Opinion
2:21-CV-01564
04-04-2022
JAMES A. PALUCH, JR., Plaintiff, v. FRANK LEWIS, MATTHEW KENDERSKI, MICHAEL HOWARD, and BUREAU OF TREATMENT SERVICES, PA DEPT. OF CORRECTIONS, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge.
I. Recommendation
It is respectfully recommended that Plaintiff's Motion for Special Relief in the Form of a Preliminary Injunction (ECF No. 1-8), as amended (ECF No. 8) be denied.
II. Report
Pro se Plaintiff James A. Paluch, Jr., is an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”), which houses him at SCI Fayette. He commenced this civil rights lawsuit on November 1, 2021, by filing a motion for leave to proceed in forma pauperis, which the Court later granted. In his Complaint, Plaintiff names as Defendants: (1) Frank Lewis, the Facility Chaplain Program Director; (2) Matthew Kenderski, Corrections Food Services Manager; (3) Michael Howard, Unit Manager; and (4) the Pennsylvania Department of Corrections' Bureau of Treatment Services. Plaintiff alleges that Defendants violated his First and Fourteenth Amendment rights by denying him kosher meal trays. Pending before the Court is Plaintiff's Motion for Special Relief in the Form of a Preliminary Injunction, as amended (ECF Nos. 1-8, 8), to which Defendants have responded (ECF Nos. 34, 61.)
In their recently filed brief in support of their motion to dismiss, Defendants described Plaintiff as an “individual previously incarcerated at” SCI Fayette. (ECF No. 71 at 1, emphasis added.) That appears to be a misstatement, because Plaintiff has not updated his address of record, the DOC's online inmate locator lists him as being housed at SCI Fayette, and Defendants served their motion to dismiss on Plaintiff (via Smart Communications) at SCI Fayette.
A. Facts Relevant to Plaintiff's Motion
Plaintiff is a “sincere worshipper of Yahweh, a Torah-observant Messianic and is required to eat a kosher diet.” (ECF No. 12, Complaint, Statement of Complaint ¶ D.) In his Complaint, he alleges that starting in October 2021, the individual defendants conspired to retaliate against him by denying him kosher meals “based on false information and arbitrary policies.” (Id. ¶ B.) He claims that he was subjected to this retaliation because he filed grievances and asserted complaints that the kosher meals provided did not meet the necessary standards. (Id. ¶ D.) The retaliation included making false claims that Plaintiff was seen taking non-kosher meal trays and cookies. (Id.) Plaintiff seeks compensatory and punitive damages, as well as declaratory relief and injunctive relief in the form of an order that directs Defendants to provide him “with a standard nutritionally adequate kosher diet.” (Id. ¶ VI.)
In the motion seeking a preliminary injunction which Plaintiff submitted at the same time as his Complaint, he states that in 2018, he requested and was approved to receive a kosher diet, but it was revoked on October 15, 2021, because he was seen taking a non-kosher carton of orange juice. (ECF 1-8 ¶¶ 5, 11.) He claims that Defendants are attempting to cause him to take nonkosher food trays through acts of “duress and official oppression.” (Id. ¶ 19.) He asserts that by denying his complaints and grievances, Defendants have deprived him of an adequately nutritious kosher diet, placing him in imminent danger of physical injuries and other irreparable harm. (Id. ¶ 27.)
In an amendment to his motion for preliminary injunctive relief dated December 9, 2021, Plaintiff asserts that he continued to be offered non-kosher food trays, which he continued to refuse. (ECF No. 8 ¶¶ 6, 7.) He further asserts that he only consumed “cow's milk, juice, peanut butter, packets of jelly, fresh fruit and occasional snacks-all of which are kosher[,]” but that this diet is inadequate because it “is substandard to the 2,000 calorie die recommended by the Food & Drug Administration.” (Id. ¶ 8.)
Plaintiff also explains that in late November 2021, SCI Fayette Licensed Registered Nurse Practitioner Laurene Donnelly, who is not a defendant in this lawsuit, notified him that he had tested positive for certain food allergies, including eggs, cow's milk, peanut butter and fish. (Id. ¶ 9.) He asked LRNP Donnelly if he could continue to consume cow's milk and peanut butter. According to Plaintiff, she told him it was permissible for him to do so in moderation as long as it was not causing any major problems. (Id. ¶ 10.)
Plaintiff did not assert in the amendment to his motion that he suffers any side effects when he consumes cow's milk or peanut butter. He also admits that the “Medical Department” never placed him on any food restrictions or ordered him not to consume eggs, milk, peanut butter or fish. (Id. ¶ 12.) Nevertheless, in his amended proposed order, Plaintiff requests that the Court direct Defendants to provide him with an “adequately nutritious kosher diet that does not contain any eggs (whites and yolks), cow's milk, peanut butter and/or fish products.” (Id. ¶ 14.)
In response to Plaintiff's motion for preliminary injunctive relief (ECF No. 34), Defendants submitted the Declaration of Anne Brown, who is the DOC's Dietary Management Services Specialist. (ECF No. 61-1 ¶ 1.) Brown states that Plaintiff was originally approved for a kosher diet on January 11, 2019. (Id. ¶ 6.) According to Brown, Plaintiff's kosher diet was revoked on October 15, 2021 because staff at SCI Fayette alleged that he was non-adherent with religious diet rules. (Id. ¶ 7.) Subsequent allergy tests showed his propensity for an allergic reaction to eggs, which are served on some kosher religious fast menus, and several other items served on the daily kosher diet menu, including cow's milk and peanuts. (Id. ¶¶ 8-9.) Thereafter, Plaintiff began receiving a therapeutic diet without these potential allergens. (Id. ¶ 10.)
Defendants attached Brown's original declaration to their response at ECF No. 34-1. Brown's declaration was unsworn, and after Plaintiff correctly pointed out this deficiency (ECF No. 55), Defendants submitted a second declaration from Brown that was identical to the first in all respects except she signed it under penalty of perjury and it is dated March 15, 2022. (ECF No. 61-1.)
Brown states that after Plaintiff challenged the revocation of his kosher diet, the revocation was reversed on December 9, 2021. (Id. ¶ 12.) She also states that on December 13, 2021, Plaintiff reported to medical staff that he was not experiencing any adverse effects from eating the potential allergens while previously on the kosher diet and preferred to discontinue the therapeutic diet and receive the kosher diet. (Id. ¶ 13.) Although Plaintiff asserts that he “never reported to medical or any other PA DOC employee that ‘he preferred to discontinue the therapeutic diet and to receive the kosher diet instead,'” (ECF No 67 at 2), this factual dispute is not material to the disposition of the motion for preliminary injunctive relief.
According to Brown, as of February 9, 2022, Plaintiff began receiving a kosher diet again. In a February 21, 2022, Declaration (ECF No. 44) that Plaintiff submitted in support of the instant preliminary injunction motion as well as a separate one he filed about Yahweh's Passover (ECF No. 43), Plaintiff acknowledges that his kosher meals were reinstated on February 9, 2022. (Id. ¶ 56.) He claims, however, that the kosher meals “are still being mishandled inasmuchas (sic) the dry cereal, cottage cheese and bean salad are still being placed in Styrofoam containers and I have no way of determining whether or not the food contents are verifiably kosher.” (Id.) He did not assert that he is experiencing any harm due to the inclusion of potential allergens on his kosher meal tray.
Plaintiff also recently filed a reply brief in support of his motion for preliminary injunctive relief dated March 20, 2022. (ECF No. 67.) He acknowledges that when he was being denied kosher meal trays he would supplement his diet with kosher food items, including some that have been identified as potential allergens such as milk, peanut butter and mackerel. (Id. at 2.) He admits that he “does not suffer any serious side effects from the consumption of cow's milk, eggs, peanut butter and fish (mackerel, sardines)[.]” (Id. at 3.) He also states that “[t]he only serious food allergy [he] suffers from is fish,” but reiterates that mackerel and sardines “do not produce any allergic symptoms.” (Id. at 3.)
Plaintiff also explains that milk, cottage cheese and peanut butter are served daily as part of the standard kosher diet, that eggs are provided during certain fast meals and during Passover, and that Gefilte fish is served at the seder meal on Yahweh's Passover. (Id.) Plaintiff explains that some of these items, which he does not specifically identify, cause him “mild to moderate symptoms such as itchy eyes, distaste, and flatuation[,]” and that “[c]ertain types of fish (not yet identified) causes more serious side effects such as rashes and hives.” (Id.)
According to Plaintiff, on December 17, 2021, SCI Fayette's Corrections Health Care Administrator James Bright, who is not a defendant, “attempted to deceitfully get” Plaintiff to sign a DC-462 “Release from Responsibility” form as a requirement to having his kosher diet reinstated. (Id.; see also ECF No. 66 at 3, 12/21/21 Correspondence from Plaintiff to CCPM Hawkinberry). Plaintiff refused to do so because it his position that Bright was trying to get him to admit that his kosher diet was revoked due to his positive allergy tests, which Plaintiff insists is not true. (Id.)
B. Discussion
It is well established that injunctive relief is “an extraordinary remedy” and “should be granted only in limited circumstances.” Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994). A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that he will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not lead to even greater harm to the nonmoving parties; and (4) that the public interest favors such relief. Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). If the movant meets his burden on the first two factors, “a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.” Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017).
It is undisputed that Plaintiff is now receiving a kosher diet. Since he is now receiving kosher meals, the issue he raised in his initial motion for injunctive relief is moot. See, e.g., Auker v. Wetzel, No. 14-cv-179, 2014 WL 3401702, at *8 (W.D. Pa. July 10, 2014) (“Of course, a prisoner lacks standing to seek injunctive relief if he is no longer subject to the alleged conditions he attempts to challenge.”).
Plaintiff suggests that his motion is not moot because he was harmed by Defendants' past conduct when one or more of them revoked his kosher meal, and also because they could reinstate the revocation in the future. These allegations cannot sustain Plaintiff's burden of showing immediate irreparable injury. It is well settled that “[i]njunctive relief is also appropriate only where the threat of harm is immediate and present.” Simmons v. Overmyer, No. 1:18-cv-201, 2018 WL 6078085, at *3 (W.D. Pa. Nov. 21, 2018) (citing Raupp v. Fed. Bureau of Prisons, No. 1:06-cv-223, 2006 WL 3332089, at *1 (W.D. Pa. Nov. 16, 2006), which cited ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)). “A preliminary injunction cannot be issued based on past harm. Nor may a preliminary injunction ‘be used simply to eliminate the possibility of a remote future injury.'” Id. (quoting Holiday Inns of Am., Inc. v. B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969) (other quotation marks and citations omitted).
Plaintiff further is not entitled to the order he seeks in the amendment to his preliminary injunction motion (ECF No. 8) directing that Defendants provide him with an “adequately nutritious kosher diet that does not contain any eggs (whites and yolks), cow's milk, peanut butter and/or fish products.” The Complaint does not allege that any defendant is deliberately indifferent to his serious medical needs by exposing him to the potential allergens, and injunctive relief is not an appropriate means by which to raise and litigate new claims, either against a named defendant or a third party. Moreover, Plaintiff admits that he is not experiencing any serious harm from consuming eggs, cow's milk, peanut butter, mackerel or sardines. Nor does he assert that he cannot avoid consuming fish that may cause him to break out in rashes and hives. Thus, he has not sustained his burden of showing immediate irreparable injury because neither a defendant or a third party is presently accommodating his alleged need to be served with a kosher meal tray that has no eggs, cow's milk, peanut butter and/or fish products.
III. Conclusion
Based upon the foregoing, it is respectfully recommended that the Court deny Plaintiff's Motion for Special Relief in the Form of a Preliminary Injunction, as amended (ECF Nos. 1-8, 8).
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Plaintiff is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).