Opinion
Civil Action 22-352E
05-28-2024
OMAR JACKSON, Plaintiff, v. RANDY IRWIN, Facility Manager, JASON K. KUNDICK, Captain of Security; LISA FISCUS, Disciplinary Hearing Examiner; KYLE BAUER, Correctional Officer 1, Defendants.
Re: ECF No. 27
J. Nicholas Ranjan, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Plaintiff Omar Jackson (“Plaintiff'), an inmate incarcerated at the State Correctional Institution at Forest (“SCI-Forest”), filed this action arising out of allegations that he was improperly confined to the restricted housing unit (“RHU”) in retaliation for sending an email. ECF No. 25.
Presently before the Court is a Motion to Dismiss filed by Defendants Randy Irwin (“Irwin”), Jason K. Kundick (“Kundick”), Lisa Fiscus (“Fiscus”), and Kyle Bauer (“Bauer”) (collectively, “Defendants”). ECF No. 27. For the following reasons, it is respectfully recommended that the Motion to Dismiss be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Allegations
a. Plaintiffs email to Oliver Holmes
Plaintiff is an inmate at SCI-Forest. On April 28, 2022, he sent the following email to Oliver Holmes (“Holmes”), a person who advocates for inmates.
In a grievance attached to his Complaint, Plaintiff refers to this individual as “Olivia” Holmes and describes her as his fiancee. ECF No. 25-1 at 4.
Baby girl, good morning. In case you forgot, can you google that info that I gave you: “Prisons Foundation, Legal Mail, 2512 Virginia Ave., NW, #58043, Washington, DC 20037”. I want to make sure that if I become a member can they get me out of this dump? See if they have a phone number, or email address. These crackers are losing their mind up here. They have a new Unit Manager who says that its like babysitting a bunch of two year olds, because we don't want to [b]e oppressed. If I don't get out of here I will [b]e in the hole very soon. So I am trying to avoid the eventual. TTYL.ECF No. 25 ¶ 13; ECF No. 25-1 at 1.
b. Disciplinary charges
Based on Plaintiffs email to Holmes, Defendant Kundick filed a misconduct charge against Plaintiff for “threatening an employee or their family with bodily harm” and “threatening another person.” ECF No. 25-1 at 2. As a result, Plaintiff was placed in punitive segregation in the RHU. ECF No. 25 ¶ 14.
Two hours after he arrived in the RHU, Defendant Bauer served Plaintiff with notice of the misconduct report. In serving notice, however, Bauer improperly failed to include the DC-141, Part 2(A) “Inmate Request for Representation and Witness Form” and the DC-141, Part 2(c) “Hearing Supplement, Inmate Version, and Witness Statement Form,” which are required to be served with a misconduct report under Pennsylvania Department of Corrections' (“DOC”) policy. Id. ¶¶ 15-16.
On May 2, 2022, Defendant Fiscus conducted a disciplinary hearing on these charges. Id. ¶ 17. Before the hearing, Plaintiff made several requests: (1) that Kundick be called as a witness; (2) that the hearing be continued until Plaintiff received proper service of the misconduct and to allow him an opportunity to obtain evidentiary support; (3) that a copy of his email to Holmes be produced at the hearing; and (4) that Fiscus watch video footage of Bauer improperly serving him with notice of the misconduct. Id. ¶¶ 17-18.
Fiscus refused Plaintiffs request to call Kundick as a witness, saying that the staff report provided a “full picture” of the charges and evidence. Id. As a result, the only evidence at the hearing was Defendant Kundick's written report, Plaintiff s email, and Plaintiff s testimony. Id. ¶21.
Plaintiff was adjudicated guilty as to the charge of “threatening another person,” but the second charge related to threatening an employee was dismissed. ECF No. 25-1 at 3. Fiscus sanctioned Plaintiff to 15 days in disciplinary custody. ECF No. 25 ¶ 22.
Plaintiff pleads that he received a written disposition after the hearing that stated, only, “guilty as charged based on staff statements.” ECF No. 25 ¶ 25. However, the written disposition is attached to his Complaint and does not include this statement. ECF No. 25-1 at 3.
c. Grievances/appeals
Plaintiff alleges that prison officials denied him access to a grievance form in the RHU until at least 15 days after the incident occurred. Id. ¶ 25.
On May 19, 2022, Plaintiff submitted a DC-135A Inmate Request to Staff to grievance coordinator L. Reeher (“Reeher”) regarding his concerns over the DC-ADM 801 policy and lack of time extension for him to bring claims related to SCI-Forest officials' intentional interference. Reeher informed Plaintiff that he could submit a late grievance, and that it would be considered. Id.
On May 23, 2022, Plaintiff filed a grievance regarding events relevant to his claims. ECF No. 25-1 at 4. The grievance was denied on the merits by C. Carter on June 16, 2022. Id. at 8. Plaintiff appealed from the initial grievance response. On July 18, 2022, Defendant Irwin upheld this decision on the merits on appeal. Id. at 7. Plaintiff then appealed to the Secretary's Office of Inmate Grievances and Appeals, and the decision was again upheld on the merits on final appeal. Id. at 8.
2. Legal Claims
Based on these allegations, Plaintiff brings two claims. Count I is a claim for retaliation under the First Amendment. Id. ¶¶ 27-38. Count II is a claim for violating Plaintiff s right to due process under the Fifth and Fourteenth Amendments. Id. ¶¶ 39-51.
3. Procedural History
Plaintiff began this action on November 25, 2022, by lodging a complaint without moving for leave to proceed in forma pauperis (“IFP”) or paying the filing fee. ECF No. 1. Plaintiff later moved for leave to proceed IFP. ECF No. 5. The Court entered a Deficiency Order on January 13, 2023. ECF No. 6. After Plaintiff cured these deficiencies, the Court granted Plaintiff IFP status on April 3, 2023, and his Complaint was filed on the same date. ECF Nos. 7 and 8.
Defendant moved to dismiss Plaintiffs claims. ECF Nos. 18 and 19. Plaintiff then filed the operative Amended Complaint. ECF No. 25. Based on the amended pleading, the Court denied Defendants' original Motion to Dismiss as moot. ECF No. 26.
On August 10, 2023, Defendants filed the instant Motion to Dismiss and Brief in Support as to Plaintiffs Amended Complaint. ECF Nos. 27 and 28. Plaintiff filed a Brief in Opposition to the Motion to Dismiss. ECF No. 41.
The Motion to Dismiss is now ripe for consideration.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' 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 set forth as factual allegations. Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265,286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings 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); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds}', see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim . .. they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. First Amendment Retaliation Claim (Count I)
Defendants move to dismiss Plaintiffs First Amendment retaliation claim in Count I. To establish a prima facie claim for retaliation under the First Amendment, Plaintiff must show (1) that “the conduct which led to the retaliation was constitutionally protected”; (2) “he suffered some ‘adverse action' at the hands of the prison officials” that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Hom, 241 F.3d 330, 333 (3d Cir. 2001) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). If Plaintiff makes this initial showing, “the burden then shifts to the prison official to prove that the same decision would have been made absent the protected conduct for reasons related to a legitimate penological interest.” DeFranco v. Wolfe, 387 Fed.Appx. 147, 154-55 (3d Cir. 2010) (citing Rauser, 241 F.3d at 334).
In support of the Motion to Dismiss, Defendants argue that Plaintiff fails to state a claim on which relief can be granted. As to the first element, Defendants argue that Plaintiff did not engage in any constitutionally protected conduct because there is no constitutional right for inmates to access email. Defendants also argue that because Plaintiff made a threat, he would have been placed in punitive segregation regardless of any protected conduct. ECF No. 28 at 4-5.
In response, Plaintiff asserts that he has a First Amendment right to communicate with his friends and family, and email can be used for this purpose. Plaintiff argues that he was engaged in constitutionally protected activity when he emailed Holmes to share his concerns about oppressive conditions at the prison, so that a prison advocacy group could investigate those conditions. While the United States Supreme Court has held that “true threats” are not protected conduct, Plaintiff argues, his email did not contain any “true threat.” ECF No. 41 at 1, 3-11.
Upon review, the Motion to Dismiss should be denied as to Count I. Defendants only challenge the first element of Plaintiffs prima facie case, arguing that Plaintiff was not engaged in constitutionally protected activity because there is no constitutional right to email. Plaintiff does not claim that his use of email itself was constitutionally protected activity, however; he alleges that he was retaliated against based on the content and recipient of his email. Because Defendants do not specifically brief whether Plaintiffs underlying speech was constitutionally protected, the Motion to Dismiss should be denied on this basis.
As for Defendants' argument they still would have made the same decision based on the alleged threat in Plaintiff s email, it is premature to reach this finding based solely on the pleadings. Given Plaintiffs plausible claim of retaliatory action, Plaintiff should be granted an opportunity to develop the record on this point. For these reasons, the Motion to Dismiss should be denied as to Plaintiffs First Amendment retaliation claim.
2. Fifth and Fourteenth Amendment Due Process Claim (Count II)
Defendants also move to dismiss Plaintiffs claim for violating his due process rights under the Fifth and Fourteenth Amendments. In support of the Motion to Dismiss, Defendants argue that Plaintiff does not state a claim for violating his due process rights because he was afforded a hearing on the misconduct, even though he was not entitled to one. Defendants assert that Plaintiff was not owed any process, given that his fifteen-day confinement in the RHU did not implicate any protected liberty interest. ECF No. 28 at 6-7.
In response, Plaintiff argues that Defendants misunderstand his claim. He does not contend that his disciplinary custody implicated any protected liberty interest; he alleges that the misconduct violated his due process rights because it was retaliatory. Plaintiff also argues that the disciplinary proceedings violated his due process rights because the charges were not supported by “some evidence,” as required. ECF No. 41 at 11-15.
Upon review, the Court should deny the Motion to Dismiss as to Plaintiffs Fourteenth Amendment due process claim. The United States Court of Appeals for the Third Circuit has recognized that “[p]rison disciplinary proceedings may . . . constitute a denial of due process in the context of a civil rights action under § 1983 when they are instituted for the sole purpose of retaliating against an inmate for his/her exercise of a constitutional right.” Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002); see also Bond v. Home, 553 Fed.Appx. 219, 224 (3d Cir. 2014). “Even if the discipline is initiated in retaliation for a protected act, however, due process is satisfied where the plaintiff has an opportunity to confront and challenge the retaliatory misconduct reports.” Cooper v. Pa. Dep't of Corr., 756 Fed.Appx. 130, 135 (3d Cir. 2018) (citing Smith, 293 F.3d at 653).
In this case, Plaintiff alleges that Defendants brought false misconduct charges in, retaliation for his constitutionally protected conduct. Plaintiff may have nevertheless had the opportunity to “confront and challenge the retaliatory misconduct reports” through a misconduct hearing and the grievance process. At this preliminary stage and given Plaintiffs alleged inability to present certain evidence at his misconduct hearing, however, the parties should be granted an opportunity to develop the record as to this claim. Accordingly, the Court should deny the Motion to Dismiss as to Plaintiffs Fourteenth Amendment due process claim.
The Court should, however, dismiss Plaintiffs Fifth Amendment due process claim. “[T]he Fifth Amendment's due process clause only protects against federal governmental action,” and Defendants are not federal actors. Watts v. Tretinick, No. 07-8254, 2008 WL 4279808, at *8 (W.D. Pa. Sept. 16, 2008).
Under 28 U.S.C. § 1915(e)(2)(B)(ii), the Court may sua sponte dismiss this claim based on Plaintiffs failure to state a claim.
3. Failure to Exhaust Administrative Remedies
Defendants also contend that Plaintiffs claims should be dismissed based on his failure to exhaust administrative remedies. The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that a prisoner exhaust available administrative remedies before filing an action challenging prison conditions or experiences. Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner, confined in any jail, prison or correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. Thus, the benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219.
As the United States Court of Appeals for the Third Circuit has explained:
The PLRA requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford v. Ngo, 548 U.S. 81, 88,126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016).
While exhaustion of administrative remedies is mandatory under the PLRA, “[a] prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not ‘available'” to the inmate. Ross v. Blake, 578 U.S. 632, 636 (2016). “The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such remedies as are ‘available.'” Id. at 648 (quoting § 1997e(a)). In other words, “the exhaustion requirement hinges on the ‘availability' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642. “[T]he ordinary meaning of the word ‘available' is ‘capable of use for the accomplishment of a purpose,' and that which ‘is accessible or may be obtained.'” Id. (quoting Booth v. Chumer, 532 U.S. 731,737-38 (2001)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Booth, 532 U.S. at 738).
“The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). “But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” Id. (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 (10th Cir. 2011)).
In support of the Motion to Dismiss, Defendants argue that Plaintiff needed to file a grievance within 15 working days under DOC policy. Because he did not file a grievance until May 23,2022-more than 15 working days after he emailed Holmes and was placed in the RHU- he did not comply with this procedure. Defendants dispute Plaintiffs claim that he could not obtain a grievance in the first fifteen days, arguing that grievance forms are, in fact, available in the RHU. ECF No. 28 at 7-16.
In response, Plaintiff argues that he sufficiently pleads that administrative remedies were unavailable to him. He also argues that prison officials waived any procedural objections based on timeliness because they considered his grievance on the merits. ECF No. 41 at 16-18.
Upon review, the Motion to Dismiss should be denied on this basis. Although Defendants now object to Plaintiffs grievance as untimely, prison officials at SCI-Forest considered and rejected Plaintiffs grievance and appeals at every level on the merits. When “an inmate's allegations ‘have been fully examined on the merits' and ‘at the highest level, they are, in fact, exhausted.” Rinaldi v. United States, 904 F.3d 257, 271 (3d Cir. 2018); see also Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) (“[W]hen a state treats a filing as timely and resolves it on the merits, the federal judiciary will not second-guess that action, for the grievance has served its function of alerting the state and inviting corrective action.”). Therefore, the Court should deny the Motion to Dismiss based on Plaintiffs failure to exhaust his administrative remedies.
Defendants may, however, assert other arguments in support of Plaintiff s failure to exhaust, if appropriate, based on the record at summary judgment.
4. Official Capacity Claims
Defendants request that the Court dismiss Plaintiff's claims against them in their official capacities because these claims are barred by Eleventh Amendment immunity. ECF No. 28 at 1112.
In response, Plaintiff argues that his official-capacity claims are not barred by the Eleventh Amendment because he seeks prospective and declaratory relief to prevent further violations of his and others' rights. ECF No. 41 at 19.
The Eleventh Amendment generally precludes private individuals from bringing suit against a state, or one of its agencies, in federal court. Sheffer v. Ctr. Cnty., No. 4:18-cv-2080, 2019 WL 2621836, at *4 (M.D. Pa. May 23,2019) (citing U.S. Const. Amend. XI; Pennhurst State Sch. & Hosp, v. Halderman, 465 U.S. 89 (1984)). This is a jurisdictional bar, which applies regardless of the relief sought, including claims brought in equity. Id. (citing Pennhurst, 465 U.S. at 100).
In an official-capacity suit against individual defendants, as here, the entity of which the defendant is an agent is the real party in interest. Kentucky v. Graham, 473 U.S. 159, 169 (1985). As a result, claims against state officials in their official capacities for damages are treated as suits against the state and are barred by the Eleventh Amendment. Christ the King Manor, Inc, v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013); Nelson v. Com. of Pa. Dep't of Pub. Welfare, 244 F.Supp.2d 382, 391 (E.D. Pa. 2002).
Such immunity is not absolute, however, and is “subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc, v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
Upon review, the Court should dismiss Plaintiffs claims against Defendants in their official capacities. Eleventh Amendment immunity bars these claims, and no exception to immunity applies. Plaintiff brings his claims under 42 U.S.C. § 1983. “The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa.C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983.” O' Harav. Ind. Univ. of Pa., 171 F.Supp.2d 490, 495 (W.D. Pa. 2001). Although there is an exception for prospective injunctive and declaratory relief, Plaintiff does not plead any ongoing constitutional violation. Accordingly, the Motion to Dismiss should be granted as to Plaintiffs claims against Defendants in their official capacities.
5. Lack of Personal Involvement
Finally, Defendants move to dismiss Plaintiffs claims against Defendants Irwin and Bauer based on their lack of personal involvement. In a civil rights claim, as here, individual government defendants must have personal involvement in the alleged wrongdoing and “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. ” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'don other grounds, Taylor V. Barkes, 135 S.Ct. 2042 (2015) (quoting Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)); see also Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014). “Rather, state actors are liable only for their own unconstitutional conduct.” Barkes, 766 F.3d at 316.
Although supervisors cannot be held liable pursuant to a theory of respondeat superior, the United States Court of Appeals for the Third Circuit has identified “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Id.
First, a supervisor may be personally liable under § 1983 if he ‘“participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced' in the subordinate's unconstitutional conduct.” Id. (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, a supervisor-defendant is liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting A.M. ex rel. J.M.K. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
In support of the Motion to Dismiss, Defendants argue that Plaintiff s claims against Irwin and Bauer should be dismissed because he does not sufficiently plead their personal involvement in any underlying wrong. ECF No. 28 at 14-15. Defendants contend there is no evidence Irwin or Bauer were aware of the underlying incident. Bauer simply notified Plaintiff of the misconduct, Defendants argue, and Irwin was a supervisor who later denied Plaintiff s administrative appeal. Id.
In response, Plaintiff contends that Bauer was personally involved by improperly serving him with a false misconduct report. Because Bauer did not provide the appropriate forms, Plaintiff argues, he could not properly request witnesses and documentary evidence at his hearing. ECF No. 41 at 23. As for Irwin, Plaintiff argues that he had a duty to investigate upon receiving notice of Plaintiff s due process violations and can be held liable for failing to do so. Id. at 24.
a. Claims against Irwin
Upon review, the Court should grant the Motion to Dismiss based on lack of personal involvement as to Irwin. Plaintiff alleges that Irwin is the Facility Manager at SCI-Forest. ECF No. 25 ¶ 4. Irwin denied Plaintiffs grievance appeal after Plaintiff had completed his disciplinary custody sanction. Id. ¶ 24; ECF No. 25-1 at 7.
Plaintiff was sanctioned to 15 days of disciplinary custody on May 2,2022. ECF No. 25-1 at 3. He filed his initial grievance more than 15 days after this decision. Id. at 4.
If the only claim is that the defendant was involved with the handling of Plaintiff s grievances and appeals, the law is well established that “the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.” Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept. 12, 2017). Thus, Irwin's after-the-fact involvement in the grievance process does not support any viable claim.
Plaintiff also does not plead facts to support a claim against Irwin in his supervisory capacity. There are no allegations that Irwin participated in violating Plaintiff s rights, directed others to violate them, or as the person in charge, had knowledge of and acquiesced in any underlying misconduct. Plaintiff also does not point to Irwin's responsibility for any policy that caused a violation of his constitutional rights. Accordingly, the Motion to Dismiss should be granted as to Irwin.
b. Claims against Bauer
As for Bauer, the Court should also dismiss Plaintiffs claims based on lack of personal involvement. Plaintiff does not allege that Bauer was personally involved in the alleged retaliatory misconduct or hearing. Although Bauer allegedly failed to provide certain forms required under DOC policy, a failure to follow DOC policy, alone, does not amount to a constitutional violation. Bell v. Sorber, No. 23-cv-0825, 2023 WL 3182930, at *4 n.8 (E.D. Pa. May 1, 2023).
D. CONCLUSION
For the reasons discussed, it is respectfully recommended that the Court should grant in part and deny in part Defendants' Motion to Dismiss, ECF No. 27. The Motion to Dismiss should be granted as to Plaintiff s: (1) Fifth Amendment due process claim (Count II); (2) claims against Defendants in their official capacities; (3) claims against Irwin; and (4) claims against Bauer. The Motion to Dismiss should be denied in all other respects.
“If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Accordingly, the Court should grant leave to amend to the extent Plaintiff can cure the deficiencies above. Because Defendants are not federal actors, however, leave to amend should not be granted as to Plaintiffs Fifth Amendment claim.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.