Opinion
CIVIL 3:23-cv-762
12-29-2023
ARMONI JOHNSON, Plaintiff, v. BLUE SHIRT DAVIS, et al., Defendants.
(Chief Judge Brann)
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Introduction
Pending before the court is the defendants' motion to dismiss the claims in the plaintiff's pro se complaint. Initially, Armoni Musad Johnson (“Johnson”), the pro se plaintiff, who is an inmate at SCI Coal Township, brought suit in the Pennsylvania Court of Common Pleas of Northumberland County against the following staff members at SCI Coal Township: Blue Shirt Davis (“Davis”), Unit Manager Biscoe (“Biscoe”), Officer Jamison (“Jamison”), and Sgt. Fargo (“Fargo”). In his complaint, Johnson asserted retaliation and conspiracy claims against the defendants relating to what he claimed was a fabricated misconduct report filed against Johnson, which Johnson alleges was filed in retaliation for a prior grievance he submitted.
In May of 2023, the defendants removed the case to federal court, and subsequently filed a motion to dismiss for failure to state a claim, which is currently pending before the court. (Doc. 5). The motion is fully briefed and is ripe for resolution. (Doc. 6, 9). For the following reasons, we will recommend that the motion to dismiss be granted in part and denied in part.
II. Statement of Facts and of the Case
The factual background of this case is taken from the allegations set forth in the plaintiffs' complaint (Doc. 1-1), which this court must accept as true when deciding a motion to dismiss.
At the time Armoni Johnson filed this complaint he was incarcerated at SCI Coal Township. (Doc. 1-1, ¶ 1). At the correctional facility, Johnson had a job working the kitchen. (Id., ¶ 6). In February 2022, Johnson returned to this kitchen job after not working for a period of time to recover from COVID-19. (Id.) Johnson alleges that it was at this time that he was made aware of Davis fabricating a report to parole about Johnson. (Id.) Johnson claimed that he learned of this incident through a counselor from D-A Block. (Id.)
In response, Johnson filed a grievance against Davis dated February 23, 2022. (Id.; Exhibit One). In the grievance Johnson asserts that on February 18, 2022, he discovered that Davis fabricated a report against him to parole on February 15, 2022. (Id.) The grievance also states that on February 16, 2022, Davis was harassing Johnson and Davis told Johnson “he got me.” (Id.) While this February 23, 2022, grievance was pending Johnson alleges Davis threatened him which led him to file another grievance.
Johnson states that on March 1, 2022, he went to work in the kitchen and was excused for the day. (Id., ¶ 9). Johnson asserts that when he was leaving the kitchen Davis harassed and threatened him, but he ignored Davis and left the kitchen without incident. (Id., ¶ 10). Johnson was then prohibited from working from March 2, 2022, until March 8, 2022. (Id., ¶ 11) Johnson claims he was not given a misconduct report until March 8, 2022, when he was called into a hearing with Defendant Bisco, the unit manager. (Id.) According to the plaintiff Davis wrote the misconduct report Johnson was eventually given. (Id., ¶ 12). Johnson alleges that Davis fabricated this report in retaliation for Johnson filing grievances several days earlier. (Id.) Additionally, Johnson asserts that the report was fabricated in retaliation for Johnson complaining about Davis' “threats to plaintiff which threats came to pass approved by [Fargo].” (Id.)
This allegedly fabricated report by Davis is dated March 1, 2022, and lodges a misconduct charge against Johnson for refusing to obey an order. (Id.; Exhibit two). In the report, Davis explains he was “in the process of trying to pat search [Johnson]. [Johnson] had a container of coffee/sugar and this writer gave him a direct order to give to me. [He] refused to do so. This writer then ordered [Johnson] to sit down to be searched ....[Johnson] refused to sit down and walked out the door.” (Id.) After this, Davis states in the report that he ordered Johnson to return to the kitchen and Johnson made a vulgar remark in response in and returned to his housing unit. (Id.) Lastly, in his report Davis states: “Please remove from his job.” (Id.)
Johnson alleges that Bisco, who conducted the hearing following Johnson being prohibited from working, “did not want to hear anything” he had to say with respect to the grievances he filed prior to Davis writing the fabricated misconduct report, which resulted in Johnson being removed from his job. (Id., ¶ 14).
Upon leaving this hearing, Johnson claims that an unknown inmate gave him an e cigarette and another unknown inmate gave him notes, which he claims he did not have any knowledge of the content of the notes at the time. (Id., ¶ 15). Defendant Bisco observed these exchanges and thus approached Johnson to attempt to obtain what the other inmates had handed to him. (Id., ¶ 16). Johnson gave Bisco the ecigarette but walked away with the notes. (Id., ¶ 17). Johnson alleges that upon examination he discovered that the notes “were notes of competitions endorsed by the facility but construed as gambling tickets.” (Id.) Johnson states that the notes were ripped up and given to Bisco. (Id., ¶ 18). As a result, Johnson received a misconduct by Officer Jameson for running a gambling ring, possession of contraband, and disobeying an order. (Id., ¶ 19).
Johnson asserts that all of the defendants retaliated against him in violation of the of the First Amendment after he filed a grievance alleging that Davis filed a fabricated misconduct report against him to parole on February 15, 2022. Additionally, Johnson lodges a conspiracy claim against all of the defendants. (Id., ¶¶ 22-27). Johnson alleges that “all of the defendants actions was retaliation & harassment & conspiracies to paint bad pictures against [Johnson] to the parole board.” (Id., at ¶ 20).
Pending before the court is the defendants' motion to dismiss the complaint. After consideration, we conclude that the plaintiffs' conspiracy claim with respect to all of the defendants should be dismissed. As for the retaliation claim, we conclude that the plaintiff has sufficiently alleged facts to state a claim of retaliation with respect to defendant Davis. However, we conclude that Johnson has failed to state a claim of retaliation against the other defendants.
III. Discussion
A. 12(b)(6) Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. 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. Finally, “where
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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. The Defendants' Motion to Dismiss Should be Granted in Part and Denied in Part.
As we have noted, Johnson asserts claims of retaliation and conspiracy stemming from allegations that a fabricated misconduct report was filed against Johnson in retaliation for prior grievances Johnson filed. As we will discuss below, we agree that the conspiracy claim should be dismissed as to all defendants. However, as to the retaliation claim we conclude that this claim should be dismissed with respect to all the defendants except Davis.
1. Johnson's Retaliation Allegations are Sufficient to State a Claim Against Davis but not Against the Other Defendants
The plaintiff's complaint articulates a First Amendment retaliation claim based upon the filing of a grievance by Johnson and what is alleged to have been Davis' retaliatory decision to file a fabricated misconduct report that resulted in Johnson's termination from his job at the correctional institution's kitchen. To ultimately succeed on this retaliation claim, Johnson must allege well-pleaded facts which show that he: (1) engaged in a protected activity; (2) that the government took action against the plaintiff at the time of or after the protected action; (3) that the protected activity caused the government to take the action that harmed the plaintiff. Anderson v. Davila, 125 F.3d 148, 148, 161 (3d Cir. 1977). Thus, “[t]he threshold requirement is that the plaintiff identify the protected activity that allegedly spurred the retaliation.” Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). More specifically, a prisoner claiming that prison officials have retaliated against him for exercising his constitutional rights must first prove the following three elements: (1) the conduct in which he engaged was constitutionally protected; (2) he suffered adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002). With respect to the obligation to demonstrate that he suffered an adverse action, a plaintiff must demonstrate that he suffered action that “was sufficient to deter a person of ordinary firmness from exercising his rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). Examples of adverse actions that have, in certain cases, been found to support a retaliation claim include filing false misconduct reports, Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003), transferring a prisoner to another prison, Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001), and placing a prisoner in administrative custody, Allah, 229 F.3d at 225.
For the reasons discussed below, we conclude that Johnson has adequately pleaded a retaliation claim against Davis. However, we do not conclude that Johnson has adequately pleaded a retaliation claim with respect to any of the other defendants. In this regard, for purposes of this motion the defendants “concede that filing a grievance is protected activity” but assert that “Johnson fails to establish that an adverse action was taken against him by Defendants due to the exercise of the protected activity.” (Doc. 6, at 5).
Turning first to the retaliation claim against Davis, the defendants argue that Davis could not have been aware of the grievance which was the supposed impetus for Davis to fabricate a misconduct report because the grievance was denied by the Facility Grievance Coordinator. (Id., at 6-7). In response, Johnson highlights that this argument precludes the granting of a motion to dismiss because it raises a question of fact-whether Mr. Kelly, the grievance responder, spoke with Davis before or after March 1, 2022, the date Davis filed the allegedly fabricated misconduct report at issue. We agree with the plaintiff. There is an unresolved issue of fact as to whether Davis would have been aware of Johnson's grievance. Therefore, at this juncture, granting a motion to dismiss would be improper.
In the alternative, the defendants argue that even if Davis “could have been aware of the grievance, Johnson's claim still fails due to a lack of causation.” (Doc. 6, at 7). This argument goes toward the third essential element to a retaliation claim-is there a causal link between the exercise of a constitutional right and the adverse action taken against the prisoner. Rauser, 241 F.3d at 333-34. To establish this third, and crucial, component to a constitutional retaliation claim, causation, Johnson must allege facts which make an exacting showing. In this setting:
To establish the requisite causal connection a plaintiff usually must 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 Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997). In the absence of that proof the plaintiff must show that from the “evidence gleaned from the record as a whole” the trier of the fact should infer causation. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000).Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Moreover, when examining these causation issues, we are specifically admonished that:
A court must be diligent in enforcing these causation requirements because otherwise a public actor cognizant of the possibility that litigation might be filed against him, particularly in his individual capacity, could be chilled from taking action that he deemed appropriate and, in fact, was appropriate. Consequently, a putative plaintiff by engaging in protected activity might be able to insulate himself from actions adverse to him that a public actor should take. The point we make is not theoretical as we do not doubt that public actors are well aware that persons disappointed with official decisions and actions frequently bring litigation against the actors responsible for the decisions or actions in their individual capacities, and the actors surely would want to avoid such unpleasant events. Thus, it would be natural for a public actor to attempt to head off a putative plaintiff with the unwarranted expenditure of public funds. Courts by their decisions should not encourage such activity and, by enforcing the requirement that a plaintiff show causation in a retaliation case, can avoid doing so as they will protect the public actor from unjustified litigation for his appropriate conduct. In this regard we recognize that often public actors such as those in this case must make a large number of decisions in
charged atmospheres thereby inviting litigation against themselves in which plaintiffs ask the courts to second guess the actors' decisions.Id. at 267-68.
Mindful of these concerns, courts have in the past carefully scrutinized inmate claims of retaliation premised solely on circumstantial proof of a temporal proximity between the plaintiff's conduct and allegedly retaliatory acts. Indeed, this Court has spoken directly to the issue of what must be shown to state a valid complaint in this factual context, noting that:
To establish the causation element of a retaliation claim, a plaintiff must prove that his or her participation in a protected activity motivated the defendant to perform the retaliatory act. Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002); Meenan v. Harrison, Civ. A. No. 3:03-CV-1300, 2006 WL 1000032, at *4 (M.D. Pa. Apr. 13, 2006) (observing that a plaintiff must demonstrate that the exercise of First Amendment rights “played some substantial role” in the defendant's action). The temporal proximity of a retaliatory act to a plaintiff's exercise of his or her First Amendment rights is probative, but not dispositive, of the causation element. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003); see also Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) (stating that “temporal proximity merely provides an evidentiary basis from which an inference can be drawn”). For temporal proximity alone to establish causation, the “timing of the alleged retaliatory action must be ‘unusually suggestive' of retaliatory motive before a causal link will be inferred.” Marasco, 318 F.3d at 512 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)) ... [T]he Third Circuit Court of Appeals has suggested that a temporal proximity of two days is sufficient to establish causation, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 & n. 5 (3d Cir. 2000), whereas a temporal proximity of ten days is sufficient to establish causation only when accompanied by other evidence of ... wrongdoing, Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003). This suggests
that the temporal proximity must be measured in days, rather than in weeks or months, to suggest causation without corroborative evidence.Conklin v. Warrington Tp., No. 06-2245, 2009 WL 1227950, *3 (M.D. Pa. April 30, 2009).
In this case, Johnson's complaint alleges that Davis bore a personal animus against the plaintiff and asserts that Davis acted on this animus by filing a fabricated misconduct report against him within days of Johnson's submission of a prison grievance. The defendants argue that a temporal proximity of more than a few days is insufficient to establish causation. We disagree. In this case, with our judgment limited to the pleadings, we accept that Johnson's grievance was constitutionally protected conduct and that he has alleged sufficient facts to permit an inference that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Davis issued what is alleged to have been a fabricated misconduct report six days after Johnson filed the grievance at issue. As discussed above, there is an issue of fact regarding whether or not Davis was aware of this grievance and if so when he became aware of the grievance. Further, Johnson alleged that on the day Davis filed this misconduct he was harassed and threatened by Davis while leaving the kitchen. (Doc. 1-1, ¶ 9).
While Johnson's retaliation claim against Davis will ultimately be judged against exacting legal standards, resolution of this particular prison retaliation claim necessarily entails an examination of matters outside the pleadings. For this reason, we cannot resolve these questions as a matter of law on a motion to dismiss, but rather must await a summary judgment motion where the court may consider undisputed material facts beyond the pleadings themselves. See Nifas v. Beard, 374 Fed.Appx. 241, 244 (3d Cir. 2010) (summary judgment resolution of retaliation claim.). Thus, we conclude that Johnson's retaliation claim with respect to Davis does not fail due to a lack of causation.
With regard to the retaliation claim against the other defendants, we recommend that the claim should be dismissed. In their brief in support of their motion to dismiss the defendants explain that “[T]he grievances at the center of Johnson's claims are against Defendant Davis. Johnson makes no showing as to Defendants Biscoe, Fargo, or Jamison's knowledge of these grievances. The claims against Defendants Biscoe, Fargo, and Jamison are based on speculation at best, which is not sufficient to establish a retaliation claim.” (Doc. 6, at 6). We agree with the plaintiffs and conclude that these defendants could not have been acting in retaliation to a grievance that was not lodged against them.
In particular, we note that the claims against Defendants Biscoe and Johnson largely relate to a second disciplinary action which they took against the plaintiff after he was found in possession of an e cigarette and gambling sheets. Yet, the plaintiff admits in his complaint that he committed these prison infractions. This admission is fatal to these claims against Defendants Biscoe and Johnson since:
As the United States Court of Appeals for the Third Circuit has observed: “[an inmate's] retaliatory discipline claim fails [when] there is ‘some evidence' supporting the guilty findings See Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994) (stating that a finding of ‘some evidence' to support a prison disciplinary determination ‘checkmates' the prisoner's retaliation claim).” Nifas v. Beard, 374 Fed.Appx. 241, 244 (3d Cir. 2010).Rosa-Diaz v. Rivello, No. 1:19-CV-1914, 2022 WL 819222, at *13 (M.D. Pa. Jan. 25, 2022), report and recommendation adopted, No. 1:19-CV-1914, 2022 WL 808492 (M.D. Pa. Mar. 16, 2022). Here, Johnson admits that there was “some evidence” to support these misconduct citations since he acknowledges possessing this contraband. The plaintiff's admissions to committing these rules violations checkmate his retaliation claims against Defendants Biscoe and Johnson.
Likewise the plaintiff's complaint merely alleges that Defendant Fargo signed off of misconduct citations. It asserts no well-pleaded facts that would support an inference of retaliation by this defendant, or any knowledge that the citations were allegedly false. Therefore, the retaliation claims against this defendant also fail.
2. Johnson's Conspiracy Allegations are Insufficient to State a Claim
In his complaint Johnson asserts in a conclusory fashion without supporting factual detail that the defendants engaged in a conspiracy to retaliate against the plaintiff. In this regard, we have previously noted:
[I]n order to plead a civil rights action based upon a claim of conspiracy, a plaintiff must plead allegations that are:
supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each defendant allegedly played in carrying out those objectives. Bare conclusory allegations of “conspiracy” or “concerted action” will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred.
Flanagan v. Shively, 783 F.Supp. 922, 928 (M.D. Pa. 1992). Furthermore, when pleading a conspiracy claim, a plaintiff cannot rely upon subjective suspicion and speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991). Quite the contrary, “to properly plead an unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred. D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir.1992); see also Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008) (stating that a conspiracy requires a ‘meeting of the minds') (further citation omitted). This holding remains good law following Twombly and Iqbal, which, in the conspiracy context, require ‘enough factual matter (taken as true) to suggest that an agreement was made,' in other words, ‘plausible grounds to infer an agreement.' Twombly, 550 U.S. at 556, 127 S.Ct. 1955, 167 L.Ed.2d 929.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir.2010) cert. Denied, __U.S.__, 131 S.Ct. 1798, 179 L.Ed.2d 655 (U.S.2011). We are mindful of these pleading requirements, which are considered together with the standards of pleading applicable to all civil actions in federal court as defined in Twombly and Iqbal, supra.Victor v. Huber, No. 3:12-CV-282, 2012 WL 7463723, at *14 (M.D. Pa. Nov.29, 2012) report and recommendation adopted sub nom. Victor v. Hubbard, No. 3:12-CV-00282, 2013 WL 704654 (M.D. Pa. Feb.26, 2013).
Here, Johnson's complaint fails to meet the pleading standards for a valid civil conspiracy claim. In the absence of other well-pleaded factual assertions, Johnson's conspiracy claim amounts to little more than labels and conclusions, and as such, fails as a matter of law. With respect to all of the defendants, the conspiracy allegations are simply insufficient to show that these “persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means.” Grose v. Procter & Gamble Paper Prod., 866 A.2d 437, 440-41 (Pa Super. 2005). Therefore, we recommend that the defendants' motion to dismiss should be granted with respect to this claim.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion to dismiss (Doc. 5) be GRANTED IN PART AND DENIED IN PART as follows:
1. The motion should be GRANTED with respect to the retaliation claim as to all defendants except Davis. The motion should be DENIED as to the retaliation claim against Davis.
2. The motion should be GRANTED with respect to the conspiracy claim as to all defendants.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.