1Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct.

1999 (1971). 

2On March 15, 2006, McKettrick filed a § 2241 habeas corpus petition naming Warden

Williamson as the Respondent, Civil No. 06-0543, M.D. Pa. In his Habeas Petition, McKettrick

essentially raised the same claim as he did in the instant Bivens suit, namely that his placement

in the Special Management Unit (“SMU”) at USP-Lewisburg without notice and a hearing, and

without a Bureau of Prisons policy or criteria governing the SMU program, violated his due

process rights. On May 10, 2006, the District Court issued an Order dismissing McKettrick’s 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND McKETTRICK : CIVIL ACTION NO. 4:CV-06-0329 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

TROY WILLIAMSON, et al., :

:

Defendants :

 REPORT AND RECOMMENDATION

I. Background. 

The Plaintiff, Kenneth Raymond McKettrick, an inmate at the United States Penitentiary at

Lewisburg (“USP-Lewisburg”), Pennsylvania, originally filed, pro se, this Bivens1 action pursuant to

28 U.S.C. § 1331, on February 14, 2006. Plaintiff named as Defendants two individuals employed

by the Federal Bureau of Prisons (“BOP”), one named person at USP-Lewisburg, namely Warden

Williamson, and the other an unknown John Doe Defendant who was the BOP Northeast Regional

Director. Plaintiff filed an in forma pauperis request (Doc. 2), but he later paid the filing fee in full

(Doc. 6).2 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 1 of 18
Habeas Corpus Petition. See Civil No. 06- 0543, Doc. 5. 

3Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

2

We preliminary screened Plaintiff’s original complaint under the Prison Litigation Reform Act

of 1995 (the “PLRA”),3 which obligates the Court to engage in a screening process despite his

payment of the filing fee). We stated that even though Plaintiff paid the filing fee for a civil rights

action, we must still screen his complaint pursuant to 28 U.S.C. §1915A. See Vega v. Kyler, C.A. No.

03-1936 (3d Cir. 2004) 2004 WL 229073 (non-precedential) (If prisoner pays filing fee, civil rights

complaint is subject to review under 28 U.S.C. § 1915A(b) and not 28 U.S.C. § 1915(e)(2)(B)). 

 Section 1915A provides:

(a) Screening.- The court shall review, before docketing if feasible or, 

in any event, as soon as practicable after docketing, a complaint in a 

civil action in which a prisoner seeks redress from a governmental 

entity or officer or employee of a governmental entity. 

(b) Grounds for dismissal.- On review, the court shall identify 

cognizable claims or dismiss the complaint, or any portion of the 

complaint, if the complaint-

(1) is frivolous, malicious, or fails to state a claim upon which 

relief may be granted; or

(2) seeks monetary relief against a defendant who 

is immune from such relief.

In reviewing the original complaint under 28 U.S.C. §1915A(b), we found that the Plaintiff

did not state the personal involvement of either Defendant Williamson or John Doe Defendant with

respect to his retaliatory SMU transfer claim, and that Plaintiff‘s due process claim regarding his SMU

placement without any criteria as against our Defendants did not implicate a liberty interest. Thus,

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 2 of 18
3

we found that Plaintiff’s Bivens action failed to state a Fifth Amendment due process claim. We

also found that under §1915A(b), the Plaintiff could not proceed as against the John Doe Defendant

since he could not be served, and since there was no personal involvement in Plaintiff‘s placement

in the SMU alleged with respect to this unnamed Defendant. Thus, we recommended that the

John Doe Defendant be dismissed. Further, we found that since no personal involvement of the

named Defendants was alleged with respect to Plaintiff’s retaliatory transfer claim, i.e., he was

transferred to the SMU program due to his grievances against prison staff, Plaintiff should be

permitted to amend his pleading for this claim to raise it against the responsible prison staff

members. (Doc. 7). 

On May 22, 2006, the District Court issued an Order adopting our Report and

Recommendation in full, and granted Plaintiff leave to file an amended complaint with respect to

his First Amendment retaliation claim. (Doc. 13). Plaintiff then filed his Amended Complaint on

June 13, 2006. (Doc. 14). We now screen Plaintiff‘s amended pleading. We find that Plaintiff has

stated a First Amendment retaliation claim only against Defendant Lt. Mconnell, SIS. We find

Defendants BOP; Harley Lappin, BOP Director; Dodrill, Regional BOP Director; Troy Williamson,

Warden at USP-Lewisburg, former Warden at USP-Allenwood; Tim Mathews, SIA; and John Does

1 to 100 should be dismissed due to their lack of personal involvement in Plaintiff‘s claim. 

II. Allegations of Amended Complaint. 

We shall not repeat in full Plaintiff‘s First Amendment retaliation claim since it is essentially

the same as in his original Complaint, which we have thoroughly discussed in our prior Report and

Recommendation. (Doc. 7). Suffice to say, that Plaintiff claims that he transferred from USPCase 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 3 of 18
4

Allenwood, and placed in the SMU program at USP-Lewisburg due to his filing of grievances

regarding the conditions of the SHU and challenging the BOP’s policy that required an inmate to

be housed in the SHU for 12 months. (Doc. 14, pp. 3-4). In particular, Plaintiff claims that on May

10, 2005, he was placed in the SHU at USP-Allenwood for a misconduct charge for a unspecified

prohibited act. Plaintiff was sanctioned to 30 days in the SHU by the DHO as a result. While

serving his SHU sanction time, Plaintiff claims that he sought to file an Administrative grievance

challenging the conditions of the SHU, and the BOP’s policy requiring an inmate to be housed in

the SHU for 12 months. Plaintiff alleges that SIS staff member Defendant Lt. Mconnell said, with

respect to his grievance, “If you file any grievance, you will sit in (SHU) for one year and be transfer

(sic).” (Id., p. 4, ¶ 7.). Plaintiff alleges that three (3) months later, i.e. September 28, 2005, he was

transferred to USP-Lewisburg and confined in its SHU. Plaintiff alleges that while in USP-Lewisburg’s

SHU, he attempted to file a grievance and an unknown staff member threatened him by stating that

“If you file any grievance you will be placed in our Special Management Unit (SMU).” (Id., ¶ 9.).

Plaintiff then avers that after he made numerous requests regarding the reason for his transfer to the

SMU, his Unit Manager Adams told him that then USP-Allenwood Warden Williamson, along with

then USP-Lewisburg Warden Smith, wanted him in the SMU. (Id., ¶ 11.). Plaintiff alleges that on

January 12, 2006, an unknown female SIS officer informed him that he was being placed in the SMU

“for pursuing Administrative remedies, and his race (Native American), and the (BOP) Regional

Director Dodrill for Northeast Region, and Warden Troy Williamson are involved in a (sic) ungodly

campaign against Native American for their past and present prison disruptive occurrences, in which

was unknowing to Plaintiff.” (Id., ¶ 12.). 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 4 of 18
5

Plaintiff then avers that on March 23, 2006, Defendant Williamson, now the Warden at USPLewisburg, responded to his Administrative remedy and stated “‘it has been predetermined by

regional Director Dodrill and SIA T. Matthews that Plaintiff was the leader of the Native American

Gang at USP-Allenwood facility’ and your appeal is denied.” (Id., ¶ 13.). Plaintiff avers that he

subsequently filed another grievance in which he claimed that he was being targeted and

discriminated against based on his nationality, his native spiritual belief, and that he was being

subjected to retaliation for exercising his appeal right. (Id., ¶ 14.). Plaintiff then claims that he made

several inquires regarding the status of his BOP administrative remedy process, but that he was

informed by prison staff and Warden Williamson that there was no record of his filing any

Administrative remedies. (Id., ¶ 15.). Finally, Plaintiff avers that on April 1, 2006, he tried to file

another Administrative remedy, claiming that he was targeted as a leader of the Native Gang due

to his practicing his spiritual religion, and that he was being retaliated against for exercising his right

to file BOP grievances. (Id., p. 6, ¶ 16.). Plaintiff alleges that to date, Warden Williamson and other

supervisory staff members continued to claim that there are no records of any of Plaintiff‘s

grievances. (Id., ¶ 17.). 

Plaintiff states that he is challenging Defendants‘ race classification and his alleged gang

leadership, and he claims that he is being retaliated against for filing grievances. (Doc. 14, p. 11). 

With respect to the John Doe Defendants 1 to 98, Plaintiff does not allege any personal involvement

of them concerning his retaliation claim necessary to name these unidentified BOP officials as

Defendants. With respect to two John Doe Defendants, in his Affidavit attached to his original

Complaint, Plaintiff again states that after his transfer to USP-Lewisburg, on December 8, 2005,

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 5 of 18
4As we previously noted, it is well-settled that the Plaintiff must exhaust his administrative

remedies prior to filing a civil rights suit. Id. at 230. In Porter v. Nussle, 534 U.S. 516, 532

(2002), the Supreme Court reiterated that the exhaustion requirement under § 1997e(a) applies

to all actions regarding prisons conditions, including § 1983 actions or actions brought pursuant

to any other federal law. The Porter Court held that “the PLRA’s exhaustion requirement

applies to all inmate suits about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or some other wrong.” Id. 

However, Defendants have the burden to plead exhaustion as an affirmative defense. See Ray

v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). 

6

when he asked for BOP Administrative remedy form BP-8, he was threatened by an unknown prison

staff that he was going to be placed in the SMU if he filed his grievance. (Doc. 14, p. 4, ¶ 9.).

Plaintiff also again states that on January 12, 2006, an unknown female SIS officer told him that he

was being placed in the SMU due to his pursuit of Administrative remedies, and due to his Native

American race. (Id., ¶ 12., p. 5). Plaintiff does not sufficiently allege the personal involvement of

Defendants Lappin, Dodrill, Williamson, Mathews and John Doe Defendants 1 to 98 in the claimed

retaliatory transfer to the SMU due to his race and filing grievances. 

Plaintiff does not request any relief in his amended pleading. (Id., p. 12). 

Plaintiff states that he “has attempted” to exhaust his administrative remedies regarding his

present claims against the BOP and Defendants. (Id., p. 2, ¶ II.).4 

As mentioned, Plaintiff‘s Fifth Amendment due process claim of SMU confinement has been

dismissed, and he was permitted leave to amend his pleading regarding his First Amendment

retaliation claim. (Doc. 13). 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 6 of 18
7

III. Motion to Dismiss Standard.

In considering whether a pleading states an actionable claim, the court must accept all

material allegations of the complaint as true and construe all inferences in the light most favorable

to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed

for failure to state a claim unless it appears “beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 44-46

(1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts

which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed

without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976). 

IV. Bivens. 

Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. 

§ 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations

by a federal actor under Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury

to a constitutionally protected interest could invoke the general federal question jurisdiction of the

district court to obtain an award of monetary damages against the responsible federal official.” Butz

v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent of

an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held to

apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486,

1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992). In order

to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him of a federal

right, and that the person who caused the deprivation acted under color of federal law. See West

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 7 of 18
5The BOP is named as a Defendant in Plaintiff‘s caption, but not in his “Parties” section

of his Amended Complaint. Doc. 14, pp. 1 & 7. 

8

v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992). 

V. Discussion.

1. BOP is not a person under Bivens

As his first Defendant in his Amended Complaint, Plaintiff names the BOP.5 However, the

BOP is not a proper party Defendant in a Bivens action. See Burnside v. Warnick, 2005 WL

3071690, * 3 (M.D. Pa.); Umezurike v. BOP, 2005 WL 2100700, * 2 (M.D. Pa.). 

2. No Personal Involvement of John Doe Defendants 1 to 98

As discussed above, there is no personal involvement alleged with respect to 98 of the John

Doe Defendants 1 to 100. Plaintiff alleges only two (2) unknown staff members at USP-Lewisburg

told him that if he filed any grievance he would be placed in the SMU, and that since he filed an

Administrative remedy he was being placed in the SMU. (Doc. 14, pp. 4-5). Plaintiff does not state

that the John Doe Defendants had anything to with the decision to allegedly transfer him to the SMU

program due to his race and filing of grievances other than to inform him of the consequence for

filing a grievance. 

Plaintiff has now had more than ample time to find the names of his John Doe Defendants

since he initially filed this case on February 14, 2006, i.e. over four (4) months. Since Plaintiff has

been given one opportunity to amend his Complaint, and he has still failed to identify the John Doe

Defendants, we do not find that he should be given another chance to amend his pleading with

respect to the identity of the two John Doe Defendants. 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 8 of 18
6Further, since the Plaintiff was given an opportunity to identify the John Doe

Defendants in his amended pleading and failed to do so, he should not sua sponte be given

leave to amend his pleading a second time in this case. See Fed. R. Civ. P. 15(a) (leave to

amend “shall be freely given when justice so requires”). See Fauver v. Shane, 213 F. 3d 113,

116-17 (3d Cir. 2000). 

7

If the Plaintiff is able to identify any of the John Doe Defendants during discovery and to

state the personal involvement of the Defendants in his placement in the SMU program and in

his alleged retaliatory transfer, he may request leave to again amend his pleading. See Fed. R.

Civ. P. 15(a) (leave to amend “shall be freely given”). 

9

Morever, as we stated in our prior Report and Recommendation, there is no procedure for

pursuing civil rights actions against John Doe Defendants. The Court does not have the ability to

direct service on the John Doe Defendants due to Plaintiff‘s failure to identify them, and this

warrants dismissal of the claims against the unnamed Defendants. See Vollmer v. Bowles, 1997 WL

102476 at * 2 (N.D. Tex 1997); Siguradson v. DelGuercio, 241 F. 2d 480, 482 (9th Cir. 1956) (claims

against John Doe Defendants dismissed as frivolous because federal rules make no provision for

joining fictitious Defendants in an action under a federal statute).6 Therefore, we shall recommend

that John Doe Defendants 1 to 100 be dismissed.7 

3. Supervisory Defendants Lappin, Dodrill, Williamson and Mathews 

Plaintiff names Defendant Lappin, BOP Director, since he has “paramount power and

authority over the overall operations of prisoners housing, transfer, discipline” ... . (Doc. 14, p. 7,

¶ 21.). The personal involvement of this Defendant with respect to Plaintiff’s retaliatory transfer

claim is completely lacking, and this Defendant cannot be held liable based on respondeat superior,

as he is attempting to do. 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 9 of 18
10

As stated, Plaintiff alleges that he was told that Defendant Williamson wanted him in the SMU

program. Plaintiff also alleges that Defendant Williamson responded to his Administrative Remedy

by stating that it was predetermined by BOP Regional Director Dodrill and Defendant SIA Matthews

that he was the leader of the Native American Gang at his former prison, USP-Allenwood, and then

denied Plaintiff‘s appeal. (Id., p. 5, ¶ 13.). Plaintiff claims that Defendant Williamson further

informed him that there was no record of any of Plaintiff‘s Administrative remedies. (Id., pp. 5-6).

Also as stated, Plaintiff claims that the supervisory Defendants were “involved in a (sic) ungodly

campaign against Native Americans for their past and present prison disruptive occurrences.” (Id.,

p. 5, ¶ 12.). 

We do not find that the responses to Plaintiff‘s Administrative remedies with respect to his

challenge to his placement into the SMU program are sufficient personal involvement by the

supervisory Defendants. See Burnside, supra. We also find that Plaintiff‘s detailed allegations do not

suffice to name the BOP Director (Lappin) and the Northeast Regional Director (Dodrill) as

Defendants in this action. Respondeat superior is not an acceptable basis to hold a BOP official as

a Defendant in a Bivens action, as mentioned above. 

Each named defendant must be shown, through the complaint’s allegations, to have been

personally involved in the events or occurrences upon which Plaintiff’s claims are based. As the

Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal involvement

in the alleged wrongs . . . . [P]ersonal involvement can be shown

through allegations of personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual knowledge

and acquiescence, however, must be made with appropriate

particularity. (Citations omitted).

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 10 of 18
11

A civil rights complaint must state time, place, and responsible persons. Id. Courts have also

held that an allegation seeking to impose liability on a defendant based on supervisory status,

without more, will not subject the official to liability. See Rode, 845 F.2d at 1208. 

A Defendant prison official cannot be held liable for the actions of others since the doctrine

of respondeat superior is not an acceptable basis for civil rights liability. See Durmer v. O’Carroll, 991

F. 2d 64, 69 (3d Cir. 1993). Liability may only be based upon Defendant’s personal involvement

in conduct amounting to a constitutional violation. Hampton v. Holmesburg Prison Officials, 547 F.

2d 1077 (3d Cir. 1976). 

We find that the four supervisory Defendants, Lappin, Dodrill, Williamson and Mathews,

should be dismissed since their personal involvement in the alleged retaliatory transfer of Plaintiff

to the SMU program due to his grievances and his race is lacking. 

As discussed, Plaintiff alleges that Defendant Williamson allowed the application of an illegal

prison policy that caused him to be placed him in the SMU program on January 20, 2006,

presumably to the present. Plaintiff also states that he was transferred to the SMU based on

retaliation premised on his race and the grievances he filed. However, Defendant Williamson’s

personal involvement based on his responses to Plaintiff‘s Administrative remedies is not sufficient

with respect to the alleged retaliatory transfer by Plaintiff. 

Plaintiff also states that Defendant Williamson informed him that there was no record of any

Administrative remedies appeals filed by Plaintiff. (Doc. 14, p. 5). As we previously stated, a prison

official’s response or lack thereof to an inmate’s Administrative remedies is not sufficient alone to

hold the official liable in a civil rights action. The law is well-settled that there is no constitutional

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 11 of 18
12

right to a grievance procedure. See Jones v. North Carolina Prisoners’ Labor Union, Inc. 433 U.S.

119, 137-138 (1977). This very Court has also recognized that grievance procedures are not

constitutionally mandated. See Chimenti v. Kimber, Civil No. 3:CV-01-0273, slip op. at p. 18 n. 8

(March 15, 2002) (Vanaskie, C.J.), reversed in part, C.A. No. 03-2056 (3d Cir. June 8, 2005)(NonPrecedential). Even if the prison provides for a grievance procedure, as the BOP does, violations

of those procedures do not amount to a civil rights cause of action. Mann v. Adams, 855 F. 2d 639,

640 (9th Cir 1988), cert denied, 488 U.S. 898 (1988); Hoover v. Watson, 886 F. Supp. 410, 418 (D.

Del. 1995), aff’d 74 F. 3d 1226 (3d Cir. 1995). See also Burnside v. Moser, Civil No. 04-2485, 12-

16-04 Order, p. 3, J. Muir, M.D. Pa. (Even “[i]f the state elects to provide a grievance mechanism,

violations of its procedures do not ... give rise to a [constitutional] claim.”) (citations omitted). Thus,

even if the prison official allegedly failed to process the prisoner’s grievances, no constitutional claim

is stated. Burnside, supra. 

Plaintiff has not stated a First Amendment retaliation claim against Defendants Williamson,

Lappin, Dodrill, and Mathews. In Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001), the Court

stated that “a prisoner litigating a retaliation claim must show that he suffered some ‘adverse action’

at the hands of the prison officials.” To establish a retaliation claim, the Plaintiff must also show that

there exists a causal nexus between the Plaintiff’s constitutionally protected conduct and the adverse

action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). We find that this nexus does not exist

with respect to the four supervisory Defendants. Plaintiff does not allege that our Defendants

retaliated against him due to his race and his grievances by placing him into the SMU program.

Plaintiff’s claims amount to a dispute with the decisions of the BOP supervisory Defendants that he

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 12 of 18
13

was the leader of a Native American Gang and the findings that he was involved in prison disruptive

occurrences. As the Third Circuit recently stated in Smith v. Dept. of General Services of PA, C.A.

No. 05-3405, (3d Cir. June 7, 2006), slip op. p. 8, “a claim of First Amendment retaliation requires

personal involvement in the alleged retaliatory conduct so that there is a causal connection.”

(Citations omitted) (Non-Precedential). 

Moreover, as previously discussed, Plaintiff has not alleged that he had a “protected liberty

interest” that was infringed by the actions of the supervisory Defendants “[T]hese interests will

generally be limited to freedom from restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to 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.”

Sandin v. Conner, 515 U.S. 472, 484 (1995). “[T]he baseline for determining what is ‘atypical and

significant’--the ‘ordinary incidents of prison life’--is ascertained by what a sentenced inmate may

reasonably expect to encounter as a result of his conviction in accordance with due process of law.”

Griffin v. Vaughan, 112 F.3d 703, 706 (3d Cir. 1997) quoting Sandin, 515 U.S. at 486. 

Plaintiff avers that the BOP officials found that he was the leader of a Native American Gang

and determined that he should be placed in the SMU program. Plaintiff’s claims against the

supervisory Defendants relate to their decision to place him in the SMU program. We do not find

that this decision implicates a liberty interest. 

In Griffin, the Court found that confinement of a prisoner in restrictive housing for fifteen (15)

months did not implicate a constitutionally protected liberty interest. Based on Sandin and Griffin,

the Plaintiff‘s Complaint as against the BOP supervisory Defendants fails to state a claim, since his

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 13 of 18
14

3 1⁄2 month (as of March 9, 2006) placement in the SMU program does not give rise to a protected

liberty interest. Further, no liberty interest is implicated by the Plaintiff because he had no right to

a particular prison classification, i.e. general population classification. It is well-settled that an inmate

has no recognizable constitutional right to a particular custody status. See Wilson v. Horn, 971 F.

Supp. 943, 947 (E.D. Pa. 1997); Vega, supra. 

Moreover, as the District Court has already found (Doc. 13, p. 5), based on this Court’s

decisions in Francis v. Dodrill, 2005 WL 2216582 (M.D. Pa.), andStotts v. Dodrill, Civ. No. 04-0043,

M.D. Pa., Plaintiff’s placement in the SMU does not implicate his due process rights. 

Further, no conspiracy is properly alleged in this case. As stated, Plaintiff claims in a

conclusory fashion that the supervisory Defendants were involved in an “ungodly campaign against

Native Americans.” (Doc. 14, p. 5, ¶ 12.). As the Court stated in Pardue v. Gray, C.A. No. 04-2784

(3d Cir. 6-2-05), slip op. p. 8 (non-precedential): 

[t]o establish the existence of a conspiracy under § 1983 

a plaintiff must show that two or more conspirators reached an

agreement to deprive her of a constitutional right under color

of state law . . .

(citations omitted). 

Since we find Plaintiff‘s allegation insufficient to claim that any of the four supervisory

Defendants violated any of Plaintiff‘s constitutional rights, his conspiracy claim against them cannot

be sustained. See Pardue v. Gray, supra, p. 8. 

Moreover, we find that Plaintiff‘s bare conclusory allegations of conspiracy against the stated

Defendants are inadequate to allege a conspiracy claim. See Flanagan v. Shively, 783 F. Supp. 922,

928-29 (M.D. Pa. 1992), aff’d. 980 F. 2d 722 (3d Cir. 1992), cert. denied 510 U.S. 829 (1993). “The

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 14 of 18
15

Plaintiff’s allegations [of conspiracy] must be supported by facts bearing out the existence of the

conspiracy and indicating its broad objectives and the role each Defendant allegedly played in

carrying out those objectives. Bare conclusory allegations of ‘conspiracy’ ... will not suffice to allege

an agreement or make averments of communication, consultation, cooperation, or command from

which such an agreement can be inferred.” Id. at 928. The Plaintiff does not specify any role or

agreement of the stated Defendants in the alleged campaign against Native Americans. 

Based on the foregoing, we find that Plaintiff has failed to allege any personal involvement

of Defendants Lappin, Dodrill, Williamson and Mathews in his retaliatory transfer to the SMU

program claim. Thus, we shall recommend that this case be dismissed as against these four

supervisory Defendants. 

4. Defendant Lt. Mconnell 

As stated, Plaintiff claims that Defendant Lt. Mconnell, SIS staff member, threatened him by

stating that if he filed any grievance, he will sit in the SHU for one year and then be transferred.

(Doc. 14, p. 4, ¶ 7.). This is the only Defendant against whom we find Plaintiff has stated a First

Amendment retaliation claim. Thus, we shall recommend that this case proceed as to Defendant

Mconnell. 

VI. Recommendation. 

Based on the foregoing, it is respectfully recommended that Plaintiff’s Bivens action be

dismissed as to Defendant BOP, and as to the four supervisory Defendants, Lappin, Dodrill,

Williamson and Mathews, for failure to allege their personal involvement in his claims, and for failure

to state a claim against them. It is recommended that John Doe Defendants 1 to 100 be dismissed.

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 15 of 18
16

 It is also recommended that Plaintiff be allowed to proceed on his Amended Complaint only with

respect to his First Amendment retaliation claim against Defendant Mconnell. Finally, it is

recommended that this case be remanded to the undersigned for further proceedings. 

 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: June 22, 2006 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 16 of 18
17

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND McKETTRICK : CIVIL ACTION NO. 4:CV-06-0329 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

TROY WILLIAMSON, et al., :

 :

:

Defendants :

 NOTICE

 

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated June 22, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 17 of 18
18

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

 s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: June 22, 2006 

Case 4:06-cv-00329-JFM Document 15 Filed 06/22/06 Page 18 of 18