The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly
Plaintiff Joseph Laurensau ("Plaintiff" or "Laurensau"), is a frequent litigant with three cases currently pending in this Court arising out of alleged conspiracies to violate his constitutional rights in each of the institutions where he has been incarcerated for the past four years. See, Civil Action Nos. 10-65 (SCI -- Greene); 12-623 (SCI -- Greene) and 11-1054 (SCI -- Fayette). Plaintiff is presently incarcerated at the State Correctional Institution at Graterford, and commenced this pro se civil action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, against various officers and employees at the State Corrections Institution at Fayette ("SCI -- Fayette") for the alleged violation of his rights under the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution. Defendants have filed a Motion for Summary Judgment [ECF No. 25] as to all of Plaintiff's claims. Defendants and Plaintiff have filed memoranda of law, concise statements of undisputed (and disputed) facts, and exhibits in support and in opposition to the pending motion, which is ripe for review. For the following reasons, the Motion for Summary Judgment is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff commenced this action on August 15, 2011, with the filing of a Motion for Leave to Proceed In Forma Pauperis, which was granted in conjunction with the filing of Plaintiff's Complaint on September 9, 2011. [ECF Nos. 1, 2, 3]. All parties have consented to proceed under the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c), [ECF Nos. 5, 15], and after the close of pleadings and discovery in this matter, Plaintiff's deposition, and the filing of Plaintiff's Pre-Trial Statement with proposed evidence and witnesses, [ECF No. 23], Defendants have moved for the entry of summary judgment in favor of each named Defendant.
Plaintiff's claims in this action arise out of his incarceration at SCI -- Fayette. Plaintiff alleges that his First Amendment free exercise of religion rights have been violated by the discontinuation of his Kosher Diet status. He next claims that his food was contaminated, his property was stolen and false misconducts were issued against him in retaliation for complaining about the inadequacy of the contents of the Kosher Diet, or to "discourage Plaintiff's faith." [ECF No. 3, p. 4; No. 23, p.1]. Alternatively, Plaintiff alleges that he was retaliated against for complaining about mail delivery issues after erotic photos and art books he ordered from outside vendors were not delivered through the prison mail system.*fn1 [ECF No. 26-2, pp. 20-25].
Plaintiff contends that in February 2009, in keeping with his religion, he requested the Kosher Diet program, consisting of bagged meatless meals. On March 8, 2009, Plaintiff filed a grievance complaining of the inadequacy of starch offerings in the Kosher Diet because of missing graham crackers or peanut butter. [ECF No. p. 26-3, p. 26]. In responding to Plaintiff's grievance, the SCI-Fayette Food Service Manager informed Plaintiff that the Kosher bags are inspected to make sure they are properly made and that the Kosher menu is strictly adhered to. Plaintiff was told that if there were discrepancies in the contents of his bagged meals, he was to immediately notify the issuing officer so that Food Service could determine if an item was indeed missing. [ECF No. 30-2]. Plaintiff has presented no evidence that he ever contemporaneously notified an officer that items were missing or that he filed any subsequent grievances concerning the nutritional adequacy of a particular meal. Instead, on April 2, 2009, Plaintiff submitted an Inmate Request Slip, seeking to discontinue the Kosher Diet "due to inadequate starch." [ECF No. 26-2, p. 4]. Because Plaintiff did not file the appropriate DOC form, his slip was not treated as a formal request to remove him from the Kosher Diet program, and Plaintiff was later permitted to rescind his removal request. [ECF No. 26-2, p. 6].
In the following months, Plaintiff took at least two regular trays of food, which was interpreted as evidence that his request for a Kosher Diet was not based upon sincerely held religious convictions. [ECF No. 26-2, pp. 6-12]. Plaintiff received a warning on May 27, 2009, and was told that if he took another regular tray, he would be removed from the Kosher Diet. [ECF No. 26-2, p. 6]. The following day, Plaintiff took a regular tray. Defendant Knizer issued a notice of non-compliance concerning religious dietary accommodation rules. Id.; 26-2, p. 8. Consequently, Plaintiff was removed from the Kosher Diet for failing to follow regulations concerning religious accommodations. Plaintiff was informed that he was eligible to reapply for the Kosher Diet on August 24, 2010. [ECF No. 26-2, p. 12]. There is no evidence that Plaintiff has done so and, presumably, he continues to eat non-religious specific meals.
Plaintiff alleges that "all Defendants in cahoots of entrapment plan against the Plaintiff. There was soliciting of a dinner tray for a shower and the Plaintiff's Kosher Bag for a shower. Plaintiff sold a total of 2 showers. Plaintiff was told "your bag ain't come do you want a tray, which is a set up." [ECF No. 29, p. 3]. In a "Request to Staff Member" dated September 21, 2009, Plaintiff also claims that he was taken off the Kosher Diet because he kicked his door and complained about abuse while the Central Office was visiting. [ECF No. 30-3].
Plaintiff presents several unsubstantiated alternative theories for changing his diet; first, that he sold his meals for showers; second, that his meals were denied because of his behavior in kicking his cell door; third, that he was removed from the Kosher Diet in retaliation for complaining that the bagged meal had insufficient starch; and, fourth, that he was being discouraged from practicing his religion. However, based on the uncontroverted evidence, because Plaintiff had once requested to be removed from the Kosher Diet and then opted for regular trays on successive days two months later, Defendant Chaplain Frank Lewis informed Plaintiff that he was "taken off because [he] did not follow the regulations, [was] warned and still didn't follow the regulations." Id. Plaintiff claims his removal from the Kosher Diet constitutes an unconstitutional infringement of his First Amendment right to the free exercise of religion.
Plaintiff next alleges that in the Spring of 2009, he ordered 24 copies of "Heavenly Letters Erotic Photos" and three "art books." Plaintiff alleges that Defendants Barkley, Johnson and Knizer tampered with his mail, and his orders were never received. [ECF No. 3, pp. 4-5].
Plaintiff alleges that the apparent theft of his mail violates his rights under the Fourteenth Amendment.
The record establishes that Plaintiff's photos were delivered, and placed with his stored property because of limitations on the number of photos permitted in a Restricted Housing Unit cell. Plaintiff was informed of the location of the photos and also informed of the procedure to exchange in-cell photographs for those placed in storage. [ECF No. 26-3, pp. 21 -- 25]. The missing art books had been "disallowed" by prison officials and returned to the vendor. [ECF No. 30-9, p. 1]. Apparently, the vendor claims it does not have a record of the return and so has not refunded Plaintiff's money. [ECF No. 30-10].
On August 20, 2009, Plaintiff filed a grievance concerning the theft of his mail and alleged that he had been told by "other inmates" that his photos were distributed to "confidential informers who conspired with officials to hijack my mail order." [ECF No. 26-3, p. 17]. On August 26, 2009, Plaintiff asked Defendant Johnson, the officer monitoring Plaintiff's cell block, about his missing art book and photos. Plaintiff alleges that an inmate block worker, "Feola," who was "hired" by Defendant Johnson to do Johnson's dirty work, yelled at Plaintiff to "shut the fuck up I'm a put my nuts on your graham crackers tonight." Plaintiff claims that, "later on Johnson served my Kosher Diet my graham crackers was crushed saliva in my cottage cheese and a sticky pad note which states "fuck yo photos." [ECF No. 30, p. 3]. Plaintiff believes that Defendant Barkley and/or Defendant Johnson and/or Defendant Knizer permitted Feola access to his food tray, resulting in the contamination of his dinner. Plaintiff alleges that two days later, on August 28, 2009, Feola spit chewing tobacco and saliva into Plaintiff's cottage cheese, crushed his graham crackers and took his saltines. [ECF No. 3, p. 4]. Plaintiff concedes that because he believed his cottage cheese was contaminated, he dumped it on the floor and shoved it under his cell door into the hallway and then washed it away with "some water." [ECF No. 30, p. 5].
Observing water leaking from under Plaintiff's door, Defendant Barkley investigated and discovered that Plaintiff was using a cup to throw toilet water on the floor. Defendant Barkley began shutting off Plaintiff's in-cell water supply, using a valve located immediately outside Plaintiff's cell door. Seeing Defendant Barkley, Plaintiff threw toilet water through the cell door, striking Defendant Barkley on his left arm, leg and head. [ECF No. 26-2, p. 34]. Defendant Barkley obtained precautionary medical treatment and Plaintiff was extracted from his cell, moved to a disciplinary custody cell and charged with misconduct. [ECF No. 26-3, pp. 2-5]. Plaintiff pled no contest to two charges, and not guilty to a charge of assault, which was assessed because of Barkley's need for medical treatment. Plaintiff alleges that the misconduct is "false," and constitutes retaliation for complaining about the missing photos.
Plaintiff's misconduct hearing resulted in a finding of guilty for tampering with property and assault, and Plaintiff was assessed 90 days of disciplinary custody status. [ECF No. 26-2, 34-35]. Plaintiff alleges he was placed on a Behavior Modified Meal for three days and lost yard, library and property privileges for seven days. In addition, pursuant to DOC policy, during the extraction, Plaintiff's eyeglasses were removed and his cell property was stored. Plaintiff alleges that the blue sticky note, which he claims is his proof that the cottage cheese was contaminated, was stolen during the cell search. Plaintiff also alleges that he was given another inmate's eyeglasses, but he did not notice that the prescription was different because prison lighting is dim. [ECF No. 26-2, p. 27-29]. Plaintiff contends that Defendant Ramerowicz intentionally switched the glasses, as part of a scheme to sell inmate property on the "black market." This left Plaintiff without glasses because, Plaintiff alleges, inevitably, the other inmate demanded that the glasses be returned. Plaintiff alleges that this series of events occurred in retaliation for his initial complaints regarding his missing photos, in violation of the First and Fourteenth Amendments. He also contends that his missing property and loss of his eyeglasses violates his Fourth and Fourteenth Amendment rights.
In sum, Plaintiff alleges claims arising under the First Amendment of the United States Constitution for the denial of his right to exercise religious beliefs through the discontinuation of Plaintiff's Kosher Meal status; a First Amendment claim for retaliation arising out his filing of administrative grievances which resulted in the filing of false misconducts, housing changes and privilege limitations, the contamination of his food and the discontinuation of his Kosher Meal status; an Eighth Amendment conditions of confinement claim for the contamination of his food; a Fourth Amendment claim arising out of the confiscation or loss of his personal property; and a Fourteenth Amendment claim for the filing of false misconducts, and the deprivation of some of his property and incoming mail.
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the record indicates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element 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 or the lack thereof that demonstrates the absence of a genuine issue of material fact. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir.1992). 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, 587 (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) (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(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv--A--Portion, Inc., 909 F.2d 1524, 1542 (3d Cir.1990).
A.First Amendment Exercise of Religion Claim
Plaintiff claims that Defendants violated his First Amendment right to exercise his religion by denying him a diet consistent with his Jewish faith. Defendants move for the entry of judgment in their favor as a matter of law because Plaintiff's removal from the Kosher Diet resulted from Plaintiff's noncompliance with dietary requirements. Defendants contend that Plaintiff's noncompliance evidences the absence of a sincerely held religious belief triggering the need to accommodate him through a special diet. Plaintiff counters that his conduct in taking non-religious trays was a conspiracy to "set him up;" that he traded the trays for showers in the underground prison economy; that he was removed from the Kosher Diet because he was retaliated against after ...