Opinion
Civil Action 22-128
11-14-2022
ISAIAH RANSOME Plaintiff, v. STEVEN LONGSTRETH, MS. SHETKA, T. JOHNSON, T. LEWIS, MR. V. SANTOYO, MR. HOWELLS, MR. TALLOT, MICHAEL ZAKEN, MS. D. VARNER, KERI MOORE, and TRACY SHAWLEY Defendants.
SCHWAB DISTRICT JUDGE
REPORT AND RECOMMENDATION
ECF No. 16
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Corrections Defendants Steven Longstreth, Ms. Shetka, T. Johnson, T. Lewis, Mr. V. Santoyo, Mr. Howells, Mr. Tallot, Michael Zaken, Ms. D. Varner, Keri Moore, and Tracy Shawley (ECF No. 16) be granted without prejudice to Plaintiff filing an Amended Complaint only as to his claim against Defendants T. Johnson, T. Lewis, Mr. V. Santoyo, Mr. Howells, Mr. Tallot for First Amendment Access to the Courts. The Motion should be granted with prejudice as to all other claims against Defendants Steven Longstreth, Ms. Shetka, Michael Zaken, Ms. D. Varner, Keri Moore, and Tracy Shawley. It is further recommended that Defendants Steven Longstreth, Ms. Shetka, Michael Zaken, Ms. D. Varner, Keri Moore, and Tracy Shawley be terminated as party defendants. Should the District Judge adopt this Report and Recommendation, it is further recommended that Plaintiff be allowed 30 days from the adoption of the Report and Recommendation to file his Amended Complaint as to the First Amendment Access to the Courts claim.
II. REPORT
A. Facts and Procedural Background
Plaintiff, Isaiah Ransome (“Plaintiff”), is currently in the custody of the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Greene (“SCI Greene”). Plaintiff initiated the present civil rights action pursuant to 42 U.S.C. § 1983, § 1985, and § 1986, by filing a pro se Complaint on January 20, 2022. ECF No. 1.
Liberally construing the pro se Complaint, Plaintiff seeks to raise numerous claims related to an alleged improper programming requirement and the confiscation and/or destruction of his property as described below. ECF No. 8, p. 1-2.
Improper Programming Requirement
Plaintiff alleges that on July 2, 2020, Defendant Shetka, the counselor for Plaintiff's block, told Plaintiff that he would be placed in the “Violence Prevention” program at SCI Greene. ECF No. 8-15. Plaintiff had previously completed the “Thinking for a Change” program at the institution and had been informed that “Thinking for a Change” encompassed violence prevention. Id. Thus, Plaintiff informed Defendant Shetka that he did not believe his enrollment in the “Violence Prevention” program was necessary or appropriate. Id. In response, Plaintiff recalls that Defendant Shekta told him that she was only placing him into “Violence Prevention” because the institution was being audited, and that if Plaintiff didn't complete the program, he would not be eligible for a transfer to an institution closer to his family in eastern Pennsylvania. Id. Defendant Longstreth was unit manager of Plaintiff's block at the time. ECF No. 8 at p. 4 ¶ 1.
Plaintiff filed a DC-135A form on July 17, 2020, in which he requested that Defendant Shetka remove him from the “Violence Prevention” program and allow his record to reflect that he had completed all necessary programming. ECF No. 8-15. This request went unanswered. Plaintiff then submitted a second form addressed to Defendant Shetka on August 12, 2020, reiterating his requests. ECF No. 8-16. Defendant Shetka provided a written response to Plaintiff explaining that “[his] correction plan was reviewed and approved by Central Office.” Id.
Confiscation and/or Destruction of Property
Plaintiff further alleges that on September 7, 2020, his cell block underwent a general search for narcotics conducted by a team of officers, K-9 dogs and handlers. ECF No 8 at p. 5 ¶ 7. Plaintiff was told that the K-9 dogs detected something in his cell, and Plaintiff underwent a body scan to confirm that he did not have any foreign objects in his body. Id. at p. 6 ¶ 10. Plaintiff claims that Defendant Lieutenant Santoyo was present when Plaintiff was escorted from his cell block to the body scanner. Id. at p. 6 ¶ 12. After the scan, Plaintiff alleges that he was locked inside a cage located in a room next to the body scanner room for 45 minutes. Id. at p. 6 ¶ 10.
When Plaintiff returned to his cell, he witnessed Defendant Johnson and another unidentified officer in the process of searching his cell. Id. at p. 6 ¶ 13. He alleges that he and his cellmate noticed that the unit's large grey trash can was placed inside his cell, and that the trash can was not taken into any other inmate's cell for the entirety of the unit search. Id.
Plaintiff was handcuffed and seated at a table outside of his cell, where he was unable to clearly see the activity inside the cell without leaning over. Id. at p. 7 ¶¶ 14-15. Plaintiff claims he witnessed Defendant Johnson roughly handling his typewriter, which was broken after the search. Id. At this point in the search, Plaintiff asserts that Defendant Johnson ordered him to lean back. Id.
At the end of the search, Plaintiff received a confiscation slip for a broken razor and a television. Id. at p. 7 ¶ 17. Plaintiff claims, however, that he was also missing most of his personal family photos and his legal documents. Id. Plaintiff asked Defendant Lieutenant Tallot to retrieve his photos and documents, but Defendant Tallot refused.
On September 28, 2020, Plaintiff filed a grievance against Defendant Johnson, and a John Doe (now identified as Defendant T. Lewis), Defendants Tallot, Santoyo, and other supervisors present when the institution's search policies were allegedly violated. Id. at 8 ¶ 20. Defendant Santoyo was assigned to investigate and respond to Plaintiff's grievance, and ultimately denied Plaintiff's grievance as frivolous. ECF No. 8-4. Plaintiff then appealed the grievance on November 13, 2020, to Defendant Zaken, the facility manager. In this grievance, he reiterated his concerns about the way the search was conducted and included an additional complaint that Defendant Shawley assigned the first grievance to an officer who was involved in the incident at issue. ECF No. 8, p. 9 ¶¶ 22-23. Defendant Zaken upheld the determination that Plaintiff's grievance was frivolous. ECF No. 8-6.
On December 20, 2020, Plaintiff submitted an appeal of the facility manager's response to Defendant Varner, the Chief Grievance Officer in the Inmate Grievances and Appeals Department of the Pennsylvania Department of Corrections. ECF No. 8, p. 9 ¶ 24. Plaintiff included an additional complaint that Defendant Zaken's response was late per the institution's grievance procedures. Id. at p. 9 ¶¶23-24. Defendant Moore, acting as the appointed designee of Defendant Varner, upheld the initial response to Plaintiff's grievance and denied Plaintiff's appeal. ECF No. 8-8. This decision served as the final decision concerning this incident. Id.
As to his legal claims, Plaintiff maintains that the improper programming requirement is an arbitrary deprivation of his liberty. ECF No. 8, p. 4 ¶ 3. Further, Plaintiff maintains that the search resulted in an improper seizure of Plaintiff's property, including his legal documents, personal photos of his deceased family members, and significant damage to his typewriter. See Id. at p. 11 ¶ 26. Plaintiff now brings his claims pursuant to 42 U.S.C. § 1983 against Defendants for alleged violations of his right to due process and various other constitutional rights. See Id. at p. 4 ¶ 3 (citing to Hewitt v. Helms, 459 U.S. 469, 476 (1983)). Plaintiff further brings his claims against the supervisory Defendants within SCI Greene pursuant to 42 U.S.C. §§ 1985 and 1986.
B. Legal Standards
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Equal Protection “Class of One”
First, in support of their Motion to Dismiss, Defendants argue that Plaintiff's Complaint fails to make out an Equal Protection claim. Plaintiff responds that he is asserting an Equal Protection “Class of One” claim because he was treated differently than other inmates because the grey trash can was placed in his cell and in no other inmates' cells during the general search.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. In order to make out an equal protection class of one claim, a plaintiff must aver facts to plausibly suggest that “(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Overly v. Garmon, 599 Fed.Appx. 42, 43 (3d Cir. 2015) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir.2006)).
Here, Plaintiff is unable to make out a plausible claim because he does not suggest that other inmates were similarly situated. Plaintiff does allege that the search was a general, annual search that is regularly conducted. He does not suggest, however, that other inmates were suspected of possessing contraband. Plaintiff specifically alleges that the K-9s detected drugs in his cell. He does not allege that the dogs detected drugs in the cells of the other inmates. Moreover, Plaintiff alleges facts that suggest a rational basis as to why the trash can was placed in his cell-to dispose of any suspected contraband they may have discovered during the search of his cell.
Therefore, this claim should be dismissed with prejudice.
This Court recognizes that the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint-regardless of whether the plaintiff requests to do so-when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Given that Plaintiff lacks an arguable basis in the law for his equal protection claim, it would be futile to allow Plaintiff to amend. Therefore, this Court is recommending that the equal protection claim be dismissed with prejudice.
Procedural Due Process-Deprivation of Property
In support of their Motion to Dismiss Plaintiff's procedural due process claim for intentional or negligent deprivation of his property, Defendants argue that Plaintiff had a meaningful post-deprivation remedy in the form of the DOC grievance process. Plaintiff responds that the grievance process was not a meaningful remedy because one of the officers named in the grievance was also involved in reviewing the grievance.
Plaintiff's allegations fail to state a claim because he had an adequate post-deprivation remedy available to protect his due process rights through administrative grievance procedures and through a tort action in state court. See Payton v. Horn, 49 F.Supp.2d 791, 795 (E.D. Pa. 1999) (holding that Pennsylvania tort law offered a remedy for prison official's unlawful deprivation of an inmate's property and therefore inmate failed to state a claim that his constitutional rights were violated), overruled on other grounds, Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002); Austin v. Lehman, 893 F.Supp. 448, 454 (E.D. Pa. 1995) (both inmate grievance procedure and state tort law action constituted adequate post-deprivation remedies); Rogers v. Mrs. Brown, Civil No. 95-7867, 1996 WL 608473, *2 (E.D. Pa. Oct. 24, 1996) (holding that both the DOC grievance procedure and tort suit in state court provide adequate post-deprivation remedies). Here, Plaintiff does not allege the absence of an adequate post-deprivation remedy. Instead, he states that he filed grievances and appealed the outcomes to final review. As such, Plaintiff admits that there was an adequate post-deprivation process available to him of which he took advantage. Because of this, the loss or destruction of Plaintiff's property fails to state a due process claim as a matter of law. See Jerry-El v. Beard, 419 Fed.Appx. 260, 263 n.1 (3d Cir. 2011) (“[T]he post-deprivation remedies available to Jerry under the prison grievance procedure and Pennsylvania law constitute adequate process.”) (citing Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008)). Accordingly, Plaintiff's procedural due process claim should be dismissed for failure to state a claim upon which relief may be granted. Any attempt to amend this claim would be futile as a matter of law.
To the extent Plaintiff is attempting to make a substantive due process claim, again, his allegations fail to state a claim because the loss or destruction of his property simply does not shock the conscience. See, e.g., United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa., 316 F.3d 392, 399-400 (3d Cir. 2003) (“[O]ur cases have repeatedly acknowledged that executive action violates substantive due process only when it shocks the conscience.”). See also Moore v. Gluckstern, 548 F.Supp. 165, 167 (D. Md. 1982) (“At worst, plaintiff alleges that the items were stolen by the guards. While such action by prison guards, if proven, would clearly be wrongful, there is nothing about the alleged incidents that could conceivably ‘shock[] the conscience' of the court. Therefore, the complaint cannot be read as alleging a violation of substantive due process rights.”). Any attempt by Plaintiff to state a claim for substantive due process violations must fail as a matter of law and any attempt to amend would be futile.
Search and Seizure pursuant to the Fourth Amendment
Defendants also move to dismiss Plaintiff's claim for violation of his Fourth Amendment rights when they searched his cell and allegedly seized his legal papers and photographs. He further complains that they damaged his typewriter. Plaintiff emphasizes that he is not complaining of a violation of a right to privacy in his cell. Instead, Plaintiff argues that he is complaining of the seizure of his property within the cell. Plaintiff's Responsive Brief, ECF No. 21 at 6.
In Hudson v. Palmer, the United States Supreme Court held that “the Fourth Amendment has no applicability to a prison cell.” 468 U.S. 517, 536 (1984). The Hudson court specifically noted in its holding that even if the prisoner's personal property was destroyed during the challenged shakedown search, the destruction would likewise not violate the Fourteenth Amendment because the Commonwealth of Virginia provided the prisoner with an adequate post-deprivation remedy. Id.; see also discussion of Fourteenth Amendment procedural due process, supra at 8-9. Hudson makes clear that the Fourth Amendment does not protect inmates from the seizure of their property. 468 U.S. at 528 n.8. See also Parrish v. Corr. Emergency Response Team, Civ. A. No. 18-4871, 2019 WL 1596337, at *3 (E.D. Pa. Apr. 12, 2019) (concluding that prisoner failed to state claim for violation of Fourth Amendment where prisoner alleged that CERT members destroyed and defaced personal property during process of transferring prisoner from one institution to another).
Therefore, Plaintiff's claims for violation of his Fourth Amendment rights relating to the search of his cell, and the seizure and destruction of his personal items should be dismissed with prejudice. Any attempt to amend would be futile as a matter of law.
First Amendment Access to the Courts
Since 1977, the United States Supreme Court has recognized that inmates have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). As the Supreme Court initially observed, this right of access to the courts is satisfied when corrections officials facilitate “meaningful” access for those incarcerated, either through legal materials or the assistance of those trained in the law. Id. at 827-28 (“[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.”). Two decades later, in 1996, the Supreme Court provided further definition and guidance regarding the scope and nature of this right in Lewis v. Casey, 518 U.S. 343 (1996). In Lewis, the Court eschewed efforts to define this right in abstract, or theoretical terms, but rather cautioned courts to focus on concrete outcomes when assessing such claims. As the court observed:
Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's . . . legal assistance program is subpar in some theoretical sense .... Insofar as the right vindicated by Bounds is concerned, “meaningful access to the courts is the touchstone,” id., at 823, 97 S.Ct., at 1495 (internal quotation marks omitted), and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the . . . legal assistance program hindered his efforts to pursue a legal claim. Although Bounds itself made no
mention of an actual-injury requirement, it can hardly be thought to have eliminated that constitutional prerequisite. And actual injury is apparent on the face of almost all the opinions in the 35-year line of access-to-courts cases on which Bounds relied, see id., at 821-825, 97 S.Ct., at 1494-1497. Moreover, the assumption of an actual-injury requirement seems to us implicit in the opinion's statement that “we encourage local experimentation” in various methods of assuring access to the courts. Id., at 832, 97 S.Ct., at 1500.Lewis, 518 U.S. at 351-52.
Thus, following Lewis, courts have consistently recognized that access-to-courts claims by prisoners require some proof of an actual, concrete injury in the form of direct prejudice to the plaintiff in the pursuit of some legal claim. See, e.g., Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997); Demeter v Buskirk, No. 03-1005, 2003 WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v. Chesney, No. 97-4983, 1998 WL 150961 (E.D. Pa. March 31, 1998).
“[P]risoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). As noted in Monroe:
Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an “actual injury”-that they lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and (2) that they have no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial of access suit.Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Importantly, Plaintiff must come forward with evidence to show that the underlying arguable claim is “more than hope,” and he must also describe the “lost remedy.” See Harbury, 536 U.S. at 416-17.
Plaintiff is thus required to allege plausible facts that he was actually injured by Defendants' alleged interference with his right to access the courts. In his response to Defendants' Motion to Dismiss, Plaintiff argues that his underlying criminal materials, including transcripts and correspondence, were taken by Defendants Lewis and Johnson, who were under the supervision of Santoyo and Howells. Plaintiff further alleges that he asked Tallot to retrieve his legal documents from the trash but Tallot refused. He contends that he is not making a denial of access to law library claim, but instead that he was unable to pursue a meritorious legal claim. Plaintiff further states that he is not required to spell out the details of the meritorious claim he has lost as a result of Defendants' confiscation of his legal materials. Plaintiff, however, must allege facts as to how he was actually injured by Defendants' confiscation of his legal materials. That is, Plaintiff must allege facts as to how the Defendants' actions hindered his ability to pursue a legal claim. See Prater v. City of Philadelphia, 542 Fed.Appx. 135, 137 (3d Cir. 2013); Laufgas v. Speziale, 263 Fed.Appx. 192, 197, (3d Cir. 2008). Therefore, Plaintiff should be given the opportunity to amend his access to the courts claim as to Defendants Lewis, Johnson, Santoyo, Howells and Tallot.
Procedural Due Process-Liberty Interest
Defendants also argue that the claims against Defendants Longstreth and Shetka asserting a liberty interest in prison programming be dismissed because courts have generally not recognized a protected liberty interest in prison programming.
In Sandin v. Conner, the United States Supreme Court rejected the view that mandatory language in prison regulations is the appropriate focus in determining the existence of a state-created liberty interest. 515 U.S. 472, 481 (1995). Instead, reasoned the Court, the proper focus is the “nature of the deprivation.” Id. The Supreme Court held that state-created liberty interests “will be generally limited to freedom from restraint which, while not exceeding the sentence . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 482. The Court determined that a prisoner's segregated confinement, although “concededly punitive . . . did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.” Id. at 485-86. Therefore, because a prisoner has no liberty interest in being free from disciplinary confinement, he has no right to due process under the Fourteenth Amendment.
Here, the DOC's failure to follow its own procedures will not support a due process claim pursuant to the Fourteenth Amendment. Under Sandin, the proper analysis in determining whether Plaintiff has a state-created liberty interest in the requirement to complete certain prison programming, is to focus on the nature of the deprivation rather than the alleged procedures of the institution. There is no question that the requirement that Plaintiff complete the “Violence Prevention” program was unexpected. But for most prisoners, the “ordinary incidents of prison life” include prison programming requirements at some time or another. That is, in making this determination, courts look to what a prisoner “may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law.” Powell v. Weiss, 757 F.3d 338, 344 (3d Cir. 2014). Because Plaintiff does not have a protected liberty interest in being required to complete prison programming, he is not entitled to the protections of due process.
Plaintiff also appears to argue a liberty interest related to the alleged threat by Defendant Shetka that if he did not complete the required programming, he would never be transferred to an institution closer to his home. The law is clear, however, that a Fourteenth Amendment liberty interest is not implicated when a prisoner prefers one state institution over another. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (“The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another.”).
Therefore, Defendants' Motion to Dismiss Plaintiff's Fourteenth Amendment due process claim related to prison programming should be granted. Any attempt to amend would be futile.
Conspiracy pursuant to §§ 1983, 1985 and 1986 relating to Prison Programming
Defendants also argue that the claims against Defendants Longstreth and Shetka for conspiracy must be dismissed because Plaintiff alleges no facts to suggest a meeting of the minds and some type of concerted activity. Instead, argues Defendants, Plaintiff's conspiracy allegations rest on mere suspicion and speculation unsupported by factual allegations.
Plaintiff alleges that these Defendants conspired to have Plaintiff complete both the “Thinking for a Change” programming and the “Violence Prevention” programming “to embezzle state/federal grant moneys[,] and with [P]laintiff's active participation[,] would further serve to allude an institutional audit ....” Complaint, ECF No. 8, pp. 4-5 ¶ 4. Plaintiff adds that Shetka threatened that Plaintiff would never be eligible to transfer to an institution closer to his home if he did not complete the “Violence Prevention” programming. Id.
In order to state a claim for conspiracy, Plaintiff is required to show “‘a combination of two or more persons to do a criminal act, or to do a lawful act by unlawful means or for an unlawful purpose.'” Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999) (quoting Hammond v. Creative Financial Planning, 800 F.Supp. 1244, 1248 (E.D. Pa. 1992)). See also Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997) (citing Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974)). A conspiracy claim requires specific allegations “which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain other action of the alleged conspirators taken to achieve that purpose.” Id. “It is not enough that the end result of the parties' independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism.” Spencer, 968 F.Supp. at 1020. Rather, there must be a showing that the alleged conspirators “directed themselves toward an unconstitutional action by virtue of a mutual understanding or agreement.” Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539 (E.D. Pa. 1982) (citing Tarkowski v. Bartlett Realty Co., 644 F.2d 1204 (7th Cir. 1980)). The United States Court of Appeals for the Third Circuit has made clear that in light of Twombly and its progeny, there must be “‘enough factual matter (taken as true) to suggest that an agreement was made,' in other words, ‘plausible grounds to infer an agreement.'” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556). The facts alleged must raise “a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.” Twombly, 550 U.S. at 557.
Here, while Plaintiff attempts to allege a conspiracy among these two Defendants to force Plaintiff to complete both programming requirements, the claims are pure speculation and do not amount to sufficient facts from which this Court could infer conspiracy. Plaintiff does not direct the Court to facts that suggest a preceding agreement. Instead, the Complaint offers only a sheer possibility that Defendants engaged in a conspiracy. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57). Any attempt to amend this claim would be futile.
Like their § 1983 claim for conspiracy, Plaintiff is unable to state a plausible claim for conspiracy pursuant to § 1985. See United Broth. of Carpenters & Joiners Local 610 v. Scott, 463 U.S. 825, 828-29 (1983). Likewise, Plaintiff's attempt to state a conspiracy claim pursuant to 42 U.S.C. § 1986 also fails because a § 1986 claim cannot exist without a viable § 1985 claim. Patterson v. City of Philadelphia, Civil Action No. 08-2140, 2009 WL 1259968, at *4 n.4 (E.D. Pa. May 1, 2009). Moreover, Plaintiff concedes that any § 1986 claim is time barred. Plaintiff's Response to Motion to Dismiss, ECF No. 21 at 10.
In an abundance of caution, Defendants also argue that, if Plaintiff is attempting to make out a civil RICO claim, that claim must also fail because Plaintiff is unable to establish RICO standing by alleging facts to demonstrate a “concrete financial loss” in the form of an “ascertainable out-of-pocket” deprivation. See Magnum v. Archdiocese of Phila., 253 F. App'x 224, 226 (3d Cir. 2007); Sarpolis v. Tereshko, 26 F.Supp.3d 407, 524 (E.D. Pa. 2014). Plaintiff offers no response and consequently, the Court assumes that Plaintiff is not attempting to make out a civil RICO claim.
Because Plaintiff is unable to allege facts to establish standing, any attempt to amend or add a RICO claim would be futile.
Eighth Amendment (legal documents, photos and typewriter)
Defendants do not move to dismiss Plaintiff's Eighth Amendment claim for destruction of his legal documents, personal family photos and typewriter. In his response, however, Plaintiff argues that he has alleged a violation of the Eighth Amendment and that this claim should be held over for trial. Although not moved upon by Defendants, the Court may address this claim sua sponte pursuant to 28 U.S.C. § 1915A(b)(1) .
A court may review a prisoner complaint against an employee of the government before docketing or as soon as practicable after docketing and may dismiss any portion of the complaint if it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1).
The destruction of Plaintiff's property does not provide a basis for a claim under the Eighth Amendment. Conditions of confinement violate the Eighth Amendment's protections against cruel and unusual punishment when the alleged conditions: (1) are “objectively, sufficiently serious” such that a “prison official's act or omission . . . result[s] in the denial of the minimal civilized measure of life's necessities” and (2) the official responsible for the challenged conditions must exhibit a sufficiently culpable state of mind,” which “[i]n prison-condition cases . . . is one of deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations and internal quotation marks omitted). The destruction of property does not constitute a sufficiently serious deprivation that would give rise to an Eighth Amendment claim. See Wongus v. Corr. Emergency Response Team, 389 F.Supp.3d 294, 301-02 (E.D. Pa. 2019) (concluding that plaintiff's allegations “that correctional facility staff violated his Eighth Amendment right to be free from cruel and unusual punishment by defacing his family photo with a swastika,” while “repugnant and detrimental to the orderly administration of a prison, and should be cause for serious disciplinary action against the responsible party,” did not “rise to the level of an Eighth Amendment violation”); Payne v. Duncan, Civ. A. No. 151010, 2017 WL 542032, at *9 (M.D. Pa. Feb. 9, 2017) (“Plaintiff's claim for destruction of property under the Eighth Amendment does not constitute a deprivation of life's necessities.”), aff'd, 692 Fed.Appx. 680 (3d Cir. 2017).
Therefore, Plaintiff's Eighth Amendment claim for destruction of his legal documents, family photos and damage to his typewriter should be dismissed with prejudice. Any attempt to amend this claim would be futile as a matter of law.
No Personal Involvement relating to Grievance Process or Responding to Complaints
Defendants also move to dismiss the claims against Defendant Tracy Shawley, former Grievance Coordinator/Superintendent Assistant at SCI Greene; Michael Zaken, Superintendent at SCI Greene; D. Varner, Chief Grievance Officer at Secretary's Office of Inmate Grievances and Appeals; and Kerri Moore, Designated Grievance Respondent at Secretary's Office of Inmate Grievances and Appeals because the only claims against them arise solely from their participation in the grievance process. The law is clear that a prison official's involvement in the grievance process is insufficient for § 1983 liability to attach. See Pressley v. Beard, 266 Fed.Appx. 216, 218 (3d Cir. 2008) (district court properly dismissed defendants who were sued based on their failure to take corrective action when grievances or investigations were referred to them). Likewise, to the extent that Plaintiff's claims express dissatisfaction with the grievance procedure itself, these claims too should be dismissed because inmates do not have a “free- standing constitutional right to an effective grievance process.” Woods v. First Corr. Medical, Inc., 446 Fed.Appx. 400, 403 (3d Cir. 2011) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (Plaintiff could not maintain a constitutional claim against defendant based upon his perception that defendant ignored and/or failed to properly investigate Plaintiff's grievances)). Therefore, these Defendants should be dismissed with prejudice as any attempt to amend would be futile.
Alleged Violations of DOC Policy
Plaintiff repeatedly alleges that Defendants failed to follow DOC policy and the Code of Ethics related to the search of his cell, and to the processing and handling of his grievances. Complaint, ECF No. 8 at pp. 5-12 ¶¶ 9-26. As discussed, supra at 13-14, violation of a facility's handbook or internal procedures does not rise to the level of a constitutional violation. See also Bullard v. Scism, 449 Fed.Appx. 232, 235 (3d Cir. 2011) (allegations that prison regulations are violated are not actionable). See also Preziosi v. Nicholson, 2:19-cv-1437, 2021 WL 4442840, at *18 (W.D. Pa. Sept. 28, 2021) (collecting cases). Therefore, Plaintiff's claims that Defendants violated DOC policies should be dismissed with prejudice. Any attempt to amend would be futile as a matter of law.
III. CONCLUSION
For the above reasons, it is respectfully recommended that the Motion to Dismiss filed by Corrections Defendants Steven Longstreth, Ms. Shetka, T. Johnson, T. Lewis, Mr. V. Santoyo, Mr. Howells, Mr. Tallot, Michael Zaken, Ms. D. Varner, Keri Moore, and Tracy Shawley (ECF No. 16) be granted without prejudice to Plaintiff filing an Amended Complaint only as to his claim against Defendants T. Johnson, T. Lewis, Mr. V. Santoyo, Mr. Howells, Mr. Tallot for First Amendment Access to the Courts. The Motion should be granted with prejudice as to all other claims against Defendants Steven Longstreth, Ms. Shetka, Michael Zaken, Ms. D. Varner, Keri Moore, and Tracy Shawley. It is further recommended that Defendants Steven Longstreth, Ms. Shetka, Michael Zaken, Ms. D. Varner, Keri Moore, and Tracy Shawley be terminated as party defendants. Should the District Judge adopt this Report and Recommendation, it is further recommended that Plaintiff be allowed 30 days from the adoption of the Report and Recommendation to file his Amended Complaint as to the First Amendment Access to the Courts claim.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.