IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

JOHN ALEXANDER, 

Plaintiff 

V. 

B. MYERS, E. SPECK, D. WISER, 

S. ELLENBERGER, K. KIFER, 

J. TAYLOR, C. GREENLEAF, 

Defendants 

Civil No. 3:22-cv-1195 

(Judge Mariani) 

MEMORANDUM 

Plaintiff John Alexander ("Alexander"), an inmate in the custody of the Pennsylvania 

Department of Corrections ("DOC"), initiated this civil rights action pursuant to 42 U.S.C. § 

1983. (Doc. 1 ). The matter is proceeding via an amended complaint. (Doc. 17). Named 

as Defendants are corrections lieutenant Myers, corrections lieutenant Speck, corrections 

lieutenant Wiser, corrections officer Taylor, corrections officer Greenleaf, hearing examiner 

Ellenberger, and inmate accounts supervisor Kifer. Presently before the Court is 

Defendants' Rule 12(b) motion (Doc. 21) to dismiss. For the reasons set forth below, the 

motion will be granted in part and denied in part. 

I. Allegations of the Amended Complaint 

On June 20, 2019, Alexander was transferred to the State Correctional Institution at 

Smithfield ("SCI-Smithfield"). (Doc. 17 ~ 10). He first alleges that Defendants Myers, 

Speck, Greenleaf, and Kifer violated his First Amendment right of access to the courts by 

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interfering with his in forma pauperis documents in another civil case, number 3:19-CV-947. 

(Id.1114-23, 127). Alexander asserts that his other civil case, number 3:19-CV-947, was 

dismissed on August 15, 2019, based on his failure to file the in forma pauperis documents. 

(Id. 126). He further claims that these alleged actions constituted retaliation under the First 

Amendment. (Id. 1127). 

Alexander next alleges that he was exposed to oleoresin capsicum ("OC") spray on 

February 2, 2020, February 10, 2020, and February 11, 2020, when correctional officers 

sprayed other inmates in the restricted housing unit ("RHU"). (Id. 1154-57). He claims that 

Defendants Wiser, Myers, and Speck "directed or authorized" the use of OC spray against 

the other inmates. (Id. 157). Alexander filed grievance numbers 848561 and 851096 

related to the use of OC spray. (Id. 158). He alleges that Defendant Wiser interviewed him 

in connection with these grievances, stated that the grievances were frivolous, and asked 

him to withdraw the grievances. (Id. 159). Alexander refused, and Defendant Wiser 

allegedly told him it would be "better" if he did not continue fi ling grievances. (Id.). 

On June 24, 2020, Defendants Wiser, Greenleaf, and Taylor allegedly searched 

Alexander's cell and personal property, and left his property "in complete disarray." (Id. 11 

69-70). Alexander alleges that Defendants Wiser, Greenleaf, and Taylor confiscated his 

legal documents, research notes, witness affidavits, photos, institutional papers, address 

and phone book, and old letters. (Id. 172). Defendant Greenleaf gave him a confiscated 

items receipt, number 8924054. (Id. 173). Alexander claims that the receipt did not list all 

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of the confiscated items. (Id.). On June 29, 2020, Alexander filed a grievance about the 

search and property confiscation. (Id. ,r 74). He alleges that Defendant Myers supervised 

the preparation of the confiscated items receipt and directed Defendant Greenleaf to omit 

certain items. (Id. ,r 76). 

On July 2, 2020, Alexander attended a misconduct hearing on charges of 

possession of a controlled substance, possession of contraband, conspiracy, and 

unauthorized use of the mail and telephone. (Id. ,r,r 77, 79). Hearing examiner Szelewski, 

a non-defendant, presided over the hearing and ultimately dismissed the charges . (Id. ,r 

77). Alexander claims that Defendant Myers was "irritated and angry" about the dismissal of 

these charges and stated that the charges would be refiled. (Id. ,r 78). 

On July 2, 2020, Defendant Myers filed inmate misconduct number 0450789, 

charging Alexander with the same violations. (Id. ,r,r 79-81). Alexander contends that the 

charges were based on Defendant Myers' "interpretation of Plaintiffs written and verbal 

communications," the alleged contraband found at Alexander's sister's residence, and 

allegations that Alexander conspired with his daughter and others to smuggle drugs through 

the mail. (Id. ,r?9). A disciplinary hearing was held for misconduct number 0450789 and 

Defendant Ellenberger presided as the hearing examiner. (Id. ,r,r 83-84). Alexander 

refused to plead guilty to the charges. (Id. ,r,r 85-87). He alleges that Defendant 

Ellenberger declined to call witnesses or review the evidence and found him guilty of all 

misconduct charges. (Id.). Alexander appealed the guilty finding to all levels of appeals, 

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and the hearing examiner's determination was upheld at every stage. (Id. 1191-92). 

Alexander alleges that he was found guilty of the charges because Defendants Myers, 

Speck, and Wiser "manufactured and/or 'interpreted"' evidence to implicate him, and 

strategically assigned Defendant Ellenberger as the hearing examiner. (Id. 1196-102). 

In 2020, Defendants Myers and Speck allegedly requested that Alexander be placed 

in the DOC's Drug Elimination Management Operation ("DEMO") program. (Id.1108). The 

• DEMO program confines inmates to segregated housing with limited privileges for at least 

one year. (Id. 1111 ). Alexander contends that Defendants Myers and Speck relied on 

misconduct number D450789 to support the request for placement into the DEMO program. 

(Id. 11 108-110). He further alleges that Defendants initiated this request in retaliation for 

Alexander's filing of inmate grievances and civil suits. (Id. 1112). 

Alexander also alleges that he was restricted from calling his son and daughter. (Id. 

193). On July 20, 2020, he sent a request to staff member to Defendant Myers about the 

restriction of his daughter's phone number. (Id. 193). In response, on July 22, 2020, 

Alexander claims that Defendant Myers "implicitly acknowledged" that his daughter was not 

involved in his drug-related misconduct. (Id.). He further claims that Defendants Myers, 

Speck, and Wiser approved these phone restrictions. (Id. 194). Alexander asserts that 

Defendants defamed his daughter because she was not involved with his alleged drug 

trafficking into a state correctional facility. (Id.11106, 136). On July 27, 2020, Alexander 

filed a grievance wherein he complained that Defendants Myers, Speck, and Wiser abused 

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their authority in preventing phone calls with his son and daughter. (Id. ~ 95). The 

grievance was denied. (Id.). 

II. Legal Standard 

A complaint must be dismissed under FED. R. CIv. P. 12(b)(6), if it does not allege 

"enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v. 

Twombly, 550 U.S. 544,570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must 

aver "factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 

1937, 1949, 173 L. Ed. 2d 868 (2009). 

"Though a complaint 'does not need detailed factual allegations, . . . a formulaic 

recitation of the elements of a cause of action will not do."' De/Rio-Mocci v. Connolly Prop. 

Inc. , 672 F.3d 241,245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, 

"[fjactual allegations must be enough to raise a right to relief above the speculative level." 

Covington v. Int'/ Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) 

(internal citations and quotation marks omitted). A court "take[s] as true all the factual 

allegations in the Complaint and the reasonable inferences that can be drawn from those 

facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a 

cause of action , supported by mere conclusory statements." Ethypharm S.A. France v. 

Abbott Laboratories, 707 F.3d 223,231, n.14 (3d Cir. 2013) (internal citations and quotation 

marks omitted). 

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Twombly and Iqbal require [a district court] to take the following three steps to 

determine the sufficiency of a complaint: First, the court must take note of the 

elements a plaintiff must plead to state a claim. Second, the court should 

identify allegations that, because they are no more than conclusions, are not 

entitled to the assumption of truth . Finally, where there are well-pleaded 

factual al legations, a court should assume their veracity and then determine 

whether they plausibly give rise to an entitlement for relief. 

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). 

"[W]here the well-pleaded facts do not permit the court to infer more than the mere 

possibil ity of misconduct, the complaint has alleged - but it has not show[n] - that the 

pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks 

omitted). This "plausibility" determination will be a "context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense." Id. 

However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court 

must permit a curative amendment unless such an amendment would be inequitable or 

futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). 

Id. 

[E]ven when plaintiff does not seek leave to amend his complaint after a 

defendant moves to dismiss it, unless the district court finds that amendment 

would be inequitable or futile, the court must inform the plaintiff that he or she 

has leave to amend the complaint within a set period of time. 

Ill. Discussion 

Defendants move to dismiss the amended complaint on the following grounds: ( 1) 

Alexander failed to state any claim upon which relief can be granted; (2) Alexander is not 

entitled to declaratory and injunctive relief; and (3) all claims are barred by the two-year 

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statute of limitations. ( See Doc. 25). The Court will first address the threshold question of 

whether the applicable statute of limitations bars Alexander from bringing this action. The 

Court will then proceed to address the merits of Alexander's claims . 

A. Statute of Limitations 

Defendants seek to dismiss the amended complaint as barred by the statute of 

limitations. (Doc. 25, pp. 36-37). They seemingly argue that because the statute of 

limitations defect is clear on the face of the complaint, i.e., the cause of action accrued in 

June of 2019, and the complaint was file-stamped on August 5, 2022, it is appropriate to 

address the issue on a motion to dismiss. (Id.) . 

"A complaint is subject to dismissal for failure to state a claim on statute of limitations 

grounds only when the statute of limitations defense is apparent on the face of the 

complaint." Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). "In actions under 42 

U.S.C. § 1983, federal courts apply the state's statute of limitations for personal injury." 

Sameric Corp. v. City of Phi/a., 142 F.3d 582,599 (3d Cir. 1998). The statute of limitations 

for personal injury actions in Pennsylvania is two years. See id.; PA. CONS. STAT. ANN . § 

5524. "A section 1983 cause of action accrues when the plaintiff knew or should have 

known of the injury upon which its action is based." Sameric Corp., 142 F.3d at 599. 

"Rule 15(c) can ameliorate the running of the statute of limitations on a claim by 

making the amended claim relate back to the original, timely filed complaint." Singletary v. 

Pa. Oep't of Corr. , 266 F.3d 186, 193 (3d Cir. 2001). The Rule provides: an "amendment to 

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a pleading relates back to the date of the original pleading when ... the amendment asserts a 

claim or defense that arose out of the conduct, transaction, or occurrence set out-or 

attempted to be set out-in the original pleading." FED. R. CIV. P. 15(c)(1 )(B). "The 

rationale of Rule 15(c) is that a party who has been notified of litigation concerning a 

particular occurrence has been given all the notice that statutes of limitations were intended 

to provide." Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149 n.3 (1984). 

Alexander's claims arose in Pennsylvania; thus, the applicable statute of limitations 

is Pennsylvania's two-year statute of limitations for personal injury actions. The allegations 

of the amended complaint pertain to incidents that admittedly occurred several years ago. 

(Doc. 17). Alexander asserts that he arrived at SCI-Smithfield on June 20, 2019, and the 

events at issue occurred immediately thereafter, and up until July 27, 2020. Based on these 

allegations, the statute of limitations began running at the latest, on July 27, 2020. 

Alexander filed his original complaint on July 28, 2022. 1 He filed an amended complaint on 

November 10, 2022. 2 The amended complaint contains essentially the same claims as the 

original complaint, and, therefore, relates back to the time the original complaint was filed. 

See Glover v. FDIC, 698 F.3d 139, 146 (3d Cir. 2012) (holding that "the underlying question 

1 Although the docket states that the complaint was filed on August 5, 2022, this is the date it 

was received by the Court. Under the prisoner mailbox rule, the complaint is deemed filed when Alexander 

handed it to prison officials for mailing, which was on July 28, 2022. See Pabon v. Mahanoy, 654 F.3d 385, 

391 n.8 (3d Cir. 2011) ("The federal 'prisoner mailbox rule' provides that a document is deemed filed on the 

date it is given to prison officials for mailing."). 

2 The amended complaint was received on December 1, 2022, but dated November 10, 2022. 

See Pabon, 654 F.3d at 391 n.8 (discussing the federal prisoner mailbox rule). 

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for a Rule 15( c) analysis is whether the original complaint adequately notified the 

defendants of the basis for liability the plaintiffs would later advance in the amended 

complaint" (internal quotations omitted)). Absent tolling, it appears that Alexander needed 

to commence this action by July 27, 2022, and that his original complaint was filed one day 

late on July 28, 2022. 

Alexander admits that "some of the predicate events occurred in 2019" and are thus 

untimely. (Doc. 27, p. 2). However, he argues that the Court should toll the statute of 

limitations: (1) during the time he exhausted his prison administrative remedies; (2) because 

he was not aware of all the circumstances surrounding his lawsuit until approximately 

March, 2022 and May, 2022; and (3) because of the continuing violation doctrine. (Doc. 17 

~~ 117-125; Doc. 27, pp. 2-6). 

First, under the federal Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, a 

prisoner is required to exhaust available prison administrative remedies before commencing 

a lawsuit asserting claims based on his conditions of confinement. While the prisoner 

exhausts such administrative remedies, the statute of limitations is tolled. Wisniewski, 857 

F .3d at 158. Although some of the actions that Alexander complains of occurred more than 

two years prior to the filing of his complaint, the statute of limitations was tolled during the 

time his exhausted his grievances. (See Doc. 17 ~~ 114-116). Accordingly, it cannot be 

determined from the face of the complaint alone whether the statute of limitations bars 

Alexander's claims and Defendants' motion will be denied in this respect. 

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Next, Alexander argues that, with respect to Counts I and V of the amended 

complaint, he was not aware of all the facts necessary to bring those claims until March and 

May of 2022. (Doc. 27, pp. 2-3). The statute of limitations may be subject to equitable 

tolling where it is shown that the plaintiff exercised reasonable diligence in bringing his 

claims. Campbell v. Kelly, 87 F. App'x 234, 236 (3d Cir. 2003). However, it has been 

recognized that the limitations period in a § 1983 action will begin to run even if the plaintiff 

does not know all the facts necessary for his claim, all that is required is that the plaintiff 

have sufficient notice to place him on alert of the need to begin investigating. See Gordon 

v. Lowell, 95 F.Supp.2d 264, 272 (E.D. Pa. 2000); see also New Castle Cnty. v. Halliburlon 

NUS Corp., 111 F.3d 1116, 1125 (3d Cir.1997). "[A] claim accrues upon awareness of 

actual injury, not upon awareness that the injury constitutes a legal wrong." New Castle 

Cnty. , 111 F.3d at 1125 (emphases in original). Because Alexander maintains that he was 

not apprised of the critical facts of Counts I and V until 2022, the Court finds that he has 

established a basis for tolling of the limitations period. 

Lastly, Alexander argues that the Court should excuse his late filing under the 

continuing violation doctrine. "The continuing violation[] doctrine is an equitable exception 

to the statute of limitations." Spencer v. Courlier, 552 F. App'x 121, 123 (3d Cir. 2014). It 

postpones the running of the statute of limitations "when a defendant's conduct is part of a 

continuing practice. " Randall v. City of Philadelphia Law Oeparlment, 919 F.3d 196, 198 

(2019) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am. , 927 F.2d 

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1283, 1295 (3d Cir. 1991)). "If a defendant's conduct constitutes a continuing practice, the 

entire claim may be timely if the last act of the practice falls within the statute of limitations." 

Spencer, 552 F. App'x at 123 (citing Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 

2001 )). Critically, "the continuing-violation[s] doctrine focuses on continuing acts, not 

effects." Randall, 919 F.3d at 199 (emphases in original). "In other words , the doctrine 

relies on a defendant's continuing acts, not a plaintiff's continuing injury." Id. (emphasis in 

original). In sum, a plaintiff must demonstrate that a defendant committed at least one 

affirmative act within the statute of limitations, and that that act was part of a continuing 

practice to violate the plaintiffs rights. Id. ; see a/so Smith v. Dunn, No. 20-2404, 2022 WL 

1011214, at *2 (3d Cir. Apr. 5, 2022). In order to establish that a defendant's conduct was 

part of a continuing practice, a plaintiff must demonstrate that "the defendant's conduct was 

more than isolated or sporadic acts." Spencer, 552 F. App'x at 123. Applying those 

principles here, Alexander argues that Defendants' continuing actions occurred during the 

limitations period or were not immediately discovered. (Doc. 27, p. 3 n.4). Based on these 

allegations, the Court concludes that the continuing violations doctrine saves Alexander's 

claims . 

At this stage, the Court must deny Defendants' motion to dismiss the action as 

barred by the statute of limitations. 

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B. First Amendment Claims 

1. Access to Courts 

Alexander alleges that Defendants violated his First Amendment right of access to 

the courts . In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized a 

prisoner's limited right of access to the courts. Prisoners are not necessarily "capable of 

filing everything" but have a right of access to "attack their sentences, directly or collaterally, 

and in order to challenge the conditions of their confinement." Lewis v. Casey, 518 U.S. 

343, 355 (1996). "The right of access to the courts must be adequate, effective and 

meaningful and must be freely exercisable without hindrance or fear of retaliation." 

Milhouse v. Carlson, 652 F.2d 371,374 (3d Cir. 1981) (internal citations omitted). Following 

Lewis, courts have consistently recognized that such claims require some proof of an 

actual, concrete injury, in the form of direct prejudice to the plaintiff in the pursuit of some 

legal claim. See 0/iverv. Fauver, 118 F.3d 175 (3d Cir. 1997). An inmate must 

demonstrate "( 1) that they suffered an actual injury-that they lost a chance to pursue a 

non-frivolous or arguable underlying claim; and (2) that they have no other remedy that may 

be awarded as recompense for the lost claim other than in the present denial of access 

suit." Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (quoting Christopher v. Harbury, 

536 U.S. 403, 415 (2002)) (internal quotations omitted). 

The confiscation or destruction of legal materials by prison officials may constitute a 

denial of court access. See Zilich v. Lucht, 981 F.2d 694, 695-96 (3d Cir. 1992). However, 

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Alexander has not established that "he lost the opportunity to pursue a nonfrivolous or 

arguable underlying legal claim due to the actions of defendants." Blanchard v. Fed. 

Bureau of Prisons, 428 F. App'x 128, 130 (3d Cir. 2011) (citing Monroe, 536 F.3d at 205-

06). Alexander alleges that his prior civil case, number 3:19-CV-947, was dismissed for 

failure to submit the requisite documents to proceed in forma pauperis. Review of the 

docket for civil action number 3:19-CV-947 reveals that Alexander initiated the action 

without submitting the in forma pauperis documents. See Alexander v. Cumberland Cnty., 

et al., No. 3:19-CV-947 (M.D. Pa.). Therefore, on June 5, 2019, the Court ordered 

Alexander to submit the appropriate documents. Id., Doc. 8. On July 8, 2019, Alexander 

submitted an application to proceed in forma pauperis; however, the application was an 

incorrect form. Id., Doc. 9. The Court then issued a second order directing Alexander to 

submit the proper financial forms. Id., Doc. 10. Alexander failed to comply with the order, 

and the case was dismissed without prejudice on August 15, 2019. Id., Doc. 11. On 

September 26, 2019, Alexander filed an appeal to the United States Court of Appeals for 

the Third Circuit. Id. , Doc. 12. The Third Circuit dismissed the appeal, and, on October 23, 

2019, Alexander filed a motion to reopen his action in this Court. Id., Docs. 14, 15. 

Because Alexander failed to submit the proper financial forms along with his motion, the 

Court denied the motion to reopen. Id., Doc. 17. 

In the instant action, Alexander alleges that Defendants interfered with his ability to 

submit documents in civil action number 3:19-CV-947. However, the docket for civil action 

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number 3:19-CV-947 reflects that he properly submitted filings during the time in question. 

In any event, Alexander has not described his allegedly lost claims with any specificity such 

that the Court could plausibly conclude that those claims are nonfrivolous or arguable. See 

Presbury v. Wetzel, 789 F. App'x 294, 295 (3d Cir. 2020) (per curiam) (affirming the 

dismissal of access to courts claim based on the CERT team's loss of plaintiffs legal 

property where plaintiff "did not allege any facts about the merits of his underlying claim" 

and did not "demonstrate that the loss of his legal materials, while unfortunate and 

inconvenient, has rendered him unable to seek the District Attorney's review"); Bowens v. 

Matthews, 765 F. App'x 640, 643 (3d Cir. 2019) ("To the extent that Bowens described his 

PCRA claim at all, he did not describe it well enough to show that it is 'nonfrivolous' or 

'arguable."'); Monroe, 536 F.3d at 206 (plaintiffs' allegations that "defendants confiscated 

their legal materials" and that "they lost the opportunity to pursue attacks of their convictions 

and civil rights claims" without "specify[ing] facts demonstrating that the claims were 

nonfrivolous" did not state a claim). A mere hope that he would have been successful is 

insufficient to meet the actual injury requirement. See Monroe, 536 F.3d at 205-06 (stating 

that the complainant in an access to the courts claim "must describe the underlying 

arguable claim well enough to show that it is 'more than mere hope', and it must describe 

the 'lost remedy."') (citation omitted). Consequently, Defendants' motion to dismiss this 

First Amendment claim will be granted. 

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2. Interference with Mail 

The Supreme Court has made clear that prisoners do not surrender all constitutional 

rights during their confinement, and the Supreme Court has instructed that "federal courts 

must take cognizance of the valid constitutional claims of prison inmates." Turner v. Safley, 

482 U.S. 78, 84 (1987). The Third Circuit has explained that prisoners "do not forfeit their 

First Amendment right to use of the mails," particularly with respect to privileged "legal mail" 

exchanged with counsel, and that a "pattern and practice of opening properly marked 

incoming [legal] mail outside an inmate's presence infringes communication protected by 

the right to free speech." Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), abrogated in 

part by Oliver, 118 F.3d 175; Taylor v. Oney, 196 F. App'x 126, 128 (3d Cir. 2006) 

(reaffirming holding in Bieregu that "prison officials impinge upon the First Amendment 

rights of prisoners when they open prisoners' legal mail outside the presence of the 

addressee prisoner."). 

In order to state a claim of this sort under the First Amendment, a prisoner must 

allege that the interference with his legal mail was done according to a "pattern and 

practice." Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) ("A state pattern and 

practice .. . of opening legal mail outside the presence of the addressee inmate ... impinges 

upon the inmate's right to freedom of speech."). A prisoner may allege that actions were 

taken pursuant to a pattern or practice without the existence of a "blanket policy." See, e.g. , 

Jones, 461 F.3d at 359 (distinguishing between a "pattern and practice" and an "explicit 

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policy"). Prisoners need not allege or prove any "actual injury" beyond the direct injury to 

their First Amendment right to use the mails. Taylor, 196 F. App'x at 128. 

Notably, courts have found that mere isolated incidents of opening legal mail outside 

of an inmate's presence, without evidence of an improper motive, is insufficient to establish 

a First Amendment violation. See, e.g., Nixon v. Sec'y Pa. Dep't of Corr., 501 F. App'x 176, 

178 (3d Cir. 2012) ("[T]he District Court correctly determined that Nixon's claim alleging a 

single, isolated interference with his personal mail was insufficient to constitute a First 

Amendment violation."); Hale v. Pa Dept. of Corr., No. 3:07-cv-0345, 2010 WL 3791833, at 

*3 (M.D. Pa. Sept. 16, 2010) ("opening [court mail] outside [prisoner's] presence on two 

occasions ... does not demonstrate a pattern or practice of improper handling of his legal 

mail sufficient to find a First Amendment violation . . . Isolated incidents of opening legal 

mail outside of an inmate's presence, without any evidence of improper motive, is nothing 

more than an assertion of negligence, and is insufficient to establish a constitutional 

violation."). 

Here, Alexander contends that Defendant Kifer interfered with his mail on three 

separate occasions. Alexander alleges that he submitted a packet of documents to unit 

corrections officers on June 25, 2019. (Doc. 17,r 18). The corrections officers informed 

Alexander that the documents would be processed. (Id.). On July 10, 2019, Defendant 

Kifer allegedly told Alexander that "the addressed envelope was missing from the packet of 

documents he submitted on June 26, 2019 for processing." (Id. ,r 19). Alexander maintains 

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that he submitted a second packet for processing on July 11, 2019, which was delivered to 

the SCI-Smithfield security office. (Id. ,r,r 20-22). 

On July 15, 2019, Alexander states that he submitted another envelope, in an 

attempt to locate the documents from the prior mailing. (Id. ,r 23). In response, on July 29, 

2019, Defendant Kifer informed Alexander that the documents could not be located. (Id. ,r 

24). Alexander alleges that SCI-Smithfield security office received and retained the 

documents from his June 26, 2019 and July 15, 2019 mailings. (Id. ,r 25). 

On October 2, 2019, Alexander asserts that he submitted a third packet of 

documents. (Id. ,r 28). Corrections officers assured him that the packet would be 

processed. (Id.). On October 3, 2019, Defendant Kifer told Alexander that the Inmate 

Accounts Office received the documents and would mail them the following day. (Id. ,r 29). 

Alexander contends that the documents were not mailed. (Id. ,r 30). 

Alexander sets forth three, isolated incidents in which Defendant Kifer purportedly 

interfered with his legal mail. These incidents that allegedly occurred on three occasions 

over a three-month period do not demonstrate a pattern or practice of improper handling of 

his legal mail sufficient to find a First Amendment violation. See Hale, 2010 WL 3791833, at 

*3. Moreover, Defendant Kifer simply advised Alexander that he was missing an envelope, 

that documents could not be located, and that the Inmate Accounts Office would mail his 

documents. The Court finds that these isolated incidents, without any implication of 

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improper motive, are simply insufficient to establish a constitutional violation. Defendants' 

motion will be granted on this ground. 

3. Phone Privileges 

Alexander alleges that Defendants violated his constitutional rights by removing 

family members from his approved telephone call list. (Doc. 17 ~~ 93-95, 133). 

The Court of Appeals for the Third Circuit has described the implicated First 

Amendment right as "the right to communicate with people outside prison walls ." Almahdi v. 

Ashcroft, 310 F. App'x 519, 521-22 (3d Cir. 2009) (quotation omitted). Access to a 

telephone "provides a means of exercising that right." Id. Nevertheless, that right is 

"subject to rational limitations in the face of legitimate security interests of the penal 

institution." Perez v. Federal Bureau of Prisons, 229 F. App'x 55, 57 (3d Cir. 2007) (quoting 

Strandberg v. City of Helena, 791 F.2d 744,747 (9th Cir.1986)). In other words, "prisoners 

'ha[ve] no right to unlimited telephone use,' and reasonable restrictions on telephone 

privileges do not violate their First Amendment rights." Almahdi, 310 F. App'x at 522 (noting 

that "regulations limiting telephone use by inmates have been routinely sustained as 

reasonable."). Where there are alternative means of communicating with persons outside of 

the prison, such as in person visits or mail, the restrictions on telephone use is more likely to 

be considered reasonable. See Almahdi, 310 F. App'x at 522; Ortiz-Medina v. Bradley, No. 

19-2133, 2020 WL 362697, at *5 (M.D. Pa. Jan. 22, 2020). Alexander provides no factual 

allegations about whether he had alternate means of communicating with his son and 

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daughter, and his allegations do not support a plausible inference that any limitations on 

phone use was not rational. As pied, the Court is unable to discern a plausible 

constitutional violation. See Aruanno v. Johnson, 568 F. App'x 194, 195 (3d Cir. 2014) (per 

curiam) (holding that conclusory allegations "concerning [prisoner's] lack of phone access to 

friends and family" failed to state a claim). Accordingly, Alexander's First Amendment claim 

based on telephone usage will be dismissed. 

4. Retaliation 

To state a retaliation claim under the First Amendment, a plaintiff bears the burden of 

satisfying three elements. First, a plaintiff must prove that he was engaged in a 

constitutionally protected activity. See Rauserv. Horn, 241 F.3d 330,333 (3d Cir. 2001). 

Second, a plaintiff must demonstrate that he "suffered some 'adverse action' at the hands of 

prison officials." Id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This 

requirement is satisfied by showing adverse action "sufficient 'to deter a person of ordinary 

firmness' from exercising his First Amendment rights." Id. (quoting Suppon v. Dadonna, 

2013 F.3d 228, 235 (3d Cir. 2000)). Third, a prisoner must prove that "his constitutionally 

protected conduct was 'a substantial or motivating factor' in the decision to discipline him." 

Rauser, 241 F.3d at 333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 

429 U.S. 274, 287 (1977)). 

The mere fact that an adverse action occurs after either a complaint or grievance is 

filed is relevant, but not dispositive, for the purpose of establishing a causal link between the 

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two events. See Lape v. Pennsylvania, 157 F. App'x 491, 498 (3d Cir. 2005) 

(nonprecedential). Only when the facts of a particular case are "unusually suggestive,, of a 

retaliatory motive will temporal proximity, on its own, support an inference of causation. See 

Krouse v. Am. Sterilizer Co. , 126 F.3d 494,503 (3d Cir. 1997). The Third Circuit has noted 

that an inmate can satisfy this burden "with evidence of either (1) an unusually suggestive 

temporal proximity between the protected activity and the allegedly retaliatory action or (2) a 

pattern of antagonism coupled with timing that suggests a causal link." Watson v. Rozum, 

834 F .3d 417, 422 (3d Cir. 2002). 

If a prisoner establishes a prima facie case of retaliation, the burden shifts to prison 

officials to show, by a preponderance of the evidence, that "they would have made the 

same decision absent the protected conduct for reasons reasonably related to a legitimate 

penological interest." Rauser, 241 F.3d at 334. "This is often referred to as the 'same 

decision defense."' Watson , 834 F.3d at 422. If the prison officials can make this showing, 

it defeats the retaliation claim. See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002). 

Alexander alleges that Defendants retaliated against him for filing a lawsuit and 

grievances. The alleged retaliatory acts include interfering with his mail for a 2019 civil 

case, searching his cell on June 24, 2020, placing him in the RHU on January 30, 2020, 

exposing him to OC spray in the RHU in February 2020, denying him phone privileges on 

July 24, 2020, recommending placement in the DEMO program in 2020, and filing 

misconducts in 2020. 

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The filing of a lawsuit and grievances qualifies as constitutionally protected activity. 

See Watson, 834 F.3d at 422-23. However, Alexander has failed to adequately allege that 

the filing of his prior lawsuit and grievances motivated the Defendants to take adverse 

action. 

First, interference with mail and a cell search do not constitute adverse actions for a 

retaliation claim. See Huertas v. Sobina, 476 F. App'x 981, 984 (2012) (holding that 

interfering with an inmate's mail "was not sufficiently adverse to deter a person of ordinary 

firmness from pursuing grievances"); Banks v. Rozum, 2015 WL 1186224, *7 (M.D. Pa. 

2015) (holding that the search of a cell is not a sufficient adverse action), aff'd, 639 F. App'x 

778, 781-82 (3d Cir. 2016). 

Next, Alexander asserts that he was denied phone privileges in July 2020, placed in 

the RHU on January 30, 2020, exposed to OC spray in February 2020, referred for 

placement in the DEMO program in 2020, and had misconducts issued against him in 2020. 

Due to the passage of time-up to a year and a half-Alexander has not established an 

"unusually suggestive" temporal proximity between his protected conduct and the alleged 

adverse action. See Williams v. Phi/a. Housing Authority Police Dept. , 380 F.3d 751 , 760 

(3d Cir. 2004). 

Alexander's amended complaint, as pied, fails to set forth a retaliation claim. The 

Court will grant Defendants' motion to dismiss the First Amendment retaliation claim. 

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C. Eighth Amendment Claim Regarding Placement in the RHU and Cell Search 

In order to succeed on a claim as to one's conditions of confinement, a plaintiff must 

establish that: "( 1) he was incarcerated under conditions imposing a substantial risk of 

serious harm, (2) the defendant-official was deliberately indifferent to that substantial risk to 

his health and safety, and (3) the defendant-official's deliberate indifference caused him 

harm." See Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2015). "[T]he Constitution does not 

mandate comfortable prisons." Rhodes v. Chapman, 452 U.S. 337, 349 (1981 ). Therefore, 

conditions of imprisonment violate the Eighth Amendment only if they, "alone or in 

combination ... deprive inmates of the minimal civilized measures of life's necessities." See 

id. at 347. Such necessities include "adequate food, clothing, shelter, and medical care." 

Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, "extreme deprivations are required to 

make out a conditions-of-confinement claim." Hudson, 503 U.S. at 9. However, "[s]ome 

conditions of confinement may establish an Eighth Amendment violation 'in combination' 

when each would not do so alone, but only when they have a mutually enforcing effect that 

produces the deprivation of a single, identifiable human need such as food, warmth, or 

exercise." Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372 (3d Cir. 2019) (quoting 

Wilson , 501 U.S. at 304 and Rhodes, 452 U.S. at 347). 

Alexander maintains that his stay in the RHU violated the Eighth Amendment's 

prohibition against cruel and unusual punishment. (Doc. 17 ~ 130). The Supreme Court 

has held that "[i]t is well settled that the decision where to house inmates is at the core of 

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prison administrators' expertise." McKune v. Lile, 536 U.S. 24, 39 (2002). Thus, a transfer 

of a prisoner to the RHU alone does not violate the Eighth Amendment. See Williams v. 

Armstrong, 566 F. App'x 106, 109 (3d Cir. 2014) (because the Eighth Amendment applies 

only when a deprivation results in the denial of "the minimal civilized measure of life's 

necessities," placement of prisoner in RHU for 112 days alone, without allegation that he 

was denied life's necessities, did not state a claim for relieD; Gibson v. Lynch, 652 F.2d 348 

(3d Cir. 1981) (incarceration in solitary confinement for 90 days did not violate the Eighth 

Amendment); Griffin v. Vaughn, 112 F.3d 703, 709 (placement in administrative custody for 

15 months did not violate the Eighth Amendment). 

Alexander maintains further that the cell search violated his Eighth Amendment 

rights. The Eighth Amendment protects prisoners from searches conducted only for 

"calculated harassment." Hudson v. Palmer, 468 U.S. 517,530 (1984). A single cell search 

is generally insufficient to constitute an Eighth Amendment violation. See Kokinda v. Pa. 

Oep'tofCorrs., 2016 WL 7029385, at *7 (W.D. Pa. Oct. 31, 2016); Vigliotto v. Terry, 873 

F.2d 1201, 1203 (9th Cir.1989); Tate v. Campbell, 85 F. App'x413, 417 (6th Cir. 2003) 

(stating that "the single search of a prisoner's cubicle does not rise to the level of an Eighth 

Amendment violation"). 

In short, Alexander has failed to plead viable claims based on alleged violations of 

the Eighth Amendment. These claims will be dismissed. 

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D. Defendants are entitled to Qualified Immunity on the Exposure to OC Spray 

Claim 

As stated, prison officials may violate an inmate's rights under the Eighth 

Amendment to the United States Constitution by displaying deliberate indifference to a 

substantial risk of serious harm to an inmate. Alexander alleges that Defendants used OC 

spray on other inmates in the RHU on three occasions. (Doc. 17 ,r,r 54-55). He has not 

alleged that the OC spray was used in a greater quantity than necessary on these other 

inmates. Nor has he alleged that the use of OC spray on other inmates housed in different 

cells posed a serious risk of harm to him, and that the Defendants were subjectively aware 

of such a risk. As such, this Eighth Amendment claim fails. See Gibson v. Flemming, 837 

F. App'x 860, 862 (3d Cir. 2020) (single unplanned use of OC spray did not violate the 

Eighth Amendment). 

However, even if Alexander had stated a colorable constitutional claim relating to his 

exposure to secondhand OC spray, Defendants, in their individual capacities, are entitled to 

qualified immunity from these claims for damages. In order to establish a civil rights claim, 

Alexander must show the deprivation of a right secured by the United States Constitution or 

the laws of the United States. However, government officials performing "discretionary 

functions," are insulated from suit if their conduct did not violate a "clearly established 

statutory or constitutional right[] of which a reasonable person would have known." Wilson 

v. Layne, 526 U.S. 603, 609 (1999). 

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"The doctrine of qualified immunity protects government officials from liability for civil 

damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known." Pearson v. 

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). "Qualified immunity 

balances two important interests-the need to hold public officials accountable when they 

exercise power irresponsibly and the need to shield officials from harassment, distraction, 

and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. It 

"provides ample protection to all but the plainly incompetent or those who knowingly violate 

the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). "Thus, so long as an official 

reasonably believes that his conduct complies with the law, qualified immunity will shield 

that official from liability." Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing 

Pearson, 555 U.S. at 244). Although qualified immunity is generally a question of law that 

should be considered at the earliest possible stage of the proceedings, a genuine dispute of 

material fact may preclude summary judgment on qualified immunity. Giles v. Kearney, 571 

F.3d 318, 325-26 (3d Cir. 2009). 

A qualified immunity determination involves a two-pronged inquiry: (1) whether a 

constitutional or federal right has been violated; and (2) whether that right was "clearly 

established." Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 

U.S. at 236 (permitting federal courts to exercise discretion in deciding which of the two 

Saucier prongs should be addressed first). A right is clearly established if "every 

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reasonable official would have understood that what he is doing violates that right." 

Mullenix v. Luna, 577 U.S. 7, 11 (2015). To be clearly established, there does not have to 

be a case that is directly on point, "but existing precedent must have placed the statutory or 

constitutional question beyond debate." Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731 , 741 

(2011 )). In determining whether a right is clearly established, courts must not define the 

right "at a high level of generality." Id. (quoting Al-Kidd, 563 U.S. at 742). Rather, the 

analysis should focus on "whether the violative nature of particular conduct is clearly 

established." Id. (quoting Al-Kidd, 563 U.S. at 742). "The relevant, dispositive inquiry in 

determining whether a right is clearly established is whether it would be clear to a 

reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 

533 U.S. at 202. It is the plaintiff who bears the initial burden of demonstrating that the 

constitutional right at issue was clearly established at the time of the claimed violation . See 

Davis v. Scherer, 468 U.S. 183, 197 (1984) ("A plaintiff who seeks damages for violation of 

constitutional or statutory rights may overcome the defendant official's qualified immunity 

only by showing that those rights were clearly established at the time of the conduct at 

issue."). 

To determine whether a right is clearly established, the court may look to cases from 

the Supreme Court, controlling circuit precedent, or "a robust consensus of cases of 

persuasive authority" from other circuit courts. Porter v. Pa. Oep't of Corrs., 97 4 F .3d 431 , 

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449 (3d Cir. 2020) (quoting Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 

136, 142 (3d Cir. 2017)). 

Here, the Court cannot conclude that it was clearly established that inadvertent 

exposure to OC spray used against another inmate would violate an individual's Eighth 

Amendment rights. Indeed, several courts in this district have granted qualified immunity in 

this setting. See e.g., Rivera v. Redfern, 2023 WL 2139827, at *9 (M.D. Pa. Feb. 21, 2023) 

(collecting cases and granting qualified immunity because "it is not clearly established that 

secondhand exposure to OC spray in response to another inmate's actions across the 

block, would violate an individual's rights") (internal quotations and citations omitted); 

Stroman v. Wetzel, 2020 WL 1531325, at *6 (M.D. Pa. Mar. 31 , 2020) ("Defendants simply 

could not have recognized that their use of OC spray in response to another inmate's 

actions across the block would violate a 'clearly established statutory or constitutional right[] 

of which a reasonable person would have known"') (citations omitted). 

Given that Alexander has failed to allege that Defendants violated a clearly 

established right in this setting, Defendants are entitled to qualified immunity on this Eighth 

Amendment claim. 

E. Fourth Amendment Cell Search Claim 

The Fourth Amendment provides that: 

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon probable cause, supported 

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by Oath or affirmation, and particularly describing the place to be 

searched, and the persons or things to be seized. 

U.S. CONST. amend. IV. The prohibitions contained within the Fourth Amendment are 

applicable to the states by virtue of the Due Process Clause of the Fourteenth Amendment. 

Cady v. Dombrowski, 413 U.S. 433, 440 (1973). 

To the extent that Alexander alleges that the search and seizure of his property 

violates the Fourth Amendment, courts have repeatedly held that the Fourth Amendment is 

not applicable to the contents of a prisoner's cell. See Hudson v. Palmer, 468 U.S. 517, 

530 ( 1984) ("prisoners have no legitimate expectation of privacy and . . . the Fourth 

Amendment's prohibition on unreasonable searches does not apply in prison cells"); Doe v. 

Delie, 257 F.3d 309, 316 (3d Cir. 2001) ("The defendants correctly assert that prisoners do 

not have a Fourth Amendment right to privacy in their cells.") (citing Hudson, 568 U.S. at 

529)). Defendants' motion to dismiss the Fourth Amendment claim will be granted. 

F. Fourteenth Amendment Due Process Claims 

1. Procedural Due Process 

The Fourteenth Amendment of the United States Constitution provides in pertinent 

part that: "No State shall ... deprive any person of life, liberty, or property, without due 

process of law." U.S. CONST. amend. XIV. The United States Supreme Court has 

mandated a two-part analysis of Fourteenth Amendment procedural due process claims. 

See Ingraham v. Wright, 430 U.S. 651 , 672 (1977). First, the reviewing court must 

determine "whether the asserted individual interests are encompassed within 

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the ... protection of 'life, liberty or property."' Id. If a protected interest is implicated, the court 

must "decide what procedures constitute 'due process of law."' Id. If no protected interest 

is implicated, however, then "it is unnecessary to analyze what procedures were followed 

when an alleged deprivation of an interest occurred." Harris v. Hines, 2017 WL 41197 43, at 

*5 (M.D. Pa. Sept. 18, 2017). 

"To state a claim under§ 1983 for deprivation of procedural due process rights, a 

plaintiff must allege that ( 1) he was deprived of an individual interest that is encompassed 

within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the 

procedures available to him did not provide 'due process of law."' Hill v. Borough of 

Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d 

Cir. 2000)). 

a. Cell Search and Confiscation of Property 

Ordinarily, the concept of "due process" requires some type of hearing before the 

state can deprive a person of a protected interest. Zinermon v. Burch, 494 U.S. 113, 126 

(1990) (collecting cases). However, in cases of random and unauthorized deprivations of 

property the State cannot predict when the loss will occur and, therefore, is unable to 

provide a meaningful hearing before the deprivation takes place. The Supreme Court 

determined that, with respect to negligent, random and unauthorized acts by state actors 

that result in the loss of a protected interest, a plaintiff does not suffer a violation of 

procedural due process if he or she has an adequate post-deprivation remedy. Parratt v. 

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Taylor, 451 U.S. 527 (1981). The Supreme Court subsequently extended the rule in Parratt 

to apply to intentional acts by state actors. Hudson v. Palmer, 468 U.S. 517 (1984); see 

also Barr v. Knauer, 321 F. App'x 101 , 103 (3d Cir. 2009) (nonprecedential). 

The Third Circuit Court of Appeals has held that the state's grievance procedure 

provides an adequate post-deprivation remedy, see, e.g. , Tillman v. Lebanon County Corr. 

Fae. , 221 F.3d 410, 422 (3d Cir. 2000), and that the existence of this post-deprivation 

remedy forecloses any due process claim, Austin v. Lehman, 893 F. Supp. 448, 454 (E.D. 

Pa. 1995), even if an inmate is dissatisfied with the result of the process. Iseley v. Horn, 

1996 WL 510090, at* 6 (E.D. Pa. 1996). "Because prisons are constitutionally required to 

afford inmates only a post-deprivation remedy, .. . the defendants' failure to give the inmates 

prior notice of their intended seizure of their materials did not violate the plaintiffs' Due 

Process rights." Monroe v. Beard, 536 F.3d 198,210 (3d Cir. 2008). 

Alexander alleges that Defendants deprived him of his personal property following 

the cell search . (Doc. 171m 68-76). The DOC has a grievance process that provides for 

sufficient post-deprivation remedies-even if Alexander is dissatisfied with the result of that 

process. It is clear that Alexander had notice of the grievance policy and utilized that 

grievance procedure. The Court will grant the Defendants' motion to dismiss with respect to 

this procedural due process claim. 

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b. Inmate Misconduct3 

The filing of a false disciplinary misconduct alone does not violate a prisoner's 

constitutional rights, even if it may result in the deprivation of a protected liberty interest. 

See Hutchinson v. Kosakowski, 2015 WL 3737656, at *4 (M.D. Pa. 2015) (citing Freeman v. 

Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). However, inmates must be provided due 

process of law prior to being deprived of a protected liberty interest. Id. Accordingly, "so 

long as certain procedural requirements are satisfied, mere allegations of falsified evidence 

or misconduct reports, without more, are not enough to state a due process claim." Id. 

(citing Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002); Freeman, 808 F.2d at 953). 

The fact that Alexander was found guilty at a misconduct hearing is not in itself a due 

process violation. Due process protections attach in prison disciplinary proceedings in 

which the loss of good-time credits is at stake. See Wolff v. McDonnell, 418 U.S. 539, 564-

65 (1974). In Wolff, the Supreme Court held that an inmate must receive "(1) advance 

written notice of the disciplinary charges; (2) an opportunity, when consistent with 

institutional safety and correctional goals, to call witnesses and present documentary 

evidence in his defense; and (3) a written statement by the factfinder of the evidence relied 

on and the reasons for the disciplinary action." Superintendent v. Hill, 472 U.S. 445, 454 

3 Alexander has expressly disclaimed Defendants' characterization of his disciplinary hearing 

claim as a procedural due process claim. (Doc. 27, p. 15 n. 19). Nevertheless, the Court will assess 

whether the facts alleged in the amended complaint support a procedural due process claim. 

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(1985). Because Alexander does not allege that he suffered a loss of good conduct time, 

the Wolff protections are inapplicable. (See Doc. 17 f 106). 

Moreover, the Due Process Clause does not provide protection against the 

imposition of discipline, including disciplinary confinement and the loss of various privileges 

inasmuch as these other forms of discipline do not "impose[] atypical and significant 

hardship on the inmate in relation to the ordinary incidents of prison life." Torres v. Fauver, 

292 F.3d 141 , 150-51 (3d Cir. 2002) (citing Sandin v. Conner, 515 U.S. 472, 486 (1995)). 

Confinement in administrative or punitive segregation is insufficient, without more, to 

establish the kind of "atypical" deprivation of prison life necessary to implicate a liberty 

interest. Sandin, 515 U.S. at 486; see Griffin v. Vaughn, 112 F.3d 703, 706-07 (3d Cir. 

1997). Alexander alleges that Defendant Ellenberger denied him witness testimony, the 

opportunity to present evidence, and that he was biased during the misconduct hearing. 

Alexander does not allege that he was subjected to an atypical and significant hardship. 

Moreover, placement in disciplinary confinement does not impose an atypical and significant 

hardship on an inmate in relation to the ordinary incidents of prison life. 

c. Recommendation for DEMO Program 

Alexander also alleges that Defendants violated his procedural due process rights by 

recommending his placement within the DEMO program. (Doc. 17 ff 108-110). It is wellestablished that an inmate does not have a constitutional right to any particular custody or 

security classification. Moody v. Daggett, 429 U.S. 78, 88 (1976); Montanye v. Haymes, 

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427 U.S. 236, 242. Because prisoners have no inherent constitutional right to a particular 

custody or security classification, Defendants' motion to dismiss this due process claim will 

be granted. 

2. Substantive Due Process 

Alexander's substantive due process claim is barred by the "more specific provision 

rule." In adopting the "more-specific-provision-rule" established in County of Sacramento v. 

Lewis, 523 U.S. 833, 843-44 (1998), the Third Circuit noted that "[u]nder this rule, 'if a 

constitutional claim is covered by a specific constitutional provision ... , the claim must be 

analyzed under the standard appropriate to that specific provision, not under the rubric of 

substantive due process.' United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 

137 L.Ed.2d 432 (1997) (clarifying prior holing in Graham v. Connor, 490 U.S. 386, 109 

S.Ct. 1865, 104 L.Ed.2d 443 (1989))." Betts, 621 F.3d at 260-61. Alexander's substantive 

due process claims fit squarely within his constitutional claims-i.e., his cell search claim is 

duplicative of his Fourth and Eighth Amendment claims. Thus, the more-specific-provision 

rule forecloses any substantive due process claim. 

G. Violation State Law and of DOC Policy 

Alexander asserts that Defendants violated Title 37 of the Pennsylvania Code and 

an internal DOC policy. (Doc. 17,r 136). These allegations do not rise to the level of a 

constitutional violation . 

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Violations of state law, assuming any such violations occurred here, do not on their 

own amount to a constitutional violation. See Whittaker v. Cnty. of Lawrence, 437 F. App'x 

105, 109 (3d Cir. 2011) ("[A] state official's failure to follow state law does not, by itself, 

shock the conscience [in violation of the constitution] in the absence of additional facts ."); 

Maple Properties, Inc. v. Twp. of Upper Providence, 151 F. App'x 174, 179 (3d Cir. 2005) 

(explaining that '"[a] violation of state law is not a denial of due process of law."' (quoting 

Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 468-69 (7th Cir. 1988))). 

Additionally, "a prison policy manual does not have the force of law and does not rise to the 

level of a regulation" and that "a violation of internal policy does not automatically rise to the 

level of a Constitutional violation." Atwell v. Lavan, 557 F. Supp. 2d 532, 556 n.24 (M.D. Pa. 

2007) (citations omitted); see Bullard v. Scism, 449 F. App'x 232, 235 (3d Cir. 2011) 

(nonprecedential) ( explaining that, even if prison officials violated a regulation, such a 

violation "is not actionable"); Jordan v. Rowley, No. 1:16-CV-1261 , 2017 WL 2813294, at *2 

(M.D. Pa. June 29, 2017); see a/so United States v. Jiles, 658 F.2d 194, 200 (3d Cir. 1981) 

(noting that even violations of state law will not automatically have a "constitutional 

dimension"). Accordingly, Alexander has not alleged a plausible constitutional violation 

based on a violation of Title 37 and a violation of DOC policy. These claims will be 

dismissed. 

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H. Lack of Standing to bring Defamation Claim 

Alexander appears to assert a defamation claim on behalf of his daughter. (Doc. 17 

~~ 106, 136). It is well-settled law that "prudential standing requires, inter alia, that a litigant 

assert his or her own legal rights and not rely on the rights or interests of third parties." Hill 

ex rel. Hill v. Pennsylvania Dept. Of Corrections, 2013 WL 1320413 *1 (3d Cir. 2013). To 

the extent that Alexander seeks to raise a defamation claim on behalf of his daughter, he 

lacks standing to do so. This claim will be dismissed. 

I. Defendants are entitled to Sovereign Immunity on the Defamation Claim 

Defendants also seek dismissal of Alexander's defamation claim, arguing that the 

doctrine of sovereign immunity bars this claim against state employees. (Doc. 25, pp. 35-

36). Defendants are entitled to sovereign immunity with respect to Alexander's state law 

claim as it is beyond dispute that "[t]he Department of Corrections is an agency of the 

Commonwealth and the Defendants, as employees of an agency of the Commonwealth, are 

entitled to the protection afforded by sovereign immunity." McGrath v. Johnson, 67 

F.Supp.2d 499, 511 (E.D. Pa. 1999) (citing Maute v. Frank, 441 Pa. Super. 401, 402, 657 

A.2d 985, 986 (1995) (state prison officials enjoy sovereign immunity); Robles v. 

Pennsylvania Oep't of Corrections, 718 A.2d 882, 884 (Pa. Commw. Ct. 1998) (same)), 

aff'd, 35 F. App'x 357 (3d Cir. 2002). As a general matter, subject only to ten specific 

statutory exceptions not applicable here, this sovereign immunity bars state law tort claims 

like the one alleged here, since Commonwealth employees are immune from liability for 

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either negligence or intentional torts.4 McGrath, 67 F.Supp.2d at 511, aff'd, 35 F. App'x 357 

(3d Cir. 2002). The Court will dismiss this claim. 

J. Claims for Declaratory and Injunctive Relief 

The case or controversy requirement of Article Ill, § 2 of the United States 

Constitution subsists through all stages of federal judicial proceedings. Parties must 

continue to have a "personal stake in the outcome of the lawsuit." Lewis v. Continental 

Bank Corp., 494 U.S. 472, 477-78 (1990); Preiser v. Newkirk, 422 U.S. 395,401 (1975). 

The mootness doctrine recognizes that "[i]f developments occur during the course of 

adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a 

court from being able to grant the requested relief, the case must be dismissed as moot." 

Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). An inmate's 

transfer from the facility complained of generally moots the equitable and declaratory 

claims . Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993); see Griffin v. Beard, 401 

F. App'x 715 (3d Cir. 2010) (transfer from SCI-Huntingdon renders inmate injunctive relief 

claim moot). 

4 The ten categories for which sovereign immunity will not apply are: (1) vehicles in the 

possession or control of a Commonwealth party; (2) acts of health care employees of Commonwealth 

agency medical facilities or institutions; (3) the care, custody, or control of personal property; (4) a 

dangerous condition of Commonwealth agency real estate and sidewalks; (5) dangerous conditions of 

highways created by potholes or sinkholes; (6) the care, custody, or control of animals; (7) liquor store 

sales; (8) National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse. See 42 PA. CONS. 

STAT. ANN.§ 8522(b). 

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Alexander is no longer housed at SCI-Smithfield. In light of Alexander's transfer 

from SCI-Smithfield, the institution wherein the allegations related to his claims stem, his 

requests for injunctive and declaratory relief are now moot. 

K. The PLRA bars any request for Compensatory Damages 

Section 1997 e( e) of Title 42 provides: "[ n ]o 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." 42 U.S.C. § 1997e(e). 

More than a de minimis physical injury must be alleged as a predicate to allegations of 

mental or emotional injury. See Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003). In the 

amended complaint, Alexander seeks compensatory damages. (Doc. 17, p. 31 ). However, 

Alexander does not allege that he suffered any physical injury, let alone a de minimis 

physical injury, as required for a predicate to emotional injury. See Mitchell, 318 F.3d at 

534-36. He is not entitled to compensatory damages. 

L. Official Capacity Claims 

Lastly, Defendants assert that the claims against them in their official capacities fail 

because they are not "persons" under section 1983. (Doc. 25, p. 40). Personal capacity 

suits under section 1983 seek to recover money from a government official, as an individual, 

for acts performed under color of state law. Gregory v. Chehi, 843 F.2d 111 , 120 (3d Cir. 

1988). Official capacity suits, in contrast, generally represent an action against an entity of 

which the government official is an agent. Id.; see also Monell v. Dep't of Social Servs., 436 

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U.S. 658, 690 n. 55 (1978). When suits are brought against state officials in their official 

capacities, those lawsuits are treated as suits against the state. Hafer v. Melo, 502 U.S. 21 , 

25 (1991). However, the doctrine of sovereign immunity, established by the Eleventh 

Amendment, protects states, such as the Commonwealth of Pennsylvania, from suits by 

citizens . Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-01 , 117 (1984); 

Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996); Lavia v. Pennsylvania, 224 F.3d 190, 

195-96 (3d Cir. 2000). That immunity runs to state officials if they are sued in their official 

capacity and the state is the real party upon which liability is sought. Scheuer v. Rhodes, 

416 U.S. 232, 237-38 (1974). Congress has not abrogated the immunity regarding 

Alexander's claims, nor has Pennsylvania waived this grant of immunity. See 42 PA. C.S.A. 

§ 8521(b). Thus, Alexander's section 1983 claim against the Defendants in their official 

capacities is barred by sovereign immunity. See Betts v. New Castle Youth Dev. Ctr. , 621 

F.3d 249, 254 (3d Cir. 2010). Defendants are entitled to dismissal on this ground. 

IV. Leave to Amend 

When a complaint fails to present a prima facie case of liability, district courts must 

generally grant leave to amend before dismissing the complaint. See Grayson v. Mayview 

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d 

Cir. 2000). Specifically, the Third Circuit Court of Appeals has admonished that when a 

complaint is subject to dismissal for failure to state a claim, courts should liberally grant 

leave to amend "unless such an amendment would be inequitable or futile." Phillips, 515 

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F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). Since Alexander's 

claims are factually and legally flawed and he has previously been granted leave to amend, 

allowing further leave to amend would be both futile and inequitable. See Grayson, 293 

F.3d at 108; see also Jones v. Unknown 0.0.C. Bus Driver & Transp. Crew, 944 F.3d 478, 

483 (3d Cir. 2019) (where inmate plaintiff "has already had two chances to tell his 

story ... giving him further leave to amend would be futile."). 

V. Conclusion 

The Court will deny Defendants' motion to dismiss this action as untimely under 

Pennsylvania law's two-year statute of limitations and will grant the motion in all other 

respects. 

A separate Order shall issue. 

Robert D. Marr 

Dated: January Jb, 2024 

United States District Judge 

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