Emory v. Mooney et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 11/16/16. (lg)

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

KEVIN D. EMORY,
Plaintiff
v.
VINCENT MOONEY, ET AL.,
Defendants

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CIVIL NO. 4:CV-16-1892
(Judge Brann)

MEMORANDUM
November 16, 2016
Background
Kevin D. Emory, an inmate presently confined at the State Correctional
Institution, Graterford, Pennsylvania (SCI-Graterford) initiated this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff subsequently filed an
Amended Complaint (Doc. 8). An in forma pauperis application has also been
submitted.1 For the reasons set forth below, Emory’s action will be dismissed,

Emory has completed this Court's form application to proceed in forma
pauperis and authorization to have funds deducted from his prison account. The Clerk
of Court is directed to issue the Administrative Order to the Warden noting that he
should begin to deduct money from the inmate’s account in the manner described in
the Administrative Order.
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without prejudice, as legally frivolous pursuant to the screening provisions of 28
U.S.C. § 1915.
Named as Defendants in the Amended Complaint are the following officials
at Plaintiff’s prior place of confinement, the State Correctional Institution, Coal
Township, Pennsylvania (SCI-Coal Twp.): Superintendent Vincent Mooney;
Captain Morris; Sergeant Bilger; and Correctional Officer Perrin. Plaintiff
contends that lasers have been implanted in the heads of the inmates at SCI-Coal
Twp to create “illegal broadcasting experiments ... for entertainment.”2 Doc. 8, ¶
14. The lasers have also purportedly been used to “endorse” the diagnosis that
Emory is schizophrenic and to cover up the experimentation being conducted at
the prison. Id. at ¶ 20. Plaintiff asserts that he has been denied adequate medical
care for injuries suffered as a result of the lasers being implanted in his head.
Enory further states that on or about March 3, 2015, Bilger and Perrin,
together with Nurse Kerr, a non-defendant, yelled sexually harassing remarks to
all the inmates in his housing unit day room while he was in the shower room.
Those remarks along with the use of the implanted lasers allegedly instigated other
prisoners to assault Plaintiff while he was getting dressed in a cell. The Amended

The implanted lasers were allegedly developed by Department of Corrections’
technology.
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Complaint adds that based “upon information and belief,” the assault was
“broadcasted” throughout the prison for entertainment via Captain Morris’ use of
the aforementioned implanted lasers. Id. at ¶ 18. The Plaintiff seeks injunctive
and declaratory relief as well as punitive and compensatory damages.
Discussion
Title 28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions
in federal court and who wish to proceed in forma pauperis under 28 U.S.C. § 1915,
e.g., that the full filing fee ultimately must be paid (at least in a non-habeas suit). §
1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the court
determines that (A) the allegation of poverty is untrue; or (B) the action
or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.
A district court may rule that process should not be issued if the complaint is
malicious, presents an indisputably meritless legal theory, or is predicated on clearly
baseless factual contentions. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989);
Douris v. Middleton Township, 293 Fed. Appx. 130, 132 (3d Cir. 2008).
Indisputably meritless legal theories are those "in which either it is readily apparent
that the plaintiff's complaint lacks an arguable basis in law or that the defendants are
clearly entitled to immunity from suit ... ." Roman v. Jeffes, 904 F.2d 192, 194 (3d
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Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has added that "the
plain meaning of 'frivolous' authorizes the dismissal of in forma pauperis claims that
. . . are of little or no weight, value, or importance, not worthy of serious
consideration, or trivial." Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.
1995). It also has been determined that "the frivolousness determination is a
discretionary one," and trial courts "are in the best position" to determine when an
indigent litigant's complaint is appropriate for summary dismissal. Denton, 504 U.S.
at 33.
Superintendent Mooney
The named Defendants include SCI-Coal Twp. Superintendent Mooney.
However, there are no factual allegations set forth in the Amended Complaint which
allege that Defendant Mooney had personal involvement in any violation of the
Plaintiff’s constitutional rights. It is asserted only that Mooney denied Emory’s
appeal of the denial of his administrative grievance. See Doc. 8, ¶ 30.
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.
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Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by
Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990).
Federal civil rights claims brought under § 1983 cannot be premised on a
theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (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.
It appears that Emory may be attempting to establish liability against
Superintendent Mooney on the basis of his supervisory capacity within SCI-Coal
Twp. Any such effort is subject to dismissal under the personal involvement
pleading requirements of Rode
Prisoners also 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]
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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 Superintendent Mooney based upon his
handling of an administrative grievance appeal or complaint 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).
As noted above, there are no factual assertions set forth by Emory which
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could support a claim that Superintendent Mooney had any personal involvement in
any acts of constitutional misconduct. Second, any attempt to establish liability
against Superintendent Mooney based upon his response or non-response to Emory’s
administrative grievances or complaints is likewise insufficient. Accordingly,
dismissal will be granted in favor of Defendant Mooney.
Verbal Abuse
The Amended Complaint includes an allegation that Defendants Bilger and
Perrin yelled sexually harassing remarks to all the prisoners in Plaintiff’s housing
unit. See Doc. 8, ¶ 11. It is well settled that 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 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
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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 it, 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, Civ. No. 3:08-828, 2008 WL 4107651 *10 (M.D. Pa. July 29, 2008); Wright v. O’Hara, Civ.
No. 00-1557, 2004 WL 1793018 *7 (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).
Although Plaintiff makes a vague, conclusory assertion that the purported
remarks by the correctional officers along with the use of implanted lasers
encouraged some of his fellow inmates to physically assault him, there is no claim
that the alleged verbal harassment by the two Defendants 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
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accompanied by any physically intrusive behavior. Given the circumstances
described by Plaintiff, the purported verbal remarks, although offensive, were 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 the
sexually offensive language referenced in the Amended Complaint by itself did not
rise to the level of a constitutional violation.
Failure to Protect/Lasers
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. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31
(1993). Under Farmer, an inmate must surmount the high hurdle of showing that a
prison official actually knew or was aware of a substantial risk to inmate safety and
deliberately disregarded that risk. 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.” Farmer, 511 U.S.
at 837.
It is equally well settled that “a finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or the wholly incredible ....”
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Denton v. Hernandez, 504 U.S. 25, 33 (1992); see also Roman, 904 F.2d at 194
(stating that baseless factual contentions describe scenarios clearly removed from
reality).
Plaintiff alleges that based “upon information and belief,” Bilger and Perrin
“watched and listened” to Plaintiff being beaten by two inmates in a cell. Doc. 8, ¶
17. Emory acknowledges that during the relevant time period, the two Defendants
were in the housing unit control station which he describes as being a “closed off
room.” Id. at ¶ 13. Exhibits accompanying the Amended Complaint indicate that
the assault against Emory was ordered from the control room through the implanted
lasers. See id., pp. 19, 21, & 25. It also appears that it may be Plaintiff’s contention
that Bilger and Perrin watched the attack via a transmission from the lasers.
There are no rational facts alleged which could arguably show that Bilger and
Perrin were actually aware that Plaintiff was being assaulted, that they engaged in an
intentional attempt to place Emory in harm’s way, or that they were aware but
deliberately disregarded a risk to the inmate’s safety. Any claim that Bilger and
Perrin became aware of his assault because they ordered it from the control room
and had it illegally broadcasted via lasers implanted into the prisoner’s head as well
as the heads of his inmate assailants is simply irrational nonsense. Fantastic,
delusional, and simply unbelievable claims are clearly subject to dismissal. See
Golden v. Coleman, 429 Fed. Appx. 73 (3d Cir. 2011). While the Amended
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Complaint and attached exhibits may support a determination that Emory was
assaulted by other prisoners on March 3, 2015, there are no credible facts
supporting the outlandish accusation that the attack was ordered and shown
throughout the prison via lasers implanted in the heads of the assailants and Plaintiff.
Emory’s assertions that he and all of his fellow SCI-Coal Twp. prisoners have had
lasers implanted in their heads which allows their actions to be both controlled and
broadcasted throughout the prison is a delusional scenario fabricated by the Plaintiff.

While this Court is sympathetic to the needs of inmates suffering from mental
and emotional problems, Emory’s pending claims fall within the category described
above and as such will be sua sponte dismissed under the standards enunicated in
Denton and Golden.

Pendent Jurisdiction
Plaintiff also indicates that he wishes to pursue state law claims against the
Defendants. It is well settled that 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);
Aldinger v. Howard, 427 U.S. 1, 9 (1976). Supplemental jurisdiction may be
declined over a claim when the court has dismissed all claims over which it has
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original jurisdiction. See 28 U.S.C. § 1367(c)(3) (1997). When rendering a
determination regarding pendent jurisdiction district courts should consider 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, if a federal claim is dismissed prior to trial, the 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). Since
this Court shall dismiss the federal claims against Defendants, jurisdiction will be
declined with respect to any pendent state law claims that Plaintiff wishes to pursue.
Conclusion
Since Plaintiff's pending civil rights claim is "based on an indisputably
meritless legal theory" it will be dismissed, without prejudice, as legally frivolous.
Wilson, 878 F.2d at 774. An appropriate Order will enter.

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BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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