Opinion
CIVIL ACTION NO. 3:17-CV-02413
06-28-2019
FRANK JAMES CAPOZZI, SR., Plaintiff v. CATERING BY MARLINS, Inc., et al Defendants
(RAMBO, J.)
() REPORT AND RECOMMENDATION
This is a pro se civil rights action, initiated upon the filing of the complaint in this matter on December 29, 2017. (Doc. 1). Before the Court is Defendants' motion to dismiss the complaint. (Doc. 28). For the reasons discussed herein, the Court recommends the motion be granted. I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Frank James Capozzi, Sr. ("Capozzi" or "Plaintiff") filed the complaint, along with a motion to proceed in forrma pauperis, on December 29, 2017. (Doc. 1); (Doc. 2). At the time he filed his complaint, Plaintiff was incarcerated at Lackawanna County Prison ("LCP"). (Doc. 1, at 5). Plaintiff names 1) Catering by Marlins ("Marlins"), Food Service Contractor at LCP; 2) Benjamin O'Leary ("O'Leary"), Kitchen Manager at LCP; 3) Unknown Kitchen Staff employed by Marlins; 4) Tim Betti, Warden at LCP; 5) David Langan, Deputy Warden at LCP; 6) Mari Fanlon, Facility Coordinator at LCP; 7) Colleen Orzel ("Orzel"), Grievance Coordinator at LCP; and 8) the Prison Committee Board of Scranton City Council ("Board") (collectively referred to as "Defendants"). (Doc. 1, at 3 ¶ III(1)-(8)). Plaintiff alleges the Board is responsible for management and oversight at LCP. (Doc. 1, at 3 ¶ III(4)).
The Court granted Capozzi's motion to proceed in forma pauperis on September 21, 2018. (Doc. 11, at ¶ 1).
Capozzi alleges LCP Officials violated his First and Fourteenth Amendment rights by failing to accommodate his religiously-motivated dietary preferences. (Doc. 1, at 4 ¶ IV(1)). He avers his Catholic faith imposes certain dietary restrictions during the Lenten season, including meatless Fridays and a "Paschal Lamb" meal on Easter Sunday. (Doc. 1, at 4 ¶ IV(1)). Capozzi submits that LCP officials and the Board failed to honor these religiously-motivated dietary preferences during the Lenten season. (Doc. 1, at 4 ¶ IV(1)).
Capozzi's second cause of action arises from the alleged deviation from LCP grievance procedures, in violation of his First and Fourteenth Amendment rights. (Doc. 1, at 4 ¶ IV(2)). Specifically, Capozzi alleges Orzel failed to timely review and respond to his grievances in accordance with times set forth in LCP's grievance handbook. (Doc. 1, at 4 ¶ IV(2)).
As relief, Plaintiff seeks monetary damages from each named Defendant. (Doc. 1, at 4-5 ¶ V(1)-(2)). Plaintiff also seeks injunctive relief regarding the provision of Lenten Meals and expedited administration of the LCP's internal grievance system. (Doc. 1, at 4-5 ¶ V(1)-(2)). Plaintiff further seeks attorney's fees at the rate that a professional paralegal would be paid. (Doc. 1, at 5 ¶ V(3)).
Defendants filed a motion to dismiss on November 19, 2018. (Doc. 28). Defendants filed a brief in support of that motion on November 28, 2018. (Doc. 29). Defendants move to dismiss Plaintiff's second cause of action, which relates to the timely processing of grievances at LCP. (Doc. 28, at ¶¶ 2-3). To date, Capozzi has not submitted a brief in opposition to the pending motion to dismiss.
Local Rule 7.6 provides, in pertinent part:
Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion.
Although the motion may be deemed unopposed, a motion to dismiss under Rule 12(b)(6) should not be granted "without an analysis of the merits of the underlying complaint, notwithstanding local rules regarding the granting of unopposed motions." Ray v. Reed, 240 F. App'x 455, 456 (3d Cir. 2007) (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
The motion to dismiss is ripe for disposition. II. DISCUSSION
A. MOTION TO DISMISS PURSUANT TO 12(B)(6)
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 also requires a "showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007)). To survive a motion to dismiss brought under Rule 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. If a complaint fails to comply with the threshold pleading requirements of Rule 8, a defendant may move for its dismissal under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6); Sally-Harriet v. Northern Children Svcs. No.CV 17-4695, 2019 WL 1384275, at *3 (E.D. Pa. March 26, 2019) ("[a] motion under Rule 12(b)(6) tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)").
The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6), the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal citations omitted). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Further, a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, when ruling on a Rule 12(b)(6) motion, a trial court must assess whether a complaint states facts upon which relief can be granted, and should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. In addition to the facts alleged on the face of the complaint, the Court may also consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
With the aforementioned standards in mind, a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Nonetheless, pro se plaintiffs are still subject to the base pleading requirements of Rule 8. Rhett v. NJ State Superior Court, 260 F. App'x 513 (3d Cir. 2008).
B. CLAIMS BROUGHT UNDER 42 U.S.C. § 1983
Plaintiff's complaint asserts federal civil rights claim(s) pursuant to 42 U.S.C. § 1983. Section 1983 provides a private cause of action with respect to violations of federal constitutional rights. The statute provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a § 1983 claim, a plaintiff must demonstrate that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
C. CLAIM REGARDING THE PROCESSING OF GRIEVANCES AT LCP
Defendants move to dismiss Plaintiff's claim relating to grievance processing pursuant to Rule 12(b)(6). (Doc. 29, at 1). "Although the filing of a grievance is a constitutionally protected activity," there is no constitutional right of "access to a grievance procedure." Romero v. Johnson, 2015 WL 1285885, at *4 (M.D. Pa. Mar. 20, 2015) (citing Heleva v. Kramer, 214 F. App'x 244, 247 (3d Cir. 2007); Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003)). Moreover, "a state grievance procedure does not confer any substantive constitutional right upon prison inmates." Bartelli v. Jones, 231 F. App'x 129, 132 (3d Cir. 2007) (internal citations omitted). It follows that allegations of "prison officials' failure to respond to inmate's grievance does not state a constitutional claim." Pepe v. Lamas, No. 1:15-CV-01688, 2015 WL 5693303, at *3 (M.D. Pa. Sept. 28, 2015) (citing Wilson v. Horn, 971 F.Supp. 943, 947 (E.D.Pa.1997), aff'd, 142 F.3d 430 (3d Cir.1998)).
Here, Capozzi alleges the LCP grievance procedures state that grievances shall be handled within five business days. (Doc. 1, at 4 ¶ IV(2)). He further alleges Orzell failed to meet this five-day deadline with respect to some of the grievances he filed, a violation of the grievance procedure and his First Amendment rights. (Doc. 1, at 4 ¶ IV(2)). However, the failure to respond to grievances in a timely manner does not rise to the level of a constitutional violation. See Jones, 231 F. App'x at 132; Lamas, 2015 WL 5693303, at *3. See also Burnside v. Moser, 138 F. App'x 414, 416 (3d Cir. 2005) (concluding prisoner-plaintiff's allegations that prison official failed to process grievances regarding "medical treatment, food service, and commissary... although not to be commended, does not rise to the level of a violation of a constitutional right"). As such, the Court recommends granting the motion to dismiss with respect to the second count of Plaintiff's complaint.
D. LEAVE TO AMEND
The Third Circuit has instructed that district courts generally must permit a curative amendment if a complaint filed pro se is vulnerable to dismissal for failure to state a claim, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). However, the Third Circuit has also acknowledged that a district court has "substantial leeway in deciding whether to grant leave to amend." Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). Here, any amendment to this claim would be futile because there is no constitutional right to vindicate. See Burnside, 138 F. App'x at 416. Therefore, the Court recommends denying leave to amend Plaintiff's claim involving grievance processing at LCP. III. RECOMMENDATION
Based on the foregoing, it is recommended that the Court grant Defendants' motion to dismiss (Doc. 28) pursuant to Fed. R. Civ. P. 12(b)(6), and remand the matter to the undersigned for further proceedings.
Dated: June 28, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 28, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: June 28, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge