Opinion

Lee v. Mason

Court: District Court, M.D. Pennsylvania
Filed: Sep 27, 2024
Cited by: 0 cases
Authority: More cited than 31.8%

“The mere possibility that [Brady material] may exist, without more, is insufficient to establish the existence of a Brady violation.”

How later courts described this case

“The mere possibility that [Brady material] may exist, without more, is insufficient to establish the existence of a Brady violation.”
“[A] prisoner making an access-to-courts claim is required to show that the denial of access caused actual injury.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TAJI LEE, ) CIVIL ACTION NO. 4:23-CV-793

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

B. MASON, et al., )

Defendants )

MEMORANDUM OPINION

I. INTRODUCTION

Taji Lee (“Plaintiff”) is a state inmate currently confined in Phoenix State

Correctional Institution (“SCI Phoenix”). In December of 2022, he filed the

Complaint that is the subject of this case in the Schuylkill County Court of

Common Pleas. In April 2023, the Named DOC employees were served, and they

then removed this § 1983 (retaliation and access to courts) and negligence action to

federal court.

In his Complaint, Plaintiff describes an unfortunate series of events which

began with an investigatory cell search that occurred while he was confined in

another institution, Mahanoy State Correctional Institution (“SCI-Mahanoy”). He

alleges that the individuals responsible for sorting, inventorying, packing, and

storing his property during that process gave away, misplaced, mixed up, and

destroyed a significant amount of his personal property. The grievances he filed

related to this event, coupled with filings related to two federal lawsuits, allegedly

inspired certain DOC staff members to retaliate against him. To date, seven of the

fourteen individuals Plaintiff alleges were involved in these events remain

unidentified.

Currently before the Court is the Named Defendants’ motion requesting that

Plaintiff’s Complaint be dismissed for failure to state a claim upon which relief can

be granted. (Doc. 12). For the reasons set forth in this opinion, Named Defendants’

motion will be granted in part and denied in part, and Plaintiff, if he so chooses,

will be given leave to file an amended complaint.

II. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff’s claims in this case arise out of a complex tapestry of facts. To

understand them, background information is required. We have provided that

necessary background below, beginning with the search of Plaintiff’s cell.

A. THE SEARCH OF PLAINTIFF’S CELL

Plaintiff is a state inmate currently incarcerated at SCI- Phoenix. In February

2021, Plaintiff was serving a sentence in state prison at SCI Mahanoy. He alleges

that, on February 12, 2021, a nonparty, Security Lieutenant Dunkle, ordered an

investigatory search of the cell Plaintiff shared with Kurtis Graves. (Doc. 1-2,

¶ 60). Plaintiff was relocated to the restricted housing unit, where he remained until

April 21, 2021. (Doc. 1-2, p. 8, ¶ 19); (Doc. 1-2, p. 55).

Plaintiff alleges that the February 12, 2021 search of his living quarters was

conducted by four Defendants. (Doc. 1-2, p. 59). He was able to identify one of

those officers as Defendant Young. Id. He does not know the identity of the other

three corrections officers present. Plaintiff alleges that on February 12, 2021, all of

his (and Mr. Graves’s) property was removed from their cell. (Doc. 1-2, ¶ 60).

He alleges that, after the property was removed from the cell and searched,

Defendant Woods and/or Defendant Valentine “took possession of everything.”

Id.; (Doc. 1-2, p. 58). He also alleges that, “due to the sheer volume” of property,

his possessions were stored overnight in an area “accessible to staff personnel

only.” (Doc. 1-2, ¶ 60). He alleges that on February 13, 2021, Defendant Miller

took custody of the property and inventoried it. Id. He believes that inventory was

not thorough.

On February 18, 2021, two significant events occurred. First, Plaintiff’s

cellmate was released. (Doc. 1-2, ¶¶ 22-25). Second, Plaintiff was given an

opportunity to inventory his property. Id. When he reviewed the inventory, and

examined the packed property, he immediately noticed that some of his

possessions were missing. The missing items generally can be attributed to three

circumstances: (1) property confiscated by corrections officers; (2) property

incorrectly listed on the inventory of his cellmate’s property, or incorrectly given

to his cellmate; and (3) property missing without explanation.

1. Property Confiscated by Corrections Officers

Plaintiff concedes that some of his property was confiscated following the

search. He was provided five confiscation slips documenting what items were

taken, and why. Four of the five confiscation slips are attached to Plaintiff’s

Complaint. (Confiscated Item Receipts Nos. 425190, 425191, 425192, 425195,

Doc. 1-2, pp. 36-39). Plaintiff disagreed with the confiscation of some items. He

availed himself to the prison grievance process and had some success recovering

some of the confiscated items. These items were addressed primarily in Grievance

No. 916808.

We have summarized the disputes regarding the confiscated items presented

Grievance No. 916808 in the table below. According to the grievance documents

attached to Plaintiff’s Complaint, Plaintiff was reimbursed a total of $80.78 for the

confiscated items that could not be returned (3 pair of sweatpants, and 1

sweatshirt). (Doc. 1-2, p. 74).

Confiscated Issue Resolution

Item/Reason

Confiscation Slip No. 425190, Doc. 1-2, p. 36

2. 3 Pair Sweatpants Not addressed in detail. Reimbursed for

(altered) items on May 12,

2021. (Doc. 1-2, p.

68).

3. 2 Rugs (excess) Not addressed in detail. Items returned on

May 12, 2021.

(Doc. 1-2, p. 68).

4. 1 Brown Sweatshirt A tear in the sweatshirt Reimbursed for

(altered) was repaired using a item on May 12,

needle and thread. 2021. (Doc. 1-2, p.

Plaintiff argues repair 68).

does not count as

alteration.

Confiscation Slip No. 425191, Doc. 1-2, p. 37

1. 1 Hand Brace (altered) Plaintiff asserts that the Confiscation upheld on

hand brace was not August 20, 2021. (Doc. 1-

altered, thus there is no 2, pp. 82-83).

reason to confiscate them.

The grievance coordinator

responded that the brace

was not issued by

medical.

2. 2 Thermal Bottoms Plaintiff was initially Confiscation upheld on

(excess) advised that these items August 20, 2021. (Doc. 1-

could not be returned 2, pp. 82-83).

unless he provided proof

of purchase. It was later

determined that the

thermal bottoms were

state issued.

3. 3 Knee Braces (altered) Plaintiff asserts that the Confiscation upheld on

knee braces were not August 20, 2021. (Doc. 1-

altered, thus there is no 2, pp. 82-83).

reason to confiscate them.

The grievance coordinator

responded that the braces

were not issued by

medical.

4. 1 Pair Shower Shoes Plaintiff owned 2 pair of Item returned on

(excess) shower shoes. One shoe May 12, 2021.

from each pair was (Doc. 1-2, p. 68).

confiscated, leaving him

with a mismatched set.

5. 5 Towels (excess) Plaintiff alleges that he Confiscation upheld on

had 2 brand new towels. appeal to Superintendent

He speculates that the and was not addressed in

“excess” noted was the appeal to Chief Grievance

result of mixing Officer.

Plaintiff’s property up

with his cell mate’s

belongings.

The grievance coordinator

responded that the towels

would be returned if

Plaintiff could provide

proof of purchase.

9. 3 Thermal Tops Plaintiff was initially Confiscation upheld on

(excess) advised that these items August 20, 2021. (Doc. 1-

could not be returned 2, pp. 82-83).

unless he provided proof

of purchase. It was later

determined that the

thermal tops were state

issued.

10. 1 White Altered T- Not addressed in the Not addressed in the

Shirt grievances or responses. grievances or responses.

Confiscation Slip No. 425192, Doc. No. 1-2, p. 38

2. 257 Books (unknown The prison staff takes the Forty-seven books were

ownership, excess) position that the large returned on June 16,

number of books pose a 2021. (Doc. 1-2, p. 76).

fire hazard.

Plaintiff alleges most of

the books are not his and

were not listed on the

confiscation slip by title.

He has no way of

identifying which books

are his, but he would like

his books returned.

3. 2 Pair Sweat Shorts Shorts were made by Confiscation

(altered) cutting off the bottom of upheld in appeal to

sweatpants. Superintendent and

was not addressed

in appeal to Chief

Grievance Officer.

6. 4 Small Plastic Bowls Not addressed in detail. One plastic bowl

returned on May

12, 2021. (Doc. 1-

2, p. 68).

Confiscation Slip No. 425195, Doc. 1-2, p. 38

1. 1 Pair Earbuds (altered) Plaintiff alleges that his Item returned on

earbuds were not altered. May 12, 2021.

(Doc. 1-2, p. 68).

5. 1 RCA Remote Plaintiff says there were 2 Plaintiff was provided a

(excess) remotes in the cell. One remote on June 16, 2021.

was his, and one belonged (Doc. 1-2, p. 76).

to his cell mate. The

remote left with his

property had his cell

mate’s ID number written

on it, and the remote

confiscated as excess

property was his only

remote.

2. Property Found Mixed with Cellmate’s Belongings

Plaintiff alleges that on February 20, 2021, a box of his property was

returned by his former cellmate, Mr. Graves. (Doc. 1-2, pp. 42-43). He does not

provide any detail about what was inside the box, except that it contained some of

the items he previously stored in an old Mike-n-Ike bag or box. Id.

He also alleges that corrections officers incorrectly determined that some of

his property belonged to Graves, and therefore was not listed on his inventory or

his confiscation slips. This made it difficult for Plaintiff to provide the

documentation required to successfully grieve his missing property.

3. Property Misplaced without Explanation

In addition to the property listed on the confiscation slips, and returned by

Mr. Graves, Plaintiff alleges that several other items were missing, including

various food items, various toiletries, a tablet, between sixty and eighty pounds of

“legal documents,” prescription tinted glasses, and the power cord to his television

(Plaintiff was given a power cord to an old television that did not work with his

new television). (Doc. 1-2, ¶ 24).

Some of the missing items were returned. Plaintiff’s missing tablet

“magically reappeared” on April 21, 2021. (Doc. 1-2, ¶ 83). On June 16, 2021, the

power cord to Plaintiff’s television was located and returned. (Doc. 1-2, p. 78). He

suggests, however, that corrections staff needlessly delayed the return of the power

cord.

On July 2, 2021, Plaintiff’s legal documents were found in a “locker located

in Defendant Woods assigned work area.” (Doc. 1-2, ¶¶ 84-85).

Plaintiff’s prescription tinted glasses were never found. The Chief Grievance

Officer’s Office concluded on final appeal that the prison was not responsible for

replacing the glasses because Plaintiff provided no proof that those glasses were in

Plaintiff’s cell when his property was removed on February 12, 2021.

It is not clear whether any of the food or toiletry items were returned.

B. PROCEDURAL HISTORY IN THIS CASE

On December 16, 2022, Plaintiff initiated this civil rights action in the

Schuylkill County Court of Common Pleas. (Doc. 1-2, p. 4). In his Complaint,

Plaintiff asserts claims against a total of fourteen Defendants; seven named

Defendants and seven John Doe Defendants. In portions of his Complaint Plaintiff

refers to Defendants using the paragraph number where they are first mentioned.

The named Defendants are:

(1) B. Mason, the Superintendent at SCI Mahanoy (a.k.a. Defendant #4);

(2) Correctional Officer Miller (a.k.a. Defendant #5);

(3) Correctional Officer Young (a.k.a. Defendant #8);

(4) Lieutenant Woods (a.k.a. Defendant #14);

(5) J. Mahally, the Grievance Coordinator at SCI Mahanoy (a.k.a.

Defendant #15);

(6) Corrections Officer Valentine (a.k.a. Defendant #16); and

(7) Dorina Varner, the Chief Grievance Officer for the Department of

Corrections (a.k.a. Defendant #17).

All the unidentified Defendants are corrections officers. All identified and

unidentified Defendants are sued in their individual and official capacities.

Plaintiff asserts three legal claims in his Complaint: (1) Negligence; (2)

Retaliation; and (3) Denial of Access to Courts.

Regarding his negligence claim, Plaintiff alleges that Defendants negligently

sorted, inventoried, and stored his property following the investigatory search of

his cell. (Doc. 1-2, p. 56). He alleges facts suggesting this negligence resulted in

both temporary and permanent losses of property.

Plaintiff alleges multiple theories regarding retaliation, involving different

protected conduct (filing a civil rights lawsuit, filing a habeas petition, and filing

grievances), and different adverse actions (providing adverse information to a

hearing officer in a misconduct proceeding, refusing to replace lost glasses,

tampering with Plaintiff’s property when it was in storage, concealing Plaintiff’s

legal papers for months, and rejection/denial of grievances).

First, Plaintiff alleges that he has “endured harassment and retaliation” at the

hands of numerous SCI Mahanoy staff members since he filed a civil rights lawsuit

arising out of inadequate medical treatment for injuries he sustained when a light

fixture fell on him in the prison. (Doc. 1-2, ¶ 70). Those acts included issuing

falsified misconducts in which Plaintiff was sanctioned for wearing prescription

tinted glasses. (Doc. 1-2, ¶ 71). He alleges another similar misconduct was issued

on April 21, 2021. (Doc. 1-2, ¶ 81). He alleges that Defendant Mason intervened

during the misconduct proceedings and informed the hearing examiner that

Plaintiff was not authorized to wear his glasses so that Plaintiff would be punished,

purportedly in retaliation for filing Lee v. Corizon Health in 2016. Id.

Second, Plaintiff alleges that on May 12, 2021, Defendants refused to

replace Plaintiff’s missing prescription glasses. (Doc. 1-2, ¶ 82). The “denial”

appears to be in the initial review response to Grievance No. 925811. (Doc. 1-2, p.

6). We infer based on the prior paragraph of his Complaint that Plaintiff alleges

replacement was denied in retaliation for filing Lee v. Corizon Health in 2016.

Third, Plaintiff alleges that he was subjected to retaliation after filing

Grievance Nos. 916806 and 916808 related to his missing property. (Doc. 1-2,

¶ 83). He alleges that after he filed these grievances some of his property (his

tablet) reappeared while other property that was present during the February 18,

2021 inventory (his prescription glasses) disappeared. Id. Thus, we construe this as

a claim that his property was tampered with in retaliation for filing Grievance Nos.

916806 and 916808.

Fourth, Plaintiff alleges that between sixty and eighty pounds of legal

documents were deliberately concealed from Plaintiff for 137 days to retaliate

against Plaintiff for filing two lawsuits: Lee v. Kerestes and Lee v. Corizon Health,

Inc. (Doc. 1-2, ¶¶ 84-85).

Fifth, Plaintiff alleges that Defendants denied and/or rejected Grievance

Nos. 916806 and 916808 about his property loss to retaliate against Plaintiff for

filing those Grievances. (Doc. 1-2, ¶ 72).

Regarding his access to courts claim, Plaintiff alleges that he filed a federal

habeas petition under 28 U.S.C. § 2254, and that the petition was denied at the

district court level on February 24, 2020. (Doc. 1-2, ¶ 89). He alleges that as of

February 12, 2021, he drafted 12 out of 15 pages of a Rule 60(b)(3) motion

requesting that his habeas case be reopened. (Doc. 1-2, ¶ 93). He alleges that he

was unable to submit that draft before the one-year deadline because his legal

materials (including the draft of his motion) were confiscated eight days before

that deadline. (Doc. 1-2, ¶ 94). He alleges that he completed his draft and

submitted it on April 24, 2021. (Doc. 1-2, ¶ 95). His Motion was denied as

untimely. (Doc. 1-2, ¶ 96).

As relief, Plaintiff requests that the Court:

(1) “Declare that all defendants violated plaintiff’s rights under the

constitution and laws of the United States thru their actions and/or

omission stated in this complaint.” (Doc. 1-2, p. 32).

(2) “Award compensatory damages for plaintiff’s irreparable losses in the

amount of $10,000 against each defendant.” Id.

(3) “Award punitive damages for the concealment of plaintiff’s personal

property in the amount of $50 a day beginning 2/18/21 against each

defendant.” Id.

(4) “A jury trial on all issues triable by jury.” Id.

(5) “Award plaintiff any other such relief as this court deems just, proper,

and equitable, and that plaintiff is entitled by law, such as

compensation for cost of litigation.” Id.

On June 18, 2023, the Named Defendants (Mason, Miller, Young, Woods,

Mahally, Valentine, and Varner) filed a motion requesting that Plaintiff’s

Complaint be dismissed for failure to state a claim upon which relief can be

granted. (Doc. 12). Named Defendants filed a supporting brief, and Plaintiff filed a

brief in opposition. (Docs. 13, 17). No reply was filed. Therefore, this motion is

ready to resolve.

C. RELEVANT BACKGROUND OF LEE V. KERESTES AND LEE V. CORIZON

HEALTH

Plaintiff references the dockets in Lee v. Kerestes and Lee v. Corizon Health

in his Complaint. The information summarized in this section is from Plaintiff’s

Complaint and from publicly available, and undisputedly authentic, documents

docketed in those cases. Plaintiff’s claims of retaliation and access to Courts are

based on these documents, and he cites to many of these documents in his

Complaint. Therefore, the documents cited in the sections below can properly be

considered to resolve Named Defendants’ motion to dismiss.

1. Relevant Background About Lee v. Kerestes, 1:13-CV-2353

(M.D. Pa.)

Plaintiff points to his habeas petition in Lee v. Kerestes, as the motivation for

some of Defendants’ retaliatory conduct and as the basis for his denial of access to

courts claim. In this petition, initiated on September 11, 2013, Plaintiff challenges

a July 18, 2006 judgment of sentence entered in the Centre County Court of

Common Pleas.1 This case was stayed until state court exhaustion of the claims

presented in his PCRA motions could be completed.2

In January 2018, the stay was lifted, and Plaintiff filed an amended petition.3

Plaintiff raised eighteen grounds for relief.4 Only one of the eighteen grounds is

relevant to Plaintiff’s access to courts claim in this case; Ground Twelve.

In Ground Twelve of his petition, Plaintiff alleged that his trial counsel was

ineffective for failing to pursue a Brady claim alleging that the Commonwealth

failed to produce a “2002 debriefing report.” The PCRA Court dismissed this

claim, concluding that no report dating back to 2002 exists and there is no reason

to believe that trial counsel was denied any discoverable materials.5 The Superior

Court affirmed the PCRA Court’s rationale for dismissing Plaintiff’s Brady

ineffective assistance claim. Id.

1 Report and Recommendations, Lee v. Kerestes, No. 1:13-CV-2353-YK

(M.D. Pa. Apr. 8, 2019), ECF No. 113, p. 2; (see also Doc. 1-2, ¶ 89) (citing Doc.

113 from the habeas case).

2 Report and Recommendations, Lee v. Kerestes, No. 1:13-CV-2353-YK

(M.D. Pa. Apr. 8, 2019), ECF No. 113, p. 8. The initial stay was lifted in August

2015, and Judge Mehalchick directed the government to file an answer, motion, or

other response. Id. Respondents sought, and were granted, multiple extensions of

time and the case was stayed a second time pending Plaintiff’s completion of an

appeal of one of his PCRA motions. Id.

3 Id.

4 Id. at pp. 9-11.

5 Id. at 52-53.

After the federal habeas petition was fully briefed, then Magistrate Judge

Mehalchick6 issued a Report and Recommendations in which she concluded

Plaintiff’s petition should be denied and dismissed with prejudice. (Doc. 1-2, ¶ 89)

(citing Doc. 113 in the habeas case).7 Judge Mehalchick recommended that

Plaintiff’s Brady violation ineffectiveness claim (Ground Twelve), although

exhausted, be dismissed as meritless.8 She reasoned:

[A] district court must defer to the state court’s legal determination

that counsel was not ineffective and may only overturn such a finding

if it was contrary to, or an unreasonable application of, clearly

established federal law. 28 U.S.C. § 2254(d). Here, the state court’s

factual finding that no Debriefing Report existed is presumed to be

correct unless Lee can rebut this presumption by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1); 28 U.S.C. § 2254(d)(2).

However, upon review of the record before the Court, Lee has not

offered any concrete evidence to prove the existence of the Debriefing

Report exists, or that the Commonwealth withheld such evidence

despite Lee’s requests for disclosure. See United States v. Freeman,

763 F.3d 322, 348 (3d Cir. 2014) (“The mere possibility that [Brady

material] may exist, without more, is insufficient to establish the

existence of a Brady violation.”) (citing United States v. Ramos, 27

F.3d 65, 71 (3d Cir.1994) (“We think it unwise to infer the existence

of Brady material based upon speculation alone.”)). Accordingly, the

state court’s finding that Attorney McGlaughlin was not ineffective

for declining to pursue the underlying Brady Violation Claim on

direct appeal was not contrary to, or an unreasonable application of,

Strickland, as counsel cannot be faulted for failing to raise a meritless

claim. See Gibson v. Beard, No. CV 10-445, 2015 WL 10381753, at

6 In February 2024, Magistrate Judge Mehalchick was sworn in as a United

States District Judge.

7 See also, Report and Recommendations, Lee v. Kerestes, No. 1:13-CV-

2353-YK (M.D. Pa. Apr. 8, 2019), ECF No. 113, p. 62.

8 Report and Recommendations, Lee v. Kerestes, No. 1:13-CV-2353-YK

(M.D. Pa. Apr. 8, 2019), ECF No. 113, p. 51-54.

*39 (E.D. Pa. July 28, 2015), report and recommendation adopted,

165 F. Supp. 3d 286 (E.D. Pa. 2016), aff’d sub nom. Gibson v. Sec'y

Pennsylvania Dep’t of Corr., 718 F. App’x 126 (3d Cir. 2017)

(finding that since the alleged Brady material did not exist, the

petitioner’s Brady claim lacked merit and his direct appellate counsel

was not ineffective for failing to pursue such a claim). Nor was the

state court’s conclusion based upon an unreasonable determination of

the facts. See 28 U.S.C. § 2254(d).9

In April 2019, Plaintiff filed a motion to supplement the record, requesting

that transcripts of the investigating grand jury be added to the record to rebut the

PCRA and Superior Court’s conclusions that the 2002 debriefing report did not

exist.10 In May 2019, Plaintiff filed objections to Judge Mehalchick’s report and

recommendations. (Doc. 1-2, ¶ 89) (citing Doc. 118 in the habeas case).11

In February 2020, Judge Yvette Kane issued an order adopting Judge

Mehalchick’s recommendations and denying Plaintiff’s motion to supplement.

(Doc. 1-2, ¶ 89) (citing Doc. 119 in the habeas case).12 In denying the motion to

supplement, Judge Kane reasoned:

[I]f a state court has ruled on the merits of a particular claim (which it

did with regard to Petitioner’s Brady ineffectiveness claim) a federal

habeas petitioner must generally meet the requirements of Section

2254(d) “on the record that was before the state court.” See Cullen v.

Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted). Absent

9 Id. at 53-54.

10 Motion to Supplement, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa.

Apr. 26, 2019), ECF No. 117.

11 See also, Objections, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa.

May 28, 2019), ECF No. 118.

12 See also, Order, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa. Feb.

24, 2020), ECF No. 119.

certain circumstances set forth in Section 2254(e)(2), district courts

cannot supplement the state court record for claims adjudicated on the

merits in state court. See Brown v. Wenerowicz, 663 F.3d 619, 629 (3d

Cir. 2011). “Otherwise, federal habeas petitioners would be able to

circumvent the finality of state court judgments by establishing a new

factual record” in connection with federal habeas review. See id.

Accordingly, the Court will deny Petitioner’s motion.13

Plaintiff sought a certificate of appealability from the Third Circuit Court of

Appeals but was denied in a certified order issued in July 2020. (Doc. 1-2, ¶¶ 89,

90) (citing Docs. 120 and 122 in the habeas case).14

In April 2021, after he was released from the RHU, Plaintiff filed a motion

to reopen the case pursuant to Rule 60(b)(3) of the Federal Rules of Civil

Procedure. (Doc. 1-2, ¶ 95) (citing Doc. 123 in the habeas case).15 In his motion,

Plaintiff argued that his habeas case should be reopened because Respondents

committed a “fraud on the court” when they argued in their brief that the

transcripts of grand jury testimony that mention “documented” information about

Plaintiff from 2002 were not presented to the jury or relied upon by the

Commonwealth in any manner to convict Plaintiff. (Doc. 1-2, ¶ 104) (referencing

the Commonwealth’s response to his habeas petition). A five-page excerpt of the

13 Order, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa. Feb. 24, 2020),

ECF No. 119, p. 5 n.7; (see also Doc. 1-2, ¶ 89) (citing Doc. 119 from the habeas

case).

14 See also, Certified Order of USCA, Lee v. Kerestes, No. 1:13-CV-2353-

YK (M.D. Pa. Aug. 17, 2020), ECF No. 122.

15 Motion to Reopen, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa. Apr.

26, 2021), ECF No. 123.

grand jury transcript at issue is attached to the Complaint in the present action.

(Doc. 1-2, pp. 95-99).

On November 8, 2021, Judge Mehalchick issued a report and

recommendations in which she recommended that Plaintiff’s motion be denied.

(Doc. 1-2, ¶ 96) (citing Doc. 126 in the habeas case).16 Judge Mehalchick’s report

and recommendations includes a discussion section, with two sub-sections. In the

first sub-section, she evaluated Plaintiff’s “fraud on the court” claim under Rule

60(b)(3) and concluded that it was untimely.17 In the second sub-section, she

considered Plaintiff’s “fraud on the court” claim under the Hazel-Atlas Doctrine.18

She found that Plaintiff’s motion and briefs did not show fraud upon the court by

16 Report and Recommendations, Lee v. Kerestes, No. 1:13-CV-2353-YK

(M.D. Pa. Nov. 8, 2021), ECF No. 126.

17 Id.; see also Fed. R. Civ. P. 60(c) (requiring that a motion under Rule

60(b)(3) be made within a reasonable time no more than one year after the entry of

the judgment or order or the date of the proceeding).

18 Although Rule 60(b)(3) allows for relief from judgment from “fraud,”

Hazel-Atlas relates exclusively to claims of “fraud upon the court.” In Hazel-Atlas,

the United States Supreme Court recognized an exception to the general rule that

judgments should not be disturbed after the term of their entry has expired in cases

where a fraud upon the court occurred. There is no time limit on setting aside a

judgment on this ground. 11 Wight, A. Miller, & M. Kane, Federal Practice and

Procedure, § 2870 (3d Ed. June 2024 Update). Like the standard for Motion under

Rule 60(b)(3) to set aside a judgment arising from fraud, to set aside a judgment

for fraud upon the Court under Hazel-Atlas the fraud must be established by clear

and convincing evidence. Id. Conclusory allegations will not suffice. Id.

anything approaching clear and convincing evidence, and recommended that

Plaintiff’s request to reopen the case under Hazel-Atlas also be denied.19

On November 30, 2021, Judge Kane adopted Judge Mehalchick’s

recommendations, and denied Plaintiff’s motion to reopen his habeas case.20

On December 28, 2021, the Court received untimely objections from

Plaintiff.21

Judge Kane considered those untimely objections, issued an order overruling

them, and directed that Plaintiff’s habeas case remain closed.22 In that order, Judge

Kane agreed that to the extent Plaintiff presented any true Rule 60(b)(3) argument,

Plaintiff’s motion was untimely and “assuming arguendo that circumstances

existed such that the Court should consider the motion timely filed, Petitioner

fail[ed] to demonstrate an entitlement to relief.”23

Judge Kane also found that “[i]n making his argument regarding fraud on

the court, Petitioner’s Rule 60(b)(3) motion revisits his claim regarding ineffective

assistance of counsel based on counsel’s failure to allege a violation of Brady on

19 Report and Recommendations, Lee v. Kerestes, No. 1:13-CV-2353-YK

(M.D. Pa. Nov. 8, 2021), ECF No. 126, pp. 9-11.

20 Order Adopting Report and Recommendations, Lee v. Kerestes, No. 1:13-

CV-2353-YK (M.D. Pa. Nov. 30, 2021), ECF No. 127.

21 Objection, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa. Dec. 28,

2021), ECF No. 129.

22 Order, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D. Pa. Jan. 24, 2022),

ECF. No. 130.

23 Id.

direct appeal, which was previously addressed by this Court in its February 24,

2020 Order denying his habeas petition, and then challenged by Petitioner on

appeal. Accordingly, the Court is without jurisdiction to consider the claim.”24 She

also denied Plaintiff’s request for a certificate of appealability.

Plaintiff appealed Judge Kane’s order denying his Rule 60(b)(3) motion to

the Third Circuit. On August 9, 2022, the Third Circuit issued a certified order in

which it denied Plaintiff’s appeal as follows:

Lee’s motion to file his application for a certificate of appealability

out of time is granted, but his request for a certificate of appealability

is denied. Jurists of reason would agree, without debate, that to the

extent that his Rule 60(b)(3) motion was essentially an unauthorized

second or successive habeas petition, the District Court lacked

jurisdiction to consider it. See 28 U.S.C. § 2244(b)(3)(A); Slack v.

McDaniel, 529 U.S. 473, 484 (2000); see also Gonzalez v. Crosby,

545 U.S. 524, 530-32 (2005). Jurists of reason would also not debate

that, to the extent that Lee presented any true Rule 60(b) arguments,

the District Court did not err in concluding that it was untimely filed.

See Fed. R. Civ. P. 60(c)(1).25

2. Relevant Background About Lee v. Corizon Health, 1:16-

CV-2154 (M.D. Pa.)

Plaintiff points to his civil rights action, Lee v. Corizon Health, as the

motivation for some of Defendants’ retaliatory conduct. Plaintiff alleges that in

24 Id.

25 Certified Order of USCA, Lee v. Kerestes, No. 1:13-CV-2353-YK (M.D.

Pa. Aug. 9, 2022), ECF. No. 138; see also (Doc. 1-2, ¶ 96) (referencing the Third

Circuit’s August 9, 2022 order).

2016, he initiated a federal lawsuit. (Doc. 1-2, ¶ 70).26 In this lawsuit, Plaintiff

named several entities (Corizon Health, Prison Health Services, Wexford Health

Services, Correct Care Solution, and the Pennsylvania Department of Corrections),

as well as several individuals (Tony Iannuzzi, Karen Holly, John Steinhart,

Richard Roller, and John Kerestes).27 The claims in the lawsuit relate to injuries he

sustained, and the quality of medical care he received, when a ceiling light fixture

in an SCI Mahanoy bathroom dislodged while Plaintiff was showering and fell on

him. According to the docket in Lee v. Corizon Health, the parties reached a

settlement in December 2022, and the parties stipulated to the dismissal of the

action with prejudice in January 2023.28

III. LEGAL STANDARDS

A. LEGAL STANDARD FOR 12(B)(6) MOTIONS

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant

to seek dismissal for failure to state a claim upon which relief can be granted. “The

defendant bears the burden of showing that no claim has been presented.”29 To

assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6),

26 See also Complaint, Lee v. Corizon Health, No. 1:16-CV-2154 (M.D. Pa.

Oct. 25, 2016), ECF No. 1-2.

27 Docket, Lee v. Corizon Health, No. 1:16-CV-2154 (M.D. Pa., last viewed

Aug. 23, 2024).

28 Order and Stipulation, Lee v. Corizon Health, No. 1:16-CV-2154 (M.D.

Pa. Dec. 28, 2022 and Jan. 4, 2023), ECF Nos. 148 and 149.

29 Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).

a court should: (1) take note of the elements a plaintiff must plead to state a claim;

(2) identify mere conclusions which are not entitled to the assumption of truth;

and (3) determine whether the complaint’s factual allegations, taken as true, could

plausibly satisfy the elements of a legal claim.30

In order for his or her allegations to be taken as true, a plaintiff must provide

some factual ground for relief, which “requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.”31 To

state a claim, a plaintiff must plead “enough facts to raise a reasonable expectation

that discovery will reveal evidence of the necessary element[s].”32 “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”33 Thus, courts “need not credit a claimant’s ‘bald

assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.”34 The court

also need not assume that a plaintiff can prove facts that he or she has not

30 Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).

31 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

32 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting

Twombly, 550 U.S. at 556 (internal quotation marks omitted)).

33 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

34 Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)

(quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d

Cir. 1997)).

alleged.35 “To prevent dismissal, all civil complaints must now set out sufficient

factual matter to show that the claim is facially plausible.”36

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.”37 The court must accept as true all allegations in the

complaint, and any reasonable inferences that can be drawn therefrom are to be

construed in the light most favorable to the plaintiff.38 This “presumption of truth

attaches only to those allegations for which there is sufficient ‘factual matter’ to

render them ‘plausible on [their] face.’”39 The plausibility determination is context-

specific and does not impose a heightened pleading requirement.40

B. ELEVENTH AMENDMENT IMMUNITY

The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted against

35 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

Carpenters, 459 U.S. 519, 526 (1983).

36 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting

Iqbal, 556 U.S. at 1949).

37 Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal,

556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK

Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010).

38 Jordan v. Fox Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d

Cir. 1994).

39 Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir.

2016) (internal quotation and citation omitted) (alternations in original).

40 Id. at 347.

one of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.41

The Eleventh Amendment “imposes a jurisdictional bar against individuals

bringing suit against a state or its agencies in federal court, or against a state

official in his or her official capacity.”42 “[U]nless Congress has ‘specifically

abrogated’ the states’ sovereign immunity or a state has unequivocally consented

to suit in federal court, we lack jurisdiction to grant relief in such cases.”43

By its terms, the Eleventh Amendment strictly limits the power of federal

courts to entertain cases brought by citizens against the state. “The Supreme Court

extended the Eleventh Amendment’s reach to suits by in-state plaintiffs, thus

barring all private suits against non-consenting States in federal courts.”44

Eleventh Amendment protection, however, is not absolute. There are three

primary exceptions: “(1) congressional abrogation, (2) waiver by the state, and (3)

suits against individual state officers for prospective injunctive and declaratory

relief to end an ongoing violation of federal law.”45

41 U.S. Const. amend. XI.

42 Durham v. Kelley, 82 F.4th 217, 227 (3d Cir. 2023) (emphasis added and

footnotes omitted).

43 Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of Health & Hum. Servs.,

730 F.3d 291, 318 (3d Cir. 2013).

44 Lombardo v. Pennsylvania Dept. of Pub. Welfare, 540 F.3d 190, 194 (3d

Cir. 2008).

45 Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310

(3d Cir. 2002).

C. STATE SOVEREIGN IMMUNITY

The Commonwealth of Pennsylvania, and its officials and employees acting

within the scope of their duties, possesses immunity from suit under 1 Pa. C.S.

§ 2310. Under Pennsylvania law, there is a limited waiver of sovereign immunity

for negligence claims against Commonwealth agencies and employees where the

claim is one for which damages would be recoverable against a non-government

defendant and the negligent act falls within one of ten enumerated categories for

which sovereign immunity is waived.46

As is relevant to this case, one of those ten categories relates to the care,

custody, or control of personal property. Pennsylvania’s Sovereign Immunity Act

waives immunity for damages caused by negligent:

care, custody or control of personal property in the possession or

control of Commonwealth parties, including Commonwealth-owned

personal property and property of persons held by a Commonwealth

agency, except that the sovereign immunity of the Commonwealth is

retained as a bar to actions on claims arising out of Commonwealth

agency activities involving the use of nuclear and other radioactive

equipment, devices and materials.47

D. CLAIMS UNDER 42 U.S.C. § 1983

“Section 1983 imposes civil liability upon any person who, acting under the

color of state law, deprives another individual of any rights, privileges, or

46 42 Pa. C.S. § 8522(a).

47 42 Pa. C.S. § 8522(b).

immunities secured by the Constitution or laws of the United States.”48 “It is well

settled that § 1983 does not confer any substantive rights, but merely ‘provides a

method for vindicating federal rights elsewhere conferred.’”49 To prevail on a

claim under 42 U.S.C. § 1983, a plaintiff must show: (1) a deprivation of a

federally protected right; and (2) the deprivation was committed by a person acting

under color of state law.50

Regarding the first requirement, Plaintiff, a state inmate, asserts that he was

denied a federally protected right because Defendants retaliated against him for

filing lawsuits and grievances, and because Defendants denied him access to the

courts. We will address the requirements to prove those deprivations separately

below.

It is also important to note that, under § 1983 each defendant is only liable

for his or her own misconduct. Thus, it is axiomatic that a plaintiff must, for each

and every claim, “show that each and every defendant [named in that claim] was

‘personal[ly] involve[d]’in depriving him of his rights.”51 Personal involvement

often involves direct wrongful conduct by a defendant, but in cases where the

48 Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d

Cir. 2005).

49 Williams v. Pa. Hum. Rels. Comm’n, 870 F.3d 294, 297 (3d Cir. 2017)

(quoting Hildebrand v. Allegheny Cnty., 757 F.3d 99, 104 (3d Cir. 2014)).

50 Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).

51 Krik v. Roan, 1:04-CV-1990, 2006 WL 2645154, at *3 (M.D. Pa. Sept. 14,

2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2005)).

defendant is a supervisor and the misconduct is committed by the supervisor

defendant’s subordinate, it can also be shown through evidence that: (1) the

supervisor defendant personally directed their subordinate to engage in the

wrongful conduct at issue; or (2) the supervisor defendant had actual knowledge

and acquiesced in the wrongful conduct at issue.52 Personal involvement must be

pleaded with appropriate particularity.53 For example, a “mere hypothesis” about a

supervisor defendant’s knowledge is not enough.54 In the absence of specific

allegations that a defendant played a role in depriving a plaintiff of a constitutional

right, dismissal is appropriate.

E. RETALIATION CLAIMS UNDER 42 U.S.C. § 1983

To prevail on a retaliation claim under § 1983, an inmate must establish that:

(1) he engaged in constitutionally protected conduct; (2) adverse action by prison

officials sufficient to deter an inmate of ordinary firmness from exercising his

constitutional rights was taken against him; and (3) a causal link between the

exercise of his constitutional rights and the adverse action taken against him.55

To establish the requisite causal link an inmate must prove that his

constitutionally protected conduct was a substantial or motivating factor for the

52 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

53 Rode, 845 F.2d at 1207

54 Payne v. Butts, No. 22-2210, 2022 WL 16916347, at *1 (3d Cir. Nov. 14,

2022).

55 Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).

adverse action.56 To do so, an inmate usually must prove either: (1) there was an

unusually suggestive temporal proximity between the protected activity and the

adverse action; or (2) a pattern of antagonism coupled with timing.57 If neither of

these showings is made, then the plaintiff must show that, from the evidence in the

record, the trier of fact should infer causation.58

To establish a causal link based on timing alone, the alleged retaliatory

action must be unusually suggestive of retaliatory motive.59 The amount of time is

usually measured in weeks or months.60 In the employment discrimination context,

periods of as little as seventeen days were found insufficient to establish causation

based on timing alone.61 These same requirements have been applied to analyze

retaliation claims outside the employment context, including cases where an

inmate alleges he was retaliated against by a member of the prison staff. As

discussed above, however, the mere passage of time is not legally conclusive.

56 Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

57 DeFranco v. Wolfe, 387 F. App’x 147, 154 (3d Cir. 2010) (citing Lauren

W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

58 Id.

59 Singleton v. Shearer, No. 1:17-CV-1027, 2019 WL 3337060, at *6 (M.D.

Pa. July 25, 2019) (“When showing causation through unusually suggestive timing,

the contemplated temporal proximity must be ‘on the order of days or weeks.’”)

(quoting Rink v. Northeastern Educ. Intermediate Unit, 717 F. App’x 126, 134 (3d

Cir. 2017)).

60 Id.

61 See, e.g., Jamison v. Wetzel, No. 1:13-CV-2129, 2023 WL 791444, at *13

(M.D. Pa. Feb, 25, 2015).

“A court must be diligent in enforcing these causation requirements”

because otherwise prison officials cognizant of the possibility that litigation might

be filed against them, particularly in their individual capacity, could be chilled

from taking appropriate action.62 Diligent enforcement, however, does not create a

heightened pleading standard. It merely recognizes that courts “should approach

[inmate] claims of retaliation with skepticism and particular care due to the near

inevitability that [inmates] will take exception with decisions of prison officials

and the case with which claims of retaliation may be fabricated.”63

F. ACCESS TO COURTS CLAIMS UNDER 42 U.S.C. § 1983

It is well-established that inmates have a fundamental federal right to access

the courts.64 To prevail on an access to courts claim, a plaintiff must show: (1) he

“suffered an ‘actual injury’ in that [he] lost a chance to pursue a ‘nonfrivolous’ or

‘arguable’ underlying claim”; and (2) he has “no other ‘remedy that may be

awarded as recompense’ for the lost claim other than in the present denial of access

suit.”65 A plaintiff must also demonstrate a link between his “injury” and the denial

62 Lauren W., 480 F.3d at 267.

63 Alexander v. Forr, No. 3:CV-04-0370, 2006 WL 2796412, at *22 (M.D.

Pa. Sept. 27, 2006).

64 Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey,

518 U.S. 343, 346 (1996)).

65 Monroe, 536 F.3d at 205 (citing Christopher v. Harbury, 536 U.S. 403,

415 (2002)).

of access by showing that the legal claim was lost because of the defendants’

conduct.66

IV. DISCUSSION

Named Defendants argue that all claims against them should be dismissed

because: (1) § 1983 and negligence claims against them in their official capacities

are barred by the Eleventh Amendment; (2) Plaintiff’s negligence claims assert

intentional, rather than negligent conduct and therefore liability is barred by state

sovereign immunity; (3) no single Retaliation claim is plausible; and (4) Plaintiff’s

access to courts claim is not plausible because his underlying claim was adequately

addressed in the underlying litigation.

A. DEFENDANTS WAIVED ELEVENTH AMENDMENT IMMUNITY TO SUIT

IN FEDERAL COURT

Plaintiff alleges facts demonstrating that, during the relevant period, all

Defendants worked at SCI Mahanoy and were employees of the Commonwealth of

Pennsylvania. (Doc. 1-2, ¶¶ 4-17). Plaintiff sues all Defendants in their official

capacities. (Doc. 1-2, ¶ 18). As explained in the legal standard section, the

Eleventh Amendment imposes a jurisdictional bar which makes Commonwealth

Employees in their official capacity immune from suit in federal court, subject to

66 Tinsley v. Giorla, 369 F. App’x 381 (3d Cir. 2010) (“[A] prisoner making

an access-to-courts claim is required to show that the denial of access caused

actual injury.”) (emphasis added).

three primary exceptions. In their brief, Named Defendants argue that two of those

exceptions are not met in this case. They do not address the third.

Regarding the first exception to Eleventh Amendment immunity, abrogation

by Congress, Named Defendants assert that Congress did not abrogate states’

Eleventh Amendment immunity for claims under 42 U.S.C. § 1983 or for

negligence claims. (Doc. 13, pp., 23-24) (citing Will v. Mich. Dep’t of State Police,

491 U.S. 58, 66 (1989) and Davis v. Pa. Dep’t of Corr., No. 05-1558, 2006 WL

2927631 (W.D. Pa. Oct. 12, 2006)). They are correct. Therefore, the first exception

to Eleventh Amendment immunity does not apply to Plaintiff’s § 1983 or

negligence claims asserted against any Defendant in their official capacity.

Regarding the second primary exception, waiver by the state, Named

Defendants argue that Eleventh Amendment immunity “has not been waived.”

(Doc. 13, p. 24). They cite to no authority, and their argument overlooks one

pertinent fact. As Plaintiff mentions in his brief, he filed this lawsuit in state court.

Named Defendants removed it. “[A] state may consent to suit by making a clear

declaration that it intends to submit to federal court jurisdiction.”67 “It may also

waive its immunity from suit by invoking federal court jurisdiction voluntarily,” as

Named Defendants did here.68 Although the Commonwealth has not statutorily

67 Lombardo, 540 F.3d at 196 (citing Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 676 (1999)).

68 Id.

waived its Eleventh Amendment immunity from suit in federal Court for § 1983

claims or negligence claims, Named Defendants did waive their Eleventh

Amendment immunity applicable to the official capacity claims by removing this

case to federal court.

Because we find the second primary exception to Eleventh Amendment

immunity applies, we need not address the third primary exception.

Accordingly, we find that Plaintiff’s ability to bring suit in federal court

against Named Defendants in their official capacity under § 1983 and for

negligence is not barred by the Eleventh Amendment.

B. STATE SOVEREIGN IMMUNITY DOES NOT BAR PLAINTIFF’S CLAIMS

Named Defendants also argue that certain claims brought in Plaintiff’s

Complaint are barred by the Commonwealth’s own sovereign immunity. “[W]hile

voluntary removal waives a State’s immunity from suit in a federal forum, the

removing State retains all defenses it would have enjoyed had the matter been

litigated in state court, including immunity from liability.”69

Regarding Plaintiff’s § 1983 claims against Named Defendants in their

official capacity, these claims are not subject to state sovereign immunity

defenses.70

69 Lombardo, 540 F.3d at 198 (emphasis added).

70 Watkins v. Pa. Dep’t of Corr., 196 A.2d 272, 274-75 (Pa. Commw. Ct.

2018) (citing Howlett v. Rose, 496 U.S. 356, 367-83, (1990), Owens v. Shannon,

Regarding the negligence claims against Named Defendants in their official

capacity, a robust consensus of cases holds that this exception to the

Commonwealth’s sovereign immunity as to suit and liability in state court affords

state inmates a remedy where their personal property is negligently damaged or

lost by Commonwealth employees.71 Named Defendants argue this waiver is

inapplicable because Plaintiff asserts claims of intentional acts, and has incorrectly

labeled it a negligence claim. Although we agree that the “negligence” section of

Plaintiff’s Complaint includes some averments of intentional conduct, his

allegations regarding the sorting, packing, inventory, and storage of his property,

and his allegations of items being “lost,” or “misplaced,” sound in negligence.

Accordingly, sovereign immunity does not bar Plaintiff’s § 1983 claims

against Named Defendants in their official capacity and does not bar Plaintiff’s

negligence claims against Named Defendants in their official or individual

capacity.

808 A.2d 607, 610 (Pa. Commw. Ct. 2002), and Heinly v. Commonwealth, 621

A.2d 1212, 1215-16 (Pa. Commw. Ct. 1993)).

71 See Hernandez v. Corrections Emergency Response Team, 771 F. App’x 143,

144-45 (3d Cir. 2019) (denying a state inmate’s due process claim because even

assuming the prison grievance process does not provide an adequate post-

deprivation remedy, “Pennsylvania’s state tort law would provide an adequate

remedy.”); Meekins v. DOC’s Graterford, 745 F. App’x 443, 444 (3d Cir. 2018)

(same); Williams v. Stickman, 917 A.2d 915 (Pa. Commw. Ct. 2007); Velez v.

Wetzel, No. 651 M.D. 2020, 2024 WL 1108446, at *3-4 (Pa. Commw. Ct. Mar. 14,

2024).

C. PLAINTIFF’S CLAIM OF RETALIATORY REPORT TO HEARING

OFFICER WILL BE DISMISSED

In April 2021 a non-party corrections officer issued a misconduct report

alleging Plaintiff failed to obey an order to remove his tinted glasses. (Doc. 1-2, p.

62). A non-party hearing examiner found Plaintiff guilty of this transgression and

sanctioned him to fifteen days of cell restriction effective April 30, 2021. (Doc. 1-

2, p. 63). Plaintiff alleges that this sanction was “unjustified,” and was imposed to

retaliate against him for filing his 2016 lawsuit. (Doc. 1-2, ¶¶ 70-72, 74-80, 81).72

Plaintiff does not clearly identify which Defendants he asserts this claim

against. Named Defendants construe all retaliation claims as being asserted against

Defendants Mason, Mahally, Varner, and Woods because these are the only

Defendants mentioned by name (or number) in the retaliation section of Plaintiff’s

72 In his Complaint, Plaintiff alleges facts suggesting that at times he was

authorized to wear tinted glasses inside due to hyper-photosensitivity. (Doc. 1-2, ¶

74). He alleges he purchased prescription glasses with tinted lenses and attached a

2017 cash slip documenting that purchase. (Doc. 1-2, p. 90). He alleges that, after

filing Lee v. Corizon Health, various staff unidentified members at SCI Mahanoy

made it difficult for him to get the necessary appointments to be able to be

approved for and purchase the prescription tinted glasses for indoor use, and that

once he received those glasses, he had trouble getting his authorization to wear

them extended. Plaintiff also suggests that non-party medical department

employees kept poor records of Plaintiff’s prescription and authorization for the

glasses, and falsely reported that he did not have permission to wear his glasses. As

a result of this false reporting, Plaintiff was found guilty of multiple misconduct

charges for refusing to remove his glasses inside. (Doc. 1-2, ¶¶ 74-79). Although

Plaintiff alleges Defendants Mason, Mahally, Varner and Woods were aware of the

issues related to Plaintiff’s glasses, he does not include specific allegations related

to their participation in it beyond a general assertion that they were involved in the

grievance process. (Doc. 1-2, ¶ 71).

Complaint. (Doc. 1-2, ¶¶ 67-86). They generally argue that all of Plaintiff’s

retaliation claims should be dismissed because: (1) Plaintiff does not adequately

allege facts to support Defendants’ personal involvement; (2) denying a grievance

is not adverse enough to deter an inmate of ordinary firmness from exercising their

first amendment rights; and (3) Plaintiff does not allege a plausible causal link

between the protected conduct and adverse action. (Doc. 13, pp. 14-18, 20-23).

As to this claim, we agree that Plaintiff does not adequately allege

Defendants Mahally, Varner, or Woods were involved in imposing this sanction,

and Plaintiff does not adequately allege the 2016 lawsuit motivated Defendant

Mason to cause this sanction. Named Defendants’ second argument, that denying a

grievance is not adverse enough to deter an inmate from exercising their rights, is

not relevant to this retaliation claim because the adverse action alleged is not denial

of a grievance.

1. Plaintiff Does Not Allege Defendants Mahally, Varner, or

Woods Were Personally Involved

Plaintiff’s Complaint includes few facts establishing any involvement by

these Defendants.

Plaintiff alleges no facts concerning Defendant Woods’ involvement in the

April 2021 sanction. Therefore, Plaintiff’s § 1983 retaliatory discipline claim

against Defendant Woods in his official and individual capacity will be dismissed.

Plaintiff alleges Defendant Mason, Mahally, and Varner, have “all

participated in numerous grievance investigations, appeals, and direct

communications by request slips, regarding the harassment and retaliation imposed

upon plaintiff for his wearing of tinted lense [sic] glasses to combat his medical

infirmities.” (Doc. 1-2, ¶ 71). Plaintiff does not allege, however, that Defendants

Mahally or Varner participated in any grievance, investigation, appeal, or direct

communication regarding this sanction. Therefore, Plaintiff’s § 1983 retaliatory

discipline claim against Defendants Mahally and Varner in their official and

individual capacities will be dismissed.

To the extent Plaintiff alleges Defendant Mason participated in the review of

this sanction or the review of grievances related to this sanction, this too is not

enough on its own to plausibly demonstrate personal involvement. Plaintiff also

alleges, however, that Defendant Mason contacted the hearing examiner and

informed him that “Plaintiff was in fact NOT authorized to wear his prescription

tinted lense [sic] glasses purchased years prior.” (Doc. 1-2, ¶ 81) (emphasis in

original). This is enough to suggest Defendant Mason, the prison superintendent,

was involved.

2. Plaintiff Does Not Allege Enough Information to Support a

Plausible Inference that Defendant Mason’s Actions were

Motivated by Plaintiff’s 2016 Lawsuit

A non-party corrections officer accused Plaintiff of refusing an order to

remove his sunglasses while indoors. (Doc. 1-2, p. 63). According to the non-party

hearing examiner, Plaintiff “denies that he refused the order to remove the

sunglasses.” Id. Defendant Mason allegedly contacted the hearing examiner and

told him Plaintiff was not authorized to wear tinted glasses indoors. (Doc. 1-2, ¶

81). A non-party from the medical department also contacted the hearing officer

and corroborated Defendant Mason’s statement. Id.; (Doc. 1-2, p. 63). The hearing

examiner found Plaintiff guilty of failing to obey an order and imposed a sanction

because the officer’s account in the misconduct report was “more credible than

[Plaintiff’s] denial that he refused [the] order to remove his sunglasses.” (Doc. 1-2,

p. 63). For his retaliation claim against Defendant Mason to go forward, Plaintiff’s

Complaint must include facts demonstrating more than a “sheer possibility”

Defendant Mason’s conduct was motivated by Plaintiff’s 2016 lawsuit. The facts

alleged here do not meet this standard.

Plaintiff filed Lee v. Corizon Health, Inc. in September 2016, more than

four- and one-half years before the April 2021 sunglasses sanction was imposed.

Defendant Mason is not a named Defendant in the 2016 lawsuit, and Plaintiff does

not allege she had any involvement in it. Defendant Mason did not issue the April

2021 misconduct report, and Plaintiff does not allege she directed a subordinate to

issue it.73 Although Plaintiff alleges he endured a pattern of harassment and was

repeatedly disciplined for wearing his glasses after filing the 2016 lawsuit, he does

not allege Defendant Mason was personally involved in that harassment or

discipline aside from the incident in April 2021.74 Therefore, Plaintiff does not

allege sufficient facts to support a causal connection based on timing alone, does

not allege sufficient facts to show a pattern of antagonism by Defendant Mason,

and does not allege any other facts linking the 2016 lawsuit with Defendant

Mason’s report to the hearing examiner in April 2021. Therefore, Plaintiff’s § 1983

retaliatory discipline claim against Defendant Mason in her official and individual

capacity will be dismissed.

D. PLAINTIFF’S CLAIM OF RETALIATORY REFUSAL TO REPLACE

GLASSES WILL BE DISMISSED

Plaintiff alleges that on May 12, 2021, “Defendants” “replied that (SCI)

Mahanoy staff was not responsible for Plaintiff’s lost or destroyed glasses.” (Doc.

1-2, ¶ 82). Plaintiff appears to be referring to the initial review response to

Grievance No. 925811. (Doc. 1-2, p. 60). The initial review response was

completed by Defendant Woods. Id. (illegible signature by an Intell. Lt.); (Doc. 1-

73 (Doc. 1-2, p. 62) (April 2021 misconduct report issued by C/O Perez).

74 (Doc. 1-2, p. 61) (October 2021 misconduct report issued by C/O Flores);

(Doc. 1-2, pp. 64-65) (September 2021 misconduct report issued by C/O

Wojciechowald); (Doc. 1-2, p. 66) (December 2018 grievance alleging C/O Fanelli

questioned Plaintiff about his eyeglasses).

2, p. 78) (appealing Defendant Woods’ initial response to Grievance No. 925811).

Plaintiff suggests that the prison staff’s interference with his glasses was in

retaliation for filing Lee v. Corizon Health in 2016.

Plaintiff does not clearly allege which Defendant or Defendants this claim is

brought against. Named Defendants construe all retaliation claims as being

asserted against Defendants Mason, Mahally, Varner, and Woods because these are

the only Defendants mentioned by name (or number) in the retaliation section of

Plaintiff’s Complaint. (Doc. 1-2, ¶¶ 67-86). They generally argue that all of

Plaintiff’s retaliation claims should be dismissed because: (1) Plaintiff does not

adequately allege facts to support Defendants’ personal involvement; (2) denying a

grievance is not adverse enough to deter an inmate of ordinary firmness from

exercising their first amendment rights; and (3) Plaintiff does not allege a plausible

causal link. (Doc. 13, pp. 14-18, 20-23).

We agree that Plaintiff does not adequately allege that Defendants Mason,

Mahally, or Varner were personally involved in denying Plaintiff’s request for

replacement glasses on May 12, 2021.75 Therefore, Plaintiff’s claim of retaliatory

refusal to replace his glasses against Defendants Mason, Mahally, and Varner in

their official and individual capacities will be dismissed.

75 Defendant Varner did affirm this decision. (Doc. 1-2, p. 84) (affirming

decision on final review, decision signed by “Keri More for D. Varner”). To the

extent Plaintiff intended to assert this claim as to all denials of Grievance No.

925811, the claim against Defendant Varner would be denied for the same reasons.

Regarding Defendant Woods, we agree with the caselaw that the denial of

one grievance is not sufficiently averse to deter an inmate of ordinary firmness

from continuing to exercise their first amendment right.76 Even if it were, however,

Plaintiff does not plausibly allege Defendant Woods was motivated to deny

Plaintiff’s grievance because he filed Lee v. Corizon Health. Plaintiff filed Lee v.

Corizon Health more than four- and one-half years before Defendant Woods

denied Grievance No. 925811. Defendant Woods was not a party to that action,

and Plaintiff does not allege Defendant Woods had any involvement in the case.

Plaintiff does not allege sufficient facts to support a causal link based on timing

alone, does not allege facts showing a pattern of antagonism by Defendant Woods,

and does not allege any other facts connecting these two events. Therefore,

Plaintiff’s retaliatory refusal to replace glasses claim against Defendant Woods in

his official and individual capacity will be dismissed.

76 Washington v. Myers, No. 4:22-CV-01858, 2023 WL 6797008, at *5

(M.D. Pa. Oct. 13, 2023) (dismissing a retaliation claim pursuant to 28 U.S.C.

§ 1915A(b)(1) for failure to state a claim because the “rejection or dismissal of a

grievance—which happens frequently in prisons and is usually the first step in

mandatory administrative exhaustion of a civil rights claim—is not an actionable

adverse action for retaliation purposes.”) (citing Owens v. Coleman, 629 F. App’x

163, 167 (3d Cir. 2015) (nonprecedential); Porter v. Allegheny Cnty., No. CV 20-

1588, 2023 WL 2586037, at *6 (W.D. Pa. Mar. 21, 2023); Nifas v. Coleman, No.

10-1486, 2012 WL 707063 (W.D. Pa. Feb. 9, 2012), report and recommendation

adopted, 2012 WL 707035 (W.D. Pa. Mar. 5, 2012), aff’d, 528 F. App’x 132 (3d

Cir. 2012); and Alexander, 2006 WL 2796412, at *3 n. 4).

E. PLAINTIFF’S CLAIM OF RETALIATORY PROPERTY TAMPERING

WILL BE DISMISSED

Plaintiff alleges that, after he inventoried his property on February 18, 2021,

and discovered missing items he filed two Grievances. One Grievance (“Grievance

No. 916806”) addressed missing items, and the other Grievance (“Grievance No.

916808”) addressed confiscated items. (Doc. 1-2, pp. 42-45). Both were filed on

February 24, 2021. Id. Plaintiff alleges that after he inventoried his property, and

after these grievances were filed, his property was tampered with. (Doc. 1-2, ¶ 83).

He alleges that a missing item, his tablet, “magically appeared” in his footlocker

the day he was released from the RHU. Id. He alleges that his prescription tinted

glasses, which were with his property when he inventoried it on February 18, 2021,

went missing. Id. He alleges that “Defendants” tampered with his property while

he was in the RHU “in retaliation of Plaintiff’s filing of grievance #916806 and

916808.” Id.