# DAVIS v. WETZEL

> District Court, W.D. Pennsylvania · February 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10419414

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10419414

## Opinion text

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419414. Public record. Not legal advice.