1. On October 29, 2009, plaintiff was transferred to the

State Correctional Institution, Coal Township, Pennsylvania.

(See Doc. 56). 

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ERIC X. RAMBERT, :

:

Plaintiff : No. 4:CV-09-0634

:

vs. : (Complaint Filed 04/07/09) 

:

: (Judge Muir)

JEFFREY A. BEARD, et al., :

:

Defendants :

MEMORANDUM AND ORDER

March 15, 2010

Background

Plaintiff, Eric X. Rambert, a prisoner formerly confined

at the State Correctional Institution, Dallas, (“SCI-Dallas”),

Pennsylvania, filed the above civil rights action pursuant to

42 U.S.C. § 1983.1 On April 7, 2009, the action was removed to

federal court from the Luzerne County Court of Common Pleas. On

June 15, 2009, the plaintiff filed a second amended complaint.

(Doc. 19). The named defendants in the second amended complaint

are Dr. Jeffrey Beard, Secretary, Department of Corrections;

and the following employees of SCI-Dallas: James T. Wynder,

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former SCI-Dallas Superintendent; Michael Klopotoski, current

SCI-Dallas Superintendent; Joseph Zakaraukas, Security Captain;

Dorina Varner, Acting Chief Grievance Coordinator; Cindy

Watson, former Chief Grievance Coordinator; Robin Lucas,

Grievance and Litigation Coordinator; Patricia Ginocchetti,

Health Care Administrator; Lea Liputs, current Health Care

Administrator; Thomas Leskowsky, R.N.; Donald O’Brien,

Physician’s Assistant; Cheryl Wisniewski-Bunk, Physician’s

Assistant; Charles McKeown, Hearing Examiner; and the following

Program Review Committee members: Norman Demming, Jerry Walsh

and Vincent Mooney. Presently before the court and ripe for

disposition are the following motions: Motion to Dismiss the

second amended complaint filed on behalf of Donald O’Brien,

P.A. and Cheryl Wisniewski Bunk, P.A.(Doc. 44); Motion to

Dismiss the second amended complaint filed on behalf of the

following eleven Corrections defendants: Lucas, Wynder,

Klopotoski, Watson, Varner, Beard, McKeown, Zakaraukas,

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2. The remaining three correctional defendants, Patricia

Ginocchetti, Health Care Administrator; Lea Liputs, current

Health Care Administrator; Thomas Leskowsky, R.N., are not

referenced in the Corrections defendants’ motion to dismiss. 

3

Demming, Walsh and Mooney2 (Doc. 23); and plaintiff’s motions

for preliminary injunctive relief. (Docs. 46, 52). 

The parties have fully briefed the issues and the motions

are now ripe for disposition. For the reasons that follow,

the Court will deny the motion to dismiss filed on behalf of

defendants O’Brien and Wisniewski-Bunk, grant the Corrections

defendant’s motion in part and deny it in part and dismiss

plaintiff’s motions for injunctive relief as moot.

I. Motion to Dismiss

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint

for “failure to state a claim upon which relief can be

granted.” Under Rule 12(b)(6), we must “accept all factual

allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be

entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515

F.3d 224, 231 (3d Cir.2008)). While a complaint need only

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4

contain “a short and plain statement of the claim,”

Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not

required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,

127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must

plead “enough facts to state a claim to relief that is

plausible on its face.” Id. at 570, 550 U.S. 544, 127 S.Ct.

1955 at 1974, 167 L.Ed.2d 929. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted

unlawfully.” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937,

1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556,

127 S.Ct. at 1965.) “[L]abels and conclusions” are not enough,

Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court

“‘is not bound to accept as true a legal conclusion couched as

a factual allegation.’” Id., 127 S.Ct. at 1965 (quoted case

omitted). Thus, “a judicial conspiracy claim must include at

least a discernible factual basis to survive a Rule 12(b)(6)

dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588

F.3d 180, 184 (3d Cir.2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a twopart analysis.” Fowler, supra, 578 F.3d at 210. First, we

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separate the factual elements from the legal elements and

disregard the legal conclusions. Id. at 210-11. Second, we

“determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “ ‘plausible claim

for relief.’ ” Id. at 211 (quoted case omitted).

In addition, because plaintiff complains about “prison

conditions,” the screening provisions of 42 U.S.C. § 1997e

apply, as do the screening provisions of 28 U.S.C. § 1915(e),

given that he was granted in forma pauperis status to pursue

this suit. The court's obligation to dismiss a complaint under

the PLRA screening provisions for complaints that fail to state

a claim is not excused even after defendants have filed a

motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122,

1126 n. 6 (9th Cir.2000). Hence, if there is a ground for

dismissal which was not relied upon by a defendant in a motion

to dismiss, the court may nonetheless sua sponte rest its

dismissal upon such ground pursuant to the screening provisions

of the PLRA. See Lopez; Dare v. U.S., Civil No. 06-115E, 2007

WL 1811198, at *4 (W.D.Pa. June 21, 2007), aff'd,264 FedAppx.

183 (3d Cir.2008).

II. Allegations in the Second Amended Complaint

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Plaintiff’s allegations encompass the following four

claims: 

1. Confiscation of Religious Literature

On September 5, 2007, the plaintiff was issued Confiscated

Items Receipt, No. A. 707436, notifying him that “a manilla

envelope containing established long standing religious

materials by Honorable Elijah Muhammad” which was delivered to

the institution for him, was identified as a “security threat”

and was confiscated as such. (Doc. 19, Second Amended

Complaint).

On September 6, 2007, plaintiff wrote to the security

office, requesting his materials. Id. 

On September 7, 2007, defendant, Captain Zakaraukas

replied, stating that “Kam, Inc. is identified as a security

threat group” and “the items will not be returned.” Id.

Plaintiff claims this is a violation, as “there was never any

due process notification at this institution that prisoners

could not purchase the Honorable Elijah Muhammad’s long

standing Nation of Islam’s Religious literature from any

particular company and the prison inmate accountant had

deducted the $47.00 dollars from prisoner/plaintiff’s account

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to purchase from KAM, Inc.” Thus, plaintiff states that “the

confiscation of these religious materials was in violation of

DC-ADM 803 VI. E.7, to have the religious material returned or

have the plaintiff return it to the company to get his $47.00

dollars back.” Id. 

On September 15, 2007, plaintiff filed Grievance No.

200984, requesting, pursuant to DC-ADM 803 VI.E.7, that

plaintiff’s confiscated property be returned to the sender.

Id. 

On September 23, 2007, Lt. Miller responded to plaintiff’s

grievance, stating that pursuant to DC-ADM 803 VI.E.7,

“Incoming mail containing contraband shall be confiscated and

held for further inspection and disposition. The contraband

shall be returned to the sender (if known), or destroyed” and

“if the inmate wish[es] to have the contraband returned to the

sender, he suggests that the plaintiff contact the security

office and at the conclusion of their inspection they will

dispose of the material properly.” Id. 

On September 25, 2007, the plaintiff wrote to defendant

Zakaraukas, requesting the property that is established as

religious material be returned to the sender per policy. Id.

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Plaintiff states that he received no reply to his request. Id.

On November 30, 2007, plaintiff filed an appeal to

defendant Wynder, who plaintiff claims, also failed to respond

to plaintiff’s appeal. Id. 

On December 6, 2007, plaintiff filed an appeal to the Chief

Grievance Officer, Cindy Watson. Id. 

On December 19, 2007, the Acting Chief Grievance Officer,

Dorina Varner notified plaintiff that he “did not send a copy

of the original grievance.” Id. 

On December 26, 2007, plaintiff notified defendant Varner

“that all copies were sent.” Id.

On January 3, 2008, defendant Watson dismissed plaintiff’s

appeal. Id. Plaintiff states that to date, the confiscated

item has never been returned to the seller, nor has plaintiff

been reimbursed his monies. Id. Thus, plaintiff claims this

personal property has been “unlawful[ly] taken.” Id.

2. Medical Claim

On January 2, 2008, plaintiff states that he “discovered

from [his] monthly account statement that he had got billed for

Chronic Medical Care” on November 27, 2007 and December 17,

2007. Id. 

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Specifically, plaintiff states that “in both instances the

plaintiff complained of neck, lower back, left hip pain, and

bumps/sores in his scalp.” Id. He claims that he was seen by

defendant O’Brien, who “changed the recent Dalsalid that had

been issued by defendant Bunk on 11/15/07.” Id. Plaintiff

explained to defendant O’Brien that the Dalsalid was not

working and that “the prior 4 years and 7 months, chronic

Feldene ‘is what helped the pain’” and that defendant Bunk

“took [it] from me.” Id. Defendant O’Brien “administered

Motrin and Selenium Sulfide.” Id. 

On January 2, 2008, plaintiff filed a request for

defendant, Lea Liputs, current Health Care Administrator, to

refund plaintiff’s monies. Id. 

On January 8, 2008, defendant Liputs refused plaintiff’s

request. Id. 

On January 13, 2008, plaintiff filed Grievance No. 214804,

requesting to be reimbursed for the monies deducted from his

account for the medical care he received. Id. Plaintiff

states that defendant, Robin Lucas rejected plaintiff’s

grievance as untimely, stating that a grievance must be filed

within fifteen (15) days after the event. Id. 

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On January 30, 2008, plaintiff appealed the rejection of

Grievance No. 214804 to defendant Klopotoski. Id. 

On February 4, 2008, plaintiff states that “defendant

Klopotoski sanctioned defendant Lucas’s rejection and stated

‘when you sign up for sick call services you are informed by

medical professionals before leaving the dispensary of your

medical co-payment’.” Id. Plaintiff states that he “has never

signed any cash slips binding the medical staff to deduct money

for co-payment, nor has there ever been an issue raised by the

medical staff for failure to do so because the defendants are

not in compliance with DC-ADM 820.” Id. 

On February 5, 2008, plaintiff filed an appeal to defendant

Watson. Id. No response has been received. Id.

On February 5, 2008, plaintiff filed Grievance No. 217116,

claiming defendants have been taking monies out of his account

in violation of DC-ADM 820, a provision that allows for a

waiver of medical expenses for chronic medical care. Id. 

On February 11, 2008, defendant Ginocchetti denied

plaintiff’s grievance as “unnecessary and frivolous.” Id.

On February 11, 2008, plaintiff filed Grievance No. 218224,

claiming that defendants had “obstructed the plaintiff’s

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medication” when “plaintiff signed for sick call, was billed

and given only a couple, two (2) days of Motrin.” Id. He

further claimed that defendant Ginocchetti refused to reimburse

plaintiff pursuant to DC-ADM 820, “where it was already settled

that plaintiff’s injuries were work related which exempt him

from copayment for a permanent chronic injury.” Id. 

On February 20, 2008, plaintiff filed an appeal of

Grievance No. 217116, to defendant Klopotoski, who plaintiff

states “upheld defendant Ginocchetti, and said if plaintiff’s

conditions were chronic he would never been charged for medical

services.” Id. Plaintiff filed an appeal on February 25, 2008

to defendant Watson, but received no response. Id. 

On February 28, 2008, defendant Klopotoski responded to

plaintiff’s appeal of Grievance No. 218224, stating that

“plaintiff’s claim that he has not received medication since in

the RHU is inaccurate.” Id. 

On February 28, 2008, plaintiff filed an appeal to

defendant Watson, to which he claims no response was received.

Id. 

On April 29, 2008, defendant Beard issued “Reissue of DCADM 820, ‘Co-Pay for Medical Services’” which lists the

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following diseases or illnesses as chronic: Asthma, Congestive

Heart Failure, Coronary Artery Disease, Diabetes, Dislipidemia,

Hepatitis C, HIV, and Hypertension. Id. 

On May 14, 2008, plaintiff filed Grievance No. 228874

requesting reimbursement for the monies deducted from his

account for medical expenses. Id. 

On May 20, 2008, defendant Leskowsky denied plaintiff’s

grievance, stating that “the issue with your knee is not

considered a chronic medical issue” and that “plaintiff cannot

challenge Beard’s arbitrary and discriminatory policy and the

$50.00 dollars will not be returned.” Id. 

On June 17, 2008, plaintiff filed an appeal to defendant

Klopotoski. Id. 

On June 24, 2008, defendant Klopotoski denied plaintiff’s

appeal, and “upheld defendant Leskowky and did not deal with

plaintiff’s issues or grievance.” Id. 

On July 3, 2008, plaintiff filed an appeal to defendant

Watson. Id. 

On July 24, 2008, defendant Watson forwarded plaintiff’s

grievance to “Bureau of Health Care Services to solicit input,

that the final review will be delayed.” Id. 

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On August 24, 2008, plaintiff wrote to defendant Watson,

expressing his concern about the delay in responding to his

appeal. Id. 

On September 11, 2008, defendant Varner responded to

plaintiff’s August 24, 2008 inquiry, stating that “the above

referenced grievance was forwarded to the Bureau of Health Care

Services for review, it is complete, a response was received

and final disposition will be rendered.” Id. 

On January 14, 2009, the plaintiff received a final

disposition by defendant Varner,“totally debunking the

grievance issue to the plaintiff’s degenerative knee joint

disease as appropriate for co-payment, totally omitt[ing]

[plaintiff’s] degenerative joint disease of the cervical spine

which was the basis and still is the basis of the plaintiff’s

complaint.” Id. Thus, plaintiff files the instant action,

claiming that defendants have deducted monies from his inmate

account in violation of the Fourteenth Amendment, and denied

him appropriate medical care in violation of the Eighth

Amendment. Id. 

3. Program Review Committee Review

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Plaintiff filed Grievance No. 236175, claiming that he was

to be seen on July 16, 2008 for his “90 day Policy Review.”

Id. Unit Manager Chris Putnam replied to plaintiff’s grievance,

stating that “plaintiff was correct, he should have been seen

7/16/08" and that “the plaintiff will be scheduled to see PRC

next week.” Id. 

On July 24, 2008, plaintiff filed Grievance No. 237090,

stating that he had still not been seen by the PRC. Id. Unit

Manager Putnam “denied the grievance as resolved”, responding

that “plaintiff did not wait the allowable time by policy for

Grievance No. 236175 to be replied to, [plaintiff’s] 90 day

review was accidently missed and [plaintiff would be] scheduled

to see PRC next week.” Id. Plaintiff states that he “did not

see the PRC until three weeks over his 90 day Policy Review.”

Id. 

On August 14, 2008, plaintiff claims that defendants

Mooney, Demming and Walsh, “did falsify a document committing

perjury in an attempt to cover up violating plaintiff’s

administrative and procedural due process to be seen by the

Program Review Committee on his 90 day under the DOC policy for

disciplinary custody when” on August 7, 2008, they “went on the

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record falsely stating that ‘Inmate Rambert was not due to be

seen, but was seen at his request for a time cut’.” Id.

Plaintiff claims that this “is a false report/statement that

all defendants Mooney, Walsh and Demming signed”, since, as

plaintiff alleges, “the criteria for time cuts is the ‘Unit

Management Team’ requests it.” Id. Thus, Plaintiff alleges

that the delay in his PRC hearing violated his due process

rights under the Fourteenth Amendment. 

4. Disciplinary Claim

Plaintiff states that defendant, Charles J. McKeown “did

violate plaintiff’s administrative and procedural due process

when he stated a lie in misconduct sanction # A894702 that the

security cameras in the chow hall did not see the plaintiff

come into the chow hall and walk straight down the middle aisle

to line #3 window and never went to line #2,to where Sgt. Kross

knew the plaintiff only ate once and was doing to plaintiff

what became a ritual for guards to take prisoner’s food and

plaintiff has a right under DC-ADM 610 to three meals.” Id.

Plaintiff believes that defendant Mckeown’s “assessment that

cameras that are for the safety and control of the inmates and

staff are defective violated plaintiff’s right to an impartial

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hearing when he denied C.O. Burgess as a witness at plaintiff’s

misconduct hearing, and stated ‘not needed to determine the

facts’.” Id. Plaintiff states that “there were no facts” and

“defendant McKeown has a 100 percent conviction rate where the

camera, if effective, would clearly exonerate the prisoner but

instead he never finds the evidence in favor of inmates, the

camera’s are always inconclusive.” Id. 

Plaintiff contends that defendant McKeown has retaliated

against the plaintiff in Misconduct No. A894702 and six other

misconducts that plaintiff has received since January 7, 2009,

and that “all misconducts were issued falsely and lack any

evidence, in violation of the 8th and 14th Amendments.” Id. 

Plaintiff filed Grievance # 215438, “complaining about the

ineffectiveness of the SCI-Dallas CCTV system.” Id. Defendant,

Joseph Zakaraukas responded to plaintiff’s grievance with the

following: “Should we receive the funds adequate to upgrade the

CCTV system rest assured that improvements will be made, thank

you for your input and concern in this matter.” Id. Plaintiff

believes that “this was full of sarcasm.” Id. Defendant

Klopotoski denied plaintiff’s appeal, stating that he is

“confident the system satisfactorily meets the performance

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standards that were intended for it upon installation.” Id. 

On final review, defendant Watson found that “plaintiff failed

to provide sufficient evidence that the cameras in the kitchen

area are not working properly because they don’t zoom in.” Id.

Plaintiff alleges that these are all “debunkery statements but

the truth the plaintiff believes is that defendant McKeown is

falsely manipulating the cameras but since his assessment to

all camera reports are always deemed inconclusive the cameras

are defective and the plaintiff was injured and falsely

imprisoned as a result of the defective CCTV system that is

supposed to meet top security to protect and serve the interest

of the staff and inmate’s safety.” Id. 

Plaintiff files the instant action in which he seeks

compensatory and punitive damages, as well as injunctive

relief, for violations of his First, Eighth and Fourteenth

Amendments. Id. 

III. Discussion

A. Injunctive Relief

It is well recognized that the adjudicatory power of a

federal court depends upon “the continuing existence of a live

and acute controversy.” Steffel v. Thompson, 415 U.S. 452, 459,

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94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). “The rule in federal

cases is that an actual controversy must be extant at all

stages of review, not merely at the time the complaint is

filed.” Id. at 459 n. 10 (citations omitted). “Past exposure to

illegal conduct is insufficient to sustain a present case or

controversy regarding injunctive relief if unaccompanied by

continuing, present adverse effects.” Rosenberg v. Meese, 622

F.Supp. 1451, 1462 (S.D.N.Y.1985) (citing O'Shea v. Littleton,

414 U.S. 488, 495-96(1974)). A prisoner's transfer or release

from prison moots his claims for injunctive or declaratory

relief because he is no longer subject to the conditions he

alleges are unconstitutional. Abdul-Akbar v. Watson, 4 F.3d

195, 206-07 (3d Cir.1993); see also Weaver v. Wilcox, 650 F.2d

22, 27 (3d Cir.1981) (“[A] prisoner lacks standing to seek

injunctive relief if he is no longer subject to the alleged

conditions he attempts to challenge.”).

Plaintiff has been transferred to SCI-Coal Township. (See

Doc. 56.) There is nothing in the record to suggest that it is

likely that he will return to SCI-Dallas in the foreseeable

future. Consequently, plaintiff’s request in his complaint for

injunctive relief, as well as his pending motions for

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preliminary injunctive relief (Docs. 46, 52) are moot and will

be dismissed. See Fortes v. Harding, 19 F.Supp.2d 323, 326

(M.D.Pa.1998) (“Fortes' transfer to another institution moots

any claims for injunctive or declaratory relief.”). However,

the Court recognizes that a prisoner's transfer or release does

not moot his claims for damages. See Muslim v. Frame, 854

F.Supp. 1215, 1222 (E.D.Pa.1994) (“an alleviation of an alleged

unconstitutional condition does not moot a prisoner's claim for

actual and punitive damages.”).

B. Claims against various Defendants

Defendants argue that plaintiff fails to state a claim

against defendants Beard, Wynder, Klopotoski, Varner, Watson

and Lucas because the complaint reveals that they lack any

personal involvement in the wrongs, and plaintiff's allegations

against these defendants are based solely upon either their

roles in the grievance process or their supervisory roles.

(Doc. 24, at 3-5. The Court agrees.

In order to succeed under Section 1983, a plaintiff must

adduce evidence that the defendants were personally involved in

the deprivation of rights as there is no respondeat superior

liability permitted under Section 1983. Rode v. Dellarciprete,

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845 F.2d 1195, 1207 (3d Cir.1988) (“liability [in a civil

rights action] cannot be predicated solely on the operation of

respondeat superior.”); McClelland v. Facteau, 610 F.2d 693,

695 (10th Cir.1979) (“Respondeat superior is a doctrine of

vicarious liability based upon public policy [and] the notion

that the person who benefits by the acts of the servant must

pay for wrongs committed by the servant; the one held liable as

master need not be at fault in any way.”). “A defendant in a [§

1983] action must have personal involvement in the alleged

wrongs.” Rode v. Dellarciprete, 845 F.2d at 1207. “Personal

involvement can be shown through allegations of personal

direction or of actual [contemporaneous] knowledge and

acquiescence.” Id. Accord Evancho v. Fisher, 423 F.3d 347, 353

(3d Cir.2005) (“Her amended complaint likewise does not contain

even a remote suggestion that Attorney General Fisher had

contemporaneous, personal knowledge of her transfer and

acquiesced in it.”) 

As to defendants Wynder, Klopotoski, Varner, Watson and

Lucas, their sole role alleged in the complaint concerns their

handling of plaintiff’s grievances. Such is insufficient as a

matter of law to render these defendants liable.

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“[T]he failure of a prison official to act favorably on an

inmate's grievance is not itself a constitutional violation.”

Rauso v. Vaughn, Civil No. 96-6977, 2000 WL 873285, at *16

(E.D.Pa., June 26, 2000). See also Overholt v. Unibase Data

Entry, Inc., 221 F.3d 1335 (Table), 2000 WL 799760, at *3 (6th

Cir.2000) (“The defendants were not obligated to ‘properly’

respond to Overholt's grievances because there is no inherent

constitutional right to an effective prison grievance

procedure. Hence, his allegations that the defendants did not

properly respond to his grievances simply do not rise to the

level of a constitutional violation.”) (citations omitted);

Mitchell v. Keane, 974 F.Supp. 332, 343 (S.D.N.Y.1997) (“it

appears from the submissions before the court that Mitchell

filed grievances, had them referred to a prison official, and

received a letter reporting that there was no evidence to

substantiate his complaints. Mitchell's dissatisfaction with

this response does not constitute a cause of action.”); 

Caldwell v. Beard, Civil No. 2:07-CV-727, 2008 WL 2887810, at

*4 (W.D.Pa. July 23, 2008) (“Such a premise for liability

[i.e., for performing a role in the grievance process] fails as

a matter of law.”), aff'd,--- Fed.Appx. ----, 2009 WL 1111545

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(3d Cir. April 27, 2009); Caldwell v. Hall, Civil No. 97-8069,

2000 WL 343229, at *2 (E.D.Pa. March 31, 2000) (“The failure of

a prison official to act favorably on an inmate's grievance is

not itself a constitutional violation.”); Orrs v. Comings,

Civil No. 92-6442, 1993 WL 418361, at *2 (E.D.Pa. Oct.13, 1993)

(“But an allegation that a defendant failed to act on a

grievance or complaint does not state a Section 1983 claim.”);

Jefferson v. Wolfe, Civil No. 04-44, 2006 WL 1947721, at *17

(W.D. Pa. July 11, 2006) (“These allegations [of denying

grievances or grievance appeals] are insufficient to establish

such Defendants' personal involvement in the challenged conduct

under Section 1983. See Watkins v. Horn, 1997 WL 566080 at * 4

(E.D.Pa..[sic] 1997) (concurrence in an administrative appeal

process is not sufficient to establish personal involvement)”).

Additionally, defendant Beard should also be dismissed from

this action. Plaintiff’s only allegation with respect to

Secretary Beard is that on April 29, 2008, defendant Beard

issued Department policy DC-ADM 820 (“Co-Pay for Medical

Services”), which was allegedly misapplied by other named

defendants. (Doc. 19, Second Amended Complaint). The

plaintiff does not allege that Beard violated the Constitution

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by enacting DC-ADM 820, or that Beard was personally involved

in applying the policy in a manner that violated plaintiff’s

constitutional rights. Thus, it is clear that plaintiff is

attempting to hold defendant Beard liable based upon his

position as Secretary of the Department of Corrections.

However, a § 1983 action cannot be based solely upon a theory

of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195,

1207-08 (3d Cir.1988); see also, Rizzo v. Goode, 423 U.S. 362,

96 S.Ct. 598, 46 L.Ed.2d 561 (1976); see Atkinson v. Taylor,

316 F.3d 257 (3d Cir.2003); Hampton v. Holmesburg Prison

Officials, 546 F.2d 1077 (3d Cir.1976). 

C. Fourteenth Amendment Procedural Due Process claims

Plaintiff raises procedural due process claims concerning

the confiscation of his property. In this regard, he claims

that he did not receive procedural due process regarding the

confiscation of his religious literature, in that he was not

given the opportunity to have them shipped back to the sender

before they were destroyed, and he was not reimbursed for their

value.

To establish a due process violation under the Fourteenth

Amendment a plaintiff must demonstrate that the defendants

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deprived him of either a property or liberty interest. Daniels

v. Williams, 474 U.S. 327, 339 (1986). Property rights are

basic civil rights and a deprivation of property without due

process gives rise to a claim under section 1983. Lynch v.

Household Fin. Corp., 405 U.S. 538, 552 (1972). Inmates have a

protected property interest in the funds in their prison

accounts, Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.1997),

for which they are entitled to due process when deductions are

made. Gillihan v. Shillinger, 872 F.2d 935, 939 (10th

Cir.1989); Quick v. Jones, 754 F.2d 1521 (9th Cir.1984); Artway

v. Scheidemantel, 671 F.Supp. 330, 337 (D.N.J.1987).

What is not clear in the present action is whether

plaintiff had a protected property interest in the confiscated

items, which he alleges were purchased in accordance with

existing DOC policies and regulations. Specifically, plaintiff

alleges that, at the time he put his order in and request to

have funds deducted for such order, the security office made no

indication that such materials were a security threat and

allowed the transaction to proceed. Thus, plaintiff believed

that the purchase of these materials was in accordance with DOC

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25

policies, and that he would be permitted these publications as

part of his personal property. 

Initially, the Court notes that there remains a question

of fact as to whether plaintiff had a constitutionally

protected property interest in the confiscated items and, if

so, whether he received all process that was due. Specifically,

it is unclear whether the policy in question created a

protectable property interest, and if so, whether any

procedural protections provided for by the policies were

adequate. It may very well be that plaintiff's property was

destroyed through the negligent or intentional actions of

defendants that were random and unauthorized, to which

plaintiff may not be able to state a due process claim as a

matter of law where he has an adequate state tort remedy to

allow him to recover the property, or the value thereof, from

state officials in a state forum. Parratt v. Taylor, 451 U.S.

527 (1981); Hudson v. Palmer, 468 U.S. 517 (1984). However, to

the extent that plaintiff's property was destroyed pursuant to

DOC policy, the principles announced in Mathews v. Eldridge,

424 U.S. 319, 335 (1976) apply. In Matthews, the Supreme Court

announced a balancing test for determining when a

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26

pre-deprivation hearing is necessary under the Fourteenth

Amendment. 

Due process is flexible and calls for such procedural

protections as the particular situation demands.

Accordingly, resolution of the issue whether the

administrative procedures provided here are

constitutionally sufficient requires analysis of the

governmental and private interests that are affected.

More precisely, our prior decisions indicate that

identification of the specific dictates of due process

generally requires consideration of three distinct

factors: First, the private interest that will be

affected by the official action; second, the risk of

an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and

finally, the Government's interest, including the

function involved and the fiscal and administrative

burdens that the additional or substitute procedural

requirement would entail.

Matthews, 424 U.S. at 334-335 (internal quotations and

citations omitted).

This Court agrees that the Matthews balancing test may be

applicable to plaintiff's claims. Because the Court does not

have all of the applicable policies before it, it cannot

determine whether defendants' policies provided him with all

the process that he was due under the Matthews balancing test

and whether or not defendants followed the applicable policies

when they failed to provide plaintiff the opportunity to send

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27

the confiscated item back to the sender. Thus, Security Officer

Zakaraukas is not entitled to dismissal from this action and

plaintiff’s due process property interest claim is permitted to

proceed. 

Likewise, plaintiff’s claim that defendants deducted monies

from plaintiff’s inmate account for medical expenses, without

appropriate notice, and in violation of DOC policy, as it

existed at the time, that plaintiff’s medical needs were

classified as chronic and exempt from payment, may also

proceed. 

As previously mentioned, “[i]nmates have a property

interest in funds held in prison accounts. Thus, inmates are

entitled to due process with respect to any deprivation of this

money.” Reynolds, 128 F.3d at 179.

The requirements of due process are flexible and are

determined with reference to the private interests at stake,

the governmental interests, and the value of procedural

requirements in that particular context. Mathews, 424 U.S. at

335. Applying this standard, the United States Court of Appeals

for the Third Circuit has found no procedural due process

violation in the routine deduction from inmate institutional

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28

accounts of fixed fees for medical services and housing costs.

See Reynolds, 128 F.3d at 179-81; Tillman v. Lebanon Co.

Correctional Facility, 221 F.3d 410, 421 n. 12 (3d. Cir.2000)

(citing United States v. James Daniel Good Real Property, 510

U.S. 43, 53 (1993)) (in “extraordinary situations” such as

routine deduction of fees from a prisoner's account even

without authorization, post-deprivation remedies may be

adequate). The Court, however, on a motion to dismiss, cannot

conclude such, as questions of fact remain as to whether

plaintiff was afforded adequate notice prior to the deduction

of medical payments, or if plaintiff’s medical condition exempt

him from payment. Thus, plaintiff’s due process claim

regarding monies deducted from his inmate account for medical

expenses remains. 

D. Eighth Amendment Medical Claim

Plaintiff alleges that he was seen by defendant O’Brien,

who “changed the recent Dalsalid that had been issued by

defendant Bunk on 11/15/07.” (Doc. 19, Second Amended Complaint

at 5). Plaintiff explained to defendant O’Brien that the

Dalsalid was not working and that “the prior 4 years and 7

months, chronic Feldene ‘is what helped the pain’” and that

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29

defendant Bunk “took [it] from me.” Id. Defendant O’Brien

“administered Motrin and Selenium Sulfide.” Id.

In order to establish an Eighth Amendment medical claim,

a plaintiff must show “(i) a serious medical need, and (ii)

acts or omissions by prison officials that indicate deliberate

indifference to that need.” Natale v. Camden Cty. Correctional

Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical

need is one that has been diagnosed by a physician as requiring

treatment, or one that is so obvious that a layperson would

recognize the need for a doctor's attention. Monmouth County

Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326,

347 (3d Cir. 1987). In addition, “if unnecessary and wanton

infliction of pain results as a consequence of denial or delay

in the provision of adequate medical care, the medical need is

of the serious nature contemplated by the eighth amendment.”

Id. (quotation and citation omitted).

A prison official acts with deliberate indifference to an

inmate’s serious medical needs when he “knows of and disregards

an excessive risk to inmate health or safety; the official must

both be aware of facts from which the inference could be drawn

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30

that a substantial risk of serious harm exists, and he must

also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837

(1994). 

A mere difference of opinion between the prison's medical

staff and the inmate regarding the diagnosis or treatment which

the inmate receives does not support a claim of cruel and

unusual punishment. Farmer v. Carlson, 685 F. Supp. 1335, 1339

(M.D. Pa. 1988). See McCracken v. Jones, 562 F.2d 22, 24 (10th

Cir. 1977); Smart v. Villar, 547 F.2d 112, 113 (10th Cir.

1976), cert. denied, 450 U.S. 1041 (1981). 

Defendants O’Brien and Wisniewski-Bunk argue that

plaintiff's complaint amounts to a disagreement over the proper

course of treatment and therefore does not support a cause of

action under 42 U.S.C. § 1983. While this may very well be the

case, the Court finds that such conclusion cannot be determined

on the instant motion to dismiss. 

Plaintiff alleges that he has been diagnosed with Chronic

Degenerative Joint Disease of the Cervical Spine, which has

been alleviated for the past four years with the medication

Feldene. Within a short period of time, plaintiff’s medication

was changed to Dalsaid and then to Celenium Sulfate and Motrin.

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31

While there is no indication that defendants knew that these

medications would be ineffective, there is also no indication

that they were an appropriate substitute. Thus, the Court

finds that the record needs to be expanded to determine whether

plaintiff in fact suffered from a serious medical condition,

for which he was rendered appropriate medical care. Thus,

plaintiff’s claim under 42 U.S.C. § 1983 for violation of the

Eighth Amendment may proceed against defendants O’Brien and

Bunk.

E. Program Review Committee Review Claim

To the extent that plaintiff is attempting to establish a

Fourteenth Amendment procedural due process violation based

upon the denial of his 90 day PRC review hearing from July 16,

2008 until August 14, 2008, a period of time of less than 1

month, the Court finds that such fails to state a claim upon

which relief can be granted.

Conducting a procedural due process analysis involves a two

step inquiry: the first question to be asked is whether the

complaining party has a protected liberty or property interest

within the contemplation of the Due Process clause and, if so,

the second question to be asked is whether the process afforded

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32

the complaining party comported with constitutional

requirements. Shoats v. Horn, 213 F.3d 140, 143 (3d Cir.2000).

A protected liberty interest may arise from one of two

sources: (1) directly from the Fourteenth Amendment's due

process clause itself or (2) from state law. Hewitt v. Helms,

459 U.S. 460, 466 (1983). There is no liberty interest created

directly by the Fourteenth Amendment that prevents an inmate

from being subjected to disciplinary confinement. See Sandin v.

Conner, 515 U.S. 472, 484 (1995) (“Conner asserts, incorrectly,

that any state action taken for a punitive reason encroaches

upon a liberty interest under the Due Process Clause even in

the absence of any state regulation”); Stephany v. Wagner, 835

F.2d 497, 499 (3d Cir.1987) (“the Due Process Clause does not

give a prisoner a liberty interest in remaining in the general

prison population”).

Neither has Pennsylvania created a liberty interest in

being free from disciplinary or administrative confinement.

Addressing the issue of state created liberty interests, the

United States Supreme Court in Sandin v. Conner, 515 U.S. at

484, held that a state government “may under certain

circumstances create liberty interests which are protected by

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33

the Due Process Clause. But these interests will be generally

limited to freedom from restraint which, while not exceeding

the sentence in such an unexpected manner as to give rise to

protection by the Due Process Clause of its own force,

nonetheless imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.”

Placing, or more accurately, maintaining plaintiff in

administrative confinement for less than 1 month without any

hearing does not impose such an atypical and significant

hardship as a matter of law under the facts alleged in the

operative complaint and so does not deprive him of any liberty

interest. See e.g., Siddiq v. Edlund, 8 Fed.Appx. 522, 524 (6th

Cir.2001) (“placement in administrative segregation [for twenty

months] did not constitute an ‘atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.’ ”); Jones v. Baker, 155 F.3d 810 (6th Cir.1998)

(administrative confinement for two and one-half years was not

atypical and significant) (cited approvingly in Fraise v.

Terhune, 283 F.3d 506, 523 (3d Cir.2002)); Washington-El v.

Diguglielmo, No. 06-CV-4517, 2008 WL 2954745 (E.D.Pa. July 29,

2008) (17 months in administrative custody is not atypical and

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34

significant so as to qualify as a liberty interest). Cf.

Griffin v. Vaughn, 112 F.3d 703 (3d Cir.1997) (confinement in

administrative custody for fifteen months with only one hour of

exercise per day five days per week did not amount to an

atypical and significant hardship and thus did not deprive

prisoner of a liberty interest). Hence, because the time

Plaintiff spent in the administrative custody without a

required PRC hearing was less than 1 month, and so no liberty

interest was at stake pursuant to Griffin, plaintiff was not

entitled under the Federal Constitution to any procedural

protections. 

This is true notwithstanding the fact that Pennsylvania

rules and regulations may have required a PRC hearing every 90

days. The Supreme Court has observed that “[a] liberty interest

is of course a substantive [in contrast to a procedural]

interest of an individual; it cannot be the right to demand

needless formality. Process is not an end in itself. Its

constitutional purpose is to protect a substantive interest to

which the individual has a legitimate claim of entitlement....

The State may choose to require procedures for reasons other

than protection against deprivation of substantive rights, of

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35

course, but in making that choice the State does not create an

independent substantive right.” Olim v. Wakinekona, 461 U.S.

238, 250-51(1983) (internal quotations, citations and footnotes

omitted). See also United States v. Jiles, 658 F.2d 194, 200

(3d Cir.1981) (“The simple fact that state law prescribes

certain procedures does not mean that the procedures thereby

acquire a federal constitutional dimension.”) (quoting Slotnick

v. Staviskey, 560 F.2d 31, 34 (1st Cir.1977)); Shango v.

Jurich, 681 F.2d 1091, 1101-02 (7th Cir.1982) (“[A] state

created procedural right is not itself a liberty interest....

States may decide to engage in such proceedings, but the due

process clause does not compel them to do so because no

constitutionally cognizable substantive interest of the

prisoner is at stake.”); Hayes v. Muller, No. 96-3420, 1996 WL

583180,at *7 (E.D.Pa. Oct.10, 1996) (“[A] state does not

violate an individual's federal constitutional right to

procedural due process merely by deviating from its own

established procedures.”). Having been deprived of no liberty

interest by the defendants' failure to abide by DOC policies

requiring 90dayreview hearings, the complaint fails to state a

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3. To the extent that plaintiff requests an “upgrade” to all

security cameras at SCI-Dallas, this is not a form of relief

that this Court can afford plaintiff. The role of the court

is to enforce constitutional standards and to protect the

constitutional rights of prisoners. Ruiz v. Estelle, 679

F.2d 1115, 1126 (5th Cir.1982), cert. denied, 460 U.S. 1042,

103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). This role does not

include “supervising prison administration,” Id. at 1126, or

becoming “enmeshed in the minutiae of prison operations.”

Bell v. Wolfish, 441 U.S. 520, 562 (1979). Prison

administration must be left to the discretion of prison

administrators.

36

procedural due process claim as against defendants PRC members

Mooney, Demming and Walsh. 

F. Disciplinary Claim

Plaintiff’s final claim involves a misconduct he received.

Plaintiff’s only factual allegations regarding the misconduct

are that during the hearing held on Misconduct No. A894702,

defendant, Hearing Examiner McKeown denied plaintiff’s request

for a witness (Burgess), on the grounds that the witness “was

not needed to determine the facts”, and determined that the

security camera3 reports were inconclusive. (Doc. 19, Second

Amended complaint at p. 9). Plaintiff complains that McKeown

accepted the reporting officer’s version of events over

plaintiff’s testimony, and determined that the camera did not

show the plaintiff. Id. Thus, plaintiff contends that

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37

Hearing Examiner McKeown violated his due process rights by

denying him a witness at his disciplinary hearing. 

Plaintiff contends that Misconduct No. A894702, and six

other misconducts that plaintiff received since January 7,

2009, falsely charge him with misconduct and that defendant

McKeown has retaliated against plaintiff in these misconducts.

Id.

 1. Retaliation

Plaintiff claims that defendant McKeown retaliated against

him by finding him guilty of Misconduct No. A894702 and six

other misconducts. The facts set forth by plaintiff, however,

fail to establish the plaintiff was engaged in any protected

activity when he was found guilty of Misconduct No. A894701, or

the six other misconducts. To the extent that he would argue

that the filing of a civil rights action or grievance against

correctional officers resulted in defendant McKeown’s

retaliation, plaintiff fails to allege that defendant McKeown

was even aware of these filing or why such filings would have

caused McKeown to retaliate against him. Such allegations are

insufficient to support a retaliation claim. Cf. Watkins v.

Horn, 1997 WL 266837, at *6 (E.D.Pa. May 13, 1997) (citation

Case 4:09-cv-00634-WJN-DB Document 66 Filed 03/15/10 Page 37 of 43
38

omitted) (finding prisoner's pro se § 1983 allegations of

retaliation inadequate). 

The only proof plaintiff sets forth is the disciplinary

action, itself, and the fact that McKeown credited the

correction officer's report over plaintiff's. Sims v.

Dragovich, 1999 WL 371621, at *4 (E.D.Pa. June 8, 1999)

(granting summary judgment on claim of retaliation when claim

is based on unsupported conclusions and vague allegations).

Although plaintiff disputes the version of events presented by

the corrections officer in the misconduct, he does not present

any evidence that defendant McKeown was substantially motivated

by the filing of plaintiff’s grievances and/or civil rights

suit to find him guilty and sanction him. Because plaintiff

cannot base his retaliation claim upon a challenge to defendant

McKeown’s authority to assess the credibility of the report of

reporting correctional officer, plaintiff's claim against

defendant McKeown for Misconduct No. A894702, and the six other

misconducts will be dismissed. Sims, 1999 WL 371621, at *4

(dismissing retaliation claim against hearing examiner in which

plaintiff claimed that hearing examiner wrongfully accepted

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4. In Wolff, the Supreme Court recognized that "prison

disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant

39

correction officer's account of facts over plaintiff's

account).

2. Due Process

In Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct.

2293(1995), the Supreme Court reiterated the principle that

prisoners do not have a right to remain in general population

and that the Due Process Clause does not itself confer a

liberty interest “in freedom from state action taken within the

sentence imposed.” 515 U.S. at 480, 115 S.Ct. at 2298. The

Court further recognized that states may in certain

circumstances create liberty interests protected by the Due

Process Clause, “[b]ut these interests will be generally

limited to freedom from restraint which... imposes atypical and

significant hardship in the inmate in relation to the ordinary

incidents of prison life.” 515 U.S. at 484, 115 S.Ct. at 2300.

The Court concluded that a prisoner sentenced to 30 days in

disciplinary segregation did not have a protected liberty

interest that entitle him to the procedural protections set

forth in Wolff v. McDonnell4 418 U.S. 539, 94 S.Ct. 2963(1974).

Case 4:09-cv-00634-WJN-DB Document 66 Filed 03/15/10 Page 39 of 43
in such proceedings does not apply." Id. at 556. 

Nonetheless, the Supreme Court held that a prisoner facing

serious institutional sanctions is entitled to some

procedural protection before penalties can be imposed. Id.

at 563-71. The Supreme Court set forth five requirements

of due process in a prison disciplinary proceeding: (1) the

right to appear before an impartial decision-making body;

(2) twenty-four hour advance written notice of the charges;

(3) an opportunity to call witnesses and present

documentary evidence, provided the presentation of such

does not threaten institutional safety or correctional

goals; (4) assistance from an inmate representative, if the

charged inmate is illiterate or if complex issues are

involved; (5) a written decision by the fact finders as to

the evidence relied upon and the rationale behind their

disciplinary action. Id.

An additional procedural requirement was set forth in

Superintendent, Massachusetts Correctional Inst. at Walpole

v. Hill, 472 U.S. 445, 453-56 (1985). In that case, the

Court held that there must be some evidence which supports

the conclusion of the disciplinary tribunal.

40

515 U.S. at 487, 115 S.Ct. at 2302. In Griffin v. Vaughn, 122

F.3d 703 (3rd Cir. 1997), the Court of Appeals for the Third

Circuit held that an administrative custody of 15 months was

not uncommon and therefore not a violation of Due Process.

Under Sandin and Griffin it is clear that the denial of

plaintiff’s witness and plaintiff’s confinement in the RHU does

not rise to the level of a constitutional violation and

defendant McKeown is entitled to dismissal.

Case 4:09-cv-00634-WJN-DB Document 66 Filed 03/15/10 Page 40 of 43
An appropriate Order accompanies this Memorandum

Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-00634-WJN-DB Document 66 Filed 03/15/10 Page 41 of 43
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ERIC X. RAMBERT, :

:

Plaintiff : No. 4:CV-09-0634

:

vs. : (Complaint Filed 04/07/09) 

:

: (Judge Muir)

JEFFREY A. BEARD, et al., :

:

Defendants :

ORDER

March 15 , 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. The Corrections defendants’ motion to

dismiss (Doc. 23) is GRANTED in part and

DENIED in part as follows:

 

2. The motion to dismiss (Doc. 23) defendants

Wynder, Klopotoski, Varner, Watson, Lucas,

Mooney, Demming, Walsh, McKeown and Beard is

GRANTED. 

3. Corrections defendants’ motion to dismiss

(Doc. 23) defendant Zakaraukas is DENIED. 

4. The motion to dismiss defendants O’Brien and

Wisniewski-Bunk (Doc. 44) is DENIED.

5. Plaintiff’s motions for preliminary

injunctive relief (Docs. 46, 52) are

DISMISSED as moot. 

Case 4:09-cv-00634-WJN-DB Document 66 Filed 03/15/10 Page 42 of 43
6. All remaining defendants are directed to

file an answer to the complaint within

twenty (20) days of the date of this order.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-00634-WJN-DB Document 66 Filed 03/15/10 Page 43 of 43