Opinion
1:20-cv-0208
10-19-2021
SHAWN L. WILLIAMS, Plaintiff v. ROBIN NYBERG, WAGNER, HARMON, PAUL ENNIS, LAURA GILES, ROSCINSKI, ERIC EGAN, MICHAELC. CLARK, BRIAN FLINCHBAUGH, MICHELLE THARP, LT. T. ANDERSON, PRINCIPAL CINDY CLARK, RALPH A. DECECCO, SARA EDDY, LT. SKINNER, CAPT. D. HEIBNER, CAPT. SISSEM, CAPT. IRWIN, UNIT MANAGER KURT SEUSSER, VALARIE KUSIAK, LIEUTENANT J.W. FAIT, MAJOR PATRICIA THOMPSON, MAJOR CHRISTOPHER M. MEURE, ERIN BROWN, LT. S. BARNER, ASHLEY WEBER, J.S. JOHNSON, JOHNE. WETZEL, TREVOR WINGARD, JAMES C. BARNACLE, TABB BICKELL, RICH KUSTENBAUDER, CRAIG MCEWEN, and BARRY SMITH, Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) ECF NO. 60
HON. RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
This case has been referred to the undersigned for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. 636, and Local Civil Rule 72. It is respectfully recommended that Defendants' Motion to Dismiss [ECF No. 60] Plaintiff's Second Amended Complaint [ECF No. 72] be GRANTED. It is further recommended that Plaintiff be granted leave to file a third amended complaint as to certain claims, the deficiencies of which may be subject to cure as detailed in the following Report.
An explanation of the nonconsecutive docket entry numbers in this case is necessary. The Defendants had originally filed a Motion to Dismiss Williams' First Amended Complaint. See ECF No. 61. The Court gave Williams an opportunity to file a Second Amendment Complaint and denied the Defendants' motion as moot, given the impending filing of a Second Amended Complaint. ECF No. 70; see also Tucker Indus. Liquid Coatings, Inc v. Borough of E. Berlin, 2012 WL 12884645, at *2 (M.D. Pa. July 27, 2012). Upon the filing of Williams' Second Amended Complaint, the Defendants notified the Court of their desire to stand on their previously-filed Motion to Dismiss (ECF No. 61) and Brief in Support (ECF No. 62). See ECF No. 71. The Plaintiff likewise indicated that he would stand on his prior Brief in Opposition (ECF No. 74). As a result of the foregoing, the docket entries for the pending motion and the response in opposition precede the docket entry number for the Second Amended Complaint. See ECF No. 75.
II. Background
The case is currently proceeding on Williams' Second Amended Complaint and concerns events that took place while he was incarcerated at the State Correctional Institution at Albion (“SCI-Albion”). See ECF No. 72. Williams, acting pro se, has filed a 102-paragraph Second Amended Complaint against thirty-four employees of the Pennsylvania Department of Corrections, each of whom he has sued in his or her official and individual capacities. Id. p. 2. Williams' Amended Complaint is not organized into counts or causes of action but, instead, presents as a chronological narrative spanning events between July 20, 2018 and January 14, 2019. Because Williams is representing himself, it is the Court's obligation to identify any claims that the factual allegations of the Second Amended Complaint plausibly support, regardless of whether Williams has correctly identified them. Haines v. Kerner, 404 U.S. 519, 520-521 (1972); Boag v. MacDougall, 454 U.S. 364, 365 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969). This liberal approach to pro se complaints applies to Williams' factual allegations, which the Court accepts as true for purposes of the Defendants' motion to dismiss. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). It does not extend, however, to conclusions of law or factually unsupported characterizations and inferences, which the Court should disregard in deciding a motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). Once the conclusions of law and factually unsupported characterizations and inferences are stripped from Williams' Amended Complaint, the factual allegations that remain are insufficient to support a viable claim under any theory of liability. Accordingly, Defendants' motion should be granted, and the claims against all Defendants should be dismissed, albeit with Williams being granted one final opportunity to amend as to certain claims.
Williams has since been transferred to another correctional institution. ECF No. 72, p. 3.
III. The Second Amended Complaint
Although the “Statement of Claims” section of Williams' Second Amended Complaint purports to be a chronological recitation of facts, it is laden with conclusions of law and proposed inferences that are unsupported by facts. See ECF No. 72, pp. 2-23. It also repeatedly makes allegations against all or large groups of Defendants without identifying the conduct of specific individuals. Id. As the initial factual foundation for his claims, Williams alleges that, “[b]y July 20, 2018, ” he filed grievances against five of the Defendants, “Nyberg, Giles, M. Clark, Roscinski, and Kusiak regarding [his] law library access/privileges, and attacks on [his] work assignment as a Chapel Janitor.” Id., ¶ 1. Immediately following this allegation, Williams launches into conclusory assertions of a sweeping conspiracy involving all or substantially all Defendants. For example, Williams next paragraph states, “Plaintiff discerned a conspriratorial (sic) plot to enable Giles and Roscinski to terminate plaintiff from his Chapel Janitor work assignment because of his filings of DC-ADM 804 grievances, which was acquiesced by M. Clark, Ennis, Flinchbaugh, Kusiak, and Roscinski, with the understanding that plaintiff was marked as a target of retaliation for filing grievances and lawsuits against SCI Albion staff ...” Id., ¶ 2. Williams next references an incident on July 25, 2018, when “defendant Nyberg disrespectfully tossed plaintiff's call-out pass at him in a resentful manner., ” prompting Williams to file grievance 79448. Id., ¶ 3. Williams then attributes this facially unrelated incident to his grand conspiracy theory, alleging that, “On July 31, 2018, defendant Grievance Coordinator Tharp conspiratorially rejected grievance 74998 against Nyberg in a complicit act, intended to thwart plaintiff's complaint against Nyberg and deny plaintiff administrative remedy in retaliation..” Id., ¶ 4. Williams' next allegation is an assertion of “interference and intimidation” against him, which is likewise conclusory and devoid of factual support:
Williams' reference to having filed grievances “by” July 20, 2018 means that he filed the grievances on or before that date, but the Amended Complaint does not state a date when Williams filed any of the grievances. Therefore, it is impossible to determine the timing of the grievances relative to any conduct by any Defendant alleged later in the Amended Complaint.
On August 6, 2018, defendants M. Clark and T. Anderson used interference and intimidation against plaintiff in concert with defendant Nyberg because of plaintiff's grievance against Nyberg. Both defendants used their authority to threaten and intimidate plaintiff into withdrawing his grievance claims against Nyberg, while acquiescing Nyberg's open display of resentment towards plaintiff, and intentionally destroying/failing to preserved the relevant video evidence [of Nyberg's disrespectful conduct on July 25, 2018] in violation of the First and Fourteenth Amendments to the United States Constitution.Id., ¶ 5.
This allegation is followed by Williams complaining about an incident “when defendant Roscinski confronted plaintiff and demanded plaintiff change his wall clock batteries, while using the opportunity to debase plaintiff and deny Supervisory defendant Dececco's request for plaintiff's pay rate promotion, and advising plaintiff that he ‘needed to start kissing up instead of filing grievances and complaining.'” Id., ¶ 6. Next, Williams references an ostensibly unrelated encounter some weeks later “when plaintiff was also reminded of the threast (sic) to ‘lay off Nyberg' by Wagner, and that Giles, Roscinski, T. Anderson, M. Clark, and C. Clark also did not want plaintiff working anywhere near Nyberg or the Education/Program Services building.” Id., ¶ 7. In the next two paragraphs of the Second Amended Complaint, Williams complains that Nyberg did not respond to a request he made on September 4, 2018, for law library access until a week later, when Nyberg explained that her failure to accommodate the request was due to “an institutional lockdown.” Id., ¶¶ 8-9. Williams characterizes Nyberg's actions and response as “retaliation with the intent to deny plaintiff's access to courts” and as “an attempt to antagonize plaintiff, frustrate and impede plaintiffs access to the court in violation of the First Amendment....” Id.
The Second Amended Complaint continues in similar fashion for the next ninety paragraphs. What the Court can discern factually from the Second Amended Complaint is that Williams is a prolific filer of grievances-certain of the Defendants expressed frustration to Williams concerning his practice of filing grievances in response to every action taken by prison personnel with which he disagreed and every perceived slight by a staff member. See e.g., id., ¶¶ 2, 6, 19. Indeed, the Second Amended Complaint reveals a clear pattern of Williams characterizing almost every such action or slight as an act of retaliation for a grievance or grievances that he previously submitted, typically against or involving unrelated prison personnel, all of whom Williams purports to link together under his grand conspiracy theory.
Nevertheless, construing Williams' pro se pleading liberally, some claims become readily apparent: (1) a First Amendment retaliation claim; (2) a First Amendment free speech claim; (3) an Eighth Amendment deliberate indifference claim; (4) a conspiracy claim under state and federal law; and (5) a claim that some Defendants failed to prevent a conspiracy. Each claim will be analyzed in turn.
IV. Standards of Decision 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 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).
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.
Finally, because Williams is representing himself, the allegations in the Second Amended 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, 454 U.S. at 365; United States ex rel. Montgomery v. Bierley, 141 F.2d at 555.
V. Discussion and Analysis
A. The Claims Asserted Against the Defendants In Their Official Capacities Should Be Dismissed.
Williams has sued each Defendant in both his or her official and individual capacities. The Defendants argue that his official capacity claims against them must be dismissed because the DOC and its employees are protected by sovereign immunity under the Eleventh Amendment. The Defendants are correct in that they have immunity for official capacity claims seeking monetary damages. The Eleventh Amendment proscribes actions for money damages in the federal courts against states, their agencies, and state officials acting in their official capacities. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). The DOC, as an agency of the Commonwealth of Pennsylvania, and its agents and employees are entitled to Eleventh Amendment immunity for money damages. See Brown v. Smith, 2019 WL 2411749 (W.D. Pa. June 7, 2019). Because all Defendants in this action are DOC employees who were acting within the scope of their employment, Williams' claims for monetary relief against them in their official capacities should be dismissed with prejudice.
However, Williams' Amended Complaint also includes a demand for injunctive relief. The Eleventh Amendment does not provide immunity for claims for injunctive or declaratory relief. Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985). “In an injunctive or declaratory action grounded on federal law, the State's immunity can be overcome by naming state officials as defendants.” Id. (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ex parte Young, 209 U.S. 123 (1908)). Thus, Eleventh Amendment immunity does not provide a basis to dismiss Williams' official capacity claim for injunctive relief. As explained below, however, these claims fail as a matter of law for other reasons.
B. Williams Fails to Plead Facts to Support His Conspiracy and Failure to Prevent Conspiracy Claims Against Any Defendant.
Williams asserts that all or most of the thirty-four Defendants conspired to retaliate against him, presumably for his filing of grievances and lawsuits. The facts alleged in the Second Amended Complaint do not support this claim against any Defendant.
To survive a Rule 12(b)(6) motion to dismiss, allegations of conspiracy must provide “some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.” Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 184 (3d Cir. 2009). In order to demonstrate a conspiracy, “a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right ‘under color of state law.'” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)). See also, Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 415 (3d Cir. 2003) (“There are four elements to the tort of civil conspiracy: (1) a combination of two or more persons; (2) a real agreement or confederation with a common design; (3) the existence of an unlawful purpose, or of a lawful purpose to be achieved by unlawful means; and (4) proof of special damages.”). Thus, Williams must allege, among other things, “‘enough factual matter (taken as true) to suggest that an agreement was made,' in other words, ‘plausible grounds to infer an agreement.'” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556). The facts alleged must also support a plausible inference of “an illegal object to the alleged conspiracy.” DiBenedetto v. City of Reading, 1998 WL 474145, at *15 (E.D. Pa. July 16, 1998).
The Second Amended Complaint in this case supports neither essential element of the claim. Instead, Williams alleges that dozens of prison personnel engaged in a litany of distinct actions that he attempts to link together by characterizing them as part of a “conspiracy.” Williams' labeling of these frequently unrelated actions as “conspiratorial, ” pursuant to an “agreement, ” and “retaliatory, ” does not support a conspiracy claim. See Ulrich v. Corbett, 614 Fed.Appx. 572, 574-75 (3d Cir. 2015) (upholding dismissal of a section 1983 complaint alleging conspiracy because “a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.”) (citing Twombly, 550 U.S. at 557). Indeed, the disassociated nature of the actions taken by the multitude of prison officials concerning which Williams complains belies a finding of conspiracy. Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008) (a conspiracy requires a meeting of the minds).
The Court should also dismiss Williams' failure to prevent a conspiracy claim under 42 U.S.C. §§ 1985(3) and 1986. Section 1985(3) permits a plaintiff to bring a claim that two or more people have acted together to deprive him or her of their civil rights. A plaintiff must show: “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (citing United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983)). Section 1986 “is a companion to Section 1985(3) and provides a claimant with a cause of action against any person who, knowing that a violation of § 1985 is about to be committed and possessing power to prevent its occurrence, fails to take action to frustrate its execution.” Id., at 137. Here, not only has Williams failed to allege a conspiracy, the Second Amended Complaint lacks any allegation of racial or class-based animus. See, e.g., Wilson v. New Jersey Div. Child Protection and Permanency, 2016 WL 316800, at *8 (D.N.J. Jan. 25, 2016). Thus, Williams' claims under these provisions are legally deficient and should be dismissed.
For the foregoing reasons, Williams' conspiracy and related claims should be dismissed with prejudice as to all Defendants.
C. Williams Fails to Plead Facts to Support His Retaliation Claim Against Any Defendant.
The Second Amended Complaint alleges that several of the Defendants retaliated against Williams for his use of the grievance system and for the filing of a lawsuit. The most specific allegations are that on October 5, 2018, Defendant Sissem “removed plaintiff from his Chapel Janitor work assignment, ” and Defendants “Ennis, Kusiak, Giles, Egan, Dececco, Seusser, and Eddy” terminated him from his janitorial job at SCI-Albion “as retaliation for plaintiff's exercise of filing grievances and lawsuits, all in violation of plaintiff's First Amendment Rights.” ECF No. 72, ¶¶ 23, 66.
Allegations such as these that generally allege conduct against large groups of defendants are improper. See, e. g., Caristo v. Blairsville-Saltsburg School District, 370 F.Supp.3d 554, 569 n.21 (W.D. Pa. 2019); Dillard v. Morris Cty. Prosecutor's Office, 2020 WL 4932527, at *3 (D.N.J. Aug. 24, 2020) (citing Estate of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005). “Mere ‘conclusory allegations against defendants as a group' which ‘fail to allege the personal involvement of any defendant' are insufficient to survive a motion to dismiss.” Bass v. Howard, 2020 WL 1332007, at *4 (D.N.J. Mar. 23, 2020) (quoting Galicki v. N.J., 2015 WL 3970297, at *2 (D.N.J. June 29, 2015)). In other words, a complaint that “fails to separate out the liability for each defendant” will be dismissed. Sheeran v. Blyth Shipholding S.A., 2015 WL 9048979, at *3 (D.N.J. Dec. 16, 2015); see also Krebs v. New Kensington-Arnold Sch. Dist., 2016 WL 6820402, at *8 (W.D. Pa. Nov. 16, 2016).
Government action taken in retaliation for the exercise of a constitutionally protected right may violate the protections of the First Amendment and support liability under § 1983. Rauser v. Horn, 241 F.3d 330 (3d Cir.2001); White v. Napoleon, 897 F.2d 103, 112 (3d Cir.1990). “Because retaliation claims can be easily fabricated, district courts must view prisoners' retaliation claims with sufficient skepticism to avoid becoming entangled in every disciplinary action taken against a prisoner.” Id. (citing Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995), cert. denied, 516 U.S. 1084 (1996); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Merely labeling actions as “retaliatory” is insufficient. A plaintiff asserting a retaliation claim must demonstrate 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) “a causal link” exists “between the exercise of his constitutional rights and the adverse action taken against him.” See Rauser v. Horn, 241 F.3d at 333.
Williams' Second Amended Complaint illustrates the risk that arises from prisoner lawsuits that casually and indiscriminately characterize routine decisions within the prison as acts of retaliation. For example, the Second Amended Complaint alleges facts regarding efforts to work out conflicts and concerns regarding Williams' work assignment, including Nyberg's apparent discomfort dealing with Williams in her capacity as law librarian. See e.g., ECF No. 72, ¶ 42 (Irwin suggested that “ an alternate work assignment would be appropriate to avoid future problems, ” but Dececco preferred to maintain Williams as Chapel Janitor with modified “work details” “to avoid trouble as when Nyberg demanded that plaintiff stop delivering chemical spray bottles to the library.”). In characterizing this exchange as retaliatory and conspiratorial, Williams invites the Court to inject itself into precisely the type of routine daily administrative decisions that the law recognizes as within the sound discretion of prison officials. See, e.g., Doe v. Pennsylvania Dep't of Corr., 2021 WL 1583556, at *19 (W.D. Pa. Feb. 19, 2021), report and recommendation adopted, 2021 WL 1115373 (W.D. Pa. Mar. 24, 2021).
Williams has sufficiently pleaded the first two elements of a retaliation claim. As to the first element, it is beyond dispute that “[t]he filing of grievances is protected under the First Amendment.” Kelly v. York County Prison, 340 Fed.Appx. 59, 61 (3d Cir. 2009) (per curiam). And “[w]ith respect to the second element, the termination of prison employment constitutes adverse action sufficient to deter the exercise of First Amendment rights, satisfying the second element of a retaliation claim at this stage of the litigation.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). As noted above, Williams pleads that on October 5, 2018, he was removed from his prison job “in violation of his First Amendment rights.” ECF No. 72, ¶ 23. Williams additionally pleads that his transfer to SCI-Houtzdale was an adverse action because it was not “near plaintiff's home region.” Id., p. 24, ¶ 2. This allegation likewise pleads an “adverse action.” The Court of Appeals for the Third Circuit has held that a transfer “to a distant prison where [an inmate's] family could not visit him regularly, ” and financial penalties could satisfy the adverse consequences requirement to set forth a retaliation claim. Rauser, 241 F.3d 330.
But Williams' retaliation claim unravels at the third consideration: causation. The causation element of the retaliation claim is established only if the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997). To support this last element, “a plaintiff must come forward with more than ‘general attacks' upon the defendant's motivations....” Miskovitch v. Hostoffer, 721 F.Supp.2d 389, 396 (W.D. Pa. 2010) (citing Crawford-Elv. Britton, 523 U.S. 574, 600 (1998)). Put another way, Williams' Second Amended Complaint must show that the filing of grievances or a lawsuit was a substantial motivating factor in Sissem's decision to terminate his employment. See Kloss v. Correct Care Solutions, 2018 WL 6268270, at *8 (W.D. Pa. Oct. 31, 2018).
Williams has not pleaded facts to support a plausible inference that his filing of grievances or a lawsuit was a substantial motivating factor in Sissem's termination of his employment. He also does not identify any specific grievances he filed against Sissem which led to the job termination. See Palmore v. Hornberger, 813 Fed.Appx. 68, 70-71 (3d Cir. 2020) (retaliation claim stated where plaintiff alleged that he was placed in lockdown when defendant learned he intended to file a grievance against him). Williams has also failed to allege any connection between Sissem and the Defendants against whom Williams filed grievances or lawsuits. For example, he does not plead that Sissem knew or was otherwise aware that Williams filed grievances against Nyberg or any other Defendant. See, e.g., Kloss, 2018 WL 626270, at *8. Instead, Williams makes conclusory allegations that Sissem was acting “in accordance with” the conspiratorial agenda of several other Defendants. See ECF No. 72, ¶ 23. Because Williams has not alleged facts to support a causal connection between the filing of grievances or a lawsuit and Sissem's actions, the retaliation claim against that Defendant should be dismissed.
Additionally, the retaliation claim against Defendants Nyberg, Giles, Roscinski, Wagner, Harmon, Michael Clark, Anderson, Kusiak, and Cindy Clark should be dismissed because Williams has not plausibly alleged their personal involvement. See, e.g., ECF No. 61, p. 4. It is well established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie the claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs.... [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Williams fails to allege any personal involvement whatsoever by these Defendants. The Second Amended Complaint does not allege facts to support that any of these Defendants engaged in retaliatory conduct against Williams in response to his filing of grievances or lawsuits. See, e.g., Colon v. Anglikowski, 2020 WL 5107551, at *2 (W.D. Pa. Aug. 31, 2020). Conclusory allegations of retaliation against groups of defendants do not establish the personal involvement of any defendant. See, e.g., Glaesener v. City of Jersey City, 2021 WL 4206297, *3 (D.N.J. Sept. 15, 2021). Accordingly, the Second Amended Complaint fails to state a retaliation claim against Defendants Nyberg, Giles, Roscinski, Wagner, Harmon, Michael C. Clark, Anderson, Kusiak, and Cindy Clark.
Finally, Williams alleges:
[P]laintiff was denied due process under 37 Pa. Code § 93.9 and 27 Pa. Code § 93.10 and Article I, § 26 of the Pennsylvania Constitution when Defendants Ennis, Kusiak, Giles, Egan, Dececco, Seusser, and Eddy terminated plaintiff from his prison job and placed plaintiff in restrictive-administrative confinement as punishment for plaintiff's constitutionally protected conduct of filing grievances in good faith, in violation of the First Amendment to the United States Constitution.ECF No. 72, ¶ 71. Although couched in the language of retaliation, the Court should construe this as a procedural due process claim brought under state law and dismiss it. Pennsylvania prisoners have no “state created liberty or property interest in work or educational program.” Fauntleroy v. Clark, 2020 WL 5351063, at *4 (W.D. Pa. July 30, 2020), report and recommendation adopted, 2020 WL 5350532 (W.D. Pa. Sept. 4, 2020) (citing Clark v. Cambria County Prison, 2012 WL 6651880, at *7 (W.D. Pa. Nov. 15, 2012) (collecting cases)). Thus, Williams' procedural due process claim is foreclosed.
Given the foregoing, it is recommended that Williams' retaliation and procedural due process claims be dismissed.
D. Any Purported Claims Against Defendants Brown, Weber, McEwen, Bickell, Tharp, Johnson, Wetzel, Wingard, Barnacle, Kustenbauder, Skinner, Eddy, Smith, Meure, Thompson, Heibner, Seusser, Flinchbaugh, Egan, and Fait Should Be Dismissed Because the Second Amended Complaint Fails to Allege Facts to Support the Personal Involvement of Any of These Defendants in Actionable Conduct.
The Second Amended Complaint includes no allegations of actionable conduct against twenty Defendants: Brown, Weber, McEwen, Bickell, Tharp, Johnson, Wetzel, Wingard, Barnacle, Kustenbauder, Skinner, Eddy, Smith, Meure, Thompson, Heibner, Seusser, Flinchbaugh, Egan, and Fait. Under Section 1983, individual liability may be imposed only if the state actor played an “affirmative part” in the alleged misconduct. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Liability “cannot be predicated solely on the operation of respondeat superior.” See id. In other words, defendants “must have personal involvement in the alleged wrongs . . . shown through allegations of personal direction or of actual knowledge and acquiescence.” See Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003). Williams alleges no facts that support the personal involvement of these Defendants.
To the extent Williams premises his claim on his conversations with certain or all of these Defendants, it fails. Williams alleges that he spoke with Defendants Ennis, Flinchbaugh, Egan, and Meure “regarding the conspiracy to retaliate against plaintiff.” ECF No. 72, ¶ 24. He also alleges he “personally addressed” Defendant Skinner. Id., ¶ 32. But a conversation with another individual is far from the level of personal involvement necessary to state a constitutional claim. See, e.g., Palmer v. Watterson, 2021 WL 640637, at *5 (W.D. Pa. Jan. 29, 2021), report and recommendation adopted sub nom. Palmer v. Waterson, 2021 WL 633430 (W.D. Pa. Feb. 18, 2021) (citing Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (mere allegation that plaintiff spoke to defendants on various occasions does not show personal involvement in alleged misconduct)).
Similarly, any purported claim against Defendants McEwen, Brown and Weber should similarly be dismissed. Williams alleges that he was “reviewed by the SCI Albion Program Review Committee” and that Defendant Ennis informed him that the Defendants “were looking into transferring plaintiff to another facility but the ultimate decision would be made by the Office of Population Management (OPM).” ECF No. 72, ¶ 77. From this, Williams extrapolates that because they were OPM employees, “Defendants McEwen, Brown, and Weber participated in and approved the retaliatory scheme ... to transfer plaintiff as punishment for filing grievances.” Id. This is not a factual allegation that these Defendants participated in Williams' transfer or acted pursuant to a retaliatory motive. Rather, it is pure speculation and innuendo based solely on the employment of these Defendants with the OPM. Personal involvement must be shown through “allegations of personal direction or of actual knowledge or acquiescence” which “must be made with appropriate particularity.” Rode, 845 F.2d at 1208. Allegations of personal involvement cannot be based on such “naked conjecture.” Bartnicki v. Scranton School District, 2021 WL 267045, *5 (M.D. Pa. Apr. 1, 2021). Thus, these claims should be dismissed. The same is true for Williams' allegations against Defendants Bickell and Kustenbauder. See ECF No. 72, ¶ 91. Williams alleges that these Defendants “approved and authorized” his transfer and that this transfer was “retaliatory.” Id. Such conclusory allegations fail to allege the personal involvement of these Defendants. As to Defendant Heibner, all Williams alleges is that he approved Williams' placement in the restrictive housing unit and that Defendant Fait escorted Williams to that unit. Id., ¶ 72. Here again, notwithstanding Williams' bare assertion that Heibner and Fait acted “to perpetuate the campaign of retaliation, ” the Second Amended Complaint lacks factual allegations to infer their personal involvement in any actionable conduct. See, e.g., Pressley v. Miller, 2021 WL 4205268, at *3 (W.D. Pa. Sept. 16, 2021).
To the extent Williams' pleading could be read as alleging a claim against the OPM itself (see ECF No. 72, ¶ 91), that claim would fail as a matter of law. See Beckett v. Grant, 2019 WL 4857688, at *3 (M.D. Pa. October 2, 2019) (“DOC's Bureau of Health Care Services and Office of Population Management, are not amenable to suit under § 1983 because they share in the Commonwealth of Pennsylvania's Eleventh Amendment immunity and are not person's under § 1983.”). See also Robinson v. Bureau of Health Care Servs., 2021 WL 4306116, at *5 (M.D. Pa. Sept. 22, 2021).
The allegations against Defendants Eddy, Tharp, Johnson, Wetzel, Wingard, Barnacle, Meure, and Kustenbauder likewise fail to support their personal involvement in actionable conduct. The only allegations against these Defendants are that they either received or responded to correspondence or grievances from Williams. See, e.g., ECF No. 71, ¶¶ 4, 12, 13, 14, 15, 43, 44, 45, 55, 78, 80, 81, 100. For example, Williams alleges that Defendant Tharp rejected his grievances. Id. ¶¶ 4, 12, 13. Williams also alleges that he forwarded written correspondence to Defendants Wetzel Wingard, and Barnacle regarding his retaliation claim. Id., ¶¶ 30, 43. Defendant Johnson responded on behalf of Defendant Wetzel, explaining that the “central office” does not involve itself with grievance matters. Id., ¶ 45. Finally, Williams alleges that Defendants Wetzel and Johnson sent him a letter regarding his use (or over-use) of the grievance process. Id., ¶ 100. All of this correspondence relates directly to Williams' grievance proceedings. Therefore, these claims should be dismissed because “[n]either the filing of a grievance nor the participation in the after-the-fact review of a grievance are sufficient to show personal involvement.” Baez v. Froehlich, 2021 WL 4341191, at *10 (W.D. Pa. Sept. 23, 2021).
By way of summary, all claims Williams purports to bring against Defendants Brown, Weber, McEwen, Bickell, Tharp, Johnson, Heibner, Fait, Eddy, Smith, Meure, Thompson, Seusser, Flinchbaugh, and Egan should be dismissed for a lack of personal involvement.
E. The Claims Against Defendants Who Are Alleged Only to Have Participated in the Grievance/Complaint Review Process Should Be Dismissed with Prejudice.
Williams indiscriminately alleges “conspiracy” and “retaliation” claims against prison officials who reviewed, investigated, or decided his grievances, many of which the Second Amended Complaint reveals to be frivolous on their face. See e.g., ECF No. 72, ¶ 39 (“On November 7, 2018, Supervisory defendant Irwin entered into the conspiracy to conceal the retaliatory motive against plaintiff while interviewing plaintiff in the presence of Supervisory defendant Dececco regarding grievance #767190.”). Involvement in the grievance process to the extent Williams alleges does not constitute “personal involvement” for purposes of § 1983. Courts have routinely dismissed civil rights claims under § 1983 against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. Trainor v. Wellpath, 2021 WL 3913970, at *9 W.D. Pa. Sept. 1, 2021) (citations omitted).
F. Williams' Eighth Amendment Deliberate Indifference Claims Should Be Dismissed with Prejudice.
Throughout the Second Amended Complaint, Williams randomly uses the term “deliberate indifference” or indiscriminately references the Eighth Amendment. But his factual allegations fall well short of what Iqbal/Twombly require to state such claims. See, e.g., Massey v. Holman, 2019 WL 3997845, at *6 (W.D. Pa. July 23, 2019). Williams appears to assert Eighth Amendment violations against Defendants Wetzel, Wingard, Barnacle (ECF No. 72, ¶¶ 31, 43, 100), Defendant Nyberg (Id. ¶¶ 32, 33, 34), and Defendant Johnson (Id., ¶¶ 45, 100). But these claims are stated purely as legal conclusions and without any supporting factual averments or even a “threadbare assertion of the [applicable] elements.” Davis v. Pearson, --- Fed.Appx. ---, 2021 WL 3051879, at *3 (3d Cir. July 20, 2021) (quoting Iqbal, 556 U.S. at 678). For example, he pleads that Defendants Wetzel, Wingard and Barnacle “remained silent in conformity with the DOC's code of silence, with the understanding that plaintiff was administratively approved for retaliation, and designated for deliberate indifference.” ECF No. 72, ¶ 43. Williams contends that in responding to his grievance, Defendant Johnson demonstrated “his understanding and acquiescence that plaintiff was administratively approved for retaliation worthy of deliberate indifference.” Id., ¶ 45. These are not Eighth Amendment claims but instead are “legal conclusions styled as ... factual allegation[s].” Kingsmill v. Szewczak, 117 F.Supp.3d 657, 672 (E.D. Pa. 2015); see also Deemer v. City of Oil City, 2021 WL 4391275, at *6 (W.D. Pa. Sept. 24, 2021) (holding mere conclusory allegations insufficient to support a constitutional claim).
In addition to failing to allege facts to support an inference of deliberate indifference on the part of any of these Defendants, Williams' allegations also do not support the existence of conditions in the prison necessary to sustain an Eighth Amendment claim. A claim regarding prison conditions “does not rise to the level of an Eighth Amendment violation unless: (1) the prison official deprived the prisoner of the minimal civilized measure of life's necessities; and (2) the prison official acted with deliberate indifference in doing so, thereby exposing the inmate to a substantial risk of serious damage to her future health.” Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016) (citing Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 226 (3d Cir. 2015)). None of the conditions of Williams' confinement that he associates with Defendants Wetzel, Wingard, Barnacle, Nyberg, or Johnson involve any deprivation of the minimal civilized measure of life's necessities. Indeed, the Second Amended Complaint does not offer even a hint of a plausible Eighth Amendment claim against these Defendants. Therefore, the purported Eighth Amendment claims against these Defendants should be dismissed with prejudice.
A liberal reading of the Second Amended Complaint does reveal, however, a potential Eighth Amendment failure to protect claim against Defendant Skinner. Williams alleges that other inmates told him that Defendant Nyberg was promoting a rumor that Williams was “a snitch” and that Williams told Defendant Skinner about this on October 19, 2018. Id., ¶ 32. He alleges Skinner declined to take any action, stating “I'm not worried about it because nothing has happened yet.” Id., ¶ 33. Williams contends this demonstrated Defendant Skinner's deliberate indifference in violation of the Eighth Amendment. Id.
The Court recognizes that “[b]eing labeled a ‘snitch' or a ‘rat' can be a dangerous designation in prison.” Jackson v. O'Brien, 2021 WL 3174687, at *4 (W.D. Pa. July 27, 2021) (citing Easley v. Tritt, 2021 WL 978815, at *13 (M.D. Pa. Mar. 16, 2021)); see also Moore v. Mann, 823 Fed.Appx. 92, 96 (3d Cir. 2020) (recognizing that “other circuits have held that prison officials' failure to protect an inmate labeled a ‘snitch' constitutes deliberate indifference”). Nevertheless, Williams' claim fails because he does not allege facts to support that the statements other inmates attributed to Nyberg created an actual or substantial risk of harm to Williams or plausibly placed him in fear of such harm. See Jackson, 2021 WL 3174687, at *5 (citing Tabb v. Hannah, 2021 WL 3113856, at *6 (M.D. Pa. July 30, 2012)). Indeed, deliberate indifference requires that a prison official know of and disregard an excessive risk to inmate health or safety. Id. (citing Farmer, 511 U.S. at 837). Thus, to the extent Williams attempts to allege a failure to protect claim against Defendant Skinner, the claim should be dismissed.
G. The Purported First Amendment Access to Courts Claims Should Be Dismissed.
Williams also asserts a First Amendment “access to courts” claim against Defendants Nyberg, Giles, Michael C. Clark, Roscinski, and Kusiak. See ECF No. 72, ¶¶ 1, 8, 9, 46, and 47. The allegations associated with this claim focus almost exclusively on Nyberg. The access to courts claim against the other Defendants is limited to a conclusory allegation in a lone paragraph of the Second Amended Complaint. See ECF No. 72, ¶ 1. To allege an access to courts claim, a prisoner must show that the denial of access caused an actual injury. Jackson v. Whalen, 568 Fed.Appx. 85, 87 (3d Cir. 2014) (quoting Lewis v. Casey, 518 U.S. 343, 350 (1996)). An actual injury occurs when a prisoner demonstrates that a “nonfrivolous” and “arguable” claim was lost because of the denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 415 (2002). Alleging that a prison's law library or legal assistance program is subpar in some theoretical sense is insufficient to state an actual injury. Lewis, 518 U.S. at 351.
The gist of Williams' access to courts claim is that Nyberg denied him law library time, copying services, and the notarization of another inmate's affidavit. He makes no specific claims against any of the other Defendants. By way of injury, he claims that Nyberg's refusal to accommodate a request for library time on September 4, 2018 was her attempt to “antagonize ... frustrate and impede” his access to courts. ECF No. 72, ¶ 9. He does allege that he had a “Court Ordered deadline obligation, ” but he does not allege that he missed a particular filing date or that he lost a nonfrivolous or arguable claim as a consequence. Furthermore, Nyberg's failure to notarize a purported witnesses' affidavit did not injure Williams. The witness could simply have filed a signed declaration to the same effect. Indeed, the Federal Rules of Civil Procedure provide for the filing of an affidavit or declaration. See Federal Rule of Civil Procedure 56(c)(4); see also Newsome v. Teagarden, 2021 WL 1176102, *at 3 (W.D. Pa. Mar. 29, 2021) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)). Thus, Williams' access to court claims against these Defendants should be dismissed.
The Second Amended Complaint avers that “By July 20, 2018, plaintiff had filed DC-ADM grievances against Defendants Nyberg, Giles, M. Clark, Roscinski, and Kusiak regarding plaintiff's law library access/privileges, and attacks on plaintiff's work assignment as a Chapel Janitor.” ECF No. 72, ¶ 1. Because Williams conjoined the loss of his library privileges and the attacks on his work assignment, it is not clear whether he ascribed both of these actions to all Defendants. For purposes of this claim, however, the Court will assume that he intended to implicate Defendants Giles, Michael Clark, Roscinski, and Kusiak in the denial of library access.
VI. Conclusion
For the reasons set forth above, it is respectfully recommended that the Defendants' Motion to Dismiss the Second Amended Complaint be GRANTED.
VII. Further Amendment, With One Exception, Should Not Be Permitted.
It is also recommended that Williams be granted leave to amend only his First Amendment retaliation claim against Defendant Sissem for terminating his prison job because it is possible that he could allege additional facts to state such a claim. The remaining claims against all other Defendants should be dismissed with prejudice as any further attempt to amend would be futile and abusive. It is additionally recommended that Williams be cautioned that a Third Amended Complaint against Defendant Sissem that attempts to indiscriminately assert claims against DOC personnel could be considered as bad faith or a failure to prosecute and grounds for outright dismissal of that pleading with prejudice.
VIII. Notice to the Parties Regarding Objections
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 Plaintiff shall have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.