NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                      No. 12-3132
                     _____________

                  WALTER CHRUBY,

                                         Appellant

                            v.

      ANNETTE KOWALESKI, in her official and
        personal capacities; MARGE LECHENE,
      in her official and personal capacities; MIKE
     PIOVARCHY, RNS, in his official and personal
        capacities; DEREK THOMAS, RN, in his
        official and personal capacities; JOHN E.
       DUPONT, Hearing Examiner, in his official
       and personal capacities; DAVID PITKINS,
         SCI-Laurel Highlands, in his official and
        individual capacities; JEFFREY BEARD,
   former Secretary of PA Department of Corrections, .
         in his individual capacity; SECRETARY
         PENNSYLVANIA DEPARTMENT OF
         CORRECTIONS, in his official capacity
                       ____________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
                  (No. 3-11-cv-00225)
       District Judge: Honorable Kim R. Gibson

    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                     May 16, 2013

                     ____________


Before: SMITH, FISHER, and CHAGARES, Circuit Judges.
                                  (Filed: August 7, 2013)

                                      ____________

                                        OPINION
                                      ____________




CHAGARES, Circuit Judge.

       Walter Chruby brought a complaint against several prison officials based

principally on alleged violations of his First Amendment rights. The District Court

dismissed the complaint and denied Chruby’s motions to file supplemental pleadings.

For the reasons explained herein, we will affirm.

                                             I.

       We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. The following facts are taken from the complaint, which we

accept as true when reviewing a motion to dismiss.

       Chruby is an inmate at SCI Laurel Highlands (“SCI-LH”), a prison in

Pennsylvania. He suffers from a kidney disorder that requires significant medical

attention. In 2005, Chruby filed a lawsuit against several prison officials alleging that he

had received improper treatment for his condition. To settle the case, the parties entered

into an agreement (called the “consent decree” in the complaint) allowing Chruby to

reside at SCI-LH for the remainder of his life if the facility remains open and if Chruby

refrains from engaging in misconduct. At some point, Chruby was transferred to another

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facility, but eventually he was returned to SCI-LH. In August of 2009, Chruby filed a

second lawsuit claiming that he was subjected to cruel and unusual punishment.

       In December of 2009, defendant Derek Thomas, a registered nurse, was assigned

to administer Chruby’s medical treatment. At the beginning of the first visit, Thomas

began to write notes before examining Chruby. Chruby questioned Thomas about what

he was writing, and Thomas responded, “I’m just doodling.” Appendix (“App.”) 63.

Chruby wrote a letter to several other defendants complaining of Thomas’s conduct, and

Chruby was thereafter charged with misconduct for making false assertions in the letter.

The defendants conducted a hearing on the misconduct charge, but refused to compel

testimony of witnesses as Chruby demanded. In addition to exhibiting bias, the hearing

officer denied Chruby’s request to view the medical records in question. The post-

hearing report incorrectly stated that Thomas had testified at the hearing.

       Based upon the incident with Thomas and the subsequent hearing, Chruby filed a

complaint stating eight causes of action, alleging violations of his First Amendment

rights, of his right to equal protection, and of 42 U.S.C. § 1997d. The complaint also

alleges that the defendants conspired to deprive Chruby of his First and Fourteenth

Amendment rights, thereby violating 42 U.S.C. § 1983, and requests declaratory and

injunctive relief.

       Chruby later filed a motion for leave to file a supplemental pleading that was

based on an incident that occurred in March of 2012. After being hospitalized for several

days for acute pyelonephritis, Chruby was discharged and told that he would be

prescribed Dilaudid. Chruby did not receive Dilaudid from physicians at the prison, so

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he wrote a letter to complain. Several days later, he wrote a separate letter complaining

that he had been forced to wait three and one-half hours before being taken to the hospital

when his medical emergency occurred. Two misconduct charges were filed against

Chruby shortly thereafter, one of which was for lying to an employee. The bases of the

lying charge were the two letters: the charge alleged that Chruby falsely stated that

Dilaudid had been ordered for him, and also falsely stated that he had waited three and

one-half hours before being taken to the hospital. The proposed supplemental pleading

lists five additional First Amendment claims, seeking permanent injunctions, monetary

damages, and declaratory relief.

       Chruby later moved to file another supplemental pleading, this time based on a

meeting with defendant Annette Kowalewski. In the meeting, Kowalewski threatened to

file a new misconduct charge based on Chruby’s “lie” in the letter concerning his pain

medication. App. 606. She then told Chruby that he would be issued a misconduct if he

ever sent another letter to anyone in the medical department that she found “inappropriate

or impolite.” 

also sought to add a new defendant, Robert Reed, who was the

hearing examiner for Chruby’s second misconduct hearing. At that hearing, Chruby was

again denied access to his medical records that related to the alleged misconduct. The

second supplemental pleading contains two additional causes of action: the first is for

First Amendment retaliation against Kowalewski, and the second seeks injunctive relief

against Reed and John E. Wetzel for denial of due process during the misconduct hearing.



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       In June of 2012, the Magistrate Judge issued a Report and Recommendation (the

“Report”) that recommended dismissing the complaint. It also concluded that the

proposed supplemental pleadings would be futile. The District Court agreed on both

points and dismissed the case.




                                             II.1

                                             A.

       The Magistrate Judge’s Report began by addressing Chruby’s three First

Amendment retaliation claims, counts one, two, and four. To recover on a retaliation

claim, plaintiffs “must show (1) that they engaged in a protected activity, (2) that

defendants’ retaliatory action was sufficient to deter a person of ordinary firmness from

exercising his or her rights, and (3) that there was a causal connection between the

protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis,

, 267 (3d Cir. 2007). When reviewing a motion to dismiss, we must simply

ensure that the complaint states grounds plausibly suggesting entitlement to relief. Bell

Atl. Corp. v. Twombly, 

, 557 (2007) (“And, of course, a well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of those facts is

improbable, and that a recovery is very remote and unlikely.” (quotation marks omitted)).


1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have appellate
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a district court’s
order granting a motion to dismiss. Fowler v. UPMC Shadyside, 

, 206 (3d
Cir. 2009).
                                              5
       The Report noted that the defendants did not challenge either Chruby’s allegation

that he engaged in protected activity or his claim that their action was sufficient to deter a

person of ordinary firmness from exercising his rights. The issue chiefly addressed by

the Report was whether there was a causal connection between the protected activity and

the retaliation. The Report concluded that no causal connection could be shown as to the

first misconduct filed against Chruby. App. 27. We agree, and will therefore affirm the

District Court’s dismissal.

                                              B.

       Chruby’s conspiracy claim states that several of the defendants “agreed by word or

by action to violate plaintiff’s First Amendment rights to free speech and petition, and

Fourteenth Amendment right to equal protection and due process of law.” App. 82. The

defendants sought dismissal of the conspiracy claim on two grounds. First, they argued

that Chruby failed to plead that he was deprived of a federally protected right. Second,

they contended that Chruby’s allegations of an agreement were conclusory.

The Report accepted both of the defendants’ arguments and dismissed the claim.

       To plead a conspiracy claim properly, a plaintiff must allege “facts that plausibly

suggest a meeting of the minds.” Great W. Mining & Mineral Co. v. Fox Rothschild

LLP, 

, 179 (3d Cir. 2010). The complaint must not plead merely a

“conclusory allegation of agreement at some unidentified point.” 

. The Report concluded that Chruby “failed to allege any facts to substantiate an

allegation of conspiracy.” App. 36. We agree that the complaint failed to make



                                              6
allegations of conspiracy with the requisite specificity, and will therefore affirm the

dismissal of the conspiracy claim.

                                             C.

       The complaint also seeks declaratory and injunctive relief to prevent prison

officials from deviating from the terms of the consent decree based on the 2009

misconduct. The Report recommended dismissal of both claims because it concluded

that none of Chruby’s substantive claims could survive the motion to dismiss. It also

pointed out that injunctive relief is a remedy rather than a cause of action,2 and reasoned

that declaratory relief would be inappropriate because it appeared likely that the

defendants would not transfer Chruby based on the 2009 misconduct. Once again, we

agree with the District Court and will affirm its order.

                                             D.

       The District Court also denied Chruby’s two motions to file supplemental

pleadings. We review the District Court’s denial for abuse of discretion, but review its

underlying legal determinations de novo. Burtch v. Milberg Factors, Inc., 

,

220 (3d Cir. 2011).

                                             1.




2
  We agree with the Report that an injunction is a remedy rather than a cause of action, so
a separate claim for injunctive relief is unnecessary. See, e.g., Birdman v. Office of the
Governor, 

, 172 (3d Cir. 2012).
                                              7
       Chruby’s first motion to file a supplemental pleading sought injunctive relief and

money damages for violations of his right to access the courts,3 his right to petition, and

his right to free speech based on the 2012 incident concerning his prescription for pain

medication. The Report concluded that amendment would be futile because none of

Chruby’s claims could succeed. The court first noted that “neither the personnel who

were [the] subject of the letters nor the Captain who issued the misconducts are

Defendants in this action,” and therefore Chruby would not be able to show a causal

connection between the letters and the misconduct at issue. App. 40. It also reiterated its

prior holding that results of the prison hearing precluded any argument that a retaliatory

motive existed. The District Court’s analysis and holding were correct and we will

therefore affirm the court’s denial of Chruby’s motion to file a supplemental pleading.

                                              2.

       Chruby’s second motion to file a supplemental pleading sought to add a retaliation

claim against Kowalewski for her “threat to write plaintiff up for a misconduct charge if

he would write a letter that she deemed to be ‘inappropriate’ or ‘impolite.’” App. 610. It

also sought to add a due process claim because Chruby was denied the right to review his

medical records in association with his misconduct hearing.

       Once again, the Report recommended denial because the supplemental pleading

would be futile. On the retaliation claim, it concluded that “[i]t is well established that


3
 The first proposed supplemental cause of action was based on a “misconduct charge for
plaintiff’s request to a fellow inmate to write a letter to plaintiff’s own counsel.” App.
536. Because Chruby’s appellate brief only addresses his punishment for the letter
concerning his medication, we will affirm the dismissal of that cause of action.
                                              8
verbal threats do not constitute adverse action for purposes of stating a retaliation claim

under the First Amendment.” App. 41. Without deciding the general issue of whether

threats can constitute adverse action, today we will affirm the District Court’s conclusion

that the verbal threats alleged were not sufficient to deter Chruby from exercising his

constitutional rights.

       The Report also concluded that Chruby would be unable to state a claim for denial

of due process rights because due process rights are not triggered in the prison hearing

context unless the prison imposes an atypical and significant hardship on the inmate. We

agree with the Report’s conclusion that the threat of removal was not enough to constitute

the atypical and significant hardship that the constitution requires. Therefore, we will

affirm the District Court’s denial of Chruby’s motion.

                                             III.

       For the reasons explained herein, we will affirm the order of the District Court.




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