United States District Court, M.D. Pennsylvania
H. Rambo United States District Judge.
the court are the objections (Doc. 29) filed by Plaintiff
Haddrick Byrd (“Plaintiff” or “Mr.
Byrd”) to the report and recommendation
(“R&R”) submitted by United States Magistrate
Judge Karoline Mehalchick (Doc. 28) concerning the motion to
dismiss for failure to state a claim (Doc. 15) filed by
Defendants. For the reasons outlined below, the court shall
adopt the R&R in part and grant one of Plaintiff's
Byrd is a pro se plaintiff currently imprisoned at
the State Correctional Institution at Frackville, who has
filed a lawsuit against multiple officials at his prison for
three primary groups of offenses. First, Mr. Byrd alleges he
is Muslim, prays according to a regular Muslim prayer
schedule, and possesses a genuine Islamic belief that
whistling precludes one from praying properly. According to
Mr. Byrd, Correction Officer Chandler (“C/O
Chandler”) has been whistling regularly during Mr.
Byrd's prayers to intentionally disrupt them. Mr. Byrd
alleges he filed several grievances against C/O Chandler to
no effect. Mr. Byrd has thus brought a First Amendment
religious expression claim against C/O Chandler, as well as
the individuals who reviewed Mr. Byrd's grievances,
including Lieutenant Comisac, Superintendent Brittain, and
Chief Grievance Officer Dorina Varner (“Grievance
Officials”). He seeks injunctive relief and monetary
damages. Second, Mr. Byrd alleges that C/O Chandler
retaliated against him for filing his grievances. Third, Mr.
Byrd alleges C/O Warford served him poisoned food. He thus
has brought an Eighth Amendment claim against C/O Warford and
others who were allegedly aware of the poisoning.
collectively moved to dismiss Plaintiff's claims under
Federal Rules of Civil Procedure 12(b)(6), 8, and 20, arguing
Plaintiff failed to state a claim and that, insofar as he did
state a claim, the claims are improperly joined together
because they do not share a common set of facts or law. The
motion was briefed and referred to Judge Mehalchick. She thus
issued an R&R recommending the motion be granted on
12(b)(6) grounds regarding all claims except for Mr.
Byrd's request for injunctive relief that C/O Chandler
stop whistling so he can pray properly. Plaintiff timely
filed his objections. The court now examines each in turn.
first objection is that the R&R erred in recommending
dismissal of his retaliation claim. As the R&R correctly
explains, a Plaintiff asserting the government retaliated
against him for the exercise of his constitutional rights
must allege that the retaliatory action was actually taken in
response to the exercise of his rights and was sufficiently
adverse to deter a reasonable person from exercising that
right in the future. Axiomatically, only actions taken after
a person exercises (or expresses their intent to exercise)
their protected right can be retaliatory. Here, the only two
new actions allegedly taking place after Plaintiff filed his
grievance are: (1) C/O Chandler taunting Plaintiff with
laughter once; and (2) C/O Chandler intentionally refusing to
deliver one of Plaintiff's commissary slips. Even viewed
together, this conduct is insufficient to deter a reasonable
person from exercising their constitutional rights and thus
cannot be construed as an “adverse action” under
Third Circuit law as laid out in the R&R. Plaintiff has
thus failed to state a claim for retaliation.
second objection is that the R&R correctly permitted Mr.
Byrd's religious expression claim to go forward against
C/O Chandler but erred in dismissing the Grievance Officials.
The court finds this objection meritorious.
R&R stated that Mr. Byrd properly alleged a First
Amendment religious expression claim. The R&R correctly
stated that a party can only be liable for a Section 1983
claim if they directly participated in or had actual
knowledge of the constitutional offense and acquiesced in it.
Mr. Byrd has not alleged that the Grievance Officials
participated in whistling at him, so his claim against them
can only succeed if they had actual knowledge of and
acquiesced in C/O Chandler's whistling.
Mr. Byrd has alleged that he filed a complaint regarding C/O
Chandler's ongoing practice-pre- and post-dating his
original grievances-of whistling during Mr. Byrd's
prayers, thus bringing the issue to the attention of the
Grievance Officials. He has also alleged that Superintendent
Brittain in fact admitted she was aware of the whistling and
the fact that it was genuinely disrupting Mr. Byrd's
Muslim prayer practice. (See Doc. 1, ¶¶
30-32.) The R&R found this was insufficient to trigger
liability, implying that, as a matter of law, a
prisoner's grievance complaint cannot give rise to a
supervisor's actual knowledge of a constitutional
violation. Because this mischaracterizes the law, the court
will grant Plaintiff's objection.
R&R is correct that a complaint about a past
constitutional offense is insufficient to show the people
reviewing the grievance had actual knowledge of or
participated in the past violation. See Brooks v.
Beard, 167 Fed.Appx. 923, 925 (3d Cir. 2006) (holding
supervisors were not personally involved in medical
mistreatment because complaint was filed after the
mistreatment). That being said, “several courts have
concluded that a supervisory official may be held liable
stemming from the review of a grievance alleging an
ongoing violation.” Sears
v. Mooney, No. 1:17-CV-50, 2019 WL 6726839, at *6 (M.D.
Pa. Dec. 11, 2019) (emphasis supplied). As the Northern
District of New York has explained:
It appears that the distinction is whether the supervisory
official is confronted with an alleged violation that has
ended or whether he is confronted with a continuing
violation. It has been held that an appropriate guiding
principle for determining personal responsibility is where a
grievance alleges an ongoing constitutional violation, the
supervisory official who reviews the grievance is personally
involved if he is confronted with a situation that he can
remedy directly. If the official is confronted with a
violation that has already occurred and is not ongoing, then
the official will not be found personally responsible for
failing to remedy a violation.
Harnett v. Barr, 538 F.Supp.2d 511, 524-25 (N.D.N.Y.
2008) (internal citations and quotations omitted); see
also Romero v. Folino, No. 13-cv-0691, 2014 WL 710025,
at *7 (W.D. Pa. Feb. 25, 2014) (citing Harnett as
good law and denying 12(b)(6)); Carter v. Smith, No.
08-cv-279, 2009 WL 3088428, at *6 (E.D. Pa. Sept. 22, 2009);
Gibbs v. Univ. Correctional Healthcare, No.
14-cv-7138, 2016 WL 6595916, at *2 (D.N.J. Nov. 7,
applied here, Mr. Byrd's complaints to the Grievance
Officials caused them to become aware of C/O Chandler's
practice and the fact that it was disturbing Mr. Byrd's
prayers; thus, they acquired actual knowledge of the offense
and potentially acquiesced to its continuance by failing to
intervene. Whether this is true will require discovery. The