FELDSER v. MIRANDA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS FELDSER, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 19-CV-3506

:

MAJOR MIRANDA, et al., :

Defendants. :

MEMORANDUM

RUFE, J. SEPTEMBER 30, 2019

Pro se Plaintiff Thomas Feldser, a pretrial detainee currently confined at Curran

Fromhold Correctional Facility (“CFCF”), has filed a Complaint pursuant to 42 U.S.C. § 1983

alleging constitutional claims. He has also filed a Motion to Proceed In Forma Pauperis.

Because it appears that Feldser is unable to afford to pay the filing fee, the Court will grant him

leave to proceed in forma pauperis. For the following reasons, certain claims in the Complaint

will be dismissed with prejudice, certain claims will be dismissed without prejudice, certain

claims will be permitted to proceed as alleged, and Feldser will be granted leave to file an

amended complaint to attempt to cure the defects noted by the Court concerning the claims

dismissed without prejudice.

I. FACTS

Feldser alleges that, during a cell transfer following his completion of a disciplinary

sentence, Defendant Correctional Officers Boone and Sullivan threw multiple punches at his face

and lower body when he protested to them that the cell to which he was moved was not in

compliance with his medical requirement to be housed in a lower bunk on a lower tier. (ECF

No. 1 at 4.)1 He was treated in the medical unit for a bruised lip, bruised ribs, an abrasion on his

ear, and swelling above his eye. (Id.) Felder asserts that he filed grievances about the incident,

but received no reply. (Id.) Feldser also asserts that Defendant Major Miranda did not convene

an administrative segregation hearing until Feldser had already been in administrative

segregation for 45 days, even though he made verbal requests and filed a grievance. (Id.) He

alleges that Miranda and Defendant Delaney, the Warden of CFCF, caused him to remain in

special housing for more than six months without due process because Feldser spoke out against

Boone and Sullivan. (Id. at 3, 5.) Feldser names each Defendant in their individual and official

capacities. (Id. at 3.)

II. STANDARD OF REVIEW

The Court will grant Feldser leave to proceed in forma pauperis because it appears that

he is incapable of paying the fees to commence this civil action.2 Accordingly, 28 U.S.C. §

1915(e)(2)(B) requires the Court to dismiss the Complaint if, among other things, it fails to state

a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the

same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),

see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to

determine whether the complaint contains “sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotations omitted). Conclusory allegations do not suffice. Id. As Feldser is proceeding pro

1 The Court adopts the pagination supplied by the CM/ECF docketing system.

2 However, as Feldser is a prisoner, he will be obligated to pay the filing fee in installments in

accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

se, the Court construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.

2011).

Rule 8(a) of the Federal Rules of Civil Procedure requires a complaint to contain “a short

a plain statement of the claim showing that the pleader is entitled to relief.” A district court may

sua sponte dismiss a complaint that does not comply with Rule 8 if “the complaint is so

confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well

disguised.” Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted). This Court

has noted that Rule 8 “requires that pleadings provide enough information to put a defendant on

sufficient notice to prepare their defense and also ensure that the Court is sufficiently informed to

determine the issue.” Fabian v. St. Mary’s Med. Ctr., No. Civ. A. 16-4741, 2017 WL 3494219,

at *3 (E.D. Pa. Aug. 11, 2017) (quotations omitted).

III. DISCUSSION

Section 1983 of Title 42 of the United States Code3 provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988).

3 Feldser did not use the Court’s preprinted form complaint. In the caption of his handwritten

Complaint, Feldser recites “42 USCS 1983.” (ECF No. 1 at 3.) The Court construes his

Complaint as attempting to assert constitutional claims against the Defendants pursuant to

§ 1983.

A. Official Capacity Claims

Feldser has sued each Defendant in their official as well as individual capacities. Official

capacity claims are indistinguishable from claims against the entity that employs the officials.

See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits . . . ‘generally

represent only another way of pleading an action against an entity of which an officer is an

agent.’”) (quoting Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978)). “[A]n

official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”

Id. Accordingly, the official capacity claims against the named Defendants must be construed as

claims against the City of Philadelphia.

To plead a basis for municipal liability under § 1983, a plaintiff must allege that the

municipality’s policy or custom caused the violation of his constitutional rights. See Monell, 436

U.S. at 694. “To satisfy the pleading standard, [the plaintiff] must . . . specify what exactly that

custom or policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009).

“‘Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy

with respect to the action issues an official proclamation, policy, or edict.’” Estate of Roman v.

City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895

F.2d 1469, 1480 (3d Cir. 1990)). “‘Custom, on the other hand, can be proven by showing that a

given course of conduct, although not specifically endorsed or authorized by law, is so well-

settled and permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915

F.2d 845, 850 (3d Cir. 1990)). A plaintiff illustrates that a custom was the proximate cause of

his injuries by demonstrating that the Defendant “had knowledge of similar unlawful conduct in

the past, failed to take precautions against future violations, and that its failure, at least in part,

led to his injury.” Id. (internal quotations and alterations omitted).

Feldser’s claims fail to meet the Monell standard. He has not alleged a policy or custom,

or that a policy or custom caused the violation of his constitutional rights. Accordingly,

Feldser’s official capacity/Monell claims are dismissed pursuant to § 1915(e)(2)(B)(ii).

The Court will, however, grant Feldser an opportunity to file an amended complaint if he is able

to cure the defects identified in his official capacity/Monell claims.

B. Claim Based on Grievances

Claims based on the handling of prison grievances fail because “[p]rison inmates do not

have a constitutionally protected right to a grievance process.” Jackson v. Gordon, 145 F. App’x

774, 777 (3d Cir. 2005) (per curiam); see also Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir.

2009) (per curiam). Accordingly, the facts alleged by Feldser about grievances do not give rise

to a plausible basis for a constitutional claim and will be dismissed with prejudice.

C. Claims Based on Cell Assignment

Feldser’s assertion that Defendants Boone and Sullivan were deliberately indifferent to

his seizure disorder when they assigned him to a non-lower bunk, non-lower tier cell is sufficient

to pass § 1915 screening. Prison officials may be liable if they demonstrate deliberate

indifference to a prisoner’s health or safety. See Wilson v. Seiter, 501 U.S. 295, 298-99 (1991);

see also Wilson v. Burks, 423 F. App’x 169, 173 (3d Cir. 2011) (per curiam) (“‘ [T]he official

must both be aware of facts from which the inference could be drawn that a substantial harm

exists, and he must also draw that inference.’”) (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)). The deliberate indifference standard typically includes both objective and subjective

components. Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). The objective component

requires an inquiry into whether “the deprivation [was] sufficiently serious” and the subjective

component asks whether “the officials act[ed] with a sufficiently culpable state of mind[.]” Id.

(citing Wilson, 501 U.S. at 298; Bell, 441 U.S. at 538-39, 539 n.20). Feldser asserts that the has

a seizure disorder and a low bunk, low tier cell is medically required. He also asserts that Boone

or Sullivan were made aware of the requirement and “disregarded [his] safety.” Accordingly, the

Court construes this as a claim of deliberate indifference to his serious medical needs, and not a

claim of general entitlement to a particular type of cell, which Plaintiff could not assert.4

D. Procedural Due Process Claim Based on Administrative Segregation

Feldser asserts separate claims against Defendants Miranda and Delaney based upon (1)

his being held in administrative segregation for six months and upon (2) his allegation that he did

not receive a hearing for 45 days after he was placed in administrative segregation. Pretrial

detainees retain certain due process rights. Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007).

“Prison officials must provide detainees who are transferred into more restrictive housing for

administrative purposes only an explanation of the reason for their transfer as well as an

opportunity to respond.” Id. at 70. Where a pretrial detainee alleges that he received no notice

of his alleged misconduct, no written statement of the reasons for his discipline, no opportunity

to be heard, and was never informed how long he was to be held in administrative segregation,

he may state a plausible due process claim. See Dewald v. Jenkins, Civ. A. No. 16-04597, 2017

WL 1364673, at *5 (E.D. Pa. Apr. 13, 2017) (applying Stevenson and denying motion to dismiss

claim). Accordingly, these claims may proceed.

E. First Amendment Free Exercise Claim

Feldser asserts that, while housed in administrative segregation, he was “deprived of

Islamic literature and Emam.” (ECF No. 1 at 5.) He provides no further elaboration.

4 See McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well established that the decision where to

house inmates is at the core of prison administrators’ expertise.”)

The Supreme Court has recognized that the First Amendment guarantees that all

prisoners must be afforded reasonable opportunities to exercise their religious freedom. Cruz v.

Beto, 405 U.S. 319, 322 n. 2 (1972); see also O’Lone v. Shabazz, 482 U.S. 342, 348 (1987)

(“Inmates clearly retain protections afforded by the First Amendment, . . . including its directive

that no law shall prohibit the free exercise of religion.”) (citations omitted). However, in order to

state a plausible Free Exercise claim, a plaintiff must allege a “substantial burden” on the

exercise. Thomas v. Review Bd., 450 U.S. 707, 718 (1981); Wisconsin v. Yoder, 406 U.S. 205,

218 (1972). Moreover, although inmates retain certain protections afforded by the First

Amendment, “lawful incarceration brings about the necessary withdrawal or limitation of many

privileges and rights, a retraction justified by the considerations underlying our penal system.”

O’Lone, 482 U.S. at 348 (quotations omitted). While the federal courts must take cognizance of

valid constitutional claims of prison inmates, the Supreme Court repeatedly has cautioned that

the task of prison administration has been committed to the responsibility of the legislative and

executive branches of government; federal courts should be reluctant to second guess these

authorities. See, e.g., Turner v. Safley, 482 U.S. 78, 84 (1987); O’Lone, 482 U.S. at 353.

The free exercise inquiry asks whether government has placed a substantial burden on the

observation of a central religious belief or practice and, if so, whether a compelling

governmental interest justifies the burden. Hernandez v. Comm’r of Internal Revenue, 490 U.S.

680, 699 (1989) (internal citations omitted). The Supreme Court has stated that “[a] special

chapel or place of worship need not be provided for every faith regardless of size; nor must a

chaplain, priest, or minister be provided without regard to the extent of the demand.” Cruz, 405

U.S. at 322 n. 2. “The requirement that a state interpose no unreasonable barriers to the free

exercise of an inmate’s religion cannot be equated with the suggestion that the state has an

affirmative duty to provide, furnish, or supply every inmate with a clergyman or religious

services of his choice.” Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970).

While Feldser complains that he was deprived of religious literature and access to the

clergy of his choice while in administrative segregation, he does not assert that he was prohibited

from practicing his religion and it is unclear how Feldser’s allegations created a “substantial

burden” on a central religious belief or practice. He also does not allege which, if any, of the

named Defendants violated his rights. Accordingly, he has failed to state a plausible First

Amendment claim, and the claim will be dismissed without prejudice with leave granted to

Feldser to amend if he is able to cure the defects the Court has noted.

F. First Amendment Retaliation Claim

Finally, Feldser asserts that Defendants Delaney and Miranda placed him in

administrative segregation in retaliation for his having filed grievances against Boone and

Sullivan relating to the excessive force incident. (ECF No. 1 at 5.)

In order to plead a plausible a retaliation claim, a plaintiff must assert three elements.

First, he must demonstrate that his conduct was constitutionally protected. Second, he must

allege that the retaliatory action was “‘sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights[.]’” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001)

(quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). Third, he must allege a causal

link between his constitutionally protected conduct and the adverse action taken against him. Id.

In the prison context, constitutionally protected conduct must be “a substantial or motivating

factor” for the retaliatory conduct. Id.

Filing a grievance against prison officials can be protected conduct upon which to base a

retaliation claim. Watson v. Rozum 834 F.3d 417, 422 (3d Cir. 2016). However, Feldser has not

properly alleged the other two elements of a retaliation claim.5 Accordingly, this claim will also

be dismissed without prejudice and with leave to amend if Feldser can cure the defects the Court

has noted.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss with prejudice Feldser’s claims based

on grievances. The Court will dismiss Feldser’s official capacity/municipal liability claims, free

exercise claim, and retaliation claim without prejudice and with leave to file an amended

complaint within thirty (30) days. If Feldser fails to file an amended complaint within the thirty

day period only his deliberate indifference and excessive force claims against Defendants Boone

and Sullivan, and his procedural due process claims Defendants Miranda and Delaney will

proceed. If Feldser determines only to proceed on the procedural due process, deliberate

indifference, and excessive force claims, he may so advise the Court and the original Complaint

will be served at that time. An appropriate Order follows.

BY THE COURT:

/s/ Cynthia M. Rufe

______________________

CYNTHIA M. RUFE, J.

5 The Court notes that, although Feldser asserts that Delaney and Miranda placed him in

administrative segregation in retaliation for his having filed grievances against Boone and

Sullivan relating to the excessive force incident, he also alleges that the excessive force incident

happened after he was released from administrative segregation while he was being moved to a

different part of the facility. The causation allegations are thus too confused, ambiguous, or

vague to satisfy Rule 8.