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Payne v. Gordon

United States District Court, M.D. Pennsylvania

August 1, 2018

JOSHUA I. PAYNE, Plaintiff
v.
MARGARET GORDON, et ai, Defendants

          MEMORANDUM

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         I. Background and Procedural History

         Plaintiff Joshua Payne ("Payne"), an inmate confined at the Mahanoy State Correctional Institution in Frackville, Pennsylvania ("SCI-Mahanoy"), initiated the instant action pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as a Defendant is Courtney Rodgers, D.O. (Id.). Also named as Defendants are several officials and employees of the Pennsylvania Department of Corrections ("DOC").[1] (Id.).

         In the complaint, Payne alleges that Defendants refused to provide him with his previously approved therapeutic diet, and informed him that he must first submit to a blood test to determine whether he actually has food allergies. (Id.). Payne contends that a blood test was not required by the DOC policy in effect at the time, and that other inmates were not required to undergo blood testing to verify their food allergies prior to being placed on a nonstandard therapeutic diet. (/of.). Payne alleges that the denial of his diet was retaliatory in nature, based on a previous lawsuit filed against prison staff, and that the alleged denial of his diet constitutes deliberate indifference to serious medical needs, a violation of his equal protection rights, and conspiracy. (Id. at ¶¶ 43-51).

         On July 24, 2017, the Court granted Payne's application to proceed in forma pauperis, and directed service of the complaint. (Doc. 5). On August 31, 2017, Defendant Rodgers filed a motion to revoke Payne's in forma pauperis status, arguing that Payne is subject to the three strikes provision set forth in 28 U.S.C. § 1915(g).[2] (Doc. 12). In response, Payne argued that he is not subject to § 1915(g)'s three strikes provision because he has not filed three or more lawsuits that have been dismissed as frivolous, malicious, and/ or for failure to state a claim upon which relief may be granted. (Doc. 14).

         Thereafter, on September 20, 2017, Defendant Rodgers filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) addressing the merits of Payne's claims. (Doc. 16). On May 30, 2018, the Court provided notice to the parties of its intent to convert the motion into a motion for summary judgment. (Doc. 38). Accordingly, the motion is treated as one for summary judgment pursuant to Federal Rule of Civil Procedure 56. Payne failed to respond to Defendant Rodgers' motion and the time for responding has now passed.[3] Consequently, the motion is deemed unopposed and ripe for resolution. For the reasons set forth below, Defendant Rodgers' motion will be granted. (Doc. 16). Additionally, Defendant Rodgers' motion to revoke Payne's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) will be dismissed as moot. (Doc. 12).

         II. Summary Judgment Standard of Review

         When a party moves to dismiss, but where "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." FED. R. Civ. P. 12(d). Typically, when a court converts a motion to dismiss into a motion for summary judgment under Rule 56, notice must be given to all parties of the court's intent to do so. Id.; Garcia v. Newtown Twp., 2010 WL 785808, at *3 (E.D. Pa. 2010). As stated, the Court previously provided notice to the parties of its intent to convert the motion into a motion for summary judgment. (Doc. 38). Therefore, the motion will be treated as one for summary judgment pursuant to Federal Rule of Civil Procedure 56.

         Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "As to materiality, [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movanfs must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert, denied507 U.S. 912 (1993).

         However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

         III. Allegations of the Complaint

         Payne alleges that in 2012 he was approved to receive a nonstandard therapeutic diet. (Doc. 1 ¶ 14). At the end of April 2016, Payne allegedly went to sick call to renew his nonstandard therapeutic diet and was approved for the diet. (Id. at ¶ 16). However, he claims that he did not receive this diet. (Id. at ¶ 19). On May 2, 2016, Payne presented to the medical department for chronic care review and was informed that his nonstandard therapeutic diet was on hold pending litigation. (Id. at ¶¶ 19-20, 42). Also at this visit, Payne alleges that he was told that he must first submit to a blood test to determine whether he actually has food allergies. (Id. at ¶ 21). Payne acknowledges that he refused to submit to blood testing and, therefore, was not placed on the therapeutic diet. (Id. at ¶¶ 48-49).

         Payne alleges that other inmates were not required to undergo blood testing to verify their food allergies prior to being placed on a nonstandard therapeutic diet. (Id. at ¶¶ 48-49). He further alleges that a blood test was not required by the DOC policy in effect at the time. (Id.). Payne asserts that the DOC did not amend the relevant policy until December 28, 2016, at which time the policy was amended to require inmates to submit to allergy testing in order to verify all self-reported allergies. (Id. at ¶ 39). Payne contends that Defendants had no authority to require Payne to enforce a new, unwritten policy without "proof of a policy or procedures manual." (Id. at ¶ 40). Thus, he alleges that Defendants violated his equal protection rights by requiring him to submit to a blood test before the relevant DOC policy was in effect, and because other inmates were not required to undergo the blood test. (Id.).

         Payne alleges that the denial of his diet was retaliatory in nature, based on a previous lawsuit he filed against co-Defendants Gordon, Ulrich, and Klemm. (Id. at¶¶ 15-17).

         Payne further alleges that co-Defendant Gordon was deliberately indifferent to his serious medical needs by denying his therapeutic diet. (Id. at ¶¶ 45-47).

         Lastly, Payne alleges that Defendants conspired with prison officials to refuse his therapeutic diet. (Id. at ¶¶ 50-51).

         For relief, Payne requests declaratory and compensatory relief. (Id. at p. 14).

         IV. Statement of Undisputed Facts[4]

         In 2012, Payne was approved to receive a non-standard therapeutic diet that consisted of lactose restrictions and no onions or tomatoes. (Doc. 41, Statement of Material Facts, ¶ 1; Doc. 1, p. 6). Also in 2012, Payne filed a lawsuit pursuant to 42 U.S.C. § 1983 against several employees of the Department of Corrections, in which he alleged that Defendants prevented him from practicing his religion by refusing to provide him Ramadan compliant meals that also complied with his non-standard therapeutic diet. (Doc. 41 ¶ 2; Doc. 1, p. 7). Defendant Rodgers was not a party to that prior action. (Doc. 41 ¶ 3).

         Payne contends that, subsequent to settling the 2012 action, Defendants retaliated against him for filing the 2012 lawsuit by putting a hold on his non-standard therapeutic diet pending his submission to a radioallergosorbent test ("RAST"). (Doc. 41 ¶ 4; Doc. 1, pp. 7-8). Payne states that he was not previously required to undergo RAST allergy testing. (Id). Payne refused to undergo RAST allergy testing. (Doc. 41 ¶ 7; Doc. 1, p. 13).

         Payne contends that Defendant Gordon placed his diet on hold, and he became aware of this hold on May 2, 2016. (Doc. 41 ¶ 5; Doc. 1, pp. 8, 12). Payne then submitted letters and Inmate Requests to the Defendants inquiring why he was required to undergo allergy testing. (Doc. 41 ¶ 6; Doc. 1, p. 8). One Inmate Request was directed to Defendant Rodgers. (Id). Defendant Rodgers did not respond to Payne's Inmate Request. (Doc. 41 ¶ 9; Doc. 1, p. 9; Doc. 1-1, p. 1- 2). Brenda Houser, RN, issued a response to Payne's Inmate Request confirming that his non-standard diet was not approved by the dietician at the Central Office. (Id).

         The only claims against Defendant Rodgers pertain to Payne sending him one Inmate Request regarding the refusal to renew his non-standard diet. (Doc. 41 ¶ 10; Doc. 1). The complaint does not set forth any allegations that Defendant Rodgers was personally involved in the decision not to renew Payne's non-standard diet pending RAST allergy testing. (Id).

         On December 28, 2016, a Department of Corrections policy was implemented which required all inmates to undergo RAST allergy testing to verify allergies in order to be approved for a non-standard diet. (Doc. 41 ¶ 8; Doc. 1, p. 11).

         On June 1, 2016, Payne submitted grievance number 630459, wherein he complains that on May 2, 2016, he was informed that his non-standard diet renewal was placed on hold by Defendant Gordon pending his submission to RAST allergy testing. (Doc. 41 ¶ 12; Doc. 17-1, pp. 32-41). The grievance does not state that Defendant Rodgers was involved in the decision to refuse the therapeutic diet, that Defendant Rodgers was involved in the decision to demand Payne to undergo allergy testing, that Defendant Rodgers retaliated against Payne, or that Defendant Rodgers was otherwise involved in the actions that gave rise to the grievance. (Id.). The grievance was ...


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