McKeithen v. Cooper et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GREGORY MCKEITHEN,
Plaintiff
V.
C.O. COOPER, et al.,
Defendants
Civil No. 3:25-cv-157
(Judge Mariani)
MEMORANDUM
Plaintiff Gregory McKeithen ("McKeithen") filed this pro se civil rights action pursuant
to 42 U.S.C. § 1983. (Doc. 1). 	In his complaint, McKeithen names as Defendants: (1)
McCool, a Correctional Officer at the State Correctional Institution Rockview ("SCI-
Rockview"); (2) Rains, a Correctional Officer at SCI-Rockview; (3) Boone, a Correctional
Officer at SCI-Rockview; (4) Peterson, a Lieutenant at SCI-Rockview; 1 and (5) Cooper, a
Correctional Officer at the State Correctional Institution Benner Township ("SCI-Benner
Township"). 	(Id. at 2-3).
Presently before the Court is Defendants' motion to dismiss the complaint in part
pursuant to Federal Rule of Civil Procedure 12(b)(6).2 (Doc. 17). The motion for partial
1 	Hereinafter, the Court will refer to the Defendants alleged to work at SCI-Rockview as the "SCI-
Rockview Defendants, " where appropriate.
2 	Defendants assert that if their instant motion is granted , this action will proceed on the Eighth
Amendment excessive force claim, and state tort claims of assault , battery, false imprisonment, and
intentional infliction of emotional distress asserted against Defendants Rains, Boone , McCool, and
Peterson . (See Doc . 20, at 1).
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dismissal is ripe for disposition.3 For the reasons set forth below, the Court will grant
Defendants' motion.
I. 	Legal Standard
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) , if it
does not allege "enough facts to state a claim to relief that is plausible on its face. " Be// At/ .
Corp . v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The
plaintiff must aver "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, 129
S. Ct. 1937, 1949, 173 L. Ed . 2d 868 (2009) .
"Though a complaint 'does not need detailed factual allegations, ... a formulaic
recitation of the elements of a cause of action will not do. "' De/Rio-Mocci v. Connolly Prop.
Inc ., 672 F.3d 241 , 245 (3d Cir. 2012) (citing Twombly , 550 U.S. at 555). 	In other words,
"factual allegations must be enough to raise a right to relief above the speculative level."
Covington v. Int'/ Ass 'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). A court "take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but .. . disregard[s] legal conclusions and threadbare recitals of the elements of a
3 	McKe it hen 's briefs in opposition to Defendants ' motion for partial dismissal contains facts that
are not expressly set forth in the complaint. (See Docs. 22 , 24 ; see also Doc. 35). The Court may not
consider such allegations because a complaint cannot be amended by way of an opposition brief. See
Pennsylvania ex rel . Zimmerman v. PepsiCo , Inc., 836 F.2d 173 , 181 (3d Cir. 1988) ("[l]t is axiomatic that
the complaint may not be amended by the briefs in opposition to a motion to dismiss ." ).
2
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cause of action, supported by mere conclusory statements ." Ethypharm S.A. France v.
Abbott Laboratories, 707 F.3d 223,231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the elements a
plaintiff must plead to state a claim. 	Second, the court should identify allegations that,
because they are no more than conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show[n] - that the
pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This "plausibility" determination will be a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id .
However , even "if a complaint is subject to Rule 12(b )(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time .
3
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Id.
II. 	Allegations of the Complaint
A. 	Facts Related to SCI-Rockview
McKeithen alleges that on March 6, 2023, he engaged in a "physical altercation" with
McDermott, a non-party Correctional Officer, on A Pod at SCI-Rockview. 	(Doc. 1, at 7).
"Once the altercation as over, [McKeithen] realized that [he] was in serious trouble ." (Id.).
McKeithen alleges that he walked towards Defendant McCool because he knew "that [he]
was about to go [to] the Hole." (Id.). 	He alleges that Defendant McCool ordered him to "lay
on the floor" and McCool handcuffed him . (Id.). 	Once handcuffed, Defendant Peterson
allegedly ordered Defendants Rains and Boone to pick McKeithen up from the floor. 	(Id. at
7-8). Once he was stood up, McKeithen alleges that Defendant Rains tripped him and tried
to make him lose his balance. 	(Id. at 8). 	He alleges that Defendant Boone then pushed him
down a set of stairs and purportedly stated "you just assaulted a C.O., what the fuck do you
think is going to happen." (Id.). 	McKeithen alleges that Defendants Boone, McCool, Rains,
and other unidentified non-party correctional officers then "punched, kicked, kneed and
stomped [him] in the face, head, ribs, legs and the buttocks area, until [he] lost
consciousness." (Id.). 	During this incident, McKeithen claims that he was not resisting.
(Id.). 	He also alleges that an unidentified person put a spit hood mask on him backwards so
he could not see and had difficulty breathing. 	(Id .).
4
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Defendant Peterson then allegedly ordered the officers to pick up McKeithen. (Id . at
8, 10). McKeithen claims that he was picked up and walked about three paces when
Defendant Peterson allegedly ordered the officers to "take him back down ." (Id. at 10).
McKeithen alleges that he was taken to the ground again and Defendants Boone, McCool,
Ra ins , and other unidentified non-party correct ional officers "punched , kicked, kneed and
stomped" him. (Id .). McKeithen alleges that he could not breathe and was choking on his
own blood. 	(Id. ). He alleges that he was picked up again and walked three to four paces
before he was thrown back on the ground. (Id .). 	McKeithen claims that an unidentified
person untied his boot and twisted his ankle so far that he felt his ankle pop three times.
(Id .). He alleges that he was punched and kicked again and was dragged down more steps
and punched two more times by an unidentified individual. (Id .). McKeithen asserts that he
was then placed in a cha ir and escorted to medical. (Id. at 9-10). A nurse examined
McKe ithen, and he was immediately transported to an outside hospital via ambulance . (Id .
at 9-10). At the hospital, McKeithen underwent MR ls and x-rays and "found out that [he]
had serious inju ries ." (Id . at 9) .
B. 	Facts Related to SCI-Benner Township
McKe ithen remained in the hospital for about five hours and was then transferred
from the outs ide hospital to SCI-Benner Township . (Id.). 	McKeithen was in a wheelchair
and had a boot on his ankle. 	(Id.) . Upon arrival at SCI-Benner Township , McKeithen was
se nt to the Psychiatric Observation Cell ("POC "), and photographs were taken of his
5
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injuries. (Id .). On March 7, 2023, McKeithen was escorted to the Restricted Housing Unit
("RHU") at SCI-Benner Township and was allegedly forced out of his wheelchair and had to
ambulate on one leg. (Id.). 	He claims an unidentified non-party individual denied his
request for a mattress, sheets, blanket, grievances, hygiene materials, envelopes, and a
pen. 	(Id .).
On March 8, 2023, McKeithen claims that Defendant Cooper approached his cell
door and said that he was "burnt for a tray dumb ass" and did not give him meals. 	(Id. at 9,
11 ). 	He also alleges that Defendant Cooper denied him a mattress, sheets, blanket,
grievances, hygiene materials, envelops, and a pen for the next three days. 	(Id. at 11 ).
McKeithen alleges that Defendant Cooper made him sign a refusal form for the hospital by
allegedly threatening to "kick [his] teeth in." (Id.).
McKeithen sets forth the following claims for relief: (1) assault and battery; (2) false
imprisonment; (3) malicious prosecution and fraudulent representation; (4) intentional
infliction of emotional distress; (5) harassment; (6) Eighth Amendment excessive use of
force; and (7) First Amendment retaliation. 	(Id . at 5).
Defendants now move to dismiss all claims against Defendant Cooper, the malicious
prosecution and fraudulent representation claims, and the First Amendment retaliation
claim. 	(Docs . 20, 21 ).
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Ill. 	Discussion
A. 	Malicious Prosecution and Fraudulent Representation Claims
Defendants move to dismiss the malicious prosecution and fraudulent representation
claims based on McKeithen's failure to plead the requisite elements of the claims. 	(Doc . 21 ,
at 7-8). 	McKeithen "has no objection to dism issing the fraudulent representation claim , and
the malic ious prosecut ion claim ." (Doc . 22, at 3 n.2) . He concedes that "[t]hese claims can
be dismissed in agreement with Defendants['] request." (Id .). Because McKeithen agrees
to the dismissal of these claims , the Court will dismiss the malicious prosecution and
fraudulent representation claims without a merits analysis .
B. 	Claims Against Defendant Cooper
In the ir motion to dismiss, Defendants argue that McKeithen's complaint fa il s to
comply with Rule 20 of the Federal Rules of Civil Procedure . (Doc . 21 , at 5-7). 	More
specifically , Defendants argue that the claims asserted against Defendant Cooper are mis-
joined because they do not arise out of the same transaction or occurrence of the events
and claims alleged against the SCI-Rockview Defendants. (Id.).
Rules 18 and 20 of the Federal Rules of Civil Procedure explain the circumstances in
wh ich multiple claims and multiple defendants may be joined . Rule 18 states that a party
"may join .. .as many claims as it has against an oppos ing party. " FED. R. C1v. P. 18(a) .
Thus, when an action involves only one defendant , a plaintiff may assert every claim he has
aga inst that defendant, regardless of whether the claims are factually or legally related to
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one another , subject only to the limits of federa l subject-matter jurisdiction. 	See 7 CHARLES
ALAN WRIGHT & ARTHUR MILLER, ET AL., FEDERAL PRACTICE & PROCEDURE§ 1655 (3d ed.
2019); see also FED. R. CIV . P. 18(a).
When a plaintiff seeks to assert claims against multiple defendants, however, Rule
20 also comes into play . See WRIGHT & MILLER , supra , § 1655. Rule 20 governs permissive
joinder of parties and explains that a plaintiff may only join multiple defendants in a single
case if (1) "any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence , or series of transactions
or occurrences ," and (2) "any question of law or fact common to all defendants will ar ise in
the action." FED . R. CIv . P. 20(a)(2). 	In other words , a plaintiff may join multiple defendants
in a single complaint only if he asserts at least one claim linking all defendants that (1 )
arises out of the same transaction or occurrence and (2) involves a common question of law
or fact. 	Id .; WRIGH T& MILLER , supra,§ 1655. That is , there must be at least one common
claim against all named defendants. Once a plaintiff satisfies this requirement, he may
invoke Rule 18 to assert "as many cla ims as [he] has " against one or more defendants ,
even if those additional claims are unrelated to the common cla im linking all defendants.
See FED . R. CIv . P. 18(a) ; WRIGHT & MILLER, supra,§ 1655 .
Even when questions of law are common to all defendants , but each defendant is
not part of the same occurrence , such that there are different questions of fact , claims may
be deemed improperly joined. 	Kokinda v. Pennsylvania Dep 't of Corr., 663 F. App'x 156 ,
8
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158 (3d Cir. 2016) . In Kokinda , the Third Circu it found that it was not an abuse of discretion
to dismiss as improperly joined claims that prison medical service providers and Department
of Corrections' employees at three different facilities fed the plaintiff a diet that contained
soy desp ite knowing that he was allergic to it. Kokinda, 663 F. App 'x 156 . While the plaintiff
alleged that each defendant violated his constitutional rights in an identical way, the fact that
the alleged misconduct occurred at three institutions at separate times, and that different
defendants independently violated his rights in the same manner was not sufficient to link
the defendants together for joinder purposes. 	Id . (citation omitted) .
To remedy a misjoinder, a court may add or drop a party or sever any claims. 	FED.
R. C1v. P. 21 ("On motion or on its own, the court may at any time , on just terms, add or drop
a party. The court may also sever any claim against a party").
The Court finds that McKeithen 's complaint violates Rule 20. 	Upon review of the
complaint, McKeithen 's claims aga inst the SCI-Rockview Defendants arise out of alleged
excessive use of force and state tort claims of assault , battery , false imprisonment , and
intentional infliction of emotional distress at SCI -Rockview , and the claims against
Defendant Cooper arise out of alleged retaliation and inadequate conditions of confinement
at SCI-Benner Township . (Doc. 1, at 7-11). The separate and distinct events and cla ims in
McKeithen's complaint do not "aris[e] out of the same transaction, occurrence or series of
transactions or occurrences " and do not raise a "question of law or fact common to all
defendants ," as is required by Rule 20 . FED . R. C1v. P. 20(a)(2) . His claims stem from
9
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separate and distinct events that occurred at two state prisons at different times, invo lving
different correctional staff . Moreover, McKeithen 1
s claims are not based on similar theories
of liability-the elements of the claims against the SCI-Rockview Defendants are legally and
factually different from the elements of the claims asserted against Defendant Cooper. 	It is
apparent from the complaint that there are significant factual differences in the claims and
potential defenses to the claims. 	Under Rule 20, these disconnected and unrelated claims
against multiple Defendants cannot stand. Thus, the Court finds that the improperly joined
cla ims against Defendant Cooper must be dismissed . See Kokinda, 663 F. App 1
x at 159
(concluding that plaintiff improperly joined claims where he was held at three separate
prison institutions and different officials at each prison were alleged to have "independently
violated his civil rights 1} 	If McKeithen wishes to pursue his unrelated claims against
Defendant Cooper in federal court, he must file a separate Section 1983 action naming
Cooper as a defendant.
C. 	First Amendment Retaliation Claim
To plead a prima facie First Amendment retaliation claim, a plaintiff must allege that:
"(1) [their] conduct was constitutionally protected; (2) [they] suffered an adverse action at
the hands of prison officials; and (3) [their] constitutionally protected conduct was a
substantial or motivating factor in the decision to [retaliate against them] .JJ Watson v.
Rozum , 834 F.3d 417, 422 (3d Cir . 2016) (citations omitted) . As for the first element of a
plaintiffs prima facie retal iation claim, examples of constitutionally protected activities are
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the filing of lawsuits and prison grievances. 	Id. (reiterating prior holding that a prisoner-
plaintiff engages in constitutionally protected activity when they file a grievance against a
prison official); Allah v. Seiverling, 229 F.3d 220, 223-25 (3d Cir. 2000) (concluding that the
prisoner-plaintiff stated a First Amendment retaliation claim where he alleged that he had
been kept in administrative segregation in retaliation for filing civil rights claims against
prison officials).
Regarding the second element of a plaintiffs prima facie case, an adverse action is
one that is "sufficient to deter a person of ordinary firmness from exercising [their]
[constitutional] rights[.]" Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (second
alteration in original) (citations and internal quotation marks omitted); Fantone v. Latini, 780
F.3d 184 , 191 (3d Cir. 2015), as amended (Mar . 24, 2015) (explaining that an adverse
action must be "sufficient to deter a person of ordinary firmness from exercising [their]
constitutional rights ... " (citation omitted)). 	However, to be actionable under Section 1983 ,
the alleged adverse action must be more than de minimis. 	See McKee v. Hart, 436 F.3d
165, 170 (3d Cir. 2006) (explaining that the alleged retaliatory conduct "need not be great in
order to be actionable, but it must be more than de minimis" (citations and internal quotation
marks omitted)).
Finally , with respect to the third element of a plaintiffs prima facie case, i.e. , the
causation element , the Court observes that, "[b]ecause motivation is almost never subject to
proof by direct evidence, " a plaintiff must typically "rely on circumstantial evidence to prove
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a retaliatory motive." 	Watson, 834 F.3d at 422. The plaintiff "can satisfy [their] burden with
evidence of either (1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with
timing that suggests a causal link. " Id. (footnote omitted). "In the absence of that proof the
plaintiff must show that from the 'evidence gleaned from the record as a whole' the trier of
the fact should infer causation." Lauren W ex rel. Jean W. v. OeFlaminis, 480 F.3d 259,
267 (3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir.
2000)) ; see also Marra v. Phi/a. Hous. Auth. , 497 F.3d 286, 302 (3d Cir. 2007) (pointing out
that circumstantial evidence may include "inconsistent reasons given by the employer for
terminating the employee or the employer's treatment of other employees, that give rise to
an inference of causation when considered as a whole") , as amended (Aug. 28, 2007).
McKeithen asserts that Defendants retaliated against him for engaging in a physical
altercation with a non-party correctional officer on March 6, 2023. 	(Doc. 1, at 5, 7). 	He
asserts that Defendants retaliated by assaulting and harassing him. (Id.). 	Defendants
argue that McKeithen failed to allege a plausible First Amendment retaliation claim because
fighting with a correctional officer did not constitute constitutionally protected conduct. 	(Doc.
21, at 8-9).
While McKeithen believes that Defendants' actions were retaliatory in the definitional
sense of the word, he does not set forth a legal claim of retaliation . It is implausible that
McKeithen 's physical altercation with a correctional officer, which he asserts triggered the
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retaliation, was a constitutionally protected activity. 	Moreover, "[a]fter additional research ,"
McKeithen "understands that he cannot base a claim of retaliation on mistreatment
subsequent to an altercation with correctional personnel." (Doc . 35, at 3) . McKeithen fails
to allege that Defendants ' actions were taken due to his participation in a constitutionally
protected activity. 	McKeithen thus fails to clear the first hurd le of a retaliation claim and this
claim must be dismissed .
IV. 	Leave to Amend
Before dismissing a complaint for failure to state a claim upon which relief may be
granted, the Court must grant the plaintiff leave to amend the complaint unless amendment
would be inequitable or futile . See Grayson v. Mayview State Hospital, 293 F.3d 103 , 114
(3d Cir . 2002) . "In assessing 'futility ,' the district court applies the same standard of lega l
sufficiency as applies under Rule 12(b)(6) ." In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1434 (3d Cir. 1997) (citation omitted).
McKe ithen's retaliation claim is legally flawed and thus incurable. 	Therefore, the
Court concludes that curative amendment would be futile.
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V. 	Conclusion
For the reasons stated above, Defendants' motion for partial dismissal will be
granted. 	(Doc. 20). The motion to dismiss the malicious prosecution and fraudulent
representation claims, the First Amendment retaliation claim, and the claims against
Defendant Cooper will be granted.
A separate Order shall issue .
obert D. Marian ·
Dated: February 	# ,2026
United States District Judge
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