Opinion
1:20-cv-00194-SPB-RAL
11-04-2021
WESLEY POLLARD, SR. Plaintiff v. SUPERINTENDENT MICHAEL CLARK, et al., Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
ECF NO. 17
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Defendants' Motion to Dismiss Plaintiffs Complaint be GRANTED. It is further recommended that Plaintiff be allowed to file an Amended Complaint as to certain claims, the deficiencies of which may be cured by additional factual allegations. .
II. Report
A. Introduction
Plaintiff Wesley Pollard, Sr. (Pollard), representing himself, commenced this civil rights action against thirteen employees of the Pennsylvania Department of Corrections (DOC), .
including employees of the State Correctional Institution at Albion (SCI-Albion), where he is currently incarcerated. The Court granted his motion to proceed in forma pauperis and docketed his Complaint. ECF No. 6. Pollard claims that the Defendants violated his rights guaranteed under the United States Constitution in three ways: the Defendants retaliated against him in violation of the First Amendment because he pursued “Z-code status” to avoid having a cellmate; they housed him in conditions of confinement that violated the Eighth Amendment's proscription against cruel and unusual punishment; and they deprived him of due process of law as guaranted by the Fourteenth Amendment regarding his custody in the Restricted Housing Unit (RHU), the investigation of his grievances, and the alleged fabrication of prison records. ECF No. 8.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343.
The Defendants have filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss Pollard's Complaint for failure to state a claim and a supporting brief. ECF Nos. 17, 18. Pollard has filed a brief in opposition. ECF No. 24. The motion is ripe for disposition.
B. Allegations of the Complaint
Pollard's Complaint does not include numbered paragraphs or separate counts. His factual summary is interspersed with legal citations and summaries of other cases. As a result, he often does not distinguish between the events at issue in his case and those that occurred in the cases he cites in support of his Complaint. He pleads generally that all Defendants are responsible for every deprivation of a constitutional right raised in his Complaint and frequently fails to distinguish conduct among the various individuals. Despite the generalized nature of Pollard's pleading, the undersigned has endeavored to identify the legal claims implicated by his allegations and to determine the Defendant or Defendants against whom each claim is asserted.
The Court accepts the following factual allegations in Pollard's Complaint as true for purposes of the Defendants' motion to dismiss. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). For approximately four years, Pollard has been confined successively to the restricted housing units (RHU) of three DOC correctional institutions: SCI-Benner, SCI- Dallas, and SCI-Albion. ECF No. 8, p. 7. He remained in SCI-Benner's RHU for around twenty-three months. Id., p. 8. DOC officials transferred Pollard from custody in SCI-Benner's RHU to SCI-Dallas' RHU on September 25, 2019. Id., p. 8. Pollard remained in SCI-Dallas' RHU for ninety days when, on December 19, 2019, DOC officials transferred him to SCI-Albion's RHU. Id., p. 8. ECF No. 8. Pollard alleges he has been held in each RHU and transferred from prison to prison “for no legitimate penological reason, but to punish Plaintiff or retaliate against Plaintiff, for pursuing Z-code status, ” which would allow him to be housed in a cell without a cellmate. Id., p. 7. Pollard's Z-code status was removed while he was housed at SCI-Benner. Id., p.9.
Pollard complains of the following conditions of his confinement: “[t]he transfers, (24) twenty-four hour lockdown, the abuse & harassment, (6) six months denial of showers & outdoor air and exercise, food occasional (sic) being denied, deprivation of mental health treatment.” Id., p. 9. Pollard further alleges that ‘‘Sergeant Watson and Officers [ ] Froehlich, Rosenberg, Boyd, and Fox, Feakleas wilfuly, intentionally, personly retaliated against Plaintiff (sic), ” by “refusing and denying Plaintiff showers, yard, and basic hygiene items.” Id., p. .13. He provides no dates and little to no details or circumstances regarding this conduct. However, he appears to focus on Sergeant Watson as the Defendant who instigated or directed the retaliatory conduct, alleging that “for (6) six months Sergeant Watson, has denied to put Plaintiff, on the list for shower, yard and razor.. .by being the ranking officer, he implored correction officers Froehlic[h], Rosenberg, Boyd, Feakleas and Fox, the officer's whom escort to shower, yard, and pass razor, to carry out his retaliation tactics against Mr. Pollard.” Id., p. 20. Pollard also alleges that he “was confined for 23 hours a day in a cell roughly 50 feet square and deprived of personal property as well the ability to work, attend educational and vocational programs, associated with other prisoners, attend outdoor recreation in a congregate setting with the ability to engage in sports and other congregate recreational activities, attend meals with other prisoners, attend religious services.” Id., p. 25.
Pollard filed two grievances about these matters: Grievance # 845240 on January 15, 2020, and Grievance # 858675 on March 28, 2020. Id., p. 13; ECF No. 8-1, pp. 2, 14. Pollard seeks compensatory and punitive damages. Id., pp. 25-26.
C. Standard of Review
1. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kostv. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff is 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. 235-36 (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 Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 1 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts in the complaint. See California Pub. Emp. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of . the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
2. Pro Se Litigants
While the foregoing principles apply to all complaints in federal court, pro se complaints, “however inartfully pleaded, ” are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 40.4 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se complaint to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”). .
D. Analysis
1. Personal Involvement for 42 U.S.C. § 1983 Claims
42 U.S.C. § 1983 provides: “Every' person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory', subjects, or causes to be subjected, any citizen of the United States or 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.”
The Defendants have moved to dismiss all claims against Clark, Jones, Thompson, Skinner, Dube, Bednaro, and Varner for lack of personal involvement. ECF No. 18, pp. 3, 1014. A defendant in a § 1983 action “must have personal involvement in the alleged wrongs to be liable and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Saisi v. Murray, 822 Fed.Appx. 47, 48 (3d Cir. 2020) (quoting Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations removed)). It is the plaintiffs burden to “show that each and every defendant was ‘personal[ly] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. Sept. 14, 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). Allegations that broadly implicate multiple defendants without delineating individual conduct are legally insufficient. See Van Tassel v. Piccione, 608 Fed.Appx. 66, 69-70 (3d Cir. 2015).
Pollard seeks to hold Clark, Jones, and Thompson liable for the actions of other Defendants because these three were “responsible for supervising [the] unit.” ECF No. 8, p. 11. However, the mere fact that these three Defendants were “supervisors” or had supervisory authority, standing alone, cannot support liability under § 1983. Hepler v. Wetzel, 2019 WL 1923004, at *5 (W.D. Pa. Apr. 30, 2019) (citing Capone v. Marinelli, 868 F.2d 102, 106 n.7 (3d Cir. 1989)). This is because “[l]iability may not be imposed under § 1983 on the traditional standards of respondeat superior.” Id. Thus, the supervisory status of Clark, Jones, and Thompson, standing alone, does not support a claim against them under § 1983. See Iqbal, 556 U.S. at 677 (“In a § 1983 suit...[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”).
But “two theories of supervisory liability” are available under § 1983 upon a proper factual showing. See Ivy v. Wetzal, 2021 WL 4479721, at *5 (W.D. Pa. Sept. 30, 2021) (slip copy) (quoting Santiago v. Warminster Tp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)). First, “supervisors can be liable if they ‘established and maintained a policy, practice or custom which directly caused [the] constitutional harm.”' Id. (quoting Santiago, 629 F.3d at 129 n.5 (quotation omitted)). Pollard's Complaint does not allege any facts to support this theory of supervisory liability. Under the other theory, a supervisor may be held liable when “he or she participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” Santiago, 629 F.3d at 129 n.5 (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Cir., 372 F.3d 572, 586 (3d. Cir.2004)). Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990).
In his Complaint, Pollard alleges that Clark, Jones, and Thompson, “failed to ‘prevent abuses' by SCI-Albion prison staff after being duly notified by Plaintiff and that [they] allowed, permitted and condoned the harassment and abuse of Plaintiff by RHU prison officials.” ECF No. 8, p. 10. He also alleges that Clark, Jones, Thompson, Captain Skinner, Lt. Bednaro, Lt., Dube, and Chief Grievance Officer D. Varner are responsible “for failing to intervene” to stop the alleged constitutional violations even though he informed them orally or through the grievance process. Id., p. 26. Pollard's Complaint does not provide any dates, substance, or circumstance to support his allegation that he notified these Defendants of any ongoing or prospective unconstitutional behavior. He likewise does not state by what means he notified any of these Defendants, such as whether he did so in person, by letter, grievance, or other method. In this context, if he provided only after-the-fact notice of some alleged civil rights violation, this would not support any recipient's personal involvement or supervisory liability in the prior violation. See Enlow v. Beard, 2013 WL 5332139, at *5 (W.D. Pa. Sept. 23, 2013) (“Plaintiff has not shown personal involvement on the part of the Defendants to whom he allegedly sent inmate request slips informing them of the inappropriate bunk transfer.”); Hill v. Fisher, 2010 WL 6004059, at *9, (M.D. Pa. Nov. 10, 2010) (dismissing retaliation claim because “submitting a grievance or request slip about a discrete incident that has already happened does not raise a reasonable inference of personal involvement on the part of the defendant to whom the grievance or request slip is submitted.”). And a single conversation about another person's violation of rights is far from the personal involvement necessary to state a constitutional claim. See, e.g., Palmer v. Watterson, 2021 WL 640637, at *5 (W.D. Pa. Jan. 29, 2021), report and recommendation adopted sub nom. Palmer v. Waterson, 2021 WL 633430 (W.D. Pa. Feb. 18, 2021) (citing Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020)) (mere allegation that plaintiff spoke to defendants on various occasions does not show personal involvement in alleged misconduct). Pollard's Complaint alleges insufficient facts to elevate either theory of supervisory liability above the speculative level as to any Defendant.
Pollard's misplaced reliance on Lavender v. Lampert highlights the lack of personal involvement of Clark, Jones, Thompson, Skinner, Bednaro, Dube, and Varner in any actionable conduct alleged in his Complaint. 242 F.Supp.2d 821 (D. Or. 2002). In Lavender, the court denied a motion to dismiss claims against a prison superintendent for lack of personal involvement where the prisoner plaintiff notified him on five specific dates about the lack of medical treatment he was receiving and the definable harm that lack of care was causing him, but the superintendent failed to respond adequately to this notice. Id., at 840. The court reasoned that the plaintiff s allegations supported that the superintendent knew the facts and “failed to act to prevent further violations, ” which sufficiently pled personal involvement. Id. (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.”)). Unlike in Lavender, Pollard has not alleged facts to support an inference that Clark, Jones, Thompson, Skinner, Bednaro, Dube, or Varner were on notice of any prospective or ongoing constitutional violations against Pollard and failed to act to' prevent them. Consequently, Pollard has failed to support this theory of supervisory liability against any of these Defendants.
The Defendants also correctly argue that Clark, Varner, Jones, Thompson, Dube, and Bednaro's participation in the grievance process cannot support personal involvement for purposes of § 1983. See Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement.”). Information learned through “the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Stuart v. Lisiak, 645 Fed.Appx. 197, 200 (3d Cir. 2016) (holding that a prison nurse lacked personal involvement when she declined to intervene in an inmate's treatment, despite receiving the inmate's grievance claiming that the treatment was deficient); Courts have routinely dismissed civil rights claims under § 1983 against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g., Hoopsickv. Oberlander, 2020 WL 5798044, at *2-(W.D. Pa. Sept. 29, 2020) (defendant upholding denial of plaintiff s grievance); Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015) (senior prison officials' participation in administrative appeal process); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (no personal involvement under § 1983 “[i]f a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred.”). Likewise, in this case, Pollard's claims against Clark, Varner, Jones, Thompson, Dube, and Bednaro fail to the extent they are based on the involvement of these Defendants in the grievance process.
Finally, the Complaint alleges no facts involving Defendant Skinner. Therefore, all claims against Skinner must be dismissed.
This analysis means that all claims against Clark, Varner, Jones, Thompson, Dube, Bednaro, and Skinner must be dismissed for lack of personal involvement. That leaves six Defendants to discuss: Watson, Froehlich, Rosenberg, Boyd, Feakleas, and Fox. Whether the Complaint states a claim against these Defendants is addressed below.
2. Conditions of Confinement
Construed liberally, Pollard's Complaint can be read to assert an Eighth Amendment conditions of confinement claim pursuant to § 1983. The Complaint alleges, “SCI-Albion (RHU) Restricted Housing Unit, AM Sergeant Watson and Officers (COs) Froehlich, Rosenberg, Boyd, and Fox, Feakleas willfully, intentionally, personally retaliated against Plaintiff, ... . refusing and denying Plaintiff showers, yard and basic hygiene items.” ECF No. 8, p. 13 (spelling errors corrected). His only elaboration is as follows: “For (6) six months Sergeant Watson, has denied to put Plaintiff, on the list for showers, yard and razor... by being the ranking officer, he implored correction officers, Froehlic[h], Rosenberg, Boyd, Feakleas, and Fox; the officers whom escort to shower, yard an[d] pass razor, to carry out his retaliation tactics against Mr. Pollard.” ECF No. 8, p. 20. Pollard does not allege that he suffered any harm as a result.
Under the Eighth Amendment, prison officials must provide humane conditions of confinement by ensuring that inmates receive adequate food, clothing, shelter, and medical care, and “take reasonable measure to guarantee the safety of the inmates.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). To state a claim for violating the Eighth Amendment, “a plaintiff must show a sufficiently serious objective deprivation, and that a prison official subjectively acted with a sufficiently culpable state of mind, i.e., deliberate indifference.” Tillman, 221 F.3d at 418 (citations omitted). Thus, “extreme deprivations are required to make out a conditions-of-confinement claim, ” see Hudson, 503 U.S. at 9, although, “[s]ome conditions of confinement” insufficient on their own to establish a claim may violate the Constitution “when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d Cir. 2019) (quoting Wilson, 501 U.S. at 304, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Like his claims against Clark, Varner, Jones, Thompson, Dube, Bednaro, and Skinner, Pollard's claims against Froehlich, Rosenberg, Boyd, Feakleas, and Fox fail because he has not alleged facts to support an inference that they participated in any alleged deprivation of his rights. Pollard's general averment that these Defendants collectively had some role in denying him showers, yard, and hygiene items at unspecified times are not sufficient to plead that they played an affirmative part in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). See also Theron v. Cty. of York, 2012 WL 425259, at *3 (M.D. Pa. Feb. 9, 2012) (“Alleging a mere hypothesis that an individual defendant had personal knowledge or v involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement.”). His failures to state which Defendant committed each deprivation and to allege facts to support the personal involvement of each Defendant doom his claims. See, e.g., Colon v. Anglikowski, 2020 WL 5107551, at *2 (W.D. Pa. Aug. 31, 2020). Because group pleading does not establish personal involvement, this claim must be dismissed. See, e.g., Glaesener v. City of Jersey City, 2021 WL 4206297, at *3 (D.N.J. Sept. 15, 2021) (slip copy)., Second, Pollard's general allegations that Watson deprived him of showers, yard, and hygiene items also fail to state a claim. “[R]easonable access to safe bathing...constitute[s] a component of civilized living....” Clauso v. Bonds, 2021 WL 960876, at *9 (D.N.J. Mar. 15, 2021) (quoting Partelow v. Massachusetts, 442 F.Supp.2d 41, 50 (D. Mass. 2006)). Here, however, Pollard does not allege that the unspecified denials of showers and hygiene items caused him to suffer any harm. Compare Clauso, 2021 WL 960876, at *9 (“a reasonable juror could conclude that denying Plaintiff access to showers for seventeen days in summertime, causing a skin condition, violates basic human dignity.”) with Fortune v. Hamberger, 379 Fed.Appx. 116, 122 (3d Cir. 2010) (per curiam) (finding that fifteen days without shower did not violate the Eighth Amendment when plaintiff did not “suffer[ ] any harm as a result of the denial of additional showers”). See also Thomas v. City of Philadelphia, 2021 WL 1614411, at *6 (E.D. Pa. Apr. 23, 2021) (“Notably, Thomas does not allege that he suffered any harm as a result of his inability to shower for this limited duration [fifteen days] or that he lacked any other means of washing himself or maintaining some level of hygiene.”).
In addition, Pollard's only allegation is that Watson “denied to put Plaintiff, on the list for showers, yard and razor” during a six-month period, not that he was completely deprived of these things for that time. Pollard does not allege the frequency he was denied a shower or hygiene items during the six-month period. See Bprndt v. Wenerowicz, 2016 WL 6612441, at *4 (E.D. Pa. Nov. 8, 2016), affd, 698 Fed.Appx. 673 (3d Cir. 2017) (denial of showers and out of cell exercise for twenty-eight days did not violate Eighth Amendment when plaintiff did not suffer ill effects and had access to running water in his cell).
Pollard's claim that Watson denied him congregate yard suffers from the same problem: he does not allege any facts to support an inference that these denials caused him any material harm. “There is no question that meaningful recreation ‘is extremely important to the psychological and physical well-being of the inmates.'” Peterkin v. Jeffes, 855 F.2d 1021, 1031 (3d Cir. 1988) (quoting Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)). But allegations that one corrections officer refused to put someone on the list for yard does not, standing alone, support an inference that the inmate was denied meaningful recreation. Pollard's Complaint alleges that he was denied “congregate” yard and recreation, not that he was denied all meaningful access to the yard and recreation. Even a minimal provision of time for exercise and recreation has been held to satisfy constitutional requirements. See, e.g., Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (forty-five minutes of exercise per week not constitutionally infirm). Pollard fails to allege facts to support an unconstitutional deprivation of yard, recreation, or any other condition of confinement.
Defendants argue in their brief, “in reviewing the attached grievances and various documents in his Complaint, it is clear that any Eighth Amendment violation must fail as it is clear that Plaintiff consistently does not follow institution rules, and any denial of shower, yard, or hygiene items appear to be his own doing.” ECF No. 18, p. 3. Defendants note that Plaintiff included an SCI-Albion RHU handbook as an exhibit. Id. While the Court may consider “exhibits attached to the complaint” on a motion to dismiss, Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010), the Court cannot accept all statements in the attached documents and, in any event, the fact that an inmate may regularly break DOC rules does not foreclose an Eighth Amendment conditions of confinement claim.
As discussed infra, Pollard should be permitted to file an amended complaint to the extent he can allege additional facts to support his Eighth Amendment claim. In determining whether he is aware of facts adequate to support amendment, Pollard should be mindful of the principles discussed in this Report and that “extreme deprivations are required to make out a conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
3. Retaliation
Pollard alleges that the Defendants denied him showers, yard, and other privileges in retaliation for his refusal to accept a cellmate and his pursuit of a “Z-Code” (single inmate cell) status. Pollard argues that he engaged in protected conduct when he sought reinstatement of “his Z-code that was removed at SCI-Benner.” ECF No. 8, p., 9. The Defendants argue that Pollard has not engaged in protected conduct because he “has no constitutionally protected interest in a particular inmate classification, nor does he have a constitutionally protected interest in not being transferred from one SCI institution to another.” ECF No. 18, p. 3.
To state a retaliation claim, a plaintiff must plead that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). An “adverse action” is one that would “deter a person of, ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). “Government actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.” Id. at 224 (internal quotation marks and citation omitted). The retaliatory conduct “need not be great in order to be actionable” but must be “more than de minimus” . McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (internal quotations omitted).
For purposes of the present motion, Pollard's allegation that he protested the removal of his Z-Code status and sought its reinstatement supports the “protected activity” element of his retaliation claims. Sep Walker v. Regan, 2015 WL 3604175, at *7 (E.D. Pa. June 9, 2015) (“Taking Mr. Walker's allegations as true, the Court can also reasonably infer that Mr. Walker's alleged speech concerning his opposition to the removal of his ‘Z code' was constitutionally protected speech.”) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”)). Regarding the second element of the claim, denying an inmate access to yard and showers can amount to an adverse action when such deprivations are not de minimis. See Ashford v. Hawkinberry, 2017 WL 4269493, at *12, *14 (W.D. Pa. Sept. 26, 2017) (yard); Sears v. Mooney, 2019 WL 6726839, at *7-8 (M.D. Pa. Dec. 11, 2019) (showers). Likewise, “under some circumstances, a prison transfer may constitute an adverse action, ” Chruby v. Bearjar, 2018 WL 4537404, at *12 (M.D. Pa. Aug. 27, 2018), report and recommendation adopted 2018 WL 4507599 (M.D. Pa. Sept. 19, 2018); Rauser, 241 F.3d at 333 (adverse action to be “denied parole, transferred to a distant prison where his family could not visit him regularly, and penalized financially”).
Pollard's retaliation claims fail, however, due to the insufficiency of his allegations to support the causation element. Pollard once again asserts in conclusory fashion that the Defendants collectively retaliated against him “for no legitimate penological reason, but to punish Plaintiff or retaliate against Plaintiff, for pursuing z-code status.” ECF No. 8, p. 7. He does not identify to whom he protested the removal of his Z-Code or requested its reinstatement, whether any of the Defendants could grant Z-Code status, or when he made his request relative to the alleged adverse actions taken against him.
The causation element of the retaliation claim is established only if the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Anderson v. Davila, 125 F.3d 148, 163 (3d Cir. 1997). To support this last element, “a plaintiff must come forward with more than ‘general attacks' upon the defendant's motivations....” Miskovitch v. Hostoffer, 721 F.Supp.2d 389, 396 (W.D. Pa. 2010) (citing Crawford-El v. Britton, 523 U.S. 574, 600 (1998)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected, activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). That said, ‘“[t]hese are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.'” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Kachmarv. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).
Pollard has alleged no facts that would represent direct evidence of causation or any dates, timeline, or temporal proximity of events that would support an inference of causation. Pollard's Complaint does not identify any instance when he engaged in protected activity or any date when a Defendant denied him a shower, yard, or razors. Absent such factual allegations, no reasonable inference of causation can be drawn. Lauren W., 480 F.3d at 267.
Additionally, Pollard's retaliation claims suffer from the same deficiency as his conditions of confinement claim based on denial of showers, yard, and razors: he has failed to specify which Defendant committed which of the alleged adverse actions at issue. Instead, he again resorts to broadly attributing actions to the Defendants as a group without any supporting factual allegations. Like his other claims, Pollard's retaliation claim cannot be sustained by such conclusory allegations. Rode, 845 F.2d at 1207 (3d Cir. 1988); Glaesener, 2021 WL 4206297, at *3 (group pleading is impermissible). For these reasons, Pollard's retaliation claims must be dismissed.
4. Due Process
The Defendants' motion to dismiss requests dismissal of Pollard's Complaint in its entirety. See ECF No. 17, p. 2; ECF No. 17-1. Although the Defendants did not address the merits of Pollard's Fourteenth Amendment claim in their brief, that claim is subject to the Court's screening obligation under the Prison Litigation Reform Act because Pollard is a prisoner seeking redress “from a governmental entity or officer or employee of a governmental entity....” 28 U.S.C. § 1915A. Pursuant to this screening obligation, the undersigned recommends that the Court dismiss Pollard's Fourteenth Amendment claim.
In pertinent part, § 1915A directs that the Court “shall.. .dismiss the complaint, or any portion of the complaint, if the complaint.. .is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(2). This screening obligation “is not excused even after defendants have filed a motion to dismiss” or motion for summary judgment. Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 587-89 (W.D. Pa. 2008). In performing this mandatory screening function, a district court applies the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Banks, 568 F.Supp.2d at. 588.
Pollard's due process claim should be dismissed because he has failed to plead the personal involvement of any Defendant. See Rode, 845 F.2d at 1207. His Complaint alleges that Defendants denied him unspecified due process protections regarding his time in solitary confinement, transfers between prisons, and the conditions of those prisons' RHUs. ECF No. 8, pp. 4-7. He provides no “allegations of personal direction or of actual knowledge and acquiescence” by any Defendant concerning the decisions to transfer him among prisons or to hold him in the RHU. Rode, 845 F.2d at 1207. Absent such allegations,, his due process claim regarding his transfers and custody in the RHU must be dismissed, albeit with leave to amend.
Pollard's due process claim also fails as a matter of law to the extent it is based on his allegations that certain Defendants refused to check video footage of his cell to verify his complaints and improperly responded to his grievances. ECF No. 8, pp. 16, 19-20. These allegations do not support actionable personal involvement of a Defendant. As noted, courts have routinely dismissed civil rights claims under § 1983 against prison officials whose only knowledge of the alleged violation stemmed from their participation in the grievance process. See, e.g., Trainor v. Wellpath, 2021 WL 3913970, at *9 (W.D. Pa. Sept. 1, 2021) (citations omitted). See also Peay v. Fisher, 2017 WL 1128451, at *13 (M.D. Pa. Mar. 24, 2017) (“failure of a prison official to provide a favorable response to an inmate grievance is not a federal constitutional violation.”) (citation omitted), affd, 763 Fed.Appx. 248 (3d Cir. 2019).
Similarly, Pollard's conclusory allegation that unnamed Defendants fabricated records is mere “naked conjecture” that cannot establish personal involvement. ECF No. 8, p. 20. Bartnicki v. Scranton Sch. Dist., 2021 WL 267045, *5 (M.D. Pa. Apr. 1, 2021). Pollard's due process claims should be dismissed.
5. Leave to Amend .
When dismissing a complaint, “a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Because the principal deficiencies in each of Pollard's claims arise from his failure to allege facts sufficient to support each claim, it cannot be said that a curative amendment would be futile. Accordingly, each of his claims should be dismissed without prejudice. Pollard should be granted a reasonable time to file an amended complaint, subject to the dismissal of this action with prejudice should he fail to file one.
Given the nature of the errors in his pro se Complaint, Pollard is reminded that any amended complaint must describe how each defendant violated his rights. He must show personal involvement in the alleged wrongdoing by each Defendant. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). His pleading should explain to the Court what happened by specifically describing each Defendant's behavior or action and how that behavior or action-or lack thereof-caused the alleged violations. He should include dates or timeframes, when known.
Pollard should avoid citing and discussing caselaw in his recitation of facts as these are unnecessary and improper in a complaint and create confusion between the facts upon which he bases his claims and those of the cases he cites. Citations to and discussion of caselaw are appropriate in a response to a motion to dismiss a complaint but not in the complaint itself.
An amended complaint “must be complete in all respects. It is a new pleading which' stands by itself as an adequate complaint without reference to the complaint already filed 1” Williams v. Ferdarko, 2018 WL 3653272, at *1 n.l (W.D. Pa. Aug. 1, 2018) (quoting Young v. Keohane, 809 F.Supp. 1185, 1189 (M.D. Pa. 1992)). In plain terms, this means that Plaintiff should not simply submit the new facts or claims that he wishes to add to this litigation and request that they be added to his prior complaint. Rather, he must draft a full and complete amended complaint containing both his prior facts and claims and those that he wishes to add.
Pollard must state any actual injury he has suffered. Simply stating that the Defendants violated his civil rights is insufficient. He must also describe for the Court the relief he is seeking in this lawsuit.
E. Conclusion
For these reasons, it is respectfully recommended that the Court grant the Defendants' Motion to Dismiss at ECF No. 17 and dismiss Pollard's Complaint without prejudice. Pollard should be granted leave to file an amended complaint within a reasonable time.
III. Notice
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 shall have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Plaintiffs failure to file timely objections will constitute a waiver of his appellate rights.