1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-3815

___________

DONNA M. HILL,

 Appellant

v.

JAMES BARNACLE; STEVEN GLUNT; 

DAVID CLOSE; KENNETH R. HOLLIBAUGH; 

CAPTAIN BRUMBAUGH; HEATHER MOORE

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-13-cv-01604)

District Judge: Honorable Nora B. Fischer

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 2016

Before: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges

(Opinion filed: July 5, 2016)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

We previously vacated the District Court’s dismissal of the complaint in this 

matter and remanded for further proceedings. See Hill v. Barnacle, 598 F. App’x 55, 58 

(3d Cir. 2015). The District Court dismissed the complaint again on remand, and the 

plaintiff now appeals. We will affirm in part, but we are constrained to vacate in part and 

remand this matter again.

I.

We take the following facts from the complaint, as supplemented by the public 

record, and accept them as true for present purposes only. Donna Hill is a prisoners’ 

rights advocate whose husband is serving a life sentence in Pennsylvania state prison. 

This case concerns the suspension of her visitation and mail privileges. Hill’s visitation 

privileges have been suspended before on grounds not presently at issue. See generally

Pfender v. Sec’y Pa. Dep’t of Corr., 443 F. App’x 749 (3d Cir. 2011). Her privileges 

were reinstated in 2011.

Thereafter, Hill began receiving reports that prison employees were mistreating 

her husband in various ways. As a result, Hill began a letter-writing campaign regarding 

her husband’s treatment “to various news media outlets, state law makers and prison 

officials out of a concern for her husband’s health and safety.” (ECF No. 3 at 3.) Hill 

attached one such letter to her complaint—a letter dated November 5, 2011, to John E. 

Wetzel, Secretary of the Pennsylvania Department of Corrections, requesting an 

investigation into her concerns. (ECF No. 3-1 at 3.)

 
3

Hill then attempted to visit her husband at SCI-Houtzdale on April 12, 2012. 

When she arrived, prison staff “informed her that her visiting privileges were suspended 

and told [her] to leave without further explanation.” (ECF No. 3 at 4.) Approximately 

one week later, Hill received a letter dated April 12 from the prison superintendent 

informing her that, “[e]ffective immediately, your visiting privileges at SCI Houtzdale 

are suspended indefinitely due to a pending investigation.” (ECF No. 3-1 at 11.) The 

letter provided no details regarding the nature of the investigation. Hill later learned that 

the prison had suspended her mail privileges and confiscated her mail as well.

On June 20, 2012, Hill filed a petition with the Pennsylvania Commonwealth 

Court naming only the Commonwealth of Pennsylvania and the Department of 

Corrections as respondents. Hill asserted that the suspension of her visitation and mail 

privileges was in retaliation for her letter-writing campaign. 

Six days after Hill filed that petition, she received another letter from the prison 

superintendent dated June 26, 2012. (ECF No. 3-1 at 13.) This letter informed Hill that 

the previously referenced investigation was complete and that, “[u]pon . . . my review of 

the investigation information, the decision has been made to suspend your visitation 

privileges indefinitely, effective immediately.” (Id.). The letter once again provided no 

details regarding the investigation. 

Hill then wrote to the superintendent on July 17, 2012, and inquired into the 

reasons for the suspension. The superintendent responded by letter dated July 30, 2012, 

but again did not specify the nature of the investigation or exactly what Hill was alleged 
4

to have done wrong.1 Hill then amended her Commonwealth Court petition to allege that 

the continuation of her indefinite suspension following the investigation was in retaliation 

for her filing of the Commonwealth Court action. The Commonwealth Court ultimately 

dismissed Hill’s petition on the merits. See Hill v. Dep’t of Corr., No. 419 M.D. 2012, 

2013 WL 3970256, at *2 (Pa. Commw. Ct. Apr. 9, 2013), aff’d, 80 A.3d 376 (Pa. 2013).

Hill then filed pro se the federal complaint at issue here asserting claims under 42 

U.S.C. § 1983 and (apparently) state law. She named as defendants the prison 

superintendent and five other prison officials allegedly involved in the suspension of her 

privileges and the confiscation of her mail.2 Once again, Hill alleged that defendants 

suspended her privileges and confiscated her mail in retaliation for her letter-writing 

campaign and then continued the suspension in retaliation for her filing of the 

Commonwealth Court action. Hill invoked various constitutional rights, but the District 

 

1 The letter reads in relevant part:

As previously indicated, your actions and support of your husband’s behavior 

poses [sic] a threat to the safety and security of this facility. Serious staff injury 

resulted. In accordance with DC-ADM 812, Section 1.B.8, your visitation 

privileges have been suspended indefinitely. . . . You have been suspended 

indefinitely on prior occasions and have been reinstated, only to return to behavior 

that poses a threat to the safety and security of the facility that houses your 

husband. The broad discretion shown by reinstating your visiting privileges has 

not yielded the expected positive results. As such, the suspension will continue.

(ECF N. 3-1 at 15.)

2 Because our rulings do not turn on the alleged conduct of any particular defendant, we 

refer herein to “defendants” without suggesting that any particular defendant is 

responsible for any particular conduct alleged in the complaint. 
5

Court has treated Hill’s claim as one based on the First Amendment and we will do the 

same. Hill also stated that “[t]he plaintiff . . . alleges the torts of neglect and mental 

anguish,” but she provided no detail in that regard. (ECF No. 3 at 1.) For relief, she 

requested an injunction restoring her visitation privileges and monetary damages.

Before service of process, the District Court dismissed Hill’s complaint on the 

grounds that it was barred by res judicata as a result of the Commonwealth Court action 

and that it failed to state a claim. On the merits, the District Court followed the 

Commonwealth Court’s lead in construing Hill’s complaint to allege that defendants 

retaliated against her only for filing the Commonwealth Court action (and not for her 

letter-writing campaign). The District Court concluded that her claim in that regard was 

“nonsensical” because the superintendent suspended her visitation privileges before she 

filed that action. 

We vacated and remanded. See Hill, 598 F. App’x at 58. We concluded that 

Hill’s complaint is not barred by res judicata, though we expressed no opinion on 

whether it is barred by collateral estoppel. See id. at 57-58 & n.4. We further concluded 

that Hill’s complaint did not fail to state a claim for the reason relied on by the District 

Court. As we explained, the District Court’s view that Hill’s claim was “nonsensical” 

was based on “an incomplete reading of Hill’s complaint”—i.e., it ignored Hill’s 

allegations regarding her letter-writing campaign, which preceded the initial suspension, 

and it did not account for the continuation of the suspension just days after Hill filed her 

petition. Id. at 58. In sum, we concluded that “[t]here is nothing nonsensical about Hill’s 
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allegations.” Id.3

On remand, the defendants filed a motion to dismiss under Fed. R. Civ. P. 

12(b)(6). The defendants argued that Hill’s retaliation claim is barred by collateral 

estoppel and that her complaint otherwise fails to state a claim. A Magistrate Judge 

recommended granting the motion. The Magistrate Judge rejected defendants’ argument 

regarding collateral estoppel, and defendants have not raised that issue on appeal. The 

Magistrate Judge concluded, however, that Hill failed to state a retaliation claim and that 

her apparent state-law claims are barred by sovereign immunity. The District Court 

adopted the Magistrate Judge’s recommendation and dismissed Hill’s complaint without 

independent discussion. Hill appeals.4 

II.

A. Hill’s Retaliation Claim

The parties focus primarily on Hill’s retaliation claim. Hill alleges that defendants 

 

3 Hill previously filed a similar complaint while her Commonwealth Court action was 

still pending. The District Court abstained under Younger v. Harris, 401 U.S. 37 (1971), 

and we affirmed. See Hill v. Barnacle, 523 F. App’x 856, 858 (3d Cir. 2013). In 

remanding for further proceedings on the complaint at issue here, we “decline[d] to give 

our prior [abstention] ruling continuing effect” in light of the decision in Sprint 

Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013). Hill, 598 F. App’x at 56 n.1.

4 We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the 

dismissal of a complaint under Rule 12(b)(6). See Pearson v. Sec’y Dep’t of Corr., 775 

F.3d 598, 601 (3d Cir. 2015). In doing so, “we must accept all well-pled allegations in 

the complaint as true and draw all reasonable inferences in favor of the non-moving 

party.” Id. at 604 (quotation marks omitted). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face.” Id. (quotation marks omitted).
7

(1) suspended her visitation privileges and confiscated her mail in retaliation for her 

letter-writing campaign and then (2) continued the suspension in retaliation for her filing 

of the Commonwealth Court action. Hill argues that the District Court erred in 

dismissing this claim because the District Court misapplied the pleading standard and 

improperly found facts at the pleading stage. We agree.

“To state a claim for retaliation, a plaintiff must allege that: (1) [s]he was engaged 

in constitutionally protected conduct, (2) [s]he suffered some adverse action at the hands 

of the prison officials, and (3) h[er] constitutionally protected conduct was a substantial 

or motivating factor in the decision to take that action.” Bistrian v. Levi, 696 F.3d 352, 

376 (3d Cir. 2012) (quotation marks omitted).5 Defendants concede that Hill adequately 

alleged the first two elements. They argue, however, that Hill did not adequately allege 

that her protected activity caused the suspension of her privileges. The District Court 

agreed and dismissed this claim on that basis. 

We conclude, however, that Hill has adequately alleged the element of causation 

and that this claim is sufficient to survive a motion to dismiss. Hill alleges that she wrote 

letters regarding her husband’s treatment to various media and officials. She further 

 

5 The District Court applied law pertaining to retaliation claims by prisoners against 

prison officials, and we set forth this standard in that context. As we previously noted, 

Hill may maintain a retaliation claim against prison officials even though she is not a 

prisoner. See Hill, 598 F. App’x at 58 n.5 (citing, inter alia, Eichenlaub v. Township of 

Indiana, 385 F.3d 274, 282 (3d Cir. 2004)). The standard applicable to non-prisoners is 

the same. See Eichenlaub, 385 F.3d at 282 (citing Rauser v. Horn, 241 F.3d 330, 333 (3d 

Cir. 2001)).
8

alleges that, when she next attempted to visit her husband, defendants turned her away 

without explanation. Hill later learned that defendants suspended her privileges pending 

an unspecified investigation. Then, just days after she complained of that suspension to 

the Commonwealth Court, defendants announced that the still-unspecified investigation 

was complete and that her suspension would continue indefinitely. Defendants, 

according to Hill, never specified the basis for the investigation or what she was alleged 

to have done wrong. The timing of these events, coupled with defendants’ failure to 

provide a specific explanation for Hill’s suspension on four occasions, raises a plausible 

inference that defendants retaliated against her for engaging in her letter-writing 

campaign and filing her Commonwealth Court action. See Connelly v. Lane Constr. 

Corp., 809 F.3d 780, 792-93 (3d Cir. 2016); Pearson, 775 F.3d at 604.

In concluding otherwise, the District Court relied primarily on the letters from the 

superintendent attached to the complaint. The District Court appears to have regarded the 

letters as conclusive proof against Hill’s claim merely because the superintendent stated 

that he had conducted an investigation and then concluded from that investigation that 

“your actions and support of your husband’s behavior poses [sic] a threat to the security 

and safety of this facility.” (ECF No. 3-1 at 15.) As explained above, however, the 

superintendent never specified the nature of his investigation or what Hill was alleged to 

have done wrong, let alone how Hill’s unspecified conduct posed an institutional threat. 

Thus, even taking these letters at face value, they do not negate the inference that 

defendants suspended Hill’s privileges in retaliation for her protected activities. To the 
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contrary, the letters arguably support that inference because they fail to specify why 

defendants suspended Hill’s privileges and state only that the suspension was based on 

Hill’s “actions and support of your husband’s behavior,” which, according to Hill, 

consisted of her protected activities. At the pleading stage, we must draw that reasonable

inference in her favor.6

Defendants raise an additional argument that we will address. Defendants argue 

that this claim fails because there is no “unusually suggestive” temporal proximity 

between Hill’s writing of the November 5, 2011 letter to Secretary Wetzel and the initial 

April 12, 2012 suspension of her visitation privileges. The District Court noted but did 

not specifically accept this argument, and it lacks merit. 

Defendants rely on authority in the summary judgment context addressing when 

an unusually suggestive temporal proximity is sufficient to raise an inference of 

retaliation by itself. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 

232-33 (3d Cir. 2007). A suggestive temporal proximity, however, is not itself an 

element of a retaliation claim and need not be alleged at the pleading stage. See

 

6 The District Court also relied on the superintendent’s letters in concluding that, even if 

Hill stated a retaliation claim, it still failed on the merits because defendants would have 

suspended her visitation privileges for legitimate penological reasons even in the absence 

of her protected conduct. See Rauser, 241 F.3d at 333. Resolution of that issue was 

premature at this stage. Defendants bear the burden of proof on that issue, see id., and, 

even taking these letters at face value, they are too conclusory to carry it. The District 

Court also took judicial notice of Hill’s previous suspension, but that suspension on 

apparently unrelated grounds does not render implausible Hill’s claim that her subsequent 

protected activities were a “substantial or motivating factor” for the suspension at issue 

here. Bistrian, 696 F.3d at 376.
10

Connelly, 809 F.3d at 792 n.11; Pearson, 775 F.3d at 604. Even if it were, Hill’s claim 

does not fail for lack of a suggestive temporal proximity.

Defendants argue that Hill did not suffer any adverse action until defendants 

suspended her visitation privileges on April 12, 2012. Hill alleges that defendants first 

turned her away for a visit on that date, but it is reasonable to infer from her complaint 

that her attempted visit on that date was the first time she attempted to visit her husband 

following her letter-writing campaign. Thus, “it may be that a retaliatory decision . . . 

would not become apparent” until Hill actually attempted to visit her husband in prison. 

Connelly, 809 F.3d at 792.

Defendants’ argument also ignores the proximity between Hill’s filing of the 

Commonwealth Court action on June 20, 2012, and the superintendent’s announcement 

six days later in his letter of June 26 that his previously referenced investigation was 

complete and that Hill’s visitation privileges would remain suspended indefinitely. 

Defendants argue that the June 26 letter cannot constitute retaliation because defendants 

already had suspended Hill’s visitation privileges indefinitely on April 12 before she filed 

her Commonwealth Court action and the June 26 letter merely continued that suspension 

thereafter. 

We already have rejected this argument. See Hill, 598 F. App’x at 58. To avoid 

any further confusion on this point, we will explain our reasons for doing so in greater 

detail. In the April 12 letter, defendants merely informed Hill that her privileges had 

been suspended indefinitely pending an investigation. In the June 26 letter, by contrast, 
11

defendants notified Hill that the investigation was complete and that her privileges 

remained suspended indefinitely (placing the word “indefinitely” in bold for good 

measure). There is a qualitative difference between an indefinite suspension of privileges 

pending an investigation and an indefinite suspension of privileges as a result of an 

investigation after that investigation is complete. The former suggests the possibility of 

reinstatement, while the latter does not.

In sum, we conclude that Hill has stated a claim of retaliation for Rule 12(b)(6) 

purposes. We express no opinion on the merits of that claim and hold only that it is 

sufficient to survive the pleading stage. 

B. Remaining Issues

Three remaining issues require brief discussion. First, Hill argues that she asserted 

a due process claim based on defendants’ alleged confiscation of her mail and that both 

the defendants and the District Court failed to address it. Hill’s complaint can indeed be 

read as at least attempting to assert such a claim. Hill asserted that defendants 

confiscated her mail in violation, inter alia, of the Fourteenth Amendment (ECF No. 3 at 

1) and that she has a “property interest regarding her mail” (id. at 6). Hill provides no 

other details in this regard, but the District Court should address this claim and consider 

the possibility of amendment if and when appropriate on remand.

Second, Hill challenges the District Court’s dismissal of her complaint to the 

extent that it can be construed to assert claims under state law. The only suggestion in 

the complaint that Hill sought to raise such claims was her assertion that “[t]he plaintiff 
12

also alleges the torts of neglect and mental anguish.” (Id. at 1.) Hill again provided no 

details in this regard. The District Court concluded that, to the extent the complaint could 

be construed to raise claims of intentional infliction of emotional distress and negligence, 

defendants are entitled to sovereign immunity under Pennsylvania law. See 1 Pa. Cons. 

Stat. § 2310 (codifying sovereign immunity for Commonwealth officials “acting within 

the scope of their duties”); 42 Pa. Cons. Stat. § 8522 (waiving sovereign immunity as to 

certain claims). The District Court concluded that defendants’ only alleged actions—

suspending Hill’s visitation and mail privileges and confiscating her mail—were 

necessarily committed in the scope of their employment by the prison and are not among 

the types of conduct as to which the Commonwealth has waived sovereign immunity. 

We agree. 

Hill argues that defendants’ actions were not within the scope of their employment 

because they “abused their office,” but “even unauthorized acts may be within the scope 

of employment if they are clearly incidental to the master’s business.” Brumfield v. 

Sanders, 232 F.3d 376, 381 (3d Cir. 2000) (quotation marks omitted) (applying 

Pennsylvania law). We agree with the District Court that defendants’ alleged actions, 

even if wrongful, necessarily were committed within the scope of their administration of 

the prison.7

 

7 To the extent that Hill’s references to “neglect” and “mental anguish” might be 

construed as attempts to raise claims on behalf of her husband, Hill has attempted to do 

so before and lacks standing as we previously explained. See Hill v. Pa. Dep’t of Corr., 

521 F. App’x 39, 40-41 (3d Cir. 2013).
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Finally, Hill argues that the District Court erred in failing to review the Magistrate 

Judge’s recommendations de novo despite her filing of objections. In particular, Hill 

faults the District Court for failing to make its own findings and conclusions. District 

Courts, however, are not required to make any separate findings or conclusions when 

reviewing a Magistrate Judge’s recommendation de novo under 28 U.S.C. § 636(b). See

Elmendorf Grafica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 49-50 (1st Cir. 1995). 

We presume that the District Court engaged in the required de novo review absent some 

indication to the contrary. See Claude v. Perkins, 534 F.3d 801, 801 (2d Cir. 2008) (per 

curiam). There is no such indication here because the District Court noted Hill’s 

objections and stated that it reviewed the record “independently.” 

III.

For these reasons, we will vacate the judgment of the District Court to the extent 

that it dismissed Hill’s retaliation claim and failed to address her allegations regarding the 

confiscation of her mail. We will remand for further proceedings on those issues. We 

will otherwise affirm the judgment of the District Court.8

 

8 Four of the defendants argued below that Hill failed to state a claim against them 

because she failed to allege their personal involvement. The District Court did not reach 

that issue, but it is free to address it on remand. If the District Court does so and finds 

Hill’s complaint lacking in that regard then, as with her claim regarding confiscation of 

her mail, it should consider the possibility of amendment before dismissing any claims 

with prejudice. See Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). 

To be clear, Hill’s existing complaint adequately alleges a First Amendment retaliation 

claim, and she need not amend her complaint in order to proceed with that claim.