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Glenn v. Delbalso

United States District Court, M.D. Pennsylvania

June 13, 2014

TYRONE GLENN, Plaintiff,
THERESA DELBALSO, et al., Defendants.


YVETTE KANE, District Judge.

Tyrone Glenn ("Plaintiff"), at the time an inmate at the State Correctional Institution at Retreat ("SCI-Retreat"), Pennsylvania, filed this civil rights complaint pursuant to 42 U.S.C. § 1983. Named as defendants are the following SCI-Retreat employees: Theresa DelBalso, Superintendent; James Porzucek, Food Service Manager, and Christine McMillan, Inmate Grievance Coordinator. Also named as a defendant is Dorina Varner, Secretary of Inmate Grievances and Appeals for the Pennsylvania Department of Corrections. Plaintiff has filed a motion to proceed in forma pauperis in this matter.[1] Pursuant to 28 U.S.C. § 1915, the Court is required to examine the complaint for legal sufficiency and to dismiss a complaint if it is frivolous, malicious or fails to state a claim on which relief may be granted. For the reasons that follow, the complaint will be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

I. Allegations of the Complaint

During the time period from July 16, 2013 through July 27, 2013, Plaintiff filed five (5) grievances pursuant to DC-ADM 804, the Inmate Grievance System of the Pennsylvania Department of Corrections. He states that each grievance complained about the lack of proper food portions served to him on his meal trays. Each of these grievances was denied as frivolous by Defendants DelBalso, Porzucek and Varner. On August 7, 2013, Defendant McMillan placed Plaintiff on a 90-day grievance restriction sanction pursuant to DC-ADM 804, Section 1 which provides for such imposition where an inmate files five (5) frivolous grievances within a 30-day period.[2] Plaintiff's appeal of the grievance restriction sanction to Defendants DelBalso and Varner were unsuccessful.

In the instant complaint, Plaintiff claims that Defendants improperly denied his grievances and failed to follow the procedures set forth in DC-ADM 804 when they did not include sufficient reasons for finding his grievances frivolous. When he brought these violations to the attention of Defendants Delbalso and Varner, they took no action. Plaintiff also believes that Defendant Delbalso retaliating against him for filing the grievances by denying them as frivolous. Plaintiff seeks declaratory, injunctive, compensatory and punitive relief.

II. Discussion

28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in federal court and wish to proceed in forma pauperis. Section 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.

(Emphasis added.) Federal Rule of Civil Procedure 12(b)(6) allows a defendant, in response to a complaint, to file a motion to dismiss a claim or claims for "failure to state a claim upon which relief can be granted...." Section 1915(e)(2)(B)(ii) provides this ground for summary dismissal of a complaint (before service) - failure to state a claim under Rule 12(b)(6) principles. A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. Under Fed.R.Civ.P. 12(b)(6), the court must accept as true the factual allegations in the complaint, and construe any inferences to be drawn from the allegations in Plaintiff's favor. See Burtch v. Milberg Factors, Inc. , 62 F.3d 212, 220 (3d Cir. 2011), cert. denied, ___ U.S. ___ , 131 S.Ct. 1861 (2012)(citing In re Ins. Brokerage Antitrust Litig. , 618 F.3d 300, 314 (3d Cir. 2010. However, as the Supreme Court of the United States made clear in Bell Atlantic Corp. v. Twombly, "[f]actual allegations must be enough to raise a right to relief above the speculative level." 550 U.S. 554, 555 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(holding that, while the complaint need not contain detailed factual allegations, it must contain more than a "formulaic recitation of the elements" of a constitutional claim and must state a claim that is plausible on its face)(quoting Twombly, and providing further guidance on the standard set forth therein).

To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United States Court of Appeals for the Third Circuit instructs that a district court must take a three-step approach when presented with a motion to dismiss for failure to state a claim. Santiago v. Warminster Twp. , 629 F.3d 121, 130 n. 7 (3d Cir. 2010). First, "the court must tak[e] note of the elements a plaintiff must plead to state a claim." Id . at 130 (quoting Iqbal , 556 U.S. at 675). Second, the court "should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.'" Id . (quoting Iqbal , 556 U.S. at 679). Third, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'" Id . (quoting Iqbal , 556 U.S. at 679).

It is further well established that a court must give a plaintiff the opportunity to amend a deficient complaint, regardless of whether the plaintiff requests to do so, when dismissing a case for failure to state a claim unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc. , 482 F.3d 247, 251 (3d Cir. 2007).

A. Liability for the denial of grievances and grievance appeals

Individual liability will be imposed under Section 1983 only if the state actor played an "affirmative part" in the alleged misconduct. See Evancho v. Fisher , 423 F.3d 347, 353 (3d Cir. 2005)(quoting Rode v. Dellarciprete , 845 F.2d 1195, 1207 (3d Cir. 1998)). Liability "cannot be predicated solely on the operation of respondeat superior." Id . In other words, defendants in Section 1983 civil rights actions "must have personal involvement in the alleged wrongs... shown through allegations of personal direction or of actual knowledge and acquiescence." Atkinson v. Taylor , 316 F.3d 257, 271 (3d Cir. 2003); Rode , 845 F.2d at 1207-08.

Plaintiff first seeks to impose liability upon Defendants due to their denial of his grievances as frivolous, the denial of his appeals therefrom, and his appeals with respect to his placement on grievance restriction. It is well-settled that inmates do not have a constitutional right to a prison grievance system. See Jones v. North Carolina Prisoners' Labor Union, Inc. , 433 U.S. 119, 137-38 (1977); Speight v. Sims , 283 F.Appx. 880, 881 (3d Cir. 2008)(citing Massey v. Helman , 259 F.3d 641, 647 (7th Cir. 2001)("[T]he existence of a prison grievance procedure confers no liberty interest on a prisoner."). Moreover, participation in the after-the-fact review of a grievance or appeal is insufficient to establish personal involvement on the part of those individuals reviewing grievances. See Rode , 845 F.2d at 1208 (finding the filing of a grievance insufficient to show the actual knowledge necessary for personal involvement); Brooks v. Beard , 167 F.Appx. 923, 925(3d Cir. 2006)(holding that a state prisoner's allegation that prison officials and administrators responded inappropriately, or failed to respond to a prison grievance, did not ...

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