# NEDAB v. WETZEL

> District Court, E.D. Pennsylvania · October 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10399811

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** October 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ERNEST NADAB :
Plaintiff :
:
v. : CIVIL ACTION NO. 20-CV-3537
:
JOHN WETZEL, et al., :
Defendants :

M E M O R A N D U M
QUIÑONES ALEJANDRO, J. OCTOBER 16, 2020
Plaintiff Ernest Nadab, a prisoner currently incarcerated at SCI-Phoenix, brings this pro se
civil rights action alleging that the destruction of his property during the movement of prisoners
from SCI Graterford to SCI Phoenix violated his constitutional rights. He also claims that he was
denied medication following the move, and that he has been retaliated against in various respects.
Nadab names the following Defendants in their individual and official capacities: (1) Secretary of
Corrections John Wetzel; (2) Superintendent of SCI Phoenix Tammy Ferguson; (3) Kenneth
Goodman; (4) John Does 1-20; (5) “CO1 Wanamaker”; (6) “Counsel Thomas”; (7) Sgt Gilliam;
(8) “A. King PSS”; and (9) Teresa Snyder.1
The Court issued an order on August 3, 2020, directing Nadab to either pay the fees to
commence this case or file for leave to proceed in forma pauperis. (ECF No. 3.) That Order
appears to have crossed in the mail with Nadab’s payment of the fees and a letter informing the
Court that he had paid the fees, which were docketed on August 6 and August 7, respectively. (See

1 Nadab only named Wetzel, Ferguson, Goodman, and “John Does 1-20” in the caption of his
Complaint in accordance with Federal Rule of Civil Procedure 10(a). However, he included a “defendant
continuation sheet” naming the additional individuals as Defendants. (ECF No. 1 at 14.)
ECF No. 4.) After receiving the Court’s Order, Nadab submitted a letter and a copy of his Prisoner
Trust Fund Account Statement, confirming his payment of the fees. (ECF No. 5 & 6.)
Although Nadab has paid the fees in full, because he is a prisoner, the Court is still
obligated to screen his Complaint pursuant to 28 U.S.C. § 1915A. For the following reasons, the

Court will dismiss, without prejudice, pursuant to 28 U.S.C. § 1915A(b)(1), Nadab’s Complaint
for failure to state a claim, and will allow the amendment of certain claims.
I. FACTUAL ALLEGATIONS2
Nadab was previously incarcerated at SCI Graterford. Because that prison was closing in
July of 2018, inmates and their property were relocated to SCI Phoenix by members of a
Corrections Emergency Response Team (“CERT”), that allegedly included Defendant Goodman
and the John Doe Defendants. (ECF No. 2 at 3-4.)3 Nadab alleges that CERT officers “willfully
and maliciously destroyed and defaced personal property belonging to [him] with nazi and white
supremacist [insignia], and racially themed epithets scribbled on his documents and photographs.
(e.g. swastikas and racial epithets).” (Id. at 4.) Certain of Nadab’s property, including an electric

razor and legal documents, were lost during the move. (Id.; see also id. at 15.) In a grievance he
filed about the loss of his property, Nadab indicated that he would be unable to timely file an
unspecified pleading without the lost legal documents. (Id. at 16.)
Nadab alleges that Defendant Wetzel ordered the transfer of prisoners from SCI Grateford
to SCI Phoenix, and that the Defendants — presumably Wetzel and Ferguson — “failed to train
and supervise” the “subordinate corrections officers” who carried out the move. (Id. at 4.) Nadab
also alleges that members of CERT had tattoos espousing white supremacy, and that the population

2 The following allegations are taken from the Complaint and documents attached to the Complaint.

3 The Court adopts the pagination supplied by the CM/ECF docketing system.
of inmates at SCI Graterford was predominately African American and Latino. (Id. at 5.) He
claims more than 600 “similarly situated inmates” filed claims for property that was lost or
destroyed during the move. (Id. at 6.)
Nadab also alleges that he suffers from severe anxiety and depression that causes him to

experience suicidal tendencies, and that he was denied his medication for eleven days after the
move to SCI Phoenix. (Id. at 4.) Nadab filed complaints regarding the denial of his medication
and “abusive treatment inflicted on him by most of the named Defendants.” (Id. at 6.) He contends
that he was retaliated against in various respects as follows:
• Nadab alleges that he “complained about his mistreatment to the proper prison
officials”, and that Defendant King, an institutional counselor, retaliated against
him by “filing a report of misconduct against him for complaining of mistreatment
by SCI Phoenix staff”4 (id. at 4);

• Nadab alleges that Defendants Gilliam,5 Wanamaker and Thomas “retaliated
against [him] by openly discussing his case information with other staff members
within earshot of inmates, thereby putting [his] life and safety at risk” because
thereafter, Nadab “received threats against his person” from other inmates, who
referred to him as a rapist and child molester, “as late as 10/16/2018” (id.; see also
id. at 25-26 & 28);

• Nadab alleges that on September 4, 2019, Defendant Snyder retaliated against him
by informing Nadab’s cellmate that sharing a cell with Nadab placed him “in
physical danger” (id. at 4; see also id. at 33);

• Nadab alleges that Defendant Snyder retaliated against him for filing a complaint
with Lieutenant Governor Fetterman, apparently on October 4, 2019, “by having
[Nadab] strip searched, cavity searched and kept handcuffed for 7 hours” (id. at 4;
see also id. at 42).6 However, in another portion of the Complaint, Nadab indicates
that he was subjected to a strip and cavity search because he “complain[ed] to
prison authorities.” (Id. at 5.)

4 It is unclear whether the “mistreatment” to which Nadab refers concerns treatment of his property,
the denial of his medication, both, or something else.

5 This Defendant is identified as “Gillian” in the related grievance.
6 Documents attached to the Complaint reflect Nadab’s allegations that Snyder yelled at him and/or
spoke to him disrespectfully on other occasions as well, and his belief that Snyder was out to get him. (ECF
No. 1 at 33-39.)
Nadab’s Complaint is, however, somewhat inconsistent and unclear about the time frame
in which he claims to have been subjected to retaliation. He attached grievances he filed and
responses to those grievances as exhibits to his Complaint, which reflect that he pursued grievances
about various issues from April 23, 2019 through October of 2019. (Id. at 15-42.) Based on those

allegations, Nadab brings claims pursuant to 42 U.S.C. § 1983 for violations of his Fourth, Eighth
and Fourteenth Amendment rights.7 (Id. at 3.) The Court also understands Nadab to be bringing
retaliation claims under the First Amendment, and that he may have intended to bring a claim for
denial of access to the courts, also under the First Amendment. See Holley v. Dep’t of Veteran
Affairs, 165 F.3d 244, 248 (3d Cir. 1999) (“We apply the applicable law, irrespective of whether
a pro se litigant has mentioned it by name.”). Nadab indicates that the events giving rise to his
claims took place between July 11, 2018 and October 4, 2019. (ECF No. 1 at 5.) Nadab seeks
compensatory and punitive damages. (ECF No. 1 at 7.)
II. STANDARD OF REVIEW
Section 1915A requires that the Court “review, before docketing, if feasible or, in any

event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. §
1915A(a). In doing so, the Court must dismiss a complaint or any portion thereof that “is frivolous,
malicious, or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1). 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, in turn, requires the Court to determine

7 To the extent Nadab cited other statutes in his Complaint, the Court cannot discern any legal basis for a
claim under the cited provisions. Accordingly, the Court will focus its analysis on Nadab’s § 1983 claims.
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 Nadab is proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and/or 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).
For the following reasons, Nadab’s Complaint fails to state a claim.
A. Official Capacity Claims
The Complaint reflects that Nadab is suing the Defendants, all of whom are employees of
the Pennsylvania Department of Corrections, in their official and individual capacities. The
Eleventh Amendment bars suits against a State and its agencies in federal court that seek monetary
damages. See Pennhurst State Sch. And Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984); A.W.

v. Jersey City Public Schs., 341 F.3d 234, 238 (3d Cir. 2003). “Because the Commonwealth of
Pennsylvania’s Department of Corrections is a part of the executive department of the
Commonwealth, it shares in the Commonwealth’s Eleventh Amendment immunity.” Lavia v. Pa.
Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000). Suits against state officials acting in their official
capacities are really suits against the employing government agency, and as such, are also barred
by the Eleventh Amendment. A.W., 341 F.3d at 238; see also Hafer v. Melo, 502 U.S. 21, 25
(1991); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989). As the Commonwealth has
not waived its Eleventh Amendment immunity for lawsuits filed in federal court, see 42 Pa. Cons.
Stat. § 8521-22, its officials who are sued in their official capacities are immune from suits filed
in federal court. Accordingly, the Court will dismiss Nadab’s official capacity claims against the
Defendants, with prejudice, because these are essentially claims against the Department of
Corrections barred by the Eleventh Amendment. The Court will address Nadab’s claims against
the Defendants, in their individual capacities, below.

B. Claims Based on the Loss and Destruction of Nadab’s Property
The Court understands Nadab’s Complaint to also raise claims under the First, Fourth,
Eighth, and Fourteenth Amendment against Defendants Wetzel, Ferguson, Goodman, and John
Does 1-20, based on the alleged loss and destruction of his legal and personal property during the
movement of inmates from SCI Graterford to SCI Phoenix.8 For the reasons set forth below,
Nadab has not stated a constitutional claim based on those events.
1. Fourth Amendment Claims
The Court understands Nadab’s reference to the Fourth Amendment as an attempt to assert
a claim based on the seizure, loss, destruction, and defacement of his property. However, he has
not stated a plausible claim under the Fourth Amendment because “prisoners have no legitimate

expectation of privacy . . . and the Fourth Amendment’s prohibition on unreasonable searches [and
seizures] does not apply in prison cells.” Hudson v. Palmer, 468 U.S. 517, 530 (1984); see Doe v.
Delie, 257 F.3d 309, 316 (3d Cir. 2001) (“The defendants correctly assert that prisoners do not
have a Fourth Amendment right to privacy in their cells.” (citing Hudson, 568 U.S. at 529)); see
also Parrish v. Corrections Emergency Response Team, Civ. A. No. 18-4871, 2019 WL 1596337,
at *3 (E.D. Pa. Apr. 12, 2019) (concluding prisoner plaintiff failed to state claim for violation of
Fourth Amendment where plaintiff alleged that CERT members destroyed and defaced personal

8 The allegations against the remaining Defendants are limited to their retaliation against Nadab.
However, the Court does not understand the Complaint to be raising claims against those Defendants based
on what happened to his property.
property during process of transferring plaintiff from SCI Graterford to SCI Phoenix).
Accordingly, Nadab’s Fourth Amendment claim is dismissed, with prejudice.
2. Eighth Amendment Claims
The destruction of Nadab’s personal property and legal documents also does not provide

grounds for a claim under the Eighth Amendment. Conditions of confinement violate the Eighth
Amendment’s prohibition on cruel and unusual punishment if they satisfy two criteria; to wit: (1)
the conditions “must be, objectively, sufficiently serious” such that a “prison official’s act or
omission . . . result[s] in the denial of the minimal civilized measure of life’s necessities.” Farmer
v. Brennan, 511 U.S. 825, 834 (1994) (citations and internal quotation marks omitted); and (2) the
official responsible for the challenged conditions must exhibit a “sufficiently culpable state of
mind,” which “[i]n prison-conditions cases . . . is one of deliberate indifference to inmate health
or safety.” Id. The destruction of property does not equate to a sufficiently serious deprivation
that would give rise to a claim under the Eighth Amendment. See Wongus v. Correctional
Emergency Response Team, 389 F. Supp. 3d 294, 301-02 (E.D. Pa. 2019) (holding that plaintiff’s

allegations “that correctional facility staff violated his Eighth Amendment right to be free from
cruel and unusual punishment by defacing his family photo with a swastika,” while “repugnant
and detrimental to the orderly administration of a prison, and should be cause for serious
disciplinary action against the responsible party, if known[,]” did not “rise to the level of an Eighth
Amendment violation”); Payne v. Duncan, Civ. A. No. 15-1010, 2017 WL 542032, at *9 (M.D.
Pa. Feb. 9, 2017) (“Plaintiff’s claim for destruction of property under the Eighth Amendment does
not constitute a deprivation of life’s necessities.”), aff’d, 692 F. App’x 680 (3d Cir. 2017).
Accordingly, Nadab’s Eighth Amendment claims are dismissed, with prejudice.
3. Fourteenth Amendment Claims
Nadab is also pursuing a Fourteenth Amendment claim based on the loss and/or destruction
of his property. However, there is no basis for a Due Process claim because Pennsylvania law
provides Nadab with an adequate state remedy for the deprivation of his property. See Spencer v.

Bush, 543 F. App’x 209, 213 (3d Cir. 2013) (“‘[A]n unauthorized intentional deprivation
of property by a state employee does not constitute a violation of the procedural requirements of
the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy
for the loss is available.’” (quoting Hudson, 468 U.S. at 533); Shakur v. Coelho, 421 F. App’x 132,
135 (3d Cir. 2011) (per curiam) (explaining that the Pennsylvania Tort Claims Act provides an
adequate remedy for a willful deprivation of property). As Nadab cannot state a plausible basis
for a Due Process claim based on the destruction of his property, this claim is dismissed, with
prejudice.9 See Hernandez v. Corr. Emergency Response Team, 771 F. App’x 143, 145 (3d Cir.
2019) (per curiam) (“Even if the prison grievance procedures could be considered constitutionally
inadequate, Pennsylvania’s state tort law would provide an adequate remedy.”).

Nadab also appears to be raise a race-based Equal Protection claim under the Fourteenth
Amendment grounded on his allegations concerning the CERT officers’ racist tattoos and the
population of the prison. However, nothing in Nadab’s Complaint suggests that he was treated
differently due to his membership in a protected class. Indeed, prisoners do not constitute a
protected class for Fourteenth Amendment purposes, see Myrie v. Comm’r, N.J. Dep’t of Corr.,
267 F.3d 251, 263 (3d Cir. 2001), and Nadab has not alleged that he was treated differently from
others who were similarly situated. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 243 (3d Cir.
2008) (to state an equal protection claim on a “class of one” theory, “a plaintiff must allege that

9 The Complaint does not suggest that Nadab intends to bring claims under state law, but even if he
did, he has not alleged an independent basis for jurisdiction over such claims. See 28 U.S.C. § 1332.
(1) the defendant treated him differently from others similarly situated, (2) the defendant did so
intentionally, and (3) there was no rational basis for the difference in treatment”). Rather, the
Complaint suggests that CERT officers treated all inmates’ property with similar disregard during
the transfer and that similarly situated inmates also suffered property loss. Furthermore, the use

of racial epithets and offensive imagery, though despicable and indefensible, does not amount to
an equal protection violation absent “harassment or some other conduct that deprives the victim of
established rights.” Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999); Mugavero v. Town of
Kearny, Civ. A. No. 12-2439, 2013 WL 3930120, at *3 (D.N.J. July 30, 2013) (“[L]ike offensive
statements, the display or drawing of offensive imagery does not, on its own, amount to a
constitutional violation.”). Accordingly, Nadab’s Equal Protection claims are dismissed.
4. First Amendment Access to the Courts Claim
Liberally construing the Complaint, Nadab appears to assert a First Amendment claim
based on denial of access to the courts arising from the loss of his legal materials. This claim is
not plausible, as alleged in the Complaint. The loss of legal material may constitute a First

Amendment claim based on a denial of access to the courts if a prisoner can assert that the loss
caused an actual injury. See Lewis v. Casey, 518 U.S. 343, 350-53 (1996). In other words, a
prisoner claiming that he was denied access to the courts must allege an injury traceable to the
conditions of which he complains. Diaz v. Holder, 532 F. App’x 61, 63 (3d Cir. 2013) (per curiam)
(affirming dismissal of denial of access claims where plaintiff failed to tie alleged deficiencies in
library to harm in underlying action). In general, an actual injury occurs when a prisoner
demonstrates that a “nonfrivolous” and “arguable” claim was lost because of the denial of access to
the courts. Christopher v. Harbury, 536 U.S. 403, 415 (2002). “[T]he underlying cause of action,
. . . is an element that must be described in the complaint.” Id.
While Nadab asserts that his legal material was lost, he has not alleged that he suffered an
actual injury in the form of a lost nonfrivolous and arguable claim. A grievance attached to his

Complaint reflects Nadab’s allegation that he would not be able to timely file a certain “pleading”
in state court, (id. at 16), but he provides no additional information about this alleged lost claim.
Accordingly, any access to courts claim is not plausible, as alleged, and is dismissed. See Presbury
v. Wetzel, 789 F. App’x 294, 295 (3d Cir. 2020) (per curiam) (affirming the dismissal of access to
courts claim based on the CERT team’s loss of plaintiff’s legal property where plaintiff “did not
allege any facts about the merits of his underlying claim”); Monroe v. Beard, 536 F.3d 198, 206
(3d Cir. 2008) (plaintiffs’ allegations that “defendants confiscated their legal materials” and that
“they lost the opportunity to pursue attacks of their convictions and civil rights claims” without
“specify[ing] facts demonstrating that the claims were nonfrivolous” did not state a claim).
However, the dismissal of Nadab’s First Amendment access to the courts claim is, without

prejudice, to amendment.
5. Supervisory Liability and Failure to Train
Nadab’s claims against Wetzel and Ferguson in their individual capacity appear to be based
on their roles as supervisory officials and/or their alleged failure to train subordinate corrections
officials. There are “two general ways in which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766 F.3d 307,
316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015). First, a
supervisor may be liable if he or she “‘with deliberate indifference to the consequences, established
and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id.
(quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(alteration in original)). “Second, a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in the subordinate’s unconstitutional conduct.” Id.

Additionally, “[u]nder Section 1983, a supervisor may be liable for [his or her] failure to
train or supervise employees. . . .” Whitfield v. City of Philadelphia, 587 F. Supp. 2d 657, 666
(E.D. Pa. 2008). A claim for supervisory liability or liability based upon a failure to train involves
four elements: (1) that an existing policy created an unreasonable risk of constitutional injury; (2)
the supervisor was aware of this unreasonable risk; (3) the supervisor was indifferent to the risk;
and (4) the injury resulted from the policy or practice. See Sample v. Diecks, 885 F.2d 1099, 1118
(3d Cir. 1989). A supervisor may be held liable where a need for “more or different training . . .
is so obvious, and the inadequacy so likely to result in constitutional violations, that the failure to
train . . . can fairly be said to represent official policy,” and the failure to train “actually causes
injury.” City of Canton v. Ohio, 489 U.S. 378, 390 (1989).

Nadab does not allege that Wetzel or Ferguson maintained, with deliberate indifference, a
policy, practice or custom which directly caused constitutional harm, or was personally involved
or acquiesced in the destruction of Nadab’s legal material and other property. Rather, Nadab
asserts in conclusory fashion only that Wetzel and Ferguson failed to train and supervise
subordinate corrections officials. Those bare allegations, without further explanation, are
insufficient to plausibly allege a basis for liability against Wetzel or Ferguson based on the
destruction of inmate property during the move to SCI Phoenix. Accordingly, even if Nadab had
alleged a basis for an underlying constitutional violation, which he has not for the reasons set forth
above, he still has not stated a plausible basis for a claim against Wetzel or Ferguson.
C. Claims Based on the Denial of Access to Medication
The Court reads Nadab’s Complaint to also assert an Eighth Amendment claim for
deliberate indifference to his serious medical needs based on his allegation that he did not receive
medication for his anxiety and depression for eleven days. To state a claim based on the failure to

provide medical treatment, a prisoner must allege facts indicating that prison officials were
deliberately indifferent to his serious medical needs. See Farmer, 511 U.S. at 835. “A medical
need is serious, . . . if it is one that has been diagnosed by a physician as requiring treatment or one
that is so obvious that a lay person would easily recognize the necessity for a doctor’s attention.”
Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal
quotations omitted). Deliberate indifference has been found “where the prison official (1) knows
of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from
receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999). Allegations of medical malpractice and mere disagreement regarding proper medical

treatment are insufficient to establish a constitutional violation. See Spruill v. Gillis, 372 F.3d 218,
235 (3d Cir. 2004). Importantly, “[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs” to be held liable. See Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988); see also Iqbal, 556 U.S. at 676 (explaining that “[b]ecause vicarious liability
is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution”).
Here, Nadab has not alleged with any specificity how any of the named Defendants were
personally involved in, or responsible for, the denial of his medication in the eleven day period
following the move to SCI Phoenix. He has also failed to allege any facts from which it could be
plausibly inferred that the Defendants acted with deliberate indifference to his medical needs.
Accordingly, Nadab’s Eighth Amendment claims for deliberate indifference to his medical needs
are dismissed, without prejudice to amendment.
D. Retaliation Claims

Nadab raises several retaliation claims based on different incidents against Defendants
King, Gilliam, Wanamaker, Thomas, and Snyder. In order to state a plausible First Amendment
retaliation claim, a prisoner must allege that: (1) he engaged in constitutionally protected conduct;
(2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising
his constitutional rights; and (3) the constitutionally protected conduct was “a substantial or
motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001);
see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). A prisoner’s filing of a grievance
constitutes constitutionally protected conduct. SeeWatson v. Rozum, 834 F.3d 417, 422 (3d Cir.
2016). A prisoner’s oral grievances are likewise protected. See Mack v. Warden Loretto FCI, 839
F.3d 286, 297-98 (3d Cir. 2016). The timing of the allegedly retaliatory behavior relative to the

constitutionally protected conduct may establish a causal link between the two for purposes of
establishing motivation. See Watson, 834 F.3d at 422.
Here, although Nadab appears to have been engaged in constitutionally protected conduct
by filing various grievances and complaining about misconduct, the factual contours of his
retaliation claims are unclear. Nadab broadly alleges that he complained of “mistreatment” and it
is clear from exhibits attached to the Complaint that he grieved various issues over a period of
approximately two-and-a-half years. (Id. at 4 & 15-42.) He has identified as the basis for his
claims four apparently unrelated instances of retaliation by five different Defendants—Defendants
King, Gilliam, Wanamaker, Thomas, and Snyder—over a time period from July 2018 through
October 4, 2019.
Without further clarification, the Court cannot discern how each instance of alleged
retaliation was motivated by Nadab’s grievances. That is, it is not clear from the Complaint which

grievance or grievances Nadab claims allegedly motivated each instance of retaliation.
Furthermore, with respect to Nadab’s allegation of a retaliatory strip search, it is unclear whether
he is alleging that the strip search was motivated by complaints to prison authorities or a complaint
he made to the Lieutenant Governor, or whether he is complaining of two different strip searches.
In sum, Nadab has failed to clearly or plausibly state how his engagement in constitutionally
protected activity was a substantial or motivating factor in the Defendants’ treatment of him on
the occasions in question. Nadab’s claims are, therefore, dismissed, without prejudice to
amendment, so that he can clarify the bases for these claims.10
IV. CONCLUSION
For the foregoing reasons, Nadab’s Complaint is dismissed for failure to state a claim,

pursuant to 28 U.S.C. § 1915A(b)(1). The Court concludes that amendment of Nadab’s official
capacity claims, and his Fourth, Eighth, and Fourteenth Amendment claims based on the loss or
destruction of his property would be futile, so those claims are dismissed with prejudice. However,
the Court will permit Nadab to amend the following claims, as it is possible that he could allege
facts sufficient to cure them: (1) his First Amendment claims based on the loss and/or destruction

10 Nadab clearly couches his claims against Defendants Wanamaker, Thomas, Gilliam, King, and
Snyder in terms of retaliation. If he intended to bring other claims against these Defendants based on their
underlying conduct, however, that is not clear from the Complaint as currently drafted. In any event, the
allegations of the Complaint provide little factual detail about the events in question—such as the
misconduct, strip search, cavity search, and threats he received from other inmates—from which the Court
could conclude that these claims are plausible. Nadab may clarify these issues in his amended complaint,
if he chooses to file one.
of his legal property; (2) his Eighth Amendment claims for deliberate indifference to his serious
medical needs; and (3) his retaliation claims. An Order follows, which provides further instruction
about amendment.

NITZA I. QUIÑONES ALEJANDRO
Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399811. Public record. Not legal advice.