Johnson v. Beard et al
MEMORANDUM (Order to follow as separate docket entry)In light of the facts that cell maintenance was performed in response to Manchas requests, the temporary length of his stay in Cell 2047, the fact that there is no indication that Manchas suffered any injury as a result of any condition in that cell, and viewing the facts in a light most favorable to the Plaintiff, this Court agrees that a constitutional violation has not been clearly established. Accordingly, since a reasonable officer would not have understood that a constitutional violation was occurring, the Remaining Defendants request for qualified immunity with respect to the surviving conditions of confinement claims is also meritorious. An appropriate order will enter. signed by Honorable Richard P. Conaboy on 9/25/14. (cc)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
TIMOTHY R. JOHNSON,
JEFFREY BEARD, ET AL.,
CIVIL NO. 3:CV-09-886
Timothy R. Johnson initiated this pro se civil rights action
pursuant to 42 U.S.C. § 1983 during his prior confinement at the
State Correctional Institution, Huntingdon, Pennsylvania (SCIHuntingdon).1
An Amended Complaint was filed by Johnson on
February 22, 2010.
See Doc. 46.
SCI-Huntingdon inmate Daniel
Manchas, III was subsequently granted leave to be joined as a
Plaintiff in this matter.
By Memorandum and Order dated March 15, 2011, this Court
partially granted a motion to dismiss the Amended Complaint filed
by the Commonwealth Defendants.
See Doc. 93.
motions to dismiss the claims of the respective Plaintiffs were
granted by Memorandums and Orders dated March 22, 2011 and August
Plaintiff Johnson’s surviving claims were dismissed for
failure to prosecute by Order dated March 8, 2012.
1. Johnson was later transferred to the Rockview State
Correctional Institution, Bellefonte, Pennsylvania.
By Memorandum and Order dated November 26, 2013, this Court
granted Manchas’ request to voluntarily dismiss his claims against
Remaining Defendants Garman and Glorioso, as well as his conditions
of confinement claims with the exception of two allegations.
addition, Remaining Defendants’ motion seeking entry of summary
judgment was partially granted and Manchas’ damage claims brought
against Remaining Defendants in their official capacities were
As a result of the above rulings, the three (3) Remaining
Defendants are the following SCI-Huntingdon employees:
Superintendent Lawler; Safety Manager B. M. Ewell; and Utilities
Manager Curtis Williams.
surviving allegations are:
Remaining Plaintiff Manchas’ two
1) he was exposed to unconstitutional
powerhouse emissions; and (2) there were leaks in the ceiling and
floors of his cell which caused mold and went uncorrected.
Presently pending is Remaining Defendants’ motion for
See Doc. 204.
The opposed motion is ripe for
Remaining Defendants argue that they are entitled to summary
judgment on the grounds: (1) Manchas failed to exhaust his
available administrative remedies; (2) a viable conditions of
confinement claim has not been asserted; and (3) Remaining
Defendants are entitled to qualified immunity.
2. Manchas’s cross summary judgment motion and his second motion
requesting leave to file a second amended complaint were also
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”
Fed. R. Civ.
P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
A factual dispute is “material” if it might affect the
outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty
A factual dispute is
“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
Id. at 248.
The court must resolve all doubts
as to the existence of a genuine issue of material fact in favor of
the non-moving party.
Saldana, 260 F.3d at 232; see also Reeder v.
Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.
Versarge v. Township of Clinton, 984
F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
See Celotex Corp. v. Catrett, 477 U.S. 317, 324
Instead, it must “go beyond the pleadings and by [its] own
affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”
Id. (internal quotations omitted); see
also Saldana, 260 F.3d at 232 (citations omitted).
judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
Celotex, 477 U.S. at 322-23.
“‘Such affirmative evidence
– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”
Saldana, 260 F.3d
at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).
Remaining Defendants argue that Plaintiff failed to properly
exhaust his administrative remedies because his grievances did not
identify them by name.
See Doc. 205, p. 16.
Second, they contend
that a finding of non-exhaustion is appropriate because Manchas’
grievance relating to powerhouse emissions was not appealed to
See id. at p. 17.
Section 1997e(a) of title 42 U.S.C. provides:
No action shall be brought with respect to
prison conditions under Section 1979 of
the Revised Statutes of the United States
(42 U.S.C. 1983), or any other federal
law, by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted.
Section 1997e(a) requires administrative exhaustion
“irrespective of the forms of relief sought and offered through
Porter v. Nussle, 122 S.Ct. 983, 992
(2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001).
for monetary relief are not excused from the exhaustion
Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000).
Dismissal of an inmate’s claim is appropriate when a prisoner has
failed to exhaust his available administrative remedies before
bringing a civil rights action.
2d 838, 843 (E.D. Pa. 2000).
Ahmed v. Sromovski, 103 F. Supp.
“[E]xhaustion must occur prior to
filing suit, not while the suit is pending.”
Tribe v. Harvey, 248
F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v.
Francis, 196 F.3d 641, 645 (6th Cir. 1999)); Oriakhi v. United
States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
An inmate is not required to specifically plead or
demonstrate exhaustion in his or her complaint.
549 U.S. 199, 216 (2007);
See Jones v. Bock,
see also Ray v. Kertes, 285 F.3d 287 (3d
Cir. 2002)(a prisoner does not have to allege in his complaint that
he has exhausted administrative remedies).
Rather, pursuant to the
standards announced in Williams v. Runyon, 130 F.3d
568, 573 (3d
Cir. 1997), it is the burden of a defendant asserting the defense
of non-exhaustion to plead and prove it.3
The United States
Supreme Court in Jones noted that the primary purpose of the
exhaustion requirement is to allow prison officials to address
complaints before being subjected to suit, reducing litigation to
the extent complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a
In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”
The administrative exhaustion mandate also implies a
procedural default component.
(3d Cir. 2004).
Spruill v. Gillis 372 F.3d 218, 222
As explained by the Third Circuit Court of
Appeals, a procedural default rule “prevents an end-run around the
Id. at 230.
It also ensures “prisoner
compliance with the specific requirements of the grievance system”
and encourages inmates to pursue their administrative grievances
“to the fullest.”
Similarly, the Supreme Court has observed
that proper exhaustion of available administrative remedies is
mandatory, meaning that prisoners must comply with the grievance
system’s procedural rules, including time limitations.
Ngo, 548 U.S. 81 (2006).
The Court of Appeals for the Third Circuit has recognized
that “[t]here is no futility exception” to the exhaustion
Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)
(citing Nyhuis, 204 F.3d at 75.
A subsequent decision by the Third
Circuit Court of Appeals reiterated its no futility exception by
rejecting an inmate’s argument that exhaustion should be excused
because prisoner grievances were regularly rejected.
Smith, 186 Fed.
Appx. 271, 274 (3d Cir.
The Court of
Appeals has also rejected “sensitive’ subject matter or ‘fear of
retaliation’ as a basis for excusing a prisoner’s failure to
Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110, 113 (3d Cir.
A Consolidated Inmate Grievance Review System has been
established by the Pennsylvania Department of Corrections (“DOC”).4
Section V of DC-ADM 804 (effective December 8, 2010) states that
“every individual committed to its custody shall have access to a
formal procedure through which to seek the resolution of problems
or other issues of concern arising during the course of
See Doc. 29, p. 8.
It adds that the formal
procedure shall be known as the Inmate Grievance System and
provides a forum of review and two (2) avenues of appeal.
VI ("Procedures") of DC-ADM 804 provides that, after attempted
informal resolution of the problem, a written grievance may be
submitted to the Facility Grievance Coordinator within fifteen (15)
working days after the events upon which the claims are based, but
allowances of extensions of time will be granted under certain
An appeal from the Grievance Coordinator's Initial Review
decision may be made in writing within ten (10) working days to the
Facility Manager or Superintendent.
A final written appeal may be
presented within fifteen (15) working days to the Secretary’s
Office of Inmate Grievances and Appeals (SOIGA).
A prisoner, in
seeking review through the DOC grievance system, may include
reasonable requests for compensation or other legal relief normally
available from a court.
However, an improperly submitted grievance
will not be reviewed.
The DOC’s grievance system has been periodically amended.
Remaining Defendants’ initial non-exhaustion argument
contends that they are entitled to entry of summary judgment
because they were not identified by name or title in the
institutional grievances filed by Manchas with respect to his two
It is undisputed that Plaintiff Manchas filed Grievance, No.
253890, complaining about the conditions in his cell (# 2047)
Grievance, No. 230881, which raised complaints relating to prison
boiler # 4 and related smoke emissions in the exercise yard.
Court agrees that the two grievances did not mention any of the
three Remaining Defendants by name or title.5
The Third Circuit Court of Appeals has recognized that under
the DOC’s administrative review system a prisoner’s grievance
should identify specific persons, if practicable.
F.3d at 234.
It held that an unexplained failure to identify a
responsible prison official in a grievance constitutes a procedural
default of the claim.
The Court of Appeals added that the prison’s
grievance process could excuse such a procedural default by
identifying the unidentified person and acknowledging that they
were fairly within the compass of the prisoner’s grievance.
However, in Jones v. Bock, 127 S.Ct. 910, 923 (2007), the United
States Supreme Court established that “exhaustion is not per se
5. This Court previously concluded that the Amended Complaint
adequately alleged that Defendants Lawler, Ewell, and Williams had
personal knowledge of unconstitutional conditions of confinement
which existed at SCI-Huntingdon and failed to take appropriate
corrective measures to protect the safety of Manchas.
See Doc. 93, p. 11.
inadequate simply because an individual later sued was not named in
The Supreme Court additionally indicated that the
primary purpose of the exhaustion requirement is to allow “a prison
to address complaints about the program it administers before being
subjected to suit, reducing litigation to the extent complaints are
satisfactorily resolved, and improving litigation that does occur
by leading to the preparation of a useful record.”
Remaining Defendants have submitted a declaration under
penalty of perjury by Corrections Superintendent Assistant
Constance Green of SCI Huntingdon.
that Plaintiff fully
See Doc. 207-3.
exhausted grievances relating to the
conditions in Cell 2047.
Given the liberal treatment
afforded to pro se litigants, the Supreme Court’s holding in Jones,
and since the substance of Manchas’ claim that there were leaks in
the ceiling and floors of his cell which caused mold and went
uncorrected was adequately raised in the grievance, the request for
entry of summary judgment on the basis of non-exhaustion of that
claim will be denied.
With respect to Plaintiff’s allegation regarding powerhouse
emissions, it is argued that a finding of non-exhaustion is
appropriate because Manchas’ grievance did not identify any of the
Remaining Defendants by name or title and because the inmate’s
administrative appeal of his grievance pertaining to powerhouse
emissions was rejected because it was unsigned.
Due to that
procedural failure, Manchas’ unsigned administrative appeal was not
considered on its merits and was procedurally defaulted.
In support of that argument, Remaining Defendants have
submitted a copy of a September 22, 2008 final appeal decision
regarding Grievance # 230881 which states that the appeal was being
rejected because Manchas did not sign his name or inmate number to
See Doc. 207-3, p. 32.
Also submitted is
Superintendent Assistant Green’s declaration which similarly
provides that said grievance was not fully exhausted.
As previously mentioned, the United States Supreme Court has
recognized that prisoners must comply with the grievance system’s
Woodford, 548 U.S. at 93.
Since the undisputed
record supports the conclusion that Plaintiff Manchas could have
initiated a timely and proper grievance appeal regarding his
powerhouse emissions claim but failed to do so, the Remaining
Defendants’ request for entry of summary judgment on the basis of
non-exhaustion will be granted.6
Conditions of Confinement
Based upon a review of the undisputed record, Manchas seeks
relief based upon his confinement in Cell 2047.
While residing in
that cell the Remaining plaintiff filed a grievance relating to his
Specifically, Manchas claimed that the cell was
moldy, had leaks, and crumbling plaster.
Remaining Defendants assert that a viable conditions of
confinement claim has not been set forth by Manchas.
In support of
6. It is also noted that Manchas’ institutional medical records do
not reflect that he ever sought treatment for the taste of sulfur,
sore throat, headaches or any medical issue due to inhaling
that argument they have submitted a declaration under penalty of
perjury by Unit Manager Christian garman which provides that
Manchas was housed in cell # 2047 from June 16, 2008 until February
See Doc. 207-4, ¶ 3.
During that period three work
orders were issued at the request of Manchas.7
August 18, 2008 work order for cell wall cracking ; a September 3,
2008 work order because a large chunk of plaster fell from the cell
wall and February 10, 2009 a cracked and leaky sink.
As a result
of those work orders repairs were made to cell # 2047.
See id. at
Also submitted is a declaration under penalty of perjury by
SCI-Huntingdon health care Administrator Paula Price who avers that
Manchas’ institutional medical chart shows that he “has never been
diagnosed or treated for lung disease or a respiratory fungal
infection such as histoplasmosis or aspergillosis.”
Doc. 207-8, ¶
The Eighth Amendment’s prohibition of cruel and unusual
punishment imposes duties on prison officials to provide prisoners
with the basic necessities of life, such as food, clothing,
shelter, sanitation, medical care and personal safety.
v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S.
25, 31 (1993).
Prison conditions may amount to cruel and unusual
punishment if they cause “unquestioned and serious deprivations of
basic human needs ... [that] deprive inmates of the minimal
7. Copies of the three work orders indicating that the requested
repairs were made accompany Garman’s declaration.
civilized measure of life’s necessities.”
Tillman v. Lebanon
County Correctional Facility, 221 F.3d 410 (3d Cir. 2000).
In reviewing conditions of confinement claims, courts have
stressed that the duration of the complainant’s exposure to the
alleged unconstitutional conditions and the “totality of the
circumstances” are critical to a finding of cruel and inhumane
Hinterlong v. Hill, 2006 WL 2303106 * 5-6
August 8, 2006); Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996).
Moreover, the focus must be on the deprivation of a particular
As explained in Wilson v. Seiter, 501 U.S. 294,
Some conditions of confinement may
establish an Eighth Amendment violation
‘in combination’ when each would not do so
alone, but only when they have a mutually
enforcing effect that produces the
deprivation of a single, identifiable
human need such as food, warmth, or
exercise – for example, a low cell
temperature at night combined with a
failure to issue blankets. To say that
some prison conditions may interact in
this fashion is a far cry from saying that
all prison conditions are a seamless web
for Eighth Amendment purposes. Nothing so
amorphous as ‘overall conditions’ can rise
to the level of cruel and usual punishment
when no specific deprivation of a single
human need exists.
Upon making a showing of conditions that pose a risk of
serious harm, the inmate must establish that the prison official
responsible for the conditions of confinement acted with “a
sufficiently culpable state of mind.”
Id. at 298.
official violates the Eighth Amendment when he acts with deliberate
indifference to a known objectively serious risk to a prisoner’s
health or safety.
See Farmer, 511 U.S. at 837; Beers-Capitol v.
Whetzel, 256 F. 3d 120, 125 (3d Cir.
This requirement of
actual knowledge means that “the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837.
To establish an Eighth Amendment claim, Manchas must show
that the conditions of his confinement pose “a substantial risk of
serious harm” to his health or safety.
Farmer, 511 U.S. at 834.
However, there is no requirement that the Remaining Plaintiff show
that he actually suffered serious injury.
A declaration by Manchas
submitted in opposition to the pending summary judgment request
states that he was housed in the cell at issue for a total of
approximately seven (7) months, ending in February 2009 (three
months before former Plaintiff Johnson filed this action and seven
months before filing his motion for joinder in this matter).
Manchas indicates that there were leaks coming from the ceiling
“spots of mold, pungent odors and the wall and ceiling was falling
Doc. 214 ¶ 24.
He acknowledges that after some delay a
maintenance crew made repairs to his cell.
Toxic mold which causes inmate to suffer headaches, sinus
problems, blurred vision, breathing difficulty, irritated eyes, and
fatigue cans set forth a viable conditions of confinement claim.
Forde v. Fischer, 2009 WL 5174650 *4 (D.N.J. Dec. 16,2009).
However, the mere presence of mold does not indicate an objectively
Peterkin v. Jeffes, 661 F.Supp. 895, 915
(E.D. Pa. 1987)(only mold which poses a real health hazard is
In Forde, the district court dismissed the prisoner’s
claim that his cell had mold growing on three walls , the district
court dismissed the prisoner’s claim that his cell had mold growing
on three walls Because “it left no room for a permissible inference
that the mold in his cell posed a substantial risk of serious
Forde, 2009 WL 5174650 at * 4.
It has been similarly held that the presence of black mold
in a prison shower did not to rise to a constitutional violation
where the inmate plaintiff has not presented any facts alleging a
substantial risk of harm.
(D.N.J. May 14, 2010).
Nickles v. Taylor, 2010 WL 1949447 * 5
A perceived risk of future medical issues
about mold exposure is likewise insufficient.
See McIntyre v.
Phillips, 2007 WL 2986470 *2-3 (W.D. Mich. Sept. 10, 2007)
In the present case, Manchas states his cell had foul odors
mold, and crumbling paint.
He add that those odors may come from
However, the Remaining Plaintiff admits that there
were only “spots of mold.”
Doc. 214 ¶ 24.
acknowledges that “it is unclear whether there is any damage to the
Doc. 214, p. 5, ¶ 41.8
This is clearly not a case where a prisoner is contending
that he was denied food, clothing, shelter, recreation, visitation,
or medical care.
There is also no claim that Manchas was without
access to a toilet, running water, or bedding.
alleges that he was exposed to spots of mold for a seven month
8. Plaintiff Manchas raises several claims that he is being denied
adequate medical treatment , however, those allegations are not
presently before this Court.
It is undisputed that in response to Plaintiff’s requests,
three work orders were issued and repairs were made to his cell.
The undisputed record also provides that the Remaining Plaintiff
was only housed in Cell 2047 for approximately seven (7) months.
Moreover, Manchas was moved from Cell 2047 over five (5) years ago,
on February 27, 2009.
Remaining Defendants have also established
that Manchas has never been treated for lung disease or a
respiratory fungal infection and Plaintiff himself indicates that
it is unclear as to whether he suffered any lung damage.
Based upon an application of the above cited legal standards
to the undisputed factual record, this Court is satisfied that
Plaintiff has not presented any facts alleging a substantial risk
of serious harm.
Accordingly, entry of summary judgment in favor
of the Remaining Defendants with respect to the claim that Manchas
was subjected to unconstitutional conditions of confinement while
housed in Cell 2047 during a seven month portion of 2008-09 is
Remaining Defendants’ final summary judgment argument
maintains that they are entitled to qualified immunity because no
reasonable prison official would have believed that the conditions
of Manchas’ confinement at SCI-Huntingdon were unconstitutional.
See Doc. 205, p. 19.
Qualified immunity is an affirmative defense which must be
pleaded by the defendant official.
Verney v. Pennsylvania Turnpike
Comm'n, 881 F. Supp. 145, 149 (M.D. Pa. 1995).
In Harlow v.
Fitzgerald, 457 U.S. 800 (1982), the United States Supreme Court
held "that government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
Id. at 818; Sherwood v. Mulvihill, 113 F.3d 396, 398-99
(3d Cir. 1997); Showers v. Spangler, 957 F. Supp. 584, 589 (M.D. Pa.
It has also been held that "qualified immunity is
coextensive for suits brought against state officials under 42
U.S.C. § 1983 (1982), and for suits brought directly under the
Constitution against federal officials."
People of Three Mile
Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 144 n.9
(3d Cir. 1984) (citing Butz v. Economou, 438 U.S. 478, 504 (1978)).
The United States Supreme Court in Saucier v. Katz, 533 U.S.
194 (2001), subsequently established a two part test for analyzing
qualified immunity claims.
See also Curley v. Klem, 298 F.3d 271
(3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002).
The initial inquiry in a qualified immunity examination is whether
“the facts taken in the light most favorable to the plaintiff show
a constitutional violation.”
Bennett, 274 F.3d at 136.
prong requires a determination as to whether the constitutional
right at issue was clearly established.
If so, then a court must
inquire as to “whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 201.
A determination that the conduct
violated a clearly established constitutional right precludes the
granting of qualified immunity.
Courts have the discretion in
deciding which of the two prongs should be addressed first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“[a] right is clearly established if it would be clear to a
reasonable officer that the conduct was unlawful in the situation
Jones v. City of Jersey City, 2002 WL 1877036 *1
(3d Cir. 2002).
Courts considering a request for qualified
immunity must ask if a reasonable officer would have understood
that his actions were prohibited.
Bennett, 274 F.3d at 136.
the standards developed in Jones and Bennett, it must be shown that
the correctional official knew the constitutional right existed,
ignored the right, and deliberately acted in violation of that
In light of the facts that cell maintenance was performed in
response to Manchas’ requests, the temporary length of his stay in
Cell 2047, the fact that there is no indication that Manchas
suffered any injury as a result of any condition in that cell, and
viewing the facts in a light most favorable to the Plaintiff, this
Court agrees that a constitutional violation has not been clearly
Accordingly, since a reasonable officer would not
have understood that a constitutional violation was occurring, the
Remaining Defendants’ request for qualified immunity with respect
to the surviving conditions of confinement claims is also
An appropriate order will enter.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: SEPTEMBER 25, 2014
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