Simpson v.

• Decision Date: 25 March 2016
• Docket Number: Civil Action No. 2:16-cv-00160
• Parties: MITCHELL SIMPSON, Plaintiff, v. S.G.T. MR. BLACK, Defendant
• Court: U.S. District Court — Western District of Pennsylvania

MITCHELL SIMPSON, Plaintiff, v. S.G.T. MR. BLACK, Defendant

Civil Action No. 2:16-cv-00160

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

March 25, 2016

Judge Arthur J. Schwab

Magistrate Judge Lisa Pupo Lenihan

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Plaintiff's First Amendment retaliation claim, based on the loss of his prison job, and his Eighth Amendment failure to protect claim be dismissed without prejudice, and that Plaintiff be granted leave to file an amended complaint as to those claims. It is further recommended that Plaintiff's Fourteenth Amendment due process and equal protection claims, as well as his Eighth Amendment conditions of confinement claim, be dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

II. REPORT

Plaintiff Mitchell Simpson commenced this civil action by filing a Motion for Leave to Proceed In Forma Pauperis (ECF No. 1) on February 12, 2016, which was subsequently granted on March 1, 2016 (ECF No. 2). The Clerk of Court docketed Plaintiff's Complaint (ECF No. 3) later that same day. Plaintiff has been incarcerated at SCI-Fayette since the commencement of this action. He asserts violations of his rights under the First, Eighth, and Fourteenth Amendments against Defendant, S.G.T. Mr. Black ("Sgt. Black"), an employee of the Pennsylvania Department of Corrections.

This Court must review Plaintiff's Complaint in accordance with the amendments promulgated in the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Under the PLRA, courts have an affirmative duty to screen and review prisoner complaints filed by inmates who seek leave to proceed in forma pauperis. 28 U.S.C. § 1915A. Federal courts are granted the authority to sua sponte dismiss claims in in forma pauperis proceedings if the court determines that a claim is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915A, 1915(e)(2)(B)(i)-(iii). Plaintiff requested and has been granted leave to proceed in forma pauperis. Thus, his allegations must be reviewed in accordance with the directives provided in the PLRA.

A. Legal Standard

In a § 1983 action, the court must liberally construe the pro se litigant's pleadings and "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)(quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution." (quoting Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993))). However, there are limits to the court's procedural flexibility—"pro se litigants still must allege sufficient facts in their complaints to support a claim. . . they cannot flout procedural rules—they must abide by the same rules that apply to all other litigants." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).

A complaint is frivolous if it "lacks an arguable basis either in law or fact," Neitzke v. Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is "based on an indisputably meritless legal theory." Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995).

A complaint that fails to state a claim must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6)¹ if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). As the Supreme Court held in Twombly, in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.

B. Factual Background

Plaintiff alleges that on December 1, 2015, he talked to Defendant Sgt. Black and informed him that he and his cellmate were not getting along with each other. See ECF No. 3 at 2. Plaintiff alleges that Sgt. Black responded by telling him to "do what you got to do." Id. Plaintiff thought that Sgt. Black's response was "mess[ed] up" - a S.G.T. telling a[n] inmate to hurt another inmate." Then Plaintiff asked to see a lieutenant so that he could resolve the matter "firmly," but his request to see to a "higher authority" was denied. Id. Plaintiff went back to his cell and alleges that his cellmate tried to hurt him. Id. at 2-3. Sgt. Black wrote Plaintiff up for assaulting his cellmate, but Plaintiff claims he was defending himself. Plaintiff further alleges that Sgt. Black did not see him assault "'No' Body." Id. at 3. Plaintiff was given 90 days in the hole for the assault on his cellmate. Plaintiff contends that he exhausted his administrative remedies by filing a grievance which was denied. Id. at 3.

Based on these allegations, Plaintiff claims that his constitutional rights under the First, Eighth, and Fourteenth Amendments have been violated.

For relief, Plaintiff requests money damages, as well as injunctive and declaratory relief. Plaintiff states that this matter can be resolved by putting him back in his cell on F Block 1014 and Z-coded F Block 1014 - cell, and by getting his job back. Id. at 5.

C. Analysis

1. First Amendment Retaliation Claim

With regard to the alleged violation of his First Amendment rights, Plaintiff does not identify the basis for this claim. Construing the allegations of the Complaint liberally, Plaintiff appears to be asserting a retaliation claim based on his allegation that he filed "a grievance about th[e] illegal acts of the prison staff, Sgt. Black, [and] now [he] is worse off because of the unsafe conditions² and [he] lost [his] job that was [his] only income." See ECF No. 3 at 4.

As this Court noted in Miskovitch v. Hostoffer, "in order to prevail on a retaliation claim, a plaintiff must show three things: (1) the conduct which led to the alleged retaliation was constitutionally protected; (2) that he was subjected to adverse actions by a state actor (here, the prison officials); and (3) the protected activity was a substantial motivating factor in the state actor's decision to take the adverse action." Miskovitch v. Hostoffer, 721 F.Supp. 2d 389, 395 (W.D.Pa. 2010) (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Anderson v. Davila, 125 F.3d 148, 163 (3d Cir.1997)). At the motion to dismiss stage, "for purposes of pleading sufficiency, a complaint need not establish a prima facie case in order to survive a motion to dismiss[,]" but need only allege "'enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].'" Connelly v. Lane Constr. Corp., 809 F.3d 780, 788-89 (3d Cir. 2016) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556)) (footnote omitted). Although the filing of a grievance clearly satisfies the first element, see Carey v. Johnson, Civ. A. No. 06-1578, 2008 WL 724101, *3 (W.D.Pa. Mar. 17, 2008) (citing Milhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981); Woods v. Smith, 60 F.3d 1161, 1165 (5^th Cir. 1995)), Plaintiff fails to allege any facts which raise a reasonable expectation that discovery will reveal the second and third elements.

The second element requires a prisoner to show that he suffered some "adverse action" at the hands of the prison officials. A plaintiff can satisfy the second element by demonstrating that the adverse action "'was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.'" See Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.2000) (citing Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (internal quotation marks omitted). Adverse actions that are sufficient to support a retaliation claim include filing false misconduct reports, Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), denying parole, transferring the inmate to a distant prison, and penalizing him financially, Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001), and placing a prisoner in administrative custody, Allah, 229 F.3d at 225.

Here Plaintiff claims that he was subject to "unsafe conditions" consisting of dirty vents blowing cold air and an open electrical socket, and that he lost his prison job. As to the former, the purportedly "unsafe conditions" do not rise to the same level as the filing a misconduct report, transferring a prisoner or placing the prisoner in administrative custody, and therefore, are not sufficient to deter a person of ordinary firmness from filing a grievance. Indeed, Plaintiff does not allege how these conditions endanger his life. Therefore, the Court concludes, as a matter of law, that the "unsafe conditions" alleged here do not constitute an adverse action as required to state a plausible retaliation claim under the First Amendment.

As to losing his prison job, the Court finds that although inmates do not possess a constitutional right to employment while in prison, Carey, 2008 WL 724101, at *9 ("It is well settled that prisoners have no inherent constitutional right to a prison job and no inherent constitutional right to wages for work performed while incarcerated.") (collecting cases); see also Fidtler v. Pa. Dep't of...