DAVIS v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

KEVIN DAVIS, )

)

Plaintiff, ) Civil Action No. 2: 23-cv-0208

)

v. )

) United States Magistrate Judge

JOHN WETZEL, ROBERT ) Cynthia Reed Eddy

HAMMOND, E. ARMEL, S. )

ERICKSON, and JOHN DOES 1 and 2, )

)

Defendants. )

MEMORANDUM OPINION1

CYNTHIA REED EDDY, United States Magistrate Judge

Defendants John Wetzel, Robert Hammond, Eric Armel, and Seth Erickson (collectively,

the “DOC Defendants”) have moved to dismiss the Amended Complaint under Federal Rules of

Civil Procedure 12(b)(6). (ECF No. 22). For the reasons that follow, the motion will be granted in

part and denied in part.

I. Procedural History

Plaintiff, Kevin Davis, a state prisoner in the custody of the Pennsylvania Department of

Corrections (“DOC”) incarcerated at SCI-Fayette, initiated this pro se civil rights action on

February 9, 2023 by submitting a Complaint for Violation of Civil Rights (Prisoner Complaint).

(ECF No. 1). The Complaint was lodged as it did not come with a Motion for Leave to proceed in

1 In accordance with the provisions of 29 U.S.C. § 636(c)(1), all served parties have

voluntarily consented to have a United States Magistrate Judge conduct proceedings in this case,

including trial and the entry of a final judgment. See ECF Nos. 2 and 16. The only parties who

have not been served are two unidentified John Doe defendants. While unserved defendants

generally must also consent for a magistrate judge to exercise jurisdiction based on “consent of

the parties” under that statute, see Williams v. King, 875 F.3d 500 (9th Cir. 2017), this Court is

unaware of any decision holding that consent is necessary from defendants who are both unserved

and unidentified.

forma pauperis (“IFP Motion”) or the filing fee. On March 1, 2023, the filing fee was paid in full

(ECF No. 5) and the Complaint was formally filed on March 9, 2023. (ECF No. 6).

The DOC Defendants waived service (ECF No. 11) and moved to dismiss the Complaint.

(ECF No. 12). In response, Davis filed an Amended Complaint (ECF No. 20), which remains his

operative pleading.

Davis brings his claims pursuant to 42 U.S.C. § 1983, alleging violations of his rights under

the First, Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments, and 42 U.S.C. § 1985(3).

As relief, Davis seeks “compensatory, exemplary, and consequential damages” against each of the

Defendants, jointly and severally, as well as injunctive relief requesting that the Court order his

return to his home region, as well as making him eligible for programs aimed toward parole release,

such as vocational and job readiness training. Amended Complaint, Prayer for Relief (ECF No. 20

at p. 17).

Defendants are officials and employees of the PA DOC: John Wetzel, former Secretary of

the DOC; Robert Hammond, Treatment Program Manager for the DOC; E. Armel, former

Superintendent of SCI-Fayette; S. Erickson, Unit Manager at SCI-Fayette; and two DOC John Doe

Defendants. All defendants are named only in their individual capacities.

The named DOC Defendants have moved to dismiss the Amended Complaint (ECF No.

22) and Davis has filed a response in opposition. (ECF Nos. 25, 26). The matter is now ripe for

resolution.

II. Jurisdiction

The Court has federal jurisdiction over the Amended Complaint as it asserts claims under

42 U.S.C. §§ 1983 and 1985(3). Venue is proper under 28 U.S.C. § 1391(b) as the events giving

rise to this action occurred in Fayette County, which is within the territorial boundaries of the

United States District Court for the Western District of Pennsylvania, 28 U.S.C. § 118(c), and all

Defendants are residents of the Commonwealth of Pennsylvania.

III. Factual Background2

In general, the factual allegations of the Amended Complaint fall into three categories: (i)

the DOC’s juvenile lifer transfer “policy/practice/procedure”; (ii) coal ash contamination at SCI-

Fayette; and (3) retaliatory actions taken by the DOC Defendants.

A. The Juvenile Lifer Transfer Policy/Practice/Procedure

The crux of Davis’s allegations is that the DOC has a policy/practice/procedure to transfer

“juvenile lifers” to their home region after resentencing, that Davis, as a “juvenile lifer,” should

have been transferred to his home region under this policy/practice/procedure, and that despite

being resentenced, DOC refuses to transfer him to his home region. Davis contends there is no

rational basis for the difference between the treatment he has received and the treatment received

by other similarly situated juvenile lifers. Davis also alleges the refusal to transfer him is in

retaliation for engaging in protected activity.

In September 1977, Davis was found guilty of first degree murder and subsequently

sentenced to mandatory life without the possibility of parole. At the time of the offense, Davis

was seventeen years old. He has been incarcerated continuously since his arrest in 1977 and is

considered a “juvenile lifer.” After the rulings of the Supreme Court of the United States in Miller

2 The factual background is drawn from the allegations of the Amended Complaint, which

this Court must accept as true when considering the instant motion to dismiss. The Court has taken

judicial notice of Davis’s pending lawsuit filed against members of the Pennsylvania Parole Board,

Civ. Act. No. 2: 23-cv-0578, filed in this Court, and has incorporated some of the factual

allegations from the Second Amended Complaint filed in that case. (ECF No. 27). A court may

take judicial notice under Fed. R. Evid. 201 of documents filed in other court proceedings because

they are matters of public record. Easley v. Reuberg, 2021 WL 3639734, at *3, n.1 (W.D. Pa.

2021).

v. Alabama and Montgomery v. Louisiana, Davis was resentenced on April 16, 2018, to a term of

40 years to life. See also Am. Compl., ¶ 34.

According to the Amended Complaint, in 2012, after the Supreme Court decisions in Miller

and Montgomery, “Mr. Wetzel and unknown staff instituted written/unwritten policies, practices,

and procedures to help/assist juvenile lifers transition back to society.” Am. Comp., ¶ 18. For

example, juvenile lifers were assisted in obtaining Social Security cards, were provided

counseling, were provided clothing and shelter, and halfway houses were prepared. Id. ¶¶ 19-20.

Additionally, Wetzel “approved/implemented policies, practices, and procedures to make juvenile

lifers eligible for programs aimed toward parole release, such as vocational and job readiness

training.” Id. ¶ 21.

Defendant Hammond, Treatment Program Manager Bureau of Treatment Services, and

John Doe individuals met with and spoke via video conference to the juvenile lifers during the

entire re-sentencing process. Id. ¶ 22. Defendant Armel participated in many of these meetings.

He spoke regarding the “policies, practices and procedures approved and implemented by Mr.

Wetzel, and he agreed with what Mr. Wetzel put in place for the juvenile lifers.” Id. ¶¶ 23-24.

Defendant Armel was present during a meeting when Davis asked Defendant Hammond to explain

the “policies, practices and procedures” for juvenile lifers who had completed the programs.

According to Davis, Defendant Hammond replied, “after you’re re-sentenced, you’ll be returned

to your home region to continue rehabilitation/complete your transition for society.” Id. ¶ 25.

Despite being resentenced in April 2018, Davis has not been returned to his home region.

On August 8, 2022, Davis wrote DOC Secretary George Little, who had replaced Defendant

Wetzel as Secretary, inquiring why he had not been returned to his home region like the other

juvenile lifers who were similarly situated had been. Id. ¶ 40-44.3 W. Bowers, Staff Assistant at

SCI-Fayette, responded to Davis’s inquiry and suggested that Davis seek an “incentive-base

transfer,” which Davis contends was not in accordance with what had been conveyed to the

juvenile lifers during the meetings conducted by Defendant Hammond. Id. ¶¶ 51 – 52.

Davis then filed Grievance No. 997172, which included claims related to his return to his

home region, the coal ash contamination at SCI-Fayette, and retaliation for engaging in protected

activity. The next day, Defendant Erickson, Unit Manager, interviewed Davis and asked if Davis

had a copy of the policy on returning juvenile lifers to their home regions after resentencing, to

which Davis replied that he did not. On October 12, 2022, Defendant Erickson denied Grievance

No. 997172. In denying Hammond’s claim about not being returned to his home region, Defendant

Erickson wrote, “There is no policy in place that moves a juvenile lifer to his home region after

being resentenced.” Id. ¶ 63. Davis’s grievance was denied on appeal by Defendant Armel who

also suggested that Davis seek an incentive-based transfer. Davis contends that Defendant Armel

knew an incentive-based transfer was not what Defendant Wetzel had approved and “implemented

for the juvenile lifers.” Id.

B. Coal Ash and Contaminated Water

Davis also contends that by not transferring him to his home region, he faces “imminent

danger” from the “toxic coal ash that contaminates the SCI Fayette” and from the “water that is

used to prepare the food at the SCI-Fayette, and that Plaintiff drinks.” Resp. at p. 19. He contends

“by virtue of his chronic illness (diabetes), he was in imminent danger/risk at the SCI-Fayette of

3 Plaintiff also stated that by remaining at SCI-Fayette he was “in imminent danger /risk . . .

of having a heart attack/stroke due to the toxic coal ash that contaminates the institution.” Am.

Compl., ¶ 44. The allegations about the conditions of confinement are addressed in a separate

section of this Memorandum Opinion.

having a heart attack/stroke due to the toxic coal ash that contaminates the institution. . . . .” Am.

Compl., ¶ 44. In Grievance No. 997172 , Plaintiff addressed, among other things, Davis’s concerns

about being exposed to coal ash. In denying the grievance, Defendant Erickson stated, “There is

no known toxic chemical coming from the ground of SCI-Fayette, and SCI-Fayette’s medical is

fully equipped to deal with any diabetic situation.” Id. ¶ 64.

Davis contends that Defendant Erickson’s grievance denial is contrary to the “policies,

practices and customs for the officers at the SCI Fayette consume only bottle water and notices

delivered to the employees at SCI Fayette of pollutants. . . .” Id. Additionally, according to the

Amended Complaint, Defendant Erickson had a copy of a news article posted on the bulletin board

in his office relating to the risk/harm that the coal ash posed to residences and property in LaBelle,

Luzerne Township, Fayette County. Id.

In support of his coal ash and contaminated water-related claims, Davis refers to Holly

Rice, et al. v. First Energy Corp., Case No. 2:17-cv-489 (W.D.Pa), a class action case filed in this

Court in which private property owners and/or residents of private property in LaBelle, Luzerne

Township, Fayette County, allege dust and coal combustion byproducts have migrated onto their

properties resulting in personal injury and property damage. Am. Compl., ¶ 64. He also refers to

an investigation in which the Abolitionist Law Center requested the medical records of prisoners

at SCI-Fayette to determine who “all suffered from the effects of the coal ash, its fugitive dust and

the ground water.” Id., ¶¶ 72-73. According to the Amended Complaint, “Mr. Armel and his

agents, officers and employees refused to comply with the request . . . and the court ordered the

SCI Fayette to pay the Abolitionist Law Center $118,458.00 for refusing to disclose the medical

records of the inmates at the SCI Fayette who were exposed to the toxic coal ash and consumed

the water.” Id. See Uniontown Newspapers, Inc. v. Pennsylvania Department of Corr., 243 A.3d

19 (Pa. 2020) (granting assessment of sanctions and attorneys’ fees).

C. Retaliation4

The last category of allegations involves Davis’s claims that the DOC Defendants have

engaged in a “pattern of retaliation” that began in 2017, when he asked whether the “programs

approved and implemented by Mr. Wetzel” included medical treatment for Hepatitis C for the

juvenile lifers. Am. Compl., ¶ 27. When “Wetzel’s staff at the SCI-Fayette responded negatively,”

Davis filed Grievance 664288. Am. Compl., ¶ 29. He filed later a federal lawsuit in this Court, 2:

17-cv-1293, which was transferred to the Middle District of Pennsylvania, Case No. 1:18-cv-

00804, relating to the lack of medical care for treatment of Hepatis C. In response to the grievance

and lawsuit, Davis alleges a “pattern of retaliation ensued.” Am. Compl., ¶ 67. Specifically, Davis

contends that he has been denied participation in “Mr. Wetzel’s approved/implemented” policies,

practices, and procedures “for the juvenile lifers transition back to society” in retaliation for

engaging in protected activity. Am. Compl., ¶¶81 – 84.5

4 In the Amended Complaint, Davis refers to Grievances 664288, 717576, 732545, and

997112 but does not attach copies of these grievances. See Am. Compl., ¶¶ 29, 33, 62, and n. 3.

The Court notes that the DOC Defendants attached copis of Grievance Nos. 717576 and 997172

to their brief in support of their original motion to dismiss (ECF Nos. 13-1, 13-2), but that motion

was denied as moot once the Amended Complaint was filed and, as a result, the Court has reviewed

no documents attached to that brief. The DOC Defendants have now attached a copy of Grievance

No. 732545 to their brief in support of the pending motion to dismiss. (ECF No. 23-1). On a motion

to dismiss, a district court may only consider an “undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on that document,”

Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993), but

otherwise it should convert the motion to dismiss into a motion for summary judgment under

Federal Rule of Civil Procedure 12(d). Hickey v. Univ. of Pittsburgh, 81 F.4th 301, n. 5 (3d Cir.

2023). At this early juncture, it is unclear what grievances Davis’s claims are based on. Thus, in

an abundance of caution, the Court has not considered the attached exhibit as the Court did not

convert the motion to dismiss into a motion for summary judgment under Fed.R.Civ.P. 12(d).

5 Davis also alleges that his request for parole was denied by the Parole Board in retaliation

for his filing of Grievance No. 997172 and that he was told by an unidentified parole staff member

IV. Standard of Review6

A motion to dismiss under 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. 1983). In order “[t]o

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556).

“Conclusory allegations of liability are insufficient” to survive a motion to dismiss. Garrett v.

Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678–79). To determine

whether a complaint survives a motion to dismiss, a court identifies “the elements a plaintiff must

plead to state a claim for relief,” disregards the allegations “that are no more than conclusions and

thus not entitled to the assumption of truth,” and determines whether the remaining factual

allegations “plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d

Cir. 2012). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

that any future requests would also be denied if he filed additional grievances. Am. Comp., ¶¶ 58

– 61.

6 Because Davis is proceeding pro se, his allegations, “however inartfully pleaded,” must be

held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404

U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of

litigation, a district court should construe all allegations in a complaint in favor of the complainant.

Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). Despite this liberality, pro se litigants are not relieved

of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor

v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197,

2102 (10th Cir. 1996).

The factual and legal elements of a claim should be separated, with the court accepting all well-

pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629

F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside,

578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether

a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support

the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974)

(internal quotations omitted).

Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe

all reasonable inferences in favor of the nonmoving party. Doe v. Univ. of the Scis., 961 F.3d 203,

208 (3d Cir. 2020). A court may consider “the allegations contained in the complaint, exhibits

attached to the complaint and matters of public record” as well as “undisputedly authentic

document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims

are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the

complaint also may be considered if the plaintiff’s claims are based on those documents. Id.

(citations omitted). In addition, a district court may consider indisputably authentic documents

without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis, 372

F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004) (in

resolving a motion to dismiss under Rule 12(b)(6), a court generally should consider “the

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

documents that form the basis of a claim.”).

The United States Court of Appeals for the Third Circuit has held that, in civil rights cases,

a court must give a plaintiff the opportunity to amend a deficient complaint - whether or not the

plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so

would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482

F.3d 247, 251 (3d Cir. 2007). “However, we need not provide a plaintiff with leave to amend if

amendment would be inequitable or futile.” Thompson v. Police Dep’t of Philadelphia, 2011 WL

4835831, at *2 (E.D. Pa. Oct. 12, 2011) “Where a claim is frivolous, amendment is necessarily

futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable

basis in either law or in fact.” Id. (internal citation and quotation marks omitted).

V. Discussion

A. Claims Brought Under 42 U.S.C. § 1983

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States . . . 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 . . . .

42 U.S.C. § 1983. The Supreme Court of the United States has held that section 1983 “is not itself

a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by

those parts of the United States Constitution and federal statutes that it describes.” Baker v.

McCollan, 443 U.S. 137, 144 n.3 (1979). To be afforded remedy in federal court, plaintiffs must

prove two elements. First, they must show a “violation of a right secured by the Constitution and

laws of the United States.” West v. Atkins, 487 U.S. 42, 48 (1988). Second, they must “show that

the alleged deprivation was committed by a person acting under color of state law.” Id. at 48. The

DOC Defendants do not dispute that at all times they were acting under color of state law.

Davis argues that the DOC Defendants violated his constitutional rights under the First,

Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments. These arguments will be addressed

in turn.

1. Lack of Personal Involvement

The DOC Defendants contend that Defendants Wetzel, Hammond, Armel, and Erickson

should be dismissed for lack of personal involvement in any of the alleged violations. Davis, not

surprisingly, responds that the factual allegations in the Amended Complaint are more than

sufficient to withstand a Twombly challenge on all his claims.

There are “two general ways” in which a supervisor-defendant may be liable: (1) where

the supervisor established a policy, custom, or practice that caused the harm; or (2) where the

supervisor personally participated in the constitutional violation. The United States Court of

Appeals for the Third Circuit explained these two general types of supervisory liability as follows:

First, liability may attach if they, “with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372

F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford

Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be

personally liable under § 1983 if 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 the subordinate’s unconstitutional conduct. Id. (citing Baker

v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995) ). “Failure to” claims—

failure to train, failure to discipline, or, as in the case here, failure to supervise—

are generally considered a subcategory of policy or practice liability.

Barkes v. First Correctional Med., Inc., 766 F.3d 307, 316-19 (3d Cir. 2014), reversed on other

grounds by Taylor v. Barkes, 575 U.S. 822 (2015).

a. Juvenile Lifer Release Program

The DOC Defendants argue the factual allegations of the Amended Complaint do not

establish personal involvement because DOC had no custom or practice regarding releasing

juvenile lifers after resentencing to their home regions. Davis responds that Defendant Wetzel

implemented a juvenile lifer transfer policy/practice/procedure and the DOC Defendants knew

such a policy/practice/procedure existed.

The Amended Complaint does not contain broad and conclusory allegations against the

DOC Defendants as a group, but rather it delineates individual conduct for each defendant. For

example, according to the Amended Complaint:

* Defendant Wetzel implemented a juvenile lifers transfer

“policy/practice/procedure;”

* Defendant Hammond met with and conveyed to the juvenile lifers the

“policy/practice/procedure” that Defendant Wetzel had implemented;

* Defendant Armel spoke at a number of meetings with the juvenile lifers regarding

the “policy/practice/procedure” implemented by Defendant Wetzel; and

* Defendants Armel and Erickson both knew of the juvenile lifer transfer

policy/program/procedure and yet both denied Davis’s grievance stating no such

policy existed.

The Court finds that for pleading purposes, Davis has adequately alleged a policy existed

on which he basis his claims and that each of the DOC Defendants was personally involved in

conduct that forms at least part of the basis for his claims.7 The Court finds that it is plausible that

discovery will reveal that Defendant Wetzel implemented a “policy/program/procedure” to

transfer juvenile lifers to their home regions after resentencing. Because this is a fact-intensive

inquiry, the question of whether there was such a “policy/program/procedure” will be developed

during fact discovery and the DOC Defendants are free to raise any related arguments on summary

judgment.

7 To the extent that the DOC Defendants argue that neither Defendant Hammond nor

Defendant Armel were in a position to effectuate these transfers in conformity with this alleged

policy, that argument should be fleshed out during discovery.

b. Coal Ash Contamination

The DOC Defendants argue that Davis has not established that Wetzel, Armel, or Erickson

were aware of or involved in the “coal ash situation.” Liberally construing the Amended

Complaint and viewing its allegations in a light most favorable to Davis, the Court finds the facts

alleged support inferences that reports received over an extended period notified Defendants

Wetzel, Armel, and Erickson of an ongoing threat to the health and safety of Davis and other

inmates at SCI-Fayette. These facts, if ultimately proven, may be sufficient to support a finding

of personal involvement on the part of these three Defendants.

c. Denial of Grievance No. 997172

In 2022, Davis filed Grievance No. 997172 raising the same issues that are the basis of

Davis’s claims in this lawsuit: a refusal to transfer him, the presence of coal ash, and retaliation.

Defendant Erickson denied the grievance and Defendant Armel denied the grievance on appeal.

The DOC Defendants argue that Defendants Erickson and Armel’s involvement in the grievance

process is not enough to establish personal liability.

Typically, a plaintiff grieving matters to supervisors and administrators is not enough to

impose personal knowledge of the purported wrongdoing. See Rode v. Dellarciprete, 845 F.2d

1195, 1208 (3d Cir. 1988). In this case, however, Davis alleges ongoing constitutional violations

that he made Defendants Erickson and Armel aware of through the filing of an administrative

grievance. Courts have explained that a plaintiff states a claim by alleging that supervisory

defendants who reviewed a grievance in which the plaintiff alleges an ongoing violation is

personally involved in that violation because they confront a situation that they can remedy. See

Whitehead v. Rozum, No. 11-102, 2012 WL 4378193, at *2 (W.D.Pa. Aug 7, 2012), report and

recommendation adopted by 2012 WL 4370929 (W.D.Pa. Sept. 24, 2012).

In this case, because Davis alleges ongoing purported constitutional violations that

Defendants Erickson and Armel were made aware of through his administrative grievance, the

Court finds that the factual allegations of the Amended Complaint are sufficient to support the

personal involvement of Defendants Erickson and Armel.

2. First Amendment Retaliation Claim

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press, or the

right of the people peaceably to assemble, and to petition the Government for

redress of grievances.

U.S. Const. amend. I. It is well settled that “government actions, which standing alone, do

not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part

by a desire to punish an individual for exercise of a constitutional right.” Mitchell v. Horn, 318

F.3d 523, 530 (3d Cir. 2003) (quoting Allah v. Seiverling, 229 F.3d 220, 224–25 (3d Cir. 2000)).

In order to state a prima facie case of retaliation, a prisoner / plaintiff must demonstrate “(1)

constitutionally protected conduct, (2) an adverse action by prison officials sufficient to deter a

person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between

the exercise of his constitutional rights and the adverse action taken against him.” Williams v. Secy

PA Dep’t of Corr., 566 F. App’x 113, 117 (3d Cir. 2014) (quoting Mitchell, 318 F.3d at 530).

Although there is not a heightened pleading standard in civil rights cases and liberal standards are

to be applied to pro se pleadings, a § 1983 complaint must still comply with the Federal Rules of

Civil Procedure, and must contain at least a modicum of factual specificity, identifying the

particular conduct of each defendant alleged to have harmed the plaintiff, so that a defendant has

adequate notice to frame an answer. The requisite causal connection can be shown by “(1) an

unusually suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.”

Id. (quoting Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

The DOC Defendants move to dismiss Davis’s First Amendment retaliation claims arguing

that Davis has not pled sufficient facts to give rise to a retaliation claim under the law. Davis

responds that the allegations in the Amended Complaint show he has been treated differently than

similarly situated juvenile lifers in retaliation for engaging in protected activities.

The DOC Defendants “concede that as a general proposition, the filing of grievances or

lawsuits, would constitute protected conduct,” Br. at p. 9, but argue that the allegations in the

Amended Complaint related to a “pattern of retaliation” fail to state a claim.

The Court finds that the Amended Complaint sets forth sufficient facts to state plausible

First Amendment retaliation claims against the DOC Defendants. While the Court views these

retaliation claims with skepticism, at this early stage of the litigation, accepting the facts alleged

in the Amended Complaint as true and construing them in the light most favorable to Davis, the

Court finds that Davis has alleged enough to create plausible retaliation claims to be allowed to

continue beyond the DOC Defendants’ motion to dismiss. Although Davis’s retaliation claims

may ultimately not succeed on the merits, they are not “indisputably meritless,” “fantastic or

delusional,” “of little or no weight,” or “trivial.” Neitzke v. Williams, 490 U.S. 325, 327 (1989).

3. Fourth Amendment Claim

The Fourth Amendment to the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

U.S. Const. amend. IV. While the Amended Complaint states that Davis has brought a Fourth

Amendment claim, there are no factual averments in the Amended Complaint addressing a Fourth

Amendment claim. The DOC Defendants ask that any Fourth Amendment claim be dismissed for

failure to state a claim. Br. at p. 15. (ECF No. 23). Davis does not respond to this argument.

It is well-settled that “prisoners have no legitimate expectation of privacy . . . and the Fourth

Amendment’s prohibition on unreasonable searches [and seizures] does not apply in prison cells.”

Hudson v. Palmer, 468 U.S. 517, 530 (1984). The Amended Complaint is void of any allegations

which state a plausible claim under the Fourth Amendment. Leave to amend will be denied as

futile.

4. Fifth Amendment Claim

The Fifth Amendment to the U.S. Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service in time of War or public danger; nor

shall any person be subject for the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall private

property be taken for public use, without just compensation.

U.S. Const. amend. V. While the Amended Complaint states that Davis has brought a Fifth

Amendment claim, there are no factual averments in the Amended Complaint addressing a Fifth

Amendment claim. The DOC Defendants ask that any Fifth Amendment claim be dismissed for

failure to state a claim. Br. at p. 15. (ECF No. 23). Davis does not respond to this argument.

At best, it would appear that Davis is attempting to bring a due process claim under the

Fifth Amendment. But “the due process clause under the Fifth Amendment only protects against

federal governmental action and does not limit the actions of state officials.” Caldwell v. Beard,

324 F. App'x 186, 189 (3d Cir. 2009) (citing Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir.

1997)). In other words, a due process claim under the Fifth Amendment only applies to federal

officials. See Bergdoll v. City of York, 515 F. App'x 165, 170 (3d Cir. 2013) (citing Nguyen v. U.S.

Cath. Conf., 719 F.2d 52, 54 (3d Cir. 1983)). Here, the DOC Defendants are employed by the

Commonwealth of Pennsylvania and, consequently, they are state actors or officials. Because they

are not federal actors, the Fifth Amendment’s Due Process Clause is inapplicable to them. Leave

to amend will be denied as futile.

5. Eighth Amendment Conditions of Confinement Claim8

The Eighth Amendment’s prohibition of cruel and unusual punishment imposes

constitutional limitations on prisoner’s conditions of confinement. See Rhodes v. Chapman, 452

U.S. 337 (1981); Graham v. Connor, 490 U.S. 386 (1989). To state a viable conditions of

confinement claim, a plaintiff must: (1) allege a deprivation that is “objectively, sufficiently

serious”; and (2) show that the prisoner official “ha[s] a sufficiently capable state of mind.” Beers-

Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001) (quoting Farmer, 511 U.S. at 834 (1994)).

Courts within this circuit have recognized that environmental or unsanitary prison conditions that

pose a serious risk to the health of inmates may support such a claim. See Williams v. Pa Dep’t of

Corr., No. 2:20-cv-0794, 2023 WL 2655406, at *12 (W.D.Pa. Feb. 2, 2023) (prisoner’s claim of

exposure to coal ash and contaminated water supports a conditions of confinement claim and

failure to protect claim); Moore v. Rosa, 2021 WL 1143376, at *5 (E.D. Pa. Mar. 25, 2021)

(“unsanitary conditions can support a cognizable § 1983 conditions of confinement claim.”);

Quinn v. Tritt, 2021 WL 1621294, at *4 (M.D. Pa. Feb. 1, 2021), report and recommendation

8 In a Section 1983 action, the court must “apply the applicable law, irrespective of whether the

pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002).

adopted, 2021 WL 1193868 (M.D. Pa. Mar. 30, 2021) (assessing inmate's claim of exposure to

contaminated water as a conditions of confinement claim).

The DOC Defendants argue that Davis’s claim fails because the only injury he has alleged

is “bald assertions that his health was at risk due to exposure to ‘toxic coal ash,’ the pleadings are

devoid of any indication that this substance was in fact present,” and “the grievance response

reflects that ‘[t]here is no known toxic coal or any other toxic chemical coming from the ground

of SCI Fayette.” Defs’ Br. at 16.

The allegations of the Amended Complaint state that Davis’s diabetic condition is affected

because of his exposure to coal ash and contaminated water. Am. Compl., ¶¶ 70-71. Accepting

these allegations as true for purposes of the DOC Defendants’ motion to dismiss, Davis has

identified harm sufficient to state a claim. The Court recognizes that discovery may well reveal

that Davis’s allegations do not give rise to an Eighth Amendment claim, but at this stage of the

litigation, the allegations of the Amended Complaint must be accepted as true and all reasonable

inferences must be drawn in Davis’s favor. Although admittedly scant, the Court finds the

allegations at this early stage of the litigation are sufficient to withstand a motion to dismiss

6. Thirteenth Amendment Claim

While the Amended Complaint states that Davis has brought a Thirteenth Amendment

claim, there are no factual averments in the Amended Complaint addressing a Thirteenth

Amendment claim. The DOC Defendants ask that any Thirteenth Amendment claim be dismissed

for failure to state a claim. Br. at p. 15. (ECF No. 23). Davis does not respond to this argument.

The Thirteenth Amendment to the U.S. Constitution provides that “[n]either slavery or

involuntary servitude, except as a punishment for crime whereof the party shall have been duly

convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S.

Const. amend. XIII, § 1. “The primary purpose of the [Thirteenth] Amendment was to abolish the

institution of African slavery as it had existed in the United States at the time of the Civil War, but

the Amendment was not limited to that purpose; the phrase ‘involuntary servitude’ was intended

to extend to cover those forms of compulsory labor akin to African slavery which in practical

operation would tend to produce like undesirable results.” United States v. Kozminski, 487 U.S.

931, 942 (1988) (internal citations omitted). The Court of Appeals for the Third Circuit has further

explained that the “prohibition against involuntary servitude has always barred forced labor

through physical coercion.” Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989, 998 (3d Cir.1993)

(abrogated on other grounds by Troster v. Pennsylvania State Dep't Corrs., 65 F.3d 1086, 1090

(3d Cir.1995)). “Modern day examples of involuntary servitude have been limited to labor camps,

isolated religious sects, or forced confinement.” Steirer, 987 F.2d at 999.

The Amended Complaint is void of any allegations which state a plausible claim under the

Thirteenth Amendment. Leave to amend will be denied as futile.

7. Fourteenth Amendment Equal Protection Claim

Davis brings a Fourteenth Amendment equal protection class-of-one claim against the

DOC Defendants. The Equal Protection Clause of the Fourteenth Amendment guarantees all

citizens “equal protection of the laws.” U.S. Const. amend. XIV § 1. As a result, the Equal

Protection Clause requires that all persons “similarly situated” be treated alike by state actors. See

City of Cleburne v. Cleburn Living Ctr., Inc., 473 U.S. 432, 439 (1985). “Persons are similarly

situated under the Equal Protection Clause when they are alike ‘in all relevant aspects’.” Startzell

v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordinger v.

Hahn, 505 U.S. 1, 10 (1992)).

Under a class-of-one theory, “a plaintiff need not allege class-based discrimination.” Id.

at 765 (citing Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601 (2008); Davis v. Prison Health

Servs., 679 F.3d 433, 441 (6th Cir. 2012) (“[I]n ‘class-of-one claims, ‘the plaintiff [does] not allege

membership in a class or group’ but rather simply alleges that she has been intentionally treated

differently from others similarly situated and that there is no rational basis for the difference in

treatment’.” (quoting Olech, 528 U.S. at 564)). “In a class of one claim, a plaintiff must establish

that: `(1) the defendant[s] treated him differently from others similarly situated, (2) the

defendant[s] did so intentionally, and (3) there was no rational basis for the difference in

treatment.” Aulisio v. Chiampi, 765 F. App’x 760, 764-65 (3d Cir. 2019) (quoting Hill v. Borough

of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000)). “Under the rational basis standard, any rational ground for the conduct in question

will suffice to defeat the class-of-one claim.” Aulisio, 765 F. App’x at 765.

Here, the DOC Defendants seek dismissal of the equal protection claim arguing that Davis

was not treated differently from others similarly situated as there was no juvenile lifer transfer

policy. Rather, the DOC Defendants argue that Davis should have sought an incentive-based

transfer to be returned to his home region pursuant to DOC policy 11.1.1, Section 2, “Transfer

Petition System,” “the same policies/procedures that the rest of the inmate population must utilize

if they wish to see a transfer.” Defs’ Br. at p. 14 (ECF No. 23). The Court, however, finds that

the Amended Complaint adequately alleges each of the three elements for a class-of-one claim,

albeit at a minimum.

As for the first element, “[a]t the motion to dismiss stage, [the plaintiff] must allege facts

sufficient to make plausible the existence of . . . similarly situated parties.” Perano v. Twp. of

Tilden, 423 F. App’x 234, 238 (3d Cir. 2011). While “ ‘[p]ersons are similarly situated under the

Equal Protection Clause when they are alike in all relevant aspects,’ ” Mun. Revenue Servs., Inc.

v. McBlain, 347 F. App’x 817, 825 (3d Cir. 2009) (quoting Startzell v. City of Phila., 533 F.3d

183, 203 (3d Cir. 2008)), “the law in the Third Circuit does not require [the plaintiff] to show that

the [comparators] are identical in all relevant respects but only that they are alike.” Southersby

Dev. Corp. v. Borough of Jefferson Hills, 852 F. Supp. 2d 616, 628 (W.D.Pa. 2012) (citing

Startzell, 533 F.3d at 203). “Determining whether an individual is ‘similarly situated’ to another

individual is a case-by-case fact-intensive inquiry.” Chan v. Cnty. of Lancaster, No. 10–3424,

2011 WL 4478283, at *15 (E.D.Pa. Sept. 26, 2011) (citing Monaco v. Am. Gen. Assurance Co.,

359 F.3d 296, 305 (3d Cir. 2004)). “For that reason, some courts in this Circuit have stated that ‘a

final determination of this issue is inappropriate at the motion-to-dismiss stage.’ ” Thomas, 2012

WL 3599415, at *5 (quoting Chan, 2011 WL 4478283, at *15). Here, Davis alleges that he is

“similarly situated” to other juvenile lifers. At this early stage of the litigation, this is enough to

meet the first element.

As for the second element, the Amended Complaint states DOC Defendants intentionally

did not follow their policy/practice/procedure in refusing to return Davis to his home region; the

DOC Defendants respond that no such policy/practice/ procedure existed. As note previously,

whether DOC Defendants had a practice/procedure is clearly something that needs to be developed

during discovery. For now, the Court will draw a reasonable inference at this pleading stage that

there was a DOC policy/practice/procedure for returning juvenile lifers after resentencing to their

home regions, and that the actions of the DOC Defendants in refusing to transfer Davis were

intentional.

Finally, as for the third element, Davis pleads there was no rational basis for treating him

differently than other juvenile lifers. In this case, Davis was informed there was no juvenile lifer

transfer policy. He adamantly argues that such a policy/practice/procedure exists. This

fundamental difference needs to be explored during the discovery phase.

The Court recognizes that discovery may well reveal that the alleged conduct of the DOC

Defendants does not give rise to a class-of-one Equal Protection claim, but at this stage of the

litigation, the allegations of the Amended Complaint must be accepted as true and all reasonable

inferences must be drawn in Davis’s favor. Accordingly, the motion to dismiss Davis’s Fourteenth

Amendment claim will be denied.

B. Claims Brought Under 42 U.S.C. § 1985(3)

To state a claim under 42 U.S.C. § 1985(3),

a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based

discriminatory animus designed to deprive, directly or indirectly, any person or

class of persons to the equal protection of the laws; (3) an act in furtherance of the

conspiracy; and (4) an injury to a person or property or the deprivation of any right

or privilege of a citizen of the United States.

Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997), as amended (May 15, 1997) (emphasis added).

Davis alleges,

Defendant’s Wetzel, Hammon, Armel, Erickson, and unknown Defendant’s

in Central Office and at the SCI Fayete violated 42 U.S.C. § 1985(3) by agreeing

either expressly or impliedly to impose, perpetrate or fail to remedy the

constitutional violations disclosed herein.

Am. Compl., ¶ 90. The DOC Defendants argue that the allegations of the Amended Complaint

“fall woefully short of establishing a claim.” Defs’ Br. at 15. Davis does not respond to this

argument.

The Court finds that Davis has pled no facts supporting a claim that the DOC Defendants’

actions were motivated by class-based animus. Therefore, the motion to dismiss these claims will

be granted.

VI. Leave to Amend

The Court of Appeals for 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. See Fletcher-Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235

(3d Cir. 2004). While aware of these holdings, the Court finds that allowing for amendment by

Davis would be futile.

Davis filed his original complaint on February 9, 2023. The DOC Defendants moved to

dismiss the Complaint, which placed Davis on notice of the deficiencies in his Complaint. In

response, he filed an Amended Complaint on June 30, 2023, which did not correct the deficiencies.

Further amendment would be futile as Davis has had the opportunity to revise his claims to add

any missing averments, but has not done so.

VII. Conclusion

For all these reasons, the DOC Defendants’ motion to dismiss will be granted in part and

denied in part as follows:

1. The motion will be granted as to all claims brought under 42 U.S.C. § 1983 alleging

violations of Davis’s Fourth, Fifth, and Thirteenth Amendment rights;

2. The motion will be granted as to all claims brought under 42 U.S.C. § 1985(3); and

3. The motion will be denied as to all claims brought under 42 U.S.C. § 1983 alleging

violations of Davis’s rights under the (i) First Amendment (retaliation), (ii) Eighth Amendment

(conditions of confinement), and (iii) Fourteenth Amendment Equal Protection clause.

An appropriate Order follows.

February 7, 2024 s/Cynthia Reed Eddy

Cynthia Reed Eddy

United States Magistrate Judge

cc: KEVIN DAVIS

QQ-0944

SCI FAYETTE

50 Overlook Drive

LaBelle, PA 15450

(via United States First Class Mail)

Kelly J. Hoke

Office of General Counsel, Department of Corrections

(via ECF electronic notification)