Opinion
Civil Action 21-1210
05-05-2023
STEPHEN BARRY GIBBONS, Plaintiff, v. BICKELL, Executive Deputy Secretary of the Western Region, RICH KUSTENBAUDER Deputy Bickell's Secretary, ERIC TICE, Superintendent of SCI Somerset, DAN GORO, Co III SCI Somerset, LT. SWANK, Security Lt. SCI Somerset, ZACHARY MOSLAK, Chief Hearing Examiner, D. PERRY, Unit Manager SCI Forest, OBERLANDER, Superintendent SCI Forest, ULIMMI CLEIM, Head of the DOC Religions Dept., SABANDA, Imam SCI Greene, M. ZAKEN, Facility Manager Central Office, SUTHERLAND, Nurse Practitioner SCI Forest, W. NICHOLSON, CHCA SCI Forest, DR. LESLIE, Physician SCI Forest and JOHN WETZEL, Secretary of DOC, Defendants.
Marilyn J. Horan, District Judge.
Re: ECF Nos. 37 and 43
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Stephen Barry Gibbons, an inmate incarcerated at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”) brings this pro se action arising of allegations that his constitutional rights were violated as a result of his right to practice his religion being limited, his right to receive sufficient medical care being compromised, and his allegedly wrongful placement in the Security Threat Group Management Unit (“STGMU”) program. ECF No. 13.
Presently before the Court is a Motion to Dismiss filed by Defendants Andrew Leslie (“Leslie”) and William Sutherland (“Sutherland”) (collectively, the “Medical Defendants”). ECF No. 37. Also before the Court is a Motion to Dismiss filed by Defendants Bickell, Ulimmi Cleim (“Cleim”), Rich Kustenbauder (“Kustenbauder”), Zachary Moslak (“Moslak”), W. Nicholson (“Nicholson”), Oberlander, D. Perry (“Perry”), Sabanda, Lt. Swank (“Swank”), Eric Tice (“Tice”), John Wetzel, (“Wetzel”), and M. Zaken (“Zaken”) (collectively, the “Corrections Defendants”).ECF No. 43.
Plaintiff identifies these individuals in his Complaint as “Sutherland Nurse Practitioner SCI Forest” and “Dr. Leslie Physician SCI Forest.” According to the Medical Defendants, they are properly identified as William Sutherland, PA/CRNP and Andrew J. Leslie, PA, respectively.
Counsel has not entered an appearance for Defendant Dan Goro, and he is not included as a moving party in the Corrections Defendants' Motion to Dismiss. ECF Nos. 40 and 43.
For the reasons below, it is respectfully recommended that the Medical Defendants' Motion to Dismiss be granted, and that the Corrections Defendants' Motion to Dismiss be granted in part and denied in part.
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff began this action on September 10, 2021 by lodging a Complaint without paying the filing fee or moving for leave to proceed in forma pauperis. ECF No. 1. Plaintiff later submitted the filing fee, and his Complaint was filed on December 7, 2021. ECF No. 13.
1. Factual Allegations
a. STGMU Program
(1) Initial placement and transfer to SCI-Forest
In his Complaint, Plaintiff alleges that he was improperly placed in the STGMU program, despite having no history of violent, problematic, or gang-related activity in prison. Id. ¶ 3. Around July 2019, Defendant Swank placed Plaintiff under a security investigation involving security threat groups (“STG”), drugs, and institutional violence, among other things. Id. ¶ 24; ECF No. 61-1 at 2. Under DOC policy, Plaintiff was transferred from the general population to the Restricted Housing Unit (“RHU”) at the State Correctional Institution at Somerset (“SCI-Somerset”) pending the outcome of that investigation. ECF No. 13 ¶ 24; ECF No. 61-1 at 1-2.
Plaintiff alleges that he was informed he was being transferred to the RHU pursuant to DC-ADM 802 Section 1(B)(1)(f), which states that inmates may be placed in administrative custody if “the inmate has been charged with, or is under investigation for a violation of facility rules, and there is a need for increased control pending disposition of charges or completion of the investigation.” DC-ADM 802, available at https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (last visited May 5, 2023).
Plaintiff refers to various exhibits throughout his Complaint, but he did not attach any exhibits to his Complaint. See, e.g., ECF No. 13 ¶¶ 29-31. The exhibits he refers to in his Complaint instead appear to be included with his subsequently filed Brief in Support of his “Supplemental Objections” to the Motion to Dismiss, ECF No. 61. Because Plaintiff relies on and refers to these documents in support of his Complaint, the Court considers these documents in resolving Defendants' Motion to Dismiss. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (“a document integral to or expressly relied upon in the complaint may be considered without converting the motion [to dismiss] into one for summary judgment.”) (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996), superseded on other grounds)) (internal quotations omitted).
On July 22, 2019, Plaintiff was transferred to the STGMU program at the State Correctional Institution Forest (“SCI-Forest”). ECF No. 13 ¶ 25. Upon being transferred, he alleges that was not presented with any charges and did not receive a disciplinary hearing on any alleged misconduct. Id. He did not have any opportunity to file a grievance or appeal his placement before he was transferred. Id.
Seventeen days after the investigation began, the SCI-Somerset Program Review Committee (“PRC”) sent Plaintiff a decision and rationale for his placement. Id. ¶ 26. Defendant Dan Goro “signed off on” this decision. Id.
The “Program Review Committee” is a committee of “staff members that conduct Administrative Custody Hearings, periodic reviews, make decisions regarding continued confinement in the Restricted Housing Unit (RHU) and/or Special Management Unit (SMU) and hear all first level appeals of misconducts.” DC-ADM 801.
Plaintiff also met in person with PRC officials at SCI-Forest, including Defendant Perry, on July 25, 2019 for an “802 hearing.” Id. ¶ 28; ECF No. 61-1 at 5. Prison officials informed him that he had been deemed a “danger to himself or others,” and that he would continue his administrative custody status in the STGMU program. ECF No. 13 ¶¶ 27-28; ECF No. 61-1 at 5. He received two days to appeal his placement. ECF No. 13 ¶ 28; ECF No. 61-1 at 5.
(2) DC-ADM 802 appeals from PRC decision
Plaintiff appealed his custody status, arguing that he never had a hearing on any misconduct charges, PRC did not have a hearing with him present to determine his placement, and that SCI-Somerset officials violated DOC policy for placing an inmate in administrative custody under DC-ADM 802. ECF No. 13 ¶ 29; ECF No. 61-1 at 6-7.
Defendant Tice, Superintendent of SCI-Somerset, responded as follows on August 7, 2019.
I have reviewed the Other Report placing you on AC status as well as the first level appeal by PRC.
In review, I have determined that you do not provide any evidence that the AC placement was completed contrary to DOC ADM 802. You have been identified as a person who has been involved in criminal and disruptive activities within this facility. Your disruptive activities are connected to your affiliation with a known STG which you are a validated member of. Due to the significant and immediate threat of further disruption, Executive Placement was approved for the STGMU.ECF No. 61-1 at 6.
On August 8, 2019, Defendant Oberlander, Superintendent of SCI-Forest, responded that Plaintiff was “sent to the STGMU at SCI Forest as an Executive Privilege Placement,” and that after his transfer to SCI-Forest, prison officials at SCI-Somerset “completed the required documentation regarding [his] placement.” Id. at 10. Oberlander remanded to the PRC to conduct an 802 hearing, however, to provide Plaintiff “with the rationale for [his] placement in the STGMU via a DC-141 Part 4” form. Id. Oberlander informed Plaintiff that he could appeal this decision after receiving the rationale. Id.
On August 8, 2019, PRC officials met with Plaintiff regarding his STGMU placement and issued a DC-141, Part 4 form. As documented, Plaintiff expressed that he “honestly does not understand why he has been placed in STGMU,” and the PRC informed him that “he arrived at SCI Forest as an EPP [Executive Privilege Placement] by the EDS [Executive Deputy Secretary] for placement into the STGMU.” ECF No. 13 ¶ 46; ECF No. 61-1 at 13.
On August 14,2019, Defendant Moslak, Chief Hearing Examiner, denied Plaintiff s appeal of his placement to final review.
In accordance with the provisions of the STGMU policy and DC-ADM 802,1 have reviewed all documents related to your recommendation for STGMU Placement. The recommendation for your transfer to the STGMU is in complete accordance with the referral process for STGMU placement and DC-ADM 802. The reasons for STGMU placement were explained to you by the staff at the institution level. At final review this office must agree with their responses.ECF No. 61-1 at 16.
Plaintiff sent another inquiry to Oberlander, and Oberlander again remanded the matter on September 5, 2019 to the PRC to provide a specific rationale for Plaintiff s placement. Id. at 1112. Oberlander stated there was no violation of DC-ADM 802 in continuing Plaintiff s AC status. Id. at 12.
On September 12, 2019, PRC members provided another DC-141, Part 4 form stating the following rationale for Plaintiffs placement.
Inmate Barry-Gibbons arrived at SCI Forest on 7/23/19 as an EPP placement in the STGMU program. Information received from Somerset states that Inmate Barry-Gibbons is a validated Bloods member who ordered a hit on another inmate due to not providing the narcotics that were sent to him at the Clarion County Jail. Security Office at Somerset was able to determine that Inmate Barry-Gibbons set up an LLC in order for inmates at Somerset to pay for the drugs that Inmate Barry-Gibbons was selling in [general population].Id. at 15.
After Plaintiff received this rationale, Oberlander issued a response to Plaintiff s PRC appeal on October 1, 2019, finding there were no violations of policy or procedure relative to Plaintiff's placement in the STGMU, and that placement “was appropriate due to [his] actions and poor behavior.” Id. at 33.
(3) Grievance
On September 3, 2019, Plaintiff also filed a grievance about his custody status in the STGMU. ECF No. 13 ¶ 51. Defendant Perry provided the Initial Review response on September 13, 2019, and he denied the grievance as follows.
I have reviewed this grievance and find that inmate Barry-Gibbons was reviewed and cleared for STGMU placement by DOC Central Office. He has been provided with a Part-4 detailing the rational[e] for his placement. His request for relief is denied.ECF No. 61-1 at 36.
Plaintiff appealed this decision. Id. at 37. Oberlander denied the appeal on October 28, 2019, noting that Plaintiff did not provide any evidence showing there was a violation of policy or procedure, and that his complaint about his custody status should have been filed under DC-ADM 802 instead of through the grievance process. Id. at 38.
(4) Other correspondence/complaints about custody status
In addition to his grievances and appeals, Plaintiff wrote a letter to Defendant Bickell, Executive Deputy Secretary of the Western Region, about his placement. ECF No. 13 ¶ 33; ECF No. 61-1 at 21. Defendant Kustenbauder, Staff Assistant, responded to this letter on September 5, 2019. ECF No. 13 ¶ 34; ECF No. 61-1 at 20. Kustenbauder wrote, in part:
Mr. Barry-Gibbons, you claim Somerset staff processed you for the STGMU program without justification as you have no gang-related misconducts and no STG involvement. Placement is not specifically related to those two factors alone. Institutional staff must present a justification to the Facility Manager and Executive staff in order for placement to occur.
Available records do not indicate you were staffed via a vote sheet for STGMU consideration at this time, therefore there is no indication you received the approved recommendation for a STGMU Transfer from Somerset staff. However, a review
of electronic records indicates members of SCI-Forest's Program Review Committee (PRC) met with you on 07/26/2019 to inform you of your placement into the STGMU program. On 08/08/2019, PRC notified you of the decision for placement on the STGMU, and provided you with the DC-141 Part 4.
You have exhausted the appeal process outlined in DC-ADM 802. It is not the role of this office to review appeals. Executive Deputy Bickell will vote on the final packet in accordance with DOC policy.ECF No. 61-1 at 20.
Plaintiff also submitted an inmate request to staff to Defendant Perry about his placement on September 20, 2019. ECF No. 13 ¶ 36. Perry responded that he does not determine Plaintiffs placement and just handles the program. ECF No. 61-1 at 8.
(5) Parole
Plaintiff alleges that his placement in the STGMU affected his ability to obtain parole. ECF No. 13 ¶ 56. On April 27, 2020, Plaintiff was denied parole for various reasons, including his need to participate in institutional programs, his institutional behavior and reported misconducts, failure to demonstrate a motivation for success, the existence of a pending state detainer, and the DOC's negative recommendation. Id.; ECF No. 61-2 at 1-2.
b. Religious Practice
Plaintiff also alleges that he is a practicing Muslim. ECF No. 13 ¶ 6. After Plaintiff was transferred to the State Correctional Institution at Greene (“SCI-Greene”) around January 31, 2020, he submitted three request slips in February and March 2020 requesting forms to participate in Ramadan, which began that year on April 23,2020. Id. ¶¶ 57-59; ECF No. 61-3 at 5.
Sabanda, an imam in the chaplain's office at SCI-Greene, did not respond to Plaintiff s requests until March 10, 2020. ECF No. 13 ¶ 60. Sabanda responded that Plaintiffs religious preference was listed as “none” and not “Muslim” in the DOC's records, and that “he must be listed as a Muslim to be able to participate in Ramadan.” Id. ¶¶ 19,60; ECF No. 61-3 at 5. Sabanda did not explain how to resolve this issue. ECF No. 13 ¶ 60.
Plaintiff later learned from a chaplain conducting rounds that he needed to fill out a Religious Preference Form indicating that he was Muslim. Id. ¶ 62. He submitted his Religious Preference Form on April 14, 2020, but it was not approved until April 27, 2020-four days after Ramadan began.
Plaintiff alleges two different dates of April 7,2020 and April 14, 2020 as to when he submitted his Religious Preference Form. ECF No. 13 ¶¶ 62, 68. Based on documents that Plaintiff has provided, April 7 is when he requested to receive this form and April 14 is when he signed the Religious Preference Form. ECF No. 61-3 at 7-8.
Plaintiff filed a grievance on March 20,2020 about his inability to participate in Ramadan. His grievance and subsequent appeals were denied because he was not timely registered as a Muslim with the DOC, and his documented religious preference was listed as “none” effective October 25, 2019. Id. ¶¶ 64-68; ECF No. 61-3 at 9-14. Sabanda told Plaintiff that he needed to update his religious preference at least one month before Ramadan started. ECF No. 13 ¶ 68. Plaintiff disputed that he had changed his religious preference to “none.” ECF No. 61-3 at 11.
c. Medical Care
Plaintiff also claims that Defendants did not take “required and medically necessary steps to properly diagnose and treat the plaintiffs medical condition,” resulting in a failure to provide a timely diagnosis. ECF No. 13 ¶ 7. Although Plaintiff refers to symptoms of “physical pain, itching, and psychological trauma,” he does not identify the medical condition or treatment required. Id.
d. Legal Claims
Based on these allegations, Plaintiff brings four claims pursuant to 42 U.S.C. § 1983 under the First, Eighth and Fourteenth Amendments. He pleads a First Amendment claim for violation of the Free Exercise clause against Defendants Sabanda and Cleim; a Fourteenth Amendment due process claim against Defendants Bickell, Kustenbauder, Tice, Swank, Moslak, Goro, Perry, Oberlander, and Zaken; and an Eighth Amendment claim for deliberate indifference to his serious medical needs against Defendants Sutherland, Leslie, and Nicholson. Id. ¶¶ 6, 84-98. Plaintiff also pleads a First Amendment retaliation claim, but he does not specify against whom this claim is asserted. Id. ¶ 5.
2. Motions to Dismiss
The Medical Defendants filed their Motion to Dismiss and Brief in Support on October 28, 2022. ECF Nos. 37 and 38. The Corrections Defendants filed their Motion to Dismiss and Brief in Support on November 30, 2022. ECF Nos. 43 and 44.
Plaintiff filed a response in opposition to the Motions to Dismiss on February 17, 2023. ECF No. 58. Without obtaining leave of Court, he later filed untimely supplemental responses to the Motion to Dismiss on April 11, 2023. ECF Nos. 60 and 61.
On January 5,2023, the Court entered an Order to Show Cause based on Plaintiffs failure to timely respond to the Medical Defendants' Motion to Dismiss. ECF No. 51. In response, Plaintiff stated that his response to the Medical Defendants' Motion to Dismiss was enclosed with a previously filed Motion for Leave to Amend Complaint (“Motion to Amend”). ECF No. 56. While Plaintiff sought leave to incorporate additional allegations against the Medical Defendants in his Motion to Amend, ECF No. 47, he did not separately enclose a response to the Motion to Dismiss or appear to respond to it in the underlying motion. The Court notified Plaintiff that it had not received any response to the Medical Defendants' Motion to Dismiss with Plaintiffs Motion to Amend, and it granted him leave to file a response by February 17,2023. ECF No. 57. Plaintiff later submitted the response in opposition to the Motion to Dismiss, ECF No. 58. Because Plaintiff does not clearly specify to which motion he is responding, the Court construes his response in opposition to both the Medical Defendants and Corrections Defendants' Motion to Dismiss.
The Motions to Dismiss are now ripe for consideration.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys, v. The Chubb Corp., 394 F.3d 126,143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds)-, see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100,103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Medical Defendants' Motion to Dismiss (ECF No. 37)
Plaintiff pleads an Eighth Amendment claim arising out of the denial of medical care. He claims that he experienced unspecified “medical problems” for which he was not “tested properly” as a result of being housed in the RHU. ECF No. 13 ¶ 4. He also claims that he suffered “physical pain, itching, and psychological trauma” because he was not timely diagnosed. Id. ¶ 3.
In order to establish a violation of Plaintiff s constitutional right to adequate medical care, Plaintiff must plead facts showing: (1) a serious medical need; and (2) acts or omissions by defendants that indicate a deliberate indifference to that need. Natale v. Camden Cnty. Corr. Fac., 318 F.3d 575, 582 (3d Cir. 2003).
A medical need is considered “serious” if it “has been diagnosed by a physician as requiring treatment,” or is “so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), affd, 649 F.2d 860 (3d Cir. 1981)); see also Palakovic v. Wetzel, 854 F.3d 209, 227 n. 23 (3d Cir. 2017).
“To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Palakovic, 854 F.3d at 227 (quoting Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009)). “Deliberate indifference may be manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury,. . . or ‘persistent conduct in the face of resultant pain and risk of permanent injury.'” Josey v. Beard, No. 06-265,2009 WL 1858250, at *6 (W.D. Pa. June 29,2009) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (internal citations omitted)).
“Mere misdiagnosis or negligent treatment is not actionable under § 1983 as an Eighth Amendment claim because medical malpractice is not a constitutional violation.” Id. (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “The deliberate indifference ‘test affords considerable latitude to prison medical authorities in the diagnosis and treatment of the medical problems of inmate patients.'” Beckett v. Pa. Dep't of Corr., 597 Fed.Appx. 665, 668 (3d Cir. 2015) (quoting Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). “[W]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Williams v. Fedarko, 807 Fed.Appx. 177,180 (3d Cir. 2020) (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). Thus, “deliberate indifference is generally not found when some level of medical care has been offered to the inmate.” Josey, 2009 WL 1858250, at *6 (citing Clark v. Doe, No. 99-5616, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000) (“[C]ourts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.”)).
In support of the Motion to Dismiss, the Medical Defendants argue that Plaintiff fails to state an Eighth Amendment claim because he does not allege what his serious medical need was or how the Medical Defendants deliberately ignored that need. ECF No. 38 at 5-6. If Plaintiff is attempting to plead a professional negligence claim, they argue, his claim should be dismissed because he does not file a certificate of merit. Id. at 7-8. Finally, the Medical Defendants argue that Plaintiffs claims should be dismissed because he does not affirmatively show that he exhausted his administrative remedies. Id. at 8-9.
Plaintiff does not specifically address his claims against the Medical Defendants in his Response to the Motion to Dismiss. ECF No. 58.
Upon review, the Court should dismiss Plaintiffs Eighth Amendment claim against the Medical Defendants. Plaintiffs Complaint lacks specific allegations to support an Eighth Amendment claim against either Leslie or Sutherland. Although Plaintiff broadly claims that he did not receive sufficient medical care while housed in the RHU, he does not include any facts showing that he suffered a serious medical need. Nor does he plead facts demonstrating the Medical Defendants were deliberately indifferent to that need. For these reasons, the Medical Defendants' Motion to Dismiss should be granted.
To the extent the Medical Defendants argue that Plaintiff fails to show he exhausted his administrative remedies with respect to this claim, the Court notes that failure to exhaust is an affirmative defense to be pleaded by the defendant. Ray v Kertes, 285 F.3d 287, 297 (3d Cir. 2002).
2. Corrections Defendants' Motion to Dismiss (ECF No. 43)
a. First Amendment Retaliation Claim
Plaintiff brings a First Amendment retaliation claim arising out of allegations that he was placed in the STGMU in retaliation for “an inability to find him guilty of a charge within the DOC Handbook at the facility.” ECF No. 13 ¶ 5. While he broadly asserts this claim, he does not specifically plead it against any particular defendants.
In order to state a prima facie claim for retaliation under the First Amendment, a prisoner must plausibly allege that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was a “substantial or motivating” factor for the adverse action. Rauser v. Hom, 241 F.3d 330, 333 (3d Cir. 2001).
In support of the Motion to Dismiss, the Corrections Defendants argue that this claim should be dismissed because Plaintiff does not plead facts showing that he was engaged in any constitutionally protected activity and transferred to the STGMU program as a result. The Corrections Defendants also argue that Plaintiff offers nothing but general, conclusory statements to support his claim that he suffered any adverse action. ECF No. 44 at 8.
In response, Plaintiff argues that he sufficiently pleads a claim based on Defendants' transferring him to the STGMU “in retaliation for any substantial reasons to find Plaintiff guilty of any infraction” of DOC rules. ECF No. 58 at 5-6.
Plaintiff changes his basis for the retaliation claim in his untimely “Supplemental Objections” to the Motion to Dismiss, arguing instead that Defendants retaliated against him for verbally complaining about Swank creating false security reports to justify his placement in the STGMU. ECF No. 61 at 2. However, this allegation does not appear in his Complaint.
Upon review, as the Corrections Defendants point out, Plaintiff cannot satisfy the first prong of a prima facie claim of retaliation because he does not plead specific facts showing that he engaged in any constitutionally protected conduct. Indeed, Plaintiffs claim does not hinge on Plaintiffs conduct at all. Instead, he claims that the Corrections Defendants transferred him in retaliation for their own findings about whether he engaged in any misconduct. The Court also notes that Plaintiff has not pleaded this claim against any particular defendant. Thus, Plaintiff fails to state a claim for retaliation in violation of the First Amendment. Accordingly, the Motion to Dismiss should be granted as to this claim.
b. First Amendment Free Exercise of Religion Claim
Plaintiff also brings a First Amendment claim against Defendants Cleim, the DOC's Religious Coordinator, and Sabanda based on the interference with his free exercise of religion. ECF No. 13 ¶ 6. He claims that these Defendants knew he was Muslim, but they did not allow him to participate in Ramadan as required by his religion. Id. Plaintiff also asserts Sabanda improperly imposed a “deadline” for him to sign up for Ramadan, which does not exist under DOC policy, and that Sabanda did not respond to his requests in a timely and complete manner. Id. ¶¶ 68-69, 91.
Although Plaintiff is incarcerated, the United States Supreme Court has held that “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). “Inmates clearly retain protections afforded by the First Amendment,... including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted). However, an inmate “retains [only] those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974); see also DeHart v. Hom, 227 F.3d 47, 51 (3d Cir. 2000).
As a threshold matter, “only those beliefs which are both sincerely held and religious in nature are entitled to constitutional protection.” DeHart, 227 F.3d at 51. In order to establish a free exercise violation, Plaintiff must show that Defendants “burdened the practice of his religion by preventing him from engaging in conduct mandated by his faith without any justification reasonably related to legitimate penological interests.” Heleva v. Kramer, 330 Fed.Appx. 406, 408 (3d Cir. 2009) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
[Turner] directs courts to assess the overall reasonableness of such regulations by weighing four factors. “First, there must be a ‘valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it,” and this connection must not be “so remote as to render the policy arbitrary or irrational.” Second, a court must consider whether inmates retain alternative means of exercising the circumscribed right. Third, a court must take into account the costs that accommodating the right would impose on other inmates, guards, and prison resources generally. And fourth, a court must consider whether there are alternatives to the regulation that “fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological interests.”DeHart, 277 F.3d at 51 (quoting Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999)).
In support of the Motion to Dismiss, the Corrections Defendants argue that even if the
Court were to find that any “requested items” are required by Plaintiff s sincerely held religious beliefs, there is no evidence the DOC's limited restriction imposed any substantial burden on his rights. ECF No. 44 at 9-10. Although fasting is a part of Ramadan, the Corrections Defendants argue, Plaintiff does not plead facts showing that he was otherwise barred from participating in Ramadan activities by, for example, not being able to pray, attend services, fast, or participate in other religious activities. Id. at 11.
In response, Plaintiff argues that he had a constitutional right to practice his religion as a Muslim and to participate in the Ramadan fast, and that denying him the ability to do so violated his rights under the First Amendment. ECF No. 61.
Plaintiff also argues for the first time in his supplemental response that Defendants violated his rights under the Equal Protection Clause of the Fourteenth Amendment because he was treated differently than similarly situated Muslims. ECF No. 61 at 2. However, he does not plead this claim in his Complaint, and he does not plead any facts showing that he was treated differently from similarly situated individuals.
Upon review, the Motion to Dismiss should be denied on this basis. At this stage, the Corrections Defendants do not contest whether the policy at issue is reasonably related to a legitimate penological interest, or if Plaintiff had a sincerely held religious belief that required him to, among other things, fast during Ramadan. Giving Plaintiff the benefit of inferences he is entitled to at the pleadings stage, the Court cannot say whether the alleged refusal to allow him to “participate in Ramadan” substantially burdened the practice of his religion. Therefore, the Motion to Dismiss should be denied relative to Plaintiffs First Amendment free exercise of religion claim.
The Court notes that the Corrections Defendants generally refer the Court to legal authority on these topics, but they do not specifically argue that Plaintiff fails to state a claim for these reasons based on his allegations. ECF No. 44 at 10-11.
c. Eighth Amendment Claim for Insufficient Medical Care
Plaintiff also brings an Eighth Amendment claim against Nicholson, the Correctional Healthcare Administrator at SCI-Forest, based on his alleged deliberate indifference to Plaintiff s serious medical needs. In support of the Motion to Dismiss, the Corrections Defendants argue that Plaintiff fails to state an Eighth Amendment claim against Nicholson because he solely relies on the generalized allegation that Nicholson had knowledge of a “serious medical need and acted in conscious disregard of that medical need” without providing any supporting factual allegations. ECF No. 44 at 11-12.
Plaintiff does not specifically address this claim in his response.
Upon review, the Court should dismiss Plaintiff's Eighth Amendment claim against Nicholson. Plaintiff's Complaint lacks specific allegations to support an Eighth Amendment claim against Nicholson. Although Plaintiff broadly claims that he did not receive sufficient medical care while housed in the RHU, he does not include facts showing that he suffered a serious medical need. Nor does he plead facts demonstrating the Nicholson was deliberately indifferent to that need. For these reasons, the Motion to Dismiss Plaintiff's Eighth Amendment claim against Nicholson should be granted.
d. Fourteenth Amendment Due Process Claim
Plaintiff pleads a Fourteenth Amendment Due Process claim relative to his placement in the STGMU against Defendants Bickell, Kustenbauder, Tice, Swank, Moslak, Goro, Perry, Oberlander, and Zaken. In support of the Motion to Dismiss, the Corrections Defendants argue that Plaintiff does not establish any protected liberty interest sufficient to trigger the Due Process Clause. The Corrections Defendants also argue that Plaintiff received sufficient process, pointing to Plaintiff's allegations that he was placed in the STGMU program following an investigation, and that he appealed his placement. ECF No. 44 at 13-14.
In response, Plaintiff argues that he was never formally presented with any charges or given any administrative disciplinary hearing on charges that he had violated any DOC rules that would support his placement in the STGMU program. He also argues that he suffered collateral consequences of not qualifying for parole, and thus not being able begin his next criminal sentence, and that he was unable to practice his “religious belief in Tahlim, Juma, Alquid and Ramadan.” ECF No. 58 at 4-5.
This broad assertion does not appear to be supported by any specific allegations in Plaintiff s Complaint. Although he alleges that he was unable to participate in Ramadan on one occasion, he provides documents showing this was refused on the basis he was not timely registered as a Muslim, as opposed to his custody status. ECF No. 61-1 at 9-10.
“The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “In analyzing a procedural due process claim, the first step is to determine whether the nature of the interest is one within the contemplation of the ‘liberty or property' language of the Fourteenth Amendment.” Shoats v. Hom, 213 F.3d 140, 143 (3d Cir. 2000). A protected liberty interest arises only where a restraint “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Williams v. Sec'y Pa. Dept' of Corr., 848 F.3d 549, 558-59 (3d Cir. 2017) (quoting Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997); Sandin v. Conner, 515 U.S. 472, 484 (1995)). If the asserted interest falls within the protections of the Due Process Clause, the second step is to determine whether plaintiff was afforded “all of the process he was due.” Shoats, 213 F.3d at 143.
Plaintiffs due process claim fails at the first step. Plaintiffs Complaint does not allege conditions in the STGMU presented atypical or significant hardship such that placement there could give rise to a due process claim. Although Plaintiff argues that he did not qualify for parole as a result of his placement, his failure to obtain parole does not establish he was deprived of a protected liberty interest. Mutschler v, Tritt, 765 Fed.Appx. 653, 655 (3d Cir. 2019) (United States Constitution and Pennsylvania law do not establish any liberty interest in parole); see also Fantone v. Lione, 780 F.3d 184, 190-91 (3d Cir. 2015) (concluding that inmate did not have protected liberty interest where he was confined to RHU for 35 days, which caused the state parole board to rescind his parole grant, as those factors “did not, either alone or in combination, create atypical and significant hardship in relation to the ordinary incidents of prison life”).
Based on documents Plaintiff has provided, the Court also notes Plaintiff was denied parole for a variety of reasons having nothing to do with his confinement in the STGMU, including his institutional behavior and reported.
Moreover, “[c]ourts in the Third Circuit, including the Court of Appeals, have consistently held that placement in the STGMU does not implicate a liberty interest.” Simmons v. Overmyer, No. 1:18-cv-201,2019 WL 7283318, at *9 (W.D. Pa. Dec. 27,2019) (citing Imes v. Wingard, No. 3:15-cv-0242, 2017 WL 1400143, at *5 (W.D. Pa. Feb. 21, 2017) (concluding that placement in the STGMU at SCI-Forest did not “impose[] an atypical and significant hardship . . . relative to the ordinary incidents of prison life” and, therefore, did not implicate a protected liberty interest); Harris v. Ricci, 595 Fed.Appx. 128, 131 (3d Cir. 2014) (concluding the New Jersey STGMU, a stricter program than the STGMU at SCI-Forest, did not implicate a liberty interest)). Accordingly, the Motion to Dismiss should be granted as to Plaintiffs Fourteenth Amendment Due Process claim.
e. Lack of Personal Involvement
The Corrections Defendants also argue that Plaintiffs claims should be dismissed based on their lack of personal involvement. ECF No. 44 at 3-4. In a civil rights claim, as here, individual government defendants must have personal involvement in the alleged wrongdoing and “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds, Taylor v. Barkes, 135 S.Ct. 2042 (2015) (quoting Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)); see also Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014). “Rather, state actors are liable only for their own unconstitutional conduct.” Barkes, 766 F.3d at 316.
Although supervisors cannot be held liable pursuant to a theory of respondeat superior, there are “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Id. First, a supervisor may be held liable if he “participated in misconducts, his perceived risk to the community, failure to demonstrate motivation for success, the existence of a pending state detainer sentence, and prior unsatisfactory parole supervision history. ECF No. 61-2 at 1. violating the plaintiffs rights, directed others to violated them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010) (citing A.M. ex rel. J.M.K. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). Second, a supervisor may be liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M., 372 F.3d at 586 (quoting Stoneking v, Bradford Area Sch. Disk, 882 F.2d 720, 725 (3d Cir. 1989)).
For the reasons discussed, the Court should dismiss all of Plaintiff s claims except his First Amendment claim based on interference with his religion. Therefore, the Court only considers the lack of personal involvement argument as to the remaining First Amendment claim, which Plaintiff asserts against Defendants Cleim and Sabanda.
As to this claim, the Corrections Defendants argue that Plaintiff does not show Cleim's personal involvement because he pleads no factual allegations against him. Regarding Sabanda, the Corrections Defendants argue that Plaintiffs only allegations involve the handling of requests, grievances, or appeals, which are not sufficient to show his personal involvement in any underlying wrong. ECF No. 44 at 4-5.
Upon review, the Court should not dismiss Plaintiffs First Amendment claim against Sabanda based on his lack of personal involvement. Plaintiff s allegations are not limited to after-the-fact review of grievances; rather, Plaintiff alleges that Sabanda was personally involved in restricting Plaintiffs ability to participate in Ramadan.
As for Cleim, however, the Court should grant the Motion to Dismiss on this basis. Plaintiffs claim against Cleim appears to arise out of his role as a supervisor. Cleim is alleged to be an administrator in the role of Religious Department Head at the DOC Central Office. ECF No. 13 ¶ 18. Although Plaintiff broadly claims that Sabanda and Cleim jointly “did not allow him to participate in Ramadan,” he includes no specific allegations that Cleim was directly involved in, directed, or had knowledge of or acquiesced to the events in the Complaint. Nor does he specifically allege that Cleim personally maintained any identifiable practice or policy that caused his constitutional harm. As such, he fails to plead facts showing Cleim's personal involvement in any underlying wrong. Accordingly, the Motion to Dismiss should be granted based on lack of personal involvement as to Plaintiff s First Amendment claim against Cleim.
D. CONCLUSION
For these reasons, the Medical Defendants' Motion to Dismiss, ECF No. 37, should be granted. The Corrections Defendants' Motion to Dismiss, ECF No. 43, should be granted in part and denied in part. The Corrections Defendants' Motion to Dismiss should be granted as to Plaintiffs First Amendment Retaliation claim, his claims under the Eighth and Fourteenth Amendments, and his First Amendment Free Exercise of Religion claim against Cleim. The Corrections Defendants' Motion to Dismiss should be denied as to Plaintiffs First Amendment Free Exercise of Religion claim against Sabanda.
“If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cnty of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Because the Court cannot say that Plaintiff would be unable to plead any cognizable claim, he should be granted leave to amend to the extent he is able to cure the numerous deficiencies identified herein.
As pleaded, the Court notes that certain of Plaintiff s claims may not be sufficiently related to be brought together in a single lawsuit. Because it is recommended that all of Plaintiff s claims except his First Amendment claim for violation of the Free Exercise Clause should be dismissed, the Court does not address that issue here. However, the Court notes that it may be appropriate to consider this issue upon the filing of any amended complaint.
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. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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.