ASHFORD v. HAWKINBERRY et al
Filing
79
MEMORANDUM OPINION re 65 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by BRIAN COLEMAN, GARLAND, EGROS, PLETCHER, PARKER, PELLIS, BRIAN TANNER, ERIC B. PORTER, RICHTER, HALEY, NEWMAN, DONGILLI, LOWTHER, WORKMAN, DISALVA, ASHLEY COTTON, FRIEND, FORTE, ROBERT HAWKINBERRY. Signed by Magistrate Judge Cynthia Reed Eddy on 6/2/2016. (jlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
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AILEAF ASHFORD,
Plaintiff,
vs.
ROBERT HAWKINBERRY, LT. PARKER,
CAPTAIN WORKMAN, LT. LOWTHER,
SGT. RICHTER, SGT. PLETCHER, SGT.
FRIEND, ASHLEY COTTON, C.O.
DONGILLI, C.O. PELLIS, C.O. EGROS,
C.O. DI SALVA, C.O. GARLAND, C.O.
HALEY, C.O. NEWMAN, SGT BRIAN
TANNER, BRIAN COLEMAN,
SUPERINTENDENT; ERIC B. PORTER,
ADMINISTRATOR OF THE EST ATE OF
BRADEN MCKNIGHT; AND CAPTAIN
FORTE,
Defendants,
2:14-CV-01718-CRE
MEMORANDUM OPINION 1
CYNTHIA REED EDDY, United States Magistrate Judge.
I.
INTRODUCTION
Presently pending before the Court for disposition is Defendants' motion to dismiss for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) [ECF No. 65]. The
motion is fully briefed and ripe for disposition. For the reasons that follow, Defendants' motion
to dismiss is granted in part and denied in part.
II.
BACKGROUND
For purposes of this decision, all of the factual allegations of the events giving rise to this
All parties have consented to jurisdiction before a United States Magistrate Judge;
therefore the Court has the authority to decide dispositive motions, and to eventually enter final
judgment. See 28 U.S.C. § 636, et seq.
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complaint are considered true and all inferences will be drawn in Plaintiffs favor. Plaintiff,
Aileaf Ashford, proceeding pro se, is a prisoner currently in the custody of the Pennsylvania
Department of Corrections ("DOC") in the State Correctional Institution at Forest ("SCI
Forest"). The events giving rise to this lawsuit occurred while Plaintiff was housed at SCIFayette in 2014. Generally, Plaintiff alleges that certain members of the corrections staff and
supervisors subjected him to unsafe and unsanitary living conditions and retaliated against him
for filing grievances about said conditions.
Plaintiff initiated this action against numerous
corrections officers and officials alleging that the defendants violated his constitutional rights
under the First and Eighth Amendments, denied him access to the courts, and were negligent in
their duties.
I. Plaintiff's Slip and Fall
Plaintiff is confined to the Restricted Housing Unit ("RHU") and is confined to his cell
for twenty-three hours per day. On January 30, 2014 he was escorted to the yard by RHU staff at
7:30 a.m. Plaintiff claims that the outside temperature was excessively low, and he asked to be
escorted back to his cell. His request was denied, and he remained in the yard. To keep warm,
Plaintiff paced in circles while trying to avoid a pile of snow and patches of ice in the yard.
Nevertheless, Plaintiff slipped and fell on a patch of ice and injured his knee and back. The next
day, on January 31, 2014, he was seen by the medical department and diagnosed with a muscle
strain and given Motrin 400 mg three times a day for five days. Plaintiff was again seen by the
medical department on or about February 10, 2014 and an x-ray was taken of Plaintiffs knee and
showed degenerative changes due to modest osteoarthritis. He was prescribed Naprosyn and
Elavil. Plaintiff submitted a grievance on February 18, 2014. While Plaintiff does not explicitly
describe the subject matter of the grievance, it is assumed that he complained that he was
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subjected to excessive cold by being forced to the yard and also complained about slipping and
falling on un-cleared ice in the yard. Plaintiff alleges that a correctional officer opened the box
and read Plaintiffs grievance. The next morning, on February 19, 2014, Plaintiff was informed
by Defendant Sgt. Richter that he would not be allowed to go outside. That same day, Lt.
Hawkinberry informed Plaintiff that he would not be allowed to go outside because he submitted
a grievance about the unsafe conditions of the yard. Plaintiff was "denied yard" or not permitted
to go outside until March 11, 2014 because of the grievance he submitted about the conditions.
2. Plaintiff's Plumbing Issues in his Cell
On May 1, 2014, Plaintiffs toilet stopped working in his cell and was unable to flush.
Plaintiff was unaware that it was broken until after he defecated that night. Plaintiff told the
attending corrections officer on duty that his toilet had stopped flushing and that there was
excrement in it. The corrections officer told Plaintiff that he would submit a work order and that
Plaintiff should write a request to Lt. Hawkinberry.
Plaintiff wrote a request slip to Lt.
Hawkinberry the next day, on May 2, 2014, stating the issue.
Plaintiff also informed the
attending corrections officer ("C.O.") Costello, that his toilet was not working and that
excrement was in the toilet. C.O. Costello told Plaintiff that he would report it. Later that day,
Plaintiff also informed C.O. Skrobac about the plumbing issues and C.O. Skrobac informed
Plaintiff that he would report the issue. Plaintiff also informed C.O. McKnight of this issue and
that it was beginning to "reek" in his cell, and C.O. McKnight informed Plaintiff that he would
see what he could do about it. A short while later, Plaintiff informed C.O. Wilson of the issue, to
which C.O. Wilson responded he would report the issue. At approximately 5:15 p.m., C.0.'s
McKnight and Wilson attempted to reset his toilet to get it to flush, but were not successful.
Plaintiff then asked C.O. McKnight and C.O. Wilson to move him to one of the five empty cells
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on the unit. The officers informed him that they would have to ask Sgt. Fletcher before moving
him. Later that evening, C.O. McKnight informed Plaintiff that this request had been denied by
Sgt. Fletcher. Plaintiff, after holding his bowels the entire day, relieved himself again in the
broken toilet.
On May 3, 2014, Plaintiff awoke to a "pungent" odor and decided to limit his intake of
food and fluids due to his broken toilet. Plaintiff again asked four separate C.O.'s, McKnight,
Bigelow, Eicher, and DiSalva to be moved to another cell, but was not moved. Plaintiff then
spoke with Sgt. Fletcher who informed Plaintiff that he would put in a work order for the toilet.
The toilet was not fixed, nor was Plaintiff moved from his cell on May 3, 2014.
The next day, on May 4, 2014 as the breakfast trays were distributed, Plaintiff twice
informed C.O. 's Ergos and Pellis that his toilet had been broken for four nights, and requested
that he be moved to a different cell.
C.O Ergos and C.O. Pellis began making jokes about
Plaintiffs toilet being broken and the putrid smell emanating from his cell. C.O. Ergos told
Plaintiff to "file a grievance like you always do." C.O. Ergos and C.O. Pellis continued to
ridicule Plaintiff and shouted insults at Plaintiff while they walked down the cell block. Plaintiff
noticed insects crawling and flying out of the vent and around his cell. Plaintiff again spoke with
C.O. DiSalva informing him that the toilet had not been fixed and requested to be moved to
another cell. C.O. DiSalva again told Plaintiff he would pass along the information to Sgt.
Friend. When C.O. 's Ergos and Pellis distributed lunch trays, Plaintiff again informed them of
the toilet issue and asked to be moved out of the cell. Plaintiff limited his intake of food and
fluids due to his broken toilet again on May 4, 2014. The toilet was not fixed, nor was Plaintiff
moved from his cell on May 4, 2014.
The next day, on May 5, 2014, Plaintiff awoke to many more insects roaming his cell and
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was experiencing severe stomach pain. Plaintiff informed C.O. 's Garland and Dongilli about the
issue and requested to be moved to another cell. Plaintiff also informed Sgt. Richter that this
was an ongoing issue for the past five days and requested that he be moved. Sgt. Richter refused
to move Plaintiff from his cell, but informed Plaintiff that he would contact maintenance about
the issue. Plaintiff also informed C.O. Pashka about the plumbing issue.
Plaintiff reported
experiencing lightheadedness, dizziness, and stomach pains throughout the day.
On May 6, 2014, Plaintiff awoke to more insects in his cell and more hovering outside of
his cell. While C.O. Garland was passing out breakfast trays, he made jokes about the odor
coming from Plaintiffs cell and made jokes about the insects flying around Plaintiffs cell.
While Plaintiff does not indicate whether he was moved, or the plumbing issues were ultimately
resolved, he does not complain of any plumbing issues after May 6, 2014.
3. Failure to Receive Copies of Documents for Grievance Appeal
On May 5, 2014, Plaintiff sent grievance appeals and attachments to the library to be
copied and returned by May 8, 2014, so that the copies could be sent out on May 9, 2014 to the
Central Office for final appeal. On May 8, 2014, the library cart containing the library books and
copies arrived, but C.O.'s Garland and Haley refused to give Plaintiff his copies on May 8, 2014
and May 9, 2014, despite Plaintiff explaining to them that he had to meet filing deadlines. On
May 9, 2014 and May 10, 2014, C.O.'s McKnight and Newman refused to return Plaintiffs
copies. On May 10, 2014, Sgt. Fletcher refused to return Plaintiffs copies. That same day, an
inmate block worker informed Plaintiff that his copies were on the cart in the hallway, but the
C.0.'s were not going to allow Plaintiff to send his grievance to the Central Office for appeal.
On May 17, 2014, Plaintiff was summoned to Lt. Hawkinberry's office, and Lt.
Hawkinberry attempted to get Plaintiff to withdraw the grievance regarding his broken toilet
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(508476) and another grievance (509029). Lt. Hawkinberry told Plaintiff that he would give him
a copy of the missing documents ifhe withdrew his grievances.
Again, on May 23, 2014, Plaintiff was summoned to Lt. Hawkinberry's office and Lt.
Hawkinberry informed Plaintiff that he would receive his copies if he withdrew his grievances
and if he did not, Lt. Hawkinberry would "make it hard" for Plaintiff. Plaintiff refused to
withdraw his grievances and did not receive his copies and missed the deadline to file his
grievance appeal to the Central Office for final review.
4. Failure to Receive Magazine Subscriptions
Starting on February 14, 2014, Plaintiff did not receive his "Star" magazine and did not
receive it for six weeks. Plaintiff wrote to the magazine to confirm delivery to SCI Fayette, and
the magazine company confirmed that his issues had been delivered. Plaintiff informed Sgt.
Tanner of this issue, and Sgt. Tanner replied that "stuff comes up missing when you file
grievances on staff."
III.
ST AND ARD OF REVIEW
Defendants presently seek dismissal of Plaintiffs Eighth Amendment claims, access to
courts claim, and civil conspiracy claim.
Defendants do not seek dismissal of Plaintiffs
retaliation claim.
1. Pro se pleadings
Primarily, a pro se pleading is held to a less stringent standard than more formal
pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106(1976); Haines v. Kerner, 404
U.S. 519, 520 (1972).
As such, a prose complaint pursuant to 42 U.S.C. § 1983 must be
construed liberally, Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002), so "as to do
substantial justice." Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citations omitted).
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Under the Prison Litigation Reform Act ("PLRA"), where a pro se prisoner proceeds with his
action informa pauperis, the court must dismiss, at the earliest practicable time, any claims that
are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendants who is
immune from such relief. 28 U.S.C. § 1915(e)(2). A complaint is frivolous if it "lacks an
arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The present
action is subject to sua sponte screening for dismissal under the PLRA, as Plaintiff proceeds as
an indigent. See e.g., Simms v. Freeman, 428 F. App'x 119, 120 (3d Cir. 2011).
2. Motion to Dismiss for Failure to State a Claim Pursuant to Federal Rule of Civil
Procedure J2(b)(6)
To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), "a complaint
must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The reviewing court must "determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny,
515 F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is
proper where the factual allegations of the complaint conceivably fail to raise, directly or
inferentially, the material elements necessary to obtain relief under a legal theory of recovery.
Twombly, 550 U.S. at 561 (citations omitted). Thus, "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678
(2009) (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be
separated, with the court accepting all well-pleaded facts as true and disregarding all legal
conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this
standard, civil complaints "must contain more than an unadorned, the-defendant-unlawfullyharmed-me accusation." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
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(internal quotations omitted). A court in making this determination must ask "not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support
the claim." Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974)
(internal quotations omitted)).
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
court may take into consideration "the allegations contained in the complaint, exhibits attached
to the complaint and matters of public record" as well as "undisputedly authentic document[s]
that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on
the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F .2d 1192, 1196
(3d Cir. 1993 ).
Although a district court may not generally consider matters extraneous to
pleadings when ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), it may consider documents integral to or explicitly relied upon in a complaint without
converting the motion to dismiss into a motion for summary judgment. West Penn Allegheny
Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 (3d Cir. 2010); In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis added). Accordingly, the Court may take
into consideration Plaintiff's grievances and appeal documents attached to Defendants' motion to
dismiss without converting Defendants' motion into one for summary judgment.
IV.
DISCUSSION
1. 42
u.s.c. § 1983
Plaintiff brings his constitutional claims pursuant to 42 U.S.C. § 1983. Section 1983
provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
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secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress ....
42 U .S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution
and federal statutes that it describes." City of Monterey v. Del Monte Dunes, 526 U.S. 687, 749 n.
9, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3,
99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). In order for a plaintiff to adequately state a claim under
Section 1983, he must establish that the defendants deprived him of a right secured by the United
States Constitution acting under color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137,
1141 (3d Cir. 1995).
2. Eighth Amendment Cruel and Unusual Punishment Claim
Plaintiff seeks to invoke liability under the Eighth Amendment, which 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27,
104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).
Notwithstanding, not every injury raises constitutional concerns. A pnson 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. Farmer, 511 U.S. at 834. The first element is satisfied when the
alleged "punishment" is "objectively sufficiently serious." Id. In determining whether a prisoner
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has alleged a risk that is objectively serious, a court must consider not only the seriousness of the
potential hann 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, 113 S.Ct. 2475, 125 L.Ed.2d 22 (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).
a. Deliberate Indifference to Plaintiff's Safety
Plaintiff first alleges that the prison officials were deliberately indifferent to his safety
when they forced him out on yard during a cold winter day and he fell on a patch of ice and
injured his knee and back. These allegations do not give rise to a substantial risk of serious harm
or challenge the common standards of decency, nor do these allegations demonstrate deliberate
indifference for purposes of asserting an Eighth Amendment violation. See Clayton v. Morgan,
No. CIV.A. 11-623, 2012 WL 1448332, at *3 (W.D. Pa. Feb. 16, 2012), report and
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recommendation adopted, No. CIV.A. 11-623, 2012 WL 1454889 (W.D. Pa. Apr. 26, 2012)
(collecting cases), affd, 501 F. App'x 174 (3d Cir. 2012) (forcing plaintiff-inmate into the yard
with icy conditions did not state a claim under the Eighth Amendment and sounded in
negligence). Plaintiffs allegations sound in negligence, which is not actionable under section
1983. See Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (a lack
of due care by prison officials does not state a claim under either the substantive or the
procedural aspects of the Due Process Clause).
"A 'slip and fall,' without more, does not
amount to cruel and unusual punishment. ... Remedy for this type of injury, if any, must be
sought in state court under traditional tort law principles." Clayton, 2012 WL 1448323, at *3
(quoting Mitchell v. West Virginia, 554 F.Supp. 1215, 1217 (N.D.W.Va.1983). See also Brinkley
v. Smeal, No. l:CV-10-00224, 2010 WL 5391276, at *5 (M.D. Pa. Dec. 22, 2010) (dismissing
plaintiff-inmate's Eighth Amendment claim with prejudice as "slipping and falling on ice fails to
state an Eighth Amendment claim.").
Accordingly, Plaintiffs Eighth Amendment claim insofar as he alleges that the
Defendants were deliberately indifferent to his safety by subjecting him to an icy yard where he
slipped and fell is dismissed with prejudice, as it would be futile to allow him to amend his
complaint.
b. Conditions of Confinement
Next, Plaintiff alleges that the Defendants violated the Eighth Amendment by ignoring
the plumbing issues with his toilet that Plaintiff reported to numerous prison officials and
subjecting him to an unsanitary environment for five days by not moving him to a different cell
when his toilet would not flush, was full of excrement and insects starting accumulating in his
cell because of the foul odor. Plaintiff also alleges that he limited his intake fluids or food during
11
this time, experienced stomach pain and lightheadedness, and did not have adequate access to a
bathroom for this period of time.
Under the Eighth Amendment, prison officials must provide humane conditions of
confinement by ensuring that inmates receive adequate food, clothing, shelter and medical care,
and "take reasonable measure to guarantee the safety of the inmates." Rhodes v. Chapman, 452
U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981); Tillman v. Lebanon Cty. Corr.
Facility, 221 F.3d 410, 418 (3d Cir. 2000). The inmate must allege that he had suffered an
objectively sufficiently serious injury and prison officials were deliberately iridifferent in
inflicting this injury. Tillman, 221 F .3d at 418. "[E]xtreme deprivations are required to make out
a conditions-of-confinement claim.
Because routine discomfort is part of the penalty that
criminal offenders pay for their offenses against society, ... only those deprivations denying the
minimal civilized measure of life's necessities are sufficiently grave to form the basis of an
Eighth Amendment violation." Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L.
Ed. 2d 156 (1992) (internal quotations and citations omitted). A prison's condition will violate
the Eighth Amendment where, considering the "totality of the conditions within the
institution[,]" either alone or in combination with other conditions of confinement, "deprive
inmates of the minimal civilized measure of life's necessities." Tillery v. Owens, 907 F.2d 418,
426 (3d Cir. 1990) (citations omitted). Generally, the denial of access to a lavatory has been
found to violate the Eighth Amendment "where it is unconscionably long or where it constitutes
an ongoing feature of an inmate's confinement." Cook v. Wetzel, No. CIV.A. 13-6575, 2015 WL
2395390, at *5 (E.D. Pa. May 20, 2015). The lack of access to restroom facilities violates the
Eighth Amendment where it compromises the psychological or physical health of the inmate.
Young v. Quinlan, 960 F.2d 351, 365 (3d Cir. 1992).
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Here, we find that Plaintiff has stated an Eighth Amendment claim for Defendants'
failure to provide him with adequate access to a working toilet for five days and subjecting him
to unsanitary living conditions for that period of time by forcing him to remain in a cell with raw
sewage and swarming insects after Plaintiff repeatedly reported the problem to countless prison
officials over the five days, asked to be moved to one of the five empty cells on the unit and
submitted multiple unanswered grievances on the matter. What is more, Plaintiff was forced to
endure these conditions for 23 hours a day, as he was confined to his cell in the RHU, and
alleges that he limited his intake of food and water for five days to prevent himself from having
to use the toilet. Such a practice is a danger to Plaintiffs health, dignity and hygiene. Plaintiffs
allegations are in line with other cases that have found the denial of the access to restroom
facilities and unsanitary living conditions violated the Eighth Amendment. See Hope v. Pelzer,
536 U.S. 730, 734, 122 S. Ct. 2508, 2512, 153 L. Ed. 2d 666 (2002) (inmate was handcuffed to
hitching post and forced to stand shirtless in the sun for seven hours while deprived of any water
or restroom facilities demonstrated an Eighth Amendment violation); Young, 960 F.2d at 365
(inmate placed in "dry" cell with no toilet or wash basin, permitted only one bathroom break in
four days, forced to relieve himself in the corner of his cell, given no toilet paper despite
suffering from diarrhea, was not permitted to wash his hands before eating and denied water and
told to drink his own urine); Tillery, 907 F.2d at 426 (inadequate plumbing violates the
Constitution); Palmer v. Johnson, 193 F.3d 346, 352-54 (5th Cir. 1999) (inmate required to sleep
outside for seventeen hours with forty-eight other inmates and forced to openly urinate and
defecate in an area measuring twenty feet by thirty feet stated an Eighth Amendment claim);
Carver v. Knox Cty., Tenn., 753 F. Supp. 1370, 1389 (E.D. Tenn.), ajfd in part, rev'd in part on
other grounds, 887 F .2d 1287 (6th Cir. 1989) ("functioning sinks, toilets and showers are basic
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necessities of modem life, particularly within the confines of a wholly self-contained
environment such as a jail.").
Accordingly, Plaintiff has stated an Eighth Amendment claim for the conditions of his
confinement and Defendants' motion to dismiss is denied.
3. Denial of Access to Courts Claim
While unclear from the complaint, it seems that Plaintiff's denial of access to courts
claim stems from certain corrections officers failing to return copies of his grievances so he
could timely appeal to Central Office for final appeal. Thus, it appears he alleges that he was
denied access to the prison grievance system, and not to this Court.
While prisoners have a constitutional right of access to courts under the First and
Fourteenth Amendments of the United States Constitution, Bounds v. Smith, 430 U.S. 817, 821,
97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Monroe v. Beard, 536 F.3d 198, 205 (3d Cir.2008), it is
well-established that inmates do not have a constitutionally protected right to a prison grievance
system. Freeman v. Dep't of Corr., 447 F. App'x 385, 387 (3d Cir.2011). Therefore, even if
Defendants "denied Plaintiff the grievance process or obstructed the grievance procedure, [that,]
by itself, simply does not give rise to a cognizable independent claim." Rieco v. Scire, No. 2:13CV-1360, 2014 WL 5343221, at *4 (W.D. Pa. Oct. 20, 2014) (citing Heleva v. Kramer, 214 F.
App'x 244, 247 (3d Cir.2007); Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (collecting
cases); Allen v. Warden of Dauphin Cnty. Jail, No. 07-1720, 2008 WL 4452662, at *5 (M.D.Pa.
Sept. 29, 2008) (holding a prison official's refusal to provide grievance forms or respond to an
inmate's complaint does not constitute a violation of due process)).
Accordingly, because Plaintiff cannot state a constitutional violation for the Defendants
allegedly withholding copies of grievances and attachments to send for final appeal, his denial of
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access to courts claim is dismissed with prejudice, as amendment would be futile.
4. Civil Conspiracy Claim
To demonstrate the existence of a conspiracy under Section 1983, "a plaintiff must show
that two or more conspirators reached an agreement to deprive him or her of a constitutional
right under color of law." Laurensau v. Romarowics, 528 F. App'x 136 (3d Cir.2013) (internal
citations omitted). "A bare assertion of conspiracy will not suffice." Great Western Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F .3d 159, 178 (3d Cir.2000) (quoting Twombly, 550
U.S. at 556). Rather, the plaintiff must allege facts from which one can reasonably infer that the
defendants reached an agreement to deprive him of a constitutional right under color of law.
Parkway Garage, Inc. v. City of Phi/a., 5 F.3d 685, 700 (3d Cir.1993), overruled on other
grounds, U.A. Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir.2003).
At this point, Plaintiff has adequately stated a conspiracy claim for his Eighth
Amendment conditions of confinement claim and his First Amendment retaliation claim. He
alleges that many corrections officers and prison officials agreed to do nothing about his broken
toilet and unsanitary cell condition and indeed told him that he would not be moved from his cell
and joked about the unsanitary conditions they subjected him to. Further, Plaintiff adequately
alleges that several corrections officers and prison officials retaliated against him for filing a
grievance for his slip and fall by subjecting him to the unsanitary conditions in his cell, and not
giving him his copies of grievances or his magazines, and not allowing him to go outside after
complaining about such conditions.
Accordingly, Defendants' motion to dismiss Plaintiffs conspiracy claim is denied.
5. Remaining Claims
It is worth mentioning that Plaintiff includes a "failure to protect" claim that will be
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construed as a negligence claim. Defendants do not move to dismiss this claim. Plaintiff levies
this claim against Defendants for their conduct in forcing him to go out for yard in sub-zero
temperatures and in failing to clear the yard of ice, and causing him to slip and fall and injure his
knee and back.
Because the present action is subject to sua sponte screening for dismissal under the
PLRA, the Court will consider whether Plaintiff has stated a negligence claim.
To state a claim for negligence under Pennsylvania law, the plaintiff must allege the
standard elements of a negligence claim - duty, breach, causation and damages. See e.g., Althaus
ex rel. Althaus v. Cohen, 562 Pa. 547, 552, 756 A.2d 1166, 1168 (2000). To the extent that
Plaintiff alleges that Defendants are negligent for forcing him and other inmates to go outside in
sub-zero temperatures, he has not alleged that he suffered any injury, such as frostbite or the like,
and as such, this claim is dismissed with prejudice.
However, as to Plaintiffs claim that
Defendants failed to keep the yard clear of ice, which caused him to slip, fall and injure his knee
and back, he has adequately stated a claim.
Lastly, Plaintiff includes a separate cause of action entitled "supervisory liability," but
because this is not a legal claim, but rather a theory of liability, the Court will not address
whether Plaintiff has stated such a claim.
V.
CONCLUSION
Based on the foregoing, Defendants' motion to dismiss is granted in part and denied in
part. Defendants' motion is granted with respect to Plaintiff's Eighth Amendment deliberate
indifference claim and this claim is dismissed with prejudice; Defendants' motion is granted as
to Plaintiffs Denial of Access to Courts claim and this claim is dismissed with prejudice;
Plaintiff's negligence claim as to Defendants forcing him to the yard in inclement weather is
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dismissed with prejudice; Defendants' motion is denied as to Plaintiffs Eighth Amendment
conditions of confinement claim; and Defendants' motion is denied as to Plaintiffs civil
conspiracy claim.
An appropriate Order follows.
Dated: June 2, 2016.
By the Court,
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc:
AILEAF ASHFORD
DZ-2871
SCI Forest
PO Box 945
Marienville, PA 16239
Attorney for Defendants
Yana L. Warshafsky
via CM/ECF electronic filing
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