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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN BOWMAN, :

: Case No. 4:CV-04-2176

Plaintiff :

:

v. : (Judge McClure)

:

COMMONWEALTH OF :

PENNSYLVANIA DEPARTMENT :

OF CORRECTIONS, Director : (Magistrate Judge Mannion)

JEFFREY A. BEARD, Ph.D., :

EDWARD J. KLEM, Superintendent, :

RAYMOND J. SOBINA, :

Superintendent, Captain VINCENT :

F. MOONEY, Officer J.J. KANE, :

:

Defendants :

M E M O R A N D U M

September 14, 2005

BACKGROUND:

On February 18, 2004, plaintiff Kevin Bowman, a prisoner confined at SCIFrackville, Frackville, Pennsylvania, filed suit under 42 U.S.C. § 1983 and the

Religious Land Use and Institutionalized Persons Act, (“RLUIPA”), 42 U.S.C. §

2000cc-2(a), in the United States District Court for the Eastern District of

Pennsylvania. On May 12, 2004, defendants filed a motion to dismiss or in the

alternative to transfer venue. After the matter was fully briefed and a hearing was

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held, on September 23, 2004, the district court transferred the matter to the Middle

District of Pennsylvania. At that time the court denied defendant’s motion to

dismiss based on venue, but stayed for our determination the substantive grounds

of defendants’ motion to dismiss. The matter has proceeded in an orderly pre-trial

course before United States Magistrate Judge Malachy E. Mannion. No new

dispositive motions have been filed since the initial original motion to dismiss; the

court now addresses defendants’ motion to dismiss plaintiff’s claims on the

grounds not addressed by the Eastern District Court.

For the following reasons the court will partially grant defendants’ motion.

DISCUSSION:

I. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must view all allegations stated in the complaint as true and

construe all inferences in the light most favorable to plaintiff. Hishon v. King &

Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.

1993). In ruling on a motion to dismiss the court primarily considers the allegations

of the pleading, but is not required to consider legal conclusions alleged in the

complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court

considers whether plaintiff is entitled to offer evidence to support the allegations in

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the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint

should be dismissed only if the court, from evaluating the allegations in the

complaint, is certain that under any set of facts relief cannot be granted. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132

F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100,

103 (3d Cir. 1994).

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

II. Plaintiff’s Complaint

Plaintiff is a prisoner currently detained at SCI-Frackville. The factual

allegations that form the basis of his complaint against the Department of

Corrections, however, occurred while he was detained at SCI-Mahoney and then at

SCI-Somerset. Plaintiff contends that he was discriminated against by the staff of

SCI-Mahoney and SCI-Somerset on the basis of his Muslim religion.

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The complaint makes several allegations involving conduct by defendants

directed at both Bowman and other Muslim inmates. Plaintiff has asserted that

defendants refused to allow plaintiff and other inmates of the Muslim faith to

conduct services and classes which reflect their fundamental religious beliefs. 

Bowman asserts that he was mistakenly labeled an Islamic extremist, was accused

of participating in an “unauthorized group activity”, and was punished for other

inmates’ written requests to have classes in Aqeeda and Salat (faith and prayer),

which were not being taught by the approved faith group leader for all Muslims at

SCI-Mahoney. Defendants demanded that Bowman and other Muslims shave their

beards to less than three inches, in violation of their Islamic beliefs. Defendants

also allegedly demanded that Bowman and other Muslims roll down their pant legs,

in violation of their Islamic beliefs.

Bowman was allegedly punished by being placed in the restricted housing

unit, being issued several misconducts for not shaving his beard less than three

inches and for refusing to roll down his pant legs, both in violation of his Islamic

beliefs, and then being transferred twice to different prisons. Then, at SCISomerset, the prison to which he was first transferred, Bowman remained in

restricted housing.

First, we note that this is not a class action. Bowman is the only named

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plaintiff, and the court will only entertain an active case or controversy as to

grievances of the named plaintiff.

The complaint asserts that defendants’ conduct toward plaintiff and his

fellow Muslims violated his constitutional rights, providing a cause of action under

42 U.S.C. § 1983 and RLUIPA, 42 U.S.C. § 2000cc-2(a). The complaint does not

specifically identify what constitutional rights were allegedly violated by defendants,

but we infer from the complaint that plaintiff is bringing a retaliation claim based on

his First Amendment right to the free exercise of Islam and a Fourteenth

Amendment due process claim based on his placement in restrictive housing.

Plaintiff seeks declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. 

Specifically, Bowman seeks:

1. Declaratory judgment for plaintiff declaring that the

defendants’ acts, policies and practices described herein

and as expounded upon during the course of discovery in

this action violate plaintiff’s rights under the United States

Constitution.

2. A preliminary and permanent injunction which:

a) Prohibits the defendants, their successors in

office, agents and employees and all other persons

in active concert and participation of them from

harassing, threatening, punishing, or retaliating in

any way against any plaintiff because he filed this

action, or against any inmate because that inmate

submitted an affidavit or otherwise testified in this

case on behalf of plaintiff;

Case 4:04-cv-02176-JFM Document 10 Filed 09/14/05 Page 5 of 17
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b) Prohibits the defendants from transferring

plaintiff to any other institution, without express

consent, during the pendency of this action;

c) Requires the defendants to remove from the

plaintiff’s prison files and records any references

to any events described herein or to the fact that

plaintiff filed this suit;

d) Requires the defendants to allow plaintiff and

other Muslim inmates to:

1) engage in any oral or written

communication which is reasonably related

to the conduct of this suit, including the

preparation of affidavits on behalf of

plaintiff;

2) to allow plaintiff to confer with his

counsel and to prepare legal papers and do

anything else, consistent in prison security,

which is reasonably connected with the

conduct of this suit.

3. Compensatory damages from the defendants, jointly

and severally, to the plaintiff for the conduct complained

of herein;

4. Punitive damages from the defendants, jointly and

severally, to plaintiff;

5. A jury trial on all issues triable by jury.

6. Plaintiff’s costs of this suit and his attorney’s fees.

7. Such other and further relief as this Court deems just,

proper and equitable.

III. Section 1983 and RLUIPA

Plaintiff has brought a civil rights action under 42 U.S.C. § 1983 alleging

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violations of his constitutional rights by the defendants. Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . 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 . . .

42 U.S.C. § 1983.

In order for a plaintiff to prevail under 42 U.S.C. § 1983 he must establish

two elements: 1) that the conduct complained of was committed by a person acting

under color of state law; and 2) that the conduct deprived a person of rights,

privileges, or immunities secured by the Constitution or laws of the United States. 

Kost, 1 F.3d at 184 (3d Cir. 1993).

In addition to his constitutional claims plaintiff has asserted a claim under

RLUIPA. 42 U.S.C. § 2000cc et seq. In enacting RLUIPA, Congress created a

statutory free exercise of religion claim that requires a higher standard of review

than that applied to constitutional free exercise claims. Murphy v. Missouri Dep’t

of Corr., 372 F.3d 979, 986 (8th Cir. 2004). The statute provides that:

No government shall impose a substantial burden on

religious exercise of a person residing in or confined to an

institution, as defined in section 1997 of this title, even if

the burden results from a rule of general applicability,

Case 4:04-cv-02176-JFM Document 10 Filed 09/14/05 Page 7 of 17
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unless the government demonstrates that imposition of

the burden on that person-

(1) is in furtherance of a compelling governmental

interest; and

(2) is the least restrictive means of furthering that

compelling governmental interest.

42 U.S.C. § 2000cc-1(a).

The statute is applicable to “any case in which . . . the substantial burden

imposed is imposed in a program or activity that receives Federal financial

assistance.” 42 U.S.C. § 2000cc-1(b)(1). As part of enacting RLUIPA, Congress

created a private cause of action. RLUIPA provides that “[a] person may assert a

violation of this chapter as a claim or defense in a judicial proceeding and obtain

appropriate relief against a government.” 42 U.S.C. § 2000cc-2(a).

IV. Defendants’ Motion to Dismiss

Defendants’ motion to dismiss asserts that (1) defendant the Commonwealth

of Pennsylvania, Department of Corrections, and its defendant officials and

employees to the extent they are sued for damages in their official capacities are

immune from suit under the Eleventh Amendment of the United States Constitution;

(2) plaintiff’s due process claims should be dismissed as he has no liberty interest

in remaining in the prison’s general population; and (3) the action should be

dismissed for lack of any allegation of personal involvement by the named

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defendants in a constitutional claim.

A. Plaintiff’s Claim Under 42 U.S.C. § 1983 Against the Department of

Corrections & the Defendant Employees in Their Official Capacities are

Dismissed to the Extent Plaintiff Seeks Money Damages

Plaintiff’s complaint seeks recovery from each defendant both in their

individual and official capacities. (Compl., Rec. Doc. No. 1, at 3, ¶ 10.) One of

the named defendants is the Commonwealth of Pennsylvania, Department of

Corrections, a state agency. Neither a State nor its officials acting in their official

capacity are “persons” under 42 U.S.C. § 1983. Will v. Michigan, 491 U.S. 58, 64

(1989); Boone v. Pennsylvania Office of Vocational Rehabilitation, 373 F.Supp. 2d

484, 498 (M.D. Pa. 2005) (Rambo, J.). The United States Supreme Court in Will

was explicit that its holding was applicable to States and governmental entities that

are “arms of the State” for purposes of the Eleventh Amendment. 491 U.S. at 70.

In addition to the Department of Corrections not being a person for

purposes of § 1983, the corrections agency is an arm of the State for purposes of

the Eleventh Amendment, and therefore, because the state has not waived its

immunity, it is protected from suit in federal court. See Wheeler v. Beard, 2005

WL 1840159, at *16 (E.D. Pa. Aug. 3, 2005) (Yohn, J) (finding Pennsylvania’s

Department of Corrections is an arm of the state); 42 Pa. Stat. Ann. § 8521(b)

(Pennsylvania’ statutory withholding of consent to be sued). Plaintiff’s claim under

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42 U.S.C. § 1983 against the Commonwealth’s Department of Corrections must be

dismissed. Also, plaintiff’s claims against the individual state employees in their

official capacities must be dismissed to the extent that money damages are sought. 

However, “official-capacity actions for prospective relief are not treated as actions

against the State,” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Ex

parte Young, 209 U.S. 123 (1908)); therefore, plaintiff may pursue equitable relief

against official-capacity defendants. See Blanciak v. Allegheny Ludlum Corp., 77

F.3d 690, 697-98 (3d Cir. 1996).

B. Plaintiff’s Complaint to the Extent it Asserts a Due Process Claim Based

on His Being Placed in Restricted Housing is Dismissed

As we noted above, plaintiff does not identify particular constitutional

violations in his pleadings. To the extent plaintiff has asserted a Due Process claim

it must fail. Plaintiff alleges that as a form of retaliation for his interest in exercising

his Islamic faith he was housed in a restrictive housing unit within the prison, and

then transferred to another prison where he was also housed in a restricted unit for

a total of nine months.

Plaintiff’s argument that attempts to distinguish the conduct that warrants

segregation from the regular prison population misses the mark. (Rec. Doc. No. 1,

at 68.) As plaintiff has noted, the Fourteenth Amendment Due Process protection

Case 4:04-cv-02176-JFM Document 10 Filed 09/14/05 Page 10 of 17
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for a state-created liberty interest on the part of a prison inmate is “limited to those

situations where deprivation of that interest ‘imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.’” Griffin

v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (discussing Sandin v. Conner, 515

U.S. 472 (1995)). The baseline for determining what is ‘atypical and significant’ is

determined by “what a sentenced inmate may reasonably expect to encounter as a

result of his or her conviction in accordance with due process of law.” Id. Plaintiff

simply has no protected liberty interest in remaining in the general prison population

for a period of nine months. See id. at 708 (prison did not interfere with a

protected liberty interest when inmate remained in restricted housing for 15

months); see also Milton v. Ray, 2005 WL 2106180, *4 (M.D. Pa. Aug. 31, 2005)

(Kane, J.). Therefore, to the extent plaintiff’s claim under 42 U.S.C. § 1983 asserts

that defendants violated his rights to due process protected by the Fourteenth

Amendment, the claims are dismissed.

C. Lack of Personal Involvement as to the Section 1983 Claims

Finally, defendants contend in their motion to dismiss that plaintiff has

insufficiently alleged personal involvement by the defendants to state a cognizable

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1Plaintiff’s brief informally requests leave to amend his complaint to provide

additional details if we find that his complaint is insufficiently specific.

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section 1983 claim.1 Plaintiff has alleged the personal involvement of defendants

Kane and Mooney. Plaintiff has not alleged personal involvement by any of the

other defendants. Despite defendants’ position that the law remains unsettled on

pleading requirements in cases involving the qualified immunity of individual

government officials, the Third Circuit only requires notice pleading for civil rights

complaints, and not some heightened standard. Alston v. Parker, 363 F.3d 229,

233 (3d Cir. 2004) (“Fundamentally, a heightened pleading requirement for civil

rights complaints no longer retains vitality under the Federal Rules.”); see also

Evancho v. Fisher, – F.3d – , 2005 WL 2179883, *5 (3d Cir. Sept. 12, 2005)

(reiterating that civil rights plaintiffs need only follow liberal notice pleading

standard). We will allow plaintiff an opportunity to amend his complaint to include

specificity as to the other defendants’ conduct.

V. Plaintiff’s Requests for Declaratory & Injunctive Relief

Plaintiff’s complaint includes a series of requests for declaratory and

injunctive relief:

1. Declaratory judgment for plaintiff declaring that the

defendants’ acts, policies and practices described herein

and as expounded upon during the course of discovery in

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this action violate plaintiff’s rights under the United States

Constitution.

2. A preliminary and permanent injunction which:

a) Prohibits the defendants, their successors in

office, agents and employees and all other persons

in active concert and participation of them from

harassing, threatening, punishing, or retaliating in

any way against any plaintiff because he filed this

action, or against any inmate because that inmate

submitted an affidavit or otherwise testified in this

case on behalf of plaintiff;

b) Prohibits the defendants from transferring

plaintiff to any other institution, without express

consent, during the pendency of this action;

c) Requires the defendants to remove from the

plaintiff’s prison files and records any references

to any events described herein or to the fact that

plaintiff filed this suit;

d) Requires the defendants to allow plaintiff and

other Muslim inmates to:

1) engage in any oral or written

communication which is reasonably related

to the conduct of this suit, including the

preparation of affidavits on behalf of

plaintiff;

2) to allow plaintiff to confer with his

counsel and to prepare legal papers and do

anything else, consistent in prison security,

which is reasonably connected with the

conduct of this suit.

...

7. Such other and further relief as this Court deems just,

proper and equitable.

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Defendants’ conduct which forms the basis of this complaint involved

activities that occurred while plaintiff was detained at SCI-Mahoney and SCISomerset. Plaintiff is currently detained at SCI-Frackville and is not in restrictive

housing. One of the narrow exceptions to Eleventh Amendment immunity is for

suits seeking prospective relief against officials to remedy an ongoing violation of

federal law. M.A. v. State-Operated Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003)

(citations omitted). Plaintiff’s injunctive requests are not of that nature - they do

not address an ongoing violation, e.g., they are not requests that Bowman be

allowed to meet and study his preferred Muslim classes; instead, plaintiff’s request

seeks to prevent retaliation for filing this suit. These are inappropriate requests for

injunctive relief because the plaintiff’s injury is merely speculative and does not

establish a real and immediate threat. See City of Los Angeles v. Lyons, 461 U.S.

95, 101-02 (1983). Furthermore, laws already exist that prohibit the defendants

from retaliating against plaintiff, and if defendants were to retaliate against plaintiff,

plaintiff could file an administrative complaint and a separate civil rights action. 

Therefore, plaintiff’s requests for injunctive relief are dismissed, as they do not

address ongoing violations of federal law.

VI. Plaintiff’s RLUIPA Claim Remains

As noted above, plaintiff’s complaint asserts that defendants violated

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RLUIPA, 42 U.S.C. § 2000cc-2(a). Defendants do not address the RLUIPA claim

in their motion to dismiss or supporting brief, and only address the plaintiff’s

allegations of violations of his civil rights under 42 U.S.C. § 1983. Therefore, the

RLUIPA claim remains. However, plaintiff is not entitled to the injunctive relief he

has requested under RLUIPA because, as stated above, the requests do not seek

relief from ongoing violations of federal law. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

Case 4:04-cv-02176-JFM Document 10 Filed 09/14/05 Page 15 of 17
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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN BOWMAN, :

: Case No. 4:CV-04-2176

Plaintiff :

:

v. : (Judge McClure)

:

COMMONWEALTH OF :

PENNSYLVANIA DEPARTMENT :

OF CORRECTIONS, Director : (Magistrate Judge Mannion)

JEFFREY A. BEARD, Ph.D., :

EDWARD J. KLEM, Superintendent, :

RAYMOND J. SOBINA, :

Superintendent, Captain VINCENT :

F. MOONEY, Officer J.J. KANE, :

:

Defendants :

O R D E R

September 14, 2005

For the reasons set forth in the accompanying memorandum,

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion to dismiss is granted in part and denied in part. 

(Rec. Doc. No. 1, Eastern District Rec. Doc. No. 4.)

2. Plaintiff’s claims under 42 U.S.C. § 1983 for monetary damages

against the Commonwealth of Pennsylvania Department of Corrections and the

other defendants in their official capacities are dismissed on the basis of the

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defendants’ sovereign immunity under the Eleventh Amendment.

3. Plaintiff’s requests for injunctive relief from the defendants under

both 42 U.S.C. § 1983 and RLUIPA, 42 U.S.C. § 2000cc-2(a), are dismissed as

they do not address an ongoing violation of plaintiff’s federal rights.

4. Plaintiff’s claims for monetary damages from defendants Beard,

Klem, Sobina, Mooney, and Kane in their individual capacities under 42 U.S.C. §

1983 remain. Plaintiff’s claims for monetary damages under RLUIPA, 42 U.S.C. §

2000cc-2(a) against all defendants remain.

5. Plaintiff may amend his complaint within twenty (20) days to

provide more specific allegations as to the actions of defendant employees and to

state with more particularity the nature of the First Amendment Free Exercise

Clause retaliation claim underlying his 42 U.S.C. § 1983 action, which we have

inferred from his complaint.

6. The October 7, 2005 deadline for filing motions for summary

judgment is cancelled, and will be reset upon completion of the pleadings. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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