TALBERT v. SHAPIRO

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CHARLES TALBERT : CIVIL ACTION

:

v. : NO. 23-2262

:

JOSH SHAPIRO :

MEMORANDUM

KEARNEY, J. July 14, 2023

Incarcerated serial litigant Charles Talbert now sues Pennsylvania Governor Josh Shapiro

challenging decisions made by unnamed state actors in unidentified correctional facilities to hold

him in restricted housing units without providing him mental health treatments or an ability to

obtain release. Congress requires we screen his allegations for merit before issuing summons. Mr.

Talbert raises fair questions about the way our society addresses the mental health concerns of our

incarcerated persons. And these fair questions should be examined including at a policy and

legislative level as warranted. But Mr. Talbert cannot sue the Governor in his official capacity for

damages given the Commonwealth’s immunity under the Eleventh Amendment. And Mr. Talbert

does not come close to pleading facts which would allow us to plausibly infer the Governor (in his

individual capacity) has either personal involvement or supervisory knowledge of Mr. Talbert’s

status or claims. We cannot see how the Governor would have such knowledge. We dismiss all

claims against the Governor in his individual capacity without prejudice to Mr. Talbert possibly

being able to timely plead specific facts allowing us to infer some personal liability of the

Governor.

I. Alleged pro se facts and matters of public record.1

Unnamed officers arrested Charles Talbert for an unidentified crime and detained him in

an unidentified facility on January 8, 2019.2 An unnamed Philadelphia Court of Common Pleas

judge “realized” Mr. Talbert suffered from serious mental illness about a year later.3 The judge

ordered the Commonwealth provide Mr. Talbert with mental health treatment and appropriate

housing the same day.4

But the Commonwealth instead has held Mr. Talbert in the restrictive housing unit in

solitary confinement at unidentified facilities since January 13, 2020 because of his behaviors

related to his mental health conditions.5 Mr. Talbert is not being treated for his mental health

diagnoses while in solitary confinement.6

The Parole Board denies Mr. Talbert’s access to parole hearings.

Mr. Talbert has accrued time in the restrictive housing unit while incarcerated at unnamed

facilities lasting through 2032 “[d]ue to the symptoms of [his] mental health conditions[.]”7 Mr.

Talbert claims he completed his minimum sentence eleven months ago in July 2022, but the Parole

Board denied him a parole hearing because he is in the restrictive housing unit.8

Mr. Talbert claims the Commonwealth’s Parole Board has a process where it considers

whether an incarcerated person will be eligible for parole after reaching a minimum sentence.9 But

if an incarcerated person is placed in the restrictive housing unit, he will not be eligible for a Parole

Board hearing.10 So Mr. Talbert’s “maximum term” is now up in 2026 which is five years

“beyond” his minimum sentence since the Parole Board is not holding a hearing for him in the

restrictive housing unit.11 Mr. Talbert is “being forced to do the remainder of his sentence in

isolation.”12

The Governor ignores Mr. Talbert’s prolonged isolation.

The Department of Justice at some unknown time informed the Commonwealth and its

past and present governors through its investigative report the Department of Corrections keeps

incarcerated persons with serious mental illness in prolonged isolated confinement.13 Governor

Shapiro “[u]pon being elected into the office” at some unknown time “knowingly, intentionally,

and in reckless disregard for the mental health of [incarcerated persons] in prolonged isolated

confinement, failed to take any reasonable, meaningful, [or] appropriate measure to cease, desist,

and correct the [] unconstitutional practice.”14

Mr. Talbert claims Governor Shapiro “[t]hrough his chairmanship of the Executive Board”

and “administrative and policy statements contained in Executive orders, or by Management and

other Directives” establishes policies and practices for all employees and agencies under his

jurisdiction.15 And the Department of Corrections “is an agency under [Governor Shapiro’s]

jurisdiction.”16 So, because of the Department of Justice’s investigation report on the

unconstitutional practice along with “other Federal and International laws[,]” Governor Shapiro

knew he had a duty to rectify the “unconstitutional practice of torturing inmates with serious

mental health conditions, by taking reasonable measures to reform the manner in which they can

be punished . . . for their behavior caused by [] mental health symptoms.”17

But instead Governor Shapiro “turned a blind eye” and “approved[ed] the

[Commonwealth’s] unconstitutional practice without any intent of correction.”18 And Governor

Shapiro failed to take reasonable measures to “cease, desist, and correct” the Commonwealth’s

practice of punishing incarcerated individuals’ mental health behavior by isolating them instead of

providing them court ordered treatment and housing, and he “recklessly” denied them parole.19

Mr. Talbert alleges Governor Shapiro’s “acts and inactions” subjected him to unnecessary and

wanton infliction of psychological pain and suffering; inflicted disproportionate punishment to the

severity of his misdemeanor; affected his serious mental health needs; deprived him of his

protected liberty interests without due process; deprived him equal access to parole hearings; and

aggravated his preexisting hypertension.20

II. Analysis

Mr. Talbert pro se sues Governor Shapiro in his individual and official capacities and

separately under a theory of supervisory liability.21 Mr. Talbert’s Complaint, construed in the most

liberal fashion without speculation, seemingly tries to plead civil rights claims against Governor

Shapiro for depriving him of his due process rights, his Eighth Amendment rights, and his right to

equal protection. Mr. Talbert seeks more than $250,000.00, costs, punitive damages, fees, and

injunctive relief.

We must screen these allegations for merit before issuing summons as Mr. Talbert knows

from his earlier cases.22 Congress in 28 U.S.C. § 1915A requires we screen the incarcerated Mr.

Talbert’s Complaint.23 Congress requires we must “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.”24 On review,

we must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if

the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted;

or … seeks monetary relief from a defendant who is immune from such relief.”25 We apply the

same standard under Federal Rule of Civil Procedure 12(b)(6) when considering whether to

dismiss a complaint for failure to state a claim under section 1915A(b)(1).26 A complaint

containing “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face’” meets the Rule 12(b)(6) standard.27

We accept all facts in Mr. Talbert’s Complaint as true and construe those facts in light most

favorable to him to determine whether he states a claim to relief plausible on its face.28 We are

directed by our Court of Appeals to be “mindful of our obligation to liberally construe a pro se

litigant’s pleadings particularly where the pro se litigant is imprisoned.”29 We are to “remain

flexible” and “apply the relevant legal principle even when the complaint has failed to name it.”30

But “pro se litigants still must allege sufficient facts in their complaints to support a claim” and

“cannot flout procedural rules—they must abide by the same rules that apply to all other

litigants.”31

A. We dismiss damages claims against Governor Shapiro in his official capacity.

Mr. Talbert sues Governor Shapiro for violating his civil rights in both his individual and

official capacities.32 Mr. Talbert claims Governor Shapiro failed to take reasonable measures to

“cease, desist, and correct” the Commonwealth’s practice of punishing incarcerated individuals’

mental health behavior by isolating them instead of providing them with court ordered treatment

and housing.33 And he “recklessly” denied them parole.34

Mr. Talbert cannot sue Governor Shapiro for damages in his official capacity. “Absent

consent by the State, the Eleventh Amendment provides the [Governor] protection from federal

suit in [his] official capacit[y].”35 As our Court of Appeals has held “the Commonwealth of

Pennsylvania has expressly withheld its consent to be sued” so “the governors enjoy Eleventh

Amendment Immunity from suit for acts taken in their official capacities.”36

We dismiss all damages claims against Governor Shapiro in his official capacity with

prejudice.37

B. We dismiss Mr. Talbert’s individual capacity claims against Governor

Shapiro without prejudice.

Mr. Talbert sues Governor Shapiro in his individual capacity for violating his due process

rights under the Fourteenth Amendment, the Eighth Amendment’s ban on cruel and unusual

punishments, and his right to equal protection of the laws under section 1983.38 “Individual

capacity claims under section 1983 ‘seek to recover money from a government official, as an

individual, for acts performed under color of state law.’”39 “A[n individual government] defendant

in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot

be predicated solely on the operation of respondeat superior. Personal involvement can be shown

through allegations of personal direction or of actual knowledge and acquiescence.”40

1. We dismiss Mr. Talbert’s due process claim.

Mr. Talbert sues Governor Shapiro for violating his due process rights. Mr. Talbert claims

he had a protected liberty interest to receive mental health treatment and appropriate housing, but

“Defendants” established the “practice of punishing inmates for the symptoms of the mental health

disorders” by placing them in solitary confinement.41 He claims Governor Shapiro “caused [him]

to be deprived of meaningful process by failing to cease, desist, and correct” the “unconstitutional

practice.”42

Under the Due Process clause of the Fourteenth Amendment, no State shall “deprive any

person of life, liberty, or property, without due process of law[.]”43 The Fourteenth Amendment’s

Due Process clause protects both substantive and procedural due process rights.44 The relevant

inquiry in determining whether government conduct violates substantive due process “is whether

the behavior of the government officer is so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.”45 Mr. Talbert must establish “the loss of a protected property

interest without adequate process” to succeed on a Fourteenth Amendment procedural due process

claim.46

Mr. Talbert appears to bring a procedural due process claim against Governor Shapiro as

he claims Governor Shapiro caused him to be deprived of “meaningful process” by failing to

“cease, desist, and correct” his placement in the restrictive housing unit.47 “[D]ue process of law”

essentially requires the government provide a person notice and opportunity to be heard in

connection with the deprivation of life, liberty, or property.48 “The core of due process is the right

to notice and a meaningful opportunity to be heard.”49 We must first determine whether Mr. Talbert

has a liberty interest protected by the “liberty or property” language of the Fourteenth

Amendment.50 If so, we determine what process is due to protect the interest and whether Governor

Shapiro, in his personal capacity, violated the process due.51

Our Supreme Court has held “segregated confinement d[oes] not present the type of

atypical, significant deprivation in which a State might conceivably create a liberty interest.”52

And a transfer from one level of custody in a prison to another level normally does not affect a

constitutionally protected interest.53 But a liberty interest may arise when a prison’s actions impose

an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison

life.”54 To determine whether disciplinary segregation imposes such a hardship, we must consider:

“(1) the duration of the disciplinary confinement; and (2) whether the conditions of confinement

were significantly more restrictive than those imposed upon other inmates in solitary

confinement.”55

Our Court of Appeals in Shoats v. Horn found long term solitary confinement can impose

a “significant hardship on the inmate in relation to the ordinary incidents of prison life.”56 Mr.

Shoats had been confined in “virtual isolation for almost eight years.”57 Our Court of Appeals held

eight years in administrative custody, with no prospect of immediate release in the near future, is

“atypical” and Mr. Shoats had a protected liberty interest adversely affected by his indefinite

segregation.58 But our Court of Appeals rejected Mr. Shoats’s argument he had been deprived of

the process due under the Fourteenth Amendment because “periodic reviews conducted by the

[program review committee] . . . comport with the minimum constitutional standards for due

process.”59

Mr. Talbert’s alleged placement in the restrictive housing unit for three and a half years

where he claims he has been kept in solitary confinement may implicate a protected liberty

interest.60 But he does not plead how the state actors denied him procedures to challenge his

placement in the restrictive housing unit. He only pleads Governor Shapiro “caused” him “to be

deprived of meaningful process by failing to cease, desist, and correct the [] unconstitutional

practice.”61 This is not enough. Mr. Talbert does not plead Governor Shapiro individually denied

him of a procedure which he must do to establish civil rights liability.62 Personal involvement must

be alleged.

Mr. Talbert also seemingly tries to allege Governor Shapiro denied him due process

because he is not eligible to be heard by the Parole Board while in the restrictive housing unit.63

But “[t]he Board of Probation and Parole, not the [Department of Corrections], has exclusive

authority over parole supervision.”64 So Governor Shapiro had no involvement in Mr. Talbert’s

supervision regarding parole unless Mr. Talbert pleads facts allowing us to infer Governor

Shapiro’s direct involvement.

Mr. Talbert does not plead facts allowing us to infer Governor Shapiro personally denied

him of due process. We dismiss Mr. Talbert’s due process claim against Governor Shapiro in his

individual capacity without prejudice.

2. Mr. Talbert does not state an Eighth Amendment claim against Governor

Shapiro.

Mr. Talbert alleges his placement in the restrictive housing unit amounted to cruel and

unusual punishment. He claims Governor Shapiro’s “practice” caused him “to be denied treatment

while in solitary confinement for over [three and a half] consecutive years.”65 He also claims he

suffered “psychological and physical pain” in the restrictive housing unit.66 But Mr. Talbert fails

to sufficiently plead facts Governor Shapiro had personal involvement in his alleged punishment

or even knew of his placement in the restrictive housing unit.

The Eighth Amendment outlaws cruel and unusual “punishments.”67 The Eighth

Amendment prohibits punishments which violate civilized standards and concepts of human

decency.68 “The relevant Eighth Amendment inquiry is whether [Mr. Talbert] has been deprived

of the ‘minimal civilized measure of life’s necessities.’”69 “To sufficiently allege prison officials

violated his Eighth Amendment rights by imposing inhumane conditions, [Mr. Talbert’s]

complaint ha[s] to allege facts showing (1) the deprivation he endured was ‘sufficiently serious,’

and (2) the prison officials had ‘a sufficiently culpable state of mind.’”70 Mr. Talbert must show a

substantial risk of serious harm to adequately plead the deprivation element.71 The second element

is subjective and requires Mr. Talbert to sufficiently plead Governor Shapiro acted with deliberate

indifference.72

Deliberate indifference is “effectively alleged where an [incarcerated person] shows

officials knew of, but disregarded, [] the prison conditions posed an excessive risk to [incarcerated

person’s] health and safety.”73 There must be a deliberate and unnecessary infliction of pain done

knowingly to constitute cruel and unusual punishment.74 Prison officials have a duty to protect

incarcerated persons from violence at the hands of others.75 But they also have a duty to provide

appropriate mental health care as mandated by the Eighth Amendment.76

“[D]etention in a [restrictive housing unit], without more, generally is insufficient to

establish an Eighth Amendment violation.”77 But our Court of Appeals has “repeatedly recognized

the severe effects of prolonged solitary confinement[.]”78 And our Court of Appeals has

acknowledged “the robust body of legal and scientific authority recognizing the devastating mental

health consequences caused by long-term isolation” and the “growing consensus” solitary

confinement conditions can cause “severe and traumatic psychological damage” which in turn

leads to high rates of self-harm or suicide in inmates who had spent time in solitary confinement.79

Against this backdrop, our Court of Appeals in Clark v. Coupe held an incarcerated person alleged

facts he endured a “sufficiently serious” deprivation where prison officials knew he suffered a

serious mental illness but kept him in complete isolation for seven months.80 And our Court of

Appeals also found the incarcerated person alleged the prison official “possessed a culpable state

of mind” because, among other things, the alleged the official had been “well aware” the

incarcerated person suffered a serious mental illness given he had been treated for schizophrenia

and bipolar disorder at the prison for over ten years.81

Mr. Talbert alleges he has been in solitary confinement in the restrictive housing unit for

over three years “for behavior related to the symptoms of his mental health conditions.”82 He

claims this “punishment” caused him “to suffer from unnecessary and wanton psychological and

physical pain[.]”83 But Mr. Talbert pleads no facts showing Governor Shapiro personally subjected

him to cruel and unusual punishment with a deliberate indifference towards his well-being. Mr.

Talbert does not plead Governor Shapiro in his personal capacity deprived Mr. Talbert of mental

health treatment. Mr. Talbert does not plead Governor Shapiro placed him in the restrictive

housing unit. Mr. Talbert pleads no facts indicating Governor Shapiro personally caused him to

suffer serious consequences. Unlike in Clark v. Coupe, where the incarcerated person alleged the

official had been aware the incarcerated person suffered a serious mental illness, Mr. Talbert pleads

no facts showing Governor Shapiro knows of his mental illness or consciously disregarded a risk

to Mr. Talbert’s mental health treatment.

Mr. Talbert fails to sufficiently plead Governor Shapiro had any personal involvement in

his alleged Eighth Amendment violations. We dismiss Mr. Talbert’s Eighth Amendment claims

against Governor Shapiro without prejudice.

3. Mr. Talbert fails to state an equal protection claim against Governor Shapiro.

Mr. Talbert sues Governor Shapiro in his individual capacity for violating his rights under

the equal protection clause of the Fourteenth Amendment. Mr. Talbert claims Governor Shapiro’s

“practice” caused him “and others with mental health disorders” to be discriminated against

because of their “symptomatic behavior[] by being kept in prolonged isolated confinement and

denied parole hearings like others similarly situated with minimum sentences.”84 Mr. Talbert

alleges “no rational basis for the difference in treatment[.]”85 But Mr. Talbert provides no facts

about other incarcerated persons’ treatments. Mr. Talbert also fails to provide facts about Governor

Shapiro’s personal involvement with Mr. Talbert’s placement in the restrictive housing unit.

Under the equal protection clause, no state shall “deny to any person within its jurisdiction

the equal protection of the laws.”86 “This is not a command that all persons be treated alike but,

rather, ‘a direction that all persons similarly situated should be treated alike.’”87 To state a claim

under the equal protection clause, Mr. Talbert must show “he was treated differently than other

similarly situated [incarcerated persons], and that this different treatment was the result of

intentional discrimination based on his membership in a protected class[.]”88 But “[t]he mentally

ill are not a recognized protected class for equal protection purposes.”89

Mr. Talbert may raise a “class of one” equal protection claim where he shows he alone

“has been intentionally treated differently from others similarly situated and that there is no

rational basis for the difference[.]”90 To maintain such a claim Mr. Talbert must allege: “(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.”91 Our Court of

Appeals held in Glenn v. Barua and in Hill v. Borough of Kutztown claimants must identify

similarly situated individuals being treated differently.92 And when alleging the existence of

similarly situated individuals, Mr. Talbert “cannot use . . . ‘conclusory, boilerplate language’ to

show that he may be entitled to relief,” and “bald assertion[s] that other[s] . . . were treated in a

dissimilar manner” will not suffice.93

Mr. Talbert does not plead disparate treatment compared to other specified incarcerated

persons, but instead pleads the conditions of his treatment impacted him and “others.”94 Mr.

Talbert does not allege others displaying his same behavior do not receive the same treatment. Mr.

Mr. Talbert claims his treatment is “clearly irrational” but he “cannot use conclusory, boilerplate

language to show that he may be entitled to relief[.]”95

We dismiss Mr. Talbert’s equal protection claim without prejudice if Mr. Talbert can plead

the necessary elements in good faith.

C. Mr. Talbert’s claims against Governor Shapiro as a “supervisor” also fail.

Mr. Talbert also does not state a claim to the extent we can liberally construe his allegations

as seeking to impose liability upon Governor Shapiro under a “supervisory liability” theory. Mr.

Talbert does not allege Governor Shapiro is the supervisor of a correctional officer at the unnamed

facility where the Department of Corrections incarcerates Mr. Talbert. Mr. Talbert instead pleads

Governor Shapiro “establishes policies and practices for all employees and agencies under his

jurisdiction” with the Department of Corrections being “an agency” under his jurisdiction.96 And

Governor Shapiro “knew, or had reason to know” the Commonwealth, Department of Corrections,

and previous governors “established and maintained an unconstitutional practice of punishing

people for the symptoms of their mental illness in prolonged isolated confinement.”97

There are two theories of supervisory liability under section 1983.98 The first theory allows

section 1983 liability if the supervisor “with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the] constitutional

harm.”99 Under the first theory, Mr. Talbert must show: (1) “the policy or procedures in effect at

the time of the alleged injury created an unreasonable risk of a constitutional violation”; (2) “the

defendant-official was aware that the policy created an unreasonable risk”; (3) “the defendant was

indifferent to that risk”; and (4) “the constitutional injury was caused by the failure to implement

the supervisory procedure.”100 The second theory relates to whether the supervisor “participated

in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had

knowledge of an acquiesced in his subordinates’ violations.”101 But “liability may not be based

solely on a theory of respondeat superior; the official must have had some personal involvement

in the events giving rise to the cause of action.”102

We are guided by Judge Arbuckle’s reasoned decision in Nottingham v. Shapiro where Mr.

Nottingham sued Governor Shapiro—through his supervisory role as the attorney general at the

time—under section 1983 for alleged police, prosecutorial, and judicial misconduct.103 Judge

Arbuckle found Mr. Nottingham failed to state a claim because he did not show Attorney General

Shapiro knew, or even had a reason to know, about the alleged harms he suffered.104 And Mr.

Nottingham failed to allege Attorney General Shapiro had responsibility over the actions of police,

prosecutors, and local judges, nor could he, as the attorney general does not supervise and oversee

the work of local county prosecutors, local police, state police, or judges.105 So Judge Arbuckle

concluded a complaint which “asks [him] to infer [] [Attorney General] Shapiro might somehow

be involved in any part of this thirty-two year pattern of misconduct solely because of his

government position is not reasonable.”106

Mr. Talbert, like Mr. Nottingham, fails to allege Governor Shapiro has responsibility over

the unnamed correctional officers, or anyone at the unnamed facilities, who placed Mr. Talbert in

the restrictive housing unit. And Mr. Talbert fails to plead Governor Shapiro acted with deliberate

indifference and maintained a policy, practice or custom which directly caused Mr. Talbert to

remain in prolonged isolation in the restrictive housing unit under the first theory of supervisory

liability. Beyond claiming Governor Shapiro “knew, or had reason to know” the Commonwealth,

Department of Corrections, and previous governors maintained an unconstitutional practices of

placing incarcerated individuals in insolation as punishment for symptoms of their mental illness,

Mr. Talbert does not plead facts to support these conclusions.107 We must accept Mr. Talbert’s

factual allegations as true.108 But we are not obligated to credit his legal conclusions.109

Mr. Talbert does not plead Governor Shapiro established and maintained a policy, practice

or custom which led to Mr. Talbert’s placement in the restrictive housing unit. Mr. Talbert instead

alleges Governor Shapiro “turned a blind eye” to the “unconstitutional practice of torturing

[incarcerated persons] with serious mental health conditions” and thus “approv[ed] the

[Commonwealth’s] unconstitutional practice without any intent of correction.”110 And “[a]lthough

a supervisor cannot encourage constitutional violations, a supervising public official has [no]

affirmative constitutional duty to supervise and discipline so as to prevent violations of

constitutional rights by his or her subordinates.”111 So alleging Governor Shapiro “turned a blind

eye” to the unconstitutional practices of the Commonwealth and Department of Correction is not

sufficient to impose supervisor liability.112

And we cannot even assume Governor Shapiro knew of Mr. Talbert’s placement in the

restrictive housing unit. As Judge Arbuckle found in Nottingham, we cannot infer Governor

Shapiro “might somehow be involved” in Mr. Talbert’s placement in the restrictive housing unit

“solely because of his government position.”113

Mr. Talbert does not plead facts beyond his conclusory allegations Governor Shapiro

maintained a policy, practice or custom under the first theory of supervisory liability. And he

pleads no facts Governor Shapiro directly participated in violating his rights, directed others to

violate his rights, or knew of this violation under the second theory of supervisor liability. We

cannot allow this claim to move forward on broad speculation alone.114 The only facts we can

glean are unknown prison officials housed him in solitary confinement and he suffers an

unspecified mental health disability. Mr. Talbert does not attribute personal involvement of

Governor Shapiro in violating his constitutional rights.115

We dismiss Mr. Talbert’s claims based on a theory of supervisory liability without

prejudice.

III. Conclusion

Mr. Talbert cannot sue Governor Shapiro in his official capacity. We dismiss all claims

brought against Governor Shapiro in his official capacity with prejudice. We dismiss Mr. Talbert’s

civil rights claims against Governor Shapiro in his individual capacity and brought under a theory

of supervisory liability for depriving Mr. Talbert of his due process rights, violating his Eighth

Amendment rights, and violating his rights to equal protection without prejudice. We allow Mr.

Talbert to timely amend his Complaint if he can allege facts consistent with Federal Rule of Civil

Procedure 11. We remind Mr. Talbert “[a] defendant in a civil rights action must have personal

involvement in the alleged wrongs” to be liable.116

1 We may take judicial notice of publicly available records. See Buck v. Hampton Twp. Sch. Dist.,

452 F.3d 256, 260 (3d Cir. 2006) (courts may consider “matters of public record” in determining

whether a pleading has stated a claim).

2 ECF 1 ¶ 8; see also Com. v. Talbert, CP-51-CR-0008348-2018 (Phila. Cnty. Com. Pl.).

3 ECF 1 ¶ 9.

4 Id.

5 Id. ¶ 10. We know Mr. Talbert is now being held at SCI Phoenix because of his current mailing

address. Id. at 9.

6 Id. ¶ 11.

7 Id. ¶ 16.

8 Id. ¶ 18.

9 Id. ¶ 14.

10 Id. ¶ 15.

11 Id. ¶ 16.

12 Id.

13 Id. ¶ 4. Mr. Talbert filed the Department of Justice’s investigative report as an exhibit at the

same time he filed his Complaint. The report is addressed to Governor Tom Corbett, not Governor

Shapiro. See ECF 2.

14 ECF 1 ¶ 5.

15 Id. ¶ 6.

16 Id. ¶ 7.

17 Id. ¶ 12.

18 Id. ¶ 13.

19 Id. ¶ 17.

20 Id. ¶ 19.

21 Id. ¶¶ 3, 20–23.

22 We detailed Mr. Talbert’s history of filing complaints while in prison and his status as a “three-

strike” plaintiff in our April 5, 2019 memorandum in Talbert v. Carney. Nos. 19-1340, 19-1341,

2019 WL 1516940, at *3 n.19 (E.D. Pa. Apr. 5, 2019). Mr. Talbert filed “at least fifty-four

lawsuits” in our District by April 2019. Id. at *3. He had “at least four” pro se complaints dismissed

for being frivolous or failing to state a claim from 2013 to 2016. Id. We reviewed his April 2019

complaint in Talbert v. Carney under Section 1915(g), and required Mr. Talbert plead imminent

danger of serious physical injury. Id. We declined his motion to proceed in forma pauperis because

he did not plead imminent danger. Id.

23 Shane v. Fauver, 213 F.3d 113, 116 n.2 (3d Cir. 2000).

24 28 U.S.C. § 1915A(a).

25 28 U.S.C. § 1915A(b).

26 Turner v. District Att’y Phila. Cnty., No. 22-491, 2022 WL 1568395, at *3 (E.D. Pa. May 18,

2022) (citing Neal v. Pa. Bd. of Prob. & Parole, No. 96-7923, 1997 WL 338838, at *1 (E.D. Pa.

June 19, 1997); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).

27 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

28 Elansari v. Univ. of Pennsylvania, 779 F. App’x 1006, 1008 (3d Cir. 2019) (citing Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)) (quoting Fleisher v. Standard Ins. Co., 679 F.3d 116,

120 (3d Cir. 2012)).

29 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Higgs v. Att’y Gen., 655 F.3d 333,

339 (3d Cir. 2011) and citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir.

2013)) (internal quotations omitted).

30 Yogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting Mala, 704 F.3d at 244).

31 Id. (quoting Mala, 704 F.3d at 245) (italics added).

32 ECF 1 ¶ 3.

33 Id. ¶ 17.

34 Id.

35 Ulrich v. Corbett, 614 F. App’x 572, 573 (3d Cir. 2015) (citing MCI Telecomm. Corp. v. Bell

Atl. Pa., 271 F.3d 491, 503–04 (3d Cir. 2001)).

36 Id. at 573–574; see also Hampton v. Wetzel, No. 15-897, 2015 WL 2405062, at *2 (M.D. Pa.

May 20, 2015) (“[T]he former governor and governor enjoy Eleventh Amendment immunity from

suit for acts taken in their official capacities.”).

37 Although the Eleventh Amendment does not bar claims against the Commonwealth seeking

prospective injunctive relief, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996), Mr.

Talbert has not alleged a plausible claim seeking prospective injunctive relief against Governor

Shapiro for the same reasons he has not alleged a claim. He has not plead a basis to find a

reasonable likelihood of success on his injunction claim.

38 ECF 1.

39 Geiger v. C/O Curry et al., No. 21-2244, 2021 WL 4453628, at *5 (E.D. Pa. Sept. 29, 2021)

(quoting Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988)).

40 Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988).

41 ECF 1 ¶ 25.

42 Id. ¶ 26.

43 U.S. Const. amend. XIV.

44 United States v. Salerno, 481 U.S. 739, 746 (1987).

45 Kaucher v. Cnty. of Bucks, 455 F.3d 418, 425 (3d Cir. 2006) (quoting Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998)).

46 Sherrill v. City of Hoboken, No. 20-1251, 2021 WL 4473392, at *1 (3d Cir. Sept. 30, 2021)

(citing Schmidt v. Creedon, 639 F.3d 587, 595 (3d Cir. 2011)).

47 ECF 1 ¶ 26.

48 Zappan v. Pennsylvania Bd. of Probation and Parole, 152 F. App’x 211, 220 (3d Cir. 2005)

(“The essential requirements of any procedural due process claim are notice and the opportunity

to be heard.”).

49 LaChance v. Erickson, 522 U.S. 262, 266 (1998).

50 Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000).

51 Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

52 Sandin v. Conner, 515 U.S. 472, 486 (1995).

53 Washington-El v. Beard, No. 08-1688, 2013 WL 1314528, at *7 (W.D. Pa. Feb. 26, 2013),

report and recommendation adopted, No. 08-1688, 2013 WL 1314521 (W.D. Pa. Mar. 28, 2013),

aff’d, 562 F. App’x 61 (3d Cir. 2014) (citing Wilkinson v. Austin, 545 U.S. 209, 125 (2005)) (no

liberty interest “in avoiding transfer to more adverse conditions of confinement”)).

54 Shoats, 213 F.3d at 143 (internal quotation omitted).

55 Deans v. Floyd, No. 21-00362, 2023 WL 3729300, at *12 (W.D. Pa. May 30, 2023) (citing

Sandin v. Conner, 515 U.S. 472, 486 (1995)).

56 Shoats, 213 F.3d at 143

57 Id. at 144.

58 Id.

59 Id. at 147; see also Bowen v. Ryan, 248 F. App’x 302, 304 (3d Cir. 2007) (holding the

incarcerated man had been given an initial opportunity to be heard upon confinement and again on

period reviews as sufficient to satisfy due process).

60 Shoats, 213 F.3d at 143–44.

61 ECF 1 ¶ 26.

62 Rode, 845 F.2d at 1207.

63 ECF 1 ¶¶ 16–17.

64 Powell v. Weiss, 757 F.3d 338, 346 (3d Cir. 2014).

65 ECF 1 ¶ 28.

66 Id. ¶ 29.

67 Farmer v. Brennan, 511 U.S. 825, 837 (1994).

68 Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2022) (quoting Thomas v. Tice, 948 F.3d 133, 138

(3d Cir. 2020)).

69 Thomas v. Rosemeyer, 199 F. App’x 195, 198 (3d Cir. 2006).

70 Clark, 55 F.4th at 179 (citing Thomas, 948 F.3d at 138).

71 Id.

72 Id. (citing Farmer, 511 U.S. at 834). Mr. Talbert also attempts to bring a separate “Deliberate

Indifference” claim. Id. ¶¶ 31–32. But deliberate indifference is not a separate claim, but an

element of his Eighth Amendment claim.

73 Clark, 55 F.4th at 179 (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)).

74 Id. at 183.

75 Id.

76 Disability Rights Montana v. Batista, 930 F.3d 1090, 1097 (9th Cir. 2019) (quoting Brown v.

Plata, 563 U.S. 493, 510 (2011)).

77 Fleming v. Pennsylvania Dep’t of Corr., No. 19-00113, 2020 WL 3574634, at *10 (W.D. Pa.

June 30, 2020) (citing Cook v. Corbett, No. 14-5895, 2015 WL 4111692, *6 (E.D. Pa. July 8,

2015).

78 Porter v. Pennsylvania Dep’t of Corr., 974 F.3d 431, 442 (3d Cir. 2020) (citing Shoats, 213 F.3d

at 144; Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017)).

79 Clark, 55 F.4th at 179.

80 Id. at 180.

81 Id.

82 ECF 1 ¶ 10.

83 Id. ¶ 29.

84 Id. ¶ 33.

85 Id. ¶ 34.

86 U.S. Const. Amend. XIV, § 1.

87 Deans v. Floyd, 21-00362, 2023 WL 3729300, at *6 (W.D. Pa. May 30, 2023) (quoting Artway

v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996)).

88 Brown v. Tice, 20-00698, 2022 WL 1158611, at *4 (M.D. Pa. Apr. 19, 2022) (quoting Mack v.

Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016)).

89 Brandt v. Cirillo, No. 22-3752, 2023 WL 157431, at *13 (D.N.J. Jan. 10, 2023) (citing Cospito

v. Heckler, 742 F.2d 72, 83 (3d Cir. 1984) (“[M]ental illness has not been recognized as a suspect

class . . . under the equal protection clause.”); Disability Rights N.J., Inc. v. Velez, No. 10–3950,

2011 WL 2976849, at *15 (D.N.J. Jul. 20, 2011) (“[I]ndividuals with mental illness have never

been held a ‘suspect class.’”)).

90 Id. (internal citations omitted).

91 Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

92 Glenn v. Barua, 252 F. App’x 493, 500 (3d Cir. 2007) (quoting Hill, 455 F.2d 239).

93 Brandt, 2023 WL 157431, at *13 (internal citations omitted).

94 ECF 1 ¶ 33.

95 Brandt, 2023 WL 157431, at *13 (internal citations omitted) (cleaned up).

96 ECF 1 ¶¶ 6–7.

97 Id. ¶ 20.

98 Nottingham v. Shapiro, No. 21-396, 2021 WL 9166614, at *4 (M.D. Pa. Oct. 5, 2021), report

and recommendation adopted, No. 21-396, 2021 WL 9166613 (M.D. Pa. Nov. 19, 2021), aff’d

sub nom. Nottingham v. Att’y Gen. Pennsylvania, No. 21-3298, 2021 WL 9166614 (3d Cir. July

27, 2022).

99 Id. (citing A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.2d 572, 586 (3d Cir. 2004)).

100 Beers v. Northumberland Cnty., No. 22-01101, 2023 WL 2469905, at *4 (M.D. Pa. Mar. 10,

2023) (internal citations omitted).

101 Nottingham, 2021 WL 9166614, at *4 (internal citations omitted).

102 Banegas v. Hampton, No. 8-5348, 2009 WL 1098845, at *4 (E.D. Pa. Apr. 22, 2009) (citing

Rode, 845 F.2d at 1207).

103 Nottingham, 2021 WL 9166614, at *5.

104 Id.

105 Id.

106 Id.

107 ECF 1 ¶¶ 20–23.

108 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

109 Id.

110 ECF 1 ¶¶ 12–13.

111 Mack v. Clark, No. 21-00004, 2022 WL 2669510, at *5 (W.D. Pa. July 11, 2022) (quoting

Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120

(3d Cir. 1990)) (cleaned up).

112 Washington v. Wolf, No. 16-01714, 2017 WL 9487089, at *5 (W.D. Pa. Oct. 26, 2017), report

and recommendation adopted as modified, No. 16-01714, 2017 WL 5589089 (W.D. Pa. Nov. 21,

2017).

113 Nottingham, 2021 WL 9166614, at *5.

114 Id.

115 Mable v. Wetzel, No. 20-01771, 2022 WL 1620079, at *7 (W.D. Pa. May 23, 2022).

116 Rode, 845 F.2d at 1207.