MCCAIN v. WETZEL et al

Filing 121

MEMORANDUM OPINION & ORDER granting Defendants' motion to dismiss 84 . Signed by Magistrate Judge Susan Paradise Baxter on 7/3/2018. (css)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AMIR HAKIM MCCAIN,
(also known as JOHN MCCAIN)
Plaintiff

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vs.
JOHN WETZEL, et al,
Defendants.

C.A.No. 15-79ERIE
Magistrate Judge Baxter

MEMORANDUM OPINION
A. Relevant Procedural History
Plaintiff, acting pro se, originally filed this case on March 13, 2015. As of September 1,
2017, this Court granted Defendants’ motion to sever and directed that the only remaining claims
in this action were contained within the Second Amended Complaint [ECF No. 72] at paragraphs
11 through 26 and were against Defendants Reynolds, Dittman, Oberlander and Overmyer. See
ECF No. 79.
In the Second Amended Complaint, Plaintiff alleges that on March 1, 2014, he became ill
after eating contaminated food from the prison cafeteria. Plaintiff claims that the green pepper
and meat sauce was contaminated with human feces. Plaintiff alleges that this contamination was
caused by a white inmate. Plaintiff alleges that Reynolds was told about the contamination but
refused to have the bin of food removed and the kettle sanitized before serving food.
Plaintiff claims that on April 11, 2014, he met with Defendant Dittman and the inmate
“blood and body crew” who explained that they could not sanitize the equipment with the
chemicals on hand.

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Plaintiff then filed Grievance 501189 regarding the incident. Defendant Oberlander
investigated the incident and concluded that: the incident involved a bin of cut peppers that were
to be used for the preparation of food for the evening meal; Defendant Reynolds contacted
Defendant Dittman to inform him of the incident on the afternoon it occurred; the contaminated
food was disposed of and the area and equipment sanitized. Plaintiff also claims that Overmyer
covered up a false report by Oberlander.
In response to the severed Second Amended Complaint, those named Defendants filed a
motion to dismiss [ECF No. 84] arguing that the case should be dismissed on purely legal
grounds. As the basis for the motion to dismiss, Defendants argue: 1) that Plaintiff’s claims
against Oberlander and Overmyer fail as a matter of law because these Defendants were not
personally involved in the incident; 2) Plaintiff fails to state an Eighth Amendment claim upon
these facts.1 Plaintiff has filed a Response and Brief in Opposition, as well as a Proposed
Amended Complaint. ECF No. 114; ECF No. 115; ECF No. 116.
The dispositive motion is fully briefed and is ripe for disposition by this Court.

B. Standards of Review
1) Pro se Litigants

In response to the motion to dismiss, Plaintiff originally filed a motion for certification [ECF
No. 105] and a motion to compel production of documents [ECF No. 106]. In the motion for
certification [ECF No. 105] and motion to compel [ECF No. 106], Plaintiff sought 1) a telephone
conference; 2) the mandatory attendance of Defendants’ insurance providers at the telephone
conference; 3) production of documents and inspection of a video; 4) inmate Isenhart’s first
name and current address; 5) security officer’s names; 6) monetary sanctions in the amount of
$20,000 if Defendants have destroyed the video of Isenhart placing feces in the sauce. ECF No.
105. These motions were denied as they were duplicative of earlier motions filed by Plaintiff and
because these requests for discovery were premature in the face of the motion to dismiss on
purely legal grounds. See ECF No. 113.
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In reviewing a pro se plaintiff's complaint, the court must accept all factual allegations in
the complaint as true and take them in the light most favorable to the pro se plaintiff. See
Erickson v. Pardus, 551 U.S. 89, 93 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 229
(3d Cir. 2008). A complaint must be dismissed if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007).
“Factual allegations must be enough to raise a right to relief above a speculative level.” Id.at 555.
The court need not accept inferences drawn by the plaintiff if they are unsupported by the facts
as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394
F.3d 126, 143 (3d Cir. 2004) (internal citation omitted). Nor must the court accept legal
conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) citing Papasan v. Allain, 478 U.S. 265, 286 (1986). Additionally, a civil rights claim
“must contain specific allegations of fact which indicate a deprivation of constitutional rights;
allegations which are nothing more than broad, simple and conclusory statements are insufficient
to state a claim under § 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Finally, a court must employ less stringent standards when considering pro se pleadings
than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520-521
(1972). When presented with a pro se complaint, the court should construe the complaint
liberally and draw fair inferences from what is not alleged as well as from what is alleged.
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a §1983 action, the court must “apply
the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins
v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (internal quotation omitted). See also Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to
relief if their complaint sufficiently alleges deprivation of any right secured by the
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Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their
obligation to allege sufficient facts to support a cognizable legal claim.

2) Motion to dismiss
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). A plaintiff’s
factual allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal Practice and Procedure §
1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme Court does “not require
heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to
relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “This
‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
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enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
The Third Circuit has expounded on the Twombly/Iqbal line of cases:

To determine the sufficiency of a complaint under Twombly and Iqbal, we
must take the following three steps:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state
a claim.’ Second, the court should identify allegations that, ‘because they are
no more than conclusions, are not entitled to the assumption of truth.’ Finally,
‘where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement
for relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

C. Lack of Personal Involvement
The Commonwealth argues that Defendants Overmyer and Oberlander should be
dismissed from this action because Plaintiff has failed to allege facts sufficient to support their
personal involvement in any alleged constitutional violation. This Court agrees.
To establish a § 1983 claim, a plaintiff must prove that a defendant, acting under color of
state law, deprived the plaintiff of a right secured by the Constitution or laws of the United
States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Estate of Smith v.
Marasco, 430 F.3d 140, 151 (3d Cir. 2005); 42 U.S.C. § 1983. It is well-settled that liability
under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional
right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct.21, 2013) citing Argueta v.
U.S. Immigration and Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011). This means that the
defendant must have played an “affirmative part” in the complained-of misconduct. Ashcroft v.
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Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit ... [a]bsent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own
misconduct.”); Oliver v. Beard, 358 Fed.App’x 297, 300 (3d Cir. 2009); Chinchello v. Fenton,
805 F.2d 126, 133 (3d Cir. 1986).
Although a supervisor cannot encourage constitutional violations, “a supervising public
official has [no] affirmative constitutional duty to supervise and discipline so as to prevent
violations of constitutional rights by his or her subordinates.” Chinchello, 805 F.2d at 133;
Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990) cert. denied, 501 U.S. 1218 (1991).
Section 1983 liability cannot be predicated solely on the theory of respondeat superior. Rizzo v.
Goode, 423 U.S. 362 (1976). See also Monell v. Department of Social Services, 436 U.S. 658
(1978) (superiors of line officers who act in violation of constitutional rights may not be held
liable on a theory of vicarious liability merely because the superior had a right to control the line
officer's actions); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-95 (3d Cir. 1997)
(holding that § 1983 plaintiff is required to show that supervisor personally participated in
violating her rights, that he directed others to violate her rights, or that he had knowledge of and
acquiesced in his subordinates' violations).
In the context of a defendant who is alleged to have performed in a supervisory role,
courts have identified two general instances in which either the conduct of that supervisordefendant or the policies/procedures of that supervisor-defendant may amount to personal
involvement and thereby warrant a finding of individual, supervisory liability for a constitutional
tort: First, supervisory liability may attach if the supervisor personally “participated in violating
the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge
of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne
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Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) citing Baker v. Monroe Twp., 50 F.3d
1186, 1190-91 (3d Cir. 1995). Second, liability may attach if the supervisor, “with deliberate
indifference to the consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.” Id. quoting Stoneking v. Bradford Area Sch. Dist.,
882 F.2d 720, 725 (3d Cir. 1989).2
Here, Plaintiff alleges that Overmyer and Oberlander acted after the initial food
contamination incident, during an investigation. Plaintiff’s allegations against these Defendants,
even viewed in the light most favorable to Plaintiff, fail to state a claim under either theory of
supervisory liability. Moreover, the denial of Plaintiff’s grievances and/or misconducts does not,
in itself, satisfy the requisite “personal involvement” requirement. Mincy v. Chmielsewski, 508
Fed.App’x 99, 104 (3d Cir. 2013) (“[A]n officer’s review of, or failure to investigate, an
inmate’s grievances generally does not satisfy the requisite personal involvement.”); Rogers v.
United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a grievance official’s only
involvement is investigating and/or ruling on an inmate’s grievance after the incident giving rise
to the grievance has already occurred, there is no personal involvement on the part of that

In this second type of supervisory liability, a plaintiff must show four elements: 1) the policy or
procedures in effect at the time of the alleged injury created an unreasonable risk of a
constitutional violation; 2) the defendant-supervisor was aware that the policy created an
unreasonable risk; 3) the defendant-supervisor was indifferent to that risk; and 4) the
constitutional injury was caused by the failure to implement the supervisory practice or
procedure. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
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official.”).3 Accordingly, the motion to dismiss should be granted as to Defendants Overmyer
and Oberlander.4

D. Humane Conditions of Confinement
Defendants move to dismiss the claims against Reynolds and Dittman based on Plaintiff’s
failure to state an Eighth Amendment claim on these facts.
Under the Eighth Amendment, prisoners are constitutionally protected from cruel and
unusual punishment. Farmer v. Brennan, 511 U.S. 825 (1991). But, “not all deficiencies and
inadequacies in prison conditions amount to a violation of an inmate's constitutional rights.”
Booth v. King, 228 Fed. App’x 167, 171 (3d Cir. 2007). Cruel and unusual punishment will only
be found “where, viewing the totality of the conditions in the prison, the inmate's conditions of
confinement, alone or in combination, deprive him of the minimal civilized measure of life's
necessities.” Id. quoting Tillery v. Owens, 907 F.2d 418, 426-27 (3d Cir. 1990). In the nonmedical context, the Eighth Amendment imposes a duty upon prison officials to provide humane
conditions of confinement; prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must “take reasonable measure to guarantee the safety of
the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). However, “to the extent that

Moreover, any allegations that these Defendants acted together are not sufficient as a matter of
law to state a civil conspiracy claim under § 1983. See Capogrosso v. Sup. Ct. of N.J., 588 F.3d
180, 185 (3d Cir. 2009) (“[A]llegations of a conspiracy must provide some factual basis to
support the existence of the elements of a conspiracy: agreement and concerted action.”);
Langella v. Cercone, 2010 WL 2402971, at * 3 (W.D. Pa. June 10, 2010) (“In order to state a
cause of action for civil conspiracy under § 1983, a plaintiff must plead both the elements of
cause of action under § 1983 and conspiracy.”).
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None of the factual allegations of the proposed Third Amended Complaint save these
Defendants from dismissal on this same basis.
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prison conditions are restrictive and even harsh, they are part of the penalty that criminal
offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
To make out an Eighth Amendment claim based on prison conditions, the plaintiff must show
“he has suffered an objectively, sufficiently serious injury [or deprivation], and that prison
officials inflicted the injury with deliberate indifference.” Farmer, 511 U.S. at 834. An
objectively, sufficiently serious injury is one that denies the inmate “the minimal civilized
measure of life's necessities,” such as food, water, shelter. Rhodes, 452 U.S. at 347; see also
Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 419 (3d Cir. 2000).
The first prong of the Farmer test is an objective one: Plaintiff must demonstrate that he
has been incarcerated under conditions posing a substantial risk of serious harm. 511 U.S. at 834.
The second prong of the Farmer test is a subjective one, requiring plaintiff to demonstrate that
defendants acted with deliberate indifference. To establish deliberate indifference: 1) a prison
official must know of and disregard an excessive risk to inmate health or safety; 2) the official
must be aware of facts from which an inference could be drawn that a substantial risk of serious
harm exists, and 3) the official must also draw the inference. Id. at 837. Thus, “deliberate
indifference describes a state of mind more blameworthy than negligence,” and requires “more
than ordinary lack of due care for prisoner's interests or safety.” Id. at 835.
Here, Plaintiff’s allegations regarding the food contamination incident on March 1, 2014,
even if taken as true, are not sufficient to state an Eighth Amendment violation. Specifically,
Plaintiff’s only complaint is that the prison served him contaminated food for one meal on one
particular day. A single instance of an irregularity in the prison food does not give rise to a
sufficient level of serious deprivation of the minimal civilized measure of life’s necessities.
Rhodes, 452 U.S. at 347. See also Lindsey v. O’Connor, 327 Fed. App’x 319, 321 (3d Cir. 2009)
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(“The purported deprivation of a single meal is not of such magnitude as to rise to the level of a
constitutional violation.”) (citation omitted); Thomas v. SCI-Graterford, 2014 WL 550555, at *4
(E.D. Pa. Feb. 12, 2014) (single instance of mouse feces in food found insufficient); Murray v.
Allen, 2010 WL 4159261 (E.D. Pa. Oct. 21, 2010) (single instance of human tooth found in
prison meal was insufficient to establish Eighth Amendment claim); Allen v. Maryland, 2010
WL 727753, at *1 (D.Md. Feb. 25, 2010) (“To state a constitutional violation for unsanitary food
preparation, an inmate must do more than allege a single or isolated incident of contamination.”).
Accordingly, the motion to dismiss will be granted with regard to Plaintiff's Eighth
Amendment claim against Reynolds and Dittman.5

E. Racial Discrimination
Although race is only referenced in passing in the Second Amended Complaint (ECF No.
72, ¶ 12), in his opposition brief, Plaintiff clarifies that he believes the food contamination
incident was racially motivated because the inmate who put feces into the food and Reynolds are
white and that the majority of the inmate population who would have eaten the contaminated

In his proposed Third Amended Complaint, Plaintiff alleges that the incident at issue here was
not an isolated incident because there was an earlier incident of food contamination by an inmate
who ejaculated into the food and a staff member watched as the contaminated food was served to
others. ECF No. 116, page 2. Even assuming Plaintiff's allegations are correct, these two
instances of food contamination fall far short of the level of deprivation required to establish an
Eighth Amendment violation. Plaintiff’s allegations do not constitute a substantial deprivation as
a matter of law. “[O]nly a substantial deprivation of food to a prisoner sets forth a viable Eighth
Amendment claim.” Lindsey v. O'Connor, 327 Fed.Appx. 319, 321 (3d Cir. 2009). “[T]he Eighth
Amendment's prohibition against cruel and unusual punishment is implicated” when prison
officials systematically “den[y] a series of meals to an inmate over a span of weeks.” Rodriguez
v. Wetzel, 2015 WL 1033842 at *11 (3d Cir. 2015).
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food are African-American.6 To the extent that any of Plaintiff’s statements can be liberally
construed as attempting to bring a claim of racial discrimination, any such claim fails as a matter
of law.
Racial discrimination claims are properly brought under the Equal Protection Clause of
the Fourteenth Amendment, not the Eighth Amendment. The Equal Protection Clause of the
Fourteenth Amendment prohibits states from “deny[ing] to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. It guarantees fairness and equality in
the treatment of individuals by government officials. See Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 264–66, 97 (1977). The Equal Protection Clause of the
Fourteenth Amendment directs that all similarly situated individuals be treated alike. City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The traditional theory protects a
plaintiff from discriminatory treatment based on membership in a protected class such as race.
See id.; McLaughlin v. Florida, 379 U.S. 184, 192 (1964). To assert a protected-class claim, the
plaintiff must demonstrate that (1) he or she is a member of a protected class and (2) the
government treated similarly situated individuals outside of the protected class differently. See
Oliveira v. Twp. of Irvington, 41 Fed.Appx. 555, 559 (3d Cir. 2005) (observing that a prima
facie case under the Equal Protection Clause requires plaintiffs to prove membership in “a
protected class and that they received different treatment than that received by other similarlysituated individuals”). A plaintiff “must prove the existence of purposeful discrimination” by the
defendants. Keenan v. City of Phila., 983 F.2d 459, 465 (3d Cir. 1992).

Additionally, in his proposed Third Amended Complaint, Plaintiff alleges that “the Defendants
has [sic] violated Plaintiff’s Eighth Amendment rights relating to discrimination protecting
[Inmate] Isenhart and Reynolds that are ‘caucasicans’ [sic] exercising their ‘racist’ behavior
against all African Americans.” ECF No. 116, page 1.
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None of Plaintiff’s factual allegations are sufficient to indicate that any Defendant or
other prison staff treated people differently based upon their race.

F. Futility of Amendment
In opposition to the present motion to dismiss, Plaintiff has submitted a proposed Third
Amended Complaint which expands on several allegations of the severed Second Addend
Complaint and seeks to add two additional Defendants.
Federal Rule of Civil Procedure 15(a)(2) states that “the court should freely give leave [to
amend] when justice so requires.” Id. “In the absence of any apparent or declared reason--such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules
require, be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962) (interpreting Federal Rules
of Civil Procedure). An amendment would be futile when the complaint, as amended, would fail
to state a claim upon which relief could be granted. In re NAHC, Inc. Securities Litig., 306 F.3d
1314, 1332 (3d Cir. 2002).
Many of Plaintiff’s expanded factual allegations are futile, as discussed herein. See
Footnotes 4-6. Moreover, Plaintiff’s attempt to name two additional Defendants at this late date,
more than three years after the filing of the original complaint, are prejudicial to Defendants.
Plaintiff does not explain his delay or his repeated failure to name them in his previous
amendments.
An appropriate Order follows.

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