United States District Court, M.D. Pennsylvania
JOSHUA I. PAYNE, Plaintiff
MARGARET GORDON, et ai, Defendants
D. MARIANI, UNITED STATES DISTRICT JUDGE
Background and Procedural History
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
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
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). (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.
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. 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).
Summary Judgment Standard of Review
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
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).
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).
"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
Id. (internal quotations, citations, and alterations
Allegations of the Complaint
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 ¶¶
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.).
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.
further alleges that co-Defendant Gordon was deliberately
indifferent to his serious medical needs by denying his
therapeutic diet. (Id. at ¶¶ 45-47).
Payne alleges that Defendants conspired with prison officials
to refuse his therapeutic diet. (Id. at ¶¶
relief, Payne requests declaratory and compensatory relief.
(Id. at p. 14).
Statement of Undisputed Facts
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).
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).
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.
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.
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).
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 ...