JOHNSON v. CLARK

FORI NT HTEH EE AUSNTIETREND DSTISATTREISC DT IOSTFR PIECNTN CSOYULVRAT NIA

RAHEEM JOHNSON, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-4738

:

GINA CLARK, et al., :

Defendants. :

MEMORANDUM

SCHMEHL, J. /s/JLS May 22, 2024

Plaintiff Raheem Johnson, a convicted prisoner currently incarcerated at SCI Chester, filed

a pro se Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983, asserting violations of his

constitutional rights at both SCI Chester and SCI Camp Hill.1 Johnson brings claims against the

Pennsylvania Department of Corrections (“DOC”); the Secretary of the DOC, Laurel Harry;

certain SCI Chester employees (Facilities Manager Gina Clark, Culinary Department Supervisor

Cotton-Williams, Deputy Superintendent of Centralized Services Keith Miller, Mailroom

Supervisor Tameka Davis, and “CFSM”2 M. Reasons); and certain SCI Camp Hill employees

(Correctional Officer (“CO”) Boose; Captain Baptist; and Grievance Coordinator Heist. (Compl.

at 2-3.) Johnson asserts individual and official capacity claims against all Defendants. (Id.) For

the following reasons, the Court will sever Johnson’s claims against the DOC and SCI Chester

employees, which are based on allegations related to Johnson’s restricted GERD diet, from his

claims against SCI Camp Hill employees, which are based on the alleged confiscation of Johnson’s

1 Also pending is Johnson’s Motion to Move Forward (ECF No. 6). Johnson’s Motion will

be denied as moot in light of the filing of this Memorandum an accompanying Order.

2 The Court understands this acronym to stand for “Corrections Food Service Manager.”

legal papers. The SCI Camp Hill claims will be transferred to the U.S. District Court for the

Middle District of Pennsylvania. Of the SCI Chester claims remaining before this Court, the

following will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii): claims for

money damages based on the Pennsylvania Constitution, claims based on the outcome of

Johnson’s grievances, Rehabilitation Act claims asserted against the individual Defendants, and

Johnson’s official capacity claims and claims against the DOC seeking money damages. The Court

will dismiss without prejudice Johnson’s conditions of confinement claims based on being served

contaminated food, his retaliation claims, any supervisory liability claims he seeks to pursue

against Defendants Clark and Miller, his claims against Secretary Harry,3 and his Rehabilitation

Act claim against the DOC. The Court is prepared to serve Johnson’s conditions of confinement

claim based on the alleged non-delivery of his restricted diet against Defendants Cotton-Williams

and Reasons. Johnson will be afforded the option of proceeding with those claims only or filing

an amended complaint.

I. FACTUAL ALLEGATIONS4

The focus of Johnson’s Complaint is twofold. First, he alleges that he was not served his

duly authorized restricted diet meal on numerous occasions, and after he complained and filed

grievances about the missing meals, he was retaliated against by members of the SCI Chester

culinary staff, who he alleges served him contaminated food. Second, he alleges that when he was

3 There are no factual allegations in the Complaint describing any conduct engaged in by

Harry. Any claim against her is, therefore, not plausible. See Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have personal involvement

in the alleged wrongs” to be liable.)

4 The allegations set forth in this Memorandum are taken from Johnson’s Complaint. (ECF

No. 1.) The Court adopts the pagination supplied by the CM/ECF docketing system.

transferred to SCI Camp Hill for three days in March 2023, some of his legal paperwork was

confiscated by SCI Camp Hill personnel, allegedly in retaliation for Johnson’s prior civil lawsuits

against the DOC. Johnson alleges that he pursued the grievance process to redress these alleged

violations of his rights.

A. Allegations Related to Contaminated Food and Denial of Restricted Diet

Johnson alleges that he was transferred from SCI Camp Hill to SCI Chester on March 19,

2019. (Compl. at 2.) He alleges he was granted permission to follow a GERD5 diet to address

symptoms including chest pain, heart burn, and indigestion. (Id. at 4.) In November of 2021,

meals consistent with Johnson’s restricted diet were not delivered for “several days,”6 and Johnson

requested that non-defendant CO Plummer call Defendant Culinary Department Supervisor

Cotton-Williams and request delivery of his restricted meals. (Id.) When, after several days of

calls, Cotton-Williams finally sent the meal labelled with Johnson’s name to his unit, Johnson

allegedly found chewed gum in the meal. (Id.) He reported this to CO Plummer, who requested

a replacement meal. Cotton-Williams allegedly agreed to send the replacement. (Id.) Johnson

attributes the contaminated food to retaliation by Cotton-Williams because Johnson complained

about not receiving his restricted meals and asked COs to call and request the meals. (Id. at 5.)

Johnson filed a grievance based on receiving contaminated food. His grievance was upheld but

he was denied money damages. Defendant Clark denied Johnson’s appeal, finding his claim of

retaliation to be unsubstantiated. (Id. at 4-6.)

5 “GERD” is an acronym for gastroesophageal reflux disease.

6 Johnson attributes the alleged denial of his restricted meals to retaliation based on his

efforts to assist other prisoners to write complaints based on the delivery of cold food during the

COVID lockdown. (Id. at 4.)

In January 2022, Johnson filed another grievance when he allegedly did not receive a meal

consistent with his restricted diet for six days. (Id. at 6.) His grievance was upheld on the ground

that he was entitled to receive the restricted diet and that the culinary department was aware of the

requirement. (Id.) In June 2023, Johnson filed a further grievance when he allegedly did not

receive his restricted diet from June 1, 2023 through June 12, 2023, a period of more than ten days.

(Id. at 7.) The grievance was denied as unsubstantiated. The response noted that Defendant

Reasons was informed of Johnson’s restricted diet on June 9, 2023, and that there was no

documentation supporting Johnson’s claim that he did not receive it thereafter. (Id. at 8.) Johnson

alleges that on June 19, 2023, one week after filing his grievance, he was served his restricted diet

at lunch and that there was a hair in it. (Id. at 9.) He filed another grievance, claiming that the

hair was deliberately placed in his meal by kitchen staff in retaliation for his earlier grievance. (Id.

at 9.) The grievance was denied because, although several witnesses saw the hair in Johnson’s

meal, there was no evidence that it came from the kitchen. (Id. at 9-11.) Johnson alleges that on

August 21, 2023, he was served his restricted diet and a ladybug had been placed in his meal. (Id.

at 10.) He then filed a grievance about the contaminated meal, which was denied because there

was no way to know who placed the bug in the meal. (Id. at 11.) Defendant Clark specifically

denied Johnson’s claim that the kitchen staff were retaliating against him by serving him

contaminated food. (Id. at 12.)

In short, Johnson alleges that over a period of approximately 18 months, he was not served

his restricted diet on approximately twenty days. Also, during that time, he was allegedly served

contaminated food on three occasions. He claims that the conduct giving rise to these events was

retaliation for filing grievances, and that it was done with deliberate indifference to his needs. (Id.

at 23.) He alleges that the Defendants were aware of and disregarded the danger associated with

failing to serve him his restricted diet “for weeks.” (Id. at 23-24.) He further alleges that as a

result of the allegedly retaliatory contamination of his meals on three occasions, he no longer trusts

his restricted diet trays and has either gone without eating or resorted to eating foods from the

commissary, spending his own money to do so. (Id. at 24.) Johnson also alleges that the events

described have triggered his PTSD. (Id.)

B. Allegations Related to Confiscation of Legal Papers

Johnson alleges he was transferred from SCI Chester to SCI Camp Hill on February 21,

2023, and remained there until February 23, 2023, when he was transferred back to SCI Chester.

(Id. at 13.) While at SCI Camp Hill, Johnson alleges that Defendant CO Boose commented that

Johnson liked suing the DOC. Johnson responded that he only sued when his rights were being

violated, and Boose allegedly replied that Johnson was at Camp Hill, where he had no rights. (Id.)

Boose stated he was confiscating Johnson’s legal papers, commenting that Johnson would not be

able to sue anyone else for some time. (Id.) Johnson filed a grievance about the confiscation of

his legal papers and was advised in response that all inmates’ legal papers were confiscated upon

their return from court and tested for contraband, and that three of his pages had tested positive.

(Id.) The response also noted that Johnson had received a confiscation slip and that his paperwork

had been returned to him prior to his return to SCI Chester, but Johnson alleges this was not true.

(Id. at 13-14.) Johnson appealed the initial grievance response, but his later efforts to utilize the

process were unsuccessful as his appeal was untimely filed. (Id. at 14.)

Johnson alleges that on March 23, 2023, non-Defendant CO Brown called him to the

property department, where he told Johnson to sign for the delivery of his legal paperwork from

SCI Camp Hill. (Id. at 15-16.) Johnson initially refused to sign for the material because the file

was very small, but upon being threatened with a misconduct or transfer to the Restricted Housing

Unit, he accepted the paperwork. (Id. at 16.) Johnson alleges he filed a grievance with SCI Camp

Hill seeking the return of all of his paperwork, but that SCI Camp Hill Grievance Coordinator

Heist rejected it on timeliness grounds and because Johnson did not supply the required

documentation to substantiate his claims. (Id. at 17.) Johnson also filed a grievance at SCI Chester

claiming that Defendant Davis opened his legal mail outside of his presence and then allowed CO

Brown to return the paperwork, which was missing items, to Johnson. (Id. at 19.) In response to

his grievance, Johnson was told to direct his grievance to SCI Camp Hill as the facility that

confiscated his paperwork and returned his paperwork with items missing.7 (Id. at 20, 21, 22.)

Based on the foregoing, Johnson asserts First Amendment claims for retaliation and denial

of access to the courts, Fourth Amendment claims for confiscation of personal property, Eighth

Amendment conditions of confinement claims, a claim under the Rehabilitation Act, 29 U.S.C.

§ 794(a), claims arising from his participation in the grievance process, claims pursuant to the

Pennsylvania Constitution,8 and state law claims for negligence, recklessness, and intentional

7 Attached to Johnson’s Complaint is what appears to be a complete record of the grievances,

appeals, and responses thereto referred to by Johnson in his Complaint. (See ECF No. 1-1.)

8 “Pennsylvania does not have a statutory equivalent to § 1983 and does not recognize a

private right of action for damages stemming from alleged violation of the state constitution.”

Miles v. Zech, 788 F. App’x 164, 167 (3d Cir. 2019) (per curiam). As there is no private right of

action for damages under the Pennsylvania Constitution, these claims are dismissed as legally

frivolous. See Plouffe v. Cevallos, 777 F. App’x 594, 601 (3d Cir. 2019) (“[N]or is there a private

right of action for damages under the Pennsylvania Constitution”); Pocono Mountain Charter Sch.

v. Pocono Mountain Sch. Dist., 442 F. App’x 681, 687 (3d Cir. 2011) (“No Pennsylvania statute

establishes, and no Pennsylvania court has recognized, a private cause of action for damages under

the Pennsylvania Constitution.”).

However, Pennsylvania courts and the United States Court of Appeals for the Third Circuit

have recognized that a plaintiff may maintain a successful cause of action directly under the

provisions of the Pennsylvania Constitution for equitable remedies such as injunctive and

declaratory relief. See Pocono Mountain Charter Sch., 442 F. App’x at 688 (citing Moeller v.

Bradford Cnty., 444 F. Supp. 2d 316, 320–21 (M.D. Pa. 2006) (“[I]t is well settled that individual

plaintiffs may bring suit for injunctive relief under the Pennsylvania Constitution”) and Jones v.

City of Philadelphia, 890 A.2d 1188, 1216 (Pa. Cmmw. Ct. 2006) (“[O]ther remedies, such as

declaratory or injunctive relief . . . are . . . remedies under the Pennsylvania Constitution.”)).

Johnson requests prospective relief in the form of an order requiring the defendants to provide him

with his restricted diet and to return his legal materials. (Compl. at 25.) He may pursue this relief

in a claim asserted under the Pennsylvania Constitution.

infliction of emotional distress. (Id. at 1-2, 23-24.) Johnson seeks money damages and injunctive

relief in the form of an order requiring the defendants to provide him with his restricted diet and

to return his legal materials. (Id. at 25.) Johnson also seeks an order prohibiting retaliatory transfer

from unit to unit within his current facility, and transfer to another facility far from his family.9

(Id. at 26.)

II. SEVERANCE OF CLAIMS

Johnson raises two distinct claims in his Complaint: first, a claim asserted against SCI

Chester personnel based on the alleged denial on several occasions of his restricted GERD diet

and three instances of his receipt of contaminated food, and second, a claim asserted against SCI

Camp Hill personnel based on the alleged confiscation of several of his legal papers while he was

briefly at that facility. The Court will sever the claims asserted against the SCI Chester Defendants

from the claims asserted against the SCI Camp Hill Defendants so that they may proceed in

separate lawsuits.

The Federal Rules of Civil Procedure provide that “[a] party asserting a claim, . . . may

join, as independent or alternative claims, as many claims as it has against an opposing party.”

Fed. R. Civ. P. 18(a). They likewise allow a plaintiff to join multiple defendants in one action if:

(a) “any right to relief is asserted against them jointly, severally, or in the alternative with respect

to or arising out of the same transaction, occurrence, or series of transactions or occurrences”; and

(b) “any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ.

P. 20. “For courts applying Rule 20 and related rules, ‘the impulse is toward entertaining the

9 It is well-settled that prisoners have no inherent constitutional right to placement in any

particular prison, to any particular security classification, or to any particular housing assignment.

See Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005) (holding that the Constitution does not give

rise to liberty interest in avoiding transfers to more adverse conditions of confinement); Lane v.

Tavares, 2016 WL 7165750, at *16 (M.D. Pa. July 12, 2016) (same). This request will be denied.

broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties

and remedies is strongly encouraged.’” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009)

(quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)). “But this application,

however liberal, is not a license to join unrelated claims and defendants in one lawsuit.” Pew v.

Little, 2024 WL 967823, at *2 (E.D. Pa. March 6, 2024 (citing McKinney v. Prosecutor’s Office,

2014 WL 2574414, at *14 (D.N.J. June 4, 2014) (internal quotations omitted). “‘Thus multiple

claims against a single party are fine, but Claim A against Defendant 1 should not be joined with

unrelated Claim B against Defendant 2.’” Gorrio v. Terra, 2023 WL 8373167, at *6 (E.D. Pa.

Dec. 4, 2023) (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007)). Indeed, “[t]he courts[]

. . . have frowned on prisoners’ attempts to lump together their multifarious grievances about life

in a single prison, let alone multiple prisons.” McKinney, 2014 WL 2574414, at *15. To remedy

a misjoinder, a Court may add or drop a party or sever any claims. Fed. R. Civ. P. 21. Rule 21

“give[s] district courts broad discretion in deciding whether to sever a case by way of severing

parties or claims.” Graudins v. Retro Fitness, LLC, 921 F. Supp. 2d 456, 467 (E.D. Pa. 2013).

Johnson has asserted claims based on two separate and distinct series of events that

occurred at two separate prisons. The claims do not belong in a single lawsuit. See Thompson v.

Ferguson, 849 F. App’x 33, 36 (3d Cir. 2021) (per curiam) (“Misjoinder of claims occurs when,

among other things, the events that give rise to the plaintiff’s claims do not stem from the same

transaction.”); see also Roudabush v. United States, 2011 WL 13225005, at *6 (D.N.J. July 14,

2011) (“Here, the claims arising out of the state court trial appear to be completely unrelated,

factually and legally, from the claims arising out of conditions at the jail.”); Saulberry v. Atl. Cnty.

Jail, 2010 WL 3825701, at *6 (D.N.J. Sept. 24, 2010) (severing claims where “the claims arising

out of the arrests are completely unrelated, factually and legally, from the claims arising out of

conditions at the jail”). Accordingly, the Court will exercise its discretion under Rule 21 and sever

Johnson’s claims against SCI Camp Hill personnel into a separate lawsuit, which will be

transferred to the United States District Court for the Middle District of Pennsylvania.10 The Court

will address Johnson’s remaining allegations based on events that occurred at SCI Chester.

III. STANDARD OF REVIEW

Although Johnson has paid the filing fee in full, the Court has the authority to screen his

Complaint pursuant to 28 U.S.C. § 1915A. See Shane v. Fauver, 213 F.3d 113, 116 n.2 (3d

Cir. 2000) (recognizing that the district courts have the authority to screen a prisoner complaint

pursuant to § 1915A(b)(1) even if the prisoner is not proceeding in forma pauperis).

Section 1915A requires that the Court “review, before docketing, if feasible or, in any event, as

soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress

from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C.

§ 1915A(a). In doing so, the Court must dismiss a complaint or any portion thereof that “is

frivolous, malicious, or fails to state a claim upon which relief may be granted,” id. § 1915A(b)(1),

or that “seeks monetary relief from a defendant who is immune from such relief,” id.

§ 1915A(b)(2).

10 There is no apparent basis for venue in this district those claims based on events that

occurred at SCI Camp Hill, which is located in Cumberland County in the Middle District of

Pennsylvania. Therefore, the Court will direct the Clerk of Court to transfer the severed claims to

that District, where the events giving rise to Johnson’s claims occurred and where the majority of

the Defendants are located. See 28 U.S.C. §§ 118(b), 1391(b) & 1406(a); Lafferty v. St. Riel, 495

F.3d 72, 74-75 & n.3 (3d Cir. 2007) (declining to disturb district court’s sua sponte transfer under

§ 1406(a)); Decker v. Dyson, 165 F. App’x 951, 954 n.3 (3d Cir. 2006) (district court may sua

sponte transfer case under § 1406(a)). The Court will also sever and transfer Johnson’s claims

against SCI Chester mailroom Supervisor Tameka Davis, because the factual allegations in the

Complaint make clear that the claims are related to Johnson’s confiscated legal papers, and not to

his restricted diet.

A complaint is frivolous if it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989). It is legally baseless if “based on an indisputably meritless

legal theory,” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995), and factually baseless

“when the facts alleged rise to the level of the irrational or the wholly incredible.” Denton v.

Hernandez, 504 U.S. 25, 33 (1992). Whether a complaint fails to state a claim under

§ 1915A(b)(1) is governed by the same standard applicable to motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6). See Neal v. Pa. Bd. of Prob. & Parole, 1997 WL 338838, at *1

(E.D. Pa. June 19, 1997); see also Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

Accordingly, the Court must 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); Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). ‘“At

this early stage of the litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint

as true,’ ‘draw[] all reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only whether [that]

complaint, liberally construed, . . . contains facts sufficient to state a plausible . . . claim.’” Shorter

v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774,

782 (7th Cir. 2015)). Conclusory allegations do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). As Johnson is proceeding pro se, the Court construes his allegations liberally. Vogt v.

Wetzel, 8 F. 4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

244-45 (3d Cir. 2013)).

IV. DISCUSSION

Johnson asserts claims for violation of his First and Eighth Amendment rights. The vehicle

by which federal constitutional claims may be brought in federal court is 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).

“A defendant in a civil rights action must have personal involvement in the alleged wrongs” to be

liable. See Rode 845 F.2d at 1207; Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (“Personal

involvement requires particular ‘allegations of personal direction or of actual knowledge and

acquiescence.’” (quoting Rode, 845 F.2d at 1207)); Iqbal, 556 U.S. at 676 (explaining that

“[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has violated the

Constitution”).

A. Claims Against the DOC and Official Capacity Claims

The Eleventh Amendment bars suits against a state and its agencies in federal court that

seek monetary damages. See Pennhurst State Sch. And Hosp. v. Halderman, 465 U.S. 89, 99-100

(1984); A.W. v. Jersey City Public Schs., 341 F.3d 234, 238 (3d Cir. 2003). Suits against state

officials acting in their official capacities are really suits against the employing government

agency, and as such, are also barred by the Eleventh Amendment. A.W., 341 F.3d at 238; see also

Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71

(1989). As the Commonwealth has not waived its Eleventh Amendment immunity for lawsuits

filed in federal court, see 42 Pa. Cons. Stat. § 8521-22, it and its departments, as well as its officials

sued in their official capacities, are immune from suits for money damages filed in federal court.

However, Johnson may pursue his claims for money damages against state officials sued

in their individual capacities, because state officials sued in their individual capacities are

“persons” within the meaning of § 1983, see Hafer, 502 U.S. at 31, and the Eleventh Amendment

does not bar suits for monetary damages brought under § 1983 against state officials in their

individual capacities, id. Additionally, the Eleventh Amendment does not generally bar

prospective declaratory or injunctive relief. See Kentucky v. Graham, 473 U.S. 159, 167 (1985)

(explaining that “official-capacity actions for prospective relief are not treated as actions against

the State”); see also Edelman v. Jordan, 415 U.S. 651, 677 (1974) (holding that “a federal court’s

remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective

injunctive relief.”); O’Callaghan v. Hon. X, 661 F. App’x 179, 182 (3d Cir. 2016). Thus, while

Johnson may receive prospective injunctive relief on an official capacity claim against state

employees, he may not receive money damages on those claims. Accordingly, his official capacity

claims, to the extent he seeks money damages, must be dismissed.

B. Claims Against Facilities Manager Clark and Deputy Superintendent of

Centralized Services Miller

Johnson names SCI Chester Facilities Manager Clark and Deputy Superintendent of

Centralized Services Miller as Defendants. The nature of the claims asserted against them is

unclear. The only factual allegations describing any conduct engaged in by Clark relate to

Johnson’s grievances concerning his missing restricted meals and his receipt of contaminated food,

as she allegedly provided responses to his appeals of these grievances. There are no factual

allegations describing any conduct engaged in by Miller in the Complaint, but the Exhibits to the

Complaint reflect that Miller, too, reviewed grievances submitted by Johnson. (See, e.g., ECF 1-

1 at 10, 23.) The Court thus understands Johnson’s claims to arise either from Clark’s and Miller’s

participation in the grievance process, or in their capacities as Facilities Manager and Deputy

Superintendent of Centralized Services, respectively. Neither possibility states a plausible claim.

1. Claims based on Participation in the Grievance Process

Claims based on the handling of prison grievances fail because “prisoners do not have a

constitutional right to prison grievance procedures.” Gerholt v. Wetzel, 858 F. App’x 32, 34 (3d

Cir. 2021) (per curiam) (citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) and Flick v.

Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam)). Accordingly, allegations predicated on

failures of the grievance process or improper handling of or response to grievances do not give

rise to a constitutional claim. See Woods v. First Corr. Med. Inc., 446 F. App’x 400, 403 (3d Cir.

2011) (per curiam) (“We agree with the District Court that because a prisoner has no free-standing

constitutional right to an effective grievance process, [the plaintiff] cannot maintain a

constitutional claim against [a prison official] based upon his perception that she ignored and/or

failed to properly investigate his grievances.” (internal citation omitted)); Burnside v. Moser, 138

F. App’x 414, 416 (3d Cir. 2005) (per curiam) (explaining that “[i]nmates do not have a

constitutionally protected right to the prison grievance process” and that “a state grievance

procedure does not confer any substantive constitutional right upon prison inmates” (internal

quotations and citations omitted)).

Additionally, a prison official’s mere involvement in the grievance process, without more,

is not actionable under § 1983. See Folk v. Prime Care Med., 741 F. App’x 47, 51 (3d Cir. 2018)

(per curiam) (“Although some of these defendants were apparently involved in responding to some

of [the plaintiff’s] prison grievances, there are no allegations linking them to the underlying

incidents and thus no basis for liability based on those later grievance reviews.”); Curtis v. Wetzel,

763 F. App’x 259, 263 (3d Cir. 2019) (per curiam) (“The District Court properly determined that

Defendants . . . —who participated only in the denial of [the plaintiff’s] grievances—lacked the

requisite personal involvement [in the conduct at issue].”) Accordingly, to the extent Johnson

bases his claims against Clark and Miller on their roles in the grievance process, they will be

dismissed with prejudice.

2. Claims Based on Supervisory Role

Because Johnson fails to allege any conduct by Clark or Miller that may have contributed

to the difficulty in being served his restricted diet or to his receipt of contaminated food, he may

have named them as Defendants merely because, in light of their roles as Facilities Manager and

Deputy Superintendent of Centralized Services, Johnson believes that they are responsible for day-

to-day operations of the prison, including the culinary department. To the extent Johnson seeks to

assert claims against Clark or Miller based on the conduct of another SCI Chester employee, he

cannot do so, because liability under § 1983 cannot be predicated on a respondeat superior basis.

Chavarriaga, 806 at 227; Robinson v. Delbalso, No. 22-2378, slip op. at 3-4 (3d. Cir. Nov. 28,

2022) (per curiam). Rather, there are “two general ways in which a supervisor-defendant may be

liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc., 766

F.3d 307, 316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822 (2015).

First, a supervisor may be liable if he or she “‘with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly caused [the] constitutional

harm.” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d

Cir. 2004) (alteration in original)). To set forth a claim for supervisory liability under the policy-

and-practice strand of supervisory liability, a plaintiff must:

(1) identify the specific supervisory practice or procedure that the

supervisor failed to employ, and show that (2) the existing custom

and practice without the identified, absent custom or procedure

created an unreasonable risk of the ultimate injury, (3) the

supervisor was aware that this unreasonable risk existed, (4) the

supervisor was indifferent to the risk; and (5) the underling’s

violation resulted from the supervisor’s failure to employ that

supervisory practice or procedure.

Chavarriaga., 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir.

2001)). “Put another way, the inmate must identify the supervisor’s specific acts or omissions

demonstrating the supervisor’s deliberate indifference to the inmate’s risk of injury and must

establish a link between the supervisor, the act, and the injury.” Id. “Second, a supervisor may

be personally liable under § 1983 if he or she participated in violating the plaintiff’s rights,

directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in

the subordinate’s unconstitutional conduct.” Id. Generalized allegations that a supervisory

defendant is “in charge of” or “responsible for” an office or facility are insufficient to allege

personal involvement in an underlying constitutional violation. See Saisi v. Murray, 822 F.

App’x 47, 48 (3d Cir. 2020) (per curiam) (“Saisi asserted that some defendants were ‘in charge

of agencies that allowed this to happen,’ and that liability stemmed merely from defendants’

‘belief’ that their conduct would be ‘tolerated.’ However, a director cannot be held liable

‘simply because of his position as the head of the [agency].’” (quoting Evancho v. Fisher, 423

F.3d 347, 354 (3d Cir. 2005)).

Johnson alleges that on several occasions, he was not provided with his restricted diet, and

on other occasions, he was served contaminated food, both of which were in retaliation for filing

grievances and complaining about missing meals. (See Compl. at 11.) Johnson has not alleged

that either Clark or Miller personally participated in those incidents. He also does not allege that

Clark or Miller directed others to engage in conduct that violated his rights. Additionally, Johnson

has not alleged that either Clark or Miller maintained or failed to employ a specific policy or

custom knowing that such conduct would likely result in a violation of Johnson’s rights. Johnson’s

claims against Clark and Miller are not plausible and must be dismissed. Johnson will be granted

leave to amend this claim.

C. Claims Against Reasons and Cotton-Williams

1. Eighth Amendment Conditions of Confinement Claims

Johnson asserts two distinct conditions of confinement claims, one based on the culinary

department’s failure on as many as twenty occasions over a period of 18 months to provide him

with his restricted GERD diet, and another based on his receipt on three occasions of contaminated

food. For the following reasons, these claims will be served for a responsive pleading.

a. Missed Restricted Diet Meals

The Eighth Amendment governs claims brought by convicted inmates challenging their

conditions of confinement. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005). A prisoner must

allege that his conditions of confinement amount to punishment. Bell v. Wolfish, 441 U.S. 520,

538 (1979). Unconstitutional punishment under the Eighth Amendment 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 v. Seiter, 501 U.S. 294, 298 (1991); Bell, 441 U.S. at 538-39, 539

n.20). In general, a prisoner must assert that prison officials acted with deliberate indifference,

meaning that they consciously disregarded a serious risk to the detainee’s health or safety. See

Wilson, 501 U.S. at 298-99; 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))); cf. Edwards v. Northampton Cnty., 663 F. App’x 132, 135 (3d Cir. 2016)

(per curiam) (“[W]e agree with the District Court and find no reason to apply a different standard

here as we have applied the ‘deliberate indifference’ standard both in cases involving prisoners

and pretrial detainees.” (internal citations omitted)).

To establish an Eighth Amendment violation based on the conditions of confinement, a

prisoner must establish that prison officials’ acts or omissions denied him “the minimal civilized

measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Betts v. New Castle

Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (stating that the Eighth Amendment’s

prohibition of cruel and unusual punishment requires that prison officials provide “humane

conditions of confinement.”). Such necessities include food, clothing, shelter, medical care and

reasonable safety. Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000).

“However, where conditions are not ‘cruel and unusual’ but merely ‘restrictive and even harsh,’

they do not violate the Eighth Amendment but rather ‘are part of the penalty that criminal offenders

pay for their offenses against society.’” Barndt v. Wenerowicz, 698 F. App’x 673, 677 (3d Cir.

2017) (per curiam) (quoting Rhodes, 452 U.S. at 347).

A prisoner must also establish that the defendants acted with deliberate indifference.

Farmer, 511 U.S. at 835. A claim based on mere negligence is insufficient to allege a plausible

Eighth Amendment violation. See Whitley v. Albers, 475 U.S. 312, 319 (1986) (“It is obduracy

and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with

establishing conditions of confinement, supplying medical needs, or restoring official control over

a tumultuous cellblock.”).

Johnson alleges that on approximately 20 occasions over an 18-month period, Defendants

Cotton-Williams and Reasons did not provide his approved restricted diet. (See Compl. at 4-5

(four days without diet in November 2021); id. at 6 (six days without diet in January 2022); id at

7 (12 days without diet in June 2023)). He alleges that both Cotton-Williams and Reason were

aware that he required a restricted diet: Cotton-Williams, because she received calls from COs

requesting the restricted meal on Johnson’s behalf in November 2021; Reason, because he was

provided with the diet at the latest on June 9, 2023. (Id. at 4, 8.) Johnson also alleges that he had

not encountered any problems receiving his restricted meals beginning when he arrived at SCI

Chester in March 2019 and was approved for the diet, until November 2021, suggesting that the

culinary staff were aware of his needs in this regard for at least two years before Johnson

encountered problems. (Id. at 4.) Johnson asserts that Cotton-Williams and Reasons were

deliberately indifferent to his serious needs when they did not provide his restricted diet. (Id. at

23-24.)

The occasional deprivation of meals does not generally rise to the level of a constitutional

violation. See Davis v. Miron, 502 F. App’x 569, 570 (6th Cir. 2012) (per curiam) (denial of seven

meals over six days between 2008 and 2009 did not rise to the level of an Eighth Amendment

violation); Zanders v. Ferko, 439 F. App’x 158, 160 (3d Cir. 2011) (per curiam) (concluding that

“the alleged deprivation of three meals over two days [to a diabetic inmate] fails to rise to the level

of constitutional violation”); Lindsey v. O’Connor, 327 F. App’x 319, 321 (3d Cir. 2009) (per

curiam) (“The purported deprivation of a single meal is not of such magnitude as to rise to the

level of a constitutional violation”). However, where the deprivation is more serious, it can give

rise to a plausible claim. See, e.g., Foster v. Runnels, 554 F.3d 807, 812-13 (9th Cir.2009)

(reversing summary judgment awarded to prison officials and finding that denial of 16 meals over

23 successive days was a sufficiently serious deprivation to state Eighth Amendment claim);see

also Talbert v. Dep’t. of Corr., 2023 WL 4873643, at *16-17 (E.D. Pa. July 31, 2023) (inmate

stated plausible claim based on denial of dinner where inmate alleged resulting “starvation,

dehydration, fatigue, and malnourishment” (citing Reico v. Moran, 633 F. App’x. 76, 78 (3d Cir.

2015) (single instance of deprivation will not suffice))); Milton v. Clinton Cnty. Corr. Fac., 2022

WL 2823562, at *6 (M.D. Pa. July 19, 2022) (denying motion to dismiss pretrial detainee’s

amended complaint where plaintiff alleged food service department was aware of his dietary

restrictions yet served him inappropriate or insufficient meals on 32 occasions, causing him to go

hungry or rely on commissary food, as there was no penological reason for the deprivation).

Johnson describes two periods during which he did not receive his restricted diet for

between four and six days. (Compl. at 4-5, 6). These incidents likely would not rise to the level

of a constitutional violation. However, he also describes an incident during which he did not

receive his restricted diet for 12 consecutive days, despite an alleged reminder to the culinary

department during this period that he was entitled to receive his restricted diet. (Compl. at 7-8.)

It is also material that the meal in question was prescribed for therapeutic reasons. See, e.g.,

Kokinda v. Pennsylvania Dep’t. of Corr., 2016 WL 5122033 at *7 (W.D. Pa. Sept. 6, 2016) (soy-

intolerant inmate denied therapeutic diet stated Eighth Amendment claim at screening stage (citing

Jackson v. Gordon, 145 F. App’x 774, 776 (3d Cir. 2005) (per curiam) (inmate stated Eighth

Amendment claim where he alleged prison officials were aware he was lactose intolerant and

allergic to eggs but denied him a therapeutic diet))). Johnson also alleges, if in somewhat

conclusory fashion, that Cotton-Williams and Reasons were aware that he was prescribed a

restricted diet and ignored the consequences of withholding it, thereby acting with deliberate

indifference. (Compl. at 23-24.) This claim will thus be served for a responsive pleading.

b. Contaminated Food

Johnson’s claims based on three instances on which he was served contaminated food are

insufficient to satisfy the objective component of an Eighth Amendment claim. “[I]nmates must

be served ‘nutritionally adequate food that is prepared and served under conditions which do not

present an immediate danger’ to their health and well-being.” Duran v. Merline, 923 F. Supp. 2d

702, 719-20 (D.N.J. 2013) (quoting Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)).

Objectively, “[w]hether the deprivation of food falls below this [constitutional] threshold depends

on the amount and duration of the deprivation.” Id. at 720 (quoting Berry v. Brady, 192 F.3d 504,

507 (5th Cir. 1999)).

“[I]solated instances of contaminated or spoiled food, while certainly unpleasant, are not

unconstitutional.” Duran, 923 F. Supp.2d at 720 (“Being served cold meals . . . is not ‘punishment’

under Bell. So long as the food is nutritionally adequate, the mere fact that it is unvaried or cold

does not give rise to a constitutional violation . . . .” (citing Nickles v. Taylor, 2010 WL 1949447,

at *5 (D.N.J. May 14, 2010) (“A single or occasional incident involving spoiled food is insufficient

to show that Plaintiff has been denied life’s necessities.”))). Additionally, food tampering has been

found not to state a claim where no physical injury has been alleged. See Rieco, 633 F. App’x at

78 (no Eighth Amendment claim stated where inmate did not allege that he ate the contaminated

food and suffered injury as a result); DeJesus v. Carey, 2016 WL 6134540, at *3 (M.D. Pa. Oct

20, 2016) (citing Rieco and finding no claim stated where plaintiff did not allege he suffered a

physical injury where guard allegedly spit in his meal).

Johnson alleges that on three occasions over an 18-month period, he was served

contaminated food. He alleges that on each occasion, he discovered the contaminant before eating

the food and thus did not ingest it. He alleges that he sometimes went hungry and sometimes relied

on commissary food when he felt he could not eat his restricted meals for fear of contamination,

and that he suffered stress as a result of being served contaminated food (Compl. at 23-24), but he

does not allege that he suffered any physical injury from ingesting contaminated food.

Accordingly, he has not stated a plausible claim and this claim against Reason and Cotton-

Williams will be dismissed. Johnson will be granted leave to amend this claim.

2. First Amendment Retaliation Claims

Johnson alleges that he was served contaminated food after he requested that COs call the

kitchen for his restricted diet when he did not receive it for four days in November 2021. (Compl.

at 5.) He alleges that he was again served contaminated food a week after filing a grievance based

on the culinary staff’s failure over 12 days in June 2023 to provide his restricted diet. (Id. at 9.)

He alleges that he was again served contaminated food in August 2023, around the time that he

received a response to his appeal of a grievance, which indicated that culinary staff had been

contacted about his grievance and reminded that he was entitled to a restricted diet. (Id. at 10.)

Johnson asserts that he was served contaminated food in retaliation for complaining about his

missing meals and for filing grievances related to missing meals. For the following reasons, this

claim will be served for a responsive pleading.

Although a prisoner has no constitutional right to a grievance process, see Gerholt, 858 F.

App’x at 34, a prisoner can state a claim based on retaliation for filing a grievance, see Robinson

v. Taylor, 204 F. App’x 155, 157 (3d Cir. 2006) (holding that a prisoner’s filing of a grievance is

constitutionally protected conduct). In order to state a plausible First Amendment retaliation

claim, a prisoner must allege that: (1) he engaged in constitutionally protected conduct; (2) he

suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights; and (3) the constitutionally protected conduct was “a substantial or

motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001);

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Coit v. Garman, 812 F. App’x 83, 86 (3d Cir.

2020) (per curiam). “An adverse consequence ‘need not be great in order to be actionable[;]’

rather, it need only be ‘more than de minimis.’” Watson v. Rozum, 834 F.3d 417, 423 (3d Cir.

2016) (quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)) (alterations in original). “[B]eing

placed in lockdown, being moved to restricted housing, and being issued misconduct charges are

more than ‘de minimis’ adverse actions.” Palmore v. Hornberger, 813 F. App’x 68, 70 (3d Cir.

2020) (per curiam) (quoting McKee, 436 F.3d at 170); see also Mitchell, 318 F.3d at 530-31 (“[The

plaintiff’s] allegation that he was falsely charged with misconduct in retaliation for filing

complaints against [an officer] implicates conduct protected by the First Amendment.”). “[A]

correctional officer denying food to an incarcerated individual is sufficient to support the ‘adverse

action’ of a retaliation claim.” Talbert, 2023 WL 4873643, at *8 (citing Newmones v. Ransom,

2022 WL 4536296, at *5 (W.D. Pa. Sept. 28, 2022)). The timing of the allegedly retaliatory

behavior relative to the constitutionally protected conduct may establish a causal link between the

two for purposes of establishing motivation. See Watson, 834 F.3d at 422.

Johnson asserts that the first instance of contaminated food occurred in retaliation for his

complaining about missing restricted meals, and that the subsequent two instances were prompted

by his June 2023 grievance related to 12 missing restricted meals. These allegations plausibly

satisfy the first two elements of the claim. The third element is less clear, because although

Johnson’s food was contaminated, the source of the contamination is unclear, and Johnson only

alleges in conclusory fashion that Cotton-Williams and Reasons were responsible. “Where a

causal link cannot be shown with direct evidence [plaintiff] may try to satisfy his burden by

showing ‘(1) an unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing that suggests a

causal link.’” Talbert, 2023 WL 4873643, at *6-7 (quoting McKinney v. Ryan, 2022 WL 1308368,

at *5 (D.N.J. May 2, 2022) (further citations omitted)). Johnson has alleged both temporal

proximity between his protected conduct and alleged retaliatory conduct, and an ongoing

antagonistic pattern that includes missed meals and contaminated food. However, he has not

included any non-conclusory allegations supporting his clam that Reasons and Cotton-Williams

were the ones responsible for contaminating his food. Accordingly, this claim is not plausible and

will be dismissed. Johnson will be granted leave to amend this claim.

D. Rehabilitation Act Claims

Johnson references 28 U.S.C. § 794(b) in the introduction to his Complaint (Compl. at 1),

and the Court understands him to be asserting a claim under the Rehabilitation Act based on several

instances of the SCI Chester culinary staff’s (1) failing to provide Johnson with his restricted diet,

and (2) serving him contaminated food. “[T]he [Rehabilitation Act] require[s] public entities,

including state prisons, to provide, in all of their programs, services, and activities, a reasonable

accommodation to individuals with disabilities.” Furgess v. Pennsylvania Dep’t of Corr., 933

F.3d 285, 287 (3d Cir. 2019). The proper defendant under a Rehabilitation Act claim is the public

entity receiving federal assistance—here, the DOC. A.W. v. Jersey City Pub. Sch., 486 F.3d 791,

804 (3d Cir. 2007) (stating that “suits may be brought pursuant to Section 504 against recipients

of federal financial assistance, but not against individuals”). Therefore, as an initial matter, to the

extent Johnson seeks to assert any individual capacity Rehabilitation Act claims against SCI

Chester employees Clark, Cotton-Williams, Reasons, Miller, and Davis, or against the Secretary

of the DOC Harry Laurel Harry, these claims must be dismissed with prejudice, because these

Defendants are not public entities. See A.W., 486 F.3d at 804.

To state a plausible claim under the Rehabilitation Act against the DOC, Johnson “must

allege that he is a qualified individual with a disability, who was precluded from participating in a

program, service, or activity, or otherwise was subject to discrimination, by reason of his

disability.” 11 Furgess, 933 F.3d at 288-89. To allege that he is a “qualified individual with a

disability,” Johnson must allege that he has a “disability,” which is defined as “a physical or mental

impairment that substantially limits one or more major life activities of such individual. . . .” 42

U.S.C. § 12102(1)(A).12 “[M]ajor life activities include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id.

at § 12101(2)(A). With the passage of the Americans with Disabilities Act Amendments Act,

Congress declared that “[t]he definition of disability shall be construed in favor of broad coverage

11 Section 504 of the RA provides:

No otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal

financial assistance . . . .

29 U.S.C. § 794(a).

12 Due to the “parallel definitions of disability” between the Americans with Disabilities Act,

42 U.S.C. § 12101, et seq., and the Rehabilitation Act, Courts use them interchangeably. See e.g.,

Marshall v. Sisters of Holy Fam. of Nazareth, 399 F. Supp. 2d 597, 607 (E.D. Pa. 2005) (quoting

McDonald v. Com. of Pa., Dep’t of Pub. Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir. 1995)).

of individuals under this Act, to the maximum extent permitted by the terms of this Act.” Pub. L.

No. 110–325, §§ 2(b)(1)-(6), 3(2)(a), § 4(a), 122 Stat. 3553, 3555. Additionally, that Act requires

a “less searching analysis” of whether a plaintiff is “substantially limited.” Kravits v. Shinseki,

2012 WL 604169, at *7 (W.D. Pa. Feb. 24, 2012).

As pled, Johnson’s Rehabilitation Act claim is not plausible. First, Johnson does not allege

that he is a qualified individual with a disability. While Johnson alleges that he suffers from

GERD, for which he has been prescribed a restricted diet, (see Compl. at 4), the specific nature of

any related disability is unclear, as Johnson does not include factual allegations in his Complaint

describing any such disability or its limitations on his major life activities. More significantly,

however, even if Johnson was deemed disabled for purposes of his Rehabilitation Act claim, he

does not allege that he was discriminated against because of a disability or denied accommodations

for a disability with respect to any programs, services, or activities at SCI Chester. Rather, to the

extent that allegedly failing to provide Johnson with his restricted diet or serving him contaminated

food can be construed as a denial of an accommodation or an exclusion from a service or program,

Johnson clearly alleges that the motive for this conduct was retaliation for his complaints about

the food service at SCI Chester, not disability discrimination. As a result, his claim is not plausible

as pled.

Johnson’s Rehabilitation Act claims against the named individual Defendants will be

dismissed with prejudice. Johnson will be granted leave to amend this claim.

E. State Law Claims

Johnson asserts state law claims for negligence, recklessness,13 and intentional infliction

of emotional distress. (Compl. at 2, 24.) However, the doctrine of sovereign immunity bars claims

13 Recklessness is a state of mind, not an independent cause of action. See Monroe v. CBH20,

LP, 286 A.3d 785, 799 (Pa. Super. Ct. 2022) (citing Archibald v. Kemble, 971 A.2d 513, 519 (Pa.

for damages against the Commonwealth and its officials and employees acting within the scope of

their duties. 1 Pa. Stat. and Const. Stat. § 2310. There are ten instances in which sovereign

immunity has been waived by statute. These are negligent acts pertaining to: (1) vehicle liability;

(2) medical professional liability; (3) care, custody or control of personal property;

(4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous

conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard

activities; (9) toxoids and vaccines; and (10) certain sexual abuse offenses. 42 Pa. Stat and Const.

Stat. § 8522(b)(1)-(10). These exceptions must be “strictly construed and narrowly interpreted.”

Brown v. Blaine, 833 A.2d 1166, 1173 (Pa. Commw. Ct. 2003). “Commonwealth employee[s]

[are] protected by sovereign immunity from the imposition of liability for intentional tort claims.”

La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct. 1992); see also Morris v.

Pennsylvania Dept. of Corrections, 2023 WL 2575081, at *8–9 (W.D. Pa. Jan. 5, 2023)

(dismissing inmate’s state law negligence and intentional infliction of emotional distress claims

on statutory screening for failure to state a claim), report and recommendation adopted, 2023 WL

2574107 (W.D. Pa. Mar. 20, 2023).

There is nothing in Johnson’s Complaint to suggest that the Defendants’ alleged conduct

was performed outside the scope of their duties as employees of the Commonwealth. To the

contrary, it is apparent from the factual allegations in the Complaint that Defendants were acting

within the scope of their employment as prison officials when they allegedly committed the acts

of which Johnson complains. There also is nothing in the Complaint that would support the

conclusion that Plaintiff's state tort law claims fall within the above ten exceptions to sovereign

immunity.

Super. Ct. 2009) (recklessness claim was subsumed within the negligence clam included in the

complaint)).

Moreover, Johnson’s claims are wholly undeveloped and conclusory. To state a claim of

negligence under Pennsylvania law, a plaintiff must allege: “(1) a duty or obligation recognized

by law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to

the standard required; (3) a causal connection between the conduct and the resulting injury; and

(4) actual loss or damage resulting to the interests of another.” Vasquez v. Wingard, 847 F. App’x

108, 111 (3d Cir. 2021) (quoting Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1366 (3d Cir.

1993)). The elements of a claim for intentional infliction of emotional distress under Pennsylvania

law are: “(1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or

reckless; (3) it must cause emotional distress; and (4) the distress must be severe.” Madreperla v.

Williard Co., 606 F. Supp. 874, 879-80 (E.D. Pa. 1985) (citing Chuy v. Philadelphia Eagles

Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979)). “Extreme and outrageous conduct constitutes

behavior ‘beyond all possible bounds of decency,’ ‘atrocious,’ and ‘utterly intolerable in a civilized

community.” Armstrong v. Gretsky, 2023 WL 2903977, at *9 (E.D. Pa. Apr. 11, 2023) (quoting

Smith v. RB Distribution, Inc., 515 F. Supp. 3d 311, 315 (E.D. Pa. 2021) (further citations

omitted)). “Pennsylvania courts also require a plaintiff asserting a claim for intentional infliction

of emotional distress to provide evidence of a physical injury caused by the defendant’s conduct.”

Armstrong, 2023 WL 2903977, at *9 (quoting Rosembert v. Borough of E. Lansdowne, 14 F. Supp.

3d 631, 646 (E.D. Pa. 2014)).

Other than referencing these torts, Johnson does not flesh out his claims. In support of

these claims, Johnson asserts only that “[t]he defendants had a duty to perform and failed to

perform it, thereby causing plaintiffs [sic] injury.” (Compl. at 24.) This does not suffice to state

plausible claims, and these claims will be dismissed. Johnson will be granted leave to amend these

claims.

IV. CONCLUSION

For the reasons stated, the Court will sever, on the one hand, Johnson’s claims against the

DOC and SCI Chester employees based on allegations related to Johnson’s restricted GERD diet

from, on the other hand, his claims against SCI Camp Hill employees based on the alleged

confiscation of Johnson’s legal papers. The SCI Camp Hill claims will be transferred to the United

States District Court for the Middle District of Pennsylvania. Upon screening the SCI Chester

claims, the following will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii):

claims for money damages based on the Pennsylvania Constitution; claims based on the outcome

of Johnson’s grievances; Rehabilitation Act claims asserted against the individual Defendants; and

Johnson’s official capacity claims and claims against the DOC seeking money damages. The Court

will dismiss without prejudice Johnson’s conditions of confinement claims based on being served

contaminated food, his retaliation claims, any supervisory liability claims he seeks to pursue

against Defendants Clark and Miller, his claims against Secretary Harry, and his Rehabilitation

Act claim against the DOC. The Court is prepared to serve Johnson’s conditions of confinement

claim based on non-delivery of his restricted diet against Defendants Cotton-Williams and

Reasons. Johnson will be afforded the option of proceeding with those claims only or filing an

amended complaint. Johnson’s Motion to Move Forward will be denied as moot. An appropriate

order follows, which shall be docketed separately.