TALLEY v. IONATA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

QUINTEZ TALLEY : CIVIL ACTION

:

v. :

:

CO IONATA, CO ROBERTSON, CO :

COSTANZO, CO HARROR, SGT. :

BROWN, LT TAYLOR, J. YODIS, JOHN :

WETZEL, PA DEPARTMENT OF :

CORRECTIONIS, UNKNOWN :

CORRECTIONAL OFFICERS, CHIEF :

SAFETY AND ENVIRONMENTAL :

PROTECTION DIVISION and SCI :

GRATERFORD’S (CISM) CORRECTIONS :

INSTITUTIONAL SAFETY MANAGER : NO. 19-1723

MEMORANDUM OPINION

Savage, J. February 19, 2020

Plaintiff Quintez Talley, a prisoner proceeding pro se and in forma pauperis, filed

this civil action asserting that the defendants violated the Americans with Disabilities Act

(ADA), the Rehabilitation Act (RA), and the Eighth and Fourteenth Amendments.1 He

also brings claims under state law and for injunctive and declaratory relief. He has sued

the Pennsylvania Department of Corrections (DOC) and several of its officers and

employees.2

Moving Defendants3 seek dismissal of the complaint for failure to exhaust

administrative remedies pursuant to the Prison Litigation Reform Act (PLRA) and for

1 May 29, 2019 Order (ECF No. 5). This is the 46th of 49 civil actions that Talley has filed in the

federal district courts of Pennsylvania against prison personnel since 2015.

2 Compl. ¶¶ 41-77 (ECF No. 2).

3 Moving Defendants include the DOC; Secretary Wetzel; Hearing Examiner Yodis; Lieutenant

Taylor; Sergeant Brown; and Corrections Officers Ionata, Costanzo, Harrar and Robinson. The correct

titles and spellings are supplied by Moving Defendants. Chief of Safety and Environmental Protection

Division (CSEPD) Robert McSurdy was dismissed on December 30, 2019, after Talley failed to respond to

failure to state a claim. They also invoke qualified and sovereign immunity. We shall

dismiss those claims for which Talley failed to exhaust his administrative remedies and

dismiss his remaining federal claims for failure to state a claim. We shall decline to

exercise supplemental jurisdiction over his state claims.4

Background5

On August 22, 2017, while Talley was an inmate at the DOC’s State Correctional

Institution (SCI) at Graterford, Ionata came to his cell and told him that to receive his

breakfast tray he had to stand at the back of the cell and face the wall with his hands on

his head.6 Talley was denied his breakfast tray.7 In response, Talley covered the camera

in his cell and the cell door, and remained nonresponsive until Taylor, the ranking officer

on duty, came to his cell.8 Talley complained that the other inmates had been provided

his motion. CSEPD Mot. to Dism. (ECF No. 28); Dec. 30, 2019 Order. (ECF No. 30). Talley also sues

Unknown Corrections Officers and Graterford’s Corrections Institutional Safety Manager (CISM). These

defendants are not parties to the motions to dismiss. However, where a court grants other defendants’

motion to dismiss, the court may, on its own initiative, dismiss claims as to non-moving defendants if the

claims against the non-moving defendants suffer from the same defects raised in the moving parties’

motions. Minn. Lawyers Mut. Ins. Co. v. Ahrens, 432 F. App’x 143, 148 (3d Cir. 2011) (quoting Bryson v.

Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980) (stating that the court may sua sponte dismiss a

claim as to non-moving defendants where the inadequacy of the claim is clear)). A claim against a non-

moving party may be dismissed if the claims against all defendants are “integrally related” or where the

non-moving defendants are in a similar position to the moving defendants. Bonny v. Soc’y of Lloyd’s, 3

F.3d 156, 162 (7th Cir. 1993). Therefore, to the extent the deficiencies cited in the motions to dismiss also

apply to these defendants, we consider them.

4 Talley argues that mandatory screening of his complaint under 28 U.S.C. §§ 1915(e) and 1915A

prohibits defendants from later filing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

Pl.’s Brief Response to Defs.’ Mot. to Dismiss at 6-8 (ECF No. 21). See also May 29, 2019 Order. He is

wrong. Defendants may move to dismiss any claims that survive the court’s preliminary screening. See,

e.g., Moore v. Middlesex Cty. Prosecutors Office, 738 F. App’x 100, 102 (3d Cir. 2018) (noting district court

dismissed claim under Rule 12(b)(6) after allowing it to proceed beyond § 1915A screening).

5 The following facts are taken from the detailed complaint and attached exhibits, and are deemed

true for the purposes of the motion.

6 Compl. ¶¶ 10-11.

7 Id. ¶ 12. Talley does not state whether this denial was due to his refusal to follow Ionata’s

instructions.

8 Id.

their trays, but, as punishment for flooding his cell on the previous day, he was not

provided his.9 Taylor directed Talley to prepare to change cells.10 Talley refused.11

Taylor assembled an extraction team who escorted Talley to the adjacent cell.12

After Taylor and the extraction team left, Robinson, Brown and Ionata came to

Talley’s cell.13 Robinson grabbed his crotch and told Talley “what [he] could suck.”14

Robinson later refused Talley his lunch tray.15 At dinnertime, Costanzo told Talley that to

receive his tray he had to stand at the back of the cell, face the wall with his hands on his

head and bark.16

The next morning Talley asked Taylor to ensure that he received his breakfast tray,

and Taylor agreed.17 When Harrar arrived with the tray, he also told Talley that he had

to stand at the back of the cell, face the wall with his hands on his head and bark.18 Talley

“blacked out.”19 He told Harrar he was contemplating setting a fire in his cell, to which

Harrar responded, “Kill yourself then!”20 Talley began setting items in his cell on fire.21

Brown, Harrar, Ionata and the Unknown Corrections Officers came to his cell, but Talley

9 Id.

10 Id.

11 Id.

12 Id. ¶ 15.

13 Id. ¶ 16.

14 Id.

15 Id. ¶ 17.

16 Id. ¶ 18.

17 Id. ¶ 20.

18 Id. ¶ 21.

19 Id.

20 Id. ¶ 22.

21 Id.

used a blanket to prevent them from extinguishing the fires.22 Brown told Talley that no

one would stop him from killing himself and the corrections officers walked away.23

Talley set another fire.24 The corrections officers returned and attempted to

extinguish it, but Talley again blocked them.25 He told them, “I’ll kill myself before I let

y’all kill me!”26 Ionata told Talley to light more items on fire and the corrections officers

walked away.27

Talley set a third round of fires.28 He was removed from his cell and taken to

medical triage.29 Talley claims that because his housing area lacked sprinklers his cell

had “filled with a dangerously hazardous amount of smoke” and he had “almost

gag[ged].”30

Ionata charged Talley with misconduct for setting the fires.31 Talley claimed that

the incident was caused by his mental illness.32 Yodis, after reviewing the footage from

Talley’s cell camera and the officers’ hand-held camera, found him guilty and sentenced

him to a period of disciplinary custody and loss of his job.33

Talley alleges that the DOC and Wetzel violated his rights under the ADA, the RA,

22 Id.

23 Id. ¶ 23.

24 Id. ¶ 24.

25 Id. ¶ 25.

26 Id.

27 Id.

28 Id.

29 Id. ¶ 28.

30 Id. ¶ 24.

31 Id. ¶ 29 & Ex. 2 at 1.

32 Id. ¶ 31 & Ex. 2 at 3.

33 Id. ¶¶ 32-35 & Ex. 2 at 6.

and the Eighth and Fourteenth Amendments by failing to equip the area of the prison in

which he was housed with sprinklers.34 He alleges that the DOC, Wetzel and Yodis

violated his rights under these Acts and Amendments and breached the settlement

agreement in another matter35 by punishing him for setting fires, which Talley claims was

self-injurious behavior.36 Talley alleges that Ionata, Robinson, Costanzo, Harrar and

Taylor violated his Eighth and Fourteenth Amendment rights and committed an

unspecified state tort by denying him meal trays.37 He alleges that Brown, Ionata, Harrar

and the Unknown Corrections Officers violated his Eighth Amendment rights when they

did not remove him from his cell after he started the fires.38 Talley alleges that CISM

violated his Eighth Amendment rights by failing to provide DOC employees with adequate

fire and evacuation training.39 He alleges that Wetzel violated his Eighth Amendment

rights by failing to train corrections officers how to deal with mentally ill inmates.40 He

also alleges that Robinson sexually harassed him when he told Talley to suck his penis.41

Standard of Review

Pursuant to Rule 12(b)(6), a court may dismiss all or part of an action for “failure

to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). The complaint

must plead “factual content that allows the court to draw the reasonable inference that

34 Id. ¶ 41

35 Disability Rights Network of Pa. v. Wetzel, No. 1:13-CV-00635 (M.D. Pa. Jan. 9, 2015).

36 Compl. ¶¶ 42-43.

37 Id. ¶¶ 44-45.

38 Id. ¶

39 Id.¶ 46.

40 Id. ¶ 47.

41 Id. ¶ 49.

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The plaintiff must

allege facts that indicate “more than a sheer possibility that a defendant has acted

unlawfully.” Id. Pleading only “facts that are ‘merely consistent with’ a defendant’s

liability” is insufficient and cannot survive a motion to dismiss. Id. (quoting Twombly, 550

U.S. at 557).

A conclusory recitation of the elements of a cause of action is not sufficient. Phillips

v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The plaintiff must allege facts

necessary to make out each element. Id. (quoting Twombly, 550 U.S. at 563 n.8). In

other words, the complaint must contain facts which, if proven later, support a conclusion

that the cause of action can be established.

In assessing the sufficiency of a complaint, a court must: (1) identify the elements

of the causes of action; (2) disregard conclusory statements, leaving only factual

allegations; and (3) assuming the truth of those factual allegations, determine whether

they plausibly give rise to an entitlement to relief. Palakovic v. Wetzel, 854 F.3d 209, 220

(3d Cir. 2017) (internal quotation marks and citations omitted) (quoting Burtch v. Millberg

Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011)).

Analysis

Federal Claims – Exhaustion under the PLRA

Before filing suit challenging prison life under any federal law, a prisoner must

exhaust all available administrative remedies. Rinaldi v. United States, 904 F.3d 257,

265 (3d Cir. 2018). The PLRA provides that “[n]o action shall be brought with respect to

prison conditions under [42 U.S.C. § 1983 or any other federal law] until administrative

remedies as available are exhausted.” 42 U.S.C. § 1997e(a). To properly exhaust, the

prisoner must comply with all deadlines and procedural rules. Woodford v. Ngo, 548 U.S.

81, 90 (2006). He must pursue all available steps in the process. Id.; see also Ross v.

Blake, 136 S. Ct. 1850, 1859-60 (2016); Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004).

If he fails to do so, his action must be dismissed. Spruill, 372 F.3d at 227.

The exhaustion requirement is mandatory. A court may not excuse a failure to

exhaust even if there are “special circumstances.” Ross, 136 S. Ct. at 1856. The only

exception is where an administrative remedy is not available. Section 1997e(a) of the

PLRA only requires the exhaustion of available remedies. Stated differently, if the

administrative remedies are not available, there is nothing to exhaust.

Pennsylvania Department of Corrections Administrative Regulation (DC-ADM) 804

mandates that inmates “must submit a grievance to the Facility Grievance

Coordinator/designee, usually the Superintendent’s Assistant, within 15 working days

after the event upon which the claim is based.”42 Rather than follow this procedure, Talley

submitted an Inmate Written Statement (Statement) to Lieutenant Andrew Reber

pursuant to DC-ADM 001 on August 24, 2017.43 Reber told Talley that it would be

“sufficient to preserve the incidents therein” until he received a response from the Office

of Special Investigations and Intelligence, which never occurred.44 For purposes of this

motion, Moving Defendants concede that Talley’s Statement satisfies the PLRA’s

42 DC-ADM 804.VI.A.8.

43 Compl. ¶ 52. Inmate Written Stmt. (ECF No. 15-3). DC-ADM 001 provides procedures for

handling inmate allegations of abuse. DC-ADM 001.B.2.

44 Compl. ¶¶ 54, 60.

administrative exhaustion requirement.45

Moving Defendants point out that Talley’s Statement does not include any

allegations about the prison’s lack of sprinklers or his misconduct charge and conviction.46

A grievance must contain the subject matter of the lawsuit to constitute proper exhaustion

because it “must at least alert[ ] the prison to the nature of the wrong for which redress is

sought.” Mack v. Warden Loretto FCI, 839 F.3d 286, 295 (3d Cir. 2016). Talley’s

Statement makes no reference to sprinklers. Thus, his claims based on their absence

shall be dismissed due to a failure to exhaust administrative procedures.

Talley’s claims based on his misconduct and subsequent punishment are more

complicated. Talley did not include these allegations in his Statement because he had

not been served with the misconduct until September 9, 2017, after he had submitted the

Statement.47 Nonetheless, DC-ADM 001 required the prison to consider his misconduct

when investigating the denial of Talley’s breakfast trays and fires he lit as set forth in his

Statement.48 In doing so, it would have seen that Talley complained not only about the

underlying incident, but that he also opposed the misconduct and punishment arising from

it.49 Moving Defendants do not address Talley’s contention that his claims regarding his

misconduct and punishment were exhausted by virtue of the prison’s investigation. Thus,

we decline to dismiss these claims for failure to exhaust administrative remedies. See

45 Defs.’ Mot. to Dismiss at 9 (ECF No. 15) (citing McCain v. Wetzel, No. 12-0789, 2018 WL

3439204, at *6 (M.D. Pa. July 17, 2018)).

46 Id. at 9-10.

47 Compl. ¶ 56.

48 DC-ADM 001.C.1.c(6) (Security Office’s investigation of abuse allegations must include review

of inmate’s misconduct reports); DC-ADM 001.C.1.d(7) (investigative report must include copies of

misconduct reports related to the incident). See also Inmate Written Statement.

49 Compl. Ex.2 at 3.

Hurst v. Snider, 530 F. App’x 168, 169 n.3 (3d Cir. 2013) (“Given the uncertainty regarding

exhaustion, we have chosen to address the substance of Hurst’s claims.”) (citing Nyhuis,

204 F.3d at 69 n.4).

ADA and RA Claims

The ADA makes it unlawful for public entities, including prisons, to discriminate

against the disabled in the provision of services, programs and activities. Disability Rights

N.J., Inc. v. Comm’r, N.J. Dep’t of Human Servs., 796 F.3d 293, 301 (3d Cir. 2015) (citing

Tennessee v. Lane, 541 U.S. 509, 517 (2004)); Chisholm v. McManimon, 275 F.3d 315,

325 (3d Cir. 2001) (citing Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998)). The RA

prohibits discrimination by entities receiving federal funding and is interpreted similarly to

the ADA. Yeskey v. Com. of Pa. Dep’t of Corr., 118 F.3d 168, 170 (3d Cir. 1997). To

state a claim under the ADA and the RA, a plaintiff must allege “that he is a ‘qualified

individual with a disability’ [and] that he was excluded from a service, program, or activity

of a public entity . . . because of his disability.” Disability Rights N.J., Inc., 796 F.3d at

301 (quoting 42 U.S.C. § 12102(1)(A)). Mental illness is a disability under the ADA and

the RA. 29 U.S.C. § 705(9)(A); 42 U.S.C. § 12102(1)(A).

Talley alleges that the DOC, Wetzel and Yodis violated his rights under the ADA

and the RA when they punished him for setting fires in his cell. He claims that pursuant

to DC-ADM 801, he should not have been disciplined for these actions because they

constituted self-injurious behavior.50 Talley made this argument at his misconduct

hearing to Yodis, who was tasked with making findings of fact, rendering a verdict and

50 DC-ADM 801.C.1 (“An inmate who . . . engages in self-injurious behavior . . . shall not be

subjected to discipline for that behavior.”).

imposing appropriate punishment.51 Yodis rejected the argument and found Talley guilty

of arson, threatening a DOC employee, and refusing to obey an order.52

The plaintiff in Scherer v. Pennsylvania Department of Corrections made a similar

argument. No. 3:2004-191, 2007 WL 4111412, at *44 (W.D. Pa. Nov. 6, 2007) (quoting

Yeskey, 524 U.S. at 209-10) (internal quotations omitted). In that case, an inmate, who

was placed in the prison’s Restricted Housing Unit (RHU) as punishment for misconduct

arising from his mental illness, sued under the ADA. Id. The court stated that because

his misconduct may have indicated a need for treatment, the prison’s failure to inform

staff of his mental illness may have violated the ADA, if the failure resulted in “the denial

of necessary mental health treatment in response to his misconduct.” Id. However, the

inmate could not maintain a claim based upon his punishment for misconduct arising from

a mental illness. As the court explained, “[m]ental illness may contribute to misconduct

but his placement was based upon misconduct, not because of a policy that those

prisoners diagnosed with mental illness are to be housed in the RHU.” Id.

Talley does not allege that he was denied treatment or punished for his mental

illness. Nor does he allege that the DOC has a policy of placing inmates with mental

health issues in disciplinary segregation. Rather, the documents he attaches to his

complaint indicate he was punished because he set multiple fires in his cell, refused to

put them out and threatened to “fuck[ ] up” Ionata if he opened Talley’s cell door.53 The

discipline for this misconduct did not violate the ADA or the RA.

51 Compl. Ex. 2 at 3, 6.

52 Id. Ex. 2 at 1, 6.

53 Id. Ex. 2 at 1.

Section 1983 Claims

“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). The DOC, as a state agency, is not a “person” under § 1983.

Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 847 (3d Cir. 2014).

Nor do the facts pled by Talley establish a plausible constitutional violation against any

individual defendant.54

Eighth Amendment Claims

Talley claims that Ionata, Robinson, Costanzo, Harrar and Taylor violated his

Eighth Amendment rights when they refused him four consecutive meals over a two-day

period.55 We analyze this claim as one challenging the conditions of his confinement.

Mestre v. Wagner, No. 11-2480, 2012 WL 300724 (E.D. Pa. Jan. 31, 2012).

The Eighth Amendment proscribes the infliction of cruel and unusual punishment.

U.S. CONST. amend. VIII. Prison conditions are cruel and unusual if they deprive inmates

of basic human needs and life’s necessities. Tillman v. Lebanon Cty. Corr. Facility, 221

F.3d 410, 417-18 (3d Cir. 2000). The test is whether the conditions, together or alone,

function to deprive the inmate “of the minimal civilized measures of life’s necessities.” Id.

To state a claim challenging conditions of confinement, an inmate must allege facts

that would, if proven, establish that both the deprivation was objectively serious and that

54 Construing the complaint in the light most favorable to Talley, we assume that although he sues

the individual defendants in their official capacity under the ADA, he also sues them in their personal

capacity under § 1983. A claim for damages against state officials in their official capacity is the same as

a claim against the employing entity, but officials sued in their personal capacity are “persons” under §

1983. Hafer v. Melo, 502 U.S. 21, 22-23, 25, 27 (1991).

55 Compl. ¶¶ 12, 17-18, 21.

a prison official had a sufficiently culpable state of mind, that is, acted with deliberate

indifference. Beers–Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001) (citing Farmer

v. Brennan, 511 U.S. 825, 834 (1994)).

Whether the harm is objectively serious is measured by society's view of the risk,

that is, “whether ‘it violates contemporary standards of decency to expose anyone

unwillingly to such a risk.’” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 257 (3d

Cir. 2010) (emphasis omitted) (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)).

Restrictive or harsh conditions are part of prison life. Rhodes v. Chapman, 452 U.S. 337,

347 (1981). Only conditions that deprive the prisoner of one of life’s necessities, such as

food, water, clothing, shelter, and medical care are unconstitutional. Griffin v. Vaughn,

112 F.3d 703, 709 (3d Cir. 1997). Thus, unless the condition is objectively serious, there

is no unconstitutional deprivation.

A prisoner must also allege facts, not conclusions, showing that a prison official

acted with deliberate indifference to his health or safety. Beers–Capitol, 256 F.3d at 125.

The prison official must actually have known or been aware that the condition created an

excessive risk to the prisoner's health or safety. Id. Actual, not constructive, knowledge

is required. A prison official can only be liable under the Eighth Amendment if he “knows

of and disregards an excessive risk to inmate health or safety.” Id. at 131 (quoting

Farmer, 511 U.S. at 837). It is not enough that he should have known. Id. at 133.

Prisons must provide adequate food. Laufgaus v. Speziale, 263 F. App'x 192, 198

(3d Cir. 2008). A prisoner’s diet must be adequate to maintain health and served in a

sanitary manner. Jones v. Beard, No. 10–5544, 2011 WL 3611470, at *8 (E.D. Pa.

Aug.16, 2011) (citing Maldonado v. McFaden, No. 94–1477, 1994 U.S. Dist. LEXIS

16837, at *11 (E.D. Pa. Nov. 23, 1994)). “‘A substantial deprivation of food may be

sufficiently serious to state a conditions of confinement claim under the Eighth

Amendment.’” Kennedy v. Drumm, No. 09–3924, 2010 WL 3824072, at *10 (D.N.J. Sept.

23, 2010) (quoting Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002)).

The deprivation of four meals over two days does not rise to the level of an Eighth

Amendment violation absent awareness by the official that the deprivation poses a risk to

the inmate’s health and safety. See Toevs v. Milyard, 563 F. App’x 640, 646 (10th Cir.

2014) (denial of nine consecutive meals over three days did not violate Eighth

Amendment). Here, Talley alleges no resulting health effects or weight loss from lack of

food, let alone that the officials subjectively appreciated any risk posed to him.

Talley alleges that Brown, Ionata, Harrar and the Unknown Corrections Officers

violated his Eighth Amendment rights when they “made no attempt at all” to remove him

from his cell after he set fires in it.56 But, Talley’s own averments contradict this assertion.

After he set the first fires, these defendants attempted to put it out, but he blocked their

fire extinguisher with a blanket.57 He set another fire, which they attempted to extinguish,

but Talley again blocked their fire extinguisher.58 After Talley set yet another round of

fires, Taylor, Brown, Harrar, Ionata and the Unknown Corrections Officers removed him

from his cell and took him to medical triage.59 The entire incident lasted approximately

seven minutes.60 The defendants did not act with deliberate indifference to Talley’s health

56 Compl. ¶ 48.

57 Id. ¶ 22.

58 Id. ¶¶ 24-25.

59 Id. ¶¶ 27-28.

60 Id. Ex. 2 at 5.

and safety in addressing the fires that he started in his cell. On the contrary, in his own

words, he pleads that the defendants attempted to prevent injury to him.

Talley alleges that the DOC, Wetzel and Yodis violated his rights under the Eighth

Amendment by punishing him for the self-injurious behavior of setting fires.61 It appears

Talley contends that Yodis’ determination that his actions were not protected self-injurious

behavior was inconsistent with the Settlement Agreement and General Release

(Settlement Agreement) in Disability Rights Network of Pennsylvania v. Wetzel.62 But,

even if Talley is correct, the breach of the Settlement Agreement would not establish a

constitutional violation. As noted, Talley was charged with and convicted of a misconduct

because he set fires in his cell and threatened to “fuck[ ] up” Ionata.63 He alleges no facts

showing that he was punished because he is mentally ill. On the contrary, his allegations

show that he was disciplined for misconduct.

Talley also asserts Eighth Amendment supervisory liability claims against CISM,

the DOC and Wetzel. To state a claim for supervisory liability under § 1983, the plaintiff

must identify the specific supervisory practice or procedure the supervisor failed to follow,

and show that: “(1) the existing policy or practice created an unreasonable risk of the

Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was

created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the

policy or practice.” Beers-Capitol, 256 F.3d at 134. An allegation that the injury would

not have occurred had the supervisor “done more” is insufficient. Brown v. Muhlenberg

Twp., 269 F.3d 205, 216 (3d Cir. 2001) (quoting Sample v. Diecks, 885 F.2d 1099, 1118

61 Id. ¶ 43.

62 Id.

63 Id. Ex. 2 at 1.

(3d Cir. 1989)). The plaintiff must identify specific acts or omissions that show deliberate

indifference and establish a connection between the supervisor’s act or omission and the

injury. Id.; Collins v. Williams, 575 F. Supp. 2d 610, 615 (D. Del. 2008) (citing Sample,

885 F.2d at 1118)).

Talley claims that CISM violated his Eighth Amendment rights by failing to provide

DOC employees with adequate fire and evacuation training and supervision.64 But, Talley

alleges no injury. Although he concludes that the fires he started “nearly” resulted in his

death due to CISM’s failure to supervise the DOC’s corrections officers, the only fact he

alleges in support of this conclusion is that the smoke from the fires caused him to “almost

gag.”65 Talley was exposed to smoke from the fires for a maximum of seven minutes,

and he attributes this exposure to the lack of a sprinkler system, not CISM’s failure to

supervise.66 He alleges no burns or other injuries suffered from trying to escape the fires.

Further, Talley’s smoke inhalation resulted from his own efforts to block the responding

corrections officers who attempted to extinguish the fires, not CISM’s failure to supervise

them. Nor does Talley allege that CISM was aware of and indifferent to an unreasonable

risk posed to him.

Talley also alleges that the DOC and Wetzel failed to supervise DOC employees

to ensure that he was not punished for setting fires, which he claims were acts of self-

injurious behavior.67 DOC policies prohibit disciplining an inmate for self-injurious

64 Compl. ¶ 46.

65 Id. ¶ 24.

66 Id. ¶ 24 & Ex. 2 at 5.

67 Id. ¶¶ 42, 47.

behavior.68 The DOC definition of self-injurious behavior includes “setting fire to self.”69

Talley set toilet paper, not himself, on fire.70 Self-injury also includes any “socially

unaccepted behavior that is generally a response to a psychological crisis that results in

tissue damage and which occurs in the absence of subjective suicidal intent . . . .”71

However, even if the denial of Talley’s breakfast trays precipitated a psychological crisis,

he alleges no tissue damage resulting from the fires he set in response. At Talley’s

misconduct hearing, Yodis found that Talley’s actions did not constitute protected self-

injurious behavior. Talley was not punished for his mental illness. He was disciplined for

arson and threatening physical harm to corrections officers.

Fourteenth Amendment Claims

Talley alleges that the DOC, Wetzel and Yodis’ punishment for setting fires violated

the Fourteenth Amendment’s Privileges and Immunities and Due Process Clauses.72 He

has not stated a cause of action under either clause.

The Privileges and Immunities Clause reads: “The Citizens of each State shall be

entitled to all Privileges and Immunities of Citizens in the several States.” U.S. CONST.

art. IV, § 2. It “prevents a State from discriminating against citizens of other States in

favor of its own.” Lee v. Minner, 458 F.3d 194, 197 (3d Cir. 2006) (quoting Hague v. CIO,

307 U.S. 496, 511 (1939)), abrogated on other grounds by McBurney v. Young, 569 U.S.

68 DC-ADM 801.C.1.

69 DC-ADM 801.C.1.c(1). The DOC’s definition does not purport to list every possible type of self-

injurious behavior.

70 Compl. Ex. 2 at 5.

71 DC-ADM 801.C.1.a.

72 Compl. ¶¶ 42-43.

221 (2013). Talley does not allege that he is a citizen of a state other than Pennsylvania,

let alone that he was treated differently for that reason.

Talley also alleges that the DOC, Wetzel and Yodis violated the Fourteenth

Amendment’s Due Process Clause.73 The due process analysis starts with determining

whether the interest asserted is one that is protected by the Fourteenth Amendment.

Montanez v. Sec’y Pa. Dep’t of Corr., 773 F.3d 472, 482-83 (3d Cir. 2014) (quoting Evans

v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 663 (3d Cir. 2011)). If it is a protected interest,

we must then determine what process is necessary to protect it. Newman v. Beard, 617

F.3d 775, 783 (3d Cir. 2010) (citation omitted). If the interest is not protected, no process

is necessary. Thus, at the threshold, the plaintiff must establish that he had a protected

interest that triggered due process rights. See Fraise v. Terhune, 283 F.3d 506, 522 (3d

Cir. 2002) (finding that succeeding on a due process claim requires demonstrating that

the plaintiff was deprived of a protected interest).

Talley claims that he was deprived of property and liberty interests.74 He does not

specify what these interests were. His punishment consisted of a 60-day period of

disciplinary custody and the loss of his prison job.75 “[I]nmates are generally not entitled

to procedural due process in prison disciplinary hearings because the sanctions resulting

from those hearings do not usually affect a protected liberty interest.” Burns v. Pa. Dep't

of Corr., 642 F.3d 163, 171 (3d Cir. 2011) (citing Sandin v. Conner, 515 U.S. 472, 483-

84 (1995)). The sanctions imposed upon Talley are insufficient to trigger due process

protections. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (“[C]onfinement

73 Id. ¶ 43.

74 Id.

75 Id. Ex. 2 at 6.

in administrative or punitive segregation will rarely be sufficient, without more, to establish

the kind of ‘atypical’ deprivation of prison life necessary to implicate a liberty interest [for

purposes of triggering due process protection].” (quoting Sandin, 515 U.S. 472 (1995)));

Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (holding that “exposure to the

conditions of administrative custody for periods as long as 15 months falls within the

expected parameters of the sentence imposed [...] by a court of law” and does not

constitute a due process violation) (quotation omitted). Also, Talley does not have a

property interest in his prison job. See Burns, 642 F.3d at 171. Therefore, Talley has not

pleaded a due process violation.

Talley also asserts an equal protection violation under the “‘class-of-one’ theory”

against Ionata, Robertson, Costanzo and Harrar because they did not require other

inmates to face the wall, place their hands on their head and bark to receive their meal

trays.76 “[T]o state a claim for ‘class of one’ equal protection, a plaintiff must at a minimum

allege that he was intentionally treated differently from others similarly situated by the

defendant and that there was no rational basis for such treatment.” Phillips v. Cty. of

Allegheny, 515 F.3d 224, 243 (3d Cir. 2008).

According to Talley, he has a “propensity to employ fire in/during acts of [self-

injurious behavior],” which poses a risk not only to himself but also to prison staff.77 He

fails to allege that the purportedly similarly situated inmates on his cell block had similar

histories of such behavior. Given this history, Ionata, Robertson, Costanzo and Harrar

had a rational basis for requiring him to face the wall with his hands on his head.

76 Id. ¶ 50.

77 See id. ¶ 42.

The defendants concede that requiring Talley to bark like a dog to obtain his food

“serves no security purpose.”78 But, de minimis constitutional violations are not

actionable. Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 895 (7th Cir. 2012) (Posner,

J.) (citations omitted). “[C]ourts generally agree that only egregious class-of-one cases

should be actionable in the name of the Constitution . . . .” Id. (emphasis in original)

(citation omitted). This case is not one.

State Law Claims

“Where the claim over which the district court has original jurisdiction is dismissed

before trial, the district court must decline to decide the pendent state claims unless

considerations of judicial economy, convenience, and fairness to the parties provide an

affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)

(emphasis in original) (citing Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995)); see also 28 U.S.C. § 1367(c)(3). No exceptions apply here.

There is no reason to retain jurisdiction over Talley’s state law claims, which he

may assert in state court. See, e.g., Segers v. Williams, No. 13-2413, 2014 WL 285078,

at *5 n.9 (E.D. Pa. Jan. 27, 2014). Thus, we shall decline to exercise supplemental

jurisdiction.

Injunctive and Declaratory Relief Claims

Talley seeks a declaration that it is unconstitutional for him to be charged with

misconduct or punished for his “ongoing mental health symptoms . . . .”79 Similarly, he

seeks an injunction compelling the DOC and Wetzel to notify prison staff, including

78 Defs.’ Mot. to Dism. at 23. Talley does not plead that he complied with the corrections officers’

legitimate instructions.

79 Compl. ¶ 66.

hearing examiners, that he cannot be charged or punished for setting fires because they

constituted self-injurious behavior. But, Talley does not plead that he was charged or

punished due to his mental illness. His allegations show that he was charged and

punished because he set fires in his cell and threatened prison staff.80 Therefore, he is

not entitled to declaratory and injunctive relief.

Conclusion

Because Talley failed to exhaust his administrative remedies under the PLRA as

to his claims regarding the lack of sprinklers, we shall dismiss those claims as

unexhausted. We dismiss his remaining federal claims for failure to state a plausible

claim. We decline to exercise supplemental jurisdiction over his state law claims.

Therefore, this action will be dismissed with prejudice as to all defendants as to the federal

claims and without prejudice as to the state law claims.

80 Id. Ex. 2 at 1.