Riley v. Grainey et al

Filing 34

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 5/20/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NATHAN RILEY,
Plaintiff,
v.

CIVIL ACTION NO. 3:12- CV-2470
(JUDGE CAPUTO)
(MAGISTRATE JUDGE

DAVID GRAINEY, et al.,

MEHALCHICK)

Defendants
MEMORANDUM
Presently before the Court is Magistrate Judge Mehalchick’s Report and
Recommendation (“R & R”) (Doc. 25) to Motions to Dismiss filed by Defendants Balestrieri,
Capozza, Folino, Grainey, Palya, Smith, and Varner (collectively, “DOC Defendants”) (Doc.
14) and Defendant Dr. Byunghak Jin (Doc. 17). The Magistrate Judge recommends that
the both motions to dismiss be granted. Plaintiff filed timely objections to the R & R (Doc.
29). Because Plaintiff has failed to state claims upon which relief can be granted, the
motions to dismiss will be granted and Plaintiffs claims will be dismissed. Plaintiff will be
afforded an opportunity to file and amended complaint with respect to his Americans with
Disabilities Act claims against Defendants Palya, Balestrieri, Folino, and Varner in their
official capacities.
I. Background
On December 11, 2012, Plaintiff Nathan Riley, an inmate at State Correctional
Institution at Green (SCI-Green), commenced the instant action, pro se, by filing his
Complaint (Doc. 1). He alleges violations of his First, Eight, and Fourteenth Amendment
rights as well as the Americans with Disabilities Act (ADA) and seeks monetary damages
and declaratory and injunctive relief pursuant to 42 U.S.C.§ 1983. Id.
The facts alleged in the Complaint (Doc. 1) are set forth in detail in Magistrate Judge
Mehalchick’s R&R (Doc. 25) and need not be repeated here at length. In short, Plaintiff’s

claims arise from his release from administrative segregation in the Restricted Housing Unit
(RHU) at SCI-Green back into general population without single-cell Z-Code status. While
in the RHU Plaintiff also alleges that he developed carpal tunnel syndrome in his right hand
from using a flex-pen, and also that he had sustained an injury to his left hand prior to being
transferred to SCI-Green from SCI-Retreat.
II. The Report and Recommendation
On March 7, 2014, Magistrate Judge Mehalchick issued an R&R recommending that
the motions to dismiss be granted and that Plaintiff’s claims, apart from his ADA claim
against Defendants Palya, Balestrieri, Folino, and Varner in their official capacities, be
dismissed with prejudice.
As to Plaintiff’s First Amendment Retaliation Claim against Defendants Grainey,
Smith, and Capozza, the Magistrate Judge concluded that Plaintiff failed to allege any facts
establishing a connection between the “grievances and lawsuits” he filed in exercising his
First Amendment rights and the conduct of the these Defendants. (Doc. 25, 11). Moreover,
the Magistrate Judge notes that attachments to Plaintiff’s Complaint “establish that
Defendants did not remove [Plaintiff’s] Z-Code status, as it was removed more than ten
years before Riley appeared before the Program Review Committee comprised of
Defendants Grainey, Smith, and Capozza.” (Doc. 25, 12). Because Plaintiff fails to allege
facts that could establish that Defendants removed the Z-code status in retaliation, the
Magistrate Judge recommends that the Court grant Defendants’ motion to dismiss with
respect to Plaintiff’s First Amendment retaliation claim and dismiss it with prejudice.
As to Plaintiff’s procedural due process claims against Defendants Grainey, Smith,
and Capozza, the Magistrate Judge noted that prisoners have no constitutionally protected
liberty interest in a single cell housing assignment and found that there is no due process
violation if a Z-Code status is removed without a hearing. (Doc. 24, 12-13). The Magistrate

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Judge concluded that Plaintiff has no Fourteenth Amendment right to be housed in a single
cell and his right to due process is not offended by any decision to place him in a cell with
another inmate. Id. Thus, the Magistrate Judge recommends that Defendants’ Motion to
Dismiss Plaintiff’s procedural due process claim be granted.
With respect to Plaintiff’s Eight Amendment Claims alleging deliberate indifference
to his medical needs, the Magistrate Judge notes that where a plaintiff receives some level
of ongoing medical care, prison supervisors are generally not considered deliberately
indifferent because they failed to respond directly to the medical complaints of a prisoner
who is being treated by a prison doctor. Id. at 16-17. Regarding Plaintiff’s Claims against
Defendants Jin, Diggs, and Antanovich, the Magistrate Judge concludes that Plaintiff fails
to state a claim because he received medical treatment in response to his injury, specifically
a cast and physical therapy. Id. at 18. Thus the Magistrate Judge recommends that the
Court grant Defendant Jin’s motion to dismiss. As to Defendants Palya, Balestrieri, Folino,
and Varner, the Magistrate Judge concludes that Plaintiff’s allegations that they failed to
remedy the violation against him regarding his Z-Code status do not state a claim for
violation of Plaintiff’s Eighth Amendment rights. In addition, the Magistrate Judge notes that
Defendants Folino and Varner served in a purely supervisory role with respect to reviewing
Plaintiff’s grievances and Plaintiff fails to allege facts to support supervisory liability. Thus,
the Magistrate Judge recommends that these claims be dismissed with prejudice.
With respect to Plaintiff’s equal protection claims against Defendants Palya,
Balestrieri, Folino, and Varner, the Magistrate Judge notes that the Complaint does not
contain any allegations of personal involvement on the part of any of these Defendants in
the decision to revoke Plaintiff’s single cell status. Id. at 21. Therefore, the Magistrate
Judge recommends that Defendants’ motion to dismiss with respect to this claim be
granted.

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As to Plaintiff’s claims based on the ADA against Defendants Palya, Balestrieri,
Folino, and Varner, the Magistrate Judge concludes that although Plaintiff has alleged that
he has a mental health condition, he has not sufficiently alleged that he suffers from a
disability that substantially limits one or more of his major life functions and activities.
Therefore, the Magistrate Judge recommends that the Court dismiss Plaintiff’s ADA claim
but that the Plaintiff be afforded the opportunity to amend the Complaint to set forth facts
sufficient to assert a prima facie ADA claim against the appropriate prison officials in their
official capacities. Id. at 24.
IV. Discussion
A.

Standard for Reviewing a Report and Recommendation
Where objections to the Magistrate Judge's report are filed, the court must conduct

a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099,
1106 n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the
extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6–7
(3d Cir. 1984) (emphasis added). In conducting a de novo review, the court may accept,
reject, or modify, in whole or in part, the factual findings or legal conclusions of the
magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D.
Pa. 1993). Although the review is de novo, the law permits the court to rely on the
recommendations of the magistrate judge to the extent it deems proper. See United States
v. Raddatz, 447 U.S. 667, 675–76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749
F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M.D. Pa.1994).
Uncontested portions of the report may be reviewed at a standard determined by the district
court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985);
Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for
clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376–77 (M.D.

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Pa. 1998). The Court reviews contested portions of the present R&R de novo and
uncontested portions for clear error and manifest injustice.
B.

Legal Standard for Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,

in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.
Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are
not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such,
“[t]he touchstone of the pleading standard is plausability.” Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012).

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The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, 127 S. Ct. 1955, meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S. Ct. 1937.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing 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. Pension Benefit Guar., 998 F.2d
at 1196. The Court need not assume the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d
Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions.’” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory

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Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
C.

Plaintiff’s Objections to the Report and Recommendation (Doc. 29)
With respect to his First Amendment retaliation claim, Plaintiff asserts that he alleged

a connection between his protected actions and the adverse action taken against him by
stating that “defendants Grainey, Smith, and Capozza took these adverse actions because
of Plaintiff’s continuous pursuit in filing grievances and lawsuits” and that his “administrative
segregation confinement was the motivating factor in removing Plaintiff’s Z-code single-cell
status by the defendants.” (Doc. 29, 4). However, as Magistrate Judge Mehalchick points
out, numerous responses to Plaintiff’s DC-135A “Inmate’s Requests to Staff Member”
submissions indicate that Plaintiff’s Z-Code status was removed in the late 1990s. See
Doc. 1, 17- 19.
As the Magistrate Judge explains, “[a]s a threshold matter, a prisoner-plaintiff in a
retaliation case must prove that the conduct which led to the alleged retaliation was
constitutionally protected.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Next, “ a
prisoner litigating a retaliation claim must show that he suffered some ‘adverse action’ at
the hands of the prison officials.” Id. Finally, the plaintiff must prove “ a causal link between
the exercise of his constitutional rights and the adverse action taken against him.” Id. Here,
since Plaintiff fails to state facts linking the removal of his Z-Code status to the exercise of
his constitutional rights, the Court will adopt Magistrate Judge Mehalchick’s
recommendation that Defendants’ motion to dismiss be granted with respect to Plaintiff’s
First Amendment retaliation claim. Because leave to amend this claim would be futile, it will
be dismissed with prejudice.
With respect to his procedural due process claim, Plaintiff points to policy provisions
regarding Z-code housing status and argues that he “possesses a liberty interest directly
from this policy in that the written mandatory language e.g. shall, provides that Plaintiff be

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provided with a notice and staff-hearing for the evaluation of the . . . Z-code single-cell
status, before it is removed.” (Doc. 29, 5-6).1 Plaintiff further states that this policy lacks
discretion and the Defendants must follow it. Id. at 6.
As Magistrate Judge Mehalchick explains, “inmates do not have a liberty interest in
being single celled,” Rivera v. Rendell, No. 3-cv-0505, 2013 WL 1339273, at *10 (M.D. Pa.
Aprl 1, 2013), and there is no due process violation if a single cell housing status is removed
without a hearing. See, e.g. Carpenter v. Kloptoski, No. , 2012 WL 911558, at *3 (M.D. Pa.
Mar. 16, 2012) (“[Plaintiff], therefore, has no Fourteenth Amendment right to be housed in
a single cell and his right to due process is not offended by any decision to place him in a
cell with another inmate.”) Because the Plaintiff does not have a Fourteenth Amendment
right to be housed in a single cell and his right to due process was not offended when he
was housed in a cell with another inmate, the Court will adopt Magistrate Judge
Mehalchick’s recommendation to grant Defendants’ motion to dismiss with respect to
Plaintiff’s procedural due process claim.
As to his Eighth Amendment claim against Defendants Jin, Diggs, and Antanovich,
Plaintiff asserts that his allegations are sufficient to state a claim upon which relief may be
granted by claiming that he suffers from carpal tunnel syndrome, he experiences pain
because of this, and he has been “left in this condition for over two years.” (Doc. 29, 7).
Plaintiff further alleges that these Defendants acted with deliberate indifference “in refusing
to relieve and/or treat Plaintiff for over 2 years” for carpal tunnel syndrome. Id. Plaintiff
acknowledges that he was seen by a physical therapist but that this did not relieve the

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The quoted portion of Department of Corrections policy 11.2.1 states:
“The ‘Z’ Code housing status is not necessarily a permanent status. An
inmate who is classified with a ‘Z’ Code shall be reviewed at least annually
and at any other staffing to insure the code is still the most appropriate
housing classification.” (Doc. 29, 5).
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constant numbness, inability to make a complete fist, and pain. Id. at 8. “It is well-settled
that claims of negligence or medical malpractice, without some more culpable state of mind,
do not constitute ‘deliberate indifference.’” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999). “Nor does mere disagreement as to the proper medical treatment support a claim
of an eighth amendment violation.” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 346 (3d Cir. 1987). Plaintiff’s claims against Defendants Jin, Diggs, and
Antanovich indicate disagreement as to proper medical treatment, but they do not amount
to successful claims of deliberate indifference. Therefore, Magistrate Judge Mehlalchick’s
recommendation that the Court grant Defendant Jin’s motion to dismiss will be adopted.
With respect to Plaintiff’s Eighth Amendment claim against Defendants Palya,
Balestrieri, Folino, and Varner, Plaintiff argues that he has sufficiently alleged personal
involvement of each Defendant to withstand a motion to dismiss because he complained
to Defendants about his Z-Code single-cell status being arbitrarily removed. Plaintiff further
asserts that the Court “should agree that Defendant[s] were subjectively aware of a
substantial risk of serious harm to Plaintiff, and acted with deliberate indifference.” (Doc.
29, 9-10). Because Plaintiff has failed to allege that any of these Defendants occupied an
affirmative role in the alleged misconduct or violations against Defendants Folino and
Varner in their supervisory capacities, the Court will adopt Magistrate Judge Mehalchick’s
recommendation that the motion to dismiss with respect to these claims be granted.
With respect to his Equal Protection claims against Defendants Palya, Balestrieri,
Folino, and Varner, Plaintiff asserts that failure to reinstate his Z-Code single-cell status in
retaliation is sufficient to state an equal protection claim. Under the equal protection clause
of the Fourteenth Amendment, “persons who are similarly situated should be treated in the
same manner.” Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 423 (3d Cir.
2000)(citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct.

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3249, 87 L. Ed. 2d 313 (1985)). However, as a preliminary matter, “the first hurdle that
plaintiff must clear is the requirement that the named defendants be personally involved in
the alleged constitutional deprivation.” Carpenter v. Kloptoski, No. 08-cv-2233, 2010 WL
891852, at *9 (M.D. Pa. Mar. 10, 2010). As Magistrate Judge Mehalchick notes, Plaintiff
fails to make any allegations of personal involvement on the part of these Defendants, apart
from allegations based on their supervisory roles. Therefore, the Court will adopt the
Magistrate Judge’s recommendation that Defendants’ motion to dismiss be granted with
respect to this claim, and that it be dismissed with prejudice as amendment would be futile.
Finally, as to his claims based on the ADA against Defendants Palya, Balestrieri,
Folino, and Varner, Plaintiff argues that his claims for damages against Defendants in their
individual capacity are appropriate. Moreover, Plaintiff asserts that he has sufficiently
alleged that he suffers from a disability that substantially limits one or more of his major life
functions. As Magistrate Judge Mehalchick correctly indicates, “individual defendants in
their individual capacities are not liable under Title II of the ADA because they are not
‘public entities’ within the meaning of the ADA.” Glenn v, McGrady, No. 13-cv-325, 2014
WL 939507, at *4 (M.D. Pa. Mar. 11, 2014). However, claims against defendants in their
official capacities are viable “as the Supreme Court has held that Title II of the ADA ‘validly
abrogates state sovereign immunity’ for ‘conduct that actually violates the Fourteenth
Amendment.’” Id. (citing United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 163
L. Ed. 2d 650 (2006). Therefore, Magistrate Judge Mehalchick’s recommendation with
respect to Plaintiff’s ADA claims will be adopted. To the extent that Plaintiff alleges ADA
claims against these Defendants in their individual capacities, the claims will be dismissed
with prejudice. To the extent that Plaintiff alleges ADA claims against these Defendants in
their official capacities, his claims will be dismissed without prejudice, and he will have an
opportunity to amend his Complaint to allege that the disability he suffers from limits one

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or more of his major life activities.
V. Conclusion
For the above stated reasons, Magistrate Judge Mehalchick’s R&R (Doc. 25) will be
adopted. Defendants’ motions to dismiss will be granted. All claims apart from Plaintiff’s
ADA claims against Defendants Palya, Balestrieri, Folino, and Varner in their official
capacities will be dismissed with prejudice. Plaintiff’s ADA claims against Defendants
Palya, Balestrieri, Folino, and Varner in their official capacities will be dismissed without
prejudice. Plaintiff will be afforded an opportunity to file an amended complaint as set forth
herein within twenty-one (21) days.
An appropriate order follows.

May 20, 2014
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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