Parkell v. Morgan et al

Filing 11

MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 1/22/13. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DONALD D. PARKELL,
Plaintiff,

v.
PHILLIP MORGAN, et aI.,
Defendants.

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) Civ. No. 12-1304-SLR
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Donald D. Parkell, Howard R. Young Correctional Institution, Wilmington, Delaware, Pro
Se Plaintiff.

MEMORANDUM OPINION

Dated: January JJ... , 2013
Wilmington, Delaware

~FJUdge

I. INTRODUCTION
Plaintiff Donald D. Parkell ("plaintiff'), is a pretrial detainee at the Howard R.
Young Correctional Institution ("HRYCI"), Wilmington, Delaware, who proceeds pro se
and has been granted in forma pauperis status. He filed this complaint pursuant to 42
U.S.C. § 1983 claiming violations of his constitutional rights. 1 (0.1. 3) Plaintiff filed an
amended complaint on January 9, 2013 adding as parties defendant Delaware
Department of Correction ("DOC") Commissioner Carl Danberg ("Danberg") and
hearing officer Lt. Pedrick ("Pedrick"). (0.1. 8) In addition, plaintiff recently filed a
motion for injunctive relief to obtain dental treatment. (0.1. 10)
II. STANDARD OF REVIEW
This court must dismiss, at the earliest practicable time, certain in forma
pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek
monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

§ 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions). The court must accept all factual allegations
in a complaint as true and take them in the light most favorable to a pro se plaintiff.
Phillips v. County of Allegheny, 515 F.3d 224,229 (3d Cir. 2008); Erickson v. Pardus,
551 U.S. 89, 93 (2007). Because plaintiff proceeds pro se, his pleading is liberally
construed and his complaint, "however inartfully pleaded, must be held to less stringent

1When bringing a § 1983 claim, a plaintiff must allege that some person has
deprived him of a federal right, and that the person who caused the deprivation acted
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at
94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact."

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(8)(i) and

§ 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an
indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional"
factual scenario. Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.

1989); see, e.g., Deutsch

V.

United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995)

(holding frivolous a suit alleging that prison officials took an inmate's pen and refused to
give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant
to § 1915(e)(2)(8)(ii) and § 1915A(b)(1) is identical to the legal standard used when
ruling on Rule 12(b)(6) motions. Tourscherv. McCullough, 184 F.3d 236,240 (3d Cir.
1999) (applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a claim
under § 1915(e)(2)(8». However, before dismissing a complaint or claims for failure to
state a claim upon which relief may be granted pursuant to the screening provisions of
28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to amend her
complaint unless amendment would be inequitable or futile. See Grayson

V.

Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell AU. Corp.

V.

Twombly, 550 U.S. 544

(2007). The assumption of truth is inapplicable to legal conclusions or to U[t]hreadbare

2

recitals of the elements of a cause of action supported by mere conclusory statements."
Id. at 1949. When determining whether dismissal is appropriate, the court conducts a

two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First,
the factual and legal elements of a claim are separated. Id. The court must accept all
of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.
Id. at 210-11. Second, the court must determine whether the facts alleged in the

complaint are sufficient to show that plaintiff has a "plausible claim for relief."2 Id. at
211. In other words, the complaint must do more than allege plaintiff's entitlement to
relief; rather it must "show" such an entitlement with its facts. Id. "[WJhere the wellpleaded facts do not permit the court to infer more than a mere possibility of
misconduct, the complaint has alleged - but it has not shown - that the pleader is
entitled to relief." Iqbal, 556 U.S. at 678 (quoting Fed. R. Civ. P. 8(a)(2».

III. DISCUSSION
The complaint contains two counts. Count one alleges cruel and unusual
punishment in violation of plaintiff's Fourteenth Amendment rights and count two
alleges that plaintiff was subjected to conditions significantly worse than other people
under similar circumstance in violation of the due process clause of the fourteenth
amendment. More particularly, plaintiff alleges delay and denial in receiving dental,
medical, and mental health treatment, unlawful conditions of confinement, denial of law
2A claim is facially plausible when its factual content allows the court to draw a
reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). The plausibility standard "asks for
more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a
complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops
short of the line between possibility and plausibility of 'entitlement to relief. '" Id.

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library access, violations of his right to equal protection, an unlawful finding of violation
of prison rules with subsequent loss of privileges, and denial of a religious diet.
The Eighth Amendment cruel and unusual punishment clause does not apply
until an inmate has been both convicted of and sentenced for his crimes. See Graham
v. Connor, 490 U.S. 386, 392 n.6 (1989); Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir.

2005). Pretrial detainees are protected under the Fourteenth Amendment's Due
Process Clause rather than the Eighth Amendment. Bell v. Wolfish,441 U.S. 520,
535-37 (1979); Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir. 1987). 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 pre-trial 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.

A. Respondeat Superior
The amended complaint adds Danberg as a defendant. A defendant in a civil
rights action must have personal involvement in the alleged wrongs to be liable, and
cannot be held responsible for a constitutional violation which he or she neither
participated in nor approved." Baraka v. McGreevey, 481 F.3d 187,210 (3d Cir. 2007).
A § 1983 claim cannot be premised upon a theory of respondeat superior. In order to
establish liability for deprivation of a constitutional right, a party must show personal
involvement by each defendant. Brito v. United States Dep't of Justice, 392 F. App'x
11, 14 (3d Cir. 2010) (unpublished) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009);
Rode v. Dellarciprete, 845 F.2d at 1207).

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"Because vicarious liability is inapplicable to § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official's own individual actions,
has violated the Constitution." Iqbal, 556 U.S. at 676. In Iqbal, the Supreme Court
emphasized that "[i]n a § 1983 suit - here masters do not answer for the torts of their
servants - the term 'supervisory liability' is a misnomer. Absent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own
misconduct." Iqbal, 556 U.S. at 677. "Thus, when a plaintiff sues an official under

§ 1983 for conduct 'arising from his or her superintendent responsibilities,' the plaintiff
must plausibly plead and eventually prove not only that the official's subordinates
violated the Constitution, but that the official by virtue of his own conduct and state of
mind did so as well." Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010). The
factors necessary to establish a § 1983 violation will vary with the constitutional
provision at issue. Id.
Facts showing personal involvement of the defendant must be asserted; such
assertions may be made through allegations of specific facts showing that a defendant
expressly directed the deprivation of a plaintiff's constitutional rights or created such
policies where the subordinates had no discretion in applying the policies in a fashion
other than the one which actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that the supervisor's actions
were "the moving force" behind the harm suffered by the plaintiff. See Sample v.
Diecks, 885 F.2d at 1117-118; see also Iqbal, 566 U.S. at 677-686; City of Canton v.
Harris, 489 U.S. 378 (1989); Heggenmiller v. Edna Mahan Corr. Inst. for Women, 128

F. App'x 240 (3d Cir. 2005) (unpublished).

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Plaintiff provides no specific facts how Danberg violated his constitutional rights,
that he expressly directed the deprivation of his constitutional rights, or that he created
policies wherein subordinates had no discretion in applying them in a fashion other than
the one which actually produced the alleged deprivation. The allegations against
Danberg do not satisfy the Iqbal pleading requirements. For the above reasons, the
court dismisses all claims against Danberg claims as frivolous pursuant to 28 U.S.C.

§§ 1915(e)(2)(8)(ii) and 1915A(b)(1).
B. Conditions of Confinement
Plaintiff raises a litany of complaints regarding the conditions at the HYRCI. With
regard to defendant Correct Care Solutions ("CCS"), plaintiff complains that he was told
to purchase medicinal items from the commissary as they were not provided free of
charge by CCS. 3 In addition, plaintiff alleges that defendant Warden Phillip Morgan
("Morgan") enacted and/or maintained policies, practices or procedures that violated
plaintiffs constitutional rights as follows: (1) he is limited in the amount of clothing and
linens assigned to him, and he was not provided a laundry bag4; (2) he is denied basic
hygiene because he does not always receive razors on the scheduled days and is not
provided a shaving "make-up opportunity" when the tier is on lockdown; (3) he is not
provided adequate mirrors; (4) there are two showers for the use of 59 inmates; (5)
there are three telephones for the use of 59 inmates; (6) an insufficient number of

3The resolution of plaintiffs grievance indicates that, because his name is on the
indigent list, he is not charged for medications from the commissary. (D.1. 3 at 80)
4The resolution of plaintiffs grievance indicates that he was issued a laundry
bag. (Id. at 77-78)

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correctional officers are assigned to monitor a tier; (7) inadequate staffing and
correctional officers are pulled from a tier causing lockdowns; (8) there is inadequate
space to exercise and no outdoor exercise; (9) there are insufficient food portions;
(10) the installation of a device on the cell toilet penalizes an inmate for flushing the
toilet more than once in five minutes;S (11) three pretrial detainees are housed in a oneman cell; (12) there is a lack of privacy when using the toilet; (13) plaintiff must use the
laundry service and may not use other methods to wash clothing; (14) when on
lockdown, he is required to eat his meal in a cell with an unflushed toilet and two other
men; (15) only 52 seats are provided at meal time when there are 59 inmates; (16) he
is issued a pillowcase, but not a pillow; (17) there was a lack of response during the
failure of the air system on an emergent basis; (18) correctional officers intentionally
find ways to place a tier on lockdown rather than allowing more out-of-cell time;
(19) sentenced inmates are housed with pretrial detainees as punishment to the
sentenced inmate; and (20) sentenced inmates are afforded all facility amenities while
pretrial detainees are afforded none.
When a pretrial detainee claims that the conditions of his confinement violate his
due process rights, "the proper inquiry is whether those conditions [at issue] amount to
punishment of the detainee." Bell, 441 U.S. at 535. Bell established a two-prong
standard for determining whether conditions of confinement violate Due Process:
whether the questioned "restrictions and practices" (1) "are rationally related to a

Sif the toilet is flushed more than once in five minutes, a mechanism engages
and the toilet cannot be flushed for a one-hour period.

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legitimate nonpunitive governmental purpose[,]" and (2) "whether they appear excessive
in relation to that purpose." Id. at 561. The first prong requires a two-part inquiry:
(1) whether any legitimate purposes are served by [the] conditions [of confinement],
and (2) whether these conditions are rationally related to these purposes." Hubbard v.
Taylor, 399 F.3d at 159.

"[C]onfining a given number of people in a given amount of space in such a
manner as to cause them to endure genuine privations and hardship over an extended
period of time might raise serious questions under the Due Process Clause as to
whether those conditions amounted to punishment[.]" Id. For example, a constitutional
violation may occur where the conditions of confinement are "unsanitary and
humiliating." See Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996 (3d Cir.
1983). The conditions of which plaintiff complains do not rise to the level of punishment
because the conditions were rationally related to the nonpunitive purpose of housing
pretrial detainees, and do not appear to be excessive. At most, plaintiff complains of
inconvenient and uncomfortable situations, but "the Constitution does not mandate
comfortable prisons[.]" Rhodes v. Chapman, 452 U.S. 337, 349 (1981). For the above
reasons, the court dismisses the foregoing claims as frivolous pursuant to 28 U.S.C.

§§ 1915(e)(2)(8)(ii) and 1915A(b)(1).
C. Medical, Dental, and Mental Health Treatment
Plaintiff argues that violations of his constitutional rights occurred when CCS and
Morgan delayed dental treatment based upon the policy that dental treatment (other
than for extractions) for pretrial detainees be delayed either three or six months. In
addition, plaintiff alleges that CCS delayed or denied a required asthma inhaler. Finally,

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plaintiff alleges that Mental Health Management ("MHM") violated his constitutional
rights by failing to provide mental health treatment. When plaintiff arrived at the HYRCI,
on March 29,2012, he informed the nursing staff of his mental health condition, the
need for an evaluation and for continued medication, yet he was not seen by mental
health until nearly two months after his arrival at the HYRCI. Plaintiff alleges that MHM
failed to staff a sufficient number of employees to provide treatment to inmates at the
HYRI, causing plaintiff a long delay in the receipt of mental health treatment. When
plaintiff was finally seen and prescribed medication, within a week he began
experiencing adverse reactions, but it was three to four weeks before the medication
was adjusted. Plaintiff will be allowed to proceed on these claims.

D. Law Library Access
Plaintiff has pending civil and criminal cases. He alleges that he is not permitted
physical access to the law library. He further alleges that his access is limited "to
whatever he can conjure up in his uneducated, ignorant to law mind to request."
Plaintiff goes on to describe the access he is provided. (0.1. 3 at 17-20)
Prisoners must be allowed "adequate, effective and meaningful" access to the
courts. Bounds v. Smith, 430 U.S. 817, 822 (1977) (holding that prisons must give
inmates access to law libraries or direct legal assistance). A violation of the First
Amendment right of access to the courts is only established where a litigant shows that
he was actually injured by the alleged denial of access. The actual injury requirement is
a constitutional prerequisite to suit. Lewis v. Casey, 518 U.S. 343, 351 (1996);

Christopher v. Harbury, 536 U.S. 403, 415 (2002) (explaining that the constitutional
right of access is "ancillary to the underlying claim, without which a plaintiff cannot have

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suffered injury by being shut out of court"). It is evident from plaintiffs allegations that
he is provided law library access, albeit not the type he desires. Plaintiffs access to the
courts claim fails as a matter of law and is dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B),and § 1915A.6
E. Equal Protection
Plaintiff alleges that the foregoing conditions of confinement of which he
complains subjected him to conditions significantly worse than other persons under
similar circumstances. However, his complaints are directed towards the difference in
treatment between sentenced inmates and pretrial detainees.
To state a claim under the Equal Protection Clause, a prisoner must allege that
he was treated differently from similarly situated inmates. Saunders v. Horn, 959 F.
Supp. 689, 696(E. D. Pa.1996); see also City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985) (noting that the Equal Protection clause "is essentially a
direction that all persons similarly situated should be treated alike"); Price v. Cohen, 715
F.2d 87,91 (3d CiL 1983) ("To establish a violation of the equal protection clause, a
plaintiff must show that [an] allegedly offensive categorization invidiously discriminates
against [a] disfavored group.").
Here, the allegations do not indicate that plaintiff was treated differently than
others who were similarly situated and that the alleged unequal treatment was the result
of intentional or purposeful discrimination. See Slade v. Hampton Roads Reg'l Jail, 303

6Plaintiff alleges that, as a pretrial detainee seeking law library access, he is
treated differently from convicted prisoners. (0.1. 3, ml21-24) Given the fact that there
was no violation of plaintiffs right to access to the courts, his equal protection claim is
moot.
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F.Supp.2d 779 (E.D. Va. 2004) (detainee is not "similarly situated" to convicted
inmates); Moss v. Clark, 886 F.2d 686, 691 (4th Cir.1989) (the class to which an inmate
belongs consists of the persons confined as he is confined, and subject to the same
conditions to which he is subject). The court, therefore, dismisses the equal protection
claims as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(8)(ii) and 1915A(b)(1).

F. Disciplinary Proceedings
Plaintiff alleges that Pedrick violated his constitutional rights when Pedrick found
plaintiff guilty of having dangerous contraband and then punished plaintiff with twenty
days confinement "in the hole." Unlike sentenced inmates, pretrial detainees have a
liberty interest in being free from punishment prior to conviction under the Due Process
Clause. Bell v. Wolfish, 441 U.S. 520, 535-36 (1979). "Absent a showing of an
expressed intent to punish on the part of detention facility officials, that determination
generally will turn on whether an alternative purpose to which [the restriction] may
rationally be connected is assignable for it, and whether it appears excessive in relation
to the alternative purpose assigned [to it)." [d. at 538. Therefore, "if a restriction or
condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a
court permissibly may infer that the purpose of the governmental action is punishment
that may not constitutionally be inflicted upon detainees qua detainees." [d. at 539. In
the absence of substantial evidence in the record to indicate that the officials have
exaggerated their response, courts should ordinarily defer to the expert judgment of
corrections officials in determining whether restrictions or conditions are reasonably
related to the government's interest in maintaining security and order and operating the

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institution in a manageable fashion, given that said considerations are peculiarly within
the province and professional expertise of corrections officials. Id. at 540 n.23.
Unconstitutional punishment typically includes both objective and subjective
components. Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). The objective
component requires an inquiry into whether "the deprivation [was] sufficiently serious"
and the subjective component asks whether "the officials act[ed] with a sufficiently
culpable state of mind [.]" Id. (citations omitted).
It is clear from the allegations in the complaint that plaintiffs claim does not
satisfy the objective component of his substantive due process claim. Plaintiff was
disciplined for having contraband deemed by the HYRCI as dangerous, but that plaintiff
contends is not. Plaintiffs allegations indicate that the restrictions imposed upon him
were reasonably related to the legitimate goal of maintaining security and order in the
prison. Nor does plaintiff allege a purposeful intent on the part of prison officials to
punish plaintiff. For these reasons, the court will dismiss as frivolous all claims against
Pedrick pursuant to pursuant to 28 U.S.C. §§ 1915(e)(2)(8)(ii) and 1915A(b)(1).

G. Religious Diet
Plaintiff, who adheres to the mystic branch of Wicca, alleges that Morgan
violated his constitutional rights when plaintiff was not provided a Kosher diet following
questioning by a rabbi who inquired "just how Jewish the plaintiff thinks he is," and this
humiliated him.7 Plaintiff alleges that he follows a nature based/oriented religion in

7Wicca is an "earth-based" religion falling under the "Pagan" umbrella group.
See Kramer v. Pollard, 2012 WL 6040735 (7 th Cir. Dec. 5, 2012) (slip op.); McAlister v.
Livingston, 348 F. App'x 934 (5th Cir. 2009) (unpublished); Gladson V. Iowa Dep't of
Corr., 551 F.3d 825 (8th Cir. 2009); Kay V. Bemis, 500 F.3d 1214 (10th Cir. 2007);
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which all animals and plants are sacred. Fruits, vegetables, and meats (upon
slaughter) must be prepared by invoking Deity. The HRYCI offers the following diets:
,Kosher (practicing), Kosher (non-practicing), Ramadan (Muslim), vegetarian, and food­
cart. It is not clear if the offered diets satisfy plaintiffs religious needs.
When a prisoner claims that his right to exercise religion has been curtailed, a
court must determine as a threshold matter whether the prisoner has alleged a belief
that is "both sincerely held and religious in nature." DeHart v. Hom, 227 F.3d 47,51 (3d
Cir. 2000). If so, the court must then apply the four-factor test set forth in Turner v.

Safley, 482 U.S. 78 (1987), to determine whether the curtailment at issue is "reasonably
related to penologicafinterests." DeHart, 227 F.3d at 51. Following a review of the
'allegations, the court finds that plaintiff has adequately alleged denial of a religious diet,
and will allow him to proceed with the claim.

IV. CONCLUSION
For the above reasons, the court concludes that plaintiff has alleged what
appears to be cognizable and non-frivolous dental, medical, and mental health claims
against Phillip Morgan, Mental Health Management, and Correct Care Solutions, and a
religion claim against Phillip Morgan. All remaining claims, including the claims against
Humphries, Danberg, and Pedrick will be dismissed as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(8)(ii) and § 1915A(b)(1).
An appropriate order will be entered.

Jackson v. Lewis, 163 F.3d 606 (9th Cir. 1998) (table).
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