Opinion
Civil Action 22-991 Re: ECF 54 and 57
09-29-2023
JOSHUA C. LOWRY, ANTHONY LAW, RAYMAR MCKENZIE, JAMES SMITH, MICHAEL CHAMPION, Plaintiffs, v. DENA BROWN TRINITY GROUP SERVICE STAFF, BENJAMIN O'LEARY TRINITY GROUP SERVICE STAFF, CORITHIAN FOODS FOOD DISTRIBUTOR FOR TRINITY GROUP SERVICE, JENNIFER PASSERELLI DEPUTY WARDEN, DAVID WINTERS CAPTAIN, SCOTT UNKNOWN TRINITY GROUP SERVICE STAFF, JANICE UNKNOWN TRINITY GROUP SERVICE STAFF, Defendants.
All counsel of record via ECF Joshua C. Lowry Anthony Law Butler County Prison Raymar Mckenzie 035197 Butler County Prison FCI Hazelton Michael Champion Allenwood Low Federal Correctional Institution
All counsel of record via ECF
Joshua C. Lowry
Anthony Law
Butler County Prison
Raymar Mckenzie
035197
Butler County Prison
FCI Hazelton
Michael Champion
Allenwood Low
Federal Correctional Institution
David S. Cercone District Judge
REPORT AND RECOMMENDATION
Maureen P. Kelly Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that Court grant the Motion to Dismiss filed by Defendants Jennifer Passerelli and David Winters (“Butler County Defendants”), ECF No. 54, and the Motion to Dismiss filed by Defendant Dena Brown (“Brown”), ECF No. 57, for failure to state a claim.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Joshua C. Lowry, Anthony Law, Raymar McKenzie, James Smith, and Michael Champion bring this joint pro se civil rights action pursuant to 42 U.S.C. § 1983 for the alleged violation of their rights arising from the size of chicken patty portions served at the Butler County Prison. ECF Nos. 6 and 29. In response to the Amended Complaint, the Butler County Defendants and Defendant Brown filed the pending Motions to Dismiss for failure to state a claim. Despite orders requiring each Plaintiff to respond to the motions to dismiss, only Plaintiff Anthony Law timely responded as ordered. ECF No. 60. Lowry filed a belated motion for extension of time that the Court granted. ECF Nos. 61, 62. The time for Lowry to respond was extended to July 7, 2023, and extended a second time to August 22, 2023. Because no response was timely filed, the Court separately entered a Report and Recommendation recommending the dismissal of all claims asserted by the remaining Plaintiffs for failure to prosecute. ECF No. 71. Days later, Lowry filed his belated response and the Court withdrew the Report and Recommendation as to Lowry only. ECF Nos. 73, 74. At this juncture, the Court addresses the Motions to Dismiss as to Lowry's claims only.
Through the Amended Complaint, Lowry alleges that as of May 24, 2022, he was confined in the Butler County Prison as either a pretrial detainee or a convicted and sentenced federal prisoner. ECF No. at 6. The Amended Complaint incorporates the allegations set forth in the initial Complaint and states that on May 24, 2022, Plaintiff Lowry was working in the Butler County Prison kitchen preparing meals for the next day. He determined that frozen chicken patty fritters supplied by Trinity Group Services weighed 2.3 ounces and once cooked, weighed 1.7 ounces. ECF No. 6 at 8. The Trinity or prison menu stated that each patty should weigh 3 ounces. Id. Lowry brought the discrepancy to the attention of Defendants Scott and Brown, who in turn reported the discrepancy to “Janice of Trinity Group Service.” Id. Janice also confirmed the weight of the patties. Lowry requested permission to serve two patties to each inmate. Defendants Brown and O'Leary denied the request. Thus, Lowry was served an underweight chicken patty on May 25, 2022, and June 2, 2022. Id.
For purposes of the pending Motions to Dismiss, the Court considers Plaintiff a pretrial detainee.
Lowry filed a grievance related to the portion sizes on June 19, 2022. The grievance was reviewed by Defendant Passarelli on June 21, 2022. Defendant Brown raised the grievance with Plaintiff on June 22, 2022, and accused Lowry of lying. Lowry filed a grievance related to Brown's accusation that same day. Id. at 9. Despite his grievances, the underweight patties were again served on June 30, 2022, although Lowry's grievances reflect that the serving size was increased to “1 whole chicken pattie and a half of pattie.” ECF No. 12 at 5. On July 3, 2022, Lowry was again provided “an extra piece” with his serving but asserts that the total serving did not equal the posted 3 oz. serving. Id. at 6. He alleges that the error was never corrected and he suffered malnourishment and malnutrition. ECF No. 6 at 10. Lowry has since transferred to the Federal Correctional Institution at Hazelton.
Lowry's grievances are docketed at ECF No. 12.
In Plaintiff's responses to the pending motions, Plaintiff contends that he was served underweight patties a total of 11 times over the course of three months. The narrative attached to the initial complaint indicates that some of the dates identified do not involve being served underweight chicken but are related to Mr. Lowry's submission of grievances and the resolution of each. ECF Nos. 73. 76.
Based on the serving size of his chicken patty, Lowry joined with his fellow Plaintiffs to assert claims for the violation of his rights under the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution, as well as a claim under the Prison Litigation Reform Act of 1994 (“PLRA”) for “malnourishment and cruel and unusual punishment.” ECF No. 29.
Defendants argue that based on the facts alleged, Plaintiffs fail to state any claim upon which relief may granted. ECF Nos. 55 and 58. Lowry responds that the Complaint states claims related to undernourishment 11 times and a First Amendment retaliation claim against Defendant Dena Brown because she reduced his kitchen duty time in response to his grievances. ECF Nos. 73, 76.
The Motions to Dismiss are ripe for consideration.
B. STANDARD OF REVIEW
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “‘only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotations omitted). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the Court must accept as true all material allegations in the complaint. 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). However, the Court 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' 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. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) 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. at 678; 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 therefore “must allege facts suggestive of [the proscribed] conduct” that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim.”). Id. at 233, 234.
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 a 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. Dep't of Corr., 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. Ne Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Yet 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). Because Plaintiff is a pro se litigant, the Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Plaintiff brings his claims under 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Lowry alleges that Defendants have violated his rights under the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution and the PLRA. ECF No. 29 at 5. The Butler County Defendants and Defendant Brown contend that the Amended Complaint fails to state a claim for relief under any theory asserted.
1. Fifth Amendment and Ninth Amendment Claims
In the context of prison conditions, the Fifth Amendment “only protects against federal governmental action and does not limit the actions of state officials.” Caldwell v. Beard, 324 F. App'x. 186, 189 (3d Cir. 2011) (citing Riley v. Camp, 130 F.3d 958, 972 n. 19 (11th Cir.1997)); see also Nguyen v. U.S. Cath. Conf., 719 F.2d 52, 54 (3d Cir. 1983) (“The limitations of the fifth amendment restrict only federal governmental action ....”) (citing Pub. Utils. Comm'n of D.C. v. Pollak, 343 U.S. 451, 461 (1952))). While Lowry alleges that he is a federal detainee, the named Defendants are not federal officials. Thus, Plaintiff fails to assert a claim under the Fifth Amendment. Because amendment of Plaintiff's Fifth Amendment claim would be futile, leave to amend should be denied. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002).
Lowry also fails to state a claim under the Ninth Amendment. The Ninth Amendment states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. Courts have generally rejected Ninth Amendment claims raised by prisoners based on complaints about prison conditions. Cf. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam) (“Although there is some authority for the proposition that the Ninth Amendment is a source of fundamental rights ... no court of which we are aware has held that the Ninth Amendment establishes a right to choose one's cellmate.” See also Mayo v. Corr. Emergency Response Team, No. 18-4390, 2018 WL 6524247, at *4 (E.D. Pa. Dec. 12, 2018) (citations omitted) (destruction of personal property by prison officials does not state a Ninth Amendment claim); Perry v. Lackawanna Cnty. Child. & Youth Servs., 345 Fed.Appx. 723, 726 (3d Cir. 2009) (per curiam) (“Finally, we are not aware of any support for [plaintiff's] claim that the Ninth Amendment protects against any of the events described in his complaint. Indeed, the Ninth Amendment does not independently provide a source of individual constitutional rights.”); Muniz v. Goord, No. 9:04-CV-0479, 2007 WL 2027912, at *9 (N.D.N.Y. July 11, 2007) (collecting cases).
The Court is unaware of any legal authority - and Lowry points to none - that would provide a Ninth Amendment claim related to a prisoner's conditions of confinement. Therefore, it is recommended that the Court dismiss Lowry's Ninth Amendment claim without leave to amend.
2. First Amendment
The Amended Complaint references the First Amendment as a source of rights allegedly violated by Defendants. ECF No. 29 at 5. However, neither the Amended Complaint nor the initial Complaint set forth any set of facts under which a First Amendment claim is stated. Instead, Lowry's responses to the pending Motions to Dismiss refer to grievances separately submitted to the Court that reflect Lowry's claim that he was retaliated against by Defendant Brown through a verbal reprimand and a “reduction of time at [his] assigned duty” because he complained about undersized chicken patties. See ECF No. 12; ECF No. 73 at 3; ECF No. 76 at 3. Defendants contend that Plaintiff's First Amendment claim is properly dismissed because this claim is not alleged in the Complaint.
The loss of a prison work assignment can support a retaliation claim. See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). That said, even under the liberal pleading standards for pro se litigants, the facts on which the claim is asserted and the claim itself, must be set forth in the Complaint. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (while the court remains flexible when construing pro se filings and the court can “apply the relevant legal principle even when the complaint has failed to name it,” pro se litigants still must allege sufficient facts in their complaints to support a claim.). Here, Lowry has not alleged a First Amendment retaliation claim in the Amended Complaint. Therefore, it is recommended that the claim be dismissed without prejudice.
3. Fourteenth Amendment
In Bell v. Wolfish, the United States Supreme Court held that pretrial detainees are protected from cruel conditions of confinement under the Fourteenth Amendment's Due Process Clause, rather than the Eighth Amendment. 441 U.S. 520, 535-37 (1979); Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987). The Eighth Amendment protects convicted inmates from “cruel and unusual punishment,” but a pretrial detainee “may not be punished [at all] prior to an adjudication of guilt in accordance with due process of law.” Bell, 441 U.S. at 535. Thus, a pretrial detainee may be subject to “the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Id. at 536-37.
The Fourteenth Amendment … guarantees pretrial detainees a nutritionally adequate diet. Tapp v. Proto, 718 F.Supp.2d 598, 621 (E.D. Pa.), aff'd, 404 Fed.Appx. 563 (3d Cir. 2010) (3d Cir. 2010). “A constitutionally adequate diet ‘must provide adequate nutrition, but corrections officials may not be held liable [as to claims of inadequate food] unless the inmate shows both an objective component (that the deprivation was sufficiently serious) and a subjective component (that the officials acted with a sufficiently culpable state of mind).' Duran v. Merline, 923 F.Supp.2d 702, 719-20 (D.N.J. 2013) (citing Stevenson [v. Carroll], 495 F.3d [62], 68 (3d Cir. 2007) and [Wilson v.] Seiter, 501 U.S. [294,] 298 [(1991)].” Cropper v. Lehigh Cnty. Prison, No. 20-CV-85, 2020 WL 1157203, at *3 (E.D. Pa. Mar. 9, 2020).
“Objectively, ‘[w]hether the deprivation of food falls below this [constitutional] threshold depends on the amount and duration of the deprivation.' [Duran] at 720 (citing Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999)). Under the Eighth Amendment, which provides a floor for the rights of pretrial detainees, see Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003), inmates must be served ‘nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger' to their health and well-being.” Cropper, 2020 WL 1157203, at *4 (quoting Duran, 923 F.Supp.2d at 720 (citing Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)).
Lowry alleges at most, that he was fed an undersized portion of chicken patties at 11 meals over a three-month period. But at three meals, his portion was increased to one and one-half chicken patties. ECF Nos. 6, 12, 29, 73, 76. These allegations do not plausibly state a claim that the meals presented a danger to Plaintiff's health and well-being to satisfy the objective requirement for a Fourteenth Amendment claim. While Lowry alleges that he suffered weight loss from isolated incidents of receiving a smaller than expected portion of a chicken patty, the Complaint and Amended Complaint do not reflect that a significant portion of his diet consisted of 1.7 ounces of protein at each meal to support inference of an immediate danger to his health or a substantial deprivation of food sufficient to state a viable Fourteenth Amendment claim. See Lindsay v. O'Connor, 327 Fed.Appx. 319, 321 (3d Cir. 2009) (under the Eighth Amendment, in the absence of a “substantial deprivation of food,” a prisoner does not set forth a viable claim); Cummings v. Somerset County Jail, No. 20-5217, 2023 WL 5207938, at *4 (D.N.J. Aug. 14, 2023) (applying Lindsay “substantial deprivation of food” standard to Fourteenth Amendment claim); compare White v. Taylor, No. 10-5485, 2013 WL 4595885 (D.N.J. Aug. 28, 2013) (plaintiff stated a plausible due process claim under the Fourteenth Amendment because he alleged that meals served for breakfast, lunch, and dinner at county correctional facility consistently failed to meet federal nutritional daily standards because of size); Williams v. Delaware Cnty. Bd. of Prison Inspectors¸ No. 17-4348, 2018 WL 4558190, at *9 (E.D. Pa. Sept. 20, 2018) (plaintiff satisfied objective standard and stated a plausible constitutional violation because he alleged “the denial of food in its entirety; in some cases, for consecutive days”). Because Plaintiff does not allege facts sufficient to state a claim for the substantial deprivation of food, he fails to state a claim for relief under the Fourteenth Amendment. Therefore, it is recommended that the Court grant the Motions to Dismiss Lowry's Fourteenth Amendment claim.
4. PLRA
Lowry's final claim is for the violation of his rights under the PLRA. ECF No. 29 at 5. However, “[t]he PLRA itself is not a source of a prisoner's claim….” Jones v. Bock, 549 U.S. 199, 212 (2007). Thus, Lowry fails to state a claim for relief under the PLRA and dismissal with prejudice is properly entered.
5. Leave to Amend
A district court should generally provide a pro se plaintiff with leave to amend unless amending would be inequitable or futile. See Grayson, 293 F.3d at 114. “In civil rights cases district courts must offer amendment-irrespective of whether it is requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007).
Here, the Court recommends that Lowry's Fifth Amendment and Ninth Amendment claims and his claim under the PLRA be dismissed with prejudice because amendment would be futile. While the Court recommends that Lowry's First Amendment and Fourteenth Amendment claims be dismissed for failure to state a claim, it does not appear that amendment would be futile. Thus, it is recommended that the Court grant Lowry leave to file a Second Amended Complaint within thirty days as to his First Amendment and Fourteenth Amendment claims only.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Motions to Dismiss, ECF Nos. 54 and 59, filed on behalf of the Butler County Defendants and Defendant Brown.
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 within fourteen days, or seventeen days for unregistered ECF Users. 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 14 days in accordance with Local Civil Rule 72.D.2.