Opinion

Tucker v. Wetzel

Court
District Court, M.D. Pennsylvania
Filed
Jan 19, 2023
Cited by
0 cases
Authority
More cited than 29.2%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HASSAN A. TUCKER, : CIVIL ACTION NO. 1:22-CV-631

:

Plaintiff : (Judge Conner)

:

v. :

:

JOHN E. WETZEL, et al., :

:

Defendants :

MEMORANDUM

This is a prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. Plaintiff,

Hassan A. Tucker, alleges violations of the First, Fifth, Eighth, and Fourteenth

Amendments arising from a disciplinary sanction that resulted in him being placed

in the Restricted Housing Unit (“RHU”) at the Rockview State Correctional

Institution (“SCI-Rockview”), his subsequent placement on the Pennsylvania

Department of Corrections’ Restricted Release List (“RRL”) and resulting solitary

confinement, an alleged use of excessive force on April 27, 2020, the conditions of

his confinement, and a DOC policy that allegedly prevents him from marrying his

fiancée. Defendants have moved to partially dismiss the complaint for misjoinder

pursuant to Federal Rule of Civil Procedure 20 and for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion will be granted in

part and denied in part.

I. Factual Background & Procedural History

Tucker initiated this case through the filing of a complaint on April 15, 2022,

and the court received and docketed the complaint on April 29, 2022. (Doc. 1).

According to the allegations in the complaint, Tucker is currently incarcerated in

the Phoenix State Correctional Institution (“SCI-Phoenix”) and was incarcerated in

SCI-Rockview and SCI-Phoenix during the period of time relevant to this case. (Id.

at 6, 9). While incarcerated in SCI-Rockview, Tucker was placed in solitary

confinement on August 1, 2019 because he allegedly assaulted another inmate. (Id.

at 12). After Tucker was placed in solitary confinement, defendant Vance

purportedly came to his cell and asked him several questions, including: “Do you

want to go on RRL?”; “Are you in a gang?”; and “Are you a Muslim?” (Id. at 13).

As a result of this “interrogation,” SCI-Rockview officials allegedly decided to

pursue RRL status for Tucker. (Id.)

Tucker was subsequently issued a misconduct citation on August 13, 2019 by

defendant Vance arising from the alleged assault. (Id. at 12). The citation was

referred for a hearing on August 15, 2019 before a disciplinary hearing officer,

defendant Pelosi. (Id.) Pelosi, purportedly in collusion with Vance, denied Tucker’s

request to call witnesses. Pelosi supposedly found Tucker guilty of the underlying

misconduct despite the complete absence of evidence supporting her decision. (Id.)

Tucker was placed on RRL status1 on November 17, 2019. (Id. at 13).

According to the complaint, Tucker was not afforded due process before being

placed on RRL status. (Id.) The decision to place him on RRL status was allegedly

done by affirmative vote of SCI-Rockview’s superintendent and deputy

1 The complaint alleges that placement on RRL subjects an inmate to

“indefinite solitary confinement” and that it is the most severe movement

restriction a DOC inmate may receive. (Doc. 1 at 13).

superintendents, the DOC’s central regional director, the DOC’s deputy secretary,

and the DOC’s secretary. (Id. at 14). Deputy superintendent Houser allegedly

informed Tucker in January 2020 that he could not appeal the decision to place him

on RRL. (Id.) The complaint avers that the ultimate decision of whether to place

an inmate on RRL and whether to continue or remove an inmate from RRL is made

by the secretary of the DOC. (Id.)

As a result of his placement on RRL, Tucker allegedly remains in solitary

confinement for 22-24 hours a day in a cell in which it is difficult to exercise or sit

upright in bed. (Id. at 14). He purportedly is restricted from any contact with other

prisoners, prison staff, religious advisors, legal counsel, friends, or family. (Id.)

According to the complaint, Tucker’s cell in SCI-Rockview had no windows, while

his cells in SCI-Phoenix contain windows tinted in an opaque manner preventing

any view beyond the four walls of his cell. (Id. at 15). His cell has allegedly been

illuminated 24 hours a day, resulting in sleep deprivation, disorientation,

deterioration of vision, and confusion as to the time of day. (Id.) He has also

purportedly been subjected to constant noise on the cell block; he has been housed

in a block with inmates suffering from severe mental illness who frequently throw

bodily waste and spoiled food from their cells. (Id.) Tucker is allegedly given no

access to running water or cleaning supplies that could be used to clean the bodily

waste and food waste contaminating his cell. (Id.) According to the complaint,

Tucker has been forced to switch cells every 90 days and has been placed in several

cells with “remnants of bodily waste” on the walls and fixtures of the cells. (Id.) He

has allegedly been denied socks, underwear, and under shirts as well as laundry

services, coercing him to handwash his clothing. (Id. at 15-16).

The complaint alleges that on several occasions during Tucker’s solitary

confinement, prison staff used chemical sprays to remove inmates from their cells

in close proximity to his cell, which exacerbated symptoms of his asthma. (Id. at

16). He is also restricted from retaining any personal property in his cell other than

two pairs of underclothes, one religious book, and writing paper. (Id.) Corrections

officers allegedly check all cells on Tucker’s housing unit every 15 minutes, during

which they shine flashlights in his eyes and look into his cell. (Id.) The complaint

further alleges that Tucker’s only reprieve from his cell is a short period of time that

he spends inside a “kennel-style cage” that is about the same size as his cell. (Id.)

On April 27, 2020, Tucker allegedly attempted to commit suicide by hanging

himself with a bedsheet. (Id.) The first officer to respond to Tucker’s cell,

defendant Fisher, purportedly cut the bedsheet from Tucker’s neck and allowed

him to fall to the floor. (Id. at 17). Tucker’s head allegedly hit the floor and

sometime later he regained consciousness to feel unnamed correctional officers

kneeling on the back of his head and neck, twisting his handcuffed wrists, and

kneeling on his ankles with their full body weight despite his complaints of extreme

pain. (Id.)

Tucker remained handcuffed until he was taken to the prison’s medical

department, at which point an unnamed nurse directed the officers to loosen the

handcuffs. (Id.) Defendant Reese, a correctional officer in the prison, allegedly

recorded the officers’ actions in restraining Tucker and transporting him to the

medical department with a handheld camera. (Id.) Correctional officers then

supposedly attached a “remote activator custody control” (“RACC”) to Tucker’s

torso, a device that was able to remotely administer an electric shock to Tucker’s

body. (Id. at 17-18).

The nurse examining Tucker after his suicide attempt determined that he

needed medical care beyond that which could be provided by the staff at the prison.

(Id. at 17). Tucker was accordingly transported to Mt. Nittany Hospital, where an

unnamed doctor allegedly diagnosed him with heart trauma; a concussion; bruises

to his neck, wrist, and leg; and blood clots in his eyes and hands. (Id.) Defendant

Kimberly, a correctional officer at SCI-Rockview, was assigned to supervise Tucker

in the hospital. (Id. at 18). Kimberly allegedly had a gun and the remote control

that controlled Tucker’s RACC on his body. (Id.) Kimberly purportedly activated

the RACC for several seconds as Tucker was being handcuffed and shackled to his

hospital bed, causing Tucker to involuntarily release his bowels and grind his teeth

until they chipped. (Id.) Kimberly then allegedly “brandished” his gun and forced

Tucker to wait several hours to have the feces cleaned off his body. (Id.) Defendant

Kimberly also allegedly played the hospital room television at high volume

throughout the night, making it impossible for Tucker to sleep. (Id.)

On April 30, 2020, Tucker was returned to SCI-Rockview, where he was

placed in a “cold and filthy” psychiatric observation cell with no mattress, sheets, or

blankets and several stains from bodily fluids on the walls. (Id. at 19). He was

allegedly denied meals for four days until May 4, 2020 and was denied the use of a

shower from April 27, 2020 to May 5, 2020 while “remnants of feces festered on his

buttocks and legs.” (Id.)

Tucker was returned to the RHU on May 13, 2020, at which point correctional

officers Fisher, Reese, and Sharrow allegedly began ridiculing Tucker for his

suicide attempt. (Id. at 20). According to the complaint, these officers encouraged

Tucker to attempt suicide again and Fisher stated that he “should have let [Tucker]

die.” (Id.) Fisher also allegedly directed other officers to “deprive Tucker of

everything,” which led the officers to “defile” Tucker’s meals, refuse to take him to

scheduled visits, deny him cleaning supplies, throw away his laundry, and destroy

his personal property. (Id.)

Tucker was transferred to SCI-Phoenix on March 31, 2021, for placement in

an intensive management unit (“IMU”) designed for inmates on RRL. (Id.) Tucker

was allegedly subjected to “extreme deprivations” after his transfer to the IMU, but

was not given any process to contest his placement in the IMU. (Id.) While in the

IMU, Tucker has been forced to participate in group sessions with other inmates

where he has been compelled to answer questions about past crimes that he

committed and to speculate about future crimes that he might commit. (Id. at 21).

The complaint further alleges that Tucker is prohibited from marrying his fiancée

while he is on RRL. (Id. at 23).

The complaint raises seven claims for relief: (1) that Tucker’s prolonged

solitary confinement as a result of his RRL placement by defendants Wetzel and

Little constitutes cruel and unusual punishment under the Eighth Amendment; (2)

that Tucker’s continued placement on RRL by Wetzel and Little without any

procedures available to challenge the placement violates the Due Process Clause of

the Fourteenth Amendment; (3) that Wetzel and Little have subjected him to

unconstitutional conditions of confinement in violation of the Eighth Amendment;

(4) that defendants Fisher, Kimberly, Sharrow, and Reese subjected him to

excessive force in violation of the Eighth Amendment and committed assault and

battery under Pennsylvania law; (5) that Wetzel and Little violated Tucker’s rights

under the First Amendment by restricting his ability to marry his fiancée; (6) that

compelling Tucker to participate in group IMU sessions violates his Fifth

Amendment right to be free from self-incrimination; and (7) that defendants Vance

and Pelosi committed retaliation in violation of the First Amendment and violated

Tucker’s right to due process under the Fourteenth Amendment. (Id. at 23-25).

Defendants moved for partial dismissal of the complaint on August 10, 2022.

(Docs. 17-18). Defendants argue (1) that the claims against Wetzel, Little, Vance,

Reese, Fisher, and Pelosi are misjoined to Tucker’s claims against Kimberly and

should be dismissed pursuant to Federal Rule of Civil Procedure 20; (2) that the

claims against Wetzel, Little, Reese, Vance, and Pelosi fail as a matter of law and

that the claims against Pelosi are time barred under the applicable statute of

limitations; (3) that Wetzel, Little, Reese, Vance, and Pelosi are entitled to qualified

immunity; and (4) that Tucker’s claims for declaratory and injunctive relief should

be dismissed because Tucker lacks standing to pursue such relief. (Doc. 18).

Defendants do not seek dismissal of Tucker’s claims against defendant Kimberly.

(See id.) Briefing on the motion is complete and it is ripe for disposition. (Docs. 18,

20-1). We address defendants’ arguments below.

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 may 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 all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County

of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the

complaint, matters of public record, [and] undisputedly authentic documents if the

complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol.

Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

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

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

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 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. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it 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 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

Courts must liberally construe complaints brought by pro se litigants. Sause

v. Bauer, 585 U.S. __, 138 S. Ct. 2561, 2563 (2018). Pro se complaints, “however

inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)).

III. Discussion

Tucker brings his constitutional claims under 42 U.S.C. § 1983. Section 1983

creates a private cause of action to redress constitutional wrongs committed by

state officials. 42 U.S.C. § 1983. The statute is not a source of substantive rights, but

serves as a mechanism for vindicating rights otherwise protected by federal law.

See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d

1199, 1204 (3d Cir. 1996). To state a Section 1983 claim, plaintiffs must show a

deprivation of a “right secured by the Constitution and the laws of the United

States . . . by a person acting under color of state law.” Kneipp, 95 F.3d at 1204

(quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

A. Joinder

We first address defendants’ misjoinder argument under Federal Rule of

Civil Procedure 20. Under Rule 20, claims against multiple defendants may be

joined in the same action only if:

(A) any right to relief is asserted against them jointly, severally, or in

the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in

the action.

See Fed. R. Civ. P. 20(a)(2).

Defendants argue that claims against all defendants other than Kimberly

should be dismissed as misjoined because the allegations against Kimberly are

based on a distinct incident that occurred in an outside hospital and the other

claims do not arise from the same occurrence. (Doc. 18 at 5-7). Tucker argues to

the contrary that all of his claims arise from his placement on RRL and are

therefore sufficiently related to be joined under Rule 20. (Doc. 20-1 at 1-2).

We agree with Tucker that the gravamen of his complaint is his placement on

RRL. Defendants Vance and Pelosi allegedly initiated disciplinary charges against

Tucker in an effort to have him placed on RRL; defendants Wetzel and Little are

allegedly responsible for his initial and continued RRL status; his conditions of

confinement, First Amendment, and Fifth Amendment self-incrimination claims

arise from the alleged conditions of his confinement on RRL; and his excessive

force claims arise from his attempted suicide that allegedly occurred as a result of

those conditions of confinement. Hence, we conclude that all claims arise from

Tucker’s placement on RRL and are sufficiently related to be joined under Rule 20.

B. Merits

Turning to the merits of Tucker’s complaint, we first consider his claim that

his placement on RRL by defendants Wetzel and Little constituted cruel and

unusual punishment under the Eighth Amendment. Although placement on RRL

does not by itself violate the Eighth Amendment, see Bramble v. Wetzel, No. 4:20-

CV-2394, 2022 WL 55021, at *7 (M.D. Pa. Jan. 7, 2022), allegations of prolonged

solitary confinement as a result of an inmate’s RRL status may be sufficient to state

an Eighth Amendment claim upon which relief may be granted. See Clarke v.

Coupe, 55 F.4th 167, 179-80 (3d Cir. 2022); Palakovic v. Wetzel, 854 F.3d 209, 225-26

(3d Cir. 2017). Tucker alleges that his RRL placement has led to continued solitary

confinement since November 17, 2019, a period of over three years. We find this

sufficient to allege a violation of the Eighth Amendment.

Wetzel and Little are not entitled to qualified immunity at this time as to

Tucker’s Eighth Amendment claim. “Qualified immunity shields federal and state

officials from money damages unless a plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v. Al-Kidd, 536 U.S.

731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Tucker has

sufficiently pleaded an Eighth Amendment violation by alleging that his RRL status

has kept him in continued solitary confinement since November 17, 2019. The right

to be free from unconstitutionally prolonged solitary confinement was clearly

established throughout that time. See Palakovic, 854 F.3d at 225-26.

The complaint additionally states a due process claim against defendants

Wetzel and Little based on alleged denial of due process prior to Tucker’s RRL

placement. The version of the applicable DOC policy that was in effect when

Tucker was placed on RRL allowed the facility manager of a DOC prison to request

an inmate’s placement on RRL when the inmate “pose[d] a threat to the secure

operation of the facility and where a transfer to another facility or jurisdiction

would not alleviate the security concern.” See DC-ADM 802 (effective Nov. 14,

2016), cited as exhibit in Bramble v. Wetzel, No. 4:20-CV-2394, Doc. 56-2, at *11

(M.D. Pa. Sept. 27, 2021). Once such a request was made, it would be forwarded to

the corrections classification and program manager, the deputy superintendent for

centralized services, the deputy superintendent for facilities management, the

facility manager, the regional deputy secretary, and the executive deputy secretary.

Id. at *12. The executive deputy secretary was then required to forward the request

to the secretary with her recommendation as to whether the inmate should be

placed on RRL. Id. The secretary was charged with the final determination as to

whether the inmate would be placed on RRL. Id. The complaint alleges that

Tucker was not afforded the process contemplated by DC-ADM 802, as he was not

given notice that the prison was seeking RRL placement or any opportunity to

contest the placement. (Doc. 1 at 13-14). Whether the procedures outlined by DC-

ADM 802 were followed when Tucker was placed on RRL is a factual issue that we

cannot resolve on a motion to dismiss.

Similarly, Tucker’s contention that he could not appeal his RRL placement is

sufficient to state a due process claim upon which relief may be granted. Although

both the 2016 version of DC-ADM 802 and the current version allow inmates to

appeal both the initial decision to place an inmate on RRL and the decision to

maintain the inmate’s RRL status, see Bramble, No. 4:20-CV-2394, Doc. 56-2, at *15-

16; DC-ADM 802, at *15-16 (effective Apr. 18, 2022), there is a dispute of fact as to

whether defendants adhered to these appellate procedures with respect to Tucker’s

RRL placement. Moreover, deputy superintendent Houser allegedly

misrepresented to Tucker that he could not appeal his RRL placement. (Doc. 1 at

14). Whether Tucker’s purported reliance on this misrepresentation rendered DC-

ADM 802’s appeal process unavailable is a question of fact that we cannot resolve at

this stage of litigation. Hence, we will deny the motion to dismiss with respect to

the due process claim against defendants Wetzel and Little.

Wetzel and Little are not entitled to qualified immunity with respect to the

due process claim at this stage of litigation. Defendants have the burden to show

that they are entitled to qualified immunity, see Halsey v. Pfeiffer, 750 F.3d 273, 288

(3d Cir. 2014); Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010), and they have not

developed any arguments as to why they are entitled to qualified immunity other

than the conclusory statement that Tucker’s allegations “do not demonstrate the

existence of any constitutional violations nor do they demonstrate that the

individual conduct of these defendants was in any way constitutionally prohibited.”

(Doc. 18 at 14). We concluded above that Tucker has adequately pleaded a violation

of his right to due process, and defendant’s conclusory qualified immunity

argument is not sufficient to conclude that the due process right at issue was not

clearly established at the time of the alleged violation.

Tucker’s conditions of confinement claim against Wetzel and Little fails to

state a claim upon which relief may be granted. A defendant cannot be liable for a

violation of a plaintiff’s civil rights unless the defendant was personally involved in

the violation. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018). The

defendant’s personal involvement cannot be based solely on a theory of respondeat

superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, for a

supervisor to be liable for the actions of a subordinate, there must be allegations of

personal direction or actual knowledge and acquiescence. Id. There are no

allegations in the complaint that Wetzel and Little were aware of the conditions of

Tucker’s confinement beyond the fact of his solitary confinement. The conditions

of confinement claim is based solely on the fact that Wetzel and Little held the

supervisory role of secretary of the DOC. Because this is not a sufficient basis to

allege Wetzel and Little’s personal involvement, see id., we will dismiss the

conditions of confinement claim.

Tucker’s Fifth Amendment self-incrimination claim will similarly be

dismissed for failure to allege personal involvement. Tucker claims he has been

forced to incriminate himself during IMU meetings by making statements about

past crimes he committed, but he does not allege how the named defendants were

personally involved in this alleged civil rights violation.

Tucker’s excessive force claim against defendants Fisher, Sharrow, and

Reese fails to state a claim upon which relief may be granted.2 Excessive force

claims require allegations that force was applied “maliciously and sadistically for

the very purpose of causing harm.” Jacobs v. Cumberland Cty., 8 F.4th 187, 193 (3d

Cir. 2021) (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). Courts must

consider whether force was “applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503

U.S. 1, 7 (1992). several factors inform this analysis, including:

(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 responsible officials on the basis

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

of the forceful response.

Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) (quoting Brooks v. Kyler, 204

F.3d 102, 106 (3d Cir. 2000)).

Tucker’s only allegation of physical contact by defendants Fisher, Sharrow,

and Reese is that Fisher cut a bedsheet away from Tucker’s neck to prevent Tucker

from committing suicide and allowed Tucker to fall to the floor. There is no basis to

infer that this contact was done maliciously or sadistically to cause harm. To the

contrary, it appears that Fisher was acting to prevent harm to Tucker. Tucker’s

Eighth Amendment claim also fails as a matter of law to the extent it is based on

2 As noted above, defendants do not seek dismissal of the claims against

defendant Kimberly. The claims will be allowed to proceed on that basis.

verbal harassment by Fisher, Sharrow, and Reese. Harassing language by itself

does not violate the Eighth Amendment. See, eg., Sears v. McCoy, 815 F. App’x 668,

670 (3d Cir. 2020) (nonprecedential); Rieco v. Moran, 633 F. App’x 76, 79 (3d Cir.

2015) (nonprecedential).3 Finally, Tucker’s allegation that Reese recorded the

officers’ actions in restraining Tucker and transporting him to the medical

department with a handheld camera is not sufficient to state an Eighth Amendment

claim, as there is no allegation that Reese failed to intervene in a constitutional

violation or himself participated in a constitutional violation. Hence, we will

dismiss the Eighth Amendment claims against Fisher, Sharrow, and Reese.

Tucker’s assault and battery claims against Fisher, Sharrow, and Reese will

likewise be dismissed. Under Pennsylvania law, assault is an act intended to cause

another person reasonable apprehension of an imminent battery that succeeds in

causing such apprehension. Cucinotti v. Ortmann, 159 A.2d 216, 217 (Pa. 1960).

“Words in themselves, no matter how threatening, do not constitute an assault; the

actor must be in a position to carry out the threat immediately, and he must take

some affirmative action to do so.” Id. Battery is a harmful or offensive contact with

the person of another. C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 340 n.4

(Pa. 2008). Here, Tucker does not allege any harmful or offensive contact by Fisher,

Sharrow, or Reese, nor does he allege any act intended to place him in reasonable

apprehension of a harmful or offensive contact.

3 The court acknowledges that nonprecedential decisions are not binding

upon federal district courts. Citations to nonprecedential decisions reflect that the

court has carefully considered and is persuaded by the panel’s ratio decidendi.

Tucker’s due process and retaliation claims against Pelosi and Vance fail to

state a claim upon which relief may be granted. Retaliation claims require

allegations that (1) plaintiff engaged in constitutionally protected conduct; (2)

defendants took retaliatory action against plaintiff that was sufficient to deter a

person of ordinary firmness from exercising his constitutional rights; and (3) there

was a causal connection between plaintiff’s protected conduct and defendant’s

retaliatory action. Javitz v. Cty. of Luzerne, 940 F.3d 858, 863 (3d Cir. 2019). Tucker

does not allege that he engaged in protected conduct or any causal connection

between his actions and defendants’ purportedly retaliatory actions.

As for the due process claim, we agree with defendants that the claim is time

barred under the applicable statute of limitations. (See Doc. 18 at 13). Running of

the limitations period is an affirmative defense that defendants may raise in a

motion to dismiss if the untimeliness is apparent from the face of the complaint.

Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). The limitations period

applicable to Tucker’s Section 1983 claims claim is two years. See id.; 42 Pa.C.S. §

5524. His claim against Pelosi is based on events that occurred on August 15, 2019,

but he did not file his complaint until April 15, 2022, eight months after the

expiration of the two-year limitations period. We will accordingly dismiss the due

process claim against defendant Pelosi as untimely.4

Defendants do not advance any arguments for dismissal of Tucker’s claim

that defendants Wetzel and Little violated his First Amendment right to marry his

fiancée. Hence, we will allow this claim to proceed.

Finally, defendants argue that Tucker does not have standing to seek

injunctive or declaratory relief because such relief is forward looking and Tucker

only alleges past violations of his constitutional rights. (Doc. 18 at 14-15). We

disagree. In the claims we have allowed to proceed, Tucker alleges that as a result

of his continued placement on RRL by defendants Wetzel and Little he remains in

solitary confinement and cannot marry his fiancée. We find that Tucker has

standing to seek prospective relief to stop these alleged violations of his civil rights.

C. Leave to Amend

Before dismissing a civil rights complaint for failure to state a claim upon

which relief may be granted, a district court must permit a curative amendment

unless the amendment would be inequitable or futile. Phillips, 515 F.3d at 245.

With the exception of Tucker’s due process claim against Pelosi, we find that leave

4 Tucker argues this claim should not be dismissed as untimely pursuant to

the continuing violations doctrine because “[t]he conduct resulting from Pelosi’s

actions [is] ongoing absent any available reprieve.” (Doc. 20-1 at 4). This argument

is without merit. The continuing violations doctrine focuses on “continual unlawful

acts, not continual ill effects from an original violation.” Weis-Buy Servs., Inc. v.

Paglia, 411 F.3d 415, 423 (3d Cir. 2005). Tucker also argues that Pelosi’s actions

violate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and

are therefore subject to a four-year limitations period, (doc. 20-1 at 4), but Tucker

has not asserted a RLUIPA claim in this case. (See Doc. 1).

to amend is appropriate because the dismissed claims are factually, rather than

legally, deficient.

IV. Conclusion

We will grant in part and deny in part the motion (Doc. 17) to dismiss. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: January 19, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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