Opinion
1:20-cv-000368 (ERIE)
10-04-2021
ANTHONY DEFRANCO, Plaintiff v. OFC. ASHLEY MILLER ET AL., Defendants
REPORT AND RECOMMENDATION ECF NO. 14
HON. RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Defendants' Motion to Dismiss (ECF No. 14) be GRANTED in part and DENIED in part. It is further recommended that the Plaintiff be allowed to file an Amended Complaint as to certain claims, the deficiencies of which may be cured by additional factual allegations.
II. Background and Procedural Posture
Plaintiff Anthony DeFranco (“DeFranco”), proceeding pro se, commenced this civil rights
. action against Defendants, Officer Ashley Miller (“Miller”) and Sergeant Matthew Putman (“Putman”) (collectively “Defendants”). See ECF No. 5 (Complaint). Defendants are correctional officers at the State Correctional Institution at Albion (“SCI Albion”), the prison facility where DeFranco is incarcerated. In his Complaint, DeFranco alleges the following facts, which are accepted as true for purposes of Defendants' motion to dismiss: '
On August 29, 2020, DeFranco and other inmates were in the evening medication line to obtain prescribed medications and to have a nurse check their vitals. While waiting in line, Putman “verbally assaulted” him to goad DeFranco into a fight. DeFranco did not respond to Putman's verbal abuse and proceeded to go back to his cell and shut the door. See id. at ¶¶ 2-5. About a half hour later, Putman was stationed in the guards' area of the “Bubble” when he spoke to DeFranco in his cell through the intercom and threatened, “I'm going to get you.” See id. at ¶ 6. DeFranco responded to Putman's threat by requesting a grievance and saying he would sue Putman. See Id. Putman denied DeFranco the grievance and said, “Plaintiff would see what happens to inmates who sue.” Id. at ¶ 7. At this time, Miller also threatened DeFranco by saying she would have DeFranco moved to another unit. See id.
The next day, on August 30, 2020, DeFranco obtained a grievance form from different shift guards and filled it out with the intent to place it in the mailbox situated outside the Bubble. ECF 18 at 2. Putman and Miller were again working in the Bubble, and DeFranco wanted to covertly place the grievance in the mailbox to avoid the chance that the Defendants would remove it before it could be sent out for delivery. See id. Finding that he could not secretly deposit the grievance into the box, DeFranco placed the folded grievance into his pocket. See id.
Later the same day, Miller (with Putman as a witness) filed a misconduct charge against DeFranco based on illicit conduct he allegedly committed while he was in the shower room of the prison. See ECF 18-1 at 8. In the misconduct report, Miller alleged that DeFranco intentionally showered in a stall where the stall door was missing despite an “out of order sign” posted on the stall. Miller stated that all other shower stalls with doors were unoccupied and that DeFranco chose the stall with a clear curtain to expose himself to the female officer who was directly in view of the curtained shower stall. See id. Following this misconduct report, DeFranco was handcuffed by unnamed officers, his pockets were emptied of their contents, and the contents, including the folded grievance form, were dropped on the floor. DeFranco was then taken to confinement in the restrictive housing unit or “hole.” See ECF 18-1 ¶ 2. A hearing regarding the misconduct report pursuant to the 801-adjudication process was conducted on September 2, 2020, and it was determined that DeFranco was not guilty, and the charge was dismissed with prejudice. Subsequently DeFranco was released from the hole. See, ECF 18-1 at 9. When DeFranco returned, to his cell, he discovered that his belongings had been packed and that some were missing and/or vandalized. See Id. at 2.
On September 6, 2020, DeFranco filed a grievance stating that Defendants had filed a false misconduct report in retaliation for his having stated his intention to file a grievance and lawsuit against Putman and that Putman and M?1er had attempted to intimidate and inhibit him from filing his grievance. DeFranco's grievance requested that Putman and Miller be disciplined and/or fired and that no farther retaliation occur. DeFranco's grievance was denied on September 30, 2020. (
DeFranco appealed the denial on October 3, 2020, and the denial was upheld with the statement that "[t]here is no evidence that staff needs 'fired or disciplined' based upon the evidence we have as part of this grievance." See id. at 11-12. ‘
DeFranco's Complaint seeks compensatory and punitive damages, discharge of the Defendants as correctional officers as SCI Albion, expungement of the dismissed misconduct report ‘ * from his record, and an injunction enjoining any retaliation as a result of this lawsuit. Defendants have filed a motion to dismiss DeFranco's Complaint and a supporting brief. See ECF 14, 15, respectively. Defranco filed a Response and a brief in opposition to Defendants' motion. See ECF 17, 18, respectively. As part of his brief, DeFranco attached an exhibit containing supporting materials and several affidavits that attest to his rendition of the facts. See ECF 18-1.
III. Standard and Scope of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(6)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewic 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. See, U.S. Express Unes Eid. 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. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Pet. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Hower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555. 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/IqbalUc 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. MilbergFactors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. WarminsterTwp., 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.
When ruling upon a motion to dismiss pursuant to Rule 12(b)(6), the court must “generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 222 n.3' (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Utig., 114 F.3d 1410, 1426 (3d Ch- 1997)). A court may take, judicial notice of documents filed in other court proceedings because they are matters of public record. See Liberty Int'l Underwriters Can. v. Scottsdale Ins. Co., 955 F.Supp.2d 317, 325 (D.N.J. 2013).
Finally, because DeFranco is representing himself, the allegations in the Complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”). Thus, the court may consider facts and make, inferences where it is appropriate. But “any pleading must still contain sufficient factual allegations that, when accepted as true, ‘state a claim to relief that is plausible on its face.'” Heffley v. Steele, 2019' WL 5092127, at *4 (W.D. Pa. Oct. 11, 2019), affd, 826 Fed.Appx. 227 (3d Cir. 2020) (citations omitted). See also Bae v. Mooney, 2021 WL 816013, at *3 (W.D. Pa. Feb. 8, 2021), report and recommendation adopted, 2021 WL 808726 (W.D. Pa. Mar. 3, 2021).
IV. Discussion and Analysis
Defendants challenge the legal sufficiency of certain claims of DeFranco's Complaint. Specifically, Defendants seek dismissal of (1) all claims against them in their respective official capacities, (2) his constitutional claim based on confiscation of his personal property, (3) any claim arising from the issuance of a false or fabricated misconduct citation, (4) any claim for verbal harassment or verbal threats, (5) his “access to courts” claim, and (6) any claim under the Fifth, Eighth, or Fourteenth Amendment. In his responsive brief, DeFranco clarified his claims, stating “Plaintiff has never argued or suggested this in any manner, nor claimed an 8th or 14th Amendment violation. ... Plaintiffs claim is that the Defendant's [sic] issued the fabricated misconduct in retaliation for his protected constitutional conduct in filing a grievance on the Defendant's [sic].” ECF 17 at 2. DeFranco further stated, “To be clear, Plaintiff has brought only two (2) claims in this Action; 1) A 1st Amendment Retaliation claim for his grievance activity and, 2) The stealing/ruining of his property in Retaliation [sic] under the 1st and 5th (14th) Amendments.” Id. This Court will, address all claims raised in the Complaint, with particular attention to the two claims DeFranco specifically identifies in his responsive brief.
A. Official Capacity Claims
DeFranco has sued each Defendant in both his or her official and individual capacities. The Defendants argue that his official capacity claims against them must be dismissed because the DOC and its employees are protected by sovereign immunity under the Eleventh Amendment. The Defendants are correct in that they have immunity for official capacity claims seeking monetary damages. The Eleventh Amendment proscribes actions for money damages in the federal courts against states, their agencies, and state officials acting in their official capacities. Easkaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S.274 (1977) (state agencies); Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). The DOC, as an agency of the Commonwealth of Pennsylvania, and its agents and employees are entitled to Eleventh Amendment immunity for money damages. See Brown v. Smith, 2019 WL 2411749 (W.D. Pa. June 7, 2019). Because both Defendants in this action are DOC employees who were acting within the scope of their employment, DeFranco's claims for monetary relief against them in their official capacities should be dismissed with prejudice.
However, DeFranco's Complaint also includes a demand for injunctive relief. The Eleventh Amendment does not provide immunity for claims for injunctive or declaratory relief. Kentucky v. Graham, 473 U.S. 159, 169 n.18 (1985). “In an injunctive or declaratory action grounded on federal law, the State's immunity can be overcome by naming state officials as defendants.” Id. (citing Hnnhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ex parte Young, 209 U.S. 123 (1908)). Thus, Eleventh Amendment immunity does not provide a basis to dismiss DeFranco's official capacity claim for injunctive relief.
B. Retaliation Claims
1. Misconduct Report
DeFranco asserts that Defendants fabricated the story of his misconduct in the shower stall and submitted a false misconduct report on August 30, 2020 in retaliation for his threats to file a grievance and a lawsuit regarding Putman's alleged verbal abuse. The filing of the misconduct report caused DeFranco to be handcuffed and taken to the hole. The misconduct citation proceeded through the prison's adjudication process and was dismissed on September 2, 2020. DeFranco was released from segregated confinement after approximately three days.
Defendants assert his civil rights claim based on the foregoing should be dismissed because a false misconduct report does not support a cognizable claim under the Eighth Amendment to the U.S. Constitution. See ECF 15 at 8-9. This argument appears to misconstrue DeFranco's claim, which he asserts under the First and Fifth Amendments. See ECF 17 at 2. Indeed, DeFranco has disclaimed any intent to assert a claim under the Eighth Amendment (cruel and unusual punishment) and clarified that he is complaining of retaliation that “chilled” his First Amendment rights. See ECF 17 at 2. DeFranco's Complaint states a First Amendment retaliation claim but fails to state a Fifth Amendment claim.
A prisoner asserting a retaliation claim must allege facts demonstrating that (1) he engaged in constitutionally protected conduct; (2) prison officials took an adverse action against the plaintiff that was “sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) the existence of “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” See Umser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225) (alteration in original); Mitchell v. Hom, 318 F.3d 523, 530 (3d Cir. 2003). The allegations of DeFranco's Complaint support each of these elements. Regarding the first element, DeFranco “engaged in constitutionally protected activity when he informed prison officials of his intent to file a grievance and requested an appropriate form.” Brant v. Varano, 717 Fed.Appx. 146, 149 (3d Cir. 2017) (citing Watson v. Rozum, 834 F.3d 417, 422-23 (3d Cir. 2016)). The second element is also satisfied because federal courts in this Circuit have repeatedly found that the filing of an allegedly false misconduct which results in a prisoner being sanctioned to disciplinary confinement may reasonably deter a person of ordinary firmness from engaging in constitutionally protected activity. See e.g., Mitchell, 318 F.3d at 530 (holding that prisoner's allegation that he was falsely charged with misconducts in retaliation for filing complaints against a correctional officer • sufficiently alleged a retaliation claim); Smith v. Pennsylvania Dep't of Corr., 2011 WL 4573364, at *5 (W.D. Pa. Sept. 30, 2011). Finally, DeFranco may support an inference of causation by alleging facts to show “(1) an unusually suggestive time proximity between the protected activity and the allegedly retaliatory action; or (2) a pattern of antagonism coupled with timing to establish a causal link.” Brandon v. Burkhart, 2020 WL 10731719, at *11 (W.D. Pa. Nov. 16, 2020), report and recommendation adopted, 2021 WL 3563269 (W.D. Pa. Aug. 12, 2021); Snider v. Alvares 2020 WL 6395499, at *18 (M.D. Pa. Nov. 2, 2020). The timing of the statements and actions of the parties as alleged in the Complaint support both means of proving causation. Because the allegations of the Complaint support all three elements of a First Amendment retaliation claim, Defendants' motion must be denied as to this claim.
The Complaint, however, fails to state a claim under the Fifth Amendment. Throughout his-pleadings, DiFranco waivers among claims under the First, Fifth and Fourteenth Amendments. Defendants correctly argue that a Fifth Amendment claim is not proper in this case. The Fifth Amendment only applies to the federal government; it does not apply to states, their agencies, subdivisions, or employees. See Santos v. Secretary of D.H.S., 532 Fed.Appx. 29, 33 (3d Cir. 2013) (citing Citizens for Health v. Leavitt, 428 F.3d 167, 178 n.l 1 (3d Cir. 2005)); see also Houser v. Folino, 2015 WL 7289405, at *1 (W.D. Pa. 2015). Both Defendants are employed by the Pennsylvania Department of Corrections, a Commonwealth agency. As such, their alleged conduct does not implicate the Fifth Amendment and any attempt by DeFranco to state a Fifth Amendment claim against the Defendants fails as a matter of law and must be dismissed.
2. Confiscation and Destruction of Personal Property as Alleged Retaliation
DeFranco alleges that when he was taken to the hole, his pockets were emptied of their contents, including his completed grievance form and that when he returned to his cell after three days of confinement, his cell contents had been packed and he discovered pictures of his deceased mother and son were missing, and “many other items [were] missing or stolen, ” his “commissary was ruined as the guards put dirty soot water in the garbage bag” in which they had placed his “food items, ” and “[m]any sentimental items and papers [were] missing.” 18, Ex. 1 at 2. Although DeFranco's Complaint further alleges that guards lost, damaged, or destroyed his personal property as a further act of retaliation, it does not identify the guards who allegedly deprived him of his personal property. Indeed, it is unclear whether this allegation is made against the Defendants or guards who are currently unidentified. If the claim is against Putman or Miller, the Complaint does not allege facts to support a plausible inference that either Defendant participated in this conduct. To sustain a claim under 42 U.S.C. § 1983, DeFranco must aver personal involvement by each Defendant in the alleged wrong. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). For each responsible person, a complaint should state the time, place, and particular conduct of each alleged wrongful act. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). No “John/Jane Doe Defendants” are named in this action. Thus, the allegations regarding the loss and destruction of DeFranco's property do not support a further retaliation claim against the Defendants or any other person.
DeFranco asserts that while he currently does not know which officers destroyed or confiscated his property, he believes video surveillance recordings exist that would disclose their identities. As discussed immediately below, DeFranco has no viable procedural or substantive due process claim based on the alleged deprivation of this personal property. Any attempt to amend his complaint to state such a claim would be futile. However, if DeFranco is aware of facts to support a plausible inference that Putman or Miller personally participated in or directed the destruction of his property as a further alleged act of retaliation, he should be given the opportunity to amend his complaint to so state. In addition, if DeFranco has knowledge of facts to allow him to allege in good faith that other officers whose identities he currently does not know engaged in conduct that supports all three elements of a retaliation claim as set forth above, he should be permitted to amend to name them as “John/Jane Doe Defendants” and state such facts.
DeFranco is reminded that his pleadings are subject to the requirement of Rule 11 of the Federal Rules of Civil Procedure and that speculation does not provide a reasonable basis in fact to support a claim. Any amended complaint DeFranco may choose to file is subject to Rule 11 requirements.
C. Other Constitutional Claims Based on Deprivation of Personal Property
The Complaint also fails to state a claim under any other constitutional provision based on the loss or destruction of DeFranco's personal property. DeFranco, has no viable Fourteenth Amendment claim of deprivation of property without due process because he had meaningful postdeprivation remedies for the loss available to him. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment, if a meaningful post-deprivation remedy for the loss is available.”). Specifically, DeFranco had the right to file a grievance through the prison administrative process or to file a conversion and replevin action in state court. Accordingly, Defendants' motion to dismiss should be granted as to any Fourteenth Amendment procedural due process claim asserted in the Complaint.
D. Other Constitutional Claims Potentially Raised in the Complaint
DeFranco's Complaint appears to assert a Fourteenth Amendment claim or claims against Miller and Putman based on their alleged attempt to intimidate him from filing a grievance and acts of retaliation for threating to do so. As discussed above, DeFranco cannot maintain a procedural due process claim in this action because he had an adequate post-deprivation remedy in the administrative grievance process. This applies not only to his loss personal property but to any procedural due process claim he purports to assert. In addition, to the extent DeFranco is asserting a procedural due process claim based on his wrongful confinement in the RHU, the short period of this confinement is insufficient to trigger a liberty or property interest to support such a claim. See Sandin v. Conner, 515 U.S. 472, 478 (1995).
To the extent DeFranco seeks to assert a Fourteenth Amendment substantive due process claim based on the Defendants' alleged acts of retaliation, this claim is barred by the more-specificprovision rule. The Supreme Court adopted this rule based on its “reluctan[ce] to expand the concept of substantive due process.” County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998). Under this rule, “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997). In this case, DeFranco's retaliation claim is properly analyzed under the rubric of the First Amendment and the three-element test discussed in Rauser v. Hom, 241 F.3d 330, 333 (3d Cir.2001). .
To the extent DeFranco is asserting an independent constitutional claim based upon verbal threats or taunts, it fails as a matter of law. DeFranco's Complaint includes allegations that the Defendants verbally harassed or threatened him at various times. See ECF 5, ¶¶3-4, 6-7. These allegations do not state an independent constitutional claim because verbal threats or taunts, without more, are not sufficiently adverse to violate the Constitution. See Chruby v. Kowaleski, 534 Fed.Appx. 156, 161 (3d Cir. 2013); Dunbar v. Barone, 487 Fed.Appx. 721, 723 (3d Cir. 2012) (finding verbal threats of calling inmate a “marked man and that his days were numbered” and “few gestures of racial harassment” insufficient to support a constitutional claim); Lindell v. Wetqel, 2014 WL 3868240, at *9 (W.D. Pa. 2014) (citing Gannaway v. Berks County Prison, 439 Fed.Appx. 86 (3d Cir. 2011) (a claim of verbal harassment does not constitute an Eighth Amendment violation); Wright v. OHara, 2004 WL 1793018, at *7 (W.D. Pa. 2004) (“[w]here plaintiff has not been physically assaulted, defendant's words and gestures alone are not of constitutional merit”). Any claim by DeFranco premised on the Defendants' mere threats and taunts should be dismissed as a matter of law. V. Amendment
Defendants also argue that DeFranco's First Amendment “access to courts” claim should be dismissed. After careful review, the Court finds that the Complaint cannot be interpreted as attempting to raise such a claim. Accordingly, Defendants' arguments regarding the claim require no discussion or action by the Court.
Having determined that the Complaint fails to state certain claims against any defendant, the Court must now determine whether further amendment of that pleading would be futile. See Hockenberry v. SCI Cambridge Springs/Pennsylvania Dep't of Corr., 2019 WL 2270345, at *3 (W.D. Pa. May 28, 2019) (stating “[t]he U.S. Court of Appeals for Third Circuit has 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”).
Any attempt to amend to cure deficiencies would be futile as to the following:
(1) DeFranco's claims for money damages against the Defendants in their official capacities;
(2) DeFranco's claims under the Fifth Amendment; (3) DeFranco's procedural and substantive due process claims under the Fourteenth Amendment; and (4) any independent constitutional claim based on alleged taunts and threats by the Defendants.
Amendment should be permitted to the extent DeFranco is able to allege additional facts, subject to the requirements of Rule 11 of the Federal Rules of Civil Procedure, an additional claim of retaliation against either or both Defendants or persons to be named as new defendants, including potential “John/Jane Doe Defendants” based on the destruction of his personal property.
VI. Conclusion
For the foregoing reasons, it is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 14) be GRANTED in part and DENIED in part as follows:
• DENIED as to DeFranco's First Amendment retaliation claim against Defendants Miller and Putman for filing a false misconduct report in retaliation for DeFranco's threat to file a grievance or lawsuit against Putman; '
• GRANTED, but with leave to amend, as to the claim of First Amendment retaliation based on Defendants Miller and/ or Putman or potential John/Jane Doe Defendants' destruction of DeFranco's personal property in retaliation for DeFranco's threat to file a grievance or lawsuit against Putman;
• GRANTED, with prejudice, as to DeFranco's Fourteenth Amendment procedural and substantive due process claims;
• GRANTED, with prejudice, as to DeFranco's Fifth Amendment claim; and
,, • GRANTED, with prejudice, as to any claims asserting an independent constitutional tort based on Defendants' alleged filing of a false misconduct report, alleged taunts or threats against DeFranco, or confiscation of his personal property.
VII. Notice to the Parties Concerning Objections
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the Parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of their appellate rights. Should an amended complaint be permitted its due date will be set by the District Court.