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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BENJAMIN SMITH, : No. 3:CV-05-2663

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Blewitt)

:

OFFICER SHADY, ET AL., :

:

Defendants :

MEMORANDUM AND ORDER

February 8, 2006

The plaintiff, Benjamin Smith (“Plaintiff” or “Smith”), a prisoner

proceeding pro se, initiated this 42 U.S.C. § 1983 action by filing a complaint in

the United States District Court for the Middle District of Pennsylvania on

December 27, 2005, naming fourteen Defendants employed by the Pennsylvania

Department of Corrections (“DOC”). 

The case was referred to Magistrate Judge Thomas M. Blewitt for

preliminary review. On January 11, 2006, Magistrate Judge Blewitt issued a report

recommending that this case proceed only with respect to Plaintiff’s Eighth

Amendment claim against Defendants Shady and Chaplain. (See Rec. Doc. 8). 

The Magistrate Judge recommended that the remaining twelve Defendants be

dismissed and that the case be remanded to him for further proceedings against the

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 As a pro se prisoner, Plaintiff is entitled to the prisoner mailbox rule which means a

document is deemed filed when it is deposited in the prison mailroom. See Houston v. Lack,

487 U.S. 266, 270-71 (1988); United States v. Fiorelli, 337 F.3d 282, 289 (3d Cir. 2003)

(quoting In re Flanagan, 999 F.2d 753, 759 (3d Cir. 1993)) (“[T]he prison mailroom is

essentially ‘an adjunct of the clerk’s office,’ and a jurisdictionally sensitive document is deemed

filed on deposit.”); see also Burns v. Morton,134 F.3d 109, 113 (3d Cir. 1998) (holding pro se

prisoner’s habeas petition is deemed filed at the moment he delivers it to prison officials for

mailing to the district court). Accordingly, Plaintiff’s objections, which are dated January 29,

2006, are deemed filed on January 29, 2006, which is within the period for filing objections.

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remaining two Defendants. 

Objections to the Magistrate Judge’s Report and Recommendation were due

by January 30, 2006 and were filed by Plaintiff on January 29, 2006.1

 For the

reasons that follow, we will adopt the report and recommendation in part and reject

it in part. 

STANDARD OF REVIEW:

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 72.3. 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,

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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).

DISCUSSION:

Plaintiff has filed objections to the report and recommendation which will be

the subject of the narrative that follows.

We initially note that to state a claim pursuant to 42 U.S.C. § 1983, Plaintiff

must show that the Defendants acted under color of state law, that a federally

secured right was implicated, and that the Defendants deprived Plaintiff or caused

the deprivation of that right. Parratt v. Taylor, 451 U.S. 527, 535 (1981). 

“Liability may not be imposed under § 1983 on the principle of respondeat

superior.” Hetzel v. Swartz, 909 F. Supp. 261, 264 (M.D. Pa. 1995). The Third

Circuit has explained that liability under 42 U.S.C. § 1983 may only be based upon

a defendant’s personal involvement in conduct amounting to a constitutional

violation. See Shabazz v. Nagy, 76 Fed. Appx. 417, 419 (3d Cir. 2003); see also

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). 

First, Plaintiff objects to the Magistrate Judge’s finding that as a result of the

harassment and assaults by Defendants Shady and Chaplain, Plaintiff does not state

that he suffered any physical injury or mental symptoms. (Rep. & Rec. at 5). In

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that regard, Plaintiff argues that his allegations in the complaint concerning the fact

that Officer Shady grabbed his penis demonstrate that “the Plaintiff has alleged

physical and psychological injury and the pleading should not be held to a standard

of drafting expected of counsel.” (Rec. Doc. 12 at 3). 

Plaintiff’s complaint brought pursuant to 42 U.S.C. § 1983 requests

compensatory and punitive damages. Section 1997e(e) of Title 42 of the United

States Code states that “no Federal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of physical injury.” Such

injury may be “less-than-significant-but-[must be]-more-than-de-minimis.” 

Mitchell v. Horn, 2005 U.S. Dist. LEXIS 8139, *3-5 (E.D. Pa. 2005)(quoting

Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003)). After a careful review of the

record, we are in agreement with the Magistrate Judge that Plaintiff’s allegations in

the complaint concerning Officer Shady grabbing his penis and holding it in her

hand do not constitute a physical injury or mental symptoms. Any injury that may

have resulted from such action(s) is de minimis and accordingly insufficient to

comprise a physical injury under 42 U.S.C. § 1997e(e). See Allah v. Al-Hafeez,

226 F.3d 247, 250-51 (3d Cir. 2000). 

Second, Plaintiff objects to the Magistrate Judge’s finding that Plaintiff has

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not sufficiently alleged that he suffered adverse actions by Defendants Dougherty

and Walker as a result of his grievance since Plaintiff had no right to cable

television in the prison. (Rep. & Rec. at 7-9). Plaintiff asserts that the Magistrate

Judge’s finding places an unnecessary burden upon him to demonstrate that an

adverse action occurred. Plaintiff contends that he has stated a retaliation claim

against Defendants Dougherty and Walker.

We initially note that in Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001), the

Third Circuit Court of Appeals instructed that as a threshold matter, a prisonerplaintiff in a retaliation case must prove that the conduct which led to the alleged

retaliation was constitutionally protected. Second, a prisoner litigating a retaliation

claim must show that he suffered some “adverse action” at the hands of the prison

officials. Id. at 333. Finally, once these two threshold criteria are met, a prisonerplaintiff must prove a causal link between the exercise of his constitutional rights

and the adverse action taken against him. Id. 

In the case sub judice, liberally construing Plaintiff’s pro se pleading, the

Magistrate Judge determined that Plaintiff met the threshold requirement of a

retaliation claim by asserting that Defendants Dougherty and Walker retaliated

against him for his filing of a prior grievance, which is protected by the First

Amendment. (Rep. & Rec. at 8). As the Magistrate Judge noted, the constitutional

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right of an inmate to seek a remedy for his grievances without suffering retaliation

was well-established at the time the violations alleged by Plaintiff occurred in this

case. Id.; see Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988). With regard to the

adverse action at the hands of the prison officials; however, the Magistrate Judge

found that Plaintiff did not sufficiently allege that he suffered adverse actions by

Defendants Dougherty and Walker as a result of his grievance as he had no right to

cable television in the prison. (Rep. & Rec. at 8-9). We find that Plaintiff

accurately submits that the law in the Third Circuit indicates that a prisoner

litigating a retaliation claim need not prove that he had an independent liberty

interest in the privileges he was denied. Rauser, 241 F.3d at 333. Instead, as

noted, a prisoner litigating a retaliation claim must show that he suffered some

“adverse action” at the hands of the prison officials, which he can satisfy by

demonstrating that the action “was sufficient to deter a person of ordinary firmness

from exercising his [constitutional] rights.” Id. (citing Allah v. Seiverling, 229

F.3d 220, 225 (3d Cir. 2000)). Plaintiff has alleged that after he filed a grievance,

Defendants Dougherty and Walker retaliated against him by cutting off his cable

television service. At this early juncture of the case and liberally construing the

pro se Plaintiff’s complaint, we find that he has alleged that he suffered an adverse

action at the hands of prison officials and that he has alleged a causal link between

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the exercise of his constitutional rights, filing a grievance, and the adverse action

taken against him, having his cable television service taken away. Accordingly, we

respectfully disagree with the learned Magistrate Judge’s conclusion and instead

find that Plaintiff has stated a retaliation claim upon which relief can be granted as

against Defendants Dougherty and Walker. 

Third, Plaintiff objects to the Magistrate Judge’s finding that since he does

not allege actual injury or adverse action with respect to his First Amendment

claim against Defendant Tennis, it must fail. Plaintiff asserts that his claims

against Defendant Tennis should be sustained as both retaliation and

“constitutional infringement” claims as “it is well established that Plaintiff’s claim

that his legal mail was repeatedly opened is central to the right of court access and

does not require an actual injury demonstration.” (Rec. Doc. 12 at 5). 

In the complaint, Plaintiff alleges that for months after filing a grievance as a

result of being sexually harassed and assaulted by Defendant Shady on several

occasions, Defendant Tennis began opening and reading his legal mail “even

violating a Court Order to desist from doing so, outside [his] presence.” (Rec.

Doc. 1 at 2). Plaintiff also alleges that Defendant Tennis’s failure to discipline

caused the assaults on him. 

First, we are in agreement with the Magistrate Judge that Plaintiff has failed

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 In the complaint, Plaintiff’s allegation regarding Defendant Tennis opening and reading

his legal mail immediately follows Plaintiff’s retaliation allegation as against Defendants

Dougherty and Walker and it indicates that such conduct occurred for months after Plaintiff had

filed a grievance. 

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 We do note that Plaintiff has alleged that after filing a grievance, Defendant Tennis

began opening and reading his legal mail. Plaintiff does not indicate whether such conduct also

occurred prior to his filing of the grievance. If, for example, discovery reveals that it was

standard practice in the prison to open and read prisoner’s mail, then this factor could be of

potential detriment to Plaintiff’s retaliation claim. It does not however change our view as to the

viability of Plaintiff’s claim at this early stage of the proceedings. 

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to state an Eighth Amendment claim against Defendant Tennis as there is no claim

that Defendant Tennis was aware that Plaintiff was at risk from sexual assaults by

staff or that he was assaulted in the past. Second, we are construing Plaintiff’s

allegations against Defendant Tennis as that of a retaliation claim, as opposed to a

denial of access to the court claim.2

 We disagree with the Magistrate Judge that

Plaintiff has not stated a retaliation claim against Defendant Tennis. We find that

liberally construing Plaintiff’s pro se pleading and in the exercise of caution, he

has stated a retaliation claim by alleging that for months after filing a prior

grievance, which, as noted, is protected by the First Amendment, Plaintiff suffered

adverse action at the hands of Defendant Tennis as he began opening and reading

Plaintiff’s legal mail. Id. (citing Allah, 229 F.3d at 225). In addition, we conclude

that Plaintiff has demonstrated a causal nexus between his constitutionally

protected conduct and the adverse action alleged. Rauser, 241 F.3d at 333. 

Therefore, Plaintiff has stated a retaliation claim against Defendant Tennis.3

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Fourth, Plaintiff objects to the Magistrate Judge’s finding that he did not

state a claim against Defendants Dickson, Knepp, and Karchner. In the complaint,

Plaintiff’s only allegation against Defendants Dickson, Knepp, and Karchner is that

they “knew C/O Shady was sexually out of control and placed [him] at risk through

deliberate indifference.” (Rec. Doc. 1 at 2). As the Magistrate Judge explained,

the United States Supreme Court has instructed that while “[t]he Constitution does

not mandate comfortable prisons, . . . neither does it permit inhumane ones . . .” 

Farmer v. Brennan, 511 U.S. 825, 832 (1994)(quoting Rhodes v. Chapman, 452

U.S. 337, 349 (1981)(internal citations omitted). “[I]t is now settled that ‘the

treatment a prisoner receives in prison and the conditions under which he is

confined are subject to scrutiny under the Eighth Amendment.’” Farmer, 511 U.S.

at 832 (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)). The United States

Supreme Court has stated that conditions of confinement will violate the Eighth

Amendment if the following two-prong test is met: (1) the deprivation is

sufficiently serious; and (2) deliberate indifference by the prison official

defendants. Farmer, 511 U.S. at 834. As the Magistrate Judge noted, simply

stated, an Eighth Amendment violation exists when the prisoner is denied “the

minimal civilized measure of life’s necessities” and the prison official acted with

recklessness. Id. at 834-35 (quoting Rhodes, 452 U.S. at 347). To find an Eighth

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Amendment violation regarding conditions of confinement, the evidence must

show that the prison official was both aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw

the inference. Farmer, 511 U.S. at 836-37. 

After a careful review of the record and in liberally construing Plaintiff’s

complaint, we are in agreement with the Magistrate Judge that Plaintiff fails to

state an Eighth Amendment claim against Defendants Dickson, Knepp, and

Karchner. (Rep. & Rec. at 11-12). Plaintiff’s single sentence allegation that the

aforementioned Defendants “knew C/O Shady was sexually out of control and

placed me at risk through deliberate indifference” notably does not indicate that

such Defendants knew Defendant Shady was out of control towards Plaintiff. 

Moreover, Plaintiff’s allegation does not reveal such Defendants knew Defendant

Shady had threatened Plaintiff in the past or had assaulted Plaintiff previously. In

addition, there is no claim that Plaintiff was placed in risk of serious injury by

Defendants. As there is no allegation that Defendants Dickson, Knepp, and

Karchner knew Defendant Shady was a threat to Plaintiff or that Defendant Shady

had previously assaulted Plaintiff, we find that Plaintiff has failed to state an

Eighth Amendment claim against such Defendants. 

Plaintiff’s final objection to the Magistrate Judge’s report concerns whether

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 In his objections, Plaintiff states that he agrees with the Magistrate Judge’s report that

he has not stated actionable claims against Defendants Beard, Vaughn, Kerstetter, and Eaton. 

(Rec. Doc. 12 at 7-8). 

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he stated a claim against Defendants Dale and Kearn.4 In the complaint, Plaintiff’s

only allegation as against Defendants Dale and Kearn is that they “both failed to

investigate my claims which led to the indecent assault [by Defendant Chaplain].” 

(Rec. Doc. 1 at 2). Although in his objections, Plaintiff argues that interpretation

of the allegation reveals that he notified Defendants Dale and Kearn about the

harassment, but because they failed to remedy the situation, an indecent assault

occurred, we disagree. A thorough review of Plaintiff’s complaint indicates that he

has failed to allege that Defendants Dale and Kearn were aware of facts that he was

at a substantial risk of serious harm from a sexual assault by Defendant Chaplain or

that they drew such an inference. We agree with the Magistrate Judge that we do

not comprehend how an alleged failure to investigate claims of sexual assault by

Defendant Shady resulted in the alleged assault by Defendant Chaplain. 

Accordingly, Defendants Dale and Kearn shall be dismissed from this action. 

Finally, we agree with the Magistrate Judge that the alleged repetitive sexual

harassment, coupled with the assaults, are sufficiently serious to assert a

recognizable Eighth Amendment claim as against Defendants Shady and Chaplain. 

In that regard, Plaintiff contends that the Eighth Amendment was violated because

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Defendants Shady and Chaplain sexually assaulted him, made sexual comments

towards him, and sexually harassed him. “The Eighth Amendment encompasses

the treatment a prisoner receives while incarcerated, including sexual harassment,

as long as two elements are met.” Harris v. Zappan, 1999 WL 360203 *4 (E.D. Pa.

1999). The Harris Court then stated the following:

In the context of sexual harassment, this element requires severe or

repetitive sexual abuse of an inmate by a prison officer. The second

element is subjective; whether the official had a sufficiently culpable

state of mind. Where no legitimate law enforcement or penalogical

purpose can be inferred from the defendant’s alleged conduct, the

abuse itself may, in some circumstances, be sufficient evidence of a

culpable state of mind.

Id. (internal citations omitted). Accordingly, as noted, we find that the alleged

repetitive sexual harassment, coupled with the assaults, are sufficiently serious to

assert an Eighth Amendment claim against Defendants Shady and Chaplain. 

CONCLUSION:

Based on the foregoing, this case shall proceed with respect to Plaintiff’s

retaliation claims against Defendants Dougherty, Walker, and Tennis and with

respect to Plaintiff’s claim under the Eighth Amendment against Defendants Shady

and Chaplain. The remaining named Defendants will be dismissed.

NOW, THEREFORE, IT IS ORDERED THAT:

1. Magistrate Judge Blewitt’s Report and Recommendation (doc. 8) is

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accepted in part and rejected in part.

2. Magistrate Judge Blewitt’s Report and Recommendation is rejected to

the extent that Defendants Dougherty, Walker, and Tennis are not

dismissed from this action.

3. This case shall proceed with respect to Plaintiff’s retaliation claims

against Defendants Dougherty, Walker, and Tennis. This case shall

also proceed only with respect to Plaintiff’s claim under the Eighth

Amendment against Defendants Shady and Chaplain. 

4. The remaining named Defendants are dismissed.

5. This case is remanded to Magistrate Judge Blewitt for further

proceedings against the five (5) remaining Defendants. 

s/ John E. Jones III

John E. Jones III

United States District Judge

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