MOHAMAD v. WENEROWICZ et al
MEMORANDUM THAT FOR THE FOREGOING REASONS, I WILL GRANT THE DEFTS' MOTION AND DISMISS THE PLFF'S COMPLAINT IN ITS ENTIRETY. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 6/30/14. 7/1/14 ENTERED AND COPIES MAILED TO PRO SE PLFF., MAILED AND E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN.(pr, ) Modified on 7/1/2014 (pr, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
YASSIN HAYTHAME MOHAMAD,
THOMAS BOLTON, ERIC
VEROSKY, JAMES SPAGNOLETTI,
SHANNON BENNETT, and
June 30, 2014
Yassin Haythame Mohamad brings this § 1983 prisoner civil rights suit against
staff members of the Pennsylvania Department of Corrections for alleged violations of
his First, Eighth, and Fourteenth Amendment rights. The violations stem from an incident
on October 2, 2012 during which the plaintiff was restrained as part of a fire drill and
search of Graterford Prison. The defendants move to dismiss the claim for procedural and
substantive reasons. I will grant their motion and dismiss the plaintiff’s action in its
a. Plaintiff’s Allegations of Civil Rights Violations
All facts are taken from the Complaint, Doc. No. 3, unless otherwise noted.
Plaintiff Yassin Haythame Mohamad is a restricted release inmate at the State
Correctional Institution at Graterford. On October 2, 2012, he had signed-up for daily
exercise, was taken to an exercise yard, and was placed in a single cage for his daily
exercise. This yard was a part of a restricted housing unit on the J Block where death row
inmates were housed.2 It was cold and raining.
About a half hour later, several corrections officers and members of the
Corrections Emergency Response Team (CERT), including Sgt. Bennett, came out to the
yard and placed plastic handcuffs on the inmates. The plaintiff claims that Lt. Verosky
said he had to be placed in metal handcuffs. The plaintiff allegedly told the officers that
he had a bullet in his arm and asked how long he’d be handcuffed.3 Corrections Officer
Flagg allegedly told him that he would be in handcuffs for a few minutes.4
Corrections Officers brought inmates from J Block out to the yard and placed
them in handcuffs. After about a half hour, the plaintiff then allegedly told Unit Manager
Bolton that he had pain in his arm and leg because he suffered from DVT and blood
clots.5 He allegedly told Bolton he could not stand for a long time. Bolton allegedly told
the plaintiff “he’s not in control.”6 The plaintiff “yelled at him to get medical [treatment]”
See Defendants’ Motion to Dismiss, Doc. No. 16 at 4; Compl., Doc. No. 3 at 3.
This information was not contained in the plaintiff’s grievance. See Compl., Doc. No. 3, Ex. A.
This information was not contained in the plaintiff’s grievance. See id.
I’m assuming the plaintiff is referring to Deep Vein Thrombosis in stating he has DVT. He does not define DVT in
This information was not contained in the plaintiff’s grievance. See id.
but he allegedly ignored his request.7 The plaintiff also claims that he asked for a coat.8
He allegedly told Corrections Officer (C.O.) Flagg about his medical condition; Flagg
told him to file a grievance.9
The plaintiff claims that other non-death row inmates were taken into J Block
while he was left handcuffed in the yard. After an hour had passed, plaintiff needed to
urinate but was allegedly told to hold it. He claims he urinated on himself.10 The plaintiff
told Lt. Verosky that he was in pain. Lt. Verosky told him to sit down. The plaintiff
claims he was unable to sit because the yard was flooded from the rain. He also claims
that his weight would have made sitting prohibitive.11
After two hours, the plaintiff claims that Sgt. Bennett and Capt. Campbell came
out to the yard with coats but did not give him one. He claims that Lt. Verosky and
another corrections officer ordered him to undress but he refused to do so.12 After that,
This information was not contained in the plaintiff’s grievance. See id.
This information was not contained in the plaintiff’s grievance. See id.
In his grievance, the person who the plaintiff alerted was an unidentified Chester CERT staff member. From what
the denial states, it appears that C.O. Flagg was the unidentified Chester CERT staff member who spoke with the
plaintiff. See Compl., Doc. No. 3, Ex. A.
In his complaint, he claims other inmates also urinated themselves; however, this information was not in his initial
grievance. See Compl., Doc No. 3 at 3 and Ex. A.
The complaint states that the plaintiff is 265 pounds. Compl., Doc. No. 3 at 3. The plaintiff states in his grievance
appeal documents that he is 5’ 6”. See id., Ex. A (Grievance and Denials).
In his grievance, the plaintiff also claimed that the “Lt. Verosky & other guards was [sic] laughing & making fun
of [him]” when he was eventually taken inside. See Compl., Doc No. 3, Ex. A. This claim was not in his complaint.
the plaintiff was taken into J Block where he asked for medical attention which was
denied. After his cell was searched, the plaintiff was placed into in his cell.13
The plaintiff claims he sustained several injuries as a result of being kept in
handcuffs for over two hours.14 He allegedly sustained bruises to his wrists and swelling
in his hand because the handcuffs were too tight and not double-locked. His right arm,
the one in which the bullet was lodged, also “cramped up.” He also experienced soreness
in his shoulders. The leg in which he had DVT and blood clots also allegedly swelled up,
causing numbness and making it difficult for him to walk. The plaintiff requested medical
treatment yet claims he did not receive it until after he filed a grievance. Eventually, he
was given Tylenol for his wrist and X-rays of his wrists were taken. He claims he never
received the results of those X-rays. In addition, the bullet in the plaintiff’s arm has
allegedly travelled down into his elbow so that it is now “protruding.”
The plaintiff also claims that he experienced psychological trauma from the
incident. He claims that his psychologists encouraged him to file grievances for these
various injuries.15 Lastly, the plaintiff—a Sunni Muslim—alleges he was also unable to
offer prayer as dictated by his religion, as a result of his handcuffing,.16
In his grievance, the plaintiff also claimed that he was left in handcuffed for 15 minutes more than the other
inmates. See Compl., Doc No. 3, Ex. A.
The plaintiff’s grievance claims he was in the yard for three and a half hours, from 8:30 a.m. to 1 p.m. See id. His
description of events indicates that he was in the yard for an hour and a half before the fire drill and handcuffing
In his grievance, he equated the experience to “being treated like the African slaves that was awaiting transfer to a
white plantation,” to that of “detained prisoner of war,” and/or to an “act of terrorism.” See Compl., Doc No. 3 at 3
and Ex. A.
This information was contained in his grievance and not in his complaint. See Compl., Doc No. 3 at 3 and Ex. A.
b. Plaintiff’s Grievance Filings
On October 5, 2012, the plaintiff filed a grievance with the Facility Grievance
Coordinator.17 As part of his grievance, he asked that the videotapes from the date of the
incident be preserved and that the other inmates involved be interviewed on videotape.18
In addition to the incidents described above, the plaintiff claimed that he had been
retaliated against since he filed his grievance, with threats that he would be transferred.19
On November 13, 2012, the grievance was denied as “frivolous.”20 The denial
indicates that on October 2, 2012, SCI Graterford’s Fire Safety Department conducted a
fire drill on the J Block and used the exercise yard as an evacuation area. At the
conclusion of the drill, an authorized general search of the J Block began. The search was
authorized because the staff had information that inmates on that block had several
serious contraband items that might put the safety of the staff and inmates at risk.21 The
The plaintiff alleges that he “complained to Superintendent Wenerowicz” and to Capt. Spagnoletti, the security
captain. It is unclear what he means by these statements. I can only assume from the attachments to his complaint
that the October 5, 2012 grievance was the complaint of which he speaks since he offers no details about the filing
of other complaints.
In his grievance, the plaintiff also claimed that he contacted President Barack Obama, Governor Corbett, the “HRC”
(I’m assuming this is the Human Rights Commission), the ACLU, the Human Prisoner Rights Coalition, Major
Fields, Attorney General Holder, Psychologist Whitfield, Dr. Blott, Nurse Paul, Superintendent Wenerowicz, and
Deputy Lane before he filed his grievance. See Compl., Doc No. 3, Ex. A.
See Compl., Doc No. 3, Ex. A (Grievance and Denials).
The plaintiff was later transferred to SCI Coal Township on July 31, 2013, according to a motion to cease
retaliation he filed after this suit commenced. See Doc. No. 12. Why he was transferred is unclear but the timing of
the transfer, some ten months later, makes it difficult to say that it was in retaliation for the filing of his grievance.
The denial states that this was “the first Level 5 Housing Unit general search that was completed without a use of
force being utilized and a serious contraband weapon being recovered.” The denial indicates that the search was
carried out to ensure no inmates had weapons that could hurt staff or inmates, given that there had been several other
serious contraband weapons recovered on this Unit and that there was an indication that other weapons may be on
the unit. Id.
denial states that the prisoners, including the plaintiff, were restrained for their own
In the denial, Lt. Verosky reported that the plaintiff asked not to be placed in
plastic cuffs because of a medical condition. As a result, the plaintiff reportedly was
placed in two sets of metal handcuffs with double locks. Lt. Verosky reported that the
plaintiff did complain about the handcuffs being too tight and that they were readjusted as
a result. According to the denial, Sgt. Bennett was not in the area while the plaintiff was
being restrained and only came out when coats were being distributed to all the inmates.
The grievance denial indicated that the yard had an overhead covering which
would have prevented the plaintiff from getting wet in the rain. It stated that the inmates
were not prevented from sitting during the drill. The denial reported that no staff
members asked that the plaintiff submit to a strip search and that the plaintiff’s restraints
were removed at the same time as the other prisoners.22
In response to his First Amendment claim, the denial indicates that SCI
Graterford’s Islamic worship leader, Imam Tahir Aderonmu, reported that prayer was
held at 5:30 a.m. and noon—times during which the denial states the plaintiff was not
being restrained. The denial also states that the plaintiff was seen by Nurse Practitioner
K. Tobin during sick call rounds and by the medication nurse when he received his daily
medication on October 2, 2014.
The denial also indicates that Lt. Verosky was not present when the plaintiff was being un-cuffed and/or returned
to his cell.
On January 10, 2013, the plaintiff appealed the grievance response to
Superintendent Wenerowicz, who denied the appeal on February 4, 2013.23 Wenerowicz
deemed the appeal “frivolous” as well and found that the issues raised in his grievance
had already been adequately addressed by his previous denial.24 Wenerowicz also stated
that he had reviewed the videotape of the fire drill/search and found no policy
violations.25 Lastly, Wenerowicz indicates that the plaintiff’s medical records show he
was evaluated but no injuries were found; he was “directed to follow up with sick call, if
On February 26, 2013, the plaintiff then appealed to Chief Grievance Officer
Dorina Varner.27 In this appeal, he again claimed that the previous denials were flawed
because they were based on fabrication by Lt. Verosky.28 He further offered DC ADM
6.5.1 & 6.3.1 as evidence that there was not a fire drill because those policies state that
the entire building must be evacuated during a fire drill, yet only the “entire death row
In this appeal, the plaintiff stated the following were errors in his denial: 1) Unit Manager Terra totally relied on
Lt. Verosky’s testimony which was false regarding the readjustment of his handcuffs; 2) Sgt. Bennett was in the
yard when he was being restrained; 3) the rain was blowing so the overhang was not helpful; 4) he was never given
a coat; 5) there was no actual fire drill since all the death row inmates were brought to the yard; and 5) that it was all
a “strategic conspiracy plant to search death row inmates and only [the plaintiff].”
See Compl., Doc No. 3, Ex. A (Grievance and Denials).
Wenerowicz also noted that there was no violation in the use of flex cuffs. He did not speak directly to the
plaintiff’s contention of his metal handcuffs being too tight. He also indicated that the prison officials had no control
over the weather. See id. In his final grievance appeal, the plaintiff noted this point as showing Wenerowicz’s lack
of attention in reviewing his denial. Id.
He also reiterated that Sgt. Bennett was in the yard, despite what the grievance response said. He claimed that she
was involved in breaking up a fight between two death row inmates. See id.
population & only a few inmates on F-wing” were evacuated.29 He indicated that the fire
drill was really just a “false call to get the entire death row population out [of] their cells
to search chosen people.”30 The plaintiff further explained that inmates on the F, E, D,
and C blocks were searched later in the day on October 2, 2014 through the use of drug
sniffing dogs. He claimed that during the morning search related to the fire drill, he was
the only prisoner from these blocks searched.31 In this appeal, the plaintiff stated that he
was now being treated for the “protrusion” in his arm with pain and nerve medications.32
Varner dismissed his final appeal as untimely.33
c. Plaintiff’s § 1983 Action
On June 14, 2013, the plaintiff filed this pro se complaint against Superintendent
Wenerowicz, Capt. Spagnoletti, C.O. Verosky, Sgt. Bennett, Unit Manager Bolton and
C.O. Flagg, individually and in their official capacities, under 42 U.S.C. § 1983.34 His
claims include violations of the First, Eighth, and Fourteenth Amendments. The plaintiff
is seeking proper medical care for his blood clots, wrists, and mental anguish, along with
Id. The plaintiff also added in this appeal that he had experienced a severe cold from being in the rain with no
coat. This was a fact not previously mentioned nor one offered in his complaint. See id.
The plaintiff was put on Ultram and Nervoxin, according to his appeal. See id.
The appeal was dated February 26, 2014 but postmarked March 5, 2013. See Defendants’ Motion to Dismiss, Ex.
The plaintiff’s grievance named Lt. Verosky and Sgt. Bennett, but not Spagnoletti or Flagg. The grievance stated
that Bolton was present and observed the incidents but did not carry out the actions the plaintiff states Bolton did in
his federal complaint. He also had named C.O. Butts, Lt. Shover, and the Graterford and Chester CERT as staff that
violated his rights in his grievance complaint.
fees, costs, and damages related to his pain and suffering.35 He requested that an attorney
be appointed.36 I previously granted this request and ordered that his complaint be made
available to the Civil Rights Panel of volunteer attorneys.37 No attorney has taken the
plaintiff’s case and he continues to be pro se.38 The defendants move to dismiss for
failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
STANDARD OF REVIEW
a. Rule 12(b)(1)
Rule 12(b)(1) allows a court to dismiss a complaint based on a lack of subjectmatter jurisdiction. FED. R. CIV. P. 12(b)(1). A Rule 12(b)(1) motion is the proper
mechanism for raising the issue of whether Eleventh Amendment immunity bars federal
jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir.1996),
citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984) (Eleventh
Amendment is a jurisdictional bar which deprives federal courts of subject matter
b. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted examines the legal
In his grievance, the plaintiff stated he wished to be compensated for every hour he was restrained and that he be
given “$1 million dollars for the physical and mental abuse [he] had to endure.”
See Doc. No. 6.
See Doc. No. 8.
See Doc. No. 18 and 19.
sufficiency of the complaint.39 Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual
allegations must be sufficient to make the claim for relief more than just speculative.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to
grant a motion to dismiss, a federal court must construe the complaint liberally, accept all
factual allegations in the complaint as true, and draw all reasonable inferences in favor of
the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944
(3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all
of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules
require a “short and plain statement” of the claim that will give the defendant fair notice
of the plaintiff’s claim and the grounds upon which it rests. Id. The “complaint must
allege facts suggestive of [the proscribed] conduct.” Twombly, 550 U.S. at 564. Neither
“bald assertions” nor “vague and conclusory allegations” are accepted as true. See Morse
v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern
Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain
enough factual matters to suggest the required elements of the claim or to “raise a
reasonable expectation that discovery will reveal evidence of” those elements. Phillips v.
County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at
In deciding a motion to dismiss, the court should consider the allegations in the complaint, exhibits attached to the
complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993). The court may also consider “undisputedly authentic” documents when the plaintiff's
claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss.
A court “may dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations.” Brown v.
Card Service Center, 464 F.3d 450, 456 (3d Cir. 2006)(quoting Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984)).
a. Eleventh Amendment Bars Suit Against Defendants in Their Official
The defendants argue that the plaintiff’s claims against the defendants in their
official capacities are barred by the Eleventh Amendment. The Eleventh Amendment
states: “The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” Courts have
interpreted this amendment to provide states immunity from lawsuits brought by private
parties seeking monetary damages. See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521
U.S. 261, 267-270 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996).
“The eleventh amendment bar extends to suits against departments or agencies that have
no existence apart from the state.” Laskaris v. Thornburgh, 661 F. 2d 23, 25 (3d Cir.
1981). “This bar remains in effect when State officials are sued for damages in their
official capacity [because] ‘a judgment against a public servant in his official capacity
imposes liability on the entity that he represents….’” Kentucky v. Graham, 473 U.S. 159,
Jurisdiction is based upon a federal question under 28 U.S.C. §1331. Venue is appropriate because the alleged
violations took place at Graterford, which is within this district.
169 (1985)(quoting Brandon v. Holt, 469 U.S. 464, 471 (1985))(quotation marks and
The Pennsylvania's Department of Corrections is an executive department of the
Commonwealth, meaning it cannot exist apart from the State. 71 P.S. §732-102; see
Lavia v. Commonwealth of Pennsylvania, et al., 224 F. 3d 190, 195 (3d Cir. 2000). As
such, the DOC and its officers in their official capacities would be immune from lawsuits
for damages, unless some exception exists.
The Eleventh Amendment bar can only be overcome if a State waives this
immunity or Congress has abrogated the States’ immunity using a valid exercise of
power. Graham, 473 U.S. at 169 (“[A]bsent waiver by the State or valid congressional
override, the Eleventh Amendment bars a damages action against a State in federal
court.”)(citations omitted).41 Pennsylvania has not waived its immunity to be sued under
§ 1983. 42 Pa. C.S. § 8521(b); Laskaris, 661 F. 2d at 25. In enacting §1983, Congress did
not abrogate the State’s immunity under the Eleventh Amendment. Quern v. Jordan, 440
U.S. 332, 341-42 (1979). Therefore, no exception exists to overcome the Eleventh
The defendants cannot be sued in their official capacities, only in their individual
capacities. In addition to Eleventh Amendment immunity, the Commonwealth defendants
in their official capacities are not considered “persons” amenable to suit for damages
under § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 69-71 & n.10
See also Lavia, 224 F. 3d at 195 (“Such immunity, however, may be lost in one of two ways: (1) if the
Commonwealth waived its immunity; or (2) if Congress abrogated the States' immunity pursuant to a valid exercise
of its power.”).
(1989)(“We hold that neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.”). The claims for damages against the defendants in their official
capacities are dismissed.42
b. Exhaustion of Administrative Remedies
The defendants next argue that the plaintiff’s lawsuit should be dismissed because
he did not properly exhaust the administrative remedies available to him. The Prison
Litigation Reform Act (PLRA) requires prisoners to exhaust available administrative
remedies before bringing legal action in federal court for civil rights violations.43
“PLRA's exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
In order to bring suit in federal court, a prisoner must not only exhaust his
administrative remedies using the prison’s grievance procedure but must also do so
“properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006); Spruill v. Gillis, 372 F.3d 218,
See Laskaris, 661 F. 2d at 26 (“Thus, for purposes of the eleventh amendment the suit is against the officer as an
individual, although his action is still ‘state action’ for purposes of s 1983 and the fourteenth amendment.”(citing
Quern v. Jordan, 440 U.S. 332 (1979)).
The Prison Litigation Reform Act (PLRA), 42 U.S.C. §1997e(a), provides: “No action shall be brought with
respect to prison conditions under section 1983 of this title by a prisoner confined in jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
See also Booth v. Churner, 532 U.S. 731, 741 (2001)(“Thus, we think that Congress has mandated exhaustion
clearly enough, regardless of the relief offered through administrative procedures.”); Woodford v. Ngo, 548 U.S. 81,
84 (2006)(“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”).
230 (3d Cir. 2004).45 “[T]he determination [of] whether a prisoner has ‘properly’
exhausted a claim (for procedural default purposes) is made by evaluating the prisoner's
compliance with the prison's administrative regulations governing inmate grievances, and
the waiver, if any, of such regulations by prison officials.”46 Spruill, 372 F.3d at 222.
“Proper exhaustion demands compliance with an agency's deadlines and other critical
procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S. at
Like all Pennsylvania state correctional institutions, Graterford had a grievance
procedure in place under DC-ADM 804 which provided three levels of review: 1) initial
review by the facility grievance coordinator; 2) appeal from the initial review to the
Superintendent or Regional Director; and 3) final appeal to the Chief Hearing
Examiner.47 Appeals from one level to next must be filed within fifteen working days of
In Spruill, the Third Circuit decided whether a prisoner had to simply go through the prescribed grievance
procedure or whether the prisoner had to do so properly. 372 F.3d at 228. In making its decision, the Third Circuit
found that Congress intended for the exhaustion requirement in § 1997e(a) to include a procedural default. Id. at
In Spruill, courts were instructed to “recognize prisoners' procedural defaults within the applicable prison
grievance system” so long as that grievance procedure was deemed “adequate” and did not violate the Constitution.
Id. at 231-32. The Pennsylvania Department of Corrections grievance procedure, DC-ADM 804, has been deemed
an adequate administrative remedy for the purposes of the PLRA by the Third Circuit. See Booth v. Churner, 206
F.3d 289, 292 n. 2, 300 (3d Cir. 2000), aff’d, 532 U.S. 731 (2001)(explaining the three-step grievance process in
Pennsylvania prisons and holding that under this procedure exhaustion was required); Spruill, 372 F.3d at 232.
The Supreme Court adopted similar reasoning in Woodford, 548 U.S. at 92-97.
See Spruill, 372 F.3d at 232.
an administrative decision.48 Exhaustion of this administrative procedure requires a
prisoner to present his claims at each level.49
The plaintiff alleges that he exhausted his remedies and attaches grievance No.
431064 to his complaint as proof. The defendants argue that the plaintiff failed to comply
with the administrative grievance procedure by timely filing his appeals. The facts
presented do not clearly establish that the plaintiff’s appeals were untimely.
The denial of the plaintiff’s timely-filed initial grievance was dated November 13,
2012. However, the date stamp at the bottom on the denial submitted by the plaintiff
indicates it was not received until December 24th. Why there was over a month lag in his
receipt of the denial is unclear; the plaintiff does not address this point in his complaint.
The plaintiff then filed his appeal of this denial on January 10, 2013. Without noting the
date stamp, it would appear that the plaintiff’s appeal was untimely.
However, viewing this fact in the light most favorable to the plaintiff, it would
appear that his appeal was timely, under the circumstances.50 He had fifteen (15) working
DC-ADM 804 defines “working days” as Monday through Friday, excluding state holidays. See DC-ADM 804,
Inmate Grievance System Policy, Glossary of Terms, available at
http://www.cor.state.pa.us/portal/server.pt/community/doc_policies/20643. I will note that the version of the policy
available became effective on May 2, 2014; however, the defendants’ motion to dismiss argues that the 15-day
deadline was in effect when the plaintiff’s grievance was filed and case law indicates that the 15 working-day
deadline had previously been in effect. See Defendants’ Motion to Dismiss, Doc. No. 14. See, e.g., Armstrong v.
Folino, No. 06-164, 2007 WL 710281, at *6 (W.D.Pa. Mar. 6, 2007); Kittrell v. Watson, 2014 WL 1304713, at *5, -- A.3d ---- (Pa. Commw. Ct. Apr. 2, 2014).
DC-ADM 804 starts the fifteen-day clock from the date of the denial. See DC-ADM 804 at 2-1. However, if the
plaintiff did not receive the denial until a month after that date, it would not fair to keep him to this deadline since he
needs notice of the denial and its contents in order to appeal.
days to file his appeal, making it due January 16, 2013.51 He filed his appeal on January
10, 2013, before the deadline. Superintendent Wenerowicz considered the plaintiff’s
appeal, addressed his issues, and made a decision to uphold the initial denial on the
merits. Wenerowicz did not indicate that the appeal was untimely in his decision.
Wenerowicz’s decision was dated February 4, 2013. The plaintiff had fifteen (15)
working days to submit an appeal, which would have made his deadline February 26,
2013. The record shows that the appeal was dated February 26, 2013 but was postmarked
March 5, 2013.52 It was received by the Secretary of Inmate Grievances and Appeals on
March 7, 2013. As a result, the plaintiff’s submission at the third level of review was
denied as untimely.
The postmark date is not necessarily the filing date. The date on which the
plaintiff deposited the appeal in the institutional mailbox would have been the date on
which it was filed. Kittrell v. Watson, 2014 WL 1304713, at *6, --- A.3d ---- (Pa.
Commw. Ct. Apr. 2, 2014).53 The plaintiff does not provide the date on which he
deposited the appeal in the prisoner mailbox. But he does contend in his complaint that he
By my count, there likely would have been at least two state holidays—Christmas and New Year’s Day—between
December 24, 2012 and January 14, 2013, which is fifteen working days after December 24, 2012. This would
extend the deadline by two more days, to January 16, 2013.
See Defendants’ Motion to Dismiss, Doc. No. 14, Ex. A.
In Kittrell, the Pennsylvania Commonwealth Court found that the prisoner mailbox rule—that “a prisoner's pro se
appeal is deemed filed at the time it is given to prison”—applied to the DOC’s grievance process. 2014 WL
1304713 at *6. The court found that the trial court erred in dismissing a prisoner civil rights complaint for failure to
exhaust administrative remedies because the prisoner’s appeal was deemed untimely. Id. at *7. The prisoner claimed
he had deposited his appeal in the prisoner mailbox the same day it was dated, despite the fact that the postmark on
the envelope was for one month later. Id. at *2. The matter was remanded to the trial court to consider whether the
pro se prisoner had placed the appeal in the mailbox as he stated, thereby filing the appeal under the prisoner
mailbox rule. Id. at *7.
filed the appeal timely. At this stage, I am required the construe the facts in the light most
favorable to the plaintiff. For this reason, I cannot dismiss the plaintiff’s complaint based
solely on the defendants’ argument that he did not timely appeal his grievance denial and
properly exhaust his administrative remedies.54
c. Merits of Plaintiff’s Claims
1. Claims Against Wenerowicz and Spagnoletti as Supervisors
The defendants argue that the claims against Superintendent Wenerowicz and
Captain Spagnoletti in their individual capacities fail to state a claim against them. “A[n
individual government] defendant in a civil rights action must have personal involvement
in the alleged wrongdoing; liability cannot be predicated solely on the operation of
respondeat superior. Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005)(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988))(quotation marks omitted).55
I recognize that “it is beyond the power of this court—or any other—to excuse compliance with the exhaustion
requirement, whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d
Cir. 2000). If the plaintiff had offered valid claims, I would have dismissed the complaint granting the plaintiff leave
to amend with the date on which he actually deposited the appeal in the prisoner mailbox, to establish if his claims
were properly exhausted. See Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000). However, given that the facts he
has already provided afford him no legal remedy—as I will explain below—I find no reason to dismiss and allow for
the plaintiff’s amendment, when such an amendment appears it would be futile. Id. My dismissing the complaint
with leave to amend, in order to determine the date on which he actually deposited the appeal, would unnecessarily
expend further resources and time on the part of the parties.
The plaintiff’s complaint and the attached grievances provide substantial detail about the events he claims violated
his Constitutional rights. The plaintiff’s allegations are not factually deficient but instead are legally deficient.
See also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)(“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.”).
The plaintiff does not allege that Wenerowicz and Spagnoletti were personally
involved in his alleged Constitutional violations nor does he offer any facts which would
support a Constitutional violation on the part of Wenerowicz or Spagnoletti.56 He names
them in the complaint because they are supervisors of the other defendants he has
named.57 This supervisory relationship alone is not enough to show that Wenerowicz and
Spagnoletti are liable under § 1983.58 The claims against them in their individual capacity
are dismissed based on the facts the plaintiff has presented.59
See id. (“Because vicarious liability is inapplicable to…§ 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.”).
The only mention of Wenerowicz and Spagnoletti in the plaintiff’s complaint was the statement: “I complained to
Supt. Wenerowicz who done nothing & he’s their overseer & Capt. Sagnoletti is/or was the Security Captain &
should be held responsible.”
The only other possible way I can assume the plaintiff might be trying to implicate these defendants is in implying
that they violated his procedural due process rights by not properly reviewing or investigating his grievance
complaints. Even if I were to liberally construe the plaintiff’s allegations—as I am required to do for pro se
plaintiffs—it would be a stretch to say that a procedural due process claim can be brought against them. See Haines
v. Kerner, 404 U.S. 519 (1972).The plaintiff offers no facts in his complaint to show that he was not given proper
process during the grievance review procedure by either of these defendants. For this reason, I cannot begin to know
what actions undertaken by these defendants would constitute a civil rights violation. Even under a procedural due
process theory, the plaintiff’s claims against Wenerowicz and Spagnoletti fail.
The plaintiff also does not mention them in his grievances. If he intended to bring any other claims against them
related to his alleged First or Eighth Amendment violations, those claims would be considered procedurally
defaulted since they were not raised during the grievance process. See, e.g., McClain, Jr. v. Alveriaz, No. 07-5551,
2009 WL 3467836, at *11 (E.D.Pa. Oct. 26, 2009)(“Because Plaintiff's time limit for exhausting his administrative
remedies has long since expired, his claims are rendered procedurally defaulted.”); Potter v. Deputy Attorneys
Under Lynn Abreham, No. 03-04735, 2008 WL 375106, at *8 (E.D.Pa. Feb. 11, 2008)(“Due to Plaintiff's failure to
exhaust, this court does not have jurisdiction to determine Plaintiff's claims as to their factual merit.”).
See, e.g., Harper v. Albo, No. 10–7555, 2011 WL 3740815 (E.D.Pa. Aug. 24, 2011)(dismissing complaint against
defendant for lack of “personal involvement or knowledge of the events underlying the allegations”); Carrasquillo v.
Rendell, C.A. No. 09–347, 2009 WL 1940394, at *3 (W.D.Pa. June 30, 2009) (dismissing several defendants
because “[t]he allegations of the complaint never specifically mention actions taken on the part of [those
defendants]. This alone is sufficient to dismiss the complaint against them”); Richardson v. Deutsche Bank Trust
Co., No. 3:08–CV–1857, 2008 WL 5225824, at *3 (M.D.Pa. Dec.12, 2008)(“[S]ince there is a complete absence of
allegations against any of the Individual Defendants named in Plaintiff's complaint, the Court finds that this
complaint is so undeveloped that it does not provide these Defendants the type of notice of claim which is
contemplated by Rule 8.”).
2. Plaintiff’s First Amendment Claim
The plaintiff claims his First Amendment rights were violated because his being
restrained on October 2, 2012 prevented him from offering prayer as a Sunni Muslim.
The Free Exercise Clause of the First Amendment provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof....”
U.S. CONST. amend. I. Even viewing the facts in the light most favorable to the plaintiff,
I cannot find that plaintiff’s inability to offer prayer was enough to warrant a First
Amendment violation under § 1983.60
“[W]hen a prison regulation impinges on inmates' constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Turner v.
Safley, 482 U.S. 78, 89 (1987).61 Assuming that the plaintiff’s religious beliefs as a Sunni
Muslim are sincerely held, the prison staff’s restraint of the plaintiff on October 2, 2012
was reasonably related to legitimate penological interests—namely inmate and staff
The grievance denial states that the plaintiff was not restrained at 5:30 a.m. or 12:00 p.m. when Muslim prayer
services were held on October 2, 2012. The plaintiff contends that he was restrained between 8:30 a.m. and 1:00
p.m. Even if the plaintiff had missed the noon prayer time because the fire drill/search ran later than the defendants
contended, this would amount to a single deprivation of the plaintiff’s religious rights. This single deprivation—
which was carried out in order to ensure order, discipline, and safety of the inmates—would not rise to the level of a
constitutional violation. See Watkins v. Rogers, 525 Fed.Appx. 756, 759 (10th Cir. 2013)(finding that the single,
isolated incident of a prisoner being refused a meal compliant with his religious beliefs was not enough to amount to
a First Amendment violation).
The plaintiff does not allege a violation under the Religious Land Use and Institutionalized Persons Act
(RLUIPA), but one might be implied. RLUIPA provides that: “No government shall impose a substantial burden on
the religious exercise of a person residing in or confined to an institution” unless the burden “is in furtherance of a
compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental
interest.” 42 U.S.C.A. § 2000cc-1.
An RLUIPA claim would also fail based on the facts presented. If the plaintiff had missed a single prayer service
because the defendants were conducting a fire drill and/or safety search, this single instance would not be enough to
constitute a substantial burden. Even if it were a substantial burden, the defendants had compelling interests—
namely the safety of the staff and inmates—for their actions and appeared to carry out those actions in the least
restrictive manner (i.e. using plastic cuffs).
safety.62 For this reason, his inability to pray on a single occasion while a fire drill and
search was being conducted would not constitute a violation of his First Amendment
3. Plaintiff’s Eighth Amendment Claim
The plaintiff also does not state an Eighth Amendment claim. “[T]o establish an
Eighth Amendment violation an inmate must allege both an objective element—that the
deprivation was sufficiently serious—and a subjective element—that a prison official
The plaintiff claims that the fire drill was a sham and that the prison simply was trying to evacuate everyone in
order to search the inmates’ cells. Even assuming that the incident on October 2, 2012 was only a search of inmates’
cells—as the plaintiff claims—and did not involve an actual fire drill, his claim still fails. The grievance denials
indicate that the search of the inmates’ cells was conducted for safety purposes. This appears to be the only
reasonable inference that can be drawn for the prison staff to conduct this search. It would not make sense for the
staff to evacuate the death row inmates—an arduous task which could have potentially unsafe and dire
consequences—but for a larger, legitimate safety concern. In addition, the fact that CERT members were involved
offers evidence that the incident involved some sort of emergency, whether in the form of a fire drill and/or a
necessary search. The details offered by the plaintiff about the incident are very similar to descriptions offered in
other cases describing emergency preparedness drills in Pennsylvania prisons. See Long Qun Lin v. Mitchell, No.
Civ. 4:CV-05-299, 2007 WL 216327, at *5-6 (M.D. Pa. Jan. 25, 2007); Ostrander v. Horn, 145 F.Supp.2d 614, 617
(M.D. Pa. 2001).
Turner instructs a district court to weigh four factors when determining if prison defendants prevented an inmate’s
free exercise of religion without a legitimate penological purpose: 1) whether the regulation bears a “valid, rational
connection” to a legitimate and neutral governmental objective; 2) whether prisoners have alternative ways to
exercise their religious rights; 3) whether accommodating the right would have a deleterious impact on other
inmates, guards, and the allocation of prison resources generally; and 4) whether alternatives exist that fully
accommodate the prisoner's rights at de minimis cost to valid penological interests. 482 U.S. at 89–91. See also
Fraise v. Terhune, 283 F.3d 506, 513–14 (2002). “[A] measure of deference is especially appropriate when a
regulation implicates prison security.” Fraise, 283 F.3d at 516.
For the sake of thoroughness, I find that the first, third, and fourth factors weigh heavily in favor of there being a
legitimate penological interest. The fire drill and search served a legitimate, neutral objective related to ensuring
prison security. Accommodating the plaintiff during this drill and search, with all the inmates being detained in the
yard, would have had a deleterious impact on order being kept among the inmates under those circumstances. The
drill and search would likely not have been able to be properly carried out if the plaintiff were permitted to be unrestrained and attend services at the appropriate time. There appeared to be no reasonable alternative in light of the
circumstances to accommodate the plaintiff. The prison staff could have scheduled the drill and search at a different
time but there would still be no guarantee as to how long the process would take and whether it would overlap with
prayer service times. The second factor weighs in favor of the plaintiff’s rights in that he could not necessarily have
prayed in the way he wanted to with his arms behind his back. However, this does not appear to be enough to show
that his restraint during the fire drill and search violated his First Amendment rights.
acted with a sufficiently culpable state of mind, i.e., deliberate indifference.” Nami v.
Fauver, 82 F.3d 63, 67 (3d Cir.1996) (citing Wilson v. Seiter, 501 U.S. 294 (1991)).
The facts presented do not show that that plaintiff suffered a “sufficiently serious”
injury. Viewing the facts in the light most favorable to the plaintiff, he sustained minor
injuries related to his handcuffing during the incident described. These include soreness
of shoulders, bruises, and swelling. He also claims he endured psychological trauma
because of the incident he describes.64 None of these injuries appear to be “sufficiently
Though the plaintiff alleges he was not given appropriate medical treatment, he
admits that he was prescribed medication for his pain, his wrist was X-rayed, and he
received psychological counseling after-the-fact. For this reason, the facts he has
presented do not support a claim of inadequate medical care either.66
Lastly, the plaintiff claims he was not provided with appropriate clothing or
shelter during the incident given the rainy and cold weather conditions. The defendants’
rendering of the facts contradicts this point. Even if the plaintiff’s rendering were correct,
there is nothing to show that the defendants were deliberately indifferent to the cold and
The plaintiff also seems to indicate that the request that he be strip searched in the yard was a violation of his
rights. The defendants claim he was not asked to undress. Even if the plaintiff was asked to be searched, he did not
comply and no further request that he undress was made. Therefore, he suffered no injury. No Constitutional
violation could result from this allegation.
He also talks about the movement of the bullet in his arm, causing a protrusion in his elbow. While this injury
may be sufficiently serious, there is nothing to show that this movement of the bullet was caused by the incident in
question. He also indicated in his complaint that he told the defendants about his bullet in his arm yet they were
unresponsive; these same facts were not included in his grievances. Therefore, they would not have been properly
exhausted and could not be brought in this suit.
His implied claim for injunctive relief related to his receiving medical treatment for these injuries would also be
rainy conditions, which were outside of their control. The inmates were placed in a yard
with an overhang to keep dry from the rain. The inmates were also given coats.67 Both a
serious injury and deliberate indifference are necessary to make out an Eighth
Amendment claim of cruel and unusual punishment.68 The plaintiff fails to show that
both were present.
For these reasons, I will dismiss the plaintiff’s Eighth Amendment claim. 69
d. Plaintiff’s Allegation of a Procedural Due Process Claim
The plaintiff also claims his rights under the Fourteenth Amendment were
violated. Whether the plaintiff is claiming a procedural due process claim or a substantive
due process claim is unclear. From the facts presented I can only assume the former is
being asserted.70 I cannot find any violation of the plaintiff’s procedural due process
rights.71 The grievance procedure afforded him an adequate opportunity to be heard. See
Though the plaintiff claims he was not given a coat, the fact that coats were brought out to the inmates contradicts
the idea that the defendants were deliberately indifferent to the plaintiff’s lack of appropriate clothing.
See Ostrander v. Horn, 145 F.Supp.2d 614, 619 (M.D. 2001), aff'd 49 Fed. Appx. 391 (3d Cir.2002)(“The fact that
the plaintiff was handcuffed, removed from his cell, forcefully taken to a temporary holding cell for a short period of
time, returned to the RHU, strip-searched and returned to his cell, all in conjunction with the execution of ‘an
emergency preparedness drill involving an RHU fire-drill evacuation’, are not the types of conditions which rise to
the level of an Eighth Amendment violation.”).
It is not clear what type of Eighth Amendment claim the plaintiff is making. Even if the claim were that the
defendants used excessive force in restraining the inmates during the fire drill and search, this force may still have
been appropriate given that it was intended to restore order and maintain discipline. See Hudson v. McMillian, 503
U.S. 1, 6 (1992). Under the circumstances presented, the plaintiff’s facts also do not appear to support an excessive
Even viewing the facts in the light most favorable to the plaintiff, I cannot find anything in the allegations to show
a substantive due process claim. If one was asserted, it would likely be analyzed under the Eighth Amendment, in
accord with the “more specific provision rule.” See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir.
2010) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998)).
The plaintiff also titles his claims as violations of his “8th and 14th Amendment cruel and unusual punishment,”
making it seem that the plaintiff was attempting to assert an 8 th Amendment using the 14th Amendment. See Compl.,
Doc. No. 1 at 3.
Pettaway v. SCI Albion, Civ. A. 11-158, 2012 WL 366782, at *3 (W.D. February 2,
2012)(citing Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d Cir.
2000)).72 The procedure also allowed his grievance denial to be reviewed three times
before his administrative remedies were exhausted, allowing for any errors to be
Because the plaintiff fails to make out a due process claim, his Fourteenth
Amendment claim will also be dismissed.
For the foregoing reasons, I will grant the defendants’ motion and dismiss the
plaintiff’s complaint in its entirety.
An appropriate Order follows.
See Tillman, 221 F.3d at 422 (“The grievance program allowed prisoners to complain about ‘any’ matter that is
‘unjust,’ and as updated, also provided for direct appeal to the warden….In sum, the plaintiff had an adequate
postdeprivation remedy, thereby satisfying due process.”).
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