Opinion
Civil Action 1:21-cv-316
04-12-2023
JOHN L. RUSH, et al., Plaintiffs, v. JOHN E. WETZEL, DEREK F. OBERLANDER, and RANDY IRWIN Defendants.
District Judge Schwab
REPORT AND RECOMMENDATION
ECF No. 118
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendants Wetzel, Oberlander and Irwin (ECF 118) be granted.
II. REPORT
A. Factual Allegations
Presently before the Court are 25 Plaintiffs who are incarcerated at SCI Forest, claiming that they were subjected to certain housing restrictions because of their unvaccinated status during the COVID-19 pandemic. See Amended Complaint, ECF No. 104 & Order at ECF No. 117. Plaintiffs assert that their Fifth, Eighth and Fourteenth Amendment rights were violated when Defendants housed them away from vaccinated prisoners, and substantially reduced their privileges. These reduced privileges included the following: 1) confinement in their cells for 22 hours per day; 2) denial of access to library, including the law library; 3) denial of access to the dining hall, gym, activities, and main recreation yard; 4) denial of participation in religious activities; 5) denial of contact visitation; 6) denial of schooling and treatment programs; 7) denial of employment; and 8) shortened day room and yard privileges. ECF No. 104 ¶ 16(a)-(g). Plaintiffs conclude that despite these restrictive measures, unvaccinated inmates are exposed to unvaccinated personnel and staff at SCI Forest. Id. ¶¶ 18-21.
Plaintiffs seek monetary, declaratory, and injunctive relief, including a permanent injunction to “enjoin the Defendants from continuing their conduct described [in the Amended Complaint].” ECF No 104, at Prayer for Relief.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
C. Analysis
1. Official capacity claims for monetary relief
Initially, in support of their Motion to Dismiss, Defendants argue that any claims for monetary relief against the Defendants in their official capacities must be dismissed because as employees of the State, they are protected by Eleventh Amendment immunity. Plaintiffs respond that Defendants are not protected by Eleventh Amendment immunity for monetary damages because Plaintiffs may recover monetary relief that is “ancillary” to the injunctive relief they seek.
To the extent that Defendants move to dismiss the Complaint based on immunity under the Eleventh Amendment, the motion to dismiss is more properly treated as one made pursuant to Rule 12(b)(1), because the Eleventh. Amendment “is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Patsakis v. Greek Orthodox Archdiocese of America, 339 F.Supp.2d 689, 692 (W.D. Pa. 2004) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In a facial attack to subject matter jurisdiction, the court must consider the allegations of the complaint as true in the light most favorable to the plaintiff, similar to a motion to dismiss under Rule 12(b)(6). Mortensen, 549 F.2d at 891; In re Kaiser Group Int'l, Inc., 399 F.3d 558, 561 (3d Cir. 2005). However, when faced with a factual attack, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts [do] not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. In the case at bar, Defendants appear to be asserting a facial challenge, as evidenced by their Memorandum of Law in Support of the Motion to Dismiss, which assumes the facts alleged by Plaintiffs to be true. ECF No. 119.
As an initial matter, any claim against the named individual Defendants in their official capacities “is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). In this case, Defendants are employees of the Pennsylvania Department of Corrections (“DOC”). A claim against them in their official capacities is really a suit against the Pennsylvania DOC and is no different from a suit against the Commonwealth of Pennsylvania. And as noted by Defendants, the Eleventh Amendment bars claims against a State in federal court by private parties. Laskari v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981) (citing Alabama v. Pugh, 438 U.S. 781 (1978)). “Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it . . . a State cannot be sued directly in its own name regardless of the relief sought.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (citing Pugh, 438 U.S. at 781)). Eleventh Amendment immunity protects entities created by state governments that operate as alter egos or arms of the State. See Lake Country Estates v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 402 (1979). The United States Supreme Court has held that a § 1983 action brought against a “State and its Board of Corrections is barred by the Eleventh Amendment unless [the State] has consented to the filing of such a suit.” Pugh, 438 U.S. at 782. The Commonwealth of Pennsylvania has specifically reserved its right to immunity from suit in federal court pursuant to the Eleventh Amendment. 42 Pa. Cons. Stat. § 8521(b) (“Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”) Moreover, the United States Supreme Court has held that § 1983 does not override a State's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 342 (1979).
The Eleventh Amendment of the United States Constitution provides that:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens of Subjects of any Foreign State.U.S. Const. amend. XI.
Defendants further recognize that they are not immune from suit where the relief sought is prospective injunctive relief to end an ongoing violation of federal law. Laskaris, 661 F.2d at 26 (citing Ex Parte Young, 209 U.S. 123 (1908)). Plaintiffs seek an injunction to enjoin the named officials at SCI Forest from enforcing their alleged rules, regulations, custom, policies and practices of segregating vaccinated inmates from unvaccinated inmates and imposing heightened restrictions upon them. Although Plaintiffs argue that they are entitled to recover money damages that are “ancillary” to the injunctive relief, the money damages requested here are more akin to compensatory damages for past wrongs. See Edelman v. Jordan, 415 U.S. 651, 667-68 (1974) (money damages awarded as form of compensation for past wrongs of state officials barred by Eleventh Amendment where payments were not a necessary consequence of compliance in the future with a substantive federal determination). See also Graham v. Richardson, 403 U.S. 365 (1971) (Arizona and Pennsylvania welfare officials prohibited from denying welfare benefits to otherwise qualified recipients who were aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (New York welfare officials enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing). Here, Plaintiffs' claims for injunctive relief involve no monetary payments ancillary to injunctive relief. That is, they are not seeking monies being unlawfully withheld.
Defendants direct the Court to Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir. 2002) for the proposition that to overcome Eleventh Amendment immunity, a prisoner must plead the correctional institution had a policy, practice, or custom of deliberate indifference. ECF No. 122. In Grayson, however, the Third Circuit specifically noted that the pro se plaintiff did not dispute that his claims against the two Commonwealth defendants, Mayview State Hospital and SCI Camp Hill, were properly dismissed by the district court on Eleventh Amendment grounds. 293 F.3d at 107. Consequently, the Grayson court's discussion was focused only on the Allegheny County Jail, a county entity. Therefore, the Eleventh Amendment was irrelevant to its discussion on appeal.
In Phillips v. County of Allegheny, the United States Court of Appeals for the Third Circuit held that if a district court is dismissing a claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte “permit a curative amendment unless such an amendment would be inequitable or futile.” 515 F.3d 224, 245 (3d Cir.2008). Here, any attempt to amend this claim against the DOC officials in their official capacities for money damages would be futile as a matter of law.
Therefore, it is recommended that Defendants' Motion to Dismiss Plaintiffs' claims for money damages against the individual Defendants in their official capacities be granted.
2. Eighth Amendment claim
Defendants also move to dismiss Plaintiffs' Eighth and Fourteenth Amendment claims. First, Defendants argue that there can be no Fourteenth Amendment claim because “the Eighth Amendment is the more specific provision, rather than the Fourteenth Amendment's Substantive Due Process Clause, to address Plaintiffs' alleged cruel and unusual conditions of confinement claim, citing Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010). The Court agrees. The United States Supreme Court has established the “more-specific-provision rule” indicating that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (clarifying prior holding in Graham v. Connor, 490 U.S. 386 (1989)). Therefore, any claim for inhumane conditions of confinement brought under the Fourteenth Amendment Substantive Due Process Clause must be dismissed. Any attempt to amend would be futile as a matter of law.
Defendants also move for dismissal of the Eighth Amendment claim for inhumane conditions of confinement. The Eighth Amendment requires that prison officials provide adequate food, shelter, clothing, and medical care, and take reasonable measures to guarantee personal safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison conditions constitute cruel and unusual punishment if they result in serious deprivations of basic human needs. See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000).
In order to state an Eighth Amendment conditions of confinement claim, Plaintiffs must satisfy a two-prong analysis. First, Plaintiffs must allege facts to show that objectively, they were “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. The second part of the analysis is a subjective one. That is, Plaintiffs must allege facts that Defendant prison officials personally knew of the substantial risk to the inmate's health or safety and failed to “respond[] reasonably to the risk.” Id. at 844-45.
Here, Plaintiffs make no allegations that they were denied adequate food, shelter, clothing, and medical care. Instead, they allege numerous details of reasonable measures taken to protect their personal safety from the COVID 19 pandemic. Objectively, none of the measures of which Plaintiffs complain rise to the level of inhumane conditions of confinement. “Prison conditions may be ‘restrictive and even harsh ....'” Id. at 833 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). But segregating unvaccinated from vaccinated inmates does not state a cognizable claim pursuant to the Eighth Amendment. See Spellman v. John Doe Secretary, Civil Action No. 3:22-0069, 2023 WL 2666694, at *3 (M.D. Pa. March 28, 2023) (Segregating unvaccinated from vaccinated inmates is “an eminently reasonable course of action to protect against the spread of the [COVID 19] virus.”)(collecting cases); Walker v. Sorber, No. 21-CV-3477, 2022 WL 4586137, at *5, 7 (E.D. Pa. Sept. 29, 2022) (segregating unvaccinated from vaccinated inmates warranted to prevent large-scale outbreak of COVID 19).
Second, Plaintiffs must show that the prison authorities acted with deliberate indifference to the above-described conditions. See Farmer, 511 U.S. at 844. Plaintiffs make no such claims on the face of the Amended Complaint. Conversely, they allege that SCI Forest implemented numerous measures to protect unvaccinated inmates. Defendant officials who respond reasonably to a risk of harm, even if the harm is not ultimately averted, will not be found to violate the Eighth Amendment. Id. Instead, the duty of prison officials under the Eighth Amendment is to ensure “reasonable safety.” Id. That is, “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Id. at 845. As such, Plaintiff has also failed to raise a reasonable expectation that discovery will reveal that the prison officials acted with deliberate indifference in light of the measures that were implemented to protect unvaccinated inmates. These measures include restricting their movements throughout the prison, denying contact visits, and shortened day room and yard privileges. Accordingly, the Court finds that Plaintiff has failed to state a claim upon which relief can be granted under the Eighth Amendment based upon inhumane conditions of confinement. Therefore, the Court recommends that any such claim be dismissed with prejudice. Any attempt to amend would be futile as a matter of law.
3. Equal Protection: Count II
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. Plaintiffs aver that Defendants' policies and practices that bar certain inmates from accessing programs and privileges available to others violates the Equal Protection Clause. ECF No. 104 ¶ 44.
In support of their Motion to Dismiss, Defendants argue that separating vaccinated from unvaccinated inmates is rationally related to legitimate penological interests: preventing the spread of the virus throughout the DOC facility.
The Equal Protection Clause directs that all persons similarly situated be treated alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 201, 216 (1982)). It protects a plaintiff from: (1) a law or government action that substantially burdens a fundamental constitutional right; or (2) discrimination based upon membership in a protected class such as race, national origin, or gender. See, e.g., City of Cleburne, 473 U.S. at 340-41. Therefore, if the differential treatment involves a protected classification such as race, the government must have a compelling reason for the differential treatment. Id. at 440.
Because the alleged unequal treatment here involves vaccinated versus unvaccinated prison inmates, the facts do “not implicate a suspect or quasi-suspect class, [and] the state action here is presumed to be valid and will be upheld if it is ‘rationally related to a legitimate state interest.'” Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000) (quoting City of Cleburne, 473 U.S. at 440). “[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).
Defendants here have a legitimate penological interest in keeping inmates safe from the COVID-19 virus. As noted by other courts in this circuit, “[s]eparating those inmates who are unvaccinated, and thus more susceptible to a COVID-19 infection, from those who are vaccinated, and thus less susceptible to a COVID-19 infection, is rationally related to that goal.” Spellman, 2023 WL 2666694, at *4 (citing Jones v. Cnty. of Allegheny, No. 21-cv-1094, 2022 WL 2806779, at *7 (W.D. Pa. June 24, 2022)); see also Walker, 2022 WL 4586137, at *8. As suggested by Plaintiffs, the fact that unvaccinated inmates may choose to remain unvaccinated for various reasons, including religious and medical reasons, does not invalidate the legitimate state interest in keeping as many inmates safe from the COVID-19 virus as possible.
Therefore, Plaintiffs have failed to allege a violation of the Fourteenth Amendment Equal Protection Clause. Any attempt to amend would be futile.
4. Fifth and Fourteenth Amendments: Count III
As noted by Defendants and conceded by Plaintiffs, the Fifth Amendment claim must fail. The named Defendants are state officials and employees. The Due Process Clause of the Fifth Amendment applies only to federal officials. Bergdoll v. City of York, 515 Fed.Appx. 165, 170 (3d Cir. 2013) (citing Nguyen v. U.S. Cath. Conf., 719 F.2d 52, 54 (3d Cir. 1983)). Therefore, Defendants' Motion to Dismiss Plaintiffs' Fifth Amendment claim should be granted. Any attempt to amend would be futile as a matter of law.
Count III also includes a Fourteenth Amendment claim for violation of Plaintiff's Fourteenth Amendment procedural due process rights as pertaining to an alleged state-created liberty interest concerning their conditions of confinement. Amended Compl., ECF No. 104 ¶¶ 53-57. Defendants have not moved to dismiss on this claim. Therefore, this claim remains.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendants Wetzel, Oberlander and Irwin (ECF 118) be granted. Plaintiffs' claims for violation of procedural due process concerning an alleged liberty interest remains. Plaintiffs' claims against Defendants in their official capacities for prospective injunctive relief, rather than money damages, also remains.
Defendants did not move to dismiss this claim. See discussion, supra, at II.C.4.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.