Opinion
Civil Action 1:18-cv-02195
01-13-2021
MICHAEL E. KEELING, #CV0908, Plaintiff, v. JOHN WETZEL, et al., Defendants.
WILSON, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This is a pro se federal civil rights action, initiated by the filing of a fee-paid complaint on November 13, 2018. (Doc. 1.) The plaintiff, Michael E. Keeling, is a prisoner incarcerated at SCI Frackville, a state correctional institution located in Schuylkill County, Pennsylvania. At the time of filing, and at the time of the events giving rise to this lawsuit, he was incarcerated at SCI Dallas, a state correctional institution located in Luzerne County, Pennsylvania.
In his pro se complaint, Keeling has asserted several unrelated sets of civil rights claims against 18 named defendants. First, he claims that his constitutional rights were violated by certain defendants' refusal to modify or tell him who changed his mental stability classification. Second, he claims one corrections officer defendant retaliated against him for filing an inmate grievance. Third, he claims another corrections officer defendant failed to protect him from an assault by his cellmate. Fourth, he claims certain defendants have unconstitutionally subjected him to an excessive number of “random” urine drug screenings. Fifth, he claims that the method of serving meals to prisoners on Styrofoam trays that are too wide to fit through cell door slots is inhumane and constitutes cruel and unusual punishment because the trays must be tipped sideways to pass through the door slots, causing the food on the trays to mix together. For relief, the plaintiff seeks an award of compensatory and punitive damages.
Two of the defendants have already been dismissed from this action for failure to state a claim against them upon which relief can be granted. The remaining sixteen defendants have now moved for dismissal of all claims against them for failure to state a claim upon which relief can be granted. (Doc. 48.) This motion is fully briefed and ripe for disposition. (See Doc. 50; Doc. 53, Doc. 54; Doc. 56.)
I. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.Appx. 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.Supp.3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.Supp.2d 579, 588-89 (W.D. Pa. 2008).
II. Discussion
Keeling has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendant, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
A. Mental Stability Code Claims
Keeling asserts civil rights claims against defendants Wetzel, Mahally, Bach, Marsh, Malishak, Lopuhovsky, Depireo, Kaye, Verbala, and Josefowicz concerning his mental stability code. In February 2017, Keeling allegedly learned that, almost five years earlier, on May 9, 2012, he had been reclassified from mental stability code “B” to mental stability code “C” by an unidentified prison official. This change apparently implicates closer supervision by mental health staff. He alleges that these defendants have refused to reveal the name of the individual responsible for his reclassification to a “C” stability code, and that they have refused to return him to a “B” stability code.
But an inmate “has no constitutional right to be assigned a particular stability code, or to be confined in a particular cell.” Stafford v. Corizon Health, Inc., No. 1:15-CV-2333, 2016 WL 4191764, at *6 (M.D. Pa. Aug. 9, 2016). Nor does the failure of prison officials to disclose the information sought by Keeling give rise to a constitutional claim. See Breslin v. Portillo, No. 12-0360, 2018 WL 4002858, at *4 (M.D. Pa. Aug. 22, 2018) (“[D]issatisfaction with a state law administrative procedure for access to records . . . do[es] not give rise to a constitutional claim . . . .”).
Accordingly, it is recommended that the plaintiff's claims against defendants Wetzel, Mahally, Bach, Marsh, Malishak, Lopuhovsky, Depireo, Kaye, Verbala, and Josefowicz concerning his mental stability code be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
B. Retaliation Claim
Keeling claims that defendant Bohinski retaliated against Keeling for filing a grievance against him. The plaintiff alleges that Bohinski had him moved from cell block “F” to cell block “B” in retaliation for filing Grievance No. 678667 on May 17, 2017. Keeling, a non-smoker, further alleges that Bohinski was aware that guards were not adequately enforcing no-smoking rules on F-block, the housing area from which Keeling was moved. In the complaint, Keeling does not allege that his new cell on B-block was deficient in any way, although we can infer from his claim that he found it less desirable for some unarticulated reason.
Keeling submitted a copy of the final appeal decision with respect to Grievance No. 678667 in support of his response to a prior motion to dismiss in this case. In this grievance, Keeling apparently complained that his cellmate had been smoking and prison staff were not enforcing non-smoking policies throughout the facility. The grievance was ultimately denied at all levels of administrative review. (See Doc. 24-1, at 21.) As a document incorporated by reference into his complaint, we have considered this administrative decision in connection with the instant motion to dismiss. See Tellabs, 551 U.S. at 322.
The complaint also alleges unrelated conduct by Bohinski that falls well outside the applicable two-year statute of limitations period for constitutional violations. In his pro se complaint, the plaintiff expressly acknowledged that claims based on this earlier conduct are time-barred, but then stated that he was including it as background information on the (poor) relationship between himself and Bohinski. Based on this statement in the complaint, we decline to construe the pro se complaint to include any claims arising out of this clearly time-barred conduct. If we did, we would necessarily recommend their dismissal on statute-of-limitations grounds.
To prevail on a retaliation claim, a prisoner must establish the following elements: (1) constitutionally protected conduct; (2) an adverse action by prison officials that is sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (internal quotation marks and brackets omitted). Courts must diligently enforce these requirements lest public officials be deterred from legitimate decisions for fear of litigation. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). This diligent enforcement does not create a heightened pleading standard, but merely recognizes that courts “should approach prisoner claims of retaliation with skepticism and particular care due to the near inevitability that prisoners will take exception with the decisions of prison officials and the ease with which claims of retaliation may be fabricated.” Alexander v. Forr, Civil Action No. 3:CV-04-0370, 2006 WL 2796412, at *22 (M.D. Pa. Sept. 27, 2006) (internal quotation marks omitted), aff'd per curiam, 297 Fed.Appx.102 (3d Cir. 2008).
With respect to the first element, it is beyond dispute that “[t]he filing of grievances is protected under the First Amendment.” Kelly v. York Cty. Prison, 340 Fed.Appx. 59, 61 (3d Cir. 2009) (per curiam). But it is also well established that mere transfer to a less desirable cell does not constitute an adverse action for the purposes of a retaliation claim. See Verbanik v. Harlos, 512 Fed.Appx. 120, 122 (3d Cir. 2013) (per curiam) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)); Dillard v. Talamantes, No. 1:15-CV-974, 2018 WL 1518565, at *11 (M.D. Pa. Mar. 28, 2018) (“Simply moving [an inmate] to a different cell, and failing to allow him to cell with the inmate of his choice in a cleaner, quieter cell, cannot be considered ‘adverse actions' sufficient to deter a person of ordinary firmness from exercising his constitutional rights.”); Dillard v. Talamantes, No. 1:15-CV-974, 2016 WL 7474803, at *9 (M.D. Pa. Dec. 29, 2016) (same). Here, the plaintiff's retaliation claim fails because he has failed to allege an adverse action by prison officials that is sufficient to deter a person of ordinary firmness from exercising his constitutional rights.
Accordingly, it is recommended that the plaintiff's retaliation claim against defendant Boshinski be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
C. Failure to Protect Claim Against Josefowicz
Keeling asserts an Eighth Amendment failure-to-protect claim against defendant Josefowicz for failure to take appropriate measures to prevent an assault that occurred on or about July 9, 2017.
The Eighth Amendment imposes “a duty upon prison officials to take reasonable measures to protect prisoners from violence at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)) (internal quotation marks omitted). That said, “a prison custodian is not the guarantor of a prisoner's safety.” Freedman v. City of Allentown, 853 F.2d 1111, 1115 (3d Cir. 1988). To establish a failure to protect claim, an inmate must demonstrate that: (1) he is “incarcerated under conditions posing a substantial risk of serious harm;” and (2) the prison official acted with “deliberate indifference” to his health and safety. Farmer, 511 U.S. at 834. To be deliberately indifferent, a prison official must both “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. This standard is subjective, not objective, “meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware.” Beers-Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001).
The Third Circuit has elaborated on the deliberate indifference standard in the context of suits against guards for failure to protect an inmate from harm caused by other inmates, stating that “a prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate.” Young v. Quinlan, 960 F.2d 351, 361 (3d Cir. 1992). The term “should have known” is a term of art, which
[d]oes not refer to a failure to note a risk that would be perceived with the use of ordinary prudence. It connotes something more than a negligent failure to appreciate the risk . . ., though something less than subjective appreciation of that risk. The “strong likelihood” of [harm] must be “so obvious that a lay person would easily recognize the necessity for” preventative action. [T]he risk of . . . injury must be not only great, but also sufficiently apparent that a lay custodian's failure to appreciate it evidences an absence of any concern for the welfare of his or her charges.Id. (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1025 (3d Cir. 1991) (citation omitted, alterations in original)).
Here, Keeling alleges that that he submitted a written “request to staff” on July 9, 2017, informing Josefowicz of “a serious compatibility problem” between him and his cellmate and requesting an “immediate move . . . to avoid any bodily harm.” (Compl. ¶ 71, Doc. 1, at 17.) Josefowicz allegedly told Keeling he would “handle it” that day, but then he did nothing. Keeling's cellmate allegedly assaulted him by punching him in the face multiple times overnight between July 9 and 10, 2017. The two inmates remained together in the same cell until July 19, 2017, when they were finally separated.
Keeling does not allege any facts to suggest that his cellmate had articulated any specific threat of serious harm. He does not allege any prior history of physical conflict between himself and his cellmate. Indeed, based on the allegations of the complaint, the incident in which Keeling was assaulted appears to have been a single, isolated, spontaneous occurrence, and Josefowicz had no reason to know prior to the incident that the cellmate was about to assault Keeling. See Hodges v. Wilson, 341 Fed.Appx. 846, 849 (3d Cir. 2009) (holding that a single fight between cellmates was insufficient to support a deliberate indifference claim). Based on the facts alleged in the complaint, the failure of Josefowicz to predict and prevent the assault on Keeling by his cellmate does not, as a matter of law, rise to the level of deliberate indifference. See Jones v. Beard, 145 Fed.Appx. 743, 745-46 (3d Cir. 2005) (per curiam) (inmate told guards that he and his cellmate were not getting along and requested to be moved to a new cell but failed to articulate any specific threats of serious harm); Parker v. C/O Mulderig, No. CIV. A. 92-2645, 1993 WL 44275, at *4 (E.D. Pa. Feb. 17, 1993) (no deliberate indifference where incident was a single spontaneous occurrence). At most, Keeling has alleged facts to support a claim of negligence against Josefowicz, but negligence is not cognizable under 42 U.S.C. § 1983. See Parker, 1993 WL 44275, at *5.
Accordingly, it is recommended that the plaintiff's Eighth Amendment failure-to-protect claim against defendant Josefowicz be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
D. Failure to Protect Claim Against White
Keeling also appears to assert a derivative failure-to-protect claim against defendant White arising out of White's investigation into whether Josefowicz failed to take appropriate measures to prevent the assault that occurred on or about July 9, 2017. Keeling alleges that he was called to Major White's office on July 14, 2017, for an interview regarding the incident and his prior request that he and his cellmate be separated.
It is well established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
There is no allegation whatsoever in the complaint to suggest any personal involvement by defendant White. Major White was the grievance officer who investigated Keeling's grievance about the incident and Josefowicz's alleged failure to protect him from an assault by his cellmate. Keeling alleges no facts to suggest any other role played by White, and it is well settled that if a prison official's only involvement is investigating or ruling on an inmate's grievance after the incident giving rise to the grievance has occurred, there is no personal involvement on the part of that official. See Rode, 845 F.2d at 1208. “[T]he mere fact that an official receives and reviews a letter or grievance appeal is insufficient to establish personal involvement (i.e., failure to respond to react does not establish that the official endorsed or acquiesced in the conduct at issue).” Hennis v. Varner, No. 12-646, 2014 WL 1317556, at *9 (W.D. Pa. Mar. 31, 2014).
Accordingly, it is recommended that the plaintiff's Eighth Amendment failure-to-protect claim against defendant White be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
E. Excessive Number of “Random” Urine Drug Screenings
Keeling seeks to hold defendants Piskorik and Mahally liable for “abusing” state department of corrections policies on drug testing, and defendant Pawling liable for failing to “correct” the issue after Keeling notified her by correspondence. Keeling alleges that he was being selected for urine screening more often than randomized computer selection should allow, and these defendants refused to adjust or correct the inmate drug screening selection system. But state prison regulations, such as the state department of corrections drug screening policies, do not constitute federal law, and therefore such claims are not cognizable under 42 U.S.C. § 1983. See Companiony v. Murphy, 658 Fed.Appx. 118, 120 n.6 (3d Cir. 2016); Atwell v. Lavan, 557 F.Supp.2d 532, 556 n.24 (M.D. Pa. 2008); see also Pettis v. Everhart, Civil Action No. 3:19-CV-1308, 2020 WL 5548719, at *4-*5 (M.D. Pa. Sept. 16, 2020) (“To the extent [an inmate] seeks relief for the violation of DOC policies, these regulations are not cognizable under 42 U.S.C. § 1983.”), appeal filed, No. 20-3032 (3d Cir. filed Oct. 5, 2020).
Accordingly, it is recommended that the plaintiff's claims against defendants Piskorik, Mahally, and Pawling for alleged violations of state prison administrative policies concerning inmate drug testing procedures be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
F. Food Slot / Meal Tray Claims
Keeling seeks to hold defendants Mahally, Kaye, Depireo, and Josefowicz liable for the manner in which meals were served to him during a twelve-day statewide prison lockdown. Keeling notes that the “antiquated” cell doors in several SCI Dallas cellblocks, including his own, do not have slots large enough to pass a meal tray through while upright. During the lockdown, instead of unlocking his cell door and passing him his meal trays through the open cell door, officials tilted the trays sideways to pass them through a narrow opening in his cell door, causing the various food items to mix together. Keeling contends that mixing foods in this manner is unappetizing and inhumane. He further alleges that officials have refused to modify the doors or install new ones with meal tray slots. All of this, he claims, was a violation of his Eighth Amendment right to be free from cruel and unusual punishment.
The complaint also appears to assert this claim against a non-party, “Mr. Marsico, ” but Marsico is not among the named defendants.
Keeling does not allege that he suffered anything more than minor, temporary discomfort. He does not allege that he was deprived of food for any length of time, just that his food was mixed together in an unappetizing manner. But in the absence of any substantial deprivation, the plaintiff has failed to adequately plead an Eighth Amendment violation. See Miller v. Fraley, Civil Action No. 12-4470 (MAS), 2015 WL 511296, at *8 (D.N.J. Feb. 6, 2015); see also Venegas v. Bianco, No. 5:19-cv-01557-JLS (SHK), 2020 WL 4334118, at *22 n.11 (C.D. Cal. Apr. 27, 2020); Long v. Annucci, No. 9:17-cv-0916 (GLS/TWD), 2018 WL 4473404, at *8 (N.D.N.Y. July 26, 2018).
Accordingly, it is recommended that the plaintiff's claims against defendants Mahally, Kaye, Depireo, and Josefowicz related to the manner in which meals were served to him during a prison lockdown be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
G. Other Named Defendants
Defendants Demming and Eyer are each named in the caption and identified once in the body of the pro se complaint. No. conduct by Demming or Eyer is alleged at all. Because the complaint fails to allege any personal involvement by Demming or Eyer in any of the conduct underlying the plaintiff's § 1983 claims, it is appropriate to dismiss this action as against these defendants for failure to state a claim upon which relief can be granted. See Hudson v. City of McKeesport, 244 Fed.Appx. 519, 522 (3d Cir. 2007) (per curiam); Unum v. Expert Witness, Civil Action No. 3:14-2332, 2015 WL 136384, at *8 (M.D. Pa. Jan. 7, 2015); Marano v. Matty, Civ. A. No. 86-522, 1986 WL 13482, at *1 (E.D. Pa. Nov. 25, 1986).
Accordingly, it is recommended that any claims against defendants Demming and Eyer be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
H. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). In this case, it is clear from the facts alleged in the complaint and other materials submitted by the plaintiff in response to the defendants' motion that amendment would be futile. It is therefore recommended that the action be dismissed without leave to amend.
See Jones v. SCO Family of Servs., 202 F.Supp.3d 345, 350 n.4 (S.D.N.Y. 2016) (considering evidence outside the pleadings for limited purpose of whether to grant leave to amend); Lauter v. Anoufrieva, 642 F.Supp.2d 1060, 1078 (C.D. Cal. 2009) (“A court may consider factual allegations outside of the complaint in determining whether to grant leave to amend.”); U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303 F.Supp.2d 432, 445 (S.D.N.Y. 2004).
III. Recommendation
For the foregoing reasons, it is recommended that:
1. The motion to dismiss (Doc. 48) be GRANTED;
2. This action be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and
3. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 13, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.