NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3132

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WALTER CHRUBY,

Appellant

v.

ANNETTE KOWALESKI, in her official and 

personal capacities; MARGE LECHENE, 

in her official and personal capacities; MIKE 

PIOVARCHY, RNS, in his official and personal 

capacities; DEREK THOMAS, RN, in his 

official and personal capacities; JOHN E. 

DUPONT, Hearing Examiner, in his official 

and personal capacities; DAVID PITKINS, 

SCI-Laurel Highlands, in his official and 

individual capacities; JEFFREY BEARD, 

former Secretary of PA Department of Corrections, .

in his individual capacity; SECRETARY 

PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS, in his official capacity 

____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 3-11-cv-00225)

District Judge: Honorable Kim R. Gibson

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 16, 2013

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Before: SMITH, FISHER, and CHAGARES, Circuit Judges.
2

(Filed: August 7, 2013)

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OPINION 

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CHAGARES, Circuit Judge.

Walter Chruby brought a complaint against several prison officials based 

principally on alleged violations of his First Amendment rights. The District Court 

dismissed the complaint and denied Chruby’s motions to file supplemental pleadings. 

For the reasons explained herein, we will affirm.

I.

We write solely for the parties and will therefore recount only those facts that are 

essential to our disposition. The following facts are taken from the complaint, which we 

accept as true when reviewing a motion to dismiss. 

Chruby is an inmate at SCI Laurel Highlands (“SCI-LH”), a prison in 

Pennsylvania. He suffers from a kidney disorder that requires significant medical 

attention. In 2005, Chruby filed a lawsuit against several prison officials alleging that he 

had received improper treatment for his condition. To settle the case, the parties entered 

into an agreement (called the “consent decree” in the complaint) allowing Chruby to 

reside at SCI-LH for the remainder of his life if the facility remains open and if Chruby 

refrains from engaging in misconduct. At some point, Chruby was transferred to another 
3

facility, but eventually he was returned to SCI-LH. In August of 2009, Chruby filed a 

second lawsuit claiming that he was subjected to cruel and unusual punishment. 

In December of 2009, defendant Derek Thomas, a registered nurse, was assigned 

to administer Chruby’s medical treatment. At the beginning of the first visit, Thomas 

began to write notes before examining Chruby. Chruby questioned Thomas about what 

he was writing, and Thomas responded, “I’m just doodling.” Appendix (“App.”) 63. 

Chruby wrote a letter to several other defendants complaining of Thomas’s conduct, and 

Chruby was thereafter charged with misconduct for making false assertions in the letter. 

The defendants conducted a hearing on the misconduct charge, but refused to compel 

testimony of witnesses as Chruby demanded. In addition to exhibiting bias, the hearing 

officer denied Chruby’s request to view the medical records in question. The posthearing report incorrectly stated that Thomas had testified at the hearing. 

Based upon the incident with Thomas and the subsequent hearing, Chruby filed a 

complaint stating eight causes of action, alleging violations of his First Amendment 

rights, of his right to equal protection, and of 42 U.S.C. § 1997d. The complaint also 

alleges that the defendants conspired to deprive Chruby of his First and Fourteenth 

Amendment rights, thereby violating 42 U.S.C. § 1983, and requests declaratory and 

injunctive relief. 

Chruby later filed a motion for leave to file a supplemental pleading that was 

based on an incident that occurred in March of 2012. After being hospitalized for several 

days for acute pyelonephritis, Chruby was discharged and told that he would be 

prescribed Dilaudid. Chruby did not receive Dilaudid from physicians at the prison, so 
4

he wrote a letter to complain. Several days later, he wrote a separate letter complaining 

that he had been forced to wait three and one-half hours before being taken to the hospital 

when his medical emergency occurred. Two misconduct charges were filed against 

Chruby shortly thereafter, one of which was for lying to an employee. The bases of the 

lying charge were the two letters: the charge alleged that Chruby falsely stated that 

Dilaudid had been ordered for him, and also falsely stated that he had waited three and 

one-half hours before being taken to the hospital. The proposed supplemental pleading 

lists five additional First Amendment claims, seeking permanent injunctions, monetary 

damages, and declaratory relief. 

Chruby later moved to file another supplemental pleading, this time based on a 

meeting with defendant Annette Kowalewski. In the meeting, Kowalewski threatened to 

file a new misconduct charge based on Chruby’s “lie” in the letter concerning his pain 

medication. App. 606. She then told Chruby that he would be issued a misconduct if he 

ever sent another letter to anyone in the medical department that she found “inappropriate 

or impolite.” Id. 

The second motion also sought to add a new defendant, Robert Reed, who was the 

hearing examiner for Chruby’s second misconduct hearing. At that hearing, Chruby was 

again denied access to his medical records that related to the alleged misconduct. The 

second supplemental pleading contains two additional causes of action: the first is for 

First Amendment retaliation against Kowalewski, and the second seeks injunctive relief 

against Reed and John E. Wetzel for denial of due process during the misconduct hearing.
5

In June of 2012, the Magistrate Judge issued a Report and Recommendation (the 

“Report”) that recommended dismissing the complaint. It also concluded that the 

proposed supplemental pleadings would be futile. The District Court agreed on both 

points and dismissed the case.

II.1

A.

The Magistrate Judge’s Report began by addressing Chruby’s three First 

Amendment retaliation claims, counts one, two, and four. To recover on a retaliation 

claim, plaintiffs “must show (1) that they engaged in a protected activity, (2) that 

defendants’ retaliatory action was sufficient to deter a person of ordinary firmness from 

exercising his or her rights, and (3) that there was a causal connection between the 

protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 

480 F.3d 259, 267 (3d Cir. 2007). When reviewing a motion to dismiss, we must simply 

ensure that the complaint states grounds plausibly suggesting entitlement to relief. Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (“And, of course, a well-pleaded 

complaint may proceed even if it strikes a savvy judge that actual proof of those facts is 

improbable, and that a recovery is very remote and unlikely.” (quotation marks omitted)).

 

1

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have appellate 

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a district court’s 

order granting a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d 

Cir. 2009).
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The Report noted that the defendants did not challenge either Chruby’s allegation 

that he engaged in protected activity or his claim that their action was sufficient to deter a 

person of ordinary firmness from exercising his rights. The issue chiefly addressed by 

the Report was whether there was a causal connection between the protected activity and 

the retaliation. The Report concluded that no causal connection could be shown as to the 

first misconduct filed against Chruby. App. 27. We agree, and will therefore affirm the 

District Court’s dismissal.

B.

Chruby’s conspiracy claim states that several of the defendants “agreed by word or 

by action to violate plaintiff’s First Amendment rights to free speech and petition, and 

Fourteenth Amendment right to equal protection and due process of law.” App. 82. The 

defendants sought dismissal of the conspiracy claim on two grounds. First, they argued 

that Chruby failed to plead that he was deprived of a federally protected right. Second,

they contended that Chruby’s allegations of an agreement were conclusory. 

The Report accepted both of the defendants’ arguments and dismissed the claim. 

To plead a conspiracy claim properly, a plaintiff must allege “facts that plausibly 

suggest a meeting of the minds.” Great W. Mining & Mineral Co. v. Fox Rothschild 

LLP, 615 F.3d 159, 179 (3d Cir. 2010). The complaint must not plead merely a 

“conclusory allegation of agreement at some unidentified point.” Twombly, 550 U.S. at

557. The Report concluded that Chruby “failed to allege any facts to substantiate an 

allegation of conspiracy.” App. 36. We agree that the complaint failed to make 
7

allegations of conspiracy with the requisite specificity, and will therefore affirm the 

dismissal of the conspiracy claim. 

C.

The complaint also seeks declaratory and injunctive relief to prevent prison 

officials from deviating from the terms of the consent decree based on the 2009 

misconduct. The Report recommended dismissal of both claims because it concluded 

that none of Chruby’s substantive claims could survive the motion to dismiss. It also 

pointed out that injunctive relief is a remedy rather than a cause of action,2and reasoned 

that declaratory relief would be inappropriate because it appeared likely that the 

defendants would not transfer Chruby based on the 2009 misconduct. Once again, we 

agree with the District Court and will affirm its order.

D.

The District Court also denied Chruby’s two motions to file supplemental 

pleadings. We review the District Court’s denial for abuse of discretion, but review its 

underlying legal determinations de novo. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 

220 (3d Cir. 2011).

1.

 

2 We agree with the Report that an injunction is a remedy rather than a cause of action, so 

a separate claim for injunctive relief is unnecessary. See, e.g., Birdman v. Office of the 

Governor, 677 F.3d 167, 172 (3d Cir. 2012). 
8

Chruby’s first motion to file a supplemental pleading sought injunctive relief and 

money damages for violations of his right to access the courts,3his right to petition, and 

his right to free speech based on the 2012 incident concerning his prescription for pain 

medication. The Report concluded that amendment would be futile because none of 

Chruby’s claims could succeed. The court first noted that “neither the personnel who 

were [the] subject of the letters nor the Captain who issued the misconducts are 

Defendants in this action,” and therefore Chruby would not be able to show a causal 

connection between the letters and the misconduct at issue. App. 40. It also reiterated its

prior holding that results of the prison hearing precluded any argument that a retaliatory 

motive existed. The District Court’s analysis and holding were correct and we will 

therefore affirm the court’s denial of Chruby’s motion to file a supplemental pleading. 

2.

Chruby’s second motion to file a supplemental pleading sought to add a retaliation 

claim against Kowalewski for her “threat to write plaintiff up for a misconduct charge if 

he would write a letter that she deemed to be ‘inappropriate’ or ‘impolite.’” App. 610. It 

also sought to add a due process claim because Chruby was denied the right to review his 

medical records in association with his misconduct hearing.

Once again, the Report recommended denial because the supplemental pleading 

would be futile. On the retaliation claim, it concluded that “[i]t is well established that 

 

3

The first proposed supplemental cause of action was based on a “misconduct charge for 

plaintiff’s request to a fellow inmate to write a letter to plaintiff’s own counsel.” App. 

536. Because Chruby’s appellate brief only addresses his punishment for the letter 

concerning his medication, we will affirm the dismissal of that cause of action.
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verbal threats do not constitute adverse action for purposes of stating a retaliation claim 

under the First Amendment.” App. 41. Without deciding the general issue of whether 

threats can constitute adverse action, today we will affirm the District Court’s conclusion

that the verbal threats alleged were not sufficient to deter Chruby from exercising his 

constitutional rights. 

The Report also concluded that Chruby would be unable to state a claim for denial 

of due process rights because due process rights are not triggered in the prison hearing 

context unless the prison imposes an atypical and significant hardship on the inmate. We 

agree with the Report’s conclusion that the threat of removal was not enough to constitute 

the atypical and significant hardship that the constitution requires. Therefore, we will 

affirm the District Court’s denial of Chruby’s motion.

III.

For the reasons explained herein, we will affirm the order of the District Court.