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Tapp v. Proto

May 12, 2010

SEAN TAPP PLAINTIFF,
v.
ANDY PROTO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

I. INTRODUCTION

In this § 1983 action, Sean Tapp, a Pennsylvania state prisoner currently incarcerated at the State Correctional Institution at Huntingdon, seeks compensatory and punitive damages for alleged violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights while he was a pretrial detainee and a convicted prisoner at Lancaster County Prison ("Prison"), a period lasting from December 2, 2006 to October 4, 2007.*fn1 Tapp also alleges that defendants violated the Racketeer Influenced and Corrupt Organizations ("RICO") Act in violation of his civil rights.

Tapp's allegations can be organized into the following categories:

(1) Religious discrimination: Tapp, a self-proclaimed black Sephardic Jew, alleges that Prison officials interfered with his rights to religious expression by denying him Kosher food during December 2006 and generally being inconsistent in serving him quality Kosher meals throughout the remainder of his time at the Prison;*fn2

(2) Denial of access to courts: Tapp alleges that Defendant Romanowski denied him access to the Prison's law library and notary services; that Defendants Deputy Warden Robert Siemasko (improperly identified as "Robert Samasko") and Major Klinovski (improperly identified as "Mr. Klowonsky") failed to respond to his grievances; and that Defendants Correctional Officers ("C.O.s") Brown, McCormick, Ovens, Minotti, and Deford failed to report when his meals were not in compliance;

(3) Non-medical and medical conditions of confinement:

(a) Tapp alleges that he was deprived of a mattress, bed space (i.e., that he was placed in an overcrowded cell), clean clothes, a place to eat, an adequately nutritious diet, clean water, shower and outdoor recreation opportunities, and disease-free cell-mates,*fn3 and

(b) Tapp alleges that he was denied adequate medical care by the Prison medical staff, including Dr. Robert Doe (improperly identified as "Dr. Dough"), Nurse Rachel Downs (incompletely named "Nurse Rachel"), and Nurse Darlene Hehnly (improperly identified as "Nurse Hennly"), who allegedly failed to document and respond to his weight loss or test him for infectious diseases;

(4) Other Due Process violations: including false imprisonment by Warden Guarini; a lack of process in relation to a disciplinary hearing orchestrated by C.O. Barley, Sergeant Lesse, and an unnamed party, Shawn Rye; as well as a theft of Tapp's property allegedly perpetrated by C.O. Masterangelo and Sergeant Wolffe;

(5) Racial discrimination;*fn4

(6) RICO violations: Tapp alleges that Proto and Warden Guarini profited from prison overcrowding and cheap inmate food and clothing purchases; and

(7) Conspiracies to deprive Tapp of his constitutional rights: Tapp claims that many of the above officials conspired with each other to deny Tapp his rights.

All of the defendants, except for Dr. Doe, have filed motions for summary judgment. Tapp filed a cross-motion for summary judgment. Because many of Tapp's claims are frivolous and he has failed to provide any evidence in support of his legitimate claims, I will deny Tapp's cross-motion for summary judgment and grant Defendants' motions for summary judgment.

II.BACKGROUND*fn5

A. Kosher Diet

Sean Tapp was born in Harlem, New York and raised in the Baptist Church. (Def. Proto et al.'s Mot. Summ. J., Ex. B, Tapp Dep. 135:15-25, Jan. 8, 2009). He has been incarcerated on many occasions since the early 1990s. (Id. at 19:23-22:1) In 2004, while serving five years in New York's Southport Correctional Facility, Tapp became a Sephardic Jew. (Id. at 30:24-31:15.) Although Tapp never went through a formal conversion process, he learned the customs and practices of Sephardic Jews from other inmates he met and, while he was incarcerated at New York's Great Meadow Correctional Facility, he was given informational materials about his religion from the prison's rabbi, Rabbi Kelleman. (Id. at 35:25-37:25). Tapp believes that he may only eat food that is blessed (i.e., meat that is slaughtered in a certain way, but no pork), and that at certain times he is to only eat unleavened bread. (Id. at 38:13-39:23.)

On December 9, 2006, seven days after Tapp first arrived at Lancaster County Prison, he filed a grievance request for a Kosher diet and was told to forward his request to the Chaplain's office. (Id. at Ex. "Tapp 2.") It is unclear at what point Tapp began receiving Kosher meals; however, on December 31, 2006, Tapp filed a second grievance regarding his meals in which he admitted that he had begun to receive hot Kosher meals approximately ten to fourteen days prior to December 31. (See Proto et al.'s Mot. Summ. J., Ex. F.)

Early in Tapp's stay at the Prison, Andy Proto, the Prison's Food Administrator, personally visited Tapp to discuss his Kosher diet needs. Proto told Tapp that he had "never seen or heard of a black Jew before." (Compl. ¶ 2.) Tapp recalls having several conversations with Proto about his diet. Initially, Proto told Tapp that he would provide him with cheese dishes, which Tapp did not enjoy; later, Proto began giving Tapp boiled eggs for breakfast as well as grits and oatmeal. Tapp found that Proto was willing to accommodate him, so he asked Proto for more variety in his diet. Proto agreed to try to supply Tapp with a more varied diet and Tapp was relatively satisfied with his efforts. (Tapp Dep. 124:3-125:14.)

On December 27, 2006, Proto, having received additional grievances from Tapp, contacted the rabbi at Great Meadow Correctional Facility, Rabbi Kelleman, and requested that the rabbi review the Kosher menu that Proto had developed for Tapp. Proto also contacted Rabbi Sackett, a Lancaster County rabbi, to obtain his approval of Tapp's diet. (See Proto et al.'s Mot. Summ. J., Ex. D.)

On January 1, 2007, prison officials began supplying Tapp with a one-page menu of Kosher meals. Officials would place a check mark beside the description of the meal that was being served (i.e., breakfast, lunch, or dinner), and both the Kitchen Supervisor in charge and a C.O. would sign the sheet. Tapp would frequently sign the sheet as well. The Kosher meals listed on the menu included: spaghetti and meatballs, lemon fish, meat loaf, brisket meat, turkey breast, salisbury steak, and cold cereal with boiled eggs, bread, and fruit. (See id. at Ex. E.)

Once Tapp began receiving Kosher meals, his concern turned to the way the food was served: he alleges that Proto and his staff served him the same dishes repeatedly, failed to heat the dishes (sometimes serving them raw or spoiled), wrapped the dishes poorly, etc., in an attempt to make the meals so unappetizing that he would not eat the food, which would prevent him from partaking in the Jewish custom of eating Kosher food.*fn6

B. Denial of Access to Courts

Tapp alleges that Defendant Romanowski denied him access to the law library and notary services. While Tapp was a detainee at Lancaster County Prison, he had three or four pending civil rights suits in federal district courts in New York, as well as a habeas corpus petition. (Tapp Dep. 4:22-10:15.) In addition, Tapp was representing himself in the criminal action for which he was detained at the prison. (Id. at 51:5-7.) Tapp visited the Prison library often--by his estimate, more than 55 times in eleven months. (Id. at 50:1-4).

Tapp's primary reason for going to the library was to prepare for his criminal matter. (Id. at 51:11-14.) Tapp contends that he never had difficulty obtaining access to the law library until the weeks leading up to his criminal trial in June or July 2007. Although he can recall neither who denied him access to the library, nor the exact dates on which the denials occurred, Tapp believes he was denied access between two and possibly five times in the weeks prior to his trial. (Id. at 63:25-65:7.)

Tapp also contends that Romanowski denied him notary services from April 25, 2007 to the end of his confinement at the Prison. The Prison's notarial registry demonstrates that Romanowski notarized documents for Tapp on ten occasions during Tapp's incarceration at the Prison, including four times after April 25, 2007.*fn7 The dockets for Tapp's civil cases that were pending while he was detained at the Prison show that Tapp was able to file materials between April 25, 2007 and October 4, 2007. (See Def. Romanowski et al.'s Mot. Summ. J., Ex. D, 1:06-cv-13631-KMW, filing of May 10, 2007, Doc. #7; 9:05-cv-01479-NAM-DEP, filing of May 10, 2007, Doc. #36; 9:05-cv-01442-LEK-DRH, filing of May 11, 2007, Doc. #31). As for the criminal case for which Tapp was detained at the Prison and in which Tapp was proceeding pro se, Tapp testified that he could not recall any instances in which his filings in that case were rejected for a lack of notarization. (See Tapp Dep. 57:22-25.)

Tapp also alleges that Deputy Warden Siemasko and Major Klinovski failed to answer his grievance complaints,*fn8 but he does not recall what the grievances were about, nor does he have any copies of the grievances. (See Tapp Dep. 77:7-78:9.) Finally, Tapp alleges that C.O.s Brown, McCormick, Ovens, Minotti, and Deford failed to report when his meals were not in compliance, on May 14 (Minotti), May 18 (McCormick), June 11 and 12 (Ovens), June 20 (Brown), and August 23, 2007 (Deford). (See Compl. ¶¶ 15-18, 28; Tapp Dep. 88:16-93:13.)

C. Non-medical Conditions of Confinement

Tapp also alleges that while he was at the Prison he failed to receive a mattress, bed space, clean underclothes, a place to eat, clean water, ventilation, and generally a clean, healthy, safe environment. He alleges that he was forced to eat every meal inside his cell in close proximity to an uncovered toilet bowl, was denied showers, and was denied recreation on Wednesdays and Sundays by C.O.s Brown, McCormick, Ovens, and Minotti. (Compl. ¶¶ 10, 15-18.) Tapp also claims that he was detained with three people in a two-person cell with inmates that had never been screened for diseases such as hepatitis and tuberculosis. Specifically, Tapp alleges that on May 10, 2007, C.O. Coco placed another inmate, a "dope fiend" suffering through withdrawal, into his cell. Tapp alleges that the "dope fiend" had open sores, began coughing, urinating on the floor of the cell, walking around naked, and touching Tapp's legal and personal property. (Id. at ¶ 25.)

According to Deputy Warden Siemasko's affidavit, Tapp was housed in a three-person cell that was 95 square feet. Otherwise, he was housed in a two-person cell that was 70 square feet. He was given a "boat bunk" to sleep in, which consisted of a plastic bunk elevated 10 inches off of the ground with a mattress inside it. (See Romanowski et al.'s Mot. Summ. J., Ex. E, ¶¶ 6-12.) Tapp testified that he was crowded into a two-man cell with two other men for less than six weeks, that he slept on a bunk bed and could not recall whether he had a mattress. (See Tapp Dep. 68:17-70:1.) Tapp states that he was given used, dirty underclothes to wear. (Id. at 144:18-24.) Tapp testified that C.O.s told him that the drinking water was recycled from a tank that mixed drinking and sewage water, and that he saw other inmates develop skin conditions after showering in the water. (Id. at 72:6-20.) According to Deputy Warden Siemasko's affidavit, the water supplied to the Prison comes from the public water supply from the City of Lancaster and is tested yearly. (See Romanowski et al.'s Mot. Summ. J., Ex. E, ¶¶ 13-14.)

The affidavit also notes that all inmates, even those on disciplinary status, received recreation in the form of at least "five (5) block outs per week," during which time inmates are permitted but are not required to shower or exercise. (Id. at ¶¶ 15-17; see also Tapp Dep. 76:5-21 (explaining that he received "block out" for at least an hour and a half every day, alternating between the afternoon and the evening).) With regard to the Prison's ventilation issues, prisoners lacked control over whether the windows were open or closed. (See Romanowski et al.'s Mot. Summ. J., Ex. E, ¶ 19.) Tapp states that in the summertime, Prison officials failed to open the windows and as a result inmates fainted from the heat. Tapp himself never fainted, but he suffered from asthma complications. (Tapp Dep. 144:3-14.)

Tapp also complains about an incident on May 10, 2007, in which C.O. Coco placed a "dope fiend" in his cell. According to Tapp, his new cellmate was so disruptive that Tapp, who was set to begin his criminal trial on May 11, 2007, packed his things and determined to separate from the new inmate. Early in the morning, during "chow time," Tapp exited his cell with his property. When he was ordered back into his cell, Tapp refused and told the C.O.s that he would rather be sent to solitary confinement than return to the cell. Tapp was then sent to solitary confinement and was cited for interfering with food distribution and refusing a direct order to return to his cell. (See Tapp Dep: 97:1-98:22; Romanowski et al.'s Mot. Summ. J., Ex. G.)

Finally, Tapp claims that Warden Guarini and Proto denied him a nutritiously adequate diet. Tapp alleges that Proto failed to provide him with a peanut-butter snack bag when he was having trouble maintaining his weight and that Warden Guarini intentionally purchased cheap, low-quality food that had little nutritional value. (Compl. ¶¶ 2, 10). Tapp also alleges that on April 28, 2007, C.O. Booth, C.O. Yeingst and Sergeant Trudel refused to allow him to eat only the fruit and bread portions of his meal, and that on May 17, 2007, C.O. Brendle and Sergeant Wolffe failed to provide him with an adequate Kosher meal. (Compl. ¶¶ 20-23).

D. Denial of Medical Care

Tapp alleges that the medical staff at the Prison failed to monitor and help him maintain his weight and failed to run basic diagnostic testing on him. Specifically, he alleges that Nurse Darlene Hehnly failed to document his medical problems, including his weight, his blood pressure, and whether he had tuberculosis or hepatitis upon his commitment to the Prison; that Nurse Rachel Downs either failed to weigh him or failed to document his weight of 172 lbs. on May 16, 2007; and that Dr. Doe refused to order him Ensures, a nutritional supplement, and a peanut butter bag to help him gain weight. Tapp alleges that he lost weight because he was not fed an adequate Kosher diet and because Prison officials refused to give him lactose-free meals even after he complained of suffering from lactose intolerance. (Compl. ¶¶ 2, 27, 29-30.)

Tapp's medical records show that Nurse Hehnly failed to take Tapp's weight upon his commitment and merely listed the weight that Tapp recited. However, due to the confusion regarding his diet in December, the Chaplain's office requested that Tapp be weighed. On December 28, 2006, Tapp's weight was measured at 200 lbs. In January 2007, Tapp's weight was measured four times--his final weight on January 24, 2007 was 193.2 lbs. On January 26, 2007, Tapp filed a grievance stating that he was lactose intolerant and needed a modified diet. On January 29, 2007, the medical staff responded by asking him for proof of his lactose intolerance. On January 31, 2007, Tapp filed a second grievance in which he argued that he could not prove his disability because he had never previously seen a doctor for the condition. On February 2, 2007, Tapp complained to the medical staff that he was lactose intolerant and the matter was referred to Tammy Moyer, the Prison's Medical Coordinator. Moyer had Dr. Doe review Tapp's file and wrote in an email that the doctor felt that Tapp's lactose intolerance was subjective. However, Tapp was eventually placed on a lactose-free diet. (See Proto et al.'s Mot. Summ. J., Ex. F.)

On May 11, 2007, Tapp complained that he had lost a large amount of weight. He was again monitored. His weight was taken five times between May 24, 2007 and June 20, 2007, at which point Tapp's weight was 177 lbs. On July 10, 2007, the medical staff continued Tapp on his lactose-free diet and ordered a night-time snack bag for him. On August 7, 2007, Tapp's weight was measured at 178 lbs. (Id.)

E. Other Due Process Violations

Tapp alleges three other due process claims unrelated to the conditions of his confinement. First, Tapp alleges that Warden Guarini falsely imprisoned him as part of a conspiracy involving the Lancaster County Police Department and the Lancaster Court of Common Pleas. Tapp testified that Warden Guarini agreed to accept Tapp in the Prison in the absence of a warrant for his arrest. (Tapp Dep. 73:8-11.) The record shows that an order committing Tapp to the Lancaster County Prison was signed by Magistrate Judge Cheryl Hartman on December 1, 2006. (Romanowski et al.'s Mot. Summ. J., Ex. F.)

Second, Tapp alleges that Sergeant Wolffe and C.O. Masterangelo stole a photograph from his cell and never returned it to him. Tapp testified that the photo was of his white girlfriend posing on his motorcycle. Tapp stated that C.O. Masterangelo approached him one day during recreation time, told Tapp that he had searched his cell and found the photograph, and explained that he was confiscating the photograph because Tapp was not supposed to have something like that in his cell. C.O. Masterangelo told Tapp he was going to give the photograph to Sergeant Wolffe to put in Tapp's property cache. Tapp said that was fine as long as it was returned to him, but the photograph was never returned to him. (Tapp Dep. 75:15-80:22.)

Third, Tapp alleges that his due process rights were violated by C.O. Barley during the May 12, 2007 disciplinary hearing stemming from the misconduct violation Tapp received after the "dope fiend" was placed in his cell. The misconduct report shows that Tapp was given notice on May 10, 2007 and that the hearing was held on May 12, 2007. (Id. at Ex. "Tapp 4.") Tapp claims that he was not given notice of the charges against him in time to prepare a ...


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