IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

SHARIFF BUTLER, 

 Plaintiff, 

 v. 

JOHN E. WETZEL, et al., 

 Defendants. 

 No. 4:23-CV-00859 

 (Chief Judge Brann) 

 

MEMORANDUM OPINION 

MARCH 1, 2024 

 Plaintiff Shariff Butler filed the instant pro se Section 19831

 action 

concerning conditions of confinement at the State Correctional Institution, 

Huntingdon (SCI Huntingdon). Presently before the Court is Defendants’ 

unopposed motion to dismiss Butler’s amended complaint. For the reasons that 

follow, the Court will grant in part and deny in part Defendants’ motion. 

I. BACKGROUND 

Butler initially filed this case in May 2023.2

 After several improper attempts 

to amend his pleading as a matter of course (under the Federal Rules of Civil 

1

 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional 

wrongs committed by state officials. The statute is not a source of substantive rights; it serves 

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ. 

v. Doe, 536 U.S. 273, 284-85 (2002). 

2

 See generally Doc. 1. 

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2 

Procedure existing at that time),3 he eventually filed an amended complaint in 

compliance with Rule 15 on September 21, 2023.4

 That amended complaint is the 

operative pleading in this action. 

The gravamen of Butler’s amended complaint is that SCI Huntingdon, where 

he is currently confined, has inadequate fire-safety protections in place. Butler 

alleges that, on January 9, 2021, a fire broke out in a cell on his housing unit.5

 He 

recounts that corrections officers tended to the fire but that, after they believed the 

fire had been extinguished, the unit became “engulfed in smoke” and the prisoners 

had to be evacuated off the unit and out of the prison.6

 

Following this incident, Butler filed a formal grievance in which he 

complained about the numerous purported deficiencies with respect to SCI 

Huntingdon’s fire-safety response.7

 He raised the following issues: (1) the length 

of the evacuation process (taking approximately 20 minutes in Butler’s 

estimation); (2) no “initial sounding of any alarm” when the fire began; (3) no 

corrections officers “tending all tiers” at the time of the incident; (4) no “smoke 

exhaust fans” or an “adequately operable ventilation system” in the housing unit; 

(5) no master locking system for all cells—each cell has to be individually, 

3

 See Docs. 4, 7, 14, 15. Butler also filed numerous motions for reconsideration and a motion 

for recusal. See Docs. 10, 16, 19, 25. Those motions were denied. See Docs. 11, 21, 22, 26. 

4

 Doc. 23. 

5

 Id. ¶ 14. 

6

 Id. ¶¶ 14-15, 17-19. 

7

 Id. ¶ 24; Doc. 23-11 at 2-3. 

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3 

manually unlocked; (6) no “fire equipment” to tend to major fires; and (7) no 

“adequately operable fire exits.”8

 Butler claimed that these conditions “placed 

[his] life in immediate imminent danger” and constituted deliberate indifference, 

cruel and unusual punishment, and discriminatory treatment.9 10

Butler appears to have exhausted his grievance through final appeal with the 

Secretary’s Office of Inmate Grievances and Appeals (SOIGA), and it was denied 

at all levels.11 He additionally complained to the Pennsylvania Department of 

Labor and Industry and the Bureau of Occupational and Industry Safety, asserting 

the same fire-safety issues raised in his grievance and contending that SCI 

Huntingdon does not comply with the “Fire and Panic Act, 35 PA. CONS. STAT. §§ 

1221-1235.1.”12 He avers that he did not receive a response from either agency.13 

Butler lodged his complaint in this Court on May 19, 2023.14 He names the 

following defendants: John E. Wetzel, former Secretary of the Pennsylvania 

8

 Doc. 23 ¶ 24; Doc. 23-11 at 2-3. 

9

 Doc. 23-11 at 3; see also Doc. 23 ¶ 28. 

10 The Court observes that, in Butler’s own supporting documents attached to his complaint, 

Safety Manager Anthony Scalia indicates that the evacuation took “approximately 6 minutes,” 

“the institution’s fire alarm system functioned exactly as it should have,” and “the smoke 

exhaust system kicked on and expelled the majority of smoke from the housing unit within 

several minutes.” Doc. 23-4 at 3. These assertions directly contradict many of Butler’s 

allegations regarding the conditions at SCI Huntingdon on January 9, 2021. Nevertheless, at 

the Rule 12(b)(6) stage, Butler’s allegations must be taken as true. 

11 Doc. 23-11 at 4-10. 

12 Doc. 23 ¶¶ 29-30; Doc. 23-5; Doc. 23-6; Doc. 23-7. Butler alleges that the “Fire and Panic 

Act” is now known as the “Life Safety Code Act,” but does not provide an accurate statutory 

or code citation. See Doc. 23 ¶ 11. 

13 Doc. 23 ¶ 31. 

14 See id. at pp. 23, 24. 

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Department of Corrections (DOC); Kevin Kauffman, former Superintendent of 

SCI Huntingdon; Corrections Officer C. Kendrick; Safety Manager Anthony 

Scalia; Unit Manager George Ralston; Corrections Officer Jennifer Jenkins; and 

the Pennsylvania Department of Labor and Industry.15 It appears that Butler is also 

suing Chief Grievance Officer Dorina Varner and Assistant Chief Grievance 

Officer Keri Moore, although they are listed only in the caption and do not appear 

in the defendant-identification section of the amended complaint.16

Butler asserts four causes of action: (1) a Section 1983 conditions-ofconfinement claim under the Eighth Amendment; (2) a Section 1983 equal 

protection claim under the Fourteenth Amendment; (3) a claim of civil conspiracy 

to violate constitutional rights, presumably under Section 1983; and (4) a state-law 

negligence claim.17 He seeks declaratory and injunctive relief, as well as nominal, 

compensatory, and punitive damages.18

 

15 Id. ¶¶ 5-11. 

16 Compare id. ¶¶ 5-11, with id. at p. 1. 

17 See Doc. 23 ¶¶ 53-70. 

18 Id. at pp. 21-22. Butler also asserts that he is seeking “immediate release” from custody, but 

such claims sound in habeas corpus, not Section 1983 liability. See, e.g., Hope v. Warden York 

Cnty. Prison, 972 F.3d 310, 323-25 (3d Cir. 2020) (explaining that detainees seeking “release 

from detention” may proceed by way of a habeas petition challenging unconstitutional 

conditions of confinement, but only in “extraordinary circumstances”). The Court additionally 

observes that, although Butler seeks money damages for mental and emotional injury, his 

alleged physical injury of short-term smoke inhalation (without any lasting effect) does not 

appear to rise above the de minimis level, as required by 42 U.S.C. § 1997e(e). See Mitchell 

v. Horn, 318 F.3d 523, 535-36 (3d Cir. 2003). 

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Defendants move to dismiss the amended complaint pursuant to Federal 

Rule of Civil Procedure 12(b)(6).19 After Defendants filed their brief in support, 

Butler moved for an extension of time to file his brief in opposition.20 The Court 

granted that motion, giving Butler until November 14, 2023, to file his opposition 

brief.21 Instead of filing an opposition brief, Butler moved to stay the case.22 The 

Court denied that motion.23

To date, Butler has failed to file a brief in opposition, so Defendants’ motion 

to dismiss is therefore deemed unopposed.24 Nevertheless, the Court will review 

the sufficiency of Butler’s amended complaint to determine if any of his claims 

survive Rule 12(b)(6) scrutiny. 

II. STANDARD OF REVIEW 

In deciding a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), courts should not inquire “whether a plaintiff will ultimately prevail but 

whether the claimant is entitled to offer evidence to support the claims.”25 The 

court must accept as true the factual allegations in the complaint and draw all 

reasonable inferences from them in the light most favorable to the plaintiff.26 In 

19 See generally Doc. 24. 

20 See Doc. 28. 

21 See Doc. 29. 

22 Doc. 30. 

23 Doc. 31. 

24 See LOCAL RULE OF COURT 7.6. 

25 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 

1996). 

26 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). 

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addition to the facts alleged on the face of the complaint, the court may also 

consider “exhibits attached to the complaint, matters of public record, as well as 

undisputedly authentic documents” attached to a defendant’s motion to dismiss if 

the plaintiff’s claims are based upon these documents.27

When the sufficiency of a complaint is challenged, the court must conduct a 

three-step inquiry.28 At step one, the court must “tak[e] note of the elements [the] 

plaintiff must plead to state a claim.”29 Second, the court should distinguish wellpleaded factual allegations—which must be taken as true—from mere legal 

conclusions, which “are not entitled to the assumption of truth” and may be 

disregarded.30 Finally, the court must review the presumed-truthful allegations 

“and then determine whether they plausibly give rise to an entitlement to relief.”31 

Deciding plausibility is a “context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.”32

 Because Butler proceeds pro se, his pleadings are to be liberally construed 

and his amended complaint, “however inartfully pleaded, must be held to less 

27 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. 

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). 

28 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and 

quotation marks omitted) (footnote omitted). 

29 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)). 

30 Id. (quoting Iqbal, 556 U.S. at 679). 

31 Id. (quoting Iqbal, 556 U.S. at 679). 

32 Iqbal, 556 U.S. at 681. 

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stringent standards than formal pleadings drafted by lawyers[.]”33 This is 

particularly true when the pro se litigant, like Butler, is incarcerated.34

III. DISCUSSION 

 Defendants challenge the sufficiency of nearly every aspect of Butler’s 

lawsuit. After careful consideration, the Court finds that Butler’s amended 

complaint suffers from numerous pleading deficiencies, which the Court will 

discuss in turn. 

A. Personal Involvement 

 It is well established that, in Section 1983 actions, liability cannot be 

“predicated solely on the operation of respondeat superior.”35 Rather, a Section 

1983 plaintiff must aver facts that demonstrate “the defendants’ personal 

involvement in the alleged misconduct.”36 Personal involvement can include direct 

wrongful conduct by a defendant, but it can also be demonstrated through 

allegations of “personal direction” or of “actual knowledge and acquiescence”; 

however, such averments must be made with particularity.37 Furthermore, it is 

33 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). 

34 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted). 

35 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also Ashcroft 

v. Iqbal, 556. U.S. 662, 676 (2009) (affirming same principle in Bivens context). 

36 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citing Rode, 845 F.2d at 1207). 

37 Id. (quoting Rode, 845 F.2d at 1207). 

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equally settled that involvement in the post-incident grievance process alone does 

not give rise to Section 1983 liability.38 

 Butler fails to plead personal involvement for numerous Defendants. First, 

as to former-Secretary Wetzel, Butler’s allegations evince nothing more than 

respondeat superior liability. Butler contends that Wetzel is the “supervisor 

responsible for the overall management and operations of all state correctional 

facilities,” including SCI Huntingdon, and that because of his position he “is 

required to know of all health, safety, and environmental protocols, and any 

violations to said protocols.”39 Claiming that the Secretary of the DOC should be 

aware of every health or safety violation at every state correctional institution is 

both implausible and conclusory. Butler also implausibly suggests that “all 

grievances and appeal[s]” are “provided/relayed” to Wetzel as the supervisor,40

which of course would be practically impossible due to the sheer size of the state 

inmate population and the number of grievances filed by inmates. At bottom, these 

allegations lack any personal involvement in the purported constitutional 

misconduct and instead reflect only vicarious liability. 

38 See id. at 374 (affirming dismissal of claims against prison officials for lack of personal 

involvement when officials’ “only involvement” was “their review and denial of [plaintiff]’s 

grievance”); Lewis v. Wetzel, 153 F. Supp. 3d 678, 696-97 (M.D. Pa. 2015) (collecting cases); 

Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006) (nonprecedential); Alexander v. 

Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005) (nonprecedential) (explaining that prisoner’s 

claims against certain defendants were “properly dismissed” because the allegations against 

them “merely assert their involvement in the post-incident grievance process”). 

39 Doc. 23 ¶ 41. 

40 Id.

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 Butler also sues everyone involved with the grievance process. But it is well 

settled that mere involvement in the grievance process does not implicate Section 

1983 liability. Thus, Butler’s claims against George Ralston, Kerri Moore, and 

Dorina Varner—all of whom were involved only by denying Butler’s grievance 

and appeals—must be dismissed for lack of personal involvement. 

 Next, Butler sues Corrections Officer Jennifer Jenkins. However, the only 

personal involvement alleged is that Jenkins tended to the fire on the day of the 

incident.41 While this is “involvement” in the January 9, 2021 incident, it is not 

involvement in any alleged constitutional misconduct. Butler cursorily claims that 

Jenkins was “well aware” that his preferred fire-safety precautions (master locking 

system, operable ventilation system, available “fire equipment,” more staff, etc.) 

did not exist and should have been reported by Jenkins,42 but such conclusory 

allegations do not suffice to show how Jenkins was personally involved in the 

purported constitutional violation. Jenkins is simply not the level of official at SCI 

Huntingdon who could plausibly be responsible for fire-safety mechanisms or to 

set or enforce fire-safety policy. 

Accordingly, the claims against Wetzel, Ralston, Moore, Varner, and 

Jenkins must be dismissed for lack of personal involvement. 

 

41 See id. ¶¶ 15, 39. 

42 Id. ¶ 39. 

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B. Eighth Amendment Conditions of Confinement 

Butler’s failure to plausibly alleged personal involvement bleeds into his 

failure to state conditions-of-confinement claims against the majority of 

Defendants. That is because Butler fails to plausibly allege deliberate indifference 

by these prison officials. 

“[T]he Constitution does not mandate comfortable prisons, and prisons . . . 

which house persons convicted of serious crimes[] cannot be free of discomfort.”43 

Nevertheless, the state cannot subject an inmate to cruel and unusual punishment 

or “inhumane treatment,” such as deprivation of “identifiable human need[s]” like 

“food, clothing, shelter, medical care, and reasonable safety[.]”44 To prevail on an 

Eighth Amendment conditions-of-confinement claim, a plaintiff must show both 

objective and subjective elements.45 

Objectively, the prisoner must demonstrate that “the prison official deprived 

the prisoner of the minimal civilized measure of life’s necessities,” often referred 

to as a “sufficiently serious” deprivation.46 Subjectively, the prisoner must show 

that “the prison official acted with deliberate indifference” to the prisoner’s “health 

or safety.”47 Deliberate indifference means that the defendant “acted or failed to 

43 Thomas v. Tice, 948 F.3d 133, 139 (3d Cir. 2020) (second alteration in original) (quoting 

Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). 

44 See Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted). 

45 See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 226 (3d Cir. 2015) 

46 Id. (citing Farmer v. Brennan, 511 U.S. 825, 843 (1994); Wilson, 501 U.S. at 297). 

47 Id. (citing Farmer, 511 U.S. at 834). 

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act despite having knowledge that her actions or inaction, as the case may be, 

would subject the inmate to a substantial risk of serious harm.”48 Deliberate 

indifference is a high bar and requires a plaintiff to show that the defendant 

“recklessly disregard[ed] a substantial risk of serious harm.”49

Butler’s Eighth Amendment claims fail against multiple Defendants because 

he has not plausibly alleged knowledge of the risk of harm and deliberate 

indifference thereto. There are only two Defendants for which Butler has plausibly 

alleged knowledge and deliberate indifference: Superintendent Kauffman and 

Safety Manager Scalia. Butler avers that another inmate wrote request slips to 

both Kauffman and Scalia complaining of fire-safety issues and that they 

responded to those requests.50 Kauffman, as Superintendent, would have sufficient 

control over fire-safety response, equipment, and policy. Butler also plausibly 

alleges that, as part of Scalia’s job as a Safety Manager, Scalia is required to be 

informed of health and safety protocols (including fire safety and prevention) and 

take proactive measures to keep inmates safe.51 Presumably, this position would 

involve reviewing fire-prevention building code compliance, evacuation plans, and 

other fire-safety issues raised by Butler’s lawsuit.52 

48 Id. at 227 (citing Farmer, 511 U.S. at 842). 

49 Palakovic v. Wetzel, 854 F.3d 209, 227 (3d Cir. 2017) (citation omitted). 

50 Doc. 23 ¶ 25; Doc. 23-3; Doc. 23-4. 

51 Doc. 23 ¶ 38. 

52 See Doc. 23-13 at 2. 

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As to the other DOC officials (i.e., Jenkins, Kendrick, and Wetzel), Butler 

simply asserts that they were aware “or should have been” aware of the fire-safety 

conditions about which he is complaining. But without plausibly alleging facts 

that would establish actual knowledge of the purported dangerous conditions and 

deliberate indifference to them, Butler is asserting nothing more than simple 

negligence.53

In sum, Butler has plausibly alleged a conditions-of-confinement claim 

against Kauffman and Scalia. Specifically, his allegations that (a) SCI Huntingdon 

lacked—among other things—appropriate exhaust fans, adequate ventilation, 

“adequately operable fire exits,” and proper fire-fighting equipment in the housing 

units and that (b) several officials who were in charge of the facility and its safety 

conditions (i.e., the Superintendent and the Safety Manager) were made aware of 

these issues but still have not taken any steps to address them, plausibly states an 

Eighth Amendment claim. To the extent that Butler asserts conditions-ofconfinement claims against the other Defendants, those claims cannot survive Rule 

12(b)(6) scrutiny for the reasons provided above. 

C. Fourteenth Amendment Equal Protection 

The Equal Protection Clause of the Fourteenth Amendment provides that 

“[n]o State shall . . . deny to any person within its jurisdiction the equal protection 

53 Butler’s allegations about conditions at SCI Huntingdon in the early 1990s, (see Doc. 23 ¶ 44), 

have no bearing or relevance to the instant case. 

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of the laws.”54 To state a Fourteenth Amendment equal protection claim, a 

prisoner must allege “that he was treated differently than other similarly situated 

inmates, and that this different treatment was the result of intentional 

discrimination based on his membership in a protected class[.]”55 An equal 

protection claim can also be asserted under a “class of one” theory, whereby a 

plaintiff alleges that a state actor intentionally treated him differently than others 

who are similarly situated “and there is no rational basis for the difference in 

treatment.”56

Butler’s equal protection claim falters under either theory of liability. He 

has failed to plead that he is a member of a protected class or that he was 

discriminated against based on his membership in that class.57 He has additionally 

failed to plead that he was treated differently than other similarly situated inmates. 

In fact, Butler explicitly alleges that all the inmates on his housing block (and 

perhaps throughout SCI Huntingdon) were subjected to the same conditions of 

confinement about which he complains. Thus, Butler’s equal protection claim will 

be dismissed pursuant to Rule 12(b)(6). 

 

54 U.S. CONST. amend. XIV, § 1. 

55 Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016). 

56 Phillips, 515 F.3d at 243 (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). 

57 See Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001) (holding that neither prisoners 

nor indigents are suspect classes for equal protection purposes). 

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D. Section 1983 Civil Conspiracy 

To state a claim for Section 1983 conspiracy, a plaintiff must plausibly 

allege: “‘(1) two or more persons conspire to deprive any person of [constitutional 

rights]; (2) one or more of the conspirators performs . . . any overt act in 

furtherance of the conspiracy; and (3) that overt act injures the plaintiff in his 

person or property or deprives the plaintiff of any right or privilege of a citizen of 

the United States,’ with the added gloss under § 1983 that ‘the conspirators act 

under the color of state law.’”58 Notably, to state a conspiracy claim, a plaintiff 

must do more than recite talismanic phrases like “conspire” and “act in concert.”59

Butler’s amended complaint fails to state a plausible conspiracy claim. He 

alleges that “Ralston, Kauffman, Varner and Moore acted in concert with one 

58 Jutrowski v. Township of Riverdale, 904 F.3d 280, 294 n.15 (3d Cir. 2018) (alterations in 

original) (quoting Barnes Found. v. Township of Lower Merion, 242 F.3d 151, 162 (3d Cir. 

2001)). 

59 See id. at 295 (explaining that, to state a civil conspiracy claim, a plaintiff must demonstrate 

that defendants “somehow reached an understanding to deny [the plaintiff] his rights” 

(alteration in original)); Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (citing 

Kalmanovitz v. G. Heileman Brewing Co., 595 F. Supp. 1385, 1400 (D. Del. 1984), aff’d 769 

F.2d 152 (3d Cir. 1985) (“It is a longstanding rule in the Third Circuit that a mere general 

allegation . . . [or] averment of conspiracy or collusion without alleging the facts which 

constituted such conspiracy or collusion is a conclusion of law and is insufficient [to state a 

claim].” (citing Black & Yates, Inc. v. Mahogany Ass’n, 129 F.2d 227, 231-32 (3d Cir. 1941)))); 

Adams v. Corr. Emergency Response Team, 857 F. App’x 57, 61 (3d Cir. 2021) 

(nonprecedential) (explaining that, to state a Section 1985 conspiracy claim, a plaintiff must 

sufficiently allege “facts and circumstances” that “support the elements of the conspiracy” and 

show agreement between defendants to deprive a plaintiff of a constitutional right); Stankowski 

v. Farley, 251 F. App’x 743, 748 (3d Cir. 2007) (nonprecedential) (finding that plaintiff’s 

“conclusory allegation” that defendants “conspired” against him fails to state a claim for civil 

conspiracy). 

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another” in their denials of his grievance and appeals,60 and that they “conspired 

with one another to deprive” him of his constitutional rights.61 He additionally 

alleges that “[a]ll named Defendants . . . acted in concert with one another” to fail 

to correct the conditions about which he complains.62 These purely conclusory 

allegations fail to set forth facts that establish the elements of a civil conspiracy. 

They are mere legal conclusions employing talismanic phrases that are not entitled 

to the presumption of truth and may be disregarded. 

E. State-Law Negligence Claims 

Butler also asserts state-law negligence claims against all Defendants. 

However, because it is clear from the allegations of the amended complaint that 

Defendants’ actions were performed within the scope of their employment, these 

negligence claims are barred by state statutory sovereign immunity. 

Commonwealth parties acting within the scope of their employment 

generally are immune from suit except when immunity is explicitly waived.63 

Pennsylvania’s General Assembly has carved out certain limited exceptions from 

its grant of sovereign immunity to Commonwealth actors.64 Section 8522(b) of 

60 Doc. 23 ¶ 42. 

61 Id. ¶ 64. 

62 Id. ¶ 45. 

63 See 1 PA. CONS. STAT. § 2310; 42 PA. CONS. STAT. §§ 8521, 8522(a). 

64 See generally 42 PA. CONS. STAT. §§ 8521, 8522. 

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Title 42 of the Pennsylvania Consolidated Statutes provides ten narrow categories65

where the state has waived its sovereign immunity for claims involving negligent 

conduct by Commonwealth parties.66 This state statutory immunity applies to both 

negligent and intentional torts committed by Commonwealth actors.67

Defendants’ actions or omissions plainly occurred within the scope of their 

employment (e.g., responding to a fire, establishing or enforcing prison policy, 

performing job duties, handling grievances, etc.), and none of the ten exceptions in 

Section 8522(b) apply to Butler’s claims. Butler, moreover, has not identified or 

argued that any of the exceptions apply. In fact, he has completely failed to 

respond to Defendants’ motion to dismiss. Therefore, because state statutory 

immunity shields Defendants from any state tort claims, Butler’s negligence claims 

against all Defendants must be dismissed. 

F. Claims Against Department of Labor and Industry 

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “the 

violation of a right secured by the Constitution and laws of the United States, and 

must show that the alleged deprivation was committed by a person acting under 

65 The ten exceptions set forth in 42 PA. CONST. STAT. § 8522(b) concern: (1) vehicle liability; 

(2) medical-professional liability; (3) care, custody or control of personal property; (4) 

Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous 

conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard 

activities; (9) toxoids and vaccines; and (10) sexual abuse. 

66 See id. § 8522(a), (b). 

67 See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct. 1992). 

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color of state law.”68 Only “persons” are subject to suit under Section 1983; state 

agencies such as the Pennsylvania Department of Labor and Industry do not 

qualify.69 The Court further observes that suing a state agency under Section 1983 

is akin to suing the state itself, and such damages claims are barred by Eleventh 

Amendment sovereign immunity.70 Accordingly, any Section 1983 claims against 

the Department of Labor and Industry will be dismissed pursuant to Rule 12(b)(6) 

for failure to state a claim for relief. 

IV. LEAVE TO AMEND

Generally, “in forma pauperis plaintiffs who file complaints subject to 

dismissal under Rule 12(b)(6) should receive leave to amend unless amendment 

would be inequitable or futile.”71 Limited leave to amend will be granted. Butler’s 

Section 1983 claims against Ralston, Varner, and Moore will be dismissed with 

prejudice, as their only involvement in the underlying events was the review and 

68 Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (emphasis added) (citing Imbler v. Pachtman, 424 

U.S. 409, 417 (1976) (citing 42 U.S.C. § 1983)). 

69 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-65, 71 (1989) (explaining that a state 

is not a “person” for Section 1983 purposes); Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 

1973) (explaining that a state agency may not be sued under Section 1983 because it is not a 

“person”); Foye v. Wexford Health Sources Inc., 675 F. App’x 210, 215 (3d Cir. 2017) 

(nonprecedential) (dismissing Section 1983 claims against prison and Department of 

Corrections because they “are not persons subject to suit under” Section 1983). 

70 See Harper v. Jeffries, 808 F.2d 281, 284 n.4 (3d Cir. 1986) (noting that any Section 1983 

action by prisoner against Pennsylvania Parole Board is barred by eleventh amendment); 

Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (“The eleventh amendment’s bar 

[against civil rights suits in federal court targeting a state] extends to suits against departments 

or agencies of the state having no existence apart from the state.”); Foye, 675 F. App’x at 215. 

71 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). 

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denial of Butler’s grievance and appeals. Butler’s claims against the Department 

of Labor and Industry will also be dismissed with prejudice, as leave to amend 

would be futile. Finally, Butler’s negligence claims will be dismissed as to all 

Defendants because those claims are barred by state statutory immunity. 

If Butler chooses to file a second amended complaint in conformity with this 

Memorandum, it should be a stand-alone document, complete in itself and without 

reference to any previous pleadings. The second amended complaint should set 

forth Butler’s claims in short, concise, and plain statements, and in sequentially 

numbered paragraphs, and it must address the deficiencies identified herein. Butler 

should include the claims that have survived this Court’s sufficiency review, but he 

may not include claims or defendants that have been dismissed with prejudice. 

Nor may Butler include the negligence claims that are barred by state statutory 

immunity. He must also sign the second amended complaint and indicate the 

nature of the relief sought. 

If Butler chooses not to file a second amended complaint, dismissal without 

prejudice of the conditions-of-confinement, equal protection, and civil conspiracy 

claims will automatically convert to dismissal with prejudice. This case will then 

proceed on Butler’s Eighth Amendment conditions-of-confinement claims against 

defendants Kauffman and Scalia only. 

 

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V. CONCLUSION 

 Based on the foregoing, the Court will grant in part and deny in part 

Defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). 

Limited leave to amend will be provided. An appropriate Order follows. 

 

BY THE COURT: 

s/ Matthew W. Brann 

 Matthew W. Brann 

 Chief United States District Judge 

Case 4:23-cv-00859-MWB-MP Document 36 Filed 03/01/24 Page 19 of 19