GRIFFIN v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN GRIFFIN, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 19-CV-2232

:

JOHN WETZEL, et al., :

Defendants. :

MEMORANDUM

Pro se Plaintiff John Griffin has responded to the Court’s Order, filed on January 10,

2020, in which the Court vacated a prior Memorandum and Order, directed the Clerk of Court to

return Griffin’s unsigned Amended Complaint (“AC”) to him for signature, and permitted

Griffin to prepare and file a new amended complaint.1 Griffin has returned the AC with a

signature and also filed a supplemental pleading. The Court will deem the entire filing to

constitute a Second Amended Complaint (“SAC”). For the following reasons, the constitutional

claims contained in the SAC will be dismissed with prejudice pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim and the state law claims will be dismissed for lack of

subject matter jurisdiction.

1 Griffin filed his original Complaint on May 22, 2019, asserting a claim pursuant to 42 U.S.C. § 1983 arising from

the destruction of his personal property during the transfer of prisoners from SCI Graterford to SCI Phoenix. The

original Complaint was dismissed with prejudice for failure to state a plausible civil rights claim pursuant to 42

U.S.C. § 1983. However, in a subsequent Order, entered on June 26, 2019, the “with prejudice” language of the

Order was vacated, and Griffin was granted leave to file an amended complaint. After he was granted two

extensions of time, Griffin filed his AC on October 23, 2019.

In a subsequent Memorandum and Order, the AC was dismissed with prejudice because Griffin failed to cure the

defects identified in his original Complaint. Unnoticed at that time, Griffin’s AC was unsigned. Griffin sent a letter

to the Clerk of Court on January 8, 2020, in which he stated that he did not intend the unsigned AC to be filed.

Because the unsigned pleading should have been returned to Griffin when it was received, the Court vacated its

Memorandum and Order, ordered the unsigned pleading to be returned to Griffin for signature, and permitted him to

prepare a new pleading.

I. FACTS

Griffin again alleges that, as SCI Graterford was closing and its inmates and their

property were relocated to SCI Phoenix, members of a Corrections Emergency Response Team

(“CERT”) took custody of, and subsequently lost, his personal property. Among the lost

property were “appellate briefs, transcripts, work product, research, rulings, and other pleadings

being prepared to be filed and/or prepared to file by [Griffin], in his criminal proceedings and

appeals [].” Griffin asserts that, because Defendant Tammy Ferguson, the Warden of SCI

Phoenix, suspended the prison grievance process, he “was never afforded a full and fair

opportunity to recapture his legal materials.” He asserts that Ferguson and Defendant Unit

Manager Juanita Wilcox acted arbitrarily to deny him adequate compensation for his lost

property, and Defendant Wilcox refused to conduct any hearing about his property. Griffin

alleges he was subject to retaliation due to his advocating for himself about his lost property.

Numerous personal items were allegedly lost in the move, including legal materials and a

religious item.

Griffin asserts a claim for denial of substantive and procedural due process2 based upon

the Defendants’ violation of the prison policy governing the relocation of inmates’ personal

property to the new facility, and their violation of the portion of the same policy governing

property confiscated during the move. He alleges that, although he did not receive back all his

property, he never received a list of items confiscated from him and was thus deprived of the

opportunity to challenge the alleged confiscation. He also alleges he was deprived of the

grievance and appeal process. Based on these allegations, Griffin asserts First and Fourteenth

2 Although Griffin uses the word “substantial,” the Court interprets his use of the word to assert a “substantive” due

process claim.

Amendments claims under § 1983 against Defendants John E. Wetzel, Secretary of Corrections,

Ferguson, and Wilcox.3 He also alleges a state law claim for negligence.

II. STANDARD OF REVIEW

As the Court previously granted Griffin leave to proceed in forma pauperis, 28 U.S.C. §

1915(e)(2)(B)(ii) (1996) applies, which requires the Court to dismiss the SAC if it fails to state a

claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the

same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),

see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to

determine whether the complaint contains “sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotations omitted). Conclusory allegations do not suffice. Id. As Griffin is proceeding pro

se, the Court construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.

2011).

II. DISCUSSION

a. Substantive and Procedural Due Process Claims

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

As the Court previously explained in dismissing the original Complaint, while Griffin asserts due

3 Although it is not completely clear from the SAC, the First Amendment claim appears to be based on: (1) a denial

of access to the courts due to the alleged destruction of legal materials; (2) possibly a free exercise claim based on

the loss of his prayer rug; and, (3) a retaliation claim based upon his “speak[ing] out against an unjust act.” To the

extent that Plaintiff is seeking money damages under the Pennsylvania constitution, he is not entitled to them. See

Plouffe v. Cevallos, 777 F. App’x 594, 601 (3d Cir. 2019) (“[N]or is there a private right of action for damages

under the Pennsylvania Constitution”); Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 F. App’x

681, 687 (3d Cir. 2011) (“No Pennsylvania statute establishes, and no Pennsylvania court has recognized, a

private cause of action for damages under the Pennsylvania Constitution.”).

process claims based on the loss of his property, negligent or intentional deprivations of property

by a state employee do not give rise to constitutional claims if the state provides an adequate

post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Further, Griffin could

not state a plausible due process claim because the prison grievance system as well as

Pennsylvania common law provided him with an adequate state remedy for the deprivation of his

property.4 Id.

In his SAC, Griffin again attempts to pursue a procedural due process claim based on the

suspension of the prison grievance system. This claim must again be dismissed because it is

implausible. “Prison inmates do not have a constitutionally protected right to a grievance

process.” Jackson v. Gordon, 145 F. App’x 774, 777 (3d Cir. 2005) (per curiam); see also

Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir. 2009) (per curiam); Bonner v. Sipple, 392 F.

Supp. 3d 594, 601 (E.D. Pa. 2019) (citing Jackson). Accordingly, Griffin’s claim that Defendant

Ferguson suspended the prison grievance system and Defendant Wilcox would not give him a

hearing, thereby preventing him from recovering the value of his lost property, is not a plausible

basis for a constitutional claim. Griffin also does not explain how Defendant Wetzel was

involved in the grievance process or otherwise personally acted to violate his due process rights.

To the extent that Griffin seeks to state a substantive due process claim, the conduct he describes

does not rise to the level of conscience shocking. See Newman v. Beard, 617 F.3d 775, 782 (3d

Cir. 2010) (“Conduct can violate substantive due process if it shocks the conscience, which

encompasses only the most egregious official conduct.”); Hughes v. Kostingo, 2006 WL 367890,

at *4 (W.D. Pa. Feb. 15, 2006) (dismissing prisoner’s claim of a substantive due process

4 Griffin appended to his AC a copy of a state court complaint seeking monetary damages for his lost property.

(ECF No. 14 at 10-35.) It is unclear whether that complaint has actually been filed.

violation because no set of facts relating to the prisoner’s missing property would shock the

conscious of the court). Having already afforded Griffin two opportunities to amend his

complaint to state a plausible due process claim, and it appearing that any further amendment

would be futile, the claims are dismissed with prejudice.

b. First Amendment Claims

As noted above, Griffin’s First Amendment claims appear to be based on: (1) a denial of

access to the courts due to the alleged destruction of legal materials; (2) a free exercise claim

based on the loss of his religious articles; and, (3) a retaliation claim based upon his “speak[ing]

out against an unjust act.” The denial of access claim is implausible. As the Court previously

explained, to state a denial of access claim Griffin must allege that he lost an opportunity to

pursue a nonfrivolous or arguable underlying claim. Monroe v. Beard, 536 F.3d 198, 205-06 (3d

Cir. 2008) (per curiam) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). Griffin has again

failed to allege that he lost a nonfrivolous, arguable underlying claim due to the loss of the legal

material.

To the extent that Griffin seeks to raise a free exercise claim based on the loss of his

prayer rug,5 the claim is also implausible. The Supreme Court has recognized that the First

Amendment guarantees that all prisoners must be afforded reasonable opportunities to exercise

their religious freedom. Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972). See also O’Lone v.

Shabazz, 482 U.S. 342, 348 (1987) (“Inmates clearly retain protections afforded by the First

Amendment, . . . including its directive that no law shall prohibit the free exercise of religion.”)

(citations omitted). In order to state a plausible Free Exercise claim, a plaintiff must allege a

“substantial burden” on the exercise. Thomas v. Review Bd., 450 U.S. 707, 718 (1981);

5 Although he mentions “religious” property generally, the only specific item he alleges was lost was a prayer rug.

Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). Stated another way, the free exercise inquiry asks

whether government has placed a substantial burden on the observation of a central religious

belief or practice and, if so, whether a compelling governmental interest justifies the burden.

Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989) (internal citations omitted).

In addition, to state a denial of religious freedom claim in this instance, Griffin must allege that

the destruction of his property was not reasonably related to a legitimate, penological interest.

O’Lone, 482 U.S. at 349-50; Turner v. Safley, 482 U.S. 78, 89 (1987). “[C]ourts must [also]

examine whether an inmate has alternative means of practicing his or her religion generally, not

whether an inmate has alternative means of engaging in the particular practice in question.”

DeHart v. Horn, 227 F.3d 47, 55 (3d Cir. 2000).

Griffin alleges only that a prayer rug was lost or destroyed in the move to SCI Phoenix.

He does not allege that he no longer has the ability to possess a prayer rug or practice the tenets

of his religion. Because he fails to assert that he is unable to practice his religion through

alternative means even though he no longer has the specific religious property that was destroyed

in the transfer, his First Amendment claim is not plausible. See O’Banion v. Anderson, 50 F.

App’x 775, 776 (7th Cir. 2002) (“O’Banion has no First Amendment freedom-of-religion claim

because he does not suggest that the confiscation of his property restricted the exercise of his

religious beliefs. He cannot resurrect his property claim simply by characterizing the feathers

and furs as ‘religious property’ without alleging that his religious observance was unreasonably

restricted.”).

Finally, Griffin’s retaliation claim based upon his “speak[ing] out against an unjust act”

is also implausible.6 To assert a plausible a First Amendment retaliation claim, a prisoner must

6 While the Court is mindful that Griffin also used the word “retaliation” as part of his allegation that Defendants

Ferguson and Wilcox acted arbitrarily, the context of the allegation indicates that he used the word to describe the

allege three things: (1) constitutionally protected conduct; (2) an adverse action by prison

officials sufficient to deter a person of ordinary firmness from exercising his constitutional

rights; and, (3) a causal link between the exercise of constitutional rights and the adverse action.

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001). Assuming that speaking out against an unjust act qualifies as protected conduct even in a

prison context, Griffin fails to allege any adverse action, i.e., any actual act of retaliation, arising

from that conduct. To the extent he is suggesting that his grievance was adversely impacted, he

has not done so in anything beyond conclusory terms insufficient to state a claim.

Having already afforded Griffin two opportunities to amend his complaint to state a

plausible First Amendment claim, and it appearing that any further amendment would be futile,

these claims are also dismissed with prejudice.

c. State Law Claims

Because the Court has dismissed Griffin’s federal claims, the Court will not exercise

supplemental jurisdiction over any state law claims. Accordingly, the only independent basis for

jurisdiction over any such claims is 28 U.S.C. § 1332(a) (2005), which grants a district court

jurisdiction over a case in which “the matter in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs, and is between . . . citizens of different States.”

Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’

even though only minimal diversity is constitutionally required. This means that, unless there is

some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any

defendant.’” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting

Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood,

alleged due process violation, rather than to describe a First Amendment retaliation claim.

592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). As it appears from the face of the

pleadings that diversity is lacking, the state law claims will be dismissed without prejudice.

An appropriate Order follows.

BY THE COURT:

/s/Wendy Beetlestone, J.

_________________________________________

WENDY BEETLESTONE, J.