Opinion
3:22-cv-150
11-03-2023
JOSEPH HENSLEY, Plaintiff v. GOVERNOR TOM WOLF, et al., Defendants
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS ECF NO. 26.
RICHARD A. LANZILO, Chief United States Magistrate Judge
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that the Motion to Dismiss [ECF No. 26] filed by Defendants Jason Bainey, Jonathan McCaulley, and B. Vicklund be granted, but that Plaintiff Joseph Hensley be provided an opportunity to file a curative amendment within a reasonable time following the adoption of this Report and Recommendation.
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
II. Report
A. Procedural background
Plaintiff Joseph Hensley, an inmate in the custody of the Pennsylvania Department of Corrections (DOC), initiated this pro se civil rights action on September 9, 2022. See ECF No. 1. In his complaint, Hensley alleges that Defendants, each of whom was employed at his former prison, SCI-Houtzdale, engaged in unlawful retaliation after he exercised his First Amendment rights by filing a lawsuit in October 2021. See ECF No. 12 ¶ 10. Invoking 42 U.S.C. § 1983, Hensley seeks injunctive and monetary relief. Id. ¶¶ 20-29.
Hensley is currently incarcerated at SCI-Frackville.
Presently pending is Defendants' motion to dismiss. ECF No. 26. Hensley having filed a response, see ECF No. 41, this matter is ripe for disposition.
B. Factual background
Hensley's complaint is light on details. He avers that he filed a civil action in October 2021 and that “[t]he Defendants are retaliating and trying to intimidate him into withdrawing it.” ECF No. 12 ¶ 10. According to Hensley, McCaulley and Bainey “run their mouths to defendant Vicklund who then goes to other inmates to get them to harm Plaintiff if he doesn't withdraw it.” Id. ¶ 11. Defendants also told Hensley that “they are marking in [his] file” about the prior lawsuit “to get [him] harmed no matter where [he goes].” Id. ¶ 15.
In his response brief, Hensley supplies some additional factual detail. He articulates that these events occurred while he was housed on the Mental Health Block at SCI-Houtzdale after he filed a § 1983 action against Bainey and McCaulley in Hensley v. McCaulley, Case No. 3:21-cv-184-SPB-RAL. ECF No. 41. He states that “McCaulley and Bainey told Vicklund to do whatever he could to get [him] to withdraw the suit.” Id. When threatening him failed, they “put in to have [Hensley] transferred to a higher security facility (SCI Huntingdon).” Id. Due to “family and friend ties” between staff members, the staff at SCI Huntingdon continued to retaliate against Hensley in an undisclosed manner. Id. Hensley ultimately ended up being assaulted by another inmate, Gerald Weaver. Id. Although it is not entirely clear, Hensley implies that Weaver assaulted him at the direction of staff members acting at the behest of McCaulley and Bainey. Id.
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. 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. 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. 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. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). 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.”).
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. 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. Analysis
To establish illegal retaliation for engaging in protected conduct, a plaintiff must allege that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). An “adverse action” is one that would “deter a person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). To be actionable, the adverse action “need not be great” but “must be more than de minimis.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012).
In his complaint, Hensley states that he experienced unlawful retaliation in the form of threats and coercion after filing a lawsuit against McCaulley and Bainey. He also alleges, in conclusory fashion, that Vicklund tried to get other inmates to harm Hensley because of the lawsuit. It is well-settled, however, that “threats alone do not constitute retaliation.” Burgos v. Canino, 358 Fed.Appx. 302, 306 (3d Cir. 2009) (affirming dismissal of retaliation claim “based on unfulfilled threats”); Winkelman v. Hose, 2017 WL 2991467, at *4 (W.D. Pa. July 14, 2017) (“The Third Circuit has repeatedly held that verbal threats alone do not constitute adverse action for the purposes of establishing a prima facie retaliation claim.”). Rather, “[a]bsent any allegation of physical harm, the defendants' verbal threats do not amount to a constitutional violation.” Booth v. King, 228 Fed.Appx. 167 (3d Cir. 2007).
In his opposition brief, Hensley offers, for the first time, the argument that Defendants subjected him to a retaliatory prison transfer and urged staff at that institution to order another inmate to physically attack Hensley. These incidents are not referenced anywhere in Hensley's pleading. It is axiomatic that a complaint “may not be amended by the briefs in opposition to a motion to dismiss.” Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal marks and citation omitted); Bracken v. Cty. of Allegheny, 2017 WL 5593451, at *2 (W.D. Pa. Nov. 21,2017) (“A pleading may not be amended by a brief in opposition to a motion to dismiss.”). Nor are factual averments in briefs the type of “evidence” that can defeat a properly supported dispositive motion. Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). Consequently, the new information provided in Hensley's opposition brief cannot be relied upon to salvage his retaliation claim.
That said, the Court of Appeals for the Third Circuit has repeatedly instructed that 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). Although Hensley's allegation of an inmate assault at another institution has only a tenuous connection to the Defendants in this case, the Court cannot conclusively state that the incident referenced in Hensley's brief might not support a different outcome. Accordingly, amendment in the instant case would not be futile. Hensley should be granted leave to file an amended complaint within a specified time following dismissal that incorporates his argument that staff members, at the direction of Defendants, orchestrated an inmate assault in response to Hensley's lawsuit. Hensley is encouraged to supply as much detail as possible and is reminded that his amended complaint “must be complete in all respects. It is a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.” Williams v. Ferdarko, 2018 WL 3653272, at *1 n. 1 (W.D. Pa. Aug. 1, 2018) (quoting Young v. Keohane, 809 F.Supp. 1185, 1189 (M.D. Pa. 1992)).
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendant's motion to dismiss [ECF No. 26] be granted, but without prejudice to Hensley's ability to file a curative amendment within a reasonable time following the adoption of this Report and Recommendation.
IV. 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 constitute a waiver of 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).