The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
This case is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 55.) For the following reasons, the motion will be granted, Plaintiff's claims will be dismissed with prejudice and this case will be closed.
Konata Matthews ("Plaintiff") initiated this action in September 2011. In his original Complaint (ECF No. 3) he brought suit under 42 U.S.C. §§ 1981, 1983, alleging that Defendants violated his federal constitutional rights, various state tort laws and several state and federal criminal statutes. He sued the following individuals in their individual capacities: Jeffrey Beard (former Secretary of the Pennsylvania Department of Corrections), Judy Smith (Superintendent's Assistant and Grievance Coordinator at SCI-Pine Grove), Susan Myers (CHCA at SCI-Pine Grove), T. Bearer (Correctional Food Service Manager at SCI-Pine Grove), Carol Zubur (Mail Inspector Supervisor at SCI-Pine Grove), Mark Thomas (Security Lieutenant at SCI-Pine Grove), E.D. Yeager (Correctional Officer at SCI-Houtzdale), and Jaime B. Boyd (Assistant Counsel of the Governor's Office of General Counsel). Defendants filed a Motion to Dismiss (ECF No. 18), which the Court granted on June 14, 2012 (ECF No. 50). As a result, the majority of Plaintiff's claims were dismissed with prejudice including his claims against Defendants Beard, Thomas and Boyd. Plaintiff, however, was granted leave to file an Amended Complaint in order to attempt to state a claim with regard to several of his claims. Plaintiff filed his Amended Complaint on July 13, 2012. (ECF No. 51). Defendants have again filed a Motion to Dismiss. (ECF No. 55.) Although Plaintiff was given an opportunity to respond in opposition to the motion, he filed no response and the time to do so has since expired. As such, Defendants' motion is now ripe for review.
Plaintiff alleges that on December 22, 2009, while he was exiting the cafeteria at SCI-Pine Grove, Defendant Bearer, the Food Service Manager, asked if Plaintiff was interested in working in Food Service. (ECF No. 51 at ¶ 13.) When Plaintiff said no, Defendant Bearer stated she was not interested in his employment but instead wanted to have sex with him. Id. Plaintiff alleges that he reported this incident to Security Lieutenant Defendant Thomas who informed Plaintiff that he would speak to Defendant Bearer. Id. at ¶ 14. On December 29, 2009, Defendant Bearer allegedly approached Plaintiff and stated that she hated him "with a passion" and that he had better watch what he eats because she was "gone [sic] prepare a special meal just for you you Islamic nigger." Id. at ¶ 15. The following day, Plaintiff filed a complaint against Defendant Bearer to the DOC's Office of Professional Responsibility ("OPR"). Id. at ¶ 16.
Plaintiff next alleges that he was placed in the infirmary on January 1, 2010, after he was assaulted by three other inmates, and that on January 5, 2010, Defendant Myers, the CHCA, approached him demanding that he withdraw the grievance he had filed against the physician's assistant for denial of proper health care and racial harassment. Id. at ¶¶ 17-18. When Plaintiff refused to do so, Defendant Myers allegedly stated that Plaintiff was in for a "rude awakening," called him a "black bastard" and stated "I hate you Muslims." Id. at ¶ 18. Plaintiff alleges that Defendant Myers approached him on January 11, 2010, and told him that his complaints to OPR "were faxed back to us you stupid Muslims. I got a hell of a dosage for you nigger." Id. at ¶ 20.
Next, Plaintiff alleges that on January 12, 2010, Defendant Zubur delivered mail to the infirmary and handed Plaintiff his Final Call religious newspaper with a swastika drawn on it. Id. at ¶ 21.
Plaintiff alleges that on January 14, 2010, while still in the infirmary, he told Defendant Myers that he had not yet received his breakfast tray. Id. at ¶ 22. Defendant Bearer subsequently retrieved a breakfast tray but instead of delivering it to Plaintiff she took it into Defendant Myers' office. When Defendant Bearer came out of Defendant Myers' office a few minutes later and delivered the tray to Plaintiff, he immediately noticed some "tablets" mixed into his Rice Krispies cereal. Id. The next day, Plaintiff sent five of the nine tablets from his cereal to a nurse who told him they were nitroglycerin tablets. Id. at ¶ 23. After explaining that they had been mixed in his food the previous day, the nurse informed him that she was going to contact the security office. Id.
Plaintiff alleges that Defendant Thomas visited him in in the infirmary on January 17, 2010, and requested to review the swastika on his religious newspaper and the nitroglycerin tablets that had allegedly been mixed into his cereal. Id. at ¶ 24. Plaintiff states he gave Defendant Thomas the drawing, five of the nine tablets, and a grievance regarding both matters, and Thomas said all the evidence would be held in the security office for investigation. Id. He alleges that, on January 20, 2010, he sent Defendant Smith a request asking whether Defendant Thomas had forwarded his grievance regarding the swastika and tablets but that Defendant Smith failed to respond to his request. Id. at ¶ 25.
Plaintiff filed a motion for a temporary restraining order in a
pending case in the Middle District of Pennsylvania*fn1
regarding the swastika drawing and the nitroglycerin tablets,
and he requested that he be transferred to another facility. Id. at ¶
26. Plaintiff states that he attached the tablets "as evidence," but
that they were returned to him by the Clerk's office the following
day. Id. at ¶ 27. On February 8, 2010, Defendant Boyd filed a brief in
opposition to Plaintiff's motion for temporary restraining order
containing, among other things, declarations from Defendants Thomas,
Smith, and Myers stating that Plaintiff's allegations were fabricated.
Id. at ¶ 28.
Plaintiff alleges that he received another Final Call newspaper with a swastika drawn on it, this time from Defendant Myers on February 15, 2010. Id. at ¶ 29. Plaintiff alleges that Defendant Bearer delivered him his lunch tray on February 19, 2010, on which there was an envelope folded up inside of his Styrofoam cup addressed to Plaintiff with a "happy face" sticker. Id. at ¶ 30. Plaintiff claims that the envelope contained a "death threat" which said "we kill rat-coons." Id. Plaintiff says he "positively identified" the handwriting as Defendant Bearer's. Id.
Plaintiff alleges that Defendant Zubur delivered mail to the infirmary on March 2, 2010, and as she handed him his Final Call newspaper with another swastika drawn on it she allegedly stated "you black ass Muslim monkeys better stop referring ...