                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2000
                                       ___________

                                   WILLIAM CURTIS,
                                              Appellant

                                             v.

          JOHN E. WETZEL, Commissioner PA. Dept of Corrections; DEPUTY
      SECRETARY KLOPOTOSKI; ROBIN M. LEWIS; Chief Hearing Examiner;
     MICHAEL WENEROWICZ, Superintendent SCI Graterford; JAY LANE, Deputy
    Superintendent; MAJOR FRANCIS FIELD; GARY OLNGER, CCPM; T. BOLTO,
       Unit Manager; FRANK REGAN; J. BIRMINGHAM, PSS; BRANNER, PSS;
     COUNSELOR GERARD KELLY; STEWART; WENDY SHAYLOR, Grievance
                                   Coordinator
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:14-cv-00786)
                     District Judge: Honorable Lawrence F. Stengel
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 22, 2018

            Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges
                        (Opinion filed February 13, 2019)
                                  ___________

                                        OPINION*
                                       ___________
PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       William Curtis, a state prisoner housed at the State Correctional Institution at

Graterford, appeals from orders granting the defendants’ motions to dismiss and motion

for summary judgment. For the following reasons, we will affirm in part, vacate in part,

and remand to the District Court for further proceedings.

                                             I.

       Curtis, who was convicted of murder, has been serving a life sentence without the

possibility of parole since 1982. In 2012, Curtis was moved to the general population at

SCI Graterford from the Restricted Housing Unit (RHU), where he had been placed

because of disciplinary infractions. To remain in the general population, prison officials

required Curtis to participate in Sex Offender Programming (SOP) because, according to

Department of Corrections records, he previously had been convicted of aggravated

indecent assault. See 42 Pa. Cons. Stat. § 9718.1 (requiring that inmates convicted of

certain enumerated sex crimes participate in sex offender treatment). Prison officials

threatened that Curtis would be placed in solitary confinement indefinitely if he did not

participate in SOP. Curtis, however, denied that he had been convicted of a sex offense,

and refused to sign an SOP treatment form that essentially required that he admit to

having committed such an offense. As a result, Curtis was returned to the RHU in March

2012. Later, prison officials learned that Curtis did not in fact have a conviction for

aggravated indecent assault.

                                             II.


                                              2
       Meanwhile, in 2014, Curtis filed a complaint under 42 U.S.C. § 1983 against

fourteen officials and employees of the Department of Corrections, asserting state law

claims and alleging violations of his rights under the First, Fifth and Fourteenth

Amendments. Emphasizing that he had not been convicted of a sex offense, Curtis

alleged that the defendants retaliated against him for refusing to sign the SOP form,

compelled him to incriminate himself, and failed to provide due process in requiring that

he participate in SOP and in placing him in the RHU.1 Curtis sought damages, as well as

declaratory and injunctive relief.

       Five of the defendants filed motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6), which the District Court granted. Curtis v. Wetzel, 2015 WL

5115439 (E.D. Pa. Aug. 28, 2015). As relevant here, the District Court determined that

the claims brought against the defendants in their official capacities were barred by the

Eleventh Amendment. Id. at *5. With respect to the First and Fourteenth Amendment

claims brought against the five defendants in their individual capacities, the District

Court concluded that Curtis had failed to allege facts demonstrating that they had any

personal involvement in the conduct at issue. Id. at *5-7. The District Court also

dismissed the Fifth Amendment claim against all defendants, holding that the DOC could


1
 Prison records indicate that in 2007 Curtis was found guilty at a prison disciplinary
hearing of “engaging in sexual acts with others or [sodomy].” After Cutis filed his
complaint, a hearing examiner concluded that the DOC properly had classified Curtis as a
sexual offender and required him to participate in SOP based on the 2007 infraction.
Notably, the appellees do not meaningfully argue that that offense has any bearing on
Curtis’ claims in this lawsuit.
                                             3
properly place Curtis in more restrictive housing and curtail some of his privileges based

on his refusal to admit guilt as part of SOP. Id. at *7.

       Following discovery, the parties filed cross-motions for summary judgment. The

District Court granted the remaining defendants’ motion, rejecting Curtis’ First

Amendment retaliation claim on the basis that he “did not engage in protected activity

when he refused to sign the sex offender program form.” Curtis v. Wetzel, 2017 WL

1163888, at *4 (E.D. Pa. Mar. 29, 2017). According to the District Court, Curtis’

“speech was not a matter of public concern. It was personal to him.” Id. The District

Court further concluded that qualified immunity shielded the defendants from Curtis’

First Amendment and Fourteenth Amendment claims: “Based upon the fact that his

records indicated that Mr. Curtis was convicted of a sex crime, the defendants could

reasonably believe they were not violating clearly established law when they required

Mr. Curtis to participate in the sex offender program or return to the restricted housing

unit without violating clearly established law.” Id. Finally, the District Court held that

sovereign immunity barred Curtis’s state law claims.2 Id. at *5. Following entry of the




2
  The state law claims against the defendants were properly dismissed on the basis of
sovereign immunity. State prison officials are immune from suit for those actions within
the scope of their duties, except in instances in which the immunity has been specifically
waived. See 1 Pa. Cons. Stat. Ann. § 2310. Here, the allegations in Curtis’ complaint do
not fall under any one of the nine listed categories for which immunity has been waived
by the Commonwealth of Pennsylvania. See 42 Pa. Cons. Stat. Ann. § 8522(b).

                                              4
District Court’s final order, Curtis filed a timely motion under Federal Rule of Civil

Procedure 60(b)(5). The District Court denied that motion and Curtis appealed.3

                                               III.

         We have jurisdiction under 28 U.S.C. § 1291. “We review district court decisions

regarding both summary judgment and dismissal for failure to state a claim under the

same de novo standard of review.” Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826

(3d Cir. 2011). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. Cty. of Bucks, 455 F.3d 418, 422-23 (3d Cir.

2006).

                                               IV.

         “A defendant in a civil rights action must have personal involvement in the alleged

wrongs” to be liable. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).



3
  The District Court did not abuse its discretion in denying Curtis’ 60(b) motion. See
Brown v. Phila. Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003). As the District Court
explained, Curtis did not present any valid basis for relief. Instead, he primarily
complained that a document he intended to be treated as a request for a permanent
injunction was instead docketed as an affidavit.
                                               5
“Personal involvement can be shown through allegations of personal direction or of

actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005) (quoting Rode, 845 F.2d at 1207). Here, in granting the motions to dismiss, the

District Court concluded that Curtis failed to allege the personal involvement of five

defendants: DOC Secretary Wetzel; DOC Deputy Secretary Klopotoski; SCI Graterford

Superintendent Wenerowicz; and Chief Hearing Examiner Robin Lewis; and Grievance

Coordinator Wendy Shaylor. The District Court properly determined that Defendants

Wenerowicz, Lewis, and Shaylor – who participated only in the denial of Curtis’

grievances – lacked the requisite personal involvement. See Rode, 845 F.2d at 1208.

       But we disagree with the District Court’s conclusion as it pertains to Defendants

Wetzel and Klopotoski. The complaint included inconsistent allegations about those

defendants. Curtis first alleged that a DOC counselor, defendant Kelly, issued a

misconduct report stating that Wetzel and Klopotoski gave Curtis a ‘direct order’ to sign

the SOP document, Compl., ¶ 42, but he also stated that he “has never had any type of

contact with Defendant Wetzel” or “Defendant Klopotoski personally or any type of

direct communications or correspondence with Defendant Klopotoski” or “Defendant

Wetzel.” Compl., ¶¶ 43, 44. The District Court interpreted these statements as a

concession by Curtis that Defendants Wetzel and Klopotoski “had no affirmative

knowledge or personal involvement in the attempt to force Mr. Curtis to sign the form

against his will or punish him for his refusal.” Curtis, 2015 WL 5115439, at *6.


                                             6
Regardless whether such an interpretation was proper,4 the District Court had the benefit,

we note, of a DOC misconduct form that Curtis attached to his opposition to the motions

to dismiss. On that form, a prison official’s handwritten notes indicated that Curtis

declined to sign his SOP treatment order and alleged that Curtis’ “refusal to obey a

previous written order from Secretary Wetzel as well as Deputy Secretary Klopotoski

constitutes refusing an order.” (Dist. Ct. Doc. No. 18, p. 13). In light of this statement

from a prison official that Defendants Wetzel and Klopotoski issued a written order to

Curtis, we conclude that the District Court erred in granting a motion to dismiss on the

ground that those defendants had no apparent personal involvement.

                                             V.

       With respect to Curtis’ First and Fourteenth Amendment claims, the District Court

concluded that the defendants were entitled to qualified immunity. Curtis, 2017 WL

1163888, at *4-5. Qualified immunity is an affirmative defense that “shield[s] officials

from harassment, distraction, and liability when they perform their duties reasonably.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009). To overcome that immunity, the facts

must show (1) the violation of a constitutional right and (2) that the right was clearly

established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201



4
  See Henry v. Daytop Village, Inc., 42 F.3d 89, 95 (2d Cir. 1994) (“Pursuant to Rule
8(e)(2), therefore, we may not construe Henry’s first claim as an admission against
another alternative or inconsistent claim.”). But see Salahuddin v. Jones, 992 F.2d 447,
449 (2d Cir. 1993) (holding that pro se plaintiff’s claims were properly dismissed where
they relied on “wholly conclusory and inconsistent allegations”).
                                              7
(2001). A court may address these prongs in either order in light of the circumstances in

the particular case. Pearson, 555 U.S. at 236. A government official’s conduct violates

clearly established law when, at the time of the challenged conduct, every reasonable

official would understand that what he is doing violates the right alleged. Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011). Notably, “qualified immunity applies regardless of

whether the government official’s conduct results from a mistake of law, mistake of fact,

or mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231 (internal

quotation marks omitted).

       Here, the defendants required that Curtis participate in SOP based on information

contained in his institutional file. In particular, Curtis’ “Integrated Case Summary –

Initial Classification Summary” stated that he had been charged with “Aggravated

Indecent Assault” and that the disposition was “Guilty.” But, as Curtis maintained, that

information was inaccurate; Curtis did not have a conviction for aggravated indecent

assault. Cf. Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989) (stating that the

“administration of a system of punishment entails an unavoidable risk of error.”).

Nevertheless, the defendants reasonably relied on the DOC’s records. Cf. Alston v.

Read, 663 F.3d 1094, 1100 (9th Cir. 2011) (stating, in case alleging over-detention, “that

there is no clearly established duty on a prison official to review a prisoner’s original

court records beyond those in his institutional file”). At the time that the defendants

required Curtis to participate in SOP, he had not presented any evidence that the prison

records were inaccurate. Moreover, Curtis has not identified any clearly established law
                                              8
that would have required prison officials to investigate his claims before requiring that he

participate in SOP. See Dock v. Latimer, 729 F.2d 1287, 1290 (10th Cir. 1984) (“there

simply is no constitutional guarantee that all executive decisionmaking must comply with

standards that assure error-free determinations”). Under these circumstances, we

conclude that qualified immunity protects the defendants from Curtis’ claim for damages

under the First and Fourteenth Amendments.

       But qualified immunity does not extend to Curtis’ claims for declaratory and

injunctive relief. See Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006).

Accordingly, we will remand those matters to the District Court. See Montanez v.

Secretary Pa. Dept. of Corr., 773 F.3d 472, 488 (3d Cir. 2014). If Curtis’ requests for

declaratory and injunctive relief are not moot,5 the District Court should consider whether

labeling Curtis a sex offender and requiring that he attend SOP violated his First and

Fourteenth Amendment rights.6 See Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010)


5
  In this connection, we note that it is not clear whether Curtis’ classification as a sex
offender (based on his prison infraction, see supra note 1, rather than the nonexistent
aggravated indecent assault conviction) provided an independent basis for placing him in
the RHU and requiring his participation in SOP. See Jordan v. Sosa, 654 F.3d 1012,
1033 (10th Cir. 2011) (“if we were to issue an injunction or declaratory judgment to Mr.
Jordan, we would be doing so without the benefit of specific, concrete information
concerning his current conditions of confinement.”).
6
  With respect to Curtis’s First Amendment claim, the District Court also concluded that
his refusal to sign the SOP form was not protected speech because it “was personal to
him[,]” rather than “a matter of public concern.” Curtis, 2017 WL 1163888, at *4. The
appellees concede that this analysis was “legally flawed,” see Appellees’ Br., p. 16 n. 11,
because, contrary to the District Court’s conclusion, “the First Amendment forbids
retaliation for speech even about private matters.” Eichenlaub v. Twp. of Indiana, 385
                                             9
(holding, where the government had proved at trial that the defendant had committed sex

offenses, that that the admission of guilt for past sexual offenses is rationally related to

legitimate penological objectives); Renchenski v. Williams, 622 F.3d 315, 328 (3d Cir.

2010) (agreeing “that the stigmatizing effects of being labeled a sex offender, when

coupled with mandatory behavioral modification therapy, triggers an independent liberty

interest emanating from the Due Process Clause of the Fourteenth Amendment.”). We

express no opinion on these issues.

                                              VI.

       As with his First and Fourteenth Amendment claims, Curtis’ Fifth Amendment

claim fails on qualified immunity grounds to the extent that he sought damages. But it

survives as to his request for declaratory and injunctive relief, to the extent such relief is

not moot. See supra note 5. The District Court concluded that Curtis failed to state a

claim for the denial of his Fifth Amendment rights. We disagree. Relying on

Renchenski v. Williams, the District Court concluded that transferring Curtis to more

restrictive housing, and imposing other restrictions, as a consequence for refusing to

admit to his offenses as the SOP requires did not violate his right against self-

incrimination. 622 F.3d 315, 334-35 (3d Cir. 2010). In Renchenski, we concluded that

the consequences faced by a Pennsylvania prisoner who refused to participate in sex




F.3d 274, 284 (3d Cir. 2004); Mack v. Warden Loretto FCI, 839 F.3d 286, 299 n.69 (3d
Cir. 2016) (stating that “that the rationale for the public/private concern distinction in the
public employment context does not apply in other contexts, including prison settings.”).
                                               10
offender treatment – including loss of prison job, disciplinary custody for 90 days, cell

restriction for 30 days, suspension of the right to receive visitors, and denial of access to

television, radio, and the commissary – did not constitute compulsion for Fifth

Amendment purposes. Id. To the extent that Curtis faced similar consequences, we

agree that the conditions do not rise to the requisite level of compulsion to state a claim

for a Fifth Amendment violation. See McKune v. Lile, 536 U.S. 24, 41-42 (2002); see

also Roman v. DiGuglielmo, 675 F.3d 204, 214 (3d Cir. 2012) (stating that “those

penalties that merely alter the degree of comfort or freedom that an inmate is afforded,

within the context of his confinement, but that otherwise remain within the permissible

bounds of the inmate’s prescribed sentence, are differences in measure alone and thus do

not amount to compulsion under the Fifth Amendment.”).

       Curtis also claimed, however, that the defendants threatened to place him in

solitary confinement indefinitely. Notably, after the District Court rejected Curtis’ Fifth

Amendment claim, we “observed a growing consensus” about the “extremely serious and

potentially dire consequences of lengthy exposure to the conditions of solitary

confinement.” Palakovic v. Wetzel, 854 F.3d 209, 22-265 (3d Cir. 2017) (citing

Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 66-68 (3d Cir. 2017)). Indefinite

confinement in restrictive housing can amount to an atypical and significant hardship in

relation to the ordinary incidents of prison life. See Wilkinson v. Austin, 545 U.S. 209,

223-24 (2005). When a penalty does amount to such a hardship, “that penalty is

sufficiently compelling to constitute a Fifth Amendment violation.” Roman, 675 F.3d at
                                              11
214. Under this formulation, it is not clear whether the defendants’ threats to place Curtis

in solitary confinement indefinitely rose to the level of compulsion. Accordingly, we will

remand this issue to the District Court for consideration in the first instance.

                                             VII.

       For the foregoing reasons, we will affirm in part and vacate in part the District

Court’s August 31, 2015, and March 29, 2017, orders and remand for further

proceedings. In sum, we will affirm the District Court’s denial of Curtis’ state law

claims. See supra note 2. Furthermore, we conclude that the District Court properly

determined that qualified immunity shielded the defendants from Curtis’ claims for

damages under the First, Fifth, and Fourteenth Amendments. But we will vacate the

District Court’s judgment to the extent that it rested on a conclusion that Defendants

Wetzel and Klopotoski had no personal involvement in the alleged constitutional

violations. With respect to Curtis’ request for declaratory and injunctive relief, we will

vacate the District Court’s judgment insofar as it rejected Curtis’ First Amendment claim

on the basis that his speech was personal, rather than a matter of public concern, and its

determination that the defendants’ threats of solitary confinement did not rise to the level

of compulsion for Fifth Amendment purposes. We remand for proceedings consistent

with this opinion.




                                              12
