UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK W. FISHER, JR., : CIVIL NO: 4:CV-04-1945

:

Plaintiff :

: (Judge McClure)

v. :

: (Magistrate Judge Smyser)

JANAN LOOMIS, :

PHYSICIAN HEALTH CARE CORP., :

DONALD FISK, :

MILTON FRIEDMAN, :

DONALD JONES, :

PAUL DELROSSO, :

CARL PAUCI, :

JOSEPH NISH, :

RAYMOND COLLERAN, :

EDWARD BURKE, :

:

Defendants :

REPORT AND RECOMMENDATION

On September 1, 2004, the plaintiff, a prisoner

proceeding pro se, commenced this 42 U.S.C. § 1983 action by

filing a complaint. An amended complaint was filed on

December 15, 2005. Doc. 12. A motion to dismiss the amended

complaint was filed by defendants DelRosso, Nish, Jones,

Colleran, Friedman, Pauci, Burke and Fisk on May 27, 2005. 

Doc. 33. A supporting brief was filed on June 13, 2005. 

Doc. 39. A brief in opposition was filed on September 26, 2005. 

Doc. 75. A reply brief was filed on October 4, 2005. Doc. 78. 

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A motion to dismiss the amended complaint was filed by

defendants Loomis and Physician Health Services, Inc. on June 21,

2005 and a supporting brief was filed. Docs. 44, 45. A brief in

opposition was filed on September 26, 2005. A reply brief was

filed on October 7, 2005. Doc. 80. 

The amended complaint alleges that on December 9, 2002,

defendants Loomis and Fisk, employed by Physician Health

Services, Inc., and defendant Friedman conspired to end the

plaintiff’s life. All defendants caused the plaintiff to lose

the use of his left arm, to lose his sight, to suffer extreme

torture, battering and emotional distress, to lose liberty,

property, and access to the court, legal material, evidence, and

loss of a $600,000 case. 

The amended complaint alleges that when on September 9,

2002 the plaintiff went to prison sick call and told defendant

Loomis that he wanted to be checked for testicle cancer and left

arm pain and was examined, he was presented with a bill for

motrin. He considered the $4.00 bill to be unjust, and stated

that he would sue to have his money returned, stating, “I’m going

to sue this fucking place.” He was accused of misconduct for

saying this, and he was also accused of assaulting defendant

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Loomis. The plaintiff alleges that defendants Fisk and Friedman

told defendant Loomis than charging a misconduct against the

plaintiff would discourage law suits by prisoners and that

disciplinary confinement might be an ordeal the plaintiff could

not survive. He asserts that he was punished to discourage

litigation by himself and other prisoners. 

The plaintiff alleges that on September 9, 2002 he was

placed “in the hole.” He alleges that during his disciplinary

hearing he was not permitted to call witnesses and was not able

to refer to his notes because his hands were cuffed behind his

back. He asserts that defendants Colleran, Nish, Burke, DelRosso

and Pauci, reviewing the plaintiff’s disciplinary conviction,

knew of due process violations in the disciplinary process and

yet refused to overturn his disciplinary conviction. 

The plaintiff alleges that he fractured his arm on

September 30, 2002, while in disciplinary confinement. He

alleges that the fracture followed a heart attack that caused him

to fall, and that the heart attack was the result of his wrongful

disciplinary confinement. He alleges that defendant Loomis

failed to direct the medical staff to treat the plaintiff’s

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fractured arm. He alleges that he has lost the use of his left

arm. He alleges that the defendants conspired to end his life. 

A motion to dismiss pursuant to Rule 12(b)(6) challenges

the legal sufficiency of the plaintiff's case; the court must

decide whether, even if the plaintiff were able to prove all of

his allegations, he would be unable to prevail. Mortensen v.

First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). 

In a Rule 12(b)(6) motion to dismiss for failure to state a claim

upon which relief can be granted, the burden is on the moving

party to show that there is no claim. Johnsrud v. Carter, 620

F.2d 29, 33 (3d Cir. 1980). When evaluating a motion to dismiss,

the court must accept all material allegations of the complaint

as true and draw all inferences in the light most favorable to

the plaintiff. Pennsylvania House, Inc. v. Barrett, 760 F. Supp.

439, 449 (M.D. Pa. 1991). However, "conclusory allegations of

law, unsupported conclusions and unwarranted inferences need not

be accepted as true." Id. at 449-50. 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, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401

(3d Cir. 1988). 

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The plaintiff claims a violation of his right to due

process of law in that he was not afforded the procedural rights

at his hearing to which he was entitled.

The defendants argue that placement in disciplinary

custody for 180 days is not as a matter of law an atypical or

significant hardship. 

A due process claim requires a two part analysis. First,

the court must determine whether the interest asserted by the

plaintiff is within the scope of protection of life, liberty, or

property found in the due process clause. A protected interest

may arise from two sources - the due process clause itself and

the laws of the States. See Hewitt v. Helms, 459 U.S. 460, 466

(1983); Layton v. Beyer, 953 F.2d 839, 842 (3d Cir. 1992). 

Second, if the interest is protected by the Fourteenth Amendment,

the court must determine what procedures constitute "due process

of law." Ingraham v. Wright, 430 U.S. 651, 672 (1977).

In Sandin v. Conner, 515 U.S. 472 (1995), the United

States Supreme Court addressed the question of when state prison

regulations create liberty interests protected by the Due Process

Clause. The Court held that state created liberty interests are

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limited to freedom from restraint which "imposes atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life." Id. at 484. In Sandin, the inmate,

Conner, was sentenced to thirty days of disciplinary confinement

in the Special Holding Unit. As a result of Conner's

disciplinary segregation he "had to spend his entire time alone

in his cell (with the exception of 50 minutes each day on average

for brief exercise and shower periods, during which he

nonetheless remained isolated from other inmates and was

constrained by leg irons and waist chains.)" Id. at 494 (Breyer,

J. dissenting). The Court concluded that Conner's thirty days

in the Special Holding Unit did not impose the type of atypical

significant deprivation in which the state may conceivably create

a liberty interest. Id. at 486. The Court noted that in that

case disciplinary confinement at the prison in question, with

only insignificant exceptions, mirrored conditions imposed on

inmates in administrative and protective custody; that based on a

comparison of inmates inside of and outside of disciplinary

segregation, placement in segregation for thirty days did not

work a major disruption in his environment; that disciplinary

action did not inevitably affect the duration of Conner's

sentence; and that the "regime to which he was subjected was

within the range or confinement to be normally expected for one

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serving an indeterminate term of 30 years to life." Id. at 486-

87.

The Sandin “atypical and significant hardship” test has

been applied in cases brought by prisoners held in disciplinary

and administrative segregation for various lengths of time. See,

e.g., Carter v. Carriero, 905 F.Supp. 99 (W.D.N.Y. 1995) (270

days in disciplinary confinement not an atypical or significant

hardship under Sandin); Penrod v. Zavaras, 94 F.3d 1399 (10th Cir.

1996) (nine months of confinement in administrative segregation

did not impose an atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life); Speed v.

Stott, 941 F.Supp. 1051 (D. Kan. 1996) (indefinite placement in

administrative segregation pending an ongoing investigation,

which at the time of the holding had continued for over three

years, did not rise to the level of an atypical or significant

hardship under Sandin); Scales v. District of Columbia, 894

F.Supp. 14 (D.D.C. 1995) (placement in administrative segregation

for four months is not a violation of due process under Sandin). 

The United States Court of Appeals for the Third Circuit

addressed a Pennsylvania inmate’s claims that his placement and

confinement in administrative custody for fifteen months violated

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his due process rights in Griffin v. Vaughn, 112 F.3d 703 (3d

Cir. 1997). After considering the reasons an inmate may be

placed in administrative segregation and the conditions the

plaintiff in that case was held under in administrative

detention, the court concluded that “exposure to the conditions

of administrative custody for periods as long as 15 months ‘falls

within the expected parameters of the sentence imposed [on him]

by a court of law,’” and that the inmate’s commitment to and

confinement in administrative custody did not deprive him of a

liberty interest. Id. at 708. 

In Smith v. Mensinger, 293 F.3d 641, 652 (3d Cir. 2002),

the Court held that a seven month disciplinary confinement does

not constitute a deprivation of a liberty interest for a prisoner

because it is not an atypical and significant hardship in

relation to the ordinary incidents of prison life. In Mitchell

v. Horn, 318 F.3d 523, 531-533 (3d Cir. 2003), the Court focused

upon the conditions of confinement differences between general

population and the particular disciplinary custody condition in

reversing a sua sponte frivolousness dismissal. This case is,

unlike Mitchell, subject to briefing by all parties, and does not

ostensibly involve inhumane conditions of disciplinary

confinement.

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The plaintiff’s due process claim should be dismissed. 

The defendants argue that the plaintiff’s claim that it

amounted to a violation of his First Amendment rights for him to

be punished for threatening to “sue this fucking place” fails to

state a claim upon which relief can be granted. We agree. There

is no First Amendment right possessed by a prisoner to use

profanity without disciplinary consequence. 

The plaintiff’s claim of a retaliatory confinement to

disciplinary custody should be dismissed, because the plaintiff

was adjudicated guilty of stating “I’m going to sue this fucking

place” and of an assault on a prison contractual medical

employee. The plaintiff acknowledged that he was angry after his

medical examination by defendant Loomis and his being assessed a

$4.00 medication charge and that he asserted “I’m going to sue

this fucking place.” He denies that he assaulted defendant

Loomis. The angry declaration of the plaintiff of his intention

to sue did not constitute an out-of-bounds basis for prison

officials to impose discipline merely because the subject matter

of the declaration involved the legal process. The angry and

profane announcement of an intention to sue was in no sense a

necessary or appropriate component of the ordinary and protected

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right of access to the courts; on the contrary, it is in part to

avoid such unproductive and potentially harmful confrontations

that we value our litigation process and the right of all of

access to the courts. 

The defendants argue that the plaintiff’s claim that he

was wrongfully cited for misconduct by an unauthorized contract

worker is not a claim upon which relief can be granted. We

agree. There is no federally protected right on the part of a

state prisoner to be cited only by certain classifications of

prison personnel. 

The plaintiff claims that he was not afforded due process

at his disciplinary hearing in that he was handcuffed during the

hearing and because he was denied the right to present witnesses. 

Under Wolff v. McDonnell, 418 U.S. 539 (1974), a prisoner facing

disciplinary charges and the potential imposition of an atypical

and significant hardship in comparison to imprisonment in general 

has the right to present evidence and call witnesses. However,

the fact that imperfect process was afforded, or process was

afforded constituting less than the full process to which the

plaintiff would have been entitled if he had faced an atypical

and significant hardship, is of no constitutional significance

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when the plaintiff was not facing the loss of a constitutionally

protected liberty interest. Smith v. Messinger, supra. 

The plaintiff alleges that the defendants conspired

against him. The correctional defendants argue that the

allegations of conspiracy should be dismissed because the

allegations are broad and conclusory. The plaintiff claims that

his legal materials were destroyed and that he suffered physical

deprivations and injuries as the result of the defendants’

conduct. He claims that his Eighth Amendment rights were

violated. The defendants assert that these claims should be

dismissed because individual defendants’ personal involvement in

conduct constituting a violation of the plaintiff’s

constitutional rights is not alleged. 

The plaintiff has presented a broad and conclusory

conspiracy claim. The complaint does allege an object of the

alleged conspiracy, to subject the plaintiff to onerous

disciplinary conditions of confinement so as to end his life and

so as to deter other prisoners from resorting to law suits. The

actions allegedly taken by co-conspirators to effect the

conspiracy are the acts of charging the plaintiff with a

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misconduct and causing him to be committed for six months to

disciplinary custody. 

The defendants argue that the claim of a conspiracy to

deny the plaintiff his federally protected rights must be based

upon allegations of facts that show that the purported

conspirators reached some understanding or agreement, or plotted,

planned and conspired together. The defendants cite Rose v.

Bartle, 871 F.2d 331, 366 (3d Cir. 1989), involving a RICO, 18

U.S.C. § 1962, conspiracy pleading. The plaintiff’s conspiracy

claim here is a 42 U.S.C. § 1985 claim. 

42 U.S.C. § 1985 provides:

§ 1985. Conspiracy to interfere with civil

rights

(1) Preventing officer from performing duties. 

If two or more persons in any State or Territory

conspire to prevent, by force, intimidation, or

threat, any person from accepting or holding any

office, trust, or place of confidence under the

United States, or from discharging any duties

thereof; or to induce by like means any officer

of the United States to leave any State,

district or place, where his duties as an

officer are required to be performed, or to

injure him in his person or property on account

of his lawful discharge of the duties of his

office, or while engaged in the lawful discharge

thereof, or to injure his property so as to

molest, interrupt, hinder, or impede him in the

discharge of his official duties;

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(2) Obstructing justice; intimidating party,

witness, or juror. If two or more persons in

any State or Territory conspire to deter, by

force, intimidation, or threat, any party or

witness in any court of the United States from

attending such court, or from testifying to any

matter pending therein, freely, fully, and

truthfully, or to injure such party or witness

in his person or property on account of his

having so attended or testified, or to influence

the verdict, presentment, or indictment of any

grand or petit juror in any such court, or to

injure such juror in his person or property on

account of any verdict, presentment, or

indictment lawfully assented to by him, or of

his being or having been such juror; or if two

or more persons conspire for the purpose of

impeding, hindering, obstructing, or defeating,

in any manner, the due course of justice in any

State or Territory, with intent to deny to any

citizen the equal protection of the laws, or to

injure him or his property for lawfully

enforcing, or attempting to enforce, the right

of any person, or class of persons, to the equal

protection of the laws; 

(3) Depriving persons of rights or privileges. 

If two or more persons in any State or Territory

conspire, or go in disguise on the highway or on

the premises of another, for the purpose of

depriving, either directly or indirectly, any

person or class of persons of the equal

protection of the laws, or of equal privileges

and immunities under the laws, or for the

purpose of preventing or hindering the

constituted authorities of any State or

Territory from giving or securing to all persons

within such State or Territory the equal

protection of the laws; or if two or more

persons conspire to prevent by force,

intimidation, or threat, any citizen who is

lawfully entitled to vote, from giving his

support or advocacy in a legal manner, toward or

in favor of the election of any lawfully

qualified person as an elector for President or

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Vice-President, or as a member of Congress of

the United States; or to injure any citizen in

person or property on account of such support or

advocacy; in any case of conspiracy set forth in

this section, if one or more persons engaged

therein do, or cause to be done, any act in

furtherance of the object of such conspiracy,

whereby another is injured in his person or

property, or deprived of having and exercising

any right or privilege of a citizen of the

United States, the party so injured or deprived

may have an action for the recovery of damages,

occasioned by such injury or deprivation,

against any one or more of the conspirators. 

State prisoners are not a class of persons entitled to

protection against class-based conspiracy under 42 U.S.C. § 1985. 

Nakao v. Rusher, 653 F.Supp. 856 (N.D. Cal. 1982); reh. den. 545

F.Supp. 1091; Bumanen v. Hannon, 623 F.Supp. 445 (D.Minn. 1985). 

The events leading to the plaintiff’s disciplinary

confinement allegedly involved the participation of each of the

defendants. However, apart from superimposing the word

“conspiracy” upon the events, the plaintiff’s allegations consist

of relating the events. The imposition of a disciplinary process

and of punishment against a prisoner by prison staff is not a

conspiracy to violate the prisoner’s federally protected rights

in the absence of a plan and agreement to violate the prisoner’s

federally protected rights and in the absence of the

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identification of some right and the basis for inferring a

conscious agreement to deny or to withhold it. 

The motion of defendants DelRosso, Nish, Jones, Colleran,

Friedman, Pauci, Burke and Fisk to dismiss the complaint should

be granted. 

Defendants Loomis and Physician Health Services, Inc.

have argued that the complaint should be dismissed as to them

because an actionable claim of conspiracy under 42 U.S.C.

§ 1985(3) is not alleged, because an actionable claim under 42

U.S.C. § 1986 is not alleged, because the plaintiff has not

stated a claim upon which relief can be granted of deliberate

indifference to a serious medical need and because no facts

involving defendant Prison Health Services, Inc. are alleged. 

As stated above, an actionable cause of action against

any defendant under 42 U.S.C. § 1985 is not stated, and

accordingly the conspiracy claim should be dismissed as to

defendant Loomis. There is no allegation showing a plan or

agreement, no allegation of a racial or a class-based

discriminatory animus, no allegation of a conspiratorial

objective to deprive the plaintiff of equal protection under the

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law and no allegation of an act by defendant Loomis in

furtherance of a conspiracy. 

There is not an allegation made in the plaintiff’s

complaint that if true would support an inference that any

defendant has been deliberately indifferent to a serious medical

need of the plaintiff. The plaintiff alleges that he suffered a

fractured arm, but he does not allege that he did not receive

medical staff attention to his broken arm. The plaintiff’s

amended complaint alleges that defendant Loomis is the direct

cause of all disability outlined in the amended complaint, but

this statement is conclusory and contradicted throughout. 

There is not an allegation or set of allegations in the

complaint that is or are reasonably construed to state a claim

that a defendant was personally involved in a deliberate

indifference to a serious medical need of the plaintiff. 

No conduct resulting in a violation of the plaintiff’s

federally protected rights on the part of the corporate defendant

is stated. 

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It is recommended that the defendants’ motions be granted

and that the plaintiff’s amended complaint be dismissed and that

the file be closed. 

/s/ J. Andrew Smyser

 J. Andrew Smyser

 Magistrate Judge

Dated: November 4, 2005. 

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