# DAVIS

> District Court, W.D. Pennsylvania · July 22, 2022

URL: https://www.frixlaw.com/law-library/cases/11342324

## Case

- **Full name:** Keith Vernon Davis v. Barry Smith, et al.
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11342324

## How later opinions describe it (automated extraction)

- declining to adopt the Restatement (Third) of Torts: Products Liability

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEITH VERNON DAVIS, )
)
Plaintiff, )
)
vs ) Civil Action No. 3:21-135
)
) Magistrate Judge Dodge
BARRY SMITH, et al., )
)
Defendants. )

REPORT AND RECOMMENDATION

I. Recommendation
It is respectfully recommended that Defendants’ Motion to Dismiss (ECF No. 37) be
granted in part and denied in part.
II. Report
Plaintiff, Keith Vernon Davis (“Davis”), a prisoner who is incarcerated in the State
Correctional Institution at Houtzdale, Pennsylvania (“SCI Houtzdale”), brings this pro se civil
rights action against ten employees at SCI Houtzdale (Facility Manager Barry Smith, Unit
Counselor Amy Ginter, Unit Managers C.S. Miller and Daniel Mowrey, PREA1 Compliance
Officer Michelle Ivicic, Deputy Superintendent of Facility Management David Close, Building
Major Joel Barrows, Grievance Counselor Susan Hnatkovich, Corrections Officer Rooney and
Correctional Security Lieutenant S. Woomer) (collectively referred to as the “Corrections
Defendants”), as well as another prisoner, Shawn Clancy, and two “John Doe” correctional
officer defendants.
Davis’s claims arise out of Clancy’s destruction of his property, followed by Clancy’s

1 PREA stands for Prison Rape Elimination Act.
false accusation of Davis of inappropriately touching him. This resulted in Davis being sent to
the Restricted Housing Unit (“RHU”) and held there even after he was exonerated from the false
charges. He further alleges that some of his property was not brought to him in the the RHU and
that he suffered retaliation after filing this case.

A. Procedural History
Davis initiated this action on May 6, 2021 in the United States District Court for the
Middle District of Pennsylvania by submitting a Complaint without the filing fee or a motion to
proceed in forma pauperis. He then paid the filing fee and the case was subsequently transferred
to this Court. In response to a previously filed motion to dismiss, Davis filed an Amended
Complaint that eliminated some of the defendants, added others and revised some of the claims
asserted (ECF No. 41).
Federal question jurisdiction is based on the civil rights claims, which Davis asserts under
the First, Eighth and Fourteenth Amendments to the United States Constitution pursuant to 42
U.S.C. § 1983. He also cites the Privileges and Immunities Clause of Article IV, § 2; the Oath or

Affirmation Clause of Article VI; 42 U.S.C. §§ 1981, 1985, 1986 and 2000d, the Americans
With Disabilities Act (ADA), various provisions of the Pennsylvania Constitution and the
“Pennsylvania Restatement (Second) of Torts.” Finally, he asserts state law claims of negligence,
willful misconduct and intentional infliction of emotional distress.
Currently pending before the Court is a motion to dismiss filed by the Corrections
Defendants (ECF No. 37), which has been fully briefed (ECF Nos. 38, 60). For the reasons that
follow, their motion should be granted in part and denied in part.
B. Factual Background
Davis alleges that, on January 29, 2021, Clancy, who had recently been assigned as his
cellmate, informed him that he had broken Davis’s television while jumping down from the top
bunk. Davis informed Unit Counselor Amy Ginter and Clancy promised to repay him for the
broken television. A few weeks later, Clancy told Davis that his sister or girlfriend would be
depositing the funds in Davis’s prison account. Two days later, however, Davis was seized while

in the infirmary and placed in the RHU because Clancy had filed a PREA complaint against him.
(Am. Compl. ¶¶ 1-5) (ECF No. 41.)
On February 17, 2021, the Program Review Committee (“PRC”), consisting of Michelle
Ivicic, David Close and Joel Barrows, came to Davis’s cell door in the RHU and asked if he was
aware of why he had been placed there. He told the PRC members that Clancy had filed a false
PREA complaint against him to avoid paying for his broken television. Subsequently, when his
personal property was brought to him in the RHU by Corrections Officer Rooney and two “John
Doe” Corrections Officers, Davis noted that numerous items were missing. But when he sent a
form to Unit Manager, C.S. Miller, about this issue, Miller responded “I cannot verify.” Davis
then filed a grievance, but it was rejected by Grievance Officer Hnatkovich on the ground that he

failed to attach a Personal Property Inventory form, which he could not provide because the
officers who packed his property did not give it to him. (Id. ¶¶ 6-9, 25.)
On March 25, 2021, a Pennsylvania State Police investigator interviewed him concerning
the PREA complaint. Davis states that the investigator concluded that Clancy’s allegations were
unsubstantiated and submitted a report to that effect to Correctional Security Lieutenant S.
Woomer. Davis alleged that in violation of DC-ADM 802, however, Woomer kept Davis in the
RHU after the investigation was completed. On May 17, 2021, slightly more than 90 days after
being placed in the RHU, Davis was released back into the prison general population. (Id. ¶¶ 10-
11.)
Davis alleges that after he commenced this lawsuit in May of 2021, his visitation
privileges were terminated without any valid justification. He does not allege who did so. Then,
on November 15, 2021, hours after he submitted a grievance regarding the termination of his
visitation privileges, Unit Manager Daniel Mowrey tried to get him to withdraw it and became

angry when he insisted that it be answered. Ultimately, his visitation privileges were reinstated
on December 3, 2021, but in the meantime, he missed ten visits. (Id. ¶¶ 12-14.)
On December 7, 2021, Block Officer Hagen2 informed Davis that he was being moved
from the bottom bunk to the top bunk, despite paperwork indicating that he was assigned to the
bottom bunk, bottom tier, for medical reasons. Hagen told him that SCI Houtzdale no longer
recognized his medical restrictions and took away his cane, although his medications and
diabetic snack were not discontinued. Several days later, Unit Manager Mowrey informed him
that his “paperwork had expired” and threatened to move him off G Block if he filed a grievance
about the matter.3 On December 21, 2021, his bottom bunk (but not bottom tier) restriction was
reinstated. (Id. ¶¶ 15-18.)

Davis is African American and physically disabled. He asserts that he is serving a
sentence based on a wrongful conviction for sexually assaulting a minor. He notes that SCI
Houtzdale is located in a rural, overwhelmingly white area of Pennsylvania that is staffed almost
entirely by Caucasian correctional officials. Davis asserts that white officials treated him with
personal contempt and complete disregard for basic human dignity and decency, far different
than their interactions with and treatment of white prisoners. (Id. ¶¶ 19-21.)

2 Hagen is not named as a defendant.
3 G Block is a specially created housing unit for veterans that is funded by the U.S. Department
of Veterans Affairs and overseen by the state Veterans Coordinator of Pennsylvania. It is
designed to assist veterans with open access to psychological treatment and emotional support,
substance abuse treatment, behavioral modification, vocational rehabilitation and social services
programs.
C. Discussion
1. Standard of Review
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-
pleaded allegations in the complaint as true and viewing them in the light most favorable to the

plaintiff, a court finds that plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v.
Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the
claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the
defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d

560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim,
disregarding any allegations that are no more than conclusions and then reviewing the well-
pleaded allegations of the complaint to evaluate whether the elements of the claim are
sufficiently alleged.
The Supreme Court has stated that “the allegations of [a] pro se complaint [are held] to
less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
519, 520 (1972). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a
curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
2. Dismissal of Certain Non-cognizable Claims
As outlined below, several of the causes of action pleaded by Davis in the Amended
Complaint should be summarily dismissed because they invoke inapplicable statutes as a basis
for relief or otherwise fail as a matter of law.

First, Davis asserts a claim under the Privileges and Immunities Clause of Article IV, § 2
of the United States Constitution, which provides: “The citizens of each state shall be entitled to
all privileges and immunities of citizens in several states.” “The Clause is designed to prevent the
discriminatory treatment of citizens from other states.” A.L. Blades & Sons, Inc. v. Yerusalim,
121 F.3d 865, 869 (3d Cir. 1997). It has no bearing on the allegations made in this case,
however, in which all of the defendants are alleged to be Pennsylvania citizens. Thus, this claim
should be dismissed with prejudice as amendment would be futile.
Davis’s claim under the “Oath or Affirmation clause” should also be dismissed. This
clause provides that: “The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial Officers, both of the United States

and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”
U.S. Const. art. VI, cl. 3. As Davis cannot assert a cause of action regarding this clause, this
claim also should be dismissed with prejudice as amendment would be futile.
Further, Davis does not allege that there has been an interference with a private contract
or with federal officials or court proceedings, which are necessary prerequisites to bringing an
action under 42 U.S.C. § 1981. See Brown v. Philip Morris Inc., 250 F.3d 789, 798 (3d Cir.
2001) (claim dismissed because no deprivation of contract or property rights was involved).
Therefore, he cannot state a claim under § 1981 and it should be dismissed with prejudice
because amendment would be futile.
Davis’s claim under Title VI of the Civil Rights Act of 1964 should also be dismissed.
Title VI states that “[n]o person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.

§ 2000d. Generally, “[i]ndividual liability may not be asserted under Title VI.” Whitfield v. Notre
Dame Middle Sch., 412 F. App’x 517, 521 (3d Cir. 2011) (citing Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1170 n.12 (11th Cir. 2003)); Shannon v. Lardizzone, 334 F. App’x 506, 508 (3d
Cir. 2009); Bethea v. Roizman, 2012 WL 2500592 (D.N.J. June 27, 2012) (“Individual liability
may not be asserted under Title VI because an individual is not a ‘program’ receiving federal
funds.”). Here, because Davis only asserts individual liability, his Title VI claim should be
dismissed with prejudice and without leave to amend.
3. Section 1985 and 1986 Claims
Davis attempts to assert a claim under 42 U.S.C. § 1985(3),4 which relates to conspiracies
to deprive persons of rights or privileges under the Fourteenth and Fifteenth Amendments. In

connection with a claim of this nature, the Supreme Court has held that a plaintiff must “allege
and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property or deprived of any right or privilege
of a citizen of the United States.” United Bhd. of Carpenters & Joiners of Am., Loc. 610, AFL-

4 Subsections (1) and (2) of § 1985 are inapplicable here. The Corrections Defendants have not
explicitly addressed Davis’s claims under §§ 1985 and 1986. Nevertheless, because Davis is a
prisoner seeking redress from employees of a government entity, the Court is required to screen
the Complaint for allegations that, inter alia, fail to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915A.
CIO v. Scott, 463 U.S. 825, 828-29 (1983).
Although Davis alleges generally that the Corrections Defendants violated his rights
based on his status as an African American, he fails to make any specific factual allegations that
support the existence of a conspiracy or any acts in furtherance thereof. Thus, he has not stated a

claim under § 1985. See Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006) (“a
plaintiff must allege both that the conspiracy was motivated by discriminatory animus against an
identifiable class and that the discrimination against the identifiable class was invidious.”) In
addition, as discussed below with respect to §1983, Congress did not expressly abrogate
sovereign immunity when it enacted § 1985. See Owens v. Armstrong, 171 F. Supp. 3d 316, 330
(D.N.J. 2016).
A complaint that contains no valid § 1985 claim also fails to state a claim under § 1986.
See Clark v. Clabaugh, 20 F.3d 1290, 1295 & n.5 (3d Cir. 1994). Therefore, both of these claims
should be dismissed. However, because it cannot be concluded that amendment would be futile if
Davis can allege specific acts that he claims to represent a conspiracy, dismissal should be

without prejudice.
4. ADA Claim
Davis also asserts a claim against Mowrey and Smith under Title II of the ADA. Title II
prohibits discrimination by public entities, including state prisons. Pennsylvania Dep’t of Corr.
v. Yeskey, 524 U.S. 206, 208-09 (1996). To state a claim, a plaintiff must sufficiently plead that
“(1) he is a qualified individual; (2) with a disability; (3) who was excluded from participation in
or denied the benefits of services, programs, or activities of a public entity, or was subjected to
discrimination by any such entity; (4) by reason of his disability.” Geness v. Admin. Off. of
Pennsylvania Cts., 974 F.3d 263, 273 (3d Cir. 2020) (citation omitted), cert. denied sub nom.
Geness v. Pennsylvania, 141 S. Ct. 2670 (2021). See 42 U.S.C § 12132.
The Corrections Defendants argue that Title II of the ADA does not provide for suits
against state officials in their individual capacities. They are correct. See Matthews v.
Pennsylvania Dep’t of Corr., 613 F. App’x 163, 170 (3d Cir. 2015).5

The Corrections Defendants also contend that that Davis fails to allege any specific facts
that state a cause of action under the ADA. However, Davis has alleged that he is disabled and
that his cane and lower bunk designation were eliminated without cause by Correctional Officer
Hagen, a decision later endorsed by Mowrey, who claimed that his “paperwork had expired” and
threatened to move him off the G Block. While Hagan is not a party, the allegations of the
Amended Complaint, construed in the light most favorable to Davis, appear to state a claim
against Mowrey either for denial of services or being subjected to discrimination by reason of his
disability. See Graham v. Pennsylvania Dep't of Corr., 2022 WL 2276580, at *7 (W.D. Pa. Apr.
5, 2022), report and recommendation adopted, 2022 WL 2275490 (W.D. Pa. June 23, 2022)
(refusing to dismiss ADA claim based on prison’s denial of plaintiff’s hormone replacement

therapy for gender dysphoria when defendants did not address the required three-part test).
At the same time, the allegations of the Amended Complaint do not state a claim against
Smith under the ADA. Davis fails to identify any personal involvement on Smith’s part that
could plausibly represent a denial of services or discrimination based on his disability. As the
Court cannot conclude that amendment would be futile, however, the ADA claim against Smith
should be dismissed without prejudice.
Therefore, with respect to the ADA claim, the motion to dismiss should be granted with

5 Whether Davis could state an ADA claim against any of the Corrections Defendants in their
official capacities in order to recover monetary damages is a complex issue that they do not
address and goes beyond the scope of a motion to dismiss. See, e.g., Anderson v. Bickell, 754 F.
App’x 113, 119 n.5 (3d Cir. 2018).
prejudice with respect to defendants Mowrey and Smith in their individual capacities. The
motion to dismiss Mowrey in his official capacity should be denied. Smith’s motion to dismiss
should be granted without prejudice and with leave to amend, but only to assert a claim against
him in his official capacity. Any amendment must include specific facts that allege Smith’s

personal involvement in an alleged violation of the ADA.
5. Section 1983 Claims
Davis’s civil rights claims are primarily asserted under Section 1983, which provides
that:
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 any other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution
and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The
first step in any such claim is to identify the specific constitutional right allegedly infringed.”
Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v.
Connor, 490 U.S. 386, 394 (1989).
The Amended Complaint alleges violations of the First Amendment, which, among other
things, prohibits retaliation for exercising free speech rights;6 the Eighth Amendment, which
prohibits “cruel and unusual punishment”; and the Fourteenth Amendment, which prohibits a
state actor from depriving “any person of life, liberty, or property, without due process of law” or

6 Although Davis references the First Amendment petition clause, a liberal construction of his
Complaint reflects that he intends to allege a First Amendment retaliation claim. The Corrections
Defendants address this claim as one of retaliation and the Court likewise will do so.
the “equal protection of the laws.”
a. Official Capacity Claims
Davis has brought suit against all defendants in both their official and individual
capacities. The Corrections Defendants argue that the official capacity claims must be dismissed

based on Eleventh Amendment immunity.
The Supreme Court has stated that, under the Eleventh Amendment, “federal jurisdiction
over suits against unconsenting states was not contemplated by the Constitution when
establishing the judicial power of the United States.” Seminole Tribe of Florida v. Florida, 517
U.S. 44, 54 (1996) (internal citation omitted). The immunity applies not only to the state itself,
but also to state agents and state instrumentalities. Thus, courts must examine the essential nature
and effect of the proceeding, the nature of the entity created by state law or the issue of whether a
money judgment against the instrumentality would be enforceable against the state to determine
whether the instrumentality should be treated “as an arm of the state.” Regents of the Univ. of
Calif. v. Doe, 519 U.S. 425, 429-30 (1997).

The Pennsylvania Department of Corrections (DOC) is an arm of the state for Eleventh
Amendment immunity purposes. See Lavia v. Pennsylvania, Dep’t of Corr., 224 F.3d 190, 195
(3d Cir. 2000). In their official capacities, the individual defendants are state agents who are
entitled to Eleventh Amendment immunity with respect to damage claims. Kentucky v. Graham,
473 U.S. 159, 166 (1985). See also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 &
n.10 (1989) (unless sued for injunctive relief, state officials in their official capacities are not
“persons” for purposes of § 1983).
The Court of Appeals for the Third Circuit has held that Eleventh Amendment immunity
is subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and
(3) suits against individual state officers for prospective injunctive and declaratory relief to end
an ongoing violation of federal law, that is, the doctrine of Ex parte Young, 209 U.S. 123, 28 S.
Ct. 441, 52 L.Ed.714 (1908). Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297
F.3d 310, 323 (3d Cir. 2002) (citation omitted). Pennsylvania has not consented to waive its

Eleventh Amendment immunity to being sued in federal court. 42 Pa. C.S. § 8521(b); Chittister
v. Department of Cmty. & Econ. Dev., 226 F.3d 223, 227 (3d Cir. 2000). The Supreme Court
also has held that § 1983 does not abrogate states’ sovereign immunity. Quern v. Jordan, 440
U.S. 332, 339-46 (1979).
As for the Ex parte Young exception, “…a court need only conduct a straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief
properly characterized as prospective.” Verizon Md., Inc. v. Public Service Comm’n of Md., 535
U.S. 635, 645 (2002) (citation omitted). Davis states that he is “seeking injunctive relief against
the Defendants, collectively, enjoining these Defendants to replace or reimburse me for the cost
of the damaged, non-functioning, now-confiscated television that my cellmate broke, and the

missing personal property items identified herein.” (Am. Compl. at 21.) However, the request
makes clear that he is seeking damages, not prospective relief, that he has been released from the
RHU and that his visitation privileges and lower bunk designation have been restored. Therefore,
the Ex parte Young exception does not apply.
Thus, with respect to § 1983 claims against the Corrections Defendants in their official
capacities, their motion to dismiss should be granted with prejudice.
b. First Amendment Retaliation Claim
The Corrections Defendants argue that Davis has failed to state a claim of retaliation in
violation of his First Amendment rights.
Davis alleges that as soon as he commenced this action, his visitation privileges were
terminated without justification, although he fails to identify who did so. He alleges that Mowrey
then suggested that he should “sign off” on the grievance rather than receive a response, but
Davis indicated that he wanted a response. Shortly thereafter, Hagan ordered his bottom bunk

restriction and cane to be removed. Although the Amended Complaint is not entirely clear,
drawing all inferences in Davis’s favor, he appears to be alleging that this was done at Mowrey’s
direction or with his acquiescence as Mowrey later told Davis that he was moved from his
bottom bunk because his “paperwork had expired” and then threatened to move Davis from the
G Block if he filed a grievance.
A retaliation claim requires allegations that (1) the plaintiff engaged in a constitutionally
protected activity; (2) he or she suffered, at the hands of a state actor, adverse action sufficient to
deter a person of ordinary firmness from exercising his constitutional rights; and (3) the
protected activity was a substantial or motivating factor in the state actor's decision to take
adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

The Corrections Defendants do not dispute that Davis meets the first element. See Allah
v. Seiverling, 229 F.3d 220, 224 (3d Cir. 2000) (filing of a civil rights suit is protected activity);
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (allegation of false charge of misconduct in
retaliation for filing complaints is conduct protected by the First Amendment).
They contend, however, that Davis losing his visitation privileges, the revocation of his
bottom bunk designation and the subsequent threats to move Davis from the G Block do not
constitute “adverse actions.” Their argument is based on the premise that inmates do not have a
right to be housed in a particular area of a facility, Mays v. Kosinski, 86 A.3d 945, 949 (Pa.
Commw. 2014), and that visitation privileges are a matter left to the discretion of prison officials,
Carey v. Johnson, 2008 WL 724101, at *10 (W.D. Pa. Mar. 17, 2008). Although they are correct
as far as it goes, “[r]etaliation may be actionable, however, even when the retaliatory action does
not involve a liberty interest.” Allah, 229 F.3d at 224 (citations omitted). Thus, the fact that
visitation privileges and bottom bunk designations are matters within the prison’s discretion does

not mean that they can be employed as retaliation for a prisoner exercising his First Amendment
rights. See Cooper v. Hoover, 2006 WL 3544711, at *2 (M.D. Pa. Dec. 8, 2006) (inmate who
alleged he was denied visits from his daughter in retaliation for challenging his sentence and
filing grievances stated a claim under the First Amendment); Dippolito v. United States, 2015
WL 9308238, at *7 (D.N.J. Dec. 21, 2015) (prisoner who filed grievances and was retaliated
against by being improperly denied a bottom bunk stated a claim), aff’d, 704 F. App’x 199 (3d
Cir. 2017). Thus, at this stage of the proceedings, these allegations are sufficient to represent
adverse actions.
The Corrections Defendants’ additional contention that Davis does not allege a causal
connection between these events is unpersuasive. In fact, he has alleged that as soon as he

commenced this action, his visitation privileges were terminated, and shortly after he submitted a
grievance about this matter, his bottom bunk approval and cane were taken away and he was told
he would be moved from the G Block if he filed another grievance. Thus, he has adequately
alleged a First Amendment retaliation claim against Mowrey.
However, as Davis fails to identify Mowrey, or any other defendant, as responsible for
taking away his visitation privileges, this aspect of this retaliation claim should be dismissed
without prejudice and with leave to amend.
c. Eighth Amendment Claim
The Corrections Defendant also move to dismiss Davis’s Eighth Amendment claim
relating to his transfer to the RHU.7
The Supreme Court has held that “[i]t is well settled that the decision where to house
inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536 U.S. 24, 39
(2002). Thus, a transfer of a prisoner to the RHU alone does not violate the Eighth Amendment.

See Williams v. Armstrong, 566 F. App’x 106, 109 (3d Cir. 2014) (because the Eighth
Amendment applies only when a deprivation results in the denial of “the minimal civilized
measure of life’s necessities,” placement of prisoner in RHU for 112 days alone, without
allegation that he was denied life’s necessities, did not state a claim for relief); Griffin v. Vaughn,
112 F.3d 703, 709 (3d Cir. 1997). Moreover, Davis acknowledges that he was not transferred to
the RHU randomly, but in response to the PREA complaint that was being investigated.
Therefore, with respect to Davis’s Eighth Amendment claim, the motion to dismiss should be
granted with prejudice as amendment would be futile.
d. Fourteenth Amendment Claims
Davis alleges procedural due process and equal protection claims under the Fourteenth

Amendment. The Corrections Defendants contend that he cannot state a claim under either of
these theories.
i. Procedural Due Process
The Supreme Court has held that states may create liberty interests which are protected
by the procedural due process clause, but these interests “will be generally limited to freedom
from restraint which, while not exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and

7 In his brief in opposition to the motion to dismiss, Davis asserts that his claim is not based
solely on his placement in the RHU, but on the “totality of the circumstances.” (ECF No. 60 at
14.) However, a review of the Amended Complaint shows that Davis has made no allegations
concerning the conditions of confinement.
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995) (citations omitted). “Discipline by prison officials in response
to a wide range of misconduct falls within the expected [parameters] of the sentence imposed by
a court of law.” Id. at 485. Based on Sandin, the Court of Appeals held in Griffin that an inmate

who was held in administrative custody for 15 months while a charge that he raped a guard was
being investigated did not suffer “atypical and significant hardship.” 112 F.3d at 706-08. See
also Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (seven months of disciplinary
confinement did not present an atypical and significant hardship).
In this case, Davis was held in administrative custody while the PREA complaint was
investigated. For all of the reasons identified by the Court of Appeals in Griffin, such
circumstances did not demonstrate an “atypical and significant hardship.” Davis contends that
the Corrections Defendants “knew or show have known” that Clancy’s PREA complaint against
him was false, but there is no basis for holding any of the Corrections Defendants liable for
investigating these allegations. In addition, Davis cannot base his claim on the alleged violation

of a DOC procedure, namely, keeping him in the RHU for a short period of time after the
conclusion of the investigation in contravention of DC-ADM 802. See Lee v. Schrader, 2014 WL
2112833, at *5 (W.D. Pa. May 20, 2014) (no claim based on failure to follow a DOC
procedure).8 Therefore, with respect to the procedural due process claim, the motion to dismiss
should be granted. Because amendment would be futile, the dismissal should be with prejudice.

8 He also contends that he “was deprived of personal property valued at several hundred dollars
without notice and a meaningful opportunity to be heard prior to the deprivation.” (ECF No. 60
at 15) (emphasis added.) However, the Supreme Court has held that, whether loss of property is
negligent or intentional, “the state’s action is not complete until and unless it provides or refuses
to provide a suitable post-deprivation remedy.” Hudson v. Palmer, 468 U.S. 517, 534 (1984).
ii. Equal Protection
“The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.” City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The Corrections Defendants
contend that, despite Davis’s general allegations that they violated his rights based on their
personal biases against him as an African-American, a sex offender and someone with a
disability, Davis provides no specific facts to support these speculative assumptions and does not
allege in what respects he was treated differently from others who are similarly situated.9 See
Williams v. Bitner, 307 F. App’x 609, 611 (3d Cir. 2009) (“Williams claimed only that his civil
rights were violated by defendants of the opposite race, but that is insufficient to state an equal
protection claim.”); Jean-Pierre v. Holt, 2009 WL 890937, at *7 (M.D. Pa. Mar. 31, 2009) (Jean-
Pierre alleged that he was temporarily transferred to the SHU for violating prison regulations and
denied the ability to present witnesses or to ensure that the videotape evidence was reviewed, but

did not allege that similarly situated inmates received more favorable treatment, so he could not
state an equal protection claim), aff’d sub nom. Jean-Pierre v. Gubbiotti, 417 F. App’x 120 (3d
Cir. 2011).
The Court agrees that Davis has failed to state a claim for violation of his right to equal
protection because he pleads no facts that would support such a claim. However, the Court
cannot conclude that amendment would be futile. Therefore, the motion to dismiss should be
granted without prejudice and with leave to amend this claim.

9 The original Complaint did not contain an equal protection claim.
e. Individual Involvement
The Court of Appeals has held that “to be liable under § 1983, each individual defendant
“must have personal involvement in the alleged wrongdoing.” Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

“Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Rode, 845 F.2d at 1207. These allegations must be made with
appropriate particularity. Id. Further, “a civil rights complaint is adequate where it states the
conduct, time, place, and persons responsible.” Evancho, 423 F.3d at 353. Moreover, in a civil
rights case, “liability cannot be predicated solely on the operation of respondeat superior.” Rode,
845 F.2d at 1207.
Although Davis states that he filed various grievances and staff request slips regarding
his confinement in the RHU and the suspension of his visitation privileges and lower bunk
restriction and purports to allege numerous claims about these issues, he has not stated a claim
against Defendants Hnatkovich, Miller and Ginter, the individuals who reviewed these

documents. “It is…well established that the filing of a grievance is not sufficient to show the
actual knowledge necessary for a defendant to be found personally involved in the alleged
unlawful conduct.” Mearin v. Swartz, 951 F. Supp. 2d 776, 782 (W.D. Pa. 2013). See also
Jefferson v. Wolfe, 2006 WL 1947721, at *17 (W.D. Pa. July 11, 2006); Watkins v. Horn, 1997
WL 566080, at *4 (E.D. Pa. Sept. 5, 1997); Seldon v. Wetzel, 2020 WL 929950, at *4 (W.D. Pa.
Feb. 6, 2020), report and recommendation adopted, 2020 WL 924046 (W.D. Pa. Feb. 26, 2020).
Thus, Davis has failed to state a claim against Hnatkovich, Miller and Ginter based on
their involvement in responding to his grievances and staff request slips. However, because it is
uncertain if it would be futile to allow him to amend, the motion to dismiss these defendants
should be granted without prejudice and with leave to amend if he is able to plead facts that
demonstrate that any of these defendants were personally involved in any alleged unlawful
conduct.
With respect to Smith, Davis seeks to hold him liable as the Facility Manager for

allegedly failing to train and supervise the other individuals. However, “it is not enough for a
plaintiff to argue that the constitutionally cognizable injury would not have occurred if the
superior had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.
1989). Rather, the plaintiff must point to specific facts showing “a close causal relationship
between the ‘identified deficiency’ and the ‘ultimate injury.’” Id. Additionally, “[a] pattern of
similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62
(2011). Thus, Davis cannot assert a claim against Smith based on conclusory statements that he
failed to train or supervise employees at the prison. See Smith v. Indiana Cnty. Jail, 2013 WL
425144, at *6 (W.D. Pa. Feb. 4, 2013) (when prisoner complained about constitutional violations

by guards and imputed their violations to the warden, alleging her implementation of some
unspecified policy or custom or failure to train, court held that, “such conclusory and speculative
accusations fail to state a claim” on the part of the warden). Therefore, the motion to dismiss
Smith should be granted, but without prejudice and leave to amend in the event that Davis can
allege facts that would support a claim or claims against him.
Davis has also named Defendants Ivicic, Close and Barrows, the members of the PRC,
who he alleges may have been able to order his release from the RHU. Thus, he has adequately
pleaded that they had some personal involvement in the events. Nevertheless, as explained
above, he has not stated a claim based upon being kept in the RHU while the PREA complaint
was being investigated. Thus, he has no plausible basis for asserting claims against Ivicic, Close
or Barrows in this case. However, because it is uncertain that it would be futile to allow him to
amend, the motion to dismiss these defendants should be granted without prejudice and with
leave to amend if he is able to plead facts that demonstrate that any of these defendants were

personally involved in any alleged unlawful conduct.
Finally, with respect to Defendants Rooney, Mowrey and Woomer, the Corrections
Defendants contend that their sole involvement was that “Defendant Rooney brought [Davis] his
property to the RHU, Defendant Mowrey talked with [Davis] about certain paperwork, and
Defendant Woomer continued [his] placement in the RHU during the investigation into the
PREA claims.” (ECF No. 38 at 7.) This is not an accurate summary of the allegations against
them in the Amended Complaint, however. Rather, Davis alleges that Rooney failed to bring him
all of his property, that Mowrey retaliated against him and threatened him and that Woomer kept
him in the RHU even after the investigation was concluded.
At the same time, however, as discussed above, because Davis’s due process claim fails

to state a claim on which relief may be granted, Woomer should be dismissed as a party.
Similarly, Davis has failed to state a due process claim against Rooney, requiring the dismissal
of the claim against him; however, as discussed below, he has stated a claim for negligence
against Rooney.
Finally, as Davis has adequately pleaded Mowrey’s personal involvement in the First
Amendment retaliation claim and the ADA claim, the motion to dismiss him should be denied.
6. State Law Claims
Davis alleges state law claims of negligence, intentional infliction of emotional distress
and willful misconduct.10 The Corrections Defendants contend that these claims are barred by
the doctrine of sovereign immunity.
Under Pennsylvania law, “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. § 2310. “Exceptions to sovereign immunity are to be narrowly
construed.” Dean v. Commonwealth, Dep’t of Transp., 751 A.2d 1130, 1134 (Pa. 2000).
As noted by the Pennsylvania Supreme Court in Justice v. Lombardo, 208 A.3d 1057 (Pa.
2019): “Our intermediate appellate courts have held that these protections shield an employee of
a Commonwealth agency from the imposition of liability even for intentional torts. In the present
case, it is undisputed that Trooper Lombardo, as an employee of the [Pennsylvania State Police],
is entitled to the protections of sovereign immunity for conduct within the scope of his duties,
subject only to certain exceptions not applicable here.” Id. at 1067 (citations omitted). There are
ten exceptions to sovereign immunity, nine of which clearly do not apply here. 42 Pa. C.S.
§ 8521(a), § 8522(b).11

10 In addition, Davis cites various provisions of the Pennsylvania constitution and the
“Pennsylvania Restatement (Second) of Torts.” As to the former, federal courts regularly hold
that there is no private cause of action for monetary damages for violations of Pennsylvania
Constitutional rights. See, e.g., Spell v. Allegheny Cnty. Admin., 2015 WL 1321695, at *4 (W.D.
Pa. Mar. 24, 2015); Yunik v. Wetzel, 2014 WL 5426198, at *8 (W.D. Pa. Oct. 22, 2014). In
addition, Pennsylvania courts have held that there is no waiver of sovereign immunity for claims
based upon the Pennsylvania Constitution. See Faust v. Com., Dep’t of Revenue, 592 A.2d 835,
839-40 (Pa. Commw. 1991). As to the latter, there is no cause of action created simply by citing
to the “Pennsylvania Restatement (Second) of Torts.” Rather, the courts of Pennsylvania have
adopted various provisions of the Restatement for purposes of defining torts in the state. See,
e.g., Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (Pa. 2014) (declining to adopt the
Restatement (Third) of Torts: Products Liability).
11 Davis cites what he refers to as the exception for “dangerous conditions.” However, he appears
to be referring to the subsection covering “potholes and other dangerous conditions,” 42 Pa. C.S.
§ 8522(b)(5), which has no application to the facts of this case.
Pennsylvania courts have held that “intentional tort claims … are not within the narrow
exceptions set forth in 42 Pa. C.S. § 8522(b).” Faust v. Commonwealth Dep’t of Revenue, 592
A.2d 835, 839 (Pa. Commw. 1991). See also Ioven v. Nestel, 150 A.3d 571, 574 (Pa. Commw.
2016). “Even where a plaintiff asks for monetary damages against a defendant in his individual

capacities, sovereign immunity applies.” Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 682 (M.D.
Pa. 2010) (citation omitted). “Sovereign immunity applies to intentional and negligent torts.” Id.
(citation omitted).
Davis cites 42 Pa. C.S. § 8550, which states that, in an action against a local agency or
employee, immunity is lost when their actions represent a “crime, actual fraud, actual malice or
willful misconduct.” This statute is not applicable in this case because all of the defendants are
state employees, not local employees. See Yakowicz v. McDermott, 548 A.2d 1330, 1333 & n.5
(Pa. Commw. 1988) (Commonwealth employees are immune from liability even for intentional
torts but that local agency employees lose their immunity defense where their actions constitute a
crime, actual fraud, actual malice or willful misconduct), appeal denied, 565 A.2d 1168 (Pa.

1989).
The Corrections Defendants have not addressed Davis’s negligence claim or
§ 8522(b)(3), which relates to “the care, custody or control of personal property in the possession
or control of Commonwealth parties, including ... property of persons held by a Commonwealth
agency.” Davis has alleged that Rooney and John Does 1 and 2 negligently failed to bring all of
his personal property to him in the RHU. Sovereign immunity does not bar a negligence claim
based on this allegation.12 See Williams v. Stickman, 917 A.2d 915, 918 (Pa. Commw.), appeal
denied, 917 A.2d 915 (Pa. 2007) (prison officials could not assert sovereign immunity with

12 This does not apply to the damage to the television set, which Davis asserts was caused by
Clancy, and was not within the Corrections Defendants’ care, custody or control.
respect to damage to inmate’s television).13
Therefore, with respect to Davis’s state law claims of intentional infliction of emotional
distress and willful misconduct, the motion to dismiss should be granted. Because amendment
would be futile, the dismissal should be with prejudice. With respect to his negligence claim

against Rooney relating to property not brought to him in the RHU, the motion to dismiss should
be denied.
III. Conclusion
It is respectfully recommended that the motion to dismiss of the Corrections Defendants
should be granted in part and denied in part as follows:
1) Defendants’ motion to dismiss should be granted with prejudice with respect to the
following claims and parties:

• All § 1983 claims against the Corrections Defendants in their official capacities.
• All claims against Defendant Woomer.
• All federal claims against Defendant Rooney.
• Claim invoking the Privileges and Immunities Clause of Article IV, § 2 of the
United States Constitution.

• Claim invoking the Oath or Affirmation Clause of Article VI of the United States
Constitution.

• Eighth Amendment claim.
• Fourteenth Amendment due process claim.

13 Whether Davis could otherwise state a claim for negligence has not been addressed by the
parties and cannot be resolved on the current record. To the extent that he is alleging that his
property was intentionally not provided to him, the claim would be for conversion, not
negligence, and would be barred by sovereign immunity. See Williams, 917 A.2d at 917. On the
other hand, he has alleged that he tried to file a grievance related to a claim for missing property
but was prevented from doing so when the officers who packed his property failed to provide
him with a form DC-153A, personal property inventory sheet. To this extent, he may be able to
state a negligence claim.
• Claims asserted under 42 U.S.C. §§ 1981 and 2000d.
• Claims asserted under the Pennsylvania Constitution.
• Claims asserted under “Pennsylvania Restatement (Second) of Torts.”

• State law claims of intentional infliction of emotional distress and willful
misconduct.

2) Defendants’ motion to dismiss should be granted without prejudice and with leave to
amend regarding the following claims:

• Fourteenth Amendment equal protection claim.
• Claims asserted under §§ 1985 and 1986.
• All claims against Defendants Smith, Miller, Ginter, Hnatkovich, Ivicic, Close
and Barrows.

3) Defendants’ motion to dismiss should be denied as to:
• First Amendment retaliation claim against Defendant Mowrey.
• ADA claim against Defendant Mowrey in his official capacity.
• Negligence claim against Defendant Rooney.
Litigants who seek to challenge this Report and Recommendation must seek review by
the district judge by filing objections by August 8, 2022. Any party opposing the objections
shall file a response by August 22, 2022. Failure to file timely objections will waive the right of
appeal.

Dated: July 22, 2022 s/ Patricia L Dodge
PATRICIA L DODGE
United States Magistrate Judge

cc: Keith Vernon Davis
NF-9296
SCI Houtzdale
209 Institution Drive
Houtzdale, PA 16698

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11342324. Public record. Not legal advice.