Opinion
2:20-cv-001929
01-28-2022
EARL THURMAN, Plaintiff, v. MICHAEL ZAKEN, MR. BUZAS and JOHN AND JANE DOES, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATE MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that the Motion to Dismiss Complaint of Defendants Michael Zaken and Mr. Buzas (ECF No. 24) be granted.
II. Report
A. Procedural History
Plaintiff Earl Thurman (“Thurman”), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 for a violation of his civil rights. After his motion for leave to proceed in forma pauperis was granted, Thurman's Complaint (ECF No. 10) was docketed in January 2021. Thurman names as defendants Michael Zaken, Superintendent of SCI-Greene (“Zaken”), Mr. Buzas, who is Deputy Superintendent of SCI-Greene (“Buzas”) (sometimes collectively referred to as “Defendants”) and “John/Jane Does, ” who are identified only as SCI-Greene staff. Thurman has also filed a Brief in Support of Extraordinary Relief (ECF No. 11) that was docketed on the same date as his Complaint.
Defendants Zaken and Buzas have filed a Motion to Dismiss (ECF No. 24) and supporting Brief (ECF No. 25) to which Thurman has filed a Response in Opposition to Defendants' Motion (ECF No. 30).
The Court accepts as true the factual allegations of the Complaint for purposes of resolving the motion to dismiss.
As of March of 2017, Thurman was incarcerated at SCI-Huntingdon and maintained a job working in the kitchen. See ECF No. 10, p. 1. Prison officials became suspicious that Thurman was having an inappropriate relationship with a female lieutenant who was stationed in the kitchen. Thurman was moved to the restricted housing unit (“RHU”) and an investigation of the matter was conducted. See id. According to the Complaint, “[n]o evidence was found to support the charge; [n]o misconduct report was written; [n]o sanctions were imposed; and [n]o paperwork was issued to me.” ECF No. 10, Statement of Facts ¶ 2.
Thurman's placement in the RHU was pending an “administrative separation” pursuant to which Thurman would be transferred to a different prison as a precautionary measure. See id. Thurman took this opportunity to apply for a “hardship transfer” or as it was later termed, an “incentive-based transfer” (“IBT”), in order to request placement in a prison closer to his family. See id. at 1-2. The IBT was denied and on April 18, 2017, and Thurman was transferred to SCI-Greene. See id. at 2.
Over the next several years, Thurman submitted numerous requests for an IBT and was denied despite the fact that he claims to have met the criteria for such a transfer. See id.; see also ECF No. 10-1 (2017 Inmate Handbook, Incentive Based Transfers). Between April 2017 and November 16, 2020, Thurman submitted 11 requests to various staff members for an incentive- based transfer (ECF No. 10, Exs.1-7 and 9-13). As it relates to the named defendants, Thurman states that he wrote requests to “Major Buzas” on April 23, 2019 and May 7, 2019 (ECF Nos. 10-6, 10-7). The handwritten notations on these request slips state that Thurman did not meet the criteria for an IBT. On February 5, 2020, Thurman submitted a request slip to Zaken in which he asked for assistance in receiving an incentive-based transfer (ECF No. 10-13). In response, Zaken advised Thurman that to meet the IBT criteria, he cannot have been transferred for disciplinary reasons within the last five years. According to Zaken, because Thurman received a separation transfer in April 2017, he was not yet eligible. See id. Thurman alleges, however, that his transfer from SCI-Huntington to SCI-Greene was not a disciplinary transfer because he was never given a misconduct or sanctions at SCI-Huntington. See ECF No. 10, Statement of Facts ¶ 14.
Both the April 23, 2019 and May 7, 2019 “Inmate Request to Staff Member” documents that are attached to the Complaint at ECF Nos. 10-6 and 10-7 are addressed to “Major Brewser” and include handwritten responses from an unknown individual. The face of the document does not suggest that it was directed to Defendant Buzas or that he was the author of the response. However, for purposes of the pending motion, the Court will accept as true Thurman's allegation that he submitted requests to Buzas on April 23, 2019 and May 7, 2019.
As stated in Section O.1.b of the 2017 Inmate Handbook, “If you were transferred for documented disciplinary reasons, you will not be eligible for transfer to your home region for a minimum of five years.” ECF No. 10-1.
In June 2019, Thurman filed a grievance regarding the refusal to process his IBT (ECF No. 10-8). See ECF No. 10, Statement of Facts ¶ 9. His grievance was denied by “Counselor Schwab.” See Id. He alleges that he appealed from the denial to the “facility manager.” Neither the appeal document itself nor any further information about his appeal is provided in the Complaint.
In July of 2020 Thurman presented his IBT case to Tabb Bickel (“Bickel”), the Western District Secretary. His request was subsequently approved on October 8, 2020. See ECF No. 10, p. 2. Thurman was told he would be transferred by the end of October, and in preparation for the transfer he took a COVID test which had a negative result. See ECF No. 10, Statement of Facts ¶ 18.
Although his request to Bickel for an IBT was approved, Thurman was not transferred. He alleges that Brian Gerber (“Gerber”), who is identified as a unit manager, was angry that Thurman had contacted Bickel and proceeded to retaliate against Thurman. As stated in the Complaint, “[t]his is when the retaliation began. It started with Mr. Gerber threatening me with a misconduct for behavior other block workers were allowed; [t]hen he threatened me with removal from the block; [n]ow he frequently instructs staff to deny me the opportunity to do my job as block worker.” Id. Thurman does not allege that either Zaken or Buzas directed, approved of, or had any knowledge of Gerber's alleged conduct.
Gerber is not a named defendant.
Later that year, in November 2020, Thurman was told that his transfer was on hold due to COVID. See ECF No. 10-14, p.1. He submitted a grievance on November 16, 2020 about the refusal to transfer him (ECF No. 10-14). See ECF No. 10, Statement of Facts ¶ 19. The Complaint does not include any further facts regarding this grievance.
Thurman remains incarcerated at SCI-Greene and asserts that he was unjustly denied a transfer and remains distant from this family “while other prisoners are transferred every day.” ECF No. 10, p. 4. He asserts that this represents a hardship because he is “too far from [his] family in this time of crisis.” Id.
C. Standard and Scope of Review
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 motion to dismiss, the court is not opining on whether the plaintiff will be 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. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 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 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and view 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).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint 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 set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555. See also 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.”).
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.
When ruling upon a motion to dismiss pursuant to Rule 12(b)(6), the Court must “generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” 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). A court may take judicial notice of documents filed in other court proceedings because they are matters of public record. See Liberty Int'l Underwriters Can. v. Scottsdale Ins. Co., 955 F.Supp.2d 317, 325 (D.N.J. 2013). In this case, Thurman has attached various documents to the Complaint which can be considered in resolving the motion to dismiss.
Because Thurman is representing himself, the allegations in the Complaint must 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) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
Thus, the Court may consider facts and make inferences where it is appropriate. At the same time, “any pleading must still contain sufficient factual allegations that, when accepted as true, ‘state a claim to relief that is plausible on its face.'” Heffley v. Steele, 2019 WL 5092127, at *4 (W.D. Pa. Oct. 11, 2019), aff'd, 826 Fed.Appx. 227 (3d Cir. 2020) (citations omitted). See also Baez v. Mooney, 2021 WL 816013, at *3 (W.D. Pa. Feb. 8, 2021), report and recommendation adopted, 2021 WL 808726 (W.D. Pa. Mar. 3, 2021).
D. Discussion
In the introductory paragraph of his Complaint, Thurman identifies his claims as “denial of due process, ” “deliberate indifference, ” and “failure to protect.” Viewing the Complaint in the light most favorable to Thurman, he also raises a claim of retaliation. Therefore, the Court concludes that he is raising claims under the First, Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Moreover, as Thurman does not specify which of the defendants allegedly violated his civil rights in any of these claims, the Court will analyze each claim as to both Zaken and Buzas.
Defendants contend that Thurman has not stated a cognizable claim under the First, Eighth, or Fourteenth Amendments against either Zaken or Buzas. Thurman opposes their motion and claims that Defendants denied him due process when refusing his IBT requests and falsely stating he did not meet the criteria for the transfer. Further, Thurman claims, Defendants' retaliatory actions are evident from the fact that he remains housed at SCI-Greene despite approval of his transfer in October of 2020.
Section 1983 “provides a cause of action against state actors who violate an individual's rights under federal law.” Filarsky v. Delia, 566 U.S. 377, 380 (2012). Section 1983 does not create substantive rights but instead “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
A plaintiff must plead a defendant's personal involvement in the alleged deprivation of his constitutional rights. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of § 1983 itself, only a person who “subjects, or causes to be subjected” another person to a civil rights violation can be held liable under § 1983. Thus, each defendant is liable only for his or her own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Correctional Medical, 766 F.3d 307, 316 (3d Cir. 2014) (rev'd sub. nom. on other grounds 575 U.S. 822 (2015)); 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)).
The doctrine of respondeat superior, which makes an employer automatically responsible for the wrongdoing of its employees, does not apply under § 1983. 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.”); see, e.g., Rode, 845 F.2d at 1207. For that reason, supervisor-defendants cannot be held liable for every wrongful act that takes place in a correctional facility. Rather, they are only liable for their own conduct. “Therefore, it is incumbent upon a plaintiff to describe who he seeks to sue, and what these parties did that violated the plaintiff's rights. When a plaintiff fails in this basic responsibility, it is the duty of the court to dismiss his claims.” Rosa-Diaz v. Harry, No. 1:16-CV-2303, 2017 WL 1316946, at *5 (M.D. Pa. Feb. 2, 2017), report and recommendation adopted, No. 1:16-CV-2303, 2017 WL 1283771 (M.D. Pa. Apr. 6, 2017).
The Court of Appeals has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, 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.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “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. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190 (3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Rode, 845 F.2d at 1208.
1. First Amendment Retaliation Claim
Thurman alleges in the Complaint that he was retaliated against in several ways. First, Thurman claims that because Gerber was angry that he contacted the Western District Secretary about his transfer, Gerber threatened him with misconduct and removal from his block without any basis. Thurman also alleges that Gerber denied him the opportunity to perform his prison job. Thurman has not named Gerber as a defendant in this case, however. Moreover, he has not identified any basis to state a claim against Zaken or Buzas for Gerber's conduct.
As previously discussed, allegations of a defendant's participation or actual knowledge must be made with particularity. The Complaint does not allege that either Zaken or Buzas participated in or directed Gerber's conduct or had any knowledge about and acquiesced in this behavior. Similarly, Thurman does not allege that either of these defendants implemented or maintained an unconstitutional policy of retaliation as it relates to Gerber's alleged actions. Thus, Thurman has failed to state a claim against Zaken or Buzas regarding alleged retaliation by Gerber. There are no other allegations in the Complaint that can be read as representing retaliatory conduct by Zaken or Buzas. However, in Thurman's response to the motion to dismiss, he appears to claim that Zaken and Buzas retaliated against him by denying his IBT requests and failing to effectuate his approved transfer. While these allegations are not part of the Complaint, the Court will consider them in the context of whether Thurman should be granted leave to amend his Complaint.
To state a claim for retaliation under the First Amendment, a prisoner must allege that: (1) he was engaged in constitutionally protected conduct; (2) the defendant at issue took adverse action against him; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take that adverse action. See, e.g., Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). As previously discussed, because Plaintiff is bringing his retaliation claim under § 1983, he must also plead each defendant's personal involvement in the alleged retaliation.
Thurman filed two grievances relating to his requests for a transfer. One of his grievances alleges an “unfair” denial of his IBT request. The filing of a grievance is an activity protected by the First Amendment. See, e.g., Fantone v. Lantini, 780 F.3d 184, 192 n.8 (3d Cir. 2015). However, Thurman does not allege that Zaken or Buzas had any personal involvement in the review, consideration, or denial of either of his grievances. He has also failed to plead that either defendant took any adverse action against him because he filed grievances or that his transfer was denied because he asserted grievances. Thus, Thurman has not stated a First Amendment retaliation claim against Zaken or Buzas based on the grievances that he submitted.
Thurman also appears to claim that he was retaliated against for making IBT requests. These requests represent constitutionally protected activity. As discussed previously, Zaken received and responded to one of these requests and Buzas may have responded to two other requests. These requests, as well as requests directed to other individuals, were denied. Thurman asserts that the denials were erroneous because they misconstrued his prior conduct and incorrectly interpreted the IBT policy, and arguably the denials themselves represent an adverse action. An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). However, the Complaint does not adequately allege that his constitutionally protected conduct was a substantial or motivating factor in the decision to take that adverse action. Indeed, the facts in the Complaint suggest that the responses to his request were based upon interpretation of prison policy.
The Complaint can also be interpreted as alleging that Thurman's approved transfer has not been effectuated in retaliation for his protected acts of repeated requests for transfer and for his seeking help directly from Bickel, who approved his transfer. Arguably, failing to complete his transfer thereafter, despite Bickel's approval, and intentionally keeping him at SCI-Greene, despite transferring other prisoners, represents adverse actions, and Thurman's protected conduct could be a motivating factor in the decision to take these actions. However, Thurman has not alleged any facts that support a claim that Zaken or Buzas improperly participated in, directed, or approved of, the failure to transfer Thurman, despite Bickel's approval. Similarly, the Complaint does not plead that either defendant implemented an unconstitutional policy to retaliate against Thurman because of his requests for a transfer.
Thus, there is no causal connection between Thurman's exercise of his First Amendment rights and the delay in his approved transfer that can be attributed to Zaken or Buzas. Without any facts to support a retaliation claim against them, Thurman has failed to state a claim on which relief may be granted. At the same time, however, the Court cannot conclude that amendment would be futile if Thurman can plead facts that state some involvement on the part of Zaken or Buzas in connection with his claim of retaliation. Therefore, it is recommended that his First Amendment claim be dismissed without prejudice and with leave to amend.
2. Eighth Amendment Claim
While Thurman states that he is asserting an Eighth Amendment claim based upon deliberate indifference and failure to protect, he does not identify any conduct on the part of either Zaken or Buzas other than their responses to his requests regarding a transfer. Thus, the Court will first consider whether he has stated a claim of deliberate indifference regarding their responses to his IBT requests.
Two requirements must be met to prove a violation of the Eighth Amendment: First, the deprivation of rights alleged must be, objectively, “sufficiently serious, ” and second, a prison official's act or omission must result in the denial of “the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). To satisfy the second prong of the test, a prison official must have a “sufficiently culpable state of mind.” Id. (citations omitted). “In prison-conditions cases that state of mind is one of ‘deliberate indifference' to inmate health or safety.” Id. “A prison official may be held liable under the Eighth Amendment for acting with ‘deliberate indifference' to inmate health or safety only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 825.
As it relates to the denial of Thurman's IBT requests, the Complaint does not state a plausible Eighth Amendment claim. As a threshold matter, Thurman fails to allege any facts that would support a claim that he has been deprived by Zaken or Buzas of a constitutional right. The substance of his claim is that his transfer has been improperly denied. However, a prisoner's request for a transfer from one prison to another is not a constitutionally protected right. There is “no liberty interest in being confined at any particular prison.” Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983).
Moreover, Thurman does not allege any facts that would support a conclusion that either defendant's conduct represented deliberate indifference to his health or safety. Specific reasons related to prison policy were provided as the basis for the conclusion that he was not yet eligible for a transfer. Without more, Thurman's disagreement with their conclusions is not sufficient to support his claim. And as the reasons for Bickel's subsequent approval of Thurman's transfer are not known, Bickel's approval cannot be relied upon to show that Zaken or Buzas knew that Thurman faced a substantial risk of serious harm and disregarded that risk.
Thurman alleges in his Complaint that he is at “high risk” for COVID but his test for COVID was negative and he was told that he was not being transferred to another prison due to the spread of COVID (ECF No. 10-14). See ECF No. 10, Statement of Facts ¶ 18. He also states in his Memorandum in Support for Extraordinary Relief that he is in the “high risk category for contracting COVID due to his age”, and that this risk is enhanced by issues with the way that “facility administration” is handing the spread of COVID. See ECF No. 11, p. 2. As Defendants note, these allegations could relate to a failure to protect claim under the Eighth Amendment. However, even if the allegations in the Complaint could be read to suggest that Thurman faces a substantial risk of serious harm to his health due to COVID, Thurman fails to connect any alleged deliberate indifference to either of the defendants. No. factual basis is pleaded to support a claim that either Zaken or Buzas knew that he faced a substantial risk of serious harm to his health or safety and disregarded that risk by failing to take reasonable measures to abate it. Thus, Thurman has not pleaded the requisite factual basis for a claim that either of these defendants acted with deliberate indifference to Thurman's health or safety.
Because the Complaint fails to state an Eighth Amendment claim against either Zaken or Buzas, Defendants' motion to dismiss this claim should be granted. However, because the Court cannot conclude that amendment would be futile regarding Thurman's failure to protect claim as it relates to COVID, dismissal should be without prejudice regarding this claim with leave to amend.
3. Fourteenth Amendment Claim
A Fourteenth Amendment due process claim must include the following elements: (1) the plaintiff was deprived of a protected liberty or property interest; (2) this deprivation was without due process; (3) the defendant subjected him to this deprivation; (4) the defendant was acting under color of state law; and (5) the plaintiff suffered injury as a result. Goodwine v. Keller, 2012 WL 4482793 at *9 (W.D. Pa. 2012) (citing Sample v. Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989)). “The due process analysis starts with determining whether the liberty interest asserted is one that is protected by the Fourteenth Amendment.” See Montanez v. Sec'y Dep't of Corr., 2014 WL 5155040, at *6, 773 F.3d 472, 482-83 (3d Cir. Aug. 15, 2014). “If it is a protected interest, we must then determine what process is necessary to protect it. If the interest is not protected, no process is necessary.” Stephens v. Canino, 71 F.Supp.3d 510, 513 (E.D. Pa. 2014) (citations omitted).
The Court of Appeals has explained that:
A prisoner may be deprived of a liberty interest in violation of the Constitution in two ways: (1) when severe changes in conditions of confinement amount to a grievous loss that should not be imposed without the opportunity for notice and an adequate hearing, [Vitek v. Jones, 445 U.S. 480, 488 (1980)] and (2) when state statutes and regulations create a liberty interest in freedom from restraint that imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life[, ]” thereby triggering due process protection, Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); see also Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The first is the so-called independent due process liberty interest, while the latter is the so-called state-created liberty interest.Renchenski v. Williams, 622 F.3d 315, 325 (3d Cir. 2010); Stephens v. Canino, 71 F.Supp.3d 510, 514-16 (E.D. Pa. 2014).
Thus, in determining whether Thurman's due process rights have been violated, the Court must first consider whether he has adequately pleaded a denial of a liberty interest. Only if he makes such a showing is it necessary for the Court to evaluate “whether the procedures attendant upon that deprivation were constitutionally sufficient.” Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989). Thurman claims that because he has been unfairly denied a transfer, he has been denied due process. Under a liberal construction of the Complaint, he may also be claiming that the failure to transfer him after Bickel's approval of his request represents a due process violation. Neither assertion can support a plausible procedural due process claim, however. Plaintiff does not have an independent due process liberty interest in placement in any particular prison during the term of imprisonment imposed. See Olim, 461 U.S. at 245-46; Meachum v. Fano, 427 U.S. 215, 224 (1976). Nor does he have a state-created liberty interest to a transfer, because the failure to transfer him from one prison to another prison located closer to his family does not amount to an atypical and significant hardship in relation to the ordinary incidents of prison life. See Sandin, 515 U.S. at 484; see, e.g., Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 225 (3d Cir. 2015) (“custodial personnel do not infringe an inmate's liberty interests by placing her in one custodial facility rather than another…Although the NJDOC does have policies regarding custodial placements, these policies and the Due Process Clause do not give an inmate a liberty interest in being housed in a particular institution or at a particular custody level.”); Thompson v. Pitkins, 514 Fed.Appx. 88, 89 (3d Cir. 2013) (affirming district court's decision to dismiss without leave to amend of plaintiff's procedural due process claim predicated on his assertion that defendants violated his due process rights by denying him the opportunity to receive an IBT); Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir. 2002) (“Although inmates who are transferred to the STGMU face additional restrictions, we hold that the transfer to the STGMU does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life.”).
The Court also notes that Plaintiff does not allege that either Zaken or Buzas had any personal involvement in this conduct or directed that his transfer be stalled. In November of 2020, after Bickel's approval of his transfer in October 2020, Thurman filed a grievance because he had not been transferred (ECF No. 10-14). He states in this grievance that he was told that “due to spikes in COVID [his] transfer was on hold.” He alleges that Gerber was assigned to his grievance but has not communicated with him about it. Neither Zaken nor Buzas are alleged to have received, known about, or responded to this grievance. At any rate, involvement in the grievance process is not a basis for § 1983 liability. See Alexander v. Gennarini, 144 Fed.Appx. 924, 925 (3d Cir. 2005). “[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner.” Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001). “Consequently, dissatisfaction with a response to an inmate's grievances does not support a constitutional claim.” Rosa-Diaz v. Harry, No. 1:16-CV-2303, 2017 WL 1316946, at *6 (M.D. Pa. Feb. 2, 2017), report and recommendation adopted, No. 1:16-CV-2303, 2017 WL 1283771 (M.D. Pa. Apr. 6, 2017). Thus, Thurman has not pleaded any factual basis for a claim that his procedural due process rights were violated by Zaken or Buzas and the Court could dismiss the claims against them for that reason. However, for the reasons discussed above, it is recommended that the Court dismiss Plaintiff's procedural due process claim against all defendants with prejudice because Plaintiff had no liberty interest in a transfer to another prison.
Based upon the foregoing, Plaintiff has not stated a plausible procedural due process claim. Because he has no protected interested in receiving an IBT or being housed in any particular prison, it is recommended that Defendant's motion to dismiss be granted and that the procedural due process claim be dismissed with prejudice.
E. Leave to Amend
When dismissing a civil rights case for failure to state a claim, a court must give a plaintiff a chance to amend a defective complaint, irrespective if it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp.v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). “An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” Alston v. Suzuki, 227 F.2d 107, 121 (3d Cir. 2000). Under the circumstances presented here, Thurman may, if he chooses to do so, file an amended complaint to attempt to cure the pleading deficiencies in his Complaint. Alternatively, Plaintiff may choose to proceed with the Complaint as it stands with respect to the “John/Jane Doe” defendants.
F. Conclusion
For reasons stated herein, it is respectfully recommended that the Court grant Defendants' Motion to Dismiss (ECF No. 24). Specifically, it is recommended that:
1. Plaintiff's Fourteenth Amendment claim should be dismissed with prejudice;
2. Plaintiff's Eighth Amendment claim should be dismissed without prejudice to the extent that it is based on allegations related to COVID, and otherwise dismissed with prejudice; and
3. Plaintiff's First Amendment retaliation claim should be dismissed without prejudice.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of their appellate rights. The failure to file timely objections will constitute a waiver of the right of appeal.