IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DERRICK L. KING, )

Plaintiff, ) Civil Action No. 09-175 Erie

)

v. )

) District Judge Sean J. McLaughlin

JEFFREY BEARD, et al., ) Magistrate Judge Susan Paradise Baxter

Defendants. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Defendants' motion to dismiss [ECF No. 31], as

supplemented [ECF No. 42], be granted in part and denied in part. It is further recommended

that the Clerk of Courts be directed to terminate Defendant Jeffrey A. Beard from this action.

A Case Management Order will be issued separately. 

II. REPORT

A. Relevant History

Plaintiff Derrick L. King is an inmate at the State Correctional Institution Forest ("SCIForest"), located in Marienville, Pennsylvania. In July 2009, he submitted for filing a civil rights

complaint pursuant to 42 U.S.C. § 1983. [ECF No. 1, 7.] The Court ordered him to file an

amended complaint explaining the factual basis upon which he was bringing his claims because

the original complaint did not explain what each defendant did. Thereafter, Plaintiff filed an

amended complaint in which he complains about two incidents, one on January 18, 2009, and the

other on January 26, 2009 [ECF No. 8], and which he supplemented on April 5, 2010 [ECF

No. 41]. As Defendants to this action, Plaintiff has named: Jeffery A. Beard, Secretary of the

Department of Corrections; Michael C. Barone, Superintendent of SCI-Forest; Captain Repko;

Officer Coleman; Officer Henretty; Officer Benson; R.N. Bell; Lt. Samson; Lt. Taylor; Officer

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Snyder; Sergeant Murin; Officer Gliar; Officer Wentez; Sergeant McKnight; Lt. Smith; Nurse

Williams; and Nurse Douglas. 

Plaintiff claims that on January 18, 2009, he was housed in a psychiatric observation cell

and pursuant to Department of Corrections' policy was allowed only a bagged meal. Defendant

Coleman served him a bagged meal, but it was wet and so Plaintiff asked for another one. 

Defendant Coleman refused to replace the meal, took back the meal he had served to Plaintiff,

and verbally harassed Plaintiff in the process. [ECF No. 8, ¶¶ 1-9. See also ECF No. 41 ¶¶ 1-3.]

Later that same day, during the second shift, Defendant Henretty served Plaintiff another wet

bagged meal. When Plaintiff asked why he was given a wet meal, Henretty replied that Plaintiff

knew why "f*** boy." [Id., ¶ 11. ECF No. 41, ¶ 7.] Defendants Henretty, Benson, Bell, Samson,

and Williams then laughed at Plaintiff and verbally taunted him over the intercom while making

racial slurs. [Id., ¶¶ 10-13; ECF No. 41, ¶ 9.] 

Next, Defendants Taylor and Repko approached Plaintiff's cell with seven guards dressed

in riot gear, cuffed Plaintiff and put him in the restraint chair. [Id., ¶¶ 14-16. ECF No. 41 at 4.]

Defendant Taylor told Plaintiff that he was going to be placed into the restraint chair because he

had broken the sprinkler head and threw urine and feces on officers. [ECF No. 41 at 4.] Plaintiff

denied Defendant Taylor's accusations, to no avail. [Id.] He alleges that Defendant Williams

directed Defendants Gliar and Murin to pull the restraint straps as tight as possible, and as a

result he had difficultly breathing and seeing and he also urinated and defecated on himself. 

Plaintiff claims that the Defendants acted with the sole purpose of inflicting pain upon him and

that they ignored his pleas for relief. [Id., ¶¶ 17-18; ECF No. 41 at 4.] He "cried out in pain for

help until [he] completely passed out inside [the] cell[.]" [ECF No. 41 at 4.] Plaintiff alleges that

after he spent four hours in the restraint chair, Defendant Murin came into his cell and held a

razor to his neck and told him not to move. [ECF No. 8, ¶¶ 19-23.] Then, after two more hours,

Plaintiff was removed from the chair and left in a cell that was flooded and contained no

mattress. [Id., ¶¶ 23-24.] 

Plaintiff further alleges that on January 26, 2009, Defendant Murin approached his cell

and stated: "we'll see how tough you are in the chair a**hole." [Id., ¶ 27.] Later that day,

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Defendant Taylor arrived with officers dressed in riot gear and they placed Plaintiff into the

restraint chair for no reason whatsoever. Plaintiff claims that he was not permitted to use the

restroom prior to being placed in the chair; that the straps once again were tightened so as to

inflict pain; that his pleas for help were ignored; that he fainted as a result of the over-restraint;

that the nurse on the scene, Defendant Williams, did not check his vital signs; that he was not

permitted exercise until four hours later; and, that he was denied water while in the chair. [Id.,

¶¶ 28-41.] 

Plaintiff alleges that Defendant Coleman retaliated against him for making complaints

about his treatment by issuing Misconduct No. A639087. [ECF No. 41, ¶¶ 4-6.] He further

alleges that Defendant Henretty retaliated against him by issuing two more misconducts as

"punishment for trying to receive my rights to my daily nourishments without any mutilating and

destructions of my food[.]" [ECF No. 41, ¶¶ 7-10, 19.] 

Defendants waived service of the amended complaint and in response filed the pending

motion to dismiss. [ECF No. 31]. Plaintiff was ordered to respond to Defendants' motion or file

an amended complaint. [ECF No. 33.] On April 5, 2010, Plaintiff filed what he has entitled an

"Amended Complaint," which is lodged on the Court's docket as ECF No. 41. In that filing, he

supplements the claims he made regarding being placed in the restraint chair on January 18,

2009, and being deprived of adequate food. He also appears to be raising a new claim that he

was unlawfully retaliated against for complaining about his conditions of confinement. Plaintiff

does not reference the incident that occurred on January 26, 2009. In response to the document

filed at ECF No. 41, Defendants filed a supplemental motion to dismiss. [ECF No. 42]. 

Although the Federal Rules of Civil Procedure contemplate that an amended complaint

supercedes an earlier-filed complaint, in this case it appears that Plaintiff intended the document

filed at ECF No. 41 to supplement the claims he makes in the amended complaint filed at ECF

No. 8, and also to add an additional retaliation claim. Under Haines v. Kerner, 404 U.S. 519

(1972) (discussed infra) and its progeny, the Court shall read the documents filed at ECF No. 8

and ECF No. 41 liberally because Plaintiff is proceeding pro se, and shall read those documents

together as setting forth Plaintiff's claims. Accordingly, the Court shall direct the Clerk to file

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the document at ECF No. 41 as a supplement to the amended complaint at ECF No. 8. 

Construing the allegations Plaintiff makes in those two documents together, it appears that he is

making the following claims: 

Claim 1 Defendants subjected him to excessive force and were deliberately

indifferent to his well-being by placing him in the restraint chair on

January 18 and 26, 2009, and by exposing him to harsh and unwarranted

conditions while he was restrained in the chair;

Claim 2 Defendants subjected him to taunting, racial slurs, and verbal harassment; 

Claim 3 Defendants were deliberately indifferent to his health care (i.e.

"nourishment") needs when they denied him two adequate meals on

January 18, 2009, and denied him water and one meal on January 26,

2009; and, 

Claim 4 When he complained about his conditions of confinement, Defendants

Coleman and Henretty retaliated against him by filing false misconduct

reports.

B. Standards Of Review

1. Pro se pleadings

Pro se pleadings, "however inartfully pleaded,"must be held to "less stringent standards

than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). If

the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,

it should do so despite failure to cite proper legal authority, confusion of legal theories, poor

syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. 

Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414

F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should

be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 647 (7 Cir. th

1992); Freeman v. Dep't of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading

rules, during the initial stages of litigation, a district court should construe all allegations in a

complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g.,

Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard);

Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). Because Plaintiff is

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a pro se litigant, this Court may consider facts and make inferences where it is appropriate. 

2. Motion to dismiss pursuant to 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A

complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state

a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41

(1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009)

(specifically applying Twombly analysis beyond the context of the Sherman Act). 

The Court need not accept inferences drawn by Plaintiff if they are unsupported by the

facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906

(3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. 

Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also

McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) quoting Iqbal, ___

U.S. at ___, 129 S.Ct. at 1949 ("The tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions."). “Factual allegations must be

enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. 

Although the United States Supreme Court does "not require heightened fact pleading of

specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its

face." Id. at 570. 

In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing'

rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, No. 07-cv-528,

2008 WL 482469 at *1 (D.Del. Feb. 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008). "This ‘does not impose a probability requirement at the pleading stage,’

but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will

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reveal evidence of’ the necessary element." Phillips, 515 F.3d at 234, quoting Twombly, 550

U.S. at 556 (internal quotations omitted). 

Recently, the United States Court of Appeals for the Third Circuit expounded on the

Twombly/Iqbal/Phillips line of cases:

To prevent dismissal, all civil complaints must now set out “sufficient factual

matter” to show that the claim is facially plausible. This then “allows the court to

draw the reasonable inference that the defendant is liable for the alleged

misconduct.” 

* * *

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. First, the factual and legal

elements of a claim should be separated. The district court must accept all of

the complaint's well-pleaded facts as true, but may disregard any legal

conclusions. Second, a district court must then determine whether the facts

alleged in the complaint are sufficient to show that the plaintiff has a

“plausible claim for relief.” In other words, a complaint must do more than

allege the plaintiff's entitlement to relief. A complaint has to “show” such an

entitlement with its facts. As the Supreme Court instructed in Iqbal, “[w]here the

well-pleaded facts do not permit the court to infer more than the mere possibility

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

pleader is entitled to relief.” This “plausibility” requirement will be a contextspecific task that requires the reviewing court to draw on its judicial experience

and common sense. 

Fowler v. UPMC Shadyside, 578 F.3d. 203, 210-11 (3d Cir. 2009) (internal quotations and

citations omitted) (emphasis added).

C. Discussion

1. Defendant Beard

Defendants move to dismiss Defendant Beard from this action because Plaintiff has failed

to allege Beard's personal involvement in this case. Defendant Beard is the Secretary of the

Pennsylvania Department of Corrections.

The United States Court of Appeals for the Third Circuit has held that a civil rights

complaint is adequate where it states the conduct, time, place, and persons responsible. Evancho

v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citations omitted). When a supervisory official is

sued in a civil rights action, liability can only be imposed if that official played an "affirmative

part" in the complained-of misconduct. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). 

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Although a supervisor cannot encourage constitutional violations, he or she has "no affirmative

constitutional duty to train, supervise or discipline so as to prevent such conduct." Id. The

supervisor must be personally involved in the alleged misconduct. Evancho, 423 F.3d at 353

("Personal involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence."); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

("Allegations of participation or actual knowledge and acquiescence, however, must be made

with appropriate particularity."). Importantly, § 1983 liability cannot be predicated solely on

respondeat superior. Evancho, 423 F.3d at 353, quoting Rode, 845 F.2d at 1207. 

Plaintiff brings suit against Defendant Beard solely on the basis that he "is legally

responsible for the overall operation of the Department and each institution under its jurisdiction,

including SCI-Forest." [ECF No. 8, ¶ 41.] Even accepting Plaintiff's allegations to be true, they

are insufficient as a matter of law to render Defendant Beard liable. Plaintiff does not allege

Beard's personal involvement in the challenged conduct and his allegations are insufficient to

state a cognizable claim under § 1983 against him. 

Accordingly, the Defendants' motion to dismiss should be granted as to Defendant Beard

and he should be dismissed from this case.

2. Denial Of Nourishment

Plaintiff claims that he was subjected to cruel and unusual punishment because

Defendants were deliberately indifferent to his health care (i.e. "nourishment") needs, in violation

of the Eighth Amendment, when he was denied two adequate meals on January 18, 2009, and

one meal on January 26, 2009. He also alleges he was denied water while he was in the restraint

chair on January 26, 2009. Defendants move to have this claim dismissed because the facts as

alleged do not state a cognizable claim under the Eighth Amendment. 

"The Cruel and Unusual Punishments Clause of the Eighth Amendment proscribes

'punishments which are incompatible with the evolving standards of decency that mark the

progress of a maturing society.'" Tillman v. Lebanon County Corr. Fac., 221 F.3d 410, 417 (3d

Cir. 2000) (footnote omitted) quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976). In order to

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establish an Eighth Amendment claim, a plaintiff must first prove "a sufficiently serious

objective deprivation." Id. at 418. This objective component is narrowly defined. "[C]onditions

that cannot be said to be cruel and unusual under contemporary standards are not

unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part

of the penalty that criminal offenders pay for their offenses against society." Rhodes v.

Chapman, 452 U.S. 337, 347 (1981). Only "extreme deprivations" are sufficient to make out an

Eighth Amendment claim. Hudson v. McMillian, 503 U.S. 1, 9 (1992). A prisoner must show

that the condition, either alone or in combination with other conditions, deprived him of "the

minimal civilized measure of life's necessities," or at least a "single, identifiable human need."

Wilson v. Seiter, 501 U.S. 294 (1991) citing Rhodes, 452 U.S. at 347. These needs include

"food, clothing, shelter, sanitation, medical care and personal safety." Griffin v. Vaughn, 112

F.3d 703, 709 (3d Cir. 1997). Whether the required showing has been made depends on a

number of factors including the extent of any injury actually incurred. Lane v. Culp, No. 05-576,

2007 WL 954101, at *5 (W.D.Pa. Mar. 28, 2007) citing Cowans v. Wyrick, 862 F.2d 697, 700

(8th Cir. 1988). 

In addition to meeting the objective standard of deprivation, a Plaintiff seeking to

establish an Eighth Amendment claim must demonstrate that "a prison official subjectively acted

with a sufficiently culpable state of mind, i.e., deliberate indifference." Tillman, 221 F.3d at 418. 

This subjective component is also narrowly construed. A defendant's conduct violates the Eighth

Amendment "only if he knows that the inmate[ ] face[s] a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511

U.S. 825, 847 (1994). 

"The deprivation of food constitutes cruel and unusual punishment only if it denies a

prisoner the 'minimal civilized measure of life's necessities.'" Talib v. Gilley, 138 F.3d 211, 214

n.3 (5th Cir. 1998) quoting Wilson, which quoted Rhodes. "Whether the deprivation of food

falls below this threshold depends on the amount and duration of the deprivation." Id. 

Plaintiff's allegations, even if true, do not establish an Eighth Amendment violation. He

was not denied food on January 18, 2009. Rather, he chose not to eat the food offered because it

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was wet. He claims that he was denied another meal eight days later, on January 26, 2009, and

that on that same day he was denied water while he was in the restraint chair. All of his

allegations taken together are not sufficient to constitute cruel and unusual punishment. Plaintiff

has not alleged a continuous or a substantial denial of food or water, nor does he contend that he

suffered any ill effects from missing any meal or being denied water while in the restraint chair. 

Ford v. Brd. of Mgrs of New Jersey State Prison, 407 F.2d 937, 939-40 (3d Cir. 1969) (no Eighth

Amendment claim where prisoner fed four slices of bread and one pint of water three times a day

with a full meal every three days); Veteto v. Miller, 829 F. Supp. 1486 (M.D. Pa. 1992) (noting

the Constitution does not guarantee specific amounts of food and dismissing plaintiff's claim

because the complaint did not contain allegations that the inmate "went hungry" and therefore he

could show neither deliberate indifference by prison officials nor could he show that he suffered

a denial of a basic, identifiable human necessity); Briggs v. Heidlebaugh, No. 96-3884, 1997 WL

318081, at *3 (E. D. Pa. May 22, 1997) (feeding inmate nothing but bread and cheese for

seventy-two hours did not support an Eighth Amendment violation).

Accordingly, Defendants' motion to dismiss Plaintiff's claim that they were deliberately

indifferent to his health care (i.e. "nourishment") needs (Claim 3), should be granted. 

3. Placement In the Restraint Chair

Defendants move to dismiss Plaintiff's claim that he was subjected to excessive force by

placing him in the restraint chair on January 18 and on 26, 2009, and by exposing him to harsh

and unwarranted conditions while he was restrained in the chair. They argue that "[i]t is only

when prison personnel place an inmate into the restraint chair for no valid penological purpose

that the 8 Amendment is implicated." [ECF No. 32 at 7, citing Fuentes v. Wagner, 206 F.3d th

335, 345-46 (3d Cir. 2000).] Defendants then rely upon DVD recordings of the January 18 and

26, 2009, incidents, as well as additional documentation that they have attached to their brief,

which they argue establishes that the complained-of actions did not violate Plaintiff's Eighth

Amendment rights. [ECF No. 32 at 7-12.] 

The Court may not consider the DVD recordings and documents outside the pleadings in

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ruling upon a motion to dismiss, Fed.R.Civ.Pro. 12(d), so the Defendants request that their

motion be converted into one for summary judgment. Rule 12(d) requires that before a court

may convert a motion to dismiss into one for summary judgment, the plaintiff must be provided

notice and be given the opportunity to present all the material that is pertinent to the motion. 

See, e.g., Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989). When the Court ordered Plaintiff to

respond to the pending motion, it did not notify him that it would convert the motion to dismiss

into a motion for summary judgment [see ECF No. 33]. The Court does not deem it proper to

convert the motion now since Plaintiff has not had the opportunity to present evidence in

opposition to summary judgment. Carver v. Pryor, 115 F.App'x 532, 536-37 (3d Cir. 2004) ("[I]t

is reversible error for a District Court to convert a motion to dismiss to a motion for summary

judgment without notifying the parties and giving them an opportunity to present material to the

court."). Therefore, anything not properly considered under the standards governing motions to

dismiss will not be considered in disposing of this motion. Defendants may renew their request

for summary judgment relief in accordance with the forthcoming Case Management Order,

Federal Rule of Civil Procedure 56, and Local Rule 56. 

Accordingly, Defendants' motion to dismiss Plaintiff's claim that he was subjected to

cruel and unusual punishment when they placed him in the restraint chair on two occasions

(Claim 1) should be denied. 

4. Racial Harassment

Plaintiff alleges that Defendants Coleman and Henretty verbally harassed him when they

served him the wet bagged meals. He also alleges that after Henretty served him a wet meal and

he complained, Henretty and Defendants Benson, Bell, Samson, and Williams made "taunting

remarks on the intercom[,] and stated 'nigger, nigger no more food for you' and 'you'd better eat

up you still have six days of [food] loaf.'" ECF No. 41, ¶ 9. See also id. ¶¶ 11-13; ECF No. 8,

¶ 9. Defendants move to dismiss this claim because the allegations do not state a cognizable

§ 1983 claim. 

Assuming Plaintiff's allegations claims are true, it is well-settled that mere verbal

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harassment do not amount to a constitutional violation. See, e.g., Burkholder v. Newton, 116

F.App'x 358, 360 (3d Cir. 2004), citing Ramirez v. Holmes, 921 F.Supp. 204, 210 (S.D. N.Y.

1996); Patton v. Przybylski, 822 F.2d 697 (7th Cir. 1987) (holding that mere derogatory remarks

do not make out a constitutional violation); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987)

(explaining that verbal threats will not violate the Fourteenth Amendment unless accompanied by

physical force or a present ability to effectuate them); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir.

1987) (ruling that "it trivializes the eighth amendment to believe a threat constitutes a

constitutional wrong"). See also Hawkins v. Brooks, 694 F.Supp.2d 434, 440-41 (W.D. Pa.

2010). Moreover, there is no violation of a constitutional right even if Defendants are alleged to

have made a racially disparaging remark. Salley v. PA Dept. of Corr., 181 F.App'x 258, 266 (3d

Cir. 2006) ("the use of racial slurs without accompanying harassment or deprivation of a right is

not a violation of equal protection."), citing Williams v. Bramer, 180 F.3d 699, 706 (5th Cir.

1999). See also Morgan v. Ward, 699 F. Supp. 1025, 1055 (N.D. N.Y. 1988) (use of racial

epithets do not support a claim under the Eighth Amendment); Williams v. Pecchio, 543 F. Supp.

878 (W.D. N.Y. 1982) (verbal harassment, including the use of racial slur, does not support a

§1983 claim). 

Accordingly, Defendants' motion to dismiss Plaintiff's claim that Defendants subjected

him to taunting, racial slurs, and verbal harassment (Claim 2) should be granted. 

5. Retaliation Claim

Defendants argue that all Plaintiff offers is a "bare-bones" claim that he was issued a false

misconduct and that "[m]ere allegations of falsified misconduct reports, without more, are not

enough to state a due process claim" or an Eighth Amendment claim. [ECF No. 43 at 7-8.] 

Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (due process is satisfied where an inmate

is afforded an opportunity to be heard and to defend against the allegedly falsified evidence and

groundless misconduct reports); Booth v. Pence, 354 F.Supp.2d 553, 559 (E.D. Pa.) (issuance of

a false misconduct report does not constitute an Eighth Amendment violation), aff'd, 141 F.App'x

66 (3d Cir. 2005). 

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Contrary to Defendants' argument, Plaintiff is making more than a "bare-bones"

allegation that false misconduct reports were issued against him. He alleges that Defendants

Coleman and Henretty filed unwarranted misconduct reports in retaliation for his making

complaints about his mistreatment. [ECF No. 41, ¶¶ 4-10, 19.] Under the required liberal

reading of the amended complaint, Plaintiff's claim is that they took unjustified and adverse

action against him because he exercised his constitutional right to grieve his mistreatment. 

"Retaliation for the exercise of constitutionally protected rights is itself a violation of rights

secured by the Constitution actionable under section 1983." See White v. Napoleon, 897 F.2d

103, 111-12 (3d Cir. 1990). "Government actions, which standing alone, do not violate the

Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire

to punish an individual for exercise of a constitutional right." Mitchell v. Horn, 318 F.3d 523,

530 (3d Cir. 2003), quoting Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000). 

The Court thus construes what Defendants have characterized as a simple due process

and/or Eighth Amendment "false misconduct" claim to be, in reality, a retaliation claim. In order

to state a prima facie case of retaliation, a prisoner must demonstrate: 1) the conduct in which he

was engaged was constitutionally protected; 2) he suffered "adverse action" at the hands of prison

officials; and, 3) his constitutionally protected conduct was a substantial or motivating factor in

the decisions to discipline him. Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002),

quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). Defendants have not specifically 1

Following the satisfaction of a prima facie case of retaliation, the burden then shifts to the

1

defendants to demonstrate, by a preponderance of the evidence, that their actions would have been

the same, even if plaintiff were not engaging in the constitutionally protected activities. Carter, 292

F.3d at 158. "Once a prisoner has demonstrated that his exercise of a constitutional right was a

substantial or motivating factor in the challenged decision, the prison officials may still prevail by

proving that they would have made the same decision absent the protected conduct for reasons

reasonably related to a legitimate penological interest." Rauser, 241 F.3d at 334. In evaluating a

prison official's opinion, "[p]rison administrators should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520,

547 (1979).

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argued that Plaintiff has failed to allege facts sufficient to proceed with a retaliation claim. 

For all of these reasons, Defendants' motion to dismiss Plaintiff's "false misconduct"

claims should be denied and his retaliation claim (Claim 4) survives the motion to dismiss. 

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that Defendants' motion to

dismiss Plaintiff's complaint or, in the alternative, for summary judgment [ECF No. 31 and

No. 42] be:

– granted as to Defendant Jeffrey A. Beard and the Clerk of Courts should be directed to

terminate him from this action;

– granted as to Claim 2 and Claim 3 and those claims should be dismissed; 

– denied with respect to Claim 1 and Claim 4. 

In accordance with Fed.R.Civ.P. 72, the parties are allowed fourteen (14) days from the

date of serve to file written objection to this Report and Recommendation. Any party opposing

the objections shall have fourteen (14) days from the date of service of objections to respond

thereto. No extensions of time will be granted. Failure to file timely objections may constitute

waiver of appellate rights. See Nara v. Frank, 488 F.3d 187 (3d Cir. 2007). 

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: July 26, 2010

cc: The Honorable Sean J. McLaughlin

United States District Judge

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