Opinion
CIVIL 1:23-CV-269
08-07-2024
JOSHUA I. PAYNE, Plaintiff, v. ROSS C. MILLER, et al., Defendants.
MARIANI, JUDGE
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Statement of Facts and of the Case
This is a prisoner civil rights case filed by the pro se plaintiff, Joshua Payne, a state inmate incarcerated in the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Camp Hill. Payne brings his claims pursuant to 42 U.S.C. § 1983, alleging that the defendant-correctional and other staff at SCI Camp Hill-violated his First and Eighth Amendment rights when he was issued a misconduct. He also asserts a Due Process claim under the Fourteenth Amendment arising out of his appeals of the misconduct. (Doc. 1).
On this score, Payne's complaint asserts that on or about October 29, 2022, Defendant Timpe came to his cell and told Payne that he was being written up for failing to stand for count earlier that day. (Id., ¶¶ 13, 14). Payne alleges that this occurred just one month after he filed a civil rights action against Defendants Timpe and Ritchey. (Id., ¶ 10). The complaint further alleges that Timpe alluded to Payne's lawsuit against him when he told Payne he was writing him up. (Id., ¶ 16). Payne asserts that he did not actually receive the misconduct until Defendant Miller, the Unit Manager, approached him for an informal resolution of the grievance on November 3, 2022. (Id., ¶ 17). On this score, the complaint alleges that Miller offered to informally resolve Payne's misconduct rather than have a formal hearing, which Payne ultimately agreed to. (Id., ¶¶ 18, 19). Payne further alleges that Miller made comments about Payne filing paperwork against correctional staff. (Id., ¶¶ 20, 22). The informal resolution of Payne's grievance resulted in Payne losing seven days of yard time. (Id., ¶ 20).
Payne appealed the misconduct to the Program Review Committee (“PRC”), which was comprised of Defendants Srebro, Ritchey, and Moore. (Id., ¶ 24). Payne argued that he did not receive timely notice of the misconduct, and that the misconduct was issued out of retaliation for filing a lawsuit against Timpe and Ritchey. (Id., ¶¶ 25-27). The PRC upheld the misconduct, reasoning that there was no evidence of a violation of DOC policies or procedures, the evidence supported the decision of the Unit Manager, and that the Unit Manager was lenient with the sanction imposed. (Id., ¶¶ 31(a)-(c)). Payne appealed this decision of the PRC to the Facility Manager, and as of the date of the complaint, did not receive a response. (Id., ¶¶ 31-35). Payne was unable to go to yard for seven days per the sanction imposed by Defendant Miller. (Id., ¶ 36).
Thus, Payne filed this complaint against the defendants, alleging that the misconduct was issued in retaliation for his filing of lawsuits, and that the PRC defendants had the opportunity to intervene and stop the retaliatory conduct and failed to do so. (Doc. 1). He further argues that he suffered a Due Process violation under the Fourteenth Amendment. (Id.) In his complaint, he seeks declaratory relief, as well as compensatory and punitive damages.
The defendants subsequently filed the instant motion to dismiss the complaint. (Doc. 12). In their motion, the defendants do not contest the First Amendment retaliation claim brought against Officer Timpe. However, they assert that Payne has not alleged the requisite personal involvement of the remaining defendants, and that his remaining claims fail as a matter of law. This motion is fully briefed and is ripe for resolution. (Docs. 13, 17). For the following reasons, we will recommend that the motion to dismiss be granted.
II. Discussion
A. 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, -U.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:
[After 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 Defendant's Motion Should be Granted.
As we have explained, Payne asserts claims under 42 U.S.C. § 1983 for violation of his rights under the First, Eighth, and Fourteenth Amendments.However, for the following reasons, we conclude that Payne has failed to state a First Amendment claim against Defendants Miller, Srebro, Ritchey, and Moore, and has failed to state claims against all defendants under the Eighth and Fourteenth Amendments. Accordingly, we will recommend that these claims be dismissed.
To the extent Payne brings these claims against the defendants in their official capacities, it is well settled that state officials who are sued in their official capacities are generally immune from lawsuits in federal court under the Eleventh Amendment. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that defendants sued in their official capacities are not “persons” within the meaning of § 1983). Accordingly, any claims brought against these defendants in their official capacities should be dismissed with prejudice.
1. First Amendment Retaliation
Payne asserts a claim against the defendants under the First Amendment, alleging that the misconduct and subsequent PRC actions were taken in retaliation for a lawsuit that he filed against Officer Timpe. As we have noted, for the purposes of the instant motion, the defendants do not challenge Payne's retaliation claim against Timpe. However, Payne asserts that the remaining defendants retaliated against him because he filed a lawsuit against Defendants Timpe and Ritchey.
At the outset, to state a constitutional tort claim the plaintiff must show that the defendants actively deprived him of a right secured by the Constitution. Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v. Thiboutot, 448 U.S. 1 (1980). Constitutional tort liability is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). In particular, with respect to prison supervisors it is well established that “[an individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
As the Supreme Court has observed:
Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior....
See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability for a municipal “person” under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official's liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Substantively, in order to state a claim of retaliation under the First Amendment, a plaintiff must show: “(1) that [he] engaged in a protected activity, (2) that defendant[']s retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)). Stated differently, the plaintiff must demonstrate that the protected speech was “a ‘substantial factor' in the alleged retaliatory action.” McAndrew v. Bucks County Bd. Of Comm'rs, 183 F.Supp.3d 713, 731 (E.D. Pa. 2016) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). If a plaintiff makes such a showing, the burden then shifts to the defendant to show that, even if the protected speech had not taken place, it would have taken the same action. Id.
With respect to the third element, there are three ways in which a plaintiff can establish causation for a First Amendment retaliation claim, showing: “(1) an ‘unusually suggestive temporal proximity' between the speech and the alleged retaliatory conduct; (2) a ‘pattern of antagonism coupled with timing'; or (3) that the ‘record as a whole' permits the trier of fact to infer causation.” McAndrew, 183 F.Supp.3d at 737 (quoting DeFlaminis, 480 F.3d at 267). Additionally, an unusually suggestive temporal proximity, by itself, can be enough to infer causation. LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 232 (3d Cir. 2007) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). However,
While “ ‘suggestive temporal proximity' is relevant to establishing a causal link between protected conduct and retaliatory action ... in First Amendment retaliation cases,” Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 494 (3d Cir. 2002) (citations omitted) (emphasis added), it is not dispositive of the issue. See DeFlaminis, 480 F.3d at 267. Rather, a plaintiff may also establish the requisite causal connection by showing “a pattern of antagonism coupled with timing to establish a causal link.” Id. (citing 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)). The plaintiff may establish that causal link by offering evidence which “gleaned from the record as a whole” could lead a reasonable fact-finder to infer causation. Id. (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). Finally, Plaintiff is not required to show “but for causation;” rather, she is required to show that the “exercise of free speech rights played ‘some substantial role' in the
employer's decision.” Marrero v. Camden Cty. Bd. of Social Services, 164 F.Supp.2d 455, 469 (D.N.J. 2001) (citing Suppan, 203 F.3d at 236).Malone v. Economy Borough Municipal Authority, 669 F.Supp.2d 582, 603 (W.D. Pa. 2009).
In the instant case, with respect to Defendants Miller, Srebro, Ritchey, and Moore, we cannot conclude that Payne has alleged a prima facie case of retaliation. At the outset, while it is undisputed that Payne engaged in protected activity when he filed a civil rights suit against Timpe and Ritchey, with respect to the adverse action prong of a retaliation claim, it is further undisputed that Srebro, Ritchey, and Moore had no part in issuing the initial misconduct to Payne. Indeed, these three defendants made up the PRC team that handled Payne's appeal of the grievance after it was issued. This is not enough to allege the requisite personal involvement required under § 1983. See e.g., Hall v. SCI Fayette, 2023 WL 2867862, at *4 (W.D. Pa. April 10, 2023) (holding that the defendant's “involvement in an after-the-fact investigation of a grievance is not enough to establish the necessary personal involvement in any alleged wrongdoing”) (citing Mincy v. Chmielsewski, 508 F. App'x. 99, 104 (3d Cir. 2013) and Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006)). Accordingly, Payne has not sufficiently alleged that Srebro, Ritchey, or Moore took adverse action against him for the purposes of this First Amendment claim.
As to Defendant Miller, Payne alleges that Miller initiated an informal resolution of his grievance and sanctioned him to loss of 7 days of yard time. However, courts in this circuit have held that “occasionally being denied yard access does not rise above the ‘de minimis' level to establish an adverse action” for purposes of a First Amendment claim. Ortiz v. Cicchitello, 2023 WL 3044603, at *3 (M.D. Pa. April 21, 2023) (collecting cases); see also Burgos v. Canino, 358 Fed.Appx. 302, 307 (3d Cir. 2009); Christian v. Garman, 2021 WL 1017251, at *4 (M.D. Pa. March 17, 2021). Accordingly, Payne's retaliation claim against Miller fails as a matter of law.
Further, even if we concluded that these prison officials took adverse action against Payne, Payne has not alleged sufficient facts from which we could infer that any action was casually connected to his protected activity. Indeed, other than the fact that Timpe and Ritchey were named in his lawsuits, Payne asserts no facts to suggest that any action taken by Defendants Miller, Srebro, Ritchey, or Moore were taken because Payne filed a lawsuit. Accordingly, Payne's retaliation claim against these defendants should be dismissed.
2. Eighth Amendment Failure to Intervene
Payne also asserts an Eighth Amendment claim against Miller, Srebro, Ritchey, and Moore for failing to intervene to protect him from Officer Timpe's allegedly retaliatory conduct. However, it appears Payne has misinterpreted the Eighth Amendment in this context. Indeed, it is well settled that
The Eighth Amendment protects against infliction of “cruel and unusual punishment.” However, “not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). “After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Id. (citation and internal quotations omitted).Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000). Moreover, correctional officials can be held liable for failing to intervene in conduct that would constitute a violation of the Eighth Amendment if such officers had a reasonable opportunity to intervene. See Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
In the instant case, the conduct Payne complains of is the issuance of a misconduct by Officer Timpe, which resulted in the loss of 7 days of yard time. This conduct simply does not fall within the protection of the Eighth Amendment's prohibition of cruel and unusual punishment in the prison setting. See e.g., Walker v. Mathis, 665 Fed.Appx. 140, 143 (3d. Cir. 2016) (holding that a prison official naming an inmate in a misconduct does not constitute cruel and unusual punishment under the Eighth Amendment); Bell v. Rothrock, 2020 WL 1288484, at *6 (M.D. Pa. Jan. 30, 2020) (same). Accordingly, Defendants Miller, Srebro, Ritchey, and Moore cannot be held liable for a failure to intervene where there has been no underlying Eighth Amendment violation alleged. See Diaz v. Aberts, 2013 WL420349, at *8 (E.D. Pa. Feb. 4, 2013) (quoting Santiago v. Fields, 2009 WL 693642, at *4 (E.D. Pa. March 12, 2009) (“[F]or there to be a failure to intervene, it follows that ‘there must exist an underlying constitutional violation'”); see also Williams v. Bonds, 2019 WL 1529961, at * (D.N.J. April 9, 2019) (dismissing a failure to intervene claim where the plaintiff failed to allege a claim for an Eighth Amendment violation). Accordingly, this Eighth Amendment claim fails as a matter of law.
3. Fourteenth Amendment Due Process
The complaint also asserts a claim for violations of the Fourteenth Amendment's Due Process Clause. Payne appears to assert that his Due Process rights were violated because he did not receive notice of the misconduct within 24 hours, and that he was essentially coerced into accepting the informal resolution of his misconduct.
It is well established that “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Supreme Court has, however, recognized a set of minimum procedural protections that must apply to prison disciplinary proceedings, including the right to: (1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety or correctional goals, to call witnesses and present documentary evidence as part of a defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action. Id. at 563-67, 94 S.Ct. 2963.
Provided that a prisoner is afforded these due process protections during the disciplinary hearing process, it is well-settled that a claim that a misconduct report was false, standing alone, does not state a valid § 1983 civil rights cause of action. As the Third Circuit has aptly observed: “[F]iling false disciplinary charges does not itself violate a prisoner's constitutional rights, so long as procedural due process protections were provided. Richardson v. Sherrer, 344 Fed.Appx. 755, 757-758 (3d Cir. 2007) (citing Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir. 1986) (the filing of false charges does not constitute a claim under § 1983 so long as the inmate was granted a hearing and an opportunity to rebut the charges); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir. 1984)); see also Booth v. Pence, 141 Fed.Appx. 66 (3d Cir. 2005); Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002).
In the instant case, Payne's complaint asserts that Defendant Miller offered to informally resolve his grievance and stated that if Payne did not want to go through the informal resolution process, he would have to go through a formal hearing. (Doc. 1, ¶ 18). Payne agreed to the informal resolution process. (Id., ¶ 19). Indeed, the DOC offers an informal resolution process for certain level misconducts. See DC-ADM 801, § 2(A)-(C). Defendant Miller found Payne guilty of the misconduct with which he was charged and sanctioned Payne to a loss of 7 days of yard. Per DOC policy, Defendant Miller was permitted to sanction Payne to up to 14 days of a loss of specific privileges. See DC-ADM 801, § 2(B)(1). Payne was unsatisfied with this resolution, and so he appealed the misconduct to the PRC, who ultimately upheld the misconduct. (Doc. 1, ¶¶ 24, 31).
https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (last accessed August 7, 2023). We note that we may take judicial notice of information publicly available on government websites. Small v. Kauffman, 2022 WL 3036050, at *4 (M.D. Pa. Aug. 1, 2022) (citing Vanderklok v. U.S., 868 F.3d 189, 205 (3d Cir. 2017)).
Given these allegations in Payne's complaint, we cannot conclude that he was denied Due Process when he agreed to informally resolve his misconduct and subsequently appealed the decision of the Unit Manager when he was unsatisfied with the resolution. Accordingly, at this juncture, Payne's Due Process claim should be dismissed.
4. Violation of 37 Pa. Code § 93.10
Payne also appears to assert that the defendants' informal resolution of his misconduct violated 37 Pa. Code. § 93.10, which addresses prison policies dealing with inmate discipline. However, courts in this circuit have held that the Pennsylvania Code does not provide for a private cause of action. See e.g., Deans v. Floyd, 2023 WL 3729300, at *8-9 (W.D. Pa. May 30, 2023) (“[N]either Section 506 of the Pennsylvania Administrative Code, § 93.10, nor DOC policy DC-ADM 801 can be construed as creating an implied cause of action for money damages”); Benson v. City of Philadelphia, No. CIV.A. 89-CV-8571, 2000 WL 1230250, at *5 (E.D. Pa. July 24, 2000) (holding that “Section 1983 does not provide a cause of action for violations of state statutes, and a state statute cannot create a constitutional right”).
Accordingly, given that there is no authority for the proposition that § 93.10 creates a private right of action, any such claim fails as a matter of law and should be dismissed.
5. Compensatory Damages
Finally, the defendants also assert that Payne has not alleged an actual injury, and thus, is not entitled to compensatory damages. Indeed, it is well settled that in § 1983 actions, a plaintiff must allege an actual injury in order to sustain a claim for compensatory damages. Carey v. Piphus, 435 U.S. 247, 248 (1978); Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000). Additionally, a plaintiff who alleges mental and emotional injuries must show a physical injury as a result of the alleged constitutional violation. 42 U.S.C. § 1997e(e); Mitchell v. Horn, 318 F.3d 523, 535 (3d Cir. 2003).
In the instant case, liberally construed, Payne asserts that he lost 7 days of yard time, and that as a D-roster inmate, his yard time was necessary for his coping skills. (Doc. 1, ¶¶ 29, 36). However, notably absent from Payne's complaint is any allegation that Payne suffered an actual, compensable injury due to the loss of yard time. Accordingly, in its current form, the complaint fails to state a claim for compensatory damages.
However, while we have found that this complaint fails as a matter of law in its current form, we recognize that pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Accordingly, we recommend that these claims be dismissed without prejudice to allow Payne to endeavor to amend his complaint to correct the deficiencies we have identified in this Report and Recommendation.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendant's motion to dismiss (Doc. 12), be GRANTED as to the plaintiff's Eighth and Fourteenth Amendment claims against all defendants, and as to the plaintiff's First Amendment claim against Defendants Miller, Srebro, Ritchey, and Moore without prejudice to the plaintiff endeavoring to correct the defects cited in this report, provided that the plaintiff acts within 20 days of any dismissal order.
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.