Leppien v. Harry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DANIEL S. LEPPIEN, :

Plaintiff : CIVIL ACTION NO. 3:23-1773

v. : (JUDGE MANNION)

LAUREL HARRY, et al., :

Defendants :

MEMORANDUM

Currently before the Court is Defendants’ motion to dismiss pro se

Plaintiff’s complaint in which he asserts claims under 42 U.S.C. §1983 for

constitutional violations against them. For the reasons stated below, the

Court will grant the motion in part and deny it in part, as well as provide

Plaintiff with leave to file an amended complaint.

I. BACKGROUND

Pro se Plaintiff Daniel S. Leppien (“Leppien”), a convicted state inmate,

commenced this action by filing a complaint on October 16, 2023.1 (Doc. 1.)

1 Although the Clerk of Court did not docket the complaint until October

26, 2023, Leppien indicated that he placed it in the prison mail system for

mailing on October 16, 2023. (Doc. 1 at 7.) Pursuant to the federal prisoner

mailbox rule, the Court deems the complaint to be filed as of October 16,

2023. See Houston v. Lack, 487 U.S. 266, 276 (1988) (concluding that

prisoner’s submission is deemed filed “at the time [the prisoner] delivered it

to the prison authorities for forwarding to the court clerk”).

Leppien named as Defendants Laurel Harry (“Harry”), the Secretary of the

Commonwealth of Pennsylvania Department of Corrections (“DOC”); M.

Gourley (“Gourley”), the Superintendent at Pennsylvania State Correctional

Institution Camp Hill (“SCI Camp Hill”); A. Davidson (“Davidson”), a Unit

Manager at SCI Camp Hill; M. Wright (“Wright”), a corrections officer at SCI

Camp Hill; and Lance R. Ossman (“Ossman”), an inmate at SCI Camp Hill.

(Id. at 1, 2–3; Doc. 1-1 at 1–2.)2 Leppien’s allegations primarily relate to

actions by Ossman, Wright, and Davidson during a period where he was

incarcerated in a Residential Treatment Unit (“RTU”) at SCI Camp Hill. (Id.

¶25.)

The Court starts with Leppien’s allegations against Ossman. On July

24, 2022, Leppien was in a dayroom in the RTU when Ossman attacked him.

(Doc. 1-1 ¶10.) While Leppien was seated at a table, Ossman grabbed him

and pulled him backwards over the table by his shirt. (Id.) While doing so,

Ossman stated, “[L]isten to me you one[-]eyed freak, I am going to stab out

2 In filing his complaint, Leppien filled out the form for civil rights

complaints by pro se prisoners (Doc. 1) and submitted a typewritten

complaint (Doc. 1-1). Due to the difficulty the Court had with reading

Leppien’s handwriting on the form complaint, the Court mostly relies on the

typewritten complaint in ascertaining Leppien’s factual allegations and

causes of action in this case.

your only good eye.” (Id.) Two (2) corrections officers intervened in the

assault, returned Ossman to his cell, and “locked him down for the day.” (Id.)

Following this assault, Leppien communicated to non-party Unit

Manager “Mr. Stracco,” that he wanted a “separation put in” against Ossman

because he felt Ossman had assaulted him, and he did not want Ossman on

the same block as him anymore. (Id. ¶¶12, 14.) Mr. Stracco told Leppien that

he did not consider what Ossman did to be an assault, and he refused to

place a separation order as Leppien had requested. (Id. ¶12.)

On August 5, 2022, Mr. Stracco called Leppien into his office and told

him to sign off on a grievance Leppien had filed relating to Ossman’s attack,

which was No. 990895. (Id. ¶14.) Mr. Stracco threatened Leppien to sign off

on the document, but Leppien refused to do so. (Id.) Leppien avers that he

received a denial of grievance No. 990895 on August 8, 2022. (Id. ¶15.)

On January 7, 2023, Leppien was once again sitting at a table in the

dayroom when he encountered Ossman. (Id. ¶16.) Ossman approached the

table and started shouting “nasty obscenities” at Leppien. (Id.) Ossman also

grabbed a book out of Leppien’s hand and stated, “Get the fuck away from

the book and the table.” (Id.) Ossman threaten to “fuck [Leppien] good” if he

did not leave. (Id.) Leppien left the table and returned to his cell. (Id.)

Ten (10) days later, Leppien submitted a grievance (No. 1017504)

under the Prison Rape Elimination Act (“PREA”) against Ossman. (Id.)

Because he did not receive a response to the grievance, Leppien contacted

SCI Camp Hill’s abuse hotline on January 19, 2023. (Id.) The following day,

SCI Camp Hill’s security team called Leppien to their office. (Id.) Leppien told

them that Ossman “was abusing him . . . and told explicit sexual ineundos

[sic] about what Ossman wanted to do to [him].” (Id.) Leppien later returned

to his cell, and security spoke to another inmate, Robert J. Ferraro, who was

at the table with Leppien when Ossman attacked him on July 24, 2022, to

get information about the altercation. (Id.)

On January 20, 2023, Leppien submitted another grievance pertaining

to Ossman in which he complained about Ossman retaliating against him.

(Id. ¶17.) Specifically, Leppien indicated that Ossman was seeking other

inmates to hit Leppien and informing them that Leppien was a child molester.

(Id.)

Another incident with Ossman occurred on July 6, 2023, when Leppien

was trying to use the phone to call his family. (Id. ¶18.) While Leppien was

on the phone, Ossman approached him and began screaming obscenities

at him. (Id.) Although Leppien told Ossman that he was on the phone,

Ossman shoved Leppien and then hung up his phone. (Id.) Leppien

attempted to walk away, only to have Ossman block him and tell him, “I’m

going to stab out your good eye,” “I’m going to fuck you because of your long

hair,” and “there is nothing anyone is going to do about it.” (Id.; see id. ¶21

(alleging that “Ossman went up to him and pushed him up against the wall

and told [him] that he was going to stab his good eye out and rape him”)).

Leppien was able to get away, but Ossman followed him until Leppien

reached his cell. (Id. ¶¶18, 21.) Upon returning to his cell, Leppien filled out

a grievance because “Sgt. Blaise” did not protect him. (Id. ¶19.)

Before completing the grievance, Ossman opened Leppien’s cell door

and said that he “should come in there and fuck [him] and let [him] bleed out

all over the floor.” (Id. ¶¶19, 21.) Then another inmate, Rodriguez, opened

the cell door and told Leppien that he was “going to come in there and beat

the shit out of [him].” (Id. ¶19.) Leppien’s cellmate, Ramon Jusino, Jr., told

Ossman and Rodriguez to close the door. (Id.) Leppien avers that this type

of incident with Ossman and Rodriguez happened twice that day. (Id.)

Leppien later finished the grievance. (Id.) In the grievance, Leppien

stated that he wanted security to view the camera footage so they could see

that Ossman had assaulted him. (Id.) The following day, a lieutenant from

security along with three (3) corrections officers appeared on the cell block,

handcuffed Ossman, “videotaped him,” and transported him to the

Disciplinary Treatment Unit (“DTU”). (Id.) In addition, they handcuffed

Rodriguez and transported him to the DTU. (Id.) Both inmates were sent to

the DTU based on their assault of Leppien and terroristic threats toward him.

(Id. ¶¶19, 23.) At some point on this same date, Leppien called the abuse

hotline at the prison. (Id. ¶22.)

As for Leppien’s allegations against Wright, Leppien generally alleges

that she abused him. (Id. ¶¶24–31.) Leppien avers that Wright has refused

to allow him to go to the yard on many occasions. (Id. ¶24.) Leppien asserts

that one (1) of those occasions occurred on May 10, 2023, when Wright

refused to allow him to go to the yard after he had returned to the cell block

from the law library. (Id.)

Leppien complains about another instance involving Wright’s abusive

conduct toward him, which occurred on the morning of May 29, 2023. (Id.

¶25.) At that time, Leppien and a Peer Educator, someone who “help[s] and

assist[s inmates] in personal matters of law, . . . help[s] write grievances and

even . . . help[s inmates] write to their families,” were sitting in the dayroom

on the cell block. (Id.) The Peer Educator was assisting Leppien with writing

and filing grievances against Wright because of the “abuse and targetting

[sic]” Leppien was receiving from her. (Id.) At some point while Leppien and

the peer educator were working together, Wright and another corrections

officer “screamed at [them] to take it into [their] cells.” (Id.)

Wright continued with this abusive conduct toward Leppien despite

being aware that Leppien has mental health issues. (Id. ¶26.) Wright would

tell other inmates to hit Leppien because of the charges against him and

would tell the other inmates why Leppien is incarcerated. (Id.) Although

Leppien reported Wright’s conduct toward him to the Psychiatric Support

Office, an employee there told him that “Wight [sic] is who she is and there

is nothing he can do about it.” (Id.) Leppien also submitted a grievance about

Wright’s conduct and a report to “OSII,” “a branch at Central Office for abuse

of inmates.” (Id. ¶¶26, 27.)

On June 14, 2023, Leppien was preparing to leave the cell block to use

the law library. (Id. ¶28.) Instead of giving him a pass to go, Wright refused

to allow him to leave the cell block. (Id.) She also told another inmate to

“punch out” Leppien and, if he did, she would “take care of him.” (Id.)

Then, on July 10, 2023, another inmate approached Leppien while

Leppien was in the yard. (Id. ¶29.) This inmate told Leppien that he had been

in the psychiatrist’s office the day prior with Wright. (Id.) While there, Wright

showed Leppien’s “case on the computer” to this inmate. (Id.) Leppien

submitted a grievance about this, and it appears that Davidson informed

Leppien that she reviewed video of the psychiatrist’s office on the date in

question and did not see Wright enter the office with the other inmate. (Id.)

Leppien claims that Davidson covered up Wright’s abuse. (Id.)

Not only was Davidson covering up Wright’s abuse, but Leppien

alleges that she was abusing him as well. (Id. ¶32.) In late May 2023, Leppien

received the resident of the week award. (Id.) Yet, approximately five (5)

days later, Davidson removed Leppien from his Peer Educator position. (Id.)

Davidson told Leppien that she removed him from the position because he

“had a poor job performance record with all the sergeant’s reports on” the

cell block. (Id.) Leppien asserts that this reason was fabricated and alleges

that the reason why he was removed from the position was because he was

filing grievances against Wright. (Id.)

Later in May 2023, Davidson refused to pay Leppien for eighty (80)

hours that he worked as a Muralist. (Id. ¶33.) Although the prior unit manager

had assigned Leppien to the payroll as a Muralist, Davidson stated that he

was never a Muralist on the cell block. (Id.) Leppien filed a grievance relating

to not being paid, but Davidson refused to “check into this matter” and

continued to refuse to pay him. (Id.)

In addition to these allegations against Ossman, Wright, and Davidson,

Leppien indicates that he wants to “sue . . . the [DC-]ADM 804 policy for

grievances.” (Id. ¶34.) He claims that each time he sends a grievance appeal

for final review with the DOC, his appeals are “turn[ed] down.” (Id.) He also

points out that there are times when the grievance coordinator fails to timely

respond to a grievance, which should result in the grievance being approved.

(Id.) However, instead of being approved, his grievances are denied despite

the untimely responses. (Id.) Based on these issues, Leppien claims that

“[t]his abuse on a ‘D code’ mental health inmate is unconstitutional,” and he

avers that the grievance system “needs to be revamped.” (Id.)

Overall, Leppien alleges that he “was abused, retaliated against,

targeted[,] and had all of his constitutionality taken away, which violated his

5th, 8th, and 14th Amendment right [sic].” (Id.) He “feels [that] $2,000,000

should be awarded in his favor.” (Id.) He also requests that Defendants be

enjoined from retaliating against him and assaulting him. (Doc. 1 at 5.)

When he filed his complaint, Leppien did not remit the filing fee or apply

for leave to proceed in forma pauperis. As such, an Administrative Order

issued on October 26, 2023, requiring Leppien to either remit the fee or seek

leave to proceed in forma pauperis in thirty (30) days or risk dismissal of this

action. (Doc. 4.) Leppien timely remitted the filing fee on November 17, 2023.

(Doc. 6.)

On November 29, 2023, the Court entered an Order which treated the

complaint as asserting claims for constitutional violations under 42 U.S.C.

§1983 and, therefore, dismissed Leppien’s claims against Ossman because

there were no allegations showing that Ossman acted under color of state

law for purposes of Section 1983 liability. (Doc. 7 at 4 & n.1.) In addition, the

Court directed that the Clerk of Court send waiver of service forms to the

remaining Defendants. (Id. at 1.)

Defendants Harry, Gourley, Davidson, and Wright waived service

(Doc. 10), and they filed a motion to dismiss the complaint under Federal

Rule of Civil Procedure 12(b)(6) on January 29, 2024 (Doc. 11.) Before

Defendants filed a brief in support of their motion, Leppien filed a “Motion to

Alter the Complaint and Judgement [sic] Under Fed.R.Civil.proc.Rule [sic]

59(E) [sic],” which the Clerk of Court docketed on February 27, 2024. (Doc.

14.) In this motion, Leppien appeared to ask the Court to treat the motion as

an amended complaint and allow him to add allegations about events that

have transpired since he filed his original complaint and add a new defendant

to the case. (Id. at ¶¶3, 5–9.)

Defendants initially treated Leppien’s motion as an amended complaint

and, as such, they filed a motion to dismiss the amended complaint on March

4, 2024. (Doc. 17.) On March 15, 2024, Defendants filed a motion for an

extension of time to file a brief in support of their motion to dismiss. (Doc.

18.). Then, on April 17, 2024, Defendants filed several documents, including,

a motion to withdraw their motion to dismiss the amended complaint, a

motion to partially dismiss the amended complaint, a motion to exceed the

page limitations set by Local Rule 7.8(b)(3), and a brief in support of their

motion to partially dismiss the amended complaint. (Docs. 20–23.)

Approximately a week later, Leppien filed a motion to compel

discovery. (Doc. 24). On July 19, 2024, Leppien filed “Rule 31(B)(c)(2)

Depositions by written [sic] Questions,” which appears to have been

intended for Defendants. (Doc. 25.)

On August 29, 2024, the Court, in the interests of judicial efficiency and

economy, entered an Order which, inter alia, (1) granted Leppien leave to

file an amended complaint by September 27, 2024, (2) denied Leppien’s

motion to compel discovery as premature, (3) dismissed Defendants’

motions to dismiss Leppien’s original complaint and purported amended

complaint without prejudice, and (4) directed the Clerk of Court to strike

Leppien’s interrogatories from the docket. (Doc. 26.) The Court also

instructed the parties that if Leppien did not file an amended complaint by

September 27, 2024, the case would proceed on his original complaint, and

Defendants could file an appropriate response to the original complaint. (Id.

¶10.) Leppien did not file an amended complaint, and Defendants filed the

instant motion to dismiss the original complaint and a brief in support of the

motion. (Docs. 27, 29.) Leppien has not filed a response in opposition to the

motion, and the time for him to do so has long passed. Therefore, the motion

to dismiss is ripe for disposition.

II. LEGAL STANDARD

A. Motions to Dismiss Under Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain

“a short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require detailed

factual allegations, but it demands more than an unadorned, the-defendant-

unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotations omitted). Thus, a complaint that contains only

“labels and conclusions,” or a “formulaic recitation of the elements of a cause

of action” is insufficient. Id.

A defendant may move to dismiss a complaint “for failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive

a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal,

556 U.S. at 678. Facial plausibility is achieved “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. Plausibility does not

require probability but “more than a sheer possibility that a defendant has

acted unlawfully.” Id. Facts “merely consistent with” liability do not satisfy this

standard. Id.

While the Court at this stage accepts the complaint’s factual allegations

as true, the Court does not do so to a plaintiff’s legal conclusions. See id.

(“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). In addition, “[d]etermining whether

a complaint states a plausible claim for relief” is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679.

This federal pleading standard requires district courts to conduct the

following analysis when addressing a motion to dismiss a complaint:

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 v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (internal

citations and quotations omitted).

Pro se filings must be construed “liberally.” Vogt v. Wetzel, 8 F.4th 182,

185 (3d Cir. 2021). That means that the Court should “remain flexible,” and

“apply the relevant legal principle even when the complaint has failed to

name it.” Id. It does not mean, however, that pro se litigants may “flout

procedural rules—they must abide by the same rules that apply to all other

litigants.” Id. Thus, “pro se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 245 (3d Cir. 2013).

B. The Court’s Continued Screening Obligation Under 28

U.S.C. §1915(e)(2)(B)

Because the Court previously granted Leppien leave to proceed in

forma pauperis, the Court has a continuing obligation to examine whether

his complaint is frivolous, malicious, fails to state a claim upon which relief

can be granted, or asserts a claim against a defendant immune from

monetary relief. See 28 U.S.C. §1915(e)(2)(B)(i)–(iii) (providing that

“[n]otwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines

that-- . . . (B) the action or appeal—(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks monetary relief

against a defendant who is immune from such relief” (emphasis added)). The

standard for dismissing a complaint for failure to state a claim pursuant to

Section 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling

on motions to dismiss under Rule 12(b)(6). See Tourscher v. McCullough,

184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard to

dismissal for failure to state claim under section 1915(e)(2)(B)). Therefore,

as explained above, to survive dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). Additionally, as with considering

Rule 12(b)(6) motions to dismiss, the court must liberally construe the

allegations set forth in a pro se plaintiff’s complaint when screening it under

Section 1915(e)(2)(B)(ii). See Shorter v. United States, 12 F.4th 366, 374

(3d Cir. 2021) (“At this early stage of the litigation, we accept the facts alleged

[in the pro se] complaint as true, draw all reasonable inferences in [the pro

se plaintiff’s] favor, and ask only whether that complaint, liberally construed,

. . . contains facts sufficient to state a plausible . . . claim.” (citation, internal

quotation marks, and all original alterations omitted)); see also Vogt, 8 F.4th

at 185 (“We construe Vogt’s pro se filings liberally. This means we remain

flexible, especially ‘when dealing with imprisoned pro se litigants’ like Vogt.”

(internal citations omitted) (quoting Mala, 704 F.3d at 244–45 )).

C. Section 1983

Section 1983 is the statutory vehicle by which private citizens may

seek redress for violations of federal constitutional rights committed by state

officials. See 42 U.S.C. §1983. This statute states in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution of laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state

actors.” Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa.

2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85 (2002)). “To

state a claim under §1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of

state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

III. DISCUSSION

A. Defendants’ Motion to Dismiss the Complaint

In their motion to dismiss, Defendants raise several challenges to

Leppien’s complaint. First, they argue that Leppien’s claims against Harry

and Gourley should be dismissed because he failed to allege that they were

personally involved in any constitutional violation. (Doc. 29 at 14–15.)

Second, they contend that the Court should dismiss any claims for Fifth

Amendment violations against them because they are state officials. (Id. at

15–16.) Third, they assert that Leppien’s claims fall under the First and

Eighth Amendments and, as such, the Court should dismiss his Fourteenth

Amendment claims pursuant to the “explicit source rule.” (Id. at 16–17.)

Fourth, they argue that Leppien failed to allege a plausible Eighth

Amendment conditions-of-confinement claim. (Id. at 17–23.) Fifth, they

contend that Leppien has failed to allege a plausible First Amendment

retaliation claim. (Id. at 23–25.) Sixth, and finally, they assert that the

Eleventh Amendment and the Prisoner Litigation Reform Act, 42 U.S.C.

§1997e (“PLRA”) bars Leppien’s Section 1983 official-capacity claims

against them. (Id. at 25–27.) The Court will address each of these

contentions in turn, although not in the same order Defendants presented

them.

1. Section 1983 Fifth Amendment Claims

Defendants argue that the Court should dismiss Leppien’s Section

1983 Fifth Amendment due process claims against them because it is

inapplicable to state officials. (Doc. 29 at 15–16.) The Court agrees.

Leppien purports to assert Fifth Amendment due process claims

against Defendants. (Doc. 1 at 5.) The Fifth Amendment, however, “restricts

the actions of federal officials, not state actors.” Highhouse v. Wayne

Highlands Sch. Dist., 205 F. Supp. 3d 639, 648 (M.D. Pa. 2016) (citing

Nguyen v. U.S. Cath. Conf., 719 F.2d 52, 54 (3d Cir. 1983)). Because

Plaintiff has sued only state officials, he has not pleaded an actionable Fifth

Amendment due process claim against them. Accordingly, the Court will

dismiss Leppien’s Section 1983 Fifth Amendment due process claims

against Defendants.

2. Section 1983 Official-Capacity Claims

Defendants move to have the Court dismiss Leppien’s Section 1983

official-capacity claims against them because the Eleventh Amendment bars

these claims. (Id. at 25–26.) They also contend that Leppien fails to request

prospective injunctive relief against them, and they are not “persons”

amenable to suit under Section 1983. (Id. at 25.) The Court concurs in part

and disagrees in part.

The Eleventh Amendment provides that “[t]he Judicial power of the

United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. This Amendment

has been interpreted to render states—and, by extension, state

agencies and departments and officials when the state is the real

party in interest—generally immune from suit by private parties

in federal court. Indeed, it has been recognized for over two

hundred years that a state’s immunity from suit in federal court is

a fundamental principle of our constitutional structure that

preserves, as intended by the Framers, the respect and dignity

of the states and protects the ability of the states “to govern in

accordance with the will of their citizens.”

Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir.

2002) (quoting Alden v. Maine, 527 U.S. 706, 751 (1999)). Eleventh

Amendment immunity extends to all state agencies, departments, and

entities “having no existence apart from the state.” Laskaris v. Thornburgh,

661 F.2d 23, 25 (3d Cir. 1981) (citation omitted). As such, the DOC, as an

agency of the Commonwealth of Pennsylvania, is entitled to the

Commonwealth’s Eleventh Amendment immunity. See 71 P.S. §61(a) (“The

executive and administrative work of this Commonwealth shall be performed

by the . . . Department of Corrections . . . .”); Lavia v. Pa., Dep’t of Corr., 224

F.3d 190, 195 (3d Cir. 2000) (stating that “[b]ecause the Commonwealth of

Pennsylvania’s Department of Corrections is a part of the executive

department of the Commonwealth, it shares in the Commonwealth’s

Eleventh Amendment immunity”); see also Downey v. Pa. Dep’t of Corr., 968

F.3d 299, 310 (3d Cir. 2020) (explaining that “state sovereign immunity

prohibit[ed]” plaintiff’s Section 1983 claims against the DOC).

In this case, Defendants are state officials for purposes of Section 1983

because they work for the DOC. A suit for monetary damages brought

against a state official in their official capacity “is not a suit against that official

but rather is a suit against that official’s office. As such, it is no different from

a suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S.

58, 71 (1989) (internal citation omitted); see also Kentucky v. Graham, 473

U.S. 159, 165–66 (1985) (“Official-capacity suits . . . ‘generally represent only

another way of pleading an action against an entity of which an officer is an

agent.’” (quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S 658,

690 n.55 (1978))). Thus, Leppien’s official-capacity claims for monetary

damages against Defendants constitute claims against the Commonwealth,

which is immune from such claims under the Eleventh Amendment. See Will,

491 U.S. at 66, 70–71.

There are, however, three (3) narrow exceptions to Eleventh

Amendment immunity potentially applicable to Leppien’s official-capacity

claims for monetary damages. The first two (2) exceptions are (1) if the state

waives its immunity or (2) Congress exercised its power under Section 5 of

the Fourteenth Amendment to override that immunity. See Graham, 473 U.S.

at 169 (“[A]bsent waiver by the State or valid congressional override, the

Eleventh Amendment bars a damages action against a State in federal

court.”). Neither of these exceptions apply here because the Commonwealth

of Pennsylvania has not waived its Eleventh Amendment immunity. See 42

Pa. C.S. §8521(b) (“Nothing contained in this subchapter shall be construed

to waive the immunity of the Commonwealth from suit in Federal courts

guaranteed by the Eleventh Amendment to the Constitution of the United

States.”); Lavia, 224 F.3d at 195 (explaining that Pennsylvania has not

waived its Eleventh Amendment immunity). In addition, Congress did not

intend to abrogate a state’s Eleventh Amendment immunity by enacting

Section 1983. See Quern v. Jordan, 440 U.S. 332, 344–45 (1979) (stating

that Ҥ1983 does not explicitly and by clear language indicate on its face an

intent to sweep away the immunity of the States; nor does it have a history

which focuses directly on the question of state liability and which shows that

Congress considered and firmly decided to abrogate the Eleventh

Amendment immunity of the States”).

As for the third exception, the Eleventh Amendment does not bar a

“suit[] against state officers for prospective relief to end an ongoing violation

of federal law.” MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d

Cir. 2001). Here, despite Defendants’ assertion to the contrary, Leppien has

requested prospective injunctive relief in the nature of an injunction

prohibiting any further retaliation or assaults against him. (Doc. 1 at 5.)

Therefore, although the Eleventh Amendment bars Leppien’s Section 1983

official-capacity claims for monetary damages against Defendants, it does

not bar Leppien’s official-capacity claims against them for prospective

injunctive relief.

3. Section 1983 Claims Against Harry and Gourley

Defendants argue that the Court should dismiss Leppien’s Section

1983 claims against Harry and Gourley because he did not allege their

personal involvement in any constitutional violation in his complaint. (Doc.

29 at 14–15.) The Court agrees.

Leppien’s allegations in his complaint relating to Gourley and Harry

consist only of their job descriptions. (Doc. 1-1 at 1.) He avers that Harry is

the “head” of the DOC and is “legally responsible for the overall operation of

the [DOC] and each institution under it’s [sic] jurisdiction, including SCI Camp

Hill . . . .” (Id.) As for Gourley, Leppien alleges that he is the Superintendent

of SCI Camp Hill and is “legally responsible for the overall operation of

SCI[]Camp Hill and for the welfare of all the inmates in that prison.” (Id.)

The Court construes these allegations as Leppien’s attempt to assert

Section 1983 claims against Gourley and Harry because they allegedly

supervise employees at SCI Camp Hill and the DOC, respectively. If so,

these claims are implausible because liability under Section 1983 cannot be

predicated on respondeat superior. See Chavarriaga v. N.J. Dep’t of Corr.,

806 F.3d 210, 227 (3d Cir. 2015) (“[Plaintiff] cannot predicate liability on her

§1983 claims on a respondeat superior basis.” (emphasis omitted) (citing

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988))); Robinson v.

Delbalso, No. 22-2378, 2022 WL 17248100, at *2 (3d Cir. Nov. 28, 2022)

(“We agree with the District Court that Robinson’s second amended

complaint did not state a plausible claim for relief. First, he failed to allege

the defendants’ personal involvement, and he cannot predicate liability on

his §1983 claims on a respondeat superior basis.” (internal citations

omitted)). Instead, if Leppien seeks to hold these Defendants liable for

unconstitutional acts by their alleged subordinates, his allegations must

satisfy one of two theories of supervisory liability: First, “[i]ndividual

defendants who are policymakers may be liable under §1983 if it is shown

that such defendants, with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly

caused [the] constitutional harm[;]” and second, “a supervisor may be

personally liable under §1983 if he or she participated in violating the

plaintiff’s rights, directed others to violate them, or, as the person in charge,

had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex

rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)

(citation omitted); see Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d

Cir. 2014) (explaining requirements for supervisory liability in Section 1983

claim and describing “two general ways in which a supervisor-defendant may

be liable for unconstitutional acts undertaken by subordinates”), rev’d on

other grounds sub nom., Taylor v. Barkes, 575 U.S. 822 (2015).

To allege a plausible claim for supervisory liability under the first

theory—the policy-and-practice strand of supervisory liability—a plaintiff

must

(1) identify the specific supervisory practice or procedure that the

supervisor failed to employ, and show that (2) the existing

custom and practice without the identified, absent custom or

procedure created an unreasonable risk of the ultimate injury, (3)

the supervisor was aware that this unreasonable risk existed, (4)

the supervisor was indifferent to the risk; and (5) the underling’s

violation resulted from the supervisor’s failure to employ that

supervisory practice or procedure. Put another way, the inmate

must identify the supervisor’s specific acts or omissions

demonstrating the supervisor’s deliberate indifference to the

inmate’s risk of injury and must establish a link between the

supervisor, the act, and the injury.

Chavarriaga, 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d

205, 216 (3d Cir. 2001)). For the second theory of supervisory liability—

participating in, directing others to, or knowledge and acquiescence of

constitutional violation—generalized allegations that a supervisory

defendant is “in charge of” or “responsible for” an office or facility are

insufficient to allege personal involvement in an underlying constitutional

violation. See Saisi v. Murray, 822 F. App’x 47, 48 (3d Cir. 2020)

(unpublished) (“Saisi asserted that some defendants were in charge of

agencies that allowed this to happen, and that liability stemmed merely from

defendants’ ‘belief’ that their conduct would be ‘tolerated.’ However, a

director cannot be held liable ‘simply because of [their] position as the head

of the [agency].’” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir.

2005))); Zigler v. Warren, No. 21-cv-19474, 2022 WL 903383, at *2 (D.N.J.

Mar. 28, 2022) (“In simpler terms, a supervisor is not liable for the

unconstitutional conduct of his employees solely because he is a

supervisor.”). Additionally, “[a]lthough a court can infer that a defendant had

contemporaneous knowledge of wrongful conduct from the circumstances

surrounding a case, the knowledge must be actual, not constructive.”

Chavarriaga, 806 F.3d at 222 (citing Baker v. Monroe Twp., 50 F.3d 1186,

1194 (3d Cir. 1995); Rode, 845 F.2d at 1201 n.6).

Here, Leppien’s allegations do not satisfy the second theory of

supervisory liability because there are no allegations that Harry or Gourley

participated in violating his rights, directed Wright or Davidson to violate

them, or, despite knowing what was happening to Leppien at SCI Camp Hill,

acquiesced in any violation. In addition, Leppien’s allegations do not satisfy

the first theory of supervisory liability because he has not identified a policy,

practice, or custom either Harry or Gourley established that led to the

violation of his constitutional rights. Accordingly, the Court will dismiss

Leppien’s Section 1983 claims against Harry and Gourley due to his failure

to state a plausible claim for relief against them.

4. The PLRA

Defendants contend that the Court should dismiss Leppien’s claims for

compensatory damages under the PLRA because he alleges that he

suffered only emotional injuries due to Wright and Davidson’s constitutional

violations. The Court agrees.

Pursuant to the PLRA, “[n]o Federal civil action may be brought by a

prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing of physical

injury or the commission of a sexual act (as defined in [18 U.S.C. §2246]).”

28 U.S.C. §1997e(e). To satisfy the PLRA, the plaintiff-prisoner must allege

a “less-than-significant-but-more-than-de minimis physical injury.” Mitchell v.

Horn, 318 F.3d 523, 534 (3d Cir. 2003). If a plaintiff fails to allege a sufficient

physical injury in the context of an alleged constitutional violation, they may

not seek an award of compensatory damages; however, they may still seek

nominal or punitive damages as well as injunctive or declaratory relief. See

id. at 533; see also Allah v. Al-Hafeez, 226 F.3d 247, 251–52 (3d Cir. 2000)

(concluding that Section 1997e(e) does not bar plaintiff from seeking award

of nominal or punitive damages for alleged constitutional violation).

Here, Leppien includes no allegations in his complaint that he was

physically injured (including during his altercations with Ossman). He claims

to have been harassed, threatened, and humiliated by Wright or Davidson,

but those allegations are insufficient to satisfy Section 1997e(e)’s physical

injury requirement. Therefore, the Court will dismiss Leppien’s Section 1983

claims for compensatory damages.

5. The “More-Specific Provision Rule”

Defendants argue that the Court should dismiss Leppien’s Fourteenth

Amendment due process claims under the “more-specific provision rule”

because his allegations constitute Eighth Amendment and First Amendment

claims. (Doc. 29 at 16–17.) The Court agrees.

Under the “more-specific-provision rule,” “if a constitutional claim is

covered by a specific constitutional provision, such as the Fourth or Eighth

Amendment, the claim must be analyzed under the standard appropriate to

that specific provision, not under the rubric of substantive due process.” Betts

v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (quoting

United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). In this case, when

liberally construing the complaint due to Leppien’s pro se status, the Court

understands him to be asserting not only a First Amendment retaliation claim

against Davidson, but also claims relating to either the conditions of his

confinement or the failure to protect him, which are both Eighth Amendment

violations. See Smith v. McGinley, No. 3:22-cv-1382, 2024 WL 2725041, at

*4 (M.D. Pa. May 28, 2024) (“There are several types of Eighth Amendment

claims, including claims alleging: denial of, or inadequate access to, medical

care; exposure to adverse conditions of confinement; the use of excessive

force; and failure to protect from assaults by other inmates.”), aff’d, No. 24-

2173, 2024 WL 4589233 (3d Cir. Oct. 28, 2024). Accordingly, the Court will

dismiss Leppien’s Section 1983 Fourteenth Amendment due process claims

because these claims appear to be covered by the First and Eighth

Amendments.

6. Eighth Amendment Claims

Defendants move to have the Court dismiss Leppien’s Eighth

Amendment claims in their entirety for a few reasons. (Doc. 29 at 17–23.)

First, they argue that Leppien has failed to include sufficient allegations that

they failed to protect him from Ossman. (Id. at 18–20.) They point to

Leppien’s grievances attached to his complaint to show that they “addressed

each incident involving Ossman and each incident was followed by prompt

investigation. When the investigation indicated that action was necessary to

prevent Ossman from assaulting [Leppien, they] took immediate steps to

separate Ossman from [Leppien].” (Id. at 18.) They also note that Leppien

essentially sporadically complained of Ossman’s conduct over an entire year

and, during that time, they were unaware that Leppien was at a substantial

risk of harm. (Id. at 18–20.) Second, Defendants contend that Leppien has

not plausibly alleged Eighth Amendment conditions-of-confinement claims

because the loss of his job as a Peer Educator (or as Muralist) does not rise

to an Eighth Amendment violation. (Id. at 21.) Finally, they argue that

Leppien’s allegations are contradicted by the documents relating to

grievances he filed, which he has attached to his complaint. (Id. at 21–23.)

After liberally construing the complaint, the Court understands Leppien

to be asserting Eighth Amendment failure-to-protect claims based on his

interactions with Ossman and Wright’s actions in informing other inmates

about Leppien’s charges as well as directing them to hit him. The Court also

understands Leppien to be asserting Eighth Amendment conditions-of-

confinement claims based on Wright and Davidson’s conduct towards him.

Based on this understanding, the Court will grant the motion as to his Eighth

Amendment failure-to-protect claim pertaining to Ossman (albeit for a

different reason than argued by Defendants) and his conditions-of-

confinement claims but deny it to the extent Defendants sought to dismiss

his failure-to-protect claim against Wright pertaining to her comments about

him to other inmates.

Preliminarily, the Court addresses a component of Defendants’

arguments for dismissal of Leppien’s Eighth Amendment claims, as well as

his First Amendment claims, namely, their reliance on the grievance-related

documents he attached to his complaint. The Court recognizes that “[t]o

decide a motion to dismiss, courts generally consider only the allegations

contained in the complaint, exhibits attached to the complaint and matters of

public record.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). The Court also recognizes that if a Plaintiff’s

“own exhibits contradict [their] allegations in the complaint, the exhibits

control.” Vorchheimer v. Philadelphian Owners Ass’n, 903 F.3d 100, 112 (3d

Cir. 2018) (citations omitted). Nevertheless, considering Leppien’s exhibits

in the manner Defendants seek to have the Court consider them would

permanently turn prisoner-plaintiffs’ civil rights actions on their heads.

For instance, in arguing that Leppien has failed to state a plausible

conditions-of-confinement claim, Defendants point to Leppien’s exhibit H to

his complaint, which consists of copies of his grievance about Wright denying

him access to use the yard as well as other documents relating to the

grievance as Leppien pursued it through the DOC. See (Docs. 29 at 22; 1-9

at 1–5). Defendants argue that this exhibit contradicts Leppien’s allegations

because it “states that inmates are not permitted to access the yard except

for at the start and at half time, and [Leppien] did not attempt to gain access

to the yard at either of those times.” (Doc. 29 at 22.) In arguing this purported

contradiction, Defendants are relying on the information stated in the Initial

Review Response to Leppien’s grievance (Doc. 1-9 at 3) and the Facility

Manager’s response to Leppien’s appeal from the denial of his grievance (id.

at 5). Stated plainly, Defendants want the Court to accept the information

stated in these responses as true.

Defendants do not cite to any authority stating that a district court may

consider the substance of a prison’s response to a grievance if that response

happens to be attached to a complaint. Undoubtedly, this Court could

consider the grievance-related documents at this stage if Defendants had

moved to dismiss the complaint based on a failure to exhaust administrative

remedies. See Rinaldi v. United States, 904 F.3d 257, 261 n.1 (3d Cir. 2018)

(explaining that a court may consider “indisputably authentic documents

related to [an inmate’s] grievances” in deciding a motion to dismiss for failure

to exhaust without needing to convert the motion into a motion for summary

judgment). However, doing so merely requires the Court to consider the

documents themselves rather than requiring the Court to determine that the

information contained within the documents is true. See In re Island Indus.,

Inc., No. 23-5200, 2024 WL 869858, at *2 (6th Cir. Feb. 29, 2024) (“When

entertaining a motion to dismiss, a court can consider documents attached

to the complaint and may take judicial notice of documents from earlier

proceedings ‘only for the fact of the documents’ existence, and not for the

truth of the matters asserted therein.’” (quoting Passa v. City of Columbus,

123 F. App’x 694, 697 (6th Cir. 2005) (unpublished))); In re Lehman Bros.

Sec. and ERISA Litig., 903 F. Supp. 2d 152, 168–69 (S.D.N.Y. 2012) (“[A]

document that is integral to a complaint in the sense that the plaintiff had

actual notice of and relied upon it in framing the complaint, is properly

considered, albeit not for the truth of the matters asserted, notwithstanding

that it has not been attached to or incorporated by reference into the

complaint” (citations omitted)); see also Staehr v. Hartford Fin. Servs. Grp.,

Inc. 547 F.3d 406, 425 (2d Cir. 2008) (“[I]t is proper to take judicial notice of

the fact that press coverage, prior lawsuits, or regulatory filings contained

certain information, without regard to the truth of their contents . . . .”

(emphasis in original)). If the Court considered the response to the grievance

to be true, the Court would be essentially finding Leppien’s grievance to be

incredible while finding the prison official’s response to the grievance

credible, which would be outside the Court’s authority when deciding a

motion to dismiss. See, e.g., Hemingway v. Falor, 200 F. App’x 86, 91 (3d

Cir. 2006) (unpublished) (determining that district court’s reliance on

response to prisoner-plaintiff’s grievance indicating responding party lacked

authority concerning plaintiff’s medical treatment to dismiss deliberate-

indifference claim due to responding party’s lack of authority over treatment

was in error; however, error was ultimately determined to be harmless).

Ultimately, this would result in any disputes between a prisoner-plaintiff’s

allegations and the information a prison official sets forth in a response to a

grievance being decided in favor of the prison official, which is untenable.

Therefore, although the Court has considered all documents Leppien

attaches to his complaint in resolving Defendants’ motion to dismiss, the

Court will not follow Defendants’ suggestion that the Court deem certain

contents of those documents to be true.

Turning now to whether Leppien has failed to state plausible Eighth

Amendment claims, the Court starts with his failure-to-protect claims. For a

prisoner-plaintiff to plausibly allege an Eighth Amendment failure-to-protect

claim they must allege that: (1) they were incarcerated under conditions

posing a substantial risk of serious harm; and (2) the prison officials involved

had a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S.

825, 834 (1994). Specifically, the inmate must allege facts showing that the

prison official knew of and disregarded an excessive risk to inmate health or

safety. See Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).

As indicated above, Leppien appears to have two (2) failure-to-protect

claims: a claim relating to the failure to protect him from Ossman’s assaults,

and a claim relating to Wright’s conduct. Regarding the first claim, while

Defendants identify aspects of the documents attached to the complaint

which could show that they did not know of or disregard an excessive risk to

Leppien’s health or safety, his claim fails for a different reason, namely, his

failure to specifically allege that any named Defendant failed to protect him.

There are no allegations in the amended complaint that tie Harry, Gourley,

Wright, or Davidson to Leppien’s allegations about Ossman. Leppien

mentions other prison officials in the complaint and in his grievance

documents, but those individuals are not named as defendants in this case.

Accordingly, the Court will dismiss Leppien’s failure-to-protect claims

concerning Ossman due to the lack of allegations showing the personal

involvement of any Defendant in failing to protect him from Ossman. See

Rode, 845 F.2d at 1207 (“A defendant in a civil rights action must have

personal involvement in the alleged wrongs . . . .”).

Concerning his second failure-to-protect claim, Defendants do not

appear to have interpreted the complaint as containing such a claim because

they did not mention it in their brief in support of their motion to dismiss.

Nevertheless, because Leppien is proceeding pro se, this Court must

“remain flexible,” and “apply the relevant legal principle even when the

complaint has failed to name it.” Vogt, 8 F.4th at 185.

Leppien generally alleges that Wright told other inmates about his

“charges,” showed an inmate Leppien’s “case” on the computer, and told

inmates that he is a “child molester.” (Doc. 1-1 ¶¶26–27, 29.) These

allegations are sufficient to state a plausible failure-to-protect claim. See

Allam v. McGinley, No. 1:20-cv-933, 2022 WL 993072, at *6 (M.D. Pa. Feb.

25, 2022) (“Similar to being labeled a snitch, labeling an inmate as a sex

offender can endanger an inmate’s safety. See Hutchinson v. Smeal, No.

1:11-CV-320, 2012 WL 1038657, at *2 (M.D. Pa. Mar. 27, 2012) (finding that

inmates who are labeled as sex offenders are highly stigmatized and

endangered in a prison setting); see Moore v. Wetzel, No. 14-CV-1709, 2015

WL 7163114, at *3 (W.D. Pa. Nov. 13, 2015) (finding that a substantial risk

of serious harm is created for an inmate who is labeled a child molester).”),

report and recommendation adopted, 2022 WL 987739 (M.D. Pa. Mar. 31,

2022). In addition, simply because Leppien has not alleged that he was

physically harmed by another inmate due to Wright’s statements does not

take away from the plausibility of this claim. See Farmer, 511 U.S. at 845

(“[A] subjective approach to deliberate indifference does not require a

prisoner seeking a remedy for unsafe conditions to await a tragic event such

as an actual assault before obtaining relief.”). While Leppien may not be able

to recover monetary damages due to the lack of any physical harm, the

“fail[ure] to allege that physical harm has occurred . . . does not preclude him

form seeking injunctive relief to prevent such an assault from occurring in the

future.” Allam, 2022 WL 993072, at *7. Therefore, Leppien may proceed with

his Eighth Amendment failure-to-protect claim against Wright based on his

allegations that she is telling other inmates that he is a child molester.

As for Leppien’s possible conditions-of-confinement claims, the Court

notes that the Eighth Amendment prohibits any punishment which violates

civilized standards of humanity and decency. See Griffin v. Vaughn, 112 F.3d

703, 709 (3d Cir. 1997) (citing Young v. Quinlan, 960 F.2d 351, 361 (3d Cir.

1992)). To succeed on a claim that the conditions of confinement were

violative of a plaintiff's Eighth Amendment rights, “a plaintiff must

demonstrate both that (1) [they have] been denied ‘the minimal civilized

measure of life's necessities,’ and (2) that prison officials acted with

deliberate indifference to those conditions.” Whitney v. Wetzel, 649 F. App’x

123, 127 (3d Cir. 2016) (unpublished) (citing Farmer, 511 U.S. at 833–34).

The first prong is objective. Griffin, 112 F.3d at 709. While prison

conditions are often less than ideal, only extreme deprivations of life’s basic

necessities are sufficient to violate the Eighth Amendment's prohibition on

cruel and unusual punishment. Farmer, 511 U.S. at 834 (1994). Prison

officials have a duty to provide humane conditions of confinement, but the

constitution does not mandate comfortable prisons. See Carson v. Mulvihill,

488 F. App’x 554, 560 (3d Cir. 2012) (unpublished). Indeed, prison officials

must ensure that inmates receive adequate food, clothing, shelter and

medical care and they must take “reasonable measures” to guarantee

inmate safety from violence at the hands of other prisoners. Farmer, 511

U.S. at 832.

The second prong is subjective. A prison official cannot be found liable

under the Eighth Amendment unless they act with deliberate indifference;

that is: “unless the official knows of and disregards an excessive risk to

inmate health or safety.” Farmer, 511 U.S. at 837–38; Hamilton, 117 F.3d at

476. Deliberate indifference requires obduracy and wantonness that

constitutes recklessness or a conscious disregard of a serious risk. See

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Farmer, 511 U.S.

at 842).

Here, the Court finds that Leppien has failed to plead a plausible

conditions-of-confinement claim. In so finding, the Court focuses on

Leppien’s allegations against Wright and Davidson as Leppien did not allege

the personal involvement of Harry or Gourley in any alleged constitutional

violation. Leppien’s allegations against Wright amount to her (1) refusing to

allow him to go to the law library on one occasion, (2) refusing to allow him

to go into the yard on multiple occasions, and (3) screaming at him and

another inmate to go back into their cells on one occasion.3 These

allegations are insufficient to show that Leppien has been deprived of “[t]he

minimal civilized measure of life’s necessities.” Mammana v. Fed. Bureau of

Prisons, 934 F.3d 368, 373 (3d Cir. 2019). The only one of these allegations

potentially applying to his conditions of confinement is his allegation that

Wright denied him access to the yard on multiple occasions, which the Court

interprets as an allegation that he was being denied exercise. However, “[t]he

lack of exercise may rise to the level of an Eighth Amendment violation [only]

‘in extreme and prolonged situations where movement is denied to the point

3 His other allegations against Wright fall under his failure-to-protect

claim against her.

that the inmate’s health’s is threatened.” Jordan v. Wetzel, No. 16-cv-307,

2020 WL 410162, at *4 (W.D. Pa. Jan. 24, 2020) (quoting Antonelli v.

Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996)). Leppien’s allegations do not

describe how often he was denied exercise or that he suffered any health

consequences because of it. Therefore, the Court will dismiss Leppien’s

conditions-of-confinement claim against Wright.

Concerning Leppien’s conditions-of-confinement claim against

Davidson, he has also failed to plead a plausible claim for relief. His

allegation about Davidson terminating him as a Peer Educator is insufficient.

See Watson v. Sec’y Pa. Dep’t of Corr., 567 F. App’x 75, 78 (3d Cir. 2014)

(unpublished) (affirming district court’s dismissal of plaintiff’s conditions-of-

confinement claim “[b]ecause a prison job is not one of life’s necessities”).

Similarly, his allegation about Davidson refusing to pay him for a work as a

Muralist is insufficient because he does not allege that he was unable to

properly care for himself due to not being paid. Accordingly, the Court will

also dismiss his conditions-of-confinement claim against Davidson.

7. First Amendment Retaliation

Defendants contend that Leppien has failed to plead a plausible First

Amendment claim “because there are insufficient averments to establish a

causal connection” between any protected activity and an adverse action.

(Doc. 29 at 24.) They assert that (1) Leppien was never employed as a

muralist and (2) his employment as a Peer Educator was terminated a day

after a poor performance review. (Id. at 24–25.) In support of these

assertions, they point out that Leppien’s “inmate employment record does

not state he is a Muralist, nor did he have an agreement stating he was

employed as a Muralist.” (Id. at 25.) Moreover, they indicate that inmates do

not have the right to be assigned or continue to work in any specific work

assignment per prison policy. (Id.) As discussed below, the Court will deny

this part of Defendants’ motion.

To plead a prima facie case of retaliation in violation of the First

Amendment, a plaintiff must allege the following elements: “(1)

constitutionally protected conduct, (2) retaliatory action sufficient to deter a

person of ordinary firmness from exercising his constitutional rights, and (3)

a causal link between the constitutionally protected conduct and the

retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).

“Although the elements of a First Amendment retaliation claim remain

constant, the underlying concepts that they signify will vary with the setting—

whether activity is ‘protected’ or an action is ‘adverse’ will depend on context

. . . .” Thaddeus-X v. Blatter, 175 F.3d 378, 388 (6th Cir. 1999). The fact of

incarceration and the valid penological objectives of deterrence of crime,

rehabilitation of prisoners, and institutional security justify limitations on the

exercise of constitutional rights by inmates. See Pell v. Procunier, 417 U.S.

817, 822–23 (1974). Thus, a prison inmate “retains [only] those rights that

are not inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.” Id. at 822.

In this case, Leppien has sufficiently alleged that he engaged in

protected conduct insofar as he filed grievances against Wright. Additionally,

Leppien has alleged that he suffered adverse action in response to his filing

of grievances against Wright, namely, Davidson removing him from his job

as a Peer Educator and refusing to pay him for his work as a Muralist.

Defendants’ arguments about Leppien not sufficiently pleading

adverse action are unpersuasive in two (2) respects. First, regardless of the

prison’s policy about inmates’ rights to their prison jobs, “the termination of

prison employment constitutes adverse action sufficient to deter the exercise

of First Amendment rights.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir.

2017) (citing Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991)); see

also Williams, 926 F.2d at 998 (“[A prisoner] has no right to a job . . . [but]

prison officials cannot punish [him for] exercising his first amendment rights

by denying him certain job assignments or transferring him from one job to

another” (alterations in original)). Second, the Court cannot consider prison

officials’ responses to Leppien’s grievances for the truth of the matters

contained in those responses. By identifying those responses and stating

that they demonstrate that there were reasons unrelated to Leppien’s

protected activity to terminate his employment and to not pay him,

Defendants are essentially putting forward their “same decision defense” at

the motion to dismiss stage. See Calloway v. Bauman, No. 3:20-cv-2337,

2022 WL 4357468, at *8 (M.D. Pa. Sept. 20, 2022) (“If a prisoner establishes

a prima facie case of retaliation, the burden shifts to prison officials to show,

by a preponderance of the evidence, that ‘they would have made the same

decision absent the protected conduct for reasons reasonably related to a

legitimate penological interest.’ Rauser[ v. Horn, 241 F.3d 330, 334 (3d Cir.

2001)] ‘This is often referred to as the “same decision defense.”’ Watson v.

Rozum, 834 F.3d 417, 422 (3d Cir. 2016). If the prison officials can make

this showing, it defeats the retaliation claim. See Carter v. McGrady, 292

F.3d 152, 159 (3d Cir. 2002).”). Therefore, although Defendants appear to

have identified a legitimate reason unrelated to Leppien’s engagement in

protected activity for the loss of his job (as well as not paying him, see (Doc.

1-16)), it is improper for this Court to consider those reasons in ruling on their

motion to dismiss. Accordingly, Defendants’ motion to dismiss Leppien’s

First Amendment retaliation claim against Davidson is denied.4

B. Leppien’s Challenge to the DOC’s Grievance System

Leppien indicates in his complaint that he wants to challenge the

DOC’s grievance system, DC-804, because he believes it does not work and

needs to be “revamped.” (Doc. 1-1 ¶ 34.) The Court has screened this claim

under Section 1915(e)(2)(B) and will dismiss it for the failure to state a

plausible claim.

Prisoners do not have a constitutionally protected interest in a

grievance system. See Rieco v. Scire, 672 F. App’x 192, 193 (3d Cir. 2017)

(affirming district court’s dismissal of prisoner-plaintiff’s due process claim

relating to grievance system “because inmates do not have a

constitutionally-protected right to a prison grievance system”); Massey v.

Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“The courts of appeals that have

confronted the issue are in agreement that the existence of a prison

4 Despite arguing that Leppien failed to show a causal connection,

Defendants did not focus on the timing between his alleged activity and any

adverse action. See Mearin v. Greene, 555 F. App’x 156, 158–59 (3d Cir.

2014) (unpublished) (explaining that to show a causal connection, a plaintiff

must show either a suggestive temporal proximity between the protected

activity and the allegedly retaliatory action or a pattern of antagonism

coupled with timing (citing Lauren W. ex. rel. Jean W. v. Deflaminis, 480 F.3d

259, 267 (3d Cir. 2007))). As such, the Court has not addressed it here.

grievance procedure confers no liberty interest on a prisoner.”). Thus,

“[v]iolations of grievance procedures do not give rise to a cognizable claim

under [Section 1983, and] . . . any allegations of improprieties in the handling

of [a plaintiff’s] grievances do not state a cognizable claim under [Section]

1983.” Bailey v. Rozum, No. 13-cv-78, 2015 WL 14094690, at *2 (W.D. Pa.

May 6, 2015), report and recommendation adopted sub nom., 2015 WL

14094689 (W.D. Pa. June 8, 2015).

C. Leave to Amend

Having determined that some of Leppien’s claims against Defendants

in his complaint are subject to dismissal, the Court must decide whether to

grant him leave to file an amended complaint. Although district courts should

generally give leave to amend, they may dismiss a complaint with prejudice

where leave to amend would be inequitable or futile. See Fletcher-Harlee

Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007)

(“[I]n civil rights cases district courts must offer amendment—irrespective of

whether it is requested—when dismissing a case for failure to state a claim

unless doing so would be inequitable or futile.”); Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“When a plaintiff does not seek

leave to amend a deficient complaint after a defendant moves to dismiss it,

the court must inform the plaintiff that [they have] leave to amend within a

set period of time, unless amendment would be inequitable or futile.”). “In

determining whether [amendment] would be futile, the district court applies

the same standard of legal sufficiency as [it] applies under Fed. R. Civ. P.

12(b)(6).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d

Cir. 1997).

In this case, the Court finds that it would be futile for Leppien to amend

his complaint as to his Section 1983 official-capacity claims for monetary

damages, Fifth and Fourteenth Amendment due process claims, Eighth

Amendment conditions-of-confinement claims against Wright and Davidson,

and requests for compensatory damages.5 On the other hand, the Court

finds that Leppien should have the opportunity to amend his complaint

relating to his Section 1983 claims against Gourley and Harry, as well as his

Eighth Amendment failure-to-protect claim relating to Ossman.

IV. CONCLUSION

Based on the aforesaid, the Court will grant the motion to dismiss to

the extent Defendants moved to dismiss Leppien’s Fifth and Fourteenth

5 Although amendment of Leppien’s Section 1983 official-capacity

claims is futile, they will be dismissed without prejudice. See, e.g., Merritts v.

Richards, 62 F.4th 764, 772 (3d Cir. 2023) (explaining that “Eleventh

Amendment immunity is a threshold, nonmerits issue that does not entail any

assumption by the court of substantive law-declaring power, and a dismissal

on that basis, like dismissals for lack of jurisdiction, should normally be

without prejudice” (internal citations and quotation marks omitted)).

Amendment due process claims, Section 1983 official-capacity claims for

monetary damages, Section 1983 claims against Gourley and Harry, Eighth

Amendment conditions-of-confinement claims, Eighth Amendment failure-

to-protect claim relating to Ossman, and claims for compensatory damages.

The Court will deny the motion to the extent Defendants sought dismissal of

Leppien’s First Amendment retaliation claim against Davidson. Additionally,

pursuant to the Court’s screening of the complaint under Section

1915(e)(2)(B), the Court will dismiss Leppien’s Section 1983 claim pertaining

to the DOC’s grievance policy but allow him to proceed on an Eighth

Amendment failure-to-protect claim for injunctive relief against Wright. The

Court will grant Leppien leave to file an amended complaint as to his Section

1983 claims against Gourley and Harry as well as his Eighth Amendment

failure-to-protect claim relating to Ossman. An appropriate Order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 18, 2025

23-cv-1773-01