Opinion
Civil Action 21-cv-407
03-22-2022
SHANE HOLLOWAY, Plaintiff, v. JOHN WETZEL AND LEE ESTOCK, Defendants.
THE HONORABLE ROBERT J. COLVILLE, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
RE: ECF NO. 28
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
Plaintiff Shane Holloway (“Plaintiff”) brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 and alleges claims against Defendants John Wetzel, Secretary of the Pennsylvania Department of Corrections, and Lee Estock, Warden at the State Correctional Institution at Pine Grove (“SCI - Pine Grove”). Plaintiff alleges that Defendants violated his Eighth Amendment rights by activating and then failing to remove a newly installed system that limits in-cell toilet flushes to no more than five times per hour. ECF No. 1-1.
Pending before the Court is Defendants' Motion to Dismiss for failure to state a claim upon which relief may be granted. ECF No. 28. For the following reasons, it is respectfully recommended that the motion be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is incarcerated at SCI - Pine Grove, and has been housed in the same two-man cell on H-Block for over five years. In November 2020, Plaintiff experienced maintenance issues with his in-cell toilet. Maintenance personnel fixed the issue, but also set an automatic flush limit on the toilet so that it would flush only five times per hour. Based on documents submitted by Plaintiff with his Complaint and of record in this matter, the automatic flush limit appears to have been activated in all in-cell toilets in newer SCI - Pine Grove housing units, and is a cost-saving measure. ECF No. 16-1; ECF No. 18 at 4.
Plaintiff alleges that when a flush does not successfully clear the toilet, additional flushes are required and the limit of five flushes per hour may be reached. On those occasions, Plaintiff states he holds his bowels until the toilet resets, and this causes pain. When he cannot wait any longer, he moves his bowels, but suffers from exposure to fecal odors until the hour passes and a new flush limit is set. Plaintiff believes exposure to fecal odors also presents an increased risk of harm because of the current COVID-19 pandemic.
Plaintiff seeks compensatory and punitive damages for the Defendants' alleged deliberate indifference to Plaintiff's discomfort, as well as injunctive relief requiring the elimination of the flush limit.
In response to the Complaint, Defendants have filed the pending Motion to Dismiss and brief in support, contending that Plaintiff fails to state a claim for the violation of his Eighth Amendment rights. ECF Nos. 28, 29. Plaintiff has responded, ECF No. 38, and the Motion is ripe for consideration.
B. STANDARD OF REVIEW
1. Motion to Dismiss
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, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), 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).
In assessing the sufficiency of a complaint, 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 California Pub. Employees' Ret. Sys. v. 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. Twombly, 550 U.S. at 555. 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)); see also Phillips v. Cnty of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice. The complaint must allege facts that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of ‘the necessary element[s]' [of his claim].”) Id., 515 F.3d at 234. In sum, a motion to dismiss should be granted if a party does not allege facts which could, if established at trial, entitle him to relief. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
2. Pro Se Pleadings and Filings
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 litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States 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. Dep't 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).
That said, 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
Plaintiff brings this civil rights action under 42 U.S.C. § 1983. To prevail on a Section 1983 claim, a plaintiff must show that the defendant(s), acting under color of law, deprived him of a constitutional right. Parratt v. Taylor, 451 U.S. 527, 535 (1981) (overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). Plaintiff alleges that the conditions of his confinement resulting from the flush limit on his in-cell toilet violate his Eighth Amendment right to be free from cruel and unusual punishment. Defendants do not dispute acting under color of law, but contend that the allegations set forth in the Complaint fail to state a violation of Plaintiff's Eighth Amendment rights.
The Eighth Amendment “prohibits any punishment which violates civilized standards and concepts of humanity and decency.” Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992), superseded by statute on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000) (citations omitted). “To prevail against prison officials on a claim that an inmate's conditions of confinement violated the Eighth Amendment, the inmate must meet two requirements: (1) the deprivation alleged must be, objectively, ‘sufficiently serious,' and (2) the ‘prison official must have a sufficiently culpable state of mind.'” Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “The first element is satisfied when an inmate is deprived of ‘the minimal civilized measure of life's necessities.' The second element is satisfied when an inmate shows that prison officials acted with deliberate indifference to the inmate's health or safety or conditions of confinement that violated the inmate's constitutional rights.” Id. (internal citation omitted).
To satisfy the subjective knowledge standard to establish deliberate indifference, a plaintiff must allege facts establishing that prison officials actually knew of and disregarded constitutional violations. Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). A defendant's knowledge of a risk to health and safety “can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk.” Id.
When considering whether conditions of confinement violate the Eighth Amendment, “the Constitution does not mandate comfortable prisons, and prisons ... which house persons convicted of serious crimes, cannot be free of discomfort.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). “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. at 347.
Construing Plaintiff's allegations in the light most favorable to him reflects, at best, that he is exposed to transient discomfort and not the inhumane or deplorable conditions upon which an Eighth Amendment claim may be stated. Plaintiff confirms that the flush mechanism of his in-cell toilet resets each hour to permit five flushes and thus, any stool remaining in his toilet is a temporary condition. Plaintiff does not allege physical contact with feces, and Plaintiff has continuous access to a toilet. At times, Plaintiff chooses to wait to pass his bowels for up to an hour and so he experiences some physical discomfort to avoid potential malodorous conditions in his cell. Such discomfort is temporary, and Plaintiff alleges no serious medical repercussions from short-term bowel retention. Under these circumstances, the duration of any discomfort or odor exposure is de minimis, despite the possibility of repetition over the course of a day. Plaintiff also alleges that prison officials explained that the flush limit serves a legitimate penological justification - cost saving - but have not provided him evidence of any savings. ECF No. 16-1 ¶ 12, ECF No. 38.
Plaintiff also expresses his concern that fecal odors may expose him to the COVID-19 virus. Yet Plaintiff does not allege facts sufficient to support an inference that odors provide a path of viral transmission on which to rest a nonspeculative claim. The Centers for Disease Control and Prevention (“CDC”) suggests that “[t]he virus that causes COVID-19 has been found in the feces of some patients diagnosed with COVID-19. However, it is unclear whether the virus found in feces may be capable of causing COVID-19. There has not been any confirmed report of the virus spreading from feces to a person. Scientists also do not know how much risk there is that the virus could be spread from the feces of an infected person to another person. However, they think this risk is low based on data from previous outbreaks of diseases caused by related coronaviruses, such as severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS).” See https://www.cdc.gov/coronavirus/2019-ncovZfaq.html#:~:text=The%20virus%20that%20causes%20COVID.feces%20to%20a%20person (emphasis added). In this case, Plaintiff does not allege contact with feces; but exposure to fecal odors.
In Thomas v. Tice, supra, the plaintiff alleged the violation of his Eighth Amendment rights arising from confinement to a dry cell without running water for a toilet or sink for four days. The United States Court of Appeals for the Third Circuit found that confinement in a dry cell “is unpleasant and often unsanitary” but will not violate the Eighth Amendment “so long as the conditions of that confinement are not foul or inhuman, and are supported by some penological justification.” Id., at 138-39 (citing Young, 960 F.2d at 364). See also, Martin v. Gearhart, 712 Fed.Appx. 179, 186 (3d Cir. 2017) (plaintiff “could not establish the objective element of his claim because the deprivation of running water for just over a day was insufficiently serious to establish an Eighth Amendment violation.”); Walters v. Berks Cty. Prison, No. 11-6357, 2012 WL 760849, at *2 (E.D. Pa. Mar. 9, 2012), aff'd sub nom Walters v. Muhlenburg Twp. Police Dep't, 536 Fed.Appx. 213 (3d Cir. 2013) (exposure to toilet odors does not state an Eighth Amendment claim); Flores v. Wagner, No. 11-1846, 2011 WL 2681596, at *5 (E.D. Pa. July 8, 2011) (“Requiring an inmate to eat in a cell a few feet away from a toilet is insufficient to implicate a conditions of confinement claim that is repugnant to contemporary standards of decency”).
Under the circumstances alleged, the transitory exposure to the smell of stool for an hour may be uncomfortable, but does not constitute inhuman conditions of confinement or deprive him of a basic human need so as support a claim for the violation of Plaintiff's Eighth Amendment rights. Thus, it is respectfully recommended that the Court grant Defendants' Motion to Dismiss Plaintiff's Complaint.
D. LEAVE TO AMEND
The Third Circuit has admonished that when a complaint is subject to dismissal for failure to state a claim, courts should liberally grant leave to amend “unless such an amendment would be inequitable or futile.” Phillips, at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). “An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). For the reasons discussed, amendment of Plaintiff's Eighth Amendment claim would be futile. Accordingly, it is recommended that the Court dismiss the Complaint with prejudice.
E. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Motion to Dismiss, ECF No. 28, and dismiss Plaintiff's Complaint with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections no later than April 8, 2022. 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 respond to the objections within fourteen (14) days in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,