RILEY v. DECARLO et al

Filing 10

MEMORANDUM ORDER indicating that the Court, after reviewing the complaint 5 , the motion for preliminary injunction 6 , the supporting memorandum of law 7 , and particularly the nature of the allegations concerning Plaintiff's diet, and after giving the pro se pleadings liberal construction, Estelle v. Gamble, 429 U.S. 97, 106 (1976), decided to consider whether Plaintiff was or was not entitled to a temporary restraining order on the issues relating to his diet prior to formal service o n the Defendants. In light of the facts and considering the case law cited on the record during the course of the proceedings, the Court now holds that the Plaintiff is not entitled to a temporary restraining order and to the extent Plaintiff's pleadings or motion can be construed that he has requested a temporary restraining order, said request is denied, without prejudice; The hearing was transcribed and if any party desires a copy of the transcript it can be requested by contacting the chambers of Judge Fischer, at which time an appropriate order shall be entered. This matter is now referred back to Magistrate Judge Cathy Bissoon for further proceedings. Signed by Judge Nora Barry Fischer on 5/3/11. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NATHAN RILEY,

)
Plaintiff,
)
)
vs.
)
)
MICHAEL DECARLO, Correctional Food )
Service
Manager
;1
WALLACE )
DITTSWORTH, Correctional Food Service )
Manager 2; JEFF ROGERS, Correctional )
Classification Program Manager; LOUIS )
FOLINO, Superintendent; REV. ALEDA )
MENCHYK, Facility Chaplaincy Program )
Director; NEDRO GREGO, RN Supervisor; J. )
NIEHENKE, Former Safety Manager; FNU )
CUMBERLEDGE, Safety Manager; STEVE )
BLAZE, Facility Maintenance Manager 3; )
DORINA VARNER, Chief Grievance Officer; )
JEFFREY A. BEARD, Former Secretary of )
Corrections,
)
Defendants.
)

Civil Action No. 2:11-537
Judge Nora Barry Fischer

MEMORANDUM ORDER
Plaintiff Nathan Riley (“Plaintiff”) is a State prisoner currently housed at the State
Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. Plaintiff brings
this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging that Defendants
violated his rights under the First, Eighth, and Fourteenth Amendments to the Constitution of the
United States. (Docket No. 1 at 3). Plaintiff also raises claims under the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq., as well as
various State law claims. Id. This suit commenced on April 26, 2011, with the receipt of the
complaint.

Id.

Plaintiff was granted leave to proceed in forma pauperis (“IFP”) on

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April 28, 2011. (Docket No. 4). As of the date of this writing, no Defendant has been served the
complaint.
Plaintiff‟s complaint contains factual allegations concerning a variety of issues. Germane
to this order are Plaintiff‟s allegations concerning the nutritional adequacy of his diet.
Specifically, Plaintiff alleges that he is fed a diet of “approximately 1000 calories per day as
opposed to the 2800 calories that general population prisoners are . . . provided . . . .”
(Docket No. 1 at 3). He further states that the alleged nutritional inadequacy of his diet has
spanned over a period of years, and “has resulted in substantial weight loss of approximately 30
plus pounds.” Id.
Filed contemporaneously with the complaint is Plaintiff‟s motion for preliminary
injunction. (Docket No. 1-1). In this document, Plaintiff seeks preliminary injunctive relief with
respect to several claims raised in his complaint, including the number of calories in his diet.1
(Docket No. 1-1 at 3).
In an effort to effectuate the hearing, the Court discussed the matter on April 29, 2011
with Tracey Shawley, who is responsible for the lawsuits filed against SCI Greene, solely to
determine who could represent the defendants in the event there was a need for a prompt

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Plaintiff mentions the sufficiency of his diet in his preliminary injunction motion only in
his prayer for relief. (Docket No. 1-1 at 3). Interpreting his motion to encompass that issue
requires a liberal reading of the motion. However, given the liberal standards to which pro se
filings are held, cf. Haines v. Kerner, 404 U.S. 519, 520 (1972), the troubling and time-sensitive
nature of Plaintiff‟s allegations, and the fact that this motion was filed contemporaneously with
the complaint (in which Plaintiff provides more information regarding these allegation), such an
interpretation is appropriate. Furthermore, this Court notes that the length of time necessary for
service of process to be effectuated in the average pro se prisoner civil rights case – which can be
on the order of months, depending on how many defendants must be served, and how long it
takes an indigent prisoner plaintiff to make service copies and complete the necessary forms –
supports the conclusion that treating this issue as a motion for TRO is proper.
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temporary restraining order (“TRO‟) hearing. Shawley investigated who from the AG‟s office
would represent SCI Greene and the Court was contacted by Scott Bradley, Esq. (“Mr. Bradley”)
of that office. In this vein, Shawley requested and received the complaint by email. However,
this email transmission does not constitute service on any Defendant.
Plaintiff appeared by phone and the Defendants were represented specially by Mr.
Bradley, by phone, as none of the Defendants had been served.

The Court reviewed the

Plaintiff‟s allegations and reviewed the standard for the issuance of a TRO in this context, citing
numerous cases. Meekins v. Law, 2006 WL 3762057, at *3-4, Civ. Act. No. 06-1321 (M.D. Pa.
Dec. 21, 2006); Riley v. Snyder, 72 F.Supp.2d 456 (D.Del. 1999); Falciglia v. Erie County
Prison, 2006 WL 4065911, at *1-2, Civ. Act. No. 06-192E (W.D Pa. Oct. 10, 2006); Bryant v.
Nolan, 2009 WL 2843902, at *2, Civ. Act No. 09-2672 (D.N.J. Sept. 1, 2009); Bronson v. Co
Houdeshell, 2006 WL 3051863, at *1, Civ. Act. No. 05-2357 (M.D. Pa. Oct. 24, 2006); Bronson
v. Neal, 2010 WL 3239381, at *2, Civ. Act. No. 10-530 (M.D. Pa. Aug. 16, 2010); Sanders v.
Beard, 2010 WL 2853113, at *1, Civ. Act. No. 09-1384 (M.D. Pa. July 20, 2010); Steward v.
Beard, 2010 WL 2034701, at *1, Civ. Act. No. 07-1916 (M.D. Pa. May 18, 2010); McKinney v.
Kelchner, 2007 WL 2852373, at *3, Civ. Act. No. 05-205 (M.D. Pa. Sept. 27, 2007); Holmes v.
Chiarelli, 2010 WL 4781103, Civ. Act. No. 07-1477 (M.D. Pa. Nov. 17, 2010). The Court then
asked Mr. Bradley for his clients‟ position, wherein he advised that they were adverse to the
entry of a TRO. To that end, he detailed Ms. Shawley‟s investigation to date. Thereafter,
Plaintiff was sworn and answered the Court‟s questions under oath. In sum, the Court received
the following information:
Plaintiff was released from the RHU on December 17, 2010. Plaintiff is now in a general
housing unit. Plaintiff goes to the dining area and goes through the cafeteria line. The cafeteria
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meals meet minimum caloric requirements. SCI Greene has dieticians who monitor dietary
intake. It is up to the inmates to eat what is served. Plaintiff has not filed any grievances
regarding caloric intake. The dining area provides a “no animal product” diet. According to Mr.
Bradley, the problem is that Plaintiff is Muslim and appears to be seeking kosher food. Religious
dietary requirements must be requested through the religious accommodations committee.
Plaintiff‟s complaint is that Plaintiff has petitioned the religious accommodations committee but
is still not being provided the diet Plaintiff requested. Plaintiff has grieved and was denied in
November of 2010. He has appealed and was unsuccessful. Plaintiff states he is not eating
certain foods because Plaintiff does not believe they have kosher ingredients. Plaintiff, however,
has been able to accommodate his caloric needs with food he obtains from the cafeteria and/or
commissary, such as potato chips. There are no notes in Plaintiff‟s medical records about
complaints of weight loss. He has been on no sick calls related to same. Instead, on March 7,
2011 Plaintiff was at sick call about a respiratory issue. There was no mention of weight loss at
that time. Plaintiff is 5‟9”. Plaintiff weighs 158 pounds as of June 2010. Such height and weight
do not appear to this Court to be unhealthy for a man in his 30s.2
The Court, after reviewing the complaint (Docket No. [5]), the motion for preliminary
injunction (Docket No. [6]), the supporting memorandum of law (Docket No. [7]), and
particularly the nature of the allegations concerning Plaintiff‟s diet, and after giving the pro se
pleadings liberal construction, Estelle v. Gamble, 429 U.S. 97, 106 (1976), decided to consider
whether Plaintiff was or was not entitled to a temporary restraining order on the issues relating to
his diet prior to formal service on the Defendants. In light of the facts and considering the case

2

See Body Mass Index (“BMI”) Table.
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law cited on the record during the course of the proceedings, the Court now holds that the
Plaintiff is not entitled to a temporary restraining order and to the extent Plaintiff‟s pleadings or
motion can be construed that he has requested a temporary restraining order, said request is
DENIED, without prejudice. “[T]he grant of injunctive relief is an „extraordinary remedy which
should be granted only in limited circumstances.‟” AT&T v. Winback & Conserve Program, Inc.,
42 F.3d 1421, 1426-27 (3d Cir.1994) (quoting Frank’s GMC Truck Center, Inc. v. General
Motors Corp., 847 F.2d 100, 102 (3d Cir.1988)). This is not one of them.
The hearing was transcribed and if any party desires a copy of the transcript it can be
requested by contacting the chambers of Judge Fischer, at which time an appropriate order shall
be entered. This matter is now referred back to Magistrate Judge Cathy Bissoon for further
proceedings.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: May 3, 2011
cc/ecf: Nathan Riley
CT 8571
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Scott Bradley, Esq.
Office of Attorney General
Manor Building, 6th Floor
564 Forbes Ave.
Pittsburgh, PA 15219

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