United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Jerry Cadet, a pro se inmate at Berks County Jail,
sued Warden Janine Quigley, Deputy Warden Russell, Kitchen
Supervisor Tassone, Captain Torres, Christian Leinbach, Kevin
Barnhardt, Mark Scott, Sandy Graffius (collectively
“Correctional Defendants”), PrimeCare Medical and
Physician Assistant Jesse Kivsah (collectively “Medical
Defendants”), alleging that he is unable to maintain an
adequate diet because every Thursday the prison serves ham
that makes him sick. Such allegations implicate Cadet's
rights under the Eighth Amendment to the United States
Constitution. Defendants filed a motion to dismiss, which the
Court grants, for failure to state a claim.
does not like the jail's “Thursday ham slice”
which, as the title implies, is apparently served for dinner
each Thursday. (Pl.'s Compl., at 3, ECF No. 5.) He
contends that the ham is unsafe to eat and that on several
occasions he vomited after dining on it. (Id.) He
claims that his throat burned, he felt dizzy and his stomach
“continue[d] to hurt for several hours[, ] sometimes a
few days making [him] unable to eat anything.”
(Id.) He alleges that he told the correctional
officers every time this occurred and on one occasion was
sent to medical, where he was told that they could not do
anything about it. (Id.) He also contends that
despite asking for an alternative meal on several occasions,
his requests were denied all but once. (Id. at 5.)
He has submitted numerous grievances describing the ham's
deficient characteristics and qualities as well as the
physical symptoms he experienced after eating it.
See (id. at 9-17). In one of his
grievances, he wrote “I'm not eating the amount I
should be eating because of this issue.” (Id.
at 14.) The prison, however, continued to serve the ham. As
of the May 28, 2016 signing of his complaint, he stated that
he had been dealing with this dilemma for eleven
filed his complaint on July 11, 2016, asserting claims
against PrimeCare Medical, Kivsah, Quigley, Torres, Russell,
Tassone and the owners of Berks County Jail. (ECF No. 5.) On
July 20 Cadet wrote a letter to the Clerk of the Court naming
Leinbach, Barnhardt, Scott and Graffius as the jail's
purported owners. (ECF No. 9.) These individuals were
substituted as defendants in the case on July 28. (ECF No.
8.) On September 8 the Correctional Defendants filed their
motion to dismiss. (ECF No. 24.) The next day the Medical
Defendants filed their motion. (ECF No. 25.) After receiving
copies of the motions, Cadet wrote to the Court on October 12
stating that it was his understanding that his case had been
dismissed and requesting to be reimbursed for the filing fee.
(ECF No. 26.) On October 21 the Court issued an order
clarifying that Cadet's case had not been dismissed and
directing Cadet to file a response to the motions by November
21. (ECF No. 27.)
date, Cadet has not responded nor requested an extension of
time in which to do so. The Court will nevertheless analyze
the motion on the merits. See Jones v. Unemployment Comp.
Bd. of Review, 381 F. App'x 187, 189 (3d Cir. 2010)
(holding that a motion to dismiss under Rule 12(b)(6) should
not be granted without an analysis of the merits,
notwithstanding local rules regarding unopposed motions,
especially where the party is not represented); Ray v.
Reed, 240 F. App'x 455, 456 (3d Cir. 2007) (same);
see also Carter v. Harper, No. 2:14- 01260, 2015 WL
3485726, at *2-3 (W.D. Pa. June 2, 2015) (analyzing pro
se complaint on the merits despite plaintiff's
failure to file a response); Malcomb v. Beaver Cty. Pa.
(Prothonotary), No. 2:13-1772, 2014 WL 2195410, at *1
(W.D. Pa. May 27, 2014), aff'd sub nom. Malcomb v.
Beaver Cty. Pa. (Prothonotary), 616 F. App'x 44 (3d
Cir. 2015) (same).
survive a motion to dismiss under Rule 12(b)(6), a plaintiff
must plead factual allegations sufficient “to raise a
right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The “mere
possibility of misconduct” is not enough. Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). The court must
construe the complaint in the light most favorable to the
plaintiff. See Connelly v. Lane Constr. Corp., 809
F.3d 780, 790 (3d Cir. 2016) (citations omitted). However, a
court need not accept as true inferences drawn by the
plaintiff that are unsupported by facts. See Cal. Pub.
Emps.' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143
(3d Cir. 2004).
Cadet filed his complaint pro se, the Court
“must liberally construe his pleadings.”
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.
2003) (citation omitted); see also Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (holding that pro se
pleadings, “however inartfully pleaded, ” must be
held to “less stringent standards than formal pleadings
drafted by lawyers”). “Courts are to construe
complaints so ‘as to do substantial justice, '
keeping in mind that pro se complaints in particular
should be construed liberally.” Bush v. City of
Philadelphia, 367 F.Supp.2d 722, 725 (E.D. Pa. 2005)
(quoting Alston v. Parker, 363 F.3d 229, 234 (3d
Cir. 2004)). Moreover, in a § 1983 action, the Court
must “apply the applicable law, irrespective of whether
a pro se litigant has mentioned it by name.”
Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)
(quoting Holley v. Dep't of Veteran Affairs, 165
F.3d 244, 247-48 (3d Cir. 1999)); see also Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this
is a § 1983 action, the [pro se] plaintiffs are
entitled to relief if their complaint sufficiently alleges
deprivation of any right secured by the Constitution.”
(quoting Higgins, 293 F.3d at 688)).
initial matter, Defendants Leinbach, Barnhardt, Scott and
Graffius must be dismissed due to a lack of personal
involvement with Cadet's claim. “In order for
§ 1983 liability to be appropriate, ‘[a] defendant
in a civil rights action must have personal involvement in
the alleged wrongdoing; liability cannot be predicated solely
on the operation of respondeat superior.'”
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988)). The plaintiff must allege personal
involvement, which “can be shown through allegations of
personal direction or of actual knowledge and acquiescence,
” and must be pled with particularity. Id.
Cadet's complaint does not contain any allegations
regarding these Defendants or their involvement with his
claim. He does not claim that any of them were aware of the
serving of the Thursday ham slice, the ham's alleged
deficiencies or his complaints regarding the ham and its
effects on him. Moreover, there is no indication that these
Defendants-who Cadet believes own the jail-work there or have
any contact with individual inmates or corrections officers.
Thus, the claims against them will be dismissed based on a
lack of sufficient personal involvement in any alleged
“the Constitution ‘does not mandate comfortable
prisons, ' . . . neither does it permit inhumane ones,
” Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(quoting Rhodes v. Chapman, 452 U.S. 337, 349
(1981)), and “the treatment a prisoner receives in
prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment, ”
id. (quoting Helling v. McKinney, 509 U.S.
25, 31 (1993)). At minimum, “prison officials must
ensure that inmates receive adequate food, clothing, shelter,
and medical care, and must ‘take reasonable measures to
guarantee the safety of the inmates.'” Id.
(quoting Hudson v. Palmer, 468 U.S. 517, 526-27
(1984)). The Eighth Amendment also “prohibits
punishments which, although not physically barbarous,
‘involve the unnecessary and wanton infliction of
pain.” Rhodes, 452 U.S. at 346 (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
“Among ‘unnecessary and wanton' inflictions
of pain are those that are ‘totally without penological
justification.'” Id. (citing
Gregg, 428 U.S. at 183; Estelle v. Gamble,
429 U.S. 97, 103 (1976)).
harms violate the Eighth Amendment, however. See
Farmer, 511 U.S. at 834. “[A] prison official
violates the Eighth Amendment only when two requirements are
met. First, the deprivation alleged must be, objectively,
sufficiently serious, . . . [it] must result in the denial of
the minimal civilized measure of life's
necessities.” Id. (internal citations
omitted). Proving that one has been deprived of the minimal
civilized measures of life's necessities requires proof
that one has been denied “basic human needs, such as
food, clothing, shelter, sanitation, medical care and
personal safety.” Griffin v. Vaughn, 112 F.3d
703, 709 (3d Cir. 1997). Only “extreme
deprivations” are sufficient to present ...