Opinion
1:22-CV-00033-SPB
02-07-2023
BRYAN ANGLE II, Plaintiff v. LT. SMITH, LT. FROELICK, C/O GUYTON, SGT. MALUK, C/O BONCELLA, C/O HARRISON, C/O BRIDGES, C/O MCDANIELS, C/O MONTINI, C/O NADAL, C/O ARCLEY, C/O HAM, CO1 LUCKOCK, C/O BLY, C/O SMITH, C/O VANDERHOOF, AND JOHN & JANE DOES, HEX SZEWESKI, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT COURT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT ECF NO. 26
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss the amended complaint (ECF No. 26) be GRANTED in part and DENIED in part.
II. Report
A. Introduction and Procedural History
Plaintiff Bryan Angle, II (Angle), an inmate in the custody of the Pennsylvania Department of Corrections (DOC) at its State Correctional Institution at Fayette (SCI-Fayette), commenced this action in the Court of Common Pleas of Erie County, Pennsylvania, against seventeen identified employees of the Pennsylvania Department of Corrections (“DOC”) and one John Doe defendant. ECF No. 1-2. His complaint asserted federal constitutional claims pursuant to 42 U.S.C. § 1983, a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, et seq., and state law tort claims. The action was removed to this Court pursuant to 28 U.S.C. §1441 based on federal question subject matter jurisdiction conferred by 28 U.S.C. §1331.
Defendants then moved to dismiss Angle's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 5. The Court denied the motion as to Angle's excessive force, assault, battery, and retaliation claims against Defendant Guyton; and granted the motion as to Angle's due process claims for confiscation of property, claims of verbal harassment, free exercise of religion and RLUIPA claims, access to courts claim, and excessive force, assault, battery, and retaliation claims against all Defendants other than Defendant Guyton. ECF Nos. 19,21. The Court dismissed Angle's due process claims for confiscation of property and claims of verbal harassment with prejudice, but authorized Angle to file an amended complaint as to the other dismissed claims. ECF No. 21.
The undersigned's Report and Recommendation additionally recommended denying the motion to dismiss as to a claim of conversion under Pennsylvania state law against Smith, Vanderhoof, and Bly, but the Court's opinion adopting the Report and Recommendation in its entirety did not address this conversion claim. ECF Nos. 19, 21. Because it is re-alleged in the amended complaint, the undersigned will re-assess its viability herein.
On July 28, 2022, Angle filed an amended complaint against fifteen named individuals and two “Doe” defendants. All are employees of the DOC at SCI-Albion, where Angle was previously incarcerated. The named defendants are Corrections Officer (“C/O”) Arcley, C/O Bly, C/O Boncella, C/O Bridges, Lt. Froelick, C/O Guyton, C/O Hammett, C/O Harrison, Sgt. Maluk, C/O McDaniels, C/O Montini, C/O Nadal, Lt. Smith, C/O Vanderhoof, and Hearing Examiner Szeweski. Each Defendants is sued in his or her individual capacity. The amended complaint asserts claims under federal law of excessive force, retaliation, failure to protect, equal protection, and civil rights conspiracy, and Pennsylvania state law claims of assault, battery, conspiracy, conversion, and “falsification of documents.” Angle seeks injunctive and declaratory relief as well as compensatory and punitive damages.
No tort of “falsification of documents” is recognized under Pennsylvania state law.
On August 11, 2022, Defendants moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss all claims except the excessive force claim against Defendant Guyton. ECF Nos. 26, 27. Angle's responsive brief was originally due on September 12, 2022, but the deadline was repeatedly extended. ECF Nos. 28, 31, 36, 38. Despite multiple extensions to file his brief, Angle has yet to do so. Accordingly, the Court will address the pending motion without the benefit of Angle's response.
B. Factual Background
The events upon which Angle bases his claims occurred during his incarceration at SCI-Albion. The factual allegations of his amended complaint are accepted as true for purposes of Defendants' motion to dismiss. See Victor v. Overmyer, 2020 WL 2220541, at *2 (W.D. Pa. Mar. 16, 2020), report and recommendation adopted, 2020 WL 2220128 (W.D. Pa. May 7, 2020) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
On the afternoon of May 15, 2022, Angle was smoking an electronic cigarette while in the congregation area (or “dayroom”) of his cell block when an unidentified C/O “instructed him to ‘take it in,' i.e., go to his cell.” ECF No. 25, ¶ 13. Angle initially “objected, telling the C/O: ‘if you want to punish me- put it in a misconduct!” Id., ¶ 14. After several more orders from the C/O, and threats that the whole block would have to return to their cell if he did not comply, Angle eventually returned to his cell “without incident or any need to be forced to go.” Id., ¶ 16.
Angle was closing his cell door when an unidentified sergeant appeared and asked to speak with him outside of his cell. Angle “stepped onto the tier, standing directly to the side of his cell door,” and started telling this sergeant his understanding of the dayroom incident. Id., ¶ 18. As Angle was talking, “several unknown DOC officials pour[ed] onto his pod, many of whom were draped in fleeces and mask [sic],” and surrounded Angle and the sergeant. Id., ¶ 19.
Angle noticed that “[o]ne of these masked officials was brandishing a can of O.C. pepper spray,” prompting him to announce, “I'm allergic to pepper spray.” Id., ¶¶ 20, 22. One of the C/Os then closed Angle's cell door and ordered him “to turn around and cuff up.” Id., ¶ 23. Angle responded “to the crowd that he had LITERALLY just been in his cell, where he'd been told to go,” before the sergeant asked him to talk outside of his cell. Id., ¶ 23. A masked official then said: “this isn't gonna end well for you.” Id., ¶ 24. Angle alleges that before he could turn around, he “was roughly apprehended by one of the officials” and taken to the ground. Id., ¶ 24.
Angle asserts that he soon “found himself at the bottom of a pile of DOC officials- crying and screaming for air!” Id., ¶ 25. Angle began calling out “Help! Help! I can't breathe!,” while inmates shouted out “stop!”; “your [sic] gonna kill him!”; “can't you hear him?- he said he can't breathe.” Id., ¶ 26. As the alleged assault continued, a C/O with a handheld camera called out “your [sic] on camera! Ya'll are on camera.” Id.
“After what seemed like an eternity, [Angle] was pulled to his feet.” Id., ¶ 27. He felt light-headed and dizzy, and struggled to stand on his own “from the beating he'd sustained; much of which occurred twenty, thirty seconds AFTER he'd been handcuffed (from behind).” Id., ¶ 28. Turning to the unidentified officers, Angle called out “I'm going to sue EVERYONE of y'all for this shit!” Id. Immediately after, a C/O later identified as Guyton “turned around and punished [Angle] square in the face.” Id., ¶ 29. Moments later, “another one of the unknown-and, unidentified, at the time - Defendants began to drag [Angle] by his hair off of B/A - with others continuing to kick, punch, slap and unnecessarily abuse and taunt [him].” Id., ¶ 30.
Angle asserts that “[he] was being so viciously assaulted that one of the DOC officials amongst the angry mob, Sgt. Harris, himself [sic] no longer able to stomach what she was witnessing, called out for the others to ‘Stop! Stop it! Ya'll are gonna kill him!”' Id., ¶ 31. Angle then “informed Sgt. Harris of her obligation to report” the incident, after which he heard “Guyton, Boncella, and McDaniels joking that: ‘That's not what my misconducts gonna say!'; ‘Mine, either!'” Id.,¶32.
Angle alleges that he did not resist the C/Os at any point during the assault and that a John Doe C/O Defendant recorded the incident on camera.
No video is presently part of the record and Defendants have not disclosed whether one exists.
Moments later, Angle was “escorted to the units [sic] ‘sally port' by his hair by Defendant John Doe,” and then “placed against the wall and pat searched.” Id., ¶ 33. While he was being searched, “(Lt.) Defendant Smith ordered a C/O to take [his] Kufi;” a religious head covering. Id., ¶ 33. Afterwards, Angle was brought to the Restricted Housing Unit (RHU) and upon arrival asked Defendants Maluk and Froelick for his Kufi back; they said no. He was then asked if he was suicidal, to which he answered “yes” and thereafter taken to the Psychiatric Observation Cell (“POC”).
When Angle arrived at the POC, he again asked Froelick for his Kufi back. In response, Froelick allegedly said: “If I get your Kufi, I'm'a [sic] wipe my ass with it, you faggot Muslim. You shouldn't be Muslim anyway. Your [sic] white!” Id., ¶ 37. On May 17, 2021, he was discharged from the POC and returned to the RHU.
Angle makes additional allegations against Luckock but because he was terminated as a defendant in this action, these allegations are immaterial. Id., ¶ 39.
Angle alleges that while he was in the RHU, Defendants carried out a campaign of harassment “that left [him] contemplating suicide!” Id., ¶ 40. This included an incident on May 21, 2021, when “Defendants Bly and Smith came to [Angle's] cell and took him to the RHU property room where Defendant Vanderhoof was waiting for [him].” Id., ¶ 42. Angle next informed these Defendants that he needed “his legal work so that he could pursue grieving the excessive force that he was subjected to on May 15, 2021.” Id., ¶ 43. Vanderhoof responded by “confiscating a substantial amount of [Angle's] personal property under the guise that it was in excess, altered,” including his “antenna amp, 3 pairs of headphones, and a GPX wristband radio” that were allegedly altered. Id., ¶¶ 44, 45. Vanderhoof, Bly, and Smith also excluded certain items from his personal property inventory sheet, including “15 E-cig's, 5 cans of Zyn, and a Universal remote.” Id., ¶ 46. Angle then informed these Defendants “that their failure to document his property on the property inventory sheet would compel [him] to have to file a grievance against [sic] them.” Id., ¶ 47. In response, Vanderhoof “pointed to all of [Angle's] legal property” and said: “I can see that you like to file lawsuits and grievances. Don't worry about that though. This misconduct you'll be getting for all this excess property will off set all that!” Id., ¶ 48. An officer whom Angle does not identify subsequently issued a misconduct charging Angle with having “property in excess of what he was suppose [sic] to have.” Id., ¶ 48.
Thereafter, Defendants Guyton, McDaniels, and Boncella each issued Angle a misconduct based on the alleged May 15,2021 assault. According to Angle, each of these misconducts falsely charged him with having
attacked them[] when it was in fact them - along with Defendants Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Ham[mett], collectively - who either directly participated in the excessive force, failed to intervene and/ or protect Plaintiff from it, report or document it, or used their involvement in the investigative process to conceal and protect the identities of their fellow co-workers who carried out the excessive force.Id., ¶ 49. Angle contends that each of these Defendants documented the incident in a DC-121 “Use of Force” form, and that no Defendant included in their report “how [he] was punched, kicked, or chocked on May 15, 2021 - nor how they themselves may've in fact also partaken in the actual excessive force.” Id., ¶ 50. It was from these misconducts that Angle first learned the identities of the officers involved in his alleged attack.
Although Angle identified the officer as “Ham,” Defendants have provided his correct name, “Hammett.” ECF No. 27.
Szeweski later presided over Angle's misconduct hearing. At this hearing, Szeweski learned that Angle had an art permit and so ordered the return of his confiscated art materials. However, Szeweski also concluded that Angle owned contraband. In response to this finding, Angle asked if his property could be pulled to prove that his items were neither altered nor in excess of the four boxes he was allowed, as well as “to review the camera footage.” Szeweski said no. Id., ¶ 54. In finding Angle guilty of this misconduct and ordering the confiscation of Angle's alleged contraband materials, Angle asserts that Szeweski announced: “that's what you get when you assault my officers.” Id., ¶ 55.
Angle does not specify which misconduct was the subject of this hearing., Therefore, it is unclear whether this hearing also addressed the alleged assault or only matters relating to his property.
C. Standard 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 Rule 12(b)(6) motion to dismiss, 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). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir.1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Iqbal, 556 U.S. 662. Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, 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 explained 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; 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 Plaintiff is proceeding pro se, 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”).
D. Discussion
Angle asserts Eighth Amendment excessive force and failure to protect, civil rights conspiracy, and First Amendment retaliation claims pursuant to 42 U.S.C. § 1983 and state law assault and battery, and conspiracy claims against the Defendants involved in the assault allegedly committed against him on May 15, 2022. He also asserts a Fourteenth Amendment equal protection claim, First Amendment retaliation claim, and Pennsylvania state law conversion claim against Smith for the alleged confiscation of his Kufi. Lastly, he asserts a First Amendment retaliation claim, civil rights conspiracy claim, and Pennsylvania state law conspiracy and conversion claims against the Defendants allegedly involved in the confiscation of his property.
Defendants argue that the Eighth Amendment excessive force claim must be dismissed against all Defendants except for Guyton because the facts alleged do not support the personal involvement of the other Defendants; the First Amendment retaliation and civil rights conspiracy claims must be dismissed against all Defendants because the facts alleged do not support the elements of these claims; and the state law claims must be dismissed against all Defendants because they are entitled to sovereign immunity. Although Defendants' motion to dismiss is unopposed, the Court will address the merits of their argument because Angle is proceeding pro se. See Thomas v. Value Realty, 2016 WL 9776141, at *1 (D.N.J. Nov. 30, 2016) (citing Jones v. Unemployment Comp. Bd. of Review, 381 Fed.Appx. 187,189 (3d Cir. 2010) and Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)) (“The Third Circuit recommends that in the case of a pro se litigant, a district court address a case on the merits even if a motion is unopposed.”).
1. The amended complaint alleges facts sufficient to state Eighth Amendment excessive force and failure to protect claims against Defendants Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett.
Angle alleges that Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett violated his Eighth Amendment rights by using excessive force or, alternatively, by failing to protect him from the assault. Defendants concede that Angle has stated an Eighth Amendment excessive force claim against Guyton for purposes of their motion to dismiss but argue that the claims against all other Defendants should be dismissed because Angle has not demonstrated their personal involvement.
The amended complaint does not expressly assert the Eighth Amendment claims against Gutyon. However, the Court's previous decision on the original complaint found that the facts alleged supported an Eighth Amendment excessive force claim against Guyton (ECF Nos. 19, 21), and Defendants concede to this finding in their motion to dismiss (ECF No. 4). Thus, this claim against Guyton will move forward despite Angle's failure to re-allege in his amended complaint.
The amended complaint also fails to include Boncella among the listed Defendants allegedly liable for violating Angle's Eighth Amendment rights. Under an extremely liberal reading of the amended complaint and in resolving the ambiguities in the light most favorable to Angle, the Court concludes that Angle intended Boncella to be among the Defendants listed because the amended complaint includes Boncella among the Defendants who “directly participated in the excessive force, failed to intervene and/or protect Plaintiff from it, report or document it, or used their involvement in the investigative process to conceal and protect the identities of their fellow co-workers who carried out the excessive force.” ECF No. 25, ¶ 49. Moreover, the amended complaint alleges that Boncella was involved in the assault and issued one of the misconducts falsely asserting that Angle attacked him and the other Defendants, which itself is the basis for Angle's retaliation and state tort claim asserted against Boncella, McDaniels, and Guyton.
i. Personal Involvement
In order to prevail on a claim pursuant to 42 U.S.C. § 1983, a plaintiff must prove that a defendant, acting under color of state law, deprived the plaintiff of a right secured by the Constitution or laws of the United States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Est. of Smith v. Marasco, 430 F.3d 140, 151 (3d Cir. 2005); 42 U.S.C. § 1983. It is axiomatic that liability under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g, Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
The facts alleged in the amended complaint are sufficient to support each Defendant's personal involvement in the Eighth Amendment violations for purposes of surviving the motion to dismiss. While Angle's allegations do not clearly articulate the role of each of the participating Defendants, the allegations support that each either exerted excessive force or failed to intervene in the assault by other officers. At this stage of the proceeding, this is enough to support each Defendants' personal involvement. See Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (where Plaintiff alleged that all officers participated in his beating, and “it [wa]s undisputed that all of the named officers were in the vicinity at some point when Smith allege[d] he was beaten,” his failure to identify each officers' specific involvement did not negate their personal involvement in his excessive force claim); compare Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 291 (3d Cir. 2018) (personal involvement of numerous officers not alleged where “Jutrowski d[id] not contend that all [of the Defendants] kicked him, only that one did; he d[id] not purport to raise a dispute about the extent of each officer's participation, but rather the possibility of it.”).
The allegations of the amended complaint also support an inference that Angle could not have identified the precise actions of each Defendant who allegedly participated in the incident. See Spencer v. Biggins, 2013 WL 5702312, at *7 (M.D. Pa. Oct. 18, 2013) (“Plaintiffs ability to identify Defendant Guise's and Defendant Higgs' personal involvement in the alleged excessive force” was compromised by the nature of the assault). Angle alleges that approximately a dozen masked officers surrounded him, took him to the ground, and beat him. He further asserts that when Defendants stood him up, he was light-headed and dizzy, and then hit in the face before being dragged and again assaulted by some of these masked officers. Angle was later issued three misconducts regarding this incident that listed the names of the Defendants he now seeks to hold liable. Angle also alleges that a video surveillance recording of the incident exists and should show the precise conduct of each Defendant. Accepting Angle's factual allegations, as the Court must at this stage in the proceedings, the amended complaint adequately supports the personal involvement of Guyton, Boncella, McDaniels, Froelick, Maluk, Harrison, Bridges, Montini, Nadal, Arcley, and Hammett.
ii. Excessive Force and Failure to Protect
Having resolved this preliminary issue, the Court now turns to whether the amended complaint supports the essential elements of Angle's excessive force and failure to protect claims. The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on inmates. US. Const, amend. VIII. To state an Eighth Amendment claim based on the application of excessive force, an inmate must allege facts to support two elements, one subjective and the other objective. See Hudson v. McMillan, 503 U.S. 1, 7-8 (1992). “The objective component of an Eighth Amendment claim is.. .contextual and responsive to ‘contemporary standards of decency.'” Id., at 8 (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). It asks whether prison officials unnecessarily and wantonly inflicted pain in a manner that offends “contemporary standards of decency.” Id., at 8-9. The “core judicial inquiry” of the subjective element is whether “force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id., at 6-7. Several factors must be examined when determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including:
(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to the”; and (5) “any efforts made to temper the severity of a forceful response.”Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312 (1986)). These factors must be assessed “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Defendants concede that for purposes of their motion to dismiss Angle has stated an Eighth Amendment excessive force claim against Guyton. The facts alleged in the amended complaint also support an excessive force claim against the other Defendants identified as having participated in the May 15, 2022 incident. Accepting Angle's allegations as true, he posed no security threat to Defendants before or during the assault and was nevertheless severely beaten by numerous DOC officers, including while he was handcuffed. The amended complaint's allegations therefore provide a plausible basis for inferring that Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett used excessive force against Angle in violation of the Eighth Amendment.
The allegations are also sufficient to state a failure to protect claim against the officers involved in the incident. The Eighth Amendment imposes a duty on prison officials to “take reasonable measures to guarantee the safety of inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). An inmate's viable failure to protect claim requires him to plead facts that support plausible inferences that “(1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the official was deliberately indifferent to that substantial risk to [the inmate's] health and safety, and (3) the official's deliberate indifference caused [the inmate] harm.” Manuel v. Capozza, 2022 WL 4001049, at *5 (W.D. Pa. July 14, 2022), report and recommendation adopted, 2022 WL 3998446 (W.D. Pa. Sept. 1, 2022) (quoting Ramey v. Marsh, 2022 WL 363854, at *3 (M.D. Pa. Feb. 7, 2022) (citing Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020))). Deliberate indifference depends upon showing that the official “knows and disregards an excessive risk to inmate health and safety; 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.” Hill v. Patrick, 2008 WL 1752692, at *2 (W.D. Pa. 2008) (quoting Beers-Captiol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)). Additionally, “[a] correctional officer's failure to intervene when a prisoner is being physically assaulted by another prison official can be the basis of liability for an Eighth Amendment violation ‘if the corrections officer had a reasonable opportunity to intervene and simply refused to do so.'” Millbrook v. United States, 714 Fed.Appx. 109,114 (3d Cir. 2017) (citing Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002)).
Angle alleges that each of the officers who was present during the incident either participated in the assault or were in a position to intervene. He even alleges that the John Doe camera man warned the officers that they were being filmed. This allegation supports a plausible inference that those not personally engaged in the assault were at least in a position to try to stop it but did not. Accordingly, Angle's allegations support Eighth Amendment failure to protect/intervene claim against Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett to the extent they were not directly involved in the assault.
Angle alleges similar facts regarding a Sgt. Harris; however, she is not named as a Defendant and the Court will not infer that Defendant C/O Harrison is meant to be Sgt. Harris.
2. The amended complaint alleges facts sufficient to support state law assault and battery claims against Defendants Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett.
The amended complaint also alleges a claim of assault and battery under Pennsylvania law. Defendants argue that this claim is barred by sovereign immunity. In general, employees of the Commonwealth of Pennsylvania acting within the scope of their duties enjoy sovereign immunity. Walton v. Harkleroad, 2016 WL 11480713, at *7 (W.D. Pa. Mar. 3, 2016) (citing 1 Pa. C.S. § 2310). And although the Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence against Commonwealth employees in a very limited and express set of circumstances,” it has not done so for intentional torts. Id. (citing 42 Pa.C.S. § 8522(b)). See Kull v. Guisse, 81 A.3d 148, 157 (Pa. Comm. Ct. 2013) (“[S]tate employees do not lose their immunity for intentional torts, provided they are acting within the scope of their employment.”) (citations omitted). Consequently, sovereign immunity “shields Commonwealth employees from liability when their actions: (1) cannot fit into one of the nine statutory exceptions in § 8522; (2) are not negligent; and (3) occurred when acting within the scope of his or her employment.” Tibbens v. Snyder, 2020 WL 5372097, at *5 (M.D. Pa. June 24, 2020) (citing Kintzel v. Kleeman, 965 F.Supp.2d 601, 606 (M.D. Pa. 2013)).
Specifically, the General Assembly has waived immunity in cases of: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. C.S.A. § 8522.
Defendants are correct that, as DOC employees, they are entitled to immunity for intentional tort claims like assault and battery if committed within the scope of their employment. See, e.g., Brown v. Smith, 2019 WL 2411749, at *4 (W.D. Pa. June 7, 2019) (noting that assault and battery do not fall within the § 8522 exceptions). However, courts in this Circuit have held “that intentionally tortious conduct which is ‘unprovoked, unnecessary, or unjustified by security concerns or penological goals' does not fall within the scope of employment for purposes of sovereign immunity.” Graham v. Pennsylvania Dep't of Corr., 2022 WL 2874724, at *9 (W.D. Pa. Mar. 21, 2022), report and recommendation adopted, 2022 WL 2871331 (W.D. Pa. July 21, 2022) (quoting Fennell v. Wetzel, 2019 WL 1264898, at *11 (M.D. Pa. Jan. 18, 2019) (citing Wesley v. Hollis, 2007 WL 1655483, at *15 (E.D. Pa. June 6, 2007))). See R.B. Hollibaugh, 2017 WL 663735, at *16 (M.D. Pa. Feb. 1, 2017), report & recommendation adopted, 2017 WL 661577 (M.D. Pa. Feb. 17, 2017) (several correctional officers denied sovereign immunity when they allegedly physically assaulted the plaintiff based on racial animus); Savage v. Judge, 2007 WL 29283, at *5 (E.D. Pa. Jan. 2, 2007) (correctional officer not entitled to sovereign immunity on allegation that he assaulted an inmate to prevent him from testifying in a case against multiple correctional officers); Velykis v. Shannon, 2006 WL 3098025, at *3-4 (M.D. Pa. Oct. 30, 2006) (correctional officer not entitled to sovereign immunity when he allegedly slammed the door of a transport van shut on the plaintiffs head).
The record is not sufficiently developed to determine whether Defendants' use of force fell within the scope of their employment. Thus, the same allegations that support an excessive force claim against Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett also state a claim of assault and battery under Pennsylvania law. See Zimmerman v. Schaeffer, 654 F.Supp.2d 226, 255 (M.D. Pa. Aug. 17, 2009) (“Under Pennsylvania law, an assault occurs when one acts with the intent to place another in reasonable and immediate apprehension of harmful or offensive contact, and that act does cause such apprehension. A battery is an intentional offensive bodily contact.”) (citations omitted).
The Court may exercise supplemental jurisdiction over Angle's state law claims for assault and batteiy because they are so related to his Eighth Amendment claims as to form the same case and controversy. See 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
III. First Amendment Retaliation
Defendants argue that Angle's allegations fall short of supporting a First Amendment retaliation claim against any of the Defendants. The First Amendment prohibits prison officials from retaliating against prisoners for their engaging in constitutionally protected conduct. See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). To support a retaliation claim, a prisoner must produce evidence that (1) he engaged in 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.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (alteration in original); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
When analyzing whether an inmate engaged in constitutionally protected activity, courts should be mindful that “[1] awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Jones v. North Carolina Prisoners' Lab. Union, Inc., 433 U.S. 119,125 (1977) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). Still, “prison inmates retain those constitutional rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system.” White v. Napoleon, 897 F.2d 103, 112 (3d Cir. 1990) (citing Turner v. Safley, 482 U.S. 78 (1987)); see also Pell v. Procunier, 477 U.S. 817, 822 (1974).
For purposes of a retaliation claim, an “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah, 229 F.3d at 225 (quoting Suppan v. Dadonna, 203 F.3d 228,235 (3d Cir. 2000)). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). This requirement is not too demanding: “unless the claimed retaliatory action is truly ‘inconsequential,' the plaintiffs claim should go to the jury.” Id. (citing Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002)). To show that retaliatory motive caused the adverse action, the plaintiff may rely on direct evidence or an inference of retaliatory motive arising from either (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). “These are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,177 (3d Cir. 1997)).
“If a prisoner establishes a prima facie case of retaliation, the burden shifts to prison officials to show, by a preponderance of the evidence, that ‘they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.'” See Cooper v. Garman, 2021 WL 4033113, at *8 (M,D. Pa. Sept. 3,2021) (quoting Rauser v. Horn, 241 F.3d330,334 (3d Cir. 2001)). Put differently, “[a] defendant may defeat the claim of retaliation by showing that [he] would have taken the same action even if the plaintiff had not engaged in the protected activity.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Upon such a showing that the defendants would have taken the same action, the burden shifts back to the plaintiff to (1) produce “other evidence” of the defendant's retaliatory motive, and (2) demonstrate that the violation of prison policy was “not so ‘clear and overt'” that the court can conclude that the defendant would have taken the same action despite this evidence. Watson, 834 F.3d at 426; Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002). The “same decision” defense is typically premature to address at the motion to dismiss stage. See Fleming v. Pa. Dep't of Corr., 2021 WL 1022628, at *7 (W.D. Pa. Mar. 17,2021) (citing Baez v. Mooney, 2021 WL 816013, at *4 (W.D. Pa. Feb. 8, 2021)).
Nevertheless, “[b]ecause 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.” Miskovitch v. Hostoffer, 721 F.Supp.2d 389, 396 (W.D. Pa. 2010) (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)). “Finally, allegations of de minimis acts of retaliation do not state a claim under § 1983.” Id. (citing Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001) (holding that a de minimis retaliatory act is outside the ambit of constitutional protection)). Using these precepts, the Court will review each of Angle's retaliation claims.
i. The amended complaint states a First Amendment retaliation claim against Guyton, Boncella, and McDaniels.
Angle first alleges that Guyton, Boncella, and McDaniels retaliated against him for “voicing his intent to sue for excessive force” by physically assaulting him and falsifying their subsequent misconducts.” ECF 25, ¶ 57. These allegations are sufficient to state a retaliation claim against Guyton, Boncella, and McDaniels. The Court previously held that Angle's allegations state a retaliation claim against Guyton. With respect to Boncella and McDaniels, the allegations also support inferences that they heard Angle announce his intention to sue for his assault and retaliated by filing false misconduct charges against him. Angle's announcement is a protected activity satisfying the first element. Keziah v. Superintendent Kerestes, 2015 WL 8488426, at *2 (M.D. Pa. Dec. 10, 2015) (citing Milhouse v. Carlson, 652 F.2d 371, 373-374 (3d Cir. 1981)) (“Under the First and Fourteenth Amendments, prisoner-plaintiffs have a right to petition the government for redress of grievances and to freely access the courts.”). See also Harcum v. Shaffer, 2007 WL 4167161, at *8 (E.D. Pa. Nov. 21, 2007) (citing Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997) (“Once [Plaintiff] announced his intent to pursue legal recourse, defendants were prohibited from retaliating against him.”).
The second element is also satisfied. The Court of Appeals for the Third Circuit has repeatedly held that a falsified misconduct that results in a prisoner being sanctioned may reasonably deter a person of ordinary firmness from engaging in constitutionally protected activity. See Mitchell, 318 F.3d at 530 (“[Plaintiffs] allegation that he was falsely charged with misconduct in retaliation for filing complaints against Officer Wilson implicates conduct protected by the First Amendment.”); Mensinger, 293 F.3d at 653 (“We have ... held that falsifying misconduct reports in retaliation for an inmate's resort to legal process is a violation of the First Amendment's guarantee of free access to the courts.”); Lee v. Clark, 2020 WL 8768344, at *9 (W.D. Pa. Dec. 14, 2020), report and recommendation adopted, 2021 WL 630961 (W.D. Pa. Feb. 18, 2021) (citing Watson, 834 F.3d at 423) (“receiving a prison misconduct which results in sanctions or loss of privileges usually amounts to an adverse action”); DeFranco v. Miller, 2021 WL 6498250, at *4 (W.D. Pa. Oct. 4, 2021), report and recommendation adopted, 2021 WL 6037580 (W.D. Pa. Dec. 21, 2021) (second element of retaliation claim was satisfied by the filing of false misconducts that resulted in the sanction of disciplinary confinement).
Although Angle's allegations remain somewhat thin, they are adequate to support an inference that Boncella, McDaniels, and Guyton issued false misconducts against him in retaliation for exercising his First Amendment rights. Thus, his allegations satisfy the adverse action requirement of a retaliation claim. See Lewis v. Wetzel, 153 F.Supp.3d 678, 702-703 (M.D. Pa. 2015) (quoting Mensinger, 293 F.3d at 653-654) (“[F]iling a false misconduct report is cognizable as a denial of due process when the false misconduct charge is filed for the ‘sole purpose of retaliating against an inmate for his/her exercise of a constitutional right such as his or her right to file a grievance[.]'”).
With respect to the third element, Angle alleges that the Defendants submitted their false misconduct reports shortly after he announced his intention to sue. Allegations of “suggestive temporal proximity” between the inmate's protected conduct and the adverse action support an inference that the adverse action was motivated by the protected conduct. See Rauser, 241 F.3d at 334 (citing Farrell, 206 F.3d at 280) (Plaintiffs demonstration of “suggestive temporal proximity between his insistence on his First Amendment rights and” Defendants adverse actions satisfied causation for purposes of his retaliation claim). See also Harcum, 2007 WL 4167161, at *8 (citing Rauser, 241 F.3d at 333) (The third element requires a showing that “the constitutionally protected conduct was a substantial or motivating factor in the decision to take adverse action.”). Accepting Angle's factual allegations as true, which the Court must at this stage of the litigation, the amended complaint is sufficient to state a cognizable retaliation claim against Guyton, Boncella, and McDaniels.
ii. Angle fails to allege facts sufficient to support a retaliation claim against Vanderhoof.
Angle's allegations against Vanderhoof are difficult to decipher. He appears to argue that Vanderhoof retaliated against him for announcing his intention to grieve the assault and the manner in which Vanderhoof inventoried his property. The Court will assume that Angle's announcing his intent to file grievances constitutes constitutionally protected conduct. See Stewart v. Varano, 601 Fed.Appx. 107, 111 (3d Cir. 2015) (stating intention to grieve satisfied first element of retaliation claim); Smith v. Pennsylvania Dep't of Corr., 2011 WL 4573364, at *5 (W.D. Pa. Sept. 30, 2011) (“voicing complaints and/or filing grievances are constitutionally protected activities.”). Nevertheless, his claim against Vanderhoof fails because the facts alleged do not support the second or third element of a retaliation claim.
Angle appears to claim that Vanderhoof s confiscation of certain items of his property was an adverse action. While Angle acknowledges that Vanderhoof did so pursuant to DOC regulations limiting the amount and type of property a prisoner is entitled to possess, he appears to argue that Vanderhoof improperly applied this policy by falsely listing some of his property as altered or in excess of RHU policy and excluding some of his other items from his inventory sheet altogether. With respect to the property considered altered or in excess, Angle alleges that after he threatened to file a grievance against Vanderhoof, Vanderhoof threatened him with a misconduct based on his possession of excess or altered property. But this threat is not an adverse action. See Keziah v. Superintendent Kerestes, 2015 WL 8488426, at *2 (M.D. Pa. Dec. 10, 2015) (“it is well settled that verbal threats or verbal harassment do not constitute adverse action for purposes of stating a retaliation claim under the First Amendment.”); Id. (listing cases). Angle also appears to argue that the misconduct he was later issued charging him with having excess property was an adverse action. But he does not allege that Vanderhoof filed this misconduct. Even if responsibility for this misconduct could be traced to Vanderhoof, Angle acknowledges that he was subsequently found guilty of violating the property regulations by Hearing Officer Szeweski. And though Szeweski consequently ordered the confiscation of some of his property, Angle states that Szeweski ordered the return of his confiscated art property after “reach[ing] the conclusion that [Angle], contrary to the allegations of Defendants Bly, Smith, and Vanderhoof, DID have an art permit.” ECF No. 25, ¶ 52. This ruling, which appears rooted in some evidentiary basis, negates Vanderhoof s alleged impropriety. As to the “15 E-cig's, 5 cans of Zyn, and a Universal remote” that Vanderhoof allegedly left off of the inventory sheet, the omission of these items is de minimis and therefore insufficient to constitute an adverse action. Id., at ¶ 46. See Real v. Huber, 2015 WL 13738830, at *11 (M.D. Pa. Nov. 17, 2015), report and recommendation adopted, 2016 WL 1162520 (M.D. Pa. Mar. 24, 2016) (citing Sanchez v. Calfee, 558 Fed.Appx. 428, 429 (5th Cir. 2014) (per curiam); Shannon v. Venettozzi, 2015 WL 114179, at *6 (S.D.N.Y. Jan. 8, 2015), aff'd in part, vacated in part on other grounds, 670 Fed.Appx. 29 (2d. Cir. 2016)) (confiscation and destruction of certain of inmate's property was “so de minimis or inconsequential that it [wa]s insufficient to support a retaliation claim as a matter of law, as this act could not conceivably deter a prisoner of ordinary firmness from exercising his First Amendment right to file prison grievances.”).
Moreover, even if an adverse action could be found, it is mere speculation on Angle's part that Vanderhoofs allegedly improper application of prison policy was in retaliation for his grievance announcement. Angle appears to rely on timing to support causation, asserting that he requested his legal materials so that he could grieve the assault, and that “based on this request,” Vanderhoof improperly inventoried his property. ECF No. 25, ¶ 44. But this allegation of temporal proximity is too thin to support an inference that Vanderhoof applied DOC regulations regarding prisoner property as an act of retaliation. Thus, the amended complaint fails to state a claim for retaliation against Vanderhoof.
iii. Angle fails to allege facts sufficient to support a retaliation or Fourteenth Amendment claim against Smith.
Angle brings a retaliation claim against Smith for “confiscation of ‘Kufi', [sic] religious head piece; for [Angle's] ‘faggot Muslim' practices while being ‘white.'” ECF 25, ¶ 57. Confiscating Angle's property can be an adverse action depending on the circumstances. See Jackson v. Carter, 813 Fed.Appx. 820, 825 (3d Cir. 2020) (citing McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)). But Angle has not alleged facts to support a reasonable inference of retaliatory intent and causation. First, Angle's invocation of the derogatory comment to buttress his retaliation claim is misplaced as the amended complaint alleges that Froelick made this statement, not Smith. Second, Smith's alleged retaliatory act is untethered from any alleged protected conduct on the part of Angle. The amended complaint therefore fails to state a claim of retaliation against Smith.
Angle also brings a Fourteenth Amendment equal protection class-of-one claim against Smith based on these same allegations. The Equal Protection Clause of the Fourteenth Amendment provides that a state shall not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend. 14. As such, the Equal Protection Clause requires that all persons “similarly situated” be treated alike by state actors. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). An equal protection claim bought by a single person “must establish that: (1) the defendant[s] treated him differently from others similarly situated, (2) the defendant[s] did so intentionally, and (3) there was no rational basis for the difference in treatment.” Aulisio v. Chiampi, 765 Fed.Appx. 760, 764-65 (3d Cir. 2019) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Here, Angle does not allege any facts that his rights under the Equal Protection Clause were violated by Smith's alleged confiscation of his Kufi. He has not identified any other inmates that Smith allegedly treated differently from him or that Smith had no rational basis for his action. Thus, Angle's Fourteenth Amendment equal protection claim should be dismissed.
iv. The amended complaint fails to state a conversion claim against Smith, Vanderhoof, Bly, Szeweski, or Froelick.
Angle also brings two “Destruction and/or Misappropriation of Property” claims: one against Szeweski “in connection with his sanction during the misconduct hearing as to [Angle's] personal property” and one against Smith, Vanderhoof, Bly, and Froelick “for the illegal confiscation of his Kufi and other property.” ECF No. 25, ¶ 59. Construed as a state law conversion claim, Angle has failed to plead that these Defendants intentionally confiscated his property without his consent and legal justification based on the current record. See Universal Premium Acceptance Corp. v. York Bank & Tr. Co., 69 F.3d 695, 704 (3d Cir. 1995) (citing Cermet v. United States, 402 F.2d 168,170 (3d Cir. 1968)) (Under Pennsylvania common law, conversion is the “deprivation of another's right of property, or use or possession of a chattel, or other interference therewith, without the owner's consent and without legal justification.”). The allegations do not support a plausible inference that Smith, Vanderhoof, Bly, Froelick or Szeweski acted without legal justification or outside of the scope of their employment when dealing with matters related to Angle's property. Szeweski's involvement was merely as the hearing officer responsible for deciding the misconduct charges against Angle. His upholding of the aspects of the misconduct based on excess and altered property does not amount to a conversion. And Angle's allegation that Froelick made a derogatory comment in response to his request for the return of his Kufi is insufficient to show Froelick's involvement in the wrongful confiscation of his Kufi. Whether Smith, Vanderhoof, and Bly improperly handled Angle's property is immaterial because his allegations against them show that they were acting pursuant to DOC regulations and within the scope of their employment.
In the Court's prior decision on Defendants' motion to dismiss Angle's original complaint, it dismissed with prejudice a Fourteenth Amendment procedural due process claim against Smith, Vanderhoof, and Bly based on these same allegations because Angle has adequate post-deprivation remedies via a state tort action or the prison's grievance process. See Angle v. Smith, 2022 WL 2392438 (W.D. Pa. July 1, 2022). By that same token, a Fourteenth Amendment procedural due process claim against Szeweski for confiscation of property and Froelick for confiscation of his Kufi should also be dismissed with prejudice because Angle has the same adequate post-deprivation remedies for the confiscation of his property and Kufi. See id.', Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)); Mearin v. Folino, 2013 WL 5332120, at *7 (W.D. Pa. Sept. 23, 2013) (citing Tapp v. Proto, 404 Fed.Appx. 563, 567 (3d Cir. 2010)) (“[A]dequate post-deprivation remedies include the ability to file a state tort action or use of the prison's grievance process.”).
IV. The amended complaint fails to allege facts to support a conspiracy claim against the Defendants.
Angle also brings the following three 42 U.S.C. § 1983 conspiracy claims: (1) Guyton, Boncella, and McDaniels conspired to retaliate against him; (2) Vanderhoof, Bly, and Smith conspired to retaliate against him; and (3) Guyton, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett conspired to assault him. Defendants argue that the facts alleged in the amended complaint do not support any of these conspiracy claims. The Court agrees.
To properly plead a civil rights conspiracy claim, the plaintiff must allege: “1) the specific conduct that violated the plaintiffs rights, 2) the time and the place of the conduct, and 3) the identity of the officials responsible for the conduct.” Sanchez v. Coleman, 2014 WL 7392400, at *9 (W.D. Pa. Dec. 11, 2014) (citing Oatess v. Sobolevitch, 914 F.2d 428, 431 n.8 (3d Cir. 1990)). Critical to this claim is the complaint's “factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa.1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“[w]hile the pleading standard under [Fed. R. Civ. Proc .] Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient. Id. It is likewise “insufficient to allege that ‘the end result of the parties' independent conduct caused plaintiff harm or even that alleged perpetrators of the harm acted in conscious parallelism.” Parness v. Christie, 2015 WL 4997430, at *11 (D.N.J. Aug. 19, 2015) (quoting Desposito v. New Jersey, 2015 WL 2131073, at *14 (D.N.J. May 5, 2015)). “Additionally, as Section 1983 does not create a cause of action for conspiracy in and of itself, a plaintiff must also allege some underlying deprivation of a constitutional right.” Id. (quoting Holt Cargo Systems, Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998)).
Angle's allegations do not support a plausible inference that Defendants conspired to commit any of the wrongful actions alleged in the amended complaint. Angle alleges no facts to support that Guyton, Boncella, and McDaniels agreed to retaliate against him. His conclusory allegation to the contrary is insufficient to support this claim. Similarly, although Bly, Smith, and Vanderhoof are all alleged to have participated in failing to accurately complete Angle's RHU property sheet, it is not enough to allege “parallel conduct that could just as well be independent action.” Hammonds v. Allegheny Cnty. Bureau of Corr., 2019 WL 3802064, at * 8 (W.D. Pa. Aug. 13, 2019) (quoting Twombly, 550 U.S. at 557). Furthermore, the timing and sequence of events relating to the completion of the property inventory belie any opportunity to agree to a conspiratorial plan among these officers, and none of the facts alleged in the amended complaint support the existence of such a plan.
The conspiracy to assault claim against Guyton, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett fares no better. The amended complaint alleges no fact to suggest that these Defendants “agreed, plotted, or even discussed” the alleged assault prior to its occurrence. Aulisio, 765 Fed.Appx. at 764. Accordingly, Angle has failed to allege facts to state a cognizable civil rights conspiracy claim against any of the Defendants. This pleading deficiency also negates his conspiracy claim under Pennsylvania state law. See SNA, Inc. v. Array, 51 F.Supp.2d 554, 560-61 (E.D. Pa. 1999), affd sub nom. Silva v. Karlsen, 259 F.3d 717 (3d Cir. 2001) (quoting Strickland v. University of Scranton, 700 A.2d 979, 987-88 (Pa. Super .Ct. 1997)) (citing see also Skipworth v. Lead Indus. Ass'n, Inc., 547 Pa. 224, 690 A.2d 169, 174 (Pa. 1997)) (elements of a Pennsylvania conspiracy claim are similar to a civil rights conspiracy claim).
A. Leave to Amend
If a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, despite having been afforded multiple opportunities to amend and cure deficiencies in the claims recommended for dismissal, Angle has failed to do so, and it is clear that further amendment would be futile. Accordingly, it is recommended that no further leave to amend be granted to Angle with respect to the claims recommended for dismissal.
V. Conclusion
For the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss be GRANTED in part and DENIED in part. Specifically, Defendants' motion should be granted as to all claims except Angle's:
• Eighth Amendment excessive force and Pennsylvania state law assault and battery claims against Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett;
• Eighth Amendment failure to intervene/protect claim against Guyton, Boncella, Smith, Froelick, Maluk, Harrison, Bridges, McDaniels, Montini, Nadal, Arcley, and Hammett; and
• First Amendment retaliation claim against Guyton, Boncella, and McDaniels.
VI. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187,194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).