Smith v. Morgan

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN SMITH, : CIVIL ACTION NO. 1:22-CV-200

:

Plaintiff : (Judge Conner)

:

v. :

:

J.J. MORGAN, et al., :

:

Defendants :

MEMORANDUM

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

John Smith, an inmate in Waymart State Correctional Institution (“SCI-Waymart”),

alleges that defendant J.J. Morgan violated his civil rights by falsifying misconduct

charges against him that resulted in his placement in the Restricted Housing Unit.

The case initially proceeded solely against Morgan, but Smith has since filed an

amended complaint naming sixteen other defendants and asserting claims for a

litany of alleged incidents that occurred during his misconduct hearing and after he

was placed in the RHU, including a strip search, a medical examination,

confiscation of $36.00 worth of donuts, and the alleged theft of a bag of cookies from

his cell. Having considered the amended complaint pursuant to the screening

provisions of 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A, we will dismiss Smith’s

claims against all defendants other than Morgan, Davis, and McKeown.

I. Factual Background & Procedural History

Smith filed his initial complaint on February 10, 2022. (Doc. 1). The court

granted his motion for leave to amend on November 2, 2022. (Doc. 14). After the

court granted numerous extensions of time, Smith filed his amended complaint on

February 8, 2023. (Doc. 23).

According to the amended complaint, Morgan, a correctional officer in the

prison, enlisted another inmate in the prison to make a false complaint against

Smith under the Prison Rape Elimination Act (“PREA”) stating that Smith and the

inmate had engaged in sexual acts with each other while in the shower. (Id. at 6-7).

Shortly after this incident, Smith was in a bathroom in the prison on February 18,

2020 when Morgan entered the bathroom and allegedly yelled at Smith, “Hey, shut

your fucking mouth!” (Id. at 10). Smith responded that he considered this

statement abusive and that he wished to make a complaint. (Id. at 11).

Morgan was standing in the doorway of the bathroom when Smith began to

walk towards the door to exit the bathroom. (Id.) Morgan allowed him to walk past,

but then called other correctional officers on the radio and stated that Smith “came

at” him. (Id.) Defendant Evans, another correctional officer in the prison,

responded to the incident and handcuffed Smith without incident. (Id. at 12).

Defendant Lower also responded and began filming using a handheld camera as

Smith was escorted to the RHU. (Id.) Upon Smith’s arrival in the RHU, Lower

conducted a strip search of him pursuant to DOC policy requiring such searches

when inmates are admitted into the RHU. (Id.) A prison nurse then examined

Smith at Lower’s direction. (Id.)

Morgan allegedly filed a disciplinary charge against Smith based on the

February 18, 2020 incident and another incident in which Smith was allegedly

stealing cable television in his cell. (Id. at 13). The case was referred for a hearing

before a disciplinary hearing officer. In preparation for the hearing, Smith sought

to submit a list of requested witnesses to defendant Davis, a housing officer in the

prison, for a staff signature On February 19, 2020. (Id. at 14). Davis allegedly

responded, “I’m not fucking signing anything” and walked away. (Id.) Smith

requested a signature from Davis again later that day, but Davis again refused to

sign the witness list. (Id.) The amended complaint alleges that defendants Lower,

Miller, and John Doe had a duty to investigate relevant video footage related to the

incident between Smith and Morgan and that if they had done so they would have

seen that Morgan’s version of events was false. (Id. at 15-16).

Smith attended a misconduct hearing on February 20, 2020 conducted by

defendant McKeown. (Id. at 16). McKeown allegedly denied Smith the right to call

witnesses, to cross-examine adverse witnesses, or to present evidence. (Id. at 17).

McKeown dismissed the charges against Smith for theft of services and refusing to

obey an order, but otherwise found Smith guilty of the other charges and sentenced

him to 30 days in the RHU based on Morgan’s testimony. (Id. at 17-20). Smith

appealed the misconduct violation to a Program Review Committee (“PRC”)

consisting of defendants Gorman, Chiumento, and Altemer. (Id. at 20). The PRC

denied the appeal on March 10, 2020. (Id.) Smith appealed to the facility manager,

defendant Miller, who allegedly failed to respond. (Id. at 22).

The amended complaint alleges that prior to the incident involving Morgan

and the resulting misconduct charges, Smith ordered $36.00 of donuts from an

inmate-run organization called “Waymart Inmates Nurturing Growth” (“WING”).

(Id. at 19). The donuts were delivered while Smith was in the RHU, and were

therefore forfeited in accordance with DOC policy. (Id.)

After completing his sentence in the RHU, Smith allegedly noticed a box

containing personal items in his cell was torn. (Id. at 23). Smith was also allegedly

given a pair of boots that did not belong to him. (Id.) Defendant Hendrick allegedly

came to Smith’s cell in March 2020 to inventory Smith’s property and asked Smith

to sign an inventory sheet. (Id.) Upon conducting the inventory, Smith noticed that

a bag of cookies and a pair of shower shoes had been “stolen” from the cell. (Id.)

Hendrick allegedly called officers in the RHU on the radio during this exchange and

stated while laughing, “you guys ate his cookies didn’t you?” (Id. at 24).

The amended complaint asserts 61 claims for relief arising under the United

States Constitution, the Pennsylvania Constitution, federal statutes, state statutes,

and common law, but contains almost no explanation as to which facts support each

of these claims. (See id. at 46-56). Smith seeks declaratory relief, injunctive relief,

and damages.

II. Legal Standard

The Prison Litigation Reform Act authorizes a district court to review a

complaint in a civil action in which a prisoner is proceeding in forma pauperis or

seeks redress against a governmental employee or entity. See 28 U.S.C. §

1915(e)(2);1 28 U.S.C. § 1915A.2 The court is required to identify cognizable claims

and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is

immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).

III. Discussion

Smith 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.

1 28 U.S.C. § 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the court

determines that—

(A) the allegation of poverty is untrue; or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is

immune from such relief.

2 28 U.S.C. § 1915A provides:

(a) Screening.--The court shall review, before docketing, if feasible or,

in any event, as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.

(b) Grounds for dismissal.--On review, the court shall identify

cognizable claims or dismiss the complaint, or any portion of the

complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a claim upon which

relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from

such relief.

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)).

We will dismiss Smith’s claims against all defendants other than Morgan,

Davis, and McKeown. To begin, defendants Gorman, Chiumento, Altemer, Miller,

and John Doe will be dismissed for Smith’s failure to allege their personal

involvement. 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. A defendant’s review and denial of a prisoner’s

grievance is not sufficient to establish the defendant’s personal involvement in an

underlying violation of the prisoner’s constitutional rights. Dooley v. Wetzel, 957

F.3d 366, 374 (3d Cir. 2020). Smith’s claims against Gorman, Chiumento, Altemer,

Miller, and John Doe appear to be based entirely on their supervisory roles in the

prison and their responses to Smith’s grievances, neither of which are sufficient to

allege personal involvement. See id.; Rode, 854 F.2d at 1207.

The claims against defendants Morcom and Hendrick will be dismissed for

failure to state a claim upon which relief may be granted. It is alleged that Morcom

and Hendrick denied Smith a grievance form. (Doc. 23 at 20). The denial of a

grievance form on one occasion does not amount to a constitutional violation. See,

e.g., Stringer v. Bureau of Prisons, Federal Agency, 145 F. App’x 751, 753 (3d Cir.

2005) (nonprecedential).3

The amended complaint further alleges that during an inventory of Smith’s

personal property, he and Hendrick discovered that a bag of cookies and a pair of

shower shoes were missing. (Id. at 24). Hendrick allegedly called someone on his

radio and joked, “you guys ate his cookies didn’t you?” (Id.) It is not alleged that

Hendrick either caused or witnessed the disappearance of the cookies and shoes.

(See id.) Smith’s shoes were subsequently located, which led Hendrick to bring the

shoes to Smith’s cell and “violently kick” them at Smith. (Id. at 25). There is no

allegation that the shoes hit Smith or caused him any harm. (Id.) Hence, the

allegations against Hendrick amount to nothing more than verbal harassment and

teasing, which are not sufficient to allege a violation of the constitution. See, e.g.,

Washington v. Rozich, 734 F. App’x 798, 801 (3d Cir. 2018); Rieco v. Moran, 633 F.

App’x 76, 79 (3d Cir. 2015).

Defendants SCI-Waymart and the DOC will be dismissed because they are

not proper defendants in Section 1983 civil rights actions. See Foye v. Wexford

Health Servs., Inc., 675 F. App’x 210, 215 (3d Cir. 2017) (nonprecedential); Curtis v.

Everette, 489 F.2d 516, 521 (3d Cir. 1973).

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.

Defendant WING, Merkel, and Turano will be dismissed because the

amended complaint fails to allege that they acted under color of state law. The

amended complaint alleges that WING is a non-profit corporation run by inmates

and that Merkel and Turano are officials of the corporation. (Doc. 23 at 19, 31).

Other than the conclusory assertion that WING is an “agency of the state,” there is

no allegation as to how WING, Merkel, and Turano acted under color of state law.

The amended complaint accordingly fails to state a claim upon which relief may be

granted against these defendants. See Groman v. Twp. of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995) (noting that plaintiff in Section 1983 civil rights case has the

burden to establish that defendants acted under color of state law).

Finally, the claims against defendants Evans and Lower will be dismissed on

the basis of qualified immunity. “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)).

Government officials are entitled to qualified immunity if reasonable officials

in the same circumstances could have believed that their actions were lawful.

Hunter v. Bryant, 502 U.S. 224, 228-29 (1991); Good v. Dauphin Cnty. Soc. Servs. for

Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989). The doctrine protects from

suit “all but the plainly incompetent or those who knowingly violate the law.”

Hunter, 502 U.S. 229 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). Although

qualified immunity is an affirmative defense, it may be raised sua sponte in

appropriate circumstances. See, e.g., Doe v. Delie, 257 F.3d 309, 312 (3d Cir. 2001);

see also Howell v. Young, 530 F. App’x 98, 100 (3d Cir. 2013) (noting that qualified

immunity may be raised sua sponte if the defense is apparent from the face of the

complaint); cf. Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002) (noting that affirmative

defenses may be raised sua sponte when they are apparent from the face of the

complaint).

The amended complaint alleges that defendants Evans and Lower escorted

Smith to the RHU based on a disciplinary charge, strip searched him, and directed

a prison nurse to conduct a medical examination on him before admitting him into

the RHU. Reasonable officials in the same circumstances would conclude that

these actions were lawful. See, e.g., Parkell v. Danberg, 833 F.3d 313, 325-26 (3d Cir.

2016) (holding that strip searches reasonably related to legitimate government

interests of preserving prison safety and security do not violate the Constitution);

Brown v. Blaine, 185 F. App’x 166, 170 (3d Cir. 2006) (noting that DOC policy

requires inmates to be strip searched when they are transferred to the RHU and

finding that these searches do not violate the constitution).

Before dismissing a civil rights claim 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. We will deny

leave to amend as futile with respect to the claims against SCI-Waymart and the

DOC because those claims fail as a matter of law, but we will grant leave to amend

in all other respects.

IV. Conclusion

We will dismiss Smith’s claims against all defendants other than Morgan,

Davis, McKeown for failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. 1915(e)(2) and 28 U.S.C. § 1915A. We will grant leave to

amend as to all claims other than those asserted against SCI-Waymart and the

DOC. Service of process will be deferred pending the possible filing of an amended

complaint. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: July 17, 2023