                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2007

Walker v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1241




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BLD-300                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-1241
                                     _____________

                                  JEFFREY WALKER,
                                           Appellant

                                             v.

                    JEFFREY BEARD, Secretary of Corrections;
                PENNSYLVANIA DEPARTMENT OF CORRECTIONS
                   ________________________________________

                    On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                               (D.C. Civ. No. 05-cv-340J)
                       District Judge: Honorable Kim R. Gibson
                   __________________________________________

             Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)
                                     July 12, 2007

     Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                                  (Filed: July 19, 2007)

                               ______________________
                                      OPINION
                               ______________________


PER CURIAM

       Jeffrey Walker appeals pro se the District Court’s order granting the defendants’

motion to dismiss his civil rights action filed pursuant to 42 U.S.C. § 1983. Walker, a

state prisoner, alleged that the defendants, the Pennsylvania Department of Corrections
(“the DOC”) and its Secretary, retaliated against him for challenging a plan to privatize

the prison commissary. In particular, Walker claimed that he was prevented from serving

as a representative to the Inmate General Welfare Fund (“IGWF”) Committee, precluded

from receiving a sales catalog mailed to him, transferred to another prison, and denied

prison housing, employment, and pay benefits. Walker sought compensatory and punitive

damages, as well as declaratory and injunctive relief.

       The case was referred to a Magistrate Judge, who issued a Report recommending

that the defendants’ motion to dismiss be granted. The Magistrate Judge concluded that

the DOC and the Secretary, to the extent he was sued in his official capacity, were

immune from suit under the Eleventh Amendment. To the extent that Walker sued the

Secretary in his individual capacity, the Magistrate Judge found that the complaint failed

to state a claim insofar as Walker sought damages under a respondeat superior theory.

Over Walker’s objections, the District Court adopted the Report and Recommendation

and granted the defendants’ motion to dismiss. Walker timely appealed.

       Under the Eleventh Amendment, states and state agencies are immune from suit in

federal court. See, e.g., Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 144 (1993). Because the Pennsylvania DOC is a part of the executive

department of the Commonwealth of Pennsylvania, it shares in the Commonwealth’s

Eleventh Amendment immunity. See Lavia v. Pennsylvania Dep’t of Corrections, 224

F.3d 190, 195 (3d Cir. 2000). While a state may lose its immunity by Congressional



                                             2
abrogation or by waiver, see id., Congress did not abrogate states’ sovereign immunity

when it enacted 42 U.S.C. § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S.

58, 66 (1989). Moreover, we have previously noted that the Pennsylvania legislature has

expressly declined to waive its sovereign immunity by statute. See Lavia, 224 F.3d at

195; see also 42 Pa. Cons. Stat. Ann. § 8521(b). Accordingly, the District Court properly

dismissed Walker’s claim for damages against the DOC because it is barred by the

Eleventh Amendment. Similarly, we note that the Eleventh Amendment also prevented

the District Court from granting Walker’s request for prospective injunctive relief against

the DOC. See Puerto Rico Aqueduct, 506 U.S. at 146 (noting inapplicability of Ex Parte

Young exception to state agencies).

       State officials sued in their individual capacities are “persons” for purposes of

§ 1983. See Hafer v. Melo, 502, U.S. 21, 26 (1991). Accordingly, the Eleventh

Amendment does not preclude a suit against a state official in his or her individual

capacity. It is well settled, however, that liability under § 1983 may not based on the

doctrine of respondeat superior. See Durmer v. O'Carroll, 991 F.2d 64, 69 n.14 (3d Cir.

1993). Instead, the plaintiff must show that the official’s conduct caused the deprivation

of a federally protected right. See Graham, 473 U.S. at 166. More particularly, the

plaintiff must allege that the defendant was personally involved in the deprivation. See

West v. Atkins, 487 U.S. 42, 48 (1988). Personal involvement can be shown if the

supervisor directed the actions of supervisees or actually knew of the actions and



                                              3
acquiesced in them. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

       The Magistrate Judge believed that “none of [Walker’s] allegations establish that

[the Secretary] was responsible for, or even aware of, his concerns.” R&R, 6. Walker

alleged, however, that he “spoke personally” with the Secretary about his housing status

and the DOC’s policies concerning the Inmate General Welfare Fund (“IGWF”). See

Complaint, ¶¶ 63, 69. In addition, Walker’s conversation with the Secretary was

witnessed by another inmate, whose affidavit was attached to Walker’s complaint. See

Affidavit of Troy Flanagan, ¶ 7. Importantly, though, Walker does not allege that the

Secretary acquiesced in the alleged retaliation. Rather, according to the affidavit and the

complaint, the Secretary offered to help, stating that he “would look into the matters,” and

advising Walker that his “single cell” status traveled with him to a new prison and that he

should address his complaints to the Superintendent.

       In Will v. Michigan Dept. of State Police, the Supreme Court held that “officials

acting in their official capacities are [not] ‘persons’ under § 1983.” 491 U.S. 58, 71 &

n.10 (1989). Thus, Walker’s claims brought against the Secretary in his official capacity

are considered to be against the state itself and are barred by the Eleventh Amendment.

In Ex Parte Young, 209 U.S. 123 (1908), however, the Supreme Court held that suits for

injunctive relief against state officials brought to end ongoing violations of federal law

are not barred by the Eleventh Amendment. See MCI Telecommunication Corp. v. Bell

Atlantic-Pennsylvania, 271 F.3d 491, 506 (3d Cir. 2001); see also Idaho v. Coeur d'Alene



                                              4
Tribe of Idaho, 521 U.S. 261, 288 (1997) (“The Young doctrine recognizes that if a state

official violates federal law, he is stripped of his official or representative character and

may be personally liable for his conduct; the State cannot cloak the officer in its sovereign

immunity.” (O’Connor, J., concurring)). The Eleventh Amendment, therefore, does not

preclude Walker from pursuing his claims against the Secretary for prospective injunctive

relief. For substantially the reasons provided by the Magistrate Judge, however, we

conclude that Walker has failed to demonstrate that he is entitled to injunctive relief. See

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097-98 (11th Cir. 2004) (“[I]f the

plaintiff’s rights have not been violated, he is not entitled to any relief, injunctive or

otherwise.”).

       For the foregoing reasons, the appeal is without legal merit and we shall dismiss it

pursuant to 28 U.S.C. § 1915(e)(2)(B).




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