Nunez, Jr. v. Wetzel

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FERNANDO NUNEZ, JR., : Civil No. 1:21-CV-01484

:

Plaintiff, :

:

v. :

:

JOHN J. WETZEL, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is Defendants’ motion to dismiss the amended complaint in

the above captioned action. (Doc. 20.) Plaintiff Fernando Nunez, Jr. (“Plaintiff”)

is an inmate currently housed at the State Correctional Institution Mahanoy in

Frackville, Pennsylvania (“SCI-Mahanoy”), and is self-represented in this 42

U.S.C. § 1983 action. For the reasons discussed below, Defendants’ motion will

be granted. Defendants Werenorwicz and the Pennsylvania Department of

Corrections will be dismissed as parties to this action. The First Amendment

retaliation claims against Defendants Wetzel, Mason and Matello will be dismissed

without prejudice. The First Amendment retaliation claim against Defendant

Dunkle will be dismissed with prejudice. The Eighth Amendment claim against

Defendant Matello will be dismissed without prejudice. The First and Fourteenth

Amendment claims against Defendants Wetzel and Little regarding the mail policy

are improperly joined and will be dismissed without prejudice. Plaintiff will be

given an opportunity to file a curative amended complaint.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated this action in August of 2021, naming ten defendants and

bringing a First Amendment retaliation claim, an Eighth Amendment deliberate

indifference claim, a 29 U.S.C. § 794 Rehabilitation Act claim, and a Title II claim

under the Americans with Disabilities Act (ADA). (Doc. 1.) Defendants filed a

motion to dismiss on March 11, 2022. (Doc. 12.) As a response, Plaintiff filed a

motion to amend the complaint in April 28, 2022. (Doc. 15.) The court granted

the motion and filed the amended complaint, which is the operative complaint in

this matter. (Docs. 17, 18.)

The amended complaint raises claims under the First Amendment, Eighth

Amendment, Fourteenth Amendment, the Violence Reduction Initiative Policy, the

Religious Land Use and Institution led Persons Act (“RLUPIA”), and the ADA.

(Doc. 18.) It names seven defendants: (1) John E. Wetzel (“Wetzel”), former

Secretary of the Department of Corrections (“DOC”); (2) George M. Little

(“Little”), current Secretary of the DOC; (3) Michael Wenerowicz

(“Wenerowicz”), Regional Security of the DOC; (4) Bernadette Mason (“Mason”),

Facility Manager Superintendent at SCI-Mahanoy; (5) Michael Dunkle

(“Dunkle”), a Security Captain at SCI-Mahanoy; (6) S. Matello (“Matello”), a

Corrections Officer at SCI-Mahanoy; and (7) the Pennsylvania DOC. (Id.)

Defendants filed a motion to dismiss the amended complaint on May 12, 2022 and

a brief in support on May 26, 2022. (Docs. 20, 22.)

In response, Plaintiff filed a notice of voluntary dismissal and a motion to

dismiss claims one through eight of his complaint. (Docs. 21, 26.) This court

granted Plaintiff’s request to dismiss claims one through eight on August 8, 2022

to allow Plaintiff to file a separate action. (Doc. 30.) In doing so, all claims

brought under the Violence Reduction Initiative Policy, the RLUPIA, and the ADA

were dismissed. The remaining claims raised in the operative complaint include a

First Amendment retaliation claim against Defendants Wetzel and Mason based on

his vaccination status, a First Amendment retaliation claim against Defendant

Dunkle in violating his settlement agreement with the DOC, a First Amendment

retaliation claim against Defendant Matello regarding verbal complaints Plaintiff

made against him, an Eighth Amendment deliberate indifference claim against

Defendant Matello for calling him a “rat” in front of other inmates, and a First

Amendment access to the courts claim and Fourteenth Amendment due process

claim against Defendants Wetzel and Little regarding the mail policy. (Doc. 18,

pp. 28–43.)1

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

Plaintiff then filed a brief in opposition on August 25, 2022. (Doc. 31.)

Defendants did not file a reply. Defendants’ motion to dismiss the amended

complaint is now ripe and will be addressed by the court.

JURISDICTION AND VENUE

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 SCI-Mahanoy, located in Schuylkill County, Pennsylvania,

which is located within this district. See 28 U.S.C. § 118(b).

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) abrogated on other

grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).

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, as well as undisputedly authentic documents”

attached to a defendant’s motion to dismiss if the plaintiff’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)).

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); see also Phillips, 515 F.3d at 245. 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

A. Defendants Wenerowicz and the Pennsylvania DOC Will Be

Dismissed As Defendants.

Following the voluntary dismissal of claims one through eight by Plaintiff,

there are no claims remaining against Defendants Wenerowic or the Pennsylvania

DOC2. (Doc. 18.) Therefore, both will be dismissed as parties in this action.

B. The First Amendment Retaliation Claims Against Defendants Wetzel

and Mason Regarding Vaccination Status Will Be Dismissed.

Plaintiff raises a First Amendment retaliation claim against Defendants

Wetzel and Mason. (Doc. 18, pp. 28–34.) Specifically, Plaintiff alleges that

2Furthermore, it is well-settled that neither a state nor its agencies are considered a “person” as

that term is defined under § 1983 and are not subject to a § 1983 suit. Hafer v. Melo, 502 U.S.

21, 25–27 (1991). Therefore, the Pennsylvania DOC is also not a proper defendant in a 42

U.S.C. § 1983 action.

Defendant Wetzel recorded three “Fire-Chat” informational videos, which were

broadcast on SCI-Mahanoy’s inmate information channel. (Id., p. 28.) In the last

“Fire-Chat,” on August 5, 2021, Defendant Wetzel directed all state correctional

institutions to place all unvaccinated inmates on an isolated housing unit separate

and apart from other inmates who have chosen to be vaccinated. (Id.) He alleges

that Defendant Wetzel stated that inmates who refuse to be vaccinated will not

receive contact visits, attend law library, the gym, or programing, but those who

get vaccinated will receive such privileges. (Id.) Plaintiff alleges that this

amounted to a vaccine mandate that did not consider or honor medical or religious

accommodations as a legitimate reason to not get vaccinated. (Id.)

Plaintiff alleges that he refused to get fully vaccinated and sought a religious

accommodation and a medical accommodation. (Id.) He states that as a

consequence of refusing to get vaccinated and the “Fire-Chat” order from

Defendant Wetzel, he was removed from his housing unit and was placed on an

“unvaccinated unit” with no law library computer access, visits, or other privileges.

(Id.) Plaintiff states that he and his family spoke out against this vaccine mandate.

(Id., pp. 28–29.) He alleges that as a result of exercising his First Amendment

rights of free speech and free exercise of religion, he was placed in an

unvaccinated housing unit and his privileges for recreation, law library, contact

visits, job opportunities, and programming was limited or denied. (Id., p. 29.) He

alleges that these “retaliatory adverse actions” served no legitimate penological

interest because the officers working the unvaccinated housing unit where he was

housed did not wear face masks, were not vaccinated themselves, and the CDC

sanitation standards were not followed. (Id.)

Plaintiff further alleges that Defendant Mason was aware of the above

alleged facts. (Id., p. 31.) He also alleges that Defendant Mason knew that Plaintiff

had filed an inmate abuse complaint challenging the DOC’s failure to impose a

vaccine mandate on prison officers prior to August 8, 2021. (Id.) Plaintiff alleges

that Defendant Mason knew the science behind the spread of COVID-19 including

that individuals who have tested positive for the virus in the past can be reinfected

and that vaccinated individuals can be infected and spread the disease. (Id.) He

asserts that even with this knowledge, Defendant Mason did not challenge

Defendant Wetzel’s vaccine mandate. Plaintiff alleges that Defendant Mason

threated to issue misconducts or placement in solitary confinement to unvaccinated

inmates who refused to move to an unvaccinated unit. (Id., p. 32.)

Plaintiff alleges that he was “compelled” to take his first dose of the

Moderna vaccine and within hours suffered an adverse side effect that left him in

pain. (Id.) Plaintiff alleges that he then submitted a disability accommodation to

refuse the second Moderna dose, which was denied by Defendant Mason. (Id.) He

alleges that Defendant Mason then took immediate adverse action against him by

having him moved to an unvaccinated housing unit on September 3, 2021, where

he stayed until April 7, 2022. (Id.) Plaintiff alleges that Defendant Mason

retaliated against him for exercising his First Amendment rights of free speech, the

right to petition, and the free exercise of religion. (Id., p. 33.)

A prisoner asserting a retaliation claim bears the initial burden of proving

the elements of a case of retaliation: (1) he engaged in constitutionally protected

conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary

firmness from exercising his constitutional rights; and (3) the constitutionally

protected conduct was “a substantial or motivating factor” for the adverse action.

See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Horn,

318 F.3d 523, 530 (3d Cir. 2003). Following a plaintiff’s success in establishing

his prima facie case for retaliation, the burden shifts to the defendant to prove by a

preponderance of the evidence that “it would have taken the same disciplinary

action even in the absence of the protected activity.” Id. “[O]nce a prisoner

demonstrates that his exercise of a constitutional right was a substantial or

motivating factor in the challenged decision, the prison officials may still prevail

by proving that they would have made the same decision absent the protected

conduct for reasons reasonably related to a legitimate penological interest.” Id.

Defendants do not challenge Plaintiff’s prima facie allegation of relation,

and instead alleges that the policy of housing vaccinated and unvaccinated

prisoners separately was reasonably related to a legitimate government interest.

(Doc. 22, pp. 4–8.)

The court must defer to the broad discretion granted to prison authorities in

their attempt to control the spread of Covid-19 within their facility. That is, even

“when a prison regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate penological interests.”

Turner v. Safely, 482 U.S. 78, 89 (1987). “Because it is difficult to social distance

in a correctional setting, the Court cannot second guess where authorities move

those who test positive, those who refuse to be vaccinated, those who are more

vulnerable to serious complications should they contract Covid-19, and those who

recover from Covid-19.” Jones v. County of Allegheny, No. 21-1094, 2022 WL

2806779, at *7 (W.D. Pa. Jun. 24, 2022). The court recognizes that the range of

difficult issues confronting authorities during the Covid-19 pandemic was

extensive, and will not disturb the administrative decision about how to house and

manage the inmate population during the pandemic. Therefore, the retaliation

claims raised against Defendants Wetzel and Mason will be dismissed with

prejudice.

C. The First Amendment Retaliation Claim Against Defendant Dunkle

Will Be Dismissed.

In the amended complaint, Plaintiff raised a separate First Amendment

retaliation claim against Defendant Dunkle. (Doc. 18, p. 34–35.) He alleges that

on July 8, 2021, he approached Defendant Dunkle and asked him why he and his

brother could not be housed in the same unit. (Id., p. 34.) He alleges that

Defendant Dunkle said, “[b]ecause I said so,” and he asked “[w]hy not? There is

no separation between us because it was removed by central office.” (Id.) Plaintiff

alleges that Defendant Dunkle responded with “I’m aware of your settlement

agreement with the DOC. And it doesn’t say your brother will be housed in the

same unit as you. Your settlement got him to this institution and as long as I’m

here I’m gonna make sure you both will never be on the same unit. I can promise

you that.” (Id.)

Plaintiff alleges that this is evidence that Defendant Dunkle took adverse

action against him and his brother by fabricating a security concern to justify

keeping him and his brother from being housed in the same unit. (Id.) He states

that Defendant Dunkle “acted outside the scope of his duties by retaliating against

Nunez and his brother, as direct result of engaging in constitutionally protected

conduct under the First Amendment to petition and seek redress with the Court.”

(Id.) He alleges that Defendant Dunkle knew of Plaintiff’s prior lawsuit and

settlement with the DOC that required a separation between him and his brother to

be removed from their files and his brother to be transferred from SCI-Phoenix to

SCI-Mahanoy. (Id., p. 35.) Plaintiff states that this adverse action against him and

his brother is retaliation and serves no legitimate penological interest. (Id.)

As set forth above, a prisoner asserting a retaliation claim bears the initial

burden of proving the elements of a case of retaliation: (1) he engaged in

constitutionally protected conduct; (2) he suffered an adverse action sufficient to

deter a person of ordinary firmness from exercising his constitutional rights; and

(3) the constitutionally protected conduct was “a substantial or motivating factor”

for the adverse action. See Rauser, 241 F.3d at 333; see also Mitchell, 318 F.3d at

530.

It is undisputed that petitioning the government for redress is a

constitutionally protected First Amendment right. See Mirabella v. Villard, 853

F.3d 641, 653 (3d Cir. 2017). Therefore, Plaintiff’s allegation that his prior lawsuit

and resulting settlement with the DOC was constitutionally protected conduct

meets the first element of a retaliation claim.

The second element requires Plaintiff to credibly assert that he suffered an

adverse action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights. Plaintiff has failed to allege facts sufficient to meet this

element. Plaintiff alleges that Defendant Dunkle refused his request to be housed

in the same unit as his brother and states that he fabricated a security reason to

prevent them from being housed together. (Doc. 18, p. 35.) There is no allegation

that there was any formal punishment against Plaintiff. Furthermore, he admits

that he does “not have a particular right to be housed on the same housing unit” as

his brother. (Id.) Therefore, Plaintiff has failed to allege that he suffered a

sufficient adverse action.

The third element requires Plaintiff to allege that the constitutionally

protected conduct was a substantial or motivating factor for the adverse action. On

this element, Plaintiff has failed to establish the required causal connection

between his prior lawsuit and Defendant Dunkle. “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.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

Here, Plaintiff has failed to allege that the previous lawsuit was an action against

Defendant Dunkle. This court has previously found insufficient causal connection

when the alleged perpetrator of the retaliatory activity was not the subject of the

constitutionally protected activity. See Calloway v. Bauman, No. 2:20-cv-2337,

2022 WL 4357468, at *9 (M.D. Pa. Sep. 20, 2022) citing Victor v. Lawler, 2010

WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565 F. App’x 126 (3d Cir.

2014); also citing Evans v. Rozum, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17,

2009) (“There is no apparent reason why [the moving defendants] would want to

retaliate against Plaintiff for filing a lawsuit against others.”); also citing Royster v.

Beard, 308 F. App’x 576, 579 (3d Cir. 2009) (affirming summary judgment in

favor of defendant on plaintiff’s claim that he was retaliated against by a defendant

who was not the target of his protected activity). Therefore, Plaintiff has failed to

plead the third element of a retaliation claim.

Based on Plaintiff’s failure to properly plead the second and third elements

of a retaliation claim, his First Amendment claim against Defendant Dunkle will be

dismissed without prejudice.

D. The Eighth Amendment and First Amendment Claims Against

Defendant Matello Will Be Dismissed.

Plaintiff raises an Eighth Amendment deliberate indifference claim and a

First Amendment retaliation claim against Defendant Matello. (Doc. 18, pp. 36–

39.) In the compliant, Plaintiff alleges that on August 6, 2021, his housing unit

was placed on lockdown so that medical staff could vaccinate inmates. (Id., p. 36.)

Plaintiff alleges that he was filling out an inmate abuse complaint form against

Defendant Wetzel for imposing the vaccine mandate on inmates and not on staff

when he verbally complained to Deputy White that Defendant Matello was

working in his unit and not wearing a mask and another non-defendant correctional

officer was openly bragging about not being vaccinated. (Id.) Plaintiff alleges that

Defendant Matello heard his verbal complaints and yelled out, “[i]s he ratting on

staff again?” (Id., p. 37.)

Plaintiff alleges that he then requested to speak with Deputy White in her

office. (Id.) Once in her office, Plaintiff refused to take the Johnson and Johnson

vaccine citing a heart condition, but agreed take the first dose of the Moderna

vaccine. (Id.) Plaintiff alleges that after leaving the office, Deputy White told

Defendant Matello that he did not have to be moved to the unvaccinated unit

because he was going to receive the first dose of the Moderna vaccine later that

day. (Id.)

He states that a few hours later, non-defendant Sergeant Adams told him to

pack up because he was being moved to the unvaccinated unit. (Id.) Plaintiff

alleges that he told Sergeant Adams that Deputy White had said he didn’t have to

move and that Defendant Matello had been told the same. (Id.) He alleges that he

yelled out his cell door asking Defendant Matello why he did not inform Sergeant

Adams that he was not required to move to the unvaccinated unit. (Id.) Plaintiff

states that Defendant Matello responded with “[y]ou still fucking ratting? Just pack

your shit up. You[’re] moving. Period.” (Id.)

Plaintiff alleged he then put a sheet on his cell door, and Defendant Matello

proceeded to climb the stairs towards Plaintiff’s cell, removed his O/C spray can

from his belt, and said “I’m tired of this asshole.” (Id.) Plaintiff then alleges that

he removed the sheet from his door to talk to the other corrections officer and

Defendant Matello began shaking his O/C spray can and told that corrections

officer to do the same saying, “[f]uck him! Spray him! Spray him!” (Id., p. 38.)

The other corrections officer then told Defendant Matello that Plaintiff had not

done anything to get spray and to “chill out.” (Id.) Plaintiff alleges that Defendant

Matello than stated that “[t]his guy is a fucking rat! He ratted on me and C/O

Woods to Deputy White about not wearing our face mask and not being

vaccinated. I want his ass of[f] the block one way or another.” (Id.) The other

corrections officer then asked Defendant Matello about Plaintiff’s claims that

Deputy White said he did not have to be moved, and Defendant Matello responded

with “I don’t know what she told that [r]at.” (Id.) The other corrections officer

then called the medical staff and confirmed that there was a notation on their

computer that Plaintiff did not have to be moved to the unvaccinated unit. (Id.)

Plaintiff alleges that labeling him a rat in front of other inmates placed him

in a substantial risk of harm that resulted in Plaintiff engaging in a fist fight with

another inmate. (Id., p. 39.) He also alleges that his constitutionally protected

conduct of making a verbal complaint against Defendant Matello was a substantial

or motivating factor that caused Defendant Matello to take adverse action against

him that served no legitimate penological interest. (Id., pp. 38–39.)

1. Eighth Amendment Deliberate Indifference Claim

Prison officials violate the Eighth Amendment when they act with

“deliberate indifference to a substantial risk of serious harm to” a prisoner.

Farmer v. Brennan, 511 U.S. 825, 828–29 (1994). The prisoner must show both

that a prison officer ignored an objectively serious risk and that he was subjectively

aware of that risk. Id. at 834. Several courts have acknowledged the danger of

being called a “snitch,” or in this case a “rat,” in front of other inmates. See

Williams v. Thomas, No. 12-01323. 2013 WL 1795578, at *5 (E.D. Pa. April 29,

2013) (summary of cases).

However, this case is distinguished from the cases summarized in Williams,

all of which involved inmates accused of “snitching” or “ratting” on other inmates.

Here, it is clear that Defendant Matello accused Plaintiff of “ratting” on a

corrections officer. The relational difference has been addressed by the Western

District of Pennsylvania:

While prisoners may be motivated to harm a fellow inmate who is or

could be informing on them, that motivation for preserving inmate

anonymity and solidarity does not exist when the inmate is accused of

“snitching” to prison officials about a corrections officer or other prison

official—DOC staff who the inmates so often view as opposed to their

interests.

Jackson v. O’Brien, No. 1:18-cv-00032-RAL, 2021 WL 3174687, at *4 (W.D. Pa.

July 27, 2021). Since Plaintiff has failed to plead a serious risk of harm, his Eighth

Amendment claim will be dismissed without prejudice.

2. First Amendment Retaliation Claim

As set forth above, a prisoner asserting a retaliation claim bears the initial

burden of proving the elements of a case of retaliation: (1) he engaged in

constitutionally protected conduct; (2) he suffered an adverse action sufficient to

deter a person of ordinary firmness from exercising his constitutional rights; and

(3) the constitutionally protected conduct was “a substantial or motivating factor”

for the adverse action. See Rauser, 241 F.3d at 333; see also Mitchell, 318 F.3d at

530.

The court in Jackson extended their analysis of being accused of “snitching”

on a correctional officer in a retaliation claim. 2021 WL 3174687, at *5. In doing

so, the court acknowledged that an inmate called a snitch for complaining about

other inmates may experience an adverse action, but found that no such adverse

action existed when being called a snitch for complaining about correctional

officers:

But an inmate of ordinary firmness does not experience an adverse

action when a prison official calls him a snitch for officially or

unofficially complaining about other prison officials. The Court

reaches this conclusion for the same reasons stated above that it does

not amount to deliberate indifference for a failure to protect claim under

the Eighth Amendment to call an inmate a snitch for complaining about

prison officials. Prisoners’ possible motivations to harm another

inmate believed to be informing on them to protect themselves from

discipline and maintain inmate unanimity is not relevant. Prisoners

may even favor an inmate who actively points out prison officials’

alleged misconduct.

Id. Therefore, Plaintiff’s First Amendment claim against Defendant Matello will

be dismissed without prejudice.

E. The First Amendment and Fourteenth Amendment Claims Against

Defendants Wetzel and Little Are Improperly Joined and Will Be

Dismissed.

Plaintiff alleges that that on April 15, 2021, Plaintiff learned that SCI-

Mahanoy’s mailroom was rejecting his incoming mail regarding an unrelated case

in state court. (Doc. 18, p. 41.) He alleges that he received a copy of his

incoming/privileged legal mail log from March 1, 2021 to April 21, 2021 and

learned that SCI-Mahanoy’s mailroom staff rejected incoming privileged legal

mail six times without notifying him. (Id.) He also alleges that this caused him to

miss two court deadlines in the state court action. (Id.) He further alleges that on

May 7, 2021, he received another print-out copy of his incoming/privileged legal

mail log form April 21, 2021 to May 4, 2021 showing that incoming legal mail

sent to him from the Prothonotary Office of Schuylkill County was rejected

without notice. (Id.) As a result, he alleges that “it frustrated” his ability to meet

legal deadlines. (Id., p. 42) He alleges that rejecting incoming/privileged legal

mail, without sufficient notice or procedural due process is unconstitutional under

the First and Fourteenth Amendments. (Id., p. 41.)

Plaintiff alleges that Defendants Wetzel is liable for implementing the mail

policy that permits the mailrooms within the DOC to reject incoming privileged

mail and Defendant Little is liable for continuing to enforce the same mail policy.

(Id., p. 42.)

Defendant argue for dismissal of this claim because it is improperly joined,

and they also assert that they are entitled to qualified immunity. (Doc. 22.)

Plaintiff conceded that this claim is improperly joined and agreed that the claim

should be severed. (Doc. 31, p. 18.)

A plaintiff may not bring unrelated claims against unrelated parties in a

single action. See Fed. R. Civ. P. 18(a); 20(a)(2). A plaintiff may bring a claim

against multiple defendants so long as (1) the claims arise out of the same

transaction or occurrence, or series of transactions and occurrences; and (2) there

are common questions of law or fact. See Fed. R. Civ. P. 20(a)(2). Courts have

broad discretion in applying Fed. R. Civ. P. 20 to reduce inconvenience, delay, and

added expense to the parties and to the court, and to promote judicial economy.

Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009). However, the policy of liberal

application of Rule 20 is not a license to join unrelated claims and defendants in

one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir. 2007)

(nonprecedential).

The alleged interference with Plaintiff’s mail is unrelated to the other facts

alleged in the complaint. By joining multiple events into a single action, the court

questions whether Plaintiff is attempting to fit as much as possible into a single

filing fee. This will not be permitted. See Robinson v. Delbalso, No. 1:20-CV-

1171, 2020 WL 5602932, at *3 (M.D. Pa. Sep. 18, 2020) (“Instead of joining

unrelated claims, a plaintiff’s remedy is to file a separate lawsuit.”). Plaintiff

conceded this point and agreed that the claim should be severed. (Doc. 31, p. 18.)

Therefore, these claims will be dismissed without prejudice to Plaintiff raising

them in a separate action.

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss will be granted.

Plaintiff will be granted an opportunity to timely amend his complaint as a matter

of course as discussed in Phillips, but only in regards to the claims that were

addressed on their merits in this memorandum. Plaintiff is free to file a separate

lawsuit regarding the mail policies.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: March 6, 2023