GREEN v. HAWKINBERRY et al
Filing
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MEMORANDUM OPINION AND ORDER granting in part and denying in part 26 Motion to Dismiss. Signed by Magistrate Judge Cynthia Reed Eddy on 08/28/2014. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MUWSA GREEN,
Plaintiff,
v.
DEBRA A. HAWKINBERRY, CCPM, et
al.,
Defendants.
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Civil Action No. 2: 13-cv-01208
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION AND ORDER1
Presently pending is the Motion to Dismiss filed by Defendants (ECF No. 26), to which
Plaintiff has filed a brief in opposition (ECF No. 27). For the reasons that follow, the Motion
will be granted in part and denied in part.
Procedural History
Plaintiff, Muwsa Green, pro se, is a state prisoner currently incarcerated at SCI-Fayette.
This case was initiated on August 22, 2013, when Plaintiff submitted a handwritten Complaint.
However, the case was administratively closed the next day as Plaintiff had failed to either file an
application seeking leave to proceed in forma pauperis or to pay the requisite filing fee. The case
was reopened on October 3, 2013, after Plaintiff had completed the necessary in forma paupris
application.
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The parties have consented to jurisdiction by the undersigned Magistrate Judge. See ECF Nos.
13 and 20.
1
Thereafter, on December 9, 2013, Defendants filed a Motion to Dismiss (ECF No. 21).
Plaintiff was ordered to either file an Amended Complaint or a response in opposition on or
before January 21, 2014. Plaintiff timely filed an Amended Complaint (ECF No. 25), to which
Defendants’ have filed the instant Motion to Dismiss (ECF No. 26).
In his handwritten Amended Complaint, Plaintiff has named the following defendants:
Brian D. Coleman, Superintendent of SCI Fayette; Debra A. Hawkinberry, SCI Fayette Facility
CCPM; Frank Lewis, SCI Fayette “facility reverend;” Dorina Varner, Chief Grievance Officer
with the Pennsylvania Department of Corrections (“DOC”); and Efrain Reisner, SCI-Fayette
“facility Rabbi.” All Defendants are sued in their individual and official capacities. As relief,
Plaintiff seeks only prospective relief in that he requests to be awarded a “kosher bag” and that
the Court order Defendants to change their policy to “let prisoners practice their religion under a
class I status.”
Plaintiff generally alleges the denial of his First Amendment rights to freely exercise his
religion by being denied a “kosher bag” in violation of the Religious Land Use and
Institutionalized Person Act (“RLUIPA”), 42 U.S.C § 2000cc-1(a). Although the Amended
Complaint contains a paucity of facts, it appears that Plaintiff is claiming that while confined in
the restricted housing unit (RHU/SMU) at SCI Fayette, his request for a religious diet has been
repeatedly denied. Plaintiff claims that all Defendants have placed substantial and unreasonable
burdens on his ability to freely exercise his religion. The Amended Complaint also states that
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Defendants Coleman and Hawkinberry have created a policy that allows “constitutional violation
to occur.” Amended Complaint, at ¶ 13.2
Attached to the Amended Complaint are the following documents: (1) Form DC-135A,
Inmate’s Request to Staff Member, dated February 5, 2013, in which Plaintiff requests an
explanation from Defendant Superintendent Coleman as to why he has been denied participation
in the “Jewish fest on 2-24-2013.”
Superintendent Coleman responds, “speak with your unit
team, there was a recent change to the DC ADM 819”; (2) Form DC-135A, Inmate’s Request to
Staff Member, dated April 20, 2012, in which Plaintiff requests a kosher diet. Defendant Frank
Lewis responds on April 23, 2012, informing Plaintiff, “you are not able to have a nondairy
kosher meal. You could apply for no animal products diet;” (3) Form DC-135A, Inmate’s
Request to Staff Member, dated August 21, 2013, in which plaintiff requests from the Jewish
Rabbi an explanation of why kosher food is mandatory; and (4) a publication entitled, “Rosh
Hashanah in a Nutshell - rintable Rosh Hashanah Guide 2013.”3
Defendants have filed the instant Motion to Dismiss the Amended Complaint (ECF No.
26)4 and Plaintiff has filed a brief in opposition (ECF No. 27). The matter is ripe for disposition.
According to the Amended Complaint, "to participate in a religious ceremonial (sic), faith
must not be a privilege under the DC ADM 819 because the First Amendment protects plaintiff
(sic) right to follow the practices of his Jewish religion."
2
“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes." Fed.R.Civ.P. 10(c).
3
The Court notes that contrary to its published Chambers Rules, the instant motion was not
accompanied with a supporting brief. The Court's Chambers Rules provide that a “brief may be
omitted if the motion contains sufficient argument and legal citations to permit meaningful
judicial review." Significantly, the instant motion contains only bare bones arguments and no
legal citations.
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3
Standard of Review
1.
Pro Se Litigants
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–521 (1972). If
the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,
it should do so despite failure to cite proper legal authority, confusion of legal theories, poor
syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag
v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,
555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read
“with a measure of tolerance”).
In a § 1983 action, the court must liberally construe the pro se litigant's pleadings and
“apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.”
Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs,
165 F.3d 244, 247–48 (3d Cir. 1999)).5 See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)
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The Court of Appeals for the Third Circuit has explained the liberal construction of pro se
pleadings, as follows:
The federal rules do not adhere to the ancient principle that a pleading must be construed
most strongly against the pleader. Nor do the federal courts require technical exactness or
draw refined inferences against the pleader; rather, they make a determined effort to
understand what he is attempting to set forth and to construe the pleading in his favor,
whenever justice so requires. This is particularly true when a court is dealing with a
complaint drawn by a layman unskilled in the law. In these cases, technical deficiencies
in the complaint will be treated leniently and the entire pleading will be scrutinized to
determine if any legally cognizable claim can be found within it.
Lewis v. Attorney General of U.S., 878 F.2d 714, 722 (3d Cir. 1989) (quoting 5 C. Wright & A.
Miller, Federal Practice and Procedure § 1286, at 381-84 (1969)).
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(“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 Constitution.”) (quoting Higgins, 293
F.3d at 688). Under our liberal pleading rules, during the initial stages of litigation, a district
court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman,
116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996) (discussing
Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990) (same). 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).
Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences
where it is appropriate.
2.
Motion to Dismiss Pursuant to Rule 12(b)(6) - The Legal Standard
A motion to dismiss pursuant Rule 12(b)(6) challenges the legal sufficiently of the
complaint. When reviewing a motion to dismiss, the Court must accept all well-pleaded facts
and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff.
Burtch v. Milberg Factors, Inc., 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, -- U.S. --, 131 S.
Ct. 1861 (2012) (citing In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)).
However, as the Supreme Court of the United States made clear in Bell Atlantic Corp. v.
Twombly, such “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. 554, 555 (2007). See also Ashcroft v. Iqbal, 556 U.S. 662, 678
(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
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state a claim that is plausible on its face) (quoting Twombly, and providing further guidance on
the standard set forth therein).
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United
States Court of Appeals for the Third Circuit instructs that a district court must make a three-step
approach when presented with a motion to dismiss for failure to state a claim. Santiago v.
Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the
process as a “two-pronged approach,” it views the case as outlining three steps) (citing Iqbal, 556
U.S. at 675). First, “the court must ‘tak[e] note of the elements a plaintiff must plead to state a
claim.” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court
“should identify allegations that, ‘because they are no more than conclusions, are not entitled to
the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, ‘”where there are wellpleaded factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at 679).
Courts generally consider the allegations of the complaint, attached exhibits, and matters
of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. 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. (citations omitted). In addition, 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); Lum v. Bank of America, 361 F.3d
217, 222 (3d Cir. 2004) (in resolving a motion to dismiss pursuant to Rule 12(b)(6), a court
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generally should consider “the allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim.”).
Moreover, the United States Court of Appeals for the Third Circuit has held that, in civil
rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a
claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
Background6
According to the Amended Complaint, DC ADM 819 provides that “participation in
religious holy day observances, including ceremonial meals, will be limited to those inmates who
have participated in at least half of the primary worship gatherings which have taken place six
months prior to the observance.” Amended Complaint at ¶ (B)1. Plaintiff contends that although
he has been misconduct free for over six (6) months and has been participating in the Jewish
faith since 2012, he has “repeatedly” been denied a religious diet. He refiled a
religious
accommodation form on May 17, 2013, where his request for a religious diet again was denied.
On May 27, 2013, Plaintiff received a notice from Defendant Lewis stating that his request for a
religious kosher bag was “denied because of plaintiff’s failure to demonstrate a sincerely held
religious belief.” Amended Complaint, at ¶ (B)5.
Thereafter, Plaintiff filed a grievance for “deprivation of his constitutional right to follow
the practice of his religion and also showed that the prison interests is not reasonably related to
As the law requires, all disputed facts and inferences are resolved in favor of Plaintiff, the
non-moving party.
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penological interests.” Id. at (B)6. On June 10, 2013, Defendant Hawkinberry denied the
grievance. Plaintiff then appealed the grievance denial to Superintendent, Defendant Coleman,
who denied the appeal on July 2, 2013.. Thereafter, Plaintiff appealed the decision to Defendant
Varner, the DOC Chief Grievance Officer, who denied the grievance on August 6, 2013.
Plaintiff alleges that Defendants each have violated his rights under the free exercise
clause of the First Amendment and the RLUIPA. The crux of Plaintiff’s claim appears to be that
prison officials have placed substantial and unreasonable burdens on his ability to freely exercise
his religion. For example, Plaintiff contends that Defendants failed to ask him any religious
questions to ascertain whether he did in fact have an understanding of the Jewish faith before
denying his request for a kosher bag.
Discussion
Defendants’ sole argument for dismissal is that the allegations of the Amended Complaint
fail to allege that Defendants were personally involved in any of the alleged constitutional
misconduct. Specifically, Defendants argue that the Amended Complaint fails to (1) allege how
Defendants Hawkinberry, Coleman, and Varner had any direct involvement in the purported
constitutional violations and (2) allege how Defendants Lewis and Reisner violated Plaintiff’s
constitutional rights.
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, 1141–42 (3d Cir.1990). Civil
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rights claims brought 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.
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] 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). Therefore, any attempt by a plaintiff to establish
liability against a defendant based upon the handling of his administrative grievances or
complaints does not support a constitutional claim. See also Alexander v. Gennarini, 144 F.
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App’x 924, 925 (3d Cir. 2005) (involvement in post-incident grievance process not a basis for §
1983 liability).
Defendant Varner is clearly employed in a supervisory capacity by the DOC as its Chief
Grievance Officer. The only specific allegation against Defendant Varner stems from her reading
and denying Plaintiff’s grievance appeal. There are no allegations that Defendant Varner was
involved in the day-to-day operations at SCI-Fayette, or, more importantly, in the alleged
constitutional deprivations suffered by Plaintiff.
Based upon the standards announced in Rode, Defendant Varner is clearly entitled to
entry of dismissal since it is apparent that Plaintiff is attempting to establish liability against her
due to her handling of his grievance appeal. Accordingly, dismissal will be entered in favor of
Chief Grievance Officer Varner. Plaintiff will not be granted leave to amend his claim against
Defendant Varner as doing so would be futile.
However, with respect to Defendants Coleman and Hawkinberry, it is alleged that these
defendants created a policy that allowed constitutional violations to occur. Further, with respect
to Defendants Lewis and Reisner it is alleged that these Defendants failed to ask Plaintiff
religious questions to determine whether he had an understanding of the Jewish faith before
denying his request for a kosher bag. The argument for dismissal for non-personal involvement
will be denied with respect to these four defendants.7
Plaintiff argues that under Turner v. Safley, 482 U.S. 78 (1987), Defendants’ failure to provide
kosher meals was not rationally related to a legitimate penological concern. The Court notes that
the matter presently before it is a motion to dismiss not a summary judgment motion. The parties
will have an opportunity to develop a factual record on the Turner factors.
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The Court recognizes that discovery may well reveal that the alleged conduct of these
four defendants does not give rise to a cognizable § 1983 claim, but at this early stage of the
litigation, the allegations of the Amended Complaint must be accepted as true and all reasonable
inferences must be drawn in Plaintiff’s favor.
Conclusion
For the above reasons, the Motion to Dismiss will be granted in favor of Defendant Chief
Grievance Officer Varner on the basis of lack of personal involvement. In all other respects, the
Motion to Dismiss will be denied. An appropriate order follows.
ORDER
AND NOW, this 28th day of August, 2014,
It is hereby ORDERED that Defendants’ Motion to Dismiss is GRANTED IN PART
and DENIED IN PART as follows:
The Motion is GRANTED as to Defendant Varner and she is hereby dismissed with
prejudice from this lawsuit. The Motion is DENIED in all other respects.
In accordance with Federal Rule of Civil Procedure 12(a)(4)(A), the responsive pleading
of Defendants Hawkinberry, Coleman, Lewis, and Reisner shall be served on or before
September 11, 2014.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
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cc:
MUWSA GREEN
HV-5362
SCI Fayette
Box 9999
LaBelle, PA 15450
Sandra A. Kozlowski
Pennsylvania Office of Attorney General
Email: skozlowski@attorneygeneral.gov
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