Opinion
3:22-CV-150-SPB-RAL
07-19-2024
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. 45
RICHARD A. LANZILLO, CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion to Dismiss filed by Defendants Jonathan McCaulley, Jason Bainey, and B. Vicklund [ECF No. 45] be granted in part and denied in part.II. Report
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).
A. Background
For purposes of this motion, the following factual allegations are accepted as true. Prior to the events underlying this action, Plaintiff Joseph Hensley filed a federal civil rights lawsuit at 3:21-cv-184. A review of the docket in that case indicates that it was filed on October 20, 2021, and culminated in a dismissal with prejudice. Id. at ECF No. 124. Thai caise shared two common Defendants with this one: Jonathan McCaulley, the Unit Manager of the Mental Health ECF No. 45. Block at SCI-Houtzdale, and Jason Bainey, a Therapeutic Activities Worker on the same block. Id.
According to Hensley, McCaulley and Bainey “were not happy” when he filed 3:21-cv-184. ECF No. 44 ¶ 8. They took a copy of the complaint to Vicklund and instructed him to do “everything in his power to make the suit disappear.” Id. Several other inmates later told Hensley that “they were being paid to assault [him] until [he] withdrew 3:22-cv-l 84.” Id.
In mid-September of 2022, Defendants transferred Hensley to another institution, SCI-Huntingdon, which was “a higher security and more violent jail.” Id. Defendants arranged the transfer because having other inmates threaten to assault Hensley “wasn't working.” Id. While at SCI-Huntingdon, another inmate, Weaver, assaulted Hensley, stating “this is for the lawsuits on Houtzdale.” Id
Hensley's pleading includes a host of other allegations with no apparent connection to the Defendants in this case. For example, he alleges that:
D.O.C. staff always lie for each other as they are like family to each other. On 11/18/23 CO's told inmates I was transferring on 11/22 that it was best to assault me on the bus. They told them spitting on me was easiest but they could kick me too.Id. He similarly alleges that Department of Corrections staff at several different institutions are encouraging inmates to harm him and preventing him from receiving medical treatment. The targets of these allegations are entirely unclear. To the extent that they appear to be directed at non-defendants or attributed to unknown individuals, they will be disregarded.
Based on the foregoing, Hensley contends that Defendants violated his First Amendment right to be free from unlawful retaliation by engaging in a campaign of “intimidation” in response to his federal lawsuit. Defendants have moved to dismiss all claims, see ECF No. 45, and Hensley has filed a response. ECF No. 50. Defendants having filed a reply, see ECF No. 51, this matter is ripe for review.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kostv. 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, it 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.”).
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 of his 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 can be granted, it must 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”).
C. Analysis
To state a claim for retaliation in violation of the First Amendment, a plaintiff must allege facts to support 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)). Retaliatory motive can be inferred 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. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
Hensley's complaint alleges two forms of retaliation: threats and intimidation, and a retaliatory transfer to a more dangerous institution. Each will be addressed in turn.
1. Intimidation
Hensley first contends that Defendants pressured him to withdraw his prior lawsuit by issuing verbal threats and encouraging other inmates to harm him. To the extent that his claims are based on verbal threats alone, it is well-settled 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).
The assault by Weaver presents a closer call. In dismissing a prior version of Hensley's complaint, this Court noted that “Hensley's allegation of an inmate assault at another institution has only a tenuous connection to the Defendants in this case.” See ECF No. 42 at 6. Despite the additional facts alleged in Hensley's subsequent amended pleading, this remains largely true. The assault took place almost two years after Hensley engaged in the protected activity at issue, at a completely different institution, under the watch of prison officials with no apparent connection to Bainey, McCaulley, or Vicklund. The lack of an apparent link between the protected conduct and the assault would ordinarily mandate dismissal. Critically, however, Hensley also avers that, while assaulting him, Weaver stated, “this is for the lawsuits on Houtzdale.” This statement, if credited by a jury, would provide direct evidence of a causal connection between Hensley's lawsuit and Weaver's assault. Hensley also describes Weaver as “one of the defendants!”] pets.” ECF No. 44, ¶ 8. Although tenuous, this allegation is minimally adequate to infer some connection to the Defendants. Accordingly, the Court is constrained to deny Defendants' motion to dismiss as to this issue.
2. Retaliatory transfer
Hensley next contends that Defendants “put [him] in for a transfer to a higher security and more violent jail” because he refused to withdraw his prior lawsuit. Courts have acknowledged that, “under some circumstances, a prison transfer may constitute an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights.” Chruby v. Bearjar, 2018 WL 4537404, at *12 (M.D. Pa. Aug. 27, 2018). A review of the caselaw suggests that such transfers typically involve an objectively punitive factor; for example, the loss of parole, displacement from loved ones, or financial penalty. See, e.g., Rauser, 241 F.3d at 333 (transfer caused inmate to be “denied parole, transferred to a distant prison where his family could not visit him regularly, and penalized financially”); Williams v. Wetzel, 2020 WL 583983, at *8 (M.D. Pa. Feb. 6, 2020) (prison transfer was adverse action where it “punitively detach[ed] Plaintiff from his loved ones and/or visitation” and affected his parole recommendation). In contrast, a transfer to a prison that is simply “more disagreeable,” or has “more severe rules,” does not ordinarily give rise to a constitutional violation. Meachum v. Fano, 427 U.S. 215 (1976).
Hensley's allegations fall into the latter category. Although he generally avers that SCI-Huntingdon is more violent than other institutions, there is no evidence that his transfer to that institution deprived him of a more favorable or preferred status. To the extent that he accuses officials at that institution of “frivolously writing him up” and turning a blind eye to the threat of assault from another inmate, none of those officials have been named as defendants in this action. Nor has Hensley drawn a causal connection between those officials and the Defendants in this case.
Hensley contends that an inmate named Weaver threatened to assault him on several occasions at SCI-Huntingdon, but that officials and medical personnel at that institution “did nothing.” ECF No. 44.
Similarly, Hensley has failed to allege a causal link between his protected activity and the purportedly retaliatory transfer. See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). Hensley filed his first lawsuit on October 20, 2021, but was not transferred to SCI-Huntingdon until September 2022, almost one full year later. The timing of this transfer is insufficient, on its own, to establish causation. See, e.g., Escanio v. United Parcel Serv., 538 Fed.Appx. 195, 200 (3d Cir. 2013) (period of roughly three weeks between protected activity and adverse action, without more, was not unduly suggestive of retaliatory motive); Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (three-week period between protected activity and adverse action was insufficient, without other evidence, to establish required causal link). See also Williams, 2020 WL 583983, at *9 (noting that periods of seventeen days, three weeks, seven weeks, and between one and three months had each been deemed insufficient to establish causation) (citing Burt v. Lane, 2017 WL 4681807, at *9-10 (M.D. Pa. Apr. 4, 2017)). Hensley has not alleged any other facts, beyond his conclusory accusation that Defendants' intimidation attempts “weren't working,” to suggest that his transfer was otherwise motivated by retaliatory animus. For each of these reasons, Hensley's retaliatory transfer claim must be dismissed.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss [ECF No. 45] be granted in part and denied in part. Defendants' motion is denied with respect to Hensley's claim that Defendants directed Weaver to assault him in response to his prior lawsuit. Defendants' motion should be granted in all other respects.
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, 488F.3d 187 (3d Cir. 2007).