Mears v. Kauffman et al

Filing 19

MEMORANDUM (Order to follow as separate docket entry)Pennsylvanias Commonwealth Court has recognized that a negligent failure to protect a prisoner from abuse or assault is not one of the instances enumerated under § 8522(b). See Steinberg v. De partment of Public Welfare, 405 A.2d 1135 (Pa. Cmwlth. 1979)(an employees state law claim that staff negligently failed to protect her from sexual assault by two student prisoners at youth development center was barred by doctrine of sovereign immunity). Once again this determination is limited to any state law claims asserted against the Corrections Defendants. An appropriate Order will enter. re 7 MOTION to Dismiss Signed by Honorable Richard P. Conaboy on 7/26/18. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

NICOLAS MEARS,

:
:
Plaintiff
:
:
v.
:
:
SUPERINTENDENT KAUFFMAN, ET AL., :
:
Defendants
:

CIVIL NO. 3:CV-17-1463
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
This pro se complaint alleging civil rights and state tort
claims was filed in the Huntingdon County Court of Common Pleas by
Nicholas Mears regarding his confinement at the State Correctional
Institution, Huntingdon, Pennsylvania (SCI-Huntingdon).

Counsel

for Defendant Jessica Cousins, PA-C subsequently filed a notice of
removal of Plaintiff’s action to this Court pursuant to 28 U.S.C.
§§ 1441.

See Doc. 1, p. 1.

Named as Defendants are Chief Grievance Officer Dorina
Varner of the Pennsylvania Department of Corrections (DOC), and the
following SCI-Huntingdon officials:

Superintendent Kevin Kauffman;

Prison Rape Elimination Act (PREA) Coordinator Mandy Sipple;1
Lieutenant Daniel Wendle; and Psychologist Christina Neri.

Also

named as Defendants are Chaplain Burks and Psychiatrist Cousins,
both of whom are described as being independent contractors who
work at the prison.

1. Sipple also appears to be a Classification and Program Manager
at the prison. See Doc. 2, p. 22.
1

According to the Complaint, Plaintiff was subjected to
verbal harassment by Chaplain Burks during a religious service in
the SCI-Huntingdon chapel on January 1, 2017.

It is alleged that

Burks singled out the Plaintiff and another prisoner in front of a
large gathering of prisoners by insinuating that there was
homosexual activity between the two inmates.2

Plaintiff contends

that the degrading and false verbal harassment by Burks violated
his religious freedom rights under the First Amendment as well as
other constitutional protections and caused him to suffer emotional
distress.

Uon the conclusion of the service, Burks purportedly

apologized in private to the Plaintiff and invited him back to
attend services the following week.

Mears filed an institutional

grievance against Burks four (4) days later.
Upon arriving at the next religious service on January 8,
2017, the Plaintiff and the other prisoner were immediately removed
from the chapel at the direction of Burks allegedly in retaliation
for the filing of a grievance regarding the prior incident.

After

being removed, Lieutenant Wendle allegedly told the Plaintiff that
although the officer didn’t know what happened, he “suggested” that
the Plaintiff should either stop going to services conducted by
Burks or to attend without the other prisoner.

Doc. 1, ¶ 17.

The

Lieutenant purportedly added that if anything else occurred with

2. A copy of an inital response to the grievance provided by Mears
indicate that it was the determination of Defendant Sipple that
while Burks was conducting the service Plaintiff and the other
inmate were engaged in an ongoing disruputive conversation. See
Doc. 2, p. 22. Moreover, Sipple noted that a few weeks earlier
Mears and the other prisoner had engaged in similar conduct during
a religious service conducted by a different chaplain.
Nonetheless, Sipple agreed that Burks needed to be coached
regarding the way he handled the situation.
2

respect to the aforementioned events, Mears would be placed in
segregation.

Plaintiff asserts that the conduct of Defendant

Wendle likewise violated his First Amendment rights.
It is next alleged that Defendants Kauffman, Nerri, and
Cousins, failed to properly supervise and train Burks, implement
policies to prevent harassment and retaliation by staff, and were
deliberately indifferent to Burks’ actions by failing to take
corrective measures.

It is further asserted that Chief Grievance

Officer Varner and PREA Coordinator Sipple likewise failed to take
action in response to the Plaintiff’s grievance regarding Burks’
conduct.

The Complaint also raises an allegation of conspiracy and

state law claims of invasion of privacy and negligence against the
Defendants.
Presently pending is a motion to dismiss the complaint for
failure to state a claim filed by the Corrections Defendants
(Varner, Kauffman, Sipple, Wendle, and Neri).3

See Doc. 7.

The

opposed motion is ripe for consideration.
Discussion
Corrections Defendants claim entitlement to dismissal on the
grounds: (1) the claims against Defendants Kauffman, Varner,
Simple, Neri, and Wendle should be dismissed for lack of personal
involvement; (2) a cognizable First or Eighth Amendment claim is
not alleged against Wendle; (3) a viable assertion of retaliation
against Wendle is not raised in the Complaint; and (4) the verbal
threat by Lieutenant Wendle does not rise to level of a

3. Cousins is represented by separate counsel and Burks is
proceeding pro se. They have filed separate motions to dismiss
which have not yet been addressed.
3

constitutional claim; (5) the allegation of conspiracy is
insufficient; (6) Plaintiff cannot recover monetary damages for
emotional injury; and (7) the state law claims by Plaintiff are
barreed from consideration.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of complaints that fail to state a claim upon which
relief can be granted.

A court in addressing a motion to dismiss

must “accept as true all factual allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff.”

Kanter v.

Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting Evancho v.
Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
A complaint must set forth facts that, if true, demonstrate
a plausible right to relief.

See Fed. R. Civ. P. 8(a)(stating that

the complaint should include “a short and plain statement of the
claim showing that the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This requirement

“calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of” the necessary elements of the
plaintiff’s cause of action.

Id. at 556.

A complaint must contain

“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 (2009).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id.
conclusions must be supported by factual allegations and the

4

Legal

complaint must state a plausible claim for relief.

See id. at

679.4
The reviewing court must determine whether the complaint
“contain[s] either direct or inferential allegations respecting all
the material elements necessary to sustain recovery under some
viable legal theory.”

Id. at 562; see also Phillips v. County of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to survive a
motion to dismiss, a plaintiff must allege in his complaint “enough
facts to raise a reasonable expectation that discovery will reveal
evidence of the necessary element[s]” of a particular cause of
action).

Finally, it is noted that pro se pleadings must be

afforded liberal construction.

See

Haines v. Kerner, 404 U.S.

519, 520 (1972).
Emotional Injury
The Complaint asserts that Plaintiff has suffered emotional
distress for which he seeks to recover monetary damages.
2, p. 16.

See Doc.

There is no allegation that Mears has suffered any

accompanying physical injury.

Corrections Defendants argue that

Plaintiff is not entitled to recover compensatory damages on his
federal civil rights claims for mental anguish or emotional injury.
See Doc. 8, p. 17.
42 U.S.C. § 1997e(e) provides that “[n]o federal civil
action may be brought by a prisoner confined in a jail, prison or
other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
4. “Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”
Twombly, at 555.
5

injury."

In Allah v. Al-Hafeez, 226 F.3d 247,250 (3d Cir. 2000),

the United States Court of Appeals for the Third Circuit recognized
that where a plaintiff fails to allege actual injury, Section
1997e(e) bars recovery of compensatory damages.

However, the Third

Circuit Court of Appeals added that an inmate alleging a violation
of his constitutional rights may still pursue the action to recover
nominal and/or punitive damages even in the absence of compensable
harm.
Under the standards announced in Allah, this Court agrees
that Plaintiff’s request for monetary relief to the extent that it
seeks compensatory damages for emotional and psychological injuries
for violation of his constitutional rights is barred by Section
1997e(e).
Personal Involvement
Corrections Defendants’ second argument contends that the
Complaint fails to allege personal involvement in constitutional
misconduct by Defendants Kauffman, Varner, Sipple, Neri, and
Wendle.

See Doc. 8, p. 11.
A plaintiff, in order to state an actionable civil rights

claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States.

Groman v. Township of Manalapan, 47 F.3d 628, 638

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 114142 (3d Cir. 1990).
Civil rights claims brought cannot be premised on a theory
of respondeat superior.

Rode v. Dellarciprete, 845 F.2d 1195, 1207
6

(3d Cir. 1988).

Rather, each named defendant must be shown, via

the complaint's allegations, to have been personally involved in
the events or occurrences which underlie a claim.

See Rizzo v.

Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077 (3d Cir. 1976).

As explained in Rode:

A defendant in a civil rights action must have
personal involvement in the alleged wrongs. . .
. [P]ersonal involvement can be shown through
allegations of personal direction or of actual
knowledge and acquiescence. Allegations of
participation or actual knowledge and
acquiescence, however, must be made with
appropriate particularity.
Rode, 845 F.2d at 1207.
Superintendent Kauffman, Chief Grievance Officer Varner,
Lieutenant Wendle, and Coordinator Sipple were each clearly
employed in supervisory roles with either the DOC or SCIHuntingdon.

There are no facts which clearly show that any

Corrections Defendant including Psychologist Neri directly
supervised Chaplain Burks or that Burks’ alleged actions were
initiated pursuant to a directive from any of the Corrections
Defendants.

Pursuant to the standards announced in Rode, any

claims against the Corrections Defendants solely based upon their
respective supervisory roles cannot proceed.
It is undisputed that Plaintiff filed an institutional
grievance and raised other complaints with members of the
correctional staff regarding the alleged mistreatment by Chaplain
Burks.

Mears’ pending action attempts to establish liability

against Defendants Kauffman, Varner, Neri, Sipple due to their
responses or non-response to his administrative grievance and
complaints.

There is also no indication that Psychologist Nerri
7

was afforded the authority or discretion to take action against
Chaplain Burks in response to any inmate complaints.
Prisoners have no constitutionally protected right to a
grievance procedure.

See Jones v. North Carolina Prisoners’ Labor

Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J., concurring)
(“I do not suggest that the [grievance] procedures are
constitutionally mandated.”); Speight v. Sims, No. 08-2038, 2008 WL
2600723 at *1 (3d. Cir. Jun 30, 2008)(citing Massey v. Helman, 259
F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a prison
grievance procedure confers no liberty interest on a prisoner.”)
While prisoners do have a constitutional right to seek
redress of their grievances from the government, that right is the
right of access to the courts which is not compromised by the
failure of prison officials to address an inmate’s grievance.

See

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance
regulations providing for administrative remedy procedure do not
create liberty interest in access to that procedure).

Pursuant to

those decisions, any attempt by Plaintiff to establish liability
against Corrections Defendants based upon their handling of his
administrative grievance and post incident complaints does not
support a constitutional claim.

See also Alexander v. Gennarini,

144 Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident
grievance process not a basis for § 1983 liability); Pryor-El v.
Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because prison
grievance procedure does not confer any substantive constitutional
rights upon prison inmates, the prison officials' failure to comply
with grievance procedure is not actionable).

8

Based upon the above well settled standards, dismissal in
favor of Defendants Kauffman, Varner, Nerri, Sipple and Wendle with
respect to any claim asserted them which are premised upon their
respective purported failures to take action in response to Mears’
complaints and grievance is appropriate.5
With respect to the claim that the Corrections Defendants
failure to properly train Chaplain Burks, it is noted that Burks
was not directly employed by either the DOC or SCI-Huntingdon but
rather was an independent contractor who was apparently retained
for the limited purpose of conducting religious services for the
SCI-Huntingdon inmate population.

There is also no contention that

other prison chaplains received training which was not given to
Burks.

Second, the actions attributed to Burks are insufficient to

support a claim that the Chaplain’s alleged need for more training
was so apparent that the failure to provide additional training
constituted deliberate indifference.
Twp.,

See

Brown v. Muhlenberg

269 F.3d 205, 215 (3d Cir. 2001) (the scope of failure to

train is narrow).

There are also no facts alleged showing that the

job responsibilities of any of the Corrections Defendants included
the training of prison chaplains.
Pursuant to the above discussion, the failure to train
claims against Defendants Kauffman, Varner, Nerri, and Sipple will
be dismissed for lack of personal involvement.

Dismissal will also

be granted with respect to the failure to supervise and or train
claims against Lieutenant Wendle.

However, the remaining First

5. Exhibits submitted by the Plaintiff alos acknowledge that the
response to his grievance agreed that Burk would be coached
regarding the was y he responded to the Plaintiff’s conduct.
9

Amendment allegations against Wendle will not be dismissed for lack
of personal involvement.
Retaliation
Plaintiff asserts that he was verbally threatened by
Lieutenant Wendle with placement in segregation.

Corrections

Defendants assert that the conduct alleged against Wendle does not
support a claim of retaliation.6
To establish a Section 1983 retaliation claim, a plaintiff
bears the burden of satisfying three (3) elements.

First, a

plaintiff must prove that he was engaged in a constitutionally
protected activity.
2001).

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

Second, a prisoner must demonstrate that he “suffered some

‘adverse action’ at the hands of prison officials.”

(Id.)(quoting

Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied by showing adverse action “sufficient ‘to
deter a person of ordinary firmness’ from exercising his First
Amendment rights.”
235 (3d Cir. 2000)).

(Id.)(quoting Suppon v. Dadonna, 203 F.3d 228,
Third, a prisoner must prove that “his

constitutionally protected conduct was ‘a substantial or motivating
factor’ in the decision to discipline him.”

Rauser, 241 F.3d at

333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)).
The mere fact that an adverse action occurs after either a
complaint or grievance is filed is relevant, but not dispositive,
for the purpose of establishing a causal link between the two

6. The assertion of retaliation by Chaplain Burks will be
addressed separately.
10

events.

See Lape v. Pennsylvania, 157 Fed. App’x. 491, 498 (3d

Cir. 2005).

Only where the facts of a particular case are

“unusually suggestive” of a retaliatory motive will temporal
proximity, standing alone, support an inference of causation.
Krouse v. American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
In this case it is noted that there is no indication that there had
been any preexisting hostility between Wendle and Mears.
Once Plaintiff has made a prima facie case, the burden
shifts to Defendants to prove by a preponderance of the evidence
that they “would have made the same decision absent the protected
conduct for reasons reasonably related to penological interest.”
Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir. 2002)(internal
quotation and citation omitted).

When analyzing a retaliation

claim, it must be recognized that the task of prison administrators
and staff is difficult, and the decisions of prison officials
require deference, particularly where prison security is concerned.
Rauser, 241 F.3d at 334.
As noted in Allah, a prisoner litigating a retaliation claim
need not prove that he had an independent liberty interest in the
privileges that he was denied.

Thus, the relevant inquiry is not

whether the alleged retaliatory conduct was unconstitutional.

On

the contrary, Plaintiff only needs to establish that he was
subjected to adverse action in retaliation for his engagement in
constitutionally protected conduct.
Despite the liberal treatment afforded to pro se litigants,
the Plaintiff has not set forth a viable claim of retaliation.
There is no discernible claim that Wendle retaliated against
Plaintiff for practicing his religious beliefs, a constitutionally
11

protected activity.

Rather, Plaintiff contends only that he was

verbally threatened with placement in segregation by Wendel if the
inmate engaged in any future institutional misconduct and that the
Lieutenant suggested only that Mears either not attend Burks’
religious service or do so without the other inmate.
There is also no allegation that Mears was actually
subjected to any type of retaliatory mistreatment or that Wendle
had any retaliatory motive whatsoever.

On the contrary, Plaintiff

offers no facts to support a claim that Wendel had any reason to
engage in retaliation.

Based upon those considerations, the Rauser

adverse requirements were not met.

Dismissal will be granted with

respect to any allegation of retaliation against Lieutenant Wendle.
However, the Court offers no opinion, at this time, as to whether a
viable allegation of retaliation is set forth against Chaplain
Burks.
Verbal Harassment
It is also asserted that the claims of verbal harassment by
Wendle are constitutionally insufficient.

See Doc. 8, p. 15.

As

previously noted, it is alleged that the Lieutenant verbally
threatened the Plaintiff with placement in segregation if anything
else transpired and suggested that Mears and the other prisoner who
was removed not jointly attend any future services conducted by
Burks.
The use of words generally cannot constitute an assault
actionable under § 1983.

Johnson v. Glick, 481 F.2d 1028, 1033 n.7

(2d Cir.); 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
12

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, even if true, amount to constitutional violations.
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 Fifth Amendment's substantive due process clause.
Verbal harassment, with some reinforcing act accompanying
them, however, may state a constitutional claim.

For example, a

viable claim has been found if some action taken by the defendant
escalated the threat beyond mere words.

See Northington v.

Jackson, 973 F.2d 1518 (10th Cir. 1992) (guard put a revolver to
the inmate's head and threatened to shoot); Douglas v. Marino, 684
F. Supp. 395 (D.N.J. 1988) (involving a prison employee who
threatened an inmate with a knife).

Moreover, alleged instances of

verbal harassment which are not accompanied by any physical contact
are constitutionally insufficient.

See Hart v. Whalen, 2008 WL

4107651 *10 (M.D. Pa. July 29, 2008);
1793018 *7

Wright v. O’Hara, 2004 WL

(E.D. Pa. 2004)(correctional officer’s words and

gestures, including lunging at prisoner with a clenched fist were
constitutionally insufficient because there was no physical
contact).

13

There is no indication that the verbal threat of future
segregation allegedly voiced against Mears was accompanied by a
reinforcing act involving a deadly weapon as contemplated under
Northington and Douglas.

More importantly, it is not alleged that

the alleged verbal abuse was accompanied by any physically
intrusive behavior.

Given the circumstances described by

Plaintiff, the purported verbal threat of future placement in
segregation attributed to Lieutenant Wendle was not of such
magnitude to shock the conscience as contemplated by this Court in
S.M. v. Lakeland School District, 148 F. Supp.2d 542, 547-48 (M.D.
Pa.

2001) and thus, did not rise to the level of a constitutional

violation.
Conspiracy
Corrections Defendants’ next argument contends that the
Complaint does not raise a viable claim of conspiracy.
p. 16.

See Doc. 8,

Since there are no facts asserted showing any agreement in

furtherance of any alleged constitutional violation, Corrections
Defendants conclude that a viable conspiracy claim has not been
stated.
In order to set forth a cognizable conspiracy claim, a
plaintiff cannot rely on broad or conclusory allegations.

D.R. by

L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364,
1377 (3d Cir. 1992), cert. denied, 506 U.S. 1079 (1993); Rose v.
Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869
F.2d 543, 545 (10th Cir. 1989).

The Third Circuit Court of Appeals

has further noted that "[a] conspiracy claim must . . . contain
supportive factual allegations."

Rose, 871 F.2d at 366.

Moreover,

"[t]o plead conspiracy adequately, a plaintiff must set forth
14

allegations that address the period of the conspiracy, the object
of the conspiracy, and the certain actions of the alleged
conspirators taken to achieve that purpose."

Shearin v. E.F.

Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989).
The essence of a conspiracy is an agreement or concerted
action between individuals.
Durre, 869 F.2d at 545.

See D.R. by L.R., 972 F.2d at 1377;

Consequently, a plaintiff must allege with

particularity and present material facts which show that the
purported conspirators reached some understanding or agreement or
plotted, planned and conspired together to deprive plaintiff of a
protected federal right.

Id.; Rose, 871 F.2d at 366; Young, 926

F.2d at 1405 n.16; Chicarelli v. Plymouth Garden Apartments, 551 F.
Supp. 532, 539 (E.D. Pa. 1982).

Where a civil rights conspiracy is

alleged, there must be some specific facts in the complaint which
tend to show a meeting of the minds and some type of concerted
activity.

Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985).

A plaintiff cannot rely on subjective suspicions and unsupported
speculation.

Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir.

1991).
There are no averments of fact set forth in the Complaint
that reasonably suggest the presence of an agreement or concerted
activity between the Corrections Defendants.

Although Mears makes

raises a vague claim of conspiracy, he has not alleged any facts
showing any communication or cooperation among any Defendants from
which an agreement could be inferred.

This Court agrees that the

Complaint has not adequately alleged that any of the alleged acts
of constitutional misconduct were the result of a conspiracy.

15

Dismissal

will be granted in favor of the Corrections Defendants

with respect to the claim of conspiracy.
Eighth Amendment
Plaintiff generally claims that the comments made by
Lieutenant Wendle and the post-incident failure of Corrections
Defendants to undertake corrective measures constituted cruel and
unusual punishment under the Eighth Amendment. Corrections
Defendants maintain that a viable Eighth Amendment claim is not set
forth in the Complaint.

See Doc. 8, p. 12.

The 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.

See Farmer 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 civilized measure of
life’s necessities.”

Tillman v. Lebanon County Correctional

Facility, 221 F.3d 410 (3d Cir. 2000).
An Eighth Amendment claim against a prison official must
meet two requirements:

(1) “the deprivation alleged must be,

objectively, sufficiently serious;” and (2) the “prison official
must have a sufficiently culpable state of mind.”7

Farmer, 511

7.
Under Farmer, deliberate indifference is a subjective
standard in that the prison official must actually have known or
been aware of the excessive risk to inmate safety. Beers-Capitol
v. Whetzel, 256 F. 3d 120, 125 (3d Cir. 2001). 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.”
(continued...)
16

U.S. at 834 (1994).

In prison conditions cases, “that state of

mind is one of ‘deliberate indifference’ to inmate health or
safety.”

Id.

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 treatment.
Based upon an application of the above standards, this Court
agrees that the allegation that Lieutenant Wendle suggested to
Plaintiff that he attend future services conducted by Burks either
by himself or not at all and an accompanying warning that future
problems with Chaplain Burks would result in Mears being placed in
disciplinary confinement do not rise to the level of a viable
Eighth Amendment claim.

The purported remarks, even if true, do

not deprive Mears of any basic human needs or constitute deliberate
indifference to a health or safety risk.

The same determination

holds true for the assertion that the Corrections Defendants failed
to initiate post incident corrective measures other then to provide
Burks with coaching with respect to the way he had addressed the
Plaintiff’s conduct during the religious service.
First Amendment
As previously discussed, plaintiff asserts that the comments
made by Lieutenant Wendle violated his rights under the First
Amendment.

Correction Defendants contend that a verbal threat to

Plaintiff that he would be punished for any related future

7. (...continued)
Farmer, 511 U.S. at 837.
17

misconduct and a suggestion regarding his future attendance art
religious services conduct by Chaplain Burks does not constitute an
actionable First Amendment claim.

See Doc. 8, p. 14.

The First Amendment states that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; ..."

U.S. Const. Amend. I. It is well settled

that the “government must avoid excessive interference with, or
promotion of religion.”

VanOrden v. Perry, 125 S. Ct 2854, 2868

(2005)(Breyer, concurring).

An inmate must be afforded reasonable

opportunity to exercise his religious beliefs under the First
Amendment.

Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).

It is clear that inmates “do not forfeit all constitutional
protections by reason of their conviction and confinement in
prison.”

DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000) (quoting

Bell v. Wolfish, 441 U.S. 441 U.S. 520, 545 (1979)).

Prisoners

must be afforded "reasonable opportunities" to exercise their
religious freedom guaranteed by the First Amendment.
405 U.S. 319, 322 n.2 (1972).

Cruz v. Beto,

However, imprisonment necessarily

results in restrictions on some constitutional rights, including
the First Amendment's right to the free exercise of religion.
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).
To set forth an actionable First Amendment claim, an inmate
plaintiff must establish that he had a sincerely held belief which
was religious in nature and that a prison official’s actions
substantially burdened his exercise of those religious beliefs.
Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972); Africa v.
Pennsylvania, 662 F.2d 1025, 1029-30 (3d Cir. 1981).

18

With respect to their first requirement, there is no
argument by Corrections Defendants that Plaintiff has not satisfied
his burden of establishing that he had a sincerely held belief
which was religious in nature.
Substantial burden is satisfied when: (1) a prisoner is
forced to choose between following the precepts of his religion and
forfeiting benefits otherwise generally available to other inmates
versus abandoning a precept of his religion in order to receive a
benefit; or (2) the government puts substantial pressure on an
adherent to substantially modify his behavior and to violate his
beliefs.

Gould v. Beard, 2010 WL 845566 * 4-5 (W.D. Pa. 2010).

Even if proven, the remarks attribute to Lieutenant Wendle
were simply not of such magnitude as to substantially burden Inmate
Mears’ exercise of his religious beliefs.

This is not a case where

a correctional officer prevented a prisoner from practicing his
beliefs or attending a religious service.

There is no claim that

Wendle removed Plaintiff from the services.
On the contrary, after the incident Wendle suggested only
that in order to avoid a future problem, Mears might not want to
attend religious services conducted by Burks or to do so without
the other prisoner involved in the incident.

As such, this is not

a case where a correctional officer prevented a prisoner from
attending a religious service. It is also noted that this action
was not initiated until several months after the incident and there
is no allegation that Plaintiff was ever refused permission to
attend any religious service after the January 8, 2017 incident.

19

It is again noted that this discussion does not address the
issue of whether Chaplain Burks’ purported conduct violated the
First Amendment.
ADA
Plaintiff’s opposing brief to the motion to dismiss
indicates for the first time that the conduct attributed to the
Corrections Defendants also violated his rights under the Americans
with Disabilities Acr (ADA).

See Doc. 16, p. 5.

The Moving

Defendants contend that Plaintiff should not be permitted to
proceed on an ADA claim.

See Doc. 17, p. 2.

Title II of the ADA provides that "no qualified individual
with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by such entity."

42 U.S.C. § 12132.8

The ADA seeks

"to assure even handed treatment and the opportunity for [disabled]
individuals to participate in and benefit from programs [receiving
financial assistance]. Southeastern Community College v. Davis, 442
U.S. 397 (1979).
1990).

P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.

The "evenhanded treatment" requirement does not, however,

impose an affirmative obligation on public entities to expand

8.
The regulations implementing the ADA define a "qualified
individual with a disability" as:
"An individual with a disability who, with
or without reasonable modifications to
rules, policies or practices, . . . meets
the essential eligibility requirements for
the . . . participation in programs or
activities provided by a public entity."
28 C.F.R. § 35.104 (1993).
20

existing programs but only that disabled individuals receive the
same treatment as those who are not disabled. It has been
recognized that the provisions of the ADA are applicable to
prisoners confined in state correctional institutions.

See

Pa.

Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998).
Based upon a liberal construction of the
is no ADA claim set forth in that pleading.

Complaint, there

Plaintiff has also not

sufficiently demonstrated that he is disabled for purposes of the
ADA.

Second, the alleged conduct by the Corrections Defendants

does not set forth a viable basis for a claim that Plaintiff was
subjected to discrimination on the basis of any disability.
Accordingly, the Court will grant the request for dismissal of
Mears’ ADA claim.
Pendent Jurisdiction
To the extent that Plaintiff wishes to pursue state law
claims of negligence against the Corrections Defendants,9 federal
courts have jurisdiction over state claims which are related to the
federal claims and result from a common nucleus of operative facts.
See United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966); see
also Aldinger v. Howard, 427 U.S. 1, 9 (1976).

Corrections

Defendants contend that any such negligence claims are barred by
Pennsylvania’s doctrine of soverign immunity.

See Doc. 8, p. 21.

A district court may decline to exercise supplemental
jurisdiction over a claim when the court has dismissed all claims
over which it has original jurisdiction.

See 28 U.S.C. §

9. It also appears that Mears raises state law claims of invasion
of privacy and defamation against Chaplain Burks. Those
allegations will not be addressed herein.
21

1367(c)(3) (1997).

Decisions regarding pendent jurisdiction should

be premised on considerations of judicial economy, convenience and
fairness to the litigants.

New Rock Asset Partners v. Preferred

Entity Advancements, 101 F.3d 1492, 1505 (3d Cir. 1996)(citation
omitted).
Once jurisdiction has been exercised over the state claim,
elimination of the federal claim does not deprive the court of
jurisdiction to adjudicate the pendent claim.

Id. (citing Lentino

v. Fringe Emp. Plans, Inc., 611 F. 2d 474, 479 (3d Cir. 1979)).
However, when the federal claim is dismissed prior to trial, a
district court should decline to decide the pendent state claims,
“unless considerations of judicial economy, convenience, and
fairness provide an affirmative justification for doing so.”
Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.
1995).
Pennsylvania’s Commonwealth Court has recognized that a
negligent failure to protect a prisoner from abuse or assault is
not one of the instances enumerated under § 8522(b). See Steinberg
v. Department of Public Welfare, 405 A.2d 1135 (Pa. Cmwlth.
1979)(an employee’s state law claim that staff negligently failed
to protect her from sexual assault by two student prisoners at
youth development center was barred by doctrine of sovereign
immunity).

Once again this determination is limited to any state

law claims asserted against the Corrections Defendants.

An

appropriate Order will enter.
S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge
July 26, 2018
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DATED: JULY

, 2018

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