Opinion
1:22-CV-00239-SPB
08-28-2023
GABRIEL ROSA-DIAZ, Plaintiff v. OBERLANDER, SUPERINTENDENT OF S.C.I. FOREST; PERRY, UNIT MANAGER AT S.C.I. FOREST; FISCUS, HEARING EXAMINER AT S.C.I. FOREST; CAPT. CARTER, SECURITY CAPTAIN AT S.C.I. FOREST; CUSTER, CORRECTIONAL OFFICER AT S.C.I. FOREST; COSTANZO, CORRECTIONAL OFFICER AT S.C.I. FOREST; HOOG, CORRECTIONAL OFFICER I AT S.C.I. FOREST; SCHLEMMER, CORRECTIONAL OFFICER I AT S.C.I. FOREST; MOSLAK, CHIEF HEARING EXAMINER AT CENTRAL OFFICE; K. MOORE, C.G.C.; CORRECTION OFFICER MARSH, D.S.W.R.; T. BICKEL, D.S.W.R.; AND GEORGE LITTLE, SECRETARY FOR PAD.O.C.; Defendants
REPORT AND RECOMMENDATION ON DOC DEFENDANTS' PARTIAL MOTION TO DISMISS AMENDED COMPLAINT
IN RE: ECF NO. 30
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Five Defendants, SCI-Forest Superintendent Oberlander, Central Office Chief Hearing Examiner Moore, SCI-Forest Hearing Examiner Fiscus, SCI-Forest Chief Hearing Officer Moslak, and SCI-Forest Unit Manager Perry, have moved to dismiss some or all of Plaintiff s claims against them pursuant to Fed. R. Civ. P 12(b)(6). ECF No. 30. The motion is before the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636; Fed.R.Civ.P. 72, and LCvR 72. It is respectfully recommended that the motion be GRANTED in part and DENIED in part.
II. Report
A. Procedural Background
Plaintiff Gabriel Rosa-Diaz is an inmate in the custody of the Pennsylvania Department of Corrections (DOC) and, at all times relevant to this case, was incarcerated at the DOC's state correctional institution at Forest (SCI-Forest). ECF No. 19, ¶ 5. His Amended Complaint, the operative pleading before the Court, asserts claims against five DOC “central office” administrators: George Little, the former Secretary of the DOC; T. Bickel, a Deputy Secretary of the DOC; C.O. Marsh, another DOC Deputy Secretary; K. Moore, Chief Grievance Coordinator; and Moslak, Chief Hearing Examiner. Id., ¶¶ 16-18. The Amended Complaint also brings claims against eight DOC employees who worked at SCI-Forest during his incarceration: Corrections Officers Custer, Costanzo, Hoog, Schlemmer, and Carter; Hearing Examiner Fiscus; Unit Manager Perry; and Facility Manager Oberlander. Id., ¶¶ 6-15.
Rosa-Diaz asserts claims for violation of his First, Eighth, and Fourteenth Amendment rights, as well as his rights under state law. See generally, id. His sprawling Amended Complaint consists of more than 15 handwritten pages and 165 paragraphs. See id. Generally, he challenges three inmate misconduct charges that prison officials either filed against him or sustained during the grievance or appeal process. He also challenges a change or proposed change in his unit classification assignment at SCI-Forest. He claims all were undertaken either without due process or pursuant to a conspiracy to retaliate against him for his use of the grievance process and his challenges to certain misconduct reports. See id. Only Defendants Oberlander, Moore, Fiscus, Moslak, and Perry have moved to dismiss certain claims against them. See ECF No. 31. Specifically, the moving Defendants request dismissal of (1) all claims against Fiscus, Perry, Moslak, and Moore, (2) the claims against Oberlander based on his participation in misconduct and grievance appeals or asserting his failure to intervene in the misconduct and grievance process, and (3) all Fourteenth Amendment claims against any Defendant arising from Rosa-Diaz' placement in or transfer to or from the Behavioral Management Unit and the Intensive Management Unit. See ECF No. 30, p.3. Rosa-Diaz has filed a response in opposition to the Defendants' motion. See ECF No. 40.
The moving defendants have been sued in their individual capacities only. See ECF No. 19, ¶¶ 5-15. Additionally, although the Defendants reference Defendant Little in their memorandum (ECF No. 31, p. 13), this is assumed to be a typographic error for Defendant Perry, as neither the motion itself nor the proposed order reference Defendant Little by name. See ECF Nos. 30, 30-1.
B. Standard of Decision
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “courtf] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, it must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See Newmones v. Ransom, 2022 WL 4536296, at *3 (W.D. Pa. Sept. 28, 202) (citing California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004)) (additional citation omitted). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way, in assessing a motion to dismiss, while the Court must view the complaint's factual allegations as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). Expounding on the Twombly!Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” 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.”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Rosa-Diaz is proceeding pro se, his Amended Complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Factual Allegations Relevant to the Pending Motion
Rosa-Diaz' claims against the moving Defendants are largely based on their alleged roles in either adjudicating one or more of three identified misconduct reports against him or their participation in the grievance or appeal process. The allegations regarding each relevant misconduct report and the involvement of each moving Defendant are detailed below.
1. Misconduct 560168
On March 17, 2021, Rosa-Diaz was assigned to the Behavior Management Unit (BMU) at SCI-Forest. Id., ¶ 20. On February 15, 2022, Rosa-Diaz was issued a misconduct report charging him with threatening another person and for unauthorized use of the mail, kiosk, or telephone. Id., ¶ 21. The misconduct report included a word-for-word recitation of the threatening email it alleged Rosa-Diaz sent to the other inmate, and Rosa-Diaz' Amended Complaint likewise includes the substance of that email. See id., ¶ 21.
On February 17, 2022, Defendant Fiscus, the hearing examiner, conducted a misconduct hearing, which Rosa-Diaz attended. Id., ¶ 23. He pleaded not guilty to the misconduct and requested that the misconduct be dismissed because it did not inform him of “the date and time that the email was sended [szc] and the Plaintiff did not use the kiosk when the said email was sended [szc].” Id., ¶ 24. Rosa-Diaz then agreed to postpone the hearing. On February 28, 2022, Fiscus reconvened the hearing and found Rosa-Diaz guilty based on the testimony of Lt. Holes. Id., ¶ 26. Rosa-Diaz alleges that he was prevented from presenting a defense to the misconduct because Fiscus refused his request for information regarding his interaction with Lt. Holes. Id., ¶ 28. Rosa-Diaz states that he never spoke to Lt. Holes about the factual basis for the misconduct. Id. Rosa-Diaz was sentenced to thirty days of disciplinary custody and loss of kiosk privileges for sixty days. Id., ¶ 27. Rosa-Diaz appealed the guilty finding to Defendants Oberlander and Moslak, who affirmed Fiscus' guilty finding. Id., ¶ 32.
2. Misconduct 489646
On March 18, 2022, Rosa-Diaz submitted a grievance against Defendant Custer, which was rejected. Id., ¶ 33. According to Rosa-Diaz, Custer threatened him with a misconduct if he resubmitted the grievance. Id., ¶ 34. Rosa-Diaz resubmitted the grievance anyway on March 22, 2022, and on March 25, 2022, Custer filed misconduct 489646 against him. Id., ¶ 35. On the misconduct report, Custer stated that
On the above date at the approximate time inmate Rosa-Diaz was secured in the day room lunch cage when inmate Young
approached the dayroom trash can to throw away his trash, inmate Rosa-Diaz spit through the case onto inmate Young.Id., ¶ 44. Custer's report stated that Officers Ferringer and Ellenberger witnessed Rosa-Diaz' behavior. Id., ¶ 45. Rosa-Diaz completed an “inmate witness” form and submitted it the same date. Id., ¶ 46.
On March 31, 2022, Rosa-Diaz appeared before Fiscus, the hearing examiner, and pleaded not guilty. Id., ¶ 48. He stated he never spit on inmate Young. Id. Rosa-Diaz asked that Young be called as a witness and requested DNA and other laboratory tests be conducted. Id., ¶ 49. Fiscus denied these requests. Id., at ¶ 50. At the hearing, Officer Ferringer testified that he did not see Rosa-Diaz spit on Young, but Custer testified to the contrary. Id., ¶¶ 51-52. Fiscus found Rosa-Diaz guilty and sentenced him to 90-days disciplinary custody. Id., ¶ 53. According to Rosa-Diaz, Fiscus told him that “I already received my orders from Oberlander. Stop writing passive threats on request slips and things might go better for you.” Id. Rosa-Diaz told Fiscus that she was not being impartial, and he appealed the decision to the facility manager, Oberlander. Id., ¶ 54. Oberlander upheld the guilty finding, as did Defendant Moslak on final review. Id. Based on this misconduct, Rosa-Diaz was demoted to “Phase 4” of the BMU program. Id., ¶ 56.
3. Misconduct 787837
On April 18, 2022, Defendants Hoog and Costanzo searched Rosa-Diaz' cell, just two days after his cell had been searched by other corrections officers. Id., ¶¶ 64-65. When Rosa-Diaz inquired why his cell was being searched again, Costanzo allegedly told him that it was because “you like to run your mouth to Oberlander about request slips.” Id., ¶ 66. While being strip searched, Rosa-Diaz challenged Hoog and Constanza, telling them that they “could not retaliate against [him].” Id. at ¶ 67. Costanzo told Rosa-Diaz to “file a lawsuit and complain to the judge,” and that he cries too much. Id. Hoog allegedly told Rosa-Diaz, “you haven't experienced retaliation yet.” Id., ¶ 68.
Upon completing the cell search, Costanza and Hoog confiscated Rosa-Diaz' radio. Id., ¶ 69. According to the Amended Complaint, Costanzo told Rosa-Diaz the radio was being confiscated as “retaliation” for “lawsuits you filed against us.” Id. A few hours later, Rosa-Diaz was issued misconduct report 787837 by Defendant Hoog. Id., ¶ 70.
In Misconduct 737837, Hoog charged Rosa-Diaz with possession of contraband, stating as follows: “on the above date and approximate time, this officer was searching KB-1008, which housed inmate Rosa-Diaz FH17313. During this search I found a weapon hidden in the handle of Rosa-Diaz' radio. This weapon is a 6 % inch metal rod with a sharpened point.” Id., ¶ 71. On April 2, 2022, Defendant Fiscus held a misconduct hearing. Id., ¶ 72. At this hearing, Rosa-Diaz contended that Defendant Oberlander ordered the additional search of his cell as retaliation for his filing of request slips (“... because you like to run your mouth to Oberlander on request slips.”). Id., ¶¶ 66, 73. He also claimed no weapon was found because Defendants Hoog and Costanzo “took the Plaintiffs radio outside of K-Unit to the security office and that [] the weapon ... was planted by Defendants Schlemmer, Carter, Hoog, and Costanzo.” Id., ¶ 73. Rosa-Diaz “demanded that fingerprints, DNA, and any other laboratory work that could prove to be exculpatory evidence ... be conducted.” Id. Defendant Fiscus denied Rosa-Diaz' request for forensic examination. Id., ¶ 74. When Rosa-Diaz asked Fiscus to explain her reasons for denying his request for forensic testing, she declined. Id., ¶ 75. Fiscus found Rosa-Diaz guilty of the misconduct. Id., ¶ 78. He was given 45-days of disciplinary custody. Id. Rosa-Diaz appealed Misconduct 787837 to the facility manager and to final review. The guilty determination was upheld at both levels of review. Id., ¶ 79.
Rosa-Diaz contends that Oberlander “got mad at Plaintiff' for his complaints regarding being put in restraints and transferred to SCI-Forest. Id. ¶ 82 (citing ¶ 36). He alleges that Oberlander contacted Defendants Marsh, Bickel, and Little to “immediately have the Plaintiff removed from SCI-Forest because Defendant Oberlander did not wanted [sic] the Plaintiff at his jail at SCI-Forest anymore.” Id. Marsh, Bickel, Little, and Oberlander then “made plans to have the Plaintiff removed from BMU and placement in Intensive Management Unit (IMU) program over an old grudge that Defendant Oberlander has against Plaintiff going back to February 16, 2015.” Id. Rosa-Diaz was then told during a visit with a prison psychiatrist that he was being considered for removal from the BMU and placed in the IMU. Id., ¶ 83.
Rosa-Diaz alleges that he was ultimately removed from the BMU at SCI-Forest and transferred to SCI-Phoenix, where he was placed in the IMU. Id., ¶ 99. He filed a grievance challenging this move, which he appealed to final review. Id., ¶ 100. He alleges that Defendant Moore “had the authority to reverse and remand the Plaintiffs grievance back to the institution for an investigation.” Id., ¶ 102. Rosa-Diaz contends that Moore “pre-planted” the rejection of his grievance and had knowledge “that plaintiff was personally affected when Plaintiff was removed from the BMU at SCI-Forest and sended [szc] to IMU at SCI-Phoenix ... before final grievance rejection.” Id.
D. Discussion and Analysis
1. The Claims Against Defendant Fiscus, Moslak, Moore, and Perry
Defendants Fiscus, Moslak, Moore, and Perry seek dismissal of all claims against them. See ECF No. 30, p. 3. As to these Defendants, the following claims can be distilled from the Amended Complaint: Against Fiscus: (1) procedural due process, (2) Eighth Amendment conditions of confinement/deliberate indifference, (3) retaliation, and (4) state law intentional infliction of emotional distress and harassment. See id., p. 10, ¶¶ 1-3, 6. Against Moslak: (1) procedural due process, (2) civil conspiracy, (3) retaliation, and (4) denial of access to courts. Id., p. 11, ¶ 10; p.13, ¶¶ 21, 23. Against Moore: (1) substantive and procedural due process, (2) supervisory liability, (3) civil conspiracy, (4) deliberate indifference, (5) harassment, (6) discrimination, and (7) retaliation. Id., p. 14, ¶ 26. Finally, against Perry: (1) failure to intervene to prevent the due process violations allegedly committed by Oberlander, (2) deliberate indifference, (3) harassment, (4) discrimination, (5) retaliation, and (6) conspiracy. See id., p. 12, ¶¶ 13, 15. The claims against each individual defendant will be discussed in turn.
a. The Amended Complaint fails to state a Fourteenth Amendment due process claim against any Moving Defendant.
The Amended Complaint includes separate procedural due process claims against Fiscus, Moslak, Moore, and Perry. As discussed below, each claim fails as a matter of law based on the absence of any liberty interest or property right upon which to base a claim, among other fundamental defects.
Fiscus is the hearing examiner at SCI-Forest and served in that capacity for all three of Rosa-Diaz' misconduct hearings. See ECF No. 19, ¶¶ 11, 1-4, 6. Rosa-Diaz alleges that Fiscus found him guilty following the hearings on Misconduct 560168 and Misconduct 787837 based on evidentiary rulings that were contrary to DOC policies or regulations and that unfairly limited his presentation of evidence. See ECF No. 19, ¶¶ 2, 6, 19. Rosa-Diaz identifies Moslak as the DOC's “Chief Hearing Officer.” See ECF No. 19, p. 2, ¶ 15. He alleges that Moslak permitted Oberlander “to conduct an investigation on himself' and denied his appeal of misconducts 489646 and 787837. See id., p. 11, ¶ 10; p. 13, ¶ 21. Rosa-Diaz identifies Defendant Moore as “an active acting Chief Grievance Coordinator employed by the Pa. DOC assigned to work at the Pa. DOC central office” and asserts that “[s]he is in charge of reviewing all inmate grievances and appeals for final review.” ECF No. 19, p. 2, ¶ 15. The claims against Moore are based on a grievance Rosa-Diaz filed on May 3, 2022. See id., p. 7, ¶ 100. Rosa-Diaz grieved that he was removed from the BMU and placed in the IMU. Id. He has attached a copy of this grievance to the Amended Complaint. See ECF No. 19-3, p. 9. This grievance was denied because Rosa-Diaz had not been removed from the BMU and was only being considered for reassignment. Id., p. 2. Thus, he could not “grieve something that has not happened yet.” Id. On final review, Moore upheld the denial of his grievance because he was not “personally affected” by any DOC action. Id., p. 9. Rosa-Diaz identifies Perry as a “unit manager employed at SCI-Forest... in charge of the K-Unit and ... supervision of the Behavior Management Unit.” ECF No. 19, p. 2, ¶¶ 12. Rosa-Diaz' due process claim against Perry differs from those against the other Defendants in that it is premised on Perry's inaction in response to alleged due process violations committed by Oberlander. See ECF No. 19, p. 12, ¶ 13 (“The inaction of Defendant Perry ... imposed on Plaintiff an atypical and significant hardship in violation of the 14th Amendment.”). He alleges that on multiple occasions, Perry failed to intervene in Defendant Oberlander's decisions relating to Rosa-Diaz' program and housing assignments. See id., ¶¶ 39-42, 57-62, 85, 95. Thus, Rosa-Diaz' reference to Perry's “failure to intervene” appears to be an aspect of his due process claim, rather than a claim that Perry failed to intervene to prevent an imminent risk to Rosa-Diaz' health or safety.
To the extent Rosa-Diaz is attempting to bring a traditional “failure to intervene” claim against Perry or another Defendant, the claim fails as a matter of law. If Rosa-Diaz intended such a claim, it appears he bases it on allegations that the Defendants “had the power to reverse” or otherwise intervene in the misconduct appeals but failed to do so. See, e.g, ECF No. 19, p. 11, ¶ 10 (Moslak); p. 14, ¶ 26 (Moore). As the Defendants note, however, the Court of Appeals for the Third Circuit has never recognized a failure to intervene claim outside of the excessive force context. ECF No. 31, p. 12 (citing Armstrong v. Furman, 2020 WL 5545270 (W.D. Pa. Sept. 16, 2020). Here, Rosa-Diaz pleads no use of excessive force or any similar threat to his physical safety concerning which any Defendant had a duty to intervene. Thus, he has failed to state a “failure to intervene” claim. See McIntosh v. Wetzel, 2022 WL 3293490, at *8 (W.D. Pa. Aug. 11,2022); Conte v. Goodwin, 2021 WL 131337, at *5 (D.N.J. Jan. 15,2021).
To state a procedural due process claim, “a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of ‘life, liberty, or property,' and (2) the procedures available to him did not provide ‘due process of law.'” Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). If a plaintiff cannot identify a protected interest that is “at stake,” the analysis ends, and the claim fails. See McKee v. Salaman, 2023 WL 4748192, at *9 (M.D. July 25, 2023) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). Thus, the showing of a liberty or property interest protected by the Constitution is a threshold requirement for a procedural due process claim. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, and property; and those who seek to invoke its procedural protections must establish that one of these interests is at stake.”). Importantly, the Fourteenth Amendment itself creates no substantive right or liberty interest proscribing an inmate's placement in disciplinary custody. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (“Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation.”). Because the Due Process Clause does not provide Rosa-Diaz with a liberty interest associated with his alleged wrongful placement in disciplinary custody, he must look to state law as the only other potential source of such an interest. Id. at 483.
In Sandin, the Supreme Court held that in the prison context the state “may under certain circumstances create liberty interests which are protected by the Due Process Clause.” Id. The Court cautioned, however that “these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. Here, Rosa-Diaz' placements in disciplinary custody for 90 days and then 45 days were the only restraints he experienced because of the allegedly defective misconduct hearings. See ECF No. 19, p. 10, ¶ 1, p. 11, ¶ 6, p. 13, ¶ 19. The Supreme Court and our Court of Appeals have held that placements in disciplinary custody for periods far longer than those experienced by Rosa-Diaz did not implicate a liberty interest protected by the Due Process Clause. See Sandin, 515 U.S. at 483; Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (confinement in administrative custody for fifteen months with only hour of exercise per day five days per week did not amount to an atypical and significant hardship and thus did not deprive prisoner of a liberty interest); Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (holding that seven-month confinement in SHU based on false reports did not implicate a protected liberty interest). See also Henry v. Wilson, 2007 WL 2746717, at *7 (W.D. Pa. Sep. 17, 2007) (holding that because inmate did not have a liberty interest in being free from disciplinary confinement there was no process due at his misconduct hearing); Brown v. Hannah, 850 F.Supp.2d 471,478 (M.D. Pa. 2012) (dismissing the plaintiffs claims that his procedural due process rights were violated when he was issued a falsified misconduct report and the hearing examiner denied a requested witness and the opportunity to cross-examine the accuser, and sanctioned him to 60 days in disciplinary confinement); Jefferson v. Wolfe, 2006 1947721, at *16 (W.D. Pa. July 11, 2006) (finding Defendant Moslak's refusal to allow plaintiff to call witnesses at misconduct hearing did not violate due process because plaintiff had no liberty interest). Thus, Rosa-Diaz cannot premise a viable due process claim against Fiscus, Moslak, or Moore upon his relative brief confinements in disciplinary custody.
As to Moslak, Rosa-Diaz alleges that he not only denied his appeals of misconducts 489646 and 787837, but he permitted Oberlander “to conduct an investigation on himself.” ECF No. 19, p. 11, ¶ 10; p. 13, ¶ 21. While it is unclear precisely what Rosa-Diaz is alleging here, it is of no moment. This aspect of his due process claim against Moslak also cannot survive because none of the alleged actions or omissions of Moslak implicated any liberty interest of Rosa-Diaz. See, e.g., Mutschler v. Tritt, 2018 WL 4184320, at *3-4 (M.D. Pa. Aug. 31, 2018) (holding that although allegation that chief hearing examiner failed to investigate plaintiffs underlying misconduct hearing and upheld the misconduct charge based on an inadequate record were sufficient to show his personal involvement, the claim nevertheless failed because the resulting sanction of 160 days confinement in disciplinary custody did not implicate a protected liberty interest under Sandin). The same defect exists in Rosa-Diaz' due process claim against Perry based on his alleged failure to intervene in Oberlander's alleged violation of due process. Because none of the Defendants' conduct implicated a liberty or property interest of Rosa-Diaz, no due process rights of Rosa-Diaz were triggered.
Moreover, as noted in footnote 2, supra, the federal courts have not recognized a claim based on an official's alleged “failure to intervene” in the due process violation of another official. Furthermore, the allegation that Perry encouraged Rosa-Diaz to “withdraw his grievance” does not implicate Perry's personal involvement in the official grievance process. It is axiomatic that liability under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional right. See Gould v. Wetzel, 547 Fed.Appx. 129 (3d Cir. Oct. 21, 2013). Here, Rosa-Diaz' allegation does not support Perry's personal involvement in conduct upon which he bases his due process claims. Indeed, Perry told Rosa-Diaz, “I'm not getting involved in that.” ECF No. 19, ¶ 60. Put another way, Perry is not alleged to have had any role or authority that would have allowed him to decide Rosa-Diaz' grievance or otherwise interject himself into the administrative process. Instead, Perry's alleged comments appear to be more akin to an offer of assistance in resolving a dispute between Oberlander and Rosa-Diaz. Finally, to the extent Rosa-Diaz asserts that his having been placed in restraints somehow violated his due process rights, his Amended Complaint acknowledges Perry's non-involvement. The Amended Complaint specifically alleges that Oberlander, not Perry, ordered Rosa-Diaz to be placed in restraints. Id., ¶¶ 38, 62. Thus, the Amended Complaint does not support a due process claim or any other claim against Perry.
Rosa-Diaz also cannot find a protected liberty interest in the prison's hearing policies and rules that he alleges the Defendants failed to follow. See Thomas v. Rosenmeyer, 199 Fed.Appx. 195, 197 (3d Cir. Oct. 12, 2006). As the Court of Appeals noted in Thomas, “to the extent [plaintiff] asserts that the prison's failure to comply with state procedures deprived him of due process, state procedures, in themselves, do not confer a liberty interest protected by the due process clause.” Id. at 198. Indeed, because “an inmate has no constitutional right to a grievance procedure,” allegations that an official wrongfully denied a grievance or grievance appeal fails to support a claim. Woodell v. Wenerowicz, 2019 WL 4139264, at *17 (E.D. Pa. Aug. 30, 2019) (citing Tapp v. Proto, 404 Fed.Appx. 563, 566 (3d Cir. 2010)); Altenbach v. Ianuzzi, 646 Fed.Appx. 147, 151 (3d Cir. 2016) (“To the extent that his claim is based on Holly's alleged failure to satisfactorily resolve his grievances, the District Court was ... correct in dismissing it.”); Alexander v. Gennarini, 144 Fed.Appx. 924, 925 (3d Cir. 2005) (holding that involvement in post-incident grievance process is not a basis for § 1983 liability). Put simply then, Rosa-Diaz “has no constitutional liberty interest in the defendants following the procedures allegedly mandated by state law” relating to prison misconduct hearings or grievances. See Deans v. Floyd, 2023 WL 3729300, at *13 (W.D. Pa. May 30, 2023) (quoting Dantzler v. Beard, 2007 WL 5018184, at *5 n.7 (W.D. Pa. Dec. 6, 2007), report and recommendation adopted, 2008 WL 744740 (W.D. Pa. Mar. 18, 2008) (citations omitted)).
Finally, the Amended Complaint alleges no other facts to support the conclusion that Rosa-Diaz was subjected to an “atypical and significant hardship in relation to the ordinary incidents of prison life.” White v. Wetzel, 2016 WL 2197966 (W.D. Pa. June 9, 2016) (quoting Sandin, 515 U.S. at 486) and Barna v. Boyce, 563 Fed.Appx. 103, 105 (3d Cir. Apr. 15, 2014)). He does not allege that his placement in disciplinary custody or any other action taken against him subjected him to any conditions of confinement different from those in the BMU. Indeed, Rosa-Diaz does not even allege that he was removed from the BMU because of his misconduct charges. Because Rosa-Diaz was not deprived of a protected liberty or property interest, he has no ground upon which to base a Fourteenth Amendment procedural due process claim against Fiscus, Moslak, Moore, or Perry. Accordingly, the procedural due process claims against each of these Defendants should be dismissed with prejudice as any attempt to amend to cure their deficiencies would be futile. See, e.g., White, 2016 WL 3197966, at *9.
b. Rosa-Diaz' substantive due process claim against Moore also fails as a matter of law.
Rosa-Diaz also claims-without explanation-that Moore violated his rights to substantive due process when she upheld his grievance on final review. See ECF No. 19, p. 14, ¶ 26. The law is clear that to state a claim for substantive due process, “a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience.” Lear v. Zanic, 524 Fed.Appx. 797, 801-02 (3d Cir. 2013) (quoting Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)). As discussed above, Rosa-Diaz does not have a protected liberty interest in a grievance process. See LaBarre, 2019 WL 3423588, at *2 (citations omitted). See also Davis v. Samuels, 608 Fed.Appx. 46, 48-49 (3d Cir. 2015). Furthermore, “the relevant level of arbitrariness required in order to find a substantive due process violation involves not merely action that is unreasonable, but, rather, something more egregious, which we have termed at times ‘conscience shocking' or ‘deliberate indifference.'” Hunterson v. DiSabato, 308 F.3d 236, 246-47 (3d Cir. 2002). Rosa-Diaz' allegation that Moore upheld the rejection of his grievance on final appeal falls well short of this standard. See. e.g., Fauntleroy v. Clark, 2020 WL 5351063, at *4 (W.D. Pa. July 30, 2020) (denial of grievance did not shock the conscience) (citation omitted).
Rosa-Diaz does not allege a substantive due process claim against the Fiscus, Moslak, or Perry.
c. The Amended Complaint fails to state an Eighth Amendment deliberate indifference claim against Fiscus, Moore or Perry.
Rosa-Diaz asserts Eighth Amendment deliberate indifference claims against Fiscus and Moore based on their involvement in his misconduct proceedings and the grievance process. See, e.g., ECF No. 19, p. 10, ¶ 2. He also alleges a deliberate indifference claim against Perry, but the basis for that claim is somewhat unclear. See id., p. 12, ¶ 13. Rosa-Diaz apparently alleges that Perry was deliberately indifferent either when he encouraged him to withdraw a grievance against Oberlander or when he refused to do anything to countermand Oberlander's orders to keep Rosa-Diaz in restraints. See id.
Fiscus and Moore's personal involvement is not an issue. “A defendant's active role in reviewing and responding to the grievances can result in a finding of actual knowledge of the hardship, even if it is insufficient on its own to establish deliberate indifference for non-medical staff.” Moses v. Sorber, 2023 WL 4552105, at *4 (E.D. Pa. July 14, 2023) (citing Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003) (holding that a defendant's review of and response to a grievance appeal demonstrated active role in the process and personal involvement); Parked v. Danberg, 833 F.3d 313, 336 n. 14 (3d Cir. 2016) (noting that filing of grievance can show actual knowledge if accompanied by evidence that the defendant reviewed the grievance).
Rosa-Diaz' Eighth Amendment claims against Fiscus, Moore, and Perry fail on multiple grounds. First, the involvement of Fiscus and Moore in the grievance process alone cannot support § 1983 liability, and the claims against them subject to dismissal on that basis. See Henderson v. Mahally, 2021 WL 5505811, at *4 (M.D. Pa. Nov. 24, 2021) (citation omitted). Second, the conduct and conditions alleged in the Amended Complaint fall well short of those necessary to support an Eighth Amendment claim. The applicable Eighth Amendment inquiry asks whether the inmate has been deprived of the “minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Thus, to support an Eighth Amendment deliberate indifference claim, Rosa-Diaz must allege facts to show that he has been denied “basic human needs, such as food, clothing, shelter, sanitation, medical care, and personal safety from physical assault.” Griffin, 112 F.3d at 709 (holding that the placement of an inmate in administrative custody for 15 months did not involve the deprivation of any basic human need under the Eighth Amendment). The Amended Complaint supports no such deprivation or any other basis for an Eighth Amendment claim against Fiscus, Moore, or Perry.
Although Rosa-Diaz alleges that Fiscus “intentionally and maliciously” prevented him from calling certain witnesses and refused to order forensic testing during his misconduct hearings, see ECF No. 19, ¶¶ 2, 6, 19, this alleged conduct did not deprive him of any necessities of life, such as food, clothing, shelter, sanitation, medical care, or personal safety. Likewise, Moore's rejection of Rosa-Diaz' grievance appeal did not deny him such necessities. The same is true regarding Rosa-Diaz' allegation that Perry failed to countermand Oberlander's orders to keep him in restraints. Although prolonged confinement in restraints can constitute an Eighth Amendment violation, see Landis v. Wilson, 2022 WL2128563, at *2 (3d Cir. June 14, 2022), Perry is not alleged to have ordered Rosa-Diaz to be placed in restraints, let alone that he be placed in restraints for a period long enough to support Eighth Amendment liability. The Amended Complaint alleges that Oberlander ordered Rosa-Diaz to be placed in restraints. See, e.g., ECF No. 19, p. 12, ¶ 12 (“Oberlander having the Plaintiff placed in restraints ...”). Thus, Rosa Diaz' Eighth Amendment claims against Fiscus, Moore, and Perry should be dismissed.
d. First Amendment Retaliation Claims
Next, Rosa-Diaz asserts First Amendment retaliation claims against Fiscus, Moslak, Moore, and Perry. The First Amendment protects individuals from retaliatory action for engaging in protected speech. Talbert v. Dep't of Corr., 2023 WL 4873643, at *6 (E.D. Pa. July 31,2023) (citing Nieves v. Bartlett,__ U.S. __, 139 S.Ct. 1715, 1722 (2019)). A prisoner asserting a retaliation claim must allege facts demonstrating that (1) he engaged in constitutionally protected conduct; (2) prison officials took an adverse action against the plaintiff that was “sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) the existence of “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Sides v. Fiscus Hearing Exam 'r, 2022 WL 17361738, at *5 (W.D. Pa. Dec. 1, 2022) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
i. The Amended Complaint fails to state a retaliation claim against Fiscus based on Misconduct 489646, but it is minimally sufficient to state a retaliation claim based on Misconduct 787837.
Rosa-Diaz' retaliation claims against Fiscus focus on the hearings she conducted to resolve Misconducts 489646 and 787837. See ECF No. 19, p. 11, ¶ 6; p. 13, ¶ 19. Rosa-Diaz alleges that Fiscus retaliated against him during the hearing on misconduct 489646 by refusing to call Inmate Young as a witness and by refusing to order forensic testing on the contraband recovered from his cell, which formed the basis for the misconduct charge. See ECF No. 19, ¶ 6. He also alleges a retaliatory motive behind Fiscus' refusing “to believe testimony of CO Ferringer,” and her permitting Defendant Custer “to change the version” of a written report minutes before the hearing on Misconduct 489646. Id. Further, Rosa-Diaz alleges that upon finding him guilty of Misconduct 787837, Fiscus stated that she “already received my orders from Oberlander. Stop writing passive threats on request slips and things might go better for you.” Id. As explained below, Rosa-Diaz' allegations fail to state a retaliation claim against Fiscus as to Misconduct 489646, but are minimally sufficient to state a claim regarding Misconduct 787837.
Rosa-Diaz does not assert a retaliation claim against Fiscus stemming from the hearing on misconduct 560168. See ECF No. 19 p. 10, ¶ 1-2.
An inmate's submission of a grievance or a request to staff form generally constitutes constitutionally protected activity for purposes of a retaliation claim. Maldonado v. Kauffman, 2023 WL 4317650, at *6 (M.D. Pa. May 9, 2023), report and recommendation adopted sub nom. Maldanado v. Ralston, 2023 WL 4315139 (M.D. Pa. July 3, 2023) (filing of request slips was constitutional protected conduct). It is unclear precisely what protected conduct Rosa-Diaz alleges as the basis for his retaliation claim in connection with Misconduct 489646, although it appears that he relies upon his prior filing of grievances and requests to staff. For purposes of the pending motion to dismiss, the Court will assume these allegations satisfy the first element of Rosa-Diaz' retaliation claim against Fiscus. The second element, an adverse action, is also satisfied. Rosa-Diaz alleges that Fiscus found him guilty of Misconduct 489646. See, e.g., Sides, 2022 WL 17361738, at *6 (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (holding that prisoner's allegation that he was falsely charged with misconducts in retaliation for filing complaints against a correctional officer sufficiently alleged a retaliation claim).
But his claim based on Misconduct 489646 fails at the third element: causation. In the context of a prison disciplinary proceeding, an inmate's retaliation claim fails whenever the defendant shows that there is “some evidence” to support the disciplinary citation. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Here, Rosa-Diaz' admission in his Amended Complaint that Fiscus called Custer as a witness for the hearing on Misconduct 489646 and that Custer testified that Rosa-Diaz “pulled down his mask (Plaintiff was wearing a mask at all times to protect himself from exposure to Covid-19), and spit through the cage onto Inmate Young” defeats his retaliation claim. See ECF No. 19, p. 4, ¶ 52. Custer's testimony constituted “some evidence” to support the misconduct citation, which precludes a retaliation claim based on prison discipline. See McClain v. Hoover, 2023 WL 4662901, at *8 (M.D. Pa. Jan. 26, 2023); Brandon v. Burkhart, 2020 WL 10731719, at *11 (W.D. Pa. Nov. 16, 2020). The retaliation claim against Fiscus based on his upholding of Misconduct 489646 should be dismissed.
The retaliation claim against Fiscus based on Misconduct 787837 also fails as a matter of law to the extent it is based on her evidentiary rulings during the hearing, but is minimally sufficient to the extent it is based on her finding Rosa-Diaz guilty of the misconduct. First, Rosa-Diaz contends that Fiscus's denial of his request “for fingerprints, DNA, or any laboratory work that could prove to be exculpatory” constituted an adverse action sufficient to support a retaliation claim. ECF No. 19, p. 13, ¶ 19. But this investigatory/evidentiary ruling is not an action sufficient to deter a person of ordinary firmness from exercising his constitutional rights because a prisoner could not reasonably expect a hearing officer to grant such a request in the context of a prison disciplinary proceeding. Prison disciplinary proceedings are not subject to the procedural rights and safeguards that apply in criminal proceedings. See Baxter v. Palmigiano, 425 U.S. 308, 322 (1976) (inmates have neither a right to counsel nor an absolute right to confront or cross-examine witnesses). “Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances.” Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 456 (1985) (citing Wolff, 418 U.S. At 562-563, 567-569). Given the relatively minor nature of the misconduct charged against Rosa-Diaz and the informal nature of prison disciplinary proceedings in general, a prisoner in Rosa-Diaz' position could not reasonably expect a hearing officer to grant a request for a DNA or fingerprint investigation, testing, and analysis. Accordingly, such a denial would not deter a prisoner of reasonable firmness from engaging in protected conduct because a prisoner would have no reasonable expectation that a hearing officer would grant such a request.
It is certainly possible that a sufficient quantum of evidence exists whereby the Court could conclude that Fiscus's actions were reasonably related to a legitimate penological interest and that Rosa-Diaz would have been found guilty of the misconduct regardless of his protected activity, but that cannot be resolved on this limited record and at this early stage of this case. See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir 2002).
Rosa-Diaz also alleges, however, that Fiscus specifically referenced his filing of request to staff slips when she found him guilty of Misconduct 787837. This allegation can plausibly be interpreted as supporting an inference that Fiscus found him guilty of Misconduct 787837 because of his filing of request slips rather than based on the evidence presented. Unlike Rosa-Diaz' allegations regarding Fiscus' hearing on Misconduct 489646, which acknowledged the existence of some evidence to support the finding of guilt, the Amended Complaint provides no meaningful information concerning the evidence that supported Misconduct 787837. Fiscus can renew her challenge to the retaliation claim based upon Misconduct 787837 if a more developed record demonstrates that her guilty finding as to this misconduct charge also was based on some evidence.
ii. The Amended Complaint fails to state a retaliation claim against Moslak.
Rosa-Diaz' retaliation claim against Moslak is based on his denying Rosa-Diaz' appeals of Misconducts 489646 and 787837 and his permitting Oberlander to investigate himself. ECF No. 19, p. 13, ¶ 21, 23. Specifically, the Amended Complaint alleges that, despite having “the power to reverse and remand the Plaintiffs appeal back to the institution for re-hearing and investigation,” Moslak “pre-plant[ed] the denial of Plaintiff s appeal for final review.” Id. Based on these allegations, it is apparent that Rosa-Diaz is attempting to hold Moslak liable based on his response to the appeal of a misconduct charge. This type of averment is insufficient to establish personal involvement in the deprivation of a constitutional right. It is well-settled that “if a prison official's only involvement is investigating or ruling on an inmate's grievance after the incident giving rise to the grievance has occurred, there is no personal involvement on the part of that official.” Bressi v. McCloud, 2019 WL 7372778, at *14 (M.D. Pa. Aug. 19, 2019). See also Holden v. Wetzel, 2021 WL 1090638, at *15 (W.D. Pa. Mar. 22, 2021) (citing Powell v. McKeown, 2020 WL 4530727, at *10-12 (M.D. Pa. Aug. 6, 2020) (holding that claims against chief hearing examiner based on underlying procedural deficiencies and failure to respond favorably to plaintiffs appeals from disciplinary proceedings were insufficient to for liability under § 1983)); Hoopsick v. Oberlander, 2020 WL 5798044, at *3 (Sept. 29, 2020); Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018) (allegation that supervisory defendant was “made aware of several issues of the plaintiffs and ... failed to help him” is insufficient to state a claim for relief). Accordingly, this claim should be dismissed.
iii. The Amended Complaint fails to state a retaliation claim against Moore.
Rosa-Diaz bases his First Amendment retaliation claim against Moore solely upon her denial of the final appeal of his grievance. See ECF No. 19, p. 14, ¶ 25. Because Moore's “only involvement is ... ruling on an inmate's grievance after the incident giving rise to the grievance,” she had no personal involvement in actions upon which Rosa-Diaz bases his claim. Bressi, 2019 WL 7372778, at *14. Accordingly, Rosa-Diaz' retaliation claim against Moore should be dismissed. See, e.g., Holden v. Wetzel, 2021 WL 1090638, at *15.
iv. The Amended Complaint fails to state a retaliation claim against Perry.
Rosa-Diaz' allegations do not support any of the essential elements of a First Amendment retaliation claim against Perry. The Amended Complaint does not associate any protected activity by Rosa-Diaz with any action taken by Perry. Rather, Rosa-Diaz complains primarily about Perry's alleged failures to intervene in the actions of others: Perry refused to call the Central Office, refused to countermand Oberlander's orders, and told Rosa-Diaz to “write Central Office himself.” ECF No. 19, p. 12, ¶ 13. Relatedly, Rosa-Diaz also does not identify any action by Perry that would deter a person of ordinary firmness from exercising his constitutional rights. Thus, he has not alleged any basis for a retaliation claim against Perry.
e. The Amended Complaint fails to allege a “calculated harassment” claim against Fiscus, Moore or Perry.
Rosa-Diaz alleges that the actions of Fiscus, Moore and Perry amounted to “calculated harassment.” See ECF No. 19, p. 10, ¶ 2; p. 12, ¶ 13; p. 14, ¶ 26. The Eighth Amendment protects prisoners from calculated harassment, Hudson v. Palmer, 468 U.S. 517, 528 (1984), but “[i]n order for harassment to violate the Eighth Amendment, it must be more than a few isolated incidents; rather, it must be extended and targeted against a particular prisoner.” Toolasprashad v. Wright, 2005 WL 3536205, *6 (D.N.J. 2005) (comparing Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984) (denying prisoner few meals did not amount to harassment), and Prisoners' Legal Ass 'n v. Roberson, 822 F.Supp. 185 (D.N.J. 1993) (searching plaintiff three times could not be considered harassment), with Scher v. Engelke, 943 F.2d 921 (8th Cir. 1991), cert, denied, 503 U.S. 952 (1992) (finding harassment where prisoner's cell was searched ten times in nineteen days)). See also Bell v. Haines, 2022 WL 453532, at *7 (M.D. Pa. Feb. 14, 2022) (citing Rosa-Diaz v. Rivello, 2020 WL 6481539, at *18 (M.D. Pa. July 10, 2020) (noting singular or isolated incidents insufficient to state a claim for calculated harassment).
This claim fails as a matter of law because Rosa-Diaz alleges only isolated events: Fiscus' finding Rosa-Diaz guilty of three separate and distinct misconduct charges (only one of which provides any basis for a claim against her); Moore's rejection of one of his grievance appeals on final review (which is not independently actionable); and Perry's refusal to call the “central office” regarding Oberlander's restraint order (which is not independently actionable). Even ignoring the non-actionable nature of most of these alleged acts of harassment, they amount to little more than isolated disciplinary actions with which Rosa-Diaz disagreed. They are wholly insufficient to support the existence of a pattern of harassment by any of these three Defendants. See, e.g., Bell, 2022 WL 453532, at *7. Additionally, this Court has explained that “calculated harassment is not a claim in and of itself apart from the separate and discrete actions by the defendants.” Watson v Gill, 2018 WL 5044229, at *3 (W.D. Pa. Oct. 17, 2018). Thus, Rosa-Diaz cannot assert a claim of calculated harassment against these Defendants based on his legally insufficient due process, retaliation, and deliberate indifference claims. Id. Accordingly, Rosa-Diaz' calculated harassment claim against Fiscus, Moore, and Perry should be dismissed.
f. The Amended Complaint fails to state a civil conspiracy claim against Fiscus, Moslak, Moore, or Perry.
The Amended Complaint broadly alleges that Fiscus, Moslak, Moore, and Perry conspired to violate his civil rights. See ECF No. 19, ¶¶ 10, 23, 26. To sustain a civil conspiracy claim under § 1983, a plaintiff must allege facts to show that two or more persons acting under color of state law conspired to deprive him of a constitutional right. Williams v. PA. Dep't of Corr., 2023 WL 2655406, at *13 (W.D. Pa. Feb. 2, 2023), report and recommendation adopted sub nom. Williams v. PA Dep't of Corr., 2023 WL 2652298 (W.D. Pa. Mar. 27, 2023) (citing Laurensau v. Romarowics, 528 Fed.Appx. 136, 140 (3d Cir. 2013)). The plaintiffs factual allegations must reveal: “1) the specific conduct that violated the plaintiffs rights, 2) the time and the place of the conduct, and 3) the identity of the officials responsible for the conduct.” Id. (citing Sanchez v. Coleman, 2014 WL 7392400, at *9 (W.D. Pa. Dec. 11, 2014) (additional citation omitted). The “factual allegations” must support the existence of a “combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“[w]hile the pleading standard under [Fed. R. Civ. P.] Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient, Id., as are “mere conclusory allegations of deprivations of constitutional rights are insufficient to state a conspiracy claim.” Tindell v. Beard, 351 Fed.Appx. 591, 594 (3d Cir. 2009). Rather, the plaintiff “must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.” Capogrosso v. The Supreme Court of the State of New Jersey, 588 F.3d 180, 184-85 (3d Cir. 2009).
A civil rights conspiracy claim also fails “where the facts alleged are sketchy, episodic, and uneven and jump from one isolated event to another while expecting the reader to fill in the gaps.” Talbert v. Dep't Corr., 2023 WL 4873642, at *22 (E.D. Pa. July 31, 2023) (quoting Hammond v. Creative Fin. Plan Org., Inc., 800 F.Supp. 1244, 1250 (E.D. Pa. 1992)). “Additionally, as Section 1983 does not create a cause of action for conspiracy in and of itself, a plaintiff must also allege some underlying deprivation of a constitutional right.” Id. (quoting Holt Cargo Systems, Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998)).
To the extent Rosa-Diaz may be attempting to bring a harassment claim under state law, such a claim fails because Pennsylvania recognizes no such claim. See Norman v. Wall, 2019 WL 3308342, at *5 (Pa. Super. Ct. July 23, 2019).
The Amended Complaint merely invokes conclusory allegations that Defendants engaged in a “civil conspiracy” without supporting factual allegations, see e.g., ECF No. 19, ¶¶ 10, 23, and thus fails to support any of the essential elements of a conspiracy claim against Fiscus, Moslak, Moore, or Perry. No facts are alleged to support the existence of an agreement between or among any two or more of the Defendant or other DOC employees to violate Rosa-Diaz' constitutional rights. The Amended Complaint does not allege any facts to support that DOC personnel “communicated with one another and agreed to harm him.” Talbert v. Pa. DOC, 2023 WL 4873643, at *22 (E.D. Pa. July 31, 2023). Because Rosa-Diaz has not alleged facts to support the existence of an agreement to violate his civil rights or a resulting violation of his rights, his conspiracy claims against Fiscus, Moslak, Moore and Perry should be dismissed. See id.-, Kist v. Fatula, 2007 WL 2404721, at *8 (W.D. Pa. Aug. 17, 2007).
g. The state law intentional infliction of emotional distress and harassment claims against Fiscus should be dismissed.
Rosa-Diaz asserts a Pennsylvania state law intentional infliction of emotional distress (IIED) claim against Fiscus. “To state [an IIED] claim, a plaintiff must allege that: (1) defendant's conduct was intentional or reckless, (2) the conduct was extreme and outrageous, (3) it caused emotional distress, and (4) the emotional distress was severe.” Quintana v. City of Philadelphia, 2018 WL 3632144, at *9 (E.D. Pa. July 30, 2018) (citing Frankel v. Warwick Hotel, 881 F.Supp. 183, 187 (E.D. Pa. 1995) (citation omitted)). In addition, the plaintiff “must allege physical manifestations of the emotional distress.” Washington Area Humane Soc'y, 2020 WL 6364762, at *8 (W.D. Pa. Oct. 29, 2020) (citing Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004)).
As a threshold inquiry, the Court must determine whether Fiscus' alleged conduct may reasonably be regarded as “extreme and outrageous” under Pennsylvania law. See Peschmann v. Quayle, 2019 WL 5075802, at *12 (W.D. Pa. Aug. 13, 2019), report and recommendation adopted as modified, 2019 WL 4744814 (W.D. Pa. Sept. 30, 2019) (citations omitted). “The bar for the level of extreme and outrageous conduct needed to sustain an IIED claim is very high.” Woods v. Morris, 2022 WL 11962108, at *6 (W.D. Pa. Oct. 20, 2022). The allegations of the Amended Complaint against Fiscus do not even approach this high bar.
First, the denial of a grievance does not represent extreme or outrageous conduct utterly intolerable in a civilized community. Woods, 2022 WL 11962108, at *6. See also Vasquez v. Wingard, 847 Fed.Appx. 108 (3d Cir. 2021) (inmate's claim that he was dissatisfied with the grievance process was not sufficiently extreme and outrageous). It follows that the sustaining of a misconduct charge likewise cannot support an IIED claim. Indeed, prison hearing officers are regularly required to determine the guilt or innocence of inmates charged with misconduct. Even if a hearing officer is alleged to have been biased or to have proceeded with ill will against an inmate, this is not the type of conduct that could be considered extreme and outrageous under Pennsylvania law.
Further, Rosa-Diaz does not allege that he suffered any physical manifestations due to Fiscus' having found him guilty of the three misconduct charges discussed supra. Absent factual allegations to support such findings, an IIED claim fails. See Dobson v. Milton Hershey School, 356 F.Supp.3d 428, 439-40 (M.D. Pa. 2018) (holding plaintiffs bald allegations of “physical harm” and “physical manifestations of emotional distress” were not enough, without more, to set forth a plausible IIED claim); Gomez v. Markley, 2011 WL 112886, at *1 (W.D. Pa. Jan. 13, 2011) (“in order to state a claim for [IIED] under Pennsylvania law, a plaintiff must establish physical injury or harm ... at the very least, existence of the alleged emotional distress must be supported by competent medical evidence). Rosa-Diaz' IIED claim against Fiscus is defective on multiple grounds and should be dismissed.
h. The Amended Complaint fails to state an access-to courts-claim against Moslak.
“Under the First and Fourteenth Amendments to the United States Constitution, ‘prisoners retain a right of access to the courts.'” Gonzalez v. Srebro, 2023 WL 3867800, at *4 (M.D. Pa. June 7, 2023) (quoting Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). An inmate, however, may only proceed on access-to-courts claim in two situations: “challenges (direct or collateral) to their sentences and conditions of confinement.” Id. (citing Lewis, 518 U.S. at 354-55). To state an access-to-courts claim that is backward-looking in nature, the inmate must allege facts to support “(1) that they suffered an ‘actual injury'-that they lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim; and (2) that they have no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Monroe, 536 F.3d at 205 (citation omitted). The underlying claim must be described well enough to demonstrate that it is “more than hope,” and the complaint must set out the “lost remedy.” See id.
Rosa-Diaz alleges in conclusory fashion that Moslak's upholding of his misconduct charge and his permitting Oberlander to investigate amounted to a violation of his rights to access the courts. This claim fails because Rosa-Diaz has not alleged an actual injury, that is, that he lost an opportunity to pursue a nonfrivolous claim. See, e.g., Angle v. Little, 2023 WL 3742607, at *3 (W.D. Pa. May 2, 2023). Rosa-Diaz' conclusory allegation that Moslak denied his “access to courts” does not support an actual injury. Accordingly, this claim should be dismissed. See, e.g., Saunders v. Criley, 2022 WL 17812447, at *2 (M.D. Pa. Dec. 19, 2022). Because Rosa-Diaz has failed to specify how Moslak's action prevented him from pursuing a viable, nonfrivolous claim, his access-to-courts claim should be dismissed.
i. The Amended Complaint fails to state a harassment or discrimination claim against Moore or Perry.
The Amended Complaint asserts claims of harassment and discrimination against Moore and Perry. ECF No. 19, p, 12, ¶ 13; p. 14, ¶ 26. First, Moore's denials of Rosa-Diaz' misconduct and grievance appeals cannot be considered acts of harassment because, as noted above, “claims based on the handling of grievances fail because ‘prison inmates do not have a constitutionally protected right to a grievance process.'” LaBarre v. Russell, 2019 WL 3423588, at *2 (E.D. Pa. July 26, 2019) (citing Jackson v. Gordon, 145 Fed.Appx. 774, 777 (3d Cir. 2005) (per curiam)); Caldwell v. Beard, 324 Fed.Appx. 186, 189 (3d Cir. 2009) (per curiam). The Amended Complaint alleges no other actions by Moore or Perry that could be considered adverse, let alone acts of harassment.
Rosa-Diaz' discrimination claim also fails for want of supporting factual allegations. The Amended Complaint alleges no facts to support that Moore or Perry subjected him to discrimination on account of race or any other protected classification. Rosa-Diaz' “bare assertion, subjective beliefs, and conclusory allegations of discrimination,” are insufficient to establish an inference of discrimination and, thus, fail to state such a claim. Jackson v. New Jersey Juvenile Justice Commission, 2023 WL 22497, at *7 (D.N.J. Jan. 2, 2023) (citing Tourtellotte v. Eli Lilly & Co., 636 Fed.Appx. 831, 843-44 (3d Cir. 2016)). Likewise, his “speculations, generalities, and gut feelings, however genuine, when they are not supported by specific facts, do not allow for an inference of discrimination to be drawn.” Paradoa v. Phila. Hous. Auth., 610 Fed.Appx. 163, 166 (3d Cir. 2015).
2. The Claims Against Defendant Oberlander
Oberlander has moved to dismiss “all claims” based on his participation in the grievance and misconduct processes, all claims that rely on his “failure to intervene” in the grievance or misconduct process, and all Fourteenth Amendment due process claims arising from Rosa-Diaz' placement in the BMU and IMU. See ECF No. 30, p. 3.
a. All claims based on Oberlander's participation in the grievance process should be dismissed.
The Amended Complaint identifies Oberlander as the “facility manager” at SCI-Forest. ECF No. 19, ¶ 13. He is also alleged to be “in charge of reviewing all administrated [szc] procedures and appeals.” Id. Although Rosa-Diaz asserts that Oberlander upheld the guilty findings on Misconducts 560168, 489646, and 787837 and the rejection of grievance 978901, see id., ¶¶ 32, 55, 80, 101, the Amended Complaint brings claims against-Oberlander only related to two of Rosa-Diaz' misconduct charges. According to the Amended Complaint, Oberlander ordered Fiscus to “find Plaintiff guilty of misconduct No. D489646.”. Id., p. 11, ¶¶ 7-9. Second, Rosa-Diaz again faults Oberlander for investigating himself and for “denying Plaintiff appeal number D787837.” Id., ¶ 20. Based on these alleged actions, the Amended Complaint asserts due process, conspiracy, deliberate indifference, retaliation, IIED, and discrimination claims against Oberlander. See e.g., id., p. 11, ¶¶ 8-9, 11; p. 13, ¶¶ 23.
No claims are brought against Oberlander based on his upholding Rosa-Diaz' guilty finding on Misconduct 560168.
Rosa-Diaz states that his retaliation claim against Oberlander in upholding Misconduct 489646 “constituted retaliation and discrimination for access to the court.” ECF No. 19, p. 11, ¶ 9. This allegation is not interpreted as a stand-alone “access to courts” claim but rather as an implication that Oberlander retaliated against Rosa-Diaz for his filing of other, unidentified lawsuits.
i. Claims based on Oberlander's denial of Rosa-Diaz' appeals of Misconduct 787837 should be dismissed.
As noted previously, allegations based on a defendant's involvement in the grievance process, without more, are insufficient to establish a defendant's personal involvement in the conduct upon which the plaintiff bases his claims. See Woods v. First Corr. Med. Inc., 446 Fed.Appx. 400, 403 (3d Cir. 2011) (per curiam) (“[B]ecause a prisoner has no free-standing constitutional right to an effective grievance process, [a prisoner] cannot maintain a constitutional claim . . . based upon his perception that [the defendant] ignored and/or failed to properly investigate his grievances.” (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991))); Brown v. Nicholson, 2020 WL 610523, at *6 (E.D. Pa. Feb. 7, 2020) (granting motion to dismiss § 1983 claim where prison superintendent's upholding of grievance denial on appeal did “not give rise to a constitutional violation” and plaintiff failed to allege any other personal involvement). See also Nguien v. Pennsylvania Dep't of Corr., 2023 WL 2527353, at *10 (W.D. Pa. Mar. 15, 2023). Here, the lone allegation against Oberlander related to Misconduct 787837 is that he investigated himself and denied Rosa-Diaz' appeal. ECF No. 19, p. 13, ¶ 20. Because a prison official's involvement in an inmate's grievance or misconduct appeal is not involvement in an underlying constitutional violation, all claims against Oberlander based on his denial of Rosa-Diaz' appeal on Misconduct 787837 should be dismissed.
The same is true for Rosa-Diaz' claims that Oberlander violated DOC policy by “investigating himself.” See, e.g., ECF No. 19, p. 11, ¶ 9. To the extent Rosa-Diaz claims that his misconduct appeals or grievances were not properly investigated or adjudicated, those claims do not give rise to a constitutional violation. See Morris v. Zaken, 2022 WL 17340388, at *8 (W.D. Pa. Nov. 30, 2022) (citing Rosado v. Bell, 2020 WL 5608641, at *5 (M.D. Pa. Sept. 18, 2020) (“[I]f the state elects to provide a grievance mechanism, violations of its procedures do not... give rise to a 1983 claim.”) (internal quotation marks omitted).
ii. Claims based on Oberlander directing Fiscus to find Rosa-Diaz guilty of Misconduct 489646 should be dismissed.
Rosa-Diaz alleges that Oberlander instructed Fiscus to find him guilty of Misconduct 489646 because he had written a request slip to Oberlander which contained a “supposed passive threat.” ECF No. 19, p. 4, ¶ 53; p. 11, ¶ 8. In essence, Rosa-Diaz contends that Oberlander' actions deprived him of an impartial tribunal for his prison disciplinary proceeding. This lack of impartiality forms the basis for Rosa-Diaz' claims of First Amendment retaliation, deliberate indifference, harassment, procedural due process, and intentional infliction of emotion distress. Id. As previously discussed, Rosa-Diaz' due process claims related to Misconduct 489646 fails because the sanction imposed based on this misconduct charge-ninety days in disciplinary custody-did not impose the type of atypical and significant hardship in relation to the ordinary incidents of prison life which would trigger due process protections. See Smith, 293 F.3d at 654. This defect applies with equal force to his due process claim against Oberlander. Furthermore, where, as here, the hearing officer was not “personally or substantially involved in the circumstances underlying [the investigation of the] charge ... courts generally decline to sustain due process challenges to disciplinary decisions on claims of staff bias.” Muchler, 2016 WL 3035303, at *3 (citing Redding v. Holt, 252 Fed.Appx. 488, 491 (3d Cir. 2007)).
Also, as previously discussed, where a prison hearing examiner's disciplinary decision is based on “some evidence,” that decision is presumed to be valid. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-56 (1985) (“[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.”). Here, the allegations of the Amended Complaint demonstrate that some evidence supported the underlying guilty finding on Misconduct 489664, which Oberlander later upheld. Rosa-Diaz acknowledges that “Defendant Custer was also called as a witness and ... stated that Plaintiff pulled down his mask (Plaintiff was wearing a mask at all times to protect himself from exposure to Covid-19), and spit through the cage onto Inmate Young.” ECF No. 19, p. 4, ¶ 52. This testimony is some evidence that Rosa-Diaz committed the infraction with which he was found guilty and, thus, negates his procedural due process claims against Oberlander. The same is true for Rosa-Diaz' retaliation claim. See Nifas v. Beard, 374 Fed.Appx. 241, 244 (3d Cir. 2010) (“[an inmate's] retaliatory discipline claim fails [when] there is ‘some evidence' supporting the guilty findings ....”).
Rosa-Diaz' Eighth Amendment deliberate indifference claim against Oberlander also should be dismissed. Rosa-Diaz' allegations of a biased grievance process do not support a denial of “the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Thus, this claim should be dismissed.
Again, and as noted supra., Rosa-Diaz' claim based on an alleged biased misconduct process is appropriately considered as a procedural due process claim under the Fourteenth Amendment rather than an Eighth Amendment conditions of confinement claim. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (discussing the “more specific-provision rule” that a claim must be analyzed under the more specific provision of the Constitution that applies to the claim).
The harassment and conspiracy claims should likewise be dismissed. As discussed, “calculated harassment” requires allegations of “more than a few isolated incidents; rather it must be extended and targeted against a particular incident.” Bell, 2022 WL 453532, at *7 (citation omitted). Rosa-Diaz alleges only that Oberlander instructed Fiscus to find him guilty of misconduct, and then upheld that finding. See ECF No. 19, p. 13, ¶ 20. This is far from an extended pattern of targeted harassment and, thus insufficient to support a calculated harassment claim. Rosa-Diaz' conspiracy claim against Oberlander also fails because Rosa-Diaz has not alleged any facts to support that he participated in an understanding or agreement to violate Rosa-Diaz' civil rights. See White v. Frey, 2023 WL 4748180, at *5 (M.D. Pa. July 25, 2023). Indeed, Rosa-Diaz pleads the opposite: that Oberlander ordered Fiscus to find him guilty; not that they agreed to do so. And, in any event, because the finding of guilt on the misconduct charge was supported by some evidence, it is presumed to be valid. Thus, the harassment and conspiracy claims against Oberlander also should be dismissed.
Finally, Rosa-Diaz alleges that Oberlander's actions related to Misconduct 489646 amounted to the intentional infliction of emotional distress. See ECF No. 19, p. 11, ¶ 7. Here, again, the conduct Rosa-Diaz attributes to Oberlander falls well short of the type of “intentional outrageous or extreme conduct” necessary to support an IIED claim. See Cromwell v. Fichter, 2023 WL 3734969, at *2 (3d Cir. May 31, 2023) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)). And Rosa-Diaz has failed to allege any “physical injury, harm, or illness related to the distress” as required by Pennsylvania law. See Tissone v. Berardino, 2016 WL 7404556, at *9 (W.D. Pa. Dec. 22, 2016) (citing Connearney v. Main Line Hospitals, Inc., 2015 9302912, at *7 (E.D. Pa. Dec. 22, 2015)). Accordingly, this claim also should be dismissed.
iii. The Fourteenth Amendment due process claims against Oberlander related to Rosa-Diaz' placement in the BMU and IMU.
Finally, Oberlander moves to dismiss Rosa-Diaz' due process claims relating to his BMU and IMU housing assignments. See ECF No. 30, p. 3. Rosa-Diaz alleges that Oberlander called Defendants Marsh, Bickel, and Little to “arrange the Plaintiff[‘s] removal from BMU program to IMU program because Defendant Oberlander was mad at Plaintiff for an alleged request Plaintiff wrote ECF No. 19, p. 14, ¶¶ 24-25, 28. Further, Rosa-Diaz contends that Oberlander “failed to remove Plaintiff from programs in order to prolong the Plaintiffs confinement on RRL designation and SL-5 housing unit to prevent Plaintiff from making parole.” Id., p. 15, ¶ 30. He contends that Oberlander's actions imposed an “atypical and significant hardship” implicating Fourteenth Amendment due process protections. See id. He is incorrect.
Rosa-Diaz does not have a constitutional right to any particular security classification or the right to a particular housing unit or facility. See Wilkinson, 545 U.S. at 221-22 (stating that the Constitution does not give rise to a liberty interest in avoiding transfers to more adverse conditions of confinement); see also Lawson v. Carter, 2016 WL 6694860, at *2 (M.D. Pa. Nov. 14,2016) (“[I]t is well-established the prisoners have no inherent constitutional right to placement in any particular prison, to any security classification, or to any particular housing assignment.”). Thus, Rosa-Diaz' allegations do not support that he was deprived of any liberty or property interest because of his placement in the BMU, his inclusion on the RRL list, and/or his reassignment to the IMU. Therefore, his due process and other claims based on these actions should be dismissed.
E. Summary
For purposes of clarity, the following graphic summarizes the recommended disposition of the claims against Defendants Fiscus, Moslak, Moore, and Perry:
Claim
Defendants
Recommendation
14th Amendment Due Process
Fiscus, Moslak, Moore, Perry
Grant motion to dismiss
8th Amendment Deliberate Indifference
Fiscus, Moore, Perry
Grant motion to dismiss
1st Amendment Retaliation based on Misconduct 487646
Fiscus, Moslak, Moore, Perry
Grant motion to dismiss
1st Amendment Retaliation based on Misconduct 787837
Fiscus
Deny motion to dismiss
Calculated harassment under the 8th Amendment
Fiscus, Moore, Perry
Grant motion to dismiss
Civil Conspiracy
Fiscus, Moslak, Moore, Perry
Grant motion to dismiss
Intentional Infliction of Emotional Distress
Fiscus
Grant motion to dismiss
Access to Courts
Moslak
Grant motion to dismiss
Harassment and Discrimination
Moore and Perry
Grant motion to dismiss
As to the claims against Defendant Oberlander:
Claim
Defendants
Recommendation
All claims based on involvement in misconduct 787837
Oberlander
Grant motion to dismiss
Claims based on Oberlander directing Fiscus to find Rosa- Diaz guilty on misconduct charge 489646
Oberlander
Grant motion to dismiss
Due Process claims based on Rosa-Diaz' placement in and/or transfer to the BMU and IMU; inclusion on the RRL
Oberlander
Grant motion to dismiss
III. Notice to the Parties Concerning Objections
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72((b)(2), 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. 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).
BY THE COURT