Opinion
Civil Action 21-cv-72J
03-02-2022
ISAAC NARANJO, Plaintiff, v. M.M. IVICIC, D. J. CLOSE, J. BARROWS, M.J. PYO, and BARRY SMITH, Defendants.
HONORABLE CHRISTY CRISWELL WEIGAND UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Re: ECF No. 35
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Isaac Naranjo (“Plaintiff”), an inmate incarcerated at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”), brings this pro se action arising out of allegations that he was placed in administrative custody in retaliation for filing a lawsuit and grievances, in violation of his First, Eighth and Fourteenth Amendment rights. ECF No. 28.
Presently before the Court is a Motion to Dismiss filed by Defendants M.M. Ivcic (“Ivcic”), D.J. Close (“Close”), J. Barrows (“Barrows”), M.J. Pyo (“Pyo”), and Barry Smith (“Smith”) (collectively, “Defendants”). ECF No. 35. For the following reasons, it is respectfully recommended that the Motion to Dismiss be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began this action on April 19, 2021, by submitting a Complaint without paying the requisite filing fee or filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”). ECF No. 1. After Plaintiff submitted an IFP Motion and cured other filing deficiencies, the Court granted Plaintiff's IFP Motion on August 13, 2021, and his Complaint was filed on the same date. ECF Nos. 2, 4, 14 and 16. Plaintiff later filed the operative Amended Complaint on September 24, 2021. ECF No. 28.
1. Prior Lawsuit
Plaintiff previously was incarcerated at the State Correctional Institution at Rockview (“SCI-Rockview”). ECF No. 28 ¶ 10. On June 5, 2020, he filed a pending lawsuit against SCI-Rockview officials in the United States District Court for the Middle District of Pennsylvania (the “Rockview Lawsuit”), claiming that he was issued false misconducts and improperly held in the Restricted Housing Unit (“RHU”) in retaliation for complaining about sexual harassment. Id. ¶¶ 11-14; Naranjo v. Walter, No. 20-918 (M.D. Pa. 2020).
2. Factual Allegations
a. Initial placement in the RHU
After filing the Rockview Lawsuit, Plaintiff was transferred from SCI-Rockview to SCI-Houtzdale on November 19, 2020, where he was placed in the RHU. ECF No. 28 ¶¶ 15-16. On December 6, 2020, Plaintiff filed a grievance stating that he was placed in the RHU without receiving any written notice of the reasons for his placement or review by the Program Review Committee (“PRC”). Id. ¶ 16; ECF No. 28-2. In response, a grievance coordinator notified the PRC that Plaintiff requested a meeting, and he was added to their review list on December 10, 2020. ECF No. 28-1 at 3.
b. Plaintiff notifies Ivcic and Close of the Rockview Lawsuit
On December 10, 2020, Plaintiff separately met with PRC members Ivcic and Close. Plaintiff told them that he was originally placed in administrative custody at SCI-Rockview for retaliatory reasons pending his return to a Special Management Unit (“SMU”) at the State Correctional Institution Forest (“SCI-Forest”), and that he had filed a lawsuit against SCI-Rockview officials on this basis. ECF No. 28 ¶¶ 18, 20.
Plaintiff claims that Close and Ivcic told him slightly different stories as to why he was placed in the RHU. Close said that SCI-Forest no longer had an SMU program, and that Plaintiff was only being held in administrative custody until they could find bed space for him in general population. Id. ¶ 19. Ivcic similarly pointed to the lack of bed space in general population as a reason, but she further stated that prison officials placed him in the RHU to monitor “how he [was] doing” upon transfer. Id. ¶ 21.
c. Continued placement in the RHU
After this initial meeting with the PRC, Plaintiff filed various grievances and made numerous requests regarding his placement in the RHU. He requested to be moved to general population so that he could complete certain programs necessary to obtain parole status. However, prison officials continued to uphold his administrative custody status in the RHU.
On December 20, 2020, Barrows denied two of Plaintiff's grievances regarding his housing status, stating in part:
I found that you were previously at SCI Rockview on Administrative Custody (AC Status) pending transfer for program placement. You were then transferred to SCI Houtzdale as SCI Rockview had a need to reduce the population. PRC at this facility completed a PRC action continuing your AC status from [S]CI Rockview as you are still pending specialized program placement. Based on the available records from SCI Rockview and your appeals, you were already aware of the specialized program placement. You were not sent to [S]CI Houtzdale to be released into general population.ECF No. 16-1 at 3-4; see also ECF No. 28 ¶¶ 25-27.
On January 28, 2021, the PRC held an administrative hearing regarding Plaintiff's custody status, which Plaintiff, Close and Ivcic attended. ECF No. 28 ¶ 32. Although Plaintiff requested to be transferred to general population, the PRC committee continued Plaintiff's administrative custody status “pending additional review” by PRC and security. Id. ¶¶ 32, 37; ECF No. 16-1 at 6. According to Plaintiff, Ivcic notified him that he “would not see SCI-Houtzdale general population” because he filed the Rockview Lawsuit. ECF No. 28 ¶ 32. Close allegedly added “that is what we do to inmates who like files [sic] grievances and lawsuits against DOC staffs.” Id. ¶ 33.
Following the hearing, Pyo issued two reports in March and April 2021 about Plaintiff's continued placement in administrative custody. On March 4, 2021, Pyo initially reported:
On 3/4/2021, inmate Naranjo, FJ4369, was placed on AC status pursuant to ADM 802, Section 1, B.1.k, the inmate has completed a DC sanction but one or more of the reasons exist to temporarily assign inmate Naranjo to AC status. Specifically, inmate Naranjo has completed his DC sanction and is pending additional review by Security and PRC.ECF No. 16-1 at 4; see also ECF No. 28 ¶ 39.
In a follow-up report on April 2, 2021, Pyo indicated that reasons continued to exist under the policy to temporarily assign Plaintiff to administrative custody status because “there is a security/safety concern with his placement in general population.” ECF No. 28-1 at 4. As a result, Plaintiff was to “remain housed . . . on AC status pending further review by security [and] PRC.” Id.
Shortly thereafter, the PRC held another administrative hearing regarding Plaintiff's custody status on April 8, 2021. ECF No. 28 ¶ 43. Again, Plaintiff asked to be transferred to general population. Id. Close and Pyo told him, however, that he could not be released to general population due to a “safety/security concern, ” and because Plaintiff was a “danger to himself.” Id. ¶¶ 43-44.
d. Unsuccessful requests to Ivcic for transfer
In April 2021, Plaintiff claims that he made several direct pleas to Ivcic regarding his housing status-all of which were rejected. First, Plaintiff saw Ivcic “on the block” after his administrative hearing on April 8, 2021. Id. ¶ 46. When he asked her to be moved to general population, she told him the “only way it would be possible” was if Plaintiff ended the Rockview Lawsuit and stopped filing grievances against her and other staff. Id.
Plaintiff also initiated this lawsuit in April 2021. ECF No. 1.
Four days later, Plaintiff submitted an inmate request to staff form to Ivcic. Id. ¶¶ 50-51. In his request, he asked to be moved to general population and offered to stop his lawsuit and grievances if his request was granted. Id. Ivcic responded that, “Mr. Naranjo, we discussed this already.” Id. ¶ 52.
On April 22, 2021, Plaintiff met with Ivcic and again requested to be moved to general population. Id. ¶ 59. According to Plaintiff, Ivcic told him he could not be moved because he was a “danger to others, ” which Plaintiff understood to be referring to the “danger” he posed to staff by filing a lawsuit and grievances. Id.
e. Smith's involvement in the grievance process
Plaintiff also brings claims against Smith, the Superintendent of SCI-Houtzdale. Id. ¶ 8. On April 26, 2021, Smith denied Plaintiff's appeal from a grievance complaining about Close and Ivcic's retaliatory conduct regarding his housing status. Id. ¶ 48. In doing so, Plaintiff claims that Smith conspired with Close and Pyo to retaliate against him and conceal Defendants' misconduct. Id. ¶ 49.
3. Legal Claims
Based on these allegations, Plaintiff appears to assert claims for violations of the Eighth and Fourteenth Amendments arising out of his confinement in the RHU; retaliation in violation of the First Amendment; and conspiracy. Id. ¶¶ 71, 76, 88.
4. Motion to Dismiss
Defendants filed the instant Motion to Dismiss and Brief in Support on November 1, 2021. ECF Nos. 35 and 36. Plaintiff filed a Response and Brief in Opposition on December 9, 2021. ECF Nos. 48 and 49. The Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
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, “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). Because Plaintiff is proceeding pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C. DISCUSSION
1. Personal Involvement
In support of the Motion to Dismiss, Defendants argue that Plaintiff's claims against Barrows, Smith and Pyo should be dismissed because he fails to plead their personal involvement in any underlying wrong. ECF No. 36 at 3. Defendants argue that Barrows and Smith were simply involved in responding to grievances, and that Pyo only signed paperwork that kept Plaintiff in the RHU. Id. at 3-5.
In response, Plaintiff argues that conspiracies are conducted in secret, and it would be unfair to require him to have personal knowledge of those facts prior to discovery. ECF No. 49 at 2-3. He argues that a conspiracy can be fairly inferred based on Ivcic and Close's statements that he would not see general population because he filed a lawsuit and grievances, and that it appears Defendants have conspired to violate their own policies and procedures in retaliation. Id. at 3.
In an action pursuant to 42 U.S.C. § 1983, it is well-established that individual government defendants must have personal involvement in the alleged wrongdoing, and “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015) (quoting Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)); see also Millbrook v. U.S., 8 F.Supp.3d 601, 613 (M.D. Pa. 2014). “Rather, state actors are liable only for their own unconstitutional conduct.” Barkes, 766 F.3d at 316.
Upon review, Plaintiff's claims against Barrow and Smith should be dismissed on this basis. Although Plaintiff broadly claims they “conspired” to retaliate against him, his only factual allegations arise out of their denying his grievances and appeals. Where the only claim is that the Defendant was involved with the handling of Plaintiff's grievances and appeals, the law is well established that “the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.” Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017); see also Wilson v. Horn, 971 F.Supp. 943, 947 (E.D. Pa. 1997) (“Prisoners are not constitutionally entitled to a grievance procedure and the state creation of such a procedure does not create any federal constitutional rights.”). Therefore, Plaintiff fails to plead Smith and Barrows' personal involvement, and his claims against them should be dismissed.
However, the Court should not dismiss Pyo based on lack of personal involvement. Plaintiff claims that he was kept in the RHU in retaliation for filing a lawsuit and grievances, and that Pyo participated in his administrative custody hearings and this decision. See, e.g., ECF No. 28 ¶¶ 82, 98. Construing Plaintiff's pro se complaint liberally, he sufficiently pleads Pyo's personal involvement. Therefore, the Motion to Dismiss based on lack of personal involvement should be granted as to Barrows and Smith, but it should be denied as to Pyo.
2. First Amendment Retaliation
Plaintiff asserts a claim for retaliation in violation of his First Amendment rights. In order to establish a prima facie claim for retaliation under the First Amendment, Plaintiff must show (1) that “the conduct which led to the retaliation was constitutionally protected”; (2) “he suffered some ‘adverse action' at the hands of the prison officials” that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). If Plaintiff makes this initial showing, “the burden then shifts to the prison official to prove that the same decision would have been made absent the protected conduct for reasons related to a legitimate penological interest.” DeFranco v. Wolfe, 387 Fed.Appx. 147, 154-55 (3d Cir. 2010) (citing Rauser, 241 F.3d at 334).
There is no dispute that Plaintiff engaged in protected activity by filing a lawsuit and grievances, and he therefore satisfies the first prong. ECF No. 36 at 6.
In support of the Motion to Dismiss, Defendants argue that Plaintiff cannot satisfy the second or third prongs of his prima facie case. Id. at 7-9. Specifically, they argue that a change in custody level and cell transfer is not an adverse action as a matter of law. Id. at 7. Defendants also argue there is no causal connection between Plaintiff's custody status and his protected activity because Plaintiff did not file the Rockview Lawsuit against Defendants to this action. Id. at 8-9.
In response, Plaintiff argues that he suffered an adverse action because he should not have been placed in the RHU under the DOC's policy, and he did not receive the appropriate process before he was placed there. ECF No. 49 at 8-9. He also argues that he sufficiently pleads facts to establish a plausible causal connection by virtue of Defendants' knowledge of his lawsuit and ongoing retaliation, and that he is not required to prove causation at this preliminary stage. Id. at 10-11.
Upon review, Plaintiff's First Amendment claim should not be dismissed. Plaintiff sufficiently pleads that he suffered an adverse action. In Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000), for example, the United States Court of Appeals for the Third Circuit held that continued placement in administrative custody may constitute an adverse action for purposes of a First Amendment retaliation claim. Although inmates may not have a constitutional right to be housed in a particular place of their choosing, as Defendants argue, “[g]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Id. at 224-25 (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999)).
In this case, Plaintiff alleges that his confinement in administrative segregation resulted in his being confined 23 hours a day to his cell without many of his personal items, and he was unable to work, attend vocational, recreational, or religious programs, or to associate with other inmates. ECF No. 28 ¶ 103. He also claims that this placement left him unable to complete the programs necessary to obtain parole. A factfinder could conclude from those facts that retaliatory continued placement in administrative confinement would “deter person of ordinary fitness from exercising his First Amendment rights.” See id. (citing Suppan v. Dadonna, 203 F.3d 228, 228 (3d Cir. 2000)).
Plaintiff also sufficiently pleads there was a causal connection between his conduct and his continued placement in the RHU. He asserts in his Amended Complaint that Defendants told him their actions occurred in retaliation for his filing a lawsuit and grievances. Therefore, the Court should deny the Motion to Dismiss Plaintiff's First Amendment retaliation claim.
3. Eighth Amendment Claim
With respect to Plaintiff's Eighth Amendment claim, Defendants argue this claim should be dismissed because simply being placed in the RHU, without more, does not violate the Eighth Amendment. ECF No. 36 at 9-10.
In response, Plaintiff argues that his confinement in the RHU constituted cruel and unusual punishment in violation of the Eighth Amendment because it was based on a false premise and did not serve any legitimate need. ECF No. 49 at 11.
To state an Eighth Amendment claim, Plaintiff must allege that he was denied “the minimal civilized measure of life's necessities, ” and that this was done while Defendants had a “sufficiently culpable state of mind.” Cummings v. Crumb, No. 08-707, 2008 WL 5045950, at *3 (W.D. Pa. Nov. 19, 2008) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “Mere placement in segregated confinement, without more, does not violate the Eighth Amendment.” Id. (citing Clifton v. Robinson, 500 F.Supp. 30, 34 (E.D. Pa. 1980) (“[S]egregated confinement in solitary or maximum security is not per se banned by the Eighth Amendment.”); Young v. Ferguson, 830 Fed.Appx. 375, 376 (3d Cir. 2020) (“Placement in administrative segregation, by itself, is insufficient to constitute cruel and unusual punishment.”)).
In this case, Plaintiff claims that he was housed in administrative custody. He does not allege facts, however, showing that he was denied any basic human needs, such as food, clothing or shelter. The mere fact that Plaintiff was placed in the RHU is not sufficient to state a claim. See, e.g., Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997). As a result, the Motion to Dismiss should be granted as to Plaintiff's Eighth Amendment claim.
4. Fourteenth Amendment Due Process Claim
Plaintiff also pleads that Defendants' conduct violated his Fourteenth Amendment due process rights. In support of the Motion to Dismiss, Defendants argue that Plaintiff's placement in administrative custody does not present the type of “atypical and significant” hardship that implicates a Fourteenth Amendment liberty interest. ECF No. 36 at 10-11. Regardless, Defendants argue, Plaintiff was afforded due process rights because he received several hearings regarding his custody status. Id. at 11-12. Based on this, they argue the Fourteenth Amendment claim should be dismissed.
In response, Plaintiff argues that Defendants violated his due process rights because they did not grant him notice and a hearing upon his arrival at SCI-Houtzdale before continuing his placement in the RHU. ECF No. 49 at 12.
As the United States Court of Appeals for the Third Circuit has explained:
Procedural due process rights are [only] triggered by deprivation of a legally cognizable liberty interest. For a prisoner, such a deprivation occurs when the prison “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.E.2d 418 (1995). In determining whether a protected liberty interest exists, the court must consider: (1) the duration of the disciplinary confinement; and (2) whether the conditions of confinement were significantly more restrictive than those imposed upon other inmates in solitary confinement. See id. at 468, 115 S.Ct. 2293; Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000).Huertas v. Sec'y of Pa. Dep't of Corr., 533 Fed.Appx. 64, 66 (3d Cir. 2013). Upon review, the Motion to Dismiss should also be granted as to Plaintiff's Fourteenth Amendment claim. The Court first considers whether Plaintiff's confinement in the RHU implicates any liberty interest. The United States Court of Appeals for the Third Circuit has held that “confinement in administrative or punitive segregation will rarely be sufficient, without more, to establish the type of ‘atypical' deprivation of prison life necessary to implicate a liberty interest.” Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (citing Sandin, 515 U.S. at 486). Courts have routinely held that periods of disciplinary confinement of up to fifteen months do not implicate due process concerns. Powell v. McKeown, No. 1:20-cv-348, 2021 WL 2400773, at *7 (M.D. Pa. June 11, 2021) (citing, e.g., Nifas v. Beard, 374 Fed.Appx. 241, 244 (3d Cir. 2010); Smith, 293 F.3d at 653; Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997)).
In this case, while Plaintiff argues that he did not immediately receive a hearing upon being placed in the RHU at SCI-Houtzdale on November 19, 2020, he admits that he had a PRC meeting on December 10, 2020, and he pleads that he did receive a hearing about his custody status just over two months later, on January 28, 2021, and he continued to receive periodic reviews or hearings after this time. Because Plaintiff's confinement in the RHU for approximately two months before receiving a hearing does not implicate a protected liberty interest, his failure to receive a hearing during this time does not violate his right to due process. See id. For these reasons, the Court should grant the Motion to Dismiss relative to Plaintiff's Fourteenth Amendment due process claim.
5. Violations of DOC Policies
Finally, Defendants refer to Plaintiff's allegations that Defendants have violated various DOC policies. If Plaintiff attempts to plead a claim for violations of DOC policies, Defendants argue that any such claim should be dismissed because the DOC policies do not create constitutional rights, and Defendants' failure to abide by those policies does not state a claim. ECF No. 36 at 12.
Plaintiff does not contend he is pleading a separate claim for violating DOC policies in his Response, arguing instead that he includes these factual allegations to support his other claims. ECF No. 49 at 12-13. Therefore, it is not necessary to consider this issue.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss, ECF No. 35, be granted in part and denied in part. The Court should grant the Motion to Dismiss to the extent it seeks to dismiss Plaintiff's claims under the Eighth and Fourteenth Amendments, as well as Plaintiff's claims against Defendants Smith and Barrows. The Motion to Dismiss should be denied in all other respects.
“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. Because the Court is unable to say that Plaintiff would be unable to plead any viable claim at this stage, he should be granted leave to amend relative to his Eighth and Fourteenth Amendment claims, and with respect to Defendants Barrows and Smith, as appropriate.
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.