# Friend v. Shoemaker

> District Court, M.D. Pennsylvania · September 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10410906

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 24, 2021
- **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 MIDDLE DISTRICT OF PENNSYLVANIA
ABDULLAH IBN JIHAD FRIEND, : Civil No. 3:18-CV-1715
:
Plaintiff, :
:
v. :
:
BRAD SHOEMAKER, WARDEN, et :
al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Self-represented Plaintiff Abdullah Ibn Jihad Friend (“Plaintiff” or “Friend”)
commenced this action pursuant to 42 U.S.C. § 1983 alleging Defendants
interfered with his ability to practice his religion and violated his due process rights
at a disciplinary hearing. The action proceeds on Friend’s third amended
complaint. (Doc. 35.) Named as Defendants are Daniel Worthington, Ryan C.
Barnes, Harry Entz, and Travis Heap. Before the court is the Defendants’ motion
to dismiss. (Doc. 36.) For the reasons set forth below, Defendants’ motion will be
granted in part and denied in part. Daniel Worthington will be dismissed as a
Defendant in this action as Friend fails to state a claim against him. The claims
against Defendants Barnes, Entz, and Heap will not be dismissed and they will be
directed to file an answer to the third amended complaint.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Procedural History

On August 29, 2018, Abdullah Ibn Jihad Friend (“Plaintiff” or “Friend”), a
pretrial detainee housed at the Lycoming County Prison (“LCP”) in Williamsport,
Pennsylvania, filed the above-captioned civil rights action pursuant to 42 U.S.C. §
1983. (Doc. 1.) Prior to Defendants filing a response, Friend filed an amended
complaint. (Doc. 18.) Shortly thereafter, Defendants filed a motion to dismiss.
(Doc. 24.) Friend then sought leave to file a second amended complaint. In the
proposed amendment, Friend named the following LCP employees as Defendants:

Warden Brad Shoemaker, Deputy Warden Ryan Barnes; Correctional Officer
(“CO”) Daniel Worthington; Lt. Harry Entz, and Travis Heap. Plaintiff also
named the following members of the Lycoming County Prison Board as
Defendants: R. Jack McKernan, Tony Mussare, and Richard Mirabito.1 (Doc. 30.)

On April 11, 2019, the court granted Friend’s request, accepted the proposed
amended complaint, and dismissed Defendants’ motion to dismiss without
prejudice. (Doc. 29.) On May 13, 2019, Defendants filed a motion to dismiss the

second amended complaint. (Doc. 31.) On October 6, 2020, the court granted

1 Due to Friend’s failure to name Warden Shoemaker, McKernan, Mussare, or Mirabito as
Defendants in the third amended complaint, they were terminated as parties. (Doc. 35.)
Defendants’ motion to dismiss, but granted Friend leave to file a third amended
complaint. (Doc. 33.)

On October 26, 2020, Friend filed a third amended complaint naming CO
Worthington, Ryan Barnes, Lt. Entz, and Travis Heap as Defendants. (Doc. 35.)
Defendants filed a motion to dismiss the third amended complaint on November

16, 2020. (Doc. 36.) Friend filed an opposition brief on December 30, 2020.
(Doc. 38.) On January 27, 2021, Defendants filed a reply brief. (Doc. 41.)
Defendants’ motion is now ripe for disposition.
B. Factual Background

According to the allegations in the third amended complaint, the housing
units at the LCP “are very small” and “any sound can be heard from everyone
during ‘quiet time’ hours due to the small size of the block.” (Doc. 35, p. 2.)2 On

May 17, 2018, at 4:30 a.m. the morning, CO Worthington heard the Muslim call
for prayer, or Adhan, “being yelled from J Block.” (Doc. 37-1.) 3 Upon
investigating, CO Worthington discovered Friend was the source of the call. (Id.)
CO Worthington “interrupted and stopped [Friend] from reciting Adhan.” (Doc.

2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

3 Defendants supply a copy of the misconduct CO Worthington issued Friend following the
incident. See Doc. 37-1. Friend does not dispute the authenticity of the misconduct.
Accordingly, the court may consider the misconduct report when resolving the Defendants’
motion to dismiss as Friend’s claims are based, in part, on the document. See Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
35, ¶ 2; Doc. 37-1.) CO Worthington issued Friend a disciplinary report charging
him with disruption of the prison routine, refusing to obey an order, and excessive

noise. (Doc. 35, ¶ 2, Doc. 37-1.) Prior to this incident, CO Worthington had
received “3 complaints from other inmates … about these infractions happening on
a daily basis. Inmate Friend was warned for the same infractions on 05-15-2018.”

(Doc. 37-1.) CO Worthington issued the misconduct after Friend “was warned
three times in a matter of a minute to stop and each time was ignored.” (Id.)
At Friend’s May 30, 2018 disciplinary hearing before Barnes, Entz, and
Heap, he tried to explain that he was not making excessive noise but performing

the Adhan and Salaah “audibly.” (Doc. 35, ¶ 4.) Friend requested “to call down
witnesses to establish the fact that he was not excessive in noise or disrupting
prison routine (the witnesses later signed a grievance – supporting these facts).”

(Id., ¶ 9.) He also asserted that CO Worthington has a history of harassing Muslim
inmates and interfering with their religious practices. (Id., ¶ 4; Doc. 37-1.) The
disciplinary hearing committee denied Friend’s request for witnesses and directed
that “he must silently say the Adhan and Salaah.” (Doc. 35, ¶ 5.) Friend was

found guilty of the misconduct based on the incident report and his statement. (Id.,
¶ 6, Doc. 37-1.) He received “10 days – suspended” segregated housing sentence.
(Id.)
Friend claims CO Worthington placed a “substantial burden” on his
religious practices on May 17, 2018, when preventing him from reciting the Adhan

“in a non excessive and low tone that was not disruptive of the prison’s routine.”
(Doc. 35, ¶ 9.) His free exercise of religion claim against Barnes, Entz, and Heap
stems from their directive that “he could not recite the Adhan or recite during his

Salaah.” (Id., ¶ 10.) Friend alleges their actions “force Plaintiff to silently say to
himself the Adhan and Salaah [which] violates [his] First Amendment rights to the
free exercise of his religion.” (Id.) Plaintiff also accuses Barnes, Entz, and Heap
of violating his due process rights when they denied his request to call witnesses at

his disciplinary hearing. He claims the witnesses would have proven his recitation
of the Adhan was neither excessive in noise nor disruptive to the prison’s routine.
(Id., ¶ 11.) As relief, Friend seeks declaratory and injunctive relief as well as

compensatory and punitive damages for the violation of his First Amendment
rights. He also seeks monetary damages from each defendant for the mental and
emotional distress he continues to suffer because of their actions.

JURISDICTION

The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §
1331, which allows a district court to exercise subject matter jurisdiction in civil
cases arising under the Constitution, laws, or treaties of the United States. Venue
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at Lycoming County Prison in located in Lycoming County,
Pennsylvania, which is in this district. See 28 U.S.C. § 118(b); 28 U.S.C. § 1391.

STANDARD OF REVIEW

In order “[t]o survive a motion to dismiss, a complaint must contain
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) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The pleadings of self-represented plaintiffs are to be liberally construed and

held to a less stringent standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193
(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be
granted leave to file a curative amended complaint even when a plaintiff does not

seek leave to amend, unless such an amendment would be inequitable or futile.
See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.
2014). A complaint that sets forth facts which affirmatively demonstrate that the

plaintiff has no right to recover is properly dismissed without leave to amend.
Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).
DISCUSSION

Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C.
§ 1983. The statute provides, in pertinent part, as follows:
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. To state a claim under § 1983, a plaintiff must allege “the violation of a right
secured by the Constitution and laws of the United States and must show that the
alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). Because § 1983 is a method for
vindicating federal rights, not a source of substantive rights itself, the first step in
an action filed pursuant to § 1983 is to identify the specific constitutional right

allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v.
Connor, 490 U.S. 386, 393–94 (1989). “After pinpointing that right, courts must
still determine the elements of, and rules associated with, an action seeking

damages for its violation.” Manuel v. Joliet, 137 S.Ct. 911, 920 (2017) (citing
Carey v. Piphus, 435 U.S. 247, 257–258 (1978)).
A. Friend’s Free Exercise of Religion Claims4

1. First Amendment Free Exercise Claim

The First Amendment, which is applicable to the States through the
Fourteenth Amendment, provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof….” U.S. Const.
amend. I. The Free Exercise Clause of the First Amendment prohibits prison
officials from denying an inmate “a reasonable opportunity of pursuing his faith.”
See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972). It is well-settled that “[o]nly
beliefs which are both sincerely held and religious in nature are protected under the

4 Although Plaintiff does not specifically raise a claim under the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”), the court must liberally construe the
plaintiff’s self-represented pleading and apply the applicable law, regardless of whether he has
mentioned it by name. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Accordingly,
the court will address Friend’s free exercise claim under both § 1983 and RLUIPA.
First Amendment.” Sutton v. Rasheed, 323 F.3d 236, 250–51 (3d Cir. 2003)
(citations and internal quotation marks omitted).

“There can be no doubt that the First Amendment protects the right to pray.
Prayer unquestionably constitutes the ‘exercise’ of religion.” Sause v. Bauer, 138
S.Ct. 2561, 2562 (2018).5 Even so, the Supreme Court has held that this right is

not unfettered in society or prison. In Sause, the Supreme Court held that a police
officer “may lawfully prevent a person from praying at a particular time and
place.” Sause, 138 S.Ct. at 2562–63 (“[I]f an officer places a suspect under arrest
and orders the suspect to enter a police vehicle for transportation to jail, the suspect

does not have a right to delay that trip by insisting on first engaging in conduct
that, at another time, would be protected by the First Amendment.”) Similarly,
although prisoners do not forfeit their First Amendment right to practice religion

due to their imprisonment, “the fact of incarceration and the valid penological
objectives of deterrence of crime, rehabilitation of prisoners, and institutional
security justify limitations on the exercise of constitutional rights by inmates.”
DeHart v. Horn, 227 F.3d 47, 50–51 (3d Cir. 2000). An inmate’s free exercise

5 In Sause, the Supreme Court explained that the Free Exercise Clause may have been violated
by a police officer's order to the plaintiff, while he was inside her apartment investigating a noise
complaint, to stop praying. Id. at 2562–63. The Supreme Court held that it was “impossible to
analyze [the plaintiff's] free exercise claim” without knowing whether officers were lawfully
inside her apartment and “what, if anything, the officers wanted her to do at the time when she
was allegedly told to stop praying.” Id. at 2563. Thus, the Court reversed and remanded for
further proceedings.
rights may also be limited “in order to accommodate the demands of prison
administration and to serve valid penological objectives.” Fraise v. Terhune, 283

F.3d 506, 515 n. 5 (3d Cir. 2002). In sum, prison regulations which impinge on an
inmate’s ability to practice his faith are constitutionally valid so long as the prison
regulation or restriction is “reasonably related to legitimate penological interests.”

Turner v. Safley, 482 U.S. 78, 89 (1987).
To establish a violation of the Free Exercise Clause of the First Amendment,
a prisoner must plead facts that plausibly show or allow the inference that the
defendants’ action, or a prison policy, has placed a restriction on his religious

practice that is not reasonably related to a legitimate, penological interest. O’Lone
v. Estate of Shabazz, 482 U.S. 342, 349-350 (1987); Turner, 482 U.S. at 89.
Defendants must then identify a legitimate penological interest. If a legitimate

penological interest exists, the court must then consider four factors to determine
the reasonableness of Defendants’ actions or challenged prison regulation: (1)
whether there is “a valid, rational connection” between the prison regulation and
the governmental interest; (2) whether the inmate has an “alternative means of

exercising the right” at issue; (3) the burden or impact the accommodation would
impose on prison resources, correctional staff and inmates; and (4) “the absence of
ready alternatives.” Turner, 482 U.S. at 89-91. The most important prong of the

Turner analysis requires a rational connection between the policy and the
legitimate governmental interest that justifies it. Nasir v. Morgan, 350 F.3d 366,
372 (3d Cir. 2003). With that said, courts should accord prison officials broad

deference in the adoption of policies and practices that are needed to preserve
internal order and discipline in the prison. See Bell, 441 U.S. at 547–48 (1979);
Wolff v. McDonnell, 418 U.S. 539, 566 (1974).

The court construes Friend as setting forth two free exercise of religion
claims. First, Friend alleges that CO Worthington “interrupted and stopped” his
recitation of the Adhan at 4:30 a.m., during the prison’s quiet hours on May 17,
2018, because he was making excessive noise and disrupting prison routine. (Doc.

35, ¶ 2.) Friend fails to demonstrate that CO Worthington’s actions prevented him
from practicing his religion by prohibiting him from reciting the Adhan at 4:30
a.m. According to Friend, CO Worthington’s actions were based on the decibel

level of Friend’s prayer, not what he was reciting. Friend was disciplined for
violating prison quiet time policy, disrupting prison routine, and disobeying CO
Worthington’s order to stop his violating action when ordered to do so. Friend
fails to state a First Amendment free exercise claim against CO Worthington as he

fails to demonstrate that Defendant substantially burdened his right to free exercise
of religion by requiring him to conform with the prison’s quiet time policy.
Friend’s second free exercise claim is against Barnes, Entz, and Heap.

Friend avers the Defendants told him at his disciplinary hearing that “he could not
recite the Adhan or recite during his Salaah.” (Id., ¶ 10.) Taken as true, this
allegation states a First Amendment claim against the disciplinary committee

members as it places a substantial burden on his free exercise rights as it “forces
[him] to silently say to himself the Adhan and Salaah” for “no legitimate
penological interest.” (Id., ¶ 10.)

The court next examines each of Friend’s free exercise claims considering
the four factors announced in Turner. When examining the first Turner factor,
Defendants argue the prison has a legitimate penological interest in having set
times for inmates to sleep (routine) and that there is a rational connection between

this interest and the institution’s quiet hours policy as well as the requirement that
inmates obey staff orders to cease disruptive behavior during quiet hours. (Doc.
37, p. 16.) Notably, Friend acknowledges the prison’s quiet time hours policy and

the ease in which sound travels throughout the prison’s small cellblocks. (Doc. 35,
p. 3.) Based on these facts, the court finds there is a valid and rational connection
between the institution’s quiet time policy and a legitimate penological interest of
ensuring the orderly operation and routine of the prison, i.e. a set time for inmates

to sleep. Likewise, there is a rational connection between the enforcement of
prison rules, including quiet hours, and CO Worthington’s action of interrupting
Friend’s recitation of Adhan during quiet time hours.
As to the second Turner factor, Friend claims that the institution’s quiet time
policy places a blanket prohibition on his sincere religious beliefs without any

justifiable penological interest. (Doc. 38, p. 4.) However, this assertion alone is a
conclusory allegation and not a factual assertion entitled to the assumption of truth.
Other than stating the Adhan must be said “aloud,” Doc. 35, p. 1, Friend does not

claim the Adhan, or Salaah, must be recited at a certain decibel level. Also,
Plaintiff has not argued an inability to reduce the tone of his voice to comply with
“quiet time” rules and still exercise his religion. Thus, this factor weighs in favor
of CO Worthington’s enforcement of the quiet time rules as reasonable. However,

the same cannot be said as to the disciplinary committee members’ alleged actions;
prohibiting Friend from audibly reciting the Adhan or Salaah. Friend claims he
must recite the Adhan aloud. As Barnes, Entz, and Heap’s more restrictive

enforcement of quiet hours requiring Friend to silently recite the Adhan and Salaah
leaves no alternative means for Plaintiff to exercise his religion, this factor weighs
in favor of Plaintiff.
As to the third Turner factor, based on the allegations of the third amended

complaint and CO Worthington’s disciplinary report, it can be inferred that
allowing Friend to self-regulate the volume of his delivery of the Adhan, without
limitation, would impact the inmate population and, in turn, the orderly running of

the prison. Some inmates do not object to Friend’s early morning activities; others
have complained of his quiet hours violations. (Docs. 35, 37-1.) As Friend
comments in the third amended complaint, sound carries easily through the 10-cell

housing units of the prison. Without the establishment of quiet hours, there would
be no set hours for rest within the housing unit. Without the ability of staff to halt
unacceptable levels of noise during quiet hours, one or two individuals would have

the ability to decide when the day will begin on the block for all inmates. This
factor weighs in favor of the prison’s quiet hours policy, and the reasonable
enforcement of the policy.
The final Turner factor weighs in favor of CO Worthington as Friend fails to

demonstrate the absence of ready alternatives to his recitation of the Adhan during
quiet hours at an unacceptable level. However, this factor weighs heavily in
Friend’s favor with respect to his claims that Barnes, Entz, and Heaps told him he

could only recite the Adhan and Salaah silently.
The court finds, based on the facts in Friend’s third amended complaint and
the misconduct report, that the prison’s quiet time policy and its enforcement is
rationally related to the legitimate governmental interest of the orderly operation of

the facility by providing the inmates specified times for sleep. With respect to the
actions of CO Worthington, the Turner factors weigh in his favor, and Defendants’
motion will be granted as to Friend’s free exercise claim against this Defendant for

ordering him to stop making excessive noise at 4:30 a.m. when reciting the Adhan
after previously being warned that the level of his recitation was disturbing to
others and violated the institution’s quiet time rules. The balance of the Turner

factors do not weigh in favor of the remaining Defendants, and their motion to
dismiss the First Amendment claims against them will be denied due to their
alleged blanket prohibition from Friend praying at any audible level during quiet
hours.6 Plaintiff has adequately alleged that these Defendants denied him the

opportunity to practice his faith during quiet hours as he cannot audibly recite the
Adhan or Salaah even under his breath given their order that he pray “silently to
himself.” (Doc. 35, ¶ 10.)

2. Claims Under RLUIPA

RLUIPA prohibits the government from imposing a “substantial burden” on
a prisoner’s religious exercise unless that burden furthers a compelling interest and
is the least restrictive means of furthering that interest. See 42 U.S.C. § 2000cc-
1(a)(1)–(2). RLUIPA defines “religious exercise” to include “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief.”
42 U.S.C. § 2000cc-5(7)(A); see also Cutter v. Wilkinson, 544 U.S. 709, 715

(2005).

6 To the extent Defendants allege Friend failed to allege a First Amendment claim against
Barnes, Entz, and Heap, Doc. 37, pp. 16–17, their motion will be denied. Friend clearly asserts
that during the adjudication of his disciplinary incident report these Defendants “told him he
could not recite the Adhan” or other prayers. (Doc. 35, p. 2.) As such, Friend has sufficiently
alleged Barnes, Entz, and Heap’s personal involvement in the violation of his free exercise right.
To establish a prima facie case for a RLUIPA violation, a prisoner-plaintiff
must demonstrate that a substantial burden has been placed on his or her exercise

of religious beliefs. See Robinson v. Sup’t. Houtzdale SCI, 693 F. App’x 111, 115
(3d Cir. 2017) (per curiam) (“The threshold question in any … RLUIPA case is
whether the prison’s challenged policy or practice has substantially burdened the

practice of the inmate-plaintiff’s religion.”) (citing Washington v. Klem, 497 F.3d
272, 277–78 (2007)). “[A] substantial burden exists where: 1) a follower is forced
to choose between following the precepts of his religion and forfeiting benefits
otherwise generally available to other inmates versus abandoning one of the

precepts of his religion in order to receive a benefit; or 2) the government puts
substantial pressure on an adherent to substantially modify his behavior and to
violate his beliefs.” Washington, 497 F.3d at 280.

The court pursuant to its authority under 28 U.S.C. §1915 will address
Friend’s RLUIPA claim. For the reasons noted above, Friend fails to demonstrate
that CO Worthington’s enforcement of the quiet time policy at 4:30 a.m. had
substantially burdened the practice of his religion. Neither the policy nor CO

Worthington’s actions prevented Friend from reciting the Adhan audibly to himself
in a manner consistent with quiet hours. For these reasons, the allegations of the
third amended complaint fail to establish that CO Worthington’s actions or the

quiet time policy itself substantially burdened his religion. Likewise, Friend does
not allege he was deprived of a benefit as a consequence of his religious beliefs by
the quiet time policy or CO Worthington’s enforcement of that policy. Therefore,

Friend’s RLUIPA claim against CO Worthington related to his enforcement of the
quiet time policy will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim.

However, as previously discussed, Barnes, Entz, and Heap’s alleged order
prohibiting Friend from audibly reciting Adhan or Salaah at any discernable level
clearly imposes a substantial burden on Friend’s religious exercise requiring him to
voice his prayers aloud. Accordingly, Friend’s RLUIPA claim shall proceed

exclusively against Barnes, Entz, and Heap.
B. Friend’s Procedural Due Process Claim Concerning his
Disciplinary Hearing

A pretrial detainee is protected by the Due Process Clause of the Fourteenth
Amendment. Hubbard v. Taylor, 399 F.3d 150, 157-80 (3d Cir. 2005). “While
pretrial detainees do not have a liberty interest in being confined in the general
prison population, they do have a liberty interest in not being detained indefinitely
in [segregated detention] without an explanation or review of their confinement.”
Williams v. Delaware Cnty. Bd. of Prison inspectors, 844 F. App’x 469, 472–73

(3d Cir. 2021) (internal quotations and brackets omitted); see also Singleton v.
Sup’t camp Hill SCI, 747 F. App’x 89, 92 (3d Cir. 2018) (same). When pretrial
detainees are placed in disciplinary housing for violating prison rules, they must be
provided “the due process protections set forth in Wolff v. McDonnell, 418 U.S.
539 … (1974).” Kanu v. Lindsey, 739 F. App’x 111, 116 (3d Cir. 2018). These

protections include “the right to receive written notice of the charges at least 24
hours before the hearing, the opportunity to present witnesses and documentary
evidence, and a written statement of the reasons for the disciplinary action taken

and the supporting evidence.” Id., 739 F. App’x at 116. However, “a detainee’s
right to call witnesses and present documentary evidence is cabined by the prison’s
discretion to ‘keep the hearing within reasonable limits and to refuse to call
witnesses that may create a risk of reprisal or undermine authority,’ as well as to

refuse to allow specific documentary evidence.” Id., 739 F. App’x at 116 (quoting
Wolff, 418 U.S. at 565–56).
Friend, a pretrial detainee, alleges that “Defendants Barnes, Entz, [and]

Heap violated [his] 14th Amendment Due Process right to call the witnesses to the
disciplinary hearing … that would have established testimony in favor of
Plaintiff’s assertions that he was neither excessive in noise [n]or disruptive [to the]
prison routine.” (Doc. 35, ¶ 11.) His due process claim rests on his assertion that

his intended witnesses would have supported his statements that he was not
excessively noisy nor disruptive to the prison’s routine that May morning. (Id.)
Friend attaches at least one declaration to his third amended complaint that

supports this assertion. Declarant Alec Barnes states that he was housed on the
same cell block as Friend, and witnessed CO Worthington “try to interrupt inmate
Friend[’]s call to Adan.” Barnes states that “the call to Adan did not bother nor

disturb [him].” (Doc. 35, p. 5.) This information corroborates Friend’s own
statement made at his disciplinary hearing.7
As noted above, and advanced by Defendants, a prisoner’s right to call

witnesses in his defense is limited only by demands of prisoner safety and
institutional order, as determined by the sound discretion of prison officials. (Doc.
37, p. 18.) Prison officials are accorded this broad discretion since “[t]he operation
of a correctional institution is at best an extraordinary difficult undertaking.” Wolff,

418 U.S. at 566. However, it is not absolute. Young v. Kann, 926 F.2d 1396, 1400
(3d Cir. 1991). Because “the touchstone of due process is protection of the
individual against arbitrary action of government,” at least a limited judicial review

of the broad discretion exercised by prison officials is necessary in this matter.
Wolff, 418 U.S. at 558. At this early juncture in these proceedings, the court can
not conclude that there was a security reason for denying Friend the opportunity to
call a single witness at his disciplinary hearing. Accordingly, Defendants’ motion

to dismiss Friend’s due process claim will be denied.8

7 “INMATE STATEMENT: I wasn’t yelling. I do this every morning. I got permission from
Sgt. White. No other guards give me a problem, only Worthington.” (Doc. 37-1.)

8 To the extent Defendants seek dismissal of Plaintiff’s claim for punitive damages, the court
declines to grant this request as it would be premature to delve into the factual determination
required for such an award at the motion to dismiss stage. See Harvell v. Brumberger, Civ. No.
CONCLUSION
The court will grant in part and deny in part the Defendants’ motion to

dismiss Friend’s third amended complaint. (Doc. 35.) The court will enter an
appropriate order.

s/ Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Dated: September 24, 2021 Middle District of Pennsylvania

3:19-CV-2124, 2020 WL 6947693, at * 8 (M.D. Pa. Nov. 4, 2020), report and recommendation
adopted by, 2020 WL 6946575 (M.D. Pa. Nov. 25, 2020) (noting that the issue of punitive
damages “often turns on the defendants’ state of mind” and “this question frequently cannot be
resolved on the pleadings alone but must await the development of a full factual record at trial.”)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410906. Public record. Not legal advice.