Leaphart v. Campbell

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HAROLD E. LEAPHART, : Civil No. 1:21-CV-1293

:

Plaintiff, :

:

v. : (Magistrate Judge Carlson)

:

WILLIAM A. CAMPBELL, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

This is a pro se civil rights action brought by Harold Leaphart, a state prisoner

incarcerated in the Pennsylvania Department of Corrections at the State Correctional

Institution at Greene. Leaphart’s allegations arise out of events while he was housed

at both SCI Huntingdon and SCI Houtzdale. Leaphart names numerous correctional

officers who he claims violated both his First and Eighth Amendment rights.

Pending before the court is a motion to dismiss filed by the defendants. (Doc.

16). The defendants argue that Leaphart has failed to plead personal involvement by

correctional officers Sosak, Booher, and Long, Lieutenant Boal, and Major Barrows.

The defendants further contend that all claims against the officers in their official

capacity should be dismissed under the Eleventh Amendment. However,

recognizing that we must interpret a pro se plaintiff’s pleading liberally and in the

light most favorable to him as the non-moving party, for the following reasons, the

defendants’ motion to dismiss will be granted in part and denied in part.

II. Background

As we have noted, Leaphart’s complaint alleges First and Eighth Amendment

violations by staff at both SCI Huntingdon and SCI Houtzdale. (Doc. 1, ¶¶ 19, 61).

With respect to the Eighth Amendment claims, the complaint alleges that on April

20, 2019, while incarcerated at SCI Huntingdon, the plaintiff was ordered to pack

his belongings for transfer to the restricted housing unit (“RHU”). (Id., ¶ 16).

Leaphart then alleges that Defendant Campbell began to orchestrate a ruse, implying

that Leaphart was disobeying an order to submit to handcuffing. (Id., ¶¶ 20-23). This

was followed by the arrival of what Leaphart describes as a cell extraction team,

which included Defendants Kirsch, Booher, Love, Long, Sosak, and Mertts who

were replete with body armor, gas masks, and OC spray. (Id., ¶ 24). According to

Leaphart, Campbell ordered him to move to the cell door to be handcuffed, an order

which Leaphart concedes he did not obey quickly enough. (Id., ¶ 25). The plaintiff

claims this pause caused Campbell to order Defendant Mertts to spray copious

amounts of OC spray into Leaphart’s cell. (Id., ¶¶ 26-27). The spray forced Leaphart

to take position on the floor of his cell, at which point the cell extraction team

entered. (Id., ¶¶ 29-30). Leaphart alleges that Defendant Kirsch kneeled on his back

while Defendants Booher, Long, and Sosak put him into wrist and leg shackles. (Id.,

¶ 31). The complaint then asserts that these defendants “started to rain down blows

of punches and kicks” while ordering Leaphart to stop resisting, though Leaphart

alleges he was not resisting. (Id., ¶ 32). Leaphart further contends he was choked

and smacked in the face numerous times, and he was put in a chokehold by

Defendant Mertts. (Id., ¶¶ 34-35). The complaint alleges that Defendants Campbell

and Love were present but did not intervene in the ongoing incident. (Id., ¶ 36).

After the incident with the cell extraction team, Leaphart was brought from

his cell to a cell in the RHU, then moved once more to a “dry cell” in the prison’s

D-block. (Id., ¶¶ 40-44). The “dry cell” is described as a cell with nothing but a toilet,

sink, and cement bed, with no running water or mattress. (Id., ¶ 44). Leaphart

contends that though he was covered in OC spray, he was put into the “dry cell”

without an opportunity to decontaminate beyond having his eyes washed. (Id., ¶¶

41-42, 48-49). Five days later, on or about April 25, 2019, the plaintiff was released

from the dry cell and subsequently submitted a sick request because of issues he

alleges stemmed from the cell extraction incident. (Id., ¶¶ 50, 52).

From here, Leaphart’s claims leap forward in time to January of 2020, when

he is transferred from SCI Huntingdon to SCI Houtzdale. (Id., ¶ 62). The complaint

implies that by this time, he had begun to pursue a civil lawsuit against the members

of the cell extraction team, which he believes resulted in his transfer to Houtzdale.

(Id., ¶ 61). It is at SCI Houtzdale where Leaphart’s First Amendment claims arise.

(Id., ¶ 62).

For the better part of February 2020, Leaphart allegedly engaged in an

ongoing dialogue with Defendant Boal over various commissary foodstuffs that had

been a part of Leaphart’s property while at SCI Huntingdon. (Id., ¶¶ 63-68). The

complaint asserts that Boal had previously been a correctional officer at SCI

Huntingdon. (Id., ¶ 66). Leaphart alleges that Defendant Boal took the items from

his property and would not return them. (Id., ¶¶ 72-73, 76). This caused Leaphart to

file an inmate grievance against Defendant Boal on February 20, 2020. (Id., ¶ 76).

Leaphart further contends that Boal announced to other inmates on the block that

Leaphart was a “rat” because he had filed a lawsuit against officers at SCI

Huntingdon. (Id., ¶ 78).

Sometime after Leaphart filed a grievance against Boal, Boal allegedly

offered Leaphart his choice of food items in return for Leaphart’s withdrawal of the

grievance. (Id., ¶¶ 80-84). Leaphart claims that he agreed to this offer, and his cell

was later filled with the food. (Id., ¶¶ 84-85). Leaphart contends that he tried to

explain this quid pro quo to his counselor but was rebuffed. (Id., ¶¶ 85-86). Instead,

Leaphart alleges that he was given the option of either signing the grievance

withdrawal, giving back the food, or receiving a misconduct for lying. (Id.)

According to Leaphart, he opted to sign the withdrawal under duress. (Id.)

In March of 2020, Leaphart alleges that he attempted to address issues related

to these experiences at SCI Houtzdale with Defendant Major Barrows, while

Barrows was walking past his cell. (Id., ¶ 88). Leaphart claims Defendant Barrows

implied that continuing to write grievances would ensure that the Program Review

Committee (“PRC”) would not grant any privileges to Leaphart. (Id., ¶¶ 88-90). The

complaint indicates that at that time, Defendant Barrows was a member of the PRC

and had a say in whether privileges should be granted. (Id., ¶ 91). Leaphart alleges

that while he remained misconduct-free, he was not afforded any privileges. (Id., ¶¶

94, 106).

Leaphart subsequently filed this action in the United States District Court for

the Middle District of Pennsylvania on July 23, 2021. (Doc. 1). In his complaint, he

alleges violations of his First and Eight Amendment rights under 42 U.S.C. § 1983

arising from his cell extraction, and treatment at SCI Houtzdale. On October 5, 2021,

the defendants moved to dismiss the complaint, arguing a lack of personal

involvement by a number of the named officers, as well as Eleventh Amendment

immunity as to all official capacity claims. (Doc. 17). This motion is fully briefed

and ripe for resolution. (Docs. 17, 21, 22, 23). For the reasons set forth below, the

defendants’ motion to dismiss will be granted in part and denied in part.

III. Discussion

A. Motion to Dismiss – Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id., at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129

S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

With our discretion and judgment cabined and confined by the well-pleaded

allegations in this complaint, we turn to an assessment of the legal sufficiency of

Leaphart’s averments.

B. The Motion to Dismiss Should Be Granted in Part and Denied in Part.

1. The Defendants’ Motion to Dismiss Should Be Denied with

Respect to the Eighth Amendment Claims.

In their motion to dismiss, the defendants contend that Leaphart has not

alleged any personal involvement by officers Sosak, Booher, and Long with regards

to his Eight Amendment excessive force claim stemming from the cell extraction.

(Doc. 17, at 4). Thus, the defendants believe that Leaphart’s Eight Amendment

claims against these three named officers should be dismissed. (Id.) We disagree.

It is well settled that “a defendant in a civil rights action must have personal

involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). Personal

involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence but cannot be solely predicated on the operation of

respondeat superior. Rode, 845 F.2d at 1207–08. A complaint may adequately

allege a defendant's personal direction, or actual knowledge and acquiescence by

“alleg[ing] the particulars of ‘conduct, time, place, and persons responsible,’ ” and

must allege more than a “mere hypothesis” that the defendant had knowledge or

involvement in the incident. Muhammad v. Martin, No. 3:19-CV-1316, 2021 WL

832645, at *5 (M.D. Pa. Mar. 4, 2021) (quoting Evancho v. Fisher, 423 F.3d at 354;

Rode, 845 F.2d at 1207-08).

The Eighth Amendment to the United States Constitution prohibits the

infliction of “cruel and unusual punishment.” U.S. Const. amend. VIII. In the prison

context, the Supreme Court of the United States has stated that only “the unnecessary

and wanton infliction of pain ... constitutes cruel and unusual punishment.” Whitley

v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting

Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)

(internal quotations omitted)). This Eighth Amendment prohibition extends to the

use of excessive force by correctional officers upon prison inmates, Hudson v.

McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), as well as a

failure to protect inmates from the use of excessive force. Farmer v. Brennan, 511

U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

However, not every incident in which a prison guard uses force will give rise

to a claim under the Eighth Amendment. Hudson, 503 U.S. at 9, 112 S.Ct. 995. A

plaintiff asserting a claim of excessive force against a correctional officer must show

that the force was applied “ ‘maliciously and sadistically for the very purpose of

causing harm’ instead of ‘in a good faith effort to maintain or restore discipline.’ ”

Robinson v. Danberg, 673 F. App'x 205, 211 (3d Cir. 2016) (quoting Hudson, 503

U.S. at 6, 112 S.Ct. 995). Several factors should be considered to determine if force

used by the official violates 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 the

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

inmates, as reasonably perceived by the responsible officials, ... and (5)

any efforts made to temper the severity of a forceful response.

Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (internal quotations and citations omitted).

Our inquiry thus turns on whether Leaphart’s complaint alleges sufficient

facts showing the personal involvement of these defendants that are more than mere

hypothesis. The plaintiff’s complaint claims several of the named defendants were

part of a cell extraction team that participated in an assault on Leaphart at SCI

Huntingdon. (Doc. 1, ¶ 24). For their part, the defendants argue that with respect to

Officers Sosak, Booher, and Long, Leaphart has failed to allege any personal

involvement. (Doc. 17, at 5). However, the defendants appear to hold Leaphart to a

higher standard than is necessary at this stage of the litigation. While Leaphart’s

complaint does not describe the minutiae of every defendant’s exact actions during

this alleged assault, he does provide the name and role of every member of the cell

extraction team, including Sosak, Booher, and Long. (Doc. 1, ¶ 24). Leaphart

identifies all three, clad in body armor, as entering the cell after he was OC sprayed,

handcuffing him, then participating in the alleged assault that followed. (Id., ¶¶ 25-

35).

Examining these pleadings in the light most favorable to the plaintiff, we find

that Leaphart has set forth sufficient factual allegations implicating these defendants

in the alleged Eighth Amendment violation. When read together, paragraphs 31 and

32 of the complaint identify the members of the team who entered the cell by name

and then allege that “they started to rain down blows…” (Doc. 1, ¶¶ 31-32)

(emphasis added). Leaphart’s recitation of the incident involves no conclusory

language, but instead a grouping of factual allegations that claim the conduct, time,

place, and persons responsible for his alleged assault. Viewing the complaint

liberally, as we are obliged to do in the case of pro se plaintiffs, it is more than “mere

hypothesis” that Sosak, Booher, and Long were on the cell extraction team that

entered Leaphart’s cell, restrained him, and then struck him on April 20, 2019.

Indeed, the Third Circuit has found that an assault perpetuated after an inmate was

handcuffed and restrained could be sufficient to reach an Eighth Amendment

violation. See e.g., Shelton v. Bledsoe, 522 F. App'x 109, 112 (3d Cir. 2013). The

facts as pleaded by Leaphart similarly support an Eighth Amendment excessive

force cause of action against defendants Sosak, Booher, and Long at this stage of the

litigation.

To the extent that Leaphart failed to tie the specific blows to Sosak, Booher,

and Long with any greater particularity, the correctional officers’ presence in the cell

while Leaphart received these claimed blows form the basis of a related Eighth

Amendment cause of action based upon a failure to intervene. Indeed, the Third

Circuit has considered the question of whether a prison correctional officer has a

duty to take reasonable steps to protect a victim from another officer's use of

excessive force, even if the excessive force is employed by a superior. Smith v.

Mensinger, 293 F.3d 641 (3d Cir. 2002). Upon consideration of the issue, the Third

Circuit held “that a corrections officer's failure to intervene in a beating can be the

basis of liability for an Eighth Amendment violation under § 1983 if the corrections

officer had a reasonable opportunity to intervene and simply refused to do so.” Id. at

650. In addition, the court held that “a corrections officer cannot escape liability by

relying upon his inferior or non-supervisory rank vis-a-vis the other officers.” Id.

In reaching this holding, the Court took care to explain that “the duty to uphold

the law does not turn upon an officer's rank ... [and] is neither affected by, nor

proportional to, a non-intervening officer's relationship to an offending colleague.”

Id. at 651. The Court emphasized the reason for its conclusion, and expressed its

substantial concern with the failure of a police or corrections officer to intervene to

prevent excessive force, as follows:

The approving silence emanating from the officer who stands by and

watches as other unleash an unjustified assault contributes to the actual

use of excessive force, and we cannot ignore the tacit support such

silence lends to those who are actually striking the blows. Such silence

is an endorsement of the constitutional violation resulting from the

illegal use of force. It is incompatible with the restrictions imposed

under the Eighth Amendment, and is therefore unacceptable. We will

not immunize such conduct by suggesting that an officer can silently

contribute to such a constitutional violation and escape responsibility

for it. The restriction on cruel and unusual punishment contained in the

Eighth Amendment reaches non-intervention just as readily as it

reaches the more demonstrable brutality of those who unjustifiably and

excessively employ fists, boots or clubs.

Id. (footnote omitted)

Thus, Smith held that corrections officers may be liable under § 1983 for

failing to intervene in an instance of excessive force if they had a reasonable

opportunity to do so. A valid failure to intervene claim requires: (1) the officer had

a duty to intervene; (2) the officer had the opportunity to intervene; and (3) the

officer failed to intervene. Smith, 293 F.3d at 650-51. In Smith there was evidence

that a corrections officer witnessed a fellow officer beat the inmate plaintiff. The

Third Circuit found this was sufficient for a fact finder to conclude the officer knew

of the excessive force being used, had an opportunity to intervene, but refused to do

so. Id. at 652. The Court reasoned that corrections officers are sworn to uphold the

law and are authorized to use force toward that end; however, the law does not

condone the use of excessive force. Id. at 651.

Here, the defendants contest personal involvement by Officers Sosak, Booher,

and Long on the basis that plaintiff has not alleged individual strikes against him

with any particularity. While we believe complaint paragraphs 31 and 32 do just this

and are therefore dispositive of the question of the defendants’ personal

involvement, we additionally note that, according to Smith, placing the named

officers in the cell while Defendant Kirsch placed the shackled plaintiff in a choke

hold is sufficient to state a claim against these officers for failing to intervene. As

fellow corrections officers sworn to uphold the law, Sosak, Booher, and Long had a

duty to intervene when Kirsch allegedly used excessive force in violation of the

Eighth Amendment. According to the complaint, at the moment of the alleged

assault, each officer was proximally close enough to intervene but all failed to act,

even though it was their duty to do so.

Accordingly, because we have found that Leaphart has sufficiently alleged the

personal involvement of these defendants in his Eighth Amendment claim, either as

an excessive force claim or in the alternative as a failure to intervene claim, the

defendants’ motion to dismiss this claim against these defendants will be denied.

2. The Defendants’ Motion to Dismiss Should Be Denied with

Respect to First Amendment Claims.

The defendants further argue that the plaintiff’s First Amendment retaliation

claims against Lt. Boal and Major Barrows should be dismissed for lack of personal

involvement. (Doc. 17, at 5). Leaphart’s First Amendment claims relate to his post-

cell extraction experiences after being transferred from SCI Huntingdon to SCI

Houtzdale. The plaintiff claims separate incidents of retaliation for the complaints

he filed at SCI Huntingdon. (Doc. 1, ¶ 61).

A prisoner claiming that prison officials have retaliated against him for

exercising his constitutional rights must first prove: (1) the conduct in which he

engaged was constitutionally protected; (2) he suffered adverse action at the hands

of prison officials; and (3) his constitutionally protected conduct was a substantial

motivating factor in the defendants’ conduct. Carter v. McGrady, 292 F.3d 152, 158

(3d Cir. 2002). With respect to the obligation to demonstrate that he suffered an

adverse action, a plaintiff must demonstrate that he suffered action that “was

sufficient to deter a person of ordinary firmness from exercising his rights.” Allah v.

Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). However, it is well settled that de

minimis actions do not rise to the level of constitutionally cognizable retaliation.

Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (“It is not necessarily true,

however, that every action, no matter how small, is constitutionally cognizable”). As

one court has observed:

The de minimis standard . . . achieves the proper balance between the

need to recognize valid retaliation claims and the danger of “federal

courts embroil[ing] themselves in every disciplinary act that occurs in

state penal institutions.” Woods, 60 F.3d at 1166. The purpose of

allowing inmate retaliation claims under § 1983 is to ensure that

prisoners are not unduly discouraged from exercising constitutional

rights. See Crawford-El, 523 U.S. at 588 n. 10, 118 S. Ct. 1584. Some

acts, though maybe motivated by retaliatory intent, are so de minimis

that they would not deter the ordinary person from further exercise of

his rights. Such acts do not rise to the level of constitutional violations

and cannot form the basis of a § 1983 claim.

Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). See, e.g., Pope v. Bernard, No.

10 1443, 2011 U.S. App. LEXIS 2764, 2011 WL 478055, at *2 (1st Cir. Feb. 10,

2011).

The third essential element to a retaliation claim is that there be a causal link

between the exercise of a constitutional right and the adverse action taken against

the prisoner. Rauser, 241 F.3d at 333-34. To establish this third, and crucial,

component to a constitutional retaliation claim, causation, Leaphart must make an

exacting showing. In this setting:

To establish the requisite causal connection a plaintiff usually must

prove either (1) an unusually suggestive temporal proximity between

the protected activity and the allegedly retaliatory action, or (2) a

pattern of antagonism coupled with timing to establish a causal link.

See Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir.

1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir.

1997). In the absence of that proof the plaintiff must show that from the

“evidence gleaned from the record as a whole” the trier of the fact

should infer causation. Farrell v. Planters Lifesavers Co., 206 F.3d 271,

281 (3d Cir. 2000).

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

Moreover, when examining these causation issues, we are specifically admonished

that:

A court must be diligent in enforcing these causation requirements

because otherwise a public actor cognizant of the possibility that

litigation might be filed against him, particularly in his individual

capacity, could be chilled from taking action that he deemed

appropriate and, in fact, was appropriate. Consequently, a putative

plaintiff by engaging in protected activity might be able to insulate

himself from actions adverse to him that a public actor should take. The

point we make is not theoretical as we do not doubt that public actors

are well aware that persons disappointed with official decisions and

actions frequently bring litigation against the actors responsible for the

decisions or actions in their individual capacities, and the actors surely

would want to avoid such unpleasant events. Thus, it would be natural

for a public actor to attempt to head off a putative plaintiff with the

unwarranted expenditure of public funds. Courts by their decisions

should not encourage such activity and, by enforcing the requirement

that a plaintiff show causation in a retaliation case, can avoid doing so

as they will protect the public actor from unjustified litigation for his

appropriate conduct. In this regard we recognize that often public actors

such as those in this case must make a large number of decisions in

charged atmospheres thereby inviting litigation against themselves in

which plaintiffs ask the courts to second guess the actors’ decisions.

Id. at 267-68.

Mindful of these concerns, courts have in the past carefully scrutinized inmate

claims of retaliation premised solely on circumstantial proof of a temporal proximity

between the plaintiff’s conduct and allegedly retaliatory acts. Indeed, this Court has

spoken directly to the issue of what must be shown to state a valid complaint in this

factual context, noting that:

To establish the causation element of a retaliation claim, a plaintiff must

prove that his or her participation in a protected activity motivated the

defendant to perform the retaliatory act. Ambrose v. Twp. of Robinson,

303 F.3d 488, 493 (3d Cir. 2002); Meenan v. Harrison, Civ. A. No.

3:03-CV-1300, 2006 WL 1000032, at *4 (M.D. Pa. Apr. 4, 2006)

(observing that a plaintiff must demonstrate that the exercise of First

Amendment rights “played some substantial role” in the defendant’s

action). The temporal proximity of a retaliatory act to a plaintiff’s

exercise of his or her First Amendment rights is probative, but not

dispositive, of the causation element. Estate of Smith v. Marasco, 318

F.3d 497, 512 (3d Cir. 2003); see also Kachmar v. Sungard Data Sys.,

Inc., 109 F.3d 173, 178 (3d Cir. 1997) (stating that “temporal proximity

merely provides an evidentiary basis from which an inference can be

drawn”). For temporal proximity alone to establish causation, the

“timing of the alleged retaliatory action must be ‘unusually suggestive’

of retaliatory motive before a causal link will be inferred.” Marasco,

318 F.3d at 512 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494,

503 (3d Cir. 1997)) . . . [T]he Third Circuit Court of Appeals has

suggested that a temporal proximity of two days is sufficient to

establish causation, see Farrell v. Planters Lifesavers Co., 206 F.3d 271,

279 & n. 5 (3d Cir. 2000), whereas a temporal proximity of ten days is

sufficient to establish causation only when accompanied by other

evidence of . . . wrongdoing, Shellenberger v. Summit Bancorp, Inc.,

318 F.3d 183, 189 (3d Cir. 2003). This suggests that the temporal

proximity must be measured in days, rather than in weeks or months,

to suggest causation without corroborative evidence.

Conklin v. Warrington Tp., No. 06-2245, 2009 WL 1227950, *3 (M.D. Pa. April 30,

2009).

Applying this standard, courts in civil rights cases have frequently rebuffed

speculative efforts to infer causation from temporal proximity when a span of weeks

or months separated the plaintiff’s constitutionally protected conduct from the

defendants’ alleged acts of retaliation. Thus, “[o]ur sister courts have held that a

temporal proximity of as little as seventeen days was insufficient to establish

causation.” Fischer v. Transue, 04-2756, 2008 WL 3981521, *10 (M.D. Pa. Aug. 22,

2008) (collecting cases and holding that temporal proximity of three weeks was

insufficient to establish causation) (cleaned up).

Turning to the plaintiff’s claims against Boal, Leaphart describes a two-week

period in February of 2020 during which time his commissary food items went

missing after being taken by Boal. (Doc. 1, ¶¶ 63-73). He further avers that when he

attempted to talk to Boal about this, Boal refused and pointed to the plaintiff’s

lawsuit against Boal’s former coworkers at SCI Huntingdon as the reason for his

refusal. (Id., ¶¶ 77-79). After Leaphart filed a grievance against Boal for the missing

food items, he alleges that Boal attempted to bribe him with equivalent items in

exchange for Leaphart retracting the grievance. (Id., ¶¶ 81-84). Leaphart acquiesced

and eventually retracted the grievance after his counselor pointed out that failing to

retract would lead to a misconduct for lying to a correctional officer. (Id., ¶¶ 85-87).

It is well established that the filing of lawsuits and grievances is protected

conduct under the First Amendment. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.

2003). Thus, inmates claiming retaliation for their filing of grievances must prove

that they suffered adverse action by prison officials sufficient to deter a person of

ordinary firmness from exercising this right. O'Donnell v. Pennsylvania Dep't of

Corr., 790 F. Supp. 2d 289, 303 (M.D. Pa. 2011). One court in this district has

previously held that the confiscation of personal property may constitute adverse

action “if motivated solely by a retaliatory motive.” Page-Jones v. Berfield, No.

1:20-CV-1042, 2021 WL 5906107, at *6 (M.D. Pa. Dec. 14, 2021) (quoting

Hernández-Tirado v. Lowe, No. 3:14-cv-1897, 2017 WL 3433690, at *10 (M.D. Pa.

Aug. 10, 2017). Reading the pro se complaint liberally, the plaintiff claims that

Boal’s treatment of him stems from Leaphart’s lawsuits against SCI Huntingdon

correctional officers, who Boal referred to as “his guys.” (Doc. 1, ¶ 78). Leaphart

contends that Boal, motivated by these lawsuits, took the food which the plaintiff

had purchased from the commissary then used it to stymie his further filing of

grievances. (Id., ¶¶ 81-84).

Leaphart alleges a series of events that begins with his filing of grievances

and ends with his property being taken. (Id., ¶ 61-73). Boals’ alleged comments

towards Leaphart’s filing of grievances, and the temporal proximity of Boals’

actions to these comments suggests that Boals was motivated to act by Leaphart’s

protected conduct. (Id., ¶¶ 78, 81-84). Accepting the plaintiff’s allegations as true,

as we must at this stage, we find the plaintiff has sufficiently pleaded personal

involvement by Boals to support a First Amendment claim for retaliation.

Leaphart’s retaliation claim against Major Barrows features a more

straightforward series of events. (Doc. 1, ¶¶ 88-99). Leaphart claims that after his

experiences with Boals, he told Major Barrows that it was his ambition to “move

forward with a fresh start.” (Id., ¶ 89). Major Barrows responded by telling the

plaintiff that he should “fall back and don’t write a bunch of grievances,” implying

that all internal PRC requests from Leaphart would be denied if he continued to do

so. (Id., ¶ 90). Leaphart avers that at the time, Major Barrows was a member of the

PRC, and that the PRC was responsible for setting the criteria of the plaintiff’s

privileges and the timeframe for changes to his Administrative Custody status. (Id.,

¶ 91). The plaintiff responded to this perceived threat by filing a grievance against

Major Barrows. (Id., ¶ 92). Leaphart then claims that even though he had a

misconduct-free record since his filing, he received no privileges from the PRC. (Id.,

¶¶ 92, 94).

Here again, Leaphart claims that he participated in protected conduct by filing

grievances against Major Barrows. (Id., ¶ 93). Standing alone, a blanket denial of

privileges while in administrative confinement does not normally create an

actionable liberty interest. Allah v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000).

However, if these denials are motivated by a desire to punish an individual for

exercising a constitutional right, they may form the basis of a constitutional tort.

McLaughlin v. Hart, No. 1:13-CV-2851, 2015 WL 13738991, at *12 (M.D. Pa. July

15, 2015). Leaphart alleges that Barrows tied Leaphart’s treatment while in

administrative confinement to his protected conduct of filing grievances. (Doc. 1, ¶

90). Thus, based solely upon the pleadings it can be inferred that if Leaphart

continued to exercise his First Amendment right to avail himself of the grievance

process, Major Barrows would prevent Leaphart from receiving any requested

privileges from the PRC. While the denial of requested privileges alone does not

give rise to a First Amendment violation, the plaintiff’s allegations that Major

Barrows’ denials were designed to prevent him from engaging in a protected activity

are sufficient to maintain such a claim at this stage. Further, the plaintiff supports

these allegations by alleging Major Barrows’ own statements of intention, removing

any doubt about the causality of his denials and what they were designed to do.

Taking these allegations as true, as we must at this stage of the litigation, we

find that Leaphart has pleaded sufficient allegations of retaliation with respect to

Major Barrows. The question of whether Leaphart can prove what he has pled must

await another day, and another proceeding. Accordingly, the defendants’ motion to

dismiss this First Amendment claim will be denied.

3. The Defendants’ Motion Should be Granted With Respect to

Plaintiff’s Eleventh Amendment Official Capacity Claims.

Finally, the defendants contend that any claims brought against them in their

official capacity should be dismissed, as these claims are barred by the Eleventh

Amendment. As a matter of constitutional law, the Eleventh Amendment to the

Constitution provides that “[t]he Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against

one of the . . States . . . ” U.S. Const. amend XI. By its terms, the Eleventh

Amendment strictly limits the power of federal courts to entertain cases brought by

citizens against the state and state agencies. Moreover, a suit brought against an

individual acting in his or her official capacity constitutes a suit against the state and

therefore also is barred by the Eleventh Amendment. Will v. Michigan Dept. of State

Police, 491 U.S. 58 (1989).

Pursuant to the Eleventh Amendment, states, state agencies, and state officials

who are sued in their official capacity are generally immune from lawsuits in federal

courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54

(1996). This proscription directly applies here:

Because the Commonwealth of Pennsylvania's Department of

Corrections is a part of the executive department of the Commonwealth,

see Pa. Stat. Ann., tit. 71, ' 61, it shares in the Commonwealth's

Eleventh Amendment immunity. Such immunity, . . . , may be lost in

[only] one of two ways: (1) if the Commonwealth waived its immunity;

or (2) if Congress abrogated the States' immunity pursuant to a valid

exercise of its power. See College Sav. Bank, 527 U.S. at 670, 119 S.

Ct. 2219; Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240-41,

105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).

Lavia v. Pennsylvania, Dept. of Corr., 224 F.3d 190, 195 (3d Cir. 2000).

Under the Eleventh Amendment, the Commonwealth’s immunity exists as a

matter of law unless waived by the state, or expressly and unequivocally abrogated

by Congress. In this case, it is clear that Congress has not expressly abrogated this

constitutional immunity with respect to federal civil rights lawsuits against the

Commonwealth of Pennsylvania Department of Corrections, and the

Commonwealth clearly has not waived its immunity. See Lavia, 224 F.3d at 195.

Quite the contrary, the Commonwealth has specifically by statute invoked its

Eleventh Amendment immunity in 42 Pa. Cons. Stat. § 8521(b). Thus, while

Pennsylvania has, by law, waived sovereign immunity in limited categories of cases

brought against the Commonwealth in state court, see 42 Pa. Cons. Stat. § 8522,

Section 8521(b) flatly states that: “Nothing contained in this subchapter shall be

construed to waive the immunity of the Commonwealth from suit in federal courts

guaranteed by the Eleventh Amendment to the Constitution of the United States.” §

8521(b). Moreover, beyond these constitutional considerations, as a matter of

statutory interpretation, the plaintiff cannot bring a damages action against the

Commonwealth since it is also well settled that a state, a state agency, or a state

official acting in an official capacity is not a “person” within the meaning of 42

U.S.C. § 1983, the principal federal civil rights statute. Will, 491 U.S. at 71.

These basic legal tenets apply here and are fatal to the plaintiff's damages

claims against these state defendants in their official capacities. In sum, as to these

state officials, these federal civil rights claims for damages based upon official

capacity claims are barred by the Eleventh Amendment to the United States

Constitution. Therefore, since the state and its officials cannot be sued in this fashion

in federal court, these claims should be dismissed. However, Leaphart may maintain

these damages claims against the defendants in their individual capacities.

IV. Conclusion

Accordingly, for the foregoing reasons, the defendants’ motion to dismiss

(Doc. 16), will be GRANTED as to claims against the defendants in their official

capacities, but DENIED in all other respects.

An appropriate order follows.

s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: April 19, 2022