Opinion
CIVIL 1:22-CV-1517
03-27-2023
JOSHUA PAYNE, Plaintiff, v. BRAD RITCHEY, et al., Defendants.
Mariani Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
This prisoner civil rights case, which comes before us for consideration of a motion to dismiss filed by the defendants, calls to mind the adage that great controversies sometimes arise out of small causes. This case also calls upon us to consider what types of interactions between prison staff an inmates are sufficiently grave to rise to the dimensions of a constitutional tort. Specifically, the plaintiff, Joshua Payne, has alleged that the defendants violated his right to due process and unconstitutionally retaliated against him as a result of several discrete instances in which he was denied prison yard privileges on two occasions for a single day and was sanctioned with the denial of commissary access for two weeks.
Upon consideration, for the reasons set forth below, we recommend that this motion to dismiss be granted, in part, and denied in part.
II. Background
The factual background of this case is taken from the plaintiff's amended complaint, which we must accept as true for purposes of this motion to dismiss. (Doc. 7). That amended complaint alleges that on July 18, 2022, Payne was housed at SCI Camp Hill. That morning, Payne signed up to go to yard for exercise, but was informed by C.O. Tempe that his yard request was being denied because he had failed to stand for count two days earlier, on July 16, 2022. (Id., ¶¶ 8-10). Payne denied that he had failed to stand for count but to no avail. He did not receive yard privileges on July 18, 2022. (Id., ¶¶ 10-12). Upset by this denial of yard privileges, Payne filed a grievance. (Id., ¶ 13). On July 23, 2022 Payne signed up again for yard privileges, and his request was denied by C.O. Tempe, who allegedly told Payne “since you like filing grievances on us you're not going to yard and you're getting a misconduct for not standing for count.” (Id., ¶ 15).
Payne was cited for failing to stand for count and on July 25, 2022, and Unit Manager Ritchey met with him to attempt to informally resolve this misconduct citation. (Id., ¶ 18). During this meeting, Payne alleges that he denied the misconduct charge and accused prison staff of filing a false misconduct citation. Payne also complained that he had not received proper notice of the misconduct citation. (Id., ¶¶ 18-20). According to Payne's amended complaint, Ritchey responded by telling the plaintiff that “I don't care if you received an [sic] copy of [the citation] or not I'm just here to take you're [sic] commissary for (14) fourteen days just suck it and stop filing grievances.” (Id., ¶ 20). Payne's commissary privileges were then suspended for fourteen days, even though the plaintiff alleges that corrections staff never provided him proper copies of this minor disciplinary paperwork. (Id., ¶¶ 2129).
On the basis of these factual averments, Payne brings procedural due process and First Amendment retaliation claims against the defendants, along with an accompanying civil rights conspiracy claim. (Id., ¶¶ 30-35). Payne's complaint seeks compensatory and punitive damages totaling $350,000 as a result of these three discrete episodes. (Id., at 6).
The defendants have now moved to dismiss Payne's amended complaint, arguing that it fails to state a claim upon which relief may be granted. (Doc. 21). This motions is fully briefed and is, therefore, ripe for resolution. As discussed below, it is recommended that the motion be granted, in part, and denied, in part, as follows: The motion should be GRANTED with respect to all claims and parties except for Payne's First Amendment retaliation claim against Defendant Ritchey.
III. 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, BU.S.B, 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).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8.
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
Guided by these benchmarks we turn to an assessment of Payne's amended complaint.
B. This Motion to Dismiss Should Be Granted, in Part, and Denied, in Part.
1. Payne's Due Process Claim Should Be Dismissed.
Turning first to Payne's procedural due process claim, we find that Payne's complaint-which relates to two instances in which the plaintiff was denied yard privileges for a single day and a fourteen day suspension of his commissary access- has failed to state a viable due process claim. In this regard, as we have previously explained:
In analyzing any procedural due process claim in this custodial setting, “the first step is to determine whether the nature of the interest is one within the contemplation of the ‘liberty or property' language of the Fourteenth Amendment.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)). Once we determine that a property or liberty interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Protected liberty or property interests generally arise either from the Due Process Clause or from some specific state-created statutory entitlement. See Board of Regents v. Roth, 408 U.S. 564, 575 (1972). However, in the case of prison inmates,
[i]n Sandin v. Conner, the Supreme Court announced a new standard for determining whether prison conditions deprive a prisoner of a liberty interest that is protected by procedural due process guarantees. Although the Court acknowledged that liberty interests could arise from means other than the Due Process Clause itself, the Court concluded that state-created liberty interests could arise only when a prison's action imposed an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.' . . . In finding that the prisoner's thirty-day confinement in disciplinary custody did not
present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest, the Court considered the following two factors: 1) the amount of time the prisoner was placed into disciplinary segregation; and 2) whether the conditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed upon other inmates in solitary confinement.
Shoats, 213 F.3d at 143-44 (citations omitted, emphasis added).
Applying these legal benchmarks, it has been held that disciplinary proceedings which result in sanctions of disciplinary segregation for six months or more do not impose atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life in similar situations, and, therefore, do not give rise to due process claims. Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (7 months disciplinary confinement). See, e.g., Dunbar v. Barone, 2012 WL 2775024 (3d Cir. July 10, 2012) (held, inmate placed in disciplinary custody for 540 days (about eighteen months)).Adderly v. CPL Wilson, No. 3:13-CV-1945, 2015 WL 10935705, at *3 (M.D. Pa. Oct. 1, 2015), report and recommendation adopted sub nom. Adderly v. Wilson, No. 3:13-CV-1945, 2016 WL 3006926 (M.D. Pa. May 25, 2016), aff'd, 668 Fed.Appx. 423 (3d Cir. 2016). On this score, we note that when defining constitutionally protected liberty interests, the Court of Appeals has concluded that “a sanction of fifteen days' segregated confinement ordinarily does not violate a protected liberty interest. . . and two months' loss of commissary privileges did not amount to a hardship of sufficient magnitude to implicate a liberty interest,” for purposes of an inmate due process claim. Milton v. Ray, 301 Fed.Appx. 130, 133 (3d Cir. 2008).
These findings are fatal to the due process claim advanced by Payne in the instant case. If fifteen days of disciplinary confinement are insufficient to trigger a due process liberty interest, then surely the denial of two days of recreation privileges is insufficient to state a claim upon which relief may be granted. Likewise, if the denial of two months of commissary access does not implicate a constitutionally protected liberty interest, then it is apparent that a two week denial of commissary privileges will not state a viable due process denial of liberty claim. Therefore, in light of this Third Circuit precedent, this claim fails as a matter of law and should be dismissed.
In any event, even if we found that Payne stated a colorable due process claim, we would nonetheless be constrained to conclude that the defendants are entitled to qualified immunity from this claim for damages. In order to establish an actionable civil rights claim, Payne must show the colorable deprivation of a right secured by the United States Constitution or the laws of the United States. Satisfying these elements alone, however, does not guarantee that a plaintiff is entitled to recover damages from these public officials. Government officials performing “discretionary functions,” are insulated from suit if their conduct did not violate a “clearly established statutory or constitutional right[] of which a reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999); see also Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). This doctrine, known as qualified immunity, provides officials performing discretionary functions not only defense to liability, but also “immunity from suit.” Crouse v. S. Lebanon Twp., 668 F.Supp.2d 664, 671 (M.D. Pa. 2009) (Conner, J.) (citations omitted). Qualified immunity
We note that in proper cases, the court may consider the question of qualified immunity sua sponte. See Doe v. Delie, 257 F.3d 309, 312 (3d Cir. 2001).
balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”Pearson, 555 U.S. at 231.
Qualified immunity shields officials from liability for civil damages brought pursuant to section 1983 “so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). The official seeking qualified immunity has the burden of establishing their entitlement to the affirmative defense. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014) (citing Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010)). To determine whether an official is entitled to the affirmative defense of qualified immunity for a section 1983 claim, a court must determine (1) whether the official violated a constitutional right and, if so, (2) whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion in deciding which of the two Saucier prongs should be addressed first).
A right is clearly established if “every reasonable official would have understood that what he is doing violates that right.” Mullenix, 577 U.S. at 11. To be clearly established, there does not have to be a case that is directly on point, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731,741 (2011)). In determining whether a right is clearly established, courts must not define the right “at a high level of generality.” Id. (quoting Al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074.) Rather, the analysis should focus on “whether the violative nature of particular conduct is clearly established.” Id. (quoting Al-Kidd, 563 U.S. at 742). On this score, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. It is the plaintiff who bears the initial burden of demonstrating that the constitutional right at issue was clearly established at the time of the claimed violation. See Davis v. Scherer, 468 U.S. 183, 197 (1984) (“A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”); Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (“Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right.”).
To determine whether a right is clearly established, the court may look to cases from the Supreme Court, controlling circuit precedent, or “a robust consensus of cases of persuasive authority” from other circuit courts. Porter v. Pa. Dep't of Corrs., 974 F.3d 431, 449 (3d Cir. 2020) (quoting Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017)). In rare cases, the unlawfulness of a government official's conduct may be established from the obviously unlawful nature of the defendant's conduct “even though existing precedent does not address similar circumstances.” Wesby, 138 S.Ct. at 590 (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).
In this case, no party has pointed us to controlling Supreme Court authority, or a robust consensus of circuit court authority which holds that two one-day denial of recreation privileges or a two week suspension of commissary access constitutes the type of constitutionally protected liberty interest which would trigger a procedural due process claim. Quite the contrary, reported case law strongly suggests that these incidental or incremental hardships in a correctional setting do not rise to the level of constitutionally protected liberties. Milton, 301 Fed.Appx. at 133. Absent any compelling authority on this score supporting a claim that Payne's due process rights were clearly established, it can hardly be said that the defendants should have known that their conduct violated Payne's rights. Indeed, we believe it did not. Therefore, we recommend that this claim be dismissed.
2. Payne's First Amendment Retaliation Claim Should Be Dismissed in Part.
Payne's amended complaint also levels First Amendment retaliation claims against Defendants Timpe and Ritchey, asserting that their denial of recreation and commissary privilege was done in retaliation for the plaintiff's grievance petitioning activity. 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). On this score, when assessing whether specific conduct was sufficient to deter a person of ordinary firmness from exercising his rights, it has been held that:
Retaliation may be actionable, however, even when the retaliatory action does not involve a liberty interest. See, e.g., Stanley v. Litscher, 213 F.3d 340, 343 (7th Cir.2000) (holding that plaintiff stated claim for retaliatory transfer even though no liberty interest involved in transfer); Rouse v. Benson, 193 F.3d 936, 939 (8th Cir. 1999) (same). “[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.” Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir.1999) (en banc).Allah, 229 F.3d at 224-25.
However, it is also well settled that de minimis actions do not rise to the level of constitutionally cognizable retaliation. Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (“It is not necessarily true, however, that every action, no matter how small, is constitutionally cognizable.”) As one court has observed:
The de minimis standard . . . achieves the proper balance between the need to recognize valid retaliation claims and the danger of “federal courts embroil[ing] themselves in every disciplinary act that occurs in state penal institutions.” Woods, 60 F.3d at 1166. The purpose of allowing inmate retaliation claims under § 1983 is to ensure that prisoners are not unduly discouraged from exercising constitutional rights. See Crawford-El, 523 U.S. at 588 n. 10, 118 S.Ct. 1584. Some acts, though maybe motivated by retaliatory intent, are so de minimis that they would not deter the ordinary person from further exercise of his rights. Such acts do not rise to the level of constitutional violations and cannot form the basis of a § 1983 claim.Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Thus, while filing false misconduct reports may constitute the type of action that will, in certain cases, support a retaliation claim, Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003), in a prison discipline context, an inmate's retaliation claim fails whenever the defendant shows that there is “some evidence” to support the discipline citation. 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. . . .” Nifas v. Beard, 374 Fed.Appx. 241,244 (3d Cir. 2010) (citing 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)). Likewise, it has been held that isolated instances in which an inmate's recreation privileges are restricted do not rise to level of adverse action sufficient to deter a person of ordinary firmness from exercising his rights protected by the First and Fourteenth Amendments, as required for a retaliation claim. Burgos v. Canino, 358 Fed.Appx. 302, 307 (3d Cir. 2009).
In this case, with our judgment limited to the pleadings, we accept that Payne's grievance was constitutionally protected conduct and that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. However, Payne's retaliation claims founder, in part, because the isolated denial of exercise privileges has been deemed a de minimis sanction which would not deter a person of ordinary firmness from exercising his rights. In light of this case law which regards the isolated refusal of yard privileges as a wholly de minimis matter, Payne's First Amendment retaliation claim against Defendant Timpe, which is premised upon the denial of two days' yard privileges, fails as a matter of law.
Payne's First Amendment retaliation claim against Defendant Ritchey, however, entails a somewhat greater sanction, the two week denial of commissary access. While such a denial of commissary privileges would not rise to the level of a protected liberty interest, Milton, 301 Fed.Appx. at 133, First Amendment retaliation claims may be actionable even when the retaliatory action does not involve a liberty interest. Allah, 229 F.3d at 224-25. Thus, while it is an exceedingly close question, at this juncture where our evaluation of the plaintiff's claim is confined to the well-pleaded facts in the amended complaint, we conclude that Payne has described a sanction of sufficient gravity to potentially deter a person of ordinary firmness from asserting his rights. Therefore, at this juncture based on the pleadings this First Amendment retaliation claim survives.
Unlike the due process claim, where the legal answer regarding the application of qualified immunity was clear, we have not attempted in the absence of briefing by the parties to make any evaluation of whether this First Amendment retaliation claim may run afoul of the doctrine of qualified immunity on the facts of this case. That question must await another day.
3. Payne's Conspiracy Claim Should Be Dismissed.
Finally, in his amended complaint Payne attempts in a cursory manner to stitch together these discrete and relatively minor disciplinary actions into a single coherent whole by embracing these episodes under the rubric of a conspiracy to violate his rights. In our view, as currently pleaded this conspiracy claim also fails. In this regard:
[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).[In considering the sufficiency of civil rights conspiracy claims] 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). Thus, “ ‘[t]o withstand a motion to dismiss, a complaint alleging a civil rights conspiracy should identify with particularity the conduct violating plaintiffs' rights, the time and place of these actions, and the people responsible therefor.' Specific allegations of an agreement to carry out the alleged chain of events is essential in stating a claim for conspiracy. [T]he [plaintiff] must provide more than ‘mere incantation of the words “conspiracy” or “acted in concert ”' to satisfy her Rule 8 pleading requirement.” Tarapchak v. Lackawanna Cty., 173 F.Supp.3d 57, 73 (M.D. Pa. 2016).
Judged by these guideposts, the conspiracy claim set forth in Payne's amended complaint fails on several scores. First, with the denial of all the claims set forth against Defendant Timpe, Ritchey is the only named defendant in this count of the amended complaint. It is axiomatic, however, that a defendant may not conspire with himself. Suber v. Guinta, 902 F.Supp.2d 591, 608 (E.D. Pa. 2012). Therefore, the essential element of a conspiracy-and agreement between two or more persons to commit a wrongful act-is now missing here. Furthermore, with the exception of the First Amendment retaliation claim against Defendant Ritchey, the underlying substantive constitutional tort claims advanced by Payne have all failed as a matter of law. Therefore, for the most part, there are no underlying constitutional torts to support a conspiracy claim. Finally, Payne's cursory manner of asserting this conspiracy claim consists of little more than labels and the talismanic recital of the legal elements of a claim, a form of pleading which will not do. Therefore, this conspiracy claim also fails as a matter of law and should be dismissed.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion to dismiss (Doc. 21) be GRANTED, in part, and DENIED, in part, as follows: The motion should be GRANTED with respect to all claims and parties except for Payne's First Amendment retaliation claim against Defendant Ritchey.
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.