Opinion
Civil Action 22-1278
01-05-2023
SHELDON LEE MORRIS, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS DOC; M. ZAKEN; S. MCCRACKEN; LT. GAGNON; ONDIRKO; LT. SAM NAPOLEON; M. ANDREETI; KERI MOORE; J. ANKROM; CO ANDERSON; and LT. H. PAWLOWSKI, Defendants.
Hon. Marilyn J. Horan United States District Judge
REPORT AND RECOMMENDATION I. RECOMMENDATION
RE. ECF NO. 5
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
For the reasons that follow, it is respectfully recommended that the Complaint filed by Plaintiff Sheldon Lee Morris ("Plaintiff), ECF No. 5, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous, malicious, or for failure to state a claim for which relief can be granted. It is further recommended that Plaintiff be granted leave to amend:
• his claim with respect to the misconduct report issued by Defendant Lt. H. Pawlowski ("Pawlowski");
• his Eighth Amendment claims regarding his allegedly unsanitary food tray and lack of utensils; and
• his federal and state claims with respect to the strip search by Defendant Lt. Gagnon ("Gagnon").
All other claims should be dismissed with prejudice.
II. REPORT
A. Factual and Procedural Background
Plaintiff is a state prisoner currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") in Waynesburg, Pennsylvania. On September 7,2022, this Court received Plaintiffs Complaint, along with a motion for leave to proceed in forma pauperis ("IFP"). ECF No. 1. Plaintiff was granted leave to proceed IFP on December 14, 2022, ECF No. 4, and the Complaint was formally filed on the same day, ECF No. 5.
Plaintiff brings this lawsuit pursuant to the Civil Rights Act of 1871. 42 U.S.C. § 1983 et seq. In his Complaint, Plaintiff alleges that Defendant Gagnon conducted a selective strip search on him during a security sweep of multiple cells. ECF No. 5 at 5. Plaintiff claims that this was retaliatory, but he does not provide factual allegations regarding what, exactly, the search was in retaliation for. Id.
With respect to this strip search (or possibly a subsequent grievance thereof), Plaintiff was issued a misconduct for lying to staff by Defendant Pawlowski. Id. The misconduct report allegedly "ommitt[ed] parts of Plaintiff s complaint [with respect to the strip search] to better suit a misconduct violation." Id. Plaintiff does not provide any allegations with respect to the outcome of the misconduct report.
Plaintiff also alleges that he was served food on May 9, 2022, that had been left in close proximity to a squeegee that had been used by other inmates to clean a sewage back up. Id. at 6. He alleges that "the cleaning process did involve water being made airborne essentially splashing the food trays and food items which were in contact with open air." Id. Plaintiff blames unnamed "officers" for allowing an inmate to use a squeegee near the food trays. Id.
Plaintiff further alleges that he was not provided utensils with his meals on two occasions by unnamed staff, even though other inmates were given utensils. Id. at 5-6. He claims that this forced him "to eat his meals in a barbaric fashion[.]" Id. at 5.
Plaintiff submitted grievances for each of these occurrences, as well for other alleged incidents, all of which he claims were improperly investigated and denied. Id. at 5-7. Plaintiff alleges that Defendants J. Ankrom ("Ankrom"), M. Andreeti ("Andreeti"), and Keri Moore ("Moore") were involved in the grievance process. Id. at 6-7. Similarly, Plaintiffs only allegations with respect to Defendants M. Zaken ("Zaken"), S. McCraken ("McCraken"), Lt. Sam Napoleon ("Napoleon"), and Ondirko, are based on their general role in the grievance process and/or their supervisory positions. Id. at 2-3.
Finally, Plaintiff alleges a single instance of being denied use of the telephone by Defendant CO Anderson ("Anderson") in retaliation for filing grievances. Id. at 6 and 7.
Plaintiff seeks declaratory and injunctive relief, as well as monetary damages. Id. at 8. All Defendants except the Department of Corrections are sued in their individual and official capacities.
B. Legal Standard
28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009). Under Rule 12(b)(6), dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows 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).
The United States Court of Appeals for the Third Circuit has held that, when determining whether to dismiss a complaint for failing to state a claim upon which relief can be granted, a district court should apply a two-part test in order to determine whether a pleading's recitation of facts is sufficient. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11 (citing Iqbal 556 U.S. at 678). "Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief" Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). "Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution." Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). That said, it is not proper for a court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc, 'd Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). A court further need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. California Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 and 157-58 (3d Cir. 2004).
Finally, the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - 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, 251 (3d Cir. 2007).
C. Analysis
Plaintiffs claims fail for a variety of reasons.
1. Defendant Pennsylvania Department of Corrections is immune from suit for Plaintiffs constitutional claims, as are all Defendants in their official capacities.
42 U.S.C. § 1983 provides in relevant part that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.Therefore, to state a claim under Section 1983, a plaintiff must allege: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation was committed or caused by a person amenable to suit under Section 1983 and acting under color of state law. West v. Atkins, 487 U.S. 42,48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56(3dCir. 1994).
Simply put, Defendant Pennsylvania Department of Corrections ("DOC"), as an agency of the Commonwealth of Pennsylvania, is not a "person" within the meaning of Section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (state not person under Section 1983). The DOC further enjoys immunity from Plaintiffs 1983 claims under the Eleventh Amendment to the United States Constitution. Quern v. Jordan, 440 U.S. 332, 340-341 (1979). As such, any federal constitutional claims against the DOC should be dismissed.
Similarly, when an individual employee of the Commonwealth of Pennsylvania is sued in his or her official capacity, the action is considered to be against the Commonwealth itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). The immunities available to the individual Defendants sued in their official capacities are the same as those possessed by the Commonwealth and, accordingly, Plaintiffs "official capacity" Section 1983 claims are barred and should be dismissed. Graham, 473 U.S. at 167.
As amendment with respect to any of these claims would be futile, dismissal of the official capacity claims should be with prejudice. Fletcher-Harlee, 482 F.3d at 251.
2. Plaintiff fails to state a claims with respect to his misconduct report.
While Plaintiff does not say so outright, it is presumed from context that Plaintiffs claim with respect to the misconduct issued by Defendant Pawlowski is based on its alleged falsity. ECF No. 5 at 5. But no due process claim is stated when a prisoner alleges that misconduct charges were fabricated. Smith v. Mensinger, 293 F.3d 641,653-54 (3d Cir. 2002) (due process is satisfied where an inmate is afforded an opportunity to be heard and to defend against the allegedly falsified evidence and groundless misconduct reports). Indeed, all that is required of a misconduct proceeding is that the inmate be afforded an opportunity to be heard and to defend against the allegedly falsified evidence and groundless misconduct reports. Id.
Here, Plaintiff makes no allegation that he was not provided with a hearing at which he could have denied Defendant Pawlowski's misconduct report. Further, Plaintiff does not allege that he was punished in any way for the misconduct report - such as, for example, being placed in disciplinary confinement. Even if he had, such sanctions would be unlikely to rise to the deprivation of any sort of protected liberty interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995) ("Conner asserts, incorrectly, that any state action taken for a punitive reason encroaches upon a liberty interest under the Due Process Clause even in the absence of any state regulation"); See also id. (a state government "may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison lifer) (emphasis added, internal citations omitted). See also Stephanv v. Wagner, 835 F.2d 497,499 (3d Cir. 1987) ("the Due Process Clause does not give a prisoner a liberty interest in remaining in the general prison population").
Because Plaintiff has not alleged facts with respect to his misconduct report that, if true, would plausibly state a claim for a violation of his right to due process, his claim related to the same should be dismissed. However, because it is not clear that leave to amend would be futile, and out of an abundance of caution, Plaintiff should be granted leave to amend this claim. Fletcher- Harlee, 482 F.3d at 251.
3. Plaintiff fails to state a claim with respect to his food tray and utensils.
The Eighth Amendment mandates that "prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee the safety of the inmates[.]'" Farmer v. Brennan. 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). In order to state an Eighth Amendment conditions of confinement claim, a plaintiff must allege both that he has been denied "the minimal civilized measure of life's necessities" and that this was done while the defendants had a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834. With respect to the first requirement, conditions cited by an inmate must be "objectively, sufficiently serious [and] must result in the denial of the minimal civilized measure of life's necessities." Id. (internal citation and quotation omitted). Only "extreme deprivations" are sufficient to make out a conditions of confinement claim. Hudson v. McMillen, 503 U.S. 1, 8-9 (1992). A plaintiff must prove that the deprivation is sufficiently serious when viewed within the context of "contemporary standards of decency." Helling v. McKinney, 509 U.S. 25,36 (1993). While a plaintiff "need not await a tragic event" before seeking relief, he must at the very least show that a condition of confinement "pose[s] an unreasonable risk of serious damage to his future health" or safety. Id. at 33, 35.
With respect to the second element, an inmate must demonstrate a deliberate indifference to prison conditions by prison officials. Farmer, 511 U.S. at 833; Wilson v. Seiter, 501 U.S. 294, 297 (1991); Rhodes v. Chapman, 452 U.S. 337, 347 (1981). This requires a court to determine, subjectively, whether the officials acted with a sufficiently culpable state of mind. Farmer, 511 U.S. at 834. The deliberate indifference standard has been defined as requiring that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837.
Food is one of the basic needs that prisoners must receive under Farmer. Id. at 832. But Plaintiff does not allege that he ever was denied food - he alleges that, on one occasion, he was served food that might have been contaminated by dirty water from an inmate worker's squeegee. ECF No. 5 at 6.
Prison officials may violate the Eighth Amendment by serving unsanitary, spoiled, or contaminated food if the prisoner also alleges that he or she suffered a distinct and palpable injury. See Rieco v. Moran, 633 Fed.Appx. 76, 77-78 (3d Cir. 2015). But here, Plaintiff does not allege that he ate the food and became sick. And a single missed meal does not state an Eighth Amendment claim for denial of food. Instead, "only a substantial deprivation of food to a prisoner" states a viable Eighth Amendment claim. Id. at 78. (quoting Lindsey v. O'Connor, 327 F. App'x. 319, 321(3dCir.2009)).
With respect to Plaintiffs claims that he was denied eating utensils on two discrete occasions, ECF No. 5 at 5, it is well-established that "routine discomfort is 'part of the penalty that criminal offenders pay for their offenses against society,'" and thus "extreme deprivations are required to make out a conditions-of-confinement claim." McMillian, 503 U.S. at 9 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Plaintiff does not allege that he was unable to eat his food as a result of his lack of utensils. Under such circumstances, Plaintiff cannot say that he was "deprived of the minimal civilized measure of life's necessities," Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (internal citations omitted), as is required to establish an Eighth Amendment violation.
Accordingly, Plaintiffs Eighth Amendment claims with respect to his food tray and utensils should be dismissed. However, because it is not clear that leave to amend would be futile, and out of an abundance of caution, Plaintiff should be granted leave to amend these claims. Fletcher-Harlee, 482 F.3d at 251.
4. Plaintiff has not stated a Fourth Amendment claim with respect to the alleged strip search.
An inmate's challenge to a strip search is cognizable under Section 1983 under the Fourth Amendment - or, if it done in an abuse manner, the Eighth Amendment. Williamson v. Garman, No. 15-cv-1797, 2017 WL 2702539, at *4 (M.D. Pa. June 22, 2017). Because Plaintiff does not allege that Defendant Gagnon's search of his person was done in a physically forceful or abuse manner, see ECF No. 5 at 5, the Fourth Amendment analysis applies to this case.
To set forth a plausible Fourth Amendment claim, an inmate must allege that the strip search was unreasonable. Marrow v. Pennsylvania, No. 18-CV-00931, 2018 WL 4963982, at *4 (M.D. Pa. Oct. 15, 2018) (citing Pavton v. Vaughn, 798 F.Supp. 258, 261-62 (E.D. Pa. 1992)). Moreover, while a strip search can constitute a "significant intrusion on an individual's privacy," United States v. Whitted, 541 F.3d 480,486 (3d Cir. 2008), strip searches do not violate the Fourth Amendment in the prison and jail setting when officials conduct searches "in a reasonable manner to maintain security and to prevent the introduction of contraband or weapons in the facility." Marrow, 2018 WL 4963982, at *5 (citing Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 621 F.3d 296, 309-11 (3d Cir. 2010), aff'd 566 U.S. 318 (2012); Millhouse v. Arbasek, 373 Fed.Appx. 135, 137 (3d Cir. 2010)). Prison officials may also conduct strip searches absent probable cause. Jones v. Luzerne Cnty. Corr. Facility, No. 10-cv-359, 2010 WL 3338835, at *8 (M.D. Pa. Aug. 23, 2010) (noting that "inmates do not have a right to be free from strip searches" (internal quote and citation omitted).
Simply put, nothing in the Complaint suggests that the search of Plaintiff was unreasonable or unnecessary. The full circumstances of the search are not alleged in the Complaint. While Plaintiff claims that the search was retaliatory, he does not elaborate on the allegations of retaliation. ECF No. 5 at 5. He also concedes that the search was conducted as part of a large set of cell security inspections. Id. It is unclear from the Complaint whether Defendant Gagnon found contraband in Plaintiffs cell or on his person that would justify the strip search. It additionally is unclear whether Plaintiffs genitals were viewed, or even whether Plaintiffs underwear was removed. See Florence, 621 F.3d at 299 and 308 (finding a jail's strip search of a pretrial detainee at intake, which required him "to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals," did not violate the Fourth Amendment).
Because Plaintiff has not pleaded a plausible Fourth Amendment claim against Defendant Gagnon, the same should be dismissed. However, because it is unclear whether leave to amend would be futile, Plaintiff should be granted leave to amend this claim. Fletcher-Harlee, 482 F.3d at 251.
5. Plaintiff has not stated a First Amendment retaliation claim.
"Government actions, which standing alone, do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Allah v, Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000) (internal quotes and citation omitted); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). In order to succeed on a claim of retaliation, a prisoner must demonstrate:
1) the conduct in which he was engaged was constitutionally protected;
2) he suffered "adverse action" at the hands of prison officials; and
3) his constitutionally protected conduct was a substantial or motivating factor in the decisions to discipline him.Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). To show an "adverse action," Plaintiff must demonstrate that a Defendant's acts were "sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights." Allah v. Al-Hafeez, 208 F.Supp.2d 520, 535 (E.D. Pa. 2002) (quoting Seiverling, 229 F.3d at 225).
Here, Plaintiff alleges that Defendant Anderson would not allow him to use the telephone on one occasion because Plaintiff had filed grievances against him. ECF No. 5 at 6. But Plaintiffs retaliation claim fails on the second prong, because a single instance of denial of the use of a telephone would not be sufficient to deter a person of ordinary firmness from exercising his constitutional rights.
In Montgomery v. Ray, 145 Fed.Appx. 738 (3d Cir. 2005), the Third Circuit held that sanctioning a prisoner with 365 days loss of telephone privileges was an adverse action "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Id. at 741. But denial of the use of a telephone only once is a far cry from denial for an entire year. Instead, more serious conduct is required to make out a retaliation claim under Section 1983. Compare Rauser, 241 F.3d at 333 (inmate presented evidence of adverse retaliatory conduct where he showed "that he was denied parole, transferred to a distant prison where his family could not visit him regularly, and penalized financially" when his prison employment pay grade was reduced to the lowest possible level) and Seiverling, 229 F.3d at 225-26 (inmate sufficiently alleged adverse retaliatory conduct, where he claimed he was placed in administrative segregation and confined to his cell for all but five hours per week, which severely limited his access to the commissary, recreation, rehabilitative programs, and legal research materials and assistance), with Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir.2011) (a misconduct charge against a prisoner - which was later dismissed - for filing a false report was not sufficiently adverse to serve as the basis of a retaliation action) and Jones v. Greninger, 188 F.3d 322, 325-26 (5th Cir. 1999) (change in prisoner's employment, which limited his access to the prison law library to five hours per week, was not adverse for purposes of a retaliation claim).
Moreover, other courts have held that a deprivation of telephone access for three days or less is the sort of de minimis deprivation which would not deter a person of ordinary firmness from exercising their constitutional rights. See Santos v. Keenan, No. 17-0984, 2020 WL 2859202, at *10 (W.D.N.Y.Feb. 6, 2020) (holding that "[d]enial of use of the telephone on [a] few occasions is insufficient to state a retaliation claim"), report and recommendation adopted, 2020 WL 1025189; Ceias v. Blanas, No. 05-1799, 2009 WL 3786078, at *5 (E.D. Cal. Nov. 10, 2009) (holding that "not being able to have a telephone conversation with friends or relatives for two non-consecutive days would [not] deter a person of ordinary firmness from future First Amendment activities.").
Plaintiff has failed to state a claim for First Amendment retaliation against Defendant Anderson. Therefore, because amendment would be futile, this claim should be dismissed with prejudice.
That said, it appears that Plaintiff might be attempting to state a First Amendment retaliation claim against Defendant Gagnon for his strip search. ECF No. 5 at 5. Plaintiffs Complaint fails to allege facts which, if true, would support a finding with respect to any of the three elements of such a claim with respect to that alleged occurrence. However, as amendment would not necessarily be futile, leave to amend this First Amendment retaliation claim with respect to Defendant Gagnon should be granted. Fletcher-Harlee, 482 F.3d at 251.
6. Plaintiff fails to state a claims with respect to his grievances.
It is well-established that inmates have no constitutional right to an effective grievance system. See, e.g., Pittman v. Corbett, No. 14-231, 2014 WL 783498, at *3 (E.D. Pa. 2014) ("[T]o the extent plaintiffs claims are based on the defendant's denials of grievances and/or inadequacies in and dissatisfaction with the grievance process, he has not stated a constitutional claim."); Robinson v. Prison Health Servs., Inc., No. 10-7165, 2014 WL 2452132, at *7 (E.D. Pa. 2014) (dismissing a plaintiff s due process claims because claims based on dissatisfaction with the grievance process fail as inmate does not have a constitutionally protected right to a grievance procedure); Robinson v. Varner, No. 12-6359, 2012 WL 6628108, at *1 (E.D. Pa. 2012) ("[P]laintiff cannot state a constitutional claim based on his dissatisfaction with the grievance process.").
"[B]ecause a prisoner has no free-standing constitutional right to an effective grievance process [citation omitted], [a prisoner] cannot maintain a constitutional claim ... based upon [the prisoner's] perception that [the recipient of the grievances] ignored and/or failed to properly investigate his grievances." Woods v. First Corr. Med. Inc., 446 F. App'x. 400,403 (3d Cir. 2011). Accordingly, any claims based on the handling of Plaintiff s grievances by Defendants Ankrom, Andreeti, and Moore - and any claim against Defendants Zaken, McCraken, Ondirko, and Napoleon for their general involvement in the grievance process - should be dismissed. Dismissal should be with prejudice, as it is apparent that amendment would be futile.
7. Personal involvement
Liability under Section 1983 attaches only when a plaintiff shows that a defendant was personally involved in the deprivation of his or her federal rights. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). In cases involving a supervisory or reviewing defendant, personal involvement may be shown through "'allegations of personal direction or of actual knowledge and acquiescence.'" Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). In situations where a supervising official knowingly permits a continuing custom or policy that results in harm to a plaintiff, Section 1983 liability may attach. Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988) (overruled in part on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intel. & Coord. Unit, 507 U.S. 163, 168 (1993)). At a minimum, however, liability in such a case is appropriate "only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate." Colburn, 838 F.2d at 673 (quoting Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986)).
Here, Plaintiff has failed to make any allegations of fact with respect to Defendants Zaken, McCraken, Ondirko, and Napoleon, other than that they are involved in the grievance process and are supervisors. ECF No. 5 at 2-3. This is insufficient state a claim under Section 1983. The denial of a grievance or mere concurrence in an administrative appeal process is insufficient to establish personal involvement. See e.g. Jefferson v. Wolfe, No. 04-44, 2006 WL 1947721, at *17 (W.D. Pa. July 11, 2006) (citing Watkins v. Horn, No. CIV.A. 96-4129, 1997 WL 566080, at *4 (E.D. Pa. Sept. 5, 1997)); see also Pressley v. Beard, 255 Fed.Appx. 216, 218 (3d Cir. 2008) (affirming the dismissal of supervisory officials who merely failed to take corrective actions when grievances or investigations were referred to them). As such, Defendants Zaken, McCraken, Ondirko, and Napoleon should be dismissed on this additional basis. As there is nothing in the Complaint that would lead to the conclusion that amendment would not be futile, dismissal should be with prejudice. Fletcher-Harlee, 482 F.3d at 251.
8. Plaintiff has failed to state a claim under Section 1985.
Plaintiff invokes 42 U.S.C. § 1985 in his Complaint. ECF No. 5 at 4. It is unclear on what legal theory he bases such a claim. The Court presumes that Plaintiff is attempting to raise a civil rights conspiracy claim under Section 1985(3). In order to state such a claim, Plaintiff must allege four elements: "(1) a conspiracy; (2) motivated by a racial or class-based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States." Oadr v. Yount, No. 19-310E, 2021 WL 2003526, at *7 (W.D. Pa. Apr. 19, 2021) (citing cases), report and recommendation adopted sub nom. Oadr v. Emp. Yount, 2021 WL 2000554 (W.D. Pa. May 19, 2021). Claims of conspiracy must be pleaded with particularity. Id. (citing, e.g., Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989))
Plaintiff has failed to allege facts that, if true, would support any of the elements of a civil rights conspiracy claim in violation of Section 1985(3). Such a claim should be dismissed. Further, as there is nothing in the Complaint from which this Court could determine that a civil rights conspiracy might have existed in violation of Section 1985(3), dismissal should be with prejudice. Assoc.'d Gen. Contractors, 459 U.S. at 526; Fletcher-Harlee, 482 F.3d at 251.
9. There is no private right of action under PREA.
Plaintiff appears to attempt to assert a claim under the Prison Rape Elimination Act ("PREA"), 34 U.S.C. § 30301. ECF No. 5 at 7. However, there is no private right of action under PREA. See Johnakin v. Drosdak, No. 22-2575, 2022 WL 2651969, at *5 (E.D. Pa. July 8, 2022) (citing cases). Accordingly, this claim should be dismissed with prejudice, as amendment would be futile. Fletcher-Harlee, 482 F.3d at 251.
10. State law claims
Plaintiff attempts to raise various state law claims as well. These include negligence, intentional infliction of emotional distress, and various undefined claims. ECF No. 5 at 7.
The doctrine of sovereign immunity bars claims for damages against the Commonwealth, its officials, and employees acting within the scope of their duties. 1 Pa. C.S.A. § 2310. There are ten instances in which sovereign immunity has been waived by statute. These are negligent acts pertaining to: (1) vehicle liability; (2) medical professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse that would constitute an offense under 42 Pa. C.S.A. § 5551(7). 42 Pa. C.S.A. § 8522(b)(1)-(10).
Conduct of an employee is within the scope of employment only if: (1) it is of a kind that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is calculated, at least in part, by a purpose to serve the employer. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000), citing Restatement (Second) Agency § 228.
Offenses under 42 Pa. C.S.A. § 5551(7) include: (1) trafficking in individuals under 18 Pa. C.S.A. § 3011(b); (2) involuntary sexual servitude under 18 Pa. C.S.A. § 3012; (3) rape under 18 Pa. C.S.A. § 3121; (4) statuary sexual assault under 18 Pa. C.S.A. § 3122.1; (5) involuntary deviate sexual intercourse under 18 Pa. C.S.A. § 3123; (6) sexual assault under 18 Pa. C.S.A. § 3124.1; (7) institutional sexual assault under 18 Pa. C.S.A. § 3124.2; (8) aggravated indecent assault under 18 Pa. C.S.A. § 3125; and (9) incest under 18 Pa. C.S.A. § 4302. The elements of 18 Pa. C.S.A. §§ 3011(b) and 3012 require, inter alia, sexual servitude, which is defined to mean "[a]ny sex act or performance involving a sex act for which anything of value is directly or indirectly given, promised to or received by any individual or which is performed or provided by any individual and is induced or obtained from: (1)[a] minor [or] (2) [a]ny other individual by any of the means set forth in section 3012(b)." 18 Pa. C.S.A. § 3001. The elements of 18 Pa. C.S.A. §§ 3121, and 3122.1 both require, inter alia, "sexual intercourse," which is defined as such: "[i]n addition to its ordinary meaning, [it] includes intercourse per os or per anus, with some penetration however slight; emission is not required." 18 Pa. C.S.A. §3101. The elements of 18 Pa. C.S.A. § 3123 require "deviate sexual intercourse," which is defined as "sexual intercourse per os or per anus between human beings and any form of sexual intercourse with an animal. The term also includes penetration, however slight, of the genitals or anus of another person with a foreign object for any purpose other than good faith medical, hygienic or law enforcement procedures." 18 Pa. C.S.A. § 3101 The elements of 18 Pa. C.S.A. § 3124.1 require either "sexual intercourse" or "deviate sexual intercourse". The elements of 18 Pa. C.S.A. § 3124.2 require "sexual intercourse," "deviate sexual intercourse," or "indecent contact." "Indecent contact" is defined as "any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." 18 Pa. C.S.A. § 3101. The elements of 18 Pa. C.S.A. § 3125 require "penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures." The elements of 18 Pa. C.S.A. § 4302 require that a person "knowingly marries or cohabits or has sexual intercourse with" certain family members.
These exceptions must be "strictly construed and narrowly interpreted." Brown v. Blaine, 833 A.2d 1166, 1173 (Pa. Cmwlth. Ct. 2003). "Commonwealth employee[s][are] protected by sovereign immunity from the imposition of liability for intentional tort claims." La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. Ct. 1992).
In the instant case, nothing in the Complaint leads to the plausible conclusion that Defendants' alleged bad acts and omissions were performed outside the scope of their duties as employees of the Commonwealth. To the contrary, it is apparent from the factual allegations in the Complaint that Defendants were acting within the scope of their employment as prison officials when they allegedly committed the acts of which Plaintiff complains. There also is nothing in the Complaint that would support the conclusion that Plaintiffs state tort law claims fall within the above ten exceptions to sovereign immunity.
Moreover, in order to succeed on a claim for intentional infliction of emotional distress under Pennsylvania law, Plaintiff must show that a Defendant, by extreme and outrageous conduct, intentionally or recklessly caused severe emotional distress. McCluskev v. United States, No. 10-694, 2010 WL 4024717, at *3 n.4 (W.D. Pa. Oct. 12, 2010) (quoting Restatement (Second) of Torts § 46); see also Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000). Pennsylvania law defines outrageous conduct as that which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1123 n.5 (Pa. Super. Ct. 2004) (quoting Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)). Additionally, a plaintiff attempting to assert such a claim under Pennsylvania law also must allege that he suffered "some type of resulting physical harm due to the defendant's outrageous conduct." Reeves, 866 A.2d at 1122-1123 (citing Fewell v. Besner, 664 A.2d 577, 582 (Pa. Super. Ct. 1995)).
Here, Plaintiffs allegations lack both of these elements. None of the alleged bad acts of the Defendants rises to the outrageous character necessary to state a claim for intentional infliction of emotional distress. Compare Hoy, 720 A.2d at 754 (listing as examples which state a claim for this tort as: "striking and killing plaintiffs son with automobile, and after failing to notify authorities or seek medical assistance, [burying the] body in a field where [it is] discovered two months later and returned to parents[;]" "fabricating] records to suggest that plaintiff had killed a third party which led to plaintiff being indicted for homicide[;]" and where a "physician released to press information that plaintiff was suffering from fatal disease, when physician knew such information was false"); cf Denton v. Silver Stream Nursing and Rehab. Ctr., 739 A.2d 571, 577 (Pa. Super. Ct. 1999) (noting that death threats by a coworker, who was found to be in possession of a firearm at work, stated a claim for intentional infliction of emotional distress). Additionally, Plaintiff fails to allege any sort of physical manifestation of any emotion harm allegedly suffered at the hands of Defendants.
Accordingly, Plaintiffs state law claims should be dismissed. Plaintiff should be granted leave to amend his state law claims with respect to the strip search conducted by Defendant Gagnon. All other state law claims should be dismissed with prejudice, as amendment would be futile. Fletcher-Harlee, 482 F.3d at 251.
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the Complaint, ECF No. 5, be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous, malicious, or for failure to state a claim for which relief can be granted. It is further recommended that Plaintiff be granted leave to amend:
• his claims with respect to the misconduct report issued by Defendant Pawlowski;
• his Eighth Amendment claims regarding his allegedly unsanitary food tray and lack of utensils; and
• his federal and state claims with respect to the strip search by Defendant Gagnon.All other claims should be dismissed with prejudice.
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 637 F.3d at 193 n.7 (3d Cir. 2011).
Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.