Opinion
Civil Action 21-1727 Re ECF 11
05-01-2023
CHRISTOPHER C. YELVERTON, Plaintiff, v. SECRETARY JOHN E. WETZEL; SUPERINTENDENT MICHAEL ZAKEN; DEPUTY STEPHAN BUZAS; DEPUTY DIALESANDRO; CHCA NICHOLSON; STEPHANIE WOODS; HEX B. RUDZIENSKI; CAPTAIN HINTEMEYER; CAPTAIN R. KENNEDY; LIEUTENANT HAYNES; LIEUTENANT JUAREZ; LIEUTENANT MARTUCCI; LIEUTENANT MCCONAHUE; LIEUTENANT MCCRACKEN; LIEUTENANT NAPOLEON; LIEUTENANT SCHAMP; MAJOR MALANOWSKI; UNIT MANAGER GUYTON; UNIT MANAGER WEEDON; DOCTOR R. SOLOMON; DOCTOR HAMMER; NURSE ASHLEY; NURSE T. TATE; NURSE V. NORVOWSKI; SERGEANT GAGNON; SERGEANT GOULD; SERGEANT HOOVER; SERGEANT IMHOFF; SERGEANT ZACHARIAS; COUNSELOR PERKINS; COUNSELOR SCHETKA; GRIEVANCE COORD. T; SHAWLEY; GRIEVANCE COORD. C. GREENAWALT; GRIEVANCE COORD. M. ANDRETTI; COMMISSARY SUPER. WINTERS; MAILROOM SUPERVISOR L. KOIS; OFFICER ADAMSON; OFFICER ANKROM; OFFICER T. M. DAVIS; OFFICER HUEY; OFFICER JOHNSON; OFFICER JONES; OFFICER C. LEWIS; OFFICER MILLIKEN; OFFICER TEAGARDEN; and OFFICER J. STABILE, Defendants.
Christopher C. Yelverton
Christopher C. Yelverton
W. Scott Hardy District Judge
RENEWED REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Plaintiff s claims against various Defendants should be dismissed, sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for which relief can be granted, as follows:
• Plaintiffs claims against Defendants Doctor Hammer, Grievance Coord. T. Shawley, Grievance Coord. C. Greenawalt, Grievance Coord. M. Andretti, Mailroom Supervisor L. Kois, Secretary John E. Wetzel, Officer Huey, and Doctor Solomon should be dismissed without prejudice to filing an amended complaint, if appropriate.
• Plaintiffs claims of threats by Defendants Superintendent Michael Zaken, ECF No. 11 ¶ 20, Lieutenant Martucci, id. ¶ 27, and Officer Johnson, Id. ¶ 32, should be dismissed without prejudice to filing an amended complaint, if appropriate.
• Plaintiffs claim against Sergeant Gagnon should be dismissed with prejudice.
• Plaintiffs claims regarding his lost property - which include his sole claim against Defendant Officer C. Lewis - should be dismissed without prejudice to refiling in state court under state law, if appropriate.
IL REPORT
A. Factual and Procedural Background
Plaintiff Christopher C. Yelverton (“Plaintiff') is a state prisoner currently confined at the State Correctional Institution at Huntingdon (“SCI-Huntingdon”) in Huntingdon, Pennsylvania. On November 26, 2021, this Court received Plaintiffs Complaint, without a filing fee or motion for leave to proceed in forma pauperis (“IFP”). ECF No. 1. In response to this Court's Deficiency Order, ECF No. 2, Plaintiff submitted an IFP motion, ECF No. 3. Plaintiff was granted leave to proceed IFP on May 10, 2022. ECF No. 10. The Complaint was formally filed on the same day. ECF No. 11.
Plaintiff brings this lawsuit pursuant to the Civil Rights Act of 1871. 42 U.S.C. § 1983 et seq. In his Complaint, Plaintiff sues 46 Defendants relating to sanctions and inadequate medical care allegedly imposed on Plaintiff due to his unwillingness to accept an influenza vaccine shot, as well as a perceived hunger strike. ECF No. 1 ¶¶ 1 and 7. Plaintiff vehemently denies throughout the Complaint that he engaged in a hunger strike at any point during the relevant events, and instead maintains that the alleged bad acts of Defendants were done in retaliation for engaging in protected activity. Id. ¶¶ 8, 28, 30, 33, 43, 49, and 55; but see id. ¶ 24 (“reciting that Plaintiffs blood sugar was dangerously low because Plaintiff was housed in the Psychological Observation Cell (“POC” in the Complaint) away from his “preferential food”) and ¶ 50 (complaining of suffering from dizziness, excessive weight loss of 50 pounds, and “possible internal damage” due to “consuming food and throwing it back up moments later”.).
By way of relief, Plaintiff seeks damages, attorneys fees and costs, a physical examination at a hospital that is not under a contract with the Pennsylvania Department of Corrections, and a transfer to another facility. Id. at 2.
On May 20, 2022, the undersigned issued a Report and Recommendation recommending that Plaintiffs claims be screened as set forth above. ECF No. 12. On June 17, 2022, Plaintiff filed a self-styled “Motion for Leave to Dismiss Without Prejudice on the Grounds of Protection Against Interference from Defendants,” in which he alleged that interference from prison staff at his former prison - SCI-Greene - had made it impossible for him to effectively litigate this case. ECF No. 14. Out of an abundance of caution, the undersigned terminated the Report and Recommendation of May 20, 2022, and stayed and administratively closed this case. ECF No. 17.
Since then, Plaintiff has been transferred from SCI-Greene to SCI-Huntingdon. ECF No. 21. Plaintiff now complains of interference by staff at SCI-Huntingdon, but has not moved to extend the stay past April 14, 2023. ECF Nos. 29 and 32. Plaintiff also asked this Court to provide relief from the alleged bad acts of staff at SCI-Greene and SCI-Huntingdon. ECF No. 29 at 2.
Accordingly, the undersigned lifted the stay and reopened this case on May 1, 2023. ECF No. 34. This Renewed Report and Recommendation - which substantially tracks the Report and Recommendation of May 20, 2022, ECF No. 12, - follows.
B. Legal Standard
28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v, Mozingo, No. 08-004,2009 WL 497572, at *6 (W.D. Pa. Feb. 26,2009) (Cercone, J.). Under that Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is “conceivable,” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The United States Court of Appeals for the Third Circuit has held that, when determining whether to dismiss a complaint for failing to state a claim upon which relief can be granted, a district court should apply a two-part test in order to determine whether a pleading's recitation of facts is sufficient. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). “First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” IT at 210-11 (citing Iqbal, 556 U.S. at 678). “Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a 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)). “‘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.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). That said, it is not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.” Assoc.'d Gen. Contractors of California, Inc, v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). A court further need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub, Employees' Ret. Sys, v. Chubb Corp., 394 F.3d 126, 143 and 157-58 (3d Cir. 2004).
Finally, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the 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. Legal Analysis
1. Personal involvement
In order for a claim to be cognizable under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. First, the alleged misconduct giving rise to the cause of action must have been committed by a person acting under color of state law; and second, the defendants' conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v, Taylor, 451 U.S. 527, 535 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330 - 331 (1986)).
Additionally, liability under Section 1983 attaches only when a plaintiff shows that a defendant was personally involved in the deprivation of his or her federal rights. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In cases involving a supervisory or reviewing defendant, personal involvement may be shown through “‘allegations of personal direction or of actual knowledge and acquiescence.'” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In situations where a supervising official knowingly permits a continuing custom or policy that results in harm to a plaintiff, Section 1983 liability may attach. See Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988) (overruled in part on other grounds, Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). At a minimum, liability in such a case is appropriate “only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate.” Colburn, 838 F.2d at 673 (quoting Chinchello v. Fenton, 805 F.2d 126, 133 (3dCir. 1986)).
Here, Plaintiff failed to make any allegations of fact with respect to Defendants Doctor Hammer, Grievance Coord. T. Shawley, Grievance Coord. C. Greenawalt, Grievance Coord. M. Andretti, or Mailroom Supervisor L. Kois. As such, these defendants should be dismissed.
With respect to Defendant Secretary John E. Wetzel, Plaintiff s sole allegation is that he “reached out” to him. This is insufficient to meet the standard for liability set forth above, as it does not show contemporaneous knowledge of any of the acts or omissions alleged in the Complaint.
Furthermore, to the extent that any claim against Grievance Coord. T. Shawley, Grievance Coord. C. Greenawalt, Grievance Coord. M. Andretti is based on their review of Plaintiff s administrative grievances, such claims must fail as a matter of law. See, e.g., Pittman v. Corbett, No. 14-231, 2014 WL 783498, at *3 (E.D. Pa. 2014) (“[T]o the extent plaintiffs claims are based on the defendant's denials of grievances and/or inadequacies in and dissatisfaction with the grievance process, he has not stated a constitutional claim.”); Robinson v. Prison Health Servs., Inc., No. 10-7165, 2014 WL 2452132, at *7 (E.D. Pa. 2014) (dismissing a plaintiffs due process claims because claims based on dissatisfaction with the grievance process fail as inmate does not have a constitutionally protected right to a grievance procedure); Robinson v. Varner, No. 126359, 2012 WL 6628108, at *1 (E.D. Pa. 2012) (“[P]laintiff cannot state a constitutional claim based on his dissatisfaction with the grievance process.”).
All this said, given the lack of factual allegations against these Defendants, it is not certain that leave to amend necessarily would be inequitable or futile. Therefore, Plaintiff should be allowed to submit an amended complaint with respect with respect to Defendants Doctor Hammer, Grievance Coord. T. Shawley, Grievance Coord. C. Greenawalt, Grievance Coord. M. Andretti, Mailroom Supervisor L. Kois, and Secretary John E. Wetzel, if appropriate.
2. Lost property claim
Plaintiff alleges that that Defendant Officer J. Stabile and several non-party corrections staff confiscated Plaintiffs property on May 5, 2021. ECF No. 44. Plaintiff further alleges that, on May 7, 2021, Defendant Officer C. Lewis and Defendant Sergeant Hoover returned about half of his property. Id. This is the sole allegation raised against Defendant Officer C. Lewis in the Complaint. Id.
Plaintiffs claim with respect to his lost property arises under the Due Process Clause of the Fourteenth Amendment. However, such a claim necessarily fails “if a meaningful post-deprivation remedy is available for the loss.” Hudson v. Farmer, 468 U.S. 517, 533 (1984). This applies to pre-trial detainees as well as convicted prisoners. See Shareef v. Moore, No. 18-1494, 2020 WL 1445878, at *3-4 (W.D. Pa. Mar. 25, 2020), aff'd, 844 Fed.Appx. 487 (3d Cir. 2021) (dismissing due process claims of pre-trial detainee for property confiscated by prison staff).
The Third Circuit has held that a prison's grievance procedure provides an adequate post-deprivation remedy. See, e.g., Tillman v. Lebanon County Corr. Fac., 221 F.3d 410, 422 (3d Cir. 2000). This is true even if Plaintiff ultimately is dissatisfied with the outcome of the grievance process. Iseley v. Hom, No. 96-5385,1996 WL 510090, at *6 (E.D. Pa. 1996). Further, it is well-recognized that an adequate post-deprivation remedy exists in Pennsylvania through a tort lawsuit in state court. Ray v. Rogers, No. 12-985, 2014 WL 1235905, at *3 (W.D. Pa. Mar. 25, 2014).
As such, Plaintiffs allegations related to his personal property are insufficient to state a federal claim upon which relief may be granted under Section 1983, and should be dismissed. Dismissal of this claim resolves all claims against Defendant Officer C. Lewis. Additionally, as it appears that Plaintiff cannot prevail, dismissal of his federal claim for lost property should be with prejudice. However, dismissal should be without prejudice to refiling in state court under state law, if appropriate.
3. Threats
Throughout the Complaint, Plaintiff alleges that various Defendants made threats to him.
This is not an exhaustive list of the alleged threats made against Plaintiff. However, these specific allegations are appropriate to resolve at the screening stage of this case.
• Defendant Superintendent Michael Zaken: “[Zaken] just threatened to have me pepper sprayed and cell extracted if I didn't agree to take a tray or allow medical to assess me. I told Zaken that I have a right to refuse either or both. He stomped away, uttering more threats.”) ECF No. 11 ¶ 20. While other allegations against Defendant Zaken exist in the Complaint, see id. ¶¶ 30 and 48, There is no indication in the Complaint that Defendant Zaken followed through on any of these threats.
• Defendant Lieutenant Martucci: “[Martucci] stated ‘deputy Buzas and CHCA Nicholson, will excessively charge your account, until you start acting like a good boy, and accept a few trays.'” Id. ¶ 27. This is Plaintiffs sole allegation with respect to Defendant Lieutenant Martucci.
• Defendant Officer Johnson: “Security Officer Johnson, came to my cell, and said, ‘ Since you want to sue us you fucking nigger, were [sic] going to give you a reason! '” Id. ¶ 32. Other allegations are made against Defendant Johnson in the Complaint, see Id. ¶¶ 9 and 10; however, there is nothing to indicate that he followed through on this particular threat.
It is unclear from the Complaint whether and to what extent Plaintiff bases any of his claims against these three Defendants on these particular alleged threats. However, to the extent that Plaintiff attempts to raise stand-alone claims based on those threats, his allegations do not state a claim for a constitutional violation. “[V]erbal threats or taunts, without more, are not sufficient to constitute a violation of the Eighth Amendment.” Dunbar v. Barone, 487 Fed.Appx. 721, 723 (3d Cir. 2012). This includes lewd verbal abuse. See Robinson v. Danberg, 729 F.Supp.2d 666,67879 and 686 (D. Del. 2010). See also Hawkins v. Brooks, 694 F.Supp.2d 434, 441 (W.D. Pa. 2010) (internal citations omitted) (“it is well-settled that the use of words, no matter how violent, is not actionable under 42 U.S.C. § 1983”). Because these allegations do not rise to the level of a constitutional violation, any stand-alone Eighth Amendment claim based thereon should be dismissed.
This resolves all allegations concerning Defendant Lieutenant Martucci. However, out of an abundance of caution, Plaintiff should be granted leave to amend these claims, if appropriate.
4. Unwanted sexual advances
Plaintiffs sole allegation against Defendant Officer Huey is that he subjected plaintiff to “unwanted sexual advances” during a medical assessment on March 29, 2021, when Plaintiff was nude. ECF No. 11 ¶ 37.
Sexual harassment by a corrections officer may constitute an Eighth Amendment claim if: (1) it is objectively severe or repetitive; and (2) the corrections officer has a sufficiently culpable state of mind. Danberg, 729 F.Supp.2d at 686 (citing Harris v. Zappan, No. 97-4957, 1999 WL 360203, at *4 (E.D. Pa. May 28,1999)). “However, a single isolated incident of sexual harassment that is not in and of itself severe, is not sufficiently serious to satisfy the objective component of an Eighth Amendment claim.” Danberg, 729 F.Supp.2d at 686 (citing cases, and holding that allegations that a guard “made sexual advances towards [plaintiff] and sexually harassed [plaintiff] by blowing kisses at him and telling plaintiff he wanted the two of them to engage in sexual acts did not state a claim under the Eighth Amendment.).
Here, Plaintiff alleges that he was subjected to “unwanted sexual advances” Defendant Officer Huey on a single date as part of a single discrete act. ECF No. 11 ¶ 37. Plaintiff does not allege that he was touched or injured in any way by this Defendant. Under either a verbal or sexual harassment analysis, these allegations fail to state a viable claim under Section 1983. Thus, Plaintiff's constitutional claims arising out of this occurrence should be dismissed. However, Plaintiff should be granted leave to amend this claim against Defendant Officer Huey to the extent that he can allege additional specific facts beyond the bare allegation of a single instance of “unwanted sexual advances.”
5. Defendant Doctor Solomon
Defendant's sole allegation against Defendant Doctor Solomon is that they discussed Plaintiffs “issues with consuming food and throwing it back up moments later. Along with constant dizziness, excessive 50 lbs lost weight, and possible internal damage. I informed him that I was not up to par, and may need to be monitored farther and closely over night.” ECF No. 11 ¶ 50.
Prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care. Estelle v, Gamble, 429 U.S. 97,104 (1978). In order to succeed on a claim of denial of medical treatment in violation of his Eighth Amendment rights, an inmate must show: (1) that he was suffering from a “serious” medical need; and (2) that the prison officials were “deliberately indifferent” to the serious medical need. Id. With respect to the first element of this standard, a medical need qualifies as “serious” when, for example, “it. . . has been diagnosed by a physician as requiring treatment.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). A medical need also may be “serious” if it is so obvious that even a layperson would recognize the need for a doctor's attention. Morrison v. Phillips, No. 06-812, 2008 WL 4308215, at *13 (D.N.J. Sept.16, 2008) (quoting Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006)).
With respect to the second element - deliberate indifference - the United States Supreme Court has adopted a subjective approach. Farmer v. Brennan, 511 U.S. 825, 842 (1994). This standard requires that “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837; see also Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer, 511 U.S. at 837). The United States Court of Appeals for the Third Circuit has held that deliberate indifference may be demonstrated in several scenarios, including “when a doctor is intentionally inflicting pain on [a] prisoner,” and when the denial of “reasonable requests for medical treatment. . . exposes the inmate to undue suffering[.]” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (internal quotation marks and citations omitted). This standard also is met when “a prison official ... knows of a prisoner's need for medical treatment but intentionally refuses to provide it” or “delays necessary medical treatment based on a nonmedical reason.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Importantly, however, acts that would rise only to the level of medical malpractice, or mere disagreement over a course of treatment, are not violations of the Eighth Amendment. Spruill, 372 F.3d at 235. Additionally, “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845.
Here, Plaintiff fails to plead that he requested medical treatment from Defendant Doctor Solomon, or that medical treatment was denied. Instead, the Complaint is silent as to what involvement - if any - Defendant Doctor Solomon had with Plaintiff, and what treatment - if any - he prescribed.
Accordingly, Plaintiff has not plausibly pleaded an Eight Amendment violation at the hands of Defendant Doctor Solomon, and any such claim against this Defendant should be dismissed. However, as it would not necessarily be futile, leave to amend this claim should be granted.
6. Defendant Sergeant Gagnon
Plaintiffs sole allegation with respect to Defendant Sergeant Gagnon is that he allegedly refused to allow Plaintiff to see a copy of a list of Plaintiff s misconduct-based restrictions on January 18, 2021. ECF No. 11 ¶ 15. This occurred while Plaintiff was subject to 30 days of disciplinary confinement, which was ordered at a hearing that took place on or about January 11, 2021, and which ended on February 10, 2021. Id. ¶ 14. Defendant Sergeant Gagnon is not alleged to have taken part in that hearing, or otherwise to have interacted with Plaintiff during his disciplinary confinement. Id. ¶ 15.
This Court interprets Plaintiffs claims against Defendant Sergeant Gagnon to arise under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which provides in pertinent part that “No State shall. . . deprive any person of life, liberty, or property, without due process of law ...U.S. CONST, amend. XIV, § 1.
The Supreme Court has mandated a two-part analysis of a procedural due process claim: first, “whether the asserted individual interests are encompassed within the . . . protection of ‘life, liberty or property and second, “if protected interests are implicated, we then must decide what procedures constitute ‘due process of law.'” Ingraham v. Wright, 430 U.S. 651, 672 (1977); see also Shoats v. Hom, 213 F.3d 140, 143 (3d Cir. 2000). If there is no protected liberty or property interest, it is obviously unnecessary to analyze what procedures were followed when an alleged deprivation of an interest occurred.
A protected liberty interest may arise from one of two sources: 1) directly from the Fourteenth Amendment's Due Process Clause itself or 2) from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). There is no liberty interest created directly by the Fourteenth Amendment that prevents an inmate, for example, from being subjected to AC status confinement. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (“Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation”); Stephany v. Wagner, 835 F.2d 497, 499 (3d Cir. 1987) (“the Due Process Clause does not give a prisoner a liberty interest in remaining in the general prison population”).
Neither has Pennsylvania created a liberty interest in being free from administrative status or disciplinary confinement. Addressing the issue of state created liberty interests, the United States Supreme Court in Sandin, 515 U.S. at 484, held that a state government “may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” (internal citations omitted).
Here, there is nothing in the Complaint to indicate that Defendant Sergeant Gagnon's refusal to provide a comprehensive list of extant disciplinary restrictions at Plaintiff's request “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Nor is there any indication that Defendant Sergeant Gagnon's refusal in any way interfered with any other hearing or right enjoyed by Plaintiff. Accordingly, Plaintiff's sole claim against Defendant Sergeant Gagnon should be dismissed. As amendment would be futile, dismissal of this claims should be with prejudice.
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that Plaintiff s claims against various Defendants should be dismissed, sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for which relief can be granted, as follows:
• Plaintiffs claims against Defendants Doctor Hammer, Grievance Coord. T. Shawley, Grievance Coord. C. Greenawalt, Grievance Coord. M. Andretti, Mailroom Supervisor L. Kois, Secretary John E. Wetzel, Officer Huey, and Doctor Solomon should be dismissed without prejudice to filing an amended complaint, if appropriate.
• Plaintiffs claims of threats by Defendants Superintendent Michael Zaken, ECF No. 11 ¶ 20, Lieutenant Martucci, id. ¶ 27, and Officer Johnson, id. ¶ 32, should be dismissed without prejudice to filing an amended complaint, if appropriate.
• Plaintiffs claim against Sergeant Gagnon should be dismissed with prejudice.
• Plaintiffs claims regarding his lost property - which include his sole claim against Defendant Officer C. Lewis - should be dismissed without prejudice to refiling in state court under state law, if appropriate.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v, Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted.
Hon. W. Scott Hardy United States District Judge