HYMAN v. TICE et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHNSTOWN DIVISION
FRANK HYMAN,
Plaintiff,
vs.
ERIC TICE, ZACHARY MOSLAK,
JEFFERY SHAFFER, WILLIAM
BOWERS, DAN CARO, HEARING
EXAMINER T. KNEPPER,
MATTHEW ORNER, DUSTIN PIRL,
JESSE SALYERS, LIEUTENANT
JOHN DOE,
Defendants.
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Civil Action No.:
3:25-CV-00040-SLH-CBB
Stephanie L. Haines
United States District Judge
Christopher B. Brown
United States Magistrate Judge
REPORT AND RECOMMENDATION
ON MOTION TO DISMISS ECF No. 4
Christopher B. Brown, United States Magistrate Judge
I. Recommendation
This civil action was removed to this Court from the Court of Common Pleas
of Somerset County, Pennsylvania on February 7, 2025. Plaintiff Frank Hyman is
an inmate currently incarcerated in the Pennsylvania Department of Corrections
(“DOC”) at State Corrections Institution (“SCI”) at Dallas. Hyman names several
Corrections Defendants1 who are DOC corrections officials and alleges they violated
1 Hyman names ten separate corrections officials as Defendants: Eric Tice, Zachary Moslak,
Jeffery Shaffer, William Bowers, Dan Caro, Hearing Examiner T. Knepper, Matthew Orner, Dustin
Pirl, Jesse Salyers, and a “John Doe” security lieutenant (collectively “Corrections Defendants”).
Defendant John Doe is not represented by counsel and as such the Court will not recommend
dismissal of any claims against him at this time.
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his constitutional rights under 42 U.S.C. § 1983 and state law while he was
previously in custody at SCI-Somerset. The Court has subject matter jurisdiction
under 28 U.S.C. §§ 1331; 1367.
Presently pending before the Court is a motion to dismiss by Corrections
Defendants for failure to state a claim under Fed. R. Civ. P. 12(b)(6). ECF No. 4.
The motion is fully briefed and ripe for consideration. ECF Nos. 5, 16.
For the reasons that follow, it is respectfully recommended that the Court
grant in part and deny in part Corrections Defendants’ motion to dismiss. It is
specifically recommended that the Court grant Corrections Defendants’ motion and
dismiss Hyman’s official capacity claims against Defendants Tice and Moslak and
his Fourteenth Amendment procedural due process claims with prejudice, and
because no further claims remain against Defendants Knepper, Caro, Bowers,
Shaffer, Tice and Moslak, they be dismissed from this case. It is further
recommended that the Court deny the motion in all other respects.
It is recommended that the following claims against Defendants Orner, Pirl
and Salyers remain in this case: (1) a First Amendment retaliation and related
conspiracy claim under 42 U.S.C. § 1983; (2) intentional infliction of emotional
distress under Pennsylvania law; and (3) and a civil conspiracy claim under
Pennsylvania law.2
2 Likewise, it is recommended the Fourteenth Amendment equal protection and Eighth
Amendment failure to protect claims under 42 U.S.C. § 1983 against John Doe proceed.
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II. Report
a. Background
Hyman alleges on March 13, 2023, Defendant Pirl came to his cell while he
was using the restroom, opened its door, watched Hyman while he was exposed, and
made sexually explicit comments to him. ECF No. 1-2 at ¶¶ 16-17. In this moment,
Defendant Pirl pressured Hyman to withdraw a pending grievance. Id. at ¶ 18.
Afterwards, Hyman filed a Prison Rape Elimination Act (“PREA”) claim and a
grievance which placed Defendant Pirl under investigation. Id. at ¶ 21. Hyman
claims that by filing a complaint under the PREA, he was entitled to “protective
measures” like separating Hyman from Defendant Pirl, but he was not given those
protections. Id. at ¶¶ 24-27.
Weeks later, Hyman was suspected to be under the influence of alcohol and,
as a result, was transported to the Restricted Housing Unit (“RHU”). Id. at ¶¶ 30-
31. As a consequence, he received two misconducts for threatening staff and
refusing to obey an order. Id. Hyman was found not guilty of the misconduct for
threatening staff but was found guilty of the misconduct for refusing to obey an
order. Id. at ¶ 31. Hyman was then sanctioned to sixty (60) days in solitary
confinement in the RHU. Id.
On April 3, 2023, corrections officers conducted a search of another inmate’s
cell and found an altered extension cord that contained suboxone inside. Id. at ¶ 33.
The corrections officers then searched Hyman’s cell, where Hyman no longer
resided because of his placement in the RHU, and the corrections officers did not
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find any contraband. Id. at ¶¶ 33-35. Corrections officers conducted two subsequent
searches of Hyman’s old cell, including using a drug sniffing K-9, on April 4, 2023
and April 5, 2023 and found no contraband. Id. at ¶ 36.
On April 8, 2023, Defendant Orner came to Hyman’s cell in the RHU and
threatened to plant the drugs found in the other inmate’s cell into Hyman’s cell to
“get back” at Hyman for filing grievances and the PREA complaint. Id. at ¶ 39. The
next day, on April 9, 2023, Defendants Orner, Salyers and Pirl inventoried Hyman’s
old cell and Defendant Salyers found an altered extension cord which was said to
contain suboxone. Id. at ¶ 43. Hyman was then charged with a misconduct for
possession of a dangerous or controlled substance, possession of contraband,
altering or damaging property and failure to report contraband. Id. at ¶ 44. Hyman
claims the extension cord found in the other inmate’s cell was planted in his cell in
retaliation for filing grievances and his PREA complaint. Id. at ¶ 55.
At his misconduct hearing Hyman claims he presented evidence challenging
the credibility of the corrections officers’ statements and how DOC policies were
violated. Id. ¶¶ 56-58. According to Hyman, Defendant Hearing Examiner Knepper
stated “I don’t need to see that evidence because I believe the word of my officers
over an inmate’s.” Id. at ¶ 59 (cleaned up). Hyman claims Defendant Knepper did
not review the video footage of Defendant Pirl entering his cell and exiting with an
extension cord moments later and did not consider the contradictions in the
misconduct report that Defendant Salyers stated he found the extension cord and
drugs, or purported conflicts of interest related to the pending PREA investigation.
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Id. at ¶¶ 60-62. Defendant Knepper found Hyman guilty of the misconduct and
Hyman was sentenced to sixty (60) days of solitary confinement in the RHU, he was
deprived of his contact visits, and he was not credited for time served in the RHU
while he was awaiting his hearing. Id. at ¶ 66.
Hyman appealed this decision to the Program Review Committee (“PRC”). Id.
at ¶ 67. Hyman alleges the committee members – Defendants Caro, Bowers and
Shaffer – did not adequately review his evidence and upheld Defendant Kneppers’
findings and sustained his finding of guilt. Id. at ¶ 68. Hyman then appealed to
Defendant Facility Manager Eric Tice who reviewed the initial misconduct report,
the decision and appeal and upheld the previous decision and according to Hyman,
did not review the allegedly contradictory video evidence. Id. at ¶¶ 72-73. Finally,
Hyman appealed to Defendant Chief Hearing Examiner Zachary Moslak who
upheld the previous findings and sanctions as well as failed to review the allegedly
contradictory video evidence. Id. at ¶¶ 76-77.
Hyman’s complaint references “willful misconduct,” “civil conspiracy,”
“retaliation,” “intentional infliction of emotional distress,” “equal protection,” and
“procedural due process” as causes of action against Corrections Defendants, and he
seeks unspecified declaratory and injunctive relief as well as monetary damages. Id.
at ¶¶ 78- 126. Given the leniency afforded to pro se litigants, which encompasses
the Court’s obligation to apply a legal principle regardless of whether the litigant
mentions it by name, the Court will construe Hyman as asserting the following
causes of action:
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(1) First Amendment retaliation and conspiracy to retaliate claims under 42
U.S.C. § 1983 against Defendants Pirl, Orner and Salyers for allegedly
planting contraband and issuing a false misconduct;
(2) A Fourteenth Amendment procedural due process claim under 42 U.S.C. §
1983 against Defendants Knepper, Caro, Bowers, Shaffer, Tice and
Moslak for their alleged conduct in connection with the misconduct
hearing and subsequent appeals;
(3) Civil conspiracy and intentional infliction of emotional distress claims
under Pennsylvania law against Defendants Pirl, Orner and Salyers for
allegedly planting contraband and issuing a false misconduct;
(4) A Fourteenth Amendment equal protection claim under 42 U.S.C. § 1983
against Defendant John Doe; and
(5) An Eighth Amendment failure to protect claim under 42 U.S.C. § 1983
against Defendant John Doe.
Corrections Defendants likewise interpret Hyman’s complaint as asserting
these claims and move to dismiss Hyman’s complaint for failure to state a claim
under Fed. R. Civ. P. 12(b)(6).3
b. Standard of Review
i. Fed. R. Civ. P. 12(b)(6): Failure to State a Claim
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of the
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The applicable
inquiry under Fed. R. Civ. P. 12(b)(6) is well settled. Rule 12(b)(6) works in
conjunction with Rule 8, which requires that a claim for relief contain “a short and
plain statement of the claim showing that the pleader is entitled to relief[,]” Fed. R.
3 To the extent this list does not account for all the claims Hyman intends to assert, it is
recommended any such claims be dismissed for failure to conform with Fed. R. Civ. P. 8.
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Civ. P. 8(a)(2), and a complaint can be dismissed for “failure to state a claim upon
which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). A defendant has the burden
of showing that a complaint fails to state a claim. See Gould Elecs. Inc. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000) (holding modified by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003)).
To survive a motion to dismiss, the plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Though ‘detailed factual allegations’ are not required, a complaint must do more
than simply provide ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action.’” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241
(3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead
facts sufficient to show that [his] claim has substantive plausibility.” Johnson v.
City of Shelby, Miss., 574 U.S. 10 (2014).
To assess the sufficiency of a complaint under Twombly and Iqbal, a court
must take three steps: (1) outline the elements the plaintiff must plead to state a
claim for relief; (2) peel away allegations that are no more than conclusions and
thus not entitled to the assumption of truth; and (3) look for well-pleaded factual
allegations, assume their veracity, and then determine whether they plausibly give
rise to an entitlement to relief. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)
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abrogated on other grounds as recognized by Fisher v. Hollingsworth, 115 F.4th 197,
204 (3d Cir. 2024). The court's plausibility determination is “a context-specific task
that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. A complaint must be dismissed if it merely alleges
entitlement to relief without supporting facts. Fowler v. UPMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009).
ii. Pro Se Pleadings
“A document filed pro se is ‘to be liberally construed,’ and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
citation and quotation marks omitted); see also Higgs v. Atty. Gen. of the U.S., 655
F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant's
pleadings is well-established.”). Additionally, the Court must “apply the relevant
legal principle even when the complaint has failed to name it.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). That said, “pro se litigants still must
allege sufficient facts in their complaints to support a claim[,]” and “they cannot
flout procedural rules—they must abide by the same rules that apply to all other
litigants.” Id. at 245.
With these standards in mind, the Court now turns to Corrections
Defendants’ pending motion to dismiss.
c. Discussion
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Corrections Defendants raise several grounds for dismissal including: (1)
Eleventh Amendment immunity for official capacity claims under § 1983; (2) no
personal involvement by Defendants Pirl, Salyers, Caro, Bowers, Shaffer and
Moslak; (3) sovereign immunity for Hyman’s state law claims; and (4) Hyman
provides insufficient facts to state claims for retaliation, due process, intentional
infliction of emotional distress and conspiracy under § 1983. ECF No. 5 at 5-20.
Each argument is addressed in turn.
i. Eleventh Amendment Immunity and Official
Capacity Claims
Hyman maintains he is suing Corrections Defendants Knepper, Caro,
Bowers, Shaffer, Tice, and Moslak for a violation of his Fourteenth Amendment
procedural due process protections and, specifically sues Defendants Tice and
Moslak in both their individual and official capacities. ECF No. 1-2 at ¶¶ 13-14;
114-15; 119-122. To begin, Defendants Tice and Moslak argue they are immune
from suit for the § 1983 claims made against them in their official capacities. ECF
No. 5 at 6. They are correct.
The Eleventh Amendment states “[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. Although the
Eleventh Amendment's text does not prohibit federal courts from exercising
jurisdiction over claims against a state by a same-state citizen, Supreme Court
precedent dictates otherwise:
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Section 1983 ... does not provide a federal forum for litigants who seek
a remedy against a State for alleged deprivations of civil liberties. The
Eleventh Amendment bars such suits unless the State has waived its
immunity ... or unless Congress has exercised its undoubted power
under § 5 of the Fourteenth Amendment to override that immunity.
Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989).
“The DOC is quintessentially an arm of the state and is funded by, controlled
by, and accountable to the state.” Fox v. Bayside State Prison, 726 F. App'x 865,
867–68 (3d Cir. 2018) (citing Koslow v. Commonwealth of Pennsylvania, 302 F.3d
161, 169 (3d Cir. 2002)). Because the DOC “is a part of the executive department of
the Commonwealth, ... it shares in the Commonwealth's Eleventh Amendment
immunity.” Lavia v. Pennsylvania, Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000).
Pennsylvania does not consent to being sued in federal court. 42 Pa. Cons. Stat. §
8521(b). Nor has Congress waived the states’ immunity to § 1983 claims brought in
federal court. Will, 491 U.S. at 66. “Because the Pennsylvania DOC is a part of the
executive department of the Commonwealth of Pennsylvania, its employees share in
the Commonwealth's Eleventh Amendment immunity to the extent that they were
sued in their official capacities.” Johnson v. Wenerowicz, 440 F. App'x 60, 62 (3d Cir.
2011). Therefore, the claims against Defendants Tice and Moslak in their official
capacities are barred by the immunity afforded by the Eleventh Amendment.
Thus, it is recommended that the Court grant Corrections Defendants’
motion to dismiss the Fourteenth Amendment claim against Defendants Tice and
Moslak in their official capacities and dismiss that claim in this respect with
prejudice as amendment would be futile. Shane v. Fauver, 213 F.3d 113, 116 (3d
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Cir. 2000) (amendment is futile where an amended complaint cannot withstand a
renewed motion to dismiss).
ii. Fourteenth Amendment Procedural Due
Process Claim
The remainder of Hyman’s Fourteenth Amendment procedural due process
claim is premised upon several Corrections Defendants, namely Knepper, Caro,
Bowers, Shaffer, Tice, and Moslak, for not allowing Hyman to present evidence that
contradicted the allegations contained in the misconduct, failing to provide an
“unbiased” hearing examiner which resulted in Hyman being sanctioned to 60 days
of solitary confinement in the RHU, and for suspending his contact visits. ECF No.
1-2 at ¶ 104.
Corrections Defendants argue Hyman has not adequately alleged personal
involvement of Defendants Caro, Bowers, Shaffer and Moslak in his due process
claim because “responding to a grievance or misconduct appeal is not sufficient to
show personal involvement.” ECF No. 5 at 8-9. Corrections Defendants also argue
Hyman has not pleaded sufficient facts to support a procedural due process claim
generally because his sanction of 60 days confinement in the RHU does not
“constitute an atypical and significant hardship.” ECF No. 5 at 13. Because
Hyman’s procedural due process claim fails for not alleging a liberty interest
protected by the Fourteenth Amendment, only that argument is addressed.
The Fourteenth Amendment provides that no State shall “deprive any person
of life, liberty or property, without the due process of law.” U.S. Const. amend. XIV,
§ 1. To state a claim for deprivation of procedural due process rights, a plaintiff
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must allege that “(1) he was deprived of an individual interest that is encompassed
within the Fourteenth Amendment's protection of ‘life, liberty, or property,’ and (2)
the procedures available to him did not provide ‘due process of law.’” Hill v. Borough
of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d
107, 116 (3d Cir. 2000)). “Without the presence of a protected interest, a § 1983 due
process claim simply cannot stand.” Diaz v. Canino, 502 F. App'x 214, 217 (3d Cir.
2012)(unpublished) (citing Sample v. Diecks, 885 F.2d 1099, 1113 (3d Cir. 1989)).
Hyman’s Fourteenth Amendment procedural due process claim fails as a
matter of law because his allegations do not indicate he was deprived of a protected
liberty interest. When an inmate alleges sanctions imposed upon him from a
misconduct or disciplinary hearing, including being relocated to restricted housing
and denied visitation privileges, were the result of an improper misconduct hearing,
the sanction must impose an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life” to implicate the Fourteenth
Amendment. Diaz, 502 F. App'x at 218 (citing Sandin v. Conner, 515 U.S. 472, 484
(1995).
The Court of Appeals for the Third Circuit has recognized that “inmates are
generally not entitled to procedural due process in prison disciplinary hearings
because the sanctions resulting from those hearings do not usually affect a
protected liberty interest.” Burns v. PA Dep't of Corr., 642 F.3d 163, 171 (3d Cir.
2011) (citing Sandin, 515 U.S. at 483–484)). Hyman provides no allegations that he
experienced an atypical or significant hardship during the 60 days he was
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sanctioned to the RHU and denied visitation. Without that, his allegation of a due
process violation is insufficient. Many courts have held sanctions to disciplinary
confinement for periods much longer - up to fifteen months - do not trigger due
process protections. Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (fifteen
months in administrative custody did not deprive a protected liberty interest);
Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (holding that seven-month
confinement in restricted housing based on false reports did not implicate a
protected liberty interest); Ayers v. Campbell, 267 F. App'x 176, 177 (3d Cir. 2008)
(sanction of eight months in the RHU, as well as termination of his prison job,
opportunity for parole and visitation privileges was not an atypical or significant
deprivation to trigger constitutional protection); Nifas v. Beard, 374 F. App'x 241,
244 (3d Cir. 2010) (178 days in administrative custody and 90-day placement on a
restrict release list was not an atypical or significant deprivation to trigger
constitutional protection); Diaz, 502 F. App'x at 218 (360-day confinement in the
RHU did not affect a protected liberty interest). Accordingly, the decision to
sanction Hyman to disciplinary custody for a period of 60 days and deny visitation
privileges does not trigger due process protections.
Likewise, Hyman’s claims that the hearing examiner was biased and/or
impartial during his misconduct hearing and failed to consider evidence does not
trigger due process protections. Constitutionally mandated procedures, like the
impartiality of a hearing examiner or ability to present evidence, “are only
necessary where protected interests are involved[.]” Wilson v. Unknown Budgeon,
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248 F. App'x 348, 351 (3d Cir. 2007) (citing Sandin, 515 U.S. at 484 (holding
sanction of six months in disciplinary confinement did not violate a protected
interest under the Fourteenth Amendment and did not require constitutional
procedures).
Thus, it is recommended that Corrections Defendants’ motion to dismiss be
granted in this respect and Hyman’s Fourteenth Amendment procedural due
process claim be dismissed with prejudice in its entirety, as amendment would be
futile. Shane, 213 F.3d at 116. Since this is the only claim Hyman makes against
Defendants Knepper, Caro, Bowers, Shaffer, Tice and Moslak, it is further
recommended that they be dismissed from this case.
iii. First Amendment Retaliation and Conspiracy
Hyman asserts First Amendment retaliation and related conspiracy claims
under § 1983 against Defendants Pirl, Orner and Salyers for allegedly conspiring to
plant contraband in his cell and issuing a false misconduct in retaliation for filing a
grievance and PREA complaint against Defendant Pirl.
Corrections Defendants argue Hyman has not adequately alleged the
personal involvement of Defendants Pirl and Salyers in retaliating against him in
violation of the First Amendment and Hyman does not allege sufficient facts
supporting a retaliation or conspiracy claim. ECF No. 5 at 10; 20.
Each argument is addressed in turn.
1. Hyman has adequately alleged personal
involvement of Defendants Pirl and Salyers
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To prevail on a § 1983 claim, a plaintiff must allege that a defendant, acting
under color of state law, deprived the plaintiff of a right secured by the Constitution
or laws of the United States. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Liability under § 1983 requires a defendant's “personal involvement” in the
deprivation of a constitutional right. Gould v. Wetzel, 547 F. App'x 129 (3d Cir.
2013). “Personal involvement requires particular ‘allegations of personal direction
or of actual knowledge and acquiescence.’” Dooley v. Wetzel, 957 F.3d 366, 374 (3d
Cir. 2020) (quoting Rode, 845 F.2d at 1207). In the absence of specific allegations
that a defendant played a role in depriving the plaintiff of a constitutional right,
dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F. Supp. 2d 776, 781–82
(W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because plaintiffs
failed to set forth sufficient facts to establish certain defendants had played an
affirmative part in the alleged Eighth Amendment violation).
Hyman asserts First Amendment retaliation and related conspiracy claims
under § 1983 against Defendants Pirl and Salyers. Hyman alleges that on March
13, 2023, Defendant Pirl made sexually explicit comments to Hyman, pressured him
to withdraw a pending grievance and Hyman filed a PREA complaint against
Defendant Pirl for this incident. ECF No. 1-2 at ¶¶ 16-21. While the PREA
investigation was ongoing, on April 9, 2023, Hyman alleges that Defendants Pirl
and Salyers entered Hyman’s cell under the guise of inventorying his property and
Defendant Salyers discovered the extension cord containing suboxone and
Defendant Pirl was present and witnessed this. Id. at ¶¶ 41, 43, 45. Hyman alleges
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the extension cord was intentionally planted inside Hyman’s old cell by Defendants
Pirl and Salyers to “get back at” him for filing the PREA complaint. Id. at ¶¶ 54-55.
Corrections Defendants characterize Hyman’s allegations as broad
implications that do not specify individual conduct on behalf of Defendants Pirl and
Salyers. ECF No. 5 at 8. The Court disagrees.
The conduct alleged is sufficient to illustrate Defendants Pirl and Salyers
played a role in the alleged deprivation of Hyman’s constitutional rights at this
stage of the litigation. According to Hyman, Defendants Pirl and Salyers conspired
to retaliate against him for filing a PREA complaint by planting contraband in his
cell and then later “discovering” it and issuing a false misconduct against Hyman.
He alleges Defendant Pirl planted the contraband and that Defendant Salyers
discovered it and thus, has adequately alleged the “conduct, time, place and persons
responsible” for illustrating the personal involvement of Defendants Pirl and
Salyers. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Thus, it is recommended the Court deny Corrections Defendants’ motion to
dismiss in this respect.
iv. Hyman has stated a First Amendment retaliation and
related conspiracy claim
Next, Corrections Defendants argue Hyman’s First Amendment retaliation
claim should be dismissed against Defendants Pirl and Salyers because he fails to
allege sufficient facts supporting a retaliation claim. They argue in toto:
Plaintiff alleges that Defendants Pirl and Saylers retaliated against
him when he alleges that they planted drugs in his cell so that they
could issue a falsified misconduct against him. . . . However, this is not
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sufficient for a claim of retaliation. First, Plaintiff fails to allege
specific conduct that each defendant took and simply states broad
allegations against them together. It is not sufficient to simply broadly
implicate numerous defendants without specifying individual conduct.
. . . Second, Plaintiff does not offer sufficient allegations to show the
casual connection between the grievances and papers filed against
Defendants Pirl and Saylers and the alleged retaliatory action of
planting the drugs.”
ECF No. 5 at 10.
Corrections Defendants also argue Hyman has not provided sufficient facts to
show Defendants Orner, Pirl and Salyers engaged in a conspiracy to retaliate
against him. ECF No. 5 at 20.
Despite Corrections Defendants’ characterization, Hyman has provided
sufficient allegations to state a First Amendment retaliation claim against Pirl and
Salyers and a related conspiracy claim against Defendants Orner, Pirl and Salyers.
To state a plausible First Amendment retaliation claim, a prisoner must allege he
(1) engaged in constitutionally protected conduct; (2) suffered an adverse action
sufficient to deter a person of ordinary firmness from exercising his constitutional
rights; and (3) the constitutionally protected conduct was a substantial or
motivating factor for the adverse action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003); Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). “An adverse consequence
need not be great in order to be actionable[,]” but it must be “more than de
minimis.” Watson v. Rozum, 834 F.3d 417, 423 (3d Cir. 2016) (cleaned up).
Retaliatory motive can be inferred from either: “(1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory
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action, or (2) a pattern of antagonism coupled with timing that suggests a causal
link.” Watson, 834 F.3d at 422.
Hyman satisfies the first element because filing grievances and a PREA
complaint constitutes activity protected by the First Amendment. Watson, 834 F.3d
at 422 (filing a PREA complaint is protected activity under the First Amendment).
The second element – adverse action – is also met. Hyman was issued a false
misconduct report and confined in disciplinary segregation, which are sufficiently
adverse actions to deter a person of ordinary firmness from exercising his
constitutional rights. Smith, 293 F.3d at 653 (falsifying misconduct reports in
retaliation for an inmate engaging in protected activity implicates the First
Amendment); Palmore v. Hornberger, 813 F. App'x 68, 70 (3d Cir. 2020) (being
issued a retaliatory misconduct and moved to restrictive housing are adverse
actions); Golden v. Perrin, No. 1:21-CV-00187-RAL, 2022 WL 2791186, at *6 (W.D.
Pa. July 15, 2022) (“Moving an inmate to the RHU amounts to an adverse action.”).
Lastly, at this stage of the litigation, Hyman has plausibly alleged a causal
link to satisfy the third element of his retaliation claim. Watson, 834 F.3d at 422.
Hyman filed a grievance and PREA complaint against Defendant Pirl and as the
investigation was ongoing, Defendant Orner threatened to “plant drugs” in his cell
to get back at him for filing the PREA complaint. ECF No. 1-2 at ¶ 39; 43-44; 55.
The day after Defendant Orner made this threat, Defendants Orner, Pirl and
Salyers conducted a cell inventory and discovered contraband which was identical
to contraband found in another inmate’s cell a few days before. Id. Hyman was
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then issued a misconduct for the contraband and placed in the RHU. Id. These
allegations support an inference of an unusually suggestive temporal proximity
between Hyman filing his grievance and PREA complaint, threats to plant
contraband in his cell and Corrections Defendants finding contraband in his cell
and issuing a misconduct. At this juncture, Hyman has sufficiently alleged facts
tending to show these Defendants acted with a retaliatory motive.
Likewise, Hyman has provided sufficient allegations to support a claim that
Defendants Orner, Pirl and Salyers conspired to retaliate against him. “To prevail
on a conspiracy claim under § 1983, a plaintiff must prove that persons acting
under color of state law reached an understanding to deprive him of his
constitutional rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir.
2018) (cleaned up). The plaintiff must
provide some factual basis to support the existence of the elements of a
conspiracy: agreement and concerted action. To show agreement, he
must demonstrate that the state actors named as defendants in the[ ]
complaint somehow reached an understanding to deny [the plaintiff]
his rights, and in the absence of direct proof, that meeting of the minds
or understanding or agreement to conspire can be infer[red] from
circumstantial evidence. Such circumstantial evidence may include
that the alleged conspirators did or said something...to create an
understanding, the approximate time when the agreement was made,
the specific parties to the agreement[,] the period of the conspiracy, or
the object of the conspiracy. And in the context of an alleged conspiracy
among police officers, it may manifest as conversations between
officers about the incident, allegedly distorted stories that emerged, an
awareness of conflicting stories and irregularities in the series of
official investigations into the incident.
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Id. at 295. A plaintiff may not, however, “rely on subjective suspicions and
unsupported speculation[]” to support a § 1983 conspiracy claim. Lewis v. Wetzel,
153 F. Supp. 3d 678, 695 (M.D. Pa. 2015).
Hyman claims on April 3, 2023, unspecified corrections officers conducted a
search of another inmate’s cell and found an altered extension cord that contained
suboxone. ECF No. 1-2 at ¶ 33. At this time, Hyman was housed in the RHU and
did not have access to his cell. Id. at ¶ 33. His cell was searched on three occasions
on April 3, 4 and 5, 2023. ECF No. 1-2 at ¶¶ 33-35. He claims the latter two
searches were conducted with a drug sniffing K-9, and no drugs or contraband were
found in his cell. Id. at ¶ 36. Three days after the last search, on April 8, 2023,
Hyman claims Defendant Orner came to the RHU and threatened to plant drugs
found in another inmates cell to “get back” at him for filing grievances and the
PREA complaint against Defendant Pirl. Id. at ¶¶ 39; 43-44. The very next day, on
April 9, 2023, Defendants Orner, Salyers and Pirl entered Hyman’s cell to conduct
an inventory when they found the same contraband – an altered extension cord that
contained suboxone – in Hyman’s cell. Id. at ¶ 44. He was then issued a misconduct
for the contraband and in the misconduct report, Defendant Salyers indicated he
found the extension cord. Id. at ¶¶ 44; 60-62. Hyman disputes that Defendant
Salyers found the extension cord and claims video evidence shows Defendant Pirl
entering his cell and exiting with an extension cord moments later. Id. at ¶¶ 60-62.
Taking these allegations as true, Hyman has adequately alleged Defendants Orner,
Pirl and Salyers had an understanding or agreement to plant contraband in
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Hyman’s cell to retaliate against him for filing grievances and a PREA complaint
against Defendant Pirl.
Thus, it is recommended the Court deny Corrections Defendants’ motion to
dismiss in these respects.
v. Sovereign Immunity
Hyman asserts an intentional infliction of emotional distress claim under
Pennsylvania law against Defendants Pirl, Orner and Salyers in connection with
allegedly planting contraband in his cell and issuing a false misconduct. To the
extent Hyman’s references to a civil “conspiracy” is construed as a separate claim
under Pennsylvania state law, he also asserts this claim against Defendants Pirl,
Orner and Salyers for this same conduct.
Corrections Defendants argue they are entitled to sovereign immunity for
Hyman’s state law claims of intentional infliction of emotional distress and
conspiracy and argue, in toto: “Plaintiff has not alleged that any of the Corrections
Defendants were acting outside the scope of their duties when the alleged conduct
occurred. Indeed, the Complaint specifically identifies each Corrections Defendant
by their respective titles within the Department of Corrections and states that they
were at all times acting under the color of law. . . . Nor has plaintiff identified
which, if any, of the exceptions to sovereign immunity listed in 42 Pa. Stat. and
Cons. Stat. Ann. § 8522(b) within which his claim would fall.” ECF No. 5 at 17.
The Pennsylvania General Assembly has enacted 1 Pa. Stat. and Cons. Stat.
Ann. § 2310, which provides:
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Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania,
it is hereby declared to be the intent of the General Assembly that the
Commonwealth, and its officials and employees acting within the scope
of their duties, shall continue to enjoy sovereign immunity and official
immunity and remain immune from suit except as the General
Assembly shall specifically waive the immunity.
(emphasis added). “Section 2310 thus generally ‘shields Commonwealth officials
and employees from civil liability for torts committed within the scope of their
duties.’” DeGroat v. Cavallaro, No. 3:16-CV-1186, 2017 WL 2152376, at *4 (M.D. Pa.
May 17, 2017) (quoting Zion v. Nassan, 283 F.R.D. 247, 265 (W.D. Pa. 2012), aff'd,
556 F. App'x 103 (3d Cir. 2014)); see also Mitchell v. Luckenbill, 680 F. Supp. 2d
672, 681–82 (M.D. Pa. 2010) (“Sovereign immunity bars claims that are asserted
against the Commonwealth, its agencies, and Commonwealth employees acting
within the scope of their office or employment.”) (citing 1 Pa. Cons. Stat. Ann. §
2310); Jackson v. Nassan, No. 2:08CV1054, 2009 WL 2707447, at *6 (W.D. Pa. Aug.
26, 2009) (“Even where a plaintiff asks for monetary damages against a
[Commonwealth] defendant in his individual capacities, sovereign immunity
applies.”).
Sovereign immunity is an affirmative defense that can only be decided at the
motion to dismiss stage where the facts and inferences drawn therefrom are not in
dispute. Just. v. Lombardo, 652 Pa. 588 (2019). “[A] plaintiff need not plead the
absence of an affirmative defense or otherwise plead around it[.]” Talley v. Clark,
111 F.4th 255, 264 (3d Cir. 2024) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
Therefore, Corrections Defendants’ argument that Hyman failed to allege in his
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complaint a specific exception to sovereign immunity that applies does not require
dismissal of his claims at this stage.
Moreover, sovereign immunity does not apply to Commonwealth employees
who are not acting within the scope of their employment. Schell v. Guth, 88 A.3d
1053, 1067 (Pa. Commw. Ct. 2014). “Conduct of an employee is within the scope of
employment if it is of a kind and nature that the employee is employed to perform;
it occurs substantially within the authorized time and space limits; it is actuated at
least in part, by a purpose to serve the employer; and if force is intentionally used
by the employee against another, it is not unexpected by the employer.” Sanchez v.
Montanez, 645 A.2d 383, 388 (Pa. Cmwlth. 1994). When “the alleged intentional
tort was unprovoked, unnecessary or unjustified by security concerns or penological
goals, courts have ruled that such conduct does not, as a matter of law, fall within
the scope of employment” for sovereign immunity purposes. Wesley v. Hollis, No.
CIV.A. 03-3130, 2007 WL 1655483, at *15 (E.D. Pa. June 6, 2007).
Accepting the facts alleged by Hyman as true, it cannot be determined as a
matter of law at this stage that Defendants Pirl, Orner and Salyers acted within the
scope of their employment. Hyman claims these Defendants conspired to retaliate
against Hyman for filing a grievance and PREA complaint against Defendant Pirl,
Defendant Orner threatened to plant contraband in Hyman’s cell and then
contraband was planted in his cell leading to Hyman being issued a misconduct and
sanctioned to disciplinary confinement. Thus, an inference can be drawn that
planting contraband and issuing a misconduct was motivated by retaliation or some
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personal animus against Hyman and served no legitimate purpose to the DOC.
Justice, 208 A.3d at 1068. Accordingly, they are not entitled to sovereign immunity
at this stage and this issue must be decided by a court and/or jury with the benefit
of a completed record. See Mucy v. Nagy, No. CV 20-1950, 2021 WL 3370792, at *12
(W.D. Pa. Aug. 3, 2021) (allegations that Pennsylvania State Troopers issued
plaintiff retaliatory citations were not entitled to sovereign immunity at the motion
to dismiss stage).
Thus, it is recommended that the Court deny Corrections Defendants’ motion
to dismiss in this respect.
III. Conclusion
Based on the foregoing, it is respectfully recommended that the Court grant
in part and deny in part Corrections Defendants’ motion to dismiss. It is
specifically recommended that the Court grant Corrections Defendants’ motion and
dismiss Hyman’s official capacity claims against Defendants Tice and Moslak and
his Fourteenth Amendment procedural due process claims with prejudice, and
because no further claims remain against Defendants Knepper, Caro, Bowers,
Shaffer, Tice and Moslak, they be dismissed from this case. It is further
recommended that the Court deny the motion in all other respects.
It is recommended that the following claims against Defendants Orner, Pirl
and Salyers remain in this case: (1) a First Amendment retaliation and related
conspiracy claim under 42 U.S.C. § 1983; (2) intentional infliction of emotional
distress under Pennsylvania law; and (3) and a civil conspiracy claim under
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Pennsylvania law. Likewise, it is recommended the Fourteenth Amendment equal
protection and Eighth Amendment failure to protect claims under 42 U.S.C. § 1983
against John Doe proceed.
Therefore, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Fed. R. Civ. P. 72,
and the Local Rules for Magistrates, Hyman because he is a non-electronically
registered party, must file written objections, if any, to this Report and
Recommendation by December 1, 2025. Corrections Defendants, because they are
electronically registered parties, must file objections, if any, by November 26,
2025. Unless otherwise ordered by the District Judge, responses to objections are
due fourteen days after the service of the objections. Failure to file timely objections
will waive any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d
Cir. 2011).
DATED this 12th day of November, 2025.
Respectfully submitted:
s/Christopher B. Brown
United States Magistrate Judge
cc: Honorable Stephanie L. Haines
United States District Judge
FRANK HYMAN
JZ-6112
SCI DALLAS
1000 Follies Road
Dallas, PA 18612
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Counsel of record
via CM/ECF electronic filing
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