The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge
District Judge McLaughlin
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
It is respectfully recommended that:
1. The Commonwealth Defendants' Motion to Dismiss Amended Complaint, or in the Alternative, Motion for Summary Judgment [Document # 77] be granted in part and denied in part;
2. The Fayette County Defendants' Motion to Dismiss [Document # 79] be granted in part and denied in part;
3. Defendant Burnsworth's Motion to Dismiss [Document # 84] be granted, and that Defendant Burnsworth be dismissed from this case;
4. The Motion to Dismiss filed on behalf of Defendants Poindexter and Sherbine [Document # 100] be granted, and that Defendants Poindexter and Sherbine be dismissed from this case; and
5. Defendant Gregory Packaging's Motion to Dismiss [Document # 103] be granted, and that Defendant Gregory Packaging be dismissed from this case.
It is further recommended that: (i) Defendants Sileo, Leskinen and Fike be dismissed from this case for Plaintiff's failure to serve them within 120 days of the filing of the Amended Complaint in accordance with Rule 4(m) of the Federal Rules of Civil Procedure; and (ii) Defendants Yates, Grandlund, Jolene B., Sutton, Ames, Delie, Corbett, Sherbine, and Poindexter be dismissed from this case due to Plaintiff's failure to mention them anywhere by name in the body of the Amended Complaint.
A. Relevant Procedural History
On July 20, 2009, Plaintiff Robert Hankins, a prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania ("SCI-Albion")*fn1 , filed this civil rights action pursuant to 42 U.S.C. § 1983 against: (i) the Commonwealth of Pennsylvania ("Commonwealth") and various individuals employed by the Pennsylvania Department of Corrections ("DOC")(hereinafter collectively referred to as "Commonwealth Defendants"); (ii) several Fayette County public defenders, assistant district attorneys, and Fayette County Jail officials (hereinafter collectively referred to as "Fayette County Defendants"; (iii) Timmie Burnsworth, LPN ("Burnsworth"), a nurse at Fayette County Jail; (iv) Gloria Poindexter ("Poindexter"), and Rhonda Sherbine ("Sherbine"), Health Services' employees under contract to provide medical services to inmates at SCI-Forest; (v) Mayor James R. Sileo ("Sileo"); and (vi) Gregory Packaging, Inc. ("Gregory Packaging"), incorrectly identified by Plaintiff as "Gregory Packing, Inc." [Document # 3].
The Commonwealth Defendants employed by the DOC consist of: Jeffery Beard, the DOC's Secretary of Corrections ("Beard"); Cindy G. Watson, the DOC's Chief Grievance Officer ("Watson"); Margaret M. Gordon, R.D. the DOC's Clinical Dietician ("Gordon"); John S. Shaffer, PhD, Executive Secretary at the DOC ("J. Shaffer"); E.P. Bush, Acting Deputy for Centralized Services at SCI-Forest ("Bush"); Nelson Zullinger, identified as "Right-to-Know Official" ("Zullinger"); "Joseph D.," Hearing Examiner; E.M. Weaver, Hearing Examiner ("Weaver"); Timothy J. Mark, Chief Hearing Examiner ("Mark"); L.S. Kerns-Barr, Hearing Examiner ("Kerns-Barr"); Z. Moslak, Hearing Examiner ("Moslak"); Kerri Cross, Hearing Examiner ("Cross"); John Andrade, Hearing Examiner ("Andrade"); "Yates," Chief Grievance Official; Kristen P. Reisinger, Chief Grievance Official ("Reisinger"); Raymond Sobina, former Superintendent at SCI-Forest ("Sobina"); Michael Barone, Deputy Superintendent at SCI-Forest ("Barone"); L.H. Heaster, Deputy Superintendent at SCI-Forest ("Heaster"); Kevin Dittman, Food Services Manager 1 at SCI-Forest ("Dittman"); Edward Heberling, Food Services Manager 2 at SCI-Forest ("Heberling"); Donald Skunda, CCHP at SCI-Forest ("Skunda"); Carol Kennedy, Grievance Coordinator at SCI-Forest ("Kennedy"); Kurt Grandlund, Deputy at SCI-Forest ("Grandlund"); Jolene B., R.D.H. at SCI-Forest ("Jolene"); Pamela Sutton, Dental Assistant at SCI-Forest"); John Ames, CFMM-III at SCI-Forest ("Ames"); Sergeant McKnight, a corrections officer at SCI-Forest ("McKnight"); "Whitehead," a corrections officer at SCI-Forest; S.S. Best, a corrections officer at SCI-Forest ("Best"); Joan Delie, CHCA at SCI-Forest ("Delie"); Deb Woodard, Commissary Supervisor at SCI-Forest ("Woodard"); "Miller," a corrections officer at SCI-Forest; S.Satterlee, Counselor at SCI-Forest ("Satterlee"); "Huapt," Unit Manager at SCI-Forest; Lt. Younkin, a corrections officer at SCI-Forest ("Younkin"); and P. McKissock, Hearing Examiner at SCI-Albion ("McKissock").
The Fayette County Defendants consist of the following: Gary Brownfield, Jr., Court Officer ("Brownfield"); George Barker, Court Officer ("Barker"); Ed Dunkard, incorrectly identified by Plaintiff as "Ed Denker," Court Officer ("Dunkard"); Mark Matthews, Court Officer ("Matthews"); Mike Zavada, incorrectly identified by Plaintiff as "Lt. Salvoda" ("Zavada"); Lawrence Chapman, Sr., incorrectly identified by Plaintiff as "Lt. Chaplyn" ("Chapman"); Larry Medlock, Warden at Fayette County Jail ("Medlock"); Barry Croftcheck, Assistant Warden at Fayette County Jail ("Croftcheck"); Jamee Waligura, Counselor at Fayette County Jail ("Waligura"); Thomas W. Shaffer, Esq., public defender ("T. Shaffer"); Jeffrey W. Whiteko, Esq., public defender ("Whiteko"); Michael J. Garofalo, Esq., public defender ("Garofalo"); Michelle Kelley, Esq., Assistant District Attorney ("Kelley"); and Eugene Grimm, Esq., Assistant District Attorney ("Grimm").
Plaintiff subsequently filed an Amended Complaint on October 22, 2009 [Document # 64], adding as Defendants Judge Steven P. Leskinen ("Leskinen"), Edward Fike ("Fike"); and Tom Corbett ("Corbett"). Defendants Leskinen and Fike, as well as original Defendant Sileo, have never been served in this case, nor has any attorney entered an appearance on behalf of one or more of them.
On November 10, 2009, the Commonwealth Defendants filed a motion to dismiss amended complaint, or, in the alternative, motion for summary judgment, arguing that Plaintiff has failed to state a claim upon which relief may be granted. [Document # 77].
On November 13, 2009, the Fayette County Defendants filed a motion to dismiss, arguing that: (i) Plaintiff's claims against Defendants T. Shaffer, Whiteko, Garofalo are barred because they are not state actors and/or are entitled to absolute immunity; (ii) Plaintiff's claims against Defendants Grimm and Kelley are barred by absolute prosecutorial immunity; and (iii) Plaintiff has failed to state a claim upon which relief may be granted against the Fayette County Jail Defendants. [Document # 79].
On December 29, 2009, Defendant Burnsworth filed a motion to dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted. [Document # 84].
On February 4, 2010, Defendants Poindexter and Sherbine filed a motion to dismiss arguing that Plaintiff: (i) has failed to exhaust his administrative remedies; and, alternatively (ii) has failed to state a claim upon which relief may be granted. [Document # 100].
On February 8, 2010, Defendant Gregory Packaging filed a motion to dismiss on
essentially the same grounds as those cited by Defendants Poindexter and Sherbine. [Document # 102].
Plaintiff has filed briefs in opposition to all of the pending motions filed by the various Defendants, except the motion to dismiss filed by Defendants Poindexter and Sherbine. [Document ## 90, 92, 94, and 112]. This matter is now ripe for consideration.
Plaintiff's Amended Complaint, which incorporates all of the allegations of the original complaint, consists of 32 pages and 112 paragraphs of disjointed allegations that attempt to set forth a multitude of claims against some or all of the 57 named Defendants.*fn2 From these allegations, the Court has construed the following claims:
1. A First Amendment free exercise of religion claim against Defendants Chapman, Medlock, Croftcheck, and Waligura (Amended Complaint at Section IV.C, ¶¶ 1, 105-107);
2. An denial of access to courts claim arising from the alleged refusal of Defendants Chapman, Medlock, Croftcheck, and Waligura to allow Plaintiff to attend the law library (Id. at ¶¶ 3-4).
3. An Eighth Amendment deliberate indifference to health and safety claim against Defendants Chapman, Medlock, Croftcheck, and Waligura arising from Plaintiff's placement in a cell with an inmate "with mental health problems" who "had feces and urine throughout his assigned cell." (Id. at ¶¶ 5-7).
4. Eighth Amendment deliberate indifference to serious medical needs claims against Defendant Burnsworth. (Id. at ¶¶ 8, 12, and 21).
5. An Eighth Amendment deliberate indifference to health and safety claim against Fayette County Jail Defendants related to Plaintiff's placement in a cell with "glass all over the bed frame, and exposed live electrical wires" on or about January 3, 2008. (Id. at ¶¶ 13-15). 6. An Eighth Amendment excessive use of force claim against Defendants Brownfield, Barker, Dunkard, and Matthews arising from their alleged use of a "stun belt" on Plaintiff on or about February 6, 2008, which allegedly caused him to suffer "constant and permanent pain and injury to [his] right thumb." (Id. at ¶¶ 16-20, 27).
7. An Eighth Amendment deliberate indifference to serious medical needs claim against Defendants Kennedy, Sobina, Watson, Beard, and Woodard arising from the stoppage of Plaintiff's medically prescribed toothpaste in or around July 2007. (Id. at ¶¶ 28-30).
8. A First Amendment claim against Defendants Beard, Commonwealth, Sobina, Reisinger, Miller, Satterlee, McKnight, Heaster, Younkin, and Barone related to the creation of a new policy that prevented Plaintiff from ordering religious, legal, or other written materials. (Id. at ¶ 34).
9. A retaliation claim against Defendant Satterlee, Sobina and Huapt. (Id. at ¶ 35).
10. An Eighth Amendment deliberate indifference to serious medical needs claim against Defendants Skunda, Sobina, Reisinger, and Watson related to alleged delays in providing Plaintiff dental treatment from around February 2007 to October 2007. (Id. at ¶¶ 36-37).
11. Verbal harassment claim against Defendant McKnight (Id. at ¶ 38).
12. Verbal harassment and retaliation claims against Defendants Best, McKnight, Kennedy, Sobina, and Watson. (Id. at ¶¶ 41-42).
13. An Eighth Amendment deliberate indifference to health and safety claim against Defendants Zullinger, Gordon, Heberling, Sobina, Gregory Packaging, Heaster, J. Shaffer, Dittman, Skunda, Kennedy, Reisinger, and Beard related to the food that was served Plaintiff at SCI-Forest. (Id. at ¶¶ 43-49).
14. A retaliation claim against Defendant Whitehead (Id. at ¶ 50).
15. An Eighth Amendment claim against Defendants Kennedy and Sobina related to the alleged use of food as punishment. (Id. at ¶¶ 51-52). 16. Eighth Amendment claim arising from Plaintiff's placement on shower restriction for seven days in or around August or September 2007. (Id. at ¶¶ 53-54).
17. A Fourteenth Amendment due process claim against Defendants Joseph, Weaver, Kerns-Barr, Mark, Moslak, Cross, Andrade, Beard, Sobina, Barone, Heaster, Bush, and McKissock related to the manner in which disciplinary hearings were held and the punishment Plaintiff received for misconducts. (Id. at ¶¶ 55-59).
18. A retaliation claim against Defendants Satterlee, Sobina, Heaster, Kennedy, and Bush arising from the denial of an "emergency telephone call to [Plaintiff]" after his father was shot and approximately six months after his mother died. (Id. at ¶ 60).
19. An Eighth Amendment excessive use of force claim against Defendant Best, and a deliberate indifference to health and safety claim against Defendant Sobina related to the same incident. (Id. at ¶ 62).
20. Conspiracy and Sixth Amendment claims against Defendants Whiteko, T. Shaffer, Garofalo, Kelley, and Grimm. (Id. at ¶¶ 63-65; 94-98).
21. An Eighth Amendment deliberate indifference to health and safety claim against Defendants Chapman, Croftcheck, Medlock, and Waligura related to conditions in the Fayette County Jail's Special Housing Unit ("SHU"). (Id. at ¶¶ 66-70; 72-78; 81-91; 100-105).
22. A Fourteenth Amendment due process claim against Defendants Beard, Satterlee, and Sobina arising from Plaintiff's continued confinement in restricted housing for eight years. (Id. at ¶¶ 110-112).
As relief for his claims, Plaintiff seeks monetary damages and declaratory and injunctive relief.
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
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." Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting 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." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556.
Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:
To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct."
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" This "plausibility" requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)(emphasis added)(citations omitted).
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id.
A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v. American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance -which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim.
Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.
A material fact is a fact whose resolution will effect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court must resolve any doubts as to the existence of genuine issues of fact against the party moving for summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegation or suspicions." Firemen's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute about a material fact is "genuine," i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249.
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 (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 litigant's unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 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'"); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, 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)(overruled on other grounds). 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 Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
D. Exhaustion of Administrative Remedies
Defendants Poindexter, Sherbine, and Gregory Packaging argue that Plaintiff has failed to exhaust his administrative remedies with regard to his claims against them, in accordance with the requirements of Section 1997e(a) of the Prison Litigation Reform Act ("PLRA"), which provides: no action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility untilsuch administrative remedies as are available are exhausted.
In support of this argument, Defendants Sherbine and Poindexter simply state that Plaintiff "does not specify that he ever filed a grievance as to Rhonda Sherbine or Gloria Poindexter, let alone appealed it to final review," while Defendant Gregory Packaging merely asserts that "[t]here is no allegation that [Plaintiff] pursued any such [administrative] remedy against Gregory Packaging, Inc." (Document # 101 at p. 5; Document # 103 at p. 2). However, it is not a plaintiff's burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. 199, 217 (2007) ("...failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."). Instead, the failure to exhaust must be asserted and proven by the defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
Because no evidence other than Plaintiff's failure to plead exhaustion has been offered by Defendants Sherbine, Poindexter, and Gregory Packaging, their motions to dismiss Plaintiff's claims for failure to exhaust administrative remedies should be denied.
1. Claims Against Fayette County Defendants
a. First Amendment Free Exercise of Religion Claim
Plaintiff complains that his religious rights were violated by Defendants Chapman, Medlock, Croftcheck, and Waligura, during his confinement in the Fayette County Jail, because he was not provided consultation with a "religious representative his entire time their [sic] to practice his belief," and was denied the ability to keep "religious ...