Opinion
CIVIL NO: 3:17-CV-00378
07-12-2018
ANDERSON COUTINO-SILVA, Plaintiff v. USP LEWISBURG FOOD DIRECTOR MR. RAMIREZ, et al., Defendants
(Judge Munley) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff Anderson Coutinho-Silva, a federal prisoner proceeding pro se, claims that the defendants violated the Eighth Amendment by serving him spoiled food on dirty trays. Defendant Ramirez, the food service director at the United States Penitentiary at Lewisburg (USP Lewisburg), filed a motion to dismiss and for summary judgment. We recommend that the Court grant that motion. We also recommend that the Court dismiss the claims against the John Doe defendants. In sum, we recommend that the Court dismiss one of Coutinho-Silva's claims because he failed to exhaust available administrative remedies before filing this action. We also recommend that the Court dismiss Coutinho-Silva's other claims for failure to state a claim upon which relief can be granted.
II. Background and Procedural History.
Coutinho-Silva began this action by filing a complaint in the United States District Court for the Eastern District of Pennsylvania naming Mr. Ramirez, the food service director at USP Lewisburg as the defendant. He claimed that on November 22, 2016, after eating his dinner, he became ill. According to Coutinho-Silva, many inmates became sick with Salmonella poisoning because the prison served old food and did not cook it properly.
After the United States District Court for the Eastern District transferred the case to this Court, Ramirez filed a motion to dismiss the complaint arguing that Coutinho-Silva failed to exhaust administrative remedies and failed to allege that he was personally involved as required to state a Bivens claim upon which relief can be granted. Because it was not clear from the face of the complaint that Coutinho-Silva failed to exhaust administrative remedies, we recommended that the Court not dismiss the complaint on exhaustion grounds. Nevertheless, because Coutinho-Silva did not allege Ramirez's personal involvement, we recommended that the Court grant Ramirez's motion to dismiss. We also recommended that the Court grant Coutinho-Silva leave to file an amended complaint. Adopting our Report and Recommendation, Judge Munley granted the motion to dismiss and granted Coutinho-Silva leave to file an amended complaint.
See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court "recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). "[A]ctions brought directly under the Constitution against federal officials have become known as 'Bivens actions.'" Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir. 2017).
On January 12, 2018, Coutinho-Silva filed an amended complaint again naming Ramirez as a defendant. The amended complaint also names four Doe defendants: John Doe, the Assistant Food Service Administrator; John Doe 2, a Cook Supervisor; John Doe 3, a Food Service Material Handler Supervisor; and John Doe 4, a Food Service Administrative Assistant. He claims that the defendants violated the Eighth Amendment by serving him spoiled food on dirty trays. More specifically, Coutinho-Silva presents what he denominates as six claims: (1) the jelly claim; (2) the coleslaw claim; (3) the macaroni-salad claim; (4) the spoiled-apple claim; (5) the contaminated- or infected-rice claim (the rice claim); and (6) the contaminated-trays claim.
As to the jelly claim, Coutinho-Silva alleges that from 2012-2016, he received moldy jelly on his food tray two to three times a week. He did not eat the moldy jelly. He alleges that Ramirez habitually ordered the jelly in a manner such that it was always expired, and John Doe 3 improperly stored the jelly causing the growth of mold. Coutinho-Silva complained monthly about the moldy jelly, and John Does 3 and 4 had knowledge of the moldy jelly from reviewing his complaints. According to Coutinho-Silva, John Doe "sanctioned" the moldy jelly given his daily management of the food-service operations and his interaction with John Does 3 and 4, who processed Coutinho-Silva's complaints. Coutinho-Silva also alleges that Ramirez failed to inspect or ensure that his staff complied with food-service policies regarding the storage of the jelly. And Ramirez allegedly "sanctioned" the moldy jelly (1) because either he or his assistant, John Doe, did periodic inspections of the food-service operations, and (2) because he had monthly staff meetings, where John Doe, John Doe 3, or John Doe 4 would be expected to raise the issue of the repeated complaints about the jelly. Coutinho-Silva also alleges that if Ramirez's staff did not inform him about the jelly, Ramirez was nevertheless deliberately indifferent by his retention of and lack of supervision over his staff.
As to the coleslaw claim, Coutinho-Silva alleges that from 2012-2016, he was served coleslaw one to two times a week. He alleges that half of the time, the coleslaw was fresh, but the other half of the time, it was sour and biter like vomit. He did not eat the spoiled coleslaw. According to Coutinho-Silva, the coleslaw was prepared in bulk and the excess was stored improperly and for longer than proper. He alleges that the preparation and storage of the coleslaw was the responsibility of John Doe 2 and John Doe 4. And John Doe 2 should have known that the coleslaw was bad because it smelled rotten, because he directly oversaw the placement of the coleslaw on the trays, and because it was his duty to oversee the tasting of the food. Coutinho-Silva alleges that sent approximately seven complaints to the food-service department about the coleslaw. He alleges that it was the duty of John Doe 3 and/or John Doe 4 to handle the complaints and to inform Ramirez or another manager capable of rectifying the error. He also alleges that John Doe would have known about the spoiled coleslaw given his duties as the daily manager of the food-service operations. According to Coutinho-Silva, Ramirez is ultimately responsible for food safety. Ramirez allegedly "sanctioned" the old coleslaw (1) because his assistant, John Doe, often did weekly inspections on his behalf, and (2) because he had monthly staff meetings, where John Doe, John Doe 3, or John Doe 4 would be expected to raise the issue of the repeated complaints or John Doe 2's failure to prepare, store, or throw way the coleslaw consistent with food-service policies. Coutinho-Silva also alleges that Ramirez was deliberately indifferent by his retention of and lack of supervision over his staff.
As to the macaroni-salad claim, Coutinho-Silva alleges that from 2012-2016, he was served macaroni salad once or twice a week. He alleges that one week it was fresh, but the next, it was spoiled, tasted like vomit, and smelled like a spoiled egg. He did not eat the spoiled macaroni salad. He alleges that the defendants were aware of and responsible for the macaroni salad in the same manner as they were for the coleslaw.
As to the spoiled-apple claim, Coutinho-Silva alleges that from 2012-2016, he was served apples three to four times a week and four out of ten of those apples were at least partially rotten. They also had dirt and sticky substances on them, which he had to wash off in his sink. Of the four out of ten apples that were rotten, he had to throw one of them away completely. Coutinho-Silva alleges that Ramirez habitually ordered apples that were spoiled or beginning to spoil. John Doe 2 and John Doe 3 improperly stored the apples facilitating spoilage. Coutinho-Silva complained monthly to food services about the apples. He alleges that the defendants were aware of and responsible for the apples in the same manner as they were for the coleslaw and macaroni salad.
As to the rice claim, Coutinho-Silva alleges that on November 22, 2016, he was served rice that was contaminated or infected with a virus, and he became very sick. He alleges that the rice smelled like mold, dust, and it tasted like a rotten egg smells. According to Coutinho-Silva, he ate the rice because he was hungry and there was nothing else to eat. He alleges that John Doe 2 improperly prepared or stored the rice and knew that it was not fit to be served. He also alleges that the John Does and Ramirez were deliberately indifferent to providing non-spoiled food generally, as evidenced by their failure to address the health violations relating to the jelly, coleslaw, macaroni salad, and apples. He further alleges that John Doe and Ramirez failed to enforce compliance with food-service policies by failing to conduct effective inspections and/or by retaining reckless staff. This, according to Coutinho-Silva, created a "Wild West" attitude that led to health violations so severe that a significant portion of the prison population became severely ill because of the contaminated rice. He alleges that the rice incident is part of the defendants' habitual indifference spanning four years. And he alleges that Ramirez is ultimately responsible for food safety, and he failed to adequately train his staff for four years.
As to the contaminated-trays claim, Coutinho-Silva alleges that from 2012-2016, he regularly received food served on trays that were stained and that had dried bits of food and grease on them from prior meals. He alleges that John Doe 2 did not regularly clean or sanitize the trays, nor did he direct inmates to do so. By Coutinho-Silva's count, he submitted written complaints to the food-service department about the trays three to four times a year. He alleges that the defendants were aware of and responsible for the dirty trays in the same manner as they were for the coleslaw, macaroni salad, and apples.
Coutinho-Silva is seeking nominal, compensatory, and punitive damages.
On February 9, 2018, Ramirez filed a motion to dismiss and for summary judgment. He later filed a brief in support, a statement of materials facts, and supporting documents. After we ordered Coutinho-Silva to respond to Ramirez's motion, he filed a motion for voluntarily dismissal without prejudice conditioned on him not having to pay a filing fee if he refiles the action. Ramirez filed a brief in response to Coutinho-Silva's motion for voluntary dismissal arguing that the Court should not excuse Coutinho-Silva from paying another filing fee if he voluntarily dismisses this action and then files another action. Ramirez pointed out that 28 U.S.C. § 1914 commands the Clerk of Court to require a party to pay a filing fee to file a civil action. Coutinho-Silva then withdrew his motion for voluntary dismissal and requested an extension of time to respond to Ramirez's motion to dismiss and for summary judgment. We granted Coutinho-Silva an extension of time, and on May 14, 2018, he filed a brief in opposition to Ramirez's motion. On that same day, Coutinho-Silva also filed another motion for voluntary dismissal without prejudice, again on the condition that he not be required to pay another filing fee if the Court grants his motion and he then refiles this action. Because Coutinho-Silva has not filed a brief in support of that motion, by a separate order we have deemed that motion withdrawn. On May 30, 2018, Ramirez filed a reply brief. On July 2, 2018, Coutinho-Silva filed what we construe as a sur-reply brief.
Coutinho-Silva has not provided names for the John Doe defendants, and those defendants have not been served. Thus, only defendant Ramirez filed the motion to dismiss and for summary judgment.
28 U.S.C. § 1914(a) provides: "The clerk of each district court shall require parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350, expect that on application for a writ of habeas corpus the filing fee shall be $5."
By that separate order, we also deemed Coutinho-Silva's motion (doc. 55) to exempt him from Local Rule 7.8 withdrawn, and we denied Coutinho-Silva's motion (doc. 56) for an extension of time to serve the John Doe defendants.
Although Coutinho-Silva did not seek leave to file a sur-reply brief, given that he is proceeding pro se, we will accept his sur-reply brief. As discussed below, in his sur-reply brief, Coutinho-Silva asserts under penalty of perjury that all the factual allegations that he made in his brief in opposition to Ramirez's motion are true and correct.
III. Discussion.
Ramirez contends that Coutinho-Silva failed to properly exhaust his administrative remedies and that he fails to allege a constitutional violation. We begin with the failure-to-exhaust argument.
A. The Court should dismiss Coutinho-Silva's rice claim because Coutinho-Silva failed to exhaust available administrative remedies before filing this action, but the Court should not, at this time, dismiss Coutinho-Silva's other claims for failure to exhaust administrative remedies.
Ramirez contends that Coutinho-Silva failed to property exhaust available administrative remedies prior to filing this case. Because Ramirez relies on documents outside the pleadings to support this argument, we address the argument under summary-judgment standards.
1. Summary Judgment Standards.
Defendant Ramirez moves for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure, which provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Through summary adjudication the court may dispose of those claims that do not present a 'genuine dispute as to any material fact' and for which a jury trial would be an empty and unnecessary formality." Goudy-Bachman v. U.S. Dept. of Health & Human Services, 811 F. Supp. 2d 1086, 1091 (M.D. Pa. 2011) (quoting Fed. R. Civ. P. 56(a)).
The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the nonmoving party bears the burden of proof, the moving party may discharge that burden by "'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must show a genuine dispute by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" or "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the nonmoving party provides merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non- moving party. Id. at 248-49. When "faced with a summary judgment motion, the court must view the facts 'in the light most favorable to the nonmoving party.'" N.A.A.C.P. v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
At the summary judgment stage, the judge's function is not to weigh the evidence or to determine the truth of the matter; rather it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The proper inquiry of the court "is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250.
Further, a party that moves for summary judgment on an issue for which he bears the ultimate burden of proof faces a difficult road. United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011). "[I]t is inappropriate to grant summary judgment in favor of a moving party who bears the burden of proof at trial unless a reasonable juror would be compelled to find its way on the facts needed to rule in its favor on the law." El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007) (footnote omitted). A party who has the burden of proof must persuade the factfinder that his propositions of fact are true, and "if there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted." Id. "Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof, will." Id.
2. Material Facts.
A party who seeks to resist a summary judgment motion must comply with Local Rule 56.1, which specifically provides that "[s]tatements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements" and that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party." Under this Rule, the failure to follow these instructions and appropriately challenge the material facts tendered by the moving party means that those facts are deemed admitted. Further, a party opposing a motion for summary judgment may not "rely merely upon bare assertions, conclusory allegations or suspicions." Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Rather, "[o]nce the moving party has supplied sufficient affidavits in support of its motion, the opposing party must respond by supplementing the record in some manner—whether by its own affidavits or otherwise—setting forth specific facts demonstrating that there is a genuinely disputed factual issue for trial." Id.
Here, because Coutinho-Silva has not responded to defendant Ramirez's statement of material facts, the following material facts set forth by Ramirez are deemed admitted.
Although Coutinho-Silva is currently designated to the Administrative Maximum Penitentiary in Florence, Colorado, his complaint concerns events that occurred while he was designated to the Special Management Unit (SMU) at USP Lewisburg over various time periods from 2012 to 2016. Doc. 46 at ¶¶ 1-2.
The Bureau of Prisons (BOP) has established an administrative remedy procedure through which an inmate may seek formal review of a complaint relating to any aspect of his confinement. Id. at ¶ 3. Inmates must first informally present their complaint to staff in an attempt to informally resolve the matter. Id. at ¶ 4. If informal resolution is unsuccessful, the inmate may then present the issue to the warden within twenty calendar days of the events giving rise to the complaint. Id. at ¶ 5. An inmate who is not satisfied with the warden's response may appeal to the BOP Regional Director within twenty calendar days. Id. at ¶ 6. If the response of the Regional Director is not satisfactory, the inmate may then appeal to the BOP's Central Office within thirty calendar days. Id. at ¶ 7. An appeal to the Central Office constitutes the final level of administrative review. Id. at ¶ 8.
The BOP maintains a database of all formal administrative remedy submissions. Id. at ¶ 10. Each administrative remedy is given an identification number upon submission, and the database, among other things, indicates the date it was received, the nature of the complaint, and the institution at which the complaint originated. Id. at ¶ 11. Each identification number is followed by a letter representing the various administrative levels: "F" for the institution level, "R" for the Regional Office level, and "A" for the Central Office level. Id. at ¶ 12. The number following the letter indicates the number of times that remedy has been filed at that level. Id. at ¶ 13.
Since Coutinho-Silva has been designated to the custody of the BOP, he has filed 59 administrative remedies. Id. at ¶ 14.
In 2012, Coutinho-Silva filed 17 administrative remedies. Id. at ¶ 15. The administrative remedies filed by Coutinho-Silva in 2012 concern Discipline Hearing Officer (DHO) hearings, an SMU appeal, an alleged assault by a correctional officer, and a DHO appeal. Id. at ¶ 16. None of the 17 administrative remedies filed by Coutinho-Silva in 2012 complains of being served moldy jelly, spoiled coleslaw, spoiled macaroni salad, rotten apples, or contaminated rice on trays that were not properly cleaned. Id. at ¶ 17.
In 2013, Coutinho-Silva filed 18 administrative remedies. Id. at ¶ 18. The administrative remedies filed by Coutinho-Silva in 2013 concern DHO appeals, an alleged assault by staff, a DHO hearing, missing personal property, and medication. Id. at ¶ 19. None of the 18 administrative remedies filed by Coutinho- Silva in 2013 complains of being served moldy jelly, spoiled coleslaw, spoiled macaroni salad, rotten apples, or contaminated rice on trays that were not properly cleaned. Id. at ¶ 20.
In 2014, Coutinho-Silva filed 11 administrative remedies. Id. at ¶ 21. The administrative remedies filed by Coutinho-Silva in 2014 concern medication, DHO appeals, and medical treatment. Id. at ¶ 22. None of the 11 administrative remedies filed by Coutinho-Silva in 2014 complains of being served moldy jelly, spoiled coleslaw, spoiled macaroni salad, rotten apples, or contaminated rice on trays that were not properly cleaned. Id. at ¶ 23.
In 2015, Coutinho-Silva filed three administrative remedies. Id. at ¶ 24. The administrative remedies filed by Coutinho-Silva in 2015 concern DHO appeals, a change in his recreation cage, and a Unit Disciplinary Committee (UDC) appeal. Id. at ¶ 25. None of the three administrative remedies filed by Coutinho-Silva in 2015 complains of being served moldy jelly, spoiled coleslaw, spoiled macaroni salad, rotten apples, or contaminated rice on trays that were not properly cleaned. Id. at ¶ 26.
In 2016, Coutinho-Silva filed three administrative remedies. Id. at ¶ 27. The first two administrative remedies filed by Coutinho-Silva in 2016 concern a UDC appeal and medical treatment and medication. Id. at ¶ 28. The last administrative remedy filed by Coutinho-Silva in 2016 (Remedy Identification Number 886409- F1) was filed on December 20, 2016, and alleged Coutinho-Silva had a gastrointestinal illness due to being served old food. Id. at ¶ 29. The institution denied Coutinho-Silva's filing on December 28, 2016. Id. at ¶ 30. Coutinho-Silva appealed to the Northeast Regional Office (via 886409-R1) on January 9, 2017. Id. at ¶ 31. On February 7, 2017, the Reginal Office denied Coutinho-Silva's appeal. Id. at ¶ 32. Coutinho-Silva filed an appeal (886409-A1) to the Central Office on March 1, 2017, alleging that he was served old food on November 22, 2016. Id. at ¶ 33. His appeal was denied on July 13, 2017. Id. at ¶ 34. Given that the time for a response had elapsed, Coutinho-Silva's claim was fully exhausted when he failed to receive a response from the Central Office by April 30, 2017. Id. at ¶ 35.
This administrative remedy concerns what Coutinho-Silva denominated as his rice claim.
Coutinho-Silva's complaint was docketed with the Court on January 23, 2017. Id. at ¶ 36.
Although Coutinho-Silva does not dispute the facts set forth above by Ramirez, he contends that administrative remedies were unavailable to him as to his claims other than his rice claim. In this regard, he asserts in his brief in opposition that many of the grievances that he tried to file were never documented. Doc. 53 at 2. More specifically, he states that he filed many grievances that staff never processed including "grievances against food services for serving 'old food' in unsanitary conditions, i.e., 'trays.'" Id. at 5. In fact, he states that he "attempted to complain, file, at every level in the grievance process" regarding all the claims in his amended complaint except the rice claim. Id. According to Coutinho-Silva, staff "threw his mail away and didn't process his grievances on these issues." Id. He continues that he personally observed a corrections officer interfere with his grievance regarding the dirty trays. Id. He further states that he "was provided NO information from staff despite his requests; further, [his] language barrier made his attempts to self-learn arduos [sic] and nearly impossible." Id. at 6. "The responses he did get to his grievances, he couldn't read nor comprehend making his procedural actions in filing more like a 'guessing game' than the pursuit of a process." Id. According to Coutinho-Silva, he "might as well of been given No handbook for grievances because his was in English, a language he only began to learn in prison." Id. And, he continues, he "lived in a 'grievance blackhole' for years, up to when he attempted to file on issues 1, 2, 3, 4 and 6." Id. at 7. He asserts that "[f]or years it was a hit and miss policy, sometimes he got inmate help, inadequately as defendant[']s grievance exhibits represent, and sometimes he couldn't." Id. "Staff consistently, by inaction, made them unavailable." Id.
In his brief in opposition, Coutinho-Silva admits that he did not exhaust available administrative remedies as to his rice claim before filing this action. See Doc. 53 at 5, 10. Thus, he concedes that the Court should dismiss his rice claim. Id. But, according to Coutinho-Silva, administrative remedies were not available to him as to his claims other than his rice claim.
Further, as to his claim regarding the dirty trays, Coutinho-Silva asserts that as alleged in his amended complaint, an officer threw away his grievance and told him he was complaining too much. Id. at 7-9; see also Doc. 36 at 2 ("Concerning the tray claim, I never received a response to the 2 BP8's I filed and the c.o. told me that that was because I was complaining to[o] much about food service. I tried to file a BP9 but I never got a response to that either."). According to Coutinho-Silva, as result of witnessing guards retaliating against prisoners who complain, he took the officer's statement as a warning and heeding that warning, he did not pursue his grievance further. Doc. 53 at 7-8, 10.
Coutinho-Silva also asserts the following in connection with the grievances that he did file: many of the grievances that he filed were obstructed by staff resulting in their dismissal as untimely; staff refused to help him with those grievances and the grievance procedures; he is a non-English speaker and writer; he is still learning English, but from 2012-2016, he knew much less than he does now; he could not write English at all; staff refused to write his grievances or provide a translator; he was not given any policy statements in his native Portuguese; and his disciplinary reports were also only in English. Doc. 53 at 2-3. These contentions concern grievances that Coutinho-Silva did file, which as the undisputed facts above show, with one exception (as to the rice claim), did not concern his food or trays. Thus, we do not address these contentions further.
We cannot accept statements made only in an unsworn brief as facts for summary judgment purposes. Here, however, Coutinho-Silva later filed a sur-reply brief declaring under penalty of perjury that the facts he asserts in his brief in opposition are true and correct. See Doc. 62 at 1. Given that assertion and because Coutinho-Silva is proceeding pro se, we will consider the facts set forth by Coutinho-Silva in his brief in opposition as facts set forth in an unsworn declaration, and we will consider those facts in deciding whether defendant Ramirez is entitled to summary judgment.
Further, Coutinho-Silva signed his amended complaint under penalty of perjury. See Doc. 36 at 8. While a nonmoving party may not rely on mere allegations in a complaint to create a genuine factual dispute at the summary-judgment stage, where, as here, the complaint is verified, the court treats specific, factual allegations in the complaint that are based on personal knowledge as if they were made in an affidavit or declaration. See Parkell v. Danberg, 833 F.3d 313, 320 n.2 (3d Cir. 2016) ("Because [statements in verified complaint and other court filings] were signed under penalty of perjury in accordance with 28 U.S.C. § 1746, we consider them as equivalent to statements in an affidavit."); Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit in opposition to a motion for summary judgment); Boomer v. Lewis, No. 3:06-CV-0850, 2009 WL 2900778, at *14 (M.D. Pa. Sept. 9, 2009) ("A verified complaint may be treated as an affidavit in support of or in opposition to a motion for summary judgment if the allegations are specific and based on personal knowledge."), aff'd, Boomer v. Lewis, 541 F. App'x 186, 193 (3d Cir. 2013). Thus, we consider Coutinho-Silva's allegation in his verified complaint that "[c]oncerning the tray claim, [he] never received a response to the 2 BP8's [he] filed and the c.o. told [him] that that was because [he] was complaining to[o] much about food service." Doc. 36 at 2. Similarly, we consider the allegation that Coutinho-Silva "tried to file a BP9 but [he] never got a response to that either." Id.
3. The Exhaustion Requirement.
The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust available administrative remedies before filing an action challenging prison conditions:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. §1997e(a). "Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Jones v. Bock, 549 U.S. 199, 204 (2007). "This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record." Id. Thus, the benefits of the exhaustion requirement "include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record." Id. at 219.
In accordance with § 1997e(a), the exhaustion of available administrative remedies is mandatory, Booth v. Churner, 532 U.S. 731, 739 (2001), and the "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong," Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner must "exhaust all available administrative remedies" regardless of whether the administrative process may provide the prisoner with the relief that he is seeking. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). "[C]ompliance with the administrative remedy scheme will be satisfactory if it is substantial." Id. at 77.
42 U.S.C. § 1997e(a) requires proper exhaustion. Woodford v. Ngo, 548 U.S. 81 (2006). In other words, it requires more than simple exhaustion, i.e., more than that there is no further process available to the prisoner within the grievance system. Spruill v. Gillis, 372 F.3d 218, 227-31 (3d Cir. 2004). Section 1997e(a) requires that a prisoner follow the procedural requirements set forth in the administrative-remedy process that is available to him. Id. at 231. The prison-grievance procedures supply the yardstick for measuring whether exhaustion was proper. Id.; see also Jones, 549 U.S. at 218 ("The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.").
"Under the PLRA, exhaustion is a precondition for bringing suit under § 1983." Small v. Camden Cty, 728 F.3d 265, 269 (3d Cir. 2013). It is a '"threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time.'" Id. at 270 (emphasis in original) (quoting Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010)). There is no right to have a jury decide the issue of exhaustion. Id. at 271. Rather, "exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts." Id. at 269. But "some form of notice to the parties and an opportunity to respond are needed before a district court elects to resolve factual disputes regarding exhaustion." Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018).
4. The Court should dismiss Coutinho-Silva's rice claim because Coutinho-Silva failed to exhaust available administrative remedies as to that claim prior to filing this action.
It is undisputed that Coutinho-Silva exhausted available administrative remedies as to his rice claim, but he did not do so until after he had filed this action. Coutinho-Silva began this action in the United States District Court for the Eastern District of Pennsylvania in January of 2017 and he filed his application for leave to proceed in forma pauperis in February of 2017. See Docs. 1, 5. But he did not exhaust his administrative remedies as to his rice claim until April 30, 2017. See Doc. 46 at ¶ 35 ("Given that the time period for response had elapsed, Coutinho-Silva's claim was fully exhausted when he failed to receive a response from the Central Office by April 30, 2017.").
42 U.S.C. § 1997e(a) requires that a prisoner exhaust available administrative remedies before commencing a lawsuit. Oriakhi v. United States, 165 F. App'x 991, 993 (3d Cir. 2006) ("To satisfy [the exhaustion] requirement, a prisoner must exhaust all available administrative remedies prior to filing suit, including a Bivens action."). "A prisoner may not satisfy the . . . exhaustion requirement by exhausting administrative remedies after initiating suit in federal court." Jenkins v. Dancha, 723 F. App'x 174, 175 (3d Cir. 2018). "If exhaustion is incomplete when an inmate files suit, dismissal is mandatory." Ryder v. Bartholomew, 715 F. App'x 144, 149 (3d Cir. 2017); see also Turner v. Sec'y Pennsylvania Dep't of Corr., 683 F. App'x 180, 182 n.1 (3d Cir. 2017) ("An inmate cannot cure non-compliance with § 1997e(a) by exhausting remedies after filing his complaint."). "An inmate cannot exhaust claims pending in court and then seek to cure non-compliance with § 1997e(a) by filing an amended complaint." Ryder, 715 F. App'x at 149; see also Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) ("Whatever the parameters of 'substantial compliance' referred to [in Nyhuis, 204 F.3d 77-78] it does not encompass . . . the filing of a suit before administrative exhaustion, however late, has been completed. It follows that Ahmed cannot cure the defect in his action by the proffered amendment of the complaint." (footnote omitted)).
Here, Coutinho-Silva concedes that the did not exhaust available administrative remedies as to his rice claim until after he filed this suit and that his rice claim should be dismissed. See Doc. 53 at 5, 10. Because Coutinho-Silva did not exhaust available administrative remedies as to his rice claim before filing this action, we recommend that the Court dismiss his rice claim without prejudice to Coutinho-Silva filing another action as to the rice claim. See Ryder, 715 F. App'x at 149 ("Ryder should have fully exhausted available remedies, and then filed another suit, if he wanted federal court review of those claims without fear of an affirmative defense based on non-exhaustion under the PLRA.").
5. The Court should not dismiss Coutinho-Silva's remaining claims at this time for failure to exhaust available administrative remedies.
Coutinho-Silva contends that administrative remedies were not available to him as to his claims other than his rice claim.
"The only limit to § 1997e(a)'s [exhaustion] mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are 'available.'" Ross v. Blake, 136 S. Ct. 1850, 1862 (2016) (quoting § 1997e(a)). In other words, "the exhaustion requirement hinges on the 'availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Id. at 1858 (quoting § 1997e(a)). "[T]he ordinary meaning of the word 'available' is 'capable of use for the accomplishment of a purpose,' and that which 'is accessible or may be obtained.'" Id. (quoting Booth, 532 U.S. at 737-38 (internal citations and quotation marks omitted)). "Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Id. at 1859 (Booth, 532 U.S. at 738).
The Supreme Court has noted "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859. "First, . . . an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates," such as when "a prison handbook directs inmates to submit their grievances to a particular administrative office—but in practice that office disclaims the capacity to consider those petitions." Id.
Second, "an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. "In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. "When an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion." Id. "But when a remedy is . . . essentially 'unknowable'—so that no ordinary prisoner can make sense of what it demands—then it is also unavailable." Id. (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007)); see also Small, 728 F.3d at 271 ("Remedies that are not reasonably communicated to inmate may be considered unavailable for exhaustion purposes.").
Third, administrative remedies are unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross, 136 S. Ct. at 1860, 1860 n.3 (citing Davis v. Hernandez, 798 F.3d 290, 295 (5th Cir. 2015) ("Grievance procedures are unavailable . . . if the correctional facility's staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process" (emphasis deleted); Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013) ("A remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy"); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) ("[I]f prison officials misled [a prisoner] into thinking that . . . he had done all he needed to initiate the grievance process," then "[a]n administrative remedy is not 'available'"); Tuckel v. Grover, 660 F.3d 1249, 1252-1253 (10th Cir. 2011) ("[W]hen a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation, that process can no longer be said to be 'available' "); Goebert, 510 F.3d at 1323 (If a prison "play[s] hide-and-seek with administrative remedies," then they are not "available")); see also Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016) (holding that administrative remedies were unavailable to a prisoner when the prison failed to timely respond to the prisoner's "grievance and then repeatedly ignored his follow-up requests for a decision on his claim").
Here, Coutinho-Silva contends that administrative remedies were not available to him as to his claims other than his rice claim because correction officers thwarted his ability to use the administrative-remedy process. More specifically, as set forth above, in addition to asserting that staff failed to assist him in submitting grievances, Coutinho-Silva asserts that he submitted many grievances that staff never processed including "grievances against food services for serving 'old food' in unsanitary conditions, i.e., 'trays.'" Doc. 53 at 5. In fact, he states that he "attempted to complain, file, at every level in the grievance process" regarding all the claims in his amended complaint except the rice claim. Id. According to Coutinho-Silva, staff "threw his mail away and didn't process his grievances on these issues." Id. He continues that he personally observed a corrections officer interfere with his grievance regarding the dirty trays. Id. In this regard, he asserts that an officer threw away his grievance and told him he was complaining too much. Id. at 7-9. As set forth above, Coutinho-Silva declared under penalty of perjury that the above facts are true and correct. See Doc. 62.
'"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence."' Paladino, 885 F.3d at 209-10 (quoting Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)). "Rather, 'the non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor.'" Id. at 210 (quoting Marino, 358 F.3d at 247).
Thus, given Coutinho-Silva's assertions, there is a genuine factual dispute about whether the correction officers thwarted Coutinho-Silva's ability to use the administrative-remedy process. And that dispute is material to whether there were administrative remedies available to Coutinho-Silva for him to exhaust. Thus, we recommend that the Court not grant summary judgment as to Coutinho-Silva's claims other than the rice claim.
B. Coutinho-Silva's remaining claims (claims other than the rice claim) should be dismissed for failure to state a claim upon which relief can be granted.
Ramirez contends that the complaint fails to state a claim against him upon which relief can be granted.
1. Motion to Dismiss Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing a motion to dismiss, "[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
"A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a)." I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F. Supp. 2d 762, 769-70 (M.D. Pa. 2012). "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to "show" such an entitlement with its facts." Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court must accept as true all well-pleaded factual allegations in the complaint, and the court must draw all reasonable inferences from the facts alleged in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). But 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). A court also need not "assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
2. The amended complaint fails to state a claim upon which relief can be granted as to the remaining claims.
Coutinho-Silva's claims are based on the Eighth Amendment, which "prohibits the infliction of 'cruel and unusual punishments.'" Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015) (quoting U.S. Const. amend. VIII). Conditions that inflict needless suffering, whether physical or mental, may constitute cruel and unusual punishment. Tillery v. Owens, 719 F.Supp. 1256, 1275 (W.D. Pa. 1989), aff'd, 907 F.2d 418 (3d Cir. 1990). An Eighth Amendment claim gives rise to a two-prong analysis; such a claim has both an objective element and a subjective element. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018) ("A properly stated Eighth Amendment claim must allege a subjective and objective element.").
As to the objective element, a defendant violates the Eighth Amendment when he or she deprives an inmate of "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To violate the Eighth Amendment, the prisoner must be "denied basic human needs, such as food, clothing, shelter, sanitation, medical care [or] personal safety." Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997). The focus is on whether the prisoner was deprived of a particular basic necessity:
Some conditions of confinement may establish an Eighth Amendment violation "in combination" when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets. To say that some prison conditions may interact in this fashion is a far cry from saying that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as "overall conditions" can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.Wilson v. Seiter, 501 U.S. 294, 304-05 (1991) (citations omitted). The amount of time a prisoner is subject to a condition is also important: "[T]he length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of "grue" might be tolerable for a few days and intolerably cruel for weeks or months." Hutto v. Finney, 437 U.S. 678, 686-87 (1978).
Further, determining whether "conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to" the conditions. Helling v. McKinney, 509 U.S. 25, 36 (1993). "It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id. "In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate." Id.
"[O]nly extreme deprivations are adequate to satisfy the objective component of an Eighth Amendment claim regarding conditions of confinement." Tsosie v. Dunbar, 3:10-CV-2104, 2012 WL 1191642, at *8 (M.D. Pa. Apr. 10, 2012), aff'd, 504 F.App'x 75 (3d Cir. 2012). The Constitution does not mandate comfortable prisons, Wilson, 501 U.S. at 298, and conditions that are not cruel and unusual are not unconstitutional. Rhodes, 452 U.S. at 347. "To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id.
As to the subjective component, the question is whether the defendant acted with deliberate indifference to the inmate's health or safety. Hudson v. McMillian, 503 U.S. 1, 8 (1992). "[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id.
Thus, "[a] claim of inhumane prison conditions may rise to the level of an Eighth Amendment violation where the prison official 'deprived the prisoner of the minimal civilized measure of life's necessities' and 'acted with deliberate indifference in doing so, thereby exposing the inmate to a substantial risk of serious damage to [his] future health.'" Palakovic v. Wetzel, 854 F.3d 209, 225 (3d Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016)).
Here, Coutinho-Silva has not alleged facts that plausibly support the objective element of an Eighth Amendment claim. He claims that the defendants violated the Eighth Amendment by serving him moldy jelly, spoiled coleslaw, spoiled macaroni salad, and rotten apples, all of which he did not eat. Prisoners are entitled to well-balanced meals containing sufficient nutritional value to preserve health. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). And "[t]he Eighth Amendment requires that prison officials serve 'nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.'" Sloan v. Chambers, No. 3:CV-12-1954, 2016 WL 4245550, at *11 (M.D. Pa. Aug. 11, 2016) (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980)). "[B]ut isolated instances of spoiled food or occasional and short-lived problems with food service are insufficient to state a cognizable claim under the Eighth Amendment." Muhammad v. Mathena, No. .7:14-CV-00134, 2015 WL 300363, at *2 (W.D. Va. Jan. 22, 2015), aff'd, 610 F. App'x 264 (4th Cir. 2015); see also Rieco v. Moran, 633 F. App'x 76, 78 (3d Cir. 2015) ("The District Court correctly concluded that Rieco failed to state an Eighth Amendment claim of food tampering because his Complaint contained no allegation that he ate the food, and that doing so caused him to suffer injury."). And "[t]he deprivation of food constitutes cruel and unusual punishment only if it denies a prisoner the 'minimal civilized measure of life's necessities.'" Berry, 192 F.3d at 507 (quoting Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998)). "Whether the deprivation of food falls below this threshold depends on the amount and duration of the deprivation." Id.; see also Rieco, 2015 WL 7730985, at *1 (holding that the deprivation of a single meal does not amount to an Eighth Amendment violation); Zanders v. Ferko, 439 F. App'x 158, 160 (3d Cir. 2011) (holding that denial of lunch on one day and the denial of breakfast and lunch the next day does not rise to the level of a constitutional violation).
Here, Coutinho-Silva alleges that he was served moldy jelly, spoiled coleslaw and macaroni salad, and rotten apples. He also alleges, however, that he did not eat the spoiled food. Although he alleges that he was served these spoiled items on numerous occasions over a four-year period, he has not alleged that the other food he was served at the times he was served these foods was not edible. Thus, he does not allege that he was denied meals, just portions of meals. And he has not alleged that he went hungry or that the remaining food that he was served was not nutritionally adequate to maintain his health or weight. In fact, although he alleged that the spoiled food was served to him over a four-year period, he has not alleged that he lost weight because of not eating the spoiled food.
Coutinho-Silva alleges a pattern of serving moldy jelly, spoiled coleslaw and macaroni salad, and rotten apples, but he has not alleged facts to suggest that he was denied "the minimal civilized measure of life's necessities." Rhodes, 452 U.S. at 347. In sum, the amended complaint fails to allege facts suggesting that the defendants violated the objective element of the Eighth Amendment. Thus, the amended complaint fails to state an Eighth Amendment claim upon which relief can be granted.
Because we conclude that the amended complaint fails to allege the objective element of an Eighth Amendment claim, we do not address Ramirez's other contentions for why the amended complaint fails to state a claim upon which relief can be granted.
3. Further leave to amend would be futile.
"[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The court "must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to amend." Id.
Here, we previously granted Coutinho-Silva leave to amend, and he filed an amended complaint that contains detailed factual allegations. But the amended complaint still fails to state a claim upon which relief can be granted as to the claims other than the rice claim. Thus, granting Coutinho-Silva further leave to amend would be futile.
C. The Court should dismiss the claims against the John Doe defendants for the same reasons it should dismiss the claims against defendant Ramirez.
While none of the John Doe defendants have responded to the amended complaint or have even been served in this case, we recommend that the Court dismiss the claims against them for the same reasons we recommend that the Court dismiss the claims against defendant Ramirez.
"District courts 'possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.'" In re SemCrude L.P., 864 F.3d 280, 296 (3d Cir. 2017) (quoting Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 280 (3d Cir. 2010)). '"Notice' simply requires that 'the targeted party ha[ve] reason to believe the court might reach the issue and receive[ ] a fair opportunity to put its best foot forward.'" Id. (quoting Couden v. Duffy, 446 F.3d 483, 500 (3d Cir. 2006)).
Under the summary-judgment rubric, we have recommended that Coutinho-Silva's rice claim be dismissed without prejudice to him refiling that claim in another case since he has now exhausted administrative remedies. Given that Ramirez moved for summary judgment as to this rice claim because Coutinho-Silva failed to exhaust available administrative remedies prior to filing this action, Coutinho-Silva was on notice that he had to come forward with all of his evidence. Instead of submitting evidence in opposition to the dismissal of his rice claim, Coutinho-Silva conceded that the Court should dismiss that claim. Thus, the Court should also dismiss that claim as to the John Doe defendants.
We also recommend that the Court dismiss Coutinho-Silva's remaining claims (the claims other than the rice claim) against the John Doe defendants because the amended complaint fails to state a claim upon which relief can be granted as to those claims. 42 U.S.C. § 1997e(c)(1) provides that "[t]he court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action . . . fails to state a claim upon which relief can be granted." Here, as discussed above in connection with Ramirez's motion to dismiss, the amended complaint fails to state a claim upon which relief can be granted as to the remaining claims.
IV. Recommendations.
Accordingly, we recommend that the Court grant defendant Ramirez's motion (doc. 43) to dismiss and for summary judgment. We recommend that the Court dismiss Coutinho-Silva's rice claim without prejudice to him refiling that claim in a new case now that he has exhausted administrative remedies. We also recommend that the Court dismiss Coutinho-Silva's other claims because they fail to state a claim upon which relief can be granted. Finally, we recommend that this case file be closed.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Submitted this 12th day of July, 2018.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge