Nifas v. Serrano

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RASHEED NIFAS, :

Plaintiff : No. 1:19-cv-1646

:

v. : (Judge Kane)

:

CO.1. SERRANO, et al., :

Defendants :

MEMORANDUM

On September 4, 2019, pro se Plaintiff Rasheed Nifas (“Plaintiff”), who is currently

incarcerated at the State Correctional Institution in Coal Township, Pennsylvania (“SCI Coal

Township”), initiated the above-captioned action by filing a complaint pursuant to 42 U.S.C.

§ 1983 in the Court of Common Pleas for Northumberland County, Pennsylvania. (Doc. No. 1-

2.) Plaintiff named CO Serrano (“Serrano”), CO Behney (“Behney”), CO Biladeau

(“Biladeau”), CO Morris (“Morris”), Deputy Luscavage (“Luscavage”), and Hearing Examiner

Walters (“Walters”) as Defendants. (Id. at 5.) Defendants removed the above-captioned case to

this Court on September 23, 2019. (Doc. No. 1.) Presently before the Court is Defendants’

motion to dismiss Plaintiff’s complaint. (Doc. No. 9.) Plaintiff filed his brief in opposition on

December 10, 2019. (Doc. No. 11.) Defendants filed their reply brief on December 24, 2019.

(Doc. No. 13.) On January 14, 2020, Plaintiff filed a motion for leave to file a sur-reply (Doc.

No. 14) and proposed sur-reply (Doc. No. 14-1). The Court will grant his motion for leave to file

a sur-reply and consider it below in its analysis of Defendants’ motion to dismiss. The motion to

dismiss, therefore, is ripe for disposition.

I. BACKGROUND

Plaintiff alleges that on August 26, 2018, while he was in the medication line at SCI Coal

Township, Defendant Biladeau mentioned that she had read on the institutional computer that

Plaintiff is a “serial rapist.” (Doc. No. 1-2 at 7, 17.) That same day, Plaintiff submitted a

grievance alleging that Defendant Biladeau had committed slander against him by making that

statement in the presence of other inmates. (Id. at 17.) Plaintiff’s grievance was denied on

September 11, 2018. (Id. at 18.) His subsequent appeals of the grievance were also denied. (Id.

at 19-22.)

Plaintiff further alleges that on August 28, 2018, Defendant Behney told Plaintiff that he

and Defendant Biladeau had read on the institutional computer that Plaintiff has been found

guilty of several assaults on female correctional staff members. (Id. at 7, 26.) Plaintiff submitted

a grievance that same day, alleging that Defendant Behney had committed slander, libel, and

defamation of character. (Id. at 26.) Plaintiff’s grievance was denied at all levels of review. (Id.

at 27-31.)

Plaintiff further maintains that on June 24, 2019, Defendant Luscavage stated that in the

past, female staff have noted that Plaintiff “has engaged or attempted to engage with them in a

negative or inappropriate manner.” (Id. at 8, 35.) Plaintiff filed a grievance that same day,

alleging that Defendant Luscavage had committed slander, libel, and defamation of character.

(Id. at 35.) Plaintiff’s grievance was denied at all levels of review. (Id. at 36-40.)

Plaintiff alleges that on June 28, 2019, he asked Defendant Serrano for a grievance form.

(Id. at 8.) Defendant Serrano “claim[ed] that they did not have grievances.” (Id.) Later that

morning, while in the law library, Plaintiff was called back to the unit block. (Id.) There, he

learned that Defendant Serrano had issued a misconduct report against him. (Id.) The

misconduct report charged Plaintiff with using abusive, obscene, or inappropriate language. (Id.

at 48.) Plaintiff maintains that Defendant Serrano falsified the misconduct report in retaliation

for his request for a grievance form and for his “exercising of protective conduct against Behney

and Biladeau.” (Id. at 8.) He also alleges that Defendant Walters “knowingly signed a falsified

misconduct report.” (Id. at 9.)

On July 3, 2019, Defendant Walters found Plaintiff guilty of using abusive, obscene, or

inappropriate language. (Id. at 8, 50.) She imposed thirty (30) days of disciplinary confinement

upon Plaintiff as a sanction. (Id. at 50.) Plaintiff alleges that Defendant Walters found him

guilty without allowing him provide a statement regarding his version of the incident. (Id. at 8-

9.) Plaintiff’s subsequent appeals of Defendant Walters’ decision were denied. (Id. at 51-56.)

Based upon the foregoing, Plaintiff alleges that Defendants Serrano, Behney, Biladeau,

and Luscavage retaliated against him, in violation of the First Amendment, for engaging in

protected conduct. (Id. at 9-10.) Plaintiff further alleges that Defendants Walters and Morris

violated his procedural due process rights under the Fourteenth Amendment. (Id. at 10-11.) As

relief, Plaintiff seeks a declaratory judgment as well as compensatory, punitive, and nominal

damages. (Id. at 11-12.)

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Federal notice and pleading rules require the complaint to provide the defendant notice of

the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224,

232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a

plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled

to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure

12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.

12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts as true all

factual allegations in the complaint and all reasonable inferences that can be drawn from them,

viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims

are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the

defendant is liable for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” See Iqbal, 556 U.S. at 679 (citing Fed. R.

Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a district court must

take when reviewing a 12(b)(6) motion: (1) identify the elements that a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint that are “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and quotation

marks omitted). The Third Circuit has specified that in ruling on a Rule 12(b)(6) motion to

dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached

to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.” See Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful that a document

filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A

pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than

formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Section 1983 Standard

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means through which “to

vindicate violations of federal law committed by state actors.” See Pappas v. City of Lebanon,

331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85

(2002)). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the

conduct complained of was committed by persons acting under color of state law; and (2) the

conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United

States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West

v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

Defendants seek dismissal of Plaintiff’s complaint because: (1) his sanction of thirty (30)

days of segregated confinement is not actionable under the Fourteenth Amendment’s Due

Process Clause; (2) Plaintiff has failed to allege plausible claims of retaliation against

Defendants Serrano, Behney, Biladeau, and Luscavage; and (3) Defendant Luscavage should be

dismissed because the alleged comment attributed to him was not defamatory. (Doc. No. 10 at

3-4.) The Court considers Defendants’ arguments below.

A. First Amendment Retaliation Claims Against Defendants Serrano, Behney,

Biladeau, and Luscavage

To state a retaliation claim under the First Amendment, a plaintiff bears the burden of

satisfying three (3) elements. First, a plaintiff must prove that he was engaged in a

constitutionally protected activity. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

Second, a plaintiff must demonstrate that he “suffered some ‘adverse action’ at the hands of

prison officials.” See id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This

requirement is satisfied by showing adverse action “sufficient ‘to deter a person of ordinary

firmness’ from exercising his First Amendment rights.” See id. (quoting Suppon v. Dadonna,

2013 F.3d 228, 235 (3d Cir. 2000)). Third, a prisoner must prove that “his constitutionally

protected conduct was ‘a substantial or motivating factor’ in the decision to discipline him.” See

id. at 333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977)).

The mere fact that an adverse action occurs after either a complaint or grievance is filed

is relevant, but not dispositive, for the purpose of establishing a causal link between the two

events. See Lape v. Pennsylvania, 157 F. App’x 491, 498 (3d Cir. 2005). Only when the facts of

a particular case are “unusually suggestive” of a retaliatory motive will temporal proximity, on

its own, support an inference of causation. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503

(3d Cir. 1997). If a prisoner establishes a prima facie case of retaliation, the burden shifts to

prison officials to show, by a preponderance of the evidence, that “they would have made the

same decision absent the protected conduct for reasons reasonably related to a legitimate

penological interest.” See Rauser, 241 F.3d at 334. “This is often referred to as the ‘same

decision defense.’” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). If the prison officials

can make this showing, it defeats the retaliation claim. See Carter v. McGrady, 292 F.3d 152,

159 (3d Cir. 2002).

With respect to Defendants Behney, Biladeau, and Luscavage, Plaintiff maintains that

they retaliated against him for engaging in protected conduct by slandering him and defaming his

character as set forth above. (Doc. No. 1-2 at 7-8.) He alleges that Defendant Luscavage

slandered him “in retaliation because of the several grievances against Luscavage.” (Id. at 8.)

While the Court recognizes that inmates engage in protected activity when they file grievances,

see Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011), Plaintiff’s complaint fails to set

forth facts regarding any grievances he filed against Defendants Behney, Biladeau, and

Luscavage prior to the time when they made the allegedly defamatory statements about him.

Plaintiff’s complaint, as pled, does nothing more than set forth a threadbare recital of the first

requirement necessary to establish a retaliation claim. Accordingly, the Court will grant

Defendants’ motion to dismiss with respect to Plaintiff’s retaliation claims against Defendants

Behney, Biladeau, and Luscavage.1

1 Defendants also argue that Plaintiff cannot maintain a claim for defamation or slander against

Defendant Luscavage. (Doc. No. 10 at 8-9.) In response, Plaintiff states that he “does not raise

any claim of slander or defamation against any Defendant in this Complaint.” (Doc. No. 11 at

1.) In their reply brief, Defendants maintain that Defendant Luscavage should be dismissed

because Plaintiff’s sole allegation regarding Defendant Luscavage is that Plaintiff submitted a

grievance against him for slander. (Doc. No. 13 at 1.) Defendants have misconstrued Plaintiff’s

complaint because he clearly states that he is raising First Amendment retaliation claims against

With respect to Defendant Serrano, Plaintiff alleges that she retaliated against him by

filing a false misconduct report because he asked for a grievance form. (Doc. No. 1-2 at 8.)

Plaintiff, however, cannot maintain a retaliation claim against Defendant Serrano “based merely

on his request for a grievance form.” See Wicker v. Shannon, No. 3:09-cv-1629, 2010 WL

3812351, at *6 (M.D. Pa. Sept. 21, 2010) (concluding that inmate-plaintiff’s claim that

corrections officer had retaliated against him for asking for a grievance form by falsely charging

him with misconduct was subject to dismissal). Accordingly, the Court will also grant

Defendants’ motion to dismiss with respect to Plaintiff’s retaliation claim against Defendant

Serrano.

B. Fourteenth Amendment Due Process Claims Against Defendants Walters

and Morris

Plaintiff maintains that Defendant Walters violated his Fourteenth Amendment rights to

procedural due process by (1) depriving him of the opportunity to read his version of events and

to present documentary evidence and (2) depriving him of an impartial hearing by relying

entirely upon the statements of a corrections officer to find Plaintiff guilty. (Doc. No. 1-2 at 10-

11.) Plaintiff also alleges that Defendant Morris violated his procedural due process rights by

signing a falsified misconduct report without any investigation. (Id. at 11.)

Defendants’ argument in support of dismissal of Plaintiff’s Fourteenth Amendment

claims is that Plaintiff’s sanction—thirty (30) days in segregation—does not implicate a liberty

interest sufficient to trigger due process protections. (Doc. No. 10 at 6.) They cite Sandin v.

Conner, 515 U.S. 472 (1995), in support of their argument. (Id.) In Sandin, the Supreme Court

Defendant Luscavage. (Doc. No. 1-2 at 9-10.) Accordingly, upon consideration of Plaintiff’s

oppositional brief, the Court does not construe Plaintiff’s complaint as asserting a defamation

claim against Defendant Luscavage and, therefore, will not consider Defendant Luscavage’s

arguments in support of dismissal of such a claim.

shifted the focus of the liberty interest analysis from one “based on the language of a particular

regulation” to “the nature of the deprivation” experienced by the prisoner. See id. at 481. The

Court reasoned, inter alia, that “[d]iscipline by prison officials in response to a wide range of

misconduct” is expected as part of an inmate’s sentence. See id. at 485. Accordingly, the Court,

focusing on the nature of the punishment instead of on the words of any regulation, held that the

procedural protections in Wolff v. McDonnell, 418 U.S. 539 (1974),2 were inapplicable because

the “discipline in segregated confinement did not present the type of atypical, significant

deprivation in which a state might conceivably create a liberty interest.” See Sandin, 515 U.S. at

486. For a prisoner, such a deprivation occurs when the prison “imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.” See id. at 484.

“When considering whether an inmate’s placement in segregated housing triggers a

legally cognizable interest courts should consider: (1) the amount of time spend in segregation;

and (2) whether the conditions of segregation were significantly more restrictive than those

imposed on other inmates in segregation.” Allah v. Bartkowski, 574 F. App’x 135, 139 (3d Cir.

2014). In Sandin, the Supreme Court concluded that placement in disciplinary segregation for

thirty (30) days did not deprive the inmate of a protected liberty interest. See Sandin, 515 U.S. at

486; see also Williams v. Bitner, 307 F. App’x 609, 611 (3d Cir. 2009) (no liberty interest

triggered by 90-day placement in disciplinary segregation); Smith v. Mensinger, 293 F.3d 641,

2 In Wolff, the Supreme Court recognized that “prison disciplinary proceedings are not part of a

criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not

apply.” See id. at 556. However, the Court set forth five requirements of due process in a prison

disciplinary proceeding: (1) the right to appear before an impartial decision-making body; (2)

twenty-four hour advance written notice of the charges; (3) an opportunity to call witnesses and

present documentary evidence, provided the presentation of such does not threaten institutional

safety or correctional goals; (4) assistance from an inmate representative; and (5) a written

decision by the fact finders as to the evidence relied upon and the rationale behind their

disciplinary action. See id.

654 (3d Cir. 2002) (no liberty interest triggered by seven (7)-month placement in disciplinary

confinement). Moreover, “a thorough investigation is not a requirement of due process in the

prison disciplinary setting.” See Parks v. O’Shaughnessy, No. 1:14-cv-1268, 2016 WL 4385869,

at *4 (M.D. Pa. May 3, 2016); see also Moles v. Holt, 221 F. App’x 92, 96 (3d Cir. 2007)

(concluding that “a failure to conduct a prompt and thorough investigation prior to a disciplinary

hearing does not rise to the level of a due process violation”). Thus, absent a protected liberty

interest, Plaintiff cannot maintain his claims regarding alleged procedural defects prior to and

during his misconduct proceedings.

Plaintiff, however, appears to suggest that he was denied due process for retaliatory

reasons. The Third Circuit has held that “[r]etaliation may be actionable, however, even when

the retaliatory action does not involve a liberty interest.” See Allah v. Seiverling, 229 F.3d 220,

224 (3d Cir. 2000). Such a procedural due process claim, however, requires threshold proof that

the inmate was engaged in constitutionally protected conduct. See Smith, 293 F.3d at 653 (citing

Sandin, 515 U.S. at 486); see also Allah, 229 F.3d at 224. However, even if the discipline is

initiated in retaliation for a protected act, due process is satisfied where the plaintiff has an

opportunity to confront and challenge the retaliatory misconduct reports. See Smith, 293 F.3d at

653-54; see also Thomas v. McCoy, 467 F. App’x 94, 97 (3d Cir. 2012) (per curiam) (“Due

process is satisfied where an inmate is afforded an opportunity to be heard and to defend against

the allegedly false misconduct reports.”). Moreover, a retaliatory discipline claim fails when

there is “some evidence” to support the determination. See Nifas v. Beard, 374 F. App’x 241,

244 (3d Cir. 2010) (citing Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994)).

As an initial matter, as discussed supra, Plaintiff has not alleged that the misconduct

report was issued in retaliation for engaging in constitutionally protected conduct. Plaintiff

maintains that Defendant Serrano issued the report in retaliation for Plaintiff asking her for a

grievance form. Merely asking for a grievance form, however, does not rise to the level of

constitutionally protected conduct. See Wicker, 2010 WL 3812351, at *6. In any event, even if

Plaintiff were engaged in protected activity and the misconduct report was issued in retaliation

for such activity, the exhibits attached to Plaintiff’s complaint indicate that he appealed the

misconduct report and, therefore, received an opportunity to challenge it. See Smith, 293 F.3d at

653-54; see also Thomas, 467 F. App’x at 97. Therefore, the Court will grant Defendants’

motion to dismiss with respect to Plaintiff’s Fourteenth Amendment due process claims against

Defendants Walters and Morris.

III. LEAVE TO AMEND

Courts are cautioned that because of the applicable pleading standard, a plaintiff should

generally be granted leave to amend before dismissing a claim that is merely deficient. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The federal rules allow for

liberal amendment in light of the “principle that the purpose of pleading is to facilitate a proper

decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal

quotations omitted). The Court may deny a motion to amend where there is “undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, [or] futility of the amendment.” See id. The Court must also determine that a

proposed amendment would be futile if the complaint, as amended, would not survive a motion

to dismiss for failure to state a claim. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d

Cir. 2002). Here, with respect to Plaintiff’s retaliation claims against Defendants Behney,

Biladeau, and Luscavage, it is neither clear that amendment would be futile nor is there any basis

to believe it would be inequitable. Accordingly, Plaintiff will be granted leave to file an

amended complaint with respect to these claims. However, for the reasons set forth above, it

would be futile to grant Plaintiff leave to amend his claims against Defendants Serrano, Walters,

and Morris. Accordingly, those claims will be dismissed with prejudice.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff’s motion for leave to file a sur-

reply. (Doc. No. 14.) The Court will also grant Defendants’ motion to dismiss. (Doc. No. 9.)

Plaintiff’s First Amendment retaliation claim against Defendant Serrano and his Fourteenth

Amendment due process claims against Defendants Walters and Morris will be dismissed with

prejudice. Plaintiff’s First Amendment retaliation claims against Defendants Behney, Biladeau,

and Luscavage will be dismissed without prejudice to Plaintiff’s right to file an amended

complaint regarding these claims. An appropriate Order follows.