2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-18-2015

Phillip Fantone v. Fred Latini

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 PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

No. 13-3611 

________________ 

PHILLIP LEE FANTONE, 

 Appellant 

v. 

FRED LATINI, JOE BURGER, and RON MACKEY 

________________ 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civ. No. 2-12-cv-01691) 

Honorable Cynthia R. Eddy, Magistrate Judge 

________________ 

Argued December 9, 2014 

BEFORE: VANASKIE, GREENBERG, and 

COWEN, Circuit Judges 

(Filed: February 18, 2015) 

______________ 
2 

Tarah E. Ackerman 

Thomas S. Jones 

Peter D. Laun (argued) 

Jones Day 

500 Grant Street 

Suite 4500 

Pittsburgh, Pa. 15219 

 Attorneys for Appellant 

Kathleen G. Kane 

Attorney General 

John G. Knorr, III 

Chief Deputy Attorney General 

Kemal A. Mericli (argued) 

Senior Deputy Attorney General 

Robert A. Willig 

Office of Attorney General of Pennsylvania 

564 Forbes Avenue 

Manor Complex 

Pittsburgh, Pa. 15219 

 Attorneys for Appellee 

______________ 

OPINION 

______________ 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

 Though criminal convictions followed by imprisonment 
3 

deprive defendants of their freedom, inmates nevertheless retain 

certain constitutionally protected property and liberty interests. 

Thus, the Due Process Clause in the Fifth and Fourteenth 

Amendments prohibits the federal and state governments from 

depriving an inmate of life, liberty, or property without due 

process of law.1

 In this case, we consider whether a state has 

interfered unlawfully with an inmate’s protected liberty interests 

with respect to the conditions of his confinement and the 

possibility of his parole and whether a state officer may have 

unlawfully retaliated against the inmate for exercising his 

constitutional rights.

 The Commonwealth of Pennsylvania incarcerated 

appellant Phillip Lee Fantone in 2010 in a state correctional 

institution. The Pennsylvania Board of Probation and Parole 

(the “Parole Board”) granted him parole, but, by reason of 

prison discipline proceedings filed against Fantone, the Parole 

Board rescinded that decision. Fantone subsequently brought 

this case in the District Court alleging that by their wrongful 

actions, defendants, now appellees, unlawfully caused him to be 

confined in a prison Restrictive Housing Unit (“RHU”), which, 

in turn, led the Parole Board to rescind his parole. Defendants 

made a motion to dismiss under Fed. R. Civ. P. 12(b)(6), which 

the Court granted. Fantone appeals, contending that the 

combination of the rescission of his parole and his confinement 

 

1

 See U.S. Const. amends. V, XIV. The Due Process Clauses are 

designed to protect the individual against arbitrary government 

action. See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 

2963, 2975 (1974). We are referring to the clauses in the 

singular in this opinion. 
4 

in the RHU infringed his legally cognizable liberty interests, 

thereby violating his right to due process of law. He further 

charges that defendants conspired to deprive him of these due 

process rights. Finally, he claims that correctional officer Joe 

Burger unlawfully retaliated against him by having him retained 

in the RHU after the expiration of the period of his disciplinary 

confinement because Fantone would not confess to the charges 

in the disciplinary proceedings and because he filed a grievance 

against Burger charging that Burger threatened him. 

 Perhaps the most significant legal principle leading to our 

result on this appeal is that where state law provides parole 

authorities with complete discretion to rescind a grant of parole 

prior to an inmate’s release, the inmate does not have a 

constitutionally protected liberty interest in being paroled before 

his actual release. See Jago v. Van Curen, 454 U.S. 14, 102 

S.Ct. 31 (1981). Because Pennsylvania law provides that the 

Parole Board may rescind a determination granting parole at any 

point before it is “executed”—i.e., an inmate is released—we 

determine that Fantone did not have a liberty interest in the preexecution grant of parole. Moreover, inasmuch as an inmate 

does not have a right to be confined in any particular housing 

unit in a prison, absent certain atypical and significant hardship, 

when an inmate is placed in a restrictive custody unit, his liberty 

interests have not been infringed. See Johnson v. 

Commonwealth, 532 A.2d 50, 52 (Pa. Commw. Ct. 1987). We 

therefore will affirm the District Court’s dismissal of Fantone’s 

due process and conspiracy claims, as they are based on the 

rescission of his parole and the place of his confinement. For 

the reasons set forth below, however, we will reverse the 

Court’s order dismissing his retaliation claims against Burger 

and remand that aspect of this case for further proceedings. 
5 

II. JURISDICTIONAL STATEMENT 

 The District Court had jurisdiction pursuant to 28 U.S.C. 

§ 1343(a), and we have jurisdiction pursuant to 28 U.S.C. § 

1291. 

III. STANDARD OF REVIEW 

 Inasmuch as the District Court dismissed Fantone’s 

complaint pursuant to Fed. R. Civ. P. 12(b)(6), we review all of 

its findings de novo, and, for purposes of this opinion, “accept 

the truth of all the factual allegations in the complaint and . . . 

draw all reasonable inferences in favor of [Fantone].” Revell v. 

Port Auth., 598 F.3d 128, 134 (3d Cir. 2010). 

IV. FACTUAL AND PROCEDURAL BACKGROUND 

 Pennsylvania incarcerated Fantone as a parole violator in 

2010.2

 At that time, it held him at the State Correctional 

Institution-Pittsburgh (“SCI-Pittsburgh”). In March 2012, when 

Fantone was eligible for parole, he appeared before the Parole 

Board. The Parole Board exercised its discretion to grant him 

parole, and it informed him of this decision on or about April 

18, 2012. However, in the weeks between Fantone’s parole 

hearing and the Parole Board’s decision, prison officers charged 

 

2

 We are not concerned with Fantone’s antecedent criminal 

conduct. 
6 

Fantone with “cupping” methadone and transferring it to other 

inmates. Because of these allegations, the prison officers 

transferred Fantone to the RHU. After Fantone’s transfer, 

Burger interrogated him about the methadone charges. Burger 

told Fantone that two nurses had seen him cupping his 

medication and that a surveillance video recorded this activity. 

Fantone alleges that during this interrogation, Burger threatened 

to “bury [Fantone] in this hole and you’ll never see population 

here and then I’ll have you shipped so far away you’ll never get 

a visit.” App. 46. Fantone subsequently filed a grievance 

against Burger, complaining of these threats. 

Fantone appeared before an examiner, defendant Ron 

Mackey, for a hearing on the methadone allegations. Defendant 

Lieutenant Fred Latini and Burger met privately with Mackey 

before Fantone entered the hearing room. During the hearing, 

Mackey indicated that Latini and Burger had presented credible 

statements from two confidential informants supporting the 

cupping allegations. Based on that evidence, Mackey found 

Fantone guilty of cupping his methadone and sanctioned him to 

serve 35 days in the RHU, time he already had served. This 

disposition imposed a term of disciplinary custody, which is 

distinguishable from administrative custody as disciplinary 

custody, unlike administrative custody, is imposed as a 

punishment. 

 Fantone contends that due to procedural improprieties, he 

was denied due process of law in those proceedings. He also 

alleges that during the hearing, Burger remained within earshot 

outside of the hearing room, listening to the proceedings through 

an open door. Fantone further alleges that Burger informed 

Latini of Fantone’s sentence of time served but that Latini 

nevertheless ordered Fantone to remain in the RHU on 
7 

administrative custody status until May 8, 2012. Then, as a 

condition of release from the RHU, the prison staff required 

Fantone to write a statement revoking his grievance against 

Burger, and he did so under duress. 

 On May 12, 2012, after being back in the general 

population for four days, the prison officers transferred Fantone 

again to the RHU on administrative custody status during the 

investigation of a second misconduct charge against him, this 

one relating to graffiti in his cell. The hearing on the second 

misconduct charge was continued until June 12, 2012, and until 

that time, Fantone remained in the RHU. When the hearing 

reconvened with Latini appearing as a witness, Mackey found 

Fantone guilty once again and sanctioned him to 90 days of 

disciplinary custody. Fantone contends that as he was being 

escorted back to the RHU, Burger taunted him by “flex[ing] his 

biceps with a slow robot type gait as if in victory.” App. 77. 

 Fantone contends, and we accept the contention in these 

proceedings, that these disciplinary actions led the Parole Board 

to rescind Fantone’s parole. However, Fantone successfully 

obtained dismissal of both misconduct charges on administrative 

appeal due to a lack of reliable evidence. Nevertheless, the 

Parole Board did not reinstate Fantone’s parole, and he 

remained in the RHU until the prison authorities transferred him 

to another correctional institution on November 1, 2012. We 

were told at oral argument that Fantone was not released from 

the second institution until he had served his entire term, or in 

the vernacular, had “maxed out.” 

On November 19, 2012, Fantone initiated a pro se civil 
8 

action in the District Court against Latini, Burger, and Mackey.3

 His complaint, as later amended, set forth claims for due 

process violations, conspiracy, and retaliation. Fantone 

attributed his loss of parole and confinement to the RHU to 

defendants’ unlawful actions. In addition, as we have indicated, 

Fantone asserted that Burger wrongfully retaliated against him 

because he would not confess to the methadone charge and 

because he filed a grievance against Burger. The parties agreed 

to present the case to a magistrate judge for disposition, and the 

case was assigned to Magistrate Judge Cynthia Reed Eddy. 

Pursuant to a motion by defendants, now appellees, the Court 

dismissed this case in its entirety by order of August 8, 2013, for 

failure to state a claim. In reaching its conclusion, the Court 

reasoned as follows: (1) defendants did not deprive Fantone of a 

liberty interest and thus did not infringe his due process 

protection; (2) his related conspiracy claim failed because there 

could not be a conspiracy to violate the Due Process Clause 

without a violation of the Clause; and (3) the retaliation claim 

failed because Fantone’s pleadings did not adequately claim that 

his filing of a grievance against Burger and his refusal to confess 

to the methadone allegations led to Burger retaliating against 

him. Fantone timely filed a notice of appeal, and we now decide 

the case.4

 

V. DISCUSSION 

 

3

 There originally were other defendants, but they no longer are 

parties. 

4

 We thank Fantone’s attorneys on this appeal for their fine 

representation of him on a pro bono basis. 
9 

 We are guided here by the concerns undergirding the 

liberty interests protected by the Due Process Clause. Under 

certain circumstances, states may create liberty interests with 

respect to inmates’ rights that are protected by the Clause, but 

these interests generally will be limited to freedom from 

restraint that imposes “atypical and significant hardship on the 

inmate in relation to the ordinary incidents of prison life.” 

Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 

(1995); see Bd. of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 

2415 (1987). Accordingly, though inmates do not shed all 

constitutional rights at the prison gate, “‘[l]awful incarceration 

brings about the necessary withdrawal or limitation of many 

privileges and rights, a retraction justified by the considerations 

underlying our penal system.’” Jones v. Prisoners’ Labor 

Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 2537 (1977) (quoting 

Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060 

(1948)). Discipline by prison officials in response to a wide 

range of misconduct falls within the expected perimeters of the 

sentence imposed by a court of law. 

 A. Due Process Claim: Fantone’s Combination Theory 

 Does Not Create a State-based Liberty Interest. 

The District Court properly dismissed Fantone’s due 

process claim. In his complaint, Fantone asserts that he was 

denied due process in the methadone misconduct proceedings 

that resulted in his sentence to disciplinary confinement in the 

RHU and, in turn, led to the rescission of his parole. The Court 

dismissed Fantone’s claim based on a determination that his due 

process rights had not been implicated in the misconduct 

proceedings because those proceedings resulted in such brief 

confinements to the RHU that, even when coupled with the 

rescission of the grant of parole, the proceedings did not 
10 

implicate his liberty interests. 

 The requirement that the government afford due process 

of law to the entities and individuals with whom it deals applies 

only in situations in which the governmental action implicates 

some protected life, liberty, or property interest of the entity or 

individual. In this case, Fantone contends that the implicated 

interest relates to the place of his confinement and his possibility 

of being paroled. The Supreme Court and this Court long have 

held that liberty interests “may arise from two sources—the Due 

Process Clause itself and the laws of the States.” Hewitt v. 

Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69 (1983) (citing 

Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-

40 (1976)); Asquith v. Dep’t of Corr., 186 F.3d 407, 409 (3d 

Cir. 1999). Fantone concedes that he does not have a liberty 

interest arising directly from the Due Process Clause but 

contends that the combination of his confinement in the RHU 

and the rescission of his parole infringed his state-created liberty 

interests. In short, he went from the verge of release on parole 

to being denied parole and being confined in the RHU. His 

argument includes the contention that his liberty interests were 

implicated because the rescission of his parole effectively 

lengthened his sentence. Though there is no question that this 

theory is thoughtful and well crafted, we reject it. 

 Sandin v. Connor provides that an inmate’s liberty 

interests generally will be limited to freedom from restraint 

imposing “atypical and significant hardship on the inmate in 

relation to the ordinary incidents of prison life.” 515 U.S. at 

484, 115 S.Ct. at 2300. Although we have not conclusively 

determined the baseline from which to measure what is “atypical 

and significant” in any particular prison system, and we do not 

do so here, we are satisfied that Fantone has not demonstrated 
11 

that he had a liberty interest that defendants could have 

infringed. 

 Fantone rests his “combination” argument on the 

Supreme Court decision in Wilkinson v. Austin, 545 U.S. 209, 

125 S.Ct. 2384 (2005). Wilkinson involved the placement of an 

inmate in one of Ohio’s most extreme penitentiaries, its 

“Supermax” facility, in which conditions are “more restrictive 

than any other form of incarceration in Ohio, including 

conditions on its death row or in its administrative control 

units.” Id. at 214, 125 S.Ct. at 2389. Once confined in the 

Supermax facility, an inmate remains there indefinitely, with 

only annual reviews. Moreover, inmates lose parole eligibility 

while incarcerated in the Supermax facility. Id. at 214-15, 217, 

125 S.Ct. at 2390-91. The Wilkinson Court held that this 

combination of circumstances sufficed to create atypical and 

significant hardship, in relation to the ordinary incidents of 

prison life, so that confinement in the Supermax facility could 

infringe an inmate’s liberty interests and the inmate therefore 

had a due process right in the procedure leading to that 

deprivation. Id. at 223-24, 125 S.Ct. at 2394-95. In reaching its 

result the Court emphasized the facility’s extreme conditions, 

especially its “prohibition on almost all human contact,” the 

indefinite confinement, and a Supermax inmate’s “automatic 

disqualification” for parole consideration. Id. 

These factors, however, do not commix here analogously. 

 Fantone’s circumstances do not present hardship that is atypical 

and significant when compared to the ordinary incidents of 

prison life, so it cannot be said that defendants’ actions infringed 

his liberty interests. Id. at 223-24, 125 S.Ct. at 2394-95. The 

conditions in the RHU at SCI-Pittsburgh are quite different from 

those in the Supermax facility that the Supreme Court described 
12 

in Wilkinson. As a baseline point of contrast, the RHU offers 

the inmates confined in it, whether on administrative or 

disciplinary confinement, markedly more human interaction and 

bodily movement than is allowed in Ohio’s Supermax facility. 

Wilkinson describes how the Supermax facility’s prisoners are 

kept in a single small cell for 23 hours each day and are 

permitted to leave only for one hour’s exercise. As the Court 

described, “it is fair to say inmates are deprived of almost any 

environmental or sensory stimuli and of almost all human 

contact.” Id. at 214, 125 S.Ct. at 2389. Fantone faced far less 

restrictive constraints in the RHU. Moreover, placement in the 

Supermax facility is indefinite, and, after an initial 30-day 

review, the placement is reviewed just annually. Fantone, in 

contrast, was in the RHU, at least while on disciplinary 

confinement, for a set term of days, and his confinement in the 

RHU was subject to regular reviews.5

 See, e.g., Stallings v. 

Werholtz, 492 F. App’x 841, 845-46 (10th Cir. 2012) (nonprecedential) (existence of periodic review of administrative 

custody in the Kansas system distinguishes it from Wilkinson). 

Finally, unlike the Supermax inmates, Fantone was not 

disqualified for parole consideration. 

This last consideration is significant: despite the language 

with which Fantone describes the rescission of his parole, he did 

not become ineligible for parole simply because of his 

placement in the RHU. To the contrary, when the Parole Board 

rescinded Fantone’s parole, it repeated the procedural process 

 

5

 Requirements governing Fantone’s placement in administrative 

confinement mandated a weekly review of his placement for the 

first two months and every 30 days thereafter. Fantone does not 

claim that there were procedural delays of review during this 

confinement. 
13 

that it had followed when it granted him parole as both times it 

reached its decision by exercising its discretion. Where state 

law provides parole authorities complete discretion to rescind a 

grant of parole prior to release, an inmate does not have a 

constitutionally protected liberty interest in being paroled. See 

Jago, 454 U.S. at 23, 102 S.Ct. at 37 (Blackman, J., concurring). 

 Critically, as we have pointed out, Pennsylvania law provides 

that the Parole Board may at any time rescind an order granting 

parole until it is “executed”—i.e., the inmate is released on 

parole. See Johnson, 532 A.2d at 52. Though the misconduct 

allegations against Fantone probably caused the Parole Board to 

rescind his parole, and we assume as much on this appeal, 

“[n]othing in [a state’s] code requires the parole board to deny 

parole in the face of a misconduct record or to grant parole in its 

absence.” Sandin, 515 U.S. at 487, 115 S.Ct. at 2302. In this 

regard, we have not overlooked the fact that Fantone was 

cleared of the misconduct charges on administrative appeal. 

Rather, we will not equate such vindication with a defendant’s 

acquittal at a criminal trial following which the defendant cannot 

be punished in that proceeding for committing the offense for 

which he had been tried. 

 Ultimately, we conclude that Fantone’s due process 

argument is unvailing. The combination of his retention in the 

RHU and the rescission of his parole did not infringe his liberty 

interests. In reaching our result, we note that it is consistent 

with the result in non-precedential opinions of panels of this 

Court. In Boone v. Nose, 530 F. App’x 112 (3d Cir. 2013) 

(non-precedential), a Pennsylvania inmate had been given a 60-

day term of disciplinary confinement on a misconduct 

conviction that later was reversed on administrative appeal but 

that, in the meantime, had resulted in the rescission of a grant of 

parole. A panel of this Court found that the inmate did not have 
14 

a protected liberty interest to which the right to due process 

might attach. Id. at 114. Similarly, a panel of this Court held 

recently in Barna v. Boyce, 563 F. App’x 103 (3d Cir. 2014) 

(non-precedential), that an inmate’s placement in the RHU for 

30 days as a disciplinary sanction could not violate his due 

process rights absent a showing that placement in the RHU and 

its conditions constituted atypical and significant hardship in 

relation to ordinary incidents of prison life. The panel 

determined that a due process protection had not been triggered 

when the inmate’s alleged misconduct resulted in the rescission 

of his grant of parole and a subsequent lengthened duration of 

confinement. Id.6

 

 Fantone did not have a liberty interest that defendants 

could have infringed because the misconduct determinations, his 

time in the RHU, and the rescission of his parole did not, either 

alone or in combination, create atypical and significant hardship 

in relation to the ordinary incidents of prison life. Accordingly, 

we will affirm the District Court’s order dismissing Fantone’s 

due process claim. 

 B. Conspiracy Claim: The District Court Properly 

 Dismissed the Conspiracy Charge. 

 As Fantone’s counsel acknowledged during oral 

argument, his conspiracy complaint “rises and falls” with his 

 

6

 We are not treating the cited non-precedential opinions as 

authority or binding precedent on this appeal even though we 

find their analyses helpful. Rather, we reach our result by 

conducting our own analysis. 
15 

due process claims. Because we find that Fantone does not have 

an actionable claim against defendants for the deprivation of his 

due process rights, as the alleged deprivation did not infringe his 

liberty interests, he cannot have a corresponding and dependent 

claim against them for having engaged in a conspiracy to 

deprive him of those rights. Therefore, we agree with the 

District Court’s dismissal of the conspiracy claim. See, e.g., 

Perano v. Twp. of Tilden, 423 F. App’x 234, 239 (3d Cir. 2011 ) 

(non-precedential) (without grounds for an independent finding 

that a plaintiff has been deprived of a constitutional right, there 

can be no claim brought against the defendants for conspiracy to 

violate those rights).7

 C. Retaliation Claim: The District Court Improperly 

 Dismissed the Retaliation Claim. 

 Finally, we review the District Court’s dismissal of 

Fantone’s retaliation claim against Burger that Fantone 

predicates on his confinement in administrative custody in the 

RHU. Fantone treats this claim as being under 42 U.S.C. § 1983 

and we agree with this approach. When a plaintiff makes a 

retaliation claim, he alleges that: (1) he engaged in a 

constitutionally protected activity; (2) he suffered, at the hands 

of a state actor, adverse action sufficient to deter a person of 

ordinary firmness from exercising his constitutional rights; and 

(3) the protected activity was a substantial or motivating factor 

in the state actor’s decision to take adverse action. Rauser v. 

Horn, 241 F.3d 330, 333 (3d Cir. 2001). Fantone claims that 

Burger retaliated against him because Fantone refused to 

 

7

 We agree with the acknowledgement of Fantone’s counsel but 

have reviewed the matter independently and have come to the 

same conclusion. 
16 

provide a written confession to the methadone cupping charge 

and because he filed a grievance against Burger for threatening 

him during his interrogation. In particular, Fantone alleges that 

Burger threatened to cause him to be held in the RHU after his 

disciplinary custody term had expired, and actually did so. 

 The District Court dismissed Fantone’s retaliation claim 

for two reasons. First, the Court found that “Burger’s verbal 

threats made during the interrogation . . . were allegedly made 

before Plaintiff had filed his grievance or engaged in any other 

type of constitutionally protected activity.” App. 20. Second, 

the Court determined, with respect to Fantone’s allegation that 

Burger caused him to be put in the RHU following disciplinary 

custody, that “Plaintiff’s Complaint clearly states that Plaintiff 

was placed in administrative custody ‘per Lt. Latini,’ not 

Defendant Burger.” Id. 21. For the reasons we explain below, 

we disagree with the Court’s treatment of Fantone’s retaliation 

allegations and determine that it failed to give proper deference 

to his pro se pleadings. We accordingly will reverse the Court’s 

dismissal of the retaliation claim and remand the case to that 

Court for further proceedings on his retaliation claim against 

Burger. 

 1. Fantone’s complaint sufficiently alleges that he 

 suffered adverse action motivated by his exercising 

 constitutionally protected activity. 

 In Count Four of the complaint, Fantone contends that 

Burger violated his First Amendment rights and sets forth, in 

three paragraphs, the retaliatory acts that he argues constituted 

such a violation. The District Court focused on these allegations 

in discussing the retaliation claim but failed to consider that all 
17 

of Fantone’s protected activity, as well as all of Burger’s alleged 

retaliatory actions, should be read as events in a continuum. 

 Of course, the District Court correctly recognized that 

Burger’s threats came before Fantone filed his grievance against 

him.8

 After all, the events had to be in that order because the 

grievance complained of the threats. Fantone’s complaint, 

however, asserts that the threats came after Fantone exercised 

his Fifth Amendment right to refuse to write a confession to the 

methadone allegations, which he contended were false. When 

we read his pro se complaint fairly, we can see that Fantone 

does describe the critical incident sufficiently: that is, Fantone 

exercised a Fifth Amendment right when he refused to write a 

confession, and Burger threatened him with retaliatory action for 

exercising that right. 

 Fantone was entitled to invoke Fifth Amendment 

protection when asked to write a confession to the methadone 

allegations. Though we will assume without deciding that an 

inmate does not have a right to remain silent when questioned 

about allegations of prison misconduct that do not rise to the 

level of criminal activity, an inmate does have this right when 

the alleged prison misconduct included criminal acts. The 

allegation in the first set of charges against Fantone was that he 

illegally transferred methadone, a Schedule II controlled 

substance under Pennsylvania law. 28 Pa. Code § 

 

8

 The filing of a prison grievance is an activity protected by the 

First Amendment. See Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 

535 (E.D. Pa. 2002) (“both filing a lawsuit and filing grievances 

are protected activities”) (citing Anderson v. Davilla, 125 F.3d 

148 (3d Cir. 2001), and Herron v. Harrison, 203 F.3d 410, 415 

(6th Cir. 2000)). 
18 

25.72(c)(2)(xi) (2006). The unauthorized transfer of a Schedule 

II controlled substance is a felony. 35 Pa. Cons. Stat. Ann. § 

780-113(a)(30) (2006). As such, when Fantone was asked to 

write the confession, he was protected by the Fifth Amendment, 

which “‘not only protects the individual against being 

involuntarily called as a witness against himself in a criminal 

prosecution but also privileges him not to answer official 

questions put to him in any other proceeding, civil or criminal, 

formal or informal, where the answers might incriminate him in 

future criminal proceedings.’” Baxter v. Parmigiano, 425 U.S. 

308, 316, 96 S.Ct. 1551, 1557 (1976) (emphasis added) (quoting 

Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322 (1973)). 

 Any confession to that conduct surely would have incriminated 

Fantone if the Commonwealth had instituted a criminal 

proceeding against him.9

 2. Fantone alleged a causal connection between his 

 protected activity and his placement in 

 administrative custody in the RHU. 

 The District Court erroneously determined that Fantone 

did not allege that Burger played any part in his administrative 

custody commitment to the RHU. The Court did not afford 

Fantone’s allegations in his amended complaint the liberal 

reading that Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 

594, 596 (1972), requires. The Supreme Court explained in 

 

9

 We note that under 42 U.S.C. § 1983, Fantone did not need to 

allege that his constitutional rights actually were violated—he 

needed only to claim that he invoked them and suffered as a 

direct consequence. See White v. Napoleon, 897 F.2d 103,111-

12 (3d Cir. 1990). 
19 

Haines that a pro se complaint, “however inartfully pleaded,” 

must be held to “less stringent standards than formal pleadings 

drafted by lawyers” and only can be dismissed for failure to 

state a claim if it appears “‘beyond doubt that the plaintiff can 

prove no set of facts in support of his claim which would entitle 

him to relief.’” Id. at 520-21, 92 S.Ct. at 596; see also Erickson 

v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, (2007) (“a 

document filed pro se is to be liberally construed and a pro se

complaint, however inartfully pleaded, must be held to less 

stringent standards than formal pleadings drafted by lawyers”) 

(internal citation and quotation marks omitted). 

 The District Court found that “Plaintiff’s Complaint 

clearly states that Plaintiff was placed on [administrative 

custody] ‘per Lt. Latini,’ not Defendant Burger.” App. 21. In 

doing so, the Court did not take into account the assertions in 

Fantone’s amended complaint alleging that while Latini 

ultimately ordered that Fantone remain in the RHU on 

administrative custody, Burger listened to the misconduct 

hearing, heard Mackey commit Fantone to time served, and then 

communicated with Latini. Fantone alleges that this 

communication led to Latini issuing his order that Fantone be 

held in administrative custody.10 Fantone also alleges that 

Burger openly mocked him and demonstrated his dominance 

over him as he was being taken to administrative custody after 

his second disciplinary conviction, conduct that supports a 

reasonable inference that Burger was involved in his 

 

10 Fantone also reiterated these allegations in the briefing on 

defendants’ motion to dismiss. 
20 

confinement in the RHU.11 

 It is not unreasonable to draw an inference that there was 

a causal connection between Fantone’s attempts to exercise his 

constitutional rights, Burger’s actions, and Fantone’s subsequent 

placement in administrative custody in the RHU. Notably, 

Burger’s threats against Fantone match the events that actually 

occurred: after Fantone refused to confess and later filed a 

grievance against Burger, he was held in the RHU for the 

duration of his time at SCI-Pittsburgh, just as Burger threatened. 

 While Fantone’s allegations do not “prove” Burger’s 

involvement in the RHU placement, they did not need to do so. 

After all, as an inmate, Fantone was not privy to private 

conversations among defendants or given insight into the precise 

activities and discussions of the prison guards or the prison 

administration. 

 In sum, the combination of facts alleged here, both direct 

and circumstantial, support though do not compel a conclusion 

that Burger engaged in a retaliatory act leading to Fantone’s 

placement in administrative custody, and at this stage of the 

proceedings we accept that conclusion for we must draw all 

reasonable inferences in Fantone’s favor. See W. Penn 

 

11 While Fantone phrased these restated allegations as facts 

lending themselves to conspiracy between Latini and Burger, the 

nature of Fantone’s pro se action requires us to interpret them in 

connection with whichever claim they support. Haines, 404 

U.S. at 420-21, 92 S.Ct. at 596. Because they support Fantone’s 

claim that Burger was responsible for his continued confinement 

in the RHU in retaliation for Fantone’s invocation of his Fifth 

Amendment rights, and for his filing of a grievance against 

Burger, the District Court should have taken them into account. 
21 

Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 91 (3d Cir. 

2010). Though we do not know what facts will be developed at 

trial, we are satisfied that Fantone pleaded his retaliation claim 

sufficiently to survive the motion to dismiss.12 

 We hold that a proper analysis of Fantone’s retaliation 

claim would have led the District Court to find that Fantone 

sufficiently alleged that he engaged in two protected activities—

the refusal to sign a written admission of guilt and the filing of a 

grievance—which together resulted in Burger taking retaliatory 

action against him that caused Fantone to be confined to the 

RHU on administrative custody status when he otherwise would 

have been in the general population. See, e.g., Rauser, 241 F.3d 

at 333. Accordingly, we will reverse the Court’s dismissal of 

Fantone’s retaliation claim and remand the case for further 

proceedings with respect to Burger. 

VI. CONCLUSION 

 For the foregoing reasons, we will reverse the order of 

 

12 We are not concerned on this appeal with determining the 

precise period of Fantone’s administrative custody confinement 

that a trier of fact could attribute to retaliation by Burger. 

Rather, we merely hold that Fantone’s complaint can be read to 

support a conclusion that he spent some time in administrative 

custody because of Burger’s retaliation against him. Nor are we 

concerned with the effect of Fantone’s initial conviction and 

subsequent reversal of the disciplinary charges against him. 

Though these matters may become significant at trial if the case 

gets that far, they are not germane here. 
22 

August 8, 2013, to the extent that it dismissed the retaliation 

claim against Burger but otherwise will affirm that order.13 The 

parties will bear their own costs on this appeal. 

 

13 We are reversing only as to Burger on Fantone’s retaliation 

claim even though in his brief on this appeal he does state that 

Latini was involved in the retaliation. In this regard, we note 

that Fantone indicates in his brief that “[t]he District Court also 

erroneously dismissed [his] retaliation claim against Appellee 

Burger,” Appellant’s br. at 29, and in Count Four of his 

complaint, he only mentions Burger as involved in the 

retaliation. Moreover, insofar as we are aware Latini had no 

reason to retaliate against Fantone and, although he could have 

conspired with Burger to retaliate against Fantone, the District 

Court dismissed the conspiracy count, which was addressed to 

Fantone’s due process claim, and we are affirming that 

disposition. We also point out that inasmuch as the District 

Court decided the case by granting a motion to dismiss, by 

remanding the case, we are not precluding either Fantone or 

Burger from moving for summary judgment. 
Phillip Lee Fantone v. Latini, et al, No. 13-3611, Dissenting

COWEN, Circuit Judge. 

 The major but unarticulated premise of the majority 

opinion is that if a prisoner is suspicious that corrections 

officers have illegally retaliated against him, even though there 

is pled nothing to verify those suspicions, the complaint will 

survive a motion to dismiss. I cannot join the majority’s 

opinion to the extent it lowers the standard of plausibility that 

inmates are required to plead to state claims of retaliation. All 

that is now required to plead causality under the majority 

opinion is an allegation that two individuals had a 

conversation, albeit the contents of which are unknown, 

followed by some adverse action. It is hard to imagine an 

inmate who will not be able to meet this threshold. 

 Fantone’s retaliation claim is against Burger, yet his 

complaint does not contain any allegation that Burger engaged 

in an adverse action against him. Instead, Fantone alleges that 

Latini ordered him to be placed in administrative custody. But 

notwithstanding this adverse action, the complaint does not 

include any indication that Fantone ever filed a prisoner’s 

grievance against Latini or that Latini ever threatened him. 

Nor is there any allegation that Latini was angered by 

Fantone’s refusal to sign a written confession or that he was 

aware of Burger’s threats against him. 

 Anticipating this potentially fatal flaw, Fantone 

attempts to draw a line from Burger to Latini. Fantone 

predicates this argument on a conversation he observed 

between Burger and Latini, despite the fact that he could not 

hear what the two officers were discussing. Fantone’s claim 
2 

therefore boils down to an allegation that, because Latini 

ordered that he be placed in administrative custody after he 

observed Burger talking to him, Latini’s order must have been 

given in retaliation for his grievance against Burger and/or his 

refusal to sign a confession. This theory is not borne out by 

the complaint. 

 Fantone’s allegations of retaliation, which are echoed 

by the majority, are best summed up by his counsel in his 

reply brief: 

Mr. Fantone argues that he witnessed Appellee 

Burger listening to the misconduct hearing, and 

that Burger heard Appellee Mackey commit Mr. 

Fantone to time served. He then alleges that 

Burger “communicated with Lt. Latini after the 

hearing” and, as a result, Appellee Latini 

ordered that Mr. Fantone be held on 

Administrative Custody. He also alleges that 

Appellee Burger only mocked Mr. Fantone and 

demonstrated his dominance over him as he was 

taken to administrative custody. 

 

Fantone Reply Br. at 14. Fantone admits that he did not hear 

any of the substance of the conversation between Burger and 

Latini. 

 Nonetheless, and with no further relevant facts pled, he 

invites us to draw the following inferences: (1) that Burger 

overheard that Fantone was sentenced to time served, (2) that 

Burger was angered by this, (3) that Burger relayed this anger 
3 

to Latini in a conversation following Fantone’s misconduct 

hearing (that Fantone acknowledges he could not hear), and 

(4) that, notwithstanding the speculation regarding the 

substance of Burger and Latini’s conversation, and the fact 

that there is no allegation that Burger otherwise had any input 

in the decision to place him in administrative custody, that 

Burger was the driving force behind Latini’s decision to place 

Fantone in administrative custody. From these inferences, he 

concludes that Latini’s order was, in actuality, the product of 

Burger taking retaliatory action against him. Moreover, 

Fantone asserts that the fact that Burger appeared pleased by 

Fantone’s placement in administrative custody makes it 

plausible that Latini acted because Burger wanted to retaliate 

against Fantone. 

 The majority suggests that these inferences are 

reasonable in light of the liberal pleadings standard afforded to 

pro se litigants. However, even construing Fantone’s 

complaint liberally, bald speculation is insufficient to state a 

plausible claim under Iqbal and Twombly. See Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (“[A] pro se complaint must 

still contain sufficient factual matter, accepted as true, to state 

a claim to relief that is plausible on its face.”). Fantone’s 

complaint does not include a retaliation claim against Latini, 

the officer who ordered that he be placed in administrative 

custody, and it is devoid of any allegation that Burger himself 

took any adverse action against him. The majority glosses 

over these gaping holes in Fantone’s complaint. But its 

recitation of the liberal pleading standard cannot substitute for 

the fact that there are no allegations connecting Latini’s 

decision to place Fantone in administrative custody with either 
4 

Burger’s threats or Fantone’s refusal to sign a written 

confession. 

 That dismissal is appropriate here comports with what 

we have said in the context of conspiracy claims. In 

Capogrosso v. Supreme Court of the State of New Jersey, 588 

F.3d 180, 185 (3d Cir. 2009), a published per curiam opinion, 

a pro se plaintiff alleged a “judicial conspiracy” based on the 

fact that she had observed two judges interacting, followed by 

an adverse ruling. The plaintiff had filed claims against Judge 

Fast, alleging that conduct on the bench amounted to criminal 

behavior. Id. at 183. 

 We acknowledged in that case the same difficulties that 

Fantone professes to have in pleading his retaliation claim and 

that are expressed by the majority, namely, “that direct 

evidence of a conspiracy is rarely available and that the 

existence of a conspiracy must usually be inferred from the 

circumstances.” Id. at 184. Nonetheless, in Capogrosso, we 

noted that the plaintiff-appellant, like Fantone, “alleged only 

that Judge Fast interacted with Judge Iglesias after presumably 

hearing her discuss her case in a hallway, and that Judge 

Iglesias’ subsequent adverse ruling gives rise to an inference 

of conspiratorial conduct.” Id. at 185. In the absence of 

additional facts linking the adverse action to some larger 

conspiracy, we agreed with the district court that the plaintiff 

had failed to state a cognizable claim and affirmed the 

dismissal of the complaint. Id. 

 Our ruling in Capogrosso is sound and I discern no 

reason why it should not apply to Fantone’s retaliation claim. 
5 

Aside from the mere occurrence of a conversation that Fantone 

did not hear, there is not a single factual allegation linking 

Latini’s decision to place him in administrative custody to 

Burger’s threats or his refusal to sign a written confession. 

Such a fact is no more sufficient to state a plausible claim of 

retaliation than we have already held it to be in the context of a 

conspiracy. The majority today departs from this principle, 

preferring, instead, to draw every inference proffered by 

Fantone, no matter how remote, speculative, or unreasonable. 

I respectfully dissent.