United States District Court, M.D. Pennsylvania
D. MARIANI, UNITEDD 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
Defendants are the following officials and employees of the
Pennsylvania Department of Corrections ("DOC"):
Margaret Gordon, Ulrich Klemm, John Wetzel, Theresa A.
Delbalso, Bernadette Mason, and John Steinhart (collectively,
"Commonwealth Defendants"). (Id.). Also
named as a Defendant is Courtney Rodgers, D.O. (Id.).
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. (Id.). Payne sets
forth the following theories of liability: (1) Defendants
refused to provide Payne his therapeutic diet in retaliation
for filing a prior lawsuit against them, (2) Defendants were
deliberately indifferent to his medical need for a
therapeutic diet, (3) Defendants violated his equal
protection rights by requiring him to submit to a blood test
in order to receive his therapeutic diet, when other inmates
were not required to submit to a blood test and there was no
official policy in effect requiring inmates to undergo a
blood test, and (4) Defendants conspired with prison
officials to refuse Payne his therapeutic diet. (Id.
at ¶¶ 43-51).
September 28, 2017, the Commonwealth Defendants filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b). (Doc. 18). 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. For the reasons set forth
below, the motion will be granted in part and denied in part.
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-movant's 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 ¶¶
contends 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). Thus, he alleges that Defendants
violated his equal protection rights by requiring him to
submit to a blood test. (Id.).
alleges that the denial of his diet was retaliatory in
nature, based on a previous lawsuit he filed against
Defendants Gordon, ...