Payne v. Stanbaugh

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA I. PAYNE, : Civil No. 1:22-CV-2063

:

Plaintiff, :

: (Judge Mariani)

v. :

: (Magistrate Judge Carlson)

C.O. STANBAUGH, :

:

Defendant. :

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This is a prisoner civil rights case filed by the pro se plaintiff, Joshua Payne,

a state inmate incarcerated in the Pennsylvania Department of Corrections (“DOC”)

at the State Correctional Institution at Camp Hill. In his amended complaint, Payne

brings his federal claims pursuant to 42 U.S.C. § 1983, alleging that the defendant—

a correctional officer at SCI Camp Hill—violated his First Amendment rights by

confiscating Payne’s legal materials that were in the possession of another inmate,

action which Payne alleges was done in retaliation for Payne’s prior litigation

activity. He also asserts a state law negligence claim. (Doc. 25).

On this score, the facts alleged in Payne’s amended complaint reflect in a more

fulsome manner those asserted in his original complaint: that on or about October

26, 2022, the defendant, Officer Stanbaugh, approached him and informed him that

he had confiscated legal materials belonging to Payne that were in the possession of

another inmate named Smith. (Id., ¶ 6). Payne alleges that Stanbaugh confiscated

these legal materials stating that they were lawsuits filed against his fellow

corrections officers and he did not want Payne showing other inmates how to file

lawsuits against the DOC. (Id., ¶ 7). Thus, liberally construed, Payne alleges that

Stanbaugh indicated that he had confiscated, in part, in retaliation for Payne’s pat

litigation. According to Payne, Stanbaugh rebuffed his request for a confiscation

slip, stating that he would instead be discarding the paperwork since he could not

allow that type of material to be passed around from inmate to inmate and that he

had “some nerve to try and show inmates how to file lawsuits against DOC staff like

my brothers Timpe and Ritchey.” (Id., ⁋ 8-10). The complaint avers that the legal

materials Stanbaugh confiscated comprised of 75 pages of material relating to

several ongoing civil and criminal cases in which Payne was a party. (Id., ⁋⁋ 16-17).

Payne alleges that Stanbaugh destroyed his paperwork without first following the

appropriate DOC procedures. (Id., ⁋ 23). According to Payne, he filed a grievance

through the DOC’s grievance process complaining of the incident and that it was

denied on all levels. (Id., ¶ 14).

Thus, Payne filed the instant action against Stanbaugh, initially alleging

claims of First Amendment retaliation, violation of his right of access to the courts,

and a claim under the Equal Protection clause of the Fourteenth Amendment. (Doc.

1, ⁋⁋ 18-19, 21). The defendant subsequently filed a motion to dismiss the complaint,

(Doc. 13), which was granted on April 9, 2024, without prejudice to the plaintiff

filing an amended complaint. (Doc. 24). Payne filed an amended complaint on April

9, 2024, abandoning his Equal Protection and violation of right of access to the

courts claims, but reasserting his claim of First Amendment retaliation and adding a

state law negligence claim. The defendant filed a motion to dismiss the amended

complaint on April 30, 2024, alleging that the plaintiff lacks standing to complain

about the destruction of his papers, that he failed to exhaust his administrative

remedies, that his retaliation claim is without merit, and that the defendant is entitled

to sovereign immunity as to the plaintiff’s claim of negligence. The motion is fully

briefed and ripe for disposition. (Docs. 27, 32). For the reasons discussed below, we

recommend the defendant’s motion be denied.

II. Discussion

A. Motion to Dismiss – Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id., at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting

Iqbal, 129 S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. The Defendant’s Motion Should be Denied.

Payne’s amended complaint renews his claims under 42 U.S.C. § 1983 for

violation of his rights under the First Amendment and, for the first time, also alleges

a claim of negligence relating to the destruction of this property. In considering his

original complaint, we recommended Payne’s retaliation claim be dismissed because

he was unable to overcome the defendant’s showing that the confiscation of his legal

materials would have occurred regardless of the alleged protected activity, Payne’s

pending lawsuits, because the paperwork was considered contraband, which was

confiscated in accordance with DOC policy. However, Payne’s amended complaint

highlights that Stanbaugh’s alleged destruction of this paperwork was done in

contravention of DOC policy, well-pleaded facts which could support the view that

his actions were, in fact, retaliatory and did not serve a legitimate penological

interest. Furthermore, he has adequately pleaded a claim of negligent care of

personal property, a state law tort claim for which Pennsylvania has waived

sovereign immunity. Thus, as explained below, at this juncture where our

consideration of this case is cabined and confined by the well-pleaded facts in this

amended complaint, we conclude that Payne has adequately stated a claim against

the defendant for violations of his constitutional rights and negligence. Accordingly,

we will recommend that the motion to dismiss be denied.

1. The Plaintiff Has Stated a First Amendment Retaliation Claim.

Payne again asserts a civil rights claim pursuant to § 1983, alleging that the

defendant violated the First Amendment when Stanbaugh retaliated against him.

Payne avers that he was retaliated against by Stanbaugh when Stanbaugh confiscated

Payne’s legal materials from inmate Smith and destroyed it before the exhaustion of

the grievance process, which Payne asserts violated DOC policy and was retaliatory

for the lawsuits he had filed against other correctional staff.

In order to state a claim of retaliation under the First Amendment, a plaintiff

must show: “(1) that [he] engaged in a protected activity, (2) that defendant[’]s

retaliatory action was sufficient to deter a person of ordinary firmness from

exercising his or her rights, and (3) that there was a causal connection between the

protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp.,

463 F.3d 285, 296 (3d Cir. 2006)). Stated differently, the plaintiff must demonstrate

that the protected speech was “a ‘substantial factor’ in the alleged retaliatory action.”

McAndrew v. Bucks County Bd. Of Comm'rs, 183 F.Supp.3d 713, 731 (E.D. Pa.

2016) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). If a plaintiff

makes such a showing, the burden then shifts to the defendant to show that, even if

the protected speech had not taken place, it would have taken the same action. Id.

With respect to the third element, there are three ways in which a plaintiff can

establish causation for a First Amendment retaliation claim, showing: “(1) an

‘unusually suggestive temporal proximity’ between the speech and the alleged

retaliatory conduct; (2) a ‘pattern of antagonism coupled with timing’; or (3) that the

‘record as a whole’ permits the trier of fact to infer causation.” McAndrew, 183

F.Supp.3d at 737 (quoting DeFlaminis, 480 F.3d at 267). Additionally, an unusually

suggestive temporal proximity, by itself, can be enough to infer causation. LeBoon

v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)

(citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508,

149 L.Ed.2d 509 (2001)). However,

While “ ‘suggestive temporal proximity’ is relevant to establishing a

causal link between protected conduct and retaliatory action ... in First

Amendment retaliation cases,” Ambrose v. Twp. of Robinson, Pa., 303

F.3d 488, 494 (3d Cir. 2002) (citations omitted) (emphasis added), it is

not dispositive of the issue. See DeFlaminis, 480 F.3d at 267. Rather, a

plaintiff may also establish the requisite causal connection by showing

“a pattern of antagonism coupled with timing to establish a causal link.”

Id. (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 503–04 (3d

Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920–21 (3d Cir.

1997)). The plaintiff may establish that causal link by offering evidence

which “gleaned from the record as a whole” could lead a reasonable

fact-finder to infer causation. Id. (citing Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 281 (3d Cir. 2000)). Finally, Plaintiff is not required

to show “but for causation;” rather, she is required to show that the

“exercise of free speech rights played ‘some substantial role’ in the

employer's decision.” Marrero v. Camden Cty. Bd. of Social Services,

164 F.Supp.2d 455, 469 (D.N.J. 2001) (citing Suppan, 203 F.3d at 236).

Malone v. Economy Borough Municipal Authority, 669 F.Supp.2d 582, 603 (W.D.

Pa. 2009).

We previously concluded, and the defendant does not contest, that a prima

facie case of retaliation could be made here, where the defendant does not dispute

that Payne’s lawsuits constitute protected activity for purposes of the First

Amendment, and courts have recognized that “a delay in providing access to legal

materials may constitute adverse action sufficient to support a First Amendment

retaliation claim.” Wyatt v. Malisko, 2020 WL 3001936, at * n.7 (M.D. Pa. Mar. 19,

2020), report and recommendation adopted 2020 WL 2992088 (M.D. Pa. June 4,

2020) (citing Crawford-El v. Britton, 523 U.S. 574, 578–79 & n.1 (1998); Hart v.

Goulette, Civil No. 16-cv-028-PB, 2016 WL 4575581, at *5 (D.N.H. July 22,

2016)). Moreover, as we previously explained, at this stage, Payne has alleged facts

that may support a finding of unusually suggestive timing. Indeed, one of the

lawsuits Payne cites in his complaint was filed in September of 2022, and the alleged

retaliatory action occurred roughly one month later in October of 2022.

But we previously concluded that Payne’s complaint failed to overcome the

defendant’s showing that the action would have been taken regardless of Payne’s

protected activity, specifically that Stanbaugh confiscated his paperwork in

accordance with DOC protocols because it was considered contraband under DOC

policy. The defendant asserts that the legal materials were considered contraband

under DOC policy, as inmates are not permitted to have possessions belonging to

other inmates. Indeed, DC-ADM 815 defines “contraband” as, inter alia, “property

belonging to another inmate.” See DC-ADM 815, § 3C(1)(o) (effective Sept. 13,

2022).1 Payne’s amended complaint concedes that the paperwork was confiscated

from a fellow inmate. 2 Accordingly, in rebutting the prima facie case of retaliation,

the defendant asserts that, regardless of the plaintiff’s pending lawsuits or the

1 https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (last accessed

July 18, 2022). We note that we may take judicial notice of information publicly

available on government websites. Small v. Kauffman, 2022 WL 3036050, at *4

(M.D. Pa. Aug. 1, 2022) (citing Vanderklok v. U.S., 868 F.3d 189, 205 (3d Cir.

2017)).

2 The defendant also argues that the fact that Payne alleges his legal paperwork was

confiscated from another inmate deprives this court of jurisdiction, since Payne does

not have standing to bring his constitutional claim. The concept of standing, while

potentially relevant to a Fourth Amendment illegal search and seizure claim, which

requires the infringement of one’s own personal rights by the search and seizure, see

Simmons v. United States, 390 U.S. 377, 389 (1968), has no application to this First

Amendment retaliation claim, where the plaintiff alleges he personally engaged in

the protected activity of filing lawsuits against the DOC and was the direct victim of

Stanbaugh’s retaliation for engaging in this protected activity. Indeed, the defendant

provides no legal support for his argument that standing for this First Amendment

claim would require him to have had actual possession of his legal documents at the

time they were confiscated. Indeed, as the Third Circuit has explained, with regard

to the policy behind political retaliation claims, the rights implicated in First

Amendment retaliation claims are much less personal because such retaliation

against one individual could deter others from engaging in protected conduct.

Montone v. City of Jersey City, 709 F.3d 181, 199 (3d Cir. 2013). Thus, the concerns

implicated by these claims “are the same whether a plaintiff is the ‘direct’ or ‘indirect

victim of illegal . . . retaliation.” Id.

substance of those lawsuits, his property would have been confiscated from inmate

Smith as contraband in accordance with the DOC’s policy. See Burgos v. Canino,

641 F.Supp.2d 443, 456 (E.D. Pa. 2009) (finding no retaliatory causation where the

defendant’s actions were taken in accordance with prison policy). The defendant

argues that this policy and the well-pleaded facts averred by Payne, who admits

providing these documents to a third party in violation of prison rules, conclusively

support the defendant’s contention that the same action would have been taken

regardless of Payne’s protected activity. See Starnes v. Butler County Court of

Common Pleas, 50th Judicial District, 971 F.3d 416, 430 (3d Cir. 2020) (noting that

a defendant has the opportunity to rebut a prima facie case of retaliation by showing

it would have taken the same action regardless of any retaliatory motive).

However, in his amended complaint, Payne clarifies that it was not the taking

of the contraband that violated policy, but the destruction of his paperwork without

following the proper procedures. Moreover, Payne specifically alleges that the

destruction of the property by Stanbaugh violated DOC policies, and Stanbaugh’s

refusal to document the taking of the property concealed this policy violation.

Indeed, the Third Circuit has acknowledged this distinction, explaining in a similar

case:

Defendants argue that because the legal documents were “contraband,”

the documents were taken for a legitimate penological reason. We can

understand that in the case of the documents seized from inmate Lyons,

the prison might choose to categorize the documents as “contraband”

in the hands of Lyons, but it does not necessarily follow that the

documents should be destroyed, rather than returned to their owner.

Indeed, when Jacobs filed a grievance concerning those documents, a

staff member responded that he would “review the matter with Lt.

Giddens, and, if appropriate, the items will be returned to you.” A jury

could infer that only after Giddens determined that the papers included

a planned lawsuit against him did he decide that the papers should be

destroyed as “contraband.”

Jacobs v. Beard, 172 F. App'x 452, 455 (3d Cir. 2006). Here, the defendant

acknowledges DOC policy referred to by the plaintiff which requires exhaustion of

the appeals process before seized contraband can be destroyed, See DC-ADM 815,

§ 3C (effective March 16, 2021),3 but argues that this policy was not triggered in

Payne’s case because he did not specifically notify the Facility Manager in his

original grievance to retain the property through the grievance process. (Doc. 27, at

10) (citing DCM-ADM 804 Section 1.A.22). At this juncture where we are enjoined

to consider the facts as alleged by Payne, in our view, the plaintiff has articulated

facts which undermine the plaintiff’s same result defense because he alleges that

3 Per this DOC policy:

The facility security office, after consultation with the Major, will

determine when contraband will be destroyed. Destruction of

contraband will ONLY occur after the inmate’s misconduct hearing is

held and the misconduct appeal process is exhausted. When an inmate

files a grievance regarding confiscated contraband, destruction of the

property will only occur after the appeal process has been exhausted.

https://www.pa.gov/content/dam/copapwp-pagov/en/cor/documents/about-

us/doc-policies/815-personal-property-state-issued-items-etc.pdf (last

accessed January 3, 2025).

Stanbaugh was not simply following DOC policy but was, in fact, bypassing DOC

policy by discarding of his personal property without following the proper

procedures. And, to the extent that the defendant argues this policy should not apply

in the plaintiff’s case, since he did not request that the Facility Manager retain his

legal paperwork throughout the grievance process, a conclusion on this issue would

require us to go far beyond the pleadings, considering the vastly contrasting factual

narratives presented by the parties. Indeed, Payne’s complaint and accompanying

grievance tend to indicate that his paperwork was immediately discarded by

Stanbaugh. Further, determining whether this policy applied in Payne’s case would

require us to determine how these requests to retain personal property were to be

made and in what timeframe, issues that simply cannot be resolved by the court on

the pleadings at the motion to dismiss stage.

These same ambiguities in the grievance process also create questions with

regard to exhaustion that cannot be resolved as a matter of at this stage based solely

upon the pleadings. The Prison Litigation Reform Act provides that “[n]o action

shall be brought with respect to prison conditions under ... [42 U.S.C. § 1983], or

any other Federal law, by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). While this exhaustion requirement is not a jurisdictional bar to litigation,

this requirement is strictly enforced by the courts. This rigorous enforcement is

mandated by a fundamental recognition that § 1997e's exhaustion requirement

promotes important public policies. See Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir.

2000).

“Failure to exhaust is an affirmative defense the defendant must plead and

prove; it is not a pleading requirement for the prisoner-plaintiff.” Small v. Camden

Cnty., 728 F.3d 265, 268-69 (3d Cir. 2013). In accordance with the PLRA, in order

to prevail on this affirmative defense a defendant must show that the prisoner failed

to comply with exhaustion requirements with respect to any claim that arises in the

prison setting, regardless of the type of claim asserted, or the relief sought. See Porter

v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies

to all inmate suits about prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or some other wrong.”);

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust

irrespective of the forms of relief sought and offered through administrative

avenues.”). As the statute's language makes clear, the exhaustion of available

administrative remedies prior to filing suit is mandatory. See Nyhuis v. Reno, 204

F.3d 65, 73 (3d Cir. 2000) (“[I]t is beyond the power of this court – or any other –

to excuse compliance with the exhaustion requirement, whether on the ground of

futility, inadequacy or any other basis.”) (quoting Beeson v. Fishkill Corr. Facility,

28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)).

Whether an inmate has exhausted administrative remedies is a question of law

that is to be determined by the court, even if that determination eventually requires

the resolution of disputed facts. See Small v. Camden Cnty., 728 F.3d 265, 271 (3d

Cir. 2013) (judges may resolve factual disputes relevant to the exhaustion issue

without the participation of a jury); see also Drippe v. Tobelinski, 604 F.3d 778, 781

(3d Cir. 2010). Moreover, when assessing an exhaustion claim, it is important to

note that the exhaustion requirement of the PLRA is one of “proper exhaustion.”

Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to comply with the procedural

requirements of the available grievance system will result in a claim being deemed

procedurally defaulted. Nyhuis v. Reno, 204 F.3d 65, 90 (3d Cir. 2000); Spruill v.

Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).

An inmate cannot circumvent the PLRA's exhaustion requirement by failing

to properly exhaust the prison's administrative review process, or by waiting until

such remedies are no longer available to him. Woodford, 548 U.S. at 95. However,

if an inmate shows that the actions of prison officials directly caused the inmate's

procedural default of a grievance, the inmate will not be held to strict compliance

with the exhaustion requirement. Brown v. Croak, 312 F.3d 109, 112-13. Likewise,

“[w]here [the inmate] failed to receive even a response to the grievances addressing

the . . . incidents, much less a decision as to those grievances, the [administrative

remedy] process was unavailable to him.” Small v. Camden Cnty., 728 F.3d 265,

273 (3d Cir. 2013). As the Supreme Court has observed: “the PLRA contains its

own, textual exception to mandatory exhaustion. Under § 1997e(a), the exhaustion

requirement hinges on the ‘availab[ility]’ of administrative remedies: An inmate,

that is, must exhaust available remedies, but need not exhaust unavailable ones.”

Ross v. Blake, 578 U.S. 632 642 (2016). We are also enjoined by the Supreme Court

to take a pragmatic approach to the issue of PLRA exhaustion and consider

exhaustion claims in light of “the real-world workings of prison grievance systems.”

Id. at 643. Adopting this pragmatic view, and examining exhaustion claims through

a real-world lens, The Supreme Court has acknowledged that administrative

remedies are effectively unavailable “when prison administrators thwart inmates

from taking advantage of [the grievance process] through machination,

misrepresentation, or intimidation.” Id. at 633.

Judged against these benchmarks, we find that there are issues of fact with

regard to whether Payne sufficiently exhausted his administrative remedies which

simply cannot be resolved at this stage. Indeed, this issue of exhaustion is

inextricably bound to the merits of this case, where it appears that Payne appealed

his claim at all levels of review, but the plaintiff describes the grievance process

being frustrated because the administration denied the confiscation ever took place

at every level and cited insufficient evidence, evidence that the plaintiff alleges

Defendant Stanbaugh suppressed and he was never provided.

The defendant argues that Payne failed to exhaust his administrative remedies,

as required by the PLRA because, although he appealed at all levels of review, he

procedurally defaulted by failing to follow the specific grievance procedures by

describing with particularity the grounds for his grievance appeal. The alleged

incident occurred on October 26, 2022. On November 1, 2022, Payne filed grievance

#1004766,4 alleging that Stanbaugh confiscated his legal work from another inmate

and that he had informed him he threw it away “because most of it was against DOC

officials lawsuits . . . and we can’t have you show people how to do that . . .” (Doc.

26-2). His initial grievance was denied because he failed to provide a copy of the

alleged confiscation slip, (id.), which the plaintiff stated in his amended complaint

Stanbaugh refused to give to him. (Doc. 25, ⁋⁋ 8-10). Payne then appealed his

grievance to the facility manager, who determined there was no evidence to support

his confiscation claim, once again seemingly relying upon the fact that Payne could

not produce a confiscation slip. (Doc. 26-2). Thus, at the institutional level, Payne’s

grievances were denied because of what the plaintiff asserts was one aspect of

Stanbaugh’s misconduct—his refusal to document the confiscation. Stymied in this

4 A court may consider “undisputedly authentic document[s] that a defendant

attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the

[attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998

F.2d 1192, 1196 (3d Cir.1993).

fashion, Payne then appealed to the Secretary’s Office of Inmate Grievances and

Appeals (SOIGA), stating “I am raising all issues and seeking all relief sought in my

initial grievance.” (Id.) But SOIGA determined that he failed to follow submission

procedures because an appeal to final review must contain a clearer statement of the

reason(s) for appealing the Facility Manager’s decision. (Id.)

Applying the Supreme Court’s pragmatic approach to this issue of PLRA

exhaustion and considering exhaustion claims in light of “the real-world workings

of prison grievance systems” and accepting all facts alleged by Payne as true, the

refusal of Stanbaugh to issue any record of the confiscation essentially frustrated

Payne’s attempts to effectively utilize the grievance system since at every level it

was found there was insufficient evidence to prove his claim. Moreover, given the

fact that the institution apparently denies the confiscation ever took place, and the

plaintiff alleges Stanbaugh never issued a confiscation slip for retaliatory reasons,

(Doc. 25, ⁋ 9), it is difficult to see what additional information could have been

provide by Payne to satisfy the prescribed submission procedures that SOIGA

claimed he failed to follow in his final appeal. Accordingly, dismissing this case on

the issue of exhaustion would be improper, since Payne has alleged he properly

exhausted his remedies, but was frustrated in his efforts to document this claim by

C.O. Stanbaugh’s violation of institutional rules, which is all that is required at this

stage. Small, 728 F.3d at 268-69.

In sum, the pleadings demonstrate that there are two conflicting narratives in

this case which require a more fulsome development of the record. But, in our view,

Payne’s more artful pleading of First Amendment retaliation against Stanbaugh in

this amended complaint at least clears the bar of this motion to dismiss where he

alleges Stanbaugh violated DOC policy in disposing of his legal paperwork without

the prescribed process.

2. The Defendant is Not Entitled to Sovereign Immunity from The

Plaintiff’s Negligence Claim.

We also recommend that Payne’s newly minted state law negligence claim

proceed. The defendant argues that the plaintiff’s negligence claim must be

dismissed because he is entitled to sovereign immunity. However, as the defendant

acknowledges, Pennsylvania has specifically waived sovereign immunity in cases

of negligent destruction of personal property, which is precisely what the plaintiff

has alleged in this case.

On this score, the defendant’s sovereign immunity argument stems from the

familiar proposition that the Commonwealth and its employees and officials enjoy

broad immunity from most state law claims, immunity that is expressly embraced

by statute, which provides that:

It is hereby declared to be the intent of the General Assembly that the

Commonwealth, and its officials and employees acting within the scope

of their duties, shall continue to enjoy sovereign immunity and official

immunity and remain immune from suit except as the General

Assembly shall specifically waive the immunity.

1 Pa.C.S.A. § 2310; see also Moore v. Commonwealth, 114 Pa.Cmwlth. 56, 538

A.2d 111, 115 (Pa.Commw.1988) (“In other words, if the Commonwealth is entitled

to sovereign immunity under Act 152, then its officials and employees acting within

the scope of their duties are likewise immune”). This grant of immunity:

Applies to Commonwealth employees in both their official and

individual capacities, so long as the employees are acting within the

scope of their duties. Conduct of an employee is within the scope of

employment if “it is of a kind and nature that the employee is employed

to perform; [and] it occurs substantially within the authorized time and

space limits.

Brautigam v. Fraley, No. 09–1723, 2010 WL 480856, *4 (M.D. Pa. Feb.4, 2010)

(cleaned up).

But this wide sweeping immunity is subject to certain statutory exemptions

that have been specifically articulated by the Pennsylvania legislature, including that

Commonwealth parties remain liable for any harm caused by “care, custody, or

control of personal property.” 42 Pa.C.S.A. 8522(b)(3). Section 8522, of Title 42,

Pennsylvania Consolidated Statutes provides a limited waiver of sovereign

immunity in certain specific instances, stating that:

(a) Liability imposed.—The General Assembly, ..., does hereby

waive, in the instances set forth in subsection (b) ..., sovereign

immunity as a bar to an action against Commonwealth parties, for

damages arising out of a negligent act where the damages would be

recoverable under the common law or a statute creating a cause of

action if the injury were caused by a person not having available the

defense of sovereign immunity.

(b) Acts which may impose liability.—The following acts by a

Commonwealth party may result in the imposition of liability on the

Commonwealth and the defense of sovereign immunity shall not be

raised to claims for damages caused by:

(3) Care, custody or control of personal property.—The 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.

42 Pa.C.S.A. § 8522(a) and (b)(3). “Because of the clear intent to insulate

government from exposure to tort liability, the exceptions to immunity are to be

strictly construed.” Lockwood v. City of Pittsburgh, 561 Pa. 515, 751 A.2d 1136,

1139 (Pa.2000) (citation omitted).

With this guiding principle in mind, we turn to the application of 42 Pa.C.S.A.

§ 8522(a) and (b)(3) to torts that occur in a prison setting. The Pennsylvania courts

have examined the application of § 8522(b)(3)'s “personal property” exception to

sovereign immunity in the context of prison tort claims on several occasions in

different factual settings. As construed by the Pennsylvania courts, this narrow

exception to sovereign immunity applies to damages claims made by inmates for

negligent damage to items of inmate personal property while that property is in the

possession of Commonwealth parties. Williams v. Stickman, 917 A.2d 915

(Pa.Cmwlth. 2007). Such claims are permitted against the Commonwealth pursuant

to § 8522(b) (3). In contrast, courts have rejected efforts by inmates to broadly claim

that this exception to sovereign immunity applies to all prisoner personal injury

claims, based upon the notion that the inmates themselves are in some fashion “in

the possession and custody of Commonwealth parties.” Gallagher v.

Commonwealth, 118 Pa.Cmwlth. 516, 545 A.2d 981 (Pa.Cmwlth.1988).

For his part, the defendant contends he was a Commonwealth employee, who

was acting within the scope of his employment in committing the acts alleged in this

complaint. He also insists that none of the narrowly crafted statutory exceptions to

sovereign immunity apply here because, although Payne has expressly pleaded a

claim of negligent care, custody, or control of his personal property, the factual

allegations in his complaint amount to an intentional tort and would not be statutorily

exempt from a grant of sovereign immunity. However, as previously discussed, at

this stage the ultimate fate of Payne’s legal paperwork is still somewhat of a mystery

and the parties assert two contrasting narratives regarding exactly if, when, and how

Payne’s paperwork was confiscated and destroyed. Moreover, while Payne has

alleged that Stanbaugh confiscated and disposed of his personal property in an

intentional and retaliatory manner in stating his First Amendment claim, he is also

entitled to, and indeed has, pled negligent treatment of this property in the

alternative. Moreover, the factual allegations in Payne’s amended complaint that

Stanbaugh breached his duty of handling his property in compliance with DOC

policy describes sufficiently careless conduct to meet the pleading standard of

negligence and therefore survives a motion to dismiss. Since the defendant has not

argued that Payne has failed to state a negligence claim, and we reject the

defendant’s argument that he cannot plead both an intentional constitutional

violation and a negligence in the alternative, we recommend the court deny the

defendant’s motion to dismiss this claim.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the

defendant’s motion to dismiss (Doc. 26), be DENIED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings,

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within

fourteen (14) days after being served with a copy thereof. Such party

shall file with the clerk of court, and serve on the magistrate judge and

all parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is

made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge,

however, need conduct a new hearing only in his or her discretion or

where required by law, and may consider the record developed before

the magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses, or recommit the matter to the magistrate judge with

instructions.

Submitted this 6th day of January 2025.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge