Nunez v. Wertz et al
Filing
80
MEMORANDUM (Order to follow as separate docket entry) re 47 MOTION TO DISMISS.Signed by Honorable A. Richard Caputo on 9/1/17. (dw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FERNANDO NUNEZ,
Plaintiff
v.
CO WERTZ, et al.,
Defendants
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CIVIL NO. 3:CV-14-0727
(Judge Caputo)
MEMORANDUM
I.
Introduction
Plaintiff, Fernando Nuñez, a state prisoner proceeding pro se, has sued under 42
U.S.C. § 1983 for the alleged hindrance of his ability to access the courts, various incidents
of retaliation, the failure of staff to protect him from harm and, his exposure to unsanitary and
frigid conditions while dining. He also alleged interference with his ability to practice his
religion in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Presently before the Court is the Defendants’ motion to dismiss the Amended Complaint.
For the reasons that follow, the motion will be denied in part and granted in part.
II.
Background1
Mr. Nuñez filed his Complaint on April 8, 2014. (ECF No. 1, Compl.) Defendants then
filed a p artial motion to dismiss. After Mr. Nuñez sought leave to file an amended complaint,
1
The events central to this action occurred while Mr. Nuñez was housed at the Smithfield
State Correctional Institution (SCI-Smithfield), in Smithfield, Pennsylvania. Mr. Nuñez is presently
housed at SCI-Somerset, in Somerset, Pennsylvania. (ECF No. 74.)
Defendants’ motion was dismissed without prejudice and Plaintiff was granted leave to file an
amended complaint. (ECF Nos. 33 and 34.) On May 9, 2016, Mr. Nuñez filed a thirty-three
page Amended Complaint with over one hundred pages in support. (ECF Nos. 40 and 41.)
All Defendants are employed by the Pennsylvania Department of Corrections (DOC). All but
one of the Defendant, Deputy Secretary Klopotoski, worked at SCI-Smithfield at all times
relevant to this action. The remaining DOC Defendants are: Superintendent John D. Fisher;
Corrections Officer (CO) Wertz; CO Hazlett; CO J.R. Householder; CO B. Goughnour; Sgt.
Britton and Lt. Eichenlaub.2 The Defendants filed a motion to dismiss the Amended Complaint
on July 15, 2016. (ECF No. 47.) Mr. Nuñez filed his opposition materials on December 6,
2016. (ECF No. 69.) Defendants did not file a Reply brief in support of their motion to
dismiss.
A.
RLUIPA CLAIM
Mr. Nuñez converted to Islam in 2003. (ECF No. 40, Am. Compl., ¶13.) The DOC
enforces a statewide policy prohibiting inmates from altering the length of state issued
trousers. Altered state issued clothing is considered contraband and may subject the inmate
to disciplinary action. Muslim inmates at SCI-Smithfield are only permitted to “cuff” or “roll up”
their pant legs during communal Jum’ah services. (Id., ¶ 15.) It is Mr. Nunez’s sincerely held
belief that wearing his pants 2” – 3” above his ankle bone is a religious tenet of his Islamic
2
It appears Mr. Nuñez misspelled several of the Defendants’ names in his original
complaint. The spelling used by the Court reflects Plaintiff’s identification of the Defendants in the
Amended Complaint.
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faith.
(Id., ¶ 17.)
On November 15, 2009, Mr. Nuñez submitted an inmate religious
accommodation request form (RAR) to SCI-Smithfield’s Facility Chaplain Program Director
(FCPD) requesting to cuff his pants above his ankle at all times, not just during religious
services. (Id., ¶ 16; see also ECF No. 41, p.3.) After he was interviewed by the FCPD, his
request was forwarded to the Religious Accommodation Review Committee (RARC). The
RARC recommended to Regional Deputy Klopotoski that Mr. Nuñez’s RAR be denied “in light
of Department policy and a security concern that prison garb (when altered) can be used for
gang identification.” (ECF No. 40, ¶ 19.) On February 11, 2010, Regional Deputy Klopotoski
adopted the RARC’s recommendation and denied Plaintiff’s RAR request. (Id., ¶ 20; see also
ECF No. 41, p. 5.) Mr. Nuñez filed Grievance 312548-10 concerning the denial of his RAR.
His grievance was denied by the Secretary’s Office of Inmate Grievance Appeals (SOIGA)
on June 1, 2010. (ECF No. 41, pp. 7 - 10.) “Soon thereafter,” Plaintiff received a disciplinary
misconduct for refusing to obey a direct order to roll down his pant legs. (ECF No. 40, ¶ 23.)
B.
November 6, 2011 - Restrict Housing Unit
On November 4, 2011, at approximately 8:15 a.m., Mr. Nuñez was charged with
fighting with another inmate. He was removed from SCI-Smithfield’s general population and
placed in the Restricted Housing Unit (RHU) in administrative custody pending his disciplinary
hearing. (Id., ¶ 24.) Consequently all of his personal property was packed and delivered to
the RHU to be inventoried by RHU staff. (Id., ¶ 24.)
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Mr. Nuñez was taken to the RHU’s “strip cage” to be processed into the RHU. He
advised Sgt. Sheetz (non-defendant) that he had a November 9, 2011 legal deadline and
asked that he let the property officers on the 2 p.m. to 10 p.m. shift, CO Householder and Sgt.
Britton), know that he will need access to his property. (Id., ¶ 27.) Sgt. Sheetz assured Mr.
Nuñez that he would advise the RHU property officers of his concerns. (Id.)
At approximately 6:30 p.m. on November 6, 2011, CO Householder and CO
Goughnour began to inventory Plaintiff’s property and “discovered he had legal documents
that did not bare (sic) his name.” (Id., ¶ 29.) As a result Sgt. Britton requested a search team
to bring Mr. Nuñez to the property room. Defendants Householder, Goughnour, Britton, Wertz
and Hazlett were present in the property room at the same time as Mr. Nuñez. Defendants
Britton and Wertz advised Plaintiff that he had “way to (sic) much property. On top of the fact
that you have other people's legal work. Why? You some type of jail house lawyer?” (Id.,
¶ 32.) Mr. Nuñez advised that Superintendent Fisher had approved his request to have an
additional storage box of legal materials for his active cases as evidenced by the large
approval slip taped on the box lid. As for the legal documents with other people’s names on
it, they related to his co-defendants. (Id., ¶ 33.) CO Wertz questioned the validity of
Superintendent Fisher’s approval and expressed frustration in trying to determine what
property was legitimately Plaintiff’s. CO Wertz determined he would issue Mr. Nuñez a
confiscation slip for all of his property “and hold it until Lt. Eichenlaub investigates this shit and
determine[s] what he wants to do.” (Id., ¶ 34.) Plaintiff objected telling everyone present he
had a November 9, 2011 deadline. Defendants Britton and Householder advised CO Wertz
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that Sgt. Sheetz did advise them of Plaintiff’s deadline. Mr. Nuñez told CO Wertz that a copy
of his court order setting forth the deadline was in the folder bearing his criminal case number.
While retrieving the court order to show CO Wertz, Plaintiff said “Come on Wertz you know
if you confiscate my legal work I'm gonna miss my deadline. Then I'm gonna have to file a
grievance.” (Id., ¶¶ 35 – 36.) CO Wertz asked Plaintiff if he was threatening him. Mr. Nuñez
responded that “[i]ts not a threat. I can file a grievance if I want to.” (Id., ¶ 37.) CO Hazlett
“began to instigate the exchange of words” between Plaintiff and CO Wertz by adding “[t]hat
sure as hell sounds like a threat.” (Id., ¶ 38.) Upset by the encounter CO Wertz said he “was
gonna allow you to have the documents you needed to work on your case ass-hole. But your
mouth fucked that up.” (Id., ¶ 39.) Mr. Nuñez turned to Sgt. Britton and asked if he was going
to allow “them” to take all of his legal work. Sgt. Britton responded that “[i]ts their call. Not
[his].” (Id., ¶41.) Plaintiff’s request for a grievance was denied by CO Wertz who then began
to utter racially derogatory slurs that were discriminatory and offensive. (Id., ¶ 41.) “We don't
have grievances in Spanish. You people can't read or write English anyway.” (Id., ¶ 42.)
Plaintiff then asked Sgt. Britton “to speak to a white shirt”. Sgt. Britton laughed and instructed
CO Householder and CO Goughnour to escort Mr. Nuñez back to his cell after he signed a
property receipt. (Id., ¶ 43.) While Plaintiff was leaving, CO Wertz and CO Hazlett began
searching Plaintiff’s typewriter. Prior to leaving the RHU, Mr. Nuñez learned that CO Wertz
broke his typewriter. (Id., ¶ 45 and ¶ 47.)
On November 14, 2011, Mr. Nuñez grieved (Grievance 389468-11) regarding the
confiscation of his legal materials and that “he was unable to meet a deadline in his criminal
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case causing his meritorious claims to be forever waived under state law”. (Id., ¶46; see also
ECF No. 41, pp. 25 – 54.) The grievance was denied at final review on April 2, 2012. (Id.,
p. 54.) On November 18, 2011, Plaintiff filed Grievance 390184-11 concerning the damage
to his typewriter. (ECF No. 40, ¶ 47; see also ECF No. 41, p. 56.)
C.
December 20, 2011 – Conversation with CO Wertz
At approximately 6:40 p.m. on December 20, 2011, CO Wertz approached Mr. Nuñez.
He told Plaintiff that CO Eichenlaub had interviewed him about the confiscation of his legal
property. He expressed that “Eichenlaub and Fisher [are] up [his] ass[.] [b]ecause legal at
Central Office has to get involved.” (ECF No. 40, ¶ 49.) He stated that he cannot go to court
and say he withheld Plaintiff’s legal material knowing he had a deadline. He said he only took
Plaintiff’s property because Sgt. Britton and CO Householder did not want to search it. CO
Wertz admitted that when he flipped Mr. Nuñez’s typewriter over, the cover broke off. He said
he would replace the typewriter but “Eichenlaub wants [Plaintiff] to withdraw [his] grievance.”
(Id., ¶ 51.) Mr. Nuñez declined the offer noting that “[he] had to file a lawsuit to get [his] rights
back.” (Id., ¶ 52.)
D.
April 16, 2012 – Cell Search by CO Wertz and CO Hazlett
On April 16, 2012, an investigative cell search was conducted of Mr. Nuñez’s cell. (Id.,
¶ 53.) The cell search was conducted at the direction of Officers Smith and another officer
because it was believed Mr. Nuñez had a map of the prison compound. (ECF No. 41, p. 99,
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Grievance 411463-12 and ECF No. 41-1.) The 6 a.m. - 2 p.m. search team commenced the
search and removed two large trash bags of items from the cell Plaintiff shared with his
cellmate. At some point, CO Wertz and CO Hazlett “of the 2 - 10 search team” took over the
search. (Id.) CO Wertz and CO Hazlett removed one large trash bag filled with unspecified
items from the cell. (Id.) Neither search team issued Mr. Nuñez a confiscation slip.
Plaintiff claims CO Wertz and the other members of the search team retaliated against
Plaintiff by “stealing his property.” He also claims CO Wertz told Plaintiff’s cellmate that he
was a snitch. (Id., ¶ 54.) There is no mention of CO Wertz calling Mr. Nuñez a snitch in the
grievance submitted by Plaintiff along with his Amended Complaint.
E.
Renovations of SCI-Smithfield’s Dining Hall
From October 2011 through June 2012, SCI-Smithfield’s inmate dining hall underwent
major renovations.
Defendant Fisher authorized his staff to continue normal feeding
operations during, and for the duration of, the construction.
Work was performed using welders, saws and other machines while inmates ate their
meals in the dining hall. During the renovations, construction workers divided the dining hall,
from floor to ceiling, with a plastic tarp. The North side of the dining hall was where nondietary meals were served. Medically approved meals were served on the South side. The
South side contained a rough-framed side opening which allowed freezing cold wind to enter
while the North side was protected from the wind by the tarp.
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Mr. Nuñez ate three meals a day on the South side of the dining hall. He was exposed
to pollutants like carbon monoxide, metallic fumes, and sawdust while he dined. (Id., ¶¶ 55
– 62.) In the month of January temperatures in the dining hall fell below 45
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