United States District Court, M.D. Pennsylvania
RICHARD CAPUTO, UNITED STATES DISTRICT JUDGE.
Fernando Nuñez, a state prisoner proceeding pro
se, has sued under 42 U.S.C. § 1983 for the alleged
hindrance of his ability to access the courts, various
incidents of retaliation, the failure of staff to protect him
from harm and, his exposure to unsanitary and frigid
conditions while dining. He also alleged interference with
his ability to practice his religion in violation of the
Religious Land Use and Institutionalized Persons Act
(RLUIPA). Presently before the Court is the Defendants'
motion to dismiss the Amended Complaint.
reasons that follow, the motion will be denied in part and
granted in part.
Nuñez filed his Complaint on April 8, 2014. (ECF No.
1, Compl.) Defendants then filed a partial motion to dismiss.
After Mr. Nuñez sought leave to file an amended
complaint, Defendants' motion was dismissed without
prejudice and Plaintiff was granted leave to file an amended
complaint. (ECF Nos. 33 and 34.) On May 9, 2016, Mr.
Nuñez filed a thirty-three page Amended Complaint with
over one hundred pages in support. (ECF Nos. 40 and 41.) All
Defendants are employed by the Pennsylvania Department of
Corrections (DOC). All but one of the Defendant, Deputy
Secretary Klopotoski, worked at SCI-Smithfield at all times
relevant to this action. The remaining DOC Defendants are:
Superintendent John D. Fisher; Corrections Officer (CO)
Wertz; CO Hazlett; CO J.R. Householder; CO B. Goughnour; Sgt.
Britton and Lt. Eichenlaub. The Defendants filed a motion to
dismiss the Amended Complaint on July 15, 2016. (ECF No. 47.)
Mr. Nuñez filed his opposition materials on December
6, 2016. (ECF No. 69.) Defendants did not file a Reply brief
in support of their motion to dismiss.
Nuñez converted to Islam in 2003. (ECF No. 40, Am.
Compl., ¶13.) The DOC enforces a statewide policy
prohibiting inmates from altering the length of state issued
trousers. Altered state issued clothing is considered
contraband and may subject the inmate to disciplinary action.
Muslim inmates at SCI-Smithfield are only permitted to
“cuff” or “roll up” their pant legs
during communal Jum'ah services. (Id., ¶
15.) It is Mr. Nunez's sincerely held belief that wearing
his pants 2” - 3” above his ankle bone is a
religious tenet of his Islamic faith. (Id., ¶
17.) On November 15, 2009, Mr. Nuñez submitted an
inmate religious accommodation request form (RAR) to
SCI-Smithfield's Facility Chaplain Program Director
(FCPD) requesting to cuff his pants above his ankle at all
times, not just during religious services. (Id.,
¶ 16; see also ECF No. 41, p.3.) After he was
interviewed by the FCPD, his request was forwarded to the
Religious Accommodation Review Committee (RARC). The RARC
recommended to Regional Deputy Klopotoski that Mr.
Nuñez's RAR be denied “in light of
Department policy and a security concern that prison garb
(when altered) can be used for gang identification.”
(ECF No. 40, ¶ 19.) On February 11, 2010, Regional
Deputy Klopotoski adopted the RARC's recommendation and
denied Plaintiff's RAR request. (Id., ¶ 20;
see also ECF No. 41, p. 5.) Mr. Nuñez filed
Grievance 312548-10 concerning the denial of his RAR. His
grievance was denied by the Secretary's Office of Inmate
Grievance Appeals (SOIGA) on June 1, 2010. (ECF No. 41, pp. 7
- 10.) “Soon thereafter, ” Plaintiff received a
disciplinary misconduct for refusing to obey a direct order
to roll down his pant legs. (ECF No. 40, ¶ 23.)
November 6, 2011 - Restrict Housing Unit
November 4, 2011, at approximately 8:15 a.m., Mr.
Nuñez was charged with fighting with another inmate.
He was removed from SCI-Smithfield's general population
and placed in the Restricted Housing Unit (RHU) in
administrative custody pending his disciplinary hearing.
(Id., ¶ 24.) Consequently all of his personal
property was packed and delivered to the RHU to be
inventoried by RHU staff. (Id., ¶ 24.)
Nuñez was taken to the RHU's “strip
cage” to be processed into the RHU. He advised Sgt.
Sheetz (non-defendant) that he had a November 9, 2011 legal
deadline and asked that he let the property officers on the 2
p.m. to 10 p.m. shift, CO Householder and Sgt. Britton), know
that he will need access to his property. (Id.,
¶ 27.) Sgt. Sheetz assured Mr. Nuñez that he
would advise the RHU property officers of his concerns.
approximately 6:30 p.m. on November 6, 2011, CO Householder
and CO Goughnour began to inventory Plaintiff's property
and “discovered he had legal documents that did not
bare (sic) his name.” (Id., ¶ 29.) As a
result Sgt. Britton requested a search team to bring Mr.
Nuñez to the property room. Defendants Householder,
Goughnour, Britton, Wertz and Hazlett were present in the
property room at the same time as Mr. Nuñez.
Defendants Britton and Wertz advised Plaintiff that he had
“way to (sic) much property. On top of the fact that
you have other people's legal work. Why? You some type of
jail house lawyer?” (Id., ¶ 32.) Mr.
Nuñez advised that Superintendent Fisher had approved
his request to have an additional storage box of legal
materials for his active cases as evidenced by the large
approval slip taped on the box lid. As for the legal
documents with other people's names on it, they related
to his co-defendants. (Id., ¶ 33.) CO Wertz
questioned the validity of Superintendent Fisher's
approval and expressed frustration in trying to determine
what property was legitimately Plaintiff's. CO Wertz
determined he would issue Mr. Nuñez a confiscation
slip for all of his property “and hold it until Lt.
Eichenlaub investigates this shit and determine[s] what he
wants to do.” (Id., ¶ 34.) Plaintiff
objected telling everyone present he had a November 9, 2011
deadline. Defendants Britton and Householder advised CO Wertz
that Sgt. Sheetz did advise them of Plaintiff's deadline.
Mr. Nuñez told CO Wertz that a copy of his court order
setting forth the deadline was in the folder bearing his
criminal case number. While retrieving the court order to
show CO Wertz, Plaintiff said “Come on Wertz you know
if you confiscate my legal work I'm gonna miss my
deadline. Then I'm gonna have to file a grievance.”
(Id., ¶¶ 35 - 36.) CO Wertz asked
Plaintiff if he was threatening him. Mr. Nuñez
responded that “[i]ts not a threat. I can file a
grievance if I want to.” (Id., ¶ 37.) CO
Hazlett “began to instigate the exchange of
words” between Plaintiff and CO Wertz by adding
“[t]hat sure as hell sounds like a threat.”
(Id., ¶ 38.) Upset by the encounter CO Wertz
said he “was gonna allow you to have the documents you
needed to work on your case ass-hole. But your mouth fucked
that up.” (Id., ¶ 39.) Mr. Nuñez
turned to Sgt. Britton and asked if he was going to allow
“them” to take all of his legal work. Sgt.
Britton responded that “[i]ts their call. Not
[his].” (Id., ¶41.) Plaintiff's
request for a grievance was denied by CO Wertz who then began
to utter racially derogatory slurs that were discriminatory
and offensive. (Id., ¶ 41.) “We don't
have grievances in Spanish. You people can't read or
write English anyway.” (Id., ¶ 42.)
Plaintiff then asked Sgt. Britton “to speak to a white
shirt”. Sgt. Britton laughed and instructed CO
Householder and CO Goughnour to escort Mr. Nuñez back
to his cell after he signed a property receipt.
(Id., ¶ 43.) While Plaintiff was leaving, CO
Wertz and CO Hazlett began searching Plaintiff's
typewriter. Prior to leaving the RHU, Mr. Nuñez
learned that CO Wertz broke his typewriter. (Id.,
¶ 45 and ¶ 47.)
November 14, 2011, Mr. Nuñez grieved (Grievance
389468-11) regarding the confiscation of his legal materials
and that “he was unable to meet a deadline in his
criminal case causing his meritorious claims to be forever
waived under state law”. (Id., ¶46;
see also ECF No. 41, pp. 25 - 54.) The grievance was
denied at final review on April 2, 2012. (Id., p.
54.) On November 18, 2011, Plaintiff filed Grievance
390184-11 concerning the damage to his typewriter. (ECF No.
40, ¶ 47; see also ECF No. 41, p. 56.)
December 20, 2011 - Conversation with CO Wertz
approximately 6:40 p.m. on December 20, 2011, CO Wertz
approached Mr. Nuñez. He told Plaintiff that CO
Eichenlaub had interviewed him about the confiscation of his
legal property. He expressed that “Eichenlaub and
Fisher [are] up [his] ass[.] [b]ecause legal at Central
Office has to get involved.” (ECF No. 40, ¶ 49.)
He stated that he cannot go to court and say he withheld
Plaintiff's legal material knowing he had a deadline. He
said he only took Plaintiff's property because Sgt.
Britton and CO Householder did not want to search it. CO
Wertz admitted that when he flipped Mr. Nuñez's
typewriter over, the cover broke off. He said he would
replace the typewriter but “Eichenlaub wants
[Plaintiff] to withdraw [his] grievance.”
(Id., ¶ 51.) Mr. Nuñez declined the
offer noting that “[he] had to file a lawsuit to get
[his] rights back.” (Id., ¶ 52.)
April 16, 2012 - Cell Search by CO Wertz and CO
April 16, 2012, an investigative cell search was conducted of
Mr. Nuñez's cell. (Id., ¶ 53.) The
cell search was conducted at the direction of Officers Smith
and another officer because it was believed Mr. Nuñez
had a map of the prison compound. (ECF No. 41, p. 99,
Grievance 411463-12 and ECF No. 41-1.) The 6 a.m. - 2 p.m.
search team commenced the search and removed two large trash
bags of items from the cell Plaintiff shared with his
cellmate. At some point, CO Wertz and CO Hazlett “of
the 2 - 10 search team” took over the search.
(Id.) CO Wertz and CO Hazlett removed one large
trash bag filled with unspecified items from the cell.
(Id.) Neither search team issued Mr. Nuñez a
claims CO Wertz and the other members of the search team
retaliated against Plaintiff by “stealing his
property.” He also claims CO Wertz told Plaintiff's
cellmate that he was a snitch. (Id., ¶ 54.)
There is no mention of CO Wertz calling Mr. Nuñez a
snitch in the grievance submitted by Plaintiff along with his
Renovations of SCI-Smithfield's Dining Hall
October 2011 through June 2012, SCI-Smithfield's inmate
dining hall underwent major renovations. Defendant Fisher
authorized his staff to continue normal feeding operations
during, and for the duration of, the construction.
was performed using welders, saws and other machines while
inmates ate their meals in the dining hall. During the
renovations, construction workers divided the dining hall,
from floor to ceiling, with a plastic tarp. The North side of
the dining hall was where non-dietary meals were served.
Medically approved meals were served on the South side. The
South side contained a rough-framed side opening which
allowed freezing cold wind to enter while the North side was
protected from the wind by the tarp.
Nuñez ate three meals a day on the South side of the
dining hall. He was exposed to pollutants like carbon
monoxide, metallic fumes, and sawdust while he dined.
(Id., ¶¶ 55 - 62.) In the month of January
temperatures in the dining hall fell below 45<F.
(Id., ¶ 63.) While staff were permitted to wear
winter hats and gloves Mr. Nuñez was repeatedly
admonished for wearing a hat while eating. In Mr.
Nuñez's January 27, 2012 grievance he requested
permission to wear his hat and gloves to meals.
(Id., ¶ 64; see also ECF No. 41, pp.
69 - 73.) The individual responding to the grievance noted
that the kitchen was experiencing “a heating
issue” and noted the institution “had below
normal winter temperatures” during the time in question
and that once the problem was brought to the attention of
Captain Southerland, the Maintenance department resolved the
situation “a couple of days later.” (ECF No. 41,
p. 70.) The doorway to the dining hall was also changed.
However, “rules regarding dining hall attire will not
be altered during the construction period.”
(Id.) After personally visiting the dining hall
during breakfast, Superintendent Fisher affirmed the denial
of Plaintiff's request to wear a hat during meals.
(Id., p. 72.) Mr. Nuñez argues the conditions
were not corrected but continued for two months. (ECF No. 40,
p. 67.) In February 2012, conditions worsened as roaches and
pigeons infested the dining hall. Pigeon feces and feathers
regularly fell upon tables, food trays, serving stations,
water pitchers, and Mr. Nuñez's clothing.
(Id., ¶ 74 - 76.) Plaintiff swatted vermin from
the non-sanitized table tops and eating areas. (ECF No. 40,
p. 69.) Mr. Nuñez grieved the bug infestation and the
unsanitary dining conditions in Grievances 405508-12 and
400510-12. The institution's Safety Manager responded
that staff was “aware of the birds and roaches in this
area and are in the process of trying to get rid of these
pests from the area.” (ECF No. 41, p. 80.) He also
noted that the kitchen staff cleaned and sanitized the dining
area before and after each meal line. (Id.; see
also pp. 80 - 88.) Exterminators were hired to eradicate
the pests. Mr. Nuñez claims that in addition to being
unsuccessful in their efforts, the extermination process left
the air in the dining hall saturated with “a foul odor
of decaying roaches and bird feces.” (ECF No. 40,
¶ 72.) As a consequence, Mr. Nuñez experienced
coughing, migraines, skin, eye and nasal irritation.
(Id., ¶ 73.)
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, for failure to state a
claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). The question is “not whether
[plaintiff] will ultimately prevail ... but whether his
complaint [is] sufficient to cross the federal court's
threshold.” Skinner v. Switzer, 562 U.S. 521,
529 - 30, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011)
(internal citations and quotations omitted). A defendant
bears the burden of establishing that a plaintiff's
complaint fails to state a claim. See Gould Elecs. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000).
inquiry at the motion to dismiss stage is "normally
broken into three parts: (1) identifying the elements of the
claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded
components of the complaint and evaluating whether all of the
elements identified in part one of the inquiry are
sufficiently alleged." Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
order to survive dismissal for failure to state a claim, a
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)); see also Connelly v. Lane Const. Corp.,
809 F.3d 780, 787 (3d Cir. 2016). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. While the
court must accept as true all of the allegations in the
complaint, legal conclusions are not entitled to the same
assumption of truth. Iqbal, 566 U.S. at 678, 129
S.Ct. at 1949; see also Connelly, 809 F.3d at 787.
To be sufficient, a complaint needs to set forth a plausible
“short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), sufficient to “‘give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.'” Erickson v. Pardus, 551 U.S. 89,
93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per
curiam) (quoting Twombly, 550 U.S. at 555, 127 S.Ct.
at 1964). Formulaic recitations of the elements of a cause of
action will not suffice. The factual allegations of the
complaint “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555, 127 S.Ct. at 1965. The court need not assume
that the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power
Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or
credit a complaint's “ 'bald assertions'
” or “ 'legal conclusions, '”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Likewise, the Court has no duty to “conjure up
unpleaded facts that might turn a frivolous ... action into a
substantial one.” Twombly, 550 U.S. at 562,
127 S.Ct. at 1969 (citing O'Brien v. DiGrazia,
544 F.2d 543, n.3 (1st Cir. 1976)).
considering a motion to dismiss, a district court generally
must limit itself to the complaint, including any attachments
thereto, and matters of public record. Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). The court may
also consider “undisputedly authentic” documents
when the plaintiff's claims are based on the documents
and the defendant has attached copies of the documents to the
motion to dismiss. Pension Benefit Guar. Corp., 998
F.2d at 1196.
pro se plaintiff's complaint is vulnerable to dismissal
for failure to state a claim, he must be granted leave to
file a curative amended complaint even when the plaintiff
does not seek leave to amend, unless such an amendment would
be inequitable or futile. See Estate of Lagano v. Bergen
Cty. Prosecutor's Office, 769 F.3d 850, 861 (3d Cir.
2014). A complaint that sets forth facts which affirmatively
demonstrate that the plaintiff has no right to recover is
properly dismissed without leave to amend. Grayson v.
Mayview State Hospital, 293 F.3d 103, 106 (3d Cir.
Statute of Limitations for ...