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Nunez v. Co Wertz

United States District Court, M.D. Pennsylvania

September 1, 2017

FERNANDO NUNEZ, Plaintiff
v.
CO WERTZ, et al., Defendants

          MEMORANDUM

          A. RICHARD CAPUTO, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Plaintiff, 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.

         For the reasons that follow, the motion will be denied in part and granted in part.

         II. Background[1]

         Mr. 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.[2] 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.

         A. RLUIPA CLAIM

         Mr. 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.)

         B. November 6, 2011 - Restrict Housing Unit

         On 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.)

         Mr. 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. (Id.)

         At 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.)

         On 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.)

         C. December 20, 2011 - Conversation with CO Wertz

         At 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.)

         D. April 16, 2012 - Cell Search by CO Wertz and CO Hazlett

         On 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 confiscation slip.

         Plaintiff 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 Amended Complaint.

         E. Renovations of SCI-Smithfield's Dining Hall

         From 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.

         Work 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.

         Mr. 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.)

         III. Legal Standard

         Federal 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).

         The 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).

         In 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)).

         When 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.

         Where a 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. 2002).

         IV. Discussion

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A. Statute of Limitations for ...


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