Opinion
Civil Action 2:23-cv-00103
02-22-2024
DWAYNE L. RIECO, Plaintiff, v. MICHAEL ZAKEN; MARK HAMMER, Physicians Assistant; WILLIAM NICHOLSON, CHCA Medical Supervisor; ERIC HINTEMEYER, C/O 4 - Captain of Security; SAYLOR, C/O 3; CRNP FETTERMAN; and BII STAFF JOHN/JANE DOE, Defendants.
Arthur J. Schwab United States District Judge
REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTIONS TO DISMISS (ECF NOS. 32 AND 59) AND PLAINTIFF'S MOTIONS FOR PRELIMINARY INJUNCTION/TEMPORARY RESTRAINING ORDER (ECF NOS. 35 AND 54)
CYNTHIA REED EDDY, United States Magistrate Judge
I. Recommendation
Pending before the Court are two motions to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6): the Motion to Dismiss filed by Defendants Zaken, Hintemeyer, Nicholson, and Saylor (collectively referred to as the “Corrections Defendants”) (ECF No. 32) and the Motion to Dismiss filed by Defendants Fetterman and Hammer (collectively referred to as the “Medical Defendants”) (ECF No. 59). Also pending are two Motions for Preliminary Injunction or Temporary Restraining Order filed by Plaintiff. (ECF Nos. 35 and 54). The motions have been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b), and Local Rules 72.1.3 and 72.13.
It is respectfully recommended that: (1) the claims against the Corrections Defendants be dismissed pursuant to the screening provisions of 28 U.S.C. §1915Ab)(1) as frivolous; (2) in the alternative, it is recommended that the Motion to Dismiss filed by the Corrections Defendants be granted and all claims against the Corrections Defendants be dismissed with prejudice; (3) the Motion to Dismiss filed by the Medical Defendants be granted and all claims against the Medical Defendants be dismissed with prejudice; and (4) leave to amend be denied as futile. It is also recommended that Plaintiff's motions for injunctive relief be denied as moot.
II. Report
A. Introduction
Plaintiff, Dwayne L. Rieco (“Rieco), is a state prisoner in the custody of the Pennsylvania Department of Corrections. As this Court has noted on many occasions, Rieco is a prodigious federal court litigant, who has had at least three prior lawsuits dismissed either as frivolous or on the grounds that the lawsuit failed to state a claim upon which relief could be granted.
In the past, the majority of Rieco's lawsuits were dismissed pursuant to the screening provisions under 28 U.S.C. § 1915(e)(2)(b) as frivolous or on the grounds that the lawsuit failed to state a claim upon which relief could be granted or under 28 U.S.C. § 1915(g) as he has three strikes under the PLRA and the claims did not involve imminent danger. Here, though, 28 U.S.C. § 1915(e) is not applicable as Rieco paid the full filing fee and as such is not proceeding in forma pauperis. See ECF No. 9-1. However, as will be discussed in a separate section of this Report and Recommendation, the Court has the obligation under 28 U.S.C. § 1915A to screen a prisoner's complaint and identify cognizable claims or dismiss the complaint, or any portion of it, if the complaint is frivolous, malicious, or fails to state a claim, despite full payment of the full filing fee.
A recurring theme in his many lawsuits is a continuing cycle of conflict between him and the corrections officers and medical department personnel. It is common for Rieco to allege that the corrections officers have tampered or contaminated his food and water, have attempted to execute him by exposing him to dangerous dust particles, and hazardous agents, such as radon and methane gases, and have exposed him to radiation or lasers which cause severe scorching on his legs. He has filed at least seven previous cases in this Court alleging that corrections officers have contaminated his food and all of these claims have been dismissed:
Similarly, he has filed at least five cases in this Court alleging that he was exposed to harmful / hazardous materials:
| CASE NAME | CONTAMINATION OF FOOD | ALLEGATIONS CASE DISPOSITION |
| 2:14-cv-0588 Rieco v. Moran, et al SCI Pittsburgh | Contamination of food - food cup with urine in it; tofu oat burger had “hot spicy substance.” | food tampering claims were dismissed pretrial. (excessive force claims went to trial) |
| 2:17-cv-0553 Rieco v. Gilmore, et al SCI Greene | Contamination of food - urine in potatoes and in peanut butter | Plaintiff's in forma pauperis status revoked 28 U.S.C. § 1915(g) (three strikes provision & no imminent danger); case dismissed w/o prejudice to Plaintiff's right to reopen case by paying the full filing fee (2/5/2018) |
| Food is being removed from his kosher meal bags; served contamination food | Plaintiff's in forma pauperis status revoked 28 U.S.C. § 1915(g) (three strikes provision & no imminent danger); case dismissed w/o prejudice to Plaintiff's right to reopen case by paying the full filing fee (5/28/2020) | |
| 2:21-cv-0688 Rieco v. Zaken, et al SCI Greene | Contamination of food - toxic poisons in kosher meal bags | Case administratively closed preservice; Plaintiff's M/IFP motion dismissed without prejudice as deficient (5/25/2021) |
| 2:21-cv-0836 Rieco v. Zaken, et al SCI Greene | Contamination of peanut butter and other food | Case administratively closed preservice; Complaint was received w/o M/IFP or payment of filing fee (6/30/2021) |
| 2:21-cv-1373 Rieco v. Zaken, et al SCI Greene | Contamination of food and water; exposed to hazardous agents, such as radon and methane gases; electrocutions to legs; dirty needle used in medical treatment | M/IFP denied under 28 U.S.C. § 1915(g) (three strikes provision & no imminent danger); case dismissed w/o prejudice to Plaintiff's right to reopen case by paying the full filing fee (1/7/2022) |
| 2:21-cv-1705 Rieco v. Zaken, et al SCI Greene | Contamination of food - excrement in food; also being exposed to poison, radon, and methane | Case administratively closed preservice; Complaint was received w/o M/IFP or payment of filing fee (12/30/2021) |
One of Rieco's frequent claims is that he is being poisoned by Corrections Officer Lewis, who Rieco claims is related to Peggy Lewis, Rieco's ex-wife. A Facility Manager's response dated 1/25/2011, attached to the Amended Complaint, states that Sgt. Lewis has stated that he is not related to Rieco's ex-wife. See Exh. 58 (ECF No. 9-57).
Similarly, he has filed at least five cases in this Court alleging that he was exposed to harmful / hazardous materials:
| CASE NAME | ALLEGATIONS RE: EXPOSURE TO HARMFUL/ HAZARDOUS MATERIALS | CASE DISPOSITION |
| 2:14-cv-1145 Rieco v. Capozza, et al SCI Pittsburgh | Exposed to harmful/hazardous gas in his cell | Case administratively closed preservice and dismissed w/o prejudice; Complaint was received w/o M/IFP or payment of filing fee (09/02/2014) |
| 2:15-cv-1510 Rieco v. Baucher, et al SCI Pittsburgh | Legs are being subjected to burns internally by a radical source of energy and scorching radiation | Case dismissed preservice as frivolous pursuant to the screening provisions of the PLRA (1/11/2016) |
| 2:19-cv-1136 Rieco v. McCreary SCI Greene | Corrections officials gassing him inside his cell with radon and methane gases forced through porous concrete floors and walls | Case dismissed preservice as frivolous pursuant to the screening provisions of the PLRA (2/25/2020) |
| 2:20-cv-0070 | Corrections officials exposing him to dangerous | M/IFP denied under 28 U.S.C. § 1915(g) (three |
| Rieco v. Johnston, et al SCI Greene | dust particles, methane gases, and urine vapors | strikes provision & no imminent danger); case dismissed w/o prejudice to Plaintiff's right to reopen case by paying the full filing fee (5/5/2020) |
| 2:21-cv-0343 Rieco v. Zaken, et al SCI Greene | Exposed to toxic poisons and radon | Case administratively closed preservice and dismissed w/o prejudice; Complaint was received w/o M/IFP or payment of filing fee (3/22/2021) |
He brings the instant action alleging that his peanut butter packages have been contaminated by corrections officials at SCI-Greene and that Defendants have refused to “test” both him and his food to determine the contaminants. The instant case contains similar allegations to those asserted by Rieco in the past against many of the same Defendants. Rieco acknowledges as much in his Omnibus Response:
Plaintiff clearly stated in his pleadings that he has been assaulted by excrement in his kosher bags as well as denied his food in acts of lynch mob hate crimes that stemmed from 2016 until now 2023. Doc. 13. Id. at Page 3 n.9 and that he received (MRSA) in 2017. Rieco v. Gilmore, 17-cv-0553, and Rieco v. J. E. Lewis, 20-cv-00587; Rieco v. C/O2 Johnston, 20-cv-0070; Rieco v. Zaken, 21-cv-0137; and Rieco v. Zaken, 21-cv-0836 were all filed based on the same complaint as heretofore.Omnibus Resp., at p. 2 (ECF No. 67) (emphasis added).
B. Jurisdiction
The Court has federal question jurisdiction as the federal claims are brought under 42 U.S.C. § 1983, see 28 U.S.C. § 1331, and supplemental jurisdiction under 28 U.S.C. § 1367.
The factual background is drawn from the allegations of the Amended Complaint and the exhibits attached to it, and the factual allegations in the public record from Rieco's prior lawsuits filed in this Court. A court may take judicial notice under Fed.R.Evid. 201 of documents filed in other court proceedings because they are matters of public record. Easley v. Reuberg, 2021 WL 3639734, at *3, n.1 (W.D. Pa. 2021). Further, as Rieco is a prisoner appearing pro se, the Court will treat the additional factual allegations contained in his Response as though they were included in the complaint. Baker v. Younkin, 529 Fed.Appx. 114, 115 n.2 (3d Cir. 2013) (non-precedential) (citing Lewis v. Att'y Gen. of U.S., 878 F.2d 714, 722 (3d Cir. 1989)).
Rieco, who is proceeding pro se, initiated this proceeding on January 20, 2023, by filing a Complaint for Violation of Civil Rights (Prisoner). The Complaint was lodged as it was not accompanied by either the filing fee or a Motion for Leave to proceed in forma pauperis (“IFP Motion”). On January 24, 2023, the case was administratively closed and Rieco was advised that the case could not proceed unless he either tendered the full filing fee or filed an IFP motion. (ECF No. 3). On February 24, 2023, Rieco tendered the full filing fee, the case was reopened, and the Complaint officially docketed. (ECF No. 9). Prior to service, Rieco filed an Amended Complaint (ECF No. 13), which remains his operative pleading. Attached to the Amended Complaint are 67 exhibits, comprising approximately 316 pages, and a handwritten 68-page Statement of the Claim.Named as defendants are four Corrections Defendants (Zaken, Nicholson, Hintemeyer, and Saylor), two Medical Defendants who are both employees of the prison medical provider (Hammer and Fetterman), and a BII Staff John/Jane Doe Defendant, who remains unnamed and unserved. All defendants are named only in their individual capacities.
By Order of 10/13/23 (ECF No. 53), the exhibits attached to the original Complaint were deemed to be attached to the Amended Complaint.
According to Exhibit 23 attached to the Amended Complaint, “BII” is the DOC's Bureau of Investigations and Intelligence. (ECF No. 9-23).
Reading Rieco's Amended Complaint liberally, he claims that the manufacturer's seals on the peanut butter packages in his kosher meal bags were tampered with and that unidentified corrections “officers used their own package sealers to carryout their life threatening contamination of his food with feces, saliva, and urine, etc.” Am. Compl., at 6. As a result of consuming the contaminated peanut butter, he contends he has suffered serious physical injuries, including severe itching, and bleeding to his legs, stomach, arms, and chest, and mental anguish.
In his filings, Rieco also states that pork, chicken, and beef products have been placed in his kosher meal bags, that urine and feces have been soaked in his vegetables, and mixed into his bread, cottage cheese, bean salad and cottage cheese, that there has been glass in his peanut butter, that the corrections officers “are making [the bread] at home,” and that “he also had had Visine and stool softeners placed in his peanut butter and any cups with lids [the corrections officers] can access to cause him diareah (sic).” Omnibus Resp. at 1, 7, 12 (ECF No. 67). However, the claims in this lawsuit are focused on Rieco's allegations that his peanut butter packages have been contaminated. Therefore, the analysis will focus only those allegations relating to the contamination of peanut butter packages.
Although the Amended Complaint reflects that Rieco saw and was evaluated by the medical staff, he complains that no “meaningful medical care” was given him as no toxicology or diagnostic tests took place and no laboratory testing was ordered to determine the presence of contaminants in his food. Additionally, Rieco claims the Medical Defendants did not report any allegations of abuse pursuant to DC-ADM 001 or provide a report to his family.
Rieco brings his claims under 42 U.S.C. § 1983 contending that Defendants' actions violated his constitutional rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution. Specifically, Rieco alleges that the contamination of his kosher meal bags is a “hate lynch mob crime” violating his religious free exercise rights, that the contamination of his food constitutes “excessive punishment” as the denial of food is being used as a measure of punishment outside his sentence; that Defendants have failed to protect him or act by failing to report the “abuse” as required by DC-ADM 001, and have been deliberate indifferent to his serious health care needs. Am. Compl, ¶ II(A). He also seems to be arguing that his equal protection rights have been violated by Defendants refusing to order diagnostic screening tests for him and his food because,
this is a double standard of the law and prisoners DNA is collected if they spit or throw excrements on any officers, staff, or contractors but [Rieco] was and still is not receiving that equal protection of the law because they obstructed their investigation on all his complaints not seeking the DNA or camera or bags brought into the jail.Omnibus Resp., at p. 7 (ECF No. 67). In addition to his federal claims, he also brings a state law medical malpractice claim against the Medical Defendants. Rieco seeks a broad range of relief:
A. Release discharge without day for excessive punishments.
B. Compensatory damages $1,250,000.00 severally.
C. Loss of positions, pensions, and benefits.
D. Prison terms for [those involved] in the crimes of attempted murder through his religious kosher food.
E. Dietary to serve all food with corrections officers supervision in all programs no officers can handle Level 5 carts or meals any longer / cameras in all kitchens to observe preparations of all trays, bag meals, etc.
F. Body cameras worn by all officers, staff, and contractors before coming on all prison property.
G. Testing of peanut butters Plaintiff mailed to his mother / witness Louise Kling by expert witness.
H. All future medical care he will need based on cancer / Hep A, B, or C from excrements in his food he was served contaminated.
I. Separation transfer out of this imminent danger they are still contaminating his food and body.
J. Loss of medical certification for all deliberate indifference to his serious health care needs and failure to report, protect, and act per DC-ADM 001 abuse allegations.Am. Complaint, Relief, p. 9 (ECF No. 13).
The dates of the events giving rise to the lawsuit are somewhat of a moving target. In the Amended Complaint, Rieco asserts that the events giving rise to his claims is “long term by all defendants from 2020 until now 2023.” Id., Stmt. of Claim, ¶ III(C). From two Grievances attached to the Amended Complaint, Rieco alleges that he was given contaminated peanut butter packages on two occasions: January 26, 2011 (Grievance 965344, Exh. 24, ECF 9-24), and July 29, 2022 (Grievance No. 991479, Exh. 40, ECF 9-39). And in his Omnibus Response, he states that his “food” has been contaminated” from 2016 until 2023 (p. 1), and later states that his food has been contaminated for eight years (pp. 3, 4, and 9), which would be 2015 to 2023. Omnibus Resp. (ECF No. 67).
Because Rieco is proceeding pro se, his allegations, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1983). In order “[t]o 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to survive a motion to dismiss.” Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678-79). To determine whether a complaint survives a motion to dismiss, a court identifies “the elements a plaintiff must plead to state a claim for relief,” disregards the allegations “that are no more than conclusions and thus not entitled to the assumption of truth,” and determines whether the remaining factual allegations “plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe all reasonable inferences in favor of the nonmoving party. Doe v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). A court may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” as well as “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff's claims are based on those documents. Id. (citations omitted). In addition, a district court may consider indisputably authentic documents without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Lum v. Bank of America, 361 F.3d 217, 222 (3d Cir. 2004) (in resolving a motion to dismiss under Rule 12(b)(6), a court generally should consider “the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”).
The United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - whether or not the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). “However, we need not provide a plaintiff with leave to amend if amendment would be inequitable or futile.” Thompson v. Police Dep't of Philadelphia, 2011 WL 4835831, at *2 (E.D. Pa. Oct. 12, 2011) “Where a claim is frivolous, amendment is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).
E. Discussion
The Corrections Defendants and the Medical Defendants each move to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). Rieco has filed an Omnibus Response, Exhibits (ECF Nos. 67, 68) and a Supplemental Response (ECF No. 70). The matter is ripe for disposition.
1. Screening Pursuant to 28 U.S.C. §1915A(b)(1)
Title 28, United States Code, §1915A, provides:
(a) Screening.-The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaintin a civil action in which a prisoner seeks redress from a government entity or officer or employee of a government entity.
(b) Grounds for dismissal.-On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Section 1915A screening of amended complaints is likewise required. See Fields v. Venable, 674 Fed.Appx. 225, 228 (3d Cir. 2016) (non-precedential) (noting that district court “fulfill[ed] its duty to screen” pro se prisoner's amended complaint).
Because Rieco is seeking redress from a governmental entity or officer or employee of a governmental entity, the claims in his Amended Complaint against the Corrections Defendants are subject to the screening requirements of §1915A, despite full payment of the full filing fee. The language of §1915A(b)(1) closely tracks Federal Rule of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to screening a pro se prisoner complaint for sufficiency under §1915A(b)(1) as they utilize when resolving a motion to dismiss under Rule 12(b)(6). See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002); O'Brien v. U.S. Fed. Gov't, 763 Fed.Appx. 157, 159 & n.5 (3d Cir. 2019) (per curiam) (nonprecedential).
An action is frivolous when either: (1) the factual contentions are clearly baseless, such as when allegations are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 327 (1989). A complaint is factually frivolous if the facts alleged are clearly baseless, a category that includes allegations that are fanciful, fantastic, and delusions. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 325-28). “[A] finding of factual frivolous is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Denton, 504 U.S. at 33. Although the Court must accept the truth of Rieco's allegations on a motion to dismiss, Section 1915A instructs the Court to dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim.
Rieco again alleges that the Corrections Defendants are tampering and contaminating his food. The primary focus of his claims in the Amended Complaint is that unnamed corrections officers have replaced the manufacturer's seals on his peanut butter packages in order to put urine, feces, and saliva in the peanut butter. These claims are similar, if not identical, to claims that Rieco has raised in the past, all of which have been found to be frivolous. In a convoluted tale, Rieco again claims that he “is being seriously injured by the friends and family of two witnesses” who testified at his criminal trials. See Omnibus Resp. at p. 5. He states that “they constructed this prison and completed it in 1993 and planned to murder Plaintiff in this prison in 1994 ....and for eight years they have poison[ed] his body through his air, water, and food in the segregation housing of Level 5.” Id. at 9.
In a 5/20/2020 letter addressed to Governor Tom Wolf, Rieco states he is “being excessively punished by a lynch mob adverse action,” and that he is suffering physical harm by employees of SCI-Greene who are family and friends of two witnesses in his criminal trials. Among the twenty “family and friends” listed in the letter is Corrections Defendant Hintemeyer. See Exh. 59 to Am. Complaint (ECF No. 9-58).
After a thorough review of the Amended Complaint in its entirety, including the exhibits attached to the Amended Complaint, in the undersigned's estimation, Rieco's claims against the Corrections Defendants are fanciful and delusional, sometimes incoherent, and lack any arguable basis in law or in fact, rendering them frivolous and subject to summary dismissal. See Brookins v. Cty. of Allegheny, 350 Fed.Appx. 639, 642 (3d Cir. 2009) (non-precedential) (“A court may discredit allegations that are ‘fanciful, fantastic, and delusional' and thus dismiss a complaint as factually frivolous when the facts alleged ‘rise to the level of the irrational or wholly incredible.'”)(quoting Denton v. Hernandez, 504 U.S. 25, 33 (1992)) (citations omitted). Rieco's allegations that his peanut butter packages were contaminated with urine, feces, and saliva (after the manufacturer's seals were removed by the corrections officers) are so conclusory and fantastic as to rise to the level of factually frivolous.
Moreover, given the nature of these allegations, the undersigned finds that they are incapable of being cured by amendment. See, e.g., Johnson v. Trump, 745 Fed.Appx. 445 (3d Cir. 2018) (non-precedential) (affirming the district court's determination that leave to amend would be futile, despite the general rule in favor of curative amendments, where the allegations at issue were fanciful, fantastic, or delusional); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
In the alternative, the undersigned will exercise prudence by also providing an analysis on the merits of the motions to dismiss.
2. Analysis of the Motions to Dismiss
a. Federal Claims
Because the federal claims brought against the Corrections Defendants and the Medical Defendants overlap, the arguments raised in the motions to dismiss will be discussed together.
Section 1983 provides:
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 . . . 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. The Supreme Court of the United States has held that section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). To be afforded remedy in federal court, plaintiffs must prove two elements. First, they must show a “violation of a right secured by the Constitution and laws of the United States.” West v. Atkins, 487 U.S. 42, 48 (1988). Second, they must “show that the alleged deprivation was committed by a person acting under color of state law.” Id. at 48.
At this stage, it seems plausible that the second prong of § the 1983 claims is satisfied. Given the facts, it appears that all Defendants were acting under “color of the state law” when the alleged violations occurred. Further, none of the Defendants dispute this issue in their motion and, therefore, it is not further addressed.
Rieco contends that Defendants violated his rights under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments. These arguments will be addressed in turn.
i. First Amendment Free Exercise of Religion Claims
The Free Exercise Clause of the First Amendment provides, inter alia, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . .” U.S. Const. amend. I. Rieco contends that the “contamination of his kosher accommodation meals is a hate crime violating his religious free exercise rights.” Am. Compl., at p. 4.
In order to state a plausible Free Exercise claim, a plaintiff must allege a “substantial burden” on the exercise. Thomas v. Review Bd., 50 U.S. 707, 718 (1981); Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). Stated another way, the free exercise inquiry asks whether the government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hernandez v. Comm's of Internal Revenue, 490 U.S. 680, 699 (1989).
Although Rieco alleges that his kosher meal bags have been contaminated, he has failed to identify any plausible instances of interference with his religious practices by the named Defendants or how the actions of these Defendants constitute a substantial burden on his free exercise of his religion. For example, Rieco provides no facts to show that that the named Defendants were personally involved in the alleged contamination of his peanut butter packages. For these reasons, the undersigned finds that Rieco has failed to state a plausible claim for deprivation of religious freedom and, as a result, recommends that Rieco's First Amendment Free Exercise of Religion Claim be dismissed against all Defendants.
ii. Fifth Amendment Claims
The Fifth Amendment to the U.S. Constitution provides, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself . . . nor be deprived of life, liberty or property, without due process of law....” U.S. Const. amend. V. The Amended Complaint is bereft of any allegations that would implicate the Fifth Amendment's prohibition against self-incrimination.
Moreover, the Fifth Amendment's right to procedural due process “applies to actions of the federal government.” B&G Const. Co. v. Dir., Office of Workers' Comp. Programs, 662 F.3d 223, 246 n.14 (3rd Cir. 2011); see also Santos v. Sec'y of D.H.S., 532 Fed.Appx. 29, 33 (3d Cir. 2013) (non-precedential) (citing Citizens for Health v. Leavitt, 428 F.3d 167, 178 (3d Cir. 2005)). Defendants in this case are not federal actors and, thus, the Fifth Amendment's right to procedural due process is not applicable in this case.
As the Fifth Amendment is not applicable to any claims asserted in this case, it is recommended that Rieco's Fifth Amendment claims be dismissed against all Defendants.
iii. Sixth Amendment Claims
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy public trial . . .” U.S. Const. amend. VI. The explicit guarantees of the Sixth Amendment are applicable only to “criminal prosecutions.” U.S. v. Ward, 448 U.S. 242, 28 (1980) (“the protections provided by the Sixth Amendment are available only in criminal prosecutions.”) Hence, the Sixth Amendment is wholly inapplicable to any claims asserted in this case. Therefore, it is recommended that Rieco's Sixth Amendment claims be dismissed against all Defendants.
iv. Eighth Amendment Claims
The Eighth Amendment's prohibition of cruel and unusual punishment imposes constitutional limitations on prisoner's conditions of confinement. See Graham v. Connor, 490 U.S. 386 (1989); Rhodes v. Chapman, 452 U.S. 337 (1981). For a prisoner to prevail on a claim asserting that he was subjected to cruel and unusual punishment, he must prove both “an objective element - that the prison officials' transgression was ‘sufficiently serious' - and a subjective element - that the officials acted, or failed to act, with a ‘sufficiently culpable state of mind,' i.e., with ‘deliberate indifference to inmate health and safety'.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
As discussed further below, the undersigned finds that none of Rieco's allegations give rise to claim under the Eighth Amendment claim.
The food tampering claims are directed only to the Corrections Defendants.
Rieco alleges his Eighth Amendment rights were violated because the contamination of his food constitutes cruel and unusual punishment. The Eighth Amendment prohibition against cruel and unusual punishment requires that prisoners be served nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the prisoners who consume it. Helling v. McKinney, 509 U.S. 25, 32 (1993); Africa v. Com. of Pa., 662 F.2d 1025, 1036 n. 23 (3d Cir. 1981). In food tampering claims, a plaintiff must allege that he suffered an actual injury, the mere allegation of food tampering alone is insufficient to establish a claim under the Eighth Amendment. See Rieco v. Moran, 633 Fed.Appx. 76, 78 (3d Cir. 2015). Rieco contends that by consuming the contaminated peanut butter, he has suffered physical injuries which include “itching and bleeding to his legs, stomach, arms, chest.” Am. Compl., at p. 5, 8.
Rieco asserts that at some point in time unidentified prison officials tampered with the manufacturer's seal on his peanut butter packages and gave him peanut butter contaminated with urine, feces, and saliva. Am. Compl., at ¶ 6. Rieco's allegations fail to plausibly show that any of the named Corrections Defendants' actions constituted an Eighth Amendment violation as he has not alleged a sufficient connection between the named Corrections Defendants and the contaminated peanut butter. Instead, Rieco has made improbable allegations that unnamed corrections officers have tampered with the peanut butter packages. He makes no claim that any of the named Corrections Defendants had a direct involvement in the purported contamination of his peanut butter packages or that the Corrections Defendants were, or should have been, aware that his peanut butter was unsafe to eat. Rather, any connection that Rieco makes is that the Corrections Defendants were made aware of the contamination through his many grievances.
However, it is “well established that the filing of a grievance is not sufficient to show the actual knowledge necessary for a defendant to be found personally involved in the alleged unlawful conduct.” Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D. Pa. 2013). See also Mincy v. Chmielsewski, 508 Fed.Appx. 99, 104 (3d Cir. 2013) (“[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite for personal involvement.”). Thus, to the extent Rieco's claims against any of the Corrections Defendants are based on the review and denial of a grievance, such claims do not rise to the level of a constitutional violation. Responding to a grievance is not sufficient to show the actual knowledge necessary for personal involvement. Rode, 845 F.2d at 1208.
Taking into consideration the allegations asserted in the entirety of the Amended Complaint, the undersigned recommends this claim be dismissed as Rieco's allegations fail to plausibly give rise to a § 1983 food tampering claim.
2. Inadequate Medical Care
In accordance with the Eighth Amendment's prohibition against cruel and unusual punishment, the government is obliged “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). “[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,' . . . proscribed by the Eighth Amendment.” Id. at 104. An Eighth Amendment violation can be “manifested by prison doctors in their response to the prisoner's needs” or by “prison guards in intentionally denying or delaying access to medical care.” Id. at 104-05. The “deliberate indifference standard affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patient, [and Courts] must disavow any attempt to second-guess a question of sound professional judgment.” Pearson v. Prison Health Serv., 850 F.3d 526, 538 (3d Cir. 2017) (internal quotations and citations omitted). A mere difference of opinion between the prison medical staff and the inmate regarding the diagnosis or treatment received by the inmate does not constitute deliberate indifference. Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987).
Rieco contends that the Medical Defendants and the Corrections Defendants are deliberately indifferent to his serious medical needs. Even assuming arguendo that Rieco suffers from a serious medical need, the factual allegations of the Amended Complaint reflect that the Medical Defendants have provided Rieco with medical care. Rieco though does not complain about any aspect of the medical treatment he has received, or lack thereof, but rather that the Medical Defendants have refused to “diagnostically test him and the peanut butter” and that this refusal constitutes a failure to provide medical care and protect him.
Documents attached to the Amended Complaint reflect that Rieco has a “documented circulation condition” called venous statis and due to this condition he develops ulcers on his legs. He also has been diagnosed with neuro dermatitis - which causes itching on his arms - and the sores are a result of scratching too much. See Initial Review to Grievance 942789 (ECF No. 947). A mere disagreement over whether medical treatment was proper does not establish an Eighth Amendment violation. Pearson, 850 F.3d at 535.
To the extent that Rieco's claims are based on the Medical Defendants failure to test his food for contamination, such a claim does not give rise to an Eighth Amendment violation. The job duties of the Medical Defendants, as medical clinicians, are specifically limited to providing medical treatment to the prisoners; their job duties do not include the testing of foods.
For all these reasons, it is recommended that any claims against the Medical Defendants for deliberate indifference to Rieco's serious medical needs be dismissed.
As to the Corrections Defendants, the Amended Complaint contains no factual allegations that the Corrections Defendants prevented Rieco from accessing prison medical providers or interfered with any prescribed course of treatment. In fact, the factual allegations of the Amended Complaint belie Rieco's claim of deliberate indifference against the Corrections Defendants. See, e.g., Pearson, 850 F.3d at 534 (stating that deliberate indifference consists of intentionally denying or delaying access to medical care or interfering with the treatment once prescribed). The Amended Complaint states that Rieco was routinely seen SCI-Greene's medical staff.
Once a prisoner comes under the care of medical professionals, a non-medical prison official cannot be deliberately indifferent for failing to intervene in the medical treatment unless that non-medical official has reason to believe or actual knowledge that prison medical providers are mistreating the prisoner. Spruill v. Gillis, 372 F.3d 218, 236-37 (3d Cir. 2004); Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). The Corrections Defendants are all non-medical prison officials. As the Court of Appeals for the Third Circuit has stated:
As our precedent makes clear, “a non-medical prison official” cannot “be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference” when the “prisoner is under the care of medical experts” and the official does not have a “reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Spruill, 372 F.3d at 236; see also Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (holding that non-physicians cannot “be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor”).Pearson, 850 F.3d at 543. As to Defendant Nicholson, courts within the Third Circuit have recognized that CHCAs are “undisputably administrators, not doctors,” and therefore under Spruill, “will generally be justified in believing that the prisoner is in capable hands” if the “prisoner is under the care of medical experts.” Thomas v. Dragovich, 142 Fed.Appx. 33, 39 (3d Cir. 2005); see also Fantone v. Herbik, 528 Fed.Appx. 123, 128 n. 6 (3d Cir. 2013).
Here, the Amended Complaint clearly reflects that Rieco was being treated by medical professionals and there are no allegations that any of the Corrections Defendants knew or had any reason to believe that the medical professionals were mistreating him or denying or delaying medical treatment for non-medical reasons. The Corrections Defendants have a right to defer to the medical professionals under these circumstances, particularly when it comes to decisions about medications and further treatment. The undersigned finds that the Amended Complaint does not allege any facts to suggest that the Corrections Defendants had personal involvement in failing to provide medical care to Rieco and, therefore, it is recommended that any claims against the Corrections Defendants asserting deliberate indifference to Rieco's serious medical needs be dismissed.
3. Failure to Protect / Failure to Investigate
The Amended Complaint refers baldly to an excessive punishments claim. See Am. Compl., II(A) (“excessive punishments contamination of his food implicating his sentence.”). The Corrections Defendants have moved to dismiss any such freestanding claim. Rieco clarifies that “this was not a standalone claim” but rather is based on “eight years of contamination of his Jewish kosher diet bags with excrements causing him injury as it is outside his sentence.” Omnibus Resp., at 11. Given that Rieco has represented that this is not a freestanding claim, no discussion is necessary.
In conclusory fashion, Rieco alleges that the Defendants failed to protect him by serving him contaminated peanut butter. This claim fails because, as noted above, there are no allegations in the Amended Complaint that any of the Defendants were aware that Rieco's peanut butter was contaminated. Further, Rieco has failed to plead any plausible allegations that would lead a reasonable person to believe that Rieco's personal safety was at risk.
Rieco also seems to be alleging that his constitutional rights were violated because his grievances were not properly investigated. Rieco has attached a number of grievances to his Amended Complaint, all of which belie his allegation that his grievances were not investigated. However, even if that were not the case, he cannot maintain a constitutional claim based upon his perception that his grievances were not properly investigated. A prisoner has no free-standing constitutional right to an effective grievance process. Woods v. First Corr. Med., Inc., 446 Fed.Appx. 400, 403 (3d Cir. 2011).
See Exh. 24 - Grievance 965344, 1/26/2022, states feces, urine, and saliva in food and being denied testing peanut butter for contaminates (ECF No. 9-24); Exh. 40 - Grievance 991479, 7/31/2022, states he was given toxic peanut butter packages (ECF No. 9-39); Exh. 48 - Grievance 942798, 8/24/2021, states he is being electrocuted causing burns on legs and that food is being tampered with causing severe itching and sores on arms (ECF No. 9-47); and Exh. 55 - Grievance 933201, 6/24/2011, states experiencing itchy rash after eating “contaminated peanut butter (Exh. No. 9-54). Attached to the Amended Complaint are also numerous Inmate Requests to Staff Member and Sick Call requests submitted by Rieco stating that his peanut butter packages have been contaminated.
Similarly, any claims that Rieco may be attempting to bring based on an alleged failure to comply with the reporting requirements of DC-ADM 001 fails as a failure to comply with prison policy does not amount to a constitutional violation. See Watson v. Rozum, No. Civ. A. 12-35J, 2012 WL 5989202, at *2 (W.D.Pa. Oct. 29, 2012), report and recommendation adopted, 2012 WL 5989245 (W.D.Pa. Nov. 29, 2012) (citing Mercy Cath. Med. Ctr. v. Thompson, 380 F.3d 142, 154 (3d Cir. 2004); and citing Atwell v. Lavan, 557 F.Supp.2d 532, 556 n. 24 (M.D.Pa. Dec. 21, 2007) (a prison policy manual does not have the force of law and does not give rise to the level of a regulation)); see also Laufgas v. Spezial, Civ. A. No. 04-1697, 2006 WL 2528009, at *9 (D.N.J. Aug. 31, 2006) (“[A] prison's departure from the policies and procedures outlined in the facility's handbook does not, in and of itself, amount to a constitutional violation under § 1983.”).
v. Fourteenth Amendment Equal Protection Claims
The undersigned has interpreted Rieco's final claim to be a Fourteenth Amendment equal protection class-of-one claim. The Equal Protection Clause of the Fourteenth Amendment guarantees all citizens “equal protection of the laws.” U.S. Const. amend. XIV § 1. As a result, the Equal Protection Clause requires that all persons “similarly situated” be treated alike by state actors. See City of Cleburne v. Cleburn Living Ctr., Inc., 473 U.S. 432, 439 (1985). “Persons are similarly situated under the Equal Protection Clause when they are alike ‘in all relevant aspects'.” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordinger v. Hahn, 505 U.S. 1, 10 (1992)).
Under a class-of-one theory, “a plaintiff need not allege class-based discrimination.” Id. at 765 (citing Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 601 (2008); Davis v. Prison Health Servs., 679 F.3d 433, 441 (6th Cir. 2012) (“[I]n ‘class-of-one claims, ‘the plaintiff [does] not allege membership in a class or group' but rather simply alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment'.” (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). “In a class of one claim, a plaintiff must establish that: '(1) the defendants] treated him differently from others similarly situated, (2) the defendant[s] did so intentionally, and (3) there was no rational basis for the difference in treatment.” Aulisio v. Chiampi, 765 Fed.Appx. 760, 764-65 (3d Cir. 2019) (non-precedential) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); Olech, 528 U.S. at 564). “Under the rational basis standard, any rational ground for the conduct in question will suffice to defeat the class-of-one claim.” Aulisio, 765 Fed.Appx. at 765.
Here, it appears Rieco is claiming that Defendants have violated the Equal Protection Clause of the Fourteenth Amendment by refusing to order toxicology / diagnostic tests for him and on his food. He contends than when prisoners spit or thrown excrement at corrections officers or staff, the prisoners are subjected to DNA testing; yet, his requests for testing on the spit and excrement alleged to have been found in his peanut butter have been denied. At a minimum, Rieco has failed to allege that he has been treated differently than others similarly situated.
The undersigned finds the Amended Complaint fails to state a plausible equal protection class-of-one claim. As such, it is recommended that Rieco's Equal Protection claim be dismissed against all Defendants.
vi. Leave to File Amended Complaint Would be Futile
The United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harless Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Because the problem with Rieco's Amended Complaint is substantive, such that a better pleading will not cure it, it is recommended that leave to amend be denied as it would be futile.
b. State Law Medical Malpractice Claim
In addition to his federal claims, Rieco raises a state law medical malpractice claim against the Medical Defendants. He relies on the same allegations he set forth in support of his federal claims. The Medical Defendants argue that this claim must be dismissed because Rieco has failed to submit a Certificate of Merit (“COM”) pursuant to Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. Rule 1042.3 requires a plaintiff in a professional negligence action to file a COM with the complaint, or within 60 days after the filing thereof. Pa. R. Civ. P. 1042.3. The COM must state that (1) “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge” of the defendant “fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm”; (2) the claim is “based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard”; or (3) “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa. R. Civ. P. 1042.3. Failure to file a COM is fatal to a plaintiff's claim. Pa. R. Civ. P. 1042.7. See also Robinson v. Bureau of Health Care Services, No. 22-1913, 2022 WL 17984477, *2 (Dec. 29, 2022) (affirming dismissal of plaintiff's negligence claims against prison medical providers under state law because plaintiff failed to submit a certificate of merit pursuant to Rule 1042.3).
The Court of Appeals for the Third Circuit has held that Rule 1042.3 is substantive law that must be applied by federal courts under Erie R.R. v. Thompkins, 304 U.S. 64 (1983). See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-64 (3d Cir. 2011). The rule must also be applied in cases involving pro se litigants and incarcerated individuals. Perez v. Griffin, 304 Fed.Appx. 72, 74 (3d Cir. 2008) (non-precedential); Hodge v. Dep't of Justice, 372 Fed.Appx. 264, 267 (3d Cir. 2010) (non-precedential) (holding that Rule 1042.3 applies with equal force to both counseled and pro se plaintiffs). Additionally, “one of Pennsylvania's conditions precedent to dismissing an action for failure to comply with this requirement, fair notice to plaintiff, is also substantive law,” that also must be applied by federal courts. Schmigel v. Uchal, 800 F.3d 113, 115 (3d Cir. 2015).
On January 20, 2023, Rieco's Complaint, which asserted a medical malpractice claim, was received by the Clerk of Court. He was required to file a COM by March 21, 2023. He did not do so. He filed an Amended Complaint on April 25, 2023. Pennsylvania courts, however, have consistently held that the sixty-day period for filing the COM runs from the time of filing the original complaint and is not restarted or otherwise tolled by the filing of any subsequent amended complaint.
Even if the Court were to find the filing of the Amended Complaint restarted the sixtyday time period, the sixty-day time period expired on December 22, 2023.
On October 23, 2023, concomitantly with filing their Motion to Dismiss, the Medical Defendants filed a “Notice of Intention to Dismiss Pursuant to Pa.R.C.P. 1042.6 For Failure to Submit Certificate of Merit.” (ECF No. 61). The thirty-day notice required by Rule 1042.6 has now expired and Rieco has failed to file the requisite COM or addressed the Medical Defendants' arguments that his medical malpractice claim is subject to the requirements of Rule 1042.3. Thus, it is recommended that Rieco's state law medical malpractice claim be dismissed with prejudice.
3. Motions for Preliminary Injunction or Temporary Restraining Order
In these motions, Rieco claims that he has been subjected to contaminated food, radiation causing blindness, and intimidation by prison staff. He seeks an order restraining prison officials at SCI-Greene from contaminating his food, using chemical agents/radiation to injure his eyes, assaulting him, and denying him meaningful health care. Given the recommended dismissal of this action, it is recommended that Rieco's motions for injunctive relief be denied as moot. Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (instructing that the moving party must establish, inter alia, the likelihood of success on the merits.)
III. Conclusion
For the reasons set forth herein, it is respectfully recommended that the claims against the Corrections Defendants be dismissed as frivolous pursuant to the screening provisions of 28 U.S.C. §1915A. In the alternative, it is recommended that the Motion to Dismiss filed by the Corrections Defendants (ECF No. 32) be granted and all claims against the Corrections Defendants be dismissed with prejudice.
It is further recommended that the Motion to Dismiss filed by the Medical Defendants (ECF No. 59) be granted and all claims against the Medical Defendants be dismissed with prejudice.
Additionally, it is recommended that leave to amend be denied as futile.
Further, it is recommended that Rieco's motions for injunctive relief be denied as moot.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Rieco, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by March 11, 2024. Defendants because they are electronically registered parties, must file objections, if any, by March 8, 2024. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011)(quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).