James v. Varano et al

Filing 89

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 3/7/17. (rw)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
PARIS L. JAMES,
Plaintiff
vs.
DAVID VARANO, et al.,
Defendants

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No. 1:14-CV-01951
(Judge Kane)

MEMORANDUM

I.

Background
On October 8, 2014, Plaintiff Paris L. James, an inmate

at the State Correctional Institution at Coal Township,
Pennsylvania (“SCI-Coal Township”) filed a 51-page complaint
pursuant to 42 U.S.C. § 1983, against 16 named individual
defendants and 14 “John and Jane Doe” defendants, all employees of
the Department of Corrections at SCI-Coal Township.
The complaint alleges that in October, 2012, he was
denied adequate medical care, subjected to substandard conditions
of confinement,1 subjected to excessive force, and retaliated
against for complaining about the quality of the medical
treatment, the conditions of confinement, and the excessive force

1. With respect to the conditions of confinement, Plaintiff
claimed he was denied adequate food and nutrition from the time
he arrived at SCI-Coal Township on October 11, 2012, until he was
transported to a hospital on October 18, 2012, and that the
medical facilities at SCI-Coal Township were not sufficient to
address the number of inmates at SCI-Coal Township.

inflicted.

Plaintiff alleges that two defendants, Physician

Assistants Davis and Daya failed to provide him with adequate
medical care and treatment for breathing difficulties, and that
they conspired with other Defendants to deprive Restricted Housing
Unit (“RHU”) inmates of proper intake examinations or access to
health care and intentionally refused medical care to reduce
transportation costs from the RHU.

Plaintiff claims violations of

the Eighth and Fourteenth Amendments to the United States
Constitution.

On September 25, 2015, the court accepted

Plaintiff’s amended complaint. On August 31, 2016, this court
granted in part and denied in part Defendants’ motions to dismiss.
(Doc Nos. 55, 56.)2 The court dismissed Plaintiff’s conspiracy
claims, equal protection claims and the condition of confinement
claims3 but permitted the Eighth Amendment claims of deliberate
indifference to a serious medical need to proceed.

The court

dismissed the verbal harassment, retaliation and conspiracy claims
except with respect to Defendants Mosier, Tripp and Else; the
court dismissed the equal protection claims; and the court
dismissed the condition of confinement as well as the medical care
claims asserted against Defendants Verano and McCarthy on the
basis of lack of personal involvement.
2. The allegations of the amended complaint as well as the
reasons for the court’s disposition of the motions are set forth
in detail in a 46-page memorandum. (Doc. No. 55.)
3. The court noted that the claims against Defendants Davis and
Daya for alleged inadequate medical facilities was not
cognizable. (Doc. No. 55, at 39 n.6.)
2

Pending before the court is a motion filed on May 9,
2016, entitled “Motion for Order to Show Cause and Temporary
Restraining Order and or Preliminary Injunction.” (Doc. No. 49.)
Along with the motion, Plaintiff filed a supporting brief (Doc.
No. 50) and an unsworn declaration under penalty of perjury. (Doc.
No. 51.) Subsequently, on June 6, 2016, Plaintiff filed a second
declaration which reiterates some of the information set forth in
the first one. (Doc. No. 54.)

In the first declaration Plaintiff

alleges that:
(1) he is subject to threats of harm against his
physical safety and taunts, which impede his access
to the law library;
(2) corrections personnel will not enforce a separation
between him and the numerous defendants he sued; and
(3) on February 21, 2016, he had a serious “psychiatric
episode” during which time he was subjected to oleoresin
(“OC”) spray and an unnecessary use of force and was
not properly decontaminated afterword;
(4) on February 21, 2016, medical personnel made an
“ineffective effort” to provide him with his asthma
inhaler, which he could not use on his own because his
airways were obstructed by mucus from the OC spray; and
(5) since February 21, 2016, he has been housed in the
restrictive housing unit where he has been deprived of
his inhaler causing him unnecessary pain and suffering
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and preventing him from being able to work out
physically.
(Doc. No. 51, ¶¶ 6-13.)

Plaintiff seeks as relief (1) an order

that he be given his inhaler and the ability to retain it in his
cell; (2) he be separated from all defendants; and (3) he not be
subjected to sensory deprivation caused by 24 hour illumination in
his cell. (Id. at ¶ 15.)

The second declaration as noted is a

reiteration of the first.
On May 20, 2016, the Corrections Defendants filed a
brief in opposition along with evidentiary materials, including a
declaration under penalty of perjury from Thomas S. McGinley, the
Superintendent at SCI-Coal Township. (Doc. No. 52.)

The

declaration of Superintendent McGinley and the evidentiary
materials assert that Plaintiff was taken to the medical
department after having been exposed to OC spray; while seated in
the medical department Plaintiff ignored staff direction and
yelled unintelligible sounds for unknown reasons; Plaintiff
continually asked for water not his inhaler; nurses attempted to
provide him with his inhaler; a nurse attempted to place it in his
mouth at which point Plaintiff jerked his head back to avoid the
medication; and the nurse a second time attempted to place the
inhaler in his mouth and Plaintiff remained uncooperative.
52, at 12.)

(Doc.

Superintendent McGinley in his declaration indicates

that he viewed the videotape of the incident and further states in
pertinent part as follows:
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7. Some inmates
not permitted to
their person; in
near the unit at

in the Restrictive Housing Unit are
retain their asthma inhalers on
those cases, the inhalers are kept
the officers’ station.

8. Inmates with mental health issues, such as
Plaintiff, are among those who may not be permitted
to maintain their inhalers.
9. This is in accordance with policy which leaves it to
the discretion of prison official whether to allow
inmates to possess their own medications for
self-administration.
10. Among the concerns with allowing these inmates to
retain their inhalers are substance abuse, breaking the
plastic off the inhaler and using it to self-mutilate
and using the inhaler to facilitate an outside hospital
trip.
(Id. at 11.)

Plaintiff’s motion for a preliminary injunction

became ripe for disposition on June 6, 2016, when he filed a reply
brief. (Doc. No. 53.)

For the reasons set forth below,

Plaintiff’s motion for a preliminary injunction will be denied.
The court will also address in this memorandum several other
motions filed by Plaintiff and the Defendants.
II.

Plaintiff’s Motion for Preliminary Injunction
A.

Legal Standard for the Issuance
of a Preliminary Injunction
Preliminary injunctive relief is extraordinary in

nature, and is discretionary with the trial judge.

Orson, Inc. v.

Miramax Film Corp., 836 F. Supp. 309, 311 (E.D. Pa. 1993) (citing
Skehan v. Board of Trustees of Bloomsburg State College, 353 F.
Supp. 542 (M.D. Pa. 1973)).

In determining whether to grant a

motion seeking preliminary injunctive relief, courts in the Third

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Circuit must consider the following four factors:

(1) the

likelihood that the applicant will prevail on the merits; (2) the
extent to which the movant is being irreparably harmed by the
conduct complained of; (3) the extent to which the non-moving
party will suffer irreparable harm if the preliminary injunction
is issued; and (4) whether granting preliminary injunctive relief
will be in the public interest. Bimbo Bakeries USA, Inc. V.
Botticella, 613 F.3d 102, 109 (3d Cir. 2010); S & R Corp. v. Jiffy
Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir. 1992) (citing
Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir.
1990)); Instant Air Freight v. C.F. Air Freight, Inc., 882 F.2d
797, 800 (3d Cir. 1989); Premier Dental Prods. Co. v. Darby Dental
Supply Co., 794 F.2d 850, 852 (3d Cir.), cert. denied, 479 U.S.
950 (1986).
The burden of introducing evidence to support a
preliminary injunction is on the moving party with respect to the
first two factors. Acierno v. New Castle County, 40 F.3d 645, 653
(3d Cir. 1994); Neo Gen Screening, Inc. V. TeleChem Intern, Inc.,
69 F. App’x 550, 554 (3d Cir. 2003). An absence of either of the
first two factors warrants the denial of a request for preliminary
injunctive relief. Id.; Adams v. Freedom Forge Corp., 204 F.3d
475, 484 (3d Cir. 2000)(“In order to obtain a preliminary
injunction, plaintiffs must show both (1) that they are likely to
experience irreparable harm without an injunction and (2) that
they are reasonably likely to succeed on the merits.”).
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The United States Court of Appeals for the Third Circuit
has defined irreparable injury as "potential harm which cannot be
redressed by a legal or equitable remedy following a trial."
Instant Air Freight, 882 F.2d at 801.

A court may not grant

preliminary injunctive relief unless "[t]he preliminary injunction
[is] the only way of protecting the plaintiff from harm."

Id. The

relevant inquiry is whether the party moving for the injunctive
relief is in danger of suffering the irreparable harm at the time
the preliminary injunction is to be issued.

SI Handling Sys.,

Inc. v. Heisley, 753 F.2d 1244, 1264 (3d Cir. 1985).
Also, because the purpose of preliminary injunctive
relief is to prevent irreparable injury pending the resolution of
an underlying claims on the merits, the injury claimed in the
motion for preliminary injunctive relief must relate to the
conduct alleged and permanent relief sought in the plaintiff’s
complaint. The Court of Appeals for this circuit has recognized
that there must be a connection between the underlying complaint
and the relief requested in the motion for a preliminary
injunction. Ball v. Famiglio, 396 F. App’x 836, 837 (3d Cir.
2010).

The Court of Appeals stated the following:
We have jurisdiction to review the denial of preliminary
injunctive relief pursuant to 28 U.S.C. § 1292(a)(1).
We do so for abuse of discretion, though we review
underlying conclusions of law de novo. See Adams v.
Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir.2000). A
preliminary injunction is an extraordinary remedy, and
the party seeking it must show, at a minimum, a
likelihood of success on the merits and that they likely
face irreparable harm in the absence of the injunction.
See id. As these elements suggest, there must be “‘a
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relationship between the injury claimed in the party's
motion and the conduct asserted in the complaint.’”
Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.2010)
(quoting Devose v. Herrington, 42 F.3d 470, 471 (8th
Cir.1994)); see also Adams, 204 F.3d at 489–90
(affirming denial of injunction where plaintiffs' harm
was “insufficiently related to the complaint and [did]
not deserve the benefits of protective measures that a
preliminary injunction affords”).
Id.; see also Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th
Cir.1997) (“A district court should not issue an injunction when
the injunction in question is not of the same character, and deals
with a matter lying wholly outside the issues in the suit.”)
(citing De Beers Consol. Mines v. United States, 325 U.S. 212, 220
(1945)). “In sum, a federal district court lacks jurisdiction over
claims raised in a motion for injunctive relief where those
matters are unrelated to the underlying complaint.”

Stewart v.

Verano, 2015 WL 1636124, at *2 (M.D.Pa. April 8. 2015).
B.

Discussion
The relief requested by Plaintiff, as stated earlier,

is as follows (1) an order that he be given his inhaler and the
ability to retain it in his cell; (2) he be separated from all
defendants; and (3) he not be subjected to sensory deprivation
caused by 24 hour illumination in his cell.

Based on the un-

rebutted evidentiary materials submitted by Defendants, it appears
that Plaintiff cannot demonstrate likelihood of success on the
merits of his claim.

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Defendants presented evidence that reveals that
Plaintiff’s inhaler is available on the cell block where he is
located; a nurse will administer the inhaler when he is in need of
it; he has been obstructive in the past when a nurse attempted to
administer the inhaler; he has psychiatric problems which prevent
him from maintaining the inhaler in his cell; and there are
legitimate security and safety reasons for not allowing an inmate
such as Plaintiff to maintain an inhaler on his person or in his
cell.
As for his request that he be separated from Defendants,
there are no evidentiary materials presented by Plaintiff which
reveal that he has had ongoing contact with the remaining
Defendants named in his amended complaint which has prejudiced his
civil action. Furthermore, to the extent that Plaintiff claims
that he has been taunted by some of the Defendants, mere verbal
threats and even abusive racial threats do not in the context of a
prison violate an inmate’s rights under the United States
Constitution. Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.
1973); Maclean v. Secor, 876 F. Supp. 695, 698-99 (E.D. Pa. 1995);
Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) ("Mean
harassment . . . is insufficient to state a constitutional
deprivation."); Prisoners' Legal Ass'n v. Roberson, 822 F. Supp.
185, 189 (D.N.J. 1993) ("[V]erbal harassment does not give rise to
a constitutional violation enforceable under § 1983.").

Mere

threatening language and gestures of a custodial officer do not,
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even if true, amount to constitutional violations.

Fisher v.

Woodson, 373 F. Supp. 970, 973 (E.D. Va. 1973); see also Balliet
v. Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.) ("[v]erbal abuse
is not a civil rights violation . . ."), aff'd, 800 F.2d 1130 (3d
Cir. 1986) (Mem.).

A constitutional claim based only on verbal

threats will fail regardless of whether it is asserted under the
Eighth Amendment's cruel and unusual punishment clause, see
Prisoners' Legal Ass'n, 822 F. Supp. at 189, or under the
Fourteenth Amendment's substantive due process clause, see
Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991).
Moreover, the decision to separate an inmate from
another inmate or a correctional officer has always been within
the discretion of corrections officials.

See, e.g., Bell v.

Wolfish, 441 U.S. 520, 547 (1979)(Courts, in evaluating the
conduct of prison officials, must accord prison administrators
"wide ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.") Shaw v. Murphy, 532 U.S. 223, 229 (2001) ("the
problems of American prisons are complex and intractable ones,"
and courts are ill equipped to deal with them); Meachum v. Fano,
427 U.S. 215, 225 (1976) ("Transfers between institutions, for
example, are made for a variety of reasons and often involve no
more than informed predictions as to what would best serve
institutional security or the safety and welfare of the inmate").
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With respect to the claim that Plaintiff is subject to
24-hour illumination in his cell this claim was not raised in the
amended complaint and, consequently, there is no likelihood of
success on the merits. In fact, all of Plaintiff’s requests for
preliminary injunctive relief are unrelated to the underlying
claims set forth in the amended complaint which involve conduct
which occurred in October, 2012, because Plaintiff did not make a
request for injunctive relief in the amended complaint. (Doc. No.
28, 60-65, ¶¶ 290-356.)

The impetus for the requests for

injunctive relief occurred over 3½ years later in February, 2016.
Because the injunctive relief sought is separate from the
allegations of the underlying amended complaint, Plaintiff cannot
demonstrate that there is a likelihood of success on the merits.4
See Ball v. Famiglio, supra.
III.

Plaintiff’s Motion to Amend the Amended Complaint to
Identify Some of the “John Doe” Defendants
On January 11, 2017, Plaintiff filed a motion entitled

“Plaintiff’s Motion to Amend Plaintiff’s Amended Complaint to
Identify the Identity of Previously Named John Doe Defendants
Which Shall Hereinafter Reflect the Identities of Defendant
Bleow.” (sic) (Doc. No. 71.)

Plaintiff indicates that as a result

of discovery he has identified (1) “John Doe #3" as Sergeant Rod
Romig and that Sergeant Romig is named in paragraphs 24, 71

4. Plaintiff is not prevented from filing a new civil action
relating to the events which occurred in February, 2016.
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through 76, 78 through 82, 85, 92 through 94, 96, 98, 100 through
101, 103 through 104, 106 through 107, 195, 248 through 249, 266
through 271, 278, 288 through 289 and 333 through 334 of the
amended complaint; (2) “John Doe #4" as Correctional Officer Scott
Segedy and that Correctional Officer Segedy is named in paragraphs
25, 71 through 76, 78 through 82, 85, 92 through 94, 96, 98, 100
through 101, 103 through 104, 106 through 107, 195, 248 through
249, 266 through 271, 278, 288 through 289 and 333 through 334 of
the amended complaint; (3) “John Doe # 10" as Registered Nurse
Matt Hyde and that RN Hyde is named in paragraphs 10, 126 through
137, 139, 146 through 150, 152, 195, 260 through 266, 270 through
273, 275, 288 through 289, and 303 through 304 of the amended
complaint; and (4) “John Doe #11" as Correctional Officer Paul
Goodwin and that Correctional Officer Goodwin is named in
paragraphs 31, 162 through 163, 188 through 189, 193, 195, 266
through 268, 270 through 271, 278, 288 through 289 and 347 through
348 of the amended complaint.
Plaintiff requests that the amended complaint (Doc. No.
28) be served by the United States Marshall on Defendants Romig
Segedy, Hyde and Goodwin.

As noted in the background of this

memorandum the court granted in part and denied in part
Defendants’ motions to dismiss the amended complaint. In the
memorandum and the accompanying order the court granted Plaintiff
a period of time to identify the “John Doe” Defendants.
Consequently, the court will (1) grant Plaintiff’s motion to amend
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the amended complaint to identify “John Doe #s 3, 4, 10, and 11"
and (2) direct the United States Marshal to serve the amended
complaint, and this memorandum and accompanying order, on
Defendants Romig, Segedy, Hyde and Goodwin. The court will not
require Plaintiff to file a second amended complaint but “John Doe
#s 3,4, 10 and 11 will be hereinafter identified as set forth
above.5
IV.

Plaintiff’s Motion to Compel Responses to Interrogatories
and Corrections Defendants’ Motion to File Second Amended
Answer to Amended Complaint
On January 25, 2017, Plaintiff filed a motion to compel

discovery. (Doc. No. 72.) On February 2, 2017, Defendants, not
including Physician Assistants Davis and Daya, filed a motion to
amend their answer to paragraph 43 of Plaintiff’s amended
complaint.

These two motions are interrelated.
In the motion to compel discovery, Plaintiff requests

that Defendant Masser be ordered to identify “John Doe #s 1 and
2.”

In paragraph 43 of the amended complaint, Plaintiff alleges

that he was transported from SCI-Forest to SCI-Smithfield on
October 11, 2012, where he was turned over to “John Doe #s 1 and 2
for transport to SCI-Coal Township.

Plaintiff contends that those

two “John Does” then transported and delivered him to SCI-Coal
Township on October 11, 2012.

Upon arrival at SCI-Coal Township

Plaintiff alleges that Defendant Masser had interaction with “John

5. Plaintiff indicates in the amended complaint that these four
defendants are employed at SCI-Coal Township.
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Doe #s 1 and 2.” (Doc. 28, at 14, §81.) In Defendant Masser’s
opposition brief (Doc. No. 77)

to the motion to compel Masser

claims that no such transport occurred on October 11, 2012.
However, in the amended answer to the amended complaint (Doc. No.
64), Defendants admitted that Plaintiff was transferred from SCIForest to SCI-Coal Township on October 11, 2012, with an
intermittent stop at SCI-Smithfield. (Doc. No. 60, at 4, ¶ 43.)
In the motion to file a second amended answer to the
amended complaint Defendants now claim there was no such
intermittent stop at SCI-Smithfield and request that they be
permitted to amend their answer to paragraph 43 to state as
follows: “It is admitted that Plaintiff was transferred from SCIForest to SCI-Coal Township. The remaining allegations are denied
as stated. By way of further answer, this allegation does not
concern answering defendants.”
First, the court will allow Defendants to amend their
answer to paragraph 43 of Plaintiff’s amended complaint but the
court discerns no reason why Defendant Masser who had interaction
with “John Doe #s1 and 2" on October 11, 2012, is unable to
identify them and the fact that there allegedly was no
intermittent stop at SCI-Smithfield on October 11, 2012, should
not prevent Defendant Masser from identifying the correctional
officers who delivered Plaintiff to SCI-Coal Township.
Consequently, the court will direct that Defendant Masser fully

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answer Plaintiff’s interrogatories relating to the identity of
“John Doe #1 and 2.”
V.

Plaintiff’s Motion to Stay and Defendants’ Motion to Suspend
Summary Judge Deadline
On February 8, 2017, Plaintiff filed a document entitled

“Motion to Stay” (Doc. No. 78) which in essence is a motion to
extend the discovery deadline as well as the dispositive motions
deadline.

Also, on February 28, 2017, Defendants filed a document

entitled “Corrections Defendants’ Motion to Suspend Summary
Judgment Deadline.”

In light of the above, the court will grant

these two motions and set a new discovery deadline and dispositive
motions deadline.
An appropriate order will be entered.

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