Joshua Robinson v. Palco ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-2987
__________
JOSHUA ROBINSON,
Appellant
v.
PALCO, Dietary Staff; HIXSON, Dietary Staff; BIAN, C.O.;
KENT, C.O.; JOHN CREE, PCM; GROVE, Mjr.; SEANOR, Security Capt.;
C.O. BEERS, Security Lt.; JOHN DOE of The Somerset PA. State Police; WORKMAN,
Dietary Staff; KAWCHAK, Dietary Staff; WIGGINS, Misc. Hearing Examiner;
MCDERMOTT, Dietary Staff Member; MICHELLE HOUSER, Deputy Superintendent;
KEN HOLLIBAUGH, Deputy Superintendent; MICHAEL G. TSIKALAS, Deputy
Superintendent; JAMEY P. LUTHER, Superintendent; MELISSA HAINSWORTH,
Superintendent; DAVID G. RADZICWICZ, PREA Coordinator; ZACHARY J.
MOSLAK, Chief Misc. Appeal Officer; VERNA, Chief Griev. Appeal Officer; JOHN E.
WETZEL, Sec. of D.O.C.; MARK BECKER, PREA Lt.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-00056)
District Judge: Honorable Stephanie L. Haines
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 6, 2022
Before: MCKEE, SHWARTZ and MATEY, Circuit Judges
(Opinion filed: July 29, 2022)
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OPINION*
___________
PER CURIAM
Joshua Robinson appeals pro se from the order of the United States District Court
for the Western District of Pennsylvania dismissing his amended complaint pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) for failure to state a claim on which relief may
be granted.
In 2019, Robinson filed a complaint against the defendants under 42 U.S.C.
§ 1983, claiming, inter alia, that they violated his rights under the First, Fourth, Eighth,
and Fourteenth Amendments, engaged in a civil conspiracy, and obstructed justice. His
claims primarily related to searches of his person and subsequent related events while he
was an inmate at the State Correctional Institution at Laurel Highlands. Pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(a), the Magistrate Judge screened the amended
complaint and recommended dismissal for failure to state a claim on which relief could
be granted. The District Court, over Robinson’s objections, adopted the Magistrate
Judge’s Report and dismissed the amended complaint with prejudice. Robinson timely
appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a sua sponte dismissal of a complaint under §§ 1915(e)(2)(B) and 1915A(a). See
Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020). To avoid dismissal, “a complaint
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021) (citation
and quotation marks omitted). We may affirm a district court’s judgment on any basis
supported by the record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam).
We largely agree with the District Court’s ruling. First, we agree with the District
Court’s dismissal of Robinson’s Equal Protection claims and claims based on racial and
religious discrimination inasmuch as Robinson failed to allege any facts suggesting that
he was being treated differently from any other prisoner, see City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985), or that his treatment was motivated by a
discriminatory purpose. We additionally agree with the District Court’s conclusion that
Robinson did not adequately plead a First Amendment Claim with respect to his
misconduct issued for using “abusive, obscene, and inappropriate language,” ECF No. 10
at 4, either as a claim relating to his right to make the statement he admits to having made
or as a claim of retaliation, and have little to add to the Magistrate Judge’s analysis, as
adopted by the District Court. See Shaw v. Murphy, 532 U.S. 223, 229 (2001); Cowans
v. Warren, 150 F.3d 910, 912 (8th Cir. 1998).
Related to Robinson’s First, Fourth, Eighth, and Fourteenth Amendment claims
regarding the pat-down searches, Robinson alleged that after he exited the prison kitchen,
where he worked, defendant Palco, a dietary staff member, patted him down and
“roughly fondled” his buttocks while defendants Bian and Kent looked on, grinning.
3
Robinson further alleged that, after he filed a Prison Rape Elimination Act (“PREA”)
complaint against Palco related to this incident, defendant Hixson, another dietary staff
member, retaliated against him by subjecting him to fondling during a subsequent pat-
down search. Then, after Robinson filed a PREA complaint against Hixson because of
that incident, defendant Kawchuk retaliated against him for filing the PREA complaints
by verbally harassing him and running her finger underneath Robinson’s waistband while
searching him after he left the kitchen. When the PREA complaints filed against both
Palco and Hixson were determined to be unfounded, Robinson was issued two separate
misconducts for having filed the complaints; each misconduct charged sexual
harassment, lying to an employee, and disobeying a direct order. See ECF No. 10-11;
10-12; 10-16; 10-17. He was found guilty and was sanctioned with a 30-day cell
restriction and removal from his work detail in relation to this complaint against Palco,
and with a 30-day cell restriction and 90 days of limited commissary as to his PREA
complaint against Hixson.
The District Court properly dismissed Robinson’s claim that the searches by Palco
and Hixson violated the Fourth Amendment’s prohibition on unreasonable searches.
Corrections officials have wide latitude to “devise reasonable search policies to detect
and deter the possession of contraband in their facilities.” Florence v. Bd. of Chosen
Freeholders, 566 U.S. 318, 328 (2012). Thus, although prisoners retain Fourth
Amendment rights, they are limited to “accommodate a myriad of institutional needs and
objectives of prison facilities.” Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016).
4
When he was searched, Robinson was leaving an area of the prison where prisoners on
work detail have access to knives and other contraband. Given that the amended
complaint describes minimally invasive searches conducted over clothing in furtherance
of the legitimate penological interest of detecting contraband, Robinson has failed to
plead facts alleging that the pat-down search of his person was unreasonable. See id. at
326 (holding that inmate search policies are constitutional if they strike “a reasonable
balance between inmate privacy and the needs of the institutions”) (quoting Florence, 566
U.S. at 339).
As to his cruel and unusual punishment claim, sexual conduct by prison officials
directed at inmates is, for Eighth Amendment purposes, assessed per the test articulated
in Ricks v. Shover, 891 F.3d 468, 475 (3d Cir. 2018), which comprises subjective and
objective components. “Regarding the subjective prong, we consider whether the official
had a legitimate penological purpose or if he or she acted ‘maliciously and sadistically for
the very purpose of causing harm.’” Id. While we have identified “sexualized fondling”
as objectively serious sexual contact, Ricks, 891 F.3d at 478, Palco and Hixson each had
a legitimate penological interest in conducting a pat-down search of Robinson as he left
the kitchen. See Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). And Robinson
has not pleaded any fact suggesting that either Palco or Hixson acted with the intent to
humiliate him or gratify a sexual desire. See Ricks, 891 F.3d at 476. The District
Court’s dismissal of the Eighth Amendment claim was accordingly proper.1 Because
1
Robinson’s Fourteenth Amendment Due Process was likewise properly dismissed
5
Robinson failed to state a claim based on the pat-down searches, his “failure to intervene”
claims against defendants Bian, Kent, Hainsworth, Seanor, Grove, Tsikala, and Wetzel
were also properly dismissed.
We further agree with the District Court’s dismissal of Robinson’s civil
conspiracy claim, which is insufficient because he has not pleaded facts supporting that
the defendants were “motivated by some racial, or perhaps otherwise class-based,
invidiously discriminatory animus” in allegedly depriving him of his rights. United Bhd.
of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 833 (1983).
His obstruction of justice claim was also properly dismissed because there is no civil
cause of action for obstruction of justice under federal or Pennsylvania state law. See
Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. Ct. 1987).
Regarding each of his retaliation claims, Robinson needed to allege that “(1) his
conduct was constitutionally protected; (2) he suffered an adverse action at the hands
of prison officials; and (3) his constitutionally protected conduct was a substantial or
motivating factor in the decision to discipline him.” Watson v. Rozum, 834 F.3d 417,
422 (3d Cir. 2016). The District Court correctly held that many of Robinson’s allegations
because his claims concerning the pat-down searches are appropriately considered under
the Fourth and Eighth Amendments, and “when government behavior is governed by a
specific constitutional amendment, due process analysis is inappropriate.” Berg v. Cnty.
of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000); see Doe v. Groody, 361 F.3d 232, 238
n.3 (3d Cir. 2004). To the extent that Robinson alleged that he was deprived of due
process in the adjudication of the misconduct charges, the claim was correctly dismissed
because the claim does not implicate a liberty interest. See Sandin v. Conner, 515 U.S.
472, 484 (1995).
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failed to state a claim of retaliation. First, he provided no facts from which it could be
inferred that Hixson’s pat-down search was motivated by Robinson’s PREA complaint
against Palco, or that Kawchuk’s search or Robinson’s transfer to another facility was
motivated by the various grievances that he filed.
We disagree, however, with the District Court’s ruling with respect to Robinson’s
retaliation claims based on the misconducts and sanctions issued against him as a result
of his PREA complaints. In dismissing those claims, the District Court adopted the
Magistrate Judge’s conclusion that Robinson failed to allege “adverse action” for the
purpose of stating a retaliation claim. That conclusion was in error, as Robinson alleged
that defendant Seanor issued him two Class 1 misconducts, each of which posed the risk
significant sanctions. See Watson, 834 F.3d at 423 (concluding that a prisoner “clearly
suffered an adverse consequence when [an official] charged him with a Class 1
misconduct”). Further, those misconducts resulted in sanctions “sufficient to deter the
exercise of First Amendment rights.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir.
2017) (holding that the termination of prison employment constitutes adverse action for
retaliation purposes); see Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (holding
that 27-day cell and commissary restrictions constituted adverse action). The
misconducts, as well as the resulting sanctions, were explicitly issued in response to
Robinson’s filing of PREA complaints, which we have concluded “implicates conduct
protected by the First Amendment.” Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir. 2003).
We therefore conclude that the amended complaint sufficiently stated claims for
7
retaliation based on the misconducts that Seanor issued to Robinson because he filed
PREA complaints and on the sanctions that Wiggins imposed after finding Robinson
guilty of those misconduct charges. 2 The defendants may be able to show that the filing
of the PREA complaints was not protected action, if, for instance, the complaints were
false or filed merely to harass. The defendants may, alternatively, be able to rebut these
retaliation claims by showing that they “would have made the same decision absent the
protected conduct for reasons reasonably related to a legitimate penological
interest.” Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). However, it is not possible
to determine either of those possible defenses based on the complaint and the attached
documents alone.
Accordingly, we will vacate the District Court’s judgment to the extent that it
dismissed Robinson’s retaliation claims against Seanor and Wiggins relating to the
misconducts issued and resulting sanctions imposed based on allegations made in his
PREA complaints against Palco and Hixson. We will affirm the District Court’s
judgment in all other respects. This matter is remanded for further proceedings consistent
with this opinion.
2
While we agree with the District Court that Robinson failed to state a claim under the
Fourth or Eighth Amendments, we note that prison officials may not bring a disciplinary
action against an inmate simply for filing a grievance that is determined to be without
merit. See Cowans, 150 F.3d at 911. Liberally construing Robinson’s complaint, as we
must, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and allowing all
inferences in his favor, see George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013), Robinson
alleges that he was disciplined for bringing a good-faith PREA complaint. We do not
suggest, however, that prison officials are prohibited from sanctioning inmates for clear
and overt” violations of prison rules. See Watson, 834 F.3d at 426.
8