Landis v. Ebbert

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CARLTON THEODORE LANDIS, : CIVIL ACTION NO. 1:19-CV-470

:

Plaintiff : (Judge Conner)

:

v. :

:

DAVID J. EBBERT, et al., :

:

Defendants :

MEMORANDUM

Plaintiff Carlton Theodore Landis (“Landis”), an inmate who was housed at

all relevant times at the United States Penitentiary, Lewisburg, Pennsylvania

(“USP-Lewisburg”), commenced this Bivens1 action on March 6, 2019, asserting

that defendants denied him recreation while in the Special Management Unit

(“SMU”) program, in violation of his First, Fifth, and Eighth Amendment rights.

(Doc. 1). Named as defendants are the Federal Bureau of Prisons (“BOP”),

Northeast Regional Director Ormond, National Inmate Appeals Administrator

Conners, former Regional Director Hurwitz, Warden Ebbert, Captain Konkle,

Officer Moyer, and Correctional Officers Langton, Savidge, Condit, Hackenburg,

Sienkiewicz, and Steese. Defendants move to dismiss Landis’s complaint pursuant

1 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971). Bivens stands for the proposition that “a citizen suffering a

compensable injury to a constitutionally protected interest could invoke the general

federal-question jurisdiction of the district courts to obtain an award of monetary

damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478,

504 (1978).

to Federal Rule of Civil Procedure 12(b)(6). (Doc. 54). We will grant defendants’

motion and dismiss Landis’s complaint with leave to amend.

I. Factual Background & Procedural History

Landis alleges that defendants Savidge, Steese, Moyer, Condit, Langton,

Hackenberg, and Sienkiewicz denied him recreation while he was housed in the

SMU from September 21, 2018 through October 4, 2018, and from October 8, 2018

through June 1, 2019. (Doc. 1 at 20, 23, 25-26, 29-30, 38; Doc. 9 at 3; Doc. 27 at 1).

On October 5, 2018, Landis participated in recreation and defendant Moyer

escorted him back to his cell. (Doc. 1 at 24-25). Landis complained to defendant

Moyer that other inmates threatened and harassed him during recreation. (Id. at

25). Defendant Moyer then allegedly called Landis a snitch, threw him against a

wall, and applied pressure to his neck and crotch. (Id.)

Landis avers that defendants Ebbert, Ormond, Konkle, and Conners were

involved in the administrative remedy process, denied his complaints and

grievances, and failed to correct the alleged denial of recreation. (Doc. 1 at 23-24,

26-33, 37-38; Doc. 27 at 1-3).

Landis seeks compensatory and punitive damages based on the alleged

mental and emotional stress he suffered due to the lack of recreation. (Doc. 1 at 16).

Landis states that he did not sustain any other injuries that required medical

treatment, but suffers from hypertension and anxiety as a result of the lack of

exercise. (Doc. 1 at 5; Doc. 17 at 1-2).

Defendants move to dismiss Landis’s complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). (Doc. 54). The motion is fully briefed and ripe for

disposition.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief can be granted.

FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6),

the court must “accept as true all [factual] allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them in the light most

favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)

(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is

generally limited in its review to the facts contained in the complaint, it “may also

consider matters of public record, orders, exhibits attached to the complaint and

items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide “the

defendant notice of what the . . . claim is and the grounds upon which it rests.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the

face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See

Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,

“the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’”

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal

elements of a claim should be separated; well-pleaded facts must be accepted as

true, while mere legal conclusions may be disregarded. Id.; see also Fowler

v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the well-pleaded

factual allegations have been isolated, the court must determine whether they are

sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679 (citing

Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege

facts sufficient to “raise a right to relief above the speculative level”). A claim “has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

III. Discussion

A. Official Capacity Claims

Defendants argue that Landis’s Bivens claims against them in their

official capacities are barred by sovereign immunity. (Doc. 57 at 12-14).

Sovereign immunity bars any claims brought against the defendants in

their official capacities. Specifically, sovereign immunity constitutes a

jurisdictional bar to claims against the United States and its agencies, unless

Congress has specifically waived such immunity. FDIC v. Meyer, 510 U.S. 471,

475 (1994). Indeed, “[a]n action against government officials in their official

capacities constitutes an action against the United States [and is] barred by

sovereign immunity, absent an explicit waiver.” Lewal v. Ali, 289 F. App’x 515,

516 (3d Cir. 2008) (nonprecedential); Webb v. Desan, 250 F. App’x 468, 471 (3d

Cir. 2007) (nonprecedential).

Bivens does not waive sovereign immunity with respect to claims

brought against federal employees sued in their official capacities. Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 72 (2001) (“If a federal prisoner in a BOP facility

alleges a constitutional deprivation, he may bring a Bivens claim against the

offending individual officer, subject to the defense of qualified immunity. The

prisoner may not bring a Bivens claim against the officer’s employer, the

United States, or the BOP.”). Thus, Landis’s claims against the defendants in

their official capacities are barred by sovereign immunity and will be

dismissed with prejudice. Lewal, 289 F. App’x at 516; Webb, 250 F. App’x at

471.

B. The Federal Bureau of Prisons is not a Proper Party

Landis names the BOP as a defendant in this action. “However, Bivens

only authorizes suit against federal officials in their individual capacities, not

the United States and federal agencies.” Warren v. United States, 279 F. App’x

162, 163-64 (3d Cir. 2008) (nonprecedential) (per curiam) (citing Meyer, 510 U.S.

at 473). Accordingly, the BOP is not a proper party in this Bivens action and

Landis’s claims against the BOP will be dismissed with prejudice.

C. Failure to State a Claim Under the Administrative Procedure

Act

Landis asserts that he is suing under the Administrative Procedure Act

(“APA”) in order to compel the BOP to comply with its own policies. (Doc. 1 at

15). The APA provides that “[a]gency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court are

subject to judicial review.” 5 U.S.C. § 704. There are “two conditions that

generally must be satisfied for agency action to be ‘final’ under the APA”: (1)

“the action must mark the consummation of the agency’s decisionmaking

process”; and, (2) “the action must be one by which rights or obligations have

been determined, or from which legal consequences will flow.” United States

Army Corps of Eng’rs v. Hawkes Co., Inc., 578 U.S. ___, 136 S. Ct. 1807, 1813

(2016) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). If the action is

not a “final agency action,” 5 U.S.C. § 704, “a plaintiff who challenges such an

action cannot state a claim under the APA,” and “the action must be

dismissed.” Chehazeh v. Att’y Gen. of the U.S., 666 F.3d 118, 126 n. 1 (3d Cir.

2012) (internal quotations marks and citations omitted). Landis failed to allege

any final agency action that he is challenging. The court will dismiss Landis’s

claim under the APA with leave to amend the complaint to adequately state a

claim.

D. Lack of Personal Involvement of Defendants Ebbert, Ormond,

Konkle, Connors, and Hurwitz

To state a Bivens claim, a plaintiff must demonstrate that the individual was

acting under the color of federal law and deprived him of a right secured by the

Constitution. Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001).

“Because vicarious liability is inapplicable to Bivens . . . a plaintiff must plead that

each Government-official defendant, through the official’s own individual actions,

has violated the Constitution.” Iqbal, 556 U.S. at 676 (2009).

It appears that Landis seeks to hold defendants Ebbert, Ormond,

Konkle, and Conner liable based solely upon their responses to his various

complaints and grievances. However, the “failure of a prison official to provide

a favorable response to an inmate grievance is not a federal constitutional

violation.” Flanagan v. Shively, 783 F. Supp. 922, 931-32 (M.D. Pa. 1992), aff’d,

980 F.2d 722 (3d Cir. 1992). Thus, insofar as Landis’s claims against these

defendants are premised on their denial of inmate complaints and grievances,

dissatisfaction with responses to an inmate’s grievances does not support a

constitutional claim. See Brooks v. Beard, 167 F. App’x. 923, 925 (3d Cir. 2006)

(nonprecedential) (holding that allegations that prison officials responded

inappropriately to an inmate’s later-filed grievances do not establish the

involvement of those officials and administrators in the underlying

constitutional deprivation); Alexander v. Gennarini, 144 F. App’x 924 (3d Cir.

2005) (nonprecedential) (concluding that involvement in the post-incident

grievance process is not a basis for liability).

It also appears that Landis attempts to assert claims against defendants

Ebbert, Ormond, Konkle, and Conner based upon their respective supervisory

positions. Supervisors, however, “may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat

superior.” Iqbal, 556 U.S. at 676. Accordingly, to the extent that Landis’s

claims against these defendants rely on a respondeat superior theory of

liability, defendants Ebbert, Ormond, Konkle, and Conner are entitled to

dismissal on this ground.

With respect to defendant Hurwitz, Landis fails to set forth any facts

establishing his personal involvement in the alleged constitutional violations.

Landis appears to assert liability based on defendant Hurwitz’s violation of

policy. (Doc. 35 at 2). However, a violation of an internal prison policy does

not automatically rise to the level of a constitutional violation. “[A] prison

policy manual does not have the force of law and does not rise to the level of a

constitutional violation.” Atwell v. Lavan, 557 F. Supp. 2d 532, 556, n. 24 (M.D.

Pa. 2008) (citing Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 154 (3d

Cir. 2004)). The Third Circuit has clearly stated that “agency interpretive

guidelines ‘do not rise to the level of a regulation and do not have the effect of

law.’” Mercy Catholic Med. Ctr., 380 F.3d at 155 (citation omitted). Therefore,

defendant Hurwitz cannot be liable simply for violating a prison policy. See

Estrella v. Hogsten, No. 1:06-CV-1340, 2007 WL 2065879 (M.D. Pa. July 16, 2007)

(holding that mere failure of prison officials to follow their own regulations

alone is not a constitutional violation).

For all the foregoing reasons, defendants Ebbert, Ormond, Konkle,

Conner, and Hurwitz are entitled to dismissal from this action based on lack of

personal involvement in the alleged wrongful conduct.

E. Denial of Recreation under the First, Fifth, and Eighth

Amendments

Landis alleges that defendants Savidge, Steese, Moyer, Condit, Langton,

Hackenberg, and Sienkiewicz denied him recreation in retaliation for filing

administrative remedies, complaining about being harassed by other inmates, and

engaging in sexual acts. (Doc. 1 at 4, 18-19). Landis also alleges that defendants

Savidge, Steese, Moyer, Condit, Langton, Hackenberg, and Sienkiewicz denied him

recreation for violating prison rules in violation of his Fifth Amendment due

process and Eighth Amendment rights. (Id. at 20, 23, 25-27, 29, 30, 32).

In Bivens, the Supreme Court recognized that a plaintiff may bring a

damages claim against a federal official for violation of the plaintiff’s Fourth

Amendment right to be free from unreasonable searches, even though no federal

statute authorized such a claim. Bivens, 403 U.S. at 397. Post-Bivens, the Supreme

Court has only recognized an implied damages remedy against a federal official in

two other circumstances: under the Fifth Amendment Due Process Clause for

gender discrimination, Davis v. Passman, 442 U.S. 228, 245 (1979), and under the

Eighth Amendment’s prohibition on cruel and unusual punishment for inadequate

medical care, Carlson v. Green, 446 U.S. 14, 18-23 (1980).

In the absence of Supreme Court extensions of the implied damages remedy

under Bivens, lower federal courts had the power to extend Bivens to new fact

situations as appropriate. Mack v. Yost, 968 F.3d 311, 319 (3d Cir. 2020). However,

in Ziglar v. Abbasi, 582 U.S. ___, 137 S. Ct. 1843 (2017), the Supreme Court

cautioned that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity”

and that decisions of whether to recognize new causes of action should generally be

left to Congress. Id. at 1857 (quoting Iqbal, 556 U.S. at 675). Ziglar is a watershed

case in prisoner litigation, and it must be followed to the exclusion of prior court of

appeals precedent.

Ziglar set forth a two-part test to determine whether a Bivens claim may

proceed. Id. First, courts must determine whether the case presents a new Bivens

context. See id. at 1859. “If the case is different in a meaningful way from previous

Bivens cases decided by th[e] [Supreme] Court, then the context is new.” Id.

Second, if the case presents a new context, a court must then consider whether any

alternative remedies exist. Id. at 1859-60. Even absent alternative remedies, a court

must also consider whether special factors counsel against extending the Bivens

remedy. Id.

Here, it is clear that Landis’s claims present new contexts to which Bivens

has never been extended. Landis alleges that defendants Savidge, Steese, Moyer,

Condit, Langton, Hackenberg, and Sienkiewicz retaliated against him in violation of

the First Amendment, and that the denial of recreation violated his due process

rights under the Fifth Amendment and constituted unconstitutional conditions of

confinement under the Eighth Amendment. The Supreme Court has never

recognized a Bivens cause of action under any of these theories. Indeed, the United

States Court of Appeals for the Third Circuit has repeatedly held that Bivens may

not be extended to First Amendment retaliation claims in the prison context. See

Bistrian v. Levi, 912 F.3d 79, 96 (3d Cir. 2018) (“[T]he retaliation claim is not a

recognized Bivens remedy[.]”); Vanderklok v. United States, 868 F.3d 189, 198 (3d

Cir. 2017) (“The Supreme Court has never implied a Bivens action under any clause

of the First Amendment.”); Watlington on behalf of FCI Schuylkill African Am.

Inmates v. Reigel, 723 F. App’x 137, 139-40 (3d Cir. 2018) (nonprecedential)

(affirming the dismissal of a First Amendment retaliation claim brought by a federal

prisoner against correctional staff). Additionally, Landis’s Fifth Amendment due

process and Eighth Amendment conditions of confinement claims relate to the

alleged denial of recreation. These claims are strikingly different from the Fifth

Amendment gender discrimination claim in Davis and the Eighth Amendment

inadequate medical care claim in Carlson. See Bistrian, 912 F.3d at 94 (holding that

although Davis and Carlson extended Bivens to the Fifth and Eighth Amendments,

respectively, they only addressed gender discrimination and inadequate medical

care claims, and “even if there are ‘significant parallels to one of the Court’s

previous Bivens cases,’ ‘a modest extension is still an extension.’” (quoting Ziglar,

137 S. Ct. at 1864)); see also Hernandez v. Mesa, 589 U.S. ___, 140 S. Ct. 735, 743

(2020) (“A claim may arise in a new context even if it is based on the same

constitutional provision as a claim in a case in which a damages remedy was

previously recognized.”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001) (The

Supreme Court has “consistently refused to extend Bivens liability to any new

context or new category of defendants” beyond alleged violations by federal actors

of the Fourth Amendment, Fifth Amendment Due Process Clause, or Eighth

Amendment Cruel and Unusual Punishments Clause).

Because Landis’s claims present new contexts, the court must determine

whether there are any special factors that counsel hesitation in extending Bivens.

Mack, 968 F.3d at 317. There may be many special factors, but two are

“‘particularly weighty’: the availability of an alternative remedial structure and

separation-of-powers concerns.” Id. at 320 (quoting Bistrian, 912 F.3d at 90).

Landis had access to the BOP administrative remedy process, and he

pursued several administrative remedies. See id. at 320-21 (finding that the BOP’s

grievance process provided alternative remedial structure). “Although the

alternative remedy would not provide [Landis] with money damages for the

constitutional violation incurred,” it could still provide injunctive relief. Id. at 321.

Additionally, separation of powers concerns caution against expanding Bivens to

this case. Landis alleges that defendants improperly denied him recreation, a

determination that is clearly delegated to the BOP. See id. at 321-22 (noting that

courts “have afforded a level of deference to the decision making of prison officials”

and should proceed with caution before extending Bivens to decisions that have

been delegated to the BOP).

The court finds that Landis’s First, Fifth, and Eighth Amendment claims

relating to the denial of recreation present new contexts to which Bivens has not

previously been extended, and special factors counsel against extending Bivens to

those new contexts. As such, the court declines to extend Bivens to these claims.

F. Eighth Amendment Excessive Force Claim

Landis sets forth an Eighth Amendment excessive force claim based on

the October 5, 2018 incident with defendant Moyer. (Doc. 1 at 24-25).

The Eighth Amendment protects prisoners from cruel and unusual

punishment, including “the unnecessary and wanton infliction of pain.”

Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S.

312, 319 (1986)); see also U.S. CONST. amend. VIII. To prevail on an Eighth

Amendment claim, an inmate must show: (1) a deprivation that is objectively

sufficiently serious; and, (2) “a sufficiently culpable state of mind” of the

defendant official. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

An Eighth Amendment challenge asserting excessive force is subject to

a malicious and sadistic standard. See Zimmerman v. Schaeffer, 654 F. Supp.

2d 226, 247 (M.D. Pa. 2009) (citing Hudson, 503 U.S. at 6-7). The inquiry under

this standard is whether prison officials applied force “in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very

purpose of causing harm.” Hudson, 503 U.S. at 6 (citations and quotations

omitted); see also Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000). In an

excessive force case, a prisoner need not show significant injury; however, de

minimis uses of physical force are insufficient to establish an Eighth

Amendment violation. Hudson, 503 U.S. at 9-10.

The Supreme Court has noted the following factors to determine

whether a correctional officer used excessive force in contravention of the

Eighth Amendment: (1) the need for the application of force; (2) the

relationship between the need and the amount of force that was used; (3) the

extent of injury inflicted; (4) the extent of the threat to the safety of staff and

inmates, as reasonably perceived by responsible officials on the basis of the

facts known to them; and (5) any efforts made to temper the severity of a

forceful response. Whitley, 475 U.S. at 319; see also Giles v. Kearney, 571 F.3d

318, 327 (3d Cir. 2009) (same).

Landis alleges that on October 5, 2018, he participated in recreation and

defendant Moyer escorted him back to his cell. (Doc. 1 at 24-25). During this

transport, Landis complained to defendant Moyer that other inmates threatened

and harassed him during recreation. (Id. at 25). In response, defendant Moyer

allegedly threw Landis against a wall, applied pressure to his neck and crotch, and

called him a snitch. (Id.) Defendant Moyer then released Landis. (Id.) These

assertions fail to support an Eighth Amendment excessive force claim.

Landis does not state that he sustained any injury during this interaction, he

fails to address or assert defendant Moyer’s culpable state of mind, and also fails to

address whether defendant Moyer made any effort to temper the severity of his

actions. Whitley, 475 U.S. at 319; see also Giles, 571 F.3d at 327. Thus, Landis’s

allegations, as presently stated, fail to state an Eighth Amendment excessive force

claim. The court will dismiss this claim without prejudice to Landis filing an

amended complaint.

G. Qualified Immunity

Even if Landis had stated a colorable constitutional claim, the

defendants are nevertheless entitled to qualified immunity from this claim for

damages. In order to establish a civil rights claim, Landis must show the

deprivation of a right secured by the United States Constitution or the laws of

the United States. However, government officials performing “discretionary

functions,” are insulated from suit if their conduct did not violate a “clearly

established statutory or constitutional right[ ] of which a reasonable person

would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999).

“The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal

quotation marks omitted). “Qualified immunity balances two important

interests—the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson,

555 U.S. at 231. It “provides ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475

U.S. 335, 341 (1986). “Thus, so long as an official reasonably believes that his

conduct complies with the law, qualified immunity will shield that official from

liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson,

555 U.S. at 244). Although qualified immunity is generally a question of law

that should be considered at the earliest possible stage of proceedings, a

genuine dispute of material fact may preclude summary judgment on qualified

immunity. Giles, 571 F.3d at 325-26.

A qualified immunity determination involves a two-pronged inquiry: (1)

whether a constitutional or federal right has been violated; and (2) whether

that right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to

exercise discretion in deciding which of the two Saucier prongs should be

addressed first). As stated, the court finds that Landis failed to establish the

violation of a constitutional right. Defendants simply could not have

recognized that the denial of recreation to an inmate, or the de minimis use of

physical force, would violate a “clearly established statutory or constitutional

right[ ] of which a reasonable person would have known.” Wilson, 526 U.S. at

609. Therefore, defendants are protected from liability by qualified immunity.

IV. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts

must generally grant leave to amend before dismissing the complaint. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d

113, 116-17 (3d Cir. 2000). Specifically, the Third Circuit Court of Appeals has

admonished that when a complaint is subject to dismissal for failure to state a claim,

courts should liberally grant leave to amend “unless such an amendment would be

inequitable or futile.” Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229,

235 (3d Cir. 2004)). For the reasons set forth above, Landis’s official capacity claims,

claims against the Federal Bureau of Prisons, claims against defendants Ebbert,

Ormond, Konkle, Conner, and Hurwitz, and the denial of recreation claim under

the First, Fifth, and Eighth Amendments are legally and factually flawed and thus

incurable. The court concludes that curative amendment would be futile with

respect to these claims. However, Landis will be granted leave to amend with

respect to his Administrative Procedure Act Claim, and his Eighth Amendment

excessive force claim against defendant Moyer.

V. Conclusion

We will grant defendants’ motion (Doc. 54) to dismiss. The court will afford

Landis an opportunity to file an amended complaint in the event he can state a

plausible claim for relief. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: September 30, 2020