1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LONG QUN LIN, : No. 4:CV-05-0299

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Mannion)

:

CORRECTIONAL OFFICER MITCHELL, :

ET AL., :

:

Defendants. :

MEMORANDUM AND ORDER

February 27, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The plaintiff, Long Qun Lin (“Plaintiff” or “Lin”), an inmate at the State

Correctional Institution at Rockview (“SCI-Rockview”), in Bellefonte,

Pennsylvania, proceeding pro se, commenced this 42 U.S.C. § 1983 (“§ 1983")

action by filing a complaint in the United States District Court for the Middle

District of Pennsylvania on February 10, 2005. (See Rec. Doc. 1). The case was

referred to United States Magistrate Judge Malachy E. Mannion for preliminary

review. 

On February 10, 2005, Plaintiff filed an application to proceed in forma

pauperis and an authorization form; however, the application was not acted upon

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 1 of 10
2

because on March 4, 2005, in response to an administrative order directing Plaintiff

to pay the filing fee or face dismissal of the complaint, he paid the $250 filing fee. 

(Rec. Docs. 5, 6). In addition, Magistrate Judge Mannion denied Plaintiff’s initial

Motion to Appoint Counsel, as well as two additional motions requesting counsel.

(Rec. Docs. 3, 8, 9-12). On June 15, 2005, Plaintiff submitted an amended

complaint, which Magistrate Judge Mannion had permitted as per a May 27, 2005

order, and which mooted Defendants’ previously filed Motion to Dismiss. 

On June 23, 2005, Defendant Franklin J. Tennis (“Defendant Tennis”) filed a

Motion to Dismiss, which has been briefed by the parties. The Motion is therefore

ripe for disposition. 

On February 8, 2006, Magistrate Judge Mannion issued a report

recommending that Defendant Tennis’s Motion to Dismiss be granted. (See Rep.

& Rec. at 9). Objections to the report were filed on February 23, 2006. (Rec.

Doc. 28).

STANDARD OF REVIEW

We initially note that in considering a motion to dismiss, a court must accept

the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v.

Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 2 of 10
3

added that in considering a motion to dismiss based on a failure to state a claim

argument, a court should "not inquire whether the plaintiffs will ultimately prevail,

only whether they are entitled to offer evidence to support their claims." 

Furthermore, "a complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S.

41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir.

1986). 

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings

or recommendations made by the magistrate judge to which there are objections. 

See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. § 636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they 

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 3 of 10
4

FACTUAL BACKGROUND:

The Magistrate Judge provided a detailed rendition of the factual background

in this case. Accordingly, to summarize, Plaintiff alleges that on September 9,

2004, prison personnel conducted a general search for contraband of Plaintiff’s

housing unit, which involved two correctional officers ordering Plaintiff to strip to

his underwear, removing him from his cell, handcuffing his arms behind his back,

and asking Plaintiff questions concerning their search outside his cell. Defendant

Mitchell twice told Plaintiff not to turn his head when responding to the officers’

questions. When Plaintiff explained that he was trying to answer the other officers’

questions, Defendant Mitchell ordered him not to turn his head and to “stop smart

assing with him.” (Rep. & Rec. at 4). Defendant Mitchell dragged Plaintiff around

the corner when Plaintiff again tried to explain why he was turning his head and

ordered Plaintiff to kneel. Plaintiff refused, fearing he would be beaten, which

resulted in Defendant Mitchell seizing Plaintiff and throwing him to the floor. 

Defendant Mitchell then stepped on Plaintiff’s back and continued to raise his

cuffed hands, despite Plaintiff’s “excruciating pain.” 

During this assault, Correctional Officer Cavalucci (“C.O. Cavalucci”) was

present and Plaintiff alleges that C.O. Cavalucci told Defendant Mitchell to stop his

assault. A sergeant ordered Defendant Mitchell to take Plaintiff to administrative

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 4 of 10
5

custody. On the way to administrative custody, Plaintiff was rebuffed after

attempting to complain to Lieutenant Yarger. Plaintiff then complained to Captain

Eaton, who ordered C.O. Cavalucci to assist Defendant Mitchell in taking Plaintiff

to the infirmary for medical attention. (Rep. & Rec. at 5). At the infirmary, Nurse

Hayes examined Plaintiff and stated it appeared as if he had been involved in a

fight. When she asked Plaintiff what occurred, Defendant Mitchell ordered him not

to respond. 

On October 12, 2004, Plaintiff filed an official grievance alleging physical

abuse, denial of proper medical care, and denial of procedural due process to

which Captain Eaton, the responding official, indicated that Plaintiff received

medical attention and received a misconduct for his behavior. (Rep. & Rec. at 6). 

Plaintiff appealed the decision to Defendant Tennis, the superintendent of SCIRockview, who, without conducting his own investigation and reliant upon Captain

Eaton’s findings, upheld the decision. The chief grievance coordinator, to whom

Plaintiff appealed Defendant Tennis’s decision, upheld the prior findings. 

DISCUSSION:

In his two-page objections, Plaintiff argues that his amended complaint states

a claim of “deliberate indifference.” “The Plaintiff based his claims against

Defendant Tennis solely on his responsibility and failure to properly investigate the

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 5 of 10
6

Plaintiff’s claims of abuse at the hands of C.O. Mitchell.” (Rec. Doc. 28 at 1). 

Plaintiff is accordingly contending that his claims against Defendant Tennis are not

founded upon his failure to provide him with a favorable grievance response, or his

actual involvement in the events leading to the filing of the grievance. Plaintiff

argues that his claims are allegedly founded upon his “deliberate indifference” to

Defendant Tennis’s duty to respond to and to investigate Plaintiff’s abuse

allegations. Id. at 2. 

After a careful review of the record in this case and for the reasons that

follow, we are in agreement with the Magistrate Judge that Plaintiff's contention that

Defendant Tennis is liable for his mistreatment because he affirmed an adverse

response to Plaintiff's official grievance, instead of conducting an independent

investigation, does not raise a cognizable claim under 42 U.S.C. § 1983. 

We initially note that as explained by the Magistrate Judge, to state a claim

under § 1983, the plaintiff must show that the defendant, acting under color of state

law, deprived him of a right secured by the Constitution or laws of the United

States. 42 U.S.C. § 1983; Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d

Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). As the Third Circuit Court of

Appeals has instructed, liability under § 1983 is personal in nature and can only

follow personal involvement in the alleged wrongful conduct shown through

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 6 of 10
7

specific allegations of personal direction or actual knowledge and acquiescence. 

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997) (citing Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In addition, relief cannot be

granted against a defendant pursuant to § 1983 based solely upon the theory of

respondeat superior or the fact that the defendant was the supervisor or superior of

the person whose conduct actually deprived the plaintiff of one of his federally

protected rights under color of state law. Rouse v. Plantier, 182 F.3d 192, 200 (3d

Cir. 1999); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.

1976); Goode v. Rizzo, 506 F.2d 542, 550 (3d Cir. 1974), rev'd on other grounds,

423 U.S. 362 (1976). 

In his amended complaint and again in his objections to the Magistrate

Judge's report, Plaintiff's sole allegation against Defendant Tennis is that "on

information and belief he did not investigate the grievance, but simply relief on

Eaton's findings" and this "failure to properly investigate the Plaintiff's claim was

deliberately indifferent and constituted cruel and unusual punishment in violation of

the 8th amendment to the U.S. Constitution." (Am. Comp. at ¶¶ 53, 60; see also

Rec. Doc. 28). 

Even accepting all of Plaintiff's allegations in the amended complaint as true,

as we must at this juncture, Plaintiff's amended complaint fails to state a claim upon

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 7 of 10
8

which relief can be granted for two distinct reasons. First, Defendant Tennis

lacked personal involvement in the events as recited by Plaintiff, as is necessary for

liability under § 1983, as previously noted. As the Magistrate Judge submits,

Defendant Tennis neither personally directed Defendant Mitchell in the alleged

deprivation of Plaintiff's constitutional rights, nor actually knew of and acquiesced

in Defendant Mitchell's alleged misconduct. Robinson, 120 F.3d at 1294 (citing

Rode, 845 F.2d at 1207). The facts as alleged by Plaintiff show that Defendant

Tennis did not participate in the alleged attack on Plaintiff, but encountered the

incident only through Plaintiff's appeal of the official grievance, which demonstrates

knowledge of the alleged attack, but not acquiescence to uphold an initial finding by

the investigating officer that was adverse to Plaintiff's claims. 

Second, Plaintiff's amended complaint fails to state a claim upon which relief

can be granted because inmates have no constitutional right to a prison grievance

process. Thibodeau v. Watts, 2006 WL 89213 at *5 (M.D. Pa. Jan. 11, 2006);

Pressley v. Beard, 2005 WL 2347369 at *4 (M.D. Pa. Sept. 26, 2005); Wilson v.

Horn, 971 F. Supp. 943, 946 (E.D. Pa. 1997), aff'd, 142 F.3d 430 (3d Cir. 1998);

Hoover v. Watson, 886 F. Supp. 410, 418 (D. Del. 1995), aff'd, 74 F.3d 1226 (3d

Cir. 1995); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119,

138 (1977) (Burger, C.J., concurring) ("[W]hile I applaud such procedures, and

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 8 of 10
9

indeed urged their adoption . . . I do not suggest that the procedures are

constitutionally mandated.") (internal citation omitted). Moreover, even if the state

provides for a grievance procedure, as Pennsylvania does, violations of those

procedures do not amount to a § 1983 cause of action. Hoover, 886 F. Supp. at

418. 

Accordingly, Plaintiff's objections asserting that his amended complaint

states a claim for "deliberate indifference" based upon Defendant Tennis's alleged

failure to properly investigate Plaintiff's abuse claims are meritless. Defendant

Tennis's alleged failure to independently investigate Plaintiff's grievance appeal does

not implicate a violation of Plaintiff's constitutional rights cognizable under § 1983. 

Our review of this case confirms the Magistrate Judge’s determinations and wellreasoned analysis. Because we find no error in Magistrate Judge Mannion’s report

and recommendation, we will adopt the Magistrate Judge’s recommendations as

our own. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. Magistrate Judge Mannion’s Report and Recommendation (doc. 27) is

adopted in its entirety. 

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 9 of 10
10

2. Defendant Tennis's Motion to Dismiss Plaintiff's Amended Complaint

(doc. 20) is GRANTED.

3. The Clerk of Court shall refer this matter back to Magistrate Judge

Mannion for further pretrial proceedings.

s/ John E. Jones III

 John E. Jones III

United States District Judge

Case 4:05-cv-00299-JEJ Document 29 Filed 02/27/06 Page 10 of 10