COLON v. ANGLIKOWSKI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CARLOS COLON, )

)

Plaintiff ) Case No. 1:20-cv-00036 (ERIE)

)

vs. )

) HON. RICHARD A. LANZILLO

ERIC ANGLIKOWSKI, JOHN WETZEL, ) UNITED STATES MAGISTRATE JUDGE

MARK CAPOZZA, DEBRA )

HAWKINBERRY, MELANIE NAGY, )

ADAM KNEPPER, SCOTT RIDDLE, ) MEMORANDUM OPINION

SETH ERICKSON, MICHAEL CLARK, _ ) ON DEFENDANTS’ MOTION

DAVID RADZIEWICS, and ) TO DISMISS (ECF NO. 41)

TRICIA BASHOR, )

)

Defendants )

1. Background and Procedural Posture

Plaintiff Carlos Colon (Colon), proceeding pro se, commenced this civil rights action against

ten employees of the Pennsylvania Department of Corrections (Defendants), all of whom worked at

the State Correctional Institution at Albion, where Colon was previously incarcerated.’ See ECF No.

15 (Complaint). His original Complaint alleged that one of the defendants, Corrections Officer

Anglikowski, sexually assaulted and harassed him during his incarceration and that the other

defendants were somehow complicit in or responsible for Anglikowski’s misconduct. Id.

In response to Colon’s Complaint, the Defendants filed a Motion for More Definite

Statement pursuant to Federal Rules of Civil Procedure 8 and 10. See ECF No. 29, 43. Because the

Complaint did not disclose the factual basis underlying Colon’s claims against any defendant other

than Anglikowski, the Court granted the Defendants’ motion and ordered Colon to file an Amended

Complaint. ECF No. 32. Colon complied with that order and filed an Amended Complaint. ECF

1 Colon is presently incarcerated at SCI-Fayette.

No. 38 (Amended Complaint). Thereafter, Defendants filed the pending Motion to Dismiss the

Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and a supporting brief. ECF Nos. 41, 42.

Colon has filed a Response in opposition to the motion. ECF No. 46. All parties have consented to

the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636. Defendants’

motion is ripe for disposition.

Il. Standard and Scope of Review

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 be likely to prevail on the

merits; rather, the plaintiff must only present factual allegations sufficient “to raise a tight to relief

above the speculative level.” Be// 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

Asheroft 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 Lid. 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 and conclusions. Twombly, 550 US. at 555. A “formulaic

recitation of the elements of a cause of action will not do.” Id. (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 as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The

Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse ». 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 US. at 555. See also McTernan v. 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/ Iqbal 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 v. 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

teviewing coutt to draw on its judicial experience and common sense.” Igbal, 556 U.S. at 679.

When ruling upon a motion to dismiss pursuant to Rule 12(b)(6), the Court must “generally consider

only the allegations in the complaint, exhibits attached to the complaint, matters of public record,

and documents that form the basis of a claim.” Lwm v. Bank of Am., 361 F.3d 217, 222 n.3 3d Cir.

2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 3d Cir. 1997). A court may

take judicial notice of documents filed in other court proceedings because they ate matters of public

record. Liberty Int'l Underwriters Can. v. Scottsdale Ins. Co., 955 F. Supp. 2d 317, 325 (D.N,J. 2013).

Finally, because Colon is representing himself, the allegations in the Amended Complaint

must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v, Kerner,

404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to state a

valid claim upon which relief could be granted, it should do so despite the litigant’s failure to cite

ptoper legal authority, confusion of legal theories, poor syntax and sentence construction, or

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”). Thus, the Court may consider

facts and make inferences where it is appropriate. But “any pleading must still contain sufficient

factual allegations that, when accepted as true, ‘state a claim to relief that is plausible on its face.’””

Heffley v. Steele, 2019 WL 5092127, at *4 (W.D. Pa. Oct. 11, 2019), aff'd, 826 Fed. Appx. 227 (3d Cir.

2020) (citations omitted). See also Baex v. Mooney, 2021 WL 816013, at *3 (W.D. Pa. Feb. 8, 2021),

report and recommendation adopted, 2021 WL 808726 (W.D. Pa. Mat. 3, 2021).

Ill. Discussion and Analysis

A. Colon’s Factual Allegations and Claims”

Colon’s Amended Complaint is a 28-page verified pleading. An amended complaint

“supersedes the original and renders it of no legal effect, unless the amended complaint specifically

tefets to or adopts the earlier pleading.” W. Run S tudent Hous. Assocs., LLC v. Huntington Nat'l Bank,

712 F.3d 165, 171 (3d Cir. 2013). Colon’s amended pleading includes no such incorporation and

therefore is the operative pleading under consideration.

Generally, Colon claims he was deprived of his ‘Federal Constitutional Rights as named by

the 5, 8, and 14" Amendments, namely his rights to due process and freedom from cruel and

unusual punishment and though unprovable at this time sexual abuse and sexual harassment at the

hands of correctional staff.” ECF No. 38,990. The claims against all defendants appear to arise

out of, or relate to, an incident of alleged sexual abuse by Anglikowski during a body search on

2 Colon has not organized his Amended Complaint into counts or specified which Defendants are the subject of each of

his claims. Consistent with its obligation to construe Colon’s prv se pleading liberally, the Court has attempted to

extrapolate this information from a generous reading of the Amended Complaint. The Court notes, however, that

notwithstanding his pro se status, Colon—like any litigant—must allege facts sufficient to state a claim as to each

defendant. See, e.g, Brandt v. Thuring, 2019 WL 1418125, at *4 (D.NJJ. Mar. 29, 2019). See also Hamilton v. Jamieson, 355 F,

Supp. 290, 298 (E.D. Pa. 1973) (“We are not required to stretch our imagination to manufacture allegations to

supplement the complaint ....”); Cassell v. Cty. of Montgomery, 2017 WL 2672653, at *3 (E.D Pa. Jun. 20, 2017) (“pro se

litigants must nevertheless adhere to basic pleading requirements”); Case ». State Farm Mut. Auto. Ins. Co., 294 F.2d 676,

678 (5th Cir. 1961)(“[T]here is no duty [on the part] of the trial court or appellate court to create a claim which appellant

has not spelled out in his pleading.”’).

May 18, 2018, and alleged sexually harassing comments Anglikowski made to Colon after the

incident.

According to the Amended Complaint, on May 18, 2018, Colon was “singled out by COI

Anglikowski while in a re-routed inmate movement.” Id., J 4(A). Anglikowski told Colon to

“assume the position, which refers in common prison lingo (vernacular) to empty all pocket[s] and

spread arms and legs in preparation for a body search.” Id. {| 4(C). Anglikowski then commenced a

body search on Colon that “became abusive and finally intrusive as he stopped patting me down and

then statted rubbing me.” Id., | 4(C)-(D). Specifically, Anglikowski “placed his fingers and thumbs

of both hand{[s] within the area of my gluteus maximus muscles (cheeks) on my posterior (buttoks)

(sic) in an unprofessional manner.” Id., | 4(E). Upon returning to his housing unit, Colon reported

the incident on the Prison Rape Elimination Act (PREA) hotline. After Colon submitted his PREA

teport, Anglikowski began to verbally harass Colon with comments such as “can’t we just get

along,” “lookin’ good,” “I’m gonna get some of that,” and “hey baby boy.” Id, {6 (A)-(D).

On July 12, 2018, while Colon was in line for medication, Anglikowski again singled him out

for questioning. Id. □□ □□ Anglikowski attempted to provoke an argument about Colon’s work

schedule, and then terminated the conversation, telling Colon to “drive safe sexy.” Id., ff] 10, 15.

Colon also reported this incident on the PREA hotline and sent a letter to the “BCI/PREA

coordinator.” Id., 4 16.

On July 25, 2018, after meeting with counselors and the institution’s employment officer,

Colon met with Lt. Barner and Ms. Cheek. Id., § 29. Colon was asked to “sign off’ on his

previously filed grievances “with the condition that CO Anglikowski is moved off his post.” Id.

Later that day and despite the separation agreement, Colon encountered Anglikowski in the west

yard of the prison but did not enter the west yard “out of fear and anxiety.” Id. § 30. Colon

encountered Anglikowski again in the prison yard on August 18, 2018. Id, 435. While reporting

for work on September 23, 2018, Colon encountered Anglikowski, who “continued to stare at and

attempted to provoke a response” from Colon. Id, 37. Colon did not report to work and instead

returned to his housing unit “out of fear.” Id.

On October 24, 2018, Colon met with Defendant Bashor, the “appointed PREA compliance

[manager],” about CO Anglikowski and the ongoing sexual harassment and retaliation Colon was

experiencing. Id., § 43. Colon contends Bashor did nothing. Id., {| 48-55. Colon then contends he

retaliated against by being put in a “more restrictive housing condition” before being transferred

to another institution. Id, { 68.

Defendant Nagy evaluated Colon upon his arrived at SCI-Fayette in April of 2019. Id., □□□

69, 71. Nagy removed Colon’s “low security status,” “raised it ... toa level 4,” “removed [Colon’s]

work privilege,” and “implaced (sic) a H-code without a proper not accurate evaluation.” Id, {| 69.

The Amended Complaint states that Defendants Erickson and Knepper agreed with these changes.

Id.,474. Colon notified Defendant Hawkenberry, the PREA compliance manager at SCI -Fayette,

of these changes to his status on April 30, 2019. Id, □□ 80. Colon claims Hawkinberry failed to

investigate the “sexually related motivation for my custody level increase.” Id., 4] 83. The Amended

Complaint also states that Defendant Capozza, SCI-Fayette’s Superintendent, failed to “rectify or

investigate his subordinate’s behavior.” Id., {| 84.

B. The Claims Against Defendant Anglikowski

Colon appeats to assert two claims against Corrections Officer Anglikowski. First, Colon

alleges that Anglikowski sexually assaulted him during the May 18, 2018 body search and thereafter

subjected him to comments that constituted sexual harassment in violation of his rights under the

Eighth Amendment. See ECF No. 38, 4(E). Second, the Amended Complaint appears to allege

that Colon retaliated against him for filing of a PREA complaint in violation of his First

Amendment rights. See ECF No. 38, §[6.

1. The Amended Complaint Fails to State an Eighth Amendment Sexual

Assault/Harassment Claim Against Anglikowski.

The sexual abuse of an inmate by prison officials violates the Eighth Amendment’s

prohibition against cruel and unusual punishment. Ricks ». Shover, 891 F.3d 468 (3d Cir. 2018).

Colon alleges that Defendant Anglikowski sexually assaulted him during the May 18, 2018 body

seatch by inappropriately touching his buttocks. ECF No. 38, 4. Colon also alleges that

Anglikowski later made several statements to him that constituted ongoing sexual harassment.

These statements included “Cant’ we just get along?,” “looking good,” “I’m gonna get some of

that,” and “hey baby boy.” ECF No. 38, 4] 6. On July 26, 2018, more than two months after the

body search, Anglikowski also told him to “drive safe sexy.” Id.,4 15. In moving for dismissal,

Anglikowski argues that neither the physical contact nor the verbal comments alleged by Colon is

setious enough to implicate the Eighth Amendment. See ECF No. 42, p. 7.

In evaluating whether conduct rises to the level of an Eighth Amendment violation, the

Coutt of Appeals for the Third Circuit adopted an analysis that focuses on both subjective and

objective components. Ricks, 891 F.3d. at 475. To be actionable, the Court explained, “the incident

must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must

have a culpable state of mind.” Id. at 475. Under this analysis, even “a single incident, if sufficiently

setious or severe, can run afoul of the Eighth Amendment as sutely as can multiple, less egregious

incidents.” Id. at 477. Examples of conduct sufficient to satisfy the first component of the analysis

include “sexualized fondling, coerced sexual activity, combinations of ongoing harassment and

abuse, and exchanges of sexual activity for special treatment or to avoid discipline.” Id. at 478. At

the same time, the Supreme Court has warned that “not... every malevolent touch by a prison

guard gives tise to a federal action.” Hudson v. McMilhan, 503 U.S. 1, 9 (1992). “Rather, in contrast

to common tort law, the Eighth Amendment shields inmates from only those actions ‘repugnant to

the conscience of mankind.” Id, at 475-476 (quoting Hudson, 503 U.S. at 10). “The objective

element ‘is therefore contextual and responsive to ‘contemporary standards of decency.” Rucks, 891

F.3d at 476 (citations omitted). “And ‘conditions that cannot be said to be cruel and unusual under

contemporary standards are not unconstitutional.” Id. (citing Rhodes v. Chapman, 452 U.S. 337, 347

(1981)).

Colon’s allegations fall short of satisfying the objective standard of the analysis. Colon

acknowledges that Anglikowski’s touching occurred during a routine body search that “commenced

... aS pet normal policy standards, starting with arms, chest, back and sides.” ECF No. 38., 1 4).

Caselaw confirms that Anglikowski’s actions—placing his fingers and thumbs “within the area” of

Colon’s buttocks—during a body search are not severe enough to support an Eighth Amendment

claim. In McIntyre v. Kellinger, 2018 WL 3429964, at *1 (3d Cir. 2018), the Court of Appeals for the

Third Circuit held that allegations that a guard dragged his hands down an inmate’s buttocks,

gtipped his buttocks, patted the inmate’s thighs, and “squeezed [his] ass as if [the inmate] were a

woman” during a pat-down search failed to state an Eighth Amendment claim. Similarly, in Sarvey v.

Wetzel, 2019 WL 235322, at *13 (W.D. Pa. Jan. 16, 2019), this Court held that a corrections officer’s

sttiking of an inmate’s buttocks with a ruler was not sevete enough to support a cognizable Eighth

Amendment claim.? Colon’s alleged placing of his fingers and thumbs “within the area” of his

3 See also Ricks, 891 F.3d at 479 (suggesting that an “isolated, momentary” incident in which guard “rubbed his erect

penis against [plaintiff's] buttocks through both men’s clothing” was not sufficiently severe); Hughes v. Smith, 237 Fed.

Appx. 756, 759 (3d Cir. 2007) (no Eighth Amendment violation where correctional officer allegedly touched the

inmate’s testicles through his clothing during a single pat-down frisk); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)

(allegations that a female correction officer squeezed plaintiffs penis, said “[Y]ou know [you're] a sexy black devil, I like

you,” bumped into plaintiff with her breasts, and pinned him against the wall “with her whole body vagina against penis”

were not sufficiently serious to amount to an Eighth Amendment violation); Watson v. Wingard, 2018 WL 2108316 (W.D.

Pa. Jan. 31, 2018) (allegations that defendant gave plaintiff an “upper cut” to the groin with his forearm, “groped and

massaged [his] penis,” and examined plaintiff's “butt ... like a doctor” did not amount to sexual abuse); Jackson v. Madery,

158 Fed. Appx. 656, 661 (6th Cir. 2005) (holding that the plaintiff's allegations that a guard grabbed and rubbed his

buttocks in a degrading manner during a shakedown in the food area was insufficient to establish an Eighth Amendment

violation); Pantusco v. Sorrell, 2011 WL 2148392, at *7-8 (D.N,J. May 31, 2011) (defendant did not violate Eighth

Amendment by groping plaintiff's genitals on a single occasion during a routine pat-search); Harris ». Zappan, 1999 WL

360203 (B.D. Pa. May 28, 1999) (allegations of one instance of sexually explicit comments combined with fondling and

rubbing on thighs and breasts not sufficiently serious for an Eighth Amendment violation); Jones v. Cukinary Manager I, 30

F. Supp.2d 491, 497 (E.D. Pa. 1998) (a single incident alleging that a guard pinned plaintiff and ground his pelvis against

plaintiff's buttocks while threatening sex not sufficiently serious).

buttocks during a routine body search similarly is not “objectively, sufficiently intolerable and cruel,

capable of causing harm,” such that it satisfies the objective element of an Eighth Amendment

claim.

As this Court has previously noted, “the standard for sexual assault is not zero tolerance for

all minor sexualized touching in prison, such that all such claims are objectively setious to a

constitutional degree.” Armstrong v. Diraimo, 2018 WL 6788524, at *4 (W.D. Pa. Dec. 28. 2018)

(citing Ricks, 891 F.3d at 477). This holding in no way condones or trivializes Anglikowsk1’s alleged

behavior. But such behavior does not amount to a cognizable constitutional violation. See Sarvey,

2019 WL 235322, at *13

Likewise, Anglikowski’s alleged comments to Colon after the May 18, 2018 body seatch also

fail to support a constitutional claim. “Verbal harassment, including lewd comments, sexual

propositioning, and the like, is not sufficient to satisfy the objective element of an Eighth

Amendment sexual harassment claim.” McCain v. Wilhams, 2018 WL 1211507, at *3 (W.D. Pa. Mar.

8, 2018) (citing Manon v. Garrison, 2012 WL 3542328 (M.D. Pa. Aug. 15, 2012)). Anglikowski’s

alleged comments, while distasteful, do not amount to a constitutional violation. See, eg., Ledcke v.

Pennsylvania Dept. of Corr., 655 Fed. Appx. 886, 888-89 (3d Cir. 2016) (detainee’s “claims of verbal

harassment fail{ed] as a matter of law”). Therefore, Colon’s sexual assault and harassment claim

against Anglikowski fails as a matter of law.

3. The Amended Complaint Fails to State a First Amendment Retaliation Claim

Against Anglikowsku.

Allegations in the Amended Complaint can be interpreted as an attempt to bring a claim of

First Amendment retaliation against Anglikowski. Construed as such, the claim fails as a matter of

law.

The Amended Complaint states that after Colon reported Anglikowski’s actions on the

PREA hotline, Anglikowski arrived at Colon’s work assignment and told “CO Doxy” that Colon

“keeps telling on me for f***ing with him,” and that “he shouldn’t be working the block because he

works in the education building.” ECF No. 38, 19(A)-(C). The Amended Complaint identifies

Anglikowski’s showing up at Colon’s work assignment and at other places in the institution,

including the prison yard, as acts of retaliation, and avers that these acts violated DOC policy

designed to protect inmates who file PREA complaints.’ Id., ] 22. The Amended Complaint alleges

no other incidents of retaliation by Anglikowski.

To establish a First Amendment retaliation claim, “an inmate must demonstrate: (1) that he

engaged in constitutionally protected conduct; (2) that an adverse action was taken against him by a

prison official; and (3) that there is a causal connection between the exercise of his constitutional

rights and the adverse action.” Mearin v. Swartz, 951 F. Supp.2d 776, 786 (W.D. Pa. 2013) (citing

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). The inmate may show retaliatory motive by either

“(1) an unusually suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, ot (2) a pattern of antagonism coupled with timing that suggests a causal link.”

Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). If retaliation is established, the burden then shifts

to the defendant prison officials to “establish that ‘they would have made the same decision absent

the protected conduct for reasons reasonably telated to a legitimate penological interest.” Id. (citing

Rauser v. Horn, 241 F.3d 330, 334 3d Cir. 2001)).

4 Colon relies upon 28 CFR. § 115.64(2)(1) as the source of Anglikowski’s obligation not to approach or engage him.

But that regulation does not appear to require a separation, but instead concerns the initial duties of first responders to

an incident of alleged sexual abuse: “Staff first responder duties—Upon learning of an allegation that an inmate was

sexually abused, the first security staff member to respond to the report shall be required to: (1) Separate the alleged

victim and abuser: (2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;

$06, 0.8. James v. LaCroix, 2017 WL 2602598, at *4 (W.D. La. Apr. 17, 2017), report and recommendation adopted, 2017

WL 2588570 (WD. La. June 14, 2017).

10

Although the filing of a PREA complaint is a protected activity, Colon must also allege

facts to support the “adverse action” element of his claim. An “adverse action” is one sufficient to

deter a person of ordinary firmness from exercising his constitutional rights. Mitchell v. Horn, 318

F.3d 523, 530 (3d Cir. 2003); Huertas v. Sobina, 476 Fed. Appx. 981, 984 (3d Cir. 2012). This is an

objective inquiry. Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). Colon alleges that after he filed

his PREA Complaint, Anglikowski “continued to question” him and “attempted to provoke” Colon

by “becoming argumentative over [Colon’s] work schedule,” ECF No. 38, {| 10, made “a specific

inquiry into [Colon’] work schedule,” id, 14, and showed up in locations where Colon was present,

in contravention of “PREA separation orders/policy,” and looked at him from a distance while

smiling. Id., J 30, 32. Colon does not allege that he lost his prison job as a result of filing the

PREA complaint. See, e.g. Baex v. Mooney, 2021 WL 816013, at *3 (W.D. Pa. Feb. 8, 2021), report and

recommendation adopted, 2021 WL 808726 (W.D. Pa. Mar. 3, 2021).

Anglikowski’s alleged actions after the filing of the PREA complaint do not constitute

“adverse actions” as that term is used in the context of a retaliation claim. While a “‘campaign of

harassment which though trivial in detail” may become “substantial in gross” and rise to an adverse

action, that is not what Colon has alleged in his Amended Complaint. See, ¢.g., Yow v. Robertson, 2021

WL 2400792, at *9 (M.D. Pa. June 11, 2021) (citing Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.

2000). At best, the Amended Complaints alleges that Anglikowski verbally teased or harassed

Colon. Such conduct does not constitute an adverse action sufficient to deter a person of ordinary

firmness from exercising his constitutional rights. See, ¢.g., Marten v. Hunt, 479 Fed. Appx. 436, 439

5 Colon does plead that he met with a prison employment counselor “in hopes of finding a solution that may help avoid

contact with Co. Anglikowski, including quitting his job and self-isolating in his assigned housing.” ECF No. 38, {] 27.

He also states that he “broke down in tears for fear of Anglikowski’s manipulation and possible falsification of facts that

could lead to his dismissal from work.” Id., ] 28. Nevertheless, Colon does not allege that Anglikowski caused him to

lose his work assignment. Further, although Colon alleges that he was placed in “a more restrictive housing condition in

the RHU that preceded a transfer to another SCI facility,” id., 168, he in no way attributes this placement to

Anglikowski.

11

(3d Cir. 2012) (affirming dismissal of First Amendment retaliation claim because verbal threats are

not sufficient to constitute an adverse action).

Thus, the Amended Complaint fails to allege facts to support a legally sufficient retaliation

claim against Anglikowski.

B. The Claims Against Remaining Defendants

1. The Amended Complaint Fails to State an Eighth Amendment Claim

Against DOC Secretary Wetzel.

The Defendants interpret Colon’s Amended Complaint as asserting an Eighth Amendment

deliberate indifference claim against Secretary Wetzel. This understanding likely comes from

Colon’s allegation that “Plaintiff fully and continually notified Secretary of Corrections John Wetzel

of the ongoing mismanagement of his subordinate staff (recorded) yet he too failed to protect my □□

Amendment and Fifth Amendment rights to due process and freedom from cruel and unusual

punisment (sic).” ECF No. 38, 486. The Amended Complaint also pleads that Wetzel violated the

Eighth Amendment by failing “not only to respond in kind to my many notifications to him (all

stamped); nor to remedy the problem, but to condone the ineffective response to my claims by his

deliberate indifference to the retaliation I suffered that led to a more restrictive housing condition in

the RHU that preceded a transfer to another SCI facility.” Id., 68. Finally, regarding Wetzel, the

Amended Complaint alleges:

Plaintiff avers that it is the statewide PREA coordinatot’s

interpretation of this federal mandate that falls short and fails to hold

accountable to the highest “best practice” standards, deserving of the

citizens of this Commonwealth. Further the lack of enforcement of

this “best practice” by appointed PREA compliance managers of the

Pennsylvania Dept. of Correction facilities allows this state to fall

behind in the quality of its corrections programs and is a direct

reflection on the efforts of the Secretary of Corrections, Mr. John

Wetzel.

Id, 968. The foregoing are the Amended Complaint’s only allegations against Defendant Wetzel.

12

Because Colon has failed to allege facts to support a constitutional violation on the part of

Anglikowski, any claim of supervisory liability or “failure to protect” claim against Wetzel based on

Anglikowski’s conduct likewise fails as a matter of law. See Martin v. City of Reading, 118 F. Supp. 3d

751, 773 (B.D. Pa. 2015) (“a plaintiff may prevail on a supervisory liability claim only if the plaintiff

can establish a causal link between the allegedly defective supervision and the constitutional violation”)

(emphasis supplied).

Further, even if Colon had alleged facts to support a constitutional claim against

Anglikowski, his claim against Wetzel would still fail. Constitutional tort lability is personal in

natute and can only follow personal involvement in the alleged wrongful conduct. Robinson v. City of

Pittsburgh, 120 F.3d 1286 (3d Cir. 1997); abrogated in part on other grounds by Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 3d

Cir.1988) (“A defendant in a civil rights action must have personal involvement in the alleged

wrongs” in order to be liable)). When proceeding under § 1983, as Colon is doing here, a plaintiff

cannot prevail unless he can demonstrate that the defendant played an “affirmative part” in the

complained-of misconduct. Igbal, 556 U.S. at 677 (“Absent vicarious liability, each Government

official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Okver v.

Beard, 358 Fed. Appx. 297, 300 (3d Cir. 2009). In the absence of specific allegations that a defendant

played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, eg,

Mearin v. Swartz, 951 F. Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule

12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain

defendants had played an affirmative part in the alleged Eighth Amendment violation).

These principles apply to supervisory officials such as Secretary Wetzel. See, e.g, Rode, 845

F.2d at 1207 (noting that liability for supervisory officials must still be based on “personal

involvement in the alleged wrongs”); Igbal, 556 U.S. at 676 (“Because vicatious liability is

13

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.”). 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 Gd Cir.

1986); Brown v. Grabowski, 922 F.2d 1097, 1120 3d Cir. 1990). Rather, a supetvisot-defendant may

only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with

deliberate indifference to the consequences, established and maintained a policy, practice or custom

which directly caused [the] constitutional harm; or (2) participated in violating the plaintiffs rights,

directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the

subordinate’s unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty, Juvenile Det. Cir., 372 F.3d

572, 586 (3d Cir. 2004).

Here, Colon’s claim against Secretary Wetzel is based solely on allegations that certain

actions (or inactions) of PREA compliance managers are a “direct reflection” on the Secretary and

Secretary Wetzel failed to respond to Colon’s letters; and a boilerplate assertion that Wetzel “failed

to protect my 8 Amendment and 5" Amendment rights.” ECF No. 38, {[f] 62, 68, and 86. None of

these allegations is sufficient to support an Eighth Amendment deliberate indifference claim against

Wetzel. First, Colon’s allegation that a subordinate’s actions are a “direct reflection” on the

Secretary, by definition, is not an allegation of personal involvement but rather a consequence of

another’s actions. Second, the allegation that Wetzel failed to respond to Colon’s correspondence

represents a failure to react to a subsequent complaint about misconduct, not personal involvement

in the misconduct itself. See, ¢,g., Alexander v. Fritch, 2010 WL 1257709, *15-16 (W.D. Pa. Mar. 26,

2010). Finally, Colon’s vague and conclusory averment that Defendant Wetzel violated his

constitutional rights does not sustain a claim because it is unsupported by factual allegations. See,

14

Iqbal, 556 U.S. at 676; Robinson, 120 F.3d at 1293-95, Colon’s Amended Complaint includes no

factual allegations suggesting that Secretary Wetzel’s participated in any constitutional violation or

his adoption of a policy or custom that was the moving force behind any constitutional violation. In

the absence of such allegations, Colon’s Amended Complaint fails to state a claim under § 1983

against Secretary Wetzel. See, eg. Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15,

2018) (allegation that supervisory defendant was “made awate of several issues of the plaintiff's and

.. failed to help him” is insufficient to state a claim for relief); Anson v. United States, 2020 WL

2425780, at *4 (W.D. Pa. Apr. 6, 2020) (dismissing supervisory claims against federal prison warden

for lack of personal involvement). Accordingly, Colon’s claims against Wetzel will be dismissed.

2. The Amended Complaint Fails to State a Claim Against Defendants

Hawkinberry and Capozza.

The Amended Complaint’s factual allegations concerning Defendants Hawkinberry and

Capozza are similarly sparce. For example, Colon claims that he notified Hawkinberry “of the

undeserved ISP status placed by staff, its removal, the H-Code reason change as she is appointed the

PREA Compliance mgt at SCI-Fayette on 4-30-19.” ECF No. 38, { 80. He claims she violated his

tights under the Eighth Amendment by failing to investigate the “sexually related motivation for my

custody level increase.” Id., J] 83. In other words, Colon claims that Hawkinberry violated his

Eighth Amendment rights by failing to investigate Colon’s ISP status, which was imposed by other

ptisoner staff members, not Hawkinberry. Construing this claim as one premised on Hawkinberty’s

supervisory role over other prison staff members, it must be dismissed. See, ¢.g., Pearson v. Sweeney,

2021 WL 615072, *2 (D.N,J. Feb. 16, 2021) (construing failure to investigate claim as premised on

defendant’s supervisory role).

As noted, supervisory liability under 42 U.S.C. § 1983 must be supported by factual

allegations that the supervisor “established and maintained a policy, practice or custom which

directly caused [the] constitutional harm,” or the supervisor “participated in violating plaintiff's

15

rights, directed others to violate them, or, as the person|s] in charge, had knowledge of and

acquiesced in [their] subordinates’ violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 0.5 3d

Cir. 2010);.A.M. ex rel J.MLK. v. Luzerne Cnty. Juvenile Det. Ctr, 372 F.3d 572, 586 3d Cir. 2004)

(second alteration in original). Here, Colon has not alleged the existence of a policy or custom

maintained by Hawkinberry that caused him to suffer a constitutional injury. Colon has not even

alleged facts to support that Hawkinberry participated or acquiesced in the misclassification of his

custody level. His Amended Complaint fails to state a constitutional claim against her.

The same is true for Colon’s allegations against Defendant Capozza. The Amended

Complaint alleges only that “after (stamped) notification, Warden Capozza failed to rectify or even

investigate his subordinate’s behavior.” ECF No. 38, {| 84. Here, Colon explicitly bases Capozza’s

liability on his role as a supervisor and without any allegations of his direct involvement in actionable

conduct. “An allegation of a failure to investigate, without another recognizable constitutional right,

is not sufficient to sustain a section 1983 claim.” Graw v. Fantasky, 68 Fed. Appx. 378, 383 (3d Cir.

2003) (quotations omitted). Accordingly, Colon cannot state a claim against Capozza based on his

failure to investigate after Colon complained. See, ¢.g., Gilmore v. Lamaz, 2020 WL 703655, *6 (E.D.

Pa. Feb. 11, 2020).

3. The Amended Complaint Fails to State a Claim Against Defendant Nagy

According to the Amended Complaint, Defendant Nagy is an intake counselor for B-Block

at SCI-Fayette. ECF No. 38, { 69. Colon alleges that Nagy acted with deliberate indifference when

she removed his “low celling status” and “removed my work privilege and implaced (sic) an

H-code” without first conducting a “proper investigation.” Id. These allegations fail to state a claim

against Nagy.

First, as to Colon’s claim that Nagy gave him a less than desirable housing code, this Court

recently explained:

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It is well-established that there is no constitutional right for an inmate

to be celled in a particular place, or under particular circumstances.

“(Bly virtue of theit convictions, inmates must expect significant

restrictions, inherent in prison life, on rights and privileges ftee

citizens take for granted.” McKune v. Lile, 536 U.S. 24, 39-40 (2002);

Podhorn v. Grondolsky, 350 Fed. Appx. 618, 620 (3d Cir. 2009)

(“[P]risoners have no constitutional right to be assigned to a

patticular institution, facility or rehabilitative program.”’). Rather,

“the prison has a penological interest in the housing placement of its

inmates and ‘i]t is well settled that the decision where to house

inmates is at the core of prison administrators’ expertise.’ ’”)

Thomaston v. Meyer, 519 Fed. Appx. 118, 119 (d Cir. 2013) (quoting

McKune, 536 U.S. at 39).

Washington v. Barnhart, et al, 2021 WL 2342924, at *12 (W.D. Pa. May 14, 2021), report and

recommendation adopted sub nom. Washington v. Barnhart, 2021 WL 2339281 (WD. Pa. June 8, 2021).°

Nor does Colon possess any constitutional right to a specific education or work program

while incarcerated. See, e.g, Garcia v. Kimmel, 2009 WL 2950628, *12 (W.D. Pa. Sept. 9, 2009) (citing

Savage v. Kerestes, 2009 WL 1585807, *2 (M.D. Pa. June 3, 2009) (“The right to earn wages while

incarcerated is a privilege, not a constitutionally protected right.”). The same is true for Nagy’s

placing a restrictive “H-Code” on Colon. See Padilla v. Beard, et al., 2006 WL 1410079, *7 (M.D. Pa.

May 18, 2006) (dismissing claim that placement of an “H-Code” violated plaintiffs constitutional

tights because there is no constitutional right to a prison job). Thus, Colon’s claim that Nagy

violated his constitutional rights by changing his custody level and assigning him an “H-Code” must

be dismissed.

Finally, the Amended Complaint includes no allegation that Nagy’s removal of Colon’s “low

celling status,” loss of his “work privilege,” or placement on “H-code” status was retaliatory based

on the filing of his PREA complaint or any protected conduct. Even if such a claim had been

raised, it would fail because the facts alleged do not support a causal connection between any protect

6 Moreover, Pennsylvania law clearly states that an inmate does not have a right to be housed in a particular facility. See

37 Pa. Code Ann. § 93.11(a).

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conduct and Nagy’s actions. No unusually suggestive temporal proximity between protected activity

and Nagy’s actions ts alleged; no pattern of antagonism coupled with timing exists to suggests a

causal link. See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).

4, The Amended Complaint Fails to State a Claim Against Defendants Riddle,

Knepper, and Erickson.

Like the allegations against Nagy, the Amended Complaint alleges that Defendant Riddle

(Nagy’s supervisory on B-Block) approved “trumped up accusations” that resulted in the change in

Colon’s ISP status. ECF No. 38, 972. Colon further alleges that, when he submitted a “Request to

Staff,” asking Riddle about these changes, Riddle responded that the change in his status was

apptoved by “a general consensus,” which included the views of Defendants Erickson and Knepper.

Id., 474. As with Nagy, the Amended Complaint alleges that Riddle, Erickson, and Knepper violated

his constitutional rights by changing his custody level and assigning him an “H-Code,” which

rendered him ineligible for a prison job. Id, $77. And, as against Nagy, the allegations also fail to

state an Eighth Amendment deliberate indifference claim against Riddle, Erickson, and Knepper.

As noted above, Colon possesses no constitutional right to a specific education or work program

while incarcerated. See, e.g, Garcia, 2009 WL 2950628, at *12 (citation omitted). The same holds

true for these Defendants’ actions relating to the placement of a restrictive “H-Code” on Colon. See

Padilla, 2006 WL 1410079, at *7 (dismissing claim that placement of an “H-Code” violated plaintiffs

constitutional rights because there is no constitutional right to a prison job). Therefore, the Court

will also dismiss these claims.

5. The Amended Complaint Fails to State a Claim Against Defendant Clark.

Colon’s claim against Defendant Clark, the Superintendent at SCI-Albion, is based on

allegations that he

failed to insure that the facility of Albion SCI had a

properly trained candidate to assume the

tole/responsibility of PREA Compliance Mgr. and

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also failed to hold that appointed (sic) to the highest

“best practice” standards afforded the inmates,

employees, contractors, and volunteers by the Pa.

State coordination mandate of meeting the

NATIONAL STANDARD set by the FEDERAL

ACT.

ECF No. 38, □ 64. He faults Clark for “fail[ing] to hold those under his supervision to adhere to the

higher ‘best practice’ standards, thus creating a culture of deliberate indifference.” Id, 67. These

allegations represent yet another factually unsupported supervisory liability claim.

The Amended Complaint does not allege any facts to support an inference that Warden

Clark was evet made aware of Colon’s interaction with Anglikowski or had contemporaneous

knowledge of his alleged misconduct. See Webrit v. Allegheny Cty., 2017 WL 1233619, at *8 (W.D. Pa.

Apt. 4, 2017) (citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). The Amended Complaint

does not support that Clark established a policy, custom, or practice that caused constitutional harm

to Colon or that Clark petsonally participated in any constitutional violation. See Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 316-19 (3d Cir. 2017), overturned on other grounds, Taylor v. Barkes, 135 S. Ct.

2042 (2015). Given these deficiencies, and the absence of any viable constitutional claim against any

subordinate of Superintendent Clark, the claim against him must be dismissed.

6. The Amended Complaint Fails to State a Claim Against Defendants Bashor

and Radziewicz.

The Amended Complaint lists several ways that Defendant Bashor “failed to fulfill her

responsibilities.” ECF No. 38, | 48. Specifically, Colon claims Bashor failed to prevent

Anglikowski’s “ongoing sexual harassment and retaliation that followed.” Id. Further, Bashot ts

alleged not to have informed the Deputy Superintendent, who had an obligation to meet with

Anglikowski; failed to “continually monitor” Anglikowski, ignored regulations that required Bashor

to monitor him for ninety-days; failed to order mental health services for Colon; failed to ensure the

proper collection of evidence; and failed to recognize that Colon’s PREA complaint “contributed to

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this abuse/hatassment by enabling the same.” See {J 49-54. Finally, the Amended Complaint

alleges that Bashor failed “to perform as designated PREA Compliance Mgr.” by accepting the

“findings and assumptions” that resulted from the Pennsylvania State Police’s determination that

there was a “lack of evidence” to support his PREA complaint. Id., 55. All of the foregoing

allegations are based on Bashor’s failure to respond properly to Anglikowski’s alleged misconduct.

Because the Court has determined that Anglikowski’s alleged conduct does not rise to the level of a

constitutional violation, Colon’s claims against Bashor based her failure to supervise or train

Anglikowski or failure to protect Colon also fail.

The claims against State PREA coordinator David Radziewicz will also dismissed. Briefly,

Colon alleges that Radziewicz failed to “fulfill his responsibility to investigate the less than best

ptactice behavior of both SCI Albion and SCI Fayette compliance managers Lt. Bashor and Debra

Hawkenberry.” ECF No. 38, § 85. As explained, liability cannot be imposed under § 1983 by

respondeat superior. Here, however, Colon faults Radziewicz for failing to investigate the actions of

his subordinates. In essence, this a “failure to supervise” claim.

“Failure to’ claims” such as “failure to train, failure to discipline, or ... failure to supervise,

ate considered to be a subcategory of policy ot practice liability.” Barkes ». First Correctional Medical,

766 F.3d 307, 317 (d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822, 135 S.

Ct. 2042, 192 L.Ed.2d 78 (2015). As described in Barkes, supra., the existence of a policy or practice

is insufficient to plead supervisory liability absent allegations that the official was aware that the

policy or practice created an unreasonable risk of a constitutional injury, and the official was

indifferent to that tisk. The Amended Complaint makes no such allegations. And further, Colon

does not identify a particular policy beyond “best practices” that Radziewicz failed to follow. To the

extend this claim implicates the DOC’s PREA policies, Colon does not allege that Radziewicz ever

reviewed Colon’s PREA complaint. See, ¢.2., Skelton v. New Jersey Dep’t of Corr., 2020 WL 6376652, at

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*8 (D.NJ. Oct. 30, 2020). Instead, all that he has alleged is that this Defendant failed to investigate

what Colon believes is the subpar work performance of Defendants Bashor and Hawkenberry,

including their failure to follow “best practices,” which he fails to delineate. Thus, Colon has failed

to plead a claim of supervisory liability against Radziewicz.

7. The Amended Complaint Fails to State a Conspiracy Claim Against Any

Defendant.

Paragtaph 88 of the Amended Complaint appears to raise a claim of conspiracy against all

Defendants (“Anglikowski, et al. acted in accord with one objective . ..”). ECF No. 38, J] 88. Colon

contends that the Defendants conspired to “maintain this plaintiffs condition and status.” Id. This

claim will be dismissed.

“To demonstrate the existence of a conspitacy under § 1983, ‘a plaintiff must show that two

ot more conspirators reached an agreement to deprive him or her of a constitutional right under

color of law.”” LeBlanc v. Stedman, 483 Fed. Appx. 666, 670 (3d Cit.2012) (quoting Parkway Garage,

Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993), abrogated on other grounds by United Artists Theatre

Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003)). “It is not enough that the end result of

the parties’ independent conduct caused the plaintiff harm or even that the alleged perpetrators of

the harm acted in conscious parallelism.” Perez v. Gamez, 2013 WL 6073877, at *9 (M.D. Pa. Nov.18,

2013). Rather, Colon must show that the Defendants acted in concert with the specific intent to

violate his rights. Davis v. Fox, 2013 WL 5656125, at *5 (M.D. Pa. Oct.15, 2013). Further, a

“conspitacy claim only atises when there has been an actual deprivation of a right.” Perano v. Tup. of

Tilden, 423 Fed. Appx. 234, 239 (3d Cir. 2011).

Here, Colon has not alleged facts to support the “agreement” element of a conspiracy claim.

“To properly plead such an agreement, ‘a bare assertion of conspiracy will not suffice.” Great

Western Mining ¢» Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Be//

Allantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)). Colon offers

21

only vague allegations the Defendants acted “in accord” to deprive him of his rights. Because Colon

has not alleged facts to support a reasonable inference that the Defendants agreed to deprive him of

his constitutional rights, his conspiracy claim must be dismissed.

IV. Further Amendment.

Having determined that the Amended Complaint fails to state a claim against any defendant,

the Court must now determine whether further amendment of that pleading would be futile. See

Hockenberry v. SCI Cambridge Springs/ Pennsylvania Dep't of Corr., 2019 WL 2270345, at *3 (W.D. Pa.

May 28, 2019) (stating “[t]he U.S. Court of Appeals for Third Circuit has instructed that if a civil

rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a

curative amendment, unless an amendment would be inequitable or futile”). At the outset, the

Court notes that Colon has already been given an opportunity to amend his pleading following the

granting of the Defendants’ Motion for A More Definite Statement. ECF No. 32. See also Reed v.

Chambersburg Area Sch. Dist. Found., 2014 WL 1028405, at *15 (M.D. Pa. Mat. 17, 2014) (where a

plaintiff has already once been granted leave to amend, and has been given ample time to assemble

the first amended complaint, but has again failed to sufficiently state a claim, a district court need

not grant Plaintiff subsequent leave to amend). The Court further notes that its Opinion and Order

granting Defendants’ Motion for A More Definite Statement pointed out the deficiencies in Colon’s

original Complaint and gave him instructions regarding what he needed to do to cute those

deficiencies. ECF No. 32. Those instructions included the following:

Plaintiff must provide a description of how each defendant violated

his rights. Plaintiff must show personal involvement in the alleged

wrongdoing by each defendant. See Rode v. Dellarciprete, 845 F.2d

1195, 1207 Gd Cir. 1988) (“A defendant in a civil rights action must

have personal involvement in the alleged wrongs”). Wherever

possible, this description should include references to relevant dates,

times, and locations. It should explain to the Court what happened

by specifically describing each defendant’s behavior or action and

how that behavior ot action — ot lack of action — resulted in the

alleged violations. ... Plaintiff should be specific about the particulars

22

of the event, each defendant’s misconduct, and how such misconduct

resulted in a violation or denial of the civil nght at issue.

Td.

Based on the nature of the deficiencies in the Amended Complaint, the Court finds that any

further attempt to amend as to any defendant would be futile. In his original Complaint and his

Amended Complaint, Colon described in detail the conduct upon which he based his claims against

Anglikowski. As discussed above, caselaw makes clear that this alleged conduct does not constitute

a violation of the Eighth Amendment or the First Amendment. Further amendment cannot alter

this outcome. To the extent Colon is pursuing theories of supervisory liability and a “failure to

protect” claim against the other defendants, the absence of a viable constitutional claim against

Anglikowski rendets amendment as to the other defendants futile. Further, the roles of the other

defendants, as identified by Colon, do not support a viable claim against them. Finally, the facts

alleged in the Amended Complaint establish the absence of any reasonable basis for a retaliation or

any other claim against any of the defendants. Therefore, amendment as to these claims is also

futile. Accordingly, this action will be dismissed, with prejudice.

A separate Order follows this Memorandum.

Entered this 8° day of July, 2021. Ka A Z 4-7

Richard A. Lanzillo

United States Magistrate Judge

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