# SIMMONS v. OVERMYER

> District Court, W.D. Pennsylvania · December 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10415287

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** December 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10415287

## How later opinions describe it (automated extraction)

- holding that RLUIPA claims for money damages against a Pennsylvania 11 state official in his official capacity are barred by the Eleventh Amendment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
) .
AUGUSTUS SIMMONS, ) Case No. 1:18-cv-201 Erie
)
Plaintiff )
V. ) RICHARD A. LANZILLO
) UNITED STATES MAGISTRATE JUDGE
MICHAEL OVERMYER, et al., )
) ORDER ON DEFENDANTS’ MOTION
Defendants ) TO DISMISS [ECF NO. 31]

I. Introduction
Plaintiff Augustus Simmons, an inmate in the custody of the Pennsylvania Department of
Corrections, initiated this pro se action on July 6, 2018, pursuant to 28 U.S.C. § 1983. ECF No.
1. In his Amended Complaint, Simmons asserts nine counts for relief against officials at the
State Correctional Institution at Forest (SCI-Forest)! based on alleged violations of the Religious
Land Use and Institutionalized Persons Act and the First, Eighth, and Fourteenth Amendments to
the Constitution. ECF No. 25. Simmons names the following individuals as Defendants: □
Facility Manager Michael Overmyer, Major Blicha, Unit Manager Lee, Lt. Wonderling, Lt.
Dietrich, Sgt. Mravintz, PSS Sheesly, Grievance Coordinator Reeher, and Correctional Officers
Kundick, Coleman, Weiss, Newark, and Ellenberger. Simmons seeks both compensatory
damages and injunctive relief.
On May 14, 2019, Defendants moved to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6). ECF No. 31. Because Defendants attached several
exhibits to their motion, the Court instructed Simmons that the motion “may be treated, either in
whole or in part, as a motion for summary judgment under Federal Rule of Civil Procedure 56.”

' Simmons has since been transferred to SCI-Coal Township.

ECF No. 33 (citing Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010)). Simmons responded
to the motion to dismiss on June 28, 2019. ECF No. 36. As a result, this matter is ripe for
disposition?
II. Factual Background
On or about November 6, 2017, the Pennsylvania Department of Corrections (DOC)
transferred Simmons from SCI-Greene to SCI-Forest and assigned him to the Restricted Housing
Unit (RHU) and the Security Threat Group Management Unit (STGMU).? Simmons, a former
gang member, adheres to a self-created religion known as “the fellowship of spiritual science.”
ECF No. 25 4 16-17. According to Simmons, “i]t is a mandatory requirement in the fellowship
of spiritual science to read historical, philosophical, scientific and spiritual books.” Id. □ 15.
Shortly after arriving at SCI-Forest, Kundick stopped at Simmons’ cell door and claimed
to have searched Simmons’ legal property and discovered Simmons’ prior lawsuit against
officials at SCI-Greene. ECF No. 25 7 4. Kundick warned Simmons to “get with the program”
if he ever wanted to get out of the RHU. Jd. 45. When Simmons objected, Kundick loudly
accused Simmons of being a “snitch” and a “rat,” knowing that such accusations would place
Simmons in danger from other prisoners “due to the ‘street code’ of no snitching.” Jd.
Around that same time, Weiss and Coleman conducted an inventory of Simmons’ .
property. Jd. § 14. Simmons noticed that several books were missing including world history
books, a philosophical dictionary of quotations, and various self-help and science books. Jd. ff
15-16. When Simmons complained that these books were essential to his religion, Weiss

? The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge to conduct all
proceedings in this case, including the entry of final judgment, as authorized by 28 U.S.C. § 636.
3 The STGMU at SCI-Forest “is a non-punitive program” designed for “inmates who have poor prison adjustment,
numerous misconducts, and/or known gang affiliations.” Jmes v. Wingard, 2017 WL 1400143, at *2 (W.D. Pa. Feb.
21, 2017).

accused Simmons of creating a “fake religion” and stated: “we don’t care about your spiritual
science or your rights dude, just give that up, get with our program and act like a blood man.”
Id. § 17. Coleman added that Simmons could have his property feck if,he would “lay down and
not file any more grievances.” Jd. § 18. When Simmons refused Coleman’s “deal,” Coleman
and Weiss refused to inventory Simmons’ property and deprived him of his books for almost two
months. Id. 19-20.4
On November 16, 2017, several staff members conducted an investigative cell search of
Simmons’ cell. /d. 47. After “trashing” his cell, one of the officers told Simmons to “take it up
with Kundick, he’s the one that got us down here.” /d. § 8. Kundick later told Simmons that he
would make his life in the STGMU “hell” and stated: “Check the computer Simmons, I’m
undefeated in the Courts, Kundick never loses. So do all the crying you want, [we'll] win and
you’ll los[e], rat!” Jd. 99.
Several months later, Simmons sustained a back injury when correctional officer Newark
forced him to walk to the recreational yard in a dangerous manner. Jd. 450. According to
Simmons, when inmates forget to untie their boots after visiting the recreational yard, staff
members at SCI-Forest refuse to allow inmates to untie them before the next time they leave
their cells. Jd. § 46. Instead, they require them to “wear their boots with only their toes barely in
the boots,” forcing them to “hop” and “wobble” around for the amusement of staff. Jd. □ 46.
Such was the case on February 18, 2018, when Simmons forgot to untie his boots, a mistake he
attributes to short-term memory loss. Jd. 48-49. Rather than allow Simmons to untie them,
Newark ordered: “wear the boots or get burned for yard, nobody told you to leave them tied like

4 At paragraphs 22-44 of his amended complaint, Simmons accuses Weiss, Coleman and Ellenberger of conducting
improper strip searches and denying him access to his legal materials and the law library because of his litigation
and grievance history. Because Defendants do not discuss these allegations in their motion to dismiss, it appears
that they are not seeking dismissal of those claims and the Court will not address them here.

this.” Jd. § 49. Because he didn’t want to miss yard, Simmons put his toes into the tied boots
and “tried to wobble and walk” but “tripped and fell face first,” banging his head and body on
the concrete floor. Jd. □ 50.
Simmons next presents several allegations against Unit Manager Lee. First, Lee demoted
Simmons within the STGMU program in response to misconducts that Simmons had not yet had
a chance to challenge. By way of background, the STGMU program at SCI-Forest
“encompasses five steps or phases and each phase offers progressively more privileges and
services.” Imes, 2017 WL 1400143, at *2. Inmates in the STGMU program begin at Phase 5
and progress to Phase 1, at which point they may reintegrate into the general prison population.
Id. Lee twice demoted Simmons to a lower phase based on a misconduct that Simmons intended
to contest at a hearing. ECF No. 25 {J 54-55. Simmons contends that this deprived him of due
process of law. Jd. { 56.
Next, Lee deprived Simmons of his legal paperwork and access to the law library in
retaliation for his extensive grievance history. Jd. §§ 57-66. Specifically, Simmons had several
legal exemptions (i.e., approvals to keep extra legal paperwork in his cell or swap boxes of legal
materials) which Lee ignored or obstructed. Jd.
Simmons next contends that the conditions of confinement in the STGMU program
amounted to cruel and unusual punishment. He maintains that Sheesly, a mental health
specialist, subjected him to “psychological torture” throughout his tenure in the STGMU by
depriving him of yard, group activities, therapeutic journals and activities, television
programming, and access to friends and family. Jd. Sheesly also ignored Simmons when
he threatened to kill himself and refused to monitor the mental health implications stemming
from Simmons’ long-term confinement in solitary. Id. As aresult, Simmons suffers from

□

night terrors, sleep disorders, excessive weight loss, and episodes of anxiety and post-traumatic
stress disorder. Id.
On December 12, 2019, Simmons filed a request to his grievance coordinator asking why
he had not received appeal decisions for several of his grievances. Jd. § 79. Simmons
determined that Grievance Coordinator Reeher “withheld numerous grievances . . . and
grievance appeals in an attempt to thwart” Simmons from filing lawsuits. Jd. 4 81. Reeher later
“lied on an official document and conspired with Unit Manager Lee” to deny and thwart
Simmons’ grievances. /d. J 83. Finally, Reeher advised Simmons that his “constant
manipulative and obstructive behavior [with respect to grievances] only increase[d] the risk of
desensitizing staff.” Jd. § 85. Simmons construed this language as a retaliatory threat. Jd.
Simmons asserts a supervisory liability claim against Overmyer, Wonderling, Dietrich,
Lee, Blich, and Mravintz based on their failure to “stop, prevent, investigate or reform, protect,
separate and or halt any bad acts that violated [his] U.S. Constitutional rights.” Jd. at p. 24.
Simmons contends that each of these supervisory defendants “had notice of the bad acts of
correctional staff named in this action” but failed to prevent those acts. Jd. Defendants
also ignored the “vast amount of request slips and grievances” that he sent. Jd.
Lastly, Simmons accuses Ellenberger, Coleman, and Mravintz of retaliating against him
for acting as a witness for another inmate who had filed a sexual harassment complaint against
Mravintz. Jd. § 94. Defendants’ retaliatory conduct included verbal threats, “agoressive and
unethical strip searches,” and trashing his cell. Jd. f§ 95-96.
II. Standards of Review

A. Pro se Litigants
Pro se pleadings, “however inartfully pleaded,” are held to “less stringent standards than

formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Ifthe
court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,
555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read
“with a measure of tolerance’). Under our liberal pleading rules, during the initial stages of
litigation, a district court should construe all allegations in a complaint in favor of the
complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
B. Motion to dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a
motion to dismiss, the court is not opining on whether the plaintiff will likely prevail on the
merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)
(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed
pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard
established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court
must accept as true all well-pled factual allegations in the complaint and views them in a light
most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.
2002).

.

While a complaint does not need detailed factual allegations to survive a motion to
dismiss, a complaint must provide more than labels ead conclusions. T wombly, 550 U.S. at 555.
A “formulaic recitation of the elements of a cause of ncion will not do.” Jd. (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a
plaintiff if they are unsupported by the facts in the complaint. See California Pub. Employee
Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion

Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions
disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286).
See also McTernan vy. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet
that a court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.”).
Expounding on the Twombly/Igbal line of cases, the Third Circuit has articulated the
following three-step approach: :

First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a
claim.’ Second, the court should identify allegations that, ‘because they are no more
than conclusions, are not entitled to the assumption of truth.’ Finally, ‘where there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.’
Burtch y. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This 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.
C. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if
the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under this standard “the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A
disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of
the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers,
Inc., 957 F.2d 1070, 1078 (3d Cir. 1992), An issue of material fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477
U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court

must view the record and all reasonable inferences to be drawn therefrom in favor of the
nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp.,
-963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir.
1988). To avoid summary judgment, however, the nonmoving party may not rest on the
unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden
of identifying evidence that demonstrates the absence of a genuine issue of material fact, the
nonmoving party must to go beyond his pleadings with affidavits, depositions, answers to
interrogatories or other record evidence to demonstrate specific material facts that give rise to a
genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Ul. Analysis
A Exhaustion
Before addressing the substance of Simmons’ allegations, Defendants contend that two of
Simmons’ claims — the retaliation claim raised in Count One and parts of the retaliation claim
raised in Count Two — should be dismissed for lack of exhaustion. The Prison Litigation Reform
Act of 1995, 42 U.S.C. § 1997e(a) (the “PLRA”), requires a prisoner to exhaust any available
administrative remedies before he may bring an action pursuant to 42 U.S.C. § 1983 challenging
the conditions of his confinement. 42 U.S.C. § 1997e(a). This exhaustion requirement applies to
all claims relating to prison life which do not implicate the duration of the prisoner’s sentence.
Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the statute requires “proper exhaustion,”
meaning that a prisoner’s completion of the administrative review process must also satisfy the
applicable procedural rules of the prison’s grievance system. Fennell v. Cambria County Prison,
607 Fed. Appx. 145, 149 (3d Cir. 2015). Failure to exhaust administrative remedies under the
PLRA is an affirmative defense that must be pleaded and proven by defendants. Ray v. Kertes,
285 F.3d 287, 295 (3d Cir. 2002).
The exhaustion requirement “admits of one, narrowly defined exception.” Williamson v.
Roberts, 2013 WL 967693, at *4 (W.D. Pa. Mar. 12, 2013). Courts have “invariably held” that
“affirmative misconduct by prison officials, designed to impede or prevent an inmate’s attempts
to exhaust, may render administrative remedies unavailable.” Payne v. Gordon, 2018 WL
3649025, at *5 (M.D. Pa. Aug. 1, 2018) (citing Todd v. Benning, 173 Fed. Appx. 980, 982-83
(3d Cir. 2006)). Thus, if the actions of a prison official directly and affirmatively cause an
inmate to procedurally default his grievance, the inmate will not be held to strict compliance with
the exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (Section

1997e(a) only requires that prisoners exhaust such administrative remedies “as are available”);
McKinney v. Guthrie, 309 Fed. Appx. 586 (3d Cir. 2009) (“An administrative remedy may be
unavailable if a prisoner is prevented by prison authorities from pursuing the prison process.”’).
Examples of affirmative misconduct include, inter alia, threatening a prisoner to thwart
exhaustion and/or refusing to provide appropriate grievance forms in response to an inmate’s
inquiry. See, e.g., Harcum v. Shaffer, 2007 WL 4167161, at *5 (E.D. Pa. Nov. 21, 2007)
(finding administrative remedies unavailable where prison officials threatened plaintiff with
“opposition to his future prerelease application, parole, or outside work detail if he did not
withdraw his grievance”); Mitchell v. Horn, 318 F3d 523, 529 (3d Cir. 2003) (exhaustion may be
excused where “prison officials denied [an inmate] the necessary grievance forms and, as a
result, he lacked ‘available’ administrative remedies.”).
Defendants have submitted several exhibits suggesting that Simmons failed to exhaust his
retaliation claim against correctional officer Kundick and portions of his retaliation claim against
Coleman, Weiss and Ellenburger. Simmons’ amended complaint, however, alleges that prison
officials obstructed his access to the grievance procedure in various ways. These include
allegations that prison officials stole, destroyed, ignored, or belatedly responded to many of his
grievances, directly and affirmatively impeding Simmons’ ability to exhaust his administrative
remedies. Given these allegations, which must be accepted as true at this stage in the
proceedings, Defendants’ request for dismissal based on exhaustion is denied.
B. RLUIPA claims
Although not independently enumerated as one of Simmons’ nine causes of action,
Simmons references the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. § 2000cc, et seq., throughout his pleading. In broad brush, the RLUIPA prohibits the

10

government from imposing a “substantial burden on the religious exercise of a person residing in
or confined to an institution .. . even if the burden results from a rule of general applicability.”
Washington v. Klem, 497 F.3d 272, 277 (3d Cir. 2007) (quoting 42 U.S.C. § 2000cc-1(a)). A
“substantial burden” exists where: “(1) A follower is forced to choose between following the
precepts of his religion and forfeiting benefits otherwise generally available to other inmates
versus abandoning one of the precepts of his religion in order to receive a benefit; OR (2) the
government puts substantial pressure on an adherent to substantially modify his behavior and to
violate his beliefs.” Jd. at 280.
Simmons contends that it is “a mandatory precept” within his religion “for all followers
to express, and practice the religious precept known as the Eye of Odysseus which requires the
plaintiff to study historical, philosophical, scientific and spiritual books, research and documents
to understand if something being studied or examined is unfounded or founded in facts or
theory.” ECF No. 37 at 5. Simmons asserts that several Defendants — in particular, Weiss,
Coleman, and Ellenberger — forced him abandon this precept by refusing to allowhimto
access his religious books and documents and by limiting his choice of religious literature to a
“Bible, Qu’ran, or Buddhist book.” Jd. at 6.
Before reaching the merits of this allegation, the Court notes that Simmons cannot
recover compensatory or punitive damages under the RLUIPA. In Sharp v. Johnson, 669 F.3d
144, 154 (d Cir. 2012), the Court of Appeals for the Third Circuit held that the RLUIPA does
not permit actions against government employees in their individual capacities. To the extent
that Simmons may be pursuing his claims against the Defendants in their official capacities, the
Eleventh Amendment bars the recovery of monetary damages. Scott v. Beard, 252 Fed. Appx.
491 (3d Cir. 2007) (holding that RLUIPA claims for money damages against a Pennsylvania

11

state official in his official capacity are barred by the Eleventh Amendment). In tandem, these
principles restrict Simmons claims under the RLUIPA to injunctive and declaratory relief.
A review of his amended complaint reveals that Simmons is seeking the following as
injunctive relief: termination of every staff member identified in his pleading; transfer to another
state correctional institution; investigation of STGMU policy by the governor’s office; the
addition of permanent dayrooms and group activities to the STGMU; the development of a
policy for television use throughout the DOC; reforms to the guidelines by which active gang
members are identified; and for Simmons’ security threat group identification to be removed
from his DOC file. ECF No. 25 at pp. 28-29. None of these forms of relief relate to his religious
claims. Thus, to the extent that any Defendants substantially burdened the exercise of his
religion, Simmons has not requested any available relief. His RLUIPA claim must be dismissed
on this basis.°

C. Retaliation claims (Counts One, Two, Five, Seven and Nine)
Simmons’ amended complaint contains several discrete allegations of retaliation. In
order to state a claim for unlawful retaliation, Simmons must allege that: (1) his conduct was
constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and
(3) his constitutionally protected conduct was a substantial or motivating factor in the decision to
take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v.
Horn, 241 F.3d 330, 333-34 (d Cir. 2001)). An “adverse action” is one that would “deter a
person of ordinary firmness” from exercising his First Amendment rights. Allah v. Seiverling,
229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.

5 The Court also notes that the DOC transferred Simmons to SCI-Coal Township on December 4, 2019. “An
inmate’s transfer from the facility complained of generally moots the equitable and declaratory claims.” Banks v.
ne WL 5465165, at *8 (M.D. Pa. Sept. 30, 2013) (citing Abdul—Akbar v. Watson, 4 F.3d 195, 197 (3d Cir.

12

2000)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal
proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of
antagonism coupled with timing that suggests a causal link. /d. (citing Lauren W. ex rel. Jean W.
v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
1. Correctional officer Kundick (Count One)
Simmons contends that Kundick loudly accused him of being a snitch and a rat in front of
other inmates immediately after learning that Simmons had initiated a lawsuit against his
previous correctional institution. Filing lawsuits and grievances is an activity protected by the
First Amendment. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). “[B]Jeing publicly
referred to as a ‘snitch’ .. . is an adverse consequence sufficient to state a claim for retaliation.”
Bracey v. Link, 2019 WL 251853, at *6 (E.D. Pa. Jan. 16, 2019) (citing Miller v. Leathers, 913
F.2d 1085, 1088 at n. * (4 Cir. 1990) (“It is impossible to minimize the possible consequences
to a prisoner of being labelled a ‘sniteh.’”)). Accordingly, the Court finds that Plaintiff has
alleged enough facts to plausibly support a First Amendment retaliation claim against Kundick.
Defendants’ motion to dismiss Count One is denied.
2. Coleman, Weiss and Ellenburger (Count Two)
Simmons contends that Weiss and Coleman intentionally deprived him of his religious
materials for several months after Simmons refused to agree to stop filing grievances. He also
alleges that Coleman, Weiss, and Ellenburger denied him access to his legal materials and the
law library and utilized aggressive and unnecessary strip searches because of his “frivolous
grievances.” ECF No. 25 { 30. Finally, he alleges that Ellenburger wrote a false misconduct.
Id. 4 42. Each of these actions could deter an inmate of ordinary firmness from exercising his
constitutional rights. See, e.g., Bailey v. Jurnak, 2019 WL 2488035, at *4 (M.D. Pa. Jan. 3,

13

2019) (denial of property may amount to an adverse action); Fennell v. Horvath, 2019 WL
1981403, at *14 (E.D. Pa. May 3, 2019) (plaintiff's allegation that he was strip searched in
retaliation for filing a lawsuit was sufficient to survive a motion to dismiss); Palmore v.
Hornberger, 2019 WL 5073672, at *4 (W.D. Pa. July 8, 2019) (issuing an allegedly false
misconduct “could deter a reasonably firm prisoner from exercising his First Amendment rights
and is adequate for purposes of the de minimus showing required to demonstrate adverse
action”); Williams v. Folino, 2015 WL 1212951, at *9 (W.D. Pa. Mar. 17,2015) (allegation that
plaintiff was denied law library time in retaliation for his grievance history was sufficient to state
claim). Defendants’ motion to dismiss this claim will be denied.
3. Lee (Count Five)
As with Coleman, Weiss, and Ellenburger, Simmons maintains that Lee engaged in
unlawful retaliation by depriving him of his legal paperwork and access to the law library in
response to his extensive grievance history. Simmons further alleges that Lee obstructed or
ignored his pre-approved requests to exchange boxes of legal documents, depriving him of
necessary litigation materials. As noted above, deprivations of personal property or legal
materials can amount to an adverse action under appropriate factual circumstances. Williams,
2015 WL 1212951, at *9; Bailey, 2019 WL 2488035, at *4. At this stage in the proceedings,
Defendants’ motion to dismiss must be denied.°

6 To the extent that Simmons might have intended to assert an access to courts claim based on this same conduct,
that claim would fail. To establish a violation of the right to access the courts, an inmate must show that prison
officials caused an actual injury by preventing him from litigating a non-frivolous and arguable underlying claim.
Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 415 (2002). Simmons has alleged
no facts suggesting that this was the case.

14

4, Reeher (Count Seven)
Simmons alleges that Reeher lied on official documents and refused to process his
grievance. Because “[a]ccess to prison grievance procedures is not a constitutionally-mandated
right,” allegations of improprieties in the handling of grievances are not ordinarily cognizable
under § 1983. Williams v. Armstrong, 566 Fed. Appx. 108-09 (3d Cir. 2014). Here, however,
Simmons alleges that the failure to process his grievances represented unlawful retaliation in
response to his protected activity of filing grievances and lawsuits. Such allegations suffice to
state a claim for retaliation. Williams v. Pa. Dept. of Corr., 2019 WL 3334345, at *1 (W.D. Pa.
July 25, 2019) (dismissing due process claims based on defendant’s failure to process a
grievance but declining to dismiss retaliation claim based on the same incident). As such,
Defendants’ motion to dismiss this claim must be denied.
5. Ellenburger, Coleman, and Mravitz (Count Nine)
Simmons’ final retaliation claim targets Ellenburger, Coleman, and Mravitz. Simmons
contends that each of these Defendants retaliated against him for serving as a witness during
another inmate’s sexual harassment investigation. This retaliation included “aggressive and
unethical strip searches,” trashing his cell, and denying him the ability to access the law library
or his legal materials. ECF No. 25 §§ 95-98. Because each of these actions could deter an
inmate of ordinary firmness from exercising his constitutional rights, Defendants’ motion to
dismiss this claim must be denied. Bailey, 2019 WL 2488035, at *4 (denial of property);
Fennell, 2019 WL 1981403, at *14 (retaliatory strip search); Williams, 2015 WL 1212951, at *9
(denial of access to the law library); Coit v Garman, 2019 WL 2612703, at *8-9 (M.D. Pa. June
26, 2019) (noting that excessive cell searches may constitute adverse actions).

15

D. Deliberate indifference (Count Three)
Simmons alleges that Newark and Mravintz acted with deliberate indifference to his
health and safety by forcing him and other inmates to “wobble” around the prison with only the
tips of their toes in their boots while officers laughed and joked. On one occasion, Simmons
tripped and injured his back because Newark forced him to walk in this manner with his hands
cuffed behind his back.
To establish a violation based on deliberate indifference, Simmons must allege that
Defendants had actual knowledge of “an excessive risk to inmate health or safety” and were
deliberately indifferent to the risk. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Beers-Capitol
v. Wetzel, 256 F.3d 120, 125 (3d Cir. 2001). Deliberate indifference is a subjective inquiry,
while risk of harm is evaluated objectively. Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir.
2003). Critically, the Eighth Amendment’s prohibition of cruel and unusual punishment does
not only restrain affirmative conduct, such as the use of excessive force against prisoners.
Beenick v. Lefebvre, 2016 WL 5402249, at *9 (M.D. Pa. July 29, 2016). It also imposes a duty
on prison officials to provide humane conditions of confinement and “take reasonable measures
to guarantee the safety of inmates.” Jd. (citing Farmer, 511 U.S. at 832).
Here, Defendants characterize the injury suffered by Simmons as mere negligence,
“which is not cognizable in the context of a § 1983 action.” ECF No. 32 at 9. This argument
ignores Simmons’ allegation that Newark and Mravintz (as well as other officers) intentionally
forced Simmons and other inmates to walk in an objectively unsafe manner for their amusement.
At this stage in the proceedings, these allegations suffice to state a claim for deliberate
indifference. Defendants’ motion must be denied.

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E. Conditions of confinement (Count Six) .

Simmons next challenges the “cruel, hostile, and solitary environment” of the STGMU.
ECF No. 25 § 77. Simmons complains that inmates in the STGMU are given no opportunity to
recreate in a group and are deprived of “therapeutic journals,” “daily T.V. programming,” and
kiosks to email family and friends. /d. { 74.
“Because routine discomfort is part of the penalty that criminal offenders pay for their
offenses against society, .. . only those deprivations denying the minimal civilized measure of
life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.”

Hudson y. McMillian, 503 U.S. 1, 9 (1992). An Eighth Amendment conditions of confinement
claim exists where “viewing the totality of the conditions in the prison, the inmate’s conditions
of confinement, alone or in combination, deprive him of the minimal civilized measure of life’s
necessities.” Tillery v. Owens, 907 F.2d 418, 426-27 (3d Cir. 1990). In the non-medical context,
this means that prison officials must provide adequate food, clothing, shelter, and medical care,
and “take reasonable measures to guarantee the safety of the inmates.” Hudson v. Palmer, 468
U.S. 517, 526-27 (1984). .
Courts in this Circuit have repeatedly rejected conditions of confinement claims based on
conditions in the STGMU. Robinson Noble v. Wetzel, 2019 WL 4279975, at *5.-6 (W.D. Pa.
Aug. 1, 2019); mes, 2017 WL 1400143, at *6 (placement in the STGMU did not result in the
denial of any basic human need). Simply put, the typical conditions in the STGMU do not
amount toa deprivation of food, clothing, shelter, medical care, or safety. To the extent that
Simmons is asserting a stand-along conditions of confinement claim based on conditions in the
STGMU, that claim is dismissed.

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F. Deliberate indifference (Count Six)
In addition to challenging the underlying conditions in the STGMU, Simmons maintains
that Sheesly, a mental health specialist, displayed deliberate indifference to the “psychological
torture” he experienced while in the STGMU. “[Djeliberate indifference” occurs when a prison
official “knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). .
Here, Simmons alleges that he raised his mental health concerns with Sheesly daily but
she “[stood] by and [did] nothing to assist [him].””» ECF No. 25 § 76. Simmons also asserts that
Sheesly received a report stating that Simmons was going to kill himself with a razor and ignored
it. Simmons suggests that Sheesly’s neglect caused him to experience worsening night terrors,
sleep disorders, excessive weight loss, and episodes of anxiety and post-traumatic stress disorder.
At this stage in the litigation, these allegations are enough to survive dismissal.
G. Due process claim (Count Four)
“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations
of life, liberty, or property; and those who seek to invoke its procedural protection must establish
that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). In
analyzing a procedural due process claim, “the first step is to determine whether the nature of the
interest is one within the contemplation of the ‘liberty or property’ language of the Fourteenth
Amendment.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). A protected liberty interest
arises only where a restraint “imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Williams v. Secretary Pennsylvania Dep't of

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Corrections, 848 F.3d 549, 558-59 (3d Cir. 2017) (emphasis and citations omitted). If the
asserted interest falls within the protections of the Due Process Clause, the second step is to
determine whether the plaintiff was afforded “all of the process he was due.” Shoat, 213 F.3d at
143.
Simmons’ due process claim fails at the first step. Courts in the Third Circuit, including □

the Court of Appeals, have consistently held that placement in the STGMU does not implicate a
liberty interest. See, ¢.g., Imes, 2017 WL 1400143, at *5 (concluding that placement in the
STGMU at SCI-Forest did not “impose[] an atypical and significant hardship . . . relative to the
ordinary incidents of prison life” and, therefore, did not implicate a protected liberty interest);
-Harris v. Ricci, 595 Fed. Appx. 128, 131 (3d Cir. 2014) (concluding that the New Jersey
STGMU, a much stricter program than the STGMU at SCI-Forest, did not implicate a liberty
interest). In the absence of a protected liberty interest, Simmons cannot establish a violation of
his due process rights and dismissal is warranted.
H. Supervisory Liability (Count Eight)
Finally, Simmons asserts a “supervisory liability” claim against Overmyer, Wonderling,
Dietrich, and Blicha based on their failure to correct the violations highlighted in his amended
complaint or adequately respond to his grievances.’ Simmons broadly alleges that each of these
Defendants “had notice of the bad acts of correctional staff named in this action but did little to
nothing, or even conspired and aided in the actions of staff in the STGMU. Plaintiff filed a vast
amount of request slips and grievances and none of the above supervisors responded within their
supervisor capacity.” ECF No. 25 § 92.

7 Because Simmons has asserted several viable claims against Lee based on his direct role in several alleged
violations, the Court excludes Lee from this analysis.

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To prevail on a § 1983 claim, a plaintiff “must show that each and every defendant was
‘personal[ly] involve[d]’ in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3
(M.D. Pa. 2006) (quoting Evancho y. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). This means
that each defendant must have played an “affirmative part” in the complained-of misconduct.
Iqbal, 556 U.S. at 677 (“In a § 1983 suit ... [a]bsent vicarious liability, each Government official,
his or her title notwithstanding, is only liable for his or her own misconduct.”).
These principles apply with equal force where the defendants are supervising prison
officials. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for
supervisory officials must still be based on “personal involvement in the alleged wrongs”).
Although a supervisor cannot encourage constitutional violations, “a supervising public official
has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of
constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d
Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 Gd Cir. 1990). Nor can Section 1983
liability be predicated solely on the theory of respondeat superior. Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1293-95 (3d Cir. 1997).
Finally, it is “well established that the filing of a grievance is not sufficient to show the
actual knowledge necessary for a defendant to be found personally involved in the alleged
unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy
v. Chmielsewski, 508 Fed. Appx. 99, 104 (3d Cir. 2013) (“[A]n officer’s review of, or failure to
investigate, an inmate’s grievances generally does not satisfy the requisite personal
involvement.”). As such, courts have routinely dismissed civil rights allegations against prison
officials whose only knowledge of the alleged violation stemmed from their participation in the
grievance process. See, e.g., Beale v. Wetzel, 2015 WL 2449622, at *5 (W.D. Pa. May 21, 2015)

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(dismissing claims against senior prison officials because'the only allegations against them arose
in the context of their participation in an administrative appeal process); Rogers v. United States,
696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a grievance official’s only involvement is
investigating and/or ruling on an inmate’s grievance after the incident giving rise to the
grievance has already occurred, there is no personal involvement on the part of that official.”).
Applying these principles, Defendants maintain that each of the claims identified in
Count Eight must be dismissed. The Court agrees. The allegations in Count Eight relate to
Defendants’ involvement in the grievance process, failure to respond to request slips, or refusal
to correct violations despite “being aware” of them. Allegations that a supervisor was “made
aware of several issues of the plaintiff's and .. . failed to help him” are insufficient to state a
claim for relief. Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018). The
same is true where a supervisor merely “receives and reviews a letter or grievance appeal,”
Johnson v. Wireman, 2019 WL 1383575, at *7 (M.D. Pa. Mar. 27, 2019), or “fail[s] to act
favorably on an inmate’s grievance [or misconduct],” White v. Wetzel, 2016 WL 3197966, at *6
(W.D. Pa. June 9, 2016). Absent affirmative misconduct on the part of any of the supervisory
Defendants, Simmons’ claims against Overmyer, Wonderling, Dietrich, and Blicha must be
dismissed.
IV. Conclusion
For the reasons stated herein, Defendants’ motion to dismiss is granted in part and denied
in part. Defendants’ motion is GRANTED as to the following claims, each of which is
dismissed, with prejudice:
(1) RLUIPA claims (Counts One, Two, Three, Five, and Eight);
(2) Due process (Count Four);

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(3) Access to courts (Count Five);
(4) Conditions of confinement (Count Six); and
(5) Supervisory liability (Count Eight).
As a result of the foregoing, Defendants Overmyer, Wonderling, Dietrich, and Blicha are
each dismissed from this action.
Defendants’ motion is DENIED as to the following:
(1) Retaliation claim against Kundick (Count One);
(2) Retaliation claim against Coleman, Weiss, and Ellenburger (Count Two);
(3) Deliberate indifference against Newark and Mravintz (Count Three);
(4) Retaliation claim against Lee (Count Five);
(5) Deliberate indifference against Sheesly (Count Six);
(6) Retaliation against Reeher (Count Seven); and
(7) Retaliation against Ellenburger, Coleman, and Mravitz (Count Nine).
IT IS SO ORDERED.
ez a Z 44
RICHARD A. LANZALLO
United States Magistrate Judge
Dated: December 27, 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415287. Public record. Not legal advice.