Opinion
Civil Action No. 18-1008
10-17-2018
ROBERT WASHINGTON, Plaintiff, v. MURPHY, SUPERINTENDENT ROBERT GILMORE, KERI MOORE, and TRACY SHAWLEY, Defendants.
Judge Nora Barry Fischer/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Complaint be dismissed pre-service pursuant to the Prison Litigation Reform Act ("PLRA") for failure to state a claim upon which relief can be granted.
II. REPORT
Robert Washington ("Plaintiff") is currently a convicted prisoner, serving a sentence of incarceration at the State Corrections Institution in Greene ("SCI-Greene"). He has filed a civil rights Complaint, naming four defendants, all of whom are employees of the Pennsylvania Department of Corrections ("DOC"), alleging that events which took place at SCI-Greene violated his constitutional rights. For the reasons that follow, the Complaint should be dismissed pre-service for failure to state a claim upon which relief can be granted pursuant to the screening provisions of the PLRA.
A. STANDARD OF REVIEW
Because Plaintiff is a prisoner who has been granted IFP status, ECF No. 6, and/or because Plaintiff sues government employees, and/or because Plaintiff sues concerning prison conditions, the screening provisions of the PLRA apply. See 28 U.S.C. § 1915(e) ("[n]otwithstanding any filing fee, or any portion thereof, that may have been paid [by a prisoner granted IFP status], 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."); 28 U.S.C. § 1915A ("[t]he 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."). See also 42 U.S.C. § 1997e.
In performing the Court's mandated function of sua sponte review of complaints under 28 U.S.C. §§ 1915(e) and 1915A and 42 U.S.C. § 1997e to determine if they fail to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Brodzki v. Tribune Co., 481 F. App'x 705 (3d Cir. 2012) (applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)); Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008) ("the legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915A is identical to the legal standard employed in ruling on 12(b)(6) motions."); Montanez v. Pa. Health Care Service Staffs, Civ. A. No. 09-1547, 2011 WL 7417026, at *2 (W.D. Pa. Dec. 14, 2011), report adopted by, 2012 WL 602938 (W.D. Pa. Nov. 23, 2012).
As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under this standard, the court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994) abrogation on other grounds as recognized in, Rotkiske v. Klemm. 890 F.3d 422, 428 (3d Cir. 2018). Moreover, under the 12(b)(6) standard, a "court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). The court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
B. PLAINTIFF'S COMPLAINT AND PROCEDURAL HISTORY
Plaintiff's Complaint was received on July 27, 2018, but without the filing fee or an IFP Motion. Accordingly, a deficiency order was entered, and on August 28, 2018, Plaintiff filed an IFP Motion, which was granted. ECF No. 6. The Complaint was filed, ECF No. 7, as was Plaintiff's Motion for Preliminary Injunction, ECF No. 8, and a Memorandum of Authorities in support of the Preliminary Injunction Motion. ECF No. 9.
Plaintiff's Complaint is not a model of clarity but primarily complains that Defendant Corrections Officer Murphy was a guard at SCI-Greene who wrote up a false disciplinary charge against Plaintiff, where Murphy alleged that he personally witnessed Plaintiff walk up to a fellow inmate and punch the inmate's body several times and that the inmate did not fight back. ECF No. 7 at 6, ¶ 19; No. 7-1. Plaintiff complains that as a result of the allegedly false misconduct he was placed in the Restricted Housing Unit ("RHU") and some of his property in his general population cell was destroyed because he could not take it with him to the RHU cell. ECF No. 7 at 3, ¶ 8; ECF No. 7-1 at 2 (list of property confiscated and destroyed).
Plaintiff's complaints against Defendants Tracey Shawley, SCI-Greene's Grievance Coordinator, Robert Gilmore, SCI-Greene's Superintendent, and Kerri Moore, DOC's Assistant Chief Grievance Officer, are all based on their roles in the processing of and responses to Plaintiff's grievances and grievance appeals. ECF No. 7 at 4 - 5.
Plaintiff claims that the alleged foregoing acts or failures to act by the Defendants amounted to "intentional tort, false confinement, falsified reports, slander, intentional infliction of mental and emotional distress. Eighth Amendment violation cruel and unusual punishment[,] Fourteenth amendment violation deprivation of liberty and property without due process of law, human rights violations and the and the [sic] DOC Code of Ethics violations." ECF No. 7, ¶ 15. By way of relief, Plaintiff seeks declaratory and injunctive relief and monetary damages. Id. ¶¶ 16 - 22.
C. DISCUSSION
1. Participation in Grievance Process Fails to State a Claim.
As noted, Plaintiff seeks to hold Defendants Shawley, Gilmore and Moore (collectively, "the Grievance Defendants") liable for their responses to his grievances and/or grievance appeals.
Under applicable law, the Grievance Defendants cannot be made liable to Plaintiff for the roles that they played in the grievance process. "The failure of a prison official to act favorably on an inmate's grievance and/or grievance appeal is not itself a constitutional violation." Rauso v. Vaughn, No. CIV. A. 96-6977, 2000 WL 873285, *16 (E.D. Pa. June 26, 2000). See also Overholt v. Unibase Data Entry, Inc., 221 F.3d 1335 (Table), 2000 WL 799760, *3 (6th Cir. 2000) ("The defendants were not obligated to 'properly' respond to Overholt's grievances because there is no inherent constitutional right to an effective prison grievance procedure. Hence, his allegations that the defendants did not properly respond to his grievances simply do not rise to the level of a constitutional violation.") (citations omitted); Mitchell v. Keane, 974 F. Supp. 332, 343 (S.D.N.Y. 1997) ("it appears from the submissions before the court that Mitchell filed grievances, had them referred to a prison official, and received a letter reporting that there was no evidence to substantiate his complaints. Mitchell's dissatisfaction with this response does not constitute a cause of action."); Caldwell v. Hall, No. CIV.A. 97-8069, 2000 WL 343229, at *2 (E.D. Pa. March 31, 2000) (The failure of a prison official to act favorably on an inmate's grievance is not itself a constitutional violation."); Orrs v. Corns, No. CIV.A. 92-6442, 1993 WL 418361, at *2 (E.D. Pa. Oct. 13, 1993) ("But an allegation that a defendant failed to act on a grievance or complaint does not state a Section 1983 claim.").
Moreover, to establish liability under Section 1983, there must be "personal involvement" in the constitutional tort by the defendant. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior."). "Personal involvement can be shown through allegations of personal direction or of actual [contemporaneous] knowledge and acquiescence." Id. Accord Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) ("Her amended complaint likewise does not contain even a remote suggestion that Attorney General Fisher had contemporaneous, personal knowledge of her transfer and acquiesced in it."). But see Bayer v. Monroe County Children & Youth Services, 577 F.3d 186, 191 n. 5 (3d Cir. 2009) (calling into doubt the continuing viability of mere knowledge and acquiescence as being sufficient to impose liability, in light of the Supreme Court's decision in Iqbal). As explained by a member of this Court:
personal knowledge of constitutional violations cannot be established solely as a result of addressing grievances. See [Dellarciprete], 845 F.2d at 1208. Additionally, the denial of a grievance or mere concurrence in an administrative appeal process is insufficient to establish personal involvement necessary for liability in a Section 1983 action. See Simonton v. Tennis, 437 F. App'x 60, 62 (3d Cir. 2011) ("[A] prison official's secondary review of an inmate's grievance or appeal is not sufficient to demonstrate the personal involvement required to establish the deprivation of a constitutional right."); Brooks v. Beard, 167 F. App'x 923, 925 (3d Cir. 2006) (holding that a state prisoner's allegation that prison officials and administrators responded inappropriately, or failed to respond to a prison grievance, did not establish that the officials and administrators were involved in the underlying allegedly unconstitutional conduct) . . . Wilkerson v. Schafer, No. 09-2539, 2011 U.S. Dist. LEXIS 25916, 2011 WL 900994, at *7 (M.D. Pa. Mar. 14, 2011) (allegations that defendants "should be held liable for due process violations because they should have become aware of them through their review of his misconduct appeals is insufficient to establish their personal involvement in the underlying unconstitutional conduct"); Logan v. Lockett, No. 07-1759, 2009 U.S. Dist. LEXIS 24328, 2009 WL 799749, at *8 (W.D. Pa. Mar. 25, 2009); . . . Ramos v. Pa. Dept. of Corr., No. 06-1444, 2006 U.S. Dist. LEXIS 51582, 2006 W L 2129148, at * 2 (M.D. Pa. July 27, 2006) (holding that the review and denial of the grievances and subsequent administrative appeal does not establish personal involvement). Therefore, Plaintiff's allegations regarding
any of the defendants' conduct in connection with the grievance system do not state a claim for relief. These claims will be dismissed with prejudice.Jae v. Stickman, Civ. A. No. 12-1332, 2013 WL 4479009, at *3 (W.D. Pa. Aug. 19, 2013), reconsideration denied by, 2013 WL 6230654 (W.D. Pa. Dec. 2, 2013). Accord Croom v. Wagner, Civ. A. No. 06-1431, 2006 WL 2619794, at *4 (E.D. Pa. Sept. 11, 2006) ("Furthermore, neither the filing of a grievance nor an appeal of a grievance to Warden Wagner is sufficient to impose knowledge of any wrongdoing."); Jefferson v. Wolfe, NO. CIV A. 04-44, 2006 WL 1947721, at *17 (W.D. Pa. July 11, 2006) ("These allegations [of denying grievances or grievance appeals] are insufficient to establish such Defendants' personal involvement in the challenged conduct under Section 1983. See Watkins v. Horn, 1997 WL 566080 at * 4 (E.D. Pa. 1997) (concurrence in an administrative appeal process is not sufficient to establish personal involvement)"). See also Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 478 (7th Cir. 1997) ("Chief Robertson could not have undertaken any action to 'un-do' any alleged constitutional violation by Sergeant Krane.").
Accordingly, the Complaint should be dismissed as to Defendants Shawley, Gilmore and Moore for failure to state claim upon which relief can be granted.
2. The Filing of an Allegedly False Misconduct Fails to State a Claim.
Plaintiff alleges that Defendant Murphy filed an allegedly false misconduct against Plaintiff that resulted in him being placed in the RHU. However, the general rule is that the filing of an allegedly false misconduct charge, even one resulting in the placement of the RHU does not of itself state a claim upon which relief can be granted. Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) ("[S]o long as certain procedural requirements are satisfied, mere allegations of falsified evidence or misconduct reports, without more, are not enough to state a due process claim."); Rieco v. Moran, 633 F. App'x. 76, 79 (3d Cir. 2015) ("The District Court also correctly dismissed Rieco's claim that Appellees issued a false misconduct report against him. Prison disciplinary proceedings, on their own, do not state a claim under § 1983."). Plaintiff fails to allege anything that would take his case out of the general rule.
3. Destruction of Property Claim Fails Because of Adequate Post Deprivation Remedies.
Plaintiff also claims that as a result of the allegedly false misconduct and his subsequent placement in the RHU, some of his property in his general population cell was confiscated and destroyed. Plaintiff claims that this conduct violated his due process rights. However, because there are adequate post deprivation remedies available to Plaintiff, he cannot state a due process claim. Gannaway v. PrimeCare Med., Inc, 652 F. App'x. 91, 95 (3d Cir. 2016) ("Gannaway alleged that his personal property was improperly confiscated and destroyed, and that four falsified misconduct charges resulted in his placement in the restricted housing unit (RHU) for periods between 30 and 90 days. Notably, though, Gannaway had access to the prison grievance process, an adequate post-deprivation remedy to protect his due process rights. See Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000) (holding that prison's grievance program and internal review provide an adequate post-deprivation remedy to satisfy due process)."); Cruz v. SCI-SMR Dietary Services, 566 F. App'x. 158, 160 (3d Cir. 2014) ("the United States Supreme Court has held that meaningful postdeprivation remedies provide sufficient due process for negligent deprivations of property, Parratt, 451 U.S. at 543, 101 S.Ct. 1908, and intentional deprivations of property, Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The Pennsylvania Department of Corrections ('DOC') grievance procedure provides an adequate post-deprivation remedy, see, e.g., Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422 (3d Cir. 2000), and the existence of this post-deprivation remedy forecloses Cruz's due process claim. We note that a common law action for conversion, filed in state court pursuant to 42 Pa. Cons.Stat. Ann. § 8522(a), (b)(3), also is an adequate post-deprivation remedy.") (footnote omitted). Accordingly, Plaintiff's due process claim concerning the destruction of his property fails to state a claim upon which relief can be granted.
4. Liberty Claim Fails to State a Claim Upon Which Relief Can be Granted.
In his Complaint, Plaintiff complains that his being placed in the RHU under disciplinary custody as of March 27, 2018 and his being maintained in Administrative Custody thereafter, violated his rights to procedural due process because he was deprived of a liberty interest without due process. Because Plaintiff fails to allege facts showing that he was deprived of a liberty interest, he fails to state a claim upon which relief can be granted.
Conducting a procedural due process analysis involves a two-step inquiry: the first question to be asked is whether the complaining party has a protected liberty or property interest within the contemplation of the Due Process clause and, if so, the second question to be asked is whether the process afforded the complaining party comported with constitutional requirements. Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000).
A protected liberty interest may arise from one of two sources: (1) directly from the Fourteenth Amendment's due process clause itself or (2) from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). There is no liberty interest created directly by the Fourteenth Amendment that prevents an inmate from being subjected to disciplinary or administrative custody confinement. See Sandin v. Conner, 515 U.S. 472, 484 (1995) ("Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation"); Stephany v. Wagner, 835 F.2d 497, 499 (3d Cir. 1987) ("the Due Process Clause does not give a prisoner a liberty interest in remaining in the general prison population").
Furthermore, Pennsylvania has not created a liberty interest in being free from disciplinary confinement. Addressing the issue of state created liberty interests, the United States Supreme Court in Sandin v. Conner, 515 U.S. at 484, held that a state government "may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."
Instantly, Plaintiff claims that he was placed in solitary confinement as of March 27, 2018, ECF No. 7 at 3 ¶ 5, and remained in disciplinary custody status in the RHU until June 28, 2018, when his disciplinary custody status ended. ECF No. 9-1 at 4. ("My hole time have [sic] been 'completed' since the 28th of June."). This amounts to a total time of 93 days in disciplinary custody in the RHU. Apparently after Plaintiff's disciplinary custody time ended, he continued to be held in the RHU but under Administrative Custody. ECF No. 7-3 at 2 ¶ 1. Plaintiff further complains that he has been kept in Administrative Custody detention in the RHU since June 29, 2018 due to the fact that SCI-Greene did not have any cells available for Plaintiff in general population. Hence, from June 29, 2018 until the filing of this suit, on July 27, 2018, Plaintiff had spent a total of 29 days in Administrative Custody. Even assuming that Plaintiff remained in Administrative Custody status from July 27, 2018 to the date of the filing of this Report and Recommendation, i.e., October 17, 2018 (which adds up to 82 days), he will have spent at most 111 days in Administrative Custody. Adding the 93 days of disciplinary custody to the 111 days of Administrative Custody, Plaintiff has spent 204 days or a total of almost 7 months in the RHU. That Plaintiff has spent nearly seven months in the RHU simply fails to state a claim as a matter of law that he has been denied a liberty interest without due process. See, e.g., Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997) (confinement in administrative custody for fifteen months with only one hour of exercise per day five days per week did not amount to an atypical and significant hardship and thus did not deprive prisoner of a liberty interest); Smith v. Luciani, No. Civ. A. 97-3037, 1998 WL 151803, at *5 (E.D. Pa. March 31, 1998) ("In this case, plaintiff was subjected to seven months disciplinary time, a period of time half of that implicated in Griffin. Therefore, punishment of seven months in administrative custody, does not present 'the type of atypical, significant deprivation [in the context of prison life] in which a state might conceivably create a liberty interest.' Sandin, 515 U.S. at 486 (1995)."), aff'd, 178 F.3d 1280 (3d Cir. 1999) (Table); Abney v. Walker, No. 2:06cv1248, 2007 WL 1454265, at *3 (W.D. Pa. May 17, 2007) (in granting the Defendants' motion to dismiss, the Court concluded as follows: "Here, Abney received a total of seventy five days of disciplinary detention as a result of the misconduct. Under the rule announced in Sandin, as applied in Griffin, this court must conclude Abney's disciplinary detention did not impose an atypical and significant hardship in relation to the ordinary incidents of his prison sentence sufficient to give rise to a protected liberty interest. Consequently, Abney was not entitled to any due process protections with respect to the issuance of his misconduct report or the procedures employed during his disciplinary hearing."). Nor has Plaintiff alleged any facts to take himself out of the general rule in Griffin v. Vaughn. As he has not alleged any facts in the Complaint that distinguish his case from that of the plaintiff/appellant in Griffin, his procedural due process claim should be dismissed for failure to state a claim upon which relief can be granted because his due process claim is simply not plausible in light of the controlling caselaw. Davis v. Wilson, CIV.A. 08-589, 2009 WL 688912, at *5-6 (W.D. Pa. Mar. 12, 2009) ("Here, the duration of plaintiff's confinement, from August 2, 1999 to the present time, some 15 months, is not atypical-a la Griffin, 112 F.3d at 708. Moreover, plaintiff has produced no evidence that the conditions placed on him are more onerous than those imposed on other administrative inmates.").
Furthermore, Plaintiff makes no allegations with respect the process that he did or did not receive. He makes no allegations concerning the disciplinary hearing and any appeals therefrom. Nor does he make any claims that he did not receive the periodic reviews of his placement in Administrative Custody by the Program Review Committee that is called for by the DOC policies, of which we take judicial notice. Hence, even if his allegations concerning the "deprivations" he experienced while in the RHU could be said to be "atypical and significant," Plaintiff failed to allege that he was denied any process with respect to the imposition of such conditions. Accordingly, Plaintiff's procedural due process claim fails to state a claim upon which relief can be granted.
The DOC policy governing Administrative Custody may be found at: https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/802%20Administrative%20 Custody%20Procedures.pdf (site last visited 10/17/2018). --------
5. Eighth Amendment Fails to State a Claim.
Plaintiff also claims that his Eighth Amendment rights were violated. However, no factual assertions in the Complaint render an Eighth Amendment claim plausible.
In order to establish an Eighth Amendment violation with respect to conditions of confinement, a prisoner must show that he has been deprived of "the minimal civilized measure of life's necessities," such as food, clothing, shelter, sanitation, medical care, or personal safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). See Hudson v. McMillian, 503 U.S. 1, 9, (1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 298 (1991) ("[b]ecause routine discomfort is 'part of the penalty that criminal offenders pay for their offenses against society,' ... 'only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation'"). The prisoner must also show that the prison official acted with a sufficiently culpable state of mind or deliberate indifference. Farmer, 511 U.S. at 834. See also Griffin v. Vaughn, 112 F.3d at 709.
In light of the foregoing standards, the United States Court of Appeals for the Third Circuit has explained that "Where conditions are not 'cruel and unusual' but merely 'restrictive and even harsh,' they do not violate the Eighth Amendment but rather 'are part of the penalty that criminal offenders pay for their offenses against society.' Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Placing an inmate in restricted housing does not violate the Eighth Amendment 'as long as the conditions of confinement are not foul, inhuman or totally without penological justification.'" Jones v. Davidson, 666 F. App'x. 143, 147 (3d Cir. 2016).
In the instant case, the closest that Plaintiff comes to making allegations concerning deprivations that might be sufficiently serious are his conclusory allegations of flooding of cells with waste water and the kicking of doors by inmates which allegedly disturbs his sleep. Moreover, these conclusory allegations do not even appear in the Complaint but only in his Motion for Preliminary Injunction. Petitioner fails to reference the frequency of such events or the length of time Plaintiff was exposed to allegedly unsanitary conditions or any allegation that he was denied cleaning materials so as to mitigate any potential harm. Woods v. Abrams, Civ. A. No. 06-757, 2007 WL 2852525 at *12 (W.D. Pa. Sept. 27, 2007) (observing that the plaintiff's allegations that the wall of his cell was covered with feces by a prior inmate "may assert an Eighth Amendment claim" but entering summary judgment since the plaintiff was issued cleaning supplies the next day and was not "required to remain in an unsanitary condition for an inordinate period of time"). Hence, we do not find Plaintiff has sufficiently alleged a serious enough objective deprivation to plausibly state an Eighth Amendment claim.
Even if however, the Complaint adequately made out the objective deprivation prong, the Complaint utterly fails to make any allegation concerning the necessary mindset to render a plausible Eighth Amendment claim. Where the DOC defendants are not the cause of such conditions as cell flooding by other prisoners or prisoners banging on doors and are not in a position to prevent such conditions but only in a position to remediate them after the fact, it cannot be said that such Defendants possess the necessary mindset to make out an Eighth Amendment claim unless, having been made aware of such conditions, the DOC Defendants fail to take any actions to remediate the conditions. At the least, Plaintiff does not allege any facts with respect to the required mindset on that part of the named Defendants in order to plausibly state an Eighth Amendment claim.
Accordingly, the Complaint fails to state a plausible Eighth Amendment claim upon which relief can be granted.
6. Applicability of Declaration of Human Rights
Plaintiff also invokes the Universal Declaration of Human Rights. ECF No. 7-3 at 3 ¶ 6. However, Plaintiff cannot state a cause of action thereunder because the "Universal Declaration of Human Rights is a non-binding declaration that provides no private rights of action. Sosa v. Alvarez-Machain, 542 U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (explaining that Universal Declaration is simply a statement of principles and not a treaty or international agreement that would impose legal obligations.)." U.S. v. Chatman, 351 F. App'x. 740, 741 (3d Cir. 2009).
7. Supplemental Jurisdiction
Plaintiff seems to be making state law claims in the Complaint as well as the foregoing federal claims. ECF No. 7 at 5 ¶ 15 ("slander, intentional infliction of mental and emotional distress"). To the extent that Plaintiff is attempting to raise state law claims, the Court should decline to exercise supplemental jurisdiction over such claims if the Court adopts this Report and Recommendation and dismisses all federal law claims. See, e.g., Boneburger v. Plymouth Township, 132 F.3d 20, 23 n.1 (3d Cir. 1997) ("where federal claims are dismissed before trial, the district court 'must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.'") (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). See also 28 U.S.C. § 1367(c)(3) which permits a district court to "decline to exercise supplemental jurisdiction over a [state law] claim ... if [it] has dismissed all claims over which it has original jurisdiction...." Here, the appropriate considerations do not provide an affirmative justification for retaining supplemental jurisdiction and deciding matters of state law.
III. CONCLUSION
Accordingly, for the foregoing reasons, the instant Complaint should be dismissed for failure to state a claim upon which relief can be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted, Date: October 17, 2018
/s/Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: Honorable Nora Barry Fischer
United States District Judge
ROBERT WASHINGTON
GJ 2069
SCI Greene
175 Progress Dr.
Waynesburg, PA 15370