MOWERY v. OVERMYER

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

)

ASHLEY R. MOWERY, 1:22-CV-00180-RAL

Plaintiff RICHARD A. LANZILLO

ami ) Chief United States Magistrate Judge

Vs. )

) OPINION ON DEFENDANTS’ MOTION TO

WARDEN OVERMYER, et al., ) DISMISS

)

Defendants )

) ECF NO 20

)

I. Introduction

Plaintiff Ashley R. Mowery, an inmate incarcerated at the State Correctional Institution at

Cambridge Springs (“SCJ-Cambridge Springs”), initiated this pro se civil rights action by filing a

civil complaint and a motion for leave to proceed in forma pauperis (IFP). ECF Nos. 1, 1-1.

Her complaint was docketed and submitted to the United States Marshal for service on July 21,

2022. ECF Nos. 6-7.

In her pleading, Mowery claims that employees at SCJ-Cambridge Springs violated her

constitutional rights as secured by the First, Fifth, Sixth, Seventh, Eighth, and Fourteenth

Amendments. ECF No. 6. As Defendants, Mowery has identified the Warden of SCI-

Cambridge Springs, Michelle Overmyer, and corrections officers Ace, Dugan, and DeForce. Jd.

Mowery seeks monetary and injunctive relief pursuant to 42 U.S.C. § 1983. Jd.

Presently pending before the Court is Defendants’ motion to dismiss. See ECF No. 20.

Despite obtaining an extension of time, Mower failed to file a response to Defendants’ motion.

See ECF Nos. 24-25. This matter is ripe for disposition.!

II. Factual Background

The following allegations from Mowery’s complaint and supporting documents are

accepted as true for purposes of this motion. On December 30, 2021, officials at SCI-Cambridge □

Springs issued Misconduct Report D119523 charging Mowery with criminal conspiracy,

criminal solicitation, possession of contraband (implements of escape), and unauthorized use of

the mail. ECF No. 6-6. The version of events given by Defendant Ace in support of the

misconduct stated that:

On 12/22/21 the security office intercepted a letter written by [Mowery]

addressed to Kamien Royal. In the letter, i/m Mowery conspired to have

Kamien Royal introduce contraband into the facility. In the letter, i/m

Mowery gives specific details of the layout of the facility and requested

that a “burner phone” and charger [be] thrown over the perimeter fence

into the yard area. I/m Mowery also provided specific days and times

she would be in the yard, in the letter. During an investigation with i/m

Mowery she admitted to this reporting officer that she authored the letter

to Kamien Royal.

Id. Following a hearing, Mowery received a sanction of seven months in the Restricted Housing

Unit (““RHU”). ECF No. 6 at 10. Mowery successfully appealed and, on remand, received a

second disciplinary hearing at which sixty days was removed from her sanction. Jd.

Most of Mowery’s claims attack alleged defects in her disciplinary proceedings. She

alleges that DeForce and several other corrections officers first approached her to discuss the

incident on December 22, 2021. ECF No. 6 at p. 7. She was taken to the RHU and told that

! The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge to conduct all

proceedings in this case, including the entry of final judgment, as authorized by 28 U.S.C. § 636.

“someone (security) will be down to see you.” Jd. Mowery denied any wrongdoing and

requested an attorney but was ignored. Jd.

On December 27, 2021, Ace and Dugan approached Mowery and asked if she knew a

person named “Kamien Royal.” Jd. at 8. When Mowery denied any knowledge of that

individual and asked to see the evidence against her, Ace began screaming at her. Jd. According

to Mowery, Ace told her that if she did not comply with the investigation, he would “make sure

that [she would] rot down here in the RHU for the rest of [her] time and [would] not see the light

of day or another day of [general] population’ on campus.” Jd. Ace refused to let Mowery see

any evidence relating to the investigation and claimed that police had arrived at the prison to

force her to take a lie detector test. Jd. He told her that, unless she admitted to the charges, she

“would be receiving outside [criminal] charges.” Jd. Despite maintaining her innocence,

Mowery allowed Ace and Dugan to guide her through a written admission of guilt because she

believed she had no choice. Jd. Mowery contends that this violated her constitutional right to

due process.

On April 22, 2022, Mowery met with the prison’s Program Review Committee (PRC) to

review her RHU placement. /d. at 14. Despite her “good behavior,” she “was berated by PRC

saying that she’s not taking responsibility or remorseful since she is still filing grievances upon

the matter.” Jd. In conclusory fashion, she also suggests that she “consistently receives

retaliation for submitting grievances about clandestine matters within [the] prison.” Jd. at 15.

Unrelated to her due process claim, Mowery also contends that the prison’s medical sick

call procedure violates the Fourteenth Amendment. Jd. at 17. According to Mowery, when a

sick call is submitted, “medical comes and speaks to you at your door where everyone in the

RHU can hear.” Jd. Mowery maintains that this amounts to an invasion of privacy and breach of

medical confidentiality. Jd.

Based on the foregoing, Mowery raises ten separate claims for relief. Counts One, Two,

Three, Four, and Seven assert supervisory liability claims against Warden Overmyer based on

her alleged failure to train, monitor, prevent, and remedy constitutional violations committed by

other staff members at SCI-Cambridge Springs. Counts Five and Six present municipal liability

claims (despite that no municipality has been named as a defendant) based on an alleged failure

to train and the promulgation of an unconstitutional sick call policy. Count Eight raises a due

process challenge to Mowery’s disciplinary hearing and resulting sanction, while Count Nine

alleges that prison officials extended Mowery’s punishment in retaliation for past protected

activity. Finally, Count Ten, in catch-all fashion, alleges that the aforementioned misconduct

also violated the Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments to the United States

Constitution.

Il. Standard 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 right to

relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)

(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.

2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed

pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard

established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court

must accept as true all well-pled factual allegations in the complaint and views them in a light

most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.

2002).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555.

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

Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a

plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.

Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 Gd Cir. 2004) (citing Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal

conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478

U.S. at 286). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (Gd 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 y. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 Gd Cir. 2010)). This determination is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Igbal, 556 U.S. at 679.

Finally, because Plaintiff is proceeding pro se, the allegations in the 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 proper 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’’).

IV. Analysis

Mowery’s pleading appears to raise claims based on supervisory liability, municipal

liability, due process, retaliation, and various constitutional provisions. Each will be addressed

in turn. To the extent that Defendants have not specifically addressed a claim in their motion to

dismiss, the Court may sua sponte do so pursuant to 28 U.S.C. § 1915(e)(2).”

A. Municipal liability claims (Counts Five and Six)

At Counts Five and Six, Mowery purports to assert claims against an unidentified

? Having been granted leave to proceed in forma pauperis, see ECF No. 5, Mowery is subject to the screening

provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in

which the Court determines that the action is “frivolous or malicious; fails to state a claim upon which relief may be

granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2);

Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either

based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based

upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or

delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to

state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72

(3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 Gd Cir. 1999)).

municipality? based on various prison policies. These claims are subject to dismissal based on

the immunity afforded to states and state agencies by the Eleventh Amendment.

It is axiomatic that “the Eleventh Amendment proscribes actions in the federal courts

against states, their agencies, and state officials acting within their official capacities.” See, e.g.,

O’Donnell v. Pennsylvania Dept. of Corrections, 790 F.Supp.2d 289, 305 (M.D. Pa. 2011)

(citing Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996)). As a department of the

Commonwealth of Pennsylvania, the DOC is immune from suit in federal court unless, inter

alia, said immunity has been abrogated by Congress or waived by the state. MCI Telecomm

Corp. v. Bell-Atlantic-Pennsylvania, 271 F.3d 491, 503 Gd Cir. 2001). See also Lavia v.

Pennsylvania, Dept. of Corrections, 224 F.3d 190, 195 (3d Cir. 2000) (noting that, as an agency

of the Commonwealth of Pennsylvania, the DOC is entitled to assert the immunities afforded by

the Eleventh Amendment).

“Pennsylvania has not waived its immunity from suit in federal court.” Toth v. California

Univ. of Pennsylvania, 844 F.Supp.2d 611, 648 (W.D. Pa. 2012) (citing 42 Pa.C.S.A. § 8521(b)).

Nor did Congress intend by the general language of Section 1983 to override the traditional

sovereign immunity afforded to the states. Quern v. Jordan, 440 U.S. 332, 342-45 (1979); see

also Toth, 844 F.Supp.2d at 648. Accordingly, Mowery’s municipal liability claims must be

dismissed.

B. Supervisory liability claims (Counts One through Four and Count Seven)

Throughout her pleading, Mowery accuses Overmyer of violating her constitutional

rights by acting or failing to act in her supervisory position as the Warden of SCI-Cambridge

3 Although not listed in the caption of Mowery’s complaint, the City of Eric is identified in passing as a “municipal

corporation of the State of Pennsylvania.” ECF No. 6 at p. 3. No conduct is attributed to the City of Erie anywhere

in the complaint, and the Court cannot infer any connection between the City of Erie and SCI-Cambridge Springs.

Springs. These accusations include the following:

- Overmyer disregarded the “accurate and factual merit” of Mowery’s arguments while

denying her misconduct appeal (Count One)

- Overmyer allowed Mowery to be housed in the RHU despite that the RHU has only

ten rooms, allegedly in violation of a DOC policy requiring “all state RHU’s [to] be

able to hold 10% of the population by law” (Count One)

- Overmyer was “aware of” the fact that sick call visits in the RHU take place at the

inmate’s cell door, allowing RHU residents to overhear other inmate’s private

medical information (Count One)

- Overmyer “knew of subordinates (Lt. DeForce, Cpt. Ace, Lt. Dugan’s) conduct” but

“failed to take action to fix it” (Count Two)

- Overmyer “failed to set up policies that help guide subordinates conduct to prevent

violations of constitutional rights” and “failed to inform and train staff... to make

sure that they followed policies” (Count Two)

- Overmyer “failed to properly supervise staff to make sure that they followed policies”

(Count Two)

- Overmyer was probably “made... aware” that the prison’s phone system was not

working for several days in April and May of 2022, depriving inmates of access to the

abuse hotline (Count Two)

- Overmyer “participated directly in the alleged constitutional violation indicating

Plaintiff didn’t have any rights in Plaintiff's appeal to her” (Count Three)

- Overmyer “failed to remedy the violation” after being informed through Mowery’s

appeal that Lt. DeForce “failed to provide counsel or inform or document Plaintiff

stating she wanted counsel and was indigent” (Count Three)

- Overmyer “acted with gross negligence in supervising subordinates who committed

the wrongful acts” and “exhibited deliberate indifference to the rights of Plaintiff

(prisoner) by failing to act on information indicating that unconstitutional acts were

occurring (Count Three)

- Overmyer “affirmed Plaintiff's disciplinary conviction,” “stated that Plaintiff couldn’t

exercise her rights,” and “ignored Plaintiff's complaints” (Count Four)

- Overmyer “failed to remedy the wrong” after “learning of a violation of Plaintiff's

rights” (Count Four)

- Overmyer “substantiat[ed] a pattern of repeated unconstitutional behavior” despite

that “more or better training, supervision or discipline is needed” (Count Seven)

ECF No. 6 at pp. 16-22, 26.4

As Defendants emphasize in their motion to dismiss, a § 1983 plaintiff “must show that

each and every defendant was ‘personal[ly] involve[d]’ in depriving him of his rights.” Kirk v.

Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353

(3d Cir. 2006)). This means that each defendant must have played an “affirmative part” in the

complained-of misconduct. Iqbal, 556 U.S. at 677 (“In a § 1983 suit ... [a]bsent vicarious

liability, each Government official, his or her title notwithstanding, is only liable for his or her

own misconduct.”); Oliver 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, e.g., Mearin vy. 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 with equal force where the defendant is a supervising prison

official. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that

liability for supervisory officials must still be based on “personal involvement in the alleged

wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“[L]iability cannot be predicated

solely on the operation of respondeat superior.”). Although a supervisor cannot encourage

constitutional violations, “a supervising public official has [no] affirmative constitutional duty to

4 Mowery also alleges that prison policy required her to be “reviewed by her unit management team once every 30

days,” but that she “was never reviewed” and “never received any documentation concluding in reviewal.” ECF No.

6 at pp. 6-7. Although she includes this claim in Count Two, it does not appear to be directed at any particular

Defendant.

supervise and discipline so as to prevent violations of constitutional rights by his or her

subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski,

922 F.2d 1097, 1120 Gd Cir. 1990). Moreover, it is “well established that the filing of a

grievance is not sufficient to show the actual knowledge necessary for a defendant to be found

personally involved in the alleged unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 782

(W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed. Appx. 99, 104 (3d Cir. 2013) (“[A]n

officer’s review of, or failure to investigate, an inmate’s grievances generally does not satisfy the

requisite personal involvement.”). Rather, a supervisor-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 plaintiff's 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 v. Luzerne Cty. Juvenile Det.

Ctr., 372 F.3d 572, 586 (3d Cir. 2004).

Most of Mowery’s claims in the instant case focus on Overmyer’s failure to uphold her

misconduct appeal and alleged failure to monitor, supervise, and discipline her subordinates.

From a review of the factual averments offered in support of those claims, it is apparent that

Mowery is attempting to hold Overmyer responsible for the unconstitutional actions of other

individuals based entirely upon her supervisory role in the prison system and her response to

Mowery’s appeal. As described above, this type of averment is insufficient to establish personal

involvement in the deprivation of a constitutional right. See, e.g., Mincy v. Chmielsewski, 508

Fed. Appx. 99, 104 (3d Cir. 2013) (‘[A]n officer’s review of, or failure to investigate, an

inmate’s grievances generally does not satisfy the requisite personal involvement.”); Kloss v.

SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018) (allegation that supervisory

defendant was “made aware of several issues of the plaintiff's and . . . failed to help him” is

insufficient to state a claim for reliefs) participation in an administrative appeal process).

Mowery’s claim that Overmyer failed to properly train her subordinates fares no better.

Such claims raise “difficult problems of proof,” Board of County Com’rs of Bryan County, Okla.

v. Brown, 520 U.S. 397, 406 (1997), because they are “a step removed from the constitutional

violation resulting from that failure.” Douglas v. Brookville Area Sch. Dist., 836 F.Supp.2d 329,

364 (W.D. Pa. 2011). See also Okla. City v. Tuttle, 471 U.S. 808, 822 (1985) (describing “a

‘policy’ of ‘inadequate training’” as “far more nebulous, and a good deal further removed from

the constitutional violation,” than other policies). Thus, an official’s “culpability for a

deprivation of [constitutional] rights is . . . at its most tenuous” where a § 1983 claim turns on a

failure to train or failure to act. Connick, 563 U.S. at 60-61. Moreover, to demonstrate

deliberate indifference based on a failure to train, the plaintiff must ordinarily show a “pattern of

similar constitutional violations by untrained employees.” Thomas v. Cumberland Cnty, 749

F.3d 217, 222 (3d Cir. 2014) (quoting Connick v. Thompson, 563 U.S. 51 (2011)). Mowery has

made no attempt to satisfy this burden. As such, her failure to train claims must also be

dismissed.

C. Medical privacy claim (Counts One and Seven)

In addition to her supervisory liability claims, Mowery alleges that Overmyer violated

her Fourteenth Amendment right to privacy and medical confidentiality by requiring medical

personnel conducting sick call visits to examine RHU patients “at [the cell] door where everyone

in the RHU can hear.” ECF No. 6 at p. 17. Mowery maintains that “privacy is always

disregarded” and “there is not even an attempt for discretion” in such circumstances. Jd. By

11

way of example, she mentions that a “C.O. stood next to the medical practitioner the entire time

Plaintiff was speaking of breast cancer” on an unidentified occasion. Jd. No other supporting

facts are alleged.

In Doe v. Delie, 257 F.3d 309, 315-18 (3d Cir. 2001), the Court of Appeals for the Third

Circuit recognized that the Fourteenth Amendment affords a prisoner the right to privacy in his

or her medical information. However, because “a prisoner does not enjoy a right of privacy in

his medical information to the same extent as a free citizen,” her “constitutional right is subject

to substantial restrictions and limitations in order for correctional officials to achieve legitimate

correctional goals and maintain institutional security.” Jd. at 317. Thus, a prisoner’s right to

privacy in her medical information “may be curtailed by” a policy that is “reasonably related to a

legitimate penological interest.” Jd. (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).

Although Defendants do not address this issue, the Court finds that Mowery has failed to

state a cognizable claim. Most critically, Mowery has failed to explain how she has been

personally injured by the offending policy. Her limited factual averments consist of vague and

conclusory accusations that her own rights and those of “every prisoner residing in the RHU”

have been repeatedly violated. However, an inmate lacks standing to assert complaints on behalf

of other inmates, Karolski v. Beaver County, 2016 WL 6647914, at *2 (W.D. Pa. Nov. 10, 2016),

and her lone personal averment — that she once had to “speak of breast cancer” in the presence of

a corrections officer — lacks the factual specificity necessary to state a plausible claim for relief.

ECF No. 6 at p. 17. Because the facts alleged do not support that Mowery, individually, has

sustained a cognizable injury as a result of the alleged policy of conducting medical visits at her

cell door, dismissal is appropriate. See Sides v. Wetzel, 2021 WL 8017811, at *12-13 (W.D. Pa.

Nov. 2, 2021); Preziosi v. Nicholson, 2021 WL 4442840 (W.D. Pa. Sept. 28, 2021).

19

D. Due process claim (Count Eight)

In Count Eight of her complaint, Mowery arrives at the heart of her allegations: that Ace,

Dugan, and DeForce violated her constitutional right to due process during a misconduct

investigation that resulted in a disciplinary sanction of seven months in the RHU. According to

Mowery, Defendants refused to let her see any evidence relating to the investigation, threatened

her with criminal charges if she refused to confess, and forced her to sign a written admission of

guilt. Mowery maintains that this violated her procedural due process rights to examine the

evidence against her and defend against the associated charges.

The Fourteenth Amendment of the United States Constitution provides that “[n]o State

shall .. . deprive any person of life, liberty, or property, without due process of law.” The United

States Supreme Court has mandated a two-part analysis of Fourteenth Amendment procedural

due process claims. Ingraham v. Wright, 430 U.S. 651, 672 (1977). First, the reviewing court

must determine “whether the asserted individual interests are encompassed within the . . .

protection of ‘life, liberty or property.’” Jd. Ifa protected interest is implicated, the court must

“decide what procedures constitute ‘due process of law.’” Jd. If no protected interest is

implicated, however, then “it is unnecessary to analyze what procedures were followed when an

alleged deprivation of an interest occurred.” Harris v. Hines, 2017 WL 4119743, at *5 (M.D.

Pa. Sept. 18, 2017).

Mowery focuses heavily on the second part of this analysis, emphasizing the alleged

defects in the procedures that were utilized throughout her investigation and disciplinary hearing.

However, as noted above, those procedural defects can only support a due process claim if the

hearing also resulted in the deprivation of a legally cognizable liberty interest. Huertas v.

Secretary Penna. Dep’t of Corr., 533 Fed. Appx. 64, 66 (3d Cir. 2013). A legally cognizable

13

liberty interest exists only where some punishment or condition to which the prisoner is

subjected “imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin vy. Conner, 515 U.S. 472, 484 (1995). “[C]onfinement in

administrative or punitive segregation will rarely be sufficient, without more, to establish the

kind of ‘atypical’ deprivation of prison life necessary to implicate a liberty interest.” Smith v.

Mensinger, 293 F.3d 641, 653 (3d Cir. 2002). Thus, courts have routinely held that sanctions

such as Mowery alleges in this case — seven months in the RHU — fall short of this standard. See,

e.g., Smith, 293 F.3d at 653 (disciplinary sanction of seven months in administrative confinement

“implicates no constitutional right and therefore cannot overcome the hurdle erected by the

holding in Sandlin’’); Nifas v. Beard, 374 Fed. Appx. 241, 244 (3d Cir. 2010) (“[C]onfinement in

AC for 178 days and a 90-day placement on the RRL does not amount to an ‘atypical and

significant hardship’ when compared to the ordinary incidents of prison life, and thus, Nifas has

no protected liberty interest.”); Sanchez v. Walton, 2019 WL 249537, at *2-3 (E.D. Pa. Jan. 16,

2019) (confinement in segregation “is insufficient to establish that [plaintiff] was deprived of a

liberty interest”). In the absence of a protected liberty interest, any defects in the investigation

and hearing relating to misconduct charge against Mowery do not, as a matter of law, support an

actionable Fourteenth Amendment due process claim.

E. Retaliation claim (Count Nine)

Mowery next alleges that Overmyer and two non-Defendants engaged in unlawful

retaliation by refusing to shorten the length of her disciplinary sanction because of her past

protected activity. ECF No. 6 at p. 30. Mowery alleges that, while conducting a 90-day review

of her RHU placement, Overmyer and other individuals on the PRC ignored her “pristine track

record and good behavior” and instead focused on her use of the grievance system. Jd. She

1A

claims that Overmyer started the review by asking Mowery, “Do you know what the grievance

system is for?” Jd. Another individual then informed Mowery that “she does not have her vote

because she does not believe Plaintiff is remorseful [or] she would not be submitting so many

grievances contending the matter.” /d. at 31. On another occasion, Overmyer responded to

Mowery’s plea to reduce her disciplinary sanction by asking her if she had complained to the

DOC Central Office about RHU conditions and policies. Id.

To establish illegal retaliation for engaging in protected conduct, a plaintiff must allege

that: (1) her conduct was constitutionally protected; (2) she suffered an adverse action at the

hands of prison officials; and (3) her constitutionally protected conduct was a substantial or

motivating factor in the decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422

(3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (d Cir. 2001)). An “adverse

action” is one that would “deter a person of ordinary firmness” from exercising his First

Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (quoting Suppan v.

Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). To be actionable, the adverse action “need not be

great” but “must be more than de minimis.” McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006).

This is an objective inquiry. See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012).

While Mowery’s allegations loosely track the outline of a potential retaliation claim, they

fall short of the factual specificity required to elevate that claim to the realm of plausibility. As

an initial matter, while Mowery generally avers that she engaged in protected activity by filing

grievances prior to her PRC review, she has failed to identify the specific grievances at issue,

state their date relative to any alleged retaliatory action, or describe their subject matter and

against who they were filed. Absent such details, her pleading fails to support a plausible

inference that a causal connection exists between her protected activity and the PRC’s denial of

14

her request for a reduced sentence. Nor can the Court determine, under the facts alleged,

whether the PRC committee’s decision amounted to an adverse action and to what extent that

decision can be attributed to Overmyer, the lone Defendant on that committee. Although

Mowery may be able to close these gaps by way of amendment, her complaint, as currently

pleaded, fails to state a claim.

F. Assorted constitutional violations (Count Ten)

Mowery rounds out her complaint by invoking several additional constitutional

amendments, none of which support a cognizable claim. She first suggests that Defendants

violated the Fifth Amendment by forcing her to sign a coerced admission and subjecting her to a

second disciplinary hearing based on the same incident. However, it is axiomatic that “[t]he

limitations of the [F]ifth [A]mendment restrict only federal governmental action...” Nguyen v.

U.S. Catholic Conference, 719 F.2d 52, 54 (3d Cir. 1983). There is nothing to suggest that any

of the Defendants are federal actors. Consequently, Plaintiff's Fifth Amendment claim must be

dismissed. See, e.g., Leventry v. Watts, 2007 WL 1469038, at *2 (W.D. Pa. May 17, 2007)

(“[T]he Fifth Amendment restricts the actions of federal officials, not state actors.”); Kopchinski

v. Green, 2006 WL 2228864, at *1 (E.D. Pa. Aug. 2, 2006) (dismissing plaintiff's Fifth

Amendment claims because the defendants were state actors).

Mowery also alleges that Defendants violated the Sixth Amendment by failing to provide

her with an attorney for her disciplinary hearing. However, “the rights due under the Sixth

Amendment apply only in criminal prosecutions, not in prison disciplinary proceedings.”

Stevens v. Gatto, 2021 WL 5802492, at *3 (W.D. Pa. Dec. 7, 2021) (citing sources omitted).

Similarly, her attempt to forge a Seventh Amendment claim from a perceived “right to privacy

and confidentiality during/relating to medical matters” is patently frivolous. See U.S. Const. am.

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VII (providing, in full, that: “In suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury,

shall be otherwise reexamined in any court of the United States, than according to the rules of the

common law.”).

Finally, Mowery maintains that her stay in the RHU violated the Eighth Amendment’s

prohibition against cruel and unusual punishment because it was “excessively long” and

stemmed from an “unfair, mistreated investigation.” ECF No. 6 at p. 35. “For an alleged

deprivation to rise to the level of an Eighth Amendment violation, it must result in the denial of

the minimal civilized measure of life’s necessities.” Betts v. New Castle Youth Dev. Ctr., 621

F.3d 249, 256 (3d Cir.2010) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). Courts have

widely held that conditions in the RHU do not satisfy this standard. See, e.g., Williams v.

Armstrong, 566 Fed. Appx. 106, 109 (3d Cir. 2014) Ginmate’s 112 day stay in the RHU where he

was not denied any of life’s necessities did not violate the Eighth Amendment); Gibson v. Lynch,

652 F.2d 348 (3d Cir. 1981) (incarceration in solitary confinement for 90 days did not violate the

Eighth Amendment); Griffin v. Vaughn, 112 F.3d 703, 709 (placement in administrative custody

for 15 months did not violate the Eighth Amendment).

In short, Mowery has failed to plead a viable claim based on alleged violations of the

Fifth, Sixth, Seventh, or Eighth Amendments. Count Ten of her complaint must be dismissed.

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

2002). This instruction is equally applicable to pro se litigants and those represented by counsel.

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, because Mowery has not yet

had the opportunity to amend her claims, the Court will permit her to file a curative amendment,

if so desired, within thirty days of the filing of this Memorandum Opinion. Failure to do so will

result in a final order dismissing this case, with prejudice, for the reasons set forth herein.

VI. Conclusion

For the foregoing reasons, Defendants’ motion to dismiss [ECF No. 20] is granted.

Mowery’s complaint is dismissed, without prejudice. If Mowery wishes to file an amended

complaint, she may do so on or before July 5, 2023. Failure to file an amended complaint on or

before that date will result in a final order dismissing this action, with prejudice.

Chief United States Magistrate Judge

Dated: June 2, 2023

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