IVY v. WETZAL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GLAVIN IVY, )

)

Plaintiff ) Case No. 1:20-cv-00265-RAL

)

v. )

)

JOHN WETZAL, et al. ) THE HON. RICHARD A. LANZILLO

) UNITED STATES MAGISTRATE JUDGE

Defendants )

) MEMORANDUM OPINION

) ON DEFENDANTS’ MOTION

) TO DISMISS

) [ECF No. 13]

I. Introduction

Plaintiff Glavin Ivy (Ivy), an inmate incarcerated at the State Correctional Institution at

Forest (SCI-Forest), commenced this action against nine employees of the Pennsylvania Department

of Corrections (DOC). His six-count Complaint asserts claims pursuant to 42 U.S.C. § 1983 and

pendent state law claims.1 ECF No. 1. Count I asserts a First Amendment retaliation claim against

all Defendants. Id., ¶ 88. Count II asserts a First Amendment freedom of association claim against

all Defendants. Id., ¶ 89. Count III asserts a state law claim of conspiracy against all Defendants.

Id., ¶ 90. Count IV asserts a claim for invasion of privacy under the First, Fourth, and Fourteenth

Amendments against Defendant Librarian Winters and Lauren Blake. Id., ¶ 91. Count V asserts a

claim for invasion of privacy under state law against Winters and Blake. Id., ¶ 92. Count VI asserts

a claim for violation of his right to due process under the Fourteenth Amendment against all

Defendants. Id., ¶ 93. He has sued all Defendants in both their official and individual capacities.

1 Ivy initiated this action by filing a motion to proceed in forma pauperis. ECF No. 1. The Court granted this motion and

docketed his complaint. ECF Nos. 4-5.

ECF No. 5, ¶ 9. The Defendants have moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss all of

Ivy’s claims except his retaliation claims. ECF Nos. 13, 14. Ivy has filed a brief in opposition to the

motion. ECF No. 19. For the foregoing reasons, the Defendants’ motion will be GRANTED in

part and DENIED in part. Ivy will be granted leave to file an amended complaint in accordance

with the guidance provided in this Opinion.2

II. Ivy’s Allegations

The Court accepts the following factual allegations in Ivy’s Complaint as true for purposes

of Defendants’ motion to dismiss. See US Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.

2002). Ivy “tirelessly stud[ies] the law and engage[s] in political activism for the purpose of prison

reform and rectification of statewide injustice on behalf of those responsible for carrying out the

law.” ECF No. 5, ¶ 17. He voluntarily assists other prisoners with their legal cases. Id., ¶¶ 19-20.

According to DOC policy, inmates can sign up for one two-hour law library session per week. Id.,

¶ 11. If the inmate has an upcoming deadline, DOC policy allows three two-hour library sessions

per week. Id., ¶ 12. “Library staff” implemented a DOC policy that requires inmates to submit legal

documentation before they received this additional time. Id., ¶ 15. This documentation is

photocopied and preserved. Id. Librarians Winters and Blake had a practice of reading the material

that inmates draft and print in the library at all times relevant to this action. Id., ¶ 14.

Ivy is litigating other cases in this United States District Court and in other courts. Id., ¶ 21.

Ivy received an appellee’s brief in “1274 WDA 2019” on December 18, 2019, and went to the law

library on December 20, 2019 for his scheduled law library time to prepare his reply brief. Id.,

¶¶ 22–24. While there, Librarian Winters requested proof of Ivy’s upcoming deadline to authorize

2 This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343, and it can exercise pendent

jurisdiction over the state law claims under 28 U.S.C. § 1337. The parties have consented to the jurisdiction of the

undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636. See ECF Nos. 17, 18.

giving him additional library time. Id., ¶ 25. Ivy provided the docket sheet for the case and the

appellee’s brief to Winters who, “in conformity with the practice and custom,” photocopied these

documents for library records. Id., ¶¶ 26-27. Winters told Ivy she would have this information and

his upcoming deadline “verified.” Id., ¶ 30. Ivy expected privacy in his legal paperwork, which

Winters showed to inmate Haggerty—an unlicensed inmate law clerk. Id., ¶ 80.

Ivy returned to the law library the next day, as scheduled. Id., ¶ 36. He typed two motions

related to his criminal case. He also typed four pages of a petition for habeas corpus for another

inmate, Ricky Fritchman, who he had been assisting without compensation. Id., ¶¶ 32, 35, 37.

While doing so, Haggerty told him that he had reviewed his legal mail at Winters’ direction to verify

that he had an upcoming deadline. Id., ¶¶ 38, 39. When Ivy printed his documents, which go to a

printer on the librarian’s desk, Winters read them and confiscated the documents relating to

Fritchman. Id., ¶¶ 13, 40. Ivy told Winters that she could not censor what he typed without a

legitimate reason, such as a security issue. Id., ¶ 41. Nevertheless, Winters seized the papers related

to Fritchman and issued him a confiscation slip. Id., ¶¶ 42-43; ECF No. 5-1. Ivy then told her that

he would file a lawsuit about this. Id., ¶ 44. Winters said, “dumb inmates threaten to sue me all the

time.” Id., ¶ 45. Ivy explained how he thought his rights were violated. Id., ¶ 46. As Ivy left the

library, Winters threatened not to schedule him for additional time related to his pending deadline in

“1274 WDA 2019.” Id., ¶ 47.

Ivy was later escorted to the RHU, although he learned afterwards that officials’ usual

practice at the time was to confiscate the other inmate’s legal material without taking further action.

Id., ¶ 45. On December 21, 2019, Ivy was issued misconduct B766832 for “threatening an employee

or their family with bodily harm” (Class I, # 15) and “using abusive, obscene, or inappropriate

language to an employee” (Class I, # 22). Id., ¶ 49; ECF No. 5-2. Two days later, Hearing

Examiner Fiscus dismissed the misconduct without prejudice, writing that he “believe[d] the

misconduct to be in error.” Id., ¶ 52; ECF No. 5-3.

Librarian Winters then reissued the misconduct with a few additional sentences, including

the two original charges and adding possession of contraband because Ivy had another inmate’s legal

paperwork (Class I, # 36). Id., ¶ 53; ECF No. 5-4. Ivy insists that he never threatened Winters with

bodily harm and that she “exaggerated the language” he used and “trumped-up the facts.” Id.,

¶¶ 55-56. During the misconduct hearing conducted by Fiscus, Ivy asked what DOC policy forbids

him working on another inmate’s legal work, but Fiscus did not explain. Id., ¶¶ 59-60. Fiscus found

Ivy guilty of all three charges and sanctioned him to seventy-five days of disciplinary custody in the

RHU. Id., ¶ 61. He wrote that he believed Winter’s report over Ivy’s denials. ECF No. 5-5. He

also wrote that another inmate’s legal work was contraband. Id. Ivy alleged, upon information and

belief, that between the time Fiscus dismissed the first misconduct without prejudice and the

reissued misconduct, Fiscus informed Winters that it would be better to charge Ivy with possession

of contraband. ECF No. 5, ¶ 64. Ivy alleges that Winters and Fiscus retaliated against Ivy because

he expressed “his intent to seek vindication of his constitutional rights in court.” Id., ¶ 81. He

further alleges that all Defendants retaliated against him by issuing the misconduct against him for

“(1) expressing his intent to sue which constituted protected free speech, and (2) for assisting

another inmate with seeking habeas relief by typing a document which also constituted protected

free speech.” Id., ¶ 88.

On appeal, Gustafson, Perry, Adams, and Mongelluzzo of the Program Review Committee

(PRC) upheld the misconduct. ECF No. 5-6. They wrote that DC-ADM 007 Section 2 prohibits an

inmate from possessing the legal work of another. Ivy contends that this provision applies only to

the job duties of inmate law library clerks, which he is not. ECF No. 5, ¶ 74. Ivy also says he had

purchased the paper on which the legal documents were typed, Fritchman never had possession of

the papers before they were confiscated, and they were not put on Fritchman’s property sheet. Id.,

¶ 69.

Ivy seeks compensatory and punitive damages against all Defendants. Id., ¶¶ 94-95. He asks

for declaratory relief that “prisoners cannot be disciplined for, or wholly prevented from, assisting

other inmates in the preparation of legal filings” and a declaration that “an inmate’s efforts in

assisting other inmates in the preparation of legal filings is protected under the Free Speech clause

and/or the Association clause of the 1st Amendment to the U.S. Constitution, not because of its

legal nature, but because it is a form of free speech and/or association like any other.” Id., ¶¶ 96-97.

He also requests an injunction “enjoining the Defendants and their subordinates from (1) requiring

D.O.C. prisoners to surrender legal documentation to D.O.C. employees for the purpose of

inspection, photocopying and preservation, and (2) from punishing prisoners for assisting other

prisoners with their cases.” Id., ¶ 98. He demands a jury trial and costs of his suit. Id., ¶¶ 99–101.

III. Standard of Review

A. 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 is likely to 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, 127 S. Ct. 1955, 167 L. Ed. 2d

929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (3d

ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (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, 127 S. Ct. 1955

(rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 S. Ct.

99, 2 L. Ed. 2d 80 (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 and conclusions. Twombly, 550 U.S. at 555, 127 S. Ct.

1955. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.

Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (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, 127 S. Ct. 1955. 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

reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.

Ct. 1937.

B. Pro Se Litigants

While the foregoing principles apply to all complaints in federal court, pro se complaints,

“however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by

lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972). If the court

can reasonably read a pro se complaint 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 the litigant’s unfamiliarity with pleading requirements. Boag v.

MacDougall, 454 U.S. 364, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982); United States ex rel. Montgomery v.

Brierley, 414 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”).

IV. Discussion

A. Sovereign Immunity Bars Ivy’s Official Capacity Claims for Money Damages

Ivy has sued each Defendant in both his or her official and individual capacities. Id., ¶ 9.

The Defendants argue that Ivy’s official capacity claims against them must be dismissed because the

DOC and its employees are protected by sovereign immunity under the Eleventh Amendment, an

immunity which Pennsylvania has not waived. ECF No. 14, pp. 4–6. The Defendants are correct in

that they have immunity for official capacity claims seeking monetary damages. The Eleventh

Amendment proscribes actions for money damages in the federal courts against states, their

agencies, and state officials acting in their official capacities. Laskaris v. Thornburgh, 661 F.2d 23 (3d

Cir. 1981) (Pennsylvania); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (state agencies);

Edelman v. Jordan, 415 U.S. 651 (1974) (state employees acting in their official capacity). The DOC,

as an agency of the Commonwealth of Pennsylvania, and its agents and employees are entitled to

Eleventh Amendment immunity for money damages. See Brown v. Smith, 2019 WL 2411749 (W.D.

Pa. June 7, 2019). Because all Defendants in this action are DOC employees who were acting within

the scope of their employment, Ivy’s claims for monetary relief against them in their official

capacities will be dismissed with prejudice.

As Ivy correctly argues, however, the Eleventh Amendment does not provide immunity for

claims for injunctive or declaratory relief. ECF No. 19, p. 9 (citing Kentucky v. Graham, 473 U.S. 159,

169 n.18 (1985)). “In an injunctive or declaratory action grounded on federal law, the State’s

immunity can be overcome by naming state officials as defendants.” Kentucky v. Graham, 473 U.S.

159, 169 n.18 (1985) (citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Ex parte

Young, 209 U.S. 123 (1908)). Thus, Eleventh Amendment immunity does not provide a basis to

dismiss Ivy’s official capacity claims for injunctive and declaratory relief. See also Laskaris, 661 F.2d

at 26.

B. Lack of Personal Involvement

The Defendants have moved to dismiss all claims against DOC Secretary John Wetzel based

on his lack of personal involvement, arguing that there are no allegations he personally participated

in the alleged wrongs, he cannot be held liable solely on a supervisory capacity, and Ivy has made

insufficient allegations to support that he adopted or endorsed an “unconstitutional policy, practice,

or custom.”3 ECF No. 14, pp. 6–8. Defendants also argue that the claims against Gustafson, Perry,

Adams, and Mongelluzzo should be dismissed because they have been sued “based solely on their

participation on ‘the Program Review Committee’” and hearing misconduct appeals. Id., p. 8.

Defendants have also moved to dismiss the failure to train claim against Dombroski based on lack

3 Although Ivy’s complaint calls him “Wetzal,”, the Court uses the correct spelling of John Wetzel’s name.

of personal involvement and the general insufficiency of the allegations of the Complaint to support

the claim against him. Id., p. 9.

A defendant in a § 1983 action “must have personal involvement in the alleged wrongs to be

liable and cannot be held responsible for a constitutional violation which he or she neither

participated in nor approved.”4 Saisi v. Murray, 822 Fed. Appx. 47, 48 (3d Cir. 2020) (quoting Baraka

v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (citations removed). It is the plaintiff’s burden to

“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. Sept. 14, 2006) (quoting Evancho v. Fischer, 423 F.3d

347, 353 (3d Cir. 2006)). Allegations that broadly implicate multiple defendants without delineating

individual conduct are legally insufficient. See Van Tassel v. Piccione, 608 Fed. Appx. 66, 69-70 (3d Cir.

2015).

To begin, the mere fact that Wetzel was a “supervisor” or had supervisory authority,

standing alone, cannot support liability under § 1983. Hepler v. Wetzel, 2019 WL 1923004, at *5

(W.D. Pa. Apr. 30, 2019) (citing Capone v. Marinelli, 868 F.2d 102, 106 n.7 (3d Cir. 1989)). This is

because “[l]iability may not be imposed under § 1983 on the traditional standards of respondeat

superior.” Id. Thus, Wetzel cannot be held liable under a respondeat superior theory. 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.”).

But “two theories of supervisory liability” are available under § 1983 upon a proper factual

showing. Santiago v. Warminster Tp., 629 F.3d 121, 129 n.5 (3d Cir. 2010). First, “supervisors can be

4 42 U.S.C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom or usage, of

any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

liable if they ‘established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.’” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cty. Juv. Det. Ctr., 372 F.3d 572, 586

(3d Cir. 2004)). Ivy alleges that, “Wetzel, as a policy maker for the DOC did create an

unconstitutional policy, practice, or custom which directed prison personnel under his supervision

to (1) photocopy and keep records of inmate’s private legal documentation, and/or (2) to confiscate

paperwork done on behalf of another inmate, and/or (3) to punish inmates for assisting other

inmates in preparing legal documentation.” ECF No. 5, ¶ 86. He adds that, “[t]hese policy,

practices, and customs of John Wetzel were the moving force behind the violations of Plaintiff’s

constitutional rights.” Id., ¶ 87. This conclusory, thread-bare allegation is insufficient to support a

plausible inference that Wetzel established and maintained an unconstitutional policy or practice.

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 223 (3d Cir. 2015) (“[T]o establish a claim against a

policymaker under § 1983 a plaintiff must allege and prove that the official established or enforced

policies and practices directly causing the constitutional violation.”). See also Coulston v. Superintendent

Houtzdale SCI, 651 Fed. Appx. 139, 143 (3d Cir. 2016) (“conclusory legal allegations that [the DOC

Secretary] is liable for ‘creating and enforcing an [unconstitutional] policy’ do not suffice to state a

claim.”). Additionally, “[t]o presume that the [ ] practices arose from [Wetzel]’s policies merely

because of [his] position as [DOC Secretary] is to rely on respondeat superior,” a theory of liability

unavailable in § 1983 actions. See Parkell v. Danberg, 833 F.3d 313, 331 (3d Cir. 2016).

Under the other theory, a supervisor may be held liable when “he or she participated in

violating the plaintiff’s rights, directed others to violate them, or, as the person in charge, had

knowledge of and acquiesced in his subordinates’ violations.” Id. (quoting A.M., 372 F.3d at 586).

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 (3d Cir. 1990). Ivy’s Complaint fails to allege facts to

support any form of supervisory liability against Wetzel.

Ivy also fails to plead the personal involvement of Dombroski on the allegation that he

trained Winters to unconstitutionally confiscate inmates’ legal papers.5 “A supervising authority may

be liable under § 1983 for failing to train . . . when the failure to train demonstrates deliberate

indifference to the constitutional rights of those with whom the officers may come into contact.”

Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005) (citing City of Canton v. Harris, 489 U.S. 378, 388

(1989)). To prevail, the plaintiff must “identify a failure to provide specific training that has a causal

nexus with [his] injuries and must demonstrate that the absence of that training can reasonably be

said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred.”

Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). In the failure to train context, deliberate

indifference can be established by demonstrating that: “(1) [the supervisor knew] that employees will

confront a particular situation; (2) the situation involves a difficult choice or a history of employees

mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of

constitutional rights.” Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh, 742 Fed. Appx. 628, 632 (3d Cir.

2018) (quoting Doe v. Luzerne County, 660 F.3d 169, 179 (3d Cir. 2011)). The failure to train an

employee must be a choice on the part of the supervisor or supervising entity knowing that the

training that is (or is not) being provided is insufficient for the employees and the choices they

encounter on the job. Canton, 489 U.S. at 388–90.

5 Ivy alleges that Dombroski, “did train and directly authorize Defendant Librarian Winters and Defendant Librarian

Blake to confiscate legal work done by inmates on behalf of other inmates, and/or to issue these inmates misconducts.”

ECF No. 5, ¶ 85.

Here, Ivy has not identified any specific training that he believes was deficient or should

have been provided. See Joines v. Twp. of Ridley, 229 Fed. Appx. 161, 163 (3d Cir. 2007). He has also

failed to plead any facts to support an inference that the absence of that training “reflect[ed] a

deliberate indifference to whether the alleged constitutional deprivations occurred.” Reitz, 125 F.3d

at 145. For example, nothing in the pleadings suggests that Dombroski was aware that DOC

employees had a history of similar alleged First Amendment violations. See Simpson v. Ferry, 2016

WL 4247546, at *7 (E.D. Pa. Aug. 10, 2016) (cleaned up) (“A pattern of similar constitutional

violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference

for…failure to train.”). Absent such allegations, Ivy’s failure to train claim must fail. Because the

Court concludes, however, that amendment of this claim would not be futile, Ivy will be provided an

opportunity to file a curative amendment. In addition, the opportunity to amend is also appropriate

because the Complaint intimates that Ivy may be able to allege facts to support alternative theories

of liability against Dombroski.

The Defendants correctly argue that the participation of Gustafson, Perry, Adams, and

Mongelluzzo in the misconduct appeal process does not establish their personal involvement in

conduct actionable under a § 1983 claim. ECF No. 14, p. 8. See Watson v. Rozum, 2012 WL 5989202,

at *5 (W.D. Pa. Oct. 29, 2012) (collecting cases), report and recommendation adopted, 2012 WL 5989245

(W.D. Pa. Nov. 29, 2012). “[T]he appellate review of a misconduct determination, without more, is

insufficient to maintain a claim that these Defendants were personally involved in [the hearing

examiner’s] alleged due process violations.” Stockton v. Wetzel, 2017 WL 3034800, at *5 (M.D. Pa.

July 18, 2017) (citing Washington v. Showalter, 494 Fed. Appx. 268, 271-72 (3d Cir. 2012)). See also Peay

v. Fisher, 2017 WL 1128451, at *13 (M.D. Pa. Mar. 24, 2017) (the “failure of a prison official to

provide a favorable response to an inmate grievance is not a federal constitutional violation.”)

(citation omitted), aff’d, 763 Fed. Appx. 248 (3d Cir. 2019). Allegations that Gustafson, Perry,

Adams, and Mongelluzzo reviewed and denied Ivy’s misconduct appeals do not establish that they

participated in or approved of any alleged constitutional violations. See Saisi, 822 Fed. Appx. at 48.

See also Coulston v. Glunt, 2014 WL 808762, at *6 (W.D. Pa. Fed. 28, 2014) (dismissing defendants

who only participated in appeals of misconducts and grievances). These claims against Gustafson,

Perry, Adams, and Mongelluzzo will be dismissed with prejudice.

C. Ivy States a First Amendment Claim Against Defendant Winters.

Ivy alleges in Count II that all Defendants violated his First Amendment rights when they

subjected him to a misconduct for assisting another inmate to prepare a petition for writ of habeas

corpus. ECF No. 5, ¶ 89. He seeks “declaratory relief establishing that an inmate’s efforts in

assisting other inmates in the preparation of legal filings is protected under the Free Speech clause

and/or the Association clause” of the First Amendment. Id., ¶ 97. The Complaint asserts that such

a communication is protected by the First Amendment not because it is entitled to special, or

heightened, protection due to “its legal nature, but because it is a form of free speech and/or

association like any other.”6 Id. The allegations of Ivy’s Complaint are sufficient to state a First

Amendment claim actionable under § 1983.

“[A]n inmate’s constitutional rights are ‘necessarily limited.’” Newman v. Beard, 617 F.3d 775,

781 (3d Cir. 2010) (quoting Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999)). Nevertheless, “it

is settled law that an inmate ‘retains those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological objectives of the corrections system.’” Id.

(quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).7 When examining the free speech rights of

6 Although Count II only expressly raises the “right of Association under the First Amendment” [ECF No. 5, ¶ 89], a

liberal reading of the pro se Complaint, which our standard of review requires, reveals that Ivy asserts violations of

multiple First Amendment rights. See Boag, 454 U.S. 364.

7 The First Amendment applies to the states by incorporation through the Fourteenth Amendment. See Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940).

inmates, the Supreme Court in Shaw v. Murphy applied the test from Turner v. Safley, holding that

“restrictions on inmate-to-inmate communications pass constitutional muster only if the restrictions

are reasonably related to legitimate and neutral governmental objectives.” 532 U.S. 223, 231 (2001)

(citing Turner v. Safley, 482 U.S. 78, 89 (1987)). In Shaw, the Supreme Court declined to distinguish

between legal and non-legal speech of prisoners, refusing to give prisoner-to-prisoner legal

assistance any First Amendment protection “above and beyond the protection normally accorded

prisoners’ speech.” 532 U.S. at 231. Under the Turner test, a prison regulation that “impinges on

inmates’ constitutional rights” is “valid if it is reasonably related to legitimate penological interests.”

Turner v. Safley, 482 U.S. 78, 89 (1987). The Court applies a four-part test to assess the overall

reasonableness of the regulation: (1) whether the regulation or practice bears a “valid, rational

connection” to a legitimate and neutral governmental objective; (2) whether prisoners have

alternative ways of exercising the circumscribed right; (3) “[what] impact accommodation of the

asserted constitutional right will have on guards and other inmates, and on the allocation of prison

resources generally”; and (4) whether alternatives exist that fully accommodate the prisoner’s rights

at de minimis cost to valid penological interests. See Turner, 482 U.S. at 89-90. “If the connection

between the regulation and the asserted goal is ‘arbitrary or irrational,’ then the regulation fails,

irrespective of whether the other factors tilt in its favor.” Shaw, 532 U.S. at 229-30 (quoting Block v.

Rutherford, 468 U.S. 576, 586 (1984)).

Here, the record is not sufficiently developed to allow the Court to determine whether

application of the Turner factors defeats Ivy’s claim. Ivy engaged in communicative activity when he

prepared another inmate’s habeas petition which at least implicates First Amendment interests.

Whether his punishment for this communication violates the First Amendment can only be

ascertained through factual development of the record. While a court may sometimes be in a

position to apply the Turner factors based on the pleadings alone, often a factual record is necessary

to assess whether the regulation or practice is reasonably related to legitimate penological interests.

See Ramirez v. Pugh, 379 F.3d 122, 126–30 (3d Cir. 2004) (reversing grant of a motion to dismiss and

remanding for development of the factual record). This is such a case.

The Turner analysis applies to Ivy’s First Amendment associational rights claim as well as his

free speech claim. See Overton v. Bazzetta, 539 U.S. 126 (2003) (reviewing a trial record). This

“analysis is exceedingly fact-intensive and does not lend itself to resolution on a motion to dismiss.”

Enoch v. Perry, 2020 WL 4057643, at *10 (W.D. Pa. July 20, 2020) (slip copy). See, e.g., Dean v. Tice,

2020 WL 3037194, at *3 (W.D. Pa. May 13, 2020), report and recommendation adopted, 2020 WL 3036630

(W.D. Pa. June 5, 2020); Arnold v. Smith, 2020 WL 362691, at *5 (M.D. Pa. Jan. 22, 2020). Indeed, in

Turner itself, the Court had the benefit of trial testimony to assess restrictions on inmate-to-inmate

written correspondence. Turner, 482 U.S. at 82. Similarly, in DeHart, the Third Circuit assessed a

district court’s consideration of the Turner factors and grant of summary judgment following

discovery and still remanded for further development of the record. 227 F.3d at 52.

The Court notes that Ivy bears the ultimate burden of demonstrating the invalidity of the

prison’s policy. As the Supreme Court has emphasized repeatedly, courts “must accord substantial

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

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

appropriate means to accomplish them.” Overton, 539 U.S. at 132 (citations omitted). “The burden,

moreover, is not on the State to disprove the validity of prison regulations but on the prisoner to

disprove it.” Id. Whether Ivy can meet this burden is a determination that must await development

of the record. At this stage, his allegations are sufficient to survive Defendants’ motion to dismiss

his First Amendment claim against Winters.

The Defendants make two, alternative arguments in support of dismissal of this claim. First,

they argue categorically that no “First Amendment claim … of freedom of association in the context

of providing legal assistance to other inmates… is recognized in this Circuit.” ECF No. 14, p. 10.

As noted, the Turner analysis applies to inmate freedom of association claims. Overton, 539 U.S. at

132–36. Although application of the Turner factors is permissible on a motion to dismiss when it is a

matter of “common sense” that the regulation or practice is reasonably related to legitimate

penological interests, see Ramirez, 379 F.3d at 127 (citing Amatel v. Reno, 156 F.3d 192, 199 (D.C. Cir.

1998)), the record here is insufficient to allow the Court to apply the Turner factors to the DOC

policy at issue. Indeed, the parameters of the policy and its application to Ivy’s activities are not

entirely clear from the face of the Complaint. As reflected in the cases cited by Defendants, the

courts that have rejected an inmate’s First Amendment claim arising from assistance of other

inmates in preparing legal work had the benefit of a developed summary judgment record to allow

proper application of the Turner factors. See ECF No. 14, pp. 10-11 (citing Cooper v. Pa. Dep’t of Corr.,

756 Fed. Appx. 130, 133 (3d Cir. 2018); Shaw v. Murphy, 532 U.S. 223 (2001); Walker v. Campbell,

2011 WL 6153104, at *5 (W.D. Pa. Oct. 31, 2011), report and recommendation adopted, 2011 WL

6176808 (W.D. Pa. Dec. 9, 2011). In Wisniewski v. Fisher, another case cited by Defendants, the

Court of Appeals for the Third Circuit held that where prisoner-to-prisoner legal assistance “was

both pursuant to [the plaintiff’s] job duties [at the prison] and in accordance with prison regulations,

[and] was not inconsistent with legitimate penological interests,” such assistance “could fall within

the limited First Amendment rights that prisoners retain.” 857 F.3d 152, 156-57 (3d Cir. 2017).

Thus, case law does not categorically reject such claims.8 The capacity in which Ivy was assisting

8 Defendants’ last case in support of this argument, Carter v. Dragovich, 1999 WL 549030, at *2 (E.D. Pa. July 27, 1999),

predates the Supreme Court’s decision in Shaw v. Murphy, which reaffirmed the necessity of applying the Turner factors.

Accordingly, this case is of limited persuasive value.

other inmates is not presently clear. In such a case, it is premature to dismiss a plaintiff’s First

Amendment claim. See Cooper, 756 Fed. Appx. at 134.

The Defendants also contend that Ivy was improperly taking up time in the library to assist

others under the pretense that he had his own upcoming legal deadlines. ECF No. 14, pp. 13-14

(“It would seem beyond dispute that the prison has an interest in ensuring that the legal resources

made available to inmates are managed appropriately and all inmates are afforded appropriate access.

Plaintiff has acknowledged that he used library time procured under the guise of an upcoming

deadline to work on another inmate’s case.”). This argument, which emphasizes the need to

preserve prison legal resources for fair distribution among all inmates, is facially reasonable. It

seems to fit best within the third Turner factor, which asks, “[what] impact accommodation of the

asserted constitutional right will have on guards and other inmates, and on the allocation of prison

resources generally.” Turner, 482 U.S. at 90. However, this factor cannot (except in the rarest of

circumstances) be evaluated on the pleadings alone. See Ramirez, 379 F.3d at 12; Tootle v. Long, 2021

WL 3610034, at *5 (W.D. Pa. July 19, 2021) (slip copy), report and recommendation adopted, 2021 WL

3603621 (W.D. Pa. Aug. 13, 2021). Proper analysis of this factor requires factual development. Id.

On the current record, the Court lacks the information it needs to assess whether punishing inmates

for doing legal work for another inmate bears a reasonable relationship to legitimate penological

interests.

The Defendants also argue that Ivy’s claim fails because he does not fall within the class of

inmates possessing First Amendment rights recognized by the Third Circuit in Wisniewski, 857 F.3d

at 156-57. Unlike the plaintiff in Wisniewski, Defendants argue, Ivy was not working as an inmate

law library legal clerk, but instead provided legal assistance to other inmates “[a]s an act of pure

altruism.” ECF No. 14, p. 11 (citing Ivy’s Complaint [ECF No. 5, ¶ 19]). The Defendants are

correct that the Court of Appeals in Wisniewski recognized the viability of the plaintiff’s claim based,

in part, on the fact that the legal assistance he provided to other inmates was “pursuant to [the

plaintiff’s] job duties” at the prison and “in accordance with prison regulations….” Wisniewski, 857

F.3d at 156-57. Ivy does not allege that he was employed as a law clerk or an equivalent position.

See Cooper, 756 Fed. Appx. at 133-34 (remanding for district court to consider whether an inmate’s

job duties were consistent with that of an inmate law library clerk under Wisniewski). But the Court’s

holding in Wisniewski was still the product of a thorough analysis of the Turner factors and should

not be read as foreclosing a First Amendment claim except where the plaintiff served as a law library

clerk whose responsibilities included providing such assistance. The facts may well demonstrate that

Ivy does not fall within the limited class of inmates whose legal assistance of others has been

accorded First Amendment protection. Indeed, Ivy faces a “heavy burden” to “overcome the

presumption that the prison officials acted within their ‘broad discretion’” in the management of the

prison. Shaw, 532 U.S. at 232 (quoting Thornburgh v. Abbott, 490 U.S. 401, 413 (2001)). But, again,

this determination must await development of a proper factual record and the Court’s full

assessment of the Turner factors.

As to Defendant Blake, however, Ivy’s allegations are insufficient to establish her

involvement in plausibly actionable conduct. Therefore, Ivy’s First Amendment claim will be

dismissed against her but with leave to file an amended complaint if Ivy is able to allege facts to state

a claim against her.

D. Ivy Has Not Stated a Claim for Invasion of Privacy Because He Has Pleaded No

Protected Privacy Interest

Ivy’s Complaint asserts that Winters and Blake violated his right to privacy by

(1) photocopying his legal mail and legal documents to preserve them for DOC records, (2) showing

his legal mail and legal documentation to inmate law clerk Fritchman, and (3) reading and censoring

the legal work he printed from the library’s computer. ECF No. 5, ¶ 91. Count IV contends that

this conduct violated his right to privacy under the First, Fourth, and Fourteenth Amendments. Id.

Count V alleges that the same actions violated his right to privacy under Pennsylvania state law. Id.,

¶ 92. Ivy’s allegations fail to state a claim for invasion of privacy under any of these constitutional

amendments or state law because he lacks a protected privacy interest in any of these materials.

To begin with, Ivy has failed to plead Blake’s involvement in the alleged invasion of privacy.

The conclusory allegation that she “created and implemented the policy, practice, or custom” of

reviewing and photocopying inmates’ legal materials and that she censored and confiscated “free

speech materials” lacks any facts to support an inference that she deprived Ivy of any privacy right.

ECF No. 5, ¶ 82. See Iqbal, 129 S. Ct. at 1949-50 (a complaint must do more than allege “naked

assertions devoid of further factual enhancement,” and the court is not “bound to accept as true a

legal conclusion couched as a factual allegation.”). All of Ivy’s invasion of privacy claims against

Blake must be dismissed on that basis.

Penological imperatives, including the paramount importance of prison security, diminish

the privacy rights of those incarcerated in prisons. See Hudson v. Palmer, 468 U.S. 517 (1984). The

Supreme Court in Hudson “concluded that the Fourth Amendment right to privacy, to be free from

unreasonable searches, is fundamentally inconsistent with incarceration.” Doe v. Delie, 257 F.3d 309,

316 (3d Cir. 2001) (citing Hudson, 468 U.S. at 529 (1984) (holding that prisoners have no Fourth

Amendment right to privacy in their cells). The appropriate inquiry for the applicability of the

Fourth Amendment’s protection against unreasonable searches and seizures turns on whether “the

person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of

privacy’ that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979).

The court in Rasheed v. Mayer held that prison officials had not violated the Fourth Amendment

when, upon an inmate’s transfer from federal custody to a county jail, officers confiscated his legal

materials for five days while internal affairs reviewed the documents as part of a narcotics smuggling

investigation. 2020 WL 7344022, at *1-2, *4 (W.D. Pa. Nov. 23, 2020) (relying on Hudson, 468 U.S.

at 527-28). Librarian Winters’ request to see Ivy’s legal documents to verify that he had upcoming

deadlines also serves the DOC’s interest in institutional order and management of resources by

balancing an individual inmate’s need for additional law library time with the ability of all inmates to

use the law library. The Constitution affords prison administrators significant discretion regarding

prison regulation and administration. See, e.g., Jones v. N. Carolina Prisoners’ Labor Union, Inc., 433 U.S.

119, 126 (1977) ( “Because the realities of running a penal institution are complex and difficult, we

have also recognized the wide-ranging deference to be accorded the decisions of prison

administrators.”). Ivy “has no possessory interests” in his legal documents which Winters read and

showed to another inmate “which society is prepared to accept as reasonable.” Dean v. Folino, 2011

WL 4527352, at *2 (W.D. Pa. Aug. 22, 2011) (citations omitted), report and recommendation adopted,

2011 WL 4502869 (W.D. Pa. Sept. 28, 2011).

Ivy’s failure to assert a reasonable expectation of privacy also means that he has failed to

state a claim for invasion of privacy under state law. The tort of invasion of privacy in its intrusion

on seclusion form requires a plaintiff to plead “an intentional intrusion upon the seclusion of

[plaintiff’s] private concerns which was substantial and highly offensive to a reasonable person, and

…sufficient facts to establish that the information disclosed would have caused mental suffering,

shame or humiliation to a person of ordinary sensibilities.” 9 Boring v. Google Inc., 362 Fed. Appx. 273,

279 (3d Cir. 2010) (quoting Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d

9 The Court agrees with the Defendants that of the invasion of privacy claims recognized in Pennsylvania, intrusion

upon seclusion best fits Ivy’s allegations. See ECF No. 14, p. 17; Marks v. Bell Tel. Co. of Pa., 331 A.2d 424, 430 (Pa. 1975)

(explaining the “four distinct torts” for invasion of privacy under Pennsylvania law).

243, 247 (Pa. 2002)). The privacy invasion may occur “(1) by physical intrusion into a place where

the plaintiff has secluded himself, (2) by use of the defendant’s senses to oversee or overhear the

plaintiff’s private affairs, or (3) some other form of investigation or examination into plaintiff’s

private concerns.” Harris v. Easton Publishing Co., 483 A.2d 1377, 1383-84 (Pa. Super. Ct. 1984).

Further, unlike libel and slander claims, publicity is not an element of the claim of intrusion on

seclusion invasion of privacy. Id. The mere fact of an intrusion on private affairs is insufficient; the

conduct must have been “highly offensive to a reasonable person.” Larsen v. Philadelphia Newspapers,

Inc., 375 Pa. Super. 66, 543 A.2d 1181, 1186–87 (Pa. Super. Ct. 1988)). See also Marks v. Bell Telephone

Co. of Pa., 460 Pa. 73, 331 A.2d 424 (Pa. 1975). Moreover, although persistent intrusions are

illustrative of the cause of action in the Restatement (Second) of Torts, Section 652B (which

Pennsylvania has adopted), “it is clear that the important point is not that the intrusions be

persistent but that the intrusions should by one means or another…rise to the level of what a

reasonable person would find ‘highly offensive.’” Diaz v. D.L. Recovery Corp., 486 F. Supp. 2d 474,

480 (E.D. Pa. 2007), cited approvingly by Boring, 362 Fed. Appx. at 279 (3d Cir. 2010).

Nothing the Defendants examined was private and none of their conduct would be highly

offensive to a reasonable person. ECF No. 14, p. 17-18. First, the habeas corpus petition that Ivy

printed from a public printer in the library on Winter’s desk was not private. Ivy printed to a shared

printer, stationed on Winter’s desk, that was visible to anyone in the library. Considering these

circumstances, Ivy did not have a reasonable privacy interest in the habeas corpus petition he

printed for another inmate. See Campbell v. Woodard Photographic, Inc., 433 F. Supp. 2d 857, 861 (N.D.

Ohio 2006) (assuming that, in an office, “obtain[ing] an eBay summary from a printer tray in plain

view” is not invasion of privacy). Second, Ivy did not have a reasonable expectation of privacy in

his legal papers that the librarians required him to show as a condition of getting additional time in

the law library. The court docket and appellee’s brief that Ivy was required to disclose were matters

of public record. See Williams v. Claims Overload Sys., Inc., 1998 WL 104476, at *3 (E.D. Pa. Feb. 25,

1998). In Williams, the court dismissed an invasion of privacy claim based on a background check

which revealed that a criminal complaint had been filed against the plaintiff because “Williams could

have no reasonable expectation of privacy in public court documents such as the published opinion

in the criminal case against Williams.” Id. Information on a court’s docket in 2021 is available to the

public, often readily via online access. Additionally, because of their incarceration, inmates’ privacy

rights are far more limited than that of citizens at liberty. Bell v. Wolfish, 441 U.S. 520, 557 (1979)

(“given the realities of institutional confinement, any reasonable expectation of privacy that a

detainee retained necessarily would be of a diminished scope.”). Finally, it would not be highly

offensive to a reasonable person who is incarcerated to have to share a court docket sheet and a

publicly available appellate brief with a law librarian to verify that he had an upcoming filing

deadline. Harris, 483 A.2d at 1383-84. Accordingly, Ivy has also failed to plead a state law claim for

invasion of privacy.

Ivy’s state law invasion of privacy claim must also be dismissed because the Defendants

possess state sovereign immunity. ECF No. 14, p. 15–18. Sovereign immunity under Pennsylvania

law provides state officials and employees with broad immunity from most state-law tort claims

when “acting within the scope of their duties…except as the General Assembly shall specifically

waive the immunity.” 1 Pa. C.S. § 2310; Sears v. McCoy, 2021 WL 254067, at *7 (M.D. Pa. Jan. 26,

2021). In addition, “sovereign immunity applies even to intentional torts committed by

Commonwealth defendants acting in their individual capacities.” Id. (citing Story v. Mechling, 412 F.

Supp. 2d 509, 518 (W.D. Pa. 2006), aff’d, 214 Fed. Appx. 161 (3d Cir. 2007)). The Pennsylvania

General Assembly has waived immunity for nine categories of claims, none of which encompass

Ivy’s invasion of privacy claims. See 42 Pa. Const. Stat. Ann. § 8522. It is also clear from the

pleadings that the Defendants were acting within the scope of their employment under Pennsylvania

state law when they engaged in the conduct alleged by Ivy. See Chin v. Chrysler LLC, 538 F.3d 272,

278 (3d Cir. 2008) (scope of employment determined under Pennsylvania state law). See Justice v.

Lombardo, 208 A.3d 1057, 1066-67 (Pa. 2019) (applying Restatement (Second) of Agency §§ 228–235

(Restatement) (1958) to determine scope of employment). All alleged acts took place at SCI-

Forest—their place of employment—during working hours. Where “the servant…does the kind of

act which he is authorized to perform within working hours and at an authorized place, there is an

inference that he is acting within the scope of employment.” Restatement (Second) of Agency § 235

(1958) cmt. a. They undertook acts serving their employer: upon his visit to the law library, Winters

requested documentation to show Ivy’s upcoming court deadline to authorize him with additional

time [ECF No. 5, ¶¶ 22–25]; Winters, “in conformity with the practice and custom” photographed

these documents for library records and verification of the deadline, id., ¶¶ 26-27, 30; and Winters

read documents Ivy sent from the law library computer to the printer on her desk, which she then

confiscated and issued a confiscation slip. Id., ¶¶ 13, 40, 42-43; ECF No. 5-1. All these duties serve

the purposes of the Defendants’ employer in the orderly operation of the prison’s law library and fall

within their scope of employment. Accordingly, sovereign immunity under Pennsylvania law shields

Winters and Blake from Ivy’s state law invasion of privacy claims.

Ivy also fails to state a claim for invasion of privacy under the Fourteenth Amendment.10

The touchstone of the analysis of Fourteenth Amendment confidentiality rights is “whether [the

disclosure is] within an individual’s reasonable expectations of confidentiality. The more intimate or

personal the information, the more justified is the expectation that it will not be subject to public

10 Two types of privacy rights are traditionally protected under the Fourteenth Amendment: “confidentiality rights”—

i.e., “the individual interest in avoiding disclosure of personal matters,” and “autonomy rights”—“the interest in

independence in making certain kinds of important decisions.’” Malleus v. George, 641 F.3d 560, 564 (3d Cir. 2011) (citing

Whalen v. Roe, 429 U.S. 589, 599-600 (1977); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir. 2005)). In this case,

Ivy’s allegations more closely approximate a confidentiality right than an autonomy right and will be analyzed under that

rubric.

scrutiny.” Malleus v. George, 641 F.3d 560, 564 (3d Cir. 2011) (quoting Fraternal Order of Police v. City of

Philadelphia, 812 F.2d 105, 112–13 (3d Cir. 1987)). The Third Circuit has provided a non-exhaustive

list of six categories of protected information: (1) a private employee’s medical information when

sought by the government, (2) medical, financial and behavioral information relevant to a police

investigator’s ability to work in dangerous and stressful situations, (3) prescription records of a

public employee, (4) a minor’s pregnancy status, (5) sexual orientation, and (6) an inmate’s HIV

status. Id. at 564-65 (citing United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980);

Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 113-16 (3d Cir. 1987); Doe v. Southeastern Pa.

Trans. Auth., 72 F.3d 1133, 1138 (3d Cir. 1995); Gruenke v. Seip, 225 F.3d 290, 301 (3d Cir. 2000);

Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000); Doe v. Delie, 257 F.3d at 309, 317, 323

(3d Cir. 2001)). Ivy’s asserted interest in the privacy of his legal papers does not fit within one of

those six categories. Nor was the information in his legal documents so intimate and personal that it

falls within the Fourteenth Amendment’s protections. As explained above, Ivy had no reasonable

expectation of privacy in the papers discussed in his Complaint. See also Com. v. Moore, 928 A.2d

1092, 1099 (Pa. Super. Ct. 2007) (no reasonable expectation of privacy in incoming and outgoing

prisoner mail under Fourth Amendment). For the foregoing reasons, all of Ivy’s invasion of privacy

claims will be dismissed with prejudice as to all Defendants.

E. Ivy’s Procedural Due Process Claim Fails Because Seventy-Five Days in Disciplinary

Custody Does Not Implicate a Liberty or Property Interest.

To implicate protections under the Due Process Clause of the Fourteenth Amendment, a

state actor must deprive the plaintiff of either a property interest or a liberty interest. See Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Ivy has failed to plead a constitutionally

protected liberty interest based on alleged deficiencies in the procedures followed during his

misconduct hearing. Depriving already-incarcerated persons of liberty requires due process

protections only if the deprivation imposes an “atypical and significant hardship…in relation to the

ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The determination of

what is “atypical and significant” depends on the range of conditions an inmate would reasonably

expect to encounter while incarcerated. See Asquith v. Dep’t of Corr., 186 F.3d 407, 412 (3d Cir. 1999).

Depending on their severity, sanctions imposed because of a guilty finding on a prison misconduct

may constitute an “atypical and significant hardship” that implicates the Due Process Clause. See

Wolff v. McDonnell, 418 U.S. 539, 564–66 (1974) (when an inmate faces revocation of “good time

credits” affecting his criminal sentence, prison officials must (typically) provide him certain due

process protections). But sanctions that fall short of this threshold do not trigger such protection.

In Sandin, for example, the Court held that because a thirty-day punitive segregation in the prison

was not an atypical or significant hardship for an inmate, it implicated no liberty interest, and thus

the protections of the Due Process Clause did not apply. Sandin, 487 U.S. at 487.

Here, Ivy was sentenced to seventy-five days of disciplinary confinement. ECF No. 5, ¶ 90.

This sanction falls well short of an “atypical and significant hardship” sufficient to implicate a liberty

interest and trigger procedural due process protections under Sandin. See Smith v. Mensinger, 293 F.3d

641, 654 (3d Cir. 2002) (seven months solitary confinement was not an atypical or significant

hardship); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (fifteen months administrative

segregation). This precludes Ivy’s procedural due process claim even if the Defendants violated

DOC or prison policies, procedures, or ethical rules. See Lee v. Schrader, 2014 WL 2112833, at *4

(W.D. Pa. May 20, 2014) (“T]he simple fact that state law prescribes certain procedures does not

mean that the procedures thereby acquire a federal constitutional dimension”) (citing United States v.

Jiles, 658 F.2d 194, 200 (3d Cir. 1981) (other citations omitted). The United States Constitution

provides the floor of constitutional due process protections below which state officials may not go,

but states remain free to create procedures not compelled or enforceable by reference to the

Constitution. See Shango v. Jurich, 681 F.2d 1091, 1101-02 (7th Cir. 1982) (“[A] state created

procedural right is not itself a liberty interest….States may decide to engage in such proceedings, but

the due process clause does not compel them to do so because no constitutionally cognizable

substantive interest of the prisoner is at stake.”).11 His procedural due process claim must be

dismissed as to all Defendants.

F. Ivy’s Complaint Fails to State a Conspiracy Claim Under Pennsylvania State Law.

Ivy alleges in a conclusory manner that all Defendants engaged in a conspiracy to punish him

for exercising his rights of association and free speech when he helped Fritchman with his habeas

petition. ECF No. 5, ¶¶ 75, 79, 90. However, “mere conclusory allegations of deprivations of

constitutional rights are insufficient to state a conspiracy claim.” Tindell v. Beard, 351 Fed. Appx. 591,

594 (3d Cir. 2009). Rather, the plaintiff “must provide some factual basis to support the existence

of the elements of a conspiracy: agreement and concerted action.” Capogrosso v. The Supreme Court of

the State of New Jersey, 588 F.3d 180, 184-85 (3d Cir. 2009). Ivy’s Complaint does not allege “facts

that plausibly suggest a meeting of the minds.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP,

615 F.3d 159, 179 (3d Cir. 2010). The law is clear: “bare allegations of wrongdoing by a Defendant,

without any substantiating proof of an unlawful agreement, are insufficient to state a conspiracy

claim.” Carey v. Johnson, 2008 WL 724101, at *10 (W.D. Pa. Mar. 17, 2008). Such is the case here.

V. Leave to Amend

The 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

11 Ivy’s Complaint also alleges that all Defendants violated his right to due process under the Fourteenth Amendment by

“failing to provide Plaintiff with adequate notice that his behavior, in assisting another inmate with preparing Habeas

Corpus documentation for Federal Court, constitute misconduct under the institution’s rules and regulations.” ECF No.

5, ¶ 93. This charge similarly does not support a due process claim.

be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Leave to

amend is inappropriate if the complaint, as amended, would not survive a motion to dismiss for

failure to state a claim. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). This

instruction applies equally to pro se litigants and those represented by counsel. Alston v. Parker, 363

F.3d 229, 235 (3d Cir. 2004). Ivy may file an amended complaint as to the claims that the Court has

not dismissed with prejudice and as set forth in this opinion.

The Court reminds Ivy that an amended complaint “must be complete in all respects. It is a

new pleading which stands by itself as an adequate complaint without reference to the complaint

already filed.” Williams v. Ferdarko, 2018 WL 3653272, at *1 n.1 (W.D. Pa. Aug. 1, 2018) (quoting

Young v. Keohane, 809 F. Supp. 1185, 1189 (M.D. Pa. 1992)). This means that the Amended

Complaint must restate all allegations he plans to pursue. In his Amended Complaint, Ivy should (1)

differentiate his claims among the defendant or defendants he is suing, (2) provide a short and plain

statement of the facts in accordance with Rule 8 of the Federal Rules of Civil Procedure, (3) identify

what each defendant did or did not do, when, for how long, and if the violations of rights are

ongoing, (4) and what relief he is seeking.

VI. Conclusion

Defendants’ motion to dismiss Ivy’s Complaint at ECF No. 14 is granted in part and denied

in part as follows:

1. Although the Defendants have not attacked the merits of Ivy’s retaliation claim in

Count I, this claim will be dismissed as to Defendants Wetzel, Dombroski,

Gustafson, Perry, Adams, and Mongelluzzo because the facts alleged do not support

their personal involvement as required for a claim under § 1983. As to these

Defendants, the claim is dismissed with prejudice. The claim remains pending

against Defendants Winters and Blake. All other claims against Wetzel, Gustafson,

Perry, Adams, and Mongelluzzo are also dismissed with prejudice.

2. Ivy’s claims against Dombroski are dismissed without prejudice and with leave to file

an amended complaint.

3. The motion to dismiss Count II of the Complaint is denied as to Defendant Winters

but granted as to all other Defendants. Dismissal is with prejudice except as to

Defendant Blake. As to Blake, Ivy may file an amended complaint.

4. Counts III, IV, V, and VI of the Complaint are dismissed with prejudice as to all

Defendants.

5. Ivy’s claims for money damages against the Defendants in their official capacities are

dismissed with prejudice.

Within twenty-one days from the entry of this Order, Ivy may file an amended complaint in

accordance with this Memorandum Opinion. His failure to file an amended complaint within this

period will be considered a waiver of his right to amend and, in that event, the claims dismissed

herein without prejudice will be dismissed with prejudice. An appropriate order follows.

___________________________________

HON. RICHARD A. LANZILLO

UNITED STATES MAGISTRATE JUDGE

Entered this 30th day of September 2021.