SHICK v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LINDA SHICK and RUSSELL SHICK, ) Case No. 3:18-cv-253

)

Plaintiffs, ) JUDGE KIM R. GIBSON

)

v. )

)

PENNSYLVANIA DEPARTMENT OF )

CORRECTIONS, JOHN E. WETZEL, )

MICHAEL R. CLARK, and RYAN )

SLEWISKI, )

)

Defendants. )

MEMORANDUM OPINION

Before the Court is Defendants’ Motion to Dismiss for Failure to State a Claim. (ECF No.

5.) This Motion is fully briefed (see ECF Nos. 6, 21) and is ripe for disposition. For the reasons

that follow, Defendants’ Motion is GRANTED IN PART and DENIED IN PART.

I. Background

Plaintiffs Linda and Russell Shick filed a five-count Complaint against Defendants on

December 12, 2018. Plaintiffs are husband and wife. (ECF No. 1 {{ 4-5.) Defendants are the

Pennsylvania Department of Corrections (“DOC”), Secretary of Corrections John E. Wetzel, SCI-

Albion Superintendent Michael R. Clark, and SCI-Albion hearing officer Ryan Slewiski. (Id. 1

6-16.)

Plaintiffs allege that Defendants:

(1) violated Linda Shick’s right to procedural due process under the Fourteenth

Amendment of the Constitution (id. [7 96-105);

(2) violated Linda Shick’s Eighth Amendment rights by permanently banning her

from visiting her incarcerated husband, Russell Shick (id. [J 106-08);

(3) violated Linda Shick’s First Amendment rights by prohibiting her from associating

with her husband (id. [J 109-11);

(4) violated Russell Shick’s Fifth and Fourteenth Amendment rights by depriving him

of procedural due process (id. [J] 112-24);

(5) violated Russell Shick’s Eighth Amendment rights by depriving him of procedural

due process and access his wheelchair (id. {{ 125-29); and

(6) violated Russell Shick’s First, Sixth, and Fourteenth Amendment rights to counsel

by opening and scanning mail containing privileged communications between

Russell Shick and his attorney. (Id. {{ 130-39.)

The Court derives the following facts, which it accepts as true for purposes of deciding

the instant Motion to Dismiss, from Plaintiffs’ Complaint.

A. Linda Shick is Accused of Attempting to Smuggle Drugs Through the Mail at

SCI-Albion

On May 11, 2018, DOC officials at SCI-Albion confiscated a piece of mail that Linda Shick

sent to her husband, Russell Shick, who is incarcerated at SCI-Albion. (Id. {J 18-20.) DOC

officials confiscated the mail and claimed that it tested positive for the synthetic drug K-2. (Id. 1

21-25.)

Plaintiffs maintain that Linda Shick did not attempt to send K-2 to Russell Shick. (Id. 11

25, 42.) They allege that DOC officials “either intentionally falsely claimed that Mr. Shick’s mail

tested positive for K-2[,] that prison officials contaminated the relevant mail, or that the test was

a false positive.” (Id. 24.)

On May 15, 2018, DOC officials searched Mr. Shick’s cell, but did not uncover any

contraband. (Id. [J 27-28.)

os

B. Russell Shick Files a Grievance About the Confiscation of His Mail and Is

Subsequently Moved to the Restricted Housing Unit

On May 16, 2018, Russell Shick filed an inmate grievance complaining about the

confiscation of his mail. (Id. 1 29.) He refiled his grievance on May 21, 2018, to include a copy of

the “confiscated item receipt” per DOC policy. (Id. I] 30-32.) The DOC did not timely respond

to Mr. Shick’s grievance, and requested an extension of time to respond three days after the

response period had passed. (Id. {{ 33.) Then, he filed a Notice of Default requesting that the

confiscated mail be provided to his attorney. (Id. J 34.)

On May 25, 2018, a DOC staff member interviewed Mr. Shick about the confiscated mail.

(Id. 1 36-37.) Mr. Shick believed the interview was in connection with his inmate grievance. (Id.

{ 38.) At the interview, Mr. Shick confirmed that the confiscated mail contained his wife’s

handwriting. (Id. J 39.) Then, DOC staff took Mr. Shick to a holding cell, where he remained for

roughly six hours. (Id. {1 37, 43.)

When DOC officials took Mr. Shick to the holding cell, they confiscated his wheelchair,

which he uses to deal with a hip condition that requires surgery. (Id. [J 43-44.) After

approximately six hours in the holding cell, DOC officials moved Mr. Shick to the Restricted

Housing Unit for “security reasons.” (Id. [{ 45-49.)

C. DOC Officials Hold Hearings on Russell Shick’s Allegedly Contaminated Mail

and Respond to His Grievance

On May 26, 2018, Mr. Shick submitted a form—DC-141 Part M(A)—requesting

representation and listing eight staff members as witnesses. (Id. [ 60.) Mr. Shick also submitted

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a request for the DOC to identify the employee who deemed Mrs. Shick’s mail to be suspicious,

but DOC officials stated that they were not at liberty to provide that information. (Id. [ 61.)

On May 29, 2018, Mrs. Schick appeared before the DOC Program Review Committee to

ask for his wheelchair to be returned, but his wheelchair was not returned until June 12, 2018. (Id.

63-65.) Plaintiffs allege that “[i]n violation of DC-ADM 801, ice. prison policy and protocols,

there was no commissioned officer on the [Program Review Committee] panel that day.” (Id. □

64.)

Then, on May 30, 2018, DOC officials held a hearing on the Shicks’ allegedly contaminated

mail in front of Hearing Examiner Ryan Slewiski. (Id. { 66.) Mr. Shick was not permitted to

present witnesses, present witness statements, and the DOC did not produce laboratory results

showing that the mail was contaminated. (Id. [1 67-69.) Slewiski denied Mr. Shick’s requests to

consult with his attorney, to be represented by an attorney at the hearing, or to submit polygraph

examinations to support his defense. (Id. 69-74.) Slewiski determined that Mr. Shick violated

prison regulations by possessing drug contraband and sentenced him to sixty days of disciplinary

custody. (Id. {J 77-78.)

On June 5, 2018, Mr. Shick was scheduled for a review of the Program Review

Committee’s decision. (Id. { 82.) However, Mr. Shick was not transported to the hearing by DOC

staff, so he did not receive a review. (Id.)

On July 12, 2018, Mr. Shick received a response to his grievance about the confiscation of

his mail. (Id. | 84.) ADOC employee named Tamie White informed Mr. Shick that his mail tested

positive for K-2. (Id.) A misconduct report indicated that the Shicks’ mail was tested using a

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NARK II Synthetic Cannabinoids drug-detection pouch, which Plaintiffs allege is an unreliable

method test method. (Id. [{ 85-89.)

Finally, Mr. Shick also alleges that the DOC’s mail policy prohibits him from receiving

privileged communications from his attorney. (Id. I] 90-95.)

D. DOC Officials Permanently Ban Linda Shick from Visiting Russell Shick

On May 25, 2018, Superintendent Clark wrote a letter to Mrs. Shick “that declared that she

was permanently banned from visiting Mr. Shick or any other state correctional facility in

Pennsylvania.” (Id. ¥ 51.) Mrs. Shick was not permitted to visit her husband at SCI-Albion on

May 31, 2019. (Id. 52.)

Plaintiffs allege that DOC policy authorizes indefinite suspensions of visitation rights, but

that it does not authorize permanent bans. (Id. {{ 54-57.) Plaintiffs also allege that DOC policy

requires that any person who unlawfully introduced illegal drugs into a state correctional facility

must be referred for criminal prosecution, but that Mrs. Shick was never referred for prosecution.

(Id. [1 57-58.)

II. Jurisdiction and Venue

The Court has subject-matter jurisdiction over Plaintiffs’ claims because they arise under

42 U.S.C. § 1983. Therefore, the Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. Venue

is proper under 28 U.S.C. § 1931 because a substantial portion of the events underlying this action

took place within the Western District of Pennsylvania.

III. Legal Standard

A complaint may be dismissed under Federal Rule of Civil Rule 12(b)(6) for “failure to

state a claim upon which relief can be granted.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786

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(3d Cir. 2016). But detailed pleading is not generally required. Id. The Rules demand only “a

short and plain statement of the claim showing that the pleader is entitled to relief” to give the

defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (quoting FED. R. CIv. P. 8(a)(2)).

Under the pleading regime established by Twombly and Iqbal, a court reviewing the

sufficiency of a complaint must take three steps.' First, the court must “tak[e] note of the elements

[the] plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the

court should identify allegations that, “because they are no more than conclusions, are not

entitled to the assumption of truth.” Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212,

224 (3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption

of truth.”) (citation omitted). Finally, “[w]hen there are well-pleaded factual allegations, [the]

court should assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Igbal, 556 U.S. at 679. “A claim has facial plausibility 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.; see also Connelly, 809 F.3d at 786. Ultimately, the

plausibility determination is “a context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

1 Although Iqbal described the process as a “two-pronged approach,” Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009), the Supreme Court noted the elements of the pertinent claim before proceeding with that approach,

id. at 675-79. Thus, the Third Circuit has described the process as a three-step approach. See Connelly, 809

F.3d at 787; Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 n.4 (3d Cir. 2011) (citing Santiago v. Warminster

Twp., 629 F.3d 121, 130 (2010)).

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IV. Discussion

A. The Court Will Dismiss the Pennsylvania Department of Corrections as a

Defendant Because it is Entitled to Eleventh Amendment Immunity

The Court will dismiss the Pennsylvania Department of Corrections as a defendant

because it is entitled to immunity under the Eleventh Amendment of the Constitution. The

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

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

United States by Citizens of another State.” U.S. Const. amend. XI.

The Eleventh Amendment has been generally interpreted “to immunize an unconsenting

state from suits brought in federal courts by her own citizens as well as by citizens of another

state.” Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995) (quoting Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). “A suit that is brought against an entity that

is in essence an ‘arm of the state’ is similarly barred by the Eleventh Amendment.” Lang v. Pa.

Higher Educ. Assistance Auth., 610 F. App’x 158, 160 (3d Cir. 2015) (quoting Fitchik v. N.J. Transit

Rail Operations, Inc., 873 F.2d 655, 658 (3d Cir. 1989)).

The Eleventh Amendment applies here because the Pennsylvania DOC is a part of the

executive department of the Commonwealth of Pennsylvania. See 71 PA. CONS. STAT. ANN. § 61;

Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (holding that Pennsylvania DOC is

immune to suit under the Eleventh Amendment); Longo v. SCI Camp Hill, 2019 WL 1141084, at *3-

*4 (M.D. Pa. Jan. 14, 2019). The Court further finds that the DOC did not waive its immunity and

that Congress did not abrogate it. Accordingly, the Court will dismiss the DOC as a defendant

in this matter.

B. The Court Will Dismiss Counts I and III Because Linda Shick Does Not

Adequately Allege a Violations of the First or Fourteenth Amendments

In Count I of the Complaint, Plaintiffs allege that the DOC, Wetzel, and Clark violated

Linda Shick’s Fourteenth Amendment right to procedural due process by failing to provide her

with an opportunity to “defend against the false claim that she attempted to introduce K-2 into

SCI-Albion.” (ECF No. 1 {{] 96-105.) In Count III of the Complaint, Plaintiffs alleges that “Mrs.

Shick’s First Amendment right to freedom of association with her husband has been violated by

the DOC’s permanent ban on her visiting with her husband.” (Id. {{ 109-11.)

Defendants argue that the Court must dismiss Counts I and III because the First

Amendment and Fourteenth Amendment Due Process Clause do not create a constitutional right

that entitles individuals to visit prisons. (ECF No. 6 at 3-9 (citing Ky. Dep’t of Corrections v.

Thompson, 490 U.S. 434, 460-61 (1989)).) Defendants argue that a prison’s denial of visitation rights

is legitimate so long as the denial is consistent with legitimate penological objectives of the

corrections system. (Id. at 4 (citing Johnson v. Cal., 543 U.S. 499, 510 (2005)).)

In response, Plaintiffs argue that Defendants violated Mrs. Shick’s First and Fourteenth

Amendment rights by restricting her access to visit her husband because Defendants’ decision to

ban her from prison facilities had no relationship to a legitimate penological purpose. (ECF No.

21 at 13-15.) Plaintiffs argue that “the legitimate penological interest at issue, i.e. the prevention

of drug smuggling into correctional institutions, but the actions here were not rationally related

to that purpose; accepting the factual allegations as true, it is adverse to that purpose.” (Id. at 13.)

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The Court finds that Mrs. Shick does not adequately plead a violation of the United States

Constitution. To prevail on a claim under Section 1983, the plaintiff must allege that defendants

violated plaintiff's constitutional right. See DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489

US. 189, 195 (1989); Gayeman v. Sch. Dist. of City of Allentown, No. 14-cv-1518, 2016 WL 3014896,

*12 (E.D. Pa. May 26, 2016); Lansberry v. Altoona Area Sch. Dist., 318 F. Supp. 3d 739, 754 (W.D. Pa.

2018) (Gibson, J.).

Here, the Court must dismiss Counts I and III because Mrs. Shick has no constitutional

right to visit her incarcerated husband. Courts have consistently held that “[c]onvicted prisoners,

their family and spouses have no constitutional right to visitation.” St. Clair v. Pa. Dep’t of Corr.,

No. 3:13-06, 2014 WL 695582, at *3 (W.D. Pa. Feb. 24, 2014) (quoting Young v. Vaughn, No. 98-4630,

2000 WL 1056444, at *2 (E.D. Pa. Aug. 1, 2000) (“Face to face contact with a spouse is important in

a marriage, but it is not a federal constitutional right.”); accord Neumeyer v. Beard, 301 F. Supp. 2d

349, 351 (M.D. Pa. 2004), aff'd, 421 F.3d 210 (3d Cir. 2005).?

Moreover, Mrs. Shick’s First and Fourteenth Amendment claims would fail even if a

constitutional right were implicated. The Supreme Court has held that a correctional facility's

decision regarding conditions of confinement, like visitation, will be upheld so long as they are

“reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

To determine reasonableness, courts must consider; (1) the connection between the prison

2 Plaintiffs allege that the Eastern District of Pennsylvania has recognized that “’spousal association’ is a

right as applied to the Due Process Clause.” (ECF No. 21 at 14 (citing Pahle v. Colebrookdale Twp., 227 F.

Supp. 2d 361, 382 (E.D. Pa. 2002)).) Pahle is inapposite. First, Pahle did not recognize any clearly defined

constitutional right to associate or communicate with a spouse, let alone an incarcerated spouse. 227 F.

Supp. 2d at 382. Second, the right “to marital integrity and spousal association” discussed in Pahle related

to an injured spouse in the loss-of-consortium context, not where a spouse is incarcerated. Id. The Third

Circuit has never adopted the Eastern District’s reasoning in Pahle.

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decision and the governmental interest supported; (2) the existence of alternative means of

exercising the abridged right; (3) the impact of an accommodation of the abridged right on prison

resources; and (4) the absence of alternatives for exercising the right at de minimis cost to

penological interests. Id. at 89-91; see also Vaughn, 2000 WL 1056444, at *2; St. Clair, 2014 WL

695582, at *3.

Here, the DOC’s decision to restrict Mrs. Shick’s visitation rights was rationally related to

a legitimate penological purpose— prohibiting the smuggling of drugs into SCI-Albion. See Block

v. Rutherford, 468 U.S. 576, 586 (1984) (holding that there is a rational connection between

restricting visitation and institutional security); Pfender v. Sec’y of Pa. Dep’t of Corr., 443 F. App’x

749, 752-53 (3d Cir. 2011) (holding that Pennsylvania DOC has broad authority to suspend

visitation rights when it determines that a visitor possesses a security risk); see also Overton v.

Bazzetta, 539 U.S. 126 (2003) (“The fact that the regulations bear a rational relation to legitimate

penological interests suffices to sustain them regardless of whether respondents have a

constitutional right of association that has survived incarceration. This Court accords substantial

deference to the professional judgment of prison administrators, who bear a significant

responsibility for defining a corrections system's legitimate goals and determining the most

appropriate means to accomplish them.”). The only way to accommodate Mrs. Shick is to

reinstate her visitation privileges, which may compromise prison security if she attempts to

smuggle drugs into the prison. And reinstating her visitation privileges would require additional

DOC resources to ensure that she does not attempt to smuggle drugs into SCI-Albion. Finally, it

does not appear that there is any available alternative that would restore Mrs. Shick’s visitation

rights at a de minimis cost to penological interests.

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It is irrelevant that Mrs. Shick denies that she attempted to smuggle drugs into SCI-

Albion—the allegation that resulted in the suspension of her visitation privileges. “[D]enial of

culpability does not create a triable issue of fact on the question of whether the suspension of her

visiting privileges bears a rational relationship to legitimate penological interests.” Pfender, 443

F, App’x at 753.

Accordingly, the Court will dismiss Counts I and III with prejudice. The Court will not

grant leave to amend because the Court finds that Mrs. Shick cannot possibly allege a violation

of the First or Fourteenth Amendments based on the denial of her visitation rights.» Even if she

could allege that a protected constitutional interest was implicated by the DOC’s decision, the

DOC’s ban on Mrs. Shick’s visitation rights is permissible because it is rationally related to a

legitimate penological interest.

Cc. The Court Will Dismiss Count II Because Defendants Are Entitled to Qualified

Immunity

Count II of the Complaint alleges that Defendants violated Mrs. Shick’s Eighth

Amendment right against cruel and unusual punishment by permanently banning her from

visiting SCI-Albion “based on false allegations that she attempted to introduce K2 into SCI-

Albion.” (ECF No. 1 {J 106-07.)

Defendants argue that the Court must dismiss Count II because the Eighth Amendment

does not apply to individuals who are not confined or otherwise within DOC custody. (ECF No.

3 “(I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment

unless such an amendment would be inequitable or futile. CollegeSource, Inc. v. AcademyOne, Inc., 579 F.

App’x 116, 126 (3d Cir. 2015) (quoting Philipps, 515 F.3d at 245). Amendment would be futile “if the

amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief

could be granted.” Munchak v. Ruckno, 692 F. App’x 100, 102 (3d Cir. 2017).

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6 at 9.) Defendants point out that “no case .. . support[s] the conclusion that Linda Shick has

standing to bring an Eighth Amendment claim in her own right against prison officials.” (Id. at

10.) Finally, Defendants allege that even if Mrs. Shick can bring an Eighth Amendment claim

against prison officials, that claim must fail because Defendants are entitled to qualified

immunity. (Id.)

In response, Plaintiffs argue that the Eighth Amendment applies to both incarcerated and

non-incarcerated individuals, (ECF No. 21 at 16 (citing Comm. v. Melvin, 103 A.3d 1, 56 (Pa. Super.

Ct. 2014)).)

The Court finds that Defendants are entitled to qualified immunity. “The doctrine of

qualified immunity protects government officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has explained that “[q]ualified

immunity balances two important interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment, distraction,

and liability when they perform their duties reasonably.” Id. “Because qualified immunity

bestows immunity from suit, the Supreme Court ‘repeatedly ha[s] stressed the importance of

resolving immunity questions at the earliest possible stage in litigation.” Thomas v. Indep. Twp.,

463 F.3d 285, 291 (3d Cir. 2006) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)); see also Conte

v. Rios, 658 F. App’x 639, 642 (3d Cir. 2016).

“To resolve a claim of qualified immunity, courts engage in a two-pronged inquiry: (1)

whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether

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the right was ‘clearly established’ at the time of the official’s conduct.” L.R. v. Sch. Dist. of Phila.,

836 F.3d 235, 241 (3d Cir. 2016) (citing Pearson, 555 U.S. at 232).4 The Supreme Court has recently

held “that clearly established law should not be established at a high level of generality,” but

instead must “be particularized to the facts of the case.” Bland v. City of Newark, 900 F.3d 77, 83

(3d Cir. 2018) (citing White v. Pauly, 137 S. Ct. 548, 552 (2018).

Here, Plaintiffs clearly allege that Defendants violated Mrs. Shick’s Eighth Amendment

rights by permanently banning her from visiting her husband at SCI-Albion. But there was no

clearly established right to visit an incarcerated spouse at the time that Defendants permanently

banned Mrs. Shick from visiting her husband. As discussed in the preceding subsection, courts

have consistently held that “[c]Jonvicted prisoners, their family and spouses have no

constitutional right to visitation.” St. Clair, 2014 WL 695582, at *3; accord Neumeyer, 301 F. Supp.

2d at 351, aff'd, 421 F.3d 210 (3d Cir. 2005). While the Supreme Court has addressed visitation

rights, it has never held that there is a constitutional right of a nonincarcerated individual to visit

prisons, including in the context of an incarcerated spouse. Overton, 539 U.S. at 131 (discussing

the right to visit inmates and declining to hold that there is a constitutional right for

nonincarcerated individuals to visit incarcerated relatives); see also Williams v. Ozmint, 716 F.3d

801, 806 (4th Cir. 2013), cert. denied, 571 U.S. 1209 (2014) (“The absence of controlling constitutional

authority in this regard thus forecloses Williams’ argument that, upon application of [the

qualified immunity] standard, the warden should have been aware that [restricting visitation]

4 As the Supreme Court has repeatedly explained, “a defendant cannot be said to have violated a clearly

established right unless the right’s contours were sufficiently definite that any reasonable official in the

defendant's shoes would have understood that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012,

2023 (2014) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741-42 (2011).

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violated a clearly established constitutional right.”). Therefore, the Court finds that there is no

clearly established right to visit incarcerated individuals.

Accordingly, the Court will dismiss Count II with prejudice because Defendants are

entitled to qualified immunity.

D. The Court Will Dismiss Count IV Because Russell Shick Does Not Allege a

Deprivation of Procedural Due Process Under the Fifth and Fourteenth

Amendments

Count IV of Plaintiffs’ Complaint alleges that Defendants violated Mr. Shick’s rights

under the Fifth and Fourteenth Amendments by denying Mr. Shick an opportunity to contest

Defendants’ finding that Mr. Shick attempted to smuggle K-2 into SCI-Albion. (ECF No. 1 {{

112-24.) Plaintiffs allege that Mr. Shick was never provided with an opportunity to inspect the

allegedly contaminated mail, was never provided with laboratory results, was prevented from

presenting witnesses in his defense, and that the hearing officer for Mr. Shick’s misconduct

proceedings— Defendant Slewiski— was not impartial. (Id.)

In their Motion to Dismiss, Defendants argue that Mr. Shick’s Fifth Amendment claim

fails because the Fifth Amendment applies only to federal actors, and not state actors. (ECF No.

6 at 11-12.) Defendants argue that Mr. Shick’s Fourteenth Amendment claim fails because

prisoners in misconduct proceedings are not afforded Fourteenth Amendment protections,

especially where prison officials impose a 60-day disciplinary sentence. (Id. at 13-14.)

In response, Plaintiffs do not dispute that Defendants are not state actors. (ECF No. 21 at

17.) Accordingly, the Court agrees that Mr. Shick’s Fifth Amendment claim must fail. See Caldwell

v. Beard, 324 F. App’x 186, 189 (3d Cir. 2009) (“[T]he due process clause under the Fifth

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Amendment only protects against federal governmental action and does not limit the actions of

state officials.”).

Plaintiffs argue, however, that Mr. Shick’s Fourteenth Amendment claim must survive

because Defendants subjected Mr. Shick to an “atypical deprivation of prison life” by confining

him in punitive segregation, restricting access to his wheelchair, and permanently banning Mrs.

Shick from visiting. (ECF No. 21 at 17-18.)

The Court finds that Defendants’ treatment of Mr. Shick does not trigger the procedural

due process clause. It is well established that prisoners in disciplinary hearings are typically not

afforded procedural due process protections. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974);

Burns v. Dep't of Corr., 642 F.3d 163, 171 (3d Cir. 2011). “[I]nmates are generally not entitled to

procedural due process in prison disciplinary hearings because the sanctions resulting from those

hearings do not usually affect a protected liberty interest. Burns, 642 F.3d at 171 (citing Sandin v.

Conner, 515 U.S. 472, 483-84 (1995)).

In similar situations, other courts have held that sanctions to disciplinary confinement for

periods of up to fifteen months do not trigger due process protections. Griffin v. Vaughn, 112 F.3d

703, 708 (3d Cir. 1997); Smith v. Mesinger, 293 F.3d 641, 653 (3d Cir. 2002); Nifas v. Beard, 374 F.

App’ x 241, 244 (3d Cir. 2010). In Smith, the Third Circuit held that “confinement in administrative

or punitive segregation will rarely be sufficient, without more, to establish the kind of ‘atypical’

deprivation of prison life necessary to implicate a liberty interest [thereby triggering procedural

due process protection].” Smith, 293 F.3d at 653. Accordingly, the Court finds that the decision

to send Mr. Shick to disciplinary custody for 60 days did not implicate the procedural due process

clause.

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The Court recognizes that Mr. Shick’s procedural due process claim is also based on the

restriction of his visitation rights and the alleged bias of the hearing examiner, Defendant

Slewiski. Plaintiffs’ argument on visitation rights is unpersuasive. The Supreme Court has held

that prisoners do not have a protected liberty interest in seeing certain visitors. Thompson, 490

US. at 460-61 (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)) (“The denial of prison access to

a particular visitor ‘is well within the terms of confinement ordinarily contemplated by a prison

sentence,’ ... and therefore is not independently protected by the Due Process Clause.”).

Similarly, the alleged partiality or bias of the hearing examiner at Mr. Shick’s disciplinary

hearing, Defendant Slewiski, does not trigger the due process clause. See Wilson v. Unknown

Budgeon, 248 F. App’x 348, 351 (3d Cir. 2007) (“Wilson challenges the impartiality of hearing

examiner Kane, but Sandin prohibits us from considering whether Wilson is entitled to an

unbiased hearing examiner.”).

Despite the inadequacy of Mr. Shick’s procedural due process claim as pleaded, the Court

will allow him an opportunity to amend Count IV. In their response to Defendants’ Motion to

Dismiss, Plaintiffs argue that Defendants deprived Mr. Shick of procedural due process by

confining him without his medically necessary wheelchair. (ECF No. 21 at 17.) However, Count

IV of Plaintiffs’ Complaint does not mention Mr. Shick’s wheelchair as a basis for his procedural

due process claim. (See ECF No. 1 {J 112-24.) However, because the Supreme Court has held

that confined persons have a liberty interest in adequate medical care, see Youngberg v. Romeo, 457

U.S. 307, 324 (1982), the Court will allow Plaintiffs the opportunity to amend their Fourteenth

Amendment claim to include allegations related to his wheelchair.

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Therefore, in sum, the Court finds that Mr. Shick’s claim for a deprivation of procedural

due process under the Fourteenth Amendment fails as pleaded in the Complaint. Because

amendment may cure the deficiencies in Mr. Shick’s Complaint, the Court will dismiss Count IV

without prejudice.

E. The Court Will Not Dismiss Count V Because Russell Shick Alleges a Violation

of the Eighth Amendment

Count V of Plaintiffs’ Complaint alleges that Defendants violated Mr. Shick’s Eighth

Amendment rights by: (1) permanently restricting his ability to visit with his wife (ECF No. 1 J

126); (2) failing to provide adequate procedures for Mr. Shick to contest the finding that he and

his wife attempted to introduce drugs into SCI-Albion (id. J 127); and (3) depriving Mr. Shick of

the use of his wheelchair. (Id. J 128.)

Defendants firstly argue that the Court should dismiss Count V of Plaintiffs’ Complaint

because the Eighth Amendment does not protect an inmate’s visitation rights or the procedures

by which an inmate may challenge a DOC determination. (ECF No. 6 at 15-16.) Defendants also

argue that Mr. Shick’s Eighth Amendment claim fails because he did not allege that “any named

defendant was personally involved in the decision to take away his wheelchair. (Id. at 17.)

In response, Plaintiffs argue that Mr. Shick’s Eighth Amendment claim should survive

Defendants’ Motion to Dismiss because the visitation ban and subsequent lack of procedures to

challenge it violated the Eighth Amendment. (ECF No. 21 at 18-19.) Plaintiffs also argue that

named defendants must have at least known of the decision to take away Mr. Shick’s wheelchair

because Defendant Slewiski conducted a hearing where Mr. Shick requested access to his

wheelchair. (Id. at 19.)

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The Eighth Amendment protects individuals against cruel and unusual punishment by

government actors. “The Eighth Amendment's prohibition against cruel and unusual

punishment guarantees that prison officials must provide humane conditions of confinement.”

Suggs v. Pa. Dep't of Corr., No. 07-170, 2008 WL 4222109, at *3 (W.D. Pa. Sept. 15, 2008). “Prison

officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and

must ‘take reasonable measures to guarantee the safety of the inmates.’” Id. (quoting Farmer v.

Brennan, 511 U.S. 825, 832 (1994)).

The Court finds that Mr. Shick adequately pleads an Eighth Amendment claim based on

the permanent visitation ban and lack of access to his wheelchair. In Overton, the Supreme Court

left open the possibility that a permanent ban on all visitation may violate the Eighth

Amendment.> 539 U.S. at 137; see also Henry v. Dep’t of Corr., 131 F. App’x 847, 850 (3d Cir. 2005)

(“In Overton, as we have seen, the Supreme Court strongly suggested that a permanent ban on all

visitation might constitute cruel and unusual punishment.”). Therefore, the Court finds that at

the motion-to-dismiss stage, Mr. Shick has pled a plausible violation of the Eighth Amendment

based on the permanent visitation ban.

Mr. Shick also alleges a plausible Eighth Amendment claim based on his lack of access to

a wheelchair. He alleges that he needs his wheelchair due to a hip condition, but that he was

deprived of his wheelchair for a nearly two-week period. (ECF No. 1 I] 44, 63-65.) Courts have

5 Although Defendants do not raise a qualified immunity regarding Count V of the Complaint, the Court

finds that Defendants are not entitled to qualified immunity on that claim. While there is no clearly

established right for a nonincarcerated individual to visit an incarcerated spouse, as discussed with respect

to Count II, language in the Supreme Court’s Overton decision indicates that prisoners have a right to some

visitation. Overton, 539 U.S. at 130, 133-34, 137. Therefore, the Court finds that it was clearly established

that permanent bans on visitation may constitute violations of the Eighth Amendment. Id.; see also Henry

v. Dep't of Corr., 131 F. App’x 847, 850 (3d Cir. 2005).

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held that deprivation of a wheelchair may constitute a violation of the Eighth Amendment where

the prisoner has a medical need for the wheelchair, and prison officials are deliberately indifferent

to that need. See, e.g., Todd v. Walters, 166 F. App’x 590, 592 (3d Cir. 2006); Oleson v. Bureau of

Prisons, No. 09-5706, 2012 WL 6697274, at *13 (D. N.J. Dec. 21, 2012). Accordingly, the Court finds

that Plaintiffs have adequately alleged an Eighth Amendment claim based on Mr. Shick’s lack of

access to his wheelchair.

The Court rejects Defendants argument that “Russell Shick has not made sufficient

allegations . . . that any named defendant was personally involved in the decision to take away

his wheelchair.” (ECF No. 6 at 17.) Mr. Shick alleges that he requested the return of his

wheelchair before a Program Review Committee on May 29, 2018, but that the wheelchair was

not returned until June 12, 2018. (ECF No. 1 IJ 63-65.) From the Complaint, it is not clear that

any of the Defendants were personally involved in the decision to deprive Mr. Shick of his

wheelchair. (Id.) However, given that Defendant Slewiski conducted a hearing involving Mr.

Shick the following day, the Court must infer that Slewiski was aware that Mr. Shick had been

deprived of his wheelchair after requesting its return the previous day. (Id. ] 66.) Based on this

inference, the Court finds that Plaintiffs have sufficiently pleaded that Slewiski was deliberately

indifferent.

Therefore, the Court will not dismiss Count V of Mr. Shick’s Complaint because he

adequately pleads an Eighth Amendment claim based on his wife’s permanent visitation ban and

a lack of access to his wheelchair.

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F, The Court Will Not Dismiss Count VI Because Russell Shick Alleges a

Violation of the First, Sixth, and Fourteenth Amendments

Count VI of Plaintiffs’ Complaint alleges that Defendants violated Mr. Shick’s First, Sixth,

and Fourteenth Amendment rights by opening and copying mail between Mr. Shick and his

attorney, thereby violating Mr. Shick’s “constitutional right of access to the courts and his

attorney-client privilege.” (ECF No. 1 17 130-39.) Count VI is based on a DOC policy that all

mail to inmates, including privileged communications, must be opened and scanned.

In their Motion to Dismiss, Defendants argue that Count VI of the Complaint must be

either stayed or dismissed. (ECF No. 6 at 18-20.) Defendants argue that the Court should stay its

resolution of Count VI pending the resolution of a pending case involving the same DOC mail

policy in the Middle District of Pennsylvania. (Id. at 18.) Defendants argue that, in the alternative,

the Court should dismiss Count VI because Mr. Shick does not allege that the DOC mail policy

has harmed him. (Id. at 19-20.)

In response, Plaintiffs argue that staying Count VI of the Complaint is inappropriate and

unnecessary because the parties may incorporate the Middle District’s decision at the summary

judgment stage.

The Court will not stay or dismiss Count VI. The Court will not stay adjudication of Count

VI because the Court finds that a stay would not promote judicial efficiency or consistency in

decision making. Since there are other related counts at issue in this case, judicial efficiency

would not be promoted by adjudicating the other counts but not Count VI, which is closely

related. Moreover, if the Court were to stay this case and the Middle District case ended in a

settlement, the Court would have to adjudicate Count VI without guidance from the Middle

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District. In other words, staying the case in that situation would have no effect except to delay

adjudication of Count VI. And the Court agrees with Plaintiffs that the parties can incorporate

any decision from the Middle District into their briefing on summary judgment.

The Court will not dismiss Count VI because Plaintiffs plausibly plead that Defendants

violated of the First and Sixth Amendments, as incorporated to the states through the Fourteenth

Amendment, by restricting his access to the courts. Generally, prisoners have a constitutional

right to access the courts. See Lewis v. Casey, 518 U.S. 343, 355 (1996); Bounds v. Smith, 430 U.S. 817,

828 (1977). “[P]risoners have a constitutional right to access the courts, which includes a right to

... legal assistance for the purpose of challenging their convictions, sentences, or conditions of

confinement.” Adekoya v. Chertoff, 431 F. App’x 85, 89 (3d Cir. 2011). “Prisoner[s] alleging that

[they] were deprived of [their] right to access the courts must allege that [they] suffered some

injury as a result of the deprivation.” Id. (citing Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir.

1997)).

Here, Plaintiffs allege that “Mr. Shick’s constitutional right of access to the court's [sic]

and his attorney-client privilege are being violated by the DOC’s mail policy.” (ECF No. 1 { 139.)

Plaintiffs also allege that:

[t]here is often no other adequate means of regularly communicating with a client

concerning privileged information other than by mail because phone calls are

limited to fifteen minutes and inmates are reluctant to speak over the phone where

the calls can be recorded and prison visitation is limited and state prisoners are

often located at far distances from his or her attorney.

(Id. 7 35.) Plaintiffs also allege that Mr. Shick has a pending criminal appeal. (Id. 1 94.) From

this, the Court must infer that Mr. Shick has been injured by the DOC’s mail policy. Mr. Shick

will be unable to effectively pursue this suit or his criminal appeal if his privileged

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communications are opened and viewed by DOC staff. Additionally, the Court must infer that

the interception of privileged communications may be especially damaging to Mr. Shick given

that he alleges that DOC staff has retaliated against him for reporting drug activity at SCI-Albion.

Accordingly, the Court will not dismiss Count VI of Plaintiffs’ Complaint.

V. Conclusion

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 5) is GRANTED IN

PART and DENIED IN PART. The Court will dismiss the Pennsylvania Department of

Corrections as a Defendant. Counts I, II, and III are hereby dismissed with prejudice. Count IV

is dismissed without prejudice. Defendants’ Motion is denied in all other respects.

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LINDA SHICK and RUSSELL SHICK, ) Case No. 3:18-cv-253

)

Plaintiffs, ) JUDGE KIM R. GIBSON

)

v. )

)

PENNSYLVANIA DEPARTMENT OF )

CORRECTIONS, JOHN E. WETZEL, )

MICHAEL R. CLARK, and RYAN )

SLEWISKI, )

)

Defendants. )

h ORDER

AND NOW, this 264° of August, 2019, upon consideration of Defendants’ Motion

to Dismiss for Failure to State a Claim (ECF No. 5), IT IS HEREBY ORDERED that the Motion is

GRANTED IN PART and DENIED IN PART. IT IS HEREBY ORDERED AS FOLLOWS:

(1) Defendant Pennsylvania Department of Corrections is hereby dismissed as a

defendant;

(2) Counts I, II, and III are hereby dismissed with prejudice. Count IV is dismissed

without prejudice. Defendants’ Motion is denied in all other respects; and

(3) Plaintiffs may file an amended complaint no later than 21 days after the Court

enters this memorandum opinion.

BY THE COURT:

\

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE

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