Opinion
3:20-cv-173-SLH-KAP
05-14-2021
HARVEY SCOTT, Plaintiff, v. JOHN WETZEL, et al. Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
The complaint should be dismissed in part and ordered served in part, without prejudice to defendants raising any appropriate objection to the joinder of unrelated claims in one complaint. Federal Rule of Civil Procedure 20(a)(2) permits joinder of defendants in a single action when: “(A) any right to relief is asserted against [the defendants] jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action.” That joinder rule is not a license to pack unrelated claims and defendants into one lawsuit. See Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir.2007); Whitehead v. Wetzel, 2015 WL 4662563 at *1-2 (W.D. Pa. Aug. 6, 2015).
Report
Since plaintiff is proceeding in forma pauperis, 28 U.S.C.§ 1915(e)(2) commands:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
Also applicable to this case is 28 U.S.C.§ 1915A, which commands that:
(a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental 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.
The complaint alleges that plaintiff's civil rights were violated when plaintiff was an inmate at S.C.I. Somerset:
On September 15, 2018, plaintiff was approached in the yard by corrections officer Sepulveda, who asked plaintiff if was in possession of contraband. ECF no. 6 ¶ 35. Plaintiff replied that he was not. Id. Officers Whitacre and Gerber came over and surrounded plaintiff. Id. Sepulveda told plaintiff to walk with them to the field house to be strip searched for contraband. Id. Plaintiff complied. Id. While en route, without warning, Whitacre pepper sprayed plaintiff. Id. ¶ 36. An officer then told plaintiff to lie on the ground, which he did. Id. ¶ 37. There, plaintiff was searched for contraband, but none was found. Id. During this time, Sepulveda “jammed” plaintiff's finger, injuring it. Id. ¶ 38. Plaintiff was handcuffed and transported to medical, where he washed out his eye and was assessed by medical staff. Id. ¶¶ 38-39. He had scrapes and bruises from being roughly handled. Id. ¶ 39. Plaintiff was then transported to the RHU, where he was strip searched. Id. ¶ 40. No contraband was found. Id. That night, plaintiff was given a misconduct report generated by Sepulveda, for one charge of refusing to obey an order. Id. ¶ 41.
While in the RHU, plaintiff had constant problems with severe pain in his finger and irritation from the pepper spray. Id. ¶ 42. Later, “medical” told plaintiff that “the damage” was permanent. Id.
After his arrival in the RHU, plaintiff was taken to a room to inventory his property for storage. Id. ¶ 44. When plaintiff arrived in the room, his property was already spread all over a table. Id. During the inventory, plaintiff found that multiple items were missing, including personal photos, food items, a Bible and clothing. Id. ¶ 45. Corrections officers Roundtree and John Doe denied knowing the whereabouts of plaintiff's missing property. Id. Plaintiff informed Roundtree that he intended to file a grievance concerning the missing property. Id. ¶ 46. Roundtree then admitted to having plaintiff's pictures. Id. He told plaintiff to fill out an envelope and he would have the pictures mailed to plaintiff's desired address. Id. Plaintiff did as instructed but the pictures were never sent or received.
At his disciplinary hearing, plaintiff pled not guilty and asked that the hearing examiner view the “camera” to see that he was compliant and pointed out that the misconduct does not mention the order that he allegedly refused to follow. Id. ¶ 47. The hearing examiner dismissed the charges without prejudice for the officer to further explain the order that plaintiff refused. Id. Sepulveda did not rewrite the misconduct. Id.
Plaintiff was released from the RHU after 8 days. Id. ¶ 48. Upon his exit from the RHU and his receipt of his property, corrections officer John Doe #2 made plaintiff wear the clothes in which he was pepper sprayed. Id. Doe #2 stated that if plaintiff did not do so, he would go back in the RHU cell he came out of. Id. Plaintiff complied although it caused him severe pain. Id.
A few days later, plaintiff saw Sepulveda on the East Walk. Id. ¶ 49. Sepulveda told plaintiff he thought he saw plaintiff with a black baggie on the day he was pepper sprayed. Id. He asked plaintiff if he had had contraband that day; plaintiff told him, “no.” Id. Sepulveda told plaintiff that he had no idea why Whitacre pepper spayed plaintiff. Id.
On September 26, 2018, plaintiff filed a grievance related to the above-described incident. Id. ¶ 50. Corrections officer Turner initially handled the grievance as an allegation of abuse that required investigation. Id. However, Turner refused to question plaintiff's witnesses. Id. Turner found the claim of abuse to be unsubstantiated. Id. Plaintiff's grievance was denied at all levels of appeal, by Superintendent Tice and the chief grievance officer. Id.
On January 24, 2019, plaintiff attempted to attend a scheduled basketball game for which he was approved, but he was refused by corrections officer Gooden and an unidentified sergeant. Id. ¶ 51. Gooden started using profanity and issuing threats. Id. Gooden also handed plaintiff a note in the dayroom that said, “You don't know how the fuck I am.” Id. Plaintiff withdrew and returned to his cell. Id. Gooden allowed other inmates to attend but refused plaintiff. Id. Plaintiff believes that Gooden acted in retaliation for the grievance filed in September 2018, which was then still active. Id. Another inmate confirmed plaintiff's suspicion as to Gooden's motive. Id.
The next morning, plaintiff filed a grievance and spoke to the Unit Manager about Gooden. Id. ¶ 52. He showed her the note and she sent him to the security office. Id. At the security office, plaintiff spoke with Lt. Swank. Id. Swank told plaintiff to leave the grievance against Gooden alone and threatened to send plaintiff to the RHU. Id. Plaintiff left the incident alone. Id. Swank moved plaintiff to another block, although plaintiff did not want to move. Id. Plaintiff did not receive a response to his grievance against Gooden. Id. He did not file a grievance against Swank for fear of retaliation. Id.
A few days before September 13, 2019, officers forced plaintiff to take a cellmate who had just been released from the RHU for drug misconducts. Id. ¶ 53. Plaintiff protested, but a sergeant told plaintiff he had to take the cellmate. Id.
On September 13, 2019, officers conducted a search of plaintiff's cell. Id. ¶ 54. They confiscated some half-smoked cigarette “buds” and miscellaneous papers. Id. Later, they returned the papers, but issued both cellmates misconducts, stating that the buds tested positive for “K2.” Id. Both cellmates were given drug tests before their disciplinary hearings. Id.
At plaintiff's cellmate's hearing, he admitted that the contraband was his, not plaintiff's. Id. ¶ 56. The cellmate was sentenced to 60 days in the RHU. Id. At plaintiff's subsequent hearing, plaintiff objected to the hearing on the basis that more than seven business days had elapsed since the misconduct reports had been issued. Id. ¶ 57. Plaintiff's objection was not successful. Id. Plaintiff pled not guilty and sought to call his cellmate as a witness, explaining that the cellmate had already admitted that the contraband was his. Id. The hearing examiner denied this request. Id. Plaintiff then asked to view the lab results on the cigarette buds but was denied. Id. Plaintiff also sought to call a witness who had seen the lab results but was denied. Id. Plaintiff gave a statement proclaiming his innocence, but he was found guilty of both possession of contraband and possession or use of a dangerous substance. Id. ¶¶ 57-58. Plaintiff was removed from his job, given 60 days in the RHU and 6 months of non-contact visits. Id. ¶ 58. He was also prohibited from seeing a visitor who was waiting during the hearing. Id. Corrections officer Barnette tried to interject on plaintiff's behalf at the hearing, but the hearing officer stated that the decision was written, and the hearing was over. Id.
Plaintiff was then strip searched by corrections officer Fleegle and an unidentified lieutenant. Id. ¶ 59. As Fleegle was transporting plaintiff to a block in the RHU, he commented on a tattoo he had seen on plaintiff's torso that said, “Destined to blow.” Id. Fleegle asked, “What's that about, sucking cock?” Id. Fleegle then took plaintiff to a small shower, instead of a cell, and locked plaintiff inside for over an hour. Id.
Barnette followed up with plaintiff after the hearing. Id. ¶ 60. She came to the RHU and told plaintiff she was going to help him. Id. However, after he spoke to her harshly and/or disrespectfully, she told him he had a “smart mouth” and that she was no longer going to help plaintiff. Id.
Fleegle returned to the block, removed the occupants from 9 cell and inserted plaintiff therein without the cell being cleaned. Id. ¶ 61. The cell smelled of urine and feces, was extremely dirty, and was cold. Id. Plaintiff was placed in the cell without sheets, a blanket, extra underwear, extra socks, and hygiene products. Id. Plaintiff later asked Fleegle for appropriate bedding and was told not to worry Fleegle with his problems. Id. Due to the dirty condition of the cell and the mattress, plaintiff developed a skin rash. Id. Plaintiff received bedding the next day from another officer. Id. For the next five days, Fleegle denied plaintiff a shower or additional sets of underclothes. Id.
Plaintiff told Whitacre, who was now the supervisor of the RHU, how he was being treated. Id. ¶¶ 63-64. Whitacre told plaintiff, “You'll get [a shower] when we decide to give you one!” Id. ¶ 64.
Plaintiff's cell light stopped working, making it hard for him to do legal work and write to his family. Id. ¶ 65. Fleegle did nothing in response to plaintiff's request. Id. On October 4, 2019, Fleegle allowed plaintiff's cellmate to take a shower but denied plaintiff a shower. Id. ¶ 66.
On October 7, 2019, plaintiff asked Fleegle for a grievance form and told him that he intended to submit a grievance for abuse. Id. ¶ 67. Plaintiff also requested that Fleegle preserve video footage that could corroborate his complaints. Id. In response, Fleegle called plaintiff a “pussy, ” and a “bitch, ” and said, “Do your time like a man!” Id. Plaintiff did not file the grievance. Id.
Plaintiff did attempt to report the ongoing issues to corrections officer Hay. Id. ¶ 68. Hay stated that he would “Never go against Fleegle.” Id.
Plaintiff also asked corrections officers Borstnar and Croyle for grievance forms so that he could report the ongoing issues, but they never brought them. Id. ¶ 69. Borstnar called plaintiff a “pussy” for trying to grieve abuse. Id.
On October 7, 2019, Fleegle refused to let plaintiff go to the yard after plaintiff had been strip searched specifically to go. Id. ¶ 70. Plaintiff's cellmate was permitted to go. Id. Fleegle also told plaintiff that he had a farm and commented that he wanted plaintiff to be his “slave” and work on the farm. Id. ¶ 71.
While in the RHU, plaintiff and his population cellmate wrote to Lt. Killinger, the Program Review Committee (“PRC”), and corrections officer J. Minor, explaining what happened with regard to the misconduct charges and the hearing. Id. ¶ 72. The PRC wrote back and instructed plaintiff to file an appeal from the misconduct hearing. Id. Plaintiff filed an appeal on September 24, 2019. Id. ¶ 73. It was denied on October 1, 2019 by the PRC. Id. Plaintiff appealed to Superintendent E. Tice. Id.
Before plaintiff received a response from Tice, on October 10, 2019, Minor, the RHU Unit Manager, came on the block to talk to plaintiff. Id. ¶ 74. Plaintiff explained to Minor the events that led to his placement in the RHU. Id. Minor stated that he would investigate the matter. Id. About an hour later, plaintiff was released from the RHU through action of the PRC. Id. He was credited with time served, i.e., 17 of the 60 days he had been sanctioned. Id. However, the misconduct remained on this record and he was still removed from his job and had six months of no-contact visits. Id. Minor advised plaintiff to tell his employer to call Minor for an explanation of the events. Id. ¶ 75. Minor also told plaintiff that, after his appeal came back, he should write to Houser, the deputy supervisor, that Minor supported the adjudication being dropped to a class II infraction. Id. ¶ 76.
On October 16, 2019, Tice denied plaintiff's appeal. Id. ¶ 77. Tice found it unlikely that both cellmates did not know the contraband was in their cell. Id. Plaintiff wrote to Houser but did not receive a response. Id. 78. Minor did speak to plaintiff's employer, who agreed to hire him back as soon as the misconduct was “fixed, ” but it never was. Id. Plaintiff appealed to the Chief Hearing Examiner, but received an automated response denying his appeal. Id. ¶ 79.
Before his release from the RHU, plaintiff filed a grievance concerning the hardships he experienced from Fleegle, Whitacre, Hay, Borstnar and Croyle in the RHU. Id. ¶ 80. The grievance was denied because it contained elements of the Prison Rape Elimination Act (“PREA”). Id. The PREA lieutenant, Vena, came to speak to plaintiff about his issues in the RHU. Id. After his release from the RHU, plaintiff refiled the grievance without the PREA elements. Id. ¶ 81. J. Minor was assigned as the Grievance Officer. Id. ¶ 82. Minor responded that plaintiff's allegations were either untrue or that the actions were taken for disciplinary purposes. Id. Minor's investigation was limited to asking the subjects of the grievance if they were guilty. Id. He refused plaintiff's request to check camera footage of the incidents. Id. The Grievance Officer denied the grievance. Id. Plaintiff appealed to Tice. Id. On behalf of Tice, Houser, deputy superintendent, remanded the grievance back to Minor, without explanation. Id. ¶ 83. Minor still refused to check the camera footage and denied the grievance again. Id. Plaintiff appealed and again and Tice remanded again, for reasons unknown. Id. Plaintiff did not receive Minor's response in a timely manner. Id. ¶¶ 83-85. Ultimately, the grievance appeal was denied by Tice. Id. ¶ 85. During the time for plaintiff to appeal to this denial, he was transferred to S.C.I. Phoenix. Id. ¶ 87. After his transfer, plaintiff was placed in the RHU without access to his legal work and thus was unable to timely appeal the grievance. Id. He did eventually appeal but the appeal was rejected. Id. He wrote a letter to the chief grievance officer seeking reconsideration, but he did not receive a response. Id.
On November 20, 2019, Somerset corrections officer Kauert began treating plaintiff differently than other inmates on the unit. Id. ¶ 88. Kauert refused to allow plaintiff to use phone slots previously assigned to him while allowing others to use the phone. Id. Kauert would open other inmates' cells during recreation but refused to open plaintiff's cell. Id. When plaintiff returned from the bathroom, his cell door was closed and remained closed while Kauert immediately unlocked another inmate's cell upon that inmate's return. Id. When plaintiff spoke to Kauert about the neglect he experienced, Kauert told plaintiff that he is the president of the union for correctional officers and it is his duty to have their backs. Id. ¶ 89.
When the inmates on plaintiff's unit were receiving passes to go to commissary, Kauert made plaintiff wait while he accommodated inmates who were behind plaintiff in line. Id. ¶ 90. Plaintiff eventually got his pass. Id. On the way to commissary, plaintiff saw Captain Smith and explained to him what was happening with Kauert. Id. ¶ 91. Smith told plaintiff he would look into it. Id. When plaintiff returned to the block, he told Kauert that he had spoken to Smith and he asked Kauert for a grievance form so that he could file a grievance based on Kauert's actions. Id. ¶ 92. About an hour later, plaintiff received a “fictitious” misconduct report authored by Kauert, alleging that plaintiff was engaging in or encouraging unauthorized group activity. Id. Kauert stated that he observed plaintiff encouraging a group of inmates around the officers' station to file mass grievances and remove the staff working on the unit in a loud and boisterous rant that continued after he was told to stop. Id. The allegations were untrue. Id.
The hearing examiner watched the camera footage and was “blown away” that the events described by Kauert did not occur. Id. ¶ 96. He dismissed the charge with prejudice. Id. Plaintiff then filed a grievance about Kauert's false misconduct charge. Id. ¶ 97. The grievance was rejected on the basis that he was not permitted to grieve “anything that happens with misconducts or misconduct hearings.” Id.
On January 7, 2020, plaintiff was on the phone, drinking water from a bottle, when two unidentified officers rushed into him. Id. ¶ 99. He was handcuffed while officers and the K-9 unit searched his cell and his person. Id. ¶ 100. No contraband was found, but one officer stated that he believed he saw plaintiff swallow something. Id. Plaintiff was scanned in a body scanner. Id. ¶ 101. Although some guards stated that nothing was visible on the scan and no guards stated otherwise, plaintiff was taken to the RHU. Id. There, he was strip searched. Id. ¶ 102. No contraband was found. Id. Whitacre then stated that plaintiff would be going to a “dry/hard cell.” Id. Plaintiff's underclothes were confiscated, and he was given a see-through outfit to wear, which exposed his rear end and genitals. Id. ¶ 103. Whitacre and Lindsay made plaintiff walk through occupied areas in the see-through outfit. Id.
Plaintiff was locked in the dry/hard cell, a small room under 24-hour watch by a camera and an officer with no access to a sink or working toilet or hygiene materials. Id. ¶ 98. He was handcuffed, shackled, placed in a cuffbag and left in 24-hour constant bright lights for five days, except for a total of 20 minutes of “recreation.” Id. He was restricted from contacting his attorney or his family, using the mail or the telephone. Id. He was also sexually harassed and refused PREA consultation. Id.
Corrections officer K. Turner explained to plaintiff that when he urinated or defecated, at least four people would be present, and he would be videotaped. Id. 105. He further explained that after plaintiff defecated three times, he would be re-scanned and if no contraband was visible, he would be released. Id. ¶ 106. If contraband was visible, he would be re-scanned until it was no longer visible or until the contraband was discovered. Id. Turner also informed plaintiff that the initial scan had been inconclusive. Id. ¶ 107. Plaintiff immediately refused to eat. Id. ¶ 105.
For the first 10-minute period of “recreation, ” Turner removed plaintiff's arms from the cuffbag and removed the handcuffs and allowed plaintiff to stretch his arms. Id. ¶ 108. Plaintiff remained shackled during this time. Id. Plaintiff told Turner that he intended to file a lawsuit in which Turner would be a part. Id. ¶ 109. Turner then asked plaintiff numerous questions about the lawsuit and seemed to get frustrated when he saw that plaintiff had taken all necessary preliminary steps. Id. ¶ 110.
Lindsay began coming every two hours, initially for recreation purposes. Id. ¶ 111. Plaintiff could not sleep due to the bright light and the staff coming every two hours. Id.
In an effort to avoid using the restroom in a room full of people, on the fourth day in the dry/hard cell, plaintiff defecated on himself. Id. ¶ 112. Plaintiff was then allowed to take a brief shower, but he was immediately returned to the handcuffs, shackles and cuffbag. Id.
Because he refused to eat, plaintiff was taken to another dry/hard cell under psychiatric observation. Id. ¶ 113. There, he spoke to Tice and deputy superintendent Caro. Id. Caro informed plaintiff that he would be released to population of he cleared the body scanner after three bowel movements. Id. ¶ 114. Caro also told plaintiff that he would consider overturning the misconduct discussed above. Id. Plaintiff agreed to eat, and Caro instructed the guard that plaintiff could have extra trays of food, if permitted by the medical staff. Id. Plaintiff ate and defecated three more times, each time with numerous people observing and Lindsay recording with a handheld camera in addition to the room camera. Id.
Lindsay made sexual comments to plaintiff about reminding him of his girlfriend. Id. ¶ 116. Twice when plaintiff was taken to the body scanner, Lindsay told “everybody” to clear the room, but he put them where they could still see plaintiff walking by in the see-through outfit. Id. During those scans, contraband or an unidentified object was seen. Id. ¶ 117. After his release from the dry/hard cell, Plaintiff wrote a PREA grievance against Lindsay. Id. ¶ 119. The grievance was denied, and no one came to talk to plaintiff about the PREA issues. Id. Plaintiff wrote to Vena, the PREA lieutenant, M. Pyle, an outside agency and spoke to an attorney about these issues, but ultimately nothing was done.
Lindsay eventually stopped coming to give plaintiff recreation. Id. A nurse who visited plaintiff during “recreation” stated that plaintiff had developed a fungus on his hands from sweating in the cuffbag. Id. ¶ 120.
When Lieutenant Urban was assigned to plaintiff, he did not use a handheld camera to videotape plaintiff using the bathroom. Id. ¶ 122. He was scanned again and the person monitoring the scan stated that the object they had been tracking was right at plaintiff's rectum and would come out the next time he used the bathroom. Id. ¶ 123.
That night, corrections officer Pile retrieved the handheld camera that Urban had left outside of the cell and watched the video that Lindsay had taken of plaintiff defecating. Id. ¶ 125. Plaintiff grieved this incident. Id.
After the eighth time plaintiff used the bathroom, he cleared the scanner. Id. ¶ 127. No contraband was discovered. Id. Urban told plaintiff that he would be sent back to population but because he had been sent to the POC, he would have to wait until a weekday to be discharged by a doctor. Id. ¶ 128. Plaintiff spent the next two days in the POC. Id. ¶ 129. This cell was also illuminated 24 hours a day and recorded by camera. Id. He was also still restricted from mail, telephone and visits. Id.
After the weekend, POC staff asked Turner if plaintiff could be returned to population, but Turner instructed them to send plaintiff to the RHU. Id. ¶ 130. A POC staff member told plaintiff that he believed Turner did not like plaintiff. Id.
Plaintiff was sent to the RHU on Administrative Custody (“AC”) status. Id. ¶ 131. Plaintiff did not receive notice of the reasons for AC placement for 17 days. Id. ¶ 132. He did not see the PRC for roughly three weeks. Id. These time periods were significantly longer than DOC policy dictates. Id. The PRC informed plaintiff that a transfer was being initiated and that staff was voting on it. Id. ¶ 133. Plaintiff received two “others” reports as to the reasons for his AC placement. Id. ¶ 134. The first, from Turner, alleged that an investigation was being conducted. Id. The second stated that plaintiff was being kept in the RHU for his safety. Id.
During a PRC hearing, a recommendation from Turner and Furman to transfer plaintiff was put forth. Id. ¶ 135. It was based on allegations that plaintiff had some type of contraband before he went to the dry/hard cell that he got rid of when he defecated on himself. Id. Plaintiff was denied a chance to argue on his behalf. Id. ¶ 136.
When plaintiff was taken back the RHU, his property was inventoried for RHU storage. Id. ¶ 139. Corrections officers Gibson and Hurtado confiscated plaintiff's property including shoes, glasses, magazine, food, legal paperwork and hygiene products, marking them to be destroyed. Id. Tice had instituted a policy that inmates entering the RHU could only use one footlocker and one box for RHU storage. Id. When plaintiff packed his belongings, he had to use some of that space for institutional property. Id. Further, although plaintiff was in the RHU on AC status, he was not permitted to retain or order any AC commissary for 49 days. Id. ¶ 141. When he received approval therefor, he was placed on disciplinary custody (“DC”) status the same day. Id. Whitacre was in charge of approving inmates for AC commissary. Id. Whitacre ignored or denied plaintiff's requests for AC commissary. Id. J. Minor, Whitacre's supervisor, also denied plaintiff's request. Id. Plaintiff was ultimately approved for AC commissary by the PRC.
On February 20, 2020, corrections officer Hurtado asked if another inmate could move in with plaintiff. Id. ¶ 145. Plaintiff said yes. Id. Hurtado, T. Williams and Lindsay brought another inmate to the cell. Id. Lindsay told plaintiff to cuff up and plaintiff allowed Lindsay to cuff him. Id. Lindsay then instructed plaintiff to move to the back of the cell, which plaintiff did. Id. The other inmate refused to enter the cell. Id. The next morning, plaintiff received another inmate as a cellmate. Id. ¶ 146. That night, Williams brought plaintiff a misconduct report, which Williams later admitted that Lindsay had forced him to write, stating that plaintiff had refused to take a cellmate. Id. ¶¶ 147-148.
At a disciplinary hearing on February 24, 2020, the examiner, S. Wiggins, denied all of plaintiff's requested witnesses, including Williams. Id. ¶ 148. He did read plaintiff's version of events and viewed the camera footage as plaintiff had requested. Id. ¶ 149. While the examiner was viewing the footage in a back room, Minor entered and walked to the back room. Id. Minor told plaintiff that he told the examiner to find plaintiff guilty and that Minor would talk to plaintiff later about plaintiff's grievances that he still had to write responses to. Id. When Wiggins returned, he stated that plaintiff had lied to him about cuffing up. Id. ¶ 150. Wiggins admitted that Minor had told him to find plaintiff guilty. Id. When plaintiff told Wiggins he would sue him, Wiggins replied that he did not care and that he knew how to make it appear that he did his job. Id. In plaintiff's case, he intentionally viewed the wrong part of the footage and based his decision on that. Id.
Plaintiff appealed to the PRC, but the appeal was denied. Id. ¶ 151. Plaintiff appealed to the superintendent but did not receive a response and has since been transferred. Id. Upon inquiry by plaintiff, Tice denied receiving the appeal. Id.
On February 27, 2020, under the guise that Minor wanted to speak to them, officers handcuffed plaintiff and his cellmate, locked them in separate showers and strip searched them while Pile trashed their cell and threw plaintiff's legal work everywhere. Id. ¶ 152. Corrections officer Mishler filed a false misconduct report against plaintiff. Id. Later, Mishler and Pile stated that they took these actions at the instruction of Whitacre. Id. The misconduct was later dismissed. Id. Numerous belongings were taken from plaintiff's cell. Id. Plaintiff filed a grievance. Id.
On March 11, 2020, Pile and his brother, also a corrections officer named Pile, refused plaintiff breakfast. Id. ¶ 153. Pile said, “Fuck you!” as he passed by. Id. Plaintiff filed a grievance. Id.
Plaintiff filed multiple grievances that were referred to Vena, the PREA lieutenant. Id. ¶¶ 154-155. Vena came only once to talk to plaintiff, in reference to a grievance against Fleegle. Id. ¶ 154. Vena ignored requests from plaintiff concerning issued with Pile and Lindsay. Id. ¶ 155. The CCPM at Somerset ignored plaintiff's requests. Id.
On March 26, 2020, plaintiff was transferred to S.C.I. Phoenix, ostensibly for his safety. Id. ¶ 156. However, Minor told plaintiff that the supervisors wanted plaintiff out of Somerset due to all of the grievances he filed. Id. None of plaintiff's grievances were deemed to be frivolous, but approximately 40 were denied and none were approved. Id. Plaintiff remained in the RHU at Phoenix until roughly May for reasons that are unclear. Id.
Plaintiff asserts the following specific claims. To the extent that plaintiff lists various and sundry additional names of purported claims, without explanation, at the end of the specified ones, the Court will not entertain them.
Whitacre
Against Whitacre, plaintiff specifically asserts claims of excessive force, denial of equal protection, retaliation, cruel and unusual punishment, as well as violation of the rights of redress and due process. Id. ¶¶ 158-167.
Plaintiff's allegations that Whitacre made an unprovoked attack with pepper spray are sufficient to support a claim of excessive use of force. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (use of force “maliciously and sadistically for the very purpose of causing harm” violates the Eighth Amendment). Plaintiff does not allege facts that support an independent equal protection claim.
Plaintiff's claims of retaliation and violation of the right to petition for redress of grievances are redundant. He claims that Whitacre both retaliated against him and ignored retaliation by others. The three elements of a retaliation claim are: (1) that the plaintiff took some action itself protected by the constitution; (2) that the defendant took adverse action against the plaintiff sufficient to deter a person of ordinary firmness from persisting in his conduct; and (3) that there was a causal connection between the plaintiff's protected conduct and the adverse action. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003).
Plaintiff's allegations that Whitacre ignored retaliation by others fail to allege any breach of duty by Whitacre, but allegations that Whitacre himself denied plaintiff access to commissary, instructed Pile to trash his cell, and instructed Mishler to falsify a misconduct retaliation for plaintiff filing grievances are sufficient to support a plausible claim of retaliation at this early stage of the case.
Plaintiff also claims that Whitacre violated his Eighth Amendment right to be free from cruel and unusual punishment when he forced plaintiff to expose himself to onlookers in the see-through outfit. As the Court of Appeals has explained:
The Eighth Amendment “prohibits any punishment which violates civilized standards and concepts of humanity and decency.” Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992), superseded by statute on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000) (citations omitted). To prevail against prison officials on a claim that an inmate's conditions of confinement violated the Eighth Amendment, the inmate must meet two requirements: (1) “the deprivation alleged must be, objectively, sufficiently serious, ” and (2) the “prison official must have a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citations omitted). The first element is satisfied when an inmate is deprived of “the minimal civilized measure of life's necessities.” Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The second element is satisfied when an inmate shows that prison officials acted with deliberate indifference to the inmate's health or safety or conditions of confinement that violated the inmate's constitutional rights. Id. at 302-03.Thomas v. Tice, 948 F.3d 133, 138 (3d Cir.2020). No Eighth Amendment claim is stated: a temporary deprivation of privacy due to the clothing used for prisoners assigned to a dry cell does not rise to the level of an objective deprivation of life's necessities.
Finally, plaintiff claims that Whitacre violated his right to due process of law when Whitacre instructed Pile to deprive plaintiff of his personal property, Pile confiscated this property and did not provide a confiscation slip and thus there was no way for plaintiff to challenge the confiscation. “The elements of this claim require establishing that: (1) the person was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of life, liberty, or property, and (2) the procedures available . . . did not provide due process of law.” Swinka Realty Invs. LLC v. Lackawanna Cnty. Tax Claim Bureau, 688 Fed.Appx. 146, 149 (3d Cir.2017) (citations, brackets and quotation marks omitted). Adequate post-deprivation remedies for lost or destroyed property (including by grievance under DC-ADM 804) are sufficient to provide due process, and the claim that plaintiff, though able to file numerous grievances, could not use the grievance process for this purpose are simply not believable.
Sepulveda
Against Sepulveda, plaintiff specifically asserts claims of excessive force, denial of equal protection, violation of due process, and violation of right to peaceful assembly. ECF no. 6 ¶¶ 168-172.
Plaintiff asserts that Sepulveda used excessive force when he “jammed” plaintiff's finger, resulting in permanent ligament damage. At this stage, plaintiff has supported this claim with sufficient allegations. Plaintiff's equal protection claim is redundant.
Plaintiff further asserts that Sepulveda violated plaintiff's right to due process when he falsified a misconduct against plaintiff and plaintiff spent eight days in the RHU. A false misconduct report that leads to the imposition of disciplinary action does not in and of itself trigger the protection of the Due Process Clause. See Sandin v. Conner, 515 U.S. 472, 486 (1995) (concluding that administrative or disciplinary action does not establish “atypical” deprivation of prison life necessary to implicate a liberty interest). This claim should be dismissed.
Plaintiff alleges no facts whatsoever to support a claim that Sepulveda violated his right to free assembly by approaching plaintiff to check for suspected contraband while plaintiff was sitting on the ground in the yard. This claim should also be dismissed.
Gerber
Against Gerber, plaintiff asserts a claim of failure to intervene based on Gerber's failure to stop Whitacre and Sepulveda from using excessive force against plaintiff. ECF no. 6 ¶¶ 173-174. A claim for failure to intervene in another's use of excessive force requires a plaintiff to show: (1) the defendant failed or refused to intervene when a constitutional violation took place in his or her presence or with his or her knowledge; and (2) there was:a realistic and reasonable opportunity to intervene.” Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002). A generous reading of plaintiff's allegations would support a plausible claim against Gerber for failure to intervene.
Roundtree and John Doe #1
Against Roundtree and John Doe #1, plaintiff asserts a violation of his right to due process of law and denial of equal protection stemming from their seizure of plaintiff's personal property without a confiscation slip or opportunity to contest the seizure. ECF no. 6 ¶¶ 175-177. As above, the lack of allegations that post-deprivation remedies were unavailable makes this claim inadequate, and the equal protection claim is merely a repetition of the due process claim. Both claims should be dismissed.
Additionally, as to the John Doe defendant, the claim is inadequate for the further reason that plaintiff does not allege that he had any role in seizing plaintiff's property, only that John Doe denied knowledge of the property's whereabouts after plaintiff discovered it was missing. Id. ¶ 45.
John Doe #2
Plaintiff asserts that John Doe #2 violated his Eighth Amendment right to be free from cruel and unusual punishment when he forced plaintiff to wear clothes contaminated with pepper spray in order to be released from the RHU. Id. ¶ 188. Plaintiff has leave to amend his complaint to name this defendant if he determines his identity during discovery. Rule 10(a) of the Federal Rules of Civil Procedure requires the plaintiff to name all the party defendants in the caption to the original complaint. There is no provision in Rule 10 or in the Rules generally that expressly permits or prohibits the use of fictitious names for defendants. The customary rule is to permit John/Jane Doe defendants until the defendant is sufficiently identified to permit service of process. A time limit is appropriately placed on this process requiring the plaintiff to identify the defendants by the end of the discovery period. See generally Stratton v. City of Boston, 731 F.Supp. 42, 45 (D. Mass. 1989) citing 2A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice ¶10.02 (2d ed.1989), and Saffron v. Wilson, 70 F.R.D. 51, 56 (D.D.C. 1975).
Gooden
Against Gooden, Plaintiff asserts claims of retaliation, denial of equal protection and violation of his Eighth Amendment right to be free from cruel and unusual punishment stemming from the Gooden's actions in refusing plaintiff entrance to basketball game and writing plaintiff a threatening note. ECF no. 6 ¶¶ 190-193. The punishments do not rise to the level of “cruel and unusual” and the claim that Gooden's actions, taken on January 24, 2019, were in retaliation for a grievance plaintiff filed on September 26, 2018 which did not involve Gooden, see Id. ¶¶ 50-51, do not allege either a meaningful adverse action or a plausible causal connection between the two events. All claims against Gooden should be dismissed.
S. Wiggins
Against Wiggins, plaintiff asserts claims of denial of equal protection, retaliation, denial of due process and conspiracy stemming from Wiggins' actions at plaintiff's disciplinary hearings on September 23, 2019, and February 24, 2020. Id. ¶¶ 194-205. As with the other defendants, the equal protection claim is merely redundant to the due process claim. Even when the sanctions imposed lengthen the inmate's sentence the procedural protections that are due to a prison inmate in a disciplinary hearing are far less than the due process protections afforded to a criminal defendant standing trial. Wolff v. McDonnell, 418 U.S. 539, 556, 563-67 (1973). Plaintiff's alleged denial of an opportunity to present witnesses at both hearings, see ECF no. 6 ¶¶ 57, 148, when neither hearing lengthened the term of his sentence, does not allege a plausible due process claim. See Sandin v. Conner, supra.
Plaintiff alleges no causal connection to support a retaliation claim concerning the first hearing. However, as to his claims of conspiracy and retaliation concerning the second hearing, he asserts that J. Minor met with Wiggins in a back room during the hearing and that after that meeting, Minor informed plaintiff that he told Wiggins to find plaintiff guilty and that he would talk to plaintiff later about all of the grievances he had been filing. Id. ¶ 202. At this stage, these allegations are sufficient to support claims of retaliation and conspiracy.
Fleegle
Plaintiff asserts claims against Fleegle for retaliation, violation of equal protection and violation of the Eighth Amendment right to be free from cruel and unusual punishment. Id. ¶¶ 205-208. These claims are based on:
. . . when [Fleegle] denied [plaintiff] placement in a cleaned sanitary cell, denied him sheets, blankets, undercloth[e]s, recreation, showers, lighting, hygiene and made sexual comments toward Plaintiff. These conditions and actions against Plaintiff, collectively viewed, for an overall period of 17 days violated his 8 Amendment right. (see paragraphs 59-71)[.]Id. ¶ 205. Plaintiff further alleges that the actions listed above were done in retaliation for his filing of grievances. Id. ¶ 207. At this stage of the case, there are insufficient allegations to support a plausible claim for violation of the Eighth Amendment, but the allegations are sufficient to support a claim for retaliation. As with the other defendants, plaintiff alleges no independent equal protection claim.
and 14
Borstnar, Hay and Croyle
Against these defendants, plaintiff asserts that they were deliberately indifferent to the retaliation and cruel and unusual punishment plaintiff suffered at the hands of Fleegle and Whitacre. Id. ¶¶ 209-210. Plaintiff's allegations concerning these defendants are insufficient to support this claim. See id. ¶¶ 68-69. At best, these defendants failed to aid plaintiff in his efforts to report “ongoing issues.” Plaintiff does not allege what these defendants knew or were told about the “issues” or why they had a duty to help him in his grievance efforts. The claim against these defendants should be dismissed.
Kauert
Against Kauert, plaintiff asserts claims of retaliation and denial of equal protection. Id. ¶¶ 211-212. Plaintiff alleges that Kauert falsified a misconduct against plaintiff and treated him differently than other inmates, by denying plaintiff phone calls, access to his cell and opportunities to use the bathroom when those same things were granted to other inmates, in retaliation for plaintiff's filing of grievances. At this stage of the case, the allegations of Kauert's disparate treatment are sufficient to support a plausible retaliation claim.
Pile (and Pile)
Against Pile, plaintiff asserts claims of cruel and unusual punishment, retaliation and violation of due process. Id. ¶¶ 215-218. The claim of cruel and unusual punishment is based on plaintiff's allegation that Pile repeatedly watched a video of plaintiff defecating while he was in the dry/hard cell. How this action constituted punishment of any kind is not clear but if this action could constitute a basis for an Eighth Amendment claim, in order to violate the Cruel and Unusual Punishments Clause, a prison official must have a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994), and there is no allegation that Pile had any such state of mind or that he watched the video for any non-penological reason.
As to the retaliation claim, plaintiff alleges the Pile and his brother (also Pile) refused him breakfast on March 11, 2020, which was “clear retaliation.” ECF no. 6 ¶ 153. He does not allege what the refusal was in retaliation for. There is insufficient support for this claim either.
The due process claim, based on a search conducted by Pile on February 27, 2020, during which numerous belongings were taken from plaintiff's cell, see id. ¶ 152, is insufficient. Why post-deprivation remedies for lost or destroyed property (including by grievance under DC-ADM 804) are not adequate is not something plaintiff attempts to allege.
K. Turner and Furman
Against these defendants, plaintiff asserts equal protection and due process claims, as well as claims of retaliation and cruel and unusual punishment. Id. ¶¶ 219-221.
Plaintiff's claims are based on these defendants placing him in administrative custody without a timely “others report, ” which deprived plaintiff of the ability to challenge his custody. As with the claim against Sepulveda, Sandin v. Conner, supra, dictates that administrative or disciplinary action that does not establish “atypical” deprivation of prison life necessary to implicate a liberty interest does not trigger due process protections. Because placement into administrative custody is not such an atypical deprivation, the due process claim should be dismissed, and plaintiff alleges no independent equal protection claim, either.
Plaintiff baldly asserts that these defendants placed him in the RHU based on his prior filing of grievances. The conclusory assertion of a retaliatory motive on the part of these defendants is insufficient to support a claim. The cruel and unusual punishment claim that is based on plaintiff's placement in the RHU is also insufficient.
Lindsay, K. Turner, Eric Tice, Furman, D. Caro, J. Minor, M. House, J. Shaefer, J. Tiller and Pyle
Plaintiff asserts that these defendants “violated [his] 1, 8
Amendment rights secured by the U.S. Constitution when, for 5 straight days, Plaintiff was undoubtedly tortured by these staff. The member of the PRC and Defendant E. TICE being liable for being deliberately indifferent.” Id. ¶ 222. Plaintiff then lists the events that occurred when he was in the dry cell, concluding, “Plaintiff was sexually harassed, refused PREA consultation and deprived equal protection rights. All of thes[e] issue taken in the light collectively amount to cruel and unusual punishment.” Id. (citing id. ¶¶ 99130).
Plaintiff makes no effort to provide nonconclusory statements of fact, or to identify the personal involvement of these defendants in any aspect of his generalized assertions of wrongdoing. Accordingly, no plausible claim is asserted against any of these defendants.
M. Houser, J. Shaefer, D. Caro, M. Pyle and J. Minor
Plaintiff asserts claims of denial of equal protection and due process as well as an Eighth Amendment claim stemming from the failure of these defendants, members of a Program Review Committee at the prison, to conduct a hearing within 7 days of plaintiff's placement in AC. Id. ¶¶ 223-224. Plaintiff further asserts a claim of retaliation and denial of equal protection against these defendants for sending him to another prison based on the many grievances he filed at Somerset. Id. ¶ 225. As set forth above, plaintiff's placement in administrative custody is not an action that triggers due process protections. The due process claim should be dismissed.
Plaintiff's claim that these defendants elected to transfer him because he filed grievances is insufficient because a transfer is not an unusual event and does not per se constitute the adverse action necessary to constitute the second element of a retaliation claim. No independent equal protection or Eighth Amendment claim is alleged either.
J. Minor, Whitacre and E. Tice
Plaintiff asserts claims of retaliation and denial of equal protection against these defendants for their roles in excluding him from using the commissary when he was entitled to do so. Id. ¶¶ 226-228.
In the factual allegations supporting these claims, id. ¶¶ 140-144, plaintiff makes no allegation of E. Tice's involvement. These claims should be dismissed against him. As to J. Minor and Whitacre, plaintiff alleges that they refused to approve his requests to utilize AC commissary in retaliation for his filing of grievances. Id. ¶¶ 141-142. At this stage of the case, these allegations support a plausible claim for retaliation. Plaintiff has not alleged an independent equal protection claim against these defendants: only the retaliation claim should proceed against J. Minor and Whitacre.
Lindsay
Plaintiff asserts that Lindsay acted in retaliation and violated plaintiff's due process rights when he instructed T. Williams to file a false misconduct against plaintiff. Id. ¶ 229. A generous reading of the complaint allegations cited by plaintiff in support of these claims (id. ¶¶ 145-151) indicates that plaintiff is alleging that Lindsay acted in retaliation for the grievance and PREA complaint that plaintiff filed against him. Id. ¶ 145. This allegation is sufficient to support a plausible claim for retaliation. No independent due process claim should proceed.
T. Williams
Plaintiff asserts that T. Williams acted in retaliation when he falsified a misconduct against plaintiff. Id. ¶¶ 231-231 (both paragraphs are numbered 231). However, the complaint allegations reflect that T. Williams acted on the orders of Lindsay and not for retaliatory reasons. Id. ¶ 147. That allegation is the basis for the claim of retaliation against Lindsay. This claim should be dismissed.
J. Minor
Plaintiff alleges claims of retaliation, denial of equal protection and conspiracy against J. Minor based on Minor's intrusion into plaintiff's disciplinary hearing and subsequent conference with Wiggins, the hearing examiner, after which plaintiff was found guilty. Id. ¶¶ 232-233 (citing Id. ¶¶ 148-151).
As with the related claims against Wiggins, one claim of retaliation and conspiracy is plausible at this stage of the case. There is no independent equal protection claim alleged.
Vena
Plaintiff alleges claims of cruel and unusual punishment, denial of equal protection and deliberate indifference based on Vena's failure to address plaintiff's concerns of sexual abuse. Id. ¶¶ 234-235 (citing id. ¶¶ 154-155). Plaintiff's allegations against Vena are insufficient because it is not sufficient merely to allege plaintiff made complaints that went unaddressed: it is necessary that there be a plausible factual claim that Vena believed and with deliberate indifference ignored plaintiff's complaint. No equal protection claim is alleged and no action by Vena can be construed as imposing cruel and unusual punishment.
John Wetzel
Finally, plaintiff asserts claims against John Wetzel, the Secretary of the Pennsylvania Department of Corrections, for a multitude of reasons and under multiple theories. Id. ¶¶ 236-240. However, no claim is stated against Wetzel because his personal involvement is not alleged and there is no respondeat superior liability for civil rights claims. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005). All claims against Wetzel should be dismissed.
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” I cannot say that it would be futile for plaintiff to amend his complaint.
Pursuant to 28 U.S.C.§ 636(b)(1), plaintiff can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See 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). Plaintiff can, within the same time, both amend his complaint and file objections. If he chooses not to amend the complaint or file objections the case will go forward on the claims identified as sufficient at this stage.