against John Doe, only); excessive force and retaliation. As discussed, retaliation is not a tort claim under Pennsylvania law and should be dismissed. Plaintiffs' claims for violation of constitutional rights and excessive force are also not tort claims under Pennsylvania law, and those claims should be dismissed for the same reason.
As discussed, any claims against John Doe should be dismissed. Because Plaintiffs only bring their battery claim against John Doe, it is unnecessary to consider this claim.
The Court now considers Plaintiffs' remaining assault claims against Zaken and the DOC. Under Pennsylvania law, the Commonwealth and its employees have broad immunity from most state-law tort claims. Fennell v. Wetzel, No. 4:17-cv-1520, 2019 WL 1264898, at *10 (M.D. Pa. Jan. 18, 2019) (citing 1 Pa. Const. Stat. § 2310) (“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”); see also Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) (“In other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune”). This immunity “applies to Commonwealth employees in both their official and individual capacities, so long as the employees are ‘acting within the scope of their duties.'” Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). “Conduct of an employee is within the scope of employment if ‘it is of a kind and nature that the employee is employed to perform; [and] it occurs substantially within the authorized time and space limits . .. .'” Fennell, 2019 WL 1264898, at *10 (quoting Brautigan v. Fraley, 684 F.Supp.2d 589, 593-94 (M.D. Pa. 2010)) (internal quotations omitted).
Courts in the Third Circuit have held, however, that intentionally tortious conduct which is “‘unprovoked, unnecessary, or unjustified by security concerns or penological goals' does not fall within the scope of employment for purposes of sovereign immunity.” Id. at *11 (citing Wesley v. Hollis, No. 03-3130, 2007 WL 1655483, at *15 (E.D. Pa. June 6, 2007); R.B. Hollibaugh, No. 1:16-cv-663735, 2017 WL 663735, at *16 (M.D. Pa. Feb. 1, 2017), report & recommendation adopted, 2017 WL 661577 (M.D. Pa. Feb. 17, 2017) (several correctional officers denied sovereign immunity when they allegedly physically assaulted the plaintiff based on racial animus); Savage v. Judge, No. 05-2551, 2007 WL 29283, at *5 (E.D. Pa. Jan. 2, 2007) (correctional officer not entitled to sovereign immunity on allegation that he assaulted an inmate to prevent him from testifying in a case against multiple correctional officers); Velykis v. Shannon, No. 1:cv-06-0124, 2006 WL 3098025, at *3-4 (M.D. Pa. Oct. 30, 2006) (correctional officer not entitled to sovereign immunity when he allegedly slammed the door of a transport van shut on the plaintiffs head)).
Based on the above, the DOC is protected by sovereign immunity and the Court should dismiss Plaintiffs' assault claim against the DOC.
However, the Court should not dismiss Plaintiffs' assault claim against Zaken. Viewing the allegations in the light most favorable to Plaintiffs, Zaken did not act within the scope of his duties in directing an assault on Shay. Although correctional officers maintain security within prisons, Plaintiffs claim that this attack was unprovoked by any misconduct on Shay's part, and that he was assaulted in retaliation for filing a prior lawsuit. Because there are factual questions concerning whether Zaken acted outside the scope of his employment at the time of the alleged misconduct, the Court should not dismiss Plaintiffs' assault claim against Zaken.
In sum, the Court should grant the Motion to Dismiss Plaintiffs' tort claims for violation of constitutional rights and excessive force. The Court should also grant the Motion to Dismiss as to Plaintiffs' assault claim against the DOC. The Court should deny the Motion to Dismiss as to Plaintiffs' assault claim against Zaken.
9. Failure to Exhaust Administrative Remedies
Defendants also argue that Plaintiffs' claims should be dismissed because they failed to exhaust their administrative remedies before bringing this lawsuit. ECF No. 59 at 5. Defendants argue that Plaintiffs admit they did not appeal their rejected grievances, which they needed to do in order to exhaust their administrative remedies. Id. at 5-6.
In response, Plaintiffs argue they were told they could not appeal from rejected grievances.
Based on this, they contend they did not fail to exhaust their administrative remedies. ECF No. 68 at 9.
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that a prisoner exhaust available administrative remedies before filing an action challenging prison conditions or experiences. Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner, confined in any jail, prison or correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
As the United States Court of Appeals for the Third Circuit has explained:
The PLRA requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016).
DC-ADM 804 provides a three-step process, and an inmate must follow each of the steps to exhaust his administrative remedies under the PLRA. See Jackson v. Carter, 813 Fed.Appx. 820, 823 (3d Cir. 2020) (“The DOC has a grievance policy involving a three-step process that an inmate must fully complete in order to properly exhaust his administrative remedies under the PLRA.”). The three steps are: (1) initial review by a grievance officer of an inmate grievance; (2) appeal to the facility manager; and (3) final appeal to SOI GA. Pressley v. Huber, Civ. A. No. 3:08-0449, 2017 WL 1062375, at *2 (M.D. Pa. Mar. 21, 2017).
While exhaustion of administrative remedies is mandatory under the PLRA, “[a] prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not ‘available'” to the inmate. Ross v. Blake, 136 S.Ct. 1850,1855 (2016). The United States Supreme Court has described three instances in which an administrative remedy is unavailable as a practical matter: “(1) ‘it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates'; (2) it is ‘ so opaque that it becomes, practically speaking, incapable of use,' such as when no ordinary prisoner can discern or navigate it; or (3) ‘prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” Shumanis v. Lehigh Cnty., 675 Fed.Appx. 145, 148 (3d Cir. 2017) (quoting Ross, 136 S.Ct. at 1859-80).
“The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)); see also Small v. Camden Cnty., 728 F.3d 265, 268 (3d Cir. 2013) (“Failure to exhaust is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff.”).
Upon review, Plaintiffs contend that they did not appeal from their grievances because they were told they could not. At this preliminary stage, there are questions of fact about whether administrative remedies were available to Plaintiffs. See, e.g., Hardy v. Shaikh, 959 F.3d 578, 585 (3d Cir. 2020) (misleading or erroneous instruction can render the administrative process unavailable). Therefore, the Motion to Dismiss should be denied on this basis.
10. Class Action Certification
Finally, Defendants argue that Plaintiffs cannot bring their claims as a class action because, as Pro se inmates, they cannot sufficiently protect and represent the interests of a class. ECF No. 59 at 3-4. The Court has previously addressed this issue in its Order denying Plaintiffs' Motion for Class Certification. ECF No. 66. Therefore, it is not necessary to resolve this issue.
11. Leave to Amend
“If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Based on this, the Court should grant Plaintiffs leave to amend their Complaint to incorporate specific allegations relative to the individual identified as “John Doe.”
As for all other claims, it would be futile to grant leave to amend for the reasons discussed. However, Plaintiff should be granted leave to amend to incorporate a retaliation claim under the First Amendment, as appropriate.
Defendants argue there is no plausible causal connection between Shay's assault and this lawsuit, given that Defendants were not served until after the assault occurred. However, this action was commenced before the assault, and Plaintiffs could plausibly show that Defendants had knowledge through means other than formal service of process.
D. CONCLUSION
For these reasons, the Motion to Dismiss should be granted in part and denied in part. The Court should dismiss Plaintiffs' claims against “John Doe” without prejudice, with leave to amend.
The Court should dismiss the following claims with prejudice:
1. The claims against Yodis and Greenawalt;
2. The claims for monetary damages against Defendants in their official capacities;
3. The claims under 42 U.S.C. § 1983 against the DOC, specifically, Plaintiffs' Fourteenth Amendment claims for violation of the Equal Protection Clause and the Due Process Clause; Eighth Amendment claims for cruel and unusual punishment and excessive force; and conspiracy claim under 42 U.S.C. § 1983;
4. The “Monell” claim;
5. The retaliation claim under 42 U.S.C. § 1997(d); and
6. The state law tort claims for violation of constitutional rights; excessive force; and retaliation.
Although Plaintiffs' retaliation claims under 42 U.S.C. § 1997(d) and Pennsylvania law should be dismissed with prejudice, Plaintiff should be granted leave to amend to incorporate a First Amendment retaliation claim, as appropriate.
The Motion to Dismiss should be denied with respect to any other requested relief.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.