FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. On May 19, 2008, defendants Feudner and Sisto moved to dismiss this action, arguing that plaintiff had failed to exhaust his available administrative remedies prior to bringing suit and that plaintiff's complaint failed to state a cognizable claim. Plaintiff has filed an opposition to defendants' motion. Defendants have filed a reply.
In his complaint plaintiff alleges as follows. On June 15, 2007, defendant Feudner approached him on the yard and asked him whether he had previously been told to leave the area. Plaintiff responded that he had not received such instructions and commented that the area was not out of bounds. Without warning, defendant Feudner kicked plaintiff's property and told him to leave the area. Plaintiff left the area and sought to inform the facility sergeant about the incident. However, defendant Feudner refused to call a sergeant. (Compl. at 5.) On June 16, 2007, plaintiff handed defendant Feudner an inmate appeal, alleging staff misconduct for kicking plaintiff's property, but Feudner never responded to it. Instead, Feudner began retaliating against plaintiff with unwarranted dorm searches and frivolous rules violation reports. For example, on June 22, 2007, defendant Feudner noticed plaintiff standing near a bench marked for inmate use and asked him how many times he had told plaintiff to stay out of the area. When plaintiff responded by saying that the area was not out of bounds, defendant Feudner said that he would deal with him on Monday. On Monday, June 25, 2007, defendant Feudner conducted a three-hour dorm search causing destruction of plaintiff's fellow inmates' property and told the inmates that plaintiff was the cause of the search and that they needed to deal with him. On June 26, 2007, plaintiff received a rules violation report for disobeying a direct order. There was no merit to the report. It was issued as a direct result of plaintiff's filing of an inmate appeal against defendant Feudner. Finally, plaintiff alleges that defendant Sisto has been aware of defendant Feudner's misconduct but has failed to take steps to curb it. (Compl. at 5-6.)
Counsel for defendants argues that defendant Sisto should be dismissed from this action because plaintiff has not exhausted his claims against him and because plaintiff has not alleged defendant Sisto's personal involvement in any constitutional violation. Counsel for defendants also argues that plaintiff has failed to state a cognizable claim under the First and Fourteenth Amendments against either defendant Feudner or defendant Sisto. (Defs.' Mot. to Dismiss at 4-14.)
First, counsel acknowledges that exhaustion is not per se inadequate simply because an individual later sued is not named in a grievance. However, counsel argues that a prisoner must describe his problem in his prison grievance and explain whether an omission or failure to act was its cause. Here, defendants contend, plaintiff in his grievance only described specific problems he had with defendant Feudner and did not take issue with any action or inaction by defendant Sisto. Thus, counsel maintains, plaintiff failed to exhaust any claim against defendant Sisto. (Defs.' Mot. to Dismiss at 4-6.)
Counsel also argues that plaintiff has not alleged defendant Sisto's personal involvement in any constitutional violation. Counsel contends that defendant Sisto's supervisory role alone does not support plaintiff's claims because plaintiff has not alleged facts linking defendant Sisto to a specific wrongdoing. (Defs.' Mot. to Dismiss at 12.)
Finally, counsel argues that plaintiff has failed to state a cognizable claim against either named defendant under the First and Fourteenth Amendments. As to the First Amendment, counsel argues that to state a claim for retaliation plaintiff must allege facts showing that (1) defendants took adverse action against him; (2) his protected conduct was a substantial or motivating factor for the alleged retaliatory action; (3) the adverse action actually chilled his First Amendment rights; and (4) the adverse action did not serve a legitimate penological purpose. Counsel argues plaintiff has not alleged that defendants' alleged actions chilled his First Amendment rights. In addition, counsel argues that plaintiff's factual allegations are insufficient to support a First Amendment claim. For example, defendant Feudner's failure to respond to plaintiff's grievance cannot support a First Amendment claim because involvement in the resolution of an inmate's grievance does not provide a basis upon which to impose liability. Nor, according to counsel, can any alleged verbal harassment by defendant Feudner support a retaliation claim. (Defs.' Mot. to Dismiss at 6-10.)
As to the Fourteenth Amendment, counsel argues that verbal harassment, involvement in the resolution of an inmate's grievance and the searching of the dorms of fellow inmates do not implicate any liberty interest to which due process protections would apply. Counsel also argues that plaintiff has not alleged facts that could constitute an atypical and significant hardship or that would show he was deprived of any minimal procedural protections. (Defs.' Mot. to Dismiss at 10-11.)
II. Plaintiff's Opposition
In opposition to defendants' motion to dismiss, plaintiff argues that he has exhausted his administrative remedies against defendant Sisto. Plaintiff argues that a supervisor is liable if he knew of a constitutional violation or should have known and did nothing to prevent them. Here, plaintiff argues that defendant Sisto reviewed his grievance against defendant Feudner. In this regard, plaintiff maintains that he gave defendant Sisto sufficient opportunity to investigate and address his claims. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 4-6.)
Plaintiff also argues that he has specifically alleged defendant Sisto's personal involvement in the constitutional violations at issue in this case. Specifically, plaintiff argues that defendant Sisto failed to supervise defendant Feudner even though he was notified on several occasions about Feudner's misconduct. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 9-10.)
Finally, plaintiff argues that he has stated a cognizable claim for retaliation against defendant Feudner. Specifically, plaintiff argues that he alleged in his complaint that defendant Feudner violated his First Amendment rights when he retaliated against plaintiff for filing a prison grievance. In this regard, plaintiff notes that he alleged in his complaint that defendant Feudner failed to respond to his grievance, verbally harassed him and destroyed his fellow inmates' property in retaliation against plaintiff. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 6-8.) III. Defendants' Reply
In reply, defense counsel repeats the arguments that defendant Sisto is entitled to dismissal because plaintiff has not exhausted any claims against him and has not alleged defendant Sisto's personal involvement in any constitutional violation and that plaintiff has failed to state a cognizable claim ...