KENNEDY et al v. ARAMARK HOLDINGS CORPORATION et al, No. 2:2013cv02678 - Document 133 (E.D. Pa. 2015)
Court Description: MEMORANDUM OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 4/24/2015. 4/24/2015 ENTERED AND COPIES MAILED TO UNREPS AND E-MAILED.(amas)
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KENNEDY et al v. ARAMARK HOLDINGS CORPORATION et al Doc. 133 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CH D. KENNEDY, SR. Plaintiff CIVIL ACTION N0.13-2678 v. ARAMARK CORPORATION, et al. Defendants MEMORANDUM OPINION NITZ I. QUINONES ALEJANDRO, J. APRIL 24, 2015 INT ODUCTION Before this Court are motions for summary judgment filed pursuant to Federal Rule of Civi' Procedure ("Rule") 56 by Defendants, 1 [ECF 104, 105, 108, 109, 113, 114, 116], seeking to dis,ss the second amended complaint filed by Chai D. Kennedy, Sr. ("Plaintiff'). [ECF 42]. PlaiTiff, who is represented by counsel, has not filed a response to any of the motions despite havimg been given an extension until April 20, 2015, to file a response. Under the circumstances, theJ motions are ripe for disposition, and for the reasons stated herein, the motions for summary BACKGROUND In light of Plaintiffs failure to respond to the pending motions, for purposes of the motifns for summary judgment, the factual allegations have been derived from Plaintiffs second 1 Th entity and individual Defendants are: Aramark Corporation, Aramark Correctional Facility Servi es, Inc., Aramark Correctional Services, Inc., Aramark Correctional Services, LLC, Aramark Corporation, General Manager Walter Flaherty, Supervisor Veronica Lemon, Makeba Boyer, Robe House, Tynetta Palmore, Denise Nobblen ("Aramark Defendants"); City and County of Phila· elphia, Commissioner Louis Giorla, Chief Medical Officer Dr. Bruce Herdman, Warden John P. Del ey, Deputy Warden Clyde D. Gainey, Deputy Warden Frederick Abellos ("City Defendants"); Dr. Eke Kalu; and Corizon Health, Inc., Mary Silva, Physician Assistant Helen Sarskaya ("Corizon DefeAdants"). Dockets.Justia.com atne ded complaint2 and are viewed in the light most favorable tq him. These allegations are summarized as follows: In the second atnended complaint, Plaintiff avers that he was a pretrial detainee in the Philadelphia Prison System ("PPS"), housed at the CurranFromhold Correctional Facility ("CFCF") from August 17, 2009, until April 2013, (2d Am. Compl. ifif4, 39); 1 City Defendants, collectively, direct, manage, and control the PPS, employ the individually-natned PPS administrators and correctional officers, and entered into contracts with Aratnark and Corizon Defendants, (id. at if l 5); Aratnark Defendants, through the various Aratnark entities, provide food and related facility management services at PPS, (id. at if5); Corizon Defendants provide all medical services to the inmates housed at PPS, (id. at ifll); and Defendant Dr. Kalu is a Regional Medical Director at Corizon Health, Inc. (Id. at ifl3). From sometime in the year 2010 until his release in April 2013, 3 Plaintiff worked in the "Retherm Ovens" (a radiant or convection heated oven) located in two housing units at CFCF, eight or more hours per day, seven days per week. (Id. at if82). According to the second atnended complaint, Aramark Defendants compelled him to repeatedly use highly toxic, harmful and hazardous chemicals to clean the ovens without providing any protective gear, such as respirator masks, rubber gloves, goggles, or training on how to decontatninate himself after using the cleaning chemicals. (Id. at ifif89, 91, 92, 93). Plaintiff claims he was also denied the use of the showers, causing the toxic chemicals to be embedded in his pores and soft tissues. (Id. at if86). As a result, Plaintiff developed head and skin rashes, blurred vision, persistent coughs, shortness of breath, nosebleeds, and headaches. (Id. at if95). Although Plaintiff made numerous sick call requests related to these symptoms in accordance with PPS' s policies and procedures, 2 In cbnsidering motions for summary judgment, "the court is required to examine the evidence of record in light most favorable to the party opposing summary judgment, and resolve all reasonable inferences party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). After examining the evidence in of record, a court should grant a motion for summary judgment if the moving party "shows that there is dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. no R. Cif. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Because Plaintiff did not respord to the motions, he has not presented any evidence of record. Therefore, this Court has relied upon the factual allegations in Plaintiffs second amended complaint. 3 Plafntiff was released to house arrest, but later re-incarcerated for two days, released, then reincarderated from October 24, 2013, until December 20, 2013, at which time he was transferred to the PennJylvania State Correctional System, where Plaintiff currently remains. Kennedy Dep., 5/21114, N.T. 19:231-22:5. 2 Plaintiff was told by Corizon Defendants that there was nothing they could do to treat his complaints. (Id. at i!97). For nine months during his detention at CFCF, Plaintiff was an Inmate Building Representative for his housing units and participated in monthly meetings with Defendants City, Aramark, and Corizon. (Id. at i!i!40, 41). At these meetings, Plaintiff repeatedly told Defendants that inmates were not offered protection from the harmful chemicals they were compelled to use to clean the ovens, and that many inmates were complaining of adverse health effects. (Id. at i!42). Plaintiff contends that Defendants, however, had decided and agreed amongst themselves to ignore Plaintiffs complaints; and that City Defendants have not investigated or audited Aramark Defendants' compliance with workplace safety rules and regulations at PPS. (Id. at i!i!48, 49). Procedurally: On May 16, 2013, Plaintiff filed a 250-page complaint against Defendants alleging violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §1983, the First, Fifth, Thirteenth, and Fourteenth Amendments of the United States Constitution, unidentified federal statutes, and state tort laws. Therein, Plaintiff sought to obtain the implementation of medical monitoring, injunctive relief, and punitive damages. [ECF 1]. On May 30, 2013, Plaintiffs complaint was dismissed, without prejudice, as frivolous and for failure to comply with Rule 8(a)(2). [ECF 10]. 4 On June 12, 2013, Plaintiff filed an amended complaint. [ECF 11]. On July 22, 2013, this matter was reassigned to the undersigned judge. Plaintiff filed a second amended complaint on September 13, 2013. [ECF 42]. On December 4, 2013, a Scheduling Order was issued setting forth the procedural deadlines. [ECF 59]. This Order was revised on June 9, 2014, setting forth that all fact discovery was to be completed by October 23, 2014, expert reports were to be filed by November 20, 2014, dispositive motions were to be filed by February 13, 2015, and responses thereto were to be filed by February 27, 2014. [ECF 96]. Aramark Defendants, on November 21, 2014, and City Defendants, on November 26, 2014, filed motions for summary judgment in accordance with Rule 56(c), contending that Plaintiffs claims are time-barred pursuant to Pennsylvania's two-year statute of limitations. [ECF 104, 105]. On January 23, 2015, Defendant Dr. Kalu filed a Rule 56(c) motion for summary judgment arguing that no genuine dispute of material fact exists and Plaintiff cannot prove his claims. Similar motions were also filed by Corizon Defendants on February 5, 2015, by City Defendants on February 13, 2015, and by Aramark Defendants on February 13, 2015. [ECF 108, 109, 113, 114]. Plaintiff has not formally filed a response to these motions, although in his pretrial memorandum, filed on March 4 See also Transcript of Proceedings held before the Honorable Norma L. Shapiro on 5/29/2013. [ECF 34]. 3 . I 30, 2015, Plaintiff offers some argument in opposition to the motions for summary judgment. [ECF 127]. At the April 8, 2015 final pretrial conference, counsel for Plaintiff requested time to file a response to the various motions for summary judgment. Defense counsel consented and this Court issued an Order directing Plaintiff to do so by April 20, 2015, and verbally and as part of the Order, warned Plaintiffs counsel that no further extensions would be granted. [ECF 129]. Three days prior to the deadline, on April 17, 2015, Plaintiff filed a motion requesting a seven-day extension of time to file a response to the motions for summary judgment. [ECF 131]. Plaintiffs motion was denied. [ECF 132]. Rule 56 governs the scope for summary judgment. Summary judgment is appropriate "if the ovant shows that there is no genuine dispute as to any material fact and the movant is I enti,ed to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if '1e evidence is such that a reasonable jury could return a verdict for the non-moving party." Andrson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing summary judgment motlns, a court must view the evidence in the light most favorable to the non-moving party. Galela v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). The movant bears the initial burden of infoTing the court of the basis for the motion and identifying those portions of the record which the ovant "believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. C trett, 477 U.S. 317, 323 (1986). This burden can be met by showing that the non-moving part I has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322. After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut the moving party's claim by "citing to particular parts of matJials in the record, including depositions, documents, electronically stored information, 4 affidavits or declarations, stipulations ... , admissions, interrogatory answers, or other materials" that a genuine issue of material fact or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." See Fed. R. Civ. P. 56(c)(l)(A-B). The non1 moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 476 U.S. 574, 586 (198r). The non-moving party may not rely on bare assertions, conclusory allegations or suspr·cions, Fireman's Ins. Co. of Newark v. DuFresne, 676 F .2d 965, 969 (3d Cir. 1982), nor rest · n the allegations in the pleadings. Celotex Corp., 477 U.S. at 324. Rather, the non-moving partJ must "go beyond the pleadings" and either by affidavits, depositions, answers to intetgatories, or admissions on file, "designate 'specific facts showing that there is a genuine :::i r In these motions for summary judgment, this Court is asked to decide whether Plaintiff's clai1s are time-barred, whether Plaintiff can establish his federal and state claims, and whether PlaiTiff can establish a causal nexus between the alleged exposure to toxic chemicals and his injuries. Pursuant to the Revised Scheduling Order dated June 9, 2014, Plaintiff had until February 27, 2015, to file a response, and did not. At the final pretrial conference, the Defebdants consented to allow a response to be filed by April 20, 2015, and yet again, no resplnse was filed. Plaintiff, however, has provided a vague and untimely "response" to these judgment motions in his pretrial memorandum. Therein, Plaintiff contends that the claJs are timely because the lawsuit was filed within two years of his last exposure to the toxic, h,ful and hazardous chemicals, (Plaintiff's Pretrial Mem. I); that he was denied medical treat' ent for his illness and conditions which were caused by the long-term exposure to said 5 cheTcals, (id. at 5); that he has sufficiently pied to "an unlawful agreement" among Defendants to s pport the conspiracy claims, (id. at 6); that he does not need an expert to prove causation or dam ges, (id.); that whether his claims rise to the level of extreme and outrageous conduct is for the j to decide, (id. at 7); and that Defendants' motions for summary judgment were not filed in a limely manner without leave of court and, therefore, should be denied. (Id at 11 ). Timeliness ofMotions for Summary Judgment Although Plaintiff contends that Defendants' motions for summary judgment were not time y filed, he is mistaken. As stated, on June 9, 2014, a Revised Scheduling Order was issued whic!h established deadlines for procedural events. Specifically, the Order directed that motions were to be filed by February 13, 2015, and responses were due by February 27, ,Jo15. [ECF 96]. In accordance with this Revised Scheduling Order, Defendants filed motions mary judgment on: November 21, 2014, [ECF 104]; November 26, 2014, [ECF 105]; Janu on 23, 2015, [ECF 108]; February 5, 2015, [ECF 109]; February 13, 2015, [ECF 113]; and 18, 2015, [ECF 116], correcting or amending a previous motion. [ECF 114]. Confstent with the Revised Scheduling Order, all the motions for summary judgment were timelJy filed. Statute ofLimitations As to the merits of Aramark and City Defendants' respective motions, Defendants argue that ' laintiff s second amended complaint should be dismissed because all of the claims alleged are tire-barred pursuant to Pennsylvania's two-year statute of limitations. Generally, a cause of action accrues and the statute of limitations begins to run when "the first ignificant event necessary to make the claim suable" occurs. Ross v. John-Manville Corp., 766 .2d 823, 826 (3d Cir. 1985). The accrual date of a civil rights action is a question of federal 6 law that is not resolved by reference to state law. Frasier-Kane v. City of Philadelphia of Phi[, delphia, 517 F.App'x 104, 106 (3d Cir. 2013) (citing Wallace v. Kato, 549 U.S. 384, 388 (emphasis in original)). Under federal law, a cause of action accrues, and the statute of begins to run, "when the plaintiff knew or should have known of the injury upon wh+ its action is based." Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (quoting Sameric Cor4. v. City of Philadelphia of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998)). The cause of actiob accrues even though the full extent of the injury is not then known or predicted. See Wallbce, 549 U.S. at 391; 1 C. Corman, Limitation of Actions §7.4.1, pp. 526-527 (1991). The statute of limitations period for a § 1983 civil rights action is the limitations period for Jersonal injury torts in the state where the cause of action arose. Wallace, 549 U.S. at 387. PlaiTiffs alleged cause of action arose in the CFCF prison facility located in Pennsylvania. Thus, the state's two-year statute of limitations governing personal injury claims applies to Pl1tiff's civil rights claims. See 42 Pa. C.S.A. §5524(2);5 Kach, 589 F.3d at 634; Garvin v. City of Philadelphia, 354 F. 3d 215, 220 (3d Cir. 2003). Where the alleged injury is ongoing, comtonly referred to as a continuing tort, Pennsylvania courts have held that the statute of limit tions begins to run "when the plaintiff knows, or reasonably should know: (1) that he has been injured and, (2) that his injury has been caused by another party's misconduct." Shaud v. Suga loaf Twp. Supervisors, 2011 U.S. Dist. LEXIS 25229, at, *7-8 (E.D. Pa. Mar. 11, 2011) (quoting Cathcart v. Keene Industries Insulation, 471A.2d493, 500 (Pa. Super. 1984)). While federal law governs the cause of action's accrual date, courts will generally apply state law tolling principles, when applicable, in a § 1983 case. Leonard v. City of Pittsburgh, 570 F.ApF'x 241, 244 (3d Cir. 2014) (citing Kach, 589 F.3d at 639). Under Pennsylvania's discovery 5 An action to recover damages for injuries to the person or for the death of an individual caused by the act or neglect or unlawful violence or negligence of another must be commenced within two years! 42 Pa. C.S.A. §5524(2). 7 rule, the statute of limitations will toll "'where the existence of the injury is not known to the com laining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period."' Id. at 244 (citing Meehan v. Archdiocese of Phi/a., 870 A.2d 912, 919 (Pa. SupL. 2005) (quoting Kingston Coal Co. v. Felton Min. Co., Inc., 690 A.2d 284, 288 (Pa. Super. In the present matter, Defendants City and Aramark contend that Plaintiff knew of his injur[es as early as 2010. According to Plaintiffs own sworn deposition testimony, Plaintiff beg I working in the Retherm oven in D Building in 2010, and immediately requested protective gear, such as gloves and masks, because he started to experience headaches and other symptoms, such as nosebleeds and shortness of breath. Plaintiff attributed these symptoms to the chemicals ere used to clean the ovens which was the reason he requested protective gear. 6 Although that Pl1tiff could not provide the minutes of the Building Representative Meetings, Plaintiff testi:llied that the meeting minutes would reflect that he started to raise the issues about his (and othJ inmates') symptoms and the need for protective gear sometime in 2010, although he is not sure Lhen in 2010. 7 Viewing these facts in the light most favorable to Plaintiff, it is unclear when in 2010 he commenced working in the Retherm ovens. Giving Plaintiff the benefit of any doubt, this Court will 1ssume that Plaintiff commenced working in the Retherm ovens in December 2010, at the lateJ Thus, Plaintiff knew of the chemical exposure and his injury as early as December 2010. The Lcrual date for his cause of action began as of the date of his knowledge of an injury and, thus, he had until December 2012 to file a complaint. Plaintiff, however, did not file his comP,laint until May 26, 2013, several months beyond the statute of limitations. Defendants City I 6 7 Kenhedy Dep., 5/21/14, N.T. 330: 15-333:16. Id. Jt344:14-345:14. 8 and Jramark have demonstrated through Plaintiffs deposition testimony and filed grievances, alber undated but corroborated by Plaintiffs testimony, that Plaintiff knew of his injury in 2010. Plaintiff has not, nor can he, rebut the Defendants' arguments. Thus, pursuant to Rule 56(e), "[i]f a ply fails to properly support an assertion of fact or fails to properly address another party's asston offact as required by Rule 56(c), the court may: ... (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials - inclrg the facts considered undisputed - show that the movant is entitled to it." Fed. R. Civ. P. 5re). Consequently, in the absence of a genuine dispute of material fact as to when Plaintiff kne1 of his injuries, Plaintiff's claims are time-barred against Defendants Aramark and City. These Defendants are entitled to summary judgment on this basis. Plaintiff has inferred that the statute of limitations on his claims should be tolled pursuant to the discovery rule and that City and Aramark Defendants' conduct constitute a continuing tort. This inference is misplaced since neither doctrine applies. Plaintiff unequivocally stated that he was ware of his injury when he first started working in the Retherm ovens in 2010, experienced adve se symptoms, and informed Defendants City and Aramark of his complaints. See Leonard, 570 .App'x at 244 (under Pennsylvania law, discovery rule was not applicable to, and did not toll limitations period for, plaintiffs §1983 claim against city because plaintiff became aware of her injury as it occurred); see also Morganroth & Morganroth v. Norris, 331 F .3d 406, 417 n. 6 I (3d Tr. 2003) (continuing violation theory, while it tolls the statute oflimitations, does not apply when plaintiff is aware of the injury at the time it occurred) (citing Fowkes v. Penn. R.R. Co., 2641.2d 397 (3d Cir. 1959)); Kichline v. Consol. Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986)). Undilputedly, Plaintiff knew of his injuries in 2010; thus, neither the continuing tort doctrine nor I . the discovery rule are applicable to toll the statute of limitations on his claims. 9 Federal Claims Plaintiffs federal claims against Defendants consist of violations of Plaintiffs constitutional rights (Count One, against all Defendants); deliberlte indifference to a serious medfcal condition (Count Two, against all individual Defendants)J failure to supervise (Count Three against the Aramark entity Defendants and Count Four against the Corizon entity Deflndants); state-created danger (Count Five, against Defendant City); a claim of respondeat sup+or (Count Seven, against the Aramark Defendants); and ret+ation (Count Eight, against the City, Aramark, and Corizon entity Defendants). Succinctly, each of these claims will be admlssed. I Claims against Defendant City for municipal liability under §1983 cannot be based on the resprdeat superior doctrine, but must be founded upon evidence J.1 the government unit itself supl°rted a violation of constitutional rights. Watson v. Abington }wp., 478 F.3d 144, 155 (3d ;Cir. e007) (citing Monell v. New York City Department ofSocial Serices, 436 U.S. 658, 691-95 (19t)). Municipal liability only attaches when the "execution or a government's policy or custim, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Monell, 436 U.S. at 69k Bielevicz v. Dubinon, 915 F.2dl845, 850 (3d Cir. 1990). Therefore, Plaintiff must show the of a policy through evid · nee of a "decision maker possessing final authority to estailish municipal policy with rest! to the action issuing an official proclamation, policy, or edicf." Watson, 478 F.3d at 155; Biel vicz, 915 F.2d at 850 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d 1 1 Cir. 1 990) (quoting Pembaur v. City a/Cincinnati, 475 U.S. 469, 48, (1986)). I A custom can be established "by showing that a given cow!se of conduct, although not spec fically endorsed or authorized by law, is so well-settled 10 permanent as virtually to conrtute law." Bielevicz, 915 F.2d at 850 (citing Andrews, 895 F.2d at 1480). A custom may be established by proving knowledge of, and acquiescence to, a practit. Watson, 478 F.3d at 156; Fleilh v. O'Donnell, 867 F.2d 791, 793-94 (3d Cir. 1989). EstablisJing the existence of a policy or ctstom requires that a plaintiff "show that an official who has le power to make policy is resprnsible for either the affirmative proclamation of a policy or .lquiescence in a well-settled custim." Bielevicz, 915 F.2d at 850 (citing Andrews, 895 F.2d at 1480). Additionally, a plaintiff bearr the burden of proving that such a policy or custom was the pr<i>ximate cause of the injuries suffered. Watson, 478 F.3d at 156. In the context of a Fourteenth Amendment claim based on medical care (pertaining to pretrial detainees, such as Plaintiff), "[o]nly 'unnecessary and wrnton infliction of pain' or 'deliLrate indifference to the serious medical needs' of prisoners are sufficiently egregious to rise jo the level of a constitutional violation." Spruill v. Gillis, 3 72 ,.3d 218, 23 5 (3d Cir. 2004); .White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990) (quoting Es,elle v. Gamble, 429 U.S. 97, I 103 (1976)). "To act with deliberate indifference to serious medical needs is to recklessly disriard a substantial risk of serious harm. Everett v. Nort, 547 F .Abp'x ll 7, 12 l (3 d Cir. 20 l3) (quorg Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)). F4her, ''where a prisoner has receled some medical attention and the dispute is over the adeqwlcy of the treatment, federal co, are generally reluctant to second guess medical judgments an6 to constitutionalize claims whit sound in state tort law." U.S. ex rel. Walker v. Fayette Cnty., IPa., 599 F.2d 573, 575 n. 2 (3d fir. 1979). Claims of negligence or medical malpractice do not constitute deliberate indifference. Singletary v. Pa. Dep 't of Corr., 266 F.3d 186, 193 n. 2 (3d Cir. 2001). Whether an official may be held liable on a failure to supe1ise claim, the plaintiff must identiify a supervisory policy or practice that the supervisor failed to employ, and then prove that: I 11 (1) the policy or procedures in effect at the time of the alleged injr created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy created an I unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory practice J procedure. Barkes v. First I Corl Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014); Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001); Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). To establish a meritorious "state-created danger" claim, PlaiJtiff must show: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state Jtor acted with a degree of culptbility that shocks the. conscience; (3) a relationship betwee1 the state and the plaintiff existed such that "the plamtlff was a foreseeable victim of the defendant's acts, or a member of a discfte class of persons subjected to the potential hann brought abLt by the state's actions, as opposed to a member of the public in general; and (4) a state actor lffirmatively used his or her ·authtrity in a way that created a danger to the citizen or that rendere1 the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland f nty., 443 F.3d 276, 281-82 (3d 1ir. 2006) (quotations and citations omitted). Under the fourt11 element of a state-created danf r claim, "[l]iability under the state.-created .danger. theory is upon the states' affirmative acts which work to the plamtiffs' detriments m terms of exposure to danger." Id. at 282 !quoting D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, I F.2d 1364, 1374 (3d Cir. 1992D (en bane) (emphasis supplied)); Brown v. Grabowski, 922 F.2d 1097, 1100-01 (3d Cir. I 1990r (finding that DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 u.s. 189 (1989), holds "that a state's failure to take affirmative action to protect a victim from the actions of a third part! will not, in the absence of a custodial relationship ... support a civil rights claim."). It is the misuse of state authority, rather than a failure to use it, that 12 i violate the Due Process I I Clause. Barkes, 766 F.3d at 321 (quoting Phillips v. Cnty. of Alleghleny, 515 F.3d 224, 235 (3d Cir. 008) (quotation marks, emphasis omitted)). rj To prevail on a §1983 retaliation claim, Plaintiff must provei (1) that the conduct leading to j alleged retaliation was constitutionally protected; (2) that hl suffered an adverse action r siient to deter a person of ordinary firmness from exercising his ronstitutional rights; and (3) that protected conduct was a substantial or motivating factor in tlie decision to discipline him. Alexander v. Fritch, 396 F.App'x 867, 871 (3d Cir. 2010); Rauser v. Horn, 241 F.3d 330, 333 (3d hir. 2001). However, "prison officials may still prevail by proving that they would have madt the same d.ecision absent the protected conduct for reasonably related to a leg1t1mate penolog1cal mterest." Id at 334. Here, Defendants have filed timely motions for summary Judgment addressing all of Plaintiffs alleged claims against them, and have submitted evidencJ to support their arguments. :Speclfically, Defendants have argued that Plaintiff cannot point J,o any facts or evidence in suppbrt of the existence of a custom or policy of ignoring or "tLing a blind eye" to any Deffdants' alleged intentional exposure of Plaintiff to toxic, F,er, mnl and hazardous chemicals. Plaintiff cannot establish that the individual Defendants wele deliberately indifferent to his medical needs when the prison medical records reveal a history lf medical attention given to the ,laintiff, albeit, none for the treatment of skin rashes, blurry shortness of breath, or nose reeds,8 nor do these prison medical records mention that Plainbtr worked in the kitchen or 9 Rethenn ovens or that he was exposed to chemicals. Plaintiff has tso failed to provide expert I 8 Thd medical records detail Plaintiffs visits to the Chronic Care Clinicl for hypertension, lower back pain, Iphysical therapy, and left hand injury. The records indicate that iPlaintiff sought treatment for but do not disclose any relation to toxic cleaning chemicals lor working in the kitchen or ovens. 9 Corizon Dfts' Statement of Facts 32; Kennedy Dep., 5/21/14, N.T. 206:9-208: 18. 13 evidence that any of his injuries were caused by exposure to the toXiic degreasers used. 10 In fact, Plailiiff has taken no depositions nor has he provided any explrt reports to substantiate a co,ection between his purported symptoms and his use of cle1g chemicals, or to establish the rleged toxicity of the chemicals used. See e.g., Heller v. Shaw Inc., 167 F.3d 146, 165J3d Cir. 1999) (district court relying on total lack of causahon evidence absent expert testrony is a proper ground for summary judgment). Additionall1, Plaintiff does not point to any ividence of the existence of a supervisory policy or practice rat Defendants Aramark or Corizon failed to employ to prevent acts of deliberate indifference against him and other inmates; nor he pointed to any facts or evidence to establish that Defendaht City knew or should have knot that Plaintiff's hann was foreseeable, that its actions shocred the conscience, that its employees affirmatively used their authority in any way that create4 a danger to the Plaintiff or othJ inmates; and/or that Defendants "disciplined" Plaintiff for. ehgaging in constitutionally- ! I protected conduct. i In short, by failing to respond to Defendants' contentions and offer evidence either by affidrvit, declaration, or in any form to support his claims, Plaiitiff has failed to meet his obligations under Rule 56(c). Consequently, this Court finds that has failed "to make a ill bear the burden of proof at trial." Jakimas v. Hoffann-La Rolche, Inc., 485 F.3d 770, 777 [he] (3d 1 ir. 2007) (citing Celotex Corp., 477 U.S. at 322-23)). Therefore, summary judgment is proplr as such a failure "necessarily renders all other facts ijaterial." Id. Thus, having carJully reviewed and assessed the facts, evidence, and argumeJts set forth in Defendants' motilns for summary judgment and Plaintiffs failure to formjlly respond, this Court is to grant the motions for summary judgment. 10 Kekedy Dep., 5/21/14, N.T. 195:19-25. 14 Supplemental Jurisdiction Having dismissed all of the federal claims over which this Court had original jurisdiction, whal remains are Plaintiffs state law claims for medical negligetce, intentional infliction of emo ional distress, and conspiracy. Under the circumstances ahd pursuant to 28 U.S.C. §13J7(c)(3), this Court declines to exercise supplemental jurisdict1n over Plaintiff's state law claifs. See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (196J ("[I]fthe federal claims are dis,issed before trial, even though not insubstantial in a jurisdicJonal sense, the state claims shoulld be dismissed as well."); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 199+ Eberts v. Wert, 1993 WL 304111, at *5 (E.D. Pa. Aug. 9, 1993) (holding that "Courts shouM ordinarily decline to exercise supplemental jurisdiction ovJ state law claims when the fedJal claims are dismissed."). Therefore, Plaintiff's state law clails for medical negligence at 1 Cojt Six against the Corizon Defendants, intentional infliction of emotional distress at Count Nine and conspiracy at Count Eleven against all Defendants, are dismissed, without prejudice. I CONCLUSION For the reasons stated herein, the Defendants' motions for smhmary judgment are granted and <Counts One, Two, Three, Four, Five, Seven, and Eight of the seJond amended complaint are dismlssed with prejudice. The state law claims of medical negligeLe (Count Six), intentional inflijtion of emotional distress (Count Nine), and conspiracy (Cjunt Eleven) of the second am.Jded complaint, are dismissed without prejudice. An appropriatl Order consistent with this Memlorandum Opinion follows. NITZ I. QUINONES ALEJANDRO, U.S.D.C., J. 15
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