Opinion
Civil Action No. 4:CV-06-0063.
January 25, 2006
REPORT AND RECOMMENDATION
The Plaintiff, Edward Iaccarino, an inmate at the State Correctional Institution at Huntingdon, Huntingdon, Pennsylvania, ("SCI-Huntingdon") filed this civil rights action, pro se, on January 10, 2006, pursuant to 42 U.S.C. § 1983. (Doc. 1). The Plaintiff also filed an in forma pauperis application. (Doc. 2). To date, the Complaint has not been served on the Defendants. We must preliminarily screen the Complaint.
Plaintiff indicates that he filed a grievance regarding his present claims and that the grievance process is completed. (Doc. 1, p. 1, II.).
I. Introduction.
The Prison Litigation Reform Act of 1995, (the " PLRA"), obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Specifically, § 1915(e)(2), which was created by § 805(a)(5) of the Act, provides:
Pub.L. No. 104-134, 110 Stat. 1321 (April 26, 1996). The PLRA mandates the dismissal of certain cases, including cases that fail to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2). Such dismissal is no longer discretionary.
The Plaintiff completed an Application to Proceed in forma pauperis (Doc. 2) and authorization to have funds deducted from his prison account. (Doc. 4). The Court then issued an administrative order directing the warden to commence the withdrawal of the full filing fee due the court from the Plaintiff's prison trust fund account. (Doc. 5).
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
We have reviewed the allegations of the Complaint and have determined that the Complaint is subject to dismissal as to all six (6) Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In an action brought pursuant to 42 U.S.C. § 1983, the Plaintiff must prove the following two essential elements in order to state a claim: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993).
Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).
It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in the alleged wrongs. . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).
A civil rights complaint must state time, place, and responsible persons. Id. Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2d at 1208; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam) (a mere "linkage in the prison chain of command" is not sufficient to demonstrate personal involvement for purposes of section 1983). Permitting supervisory liability where a defendant, after being informed of the violation through the filing of grievances, reports or appeals, failed to take action to remedy the alleged wrong is not enough to show that the defendant has the necessary personal involvement. Rizzo, supra. Allowing only a letter sent to an official to be sufficient to impose supervisory liability would permit an inmate to subject defendants to potential liability in any case in which the prisoner merely transmitted correspondence to the official. Id. Thus, several courts have held that "it is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations." Greenwaldt v. Coughlin, 1995 WL 232736, at *4 (S.D.N.Y. Apr.19, 1995) (citations omitted); accord Rivera v. Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y. 2000) (allegations that inmate wrote to prison officials and was ignored insufficient to hold those officials liable under section 1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct. 23, 1998) ("Receiving letters or complaints . . . does not render [prison officials] personally liable under § 1983."); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y. 1997) ("The law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish liability.") (citations omitted). The Second Circuit Court has stated that "if mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability." Walker v. Pataro, 2002 WL 664040, at *12 (S.D.N.Y. Apr.23, 2002).
In his pleading, the Plaintiff names six (6) Defendants, all of whom are alleged to be employees of SCI-Huntingdon. The Defendants are: Grace, Superintendent; Lockett, Deputy Superintendent; visit Sgt. Hoover; Hearing Examiner C. Mitchell; B.J. Hollibaugh; and Seymore, Corrections Officer ("CO"). (Doc. 1 at p. 2).
Since all of the individual Defendants are employees of the state, they are state actors for purposes of § 1983.
The Plaintiff seeks compensatory damages as well as injunctive relief in the nature of an order to reinstate his visits and to prevent harassment to him and his visitor regarding his visitor's parking in a handicap space at the prison. (Doc. 1, p. 3).
II. Standard.
When evaluating a pleading for failure to state a claim, the court must accept all material allegations of the complaint as true and construe all inferences in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976). A complaint filed by a pro se party should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10 (1980) (citation omitted).
As noted, the PLRA mandates the dismissal of cases that fail to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2).
III. Allegations of the Complaint.
The Plaintiff's claims commence on August 11, 2005, while he was incarcerated at SCI-Huntingdon, and they continue until on or about September 6, 2005. The Plaintiff alleges that on August 11, he had a visitor (Noelle) and she told Plaintiff that she was having a problem with Sgt. Hoover regarding her parking in the handicap spot at the prison since it was the major's parking spot. This incident delayed the visit with Plaintiff. Plaintiff then avers that during his visit, he and his visitor were disturbed and questioned about the visitor's parking in the handicap spot. Plaintiff alleges that he and his visitor are both disabled and have a handicap parking permit. (Doc. 1, p. 2).
Following the visit, Plaintiff states that Defendant CO Seymore issued a misconduct against him "as a retaliation for my visitor parking in handicap spot. So I not (sic) have visits. So my visitor would not come park. It is clearly discrimination for disabled." ( Id., attached handwritten continuation of statement of claim).
Plaintiff then avers that on August 15, 2005, Hearing Examiner ("HE") C. Mitchell held a disciplinary hearing and denied him witnesses and to view film. As a sanction for the conviction on the misconduct, Plaintiff received 60 days loss of visits and 60 days disciplinary segregation lock up. ( Id.).
Plaintiff states that on August 22, 2005, PRC Hollibaugh and Lockett reviewed his appeal of his disciplinary conviction and rubber stamped the conviction, upheld the sanction, and increased the loss of visit sanction to include all visits, including legal visits. ( Id.).
Plaintiff concludes by stating that on September 6, 2005, Superintendent Grace reviewed his disciplinary appeal and upheld the sanctions, and wrote a letter to Noelle telling her "no visit off visit list permanently." ( Id.).
Simply stated, Plaintiff alleges that CO Seymore filed a retaliatory misconduct against him due to Noelle's parking in a handicap spot, that HE Mitchell conducted a hearing without allowing him (Plaintiff) to present witnesses and to view an unspecified film, and that Defendants Lockett, Hollibaugh and Grace failed to properly review his disciplinary conviction appeal and refused to review his loss of visits imposed as a sanction.
As stated, Plaintiff requests the Court to order prison staff to stop interfering with his visitors by questioning whether his visitors can park in handicap spots, and he wants his lost visits reinstated. ( Id., p. 3).
The Plaintiff claims that his equal protection rights were violated by the Defendants and that he was the victim of discrimination against disabled people because he and Noelle are disabled, and Noelle was being harassed about parking in the prison handicap spot. Plaintiff asserts a retaliation claim against Defendant Seymore based on Noelle's parking in the handicap spot to prevent his visits. The Plaintiff also claims that his due process rights were violated since the hearing examiner did not allow him witnesses at his disciplinary hearing and denied him permission to view film.
We do not find that the Plaintiff has stated a due process claim as against Defendant Mitchell, since he has not implicated a liberty interest. We do not find a First Amendment retaliation claim against Defendant Seymore. We also find that the other four (4) Defendants should be dismissed for failure to state a claim against them.
IV. Discussion.
1. Claim that Defendants Grace, Lockett and Hollibaugh Erroneously Reviewed Disciplinary Conviction Appeals
The Plaintiff alleges that the stated three Defendants improperly responded to or reviewed his disciplinary conviction on the misconduct issued by Defendant Seymore. He claims that these Defendants did not properly review his appeal and simply rubber stamped the hearing examiner's decision, and that they did not afford him with satisfactory relief by reinstating his lost visits. The Plaintiff has not alleged a constitutional violation with respect to the filing of his disciplinary appeal and with respect to Defendants' improper review of it. Plaintiff merely alleges that they "refused to review rubber stamped it took 60 days D.C. all visits for 60 days . . ." ( Id., attached handwritten continuation of statement of claim). Nor does Plaintiff implicate the personal involvement of Defendants Grace, Lockett and Hollibaugh in the violation of any constitutional right merely by their denial of his disciplinary appeals and refusal to reinstate his lost visits, as discussed above.
Plaintiff does not claim to have been deprived of a due process right to an appeal procedure regarding his misconduct conviction. Rather, Plaintiff is complaining that the stated Defendants denied his appeal and upheld the imposed sanctions, and even increased his loss of visits. However, the Plaintiff fails to state any personal involvement of the stated Defendants in an illegal act. Moreover, even if the Defendants increased Plaintiff's loss of visits sanction, he had no constitutional right to any visits. See Vega v. Kyler, 2004 WL 229073, C.A. No. 03-1936, slip op. p. 5 (3d Cir. 2004) (Non-Precedential) ("it is well settled that inmates do not have a right to unrestricted visitation.") (citations omitted).
To the extent Plaintiff challenges Superintendent Grace's letter to Noelle telling her "no visit off visit list permanently" (Doc. 1, statement of claim cont., ¶ 8.) and Grace's decision that Noelle was prohibited from visiting him in prison despite being disabled and having a disabled parking permit, this is, if anything, an injury to Noelle, and Plaintiff does not have standing to challenge. See Vega, supra, at C.A. No. 03-1936, slip op. p. 5 (Court held that "[t]he fact that Grove [inmate's fiancee] was permanently prohibited from visiting any Department of Corrections facility is, if anything, an injury to Grove, which Plaintiff Vega [inmate] does not have standing to challenge."). Thus, Plaintiff does not have standing to challenge the Superintendent's prohibition against Noelle from visiting him, as he is attempting to do on her behalf in this case.
As this Court stated in Flanagan v. Shively, 783 F.Supp. 922, 934 (M.D. Pa. 1992), aff'd 980 F.2d 722 (3d Cir. 1992), cert. denied 510 U.S. 829 (1993):
Inmates have no constitutional right to visitation. Visitation is a privilege subject to revocation at the discretion of the Warden when necessary to ensure security and maintain order in the institution. Prison authorities have discretion to curtail or deny visitation if they deem appropriate, and no due process right is implicated in the exercise of that discretion.
We construe Plaintiff as alleging that CO Seymore's misconduct charge was issued as retaliation, and that the ensuing disciplinary hearing conducted by HE Mitchell violated his procedural due process rights. Plaintiff also claims that the disposition of his disciplinary conviction appeal and the failure to remove his loss of visitation sanction by Defendants Grace, Lockett and Hollibaugh violated his rights. We find that Plaintiff has failed to state a procedural due process claim against Defendants Grace, Lockett and Hollibaugh, since he fails to alleged that he was deprived of a protected liberty interest. Indeed, as discussed, Plaintiff had no liberty interest in unrestricted prison visits, and his 60 days disciplinary confinement and loss of visits do not impose atypical and significant hardships in relation to the ordinary incidents of prison life. See Vega, supra, slip op. p. 4 ("A change in prison conditions does not constitute an atypical or significant hardship if the new condition is within the range of those reasonably expected in prison." (citation omitted).
As the Court in Wesley v. Dombrowski, 2004 WL 1465650 * 7 (E.D. Pa). stated:
As an initial matter, the filing of a false or unfounded misconduct charge against an inmate does not constitute a deprivation of a constitutional right. See Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988); Flanagan v. Shively, 783 F.Supp. 922, 931-32 (M.D. Pa.), aff'd, 980 F.2d 722 (3d Cir. 1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993). There is also no constitutional right to require prison officials to investigate an inmate's grievances. Davage v. United States, No. Civ. A. 97-1002, 1997 U.S. Dist. LEXIS 4844, at * 9 (E.D. Pa. Apr. 11, 1997); see also Robinson v. Love, 155 F.R.D. 535, 536 n. 3 (E.D. Pa. 1994) (citing cases).
The law is well-settled that there is no constitutional right to a grievance procedure. See Jones v. North Carolina Prisoners' Labor Union, Inc. 433 U.S. 119, 137-138 (1977). This very Court has also recognized that grievance procedures are not constitutionally mandated. See Chimenti v. Kimber, Civil No. 3:CV-01-0273, slip op. at p. 18 n. 8 (March 15, 2002) (Vanaskie, C.J.). Even if the state provides for a grievance procedure, as Pennsylvania does, violations of those procedures do not amount to a § 1983 cause of action. Mann v. Adams, 855 F. 2d 639, 640 (9th Cir 1988), cert denied, 488 U.S. 898 (1988); Hoover v. Watson, 886 F. Supp. 410, 418 (D. Del. 1995), aff'd 74 F. 3d 1226 (3d Cir. 1995). See also Burnside v. Moser, Civil No. 04-2485, 12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even "[i]f the state elects to provide a grievance mechanism, violations of its procedures do not . . . give rise to a [constitutional] claim.") (citations omitted). Thus, even if the prison official allegedly failed to process the prisoner's grievances, no constitutional claim is stated. Burnside, supra.
Moreover, as discussed above, an allegation that an official ignored an inmate's request for an investigation or that the official did not properly investigate is insufficient to hold that official liable for the alleged violations. Greenwaldt, supra; Rivera, supra.
We find that the Plaintiff's action against Defendants Grace, Lockett and Hollibaugh in which he implicates the manner in which his disciplinary appeal was handled and their failure to reinstate his lost visits, is subject to dismissal as it does not state a constitutional violation. Therefore, the stated three Defendants should be dismissed.
2. No Claim Against Defendant Hoover.
As to Defendant Sgt. Hoover, Plaintiff only alleges that he [Defendant Hoover] told Noelle on two occasions that she could not park her car in the handicap spot since it was the major's spot. This is clearly insufficient to state any violation of a constitutional right by Defendant Hoover. Thus, Defendant Hoover should be dismissed.
3. Equal Protection Claim against Defendant Seymore.
As discussed, the Plaintiff claims that Defendant Seymore, by writing the misconduct against him due to Noelle's parking in the handicap spot and to prevent his visits, was discriminating against him for being disabled. (Doc. 1, attached statement of claim, ¶ 5). The Plaintiff alleges that this amounted to discrimination by not letting him have his visits, in that his visitor would not be able to come to the prison.
There is no Fourteenth Amendment equal protection claim or discrimination against disabled claim stated by Plaintiff. Plaintiff does not claim that any Defendant discriminated against him due to his alleged disability. Rather, Plaintiff states that his visitor was disabled and had a disabled parking permit, and despite this, she was harassed for parking in the prison handicap spot since it was the major's spot. Plaintiff also states that she was questioned regarding her disability. This does not state a Fourteenth Amendment equal protection claim.
The Equal Protection Clause does not require that all persons be treated alike, but instead, a plaintiff must show that the differential treatment to those similarly situated was unreasonable, or involved a fundamental interest or individual discrimination. Tigner v. Texas, 310 U.S. 141, 147 (1940); Price v. Cohen, 715 F.2d 87, 91 (3d Cir. 1983), cert. denied, 465 U.S. 1032 (1984). It is well-settled that a litigant, in order to establish a viable equal protection claim, must show an intentional or purposeful discrimination. Snowden v. Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986); E T Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th Cir. 1987), cert. denied 485 U.S. 961 (1988). This "state of mind" requirement applies equally to claims involving (1) discrimination on the basis of race, religion, gender, alienage or national origin, (2) the violation of fundamental rights, and (3) classifications based on social or economic factors. See, e.g., Britton v. City of Erie, 933 F. Supp. 1261, 1266 (W.D. Pa. 1995), aff'd, 100 F.3d 946 (3d Cir. 1996); Adams v. McAllister, 798 F. Supp. 242, 245 (M.D. Pa.), aff'd. 972 F.2d 1330 (3d Cir. 1992).
Plaintiff has failed to allege any facts from which it can be concluded that Defendant Seymore (or any Defendant) engaged in intentional or purposeful discrimination or that he was treated differently than similarly situated individuals on the basis of his unspecified claimed disability. The Plaintiff has not alleged that Defendant Seymore treated other inmates ( i.e., non-disabled) differently than he was treated based on his disability. Rather, the Plaintiff alleges that Defendant Seymore wanted to prevent Noelle from parking in the handicap spot in the prison lot. Plaintiff doe not allege that Seymore treated the non-disabled inmates more favorably by allowing their visitors to park in the handicap spot. Further, the Plaintiff has failed to implicate the violation of a fundamental right by Defendant Seymore, since he had no right to unrestricted visitation. See Vega, supra.; Flanagan, supra.
The Plaintiff claims that the discrimination by Defendant Seymore was to prevent his visitor from parking in the handicap spot since it was the major's spot. Plaintiff does not assert that Seymore allowed the visitors of the non-disabled inmates to remain parking in the handicap spot at the prison and that only he lost his visitation privileges as a result. Nor does Plaintiff allege that he was discriminated against due to his disability.
With respect to Plaintiff's claim that he was deprived of all of his visits for 60 days, he has failed to claim a deprivation of a protected liberty interest or violation of a fundamental right. As the Court in Vega, supra, slip op. p. 5, stated, "temporary removal of visitation privileges is certainly not outside the realm of what can reasonably be expected of ordinary prison life." Therefore, the Plaintiff's Equal Protection claim is of no merit and should be dismissed as to Defendant Seymore.
4. No Liberty Interest Regarding 60 Day Placement in DC and 60 Days Loss of Visits.
The Plaintiff claims that the Defendants violated his rights by placing him in DC (disciplinary confinement) for 60 days following the August 11, 2005 incident and misconduct. The Plaintiff states that the Defendants also violated his rights by causing him to lose all of his prison visits for 60 days.
The Plaintiff has not alleged that he had a "protected liberty interest" that was infringed by the Defendants' alleged actions. "[T]hese interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to 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." Sandin v. Conner, 515 U.S. 472, 484 (1995). "[T]he baseline for determining what is `atypical and significant' — the `ordinary incidents of prison life' — is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his conviction in accordance with due process of law." Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) quoting Sandin, 515 U.S. at 486.
The Plaintiff avers that the Defendants' conduct in part caused him to lose his prison visitations for 60 days, as well as caused him to be placed in 60 days lockup. (Doc. 1, attached statement).
In Griffin, the Court found that confinement of a prisoner in restrictive housing for fifteen (15) months did not implicate a constitutionally protected liberty interest. Based on Sandin and Griffin, the Plaintiff's Complaint as against all Defendants fails to state a claim, since the sixty (60) days disciplinary confinement did not give rise to a protected liberty interest. Further, no liberty interest is implicated by the Plaintiff because, as noted, he had no right to unrestricted prison visits. Sandin, 515 U.S. at 496; Vega, supra.; Flanagan, supra.
We also find that the Plaintiff is requesting relief in the form of Court intervention and management while he is in prison, i.e. a change in his visitation and/or security housing level in the prison. The Court will not generally interfere with prison administration matters such as the prison's decision to place Plaintiff in a particular security level. The Court should give significant deference to judgments of prison officials regarding prison regulations and prison administration. See Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002).
Moreover, the Plaintiff has no recognizable constitutional right to a particular custody status. See Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997); Vega, supra, slip op. pp. 5-6.
5. Due Process Claim against Defendant Mitchell
The Plaintiff's pleading as against Defendant Mitchell, to the extent that he claims that he was not given all of his Fifth Amendment due process rights as required by the Constitution ( i.e., witnesses and evidence at his DHO hearing), concerning the August 11, 2005 misconduct should also be dismissed.
Plaintiff's claim regarding the manner of HE Mitchell's conducting of his disciplinary hearing does not implicate a liberty interest, since 60 days disciplinary confinement is not atypical and since 60 days loss of visits does not implicate a protected liberty interest. Plaintiff does not state any liberty or property interest which was infringed by the Defendant's alleged conduct. Nor does he state how Defendants' conduct imposed an "atypical or significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin, supra. Thus, Plaintiff states no procedural due process claim against any Defendant. (Doc. 1, attached statement, ¶ 6.).
As the Vega Court stated:
To the extent that Vega advances a First Amendment claim based on the right to associate freely, the prison was well within its discretion to curb First Amendment freedoms for a period of sixty days in the legitimate penological interest of maintaining facility security and order. See Overton v. Bazzetta, 123 S.Ct. 2162, 2167 (2003). To the extent that Vega asserts a due process claim, temporary removal of visitation privileges is certainly not outside the realm of what can reasonably be expected of ordinary prison life. There is, therefore, no protected liberty interest in being free from such deprivations under Sandin. Moreover, it is well settled that inmates do not have a right to unrestricted visitation. See Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 461 (1989); Thorne v. Jones, 765 F.2d 1270, 1274 (3d Cir. 1985).
Further, Petitioner acknowledges that he was given a disciplinary hearing. The Court reviews "for the presence of `some evidence' only if there is a liberty interest. Because [Plaintiff] has shown no atypical hardship, he is not entitled to review." Vega, supra., slip op. p. 5. Thus, since our Plaintiff has not implicated a liberty interest, the Court should not consider his claim that Defendant Mitchell denied him witnesses and film at his disciplinary hearing. 6. Retaliation Claim against Defendant Seymore.
To the extent Plaintiff is challenging his disciplinary conviction, it may be Heck-barred. Plaintiff's claims against the Defendants may be barred by Heck, which precludes a § 1983 claim challenging a Plaintiff's conviction. As the Third Circuit recently stated, "[u]nder Heck, a § 1983 action that impugns the validity of the Plaintiff's underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings." Gilles v. Davis, C.A. No. 04-2542, (3d Cir. 10-25-05), slip op. 21.
Our Plaintiff claims that CO Seymore issued a retaliatory misconduct against him since Noelle parked her car in the handicap spot in order to prevent him [Plaintiff] from having visitors. As stated, Plaintiff has no constitutional right to have visitors. The adverse action as a result of the alleged retaliatory act, i.e. to prevent Plaintiff's prison visits, does not allege a protected constitutional right. The Plaintiff's proffered reason for the retaliatory conduct of CO Seymore is that Noelle parked in the handicap spot. This is not due to any conduct of Plaintiff. Nor does it implicate any constitutional right of Plaintiff.
Plaintiff does not state a First Amendment retaliation claim against Defendant Seymore. There is no claim that Seymore wrote the misconduct against Plaintiff due to the Plaintiff's exercise of a recognized constitutional right. Rather, Plaintiff alleges that Seymore wrote the misconduct due to his visitor parking in the handicap spot and to prevent him from having visits. However, Plaintiff had no right to any visit, as stated.
We find that the Plaintiff's retaliation claim as against Defendant Seymore should not proceed. The Plaintiff essentially alleges that this Defendant issued a false misconduct against him based on his visitor's parking in the handicap spot on August 11, 2005, and to prevent his visitor from coming and parking in the spot. ( Id., ¶ 5). Plaintiff avers that after being charged by Defendant Seymore, he was convicted and lost his visit privileges. ( Id.).
Plaintiff has not stated a retaliation claim against Defendant Seymore. In Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001), the Court indicated that, as a threshold matter in a retaliation case, the prisoner must show that the conduct which led to the alleged retaliation was constitutionally protected. Here, liberally construing the pro se pleading, Plaintiff fails to meet the threshold requirement of a retaliation claim. Plaintiff is construed as asserting that Defendant Seymore retaliated against him for his visitor's parking in the handicap spot, which does not implicate a constitutional right. In Rauser, the Court established a three-step analysis in evaluating a retaliation claim. "As a threshold matter, a prisoner-plaintiff in a retaliation case must prove that the conduct which led to the alleged retaliation was constitutionally protected." Id. at 333. In Rauser, the protected right was the prisoner's refusal to participate in a religious program. In this case, the Plaintiff alleges that the retaliation was based on his visitor's parking in the handicap spot, and to stop his visits and to prevent his visitors from coming to the prison and park. We find that the Plaintiff has failed to satisfy the first step in the Rauser formula with respect to Defendant Seymore. There is not constitutional right of an inmate to have unrestricted visits, and the parking by an inmate's visitor in a handicap spot without suffering retaliation does not implicate any constitutional right.
"Next, a prisoner litigating a retaliation claim must show that he suffered some `adverse action' at the hands of the prison officials." Id. We view the Plaintiff's claim that Defendant Seymore wrote a misconduct against Plaintiff due to his visitor's parking in the handicap spot and to prevent Plaintiff's visitors from coming back and parking there as the alleged adverse action. Plaintiff has not sufficiently alleged that he suffered a recognizable adverse action by Defendant Seymore as a result of his visitor's parking location. However, the conduct which the Plaintiff claims to have suffered, loss of all visits for 60 days, does not implicate a constitutional right, and it cannot form the basis of any adverse action attributable to any Defendant. The alleged reason for the retaliatory conduct performed by Defendant Seymore was not due to the exercise of any constitutionally protected right by Plaintiff.
To establish a retaliation claim, the Plaintiff must also show that there exists a causal nexus between the Plaintiff's constitutionally protected conduct and the adverse action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). We find that this nexus does not exist with respect to any Defendant.
Further, it is not alleged that the Plaintiff's exercise of a constitutional activity was a substantial or motivating factor in Defendant Seymore's issuing the misconduct against Plaintiff. Rather, Plaintiff merely alleges that the misconduct was issued to prevent his visitor from parking in the handicap spot and to prevent his visits.
Since the Plaintiff has not met the threshold requirements of a retaliation claim, and he has not sufficiently alleged a link between any of his constitutional rights ( i.e. to visitors) and an adverse action by Defendant Seymore (prevent handicap parking and his visitors from coming), his retaliation claim against this Defendant should not proceed.
The Plaintiff also claims that Defendants harassed him and his visitor. (Doc. 1, p. 3). The law is settled that the use of words, even if violent, do not constitute an assault cognizable under § 1983. See Johnson v. Glick, 481 F. 2d 1028, 1033 n. 7 (2d Cir.), cert. denied, 414 U.S. 1033 (1973); Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) ("Mere harassment . . . is insufficient to state a constitutional deprivation."); Balliet v. Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.) (`[v]erbal abuse is not a civil rights violation . . ."), aff'd., 800 F.2d 1130 (3d Cir. 1986). Thus, Plaintiff's claim of verbal harassment regarding his visitor's parking in the handicap spot does not amount to a § 1983 claim and should be dismissed.
We shall therefore recommend that this case be dismissed with respect to the due process claim against Defendant Mitchell, and that the retaliation claim against Defendant Seymore should be dismissed. Moreover, since the Plaintiff has failed to allege any constitutional or federal law violation as against the other four (4) Defendants in his Complaint, i.e., Grace, Lockett, Hoover and Hollibaugh, these Defendants should be dismissed. Further, we do not find it necessary to allow the Plaintiff to amend his pleading based on futility. See Shane v. Fauver, 2131 F.3d 113, 115 (3d Cir. 2000). Thus, we shall recommend the dismissal of all of the stated six (6) Defendants.
V. Recommendation.
Based on the foregoing, it is respectfully recommended that Defendants Grace, Lockett, Hoover and Hollibaugh be dismissed for failure to state a claim against them pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and that the First Amendment retaliation claim against Defendant Seymore be dismissed. It is further recommended that Plaintiff's due process claim against Defendant Mitchell be dismissed.