Riley v. Decarlo, 11-537

NATHAN RILEY, Plaintiff,

v.MICHAEL DECARLO, et al., Defendants.

No. 11-537

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: September 25, 2012

Judge Cathy Bissoon

MEMORANDUM ORDER

For the reasons stated below, Defendants' motion for summary judgment (Doc. 63) is granted. Additionally, Plaintiff's Eighth Amendment claim regarding his tuberculosis test is dismissed with prejudice. Finally, this Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, which are dismissed without prejudice to his refiling them in state court.

Plaintiff Nathan Riley ("Plaintiff") is a state prisoner currently housed at the State Correctional Institution at Greene ("SCI-Greene") in Waynesburg, Pennsylvania. Plaintiff brings this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging that a myriad of Defendants violated his rights under the First, Eighth and Fourteenth Amendments to the Constitution of the United States. Compl. (Doc. 5 at 3). Plaintiff also raises claims under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq., as well as various claims pursuant to state law. Id. This suit commenced on April 26, 2011, with the receipt of the complaint. Id. Plaintiff was granted leave to proceed in forma pauperis ("IFP") on April 28, 2011. (Doc. 4).

Defendants filed the instant motion for summary judgment on February 24, 2012. (Doc. 63). Plaintiff filed a response in opposition thereto on May 14, 2012. (Doc. 71). This motion is ripe for disposition.

I. Background

Plaintiff was transferred to SCI-Greene on May 15, 2007. (Doc. 66 ¶ 1; Doc. 72 ¶ 1). He was placed in administrative custody ("AC") upon his arrival, and was housed in the prison's Restricted Housing Unit ("RHU"). (Doc. 66 ¶ 1; Doc. 72 ¶ 1). While there is disagreement between the parties as to why Plaintiff initially was placed in the RHU, the record clearly indicates that his confinement there - which lasted until December 17, 2010 - was based on the fact that Plaintiff was in danger from another individual at SCI-Greene, and could not be protected by other means.¹ See generally (Doc. 64-2).

Plaintiff legal claims in the instant lawsuit arise from five distinct categories of bad acts or omissions allegedly committed by Defendants. The material facts of this case are most easily parsed if they are divided according to the category to which they relate.

A. Denial of Food

Plaintiff alleges that, during his stay in the RHU, he was served a diet consisting of approximately one-third of the calories provided to inmates in the general population.² (Doc. 1¶¶ 1-3). He asserts that this has resulted in "substantial weight loss of approximately 30 plus pounds[,]" and has caused him to suffer "constant hunger, weakness, fatigue, and physically [sic] drained." Id. ¶¶ 1, 4. Plaintiff further asserts that his allegedly inadequate diet was generally characteristic of the amount of food served to inmates in the RHU. Id. ¶ 4; see also (Doc. 72 ¶ 3). Defendants deny Plaintiff's allegations. See (Doc 66 ¶¶ 36-44).

Plaintiff claims that Defendant DeCarlo subjected him to cruel and unusual punishment by subjecting him to this "semi-starvation" diet."³ Id. Defendants Folino and Varner allegedly violated Plaintiff's Eighth Amendment rights due to their roles in the prison grievance system. Id. ¶¶ 50-51. Finally, Plaintiff claims that Defendants DeCarlo and Folino's "failure to provide [him] with the mandated 2800 calorie diet" constitutes the tort of negligence under 37 Pa. Code § 95.230.⁴ Id. ¶ 52.

B. Unsanitary Food Trays

Plaintiff claims that Defendants DeCarlo and Dittsworth violated his Eighth Amendment right to be free of cruel and unusual punishment by allegedly "subjecting [him] to unsanitary and contaminated food service" trays. (Doc. 5 ¶ 46). He also raises state law claims against these Defendants. Id. ¶ 48. Additionally, Plaintiffs raises an Eighth Amendment claim against Defendants Rogers, Folino and Varner - presumably due to their roles as adjudicators of prison grievances. Id. ¶ 47.

Defendant argues that the issue of unsanitary food trays was dealt with by Judge Fischer in an earlier lawsuit filed by Plaintiff, and this is barred by res judicata. (Doc. 65 at 12-13); see also Blount v. Folino, No. 10-697, 2011 WL 2489894 at *11-*13, *15-*16 (W.D. Pa. June 21, 2011) (Fischer, J.). Plaintiff does not address this argument in his response to Defendants' motion, nor does he raise any reference to this claim at all. (Docs. 71 and 72).

C. Tuberculosis Test

Department of Corrections ("DOC") policy requires inmates to undergo periodic testing for tuberculosis.⁵ (Doc. 64-3 at 2-4). This is performed using a test in which a small portion of purified protein derivative ("PPD") is placed under the patient's skin. (Doc. 5 ¶ 18; Doc. 66 ¶ 14). Plaintiff asserts that this form of testing is forbidden under the tenets of his religion. (Doc. 5 ¶¶ 16-18). He alleges that he was kept in AC status under "medical keeplock for two-and-a-half years" due to his refusal to submit to a PPD test. Id. ¶¶ 18-19. Defendants deny that Plaintiff's administrative confinement ever was based on his refusal to submit to a PPD test, and submit evidence of their position on the record. See (Doc. 65 at 3-4).

Plaintiff claims that Defendants Grego, Folino and Varner were responsible for Plaintiff's "medical keeplock" status. (Doc. 5 ¶ 53). This allegedly violated RLUIPA, as well as the Eighth Amendment. Id. In spite of his explicit invocation of the Eighth Amendment in the complaint, Plaintiff pleads this claim as though it is a violation of the Free Exercise Clause of the First Amendment. Id. ¶¶ 21-25. He also argues the same in his brief in opposition to the pending motion to dismiss. (Doc 71 at 11).

D. Religious Diet

Plaintiff asserts that he is a Muslim, and that the tenets of his religion prohibit him from eating certain foods. (Doc. 5 ¶¶ 26-27). The record indicates that Plaintiff currently receives the DOC's "alternative protein diet," which does not contain meat, but does contain items, such as dairy products, that are derived from animals. Id. ¶ 29; (Doc. 64-3 at 19-21; Doc. 64-4 at 5). However, in his complaint he asserts that this diet does not necessarily conform to the requirements of his religion, and he demands that the DOC provide him, and all Muslim inmates, with a Halal religious diet. (Doc. 5 ¶¶ 30, 36).

According to Plaintiff, the alleged refusal of Defendants Menchyk, Folino and Varner to provide Plaintiff with a "daily Halal menu" allegedly violated RLUIPA. Id. ¶ 54. Plaintiff also claims that the actions of Defendants Menchyk, Dittsworth, Folino, Varner and Beard with respect to this issue violated state law. Id. ¶¶ 55 and 58. Additionally, Plaintiff claims that Defendants Menchyk, Dittsworth, Folino, and Beard's alleged failure to provide him with aHalal diet violated his rights under the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. Id. ¶¶ 56-57.

E. RHU Ventilation System

Finally, Plaintiff alleges that the ventilation system in the RHU at SCI-Greene is not adequately cleaned, and that its filters are not changed often enough. (Doc. 5 ¶ 38). As a result, the vents in the RHU emit "voluminous amounts of dust, lint, dirt, hair, odors, dust mites, fumes from cleaning chemicals, second-hand cigarette smoke and other toxic materials[.]" (Doc. 5 ¶¶ 38, 40). Additionally, in spite of the existence of a no-smoking policy at SCI-Greene, corrections staff allegedly smoke in the RHU, exposing Plaintiff to second-hand smoke via the air ducts. Id. ¶ 42.

Plaintiff claims that the poor quality of the air in the RHU caused him to suffer "Sick Building Syndrome, breathing difficulties, nose-bleeds, sinus and nasal congestion, respiratory infections, coughs that produce yellowish color mucus, chronic sneezing, head-aches, vomiting, dizziness, and burning sensation in chest area [sic]." Id. ¶ 44.

Plaintiff asserts that the actions of Defendants Blaze, Niehenke, Cumberledge, Folino and Varner with respect to this claim violated his rights under the Eighth Amendment to the Constitution of the United States, as well as Article I, §§ 8, 13 and 27 of the Pennsylvania Constitution. (Doc. 5 ¶¶ 59-63). Plaintiff specifically asserts that Defendants Blaze, Niehenke and Cumberledge "failed to properly clean and/or oversee and ensure that the ventilation is cleaned at SCI-Greene." Id. ¶ 38. He does not indicate why he believes that Defendants Folino and Varner are liable.

II. Analysis

Defendants raise several arguments in support of their motion for summary judgment. These will be addressed below.

A. Personal Involvement

It is well established that no liability exists under section 1983 solely by means of vicarious liability or respondeat superior. Shaw v. Stackhouse, 920 F.2d 1135, 1147 (3d Cir. 1990). Instead, in order for Section 1983 liability to attach, a plaintiff must show that a defendant was personally involved in the deprivation of his or her federal rights. See 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. at 353 (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). Additionally, 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 F. App'x 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).

Plaintiff's constitutional claims against D...