Opinion
Civil Action 22-1261
08-03-2023
DAVON SMITH Plaintiff, v. E. STREIT, Correctional Officer MARK CAPOZZA, Superintendent C. DISALVO, Lieutenant Defendants.
Schwab, District Judge.
ECF No. 19
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss (ECF No. 19) be granted in part and denied in part. It should be granted with prejudice as to Plaintiff's Eighth, Fifth and Fourteenth Amendment claims, and all claims against Defendants in their official capacities. It should also be granted with prejudice as to the individual capacity claims against Defendants Capozza and Disalvo. Defendants Capozza and Disalvo should be terminated as party defendants. The Motion should be granted without prejudice to Plaintiff's filing of an amended complaint as to the First Amendment access to the courts claim against Defendant Streit. It should be denied as to Plaintiff's state law claims. Should Plaintiff fail to file an amended complaint as to this First Amendment access to the courts claim within 30 days after the District Judge's adoption of this Report and Recommendation, it is recommended that all federal claims be dismissed with prejudice and that the District Court decline to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c).
II. REPORT
A. Procedural Background and Relevant Factual Allegations
Plaintiff Davon Smith is an inmate under the supervision of the Pennsylvania Department of Corrections and is currently housed at SCI Huntingdon. Plaintiff filed this suit following an alleged incident that occurred at SCI Fayette on February 14, 2022. ECF No. 1 at 5. While Plaintiff was in the shower, another inmate in his unit observed Defendant Streit enter Plaintiff's cell and exit carrying legal documents which he then placed in the trash. Id. at 6. Included in these documents were Plaintiff's research briefs, affidavits, court transcripts, and reports which he planned to use in his upcoming evidentiary hearing. Id. This incident forced Plaintiff to attend his hearing without the documents necessary to prove his innocence. Id.
Following the incident, Plaintiff completed request slips to his unit manager and counselor, requesting the return of his documents. Id. at 7. When he didn't receive a response, Plaintiff filed a grievance. Id. The grievance was denied and Plaintiff appealed, requesting that Lieutenant Disalvo, the answering authority, review the camera footage from the housing unit. Id. The camera footage was not checked and the appeal was denied on March 18, 2022, upholding the original grievance denial. Id. Plaintiff appealed once more and was denied on May 6, 2022. Id. Plaintiff now brings a § 1983 suit against Defendants Streit, Disalvo, and Capozza for violation of his federal constitutional rights. See ECF No. 1.
The grievance was filed on February 24, 2022 and assigned grievance no. 969748.
When an officer locates and removes contraband from an inmate's cell, DC-ADM 203(B)(1)(d) requires the inmate be issued a DC-154 for confiscated property so that the inmate may appeal the taking of property. Here, Defendants argue that because no DC-154 was issued, Defendant Streit did not remove property from Plaintiff's cell. This reasoning was cited by Defendant Disalvo in denying Plaintiff's grievance on March 8, 2022. See ECF No. 1-1 at 5.
Plaintiff brings this cause of action pro se and is proceeding in forma pauperis. Id.; ECF No. 4. On February 17, 2023, Defendants filed the pending Motion to Dismiss the Complaint for Failure to State a Claim (ECF No. 19) along with a supporting brief (ECF No. 20). Plaintiff was ordered to file a response to the motion by March 24, 2023. ECF No. 21. He requested and was granted an extension until May 3, 2023. ECF No. 25. Plaintiff requested and was granted another extension until June 5, 2023. ECF No. 27. As of the writing of this Report and Recommendation, Plaintiff has failed to respond to Defendants' Motion to Dismiss.
B. Legal Standards
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
The Court also recognizes that in a civil rights action, a court must give the plaintiff an opportunity to amend a deficient complaint, regardless of whether the plaintiff requests to do so, when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Plaintiff has met both of these requirements as Defendants do not dispute that they were acting under color of state law and Plaintiff has alleged deprivation of federal constitutional rights.
1. Lack of personal involvement of Capozza and Disalvo
Defendants argue that the allegations against Capozza and Disalvo are solely in relation to their supervisory roles and move for their dismissal. Defendants maintain that neither Capozza nor Disalvo had personal involvement in the alleged constitutional violations, nor did either Defendant direct a subordinate to violate Plaintiff's rights. Plaintiff alleges that Defendant Capozza is liable under the theory of respondeat superior and that Defendant Disalvo is liable for failure to properly investigate Plaintiff's grievance slip regarding the incident on February 14, 2022.
It is well established that a “defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a “plausible nexus” or “affirmative link” between the [directions] and the specific deprivation of constitutional rights at issue.'”) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)).
The Third Circuit Court of Appeals has identified two general instances in which the conduct of a supervisor-defendant or the policies/procedures of a supervisordefendant may constitute personal involvement, thus warranting a finding of individual supervisory liability for a constitutional tort. First, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Moreover, a defendant's mere participation in the grievance process is insufficient to confer knowledge of, and acquiescence to, a constitutional violation. Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013); see also Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept.12, 2017) (“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.”). Even a supervisor's presence during the incident is not enough to impose liability without showing actual knowledge through the acquiescence of or direct personal involvement in the deprivation of rights. Bracey v. Grenoble, 494 F.2d 566, 570 (3d Cir. 1974) (“The mere fact of presence of a superior officer would not be sufficient to impose liability...”).
Here, Plaintiff alleges few facts beyond Defendant Capozza being the Superintendent and Defendant Disalvo being the Lieutenant on duty when the incident took place. Plaintiff's allegation against Capozza is a conclusory statement which argues liability for the acts committed within the scope of his employment under the doctrine of respondeat superior. However, as the Third Circuit reaffirmed in Rode, respondeat superior liability does not exist under § 1983. Instead, the Plaintiff must allege Capozza participated in, directed, or had actual knowledge of the alleged constitutional violations. Rode, 845 F.2d at 1207. Plaintiff includes no other facts in the Complaint to suggest that Defendant Capozza was aware of or in charge of Defendant Streit removing legal papers from Plaintiff's cell. Nor does Plaintiff assert any facts which show Capozza created and maintained, with deliberate indifference, a policy which led to a violation of Plaintiff's rights.
Plaintiff alleges that Defendant Disalvo is liable under § 1983 because he was the Lieutenant on duty and failed to properly investigate the incident as answering authority in the grievance process. ECF No. 1 at 7. When Plaintiff submitted grievance no. 969748, Disalvo was the individual who denied it, providing Plaintiff no relief and stating that Plaintiff failed to present any arguable law, fact, or policy. See ECF No. 1-1 at 5. Following Plaintiff's first grievance appeal, Disalvo was no longer the authority in charge of the investigation. See id. at 7. Nonetheless, the original denial was still upheld by another prison official not named as a party in this suit. Id.
The Third Circuit has held that a prison official's failure to properly respond to or investigate a prison grievance does not establish liability for an underlying alleged constitutional violation. Brooks v. Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (“Although the complaint alleges that Appellees responded inappropriately to Brooks's later-filed grievances about his medical treatment, these allegations do not establish Appellee's involvement in the treatment itself.”); see Williams v. Armstrong, 566 Fed.Appx. 106, 109 (3d Cir. 2014) (improper handling of inmate grievances does not amount to a cognizable claim under § 1983); see also Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013) (defendant's participation in the grievance process is not sufficient to confer knowledge of, and acquiescence to, a constitutional violation).
Here, Disalvo's involvement in the alleged violations were solely in relation to his review of Plaintiff's grievance. This participation alone does not constitute actual knowledge or acquiescence in the violation of Plaintiff's rights. Moreover, Plaintiff does not include any factual allegations of Disalvo's involvement or actions outside of the grievance process. Nor can Defendant Disalvo be held liable for his role as Lieutenant. See Rode, 845 F.2d at 1207.
The Court agrees that the Complaint lacks the necessary factual allegations to infer that Defendant Capozza or Disalvo had personal knowledge, involvement, or acquiescence in the deprivation of Plaintiff's rights. The facts presented by Plaintiff allege liability under respondeat superior, which the Third Circuit has rejected as a basis for supervisory liability in § 1983 claims. Id. Accordingly, the Court recommends that Defendants' Motion to Dismiss the claims against Defendants Disalvo and Capozza be granted with prejudice. Any attempt to amend these claims would be futile as a matter of law.
2. Official Capacity claims
The Eleventh Amendment prohibits the filing of suits against a state and its agencies by private parties in federal court absent state consent. Welch v. Texas Dep't of Highways and Public Transport, 483 U.S. 468, 472-73 (1987) (the Eleventh Amendment bars § 1983 suits against the state unless the state has waived its immunity). Pennsylvania has not waived its immunity and Congress has not abrogated immunity by enacting 42 U.S.C. § 1983. See 42 Pa. Cons. Stat. Ann. § 8521(b); see also Quern v. Jordan, 440 U.S. 332 (1979) (finding that Congress' enactment of § 1983 was not intended to override a state's sovereign immunity under the Eleventh Amendment).
When a plaintiff sues a defendant in their official capacity, they are essentially suing the entity for which the official works. Hafer v. Melo, 502 U.S. 21, 26 (1991) (finding that filing suit against a state official in their official capacity is akin to filing suit against the government entity under which the official is employed). Therefore, an official capacity suit against an employee of the Pennsylvania Department of Corrections is necessarily a suit against the Commonwealth. See Lavia v. Pa. Dep't of Corrs., 224 F.3d 190, 195 (3d Cir. 2000) (finding that the Department of Corrections is afforded the same immunity provided to the Commonwealth of Pennsylvania under the Eleventh Amendment).
Here, by arguing for the imposition of liability in Defendants' official capacities, Plaintiff is suing the Commonwealth of Pennsylvania, which is prohibited by the Eleventh Amendment. Id. In accordance with § 1983 case law and the United States Constitution, the Court recommends that Defendants' Motion to Dismiss claims against all Defendants in their official capacities be granted with prejudice. Any attempt to amend these claims would be futile as a matter of law.
3. State law claims
Sovereign immunity also provides broad protections to state officials and employees when “acting within the scope of their duties... except as the General Assembly shall specifically waive the immunity.” 1 Pa. C.S. § 2310; Sears v. McCoy, No. 1:17-cv-00869, 2021 WL 254067, at *7 (M.D. Pa. Jan. 26, 2021). The Pennsylvania General Assembly has waived immunity for nine categories of claims. See 42 Pa. Const. Stat. Ann. § 8522. None of the exceptions apply to the claims made by Plaintiff in this case.
The Restatement (Second) of Agency is used in determining the scope of employment under Pennsylvania State Law. See Justice v. Lombardo, 208 A.3d 1057, 1066-67 (Pa. 2019) (applying Restatement (Second) of Agency §§ 228-235 (Restatement) (1958) to determine scope of employment). Conduct of an employee carried out, at least in part, to serve the purpose of the employer will be deemed within the scope of employment. Restatement (Second) of Agency § 228(1) (1958). On the other hand, “[a]n act of a servant is not within the scope of employment if it is done with no intention to perform it as part of or incident to a service on account of which he is employed.” Restatement (Second) of Agency § 235 (1958).
Taking all of Plaintiff's allegations as true, Defendant Streit was not acting within the scope of his employment when he, without reason, removed legal documents from Plaintiff's cell while Plaintiff was in the shower and threw them away. Plaintiff's allegations suggest that Streit had no reason to enter Plaintiff's cell and doing so served no legitimate purpose to Streit's employer. DOC policy permits random cell searches but states that “all precautions will be taken to avoid damage to any items.” DC-ADM 203 at 1-1. Any evidence of a crime or contraband is to be removed pursuant to Department policy 6.3.1, and excessive property within one's cell may be removed provided that the prisoner receives a written list of the removed items. Id. Additionally, prisoners are permitted to be present during the search unless their presence would put officers or other inmates at risk, or the search is part of an ongoing investigation. Id.
Here, Defendant Streit took no precaution to avoid damaging Plaintiff's documents, rather he disposed of them, permanently depriving Plaintiff of his property. Following the removal, Plaintiff was not provided with a list of the items removed, nor was there reason to remove any items as Plaintiff's cell did not contain excessive property or contraband. Rather than wait for Plaintiff's return from the shower, Streit entered the cell while Plaintiff was away despite Plaintiff not being a risk to others. These papers were not part of an ongoing investigation and Streit was not acting in service of his employer when he deprived Plaintiff of his property. Accordingly, the Court recommends that Defendants' Motion to Dismiss any state law claims against Defendant Streit be denied at this time.
4. First Amendment Access to the Courts Claim
Defendants argue that Plaintiff's First Amendment access to the courts claim should be dismissed for failure to state a claim. Specifically, Defendants state that Plaintiff has failed to allege, with specificity, actual injury that resulted from the deprivation of his legal documents. Plaintiff contends that, as a result of Defendant Streit's actions, he was unable to present evidence to exonerate himself at an upcoming evidentiary hearing. The actual injury was Plaintiff's lost opportunity to present a legal claim to the court.
The United States Supreme Court has recognized that inmates have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). As the Supreme Court initially observed, this right of access to the courts is satisfied when corrections officials facilitate “meaningful” access for those incarcerated, either through legal materials or the assistance of those trained in the law. Id. at 827-28 (“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”). Two decades later, the Supreme Court provided further definition and guidance regarding the scope and nature of this right in Lewis v. Casey, 518 U.S. 343 (1996). In Lewis, the Court eschewed efforts to define this right in abstract, or theoretical terms, but cautioned courts to focus on concrete outcomes when assessing such claims. Lewis, 518 U.S. at 351-52.
Following Lewis, courts have consistently recognized that access-to-courts claims by prisoners require some proof of an actual, concrete injury in the form of direct prejudice to the plaintiff in the pursuit of some legal claim. See, e.g., Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997); Demeter v Buskirk, No. 03-1005, 2003 WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v. Chesney, No. 97-4983, 1998 WL 150961 (E.D. Pa. March 31, 1998).
“[P]risoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). As noted in Monroe:
Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (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.Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Importantly, Plaintiff must come forward with evidence to show that the underlying arguable claim is “more than hope,” and he must also describe the “lost remedy.” See Christopher, 536 U.S. at 416-17.
Plaintiff did not describe with specificity the injury suffered as a result of Defendant Streit's destruction of his legal materials. However, when construing the facts liberally, Plaintiff's allegations that the deprivation of his legal papers prevented him the opportunity to prove his innocence at his upcoming evidentiary hearing reasonably suggests that Plaintiff suffered actual injury following the incident.
Viewing the factual allegations in a light most favorable to the Plaintiff, the Court finds that Plaintiff may be able to plead sufficient facts to satisfy the actual injury requirement set forth by the Court in Lewis. The Court recommends that Defendants' Motion to Dismiss Plaintiff's First Amendment access to the courts claim be granted without prejudice to Plaintiff filing an amended complaint to allege facts demonstrating that the destruction of his legal documents thwarted his ability to present a meritorious claim.
5. Eighth Amendment Conditions of Confinement Claim
Plaintiff alleges briefly in his Complaint that Defendant Streit acted with deliberate indifference towards him, forcing him to experience “inhumane and unusual conditions and suffering.” ECF No. 1 at 8, ¶ 9. Defendants argue that Plaintiff failed to state an Eighth Amendment conditions of confinement claims which would satisfy the requirements set forth by the Supreme Court in Farmer v. Brennan. 511 U.S. 825 (1994).
To establish an Eighth Amendment claim under § 1983, a plaintiff must show a denial of humane conditions of confinement by a prison official who was aware of and disregarded a substantial risk to the plaintiff's health or safety. Id. at 837. Here, Plaintiff has not asserted inhumane conditions of confinement to which he was subjected. Nor has he alleged that any of the Defendants knew of and disregarded a substantial risk to his health and safety. In fact, Plaintiff makes no mention of health or safety concerns, nor does he point out any risks that were disregarded by Defendants.
Defendants argue that nothing alleged by Plaintiff in the Complaint rises to a level of the inhumane conditions or deliberate indifference recognized by the Court in Farmer. ECF No. 20 at 9. The Court agrees and recommends that Defendants' Motion to Dismiss the Eighth Amendment conditions of confinement claim should be granted with prejudice. Any attempt to amend on this claim would be futile as a matter of law.
6. Fourteenth Amendment
The Fourteenth Amendment provides, in relevant part, that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. Defendants move for dismissal on Plaintiff's Fourteenth Amendment claim for failure to state a claim for which relief may be granted.
a. Due Process
i. Substantive Due Process
The Fourteenth Amendment right to substantive due process protects persons against arbitrary, wrongful actions by the government “regardless of the fairness of the procedures used to implement them.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). See also Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (the Due Process Clause was intended to prevent government officials from abusing power, or employing it as an instrument of oppression); Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government.”). The United States Supreme Court has failed to set forth precise guidelines as to what constitutes impermissible “arbitrary” conduct for purposes of substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (clarifying that governmental conduct does not violate a person's substantive due process rights unless it amounts to an abuse of official power that “shocks the conscience.”). The United States Court of Appeals for the Third Circuit has made clear that “only the most egregious conduct will be considered arbitrary in the constitutional sense.” Hunterson v. DiSabato, 308 F.3d 236, 247-48 (3d Cir. 2002). That is, the relevant level of arbitrariness required involves conduct that is not merely unreasonable, but action that is “conscience shocking.” Id. at 246-47.
Here, Plaintiff alleges that Defendant Streit's actions violated his right to due process by using his position of power to inhibit Plaintiff from presenting evidence of his innocence and for not providing a process through which Plaintiff could appeal the taking of property. While the due process clause intends to protect individuals from abuse of governmental power, actions do not rise to the level of a constitutional violation unless they so egregiously shock the conscience. County of Sacramento, 523 U.S. at 846. Defendant Streit removing documents from Plaintiff's cell is unlikely to be deemed egregious conduct or conscious shocking using the standard set forth by the Third Circuit in Hunterson. Therefore, the Court recommends that Defendants' Motion to Dismiss Plaintiff's substantive due process claim be granted with prejudice. Any attempt to amend on this claim would be futile as a matter of law.
ii. Procedural Due Process
Plaintiff alleges that the removal of legal papers from his cell violated his procedural due process rights. Defendants argue that Plaintiff had meaningful post-deprivation remedies available and request that this claim be dismissed. The Court agrees.
Courts are hesitant to allow an intentional or negligent deprivation of property due process claim if there was a state tort remedy available to redress the deprivation. See Hudson v. Palmer, 468 U.S. 517, 520 (1984) (finding that the intentional destruction of inmate's property was not actionable under § 1983 because there were state remedies available for redress); see also Daniels v. Williams, 471 U.S. 327, 330-31 (1986) (concluding “that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”). The Third Circuit has held that a state inmate provided with a meaningful post-deprivation remedy, such as an internal grievance system, has no procedural due process claim under § 1983. See Mattis v. Dohman, 260 Fed.Appx. 458, 461 (3d Cir. 2008); see also Tillman v. Lebanon Cnty Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000) (holding that the prison grievance system was an adequate post-deprivation remedy).
Here, Plaintiff alleges that Defendant Streit entered his cell and intentionally removed his legal papers. ECF No. 1 at 7, ¶ 6. A due process claim for intentional deprivation of property is only actionable if Plaintiff were afforded no meaningful remedy post-deprivation. See Hudson, 468 at 520. However, Plaintiff used the prison's established grievance process promptly after his property was taken. Therefore, he had an adequate post-deprivation remedy available to address his property loss. The Court recommends that Defendants' Motion to Dismiss Plaintiff's Fourteenth Amendment procedural due process claim be granted with prejudice. Any attempt to amend on this claim would be futile as a matter of law.
b. Equal Protection
Plaintiff briefly states that the confiscation of his legal documents impeded the ability of him “and all others similarly situated” to advocate for themselves. ECF No. 1 at 8, ¶ 9. Defendants contend that Plaintiff's Fourteenth Amendment equal protection claim should be dismissed for failure to state a claim beyond barebone, conclusory allegations.
The Equal Protection Clause directs that all persons similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 201, 216 (1982)). It protects a plaintiff from: (1) a law or government action that substantially burdens a fundamental constitutional right; or (2) discrimination based upon membership in a protected class such as race, national origin, or gender. See, e.g., City of Cleburne, 473 U.S. at 340-41. Therefore, if the differential treatment involves a protected classification such as race, the government must have a compelling reason for the differential treatment. Id. at 440. A § 1983 plaintiff must allege the existence of purposeful discrimination and aver facts to show that he was treated differently from similarly situated individuals. See Kennan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992).
Plaintiff fails to allege membership in a suspect class. Nor does he allege the violation of a fundamental right. He does, however, allude to a Fourteenth Amendment equal protection “class of one” claim. Plaintiff appears to allege differential treatment from “all other[s] similarly situated.” ECF No. 1 at 8, ¶ 9; see Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Defendants argue that Plaintiff has not stated a cognizable equal protection class of one claim and move for dismissal.
In order to make out such a claim, a plaintiff must aver facts to plausibly suggest that “‘(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.'” Overly v. Garmon, 599 Fed.Appx. 42, 43 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006)). Here, Plaintiff fails to identify other similarly situated individuals from whom he was treated differently. Plaintiff does allege that Defendant Streit acted intentionally in removing documents from Plaintiff's cell, but he does not allege that he was intentionally treated differently that similarly situated individuals. In fact, he offers no allegations relating to the treatment of other inmates. Accordingly, the Court recommends that Defendants' Motion to Dismiss Plaintiff's Fourteenth Amendment equal protection claim should be granted with prejudice. In light of Plaintiff's conclusory allegation, and no facts to suggest that other similarly situated inmates were treated differently, any attempt to amend this claim would be futile.
7. Violation of DOC Policy
Plaintiff alleges that Defendant Streit violated DOC policy by not issuing him a slip for contraband upon which he could base a claim arguing for the return of his property. Further, Plaintiff alleges that Defendant Disalvo violated DOC policy by allowing Streit to fabricate the facts of the incident contrary to the code of ethics. Defendants argue that evidence a prison official violated DOC policy alone is not sufficient basis for a § 1983 claim. The Court agrees.
“[A] prison policy manual does not have the force of law and does not rise to the level of a constitutional violation.” Atwell v. Lavan, 557 F.Supp.2d 532, 556, n.24 (M.D. Pa. 2008) (citing Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 154 (3d Cir. 2004)). Therefore, failure to abide by the prison's own policy is not sufficient to impose liability on a prison official pursuant to § 1983. See Estrella v. Hogsten, Civil Action No. 1:06-CV-1340, 2007 WL 2065879, at *7 n.11 (M.D. Pa. July 16, 2007) (failure of prison officials to follow their own policy does not amount to a constitutional violation.).
Given that DOC policy holds no legal force in imposing liability on prison officials, Plaintiff's claim is not actionable under § 1983. Atwell, 557 F.Supp.2d at 556. Therefore, the Court recommends that Defendants' Motion to Dismiss Plaintiff's claim regarding DOC policy be granted with prejudice. Any attempt to amend this claim would be futile as a matter of law.
8. Failure to Investigate
In his Complaint, Plaintiff states that Defendant Capozza failed to property investigate the incident after receiving Plaintiff's grievance, and by doing so, violated his federal rights. Defendants argue that not responding favorably to an inmate grievance does not give rise to a claim under § 1983. Again, the Court agrees.
“[A]ccess to prison grievance procedures is not a constitutionally-mandated right, and allegations of improprieties in the handling of grievances do not state a cognizable claim under § 1983.” Glenn v. DelBalso, 599 Fed.Appx. 457, 459 (3d Cir. 2015); see also Hoover v. Watson, 886 F.Supp. 410, 418 (D. Del. 1995) aff'd, 74 F.3d 1226 (3d Cir. 1995) (holding that if a state elects to provide a grievance mechanism, violations of its procedures do not give rise to a § 1983 claim).
Here, Plaintiff alleges a violation of federal rights stemming from his dissatisfaction with Defendant Disalvo's review of his grievance and investigation into the incident. However, dissatisfaction alone is not enough to sustain a legally cognizable claim under § 1983 as there is no requirement for prison officials to investigate grievances. See Paluch v. Sec'y Pa. Dep't Corr., 442 Fed.Appx. 690, 695 (3d Cir. 2011). Accordingly, the Court recommends that Defendants' Motion to Dismiss Plaintiff's failure to investigate claim be granted with prejudice. Any attempt to amend this claim would be futile as a matter of law.
9. Fifth Amendment
Defendants argue that the Fifth Amendment only applies to the federal government, not state agencies. Plaintiff alleges that Defendant Streit violated his Fifth Amendment when he took property from Plaintiff without due process.
“[D]ue process of law is secured against invasion by the federal government by the Fifth Amendment, and is safeguarded against state action in identical words by the Fourteenth.” Malloy v. Hogan, 378 U.S. 1, 26 (1964). The Defendants in this case are state, not federal actors, therefore, the Fifth Amendment does not apply to Plaintiff's claims. Additionally, Plaintiff can raise a due process claim as a state prisoner under the Fourteenth Amendment, as he already has. Thus, the Court recommends that Defendants' Motion to Dismiss Plaintiff's Fifth Amendment claim be granted with prejudice. Any attempt to amend would be futile as a matter of law.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that the Defendants' Motion to Dismiss (ECF No. 19) be granted in part and denied in part. It should be granted with prejudice as to Plaintiff's Eighth, Fifth, and Fourteenth Amendment claims, and as to all claims against Defendants in their official capacities. It should also be granted with prejudice as to the individual capacity claims against Defendants Capozza and Disalvo, who should be terminated as party defendants. The Motion should be granted without prejudice to Plaintiff's filing an amended complaint as to the First Amendment access to the courts claim against Defendant Streit. It should be denied as to Plaintiff's state law claims. Should Plaintiff fail to file an amended complaint as to the First Amendment access to the courts claim within the time frame set by the District Judge (assuming this Report and Recommendation is adopted), it is recommended that all federal claims be dismissed with prejudice and that the District Court refuse to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c).
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.