Brian Thompson v. Mohamed Safa

Brian Thompson, a Pennsylvania state prisoner proceeding pro se and in forma pauperis, appeals from the District Court's order dismissing his civil rights complaint against defendant Mohamed Safa, a corrections officer employed at SCI-Phoenix. We will affirm in part and vacate in part the District Court's judgment and remand for further proceedings.

I.

Thompson, proceeding pro se and in forma pauperis (IFP), sued Safa in state court, alleging violations of his constitutional and other rights based on Safa's treatment of him in prison.¹After removing the complaint to the District Court, Safa sought and obtained the dismissal of Thompson's Eighth Amendment claims. The Court then dismissed the remainder of plaintiff's claims without prejudice pursuant to § 1915(e)(2), and Thompson timely filed an amended complaint.² In response, Safa filed a motion to dismiss. The District Court concluded that plaintiff failed to state a claim and dismissed his complaint with prejudice pursuant to § 1915(e)(2). This timely appeal followed.

II.

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We have jurisdiction under 28 U.S.C. § 1291. Whether a complaint is dismissed pursuant to Rule 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B)(ii), our review is plenary. See Dooley v. Wetzel, 957 F.3d 366, 373-74 (3d Cir. 2020); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

III.

First, as the District Court concluded, Thompson's state law claims are barred by Pennsylvania's sovereign immunity statute, see 1 Pa. Cons. Stat. Ann. § 2310. Essentially, in claiming things like intentional infliction of emotional distress (IIED), conspiracy, breach of contract and defamation, Thompson sued Safa in his individual capacity for acts within the scope of his employment.³Accordingly, Safa was entitled to immunity, even if animosity colored his actions or if his calling Safa a rat could be considered an intentional tort.⁴See Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. Ct. 1995); Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. Ct. 1979) (explaining that, under Pennsylvania law, an employee's act will be considered within the scope of

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employment if: "(a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the [employer], and (d) if force is intentionally used by the [employee] against another, the use of the force is not unexpectable by the [employer]."); Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000); La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct., 1992) (holding that when a cause of action arises from an intentional tort, liability will not attach if a Commonwealth employee acted within the scope of his employment).

The District Court also properly dismissed Thompson's claim for declaratory relief because such relief is inappropriate solely to adjudicate past conduct, as he requested. See CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013) (explaining that a declaratory judgment is "prospective in nature"). Likewise, and despite his argument that he suffers an ongoing injury from the issuance of negative work report, injunctive relief was not available to right his claims of past wrongs.⁵See Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987) ("In order to obtain standing for prospective

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relief, the plaintiff must establish a real and immediate threat that he would again be the victim of the allegedly unconstitutional practice." (citation modified)). We look now at Thompson's constitutional claims. The District Court properly dismissed Plaintiff's failure to warn,⁶failure to protect, and state-created zone of danger claims under the Eighth Amendment, all stemming from Safa's allegedly referring to Thompson as a "rat" to another inmate for filing a grievance against Safa. For Thompson to prevail on the claim that Safa violated the Eighth Amendment by failing to guarantee his safety, Thompson "must show that he is incarcerated under conditions posing a substantial risk of serious harm," and "a prison official must have a

"sufficiently culpable state of mind . . . one of deliberate indifference to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834. (1994) (citation modified). While our Court has held that being labeled a "snitch" who informs on other inmates can constitute deliberate indifference, see Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), that was not Thompson's situation, because he was labeled a "rat" for filing a grievance against a prison official, not for informing on a fellow inmate. Even if being called a rat does pose a sufficiently substantial risk of harm, Thompson does not offer any allegations, apart

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from his own beliefs, that Safa actually knew or was aware of the excessive risk posed to Thompson's safety. See Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). Accordingly, the District Court properly dismissed his failure to protect claim. Because Thompson did not allege that he experienced any harm as a result of Safa's actions, he also could not prevail on his state-created zone of danger claim, see Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995), as the District Court properly concluded. Additionally, the District Court properly dismissed Thompson's claim that the filing of a negative work report against him violated his "right to notice and hearing before any substantial deprivation of property and/or liberty by the state," ECF Doc. 40 ¶ 100, as there is no property or liberty interest in prison employment that is entitled to protection under the Due Process Clause. See Bryan v. Werner, 516 F.2d 233, 240 (3d Cir. 1975). Thompson's "class of one" equal protection claim, which alleged that he was treated differently than similarly situated individuals when he was terminated from his prison employment, was also properly dismissed. See Engquist v. Oregon Dep't of Agr.,

553 U.S. 591, 605 (2008) (holding that "the class-of-one theory of equal protection— which presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality review—is simply a poor fit in the public employment context").

Thompson also alleged a First Amendment retaliation claim, arguing that the negative work report and his termination were retaliatory actions taken against him

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because he filed a grievance about Safa. In order for a plaintiff to prevail on a First Amendment retaliation claim, he must establish 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). Thompson's pleading satisfied the first element because filing a grievance, or even simply expressing the intent to file a grievance, is constitutionally protected activity. See Watson, 834 F.3d at 422-23.

Considering the second element, the District Court concluded that "Thompson has not alleged that his employment was actually terminated." ECF Doc. No. 24 at 6; ECF Doc. No. 44 at 5 (relying on ECF Doc. No. 24). But Thompson repeatedly alleged that he had been terminated from his position. See ECF Doc. 40 ¶¶ 31, 32, 104, 105. The District Court also thought that Thompson's allegation was undermined by a prison official's statement, which was included in Thompson's complaint, that his hours had merely been reduced; however, Thompson, while reporting that statement, clearly alleged that this explanation was untrue. See ECF Doc. 40 ¶ 36. The District Court also inferred that Thompson remained employed because he reported that a negative work report was issued three weeks after his alleged termination. But, because the complaint lacks further details about the work report, there is no way to discern whether it addressed present conduct or past conduct that would have pre-dated the alleged termination.

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At the motion to dismiss stage, the Court must accept the facts pleaded in the plaintiff's complaint as true and view them in the light most favorable to the plaintiff. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). Doing that here, Thompson has met his burden to plead an adverse action.⁷See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (holding that being terminated from a prison employment position is an adverse action for the purposes of a First Amendment retaliation claim). As to the third element, Thompson also plausibly alleged that, after expressing his intent to file a grievance, he was the only individual to be removed from his work assignment, and that he had never previously been restricted in his work hours, thereby supporting an inference that his constitutionally protected conduct was a motivating factor in his discipline. Thompson has therefore plausibly pleaded a First Amendment retaliation claim related to his prison job termination, precluding dismissal at this stage.⁸ Accordingly, we will affirm the judgment insofar as the District Court's dismissed Thompson's state law claims, Eighth Amendment claims, Fourteenth Amendment claims, and First Amendment claim as it relates to the negative work report. We will vacate the

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District Court's judgment to the extent that it dismissed Thompson's First Amendment retaliation claim based on the termination from his prison employment, and we will remand this matter for further proceedings consistent with this opinion.

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