The opinion of the court was delivered by: Magistrate Judge Bissoon
MEMORANDUM OPINION AND ORDER
For the reasons that follow, Defendants‟ Motion to Dismiss (Doc. 60) will be granted with prejudice in part and granted without prejudice in part.
Antonio Hennis ("Plaintiff") is a state prisoner currently incarcerated in the State Correctional Institution at Greensburg ("SCI-Greensburg"), located in Greensburg, Pennsylvania. Plaintiff brings this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging deprivations of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution by eight Defendants, all of whom were employed by the Pennsylvania Department of Corrections ("DOC") at all times relevant to the complaint. Compl. (Doc. 3) ¶ 51. This suit commenced with this Court‟s receipt of Plaintiff‟s motion to proceed in forma pauperis ("IFP") on April 5, 2010. (Doc. 1). Leave to proceed IFP was granted on April 7, 2010. (Doc. 2). Plaintiff consented to the jurisdiction of a magistrate judge on April 7, 2010. (Doc. 5). Defendants consented to the same on June 29, 2010. (Doc. 17).
Defendants filed a motion to dismiss on July 14, 2010. On July 15, 2010, this Court sua sponte converted this to a motion for summary judgment with respect to Defendants‟ argument that Plaintiff failed to exhaust most of his administrative remedies. (Doc. 24). Plaintiff responded to Defendants‟ motion on August 25, 2010. (Docs. 28-30). This issue is ripe for disposition
A. Plaintiff's Factual Allegations and Legal Claims
Plaintiff avers that he is of Caribbean descent, and a practitioner of "orthodox Nazarite vow Rastafarianism." (Doc. 3) ¶ 17. Plaintiff asserts that on May 11, 2008, Defendant Tedrow, a corrections officer at SCI-Greensburg, ordered Plaintiff to cut his dreadlocks -- which Plaintiff avers would be a violation of his religious beliefs. Id. ¶ 18. Plaintiff asserts, and Defendants concede, that applicable DOC policy gave Plaintiff fifteen days to apply for a so-called "hair exemption," which would allow Plaintiff to keep his dreadlocks despite DOC grooming policies. See DC-ADM 819.G.2.b; see also, e.g., Def.s‟ Ex. B to Br. in Supp. of Mot. to Dismiss (Doc. 21-1) at 13. Plaintiff alleges that he has benefitted from a hair exemption since 1997, and produces documents that indicate that he enjoyed one at SCI-Greensburg in 2004. See Pl.‟s Ex. G to Br. in Opp‟n to Mot. for Summ. J. (Doc. 28-7) at 1. Plaintiff alleges that he has been "forced" by Defendant Watkins, the director of the chaplaincy at SCI-Greensburg, to file for hair exemptions twice, and that "every time an officer threatens the Plaintiff to cut his dreadlocks his exemption mysteriously disappears from the records."*fn1 (Doc. 3) ¶ 46.
On May 18, 2008, Defendant Tedrow allegedly "left his post" to follow up with Plaintiff regarding his order of May 11, 2008. Id. ¶ 19. Plaintiff asserted that he had sought a hair exemption, but Defendant Tedrow allegedly responded ""I don‟t care have them cut when I get back.‟" Id. Plaintiff filed grievance number 229125, naming Defendant Tedrow, that same day. Id. ¶ 20.
Defendant Tedrow initiated misconduct proceedings against Plaintiff on or about May 18, 2010 -- apparently sometime after Plaintiff initiated his grievance. See (Doc. 3) ¶ 20; see also (Doc. 21-1) at 7; see also Def.s‟ Ex. C to Br. in Supp. of Mot. to Dismiss (Doc. 21-1) at 17. This misconduct was dismissed. (Doc. 21-1) at 17. Plaintiff eventually was granted a hair exemption on July 28, 2008. See Def.s‟ Ex. D to Br. in Supp. of Mot. to Dismiss (Doc. 21-1) at 19. There is no indication in the record that Plaintiff was ever forced to cut his hair. Plaintiff‟s grievance number 229125 was denied on initial review on May 22, 2008.
(Doc. 3) ¶ 21; (Doc. 21-1) at 7. Plaintiff appealed to Defendant Lockett on May 29, 2008, and was denied the following day. (Doc. 3) ¶¶ 22-23; (Doc. 21-1) at 8-9. Plaintiff filed a second-level appeal with the Department of Corrections‟s Chief Grievance Officer, Defendant Watson. (Doc. 3) ¶ 24; (Doc. 21-1) at 10-11. Defendant Watson remanded the grievance to Defendant Lockett on June 24, 2008. (Doc. 3) ¶ 25; (Doc. 21-1) at 12. Defendant Lockett denied the grievance once again on July 2, 2008. (Doc. 3) ¶ 26; (Doc. 21-1) at 12-13. Plaintiff appealed this second denial to Defendant Watson. (Doc. 3) ¶ 28; (Doc. 21-1) at 14. Defendant Watson affirmed Defendant Lockett‟s decision on July 17, 2008. (Doc. 3) ¶ 29; (Doc. 21-1) at 15.
Plaintiff asserts that Defendant Tedrow‟s alleged misconduct violated his rights under the Equal Protection Clause of the Fourteenth Amendment, constituted harassment, and rose to the level of various state torts. Id. ¶ 55. Additionally, Plaintiff claims that Defendant Watkins misplaced Plaintiff‟s files, which was a violation of his rights under the Free Exercise Clause of the First Amendment, and rose to the level of various state tort laws. Id. ¶ 58
Next, Plaintiff avers that on November 17-18, 2009, during a prison lockdown, he was denied vegetarian meals, which are required by his religious beliefs. (Doc. 3) ¶ 32. Plaintiff brought this to the attention of Defendants Maceyko and Lily -- both of whom were, at the time of the alleged incident, corrections sergeants. Id. ¶ 31-33. Defendants Maceyko and Lily allegedly "mocked" Plaintiff, and ordered him to eat what he was given. Id. ¶ 32. Plaintiff asserts that he also observed Defendant Maceyko providing another inmate with a "medical required meal[.]" (Doc. 29) ¶ 19. Plaintiff threatened to file a grievance, and Defendant Maceyko responded "go ahead it won‟t go far." (Doc. 3) ¶ 33. The record indicates that Plaintiff filed grievance 297181 on November 20, 2009 -- after the lockdown was over -- and indicated that he had been unable to eat anything other than breakfast for a two day period because the meals that he was served contained meat. Id. ¶ 34; Ex. K to Compl. (Doc. 1-3) at 12 ("[f]or two days the only meal that I was able to eat was breakfast."). Plaintiff named both Defendants Maceyko and Lily in this document. Id. The record also contains a memorandum from the grievance coordinator at SCI-Greensburg, indicating receipt of this document. Ex. K. to Pl.‟s Br. in Opp‟n to Summ. J. (Doc. 28-11) at 1. Plaintiff avers that he never received a response to this grievance, see (Doc. 3) ¶ 35, and there is no indication in the record to the contrary.
Plaintiff alleges that the acts of Defendants Maceyko and Lily violated his rights under the Equal Protection Clause of the Fourteenth Amendment, and the Cruel and Unusual Punishment Clause of the Eighth Amendment. He alleges that these acts also constituted harassment, and violated various state tort laws. Id. ¶¶ 55-56.
Next, Plaintiff indicates that he was deprived of his religious headgear, to which he refers as a "crown," by Defendant Maceyko. (Doc. 3) ¶ 38. It appears from the record to have begun on March 7, 2010, when Defendant Maceyko inquired of Plaintiff about the crown.*fn2 Plaintiff asserts that he "made it clear that it was religious approved [sic] for four years and [he has] worn it around the prisons on certain occasion [sic] for the past four years." Id. ¶ 37. Plaintiff asserts in his complaint that he purchased the crown from a DOC-approved vendor in 2006, and wore it while he was housed at SCI-Graterford without incident. Id. ¶¶ 44, 47. After conferring with Defendant Watkins, who is the director of the chaplaincy at SCI-Greensburg, Defendant Maceyko confiscated the crown, per Defendant Watkins‟s opinion that this particular type of religious headgear was banned by the DOC. Id. ¶ 38. When he questioned Defendant Maceyko on the policy, Plaintiff was told to "pick it up with the chaplain [Defendant Watkins]." Ex. N to Compl. (Doc. 1-3) at 15.
Plaintiff filed grievance number 310415 concerning this incident on March 10, 2010. Id. This was denied on March 23, 2010. Ex. N to Pl.‟s Br. in Opp‟n to Summ. J. (Doc. 28-14) at 1. It appears from the record that Plaintiff granted permission to DOC officials to send his headgear to be evaluated by the Religious Accommodation Committee in Camp Hill, Pennsylvania. Ex. O to Pl.‟s Br. in Opp‟n to Summ. J. (Doc. 28-15) at 1. Plaintiff was informed in a memorandum from Defendant Watkins dated July 26, 2010, that the committee found that his headgear, which had been ""previously permitted by other institutions [,]‟" created potential security risks because it did not ""fit flush to the head and sill could aid in the concealing of contraband.‟" Id. As such, Plaintiff was not permitted to wear his crown in the DOC. Plaintiff contends that this has caused him "not [to] be able to participate in the practice of his religion‟s celebration of the resurrection in honoring the Messiah by keeping his head covered during the Passover." (Doc. 3) ¶ 49. Plaintiff also asserts that prisoners of other faiths are allowed to wear their religious headgear freely -- although he does not indicate whether their headgear fits flush to the head. Id. ¶ 48.
Plaintiff asserts that Defendant Maceyko‟s actions with respect to the confiscation of his crown violated his rights under the Free Exercise Clause of the First Amendment. Id. ¶ 57. It also constituted harassment, and violated various state tort laws. Id. Similarly, Plaintiff asserts that Defendant Watkins‟s involvement in the confiscation of his headgear violated the Free Exercise clause, constituted harassment, and violated various state torts. Id. ¶ 58.
Plaintiff affirmatively asserts that he is suing Defendants in their individual as well as official capacities. Plaintiff seeks declaratory and injunctive relief against Defendants, (Doc. 3) at 18-29), as well as costs, "special" damages, and punitive damages. Id. at 20.
1.Summary Judgment Standard
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, ". . . the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. . ." Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth ". . . specific facts showing that there is a genuine issue for trial . . ." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining ""whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.‟" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991) (quoting Anderson, 477 U.S. at 251-52). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Finally, while any evidence used to support a motion for summary judgment must be admissible, it is not necessary for it to be in admissible form. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).
2.Motion to Dismiss Standard
Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must 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). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. , 129 S.Ct. 1937, 1949 (2009). A court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Emp.s‟ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004). Nor must a court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Furthermore, it is not proper for a court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc.‟d Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
When ruling on a 12(b)(6) motion, a court may take into consideration information in addition to the complaint, such as "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). Factual allegations within documents described or identified in the complaint also may be considered if the plaintiff‟s claims are based upon those documents. Pension Benefit Guar. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). (citations omitted). Moreover, 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); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Finally, if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In order for a claim to be cognizable under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. First, the alleged misconduct giving rise to the cause of action must have been committed by a person acting under color of state law; and second, the defendants‟ conduct must have deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986)). Defendants make several arguments supporting the grant of summary judgment or dismissal in their favor. These will be addressed seriatim.
1.Eleventh Amendment Immunity
Defendants argue that Plaintiff‟s claims against them in their official capacities are barred by the Eleventh Amendment to the Constitution of the United States.
The Eleventh Amendment bars suits against states and state agencies in federal court. See Lavia v. Pa. Dep‟t of Corr., 224 F.3d 190, 195 (3d Cir. 2000). As such, a lawsuit against the Commonwealth of Pennsylvania would be barred by the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 340-341 (1979). When individual Commonwealth employees are sued in their official capacities, the action is considered to be against the Commonwealth itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). The immunities available to the individual Defendants sued in their official capacity are the same as those possessed by the Commonwealth and, accordingly, Plaintiff‟s "official capacity" section 1983 claims for damages are barred. Id. at 167. Plaintiff cannot succeed in his official capacity claims for damages against Defendants as a matter of law and, consequently, those claims must be dismissed.
Next, Defendants argue that Plaintiff‟s state law tort claims against them are barred by sovereign immunity. The doctrine of sovereign immunity bars tort claims against the Commonwealth, its officials, and ...