Opinion
Civil Action 22-991
08-28-2023
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.
Re: ECF Nos. 54 and 57
David S. Cercone District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES 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, 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 has responded as ordered. ECF No. 60. The Court separately has entered a Report and Recommendation recommending the dismissal of all claims asserted by the remaining Plaintiffs for failure to prosecute. ECF No. 71. Thus, this Report and Recommendation is limited to the claims asserted by Law.
Through the Amended Complaint, Law 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 7. 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. 7 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, Plaintiffs were served underweight chicken patties on May 25, 2022, and June 2, 2022.
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. 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 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 has not been corrected and he has suffered malnourishment and malnutrition. ECF No. 6 at 10.
Lowry's grievances are docketed at ECF No. 12.
Law submitted a separate statement to the Court alleging that he was served underweight chicken patties at one meal on May 25, 2022, June 2, 2022, and June 19, 2022. ECF No. 21. Due to the serving size of his chicken patty, Law joins with his fellow Plaintiffs and asserts 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 Reform Litigation Act of 1994 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. Law responds that the Complaint states a claim because the chicken portion provided by Trinity Group Services is not 3 ounces and Defendants failed to correct the discrepancy. ECF No. 60.
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). Law 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. The Court agrees.
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 Law alleges 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 Plaintiffs 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).
Law 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.” (internal citation omitted)); Mayo v. Corrs. Emergency Response Team, Civ. A. 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 Cty. Child. & Youth Servs., 345 Fed.Appx. 723, 726 (3d Cir. 2009) (per curiam) (“Finally, we are not aware of any support for [plaintiffs] 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.” (citations omitted)). Pamisi v. Colorado State Hosp., 992 F.2d 1223 (10th Cir. 1993) (unpublished table decision) (observing that the Ninth Amendment “has never been applied to prevent the denial of medical treatment to prisoners”); 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 not aware of any authority - and Law 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 Law'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. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST, amend. I.
In Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), the Supreme Court held that the First Amendment was incorporated by the Fourteenth Amendment and, thus, applicable to the states. Although [Plaintiff] is incarcerated, the Supreme Court has made clear 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, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). ‘Inmates clearly retain protections afforded by the First Amendment,....DeHart v. Hom, 227 F.3d 47, 50 (3d Cir. 2000). That said, neither the Amended Complaint nor the initial Complaint set forth any set of facts under which a First Amendment claim is stated. Thus, it is recommended that the Court dismiss Law's First Amendment claim.
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.), affd, 404 Fed.Appx. 563 (3d Cir. 2010), and affd, 404 Fed.Appx. 563 (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 at 720 (citing Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)).
The allegations in the Complaint, the Amended Complaint, and Law's separate statement state that he was fed an undersized portion of chicken patties at three meals over a one-month period. ECF Nos. 6, 29, 21. These allegations do not satisfy the objective requirement for a Fourteenth Amendment claim. Law does not allege that he suffered weight loss or other physical effects from isolated incidents of a smaller than expected portion of a chicken patty. Nor does Law allege that a significant portion of his diet consisted of smaller than expected chicken patties to create an objective risk of harm. Under these circumstances, Law fails to allege a plausible claim that his Fourteenth Amendment rights were violated. Thus, it is recommended that the Court grant the Motions to Dismiss Law's Fourteenth Amendment claim.
4. PLRA
Law'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, Law fails to state a claim for relief under the PLRA and dismissal with prejudice is properly entered.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Motions to Dismiss, ECF Nos. 54 an 59, filed on behalf of Defendants Passerelli, Winters, and 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.