NORRIS v. DAVIS et al

Filing 38

ORDER granting 35 Motion to Dismiss. Signed by Magistrate Judge Lisa Pupo Lenihan on November 15, 2011. (far, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MATTHEW NORRIS,
Plaintiff,
v.
DAN DAVIS; NEDRA GREGO;
SUPERINTENDENT FOLINO; and
DORINA VARNER,
Defendants.

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) Civil Action No. 10 - 1118
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) Chief Magistrate Judge Lisa Pupo Lenihan
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)
)
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MEMORANDUM ORDER
Plaintiff, Matthew Norris, an inmate currently confined at the State Correctional Institution at
Greene, located in Waynesburg, Pennsylvania, commenced this action against the following
individuals employed at SCI-Greene: Dan Davis, Assistant Superintendent; Nedra Grego, a
registered nurse; S. Folino, Superintendent; and Dorina Varner, Chief Grievance Coordinator. In his
Amended Complaint, Plaintiff alleges that Defendants violated his rights as protected by the Eighth
Amendment by confining him in the restricted housing unit (RHU), which is exacerbating his mental
illness. For the reasons set forth below, Defendants’ Motion to Dismiss will be granted. An
appropriate order follows.
A. Standard of Review
Defendants have filed a Motion to Dismiss the Amended Complaint (ECF No. 35). A motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a
complaint. In deciding this motion, the court must read the complaint in the light most favorable to
the plaintiff and all well-pleaded, material allegations in the complaint must be taken as true. Estelle
v. Gamble, 429 U.S. 97, 99 (1976). The court is bound to give the plaintiff the benefit of every
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reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks
Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6 (1963). A viable
complaint must include "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) (rejecting the traditional 12 (b)(6) standard set
forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all allegations
of the complaint and all reasonable factual inferences must be viewed in the light most favorable to
the plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985).
AFactual allegations must be enough to raise a right to relief above the speculative level.@ Bell
Atlantic Corp., 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951
(U.S. 2009) (holding that, while the Complaint need not contain detailed factual allegations, it must
contain more than a "formulaic recitation of the elements" of a constitutional claim and must state a
claim that is plausible on its face) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and
providing further guidance on the standard set forth therein).

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. 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 enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Id.
At 232.
Courts generally consider the allegations of the complaint, attached exhibits, and matters of
public record in deciding motions to dismiss. Pension Benefit Guar. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described or identified in
the complaint also may be considered if the plaintiff=s claims are based upon those documents. Id.
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(citations omitted). Moreover, a district court may consider indisputably authentic documents
without converting a motion to dismiss into a motion for summary judgment. Spruill v. Gillis 372
F.3d 218, 223 (3d Cir.2004); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997).
Pro se pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient
facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376,
378, (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
B. Plaintiff’s Allegations
Plaintiff alleges that he has bipolar disorder and currently is confined in the Restricted
Housing Unit (RHU). He states that he is being regularly treated for his disorder and is regularly
seen by Dr. Khan, a psychiatrist, while confined in the RHU. He further claims that, as a result of
being confined in the RHU, his mental illness is being exacerbated. He filed two grievances about
his confinement in the RHU, which were either denied or rejected. Plaintiff claims that Defendants
are denying his rights as protected by the Eighth Amendment of the United States Constitution.
C. Liability under 42 U.S.C. ' 1983
Plaintiff's Complaint seeks to assert liability against Defendants pursuant to 42 U.S.C. '
1983. To state a claim under 42 U.S.C. ' 1983, a plaintiff must meet two threshold requirements.
He must allege: 1) that the alleged misconduct was committed by a person acting under color of
state law; and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the
Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451

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U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330331 (1986).
To establish personal liability against a defendant in a section 1983 action, that defendant
must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976). Accordingly, individual
liability can be imposed under section 1983 only if the state actor played an "affirmative part" in the
alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Chinchello v.
Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Personal involvement by a defendant can be shown by
alleging either personal direction or actual knowledge and acquiescence in a subordinate's actions.
Rode, 845 F.2d at 1207.
D. The Eighth Amendment
Plaintiff=s claims seek to invoke liability under the Eighth Amendment, which provides as
follows.
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
U.S. Const. amend. VIII.
The Eighth Amendment protects individuals against the infliction of "cruel and unusual
punishments." U.S. Const. amend. VIII. This protection, enforced against the states through the
Fourteenth Amendment, guarantees incarcerated persons humane conditions of confinement. In this
regard, prison officials must ensure that inmates receive adequate food, clothing, shelter and medical
care, and must "take reasonable measures to guarantee the safety of the inmates." Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

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Notwithstanding, not every injury raises constitutional concerns. A prison official violates
the Eighth Amendment only when two requirements are met. The inmate must show that: 1) he
suffered a risk of "serious" harm; and 2) prison officials showed "deliberate indifference" to such
risk. Id., 511 U.S. at 834. The first element is satisfied when the alleged "punishment" is
"objectively sufficiently serious." Id. In determining whether a prisoner has alleged a risk that is
objectively serious, a court must consider not only the seriousness of the potential harm and the
likelihood that the harm will actually occur, but evidence that unwilling exposure to that risk violates
contemporary standards of decency. In other words, the prisoner must show that the risk of which he
complains is not one that today's society chooses to tolerate. Helling v. McKinney, 509 U.S. 25, 35
(1993). The second criterion, deliberate indifference, requires an inmate to show that the prison
official had a sufficiently culpable state of mind.
The Supreme Court clarified this deliberate indifference standard in Farmer as follows.
We hold instead that a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive
risk to inmate health or safety; 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. This
approach comports best with the text of the Amendment as our cases
have interpreted it. The Eighth Amendment does not outlaw cruel
and unusual "conditions"; it outlaws cruel and unusual
"punishments." An act or omission unaccompanied by knowledge of
a significant risk of harm might well be something society wishes to
discourage, and if harm does result society might well wish to assure
compensation. . . . But an official's failure to alleviate a significant
risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the
infliction of punishment.
Farmer, 511 U.S. at 837-838 (emphasis added).

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Plaintiff alleges that the conditions of his confinement in the RHU violate the Eighth
Amendment prohibition against cruel and unusual punishment. Plaintiff fails to allege any facts to
demonstrate that the conditions of his confinement in the RHU deprived him of any basic human
need such as food, clothing, shelter, sanitation, medical care or personal safety.

Neither

classification nor confinement to segregation, either administrative or punitive, implicates the Cruel
and Unusual Punishment Clause of the Eighth Amendment unless the conditions themselves are
cruel and unusual. Hutto v. Finney, 437 U.S. 678, 686 (1978); Spaight v. Coughlin, 104 F.3d 350
(Table), 1996 WL 518507 (2d Cir. 1996), cert. denied, 117 S.Ct. 972 (1997); Young v. Quinlan, 960
F.2d 351, 363 (3d Cir. 1992); Sheley v. Dugger, 833 F.2d 1420, 1428-29 (11th Cir. 1987); Gibson v.
Lynch, 652 F.2d 348, 352 (3d Cir. 1981) ("administrative segregation and solitary confinement do
not, in and of themselves, constitute cruel and unusual punishment") (citing Hutto), cert. denied, 462
U.S. 1137 (1983).
The Constitution does not mandate comfortable prisons. Rhodes, 452 U.S. at 349. Prisons
housing "persons convicted of serious crimes cannot be free of discomfort." Id. Accord Griffin v.
Vaughn, 112 F.3d. 703 (3d Cir. 1997) (restrictive conditions in administrative custody in the
Pennsylvania state correctional institutions, in and of themselves, do not violate the Eighth
Amendment).
Plaintiff claims that his confinement in the RHU is exacerbating his mental health issues. The
RHU is a place where the worst of the worst are confined. The behavior modification utilized in
these programs is a carrot and stick approach, i.e., Plaintiff's negative behaviors are negatively
reinforced or "punished" by a substantial loss of privileges and Plaintiff is encouraged to engage in
good behavior by the incentive of granting greater privileges as he continues to engage in positive
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behaviors. Such behavior modification appears throughout the penal system, i.e., the stick of
incarceration at a greater security classification and/or higher security prison with the carrot of
greater privileges in lower security prisons or the carrot of parole should the inmate conduct himself
properly. See, e.g. Banks v. Beard, 399 F.3d 134, 136-141 (3d Cir. 2005) (describing LTSU); Rivera
v. Pa. Dept. Of Corrections, 837 A.2d 525, 529-532 (Pa. Super. 2003) (same).
The well-established rule is that discipline reasonably maintained in state prisons is not under
the supervisory direction of Federal courts. Ford v. Board of Managers of the New Jersey State
Prison, 407 F.2d 937 (3d Cir. 1969).
But so long as incarceration as a form of punishment
continues, we are required perforce to recognize that, archaic and
indefensible though it may be, its objective is to circumscribe certain
activities and opportunities not only available in, but also
characteristic of, an open societal setting. And, unpleasant as it is to
contemplate the physical restrictions of a 'settled environment', we
must also recognize that even those rights which survive penal
confinement may be diluted by peculiar institutional requirements of
discipline, safety, and security.
Gittlemacker v. Prasse, 428 F.2d 1, 3-4 (3d Cir. 1970).
It is only when confinement becomes so foul, so inhuman, and so violative of the basic
concepts of decency that a federal court should interfere with prison officials who purportedly have
the experience and expertise in matters of prison discipline. Plaintiff has failed to evidence
conditions that satisfy the objective component of an Eighth Amendment claim with respect to the
conditions alleged in the RHU.
The Superior Court of Pennsylvania rejected a similar Eighth Amendment claim regarding
the Long Term Segregation Unit (LTSU) wherein it made the following observations.

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The basic conditions in this most restrictive of units designed
for the most severe behavioral problems in the prison population are,
perhaps not surprisingly, very unpleasant. There is a regular problem
of feces throwing and the accompanying stench, which has been
recently only partially corrected by a modification of the cell doors.
Another practice of stopping up toilets until they run over and flood
the cells, is not uncommon and can lead to similar unsanitary
conditions. Although the institution has a specialized team to go in
and clean and sanitize after such incidents, the evidence suggests that
there are sometimes periods of delay during which the inmates are
residing and even eating their meals within the sight and smell of
human waste. There was no evidence, however, that inmates['] food
itself was contaminated with this waste. Although petitioners allege
that the staff actively encourage the throwing of feces, the evidence
did not support this allegation.
As noted above, the inmates in the LTSU have 23 hours of
solitary confinement in their cells per day with one hour a day in the
yard. There is considerable noise described as banging and screaming
on the unit at all hours of the day and night and the lights are left on
twenty-four hours a day. Many of the inmates are described as
suffering from mental and emotional illnesses, although the severely
mentally ill are apparently housed in a separate unit. This Court had
the opportunity to visit the Psychiatric Unit which is staffed with a
full-time nurse, and the inmates appear well managed and orderly. It
is not clear to this Court whether the mental and emotional conditions
demonstrated in the LTSU contribute or cause the extreme behavioral
issues that landed these inmates in the LTSU or whether those types
of conditions are in part caused by long periods of solitary
confinement in such a unit.
There have been problems with the heat during which the cells
have been quite cold during the winter months, although extra
blankets appear to have been available at those times. ... At times,
pepper spray is used to control unruly inmates, and the spray lingers
in the air, causing problems for the surrounding inmates.
...
To punish the LTSU inmates for misconducts, they are
sometimes put in Aalternate housing,@ which involves being put into a
cell without the inmate's property or clothing, with a smock and no
underclothing to wear, a mattress and a Asecurity blanket.@ According
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to the LTSU policy, where an inmate's misconduct has involved the
use of the mattress, such as using it to create a barricade or destroying
it for any purpose, this alternate housing would exclude a mattress
and require the inmate to sleep on a metal bed frame or on the
concrete slab. ... While in this alternate housing, if the inmate's
misconduct has involved misuse of food or utensils (cups or
containers have at times been used to collect fluids or feces to use
against staff or other inmates), the inmate will be given only a
Anutritional food loaf@ to eat during the duration of the punishment,
which is a frozen concoction of rice and some sort of starch. This is
done only for short durations until the inmate is brought into
conformity and the process is done under medical supervision. The
water is also controlled from outside the cell during these
punishments to avoid the inmate causing a flood, although water to
drink is apparently made available every few hours. ... In one
instance, Mr. Rivera testified to having been put in a Afour-point
restraint@ for a misconduct, which constituted being chained to a
metal bed frame by all four limbs, during which restraint he was
unable to use the bathroom and was forced to soil himself with urine
and feces. Prison officials noted this was after he attacked a guard
and had to be forcefully removed from his cell.
. . . A counselor is available on the unit once a month, but
must share time with all the inmates and there is no privacy for
counseling. . . . There is a system of inmate reviews which includes
monthly reviews by the Unit Management Team and quarterly
reviews by a Program Review Committee. These reviews, in addition
to the established grievance procedures, provide opportunities for the
inmates to discuss problems and grievances that they might have with
the conditions of their confinement as well as to have their behavioral
status reviewed and possibly some of their disciplinary custody time
set aside.
Rivera v. Pennsylvania Dept. of Corrections, 837 A.2d 525, 530-532 (Pa. Super. 2003). The
Superior Court held that the conditions of confinement in the LTSU, as explained above, did not
deprive the prisoners of the minimal civilized measure of life's necessities, or at least a single,
identifiable human need. Rivera, 837 A.2d at 534 (Pa. Super. 2003) (citing Wilson v. Seiter, 501
U.S. 294 (1991)).

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Put simply, the federal and state Pennsylvania courts unanimously have found that the harsh
conditions of confinement in the various restrictive housing units in the Pennsylvania state
institutions, including the most restrictive LTSU, without more, does not violate the Eighth
Amendment. See, e.g., Griffin v. Vaughn, 112 F.3d. 703 (3d Cir. 1997) (holding that the restrictive
conditions in administrative custody in the Pennsylvania state correctional institutions, in and of
themselves, do not violate the Eighth Amendment); Pressley v. Johnson, 268 Fed. App=x 181, 183
(3d Cir. 2008) (same); Walker v. Campbell, Civ. No. 09-282, 2010 WL 2891488 (W.D. Pa. May 4,
2010) (same); Fortson v. Kelchner, Civ. No. 08-532, 2009 WL 693247, at *3 (W. D. Pa. Mar. 13,
2009) (granting Defendants' Motion to Dismiss as to Plaintiff's Eighth Amendment claim regarding
confinement in the RHU and SMU); Milhouse v. Arbasak, Civ. No. 07-01442, 2009 WL 1119488, 3
(E.D. Pa. April 27, 2009) (holding that mere placement in SHU did not violate the Eighth
Amendment); Pressley v. Blaine, 544 F.Supp.2d 446, 453 (W. D. Pa. 2008) (holding that 1080 days
of disciplinary confinement did not implicate the Eighth Amendment); Dantzler v. Beard, Civ. No.
05-1727, 2007 WL 5018184, at *11-12 (W.D. Pa. Dec. 6, 2007) (holding that the conditions of
confinement in the SMU and LTSU did not amount to cruel and unusual punishment in violation of
the Eighth Amendment); Woods v. Abrams, Civ. No. 06-757, 2007 WL 2852525, 14 (W. D. Pa.
Sep. 27, 2007) (holding that the conditions of confinement in the LTSU did not satisfy the objective
component of an Eighth Amendment claim); [Gary] Banks v. Beard, Civ. No. 03-659, 2006 WL
2192015, at *11 (W. D. Pa. Aug. 1, 2006) (same).
As noted by the Honorable Richard A. Posner, Circuit Judge of the Court of Appeals for the
Seventh Circuit:

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Prison authorities must be given considerable latitude in the design of
measures for controlling homicidal maniacs without exacerbating
their manias beyond what is necessary for security. It is a delicate
balance. AFederal judges must always be circumspect in imposing
their ideas about civilized and effective prison administration on state
prison officials. The Constitution does not speak with precision to
the issue of prison conditions (that is an understatement); federal
judges know little about the management of prisons; managerial
judgments generally are the province of other branches of government
than the judicial; and it is unseemly for federal courts to tell a state ...
how to run its prison system.@ Duran v. Elrod, 760 F.2d 756, 759 (7th
Cir. 1985); see also Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Scarver v. Litscher, 434 F.3d 972, 976 -977 (7th Cir. 2006). See also Bruscino v. Carlson, 854 F.2d
162,164-65 (7th Cir. 1988).
Here, the record shows that Plaintiff is being treated for his mental illness. It is within
Plaintiff=s own ability to earn his way out of restricted housing by modifying his behavior
accordingly. His claims simply do not state a violation of his rights as protected by the Eighth
Amendment. Accord Ayers v. Campbell 267 Fed. App’x 176, 177 (3d Cir. 2008).
AND NOW, this 15th day of November, 2011;
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss the Amended Complaint
(ECF No. 35) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of
the Federal Rules of Appellate Procedure.

___________________
Lisa Pupo Lenihan
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Chief United States Magistrate Judge
cc:

Matthew Norris
ES B 4644
SCI Greene
175 Progress Drive
Waynesburg, PA 15370

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