GRAZIANO v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al, No. 1:2022cv00163 - Document 105 (W.D. Pa. 2023)
Court Description: MEMORANDUM OPINION re 70 MOTION to Dismiss Plaintiff's Complaint filed by BRIAN BYERS, RICHARD CAMACHO, CENTURION, 60 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM re 11 Complaint, filed by CRILEY, BOGARDUS , EARNEST MONGELLUZZO, DERECK F. OBERLANDER, IAN GUSSTAFSON, MINICH, MORGAN, DEAL, HAGGERTY, ROSS MILLER, GREGORY MILLER, LISA FISCUS, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MICHELLE CROWTHER, ERIN MILLER, BRUCE SIMONS, LISA REEHER, SUSAN R. ADAMS, KIMBERLY SMITH, THERESA BIEL, DICKEY, KEVIN COWAN, YVETTE PERRIN. Signed by Chief Magistrate Judge Richard A. Lanzillo on 9/30/2023. (dlh)
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GRAZIANO v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al Doc. 105 Dockets.Justia.com 1. Graziano's claims accrued at different times for purposes of the statute of limitations. Federal law determines the date of accrual of a claim and, thus, when the statute of limitations period begins to run. See Montanez v. Sec'y Pennsylvania Dep't of Corr., 773 F.3d 472,480 (3d Cir. 2014). A federal claim accrues "when the plaintiff has 'a complete and present cause of action,"' or in other words, "when the wrongful act or omission results in damages." Dique v. New Jersey State Police, 603 F.3d 181,185-86 (3d Cir. 2010) (quoting Wallace v. Kato, 549 U.S. 384,388 (2007)). Likewise,a claim under Pennsylvania law accrues at "the occurrence of the final significant event necessary to make the claim suable." Mack Trucks, Inc. v. Bendix WestinghouseAutomotiveAir Brake Co., 372 F.2d 18,20 (3d Cir.1966). Pennsylvania's discovery rule also applies to Callahan's § 1983 claim and tolls the statute of limitations until "the plaintiff knows,or reasonably should know,(1) that [the plaintiff] has been injured,and (2) that [his or her] injury has been caused by another party's conduct." Bohus v. Beloff, 950 F.2d 919,924 (3d Cir. 1991) (quoting Cathcart v. Keene Indus. Insulation, 324 Pa. Super. Ct. 123, 471 A.2d 493 (Pa. Super. Ct. 1984)). See also Montanez, 773 F.3d at 480 (quoting Kach v. Hose, 589 F.3d 626,634 (3d Cir. 2009)) ("Under federal law, a cause of action accrues 'when the plaintiff knew or should have known of the injury upon which the action is based. "') (further internal citation omitted). But "[a] plaintiffs ignorance regarding the full extent of his injury is irrelevant to the discovery rule's application, so long as the plaintiff discovers or should have discovered that he was injured." Stephens v. Clash, 796 F.3d 281,288 (3d Cir. 2015). "A claim alleging deliberate indifference to serious medical needs accrues when the plaintiff knows or has reason to know that deliberate indifferen?e is displayed." Matos-Ramirez v. Northampton Cnty. Jail Med Expert, 2021 WL 3722262,at *4 (E.D. Pa. Aug. 23,2021) (citing Smith v. Municipality of Lycoming Cty., 335 Fed. Appx. 147, 149 (3d Cir. 2009) (per curiam) 29 (prisoner alleging deliberate indifference to medical needs "knew, or had reason to know, of his alleged mistreatment when it occurred"). See Green v. Philadelphia Cty. Prisons, 2006 WL 2869527, at *6 (E.D. Pa. Oct. 4, 2006) (plaintiffs injuries and his § 1983 Eighth·Amendment cause of action accrued when the defendants "displayed deliberate indifference to his medical needs" because "on those days [plaintiff] should have known he was injured under the Eighth Amendment"). Stated differently, "[a] deliberate indifference claim will ... accrue, and th statute of limitations for that claim will begin to run, when Plaintiff became aware of the fact that he wasn't receiving appropriate treatment." Campbell v. Doe, 2017 WL 349289, at *3 (D.N.J. Jan. 24, 2017) (citing Hughes v. Kniebhlher, 341 Fed. Appx. 749, 751-52 (3d Cir. 2009); Baker v. Barnes, 2012 WL 95363, at *4 (D.N.J. Jan. 12, 2012)). However, "the exact timing of any delay in providing medical treatment may not present a bright line of demarcation" for purposes of the statute of limitations. Houser v. Folino, 2014 WL 3696130, at *24 (W.D. Pa. July 23, 2014) (adopting Report and Recommendation). Ultimately, "the determination of the time at which a claim accrues is an objective inquiry" concerned with "what a reasonable person should have known." Kach, 589 F.3d at 634. 2. Only Graziano's conditions of confinement claims accrued prior to April 12·, 2020. Graziano's allegation that Byers and Camacho violated his constitutional and state law rights by failing to address "the worsening psychological and physiological conditions [Graziano] was experiencing due to his early medication intake and torturous living conditions (cell intercom announcements/protractive cell lighting)" while at SCI-Forest accrued before April 12, 2020. ECF No. 11, ,r 68. Graziano avers that his medication stopped working two weeks after his transfer to SCI-Forest, and he began complaining to Byers, Camacho, and others 30 Complaint alleges that Camacho's relevant conduct began in February 2019, when Graziano first complained ofhis living conditions to his PRT, and ended sometime after his September 15, 2020, tele-med appointment with Dr. Camacho. The Complaint alleges that Gressel's relevant conduct began after Graziano in June 2020, and ended upon his transfer to SCI-Camp Hill. The factual averments against these Defendants cover several plausibly related instances of mental health care and treatment, including their virtual appointments, and responses to his suicidal ideations, mental health diagnoses, and treatment decisions. Based on Graziano's allegations, it cannot be said as a matter of law that, aside from Camacho's discrete alleged failure to change Graziano's living conditions, any of the conduct upon which he bases his claims against Gressel and Camacho constitute discrete acts rather than a continuing pattern ofconduct. As such, any further analysis of the statute of limitations will need to await a more developed record. See McPhee v. DePuy Orthopedics, Inc., 989 F. Supp. 2d 451, 465 (W.D. Pa. 2012) (whether the statute oflimitations barred certain claims was "not apparent from the face ofthe Complaint" because the court could not "determine[e] the date on which the cause ofaction accrued," and so could not "calculate the expiration of the ... statute oflimitations period."). 3. Whether any of Graziano's claims are saved by equitable tolling cannot be determined based on the face of the Complaint. Graziano submits that the time he spent grieving his mental health care claims sufficiently tolls the statute oflimitations for these claims. Under the federal Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, a prisoner is required to exhaust available prison administrative remedies before commencing a lawsuit asserting claims based on his or her conditions of confinement. While the prisoner exhausts such administrative remedies, the statute oflimitations is tolled. Wisniewski v. Fischer, 857 F.3d 152, 158 (3d Cir. 2017). See also Carter v. Pennsylvania 33 has failed to exhaust his administrative remedies as to the claims raised against" Centurion; or that only one of the over one-hundred grievances Graziano allegedly filed could toll his claims against Byers, Camacho, and Gressel. Id. Thus, the Court cannot say as a matter of law that the time-barred claims against Centurion, Byers, Camacho, and Gressel are not saved by equitable tolling at this juncture. As such, the face of the Complaint does not permit dismissal of any of Graziano' s claims against Centurion Defendants based on the statute of limitations. This holding, however, does not preclude Defendants from raising their statute of limitations affirmative defense at a later stage of this case based on a more complete record. B. Whether Graziano exhausted his claims against Centurion cannot be determined based on the record presently before the Court. Centurion Defendants next submit that the claims against Centurion must be dismissed because Graziano did not exhaust his administrative remedies. "The Prison Litigation Reform Act of 1995 (PLRA) requires a prisoner to exhaust any available administrative remedies before challenging prison conditions in federal court." Woodford v. Ngo, 548 U.S. 81, 81 (2006). "Exhaustion is considered separately for each claim brought by an inmate, and if a complaint includes both exhausted and unexhausted claims, courts will dismiss the latter but not the former." Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Jones v. Bock, 549 U.S. 199, 219-20 (2007)). The failure of an inmate to exhaust available administrative remedies is an affirmative defense that the defendant must plead and prove. See Jones, 549 U.S. at 216. And "[i]n appropriate cases, failure to exhaust may be raised as the basis for a motion to dismiss." Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (citing Ray v. Kertes, 285 F.3d 287, 295 n.8 (3rd Cir. 2002). The Supreme Court has held that the PLRA requires "proper exhaustion," meaning "complet[ing] the administrative review process in accordance with the applicable procedural 35 Centurion Defendants argue that Graziano did not exhaust his remedies for the claims alleged against Centurion because he did not name Centurion in any of his grievances. This may be true; however, Defendants' failure to authenticate the grievance record prohibits the Court from relying on these documents to confirm their J?Osition. Accordingly, the Court cannot hold as a matter of law that Graziano failed to exhaust his administrative remedies with respect to his claims against Centurion_ I I C. Eighth Amendment Claims The Complaint appears to allege Eighth Amendment conditions of confinement and deliberate indifference claims against DOC and Centurion Defendants. DOC Defendants argue that the Complaint fails to state a conditions of confinement claim based on the living conditions at SCI-Forest, SCF units, and the RHU. DOC Defendants also submit that the Complaint fails to assert an Eighth Amendment deliberate indifference to serious medical needs claim based on his mental health treatment and Oberlander, Smith, and Adams alleged failure to provide Graziano with accommodations for the living conditions. Centurion Defendants likewise assert that the Complaint fails to show how their treatment of Graziano's serious mental health needs manifested deliberate indifference. The Court agrees.. 1. The Complaint fails to state an Eighth Amendment conditions of confinement claim against any DOC or Centurion Defendant. The Eighth Amendment's prohibition of cruel and unusual punishment imposes constitutional limitations on a prisoner's conditions of confinement. See Rhondes v. Chapman, The Court notes that though Graziano names Centurion as a Defendant, the factual allegations do not mention Centurion and the only counts that appear to be brought against Centurion are Counts XIX and XX, which are brought against all Defendants. And as discussed below, these claims are dismissed on the merits. Additionally, to the extent Graziano intends to assert any of the constitutional claims against Centurion, Centurion Defendants correctly argue that Graziano does not plead that Centurion had "an official corporation policy or custom result[ing] in" an "alleged constitutional deprivation." ECFNo. 71, p. 16 (citingNatalev. Camden County Corr. Facility, 318 F.3d 575 (3d Cir. 2003); Monell v. Dep 't ofSoc. Servs. Of city ofNew York, 436 U.S. 658 (1978). 11 37 These allegations do not plead an objectively serious deprivation. Graziano's conclusory assertion that the SCF unit lacks mental health care does not constitute a deprivation ofmedical care, and there is no other indication that the SCF program deprived him of"the minimal civilized measure oflife's necessities." Wilson, 501 U.S. at 304. His conclusory allegation of the RHU's unconstitutional conditions similarly fails to demonstrate that his forty-five days in disciplinary custody "violate[d] civilized standards ofhumanity and decency." Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (citing Young v. Quinlan, 960 F.2d 351, 359 (3d Cir.1992)). Cf Palakovic v. Wetzel, 854 F.3d 209, 226 (3d Cir. 2017). As such, the Court dismisses the Eighth Amendment conditions ofconfinement claims asserted in Counts I, III, IX, X, XI pursuant to Rule 12(b)(6) and in Count V pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 2. The Complaint fails to allege an Eighth Amendment deliberate indifference to serious medical needs claim against any DOC or Centurion Defendant. "[D]eliberate indifference to serious medical needs ofprisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." See Estelle v. Gamble, 429 U.S. 97 (1976)) (internal quotation omitted). To establish a violation ofhis constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a "failure to treat can be expected to lead to substantial and unnecessary suffering." Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Deliberate indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial ofreasonable requests for treatment that results in suffering or risk of 41 The consistent medical treatment provided to Graziano also hinders the success of the deliberate indifference claims asserted against non-medical prison officials. "[A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner,a non-medical prison official ... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference." Spruill v. Gillis, 372 F.3d 218,236 (3d Cir. 2004). And where,like here, "a prisoner is under the care of medical experts," "a non medical prison official will generally be justified in believing that the prisoner is in capable hands." Id. Accordingly,Counts III and IV fail to state a claim of deliberate indifference to Graziano' s serious medical needs,and the Court dismisses these claims with prejudice pursuant to Rule 12(b)(6). D. First Amendment Claims The Complaint appears to assert First Amendment retaliation,free speech,and access to court claims against DOC and Centurion Defendants. DOC Defendants insist that the access to court claims fail because Graziano has not alleged an injury and that he has no constitutional right to visitation privileges and short-term grievance restrictions. The Court addresses these arguments and screens the remaining First Amendment claims in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). 1. Retaliation Claims To state a retaliation claim, Graziano must plausibly plead that (1) he engaged in protected activity; (2) officials took an adverse action against the plaintiff; and (3) "a causal link" exists "between the exercise of his constitutional rights and the adverse action taken against him." Rauser v. Horn, 241 F.3d 330,333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d 220,225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523,530 (3d Cir. 45 2. Graziano's allegations fail to state an access to courts claim. Graziano appears to assert a First and Fourteenth Amendment access to Courts claim based on Defendants' alleged retaliatory conduct. See Counts IX, XIII, XIV, and XV. Additionally, Count XVII alleges that Dickey violated his First, Fourth, and Fourteenth Amendment rights by contributing to the disappearance ofGraziano's initial complaint. ECF No. 11, 484. And in Count XVIII, Graziano avers that Dickey, Criley, UMR. Miller, and CC Miller "improperly confiscate[ed] [Graziano's] 42 pages oflegal documents . . . two call sheets . . . and other evidentiary documents," which resulted in Graziano's delayed filing ofthe Complaint. Id, 489. "Under the First and Fourteenth Amendments, prisoners retain a right ofaccess to the courts." Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). "Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an 'actual injury'-that they lost a chance to pursue a 'nonfrivolous' or 'arguable' underlying claim; and (2) that they have no other 'remedy that may be awarded as I recompense' for the lost claim other than in the present denial ofaccess suit." Id. (quoting Christopher v. Harbury, 536 U.S. 403,415 (2002)). "[T]he underlying cause ofaction, ... is an element that must be described in the complaint." Christopher, 536 U.S. at 415. Graziano is actively pursuing the above-captioned action. Accordingly, Defendants' alleged conduct has not prevented him from initiating this lawsuit or otherwise caused him to lose a nonfrivolous claim. Graziano has therefore failed to allege an injury to support an access to-courts claim. Accordingly, the Court dismisses with prejudice the access to court claims asserted in Counts IX, XIII, XIV, and XV under its screening obligation and in Counts XVII and XVIII pursuant to Rule 12(b)(6). 54 3. The Complaint fails to state a First Amendment Freedom of Speech Claim. Graziano asserts the Defendants' conduct related to the SCF program, the misconduct hearing, his RHU placement, the termination of his communication and visiting privileges with Ms. DiNardi, his grievance restriction, and his missing documents constitute violations of his free speech rights under the First Amendment. See Counts XIII, XIV, XV, XVII, XVIII. While inmates retain "the protections afformed by the First Amendment," see O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), but they "retain[ ] [only] those First Amendment rights that are not inconsistent with [their] status as [ ] prisoner[s] or with the legitimate penological objectives of the corrective system." Pell v. Procunier, 417 U.S. 817, 822 (1974). "An inmate's First Amendment right to free speech, therefore, may be curtailed if the inmate's speech poses 'the likelihood of disruption to prison order or stability, or otherwise interferes with the legitimate penological objectives of the prison environment.'" Jones v. NC Dep't of Corr., 433 U.S. 119, 132 (1977); see also Turner v. Safley, 482 U.S. 78, 87 (1987) (noting that prison regulations can restrict free speech if such restrictions are "reasonably related to legitimate penological interests"). "Thus, an inmate's First Amendment rights do not include the right to debate staff orders prior to obeying them, disregard prison rules, or engage in activities that may incite a disturbance." Isaac v. Marsh, 2020 WL 6504637, at *4 (M.D. Pa. Nov. 5, 2020) (quoting Parran v. Wetzel, 2016 WL 1162328, at *6 (M.D. Pa. Mar. 23, 2016)). Types of speech that are also unprotected "include, but are not limited to, fighting words, threats, obscenity, and speech that 'imminently incites illegal activity."' Id. (quoting Parran, 2016 WL 1162328, at *6). The Complaint's conclusory allegations do not support a finding that any Defendant infringed upon any protected speech of Graziano. Indeed, he does not specify what speech Defendants sought to prohibit, what conduct 55 constituted such prohibition, or when this conduct occurred. Thus, the free speech claims based on protected speech are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). E. Fourteenth Amendment Claims The DOC Defendants next assert that Count V fails to state a Fourteenth Amendment equal protection claim,Count XIV fails to state a due process claim,and the more specific provision rule bars Count V's substantive due process claim and all other alleged Fourteenth Amendment violations "that are covered by more specific constitutional provisions." ECF No. 61, p. 7. Centurion Defendants likewise argue that Graziano's Fourteenth Amendment claims in Counts I III are duplicative of his Eighth Amendment claims and add that the Complaint fails to state a viable due process violation. The Court agrees and further finds that the Complaint fails to state a viable Fourteenth Amendment procedural due process claim. 1. The more specific provision rule bars the Fourteenth Amendment conditions of confinement, deliberate indifference, court access, and retaliation claims. "Where a particular Amendment provides an explicit textual source ofconstitutional protection against a particular sort ofgovernment behavior,that Amendment,not the more generalized notion of substantive due process,must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266,273 (1994). See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249,260 (3d Cir. 2010) (quoting United States v. Lanier, 520 U.S. 259,272 n.7 (1997)) ("ifa constitutional claim is covered by a specific constitutional provision,such as the Fourth or Eighth Amendment,the claim must be analyzed under the standard appropriate to that specific provision,not under the rubric ofsubstantive due process."). In accordan e with this "more specific provision" rule,an inmate's "claim concem[ing] his conditions ofconfinement and an alleged failure by the Defendants to ensure his safety ... fit squarely within the Eighth 56 2. The Complaint fails to state a procedural due process claim. The Complaint also fails to state a procedural due process claim against certain DOC Defendants based on the disposition of misconducts D041270, D041275, and D485643, his consequential placement in the RHU, or his subsequential move to an SCF unit. 18 "To state a claim under § 1983 for deprivation ofprocedural due process rights, a plaintiff must allege that (1) he was deprived ofan individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process oflaw."' Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000)). Graziano's procedural due process claims fail because his 45-day confinement in the RHU was too short to implicate a liberty interest, and the facts alleged in the Complaint do not support an inference that his placement in the SCF unit "amount[ed] to an 'atypical and significant hardship' when compared to the ordinary incidents of prison life." Nifas v. Beard, 374 Fed. Appx. 241, 244 (3d Cir. 2010) ("confinement in AC for 178 days and a 90-day placement on the RRL does not amount to an 'atypical and significant hardship' when compared to the ordinary incidents ofprison life"). See also Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir.2002) (seven months in disciplinary confinement did not implicate a liberty interest); Torres v. Fauver, 292 F.3d 141, 151-52 (3d Cir. 2002) (disciplinary detention for fifteen days and administrative segregation for 120 days did not implicate a protected liberty interest);; Sanchez v. Walton, 2019 WL 249537, at *2-3 (E.D. Pa. Jan. 16, 2019) ("ninety (90) day confmement in segregation is insufficient to establish that [inmate] was deprived of a liberty interest"). The absence ofallegations to trigger due process protections requires the dismissal of all procedural due process claims asserted in Counts IX, X, XI under the court's screening · y. 19 .authont 58 3. The Complaint fails to state a claim under the Fourteenth Amendment's equal protection clause. The Complaint contends that Defendants denied Graziano' s "right to equal protection of the law under the ...Fourteenth Amendment." E CF No.11.,,r,r 420,426,458,4 62,47 6,480, 483,487 ( Counts I,IX,X,XI,XV,XVI,XVII,and XVIII). To establish a violation of the Equal Protection Clause,a plaintiff must ordinarily allege "that he was treated differently than other similarly situated inmates,and that this different treatment was the result of intentional discrimination based on his membership in a protected class." Mack v. Warden Loretto FCI, 839 F.3d 286 ( 3d Cir.201 6) (citing Hassan v. City ofNew York, 804 F.3d 277,294 ( 3d Cir.2015)). The Complaint is devoid of factual allegations to support that Graziano was treated differently than any other similarly situated person or persons. As such,the equal protection claims must be dismissed pursuant to 28U.S.C.§§ 1915(e)(2)(B) and 1915A(b). F. Fourth Amendment Claims Graziano has also failed to state a plausible claim under the Fourth Amendment. In Counts XVII and XVIII, Graziano avers that Defendants violated his Fourth Amendment right not to be subjected to unreasonable searches and seizures by causing or contributing to the alleged disappearance of his legal papers. But Graziano has no legitimate expectation of privacy -in the documents he claims were lost. Hudson v. Palmer, 4 68U.S.517,5 3 0 (1984); see Doe v. Delie, 257 F.3d 3 09, 31 6 ( 3d Cir.20 01) ("The defendants correctly assert that prisoners do not 18 Defendants are Crowther, Morgan, Fiscus, Oberlander, Adams, Mongelluzzo, Gustafson, and CO1 Witness of DC-141, Part 2D. The Complaint does not support a procedural due process claim for the alleged confiscation of Graziano's documents in Counts XVII and XVIII because Graziano has the right to file a grievance or a conversion and replevin action in state court to seek "a meaningful post-deprivation remedy." DeFranco, 2021 WL 6498250, at *6 (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984) ("[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.")). 19 59 have a Fourth Amendment right to privacy in their cells."). See also Ivy v. Wetzal, 2021 WL 4479721,at *12 (W.D. Pa. Sept. 30,2021) ("Ivy had no reasonable expectation of privacy in the papers discussed in his Complaint."); Com. v. Moore, 928 A.2d 1092,1099 (Pa. Super. Ct. 2007) (no reasonable expectation of privacy in incoming and outgoing prisoner mail under Fourth Amendment). Accordingly,the Fourth Amendment claims asserted in Counts XVII and XVIII are dismissed with prejudice pursuant to§ 1915(e)(2)(B) and§ 1915A(b). G. Civil Rights Conspiracy and 1985(3) Conspiracy Claims The Centurion Defendants argue that Count II of the Complaint fails to state a civil rights conspiracy claim. The Court agrees. The Court further finds that the Complaint fails to state a civil rights conspiracy claim and a Section 1985 conspiracy claim against any Defendant and dismisses these claims pursuant to§ 1915(e)(2)(B)and § 1915A(b). 1. Counts II, XI, XVII, and XVIII fail to state a civil rights conspiracy claim. To state a civil rights conspiracy claim,the plaintiff must allege: "1) the specific conduct that violated the plaintiffs rights,2) the time and the place of the conduct,and 3) the identity of the officials responsible for the conduct." Sanchez v. Coleman, 2014 WL 7392400,at *9 (W.D. Pa. Dec. 11,2014) (citing Oatess v. Sobolevitch, 914 F.2d 428,431 n.8 (3d Cir.1990)). Critical to this claim is the complaint's "factual allegations of combination,agreement,or understanding among all or between any of the defendants [or coconspirators] to plot,plan,or conspire to carry out the alleged chain of events." Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011,1020 (E.D. Pa.1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981,987 (E.D. Pa.1994) ("[w]hile the pleading standard under [Fed. R. Civ. Proc .] Rule 8 is a liberal one,mere incantation of the words 'conspiracy' or 'acted in concert' does not talismanically satisfy the Rule's requirements"). Bare allegations that "[d]efendants engaged in a concerted action of a 60 firmly in facts; they cannot be conclusory nor can they hinge on bare suspicions and foundationless speculation." Reed v. Harpster, 506 Fed. Appx. 109, 111 (3d Cir. 2012) (citing Youngv. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir.1991) (affirming dismissal of conspiracy claims based upon mere suspicion and speculation)). Graziano's conclusory allegations fall far short of supporting a plausible inference of an agreement or concerted effort among any combination of Defendants to harm him. Graziano's foundationless conspiracy claims must be dismissed. 2. Counts II, XI, XVII, and XVIII fail to state a Section 1985 conspiracy claim. Graziano asserts a§ 1985(2) conspiracy claim in Counts II and XI and an unspecified § 1985 conspiracy claim in Counts XVII and XVIII. Section 1985(1) prohibits a "conspiracy to prevent any person from accepting or holding office, trust, or place of confidence under the United States," and§ 1985(2) prohibits a conspiracy to "deter . . . any party or witness in any court of the United States." Thus,§ 1985(3) is Graziano's only potential avenue for relief. To state a claim under§ 1985(3), a plaintiff must allege facts to support "(1) a conspiracy; (2) for the purpose of depriving ... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Slater v. Susquehanna Cnty., 465 Fed. Appx. 132, 136 (3d Cir. 2012) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983)). Graziano's failure to allege a conspiracy dooms his§ 1985(3) conspiracy claims. Further, nothing in the Complaint supports an inference "that the conspiracy was motivated by racial, gender, or other class-based discriminatory animus." Id. (citing Farber 62 v. City ofPaterson, 440 F.3d 131, 135 (3d Cir. 2006)). As such, the§ 1985 conspiracy claims must be dismissed pursuant to 28 U.S.C.§§ 1915(e)(2)(B) and 1915A(b). H. The Complaint fails to state an ADA claim against Smith, Adams, and Oberlander in their individual capacities, but its allegations are minimally sufficient to state an ADA claim against the DOC. Count V of the Complaint includes an "ADA accommodations" claim for monetary and injunctive relief against Smith, Oberlander, and Adams in their individual and official capacities. The Court construes this claim as asserted under Title II of the ADA.20 Section 12132 of Title II provides, "[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.§ 12132. State prisons are deemed "public entities" under Title II. Pa. Dep 't of Corr. v. Yeskey, 524 U.S. 206, 210, (1998)). And "the phrase 'service, program, or activity' under Title II ... is 'extremely broad in scope and includes anything a public entity does,"' Furgess v. Pa. Dept. of Corr., 933 F.3d 285, 289 (3d Cir. 2019). As such, "a prison's refusal to accommodate inmates' disabilities in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constitutes a denial of the benefits of a prison's services, programs, or activities under Title II" of the ADA. Brown v. Monsalud, 2021 WL 4502238, at *3 (M.D. Pa. Sept. 30, 2021) (quoting Furgess, 933 F.3d at 290 (internal quotation and citation omitted)). Although the Court of Appeal for the Third Circuit has not addressed the issue precedentially, most courts have held that Title II does not authorize suits against government Title I prohibits discrimination in employment, 42 U.S.C.A. § 12112(a), and the DOC does not fall within Title Ill's definition of"public accommodation," 42 U.S.C.A. § 12181(7). See Snider v. Pennsylvania DOC, 505 F. Supp. 3d 360,398 (M.D. Pa. 2020); id., 398 n.156 (listing cases). Thus, only Title II applies to this action. 20 63 1. The Complaint states a Title II violation. Applying these principles here, the Court must first consider whether Graziano has alleged facts to support a claim for reliefunder Title II ofthe ADA-in other words, that he is a qualified individual with a disability who was denied participation in a service by reason ofhis disability. Bowers, 475 F.3d at 553. "Thus, to state a claim under Title II ofthe ADA, plaintiffs must demonstrate that: (1) they are qualified individuals; (2) with a disability; and (3) they were excluded from participation in or denied the benefits ofthe services, programs, or activities ofa public entity, or were subjected to discrimination by any such entity; (4) by reason oftheir disability." Durham, 2023 WL 6108591, at *3 (citation omitted). Where, like here, the Plaintiff seeks compensatory damages, he "must also show intentional discrimination under a deliberate indifference standard." Durham, 2023 WL 6108591, at *4. To do so, "[a] claimant must allege '(1) knowledge that a federally protected right is substantially likely to be violated ... and (2) failure to act despite that knowledge."' Id. Graziano alleges that the DOC violated Title II by "refusing to make reasonable accommodations which would have enabled [him] to sleep, stay alert, concentrate, effectively communicate and socially interact with others and participate in services, programs and activities available to prisoners in general population." ECF No. 11, 440. In support ofthis claim, he avers that the "early administration ofhis psychiatric meds . . . prolonged cell lighting and constant intercom announcements" deprived him ofsleep, which exacerbated his "anxiety and depressive disorders" and "substantially limited him from major life activities." ECF No. 11, 225. In his June 2019 Inmate Disability Accommodation Request Form, he specified that his "sleep deprivation" disability prevented him from "sleep"; "affect[ed] [his] ability to read, learn, think," "concentrate," "properly communicat[e] with [his] peers and staff," and "remain 66 disability" can form the basis for a viable ADA claim). Finally, as previously noted, because Graziano seeks compensatory damages, he "must also show intentional discrimination under a deliberate indifference standard." Durham, 2023 WL 6108591, at *4. Again, Graziano's allegations are minimally sufficient to support that prison officials knew of his protected right under the ADA but nevertheless failed to act on any of his requests. See id. (Plaintiffs allegations that "[h]e made numerous prison officials aware that he had a cane, needed a cane to walk, and was in severe pain without it," and "[d]espite this, he was continuously denied his cane and shower accommodations," sufficiently pled intentional discrimination). 2. Sovereign immunity does not bar Graziano's request for money damages based on the allegations of the Complaint. Turning to the second step of the Bowers analysis, the Court also finds the facts minimally sufficient to implicate a potential Fourteenth Amendment violation. The United States Supreme Court has held that the "refusal of prison officials to accommodate [an inmate's] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs ... independently violate[s] the provisions of§ 1 of the Fourteenth Amendment." United States v. Georgia, 546 U.S. at 157. Graziano's allegation that the DOC's refusal to accommodate his disability by adjusting when his medication was to be dispensed prevented him from participating in meals, recreational programs, and other services, if substantiated through discovery, may rise to the level of a constitutional injury for purposes of the Bowers abrogation analysis.22 Although the Court has found these allegations insufficient to state an Eighth Amendment claim against Adams, Smith, and Oberlander in their individual capacities, it appears they may nevertheless support a Fourteenth Amendment violation against the DOC for purposes of the Bowers analysis. See United States v. Georgia, 546 U.S. at 157. 22 69 Accordingly, the Court must deny the motion to dismiss Graziano's Title II ADA claim. The DOC may renew its challenge to the various elements of this claim and the reasonableness of Graziano's requested accommodations at the summary judgment stage of the case when the Court has the benefit of a more complete record. I. State Law Claims Graziano asserts Pennsylvania state law claims of IIED (Count XIX) and NIED (Count XX) against all Defendants, as well as assault and battery (Count VIII) and false imprisonment (Count XII) claims against certain DOC Defendants.23 The Centurion Defendants argue that the Complaint fails to state viable IIED and NIED claims. DOC Defendants submit that sovereign immunity bars the state law claims against them. The Court will address these arguments in turn. 1. Counts XII and XX fail to state an IIED or NIED claim against any Defendant. To state a claim for IIED, Graziano must allege facts to show that the Defendants' conduct was "(1) extreme and outrageous, (2) intentional or reckless, and (3) caused severe emotional distress." Shumate v. Twin Tier Hosp., LLC, 655 F. Supp. 2d 521, 541 (M.D. Pa. 2009) (citing Livingston v. Borough ofEdgewood, 2008 WL 5101478 at * 6 (W.D.Pa.2008) (citing Hargraves v. City ofPhiladelphia, 2007 WL 1276937 (E.D.Pa. April 26, 2007)). Pennsylvania courts have defined "extreme and outrageous conduct" as conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Id. (quoting Hoy v. Count VIII asserts a state law assault and battery claim against Lt. Haggerty, Lt. Deal, Lt. Dickey, CERT Officers #1-6, and Supt. Oberlander. The false imprisonment claim against UM Crowther, COl Morgan, HEX Fiscus, Supt. Oberlander, DSCS Adams, DSFM Mongelluzzo, CCPM Gustafson, Lt. Bogardus, and COl Minich was dismissed, supra. 23 70 2. The Complaint fails to allege facts to support a state law false imprisonment claim. Graziano asserts a false imprisonment claim under Pennsylvania law against certain DOC Defendants for "subjecting [him] to solitary confinement." ECF No. 11, 466. Such a claim requires a plaintiff to allege facts to demonstrate: 1) defendant detained her; and 2) the detention was unlawful. Renkv. City ofPittsburgh, 537 Pa. 68,641 A.2d 289,293 (1994)). More specifically,liability for false imprisonment attaches where: (a) one acts intending to confine another within boundaries fixed· by the actor, (b) his act results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it. Kintzel v. Kleeman, 965 F. Supp. 2d 601,608 (M.D.-Pa. 2013) (citing Gagliardi v. Lynn, 285 A.2d 109,111 n.2 (1971)). Graziano has alleged no facts to support that his confinement in the RHU was unlawful. This claim fails as a matter of law. 3. The Complaint alleges facts sufficient to state an assault and battery claim against Lt. Haggerty, Lt. Deal, Lt. Dickey, CERT Officers #1-6, and Supt. Oberlander. Lastly, Graziano claims that the force utilized by Haggerty,Deal,Dickey, Oberlander, and CERT Officers #1-6 against him on April 18,2019,constituted an assault and battery pursuant to Pennsylvania law. "Under Pennsylvania law,an assault occurs when one acts with the intent to place another in reasonable and immediate apprehension of harmful or offensive contact,and that act does cause such apprehension. A battery is an intentional offensive bodily contact." Zimmerman v. Schaeffer, 654 F. Supp. 2d 226,255 (M.D. Pa. Aug. 17,2009). Graziano alleges that on the evening of April 18,2019,Defendants "pepper sprayed [him] knowing he had asthma and bashed his hand while they the [sic] took off his handcuffs then left him in pain and suffering in a cold and empty cell with.out need or provocation." ECF No. 11, 452. These allegations state a claim of assault and battery. 72 In this case, the record is not sufficiently developed to determine whether Haggerty, Deal, Dickey, Oberlander, and CERT Officers# 1-6 alleged use of force on the evening of April 18, 2019, fell within the scope of their employment. Accordingly, this claim will proceed to discovery. Defendants are, however, immune from the IIED, NIED, and false imprisonment claims, and so these claims are dismissed with prejudice. J. Leave to Amend The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is "undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Farnan v. Davis, 371 U.S. 178, 182 (1962). And though "the grant or denial of an opportunity to amend is within the discretion of the District Court," it may not "outright refus[e] to grant the leave without any justifying reason appearing for the denial." Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, Graziano has submitted a factually exhaustive Complaint that reveals that certain of his claims are simply precluded by governing law (e.g., Fourth Amendment claims, false imprisonmentdaim). Furthermore, the factual allegations of the Complaint negate many of his claims (e.g., conditions of confinement claims, his deliberate indifference to serious medical needs claim, his access to courts claims, due process claims, conspiracy claims, retaliation claims, IIED and NIED claims). Therefore, the Court finds that it would be futile to allow 74 Graziano to file an amended complaint with respect to these and the other claims dismissed herein and will dismiss these claims with prejudice. VI. Conclusion For the foregoing reasons, the Court GRANTS the Centurion Defendants' motion to dismiss (ECF No. 70) and GRANTS in part and DENIES in part DOC Defendants' motion to dismiss (ECF No. 60). Pursuant to the motions and the Court's screening authority under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the following claims are dismissed with prejudice: Count I, Count II, Count III, Count IV, Count V (as to the Eighth and Fourteenth Amendment claims), Count IX, Count X, Count XI, Count XII, Count XIII (against Defendants Perrin, Adams, Mongelluzzo, Gustafson, and Biel only), Count XIV (against Defendants Perrin, Adan1s, Mongelluzzo, Gustafson, and Biel only), Count XV, Count XVII, Count XVIII, Count XIX, and Count XX. The DOC Defendants' motion is DENIED as to Counts V (as to Title II ADA claim only), VIII, XIII (against Defendant Oberlander only), and XIV (against Defendant Oberlander only). DATED this 30th day of September, 2023. BY THE COURT: CHIEF UNITED STATES MAGISTRATE illDGE 75
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