MCKINNEY v. GIORLA et al
MEMORANDUM. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 4/30/12. 5/1/12 ENTERED AND COPIES MAILED TO PROSE, UNREP, E-MAILED.(er, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TRACEY L. MCKINNEY
LOUIS GIORLA, et al.
Juan R. Sánchez, J.
April 30, 2012
Pro se Plaintiff Tracey McKinney brings this action pursuant to 42 U.S.C. § 1983 seeking
damages for several alleged violations of his constitutional rights during his incarceration in the
Philadelphia Industrial Correctional Center (PICC).1 McKinney alleges Defendant Lieutenant
Murray, a PICC unit manager, violated his Fourteenth Amendment due process rights by disposing
of property Murray had promised to store for McKinney while McKinney was in federal custody for
sentencing in federal court. McKinney brings Eighth Amendment claims against the remaining
Defendants. He alleges Defendants Prison Health Services and Dr. Sagreiya Siddharth were
deliberately indifferent to his serious medical needs by failing to address the severe side effects he
experienced from his prescribed blood pressure medication. He alleges Defendants Aramark
Correctional Services, LLC (misidentified in the Complaint as Aramark Food Services) and Loraela
Pittman, PICC’s kitchen supervisor, violated his Eighth Amendment rights by serving him a lunch
contaminated with mouse droppings. Finally, he seeks to hold Defendants Louis Giorla, the
Commissioner of the Philadelphia Prison System, and William Lawton, PICC’s Warden, liable for
failing to repair the security cameras in the prison yard and the light in McKinney’s cell.
Aramark and Pittman have filed a motion to dismiss McKinney’s claims against them, to
After he filed this action, McKinney was transferred to a federal prison in New York City. He has
since been released and currently resides in Philadelphia.
which McKinney has not responded.2 While several Defendants have answered McKinney’s
Complaint, this Court has an obligation to dismiss a complaint by a plaintiff proceeding in forma
pauperis if the Court at any time determines the complaint fails to state a claim on which relief may
be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); see also 28 U.S.C. § 1915A (directing courts to screen
civil complaints in which prisoners seek redress from governmental entities, officers, or employees,
and to dismiss complaints, or portions thereof, that fail to state a claim upon which relief may be
granted). Upon review, this Court concludes several of McKinney’s claims should be dismissed
pursuant to § 1915(e)(2)(B)(ii) and § 1915A. For the reasons set forth below, this Court will grant
Aramark and Pittman’s motion and will also dismiss McKinney’s claims against Murray and Giorla.
McKinney was incarcerated at PICC beginning in March 2009. In December 2010,
McKinney was transferred to federal prison in connection with a federal court sentencing. Before
he left PICC, McKinney asked Lieutenant Murray to store his property for him, explaining he would
McKinney did not respond to Aramark’s original motion to dismiss, which was filed on behalf of
Aramark only, within the time permitted by Local Civil Rule 7.1. Because it was not clear whether
McKinney had received the motion, as he had been transferred to federal prison in October 2011,
around the time the motion was filed, in November 2011, this Court issued an order directing the
Clerk of Court to send the motion to McKinney at his new address and giving McKinney an
additional 30 days in which to respond. Although McKinney subsequently requested an extension
of the time to respond until February 5, 2012, he did not thereafter submit a response within the
requested extension period. In March 2012, Aramark amended its motion to dismiss to encompass
the Eighth Amendment claim against Pittman, having determined Pittman is an Aramark employee.
The amended motion seeks dismissal of the claim against Pittman on the same grounds asserted in
Aramark’s original motion to dismiss.
The following facts are drawn from the allegations of McKinney’s Complaint, which this Court
must accept as true in evaluating a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Because Prison Health Services and Dr. Siddharth have not sought dismissal of McKinney’s Eighth
Amendment denial of medical care claim against them, and because that claim is not dismissed
pursuant to 28 U.S.C. § 1915(e)(2), the facts underlying the claim are not discussed herein.
be returning to PICC. Lieutenant Murray agreed to do so, and McKinney and Murray together
inventoried McKinney’s property. When McKinney returned from federal prison in March 2011 and
requested his property, however, another correctional officer informed him the property was gone.
McKinney thereafter spoke with Murray, who told McKinney he gave the property away because he
did not think McKinney was coming back. McKinney filed a grievance noting his loss, but he had
not received a response as of the date he filed this action, some two-and-a-half months later.
Also in March 2011, the light in McKinney’s cell went out, preventing him from reading and
writing at night. McKinney reported the problem to a correctional officer, who said she would put
in a work order, and he also filed a grievance about the light, but the problem was never corrected.
Moreover, in June 2011, a correctional officer denied McKinney’s oral request to move to an open
cell with a working light on his cell block.
In April 2011, McKinney filed a grievance about the security cameras in the yard of his cell
block. McKinney believed the cameras did not work because whenever there was a fight in the yard,
correctional staff would ask the inmates what happened, which, he reasoned, they would not need
to do if the cameras were working. The lack of functioning cameras made McKinney afraid to go
in the yard during recreation for fear of being stabbed or jumped.
Also in April 2011, while McKinney was still incarcerated at PICC, he was served a lunch
of “cold pack” (i.e., salami and pasta) in his cell. McKinney’s food contained mouse droppings, but
because he was engaged in conversation with his cellmate at the time, McKinney did not notice the
droppings until after he had eaten some of them. McKinney reported the contamination to a
correctional officer, who called the medical department. Correctional staff eventually escorted
McKinney to the medical department, where he showed his food tray to medical staff who confirmed
there were mouse droppings in the food. Two Aramark workers also confirmed the food contained
mouse droppings. The medical staff instructed McKinney just to drink water and told him there was
nothing they could do for him.
In June 2011, McKinney commenced the instant § 1983 action by filing a motion to proceed
in forma pauperis. McKinney’s Complaint was filed in July 2011, after this Court granted his
corrected in forma pauperis application.4 McKinney alleges Lieutenant Murray violated his due
process rights by disposing of his property. He seeks to hold Aramark and Pittman liable for
violating his Eighth Amendment rights by serving him contaminated food, alleging Aramark is
responsible for the distribution and cleanliness of food and trays at PICC and Pittman, the supervisor
of PICC’s kitchen, is responsible for all trays that leave the kitchen. Finally, McKinney seeks to hold
Giorla and Lawton liable for providing inadequate light in his cell and for not repairing the cameras
in his cell block’s yard.
McKinney seeks compensatory and punitive damages against all
Pursuant to 28 U.S.C. § 1915(e)(2), if a court at any time determines a complaint filed by a
person proceeding in forma pauperis fails to state a claim on which relief may be granted, “the court
shall dismiss the case.” Id. § 1915(e)(2)(B)(ii). Similarly, 28 U.S.C. § 1915A directs the district
courts to screen civil complaints filed by prisoners against governmental entities, officers, and
McKinney’s Complaint has two parts: a completed form prisoner complaint under 42 U.S.C.
§ 1983 and a typewritten complaint appended thereto. The form complaint will be cited herein as
“Form Compl.,” and the typewritten complaint will be cited as “Compl.”
Although the Complaint references injunctive relief in its “Preliminary Statement,” Compl. § I,
McKinney seeks only compensatory and punitive damages in his requests for relief, Form Compl.
V; Compl. § VIII.
employees, and to dismiss any portion of a complaint that fails to state a claim upon which relief may
be granted. In determining whether a complaint should be dismissed for failure to state a claim
pursuant to § 1915(e)(2) or § 1915A, a court applies the same standard applicable to a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Courteau v. United States, 287
F. App’x 159, 162 (3d Cir. 2008) (addressing § 1915A); Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000) (addressing § 1915(e)(2)(B)(ii)). Thus, the court must determine whether the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In evaluating the sufficiency of the complaint, the court “must accept all of the complaint’s wellpleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). The court must then determine whether the facts alleged are
sufficient to “nudge [the plaintiff’s] claims across the line from conceivable to plausible.” Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). Where,
as here, the plaintiff is proceeding pro se, “the court has an obligation to construe the complaint
liberally.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
With regard to McKinney’s claim against Lieutenant Murray, “[a] prisoner’s due process
claim based on random and unauthorized deprivation of property by a state actor is not actionable
under § 1983, whether the deprivation is negligent or intentional, unless there is no adequate postdeprivation remedy available.” Alexander v. Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005)
(citing Parratt v. Taylor, 451 U.S. 527, 542 (1981), overrruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986), and Hudson v. Palmer, 468 U.S. 517, 533 (1984)). A prison
grievance system may provide a constitutionally adequate post-deprivation remedy. See, e.g., Mattis
v. Dohman, 260 F. App’x 458, 461 (3d Cir. 2008) (affirming dismissal of prisoner’s claim for
deprivation of property without due process, where prisoner had a sufficient post-deprivation remedy
in the form of the Pennsylvania state prison system’s internal grievance procedure); Tillman v.
Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000) (holding a prison grievance program
which “allowed prisoners to complain about ‘any’ matter that is ‘unjust,’ and . . . also provided for
direct appeal to the warden” was an adequate post-deprivation remedy). Similarly, the availability
of a state law tort action may also provide a remedy sufficient to satisfy due process. See, e.g.,
Shakur v. Coelho, 421 F. App’x 132, 135 (3d Cir. 2011) (holding Pennsylvania Tort Claims Act
provided an adequate post-deprivation remedy for willful deprivation of property without due
process); Mattis, 260 F. App’x at 461 (upholding dismissal of a prisoner’s claim for deprivation of
property without due process based in part on the fact the prisoner “could also have pursued a state
tort suit for conversion of property”); Alexander, 144 F. App’x at 925 (same).
Here, McKinney attempted to avail himself of PICC’s grievance procedure, which has been
held to constitute a constitutionally adequate post-deprivation remedy. See Tinsley v. Giorla, No.
05-2777, 2008 WL 901697, at *2-3, *10 (E.D. Pa. Apr. 1, 2008) (summarizing Philadelphia Prison
System’s grievance procedure and holding such procedure is a constitutionally adequate postdeprivation remedy). Although McKinney alleges he had not received a response to his grievance
two-and-a-half months after filing it, even if this delay were sufficient to render PICC’s grievance
procedure inadquate, an adequate post-deprivation remedy is still available to McKinney in the form
of a state tort action. See Morales v. Beard, No. 09-162, 2009 WL 2413425, at *2 (W.D. Pa. 2009)
(holding even if prison grievance system was inadequate, prisoner still had “at least one adequate
post deprivation remedy in the form of a state law tort suit”). Because McKinney has an adequate
post-deprivation remedy available to him, he cannot state a due process claim against Lieutenant
Murray based on Murray’s failure to safeguard his property, and his claim against Murray will
therefore be dismissed. Moreover, because amendment will not cure this deficiency, the claim will
be dismissed with prejudice. See Shakur, 421 F. App’x at 135 (holding prisoner’s due process claim
was properly dismissed with prejudice where an adequate post-deprivation remedy was available).
With respect to McKinney’s claim against Aramark and Pittman, to establish an Eighth
Amendment violation, a plaintiff must show (1) he suffered a deprivation that was “objectively,
sufficiently serious,” resulting in “the denial of the minimal civilized measure of life’s necessities,”
and (2) the responsible prison official acted with “deliberate indifference to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted).
McKinney’s claim against these Defendants is based solely on a single instance in which they served
him food contaminated with mouse droppings.
McKinney does not allege he was served
contaminated food on any other occasion. Such allegations, while undoubtedly upsetting, do not rise
to the level of an Eighth Amendment violation. See Green v. Atkinson, 623 F.3d 278, 281 (5th Cir.
2010) (“A single incident of food poisoning or finding a foreign object in food does not constitute
a violation of the constitutional rights of the prisoner affected.”); Smith v. Younger, No. 98-5482,
1999 WL 623355, at *2 (6th Cir. Aug. 9, 1999) (upholding dismissal of Eighth Amendment claim
based on a single incident in which prisoner discovered a worm in her food); Murray v. Allen, No.
10-1014, 2010 WL 4159261, at *2 (E.D. Pa. Oct. 21, 2010) (holding prisoner’s allegations regarding
a single incident in which he was served a burrito containing a tooth, although “stomach churning,”
did not rise to the level of an Eighth Amendment violation); Allen v. Maryland, No. L-10-353, 2010
WL 727753, at *1 (D. Md. Feb. 25, 2010) (“To state a constitutional violation for unsanitary food
preparation an inmate must do more than allege a single incident of contamination.”); Smith-Bey v.
CCA/CTF, 703 F. Supp. 2d 1, 8 (D.D.C. 2010) (holding “two instances of discovering cockroaches
in one’s food do not rise to the level of a sufficiently serious deprivation” for Eighth Amendment
purposes); Seymour/Jones v. Oldt, No. 90-1583, 1990 WL 29721, at *1 (E.D. Pa. 1990) (holding “a
single unintentional instance of food poisoning, . . . though undoubtedly unpleasant, does not rise
to the level of a violation of [a prisoner’s] civil rights). Because the incident on which McKinney’s
claim against Aramark and Pittman is based does not amount to a violation of his Eighth
Amendment rights as a matter of law, amendment would be futile, and his claim against these
Defendants will be dismissed with prejudice.6
Finally, McKinney alleges Giorla and Lawton violated his Eighth Amendment rights by
housing him in a cell with inadequate light for more than two-and-a-half months and by failing to
fix the prison yard security cameras. Insofar as McKinney seeks to hold Giorla liable for these
alleged Eighth Amendment violations, his claims fail because the Complaint does not allege Giorla
was personally involved in the violations. To be liable under § 1983, a defendant “must have
personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation
of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). The requisite
personal involvement “can be shown through allegations of personal direction or of actual
knowledge and acquiescence”; however, such allegations “must be made with appropriate
particularity.” Id. Here, McKinney does not allege any facts from which it can plausibly be inferred
McKinney’s claim against Aramark is subject to dismissal for the additional reason that McKinney
has not identified any Aramark policy that caused the alleged constitutional violation, as required
to state a § 1983 claim against a corporation alleged to have acted under color of state law. See, e.g.,
Jones v. Aramark Corp., No. 09-846, 2010 WL 180941, at *2 (D. Del. Jan. 14, 2010).
that Giorla, the Commissioner of the Philadelphia Prison System, even knew about the lighting and
security camera problems alleged, much less played any role in failing to correct these problems.
Rather, McKinney expressly seeks to hold Giorla liable on a respondeat superior theory based on
his failure to ensure his “staff is operating correctly, and no prisoner[s] are neglected and their
Constitutional Right[s] are not violated.” Compl. ¶ 62; see also id. ¶ 3 (alleging Giorla has
responsibility for “mak[ing] sure all rights are enforced and none are neglected”). Because § 1983
liability may not be premised on such a respondeat superior theory, McKinney’s claims against
Giorla will be dismissed without prejudice to McKinney’s right to amend his Complaint to allege
additional facts regarding Giorla’s role.7
For the reasons set forth above, McKinney’s Fourteenth Amendment due process claim
against Lieutenant Murray and Eighth Amendment claims against Aramark and Pittman are
dismissed with prejudice, and his Eighth Amendment claim against Giorla is dismissed without
prejudice. McKinney’s Eighth Amendment claims against Prison Health Services, Dr. Siddharth,
and Lawton are not dismissed.
An appropriate order follows.
BY THE COURT:
/s/ Juan R. Sánchez
Juan R. Sánchez, J.
While McKinney makes the same allegation about Lawton’s failure to adequately supervise PICC
staff to ensure prisoners’ constitutional rights are not violated, id. ¶ 62, he also alleges Lawton, as
PICC’s Warden, is “responsible for handling and answering Administrative Remedies,” id. ¶ 4, such
as the grievances McKinney filed regarding the broken light in his cell and the nonfunctional yard
cameras. Thus, construing the Complaint liberally in McKinney’s favor, he has sufficiently alleged
Lawton both knew of the challenged conditions (through McKinney’s grievances) and acquiesced
in them (by failing to correct them).
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