IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HECTOR HUERTAS, )

Plaintiff, ) Civil Action No. 09-139 Erie

)

v. )

) District Judge Sean J. McLaughlin

RAYMOND J. SOBINA, 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 [Document # 17]

be granted as to Defendants Sobina and Varner. The Clerk of Courts should be directed to

terminate Defendants Sobina and Varner from this action. The Defendants' motion to dismiss

also should be granted with respect to Plaintiff's Fourteen Amendment procedural due process

claim. The motion should be denied as to Defendant Henry and as to his exhaustion and

Eleventh Amendment immunity arguments. 

It is further recommended that Plaintiff's motion for partial summary judgment

[Document # 23] be denied.

A Case Management Order will be issued separately. 

II. REPORT

A. Relevant Procedural History

In June 2009, Plaintiff Hector Huertas, a state prisoner who at the time giving rise to this

suit was incarcerated at the State Correctional Institution in Albion, Pennsylvania ("SCIAlbion"), commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983. First, he

alleges that on three separate occasions (January 29, 2008, February 7, 2008, and August 12,

2008) Defendant Dan Henry, the mailroom supervisor at SCI-Albion, opened, read, and returned

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to him letters that he had written to his bank. Document # 4, ¶¶ 9-20. This, Plaintiff claims,

constituted a violation of his First Amendment rights. Id., ¶ 66. Second, Plaintiff alleges that

Defendant Henry violated the Department of Corrections' policy when he read and returned his

outgoing mail without first receiving the necessary authorization and providing him with the

proper notice. Id., ¶¶ 21-25. This, Plaintiff claims, constituted a violation of the Fourteenth

Amendment's Due Process Clause. Id., ¶ 66. Third, Plaintiff alleges that in response to his

complaints Defendant Henry unlawfully retaliated against him for filing grievances by interfering

with and taking contents from his mail. Id., ¶¶ 34-48, 67. Fourth, Plaintiff claims that

Defendants Raymond J. Sobina, the Superintendent of SCI-Albion, and Dorian Varner, the Chief

Secretary of Inmate Grievances, violated his First Amendment rights by failing "to act, intervene,

[and] correct [Defendant Henry's] wrong and personally consent[ing] to the actions by acquience

[sic]." Id., ¶ 68; see also id., ¶¶ 44-55.

Defendants have filed a motion to dismiss. Document # 17. Plaintiff has filed a brief in

opposition. Document # 20. Plaintiff also has filed a motion for partial summary judgment

against Defendant Henry. Document # 23. 

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, 520-521 (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 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. 1992); th

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

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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 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, 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 (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."). A plaintiff's 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'

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rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, Docket No. 07-cv528, 2008 WL 482469 at *1 (D.Del. Feb. 22, 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 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, where 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 shown - that the pleader

is entitled to relief. This plausibility requirement will be a context-specific 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).

3. Motion for summary judgment pursuant to Rule 56

Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be

granted if the "pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is

made and supported, "an opposing party may not rely merely on allegations or denials in its own

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pleading; rather, its response must – by affidavits or as otherwise provided in this rule – set out

specific facts showing a genuine issue for trial. If the opposing party does not so respond,

summary judgment should, if appropriate, be entered against that party."

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving party's

claims. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Country Floors, Inc. v. Partnership

Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, "[R]ule 56 enables

a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at

least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch

v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting Lujan v. Nat'l Wildlife

Fed'n, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (the non-movant

must present affirmative evidence - more than a scintilla but less than a preponderance - which

supports each element of his claim to defeat a properly presented motion for summary judgment). 

The non-moving party must go beyond the pleadings and show specific facts by affidavit or by

information contained in the filed documents (i.e., depositions, answers to interrogatories and

admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at

322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare

assertions, conclusory allegation or suspicions." Firemen's Ins. Co. of Newark, N.J. v. DuFresne,

676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute about a

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material fact is "genuine," i.e., if the evidence is such that a reasonable jury could return a verdict

for the non-moving party. Anderson, 477 U.S. at 247-49. 

C. Defendants' Motion To Dismiss

1. Failure to sufficiently allege personal involvement

Each Defendant argues that he/she should be dismissed from this case because Plaintiff

has failed to allege his/her personal involvement and therefore has failed to state a claim upon

which relief can be granted. The Court agrees with respect to Defendants Sobina and Varner.

The Court of Appeals 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). 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 at

353, quoting Rode, 845 F.2d at 1207. 

a. Defendants Sobina and Varner

Plaintiff does not allege in the Complaint that Defendants Sobina and Varner personally

interfered with his mail or retaliated against him. Rather, each of them is sued only in a

supervisory capacity and/or as someone who reviewed or responded to Plaintiff's grievances and

other complaints. Specifically, Plaintiff alleges that Defendant Sobina violated his First

Amendment rights because once he became aware of Defendant Henry's alleged misconduct

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through the grievance process, "he did nothing to stop it, correct it, or prevent the violation from

happening." Document 4, ¶ 48. See also id., ¶¶ 45-49, 68. Plaintiff contends that Defendant

Sobina "personally became involved" when he denied his grievances "and stated there were no

constitutional violations in Henry's action[,]" thereby "consent[ing] to [Defendant Henry's]

acts[.]" Id.; see also id., ¶ 49 (Defendant Sobina's awareness "makes him involve[d] by his

consent to the acts and acquience [sic]."). Plaintiff makes similar allegations against Defendant

Varner. He contends that she "did nothing to stop Henry from" interfering with his mail after he

complained to her. Id., ¶ 52. See also id., ¶ 51-55, 68. According to Plaintiff, Defendant Varner

is liable to him because she "did nothing to correct the wrong, compensate Plaintiff for the

wrong, or remedy the wrong done by Henry[.]" Id., ¶ 55. 

Even accepting Plaintiff's allegations to be true, they are insufficient to render Defendants

Sobina and Varner liable, as knowledge after the fact and any actions or inactions taken after

Defendant Henry's alleged misconduct cannot be said to be the "cause" of a First Amendment

violation. A supervisory official's complained-of misconduct cannot be merely a failure to act. 

See Commonwealth v. Porter, 659 F.2d 306, 336 (3d Cir. 1981). "If a grievance official's only

involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise

to the grievance has already occurred, there is no personal involvement on the part of that

official." Murray v. Ennis, Docket No. 1:08-cv-264, 2010 WL 486301 at *13 (W.D. Pa. Feb. 5,

2010) (citing Rode, 845 F.2d at 1208). See also Caldwell v. Beard, Docket No. 2:07-cv-727,

2008 WL 2887810 at *4 (W.D.Pa. July 23, 2008) ("Such a premise for liability [i.e., for

performing a role in the grievance process] fails as a matter of law."), aff'd, 324 F.App'x 186 (3d

Cir. 2009); Jefferson v. Wolfe, Docket No. 1:04-cv-44, 2006 WL 1947721 at *17 (W.D.Pa. July

11, 2006) (prison officials' concurrence in the administrative remedies process does not state an

actionable claim under § 1983).

This is true notwithstanding Plaintiff's contention that Defendants Sobina and Varner had

"knowledge of" and "acquiesced to" Henry's alleged misconduct, which the Court takes to be an

apparent reference to Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005) and Rode v. Dellarciprete,

845 F.2d 1195 (3d Cir. 1988). The language from Evancho and Rode, requiring "knowledge and

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acquiescence," requires knowledge that occurs contemporaneously with the violation, and not

after the violation has been completed, so that failure to act can properly be called acquiescence

in the violation. Evancho, 423 F.3d at 353 ("Her amended complaint likewise does not contain

even a remote suggestion that Attorney General Fisher had contemporaneous, personal

knowledge of her transfer and acquiesced in it."); Smith v. Hewitt, Docket No. 01:07-cv-35,

2008 WL 686903 at *4 (W.D.Pa. Mar. 10, 2008) ("Here, Plaintiff alleges that these six

Defendants did nothing to remedy the situation after they became aware of it. This allegation,

even taken as true, does not rise to the level of 'actual knowledge and acquiescence' as that term

includes a component of contemporaneousness not alleged here. Plaintiff only alleges that these

Defendants did nothing after they became aware of the alleged assault and that allegation fails to

rise to the level of a constitutional violation.") (footnote omitted); Hughes v. Eitner, Docket No.

2:05-cv-463, 2007 WL 2597901 at *5 (W.D.Pa. Sept. 5, 2007) (same). The mere hypothesis that

an official is personally involved in complained of conduct "simply because of his [supervisory]

position" is an insufficient basis for finding § 1983 liability. Id. (allegations of personal liability

on the part of the state Attorney General were insufficient where plaintiff did not specifically

allege that the Attorney General had ordered the acts of his "underlings," or had acquiesced to

those acts with contemporaneous knowledge of them.); Bullock v. Horn, Docket No. 99-cv1402, 2000 WL 1839171 at *5 (M.D. Pa., Oct. 31, 2000) (noting that the plaintiff's allegations

regarding the defendants were limited to conclusory statements-such as bare claims that the

defendant "acquiesced in" and "enforced" the challenged actions-and to claims that Plaintiff sent

them various letters informing them of his grievances and requesting assistance. "Merely

asserting that Plaintiff sent letters to these two defendants will not suffice. Indeed, it would be

anomalous to suggest that a prisoner could name as a Defendant any governmental official

whatsoever, no matter how far removed in the chain of authority from the actual conduct in

question, simply by sending that official a letter."). 

In sum, Plaintiff's allegations against Defendants Sobina and Varner fail to establish their

personal involvement in the challenged conduct and are insufficient to state a cognizable claim

under § 1983. As a result, the motion to dismiss should be granted as to them and they should be

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dismissed from this case.

b. Defendant Henry

Defendant Henry also argues that he should be dismissed from this action because

Plaintiff has failed to allege facts sufficient to show his personal involvement. The Court does

not agree. Plaintiff's allegations that Defendant Henry personally interfered with his mail and

retaliated against him are sufficient to withstand a motion to dismiss. Document # 4, ¶¶ 6-43. 

Accordingly, Defendants' motion to dismiss Defendant Henry for lack of personal involvement

should be denied. 

2. Exhaustion

Defendants argue that the Complaint should be dismissed because Plaintiff failed to

exhaust his administrative remedies against each of them. See 42 U.S.C. § 1997e(a) ("[n]o

action shall be brought with respect to prison conditions under [§ 1983] or any other Federal

Law, by a prisoner ... until such administrative remedies as are available are exhausted."). In

support of this argument, they have attached to their motion a number of grievances that Plaintiff

filed concerning complaints he had about the handling of his outgoing and/or incoming mail.1

Document # 18, Exs. B-G. Rule 12(d) of the Federal Rules of Civil Procedure provides that "[i]f,

on a motion under Rule 12(b)(6), matters outside the pleadings are presented to and not excluded

by the court, the motion must be treated as one for summary judgment under Rule 56. All parties

must be given a reasonable opportunity to present all the material that is pertinent to that

motion." Defendants request that the Court accept the attachments they have submitted and

1

Defendants also rely upon a declaration by Defendant Varner, which they cite as Exhibit A. However, in the

attachments they have submitted to this Court, Exhibit A is a list of grievances filed by Plaintiff. No declaration by

Defendant Varner is attached to either their motion or their brief. See Document # 17, # 18.

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convert their motion into one for summary judgment. Document # 18 at 7 n.1. 2

Plaintiff objects to Defendants' request. He asserts that he will be able to prove that he

has properly and fully pursued all available administrative remedies if he is able to conduct

discovery on the issue and then respond to the Defendants' exhaustion argument. Document # 21

at 3-16. Accordingly, the Court will not convert Defendants' motion into one for summary

judgment. Their exhaustion argument is premature at this time and Defendant Henry (the only

remaining defendant) may raise it in a motion for summary judgment. Accordingly, Defendants'

motion to dismiss based on failure to exhaust should be denied. 

3. Sovereign immunity

Next, Defendants argue that Plaintiff cannot sue them in their official capacities for

monetary relief because they are immune from such suit under the Eleventh Amendment. See,

e.g., Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); United States v. Commonwealth of

Pennsylvania, 902 F.Supp. 565, 579 n.4 (W.D. Pa. 1995). Plaintiff responds to this argument by 3

stating that he is not suing them in their official capacities for monetary damages. Document

# 21 at 14-16. Rather, he is suing them in their official capacities for injunctive relief. See

Koslow v. Commonwealth, 302 F.3d 161, 178 (3d Cir. 2002) (prison officials sued in their

official capacity are not barred by the Eleventh Amendment for prospective relief); Tristani v.

Richman, 609 F.Supp.2d 423, 487 (W.D. Pa. 2009) (“Eleventh Amendment does not bar

2

Alternatively, Defendants argue that the Court may consider the attached documents in connection with their Rule

12(b)(6) motion because they are "indisputably authentic." Document #18 at 7 n.1. In the appropriate case a district

court may consider indisputably authentic documents related to a plaintiff's grievances without converting a motion to

dismiss into a motion for summary judgment. See, e.g., Montgomery v. Derose, Docket No. 08-cv-2021, 2009 WL

2594079 at *1 (M.D. Pa. Aug. 20, 2009), citing Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004), Brown v. Croak,

312 F.3d 109, 111 (3d Cir. 2002) ("In appropriate cases, failure to exhaust may be raised as the basis for a motion to

dismiss), and Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002) (motions to dismiss may be pursued on failure to

exhaust grounds in certain circumstances). The Court will not do so here. As explained in footnote 1, Defendants'

own attachments are incomplete.

3

Defendants also argue that they are immune from any state law claims based on the doctrine of sovereign immunity.

However, Plaintiff is not raising any state law claims.

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official-capacity suits for prospective relief against state officials under Ex Parte Young, 209

U.S. 123 (1908)”). Accordingly, Defendants' motion to dismiss based on the Eleventh

Amendment should be denied. 

4. Due process claim

Plaintiff alleges that Defendant Henry violated his Fourteenth Amendment procedural due

process rights because he did not follow the Department of Corrections' policy before reading his

outgoing mail. Document # 4 at ¶¶ 21-28, 66. Specifically, Plaintiff alleges that the Department

of Corrections' policy as set forth in DC-ADM 803 and 37 Pa.Code § 93.2, required that 4

Defendant Henry receive authorization from the facility manager/designee before reading

Plaintiff's outgoing mail, and also required that Plaintiff be notified if his outgoing

correspondence to the bank was not being mailed out. Plaintiff contends that because Defendant 5

Henry did not receive proper authorization or provide him with the proper notice, he deprived

4

The Pennsylvania Code contains "[t]hose portions of some Department [of Corrections] directives and policy

statements which concern the interaction of Department inmates and employees with the community at large are

published. The full text of the directives and other policy statements are maintained in all Department facilities." 37

Pa.Code § 93.1. Section 93.2 of Title 37 of the Pennsylvania Code is regarding inmate correspondence and it sets

forth the basic policy that is contained in DC-ADM 803.

5

The current version of DC-ADM 803 (effective April 28, 2008) provides at Section I.A.8:

Incoming and outgoing correspondence, other than privileged correspondence, may be opened and

inspected if there is reason to believe that the security of the facility may be impaired or this

directive is being violated. Incoming and outgoing correspondence, other than privileged

correspondence, may be read upon the written order of the Regional Deputy Secretary and

reproduced upon written order of the respective Regional Deputy Secretary in accordance with

Section 2.A.3.

Section 2.A.3 provides that "outgoing correspondence, other than privileged correspondence, may be read upon the

written order of the Facility Manager/designee." See also DC-ADM 803 Section 2.C ("The Facility Manager/designee

may authorize monitoring of outgoing non-privileged correspondence when there is reason to believe that it may

reveal or discuss illegal or unauthorized activity, in accordance with Subsection A.3 above."). The Department of

Corrections' policy also provides that an inmate shall be notified when outgoing mail is being withheld. DC-ADM

803 Section 3.A.2. 37 Pa.Code § 93.2 (d)-(f) sets forth these same policies.

Although two of the events in question occurred prior to the effective date of the current version of DCADM 803 (on January 29, 2008, and February 7, 2008), neither party has notified the Court that the prior version of

DC-ADM 803 was different in any material respect.

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him of a liberty interest without due process of law. 

6

Conducting a procedural due process analysis in this case involves a two step inquiry. 

The first question to be asked is whether Plaintiff has a protected liberty interest within the

contemplation of the Due Process Clause and, if so, the second question to be asked is whether

the process afforded to him comported with constitutional requirements. See, e.g., Shoats v.

Horn, 213 F.3d 140, 143 (3d Cir. 2000); Burns v. Pennsylvania Dep't of Corr., 544 F.3d 279,

283-84 (3d Cir. 2008) ("In procedural due process claims, the deprivation by state action of a

constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional;

what is unconstitutional is the deprivation of such interest without due process of law.")(citations

omitted). 

"A liberty interest may arise from the Constitution itself, by reason of guarantees implicit

in the word 'liberty,' see, e.g., Vitek v. Jones, 445 U.S. 480, 493-494 (1980) (liberty interest in

avoiding involuntary psychiatric treatment and transfer to mental institution), or it may arise from

an expectation or interest created by state laws or policies, see, e.g., Wolff v. McDonnell, 418

U.S. 539, 556-558 (1974) (liberty interest in avoiding withdrawal of state-created system of

good-time credits)." Wilkinson v. Austin, 545 U.S. 209, 221-21 (2005) (parallel citations

omitted). There is no liberty interest created directly by the Fourteenth Amendment that is

implicated here. Nor has Pennsylvania created a liberty interest in the manner suggested by

Plaintiff in the Complaint. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (a state government

"may under certain circumstances create liberty interests which are protected by the Due Process

Clause. But these interests will be generally limited to freedom from restraint which, while not

exceeding the sentence in such an unexpected manner as to give rise to protection by the Due

Process Clause of its own force, nonetheless imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.")(citations omitted); Wilkinson, 545

U.S. at 222 ("a liberty interest in avoiding particular conditions of confinement may arise from

6

Plaintiff does not allege a property deprivation. The mail he addressed to the bank was returned to him. See

Document # 4 at ¶¶ 6, 10, 16, 19.

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state policies or regulations, subject to the important limitations set forth in Sandin[.]"). The

mere existence of a Department of Correction policy regarding the handling of prison mail is not

enough to create a liberty interest. See DC-AMD 803 Policy Statement Section VI ("This policy

does not create rights in any person nor should it be interpreted or applied in such a manner as to

abridge the rights of any individual. This policy should be interpreted to have sufficient

flexibility to be consistent with law and to permit the accomplishment of the purpose(s) of the

policies of the Department of Corrections."); Pa.Code § 93.2(j) ("This section is not intended and

may not be interpreted to create or confer any rights in addition to those created by the United

States Constitution, the Pennsylvania Constitution or Federal or State statutes applicable to the

Department."). The Supreme Court has observed:

A liberty interest is of course a substantive [in contrast to a procedural] interest of

an individual; it cannot be the right to demand needless formality. Process is not

an end in itself. Its constitutional purpose is to protect a substantive interest to

which the individual has a legitimate claim of entitlement.... The State may

choose to require procedures for reasons other than protection against deprivation

of substantive rights, of course, but in making that choice the State does not create

an independent substantive right. 

Olim v. Wakinekona, 461 U.S. 238, 250-51 (1983) (internal quotations, citations and footnotes

omitted). See also Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) ("The central teaching of

Sandin is that a state statute or regulation conferring a right is not alone enough to trigger due

process. The state law must confer 'freedom from restraint which ... imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.'")(citations

omitted); and at 709 n.3 citing Hewitt v. Helms, 459 U.S. 460, 470 (1983)(for the proposition

that the "mere fact that Pennsylvania created a careful procedural structure to regulate the use of

administrative segregation does not indicate the existence of a protected liberty interest.");

Mearin v. Vidonish, 2:08-cv-597, 2009 WL 5166258 at *6 (W.D. Pa. Dec. 29, 2009) citing

Hayes v. Muller, Docket No. 96-3420, 1996 WL 583180 at *7 (E.D.Pa. Oct.10, 1996) ("[A] state

does not violate an individual's federal constitutional right to procedural due process merely by

deviating from its own established procedures."). 

Having been deprived of no liberty interest by Defendant Henry's alleged failure to abide

by the Department of Corrections' authorization and notice policies, Plaintiff fails to state a

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procedural due process claim. Accordingly, the motion to dismiss should be granted with respect

to that claim. 

D. Plaintiff's Motion For Partial Summary Judgment

Plaintiff moves for summary judgment on the claims that he has made against Defendant

Henry. Document # 23. He contends that he is entitled to summary judgment because Defendant

Henry has "filed no aswer [sic], response, or denial to [his] retaliatory claims, or [his] claims of

Henry obstructing [his] mail" and therefore he has admitted the allegations made in the

Complaint. Id. ¶ 1. See also Document # 24. 

There is no merit to Plaintiff's motion. In response to Plaintiff's Complaint, Defendant

Henry filed the above-discussed motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) in which he

argued (along with Defendants Sobina and Varner) that Plaintiff fails to state a claim upon which

relief can be granted because his claims are barred by the Eleventh Amendment; fail to

sufficiently allege his personal involvement; and, fail to sufficiently allege a due process

violation. "A motion asserting [Rule 12(b)(6)'s defense of failure to state a claim upon which

relief can be granted] must be made before pleading[.]" Fed.R.Civ.P.P. 12(b) (emphasis added). 

Defendant Henry's responsive pleading is not due until after he has received notice of the Court's

denial of his motion to dismiss. See Fed.R.Civ.P. 12(a)(4)(A). 

Because Defendant Henry filed a motion to dismiss, he has not missed the deadline for

filing a responsive pleading and therefore he has not admitted the allegations against him. 

Accordingly, Plaintiff's motion for partial summary judgment should be denied. 

III. CONCLUSION

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

dismiss [Document # 17] be granted as to Defendants Sobina and Varner and denied as to

Defendant Henry. It is further recommended that the Clerk of Courts be directed to terminate

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Defendants Sobina and Varner from this action. It is further recommended that Plaintiff's

Fourteenth Amendment due process claim be dismissed. 

It also is recommended that Plaintiff's motion for partial summary judgment [Document

# 23] be denied.

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 14, 2010

cc: The Honorable Sean J. McLaughlin

United States District Judge

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