# Barney v. Wetzel

> District Court, M.D. Pennsylvania · March 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10409866

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409866

## How later opinions describe it (automated extraction)

- finding that evidence of a smoking policy, citations for violations of the policy and acknowledging receipt and consideration of Slaughter’s complaints sufficient to meet Helling two-part inquiry
- holding that officials’ handling of prison grievance procedures does not equate to personal liability in a civil rights claim
- holding that a prison official cannot be deliberately indifferent to a serious medical need if there is insufficient documentation to put the official on notice of that need

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

JEREMY HEATH BARNEY, :

Plaintiff : CIVIL ACTION NO. 3:17-1779

v. : (JUDGE MANNION)

PA DEP’T OF CORR, et al., :

Defendants :

MEMORANDUM
I. BACKGROUND
Plaintiff, Jeremy Heath Barney, an inmate formerly confined in the
Rockview State Correctional Institution (“SCI-Rockview”), Bellefonte,
Pennsylvania, filed the above caption civil rights action pursuant to 42 U.S.C.
§1983.1 (Doc. 1). The named Defendants are the Pennsylvania Department
of Corrections (“DOC”); John Wetzel, Secretary; Mrs. Kerri Moore, DOC
Grievance Review Officer; and the following SCI-Rockview employees:
Superintendent M.C. Garman; Unit Manager Mr. Knapp; Unit Manager C.E.
Miller; Sergeant Watson, Sergeant Rogers; Sergeant Hazel; Sergeant Glass;
and Corrections Officer Cummins. Id.

1 Plaintiff is currently housed at the Forest State Correctional Institution
(“SCI-Forest”), Marienville, Pennsylvania.
By Order dated February 8, 2018, Defendant, the Pennsylvania
Department of Corrections, was dismissed as a Defendant, and the action

was served on the remaining named Defendants. (Doc. 11). On April 18,
2018, Defendants filed an answer (Doc. 16) and on January 24, 2019,
Defendants filed a motion for judgment on the pleadings. (Doc. 22). On

March 18, 2019, Plaintiff filed a motion for leave to file an amended
complaint. (Doc. 28). By Order dated March 27, 2019, Plaintiff’s motion for
leave to file an amended complaint was granted and Defendants’ motion for
judgment on the pleadings was dismissed as moot. (Doc. 30).

On April 15, 2019, Plaintiff filed his amended complaint. (Doc. 33).
Plaintiff names all the same Defendants, except for Defendants, Sergeant
Hazel and Grievance Review Officer Moor. Id. Thus, these Defendants were

terminated as parties to the above captioned action on April 15, 2019.
Plaintiff’s amended complaint and supporting exhibits allege that
Defendants are all aware that “inmates and officers are still smoking on the
blocks or just outside the door, when there is a non-smoking sign but they

ignore it,” thereby “forcing [Plaintiff] to continue to breath in toxic smoke” that
“endangers [his] health.” (Doc. 33, amended complaint). Plaintiff claims that
Defendants are “forcing [him] to breath in toxic fumes from secondhand

smoke”, in violation of his “Eighth Amendment Right against cruel and
unusual punishment” and that Defendants are “negligent” in continuing to
“allow and ignore smoking on the blocks.” Id.

On May 10, 2017, Plaintiff filed Grievance No. 677414 concerning the
smoke, which was responded to by Acting Major Lechner as follows:
I have reviewed your grievance #677414 and began an
investigation into your complaint. You report in your grievance
you are writing up Unit Manager Knapp for retaliation. You state
you spoke with Mr. Knapp and your Counselor Mr. Pownall about
a security issue which you later identify as staff overlooking
inmates smoking on the housing unit. You state you had written
to the Governor and Secretary Wetzel concerning smoking on
the block and in your cell. You claim SGT Glass told other
inmates that you made the complaint about smoking on the unit
and that they are mad at you and you were told to watch your
back. Your further state that you requested to be moved off of
CA unit and moved to CB unit and be given a single cell away
from smoking. You state you were denied this by Mr. Knapp and
that you informed him you would be writing Mr. Rowe at central
office. You state Mr. Knapp claimed you were trying to blackmail
him and that he stated he was going to write you up. You state
this is retaliation and a refusal to do his job. You seek to have
Mr. Knapp and SGT Glass removed from their positions as your
relief.

I have reviewed your grievance and discussed your allegations
with Mr. Knapp and SGT Glass. SGT Glass denies that he told
other inmates that you were the person solely responsible for
stricter enforcement of non-smoking rules in the housing unit.
Staff are cognizant of the non-smoking rule and do a good job at
enforcing the rule as many staff do not want to be exposed to
secondhand smoke as well. Mr. Knapp was interviewed and
explained that you came to him and informed him of the above
information concerning you being warned by other inmates to
watch you back. He asked you if you wanted to take protective
custody and you declined stating you wanted a Z code and
moved to another housing unit or you were going to write the
Governor explaining that ROC staff placed your well-being at
risk.

In conclusion, I have found no evidence staff are not enforcing
the no smoking rules on the unit. In regard to your well-being
placed at risk, you were offered protective custody and declined.
Mr. Knapp did not feel comfortable placing you back on CA unit
due to your claim that inmates told you to watch your back, so
you were moved to a different housing unit. Your requested relief
to have Mr. Knapp and SGT Glass removed from their positions
is denied. This grievance has no merit and is denied at this time.

(Doc. 1 at 27, Initial Review Response).
On May 22, 2017, Plaintiff filed an appeal to Facility Manager, which
was denied as follows:
I have reviewed the initial grievance, the grievance officer
rejection, and the subsequent appeal of your rejection relating to
problems with staff.

The response provided to you by Acting Major Lechner is
detailed and shows that Major Leckner spent a considerable
amount of time reviewing this complaint. It is obvious that you
were moved to A Block after you refused an offer of protective
custody. Upon further review, I am told you consistently complain
about other inmates on the block and that the move occurred to
separate you from C-Block. The response provided to you is
accurate and I concur with Major Lechner’s assessment.

Your appeal is denied.

(Doc. 1 at 25, Facility Manager’s Appeal Response).
Plaintiff appealed the denial to Final Review, which was denied on July
13, 2017, as follows:
You claim that Mr. Knapp is retaliating against you. You state that
Mr. Knapp told Sgt. Glass that you had written to the Governor
and Secretary Wetzel about the smoking on the block and in your
cell. You allege that Sgt. Glass told other inmates about what you
did and now there are inmates who are mad at you and have told
you to watch your back. You say that you requested to be moved
from CA to CB and in a single cell away from the smoking. You
claim that Mr. Knapp refused your request even though he
created a security issue by stating your name. You say that you
told Mr. Knapp that you were writing to the Central Office and he
now claims that you are trying to blackmail him, so he’s going to
write you up. You request to have Mr. Knapp and Sgt. Glass
removed from their positions.

A review of the record found that Mr. Knapp and Sgt. Glass were
interviewed about your allegations. Sgt. Glass denied telling
other inmates that you complained about smoking on the block
and in your cell. Mr. Knapp stated that he asked if you wanted to
be placed in protective custody and you declined his offer. You
were moved to a different housing unit because of your claims
that you were told to watch your back. There is no evidence of
retaliation by staff. Your grievance and requested relief are
denied.

(Doc. 1 at 23, Final Appeal Decision).
In addition to filing a grievance concerning Plaintiff’s alleged exposure
to secondhand smoke, Plaintiff also wrote to Governor’s Office and to
Secretary Wetzel, who responded with the following:
This serves as response to your two correspondences
addressed to the Governor’s Office and Secretary Wetzel
regarding staff not enforcing the smoking law. Additionally, you
indicated fearing retaliation for filing a grievance. Your
correspondence has been referred to me for review and
response.
Mr. Barney, per DOC policy 1.1.7 Clean Indoor Air Act
Procedures Manual smoking is prohibited in departmental
buildings which is also reinforced in the page 35 of the Inmate
Handbook 2017 Edition. Smoking, with exception of tobacco free
facilities, is only permitted at designated outdoor locations. If you
are of individuals violating this policy, you are encouraged to
inform your facility staff so they can address the violation. By
copy of this response SCI-Rockview’s Administration and your
unit team are being made aware of your concerns. Lastly, the DC
ADM 804 Inmate Grievance Policy specifically prohibits
retaliation against inmates that utilize the grievance system.

I trust that your concerns have been adequately addressed.

(Doc. 1 at 30, May 1, 2017 Correspondence).
On June 28, 2017, Plaintiff filed Grievance No. 684561, claiming Unit
Manager and Sergeant Hazel retaliated against him by suspending his job.
(Doc. 1 at 42, Official Inmate Grievance).
By response dated July 13, 2017, Plaintiff’s grievance was denied as
follows:
You are grieving UM Miller and Sgt. Hazel for retaliation by
suspending your job. You allege you did not fail to report to work.
You claim Sgt. Hazel said you were fired on 6-7-17, so how could
you fail to report to work and then be job suspended two weeks
later. You also ask for $1000.00 in retaliatory compensation due
to violations of DOC policy and US Constitutional laws. You aver
Sgt. Hazel and UM Miller should be removed from their positions
of authority.

Inmate Bailey, upon investigation of records, I found you were
employed on C Unit as a Blockworker before you went to the
Restrict Housing Unit on May 12, 2017. You were released to A
Unit and added to the Blockworker roster on 5-20-17. Although
you went to TBI, you were returned again to A Unit as a
Blockworker on 6-8-17. There is a daily job change report that
would reflect these changes and updates. Upon speaking to UM
Miller and Sgt. Hazel, I was informed that you were informed the
only job at the time was cleaning the stairs and you said you
could not perform those tasks because you could not walk up
and down the stairs. (Please note that your medical restriction
clearly says LOWER 3 TIERS recommended). Sgt. Hazel then
said if you wouldn’t take the job you couldn’t be a Blockworker
and you replied that you did not care. Sgt. Hazel may have told
you that you were fired on 6-7-17, however it took time for the
process of job suspension to catch up with you. CEVC Miller
listed you as job suspended effective 6-21-17. No policies or laws
were violated.

Your grievance is denied based on these facts. Staff reported
that you did not show up to work and although your medical
status would have permitted you to work, you chose not to work.
Your job will not be reinstated, you will not be moved to C Unit
and you will not receive monetary compensation. UM Miller and
Sgt. Hazel will retain their positions. I recommend you find a
more positive and amicable way to deal with staff and your issues
on the unit.

(Doc. 1 at 41, Initial Review Response).
Plaintiff filed an appeal of the grievance denial to the Facility Manager,
who denied Plaintiff’s appeal on August 1, 2017, finding the following:
I have reviewed the initial grievance, the grievance officer
response, and the subsequent appeal of your issues relating to
your job suspension from your blockworker position.

Major Haldeman is correct in her review of your complaint.
According to DC ADM 816, you were suspended from your job
and notice was given in a timely manner. This refusal could have
and should have resulted in a DC 141 misconduct infraction.
Your appeal has no basis and is denied.

(Doc. 1 at 39, Facility Manager’s Appeal Response).
Plaintiff’s appeal to Final Review (Doc. 1 at 38) was denied on August
17, 2017 as follows:

You claim that on 6/7/17 when you were released from the
infirmary back to A block, Sgt. Wagner put you into cell 3026.
You say that you approached Mr. Miller and Sgt. Hazel and
informed them that you were to be ground level and bottom bunk
status, but they refused to confirm this with medical. You claim
that when you asked for a grievance, Sgt. Hazel said that you
were fired from your block worker job. You say that he never
reassigned you to another job. You request to be moved from A
block to C block due to retaliation. You request to be reinstated
to your block worker job and to be paid for the money that you
were denied. You request $1,000.00 for the retaliation, policy
violation, and constitutional amendment rights violation. You also
request that Mr. Miller and Sgt. Hazel are removed from their
jobs.

A review of the record found that the Grievance Officer provided
you with a detailed response to your allegations. You refused to
do your assigned job; therefore, you were removed from the job.
The record shows that currently you are a block worker on C unit.
There is no evidence of retaliation. You fail to provide any
evidence to substantiate your claims. Your grievance and
requested relief are denied.

(Doc. 1 at 37, Final Appeal Decision).

On October 2, 2017, Plaintiff filed the instant action in which he seeks
compensatory and punitive damages for Defendants’ retaliation and
“negligent action” of “forcing [Plaintiff] to breath in toxic fumes from
secondhand smoke that threatens [Plaintiff’s] life and well-being.” (Doc. 33
at 7). He also seeks Defendants to “pay all future medical expenses for
[Plaintiff], where secondhand smoke has and can cause cancer and any
other medical illnesses associated with secondhand smoke.” Id.

Presently before the Court is Defendant’s motion to dismiss Plaintiff’s
amended complaint. (Doc. 35). The motion is fully briefed and, for the
reasons that follow, the Court will grant Defendant’s motion to dismiss.

II. MOTION TO DISMISS
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to
state a claim upon which relief can be granted.” Under Rule 12(b)(6), we

must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint
need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.
8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft
v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels
and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must
include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, we thus “conduct a two-part
analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at
210-11. Second, we “determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

III. DISCUSSION
A. Personal Involvement

In a 1983 civil rights action, the Plaintiff must prove the following two
essential elements: (1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct complained

of deprived the Plaintiff of rights, privileges or immunities secured by the law
or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527
(1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Further, Section

1983 is not a source of substantive rights. Rather, it is a means to redress
violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273,
284–85 (2002).

It is well established that personal liability under section 1983 cannot
be imposed upon a state official based on a theory of respondeat superior.
See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg
Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is

also well settled in the Third Circuit that personal involvement of defendants
in alleged constitutional deprivations is a requirement in a §1983 case and
that a complaint must allege such personal involvement. Id. Each named

defendant must be shown, through the complaint’s allegations, to have been
personally involved in the events or occurrences upon which Plaintiff’s claims
are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal
involvement in the alleged wrongs.... [P]ersonal involvement can
be shown through allegations of personal direction or of actual
knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made
with appropriate particularity. (Citations omitted).
A civil rights complaint must state time, place, and responsible
persons. Id. Courts have also held that an allegation seeking to impose

liability on a defendant based on supervisory status, without more, will not
subject the official to liability. See Rode, 845 F.2d at 1208.
Initially, we find that Plaintiff’s Eighth Amendment claims against

Defendants Wetzel, and Garman, should be dismissed because these
Defendants are not alleged to have sufficient personal involvement in the
alleged wrongdoing. As stated above, liability cannot be predicated in a
§1983 action solely on the operation of respondeat superior. Evancho v.

Fisher, 423 F.3d 347, 353 (3d. Cir. 2005). For the Plaintiff’s claim to proceed
successfully in the instant case, therefore, Plaintiff would have to establish
each Defendant acted with a culpable state of mind to subject Plaintiff to

cruel and unusual punishment, not merely that they knew he was being
exposed to ETS, i.e., negligence. See Caldwell v. Luzerne County
Corrections Facility Management Employees, 732 F.Supp.2d 458, 472 (M.D.
Pa. 2010). Also, each named defendant must be shown, through the

Amended Complaint’s allegations, to have been personally involved in the
events or occurrences upon which Plaintiff’s claims are based. We find that
there is no indication that Defendants Wetzel, and Garman, outside of their

supervisory role, ever had this required level of sufficient personal interaction
with the Plaintiff. Id.; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1998). Plaintiff’s own exhibits demonstrate this. While, there is arguably

notice by Plaintiff writing to Secretary Wetzel, there are no facts pled which
would conceivably be considered acquiescence, as required by the cases
cited above. The Secretary did all he is expected to do as the head of the

DOC, by referencing the policies in place to prevent smoking. By no means
did he signal agreement in illegal acts. This same analysis applies to
Superintendent Garman. Outside of his handling of Plaintiff’s grievances,
Garman’s involvement fails to meet the required level of sufficient personal

interaction with the Plaintiff. Id. at 1207. See also, Mitchell v. Dodrill, 696
F.Supp.2d 454, 469 (M.D. Pa. 2010) (holding that officials’ handling of prison
grievance procedures does not equate to personal liability in a civil rights

claim). Based upon an application of the above standards, Plaintiff has failed
to satisfy the personal involvement requirement standard of Rode with
respect to Defendants Wetzel and Garman, and they shall be dismissed.
B. Retaliation

The First Amendment offers protection for a wide variety of expressive
activities. See U.S. Const. amend I. These rights are lessened, but not
extinguished in the prison context, where legitimate penological interests

must be considered in assessing the constitutionality of official conduct. See
Turner v. Safley, 482 U.S. 78, 89 (1987). Retaliation for expressive activities
can infringe upon an individual’s rights under the First Amendment. See Allah

v. Seiverling, 229 F.3d 220, 224–25 (3d Cir. 2000). To prevail on a retaliation
claim under 42 U.S.C. §1983, plaintiff must demonstrate (1) that he was
engaged in protected activity; (2) that he suffered an “adverse action” by

government officials; and (3) that there is “a causal link between the exercise
of his constitutional rights and the adverse action taken against him.” Rauser
v. Horn, 241 F.3d 330 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
Examples of adverse actions that have, in certain cases, been found

to support a retaliation claim include filing false misconduct reports, Mitchell
v. Horn, 318 F.3d 523, 530 (3d Cir. 2003), transferring a prisoner to another
prison, Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001), and placing a

prisoner in administrative custody, Allah, 229 F.3d at 225.
The third essential element to a retaliation claim is that there be a
causal link between the exercise of a constitutional right and the adverse
action taken against the prisoner. Rauser, 241 F.3d at 333-34. To establish

this third, and crucial, component to a constitutional retaliation claim,
causation, Plaintiff must make an exacting showing. In this setting:
To establish the requisite causal connection a plaintiff usually
must prove either (1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory
action, or (2) a pattern of antagonism coupled with timing to
establish a causal link. See Krouse v. American Sterilizer Co.,
126 F.3d 494, 503-04 (3d Cir. 1997); Woodson v. Scott Paper
Co., 109 F.3d 913, 920-21 (3d Cir. 1997). In the absence of that
proof the plaintiff must show that from the “evidence gleaned
from the record as a whole” the trier of the fact should infer
causation. Farrell v. Planters Lifesavers Co., 206 F.3d271, 281
(3d Cir. 2000).

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Finally, if a plaintiff discharges his obligation to satisfy this three-part
prima facie test, the burden then shifts to the defendant to prove by a
preponderance of the evidence that he or she would have made the same
decision absent the protected conduct for reasons reasonably related to
penological interest. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002).
“This means that, once a prisoner demonstrates that his exercise of a
constitutional right was a substantial or motivating factor in the challenged
decision, the prison officials may still prevail by proving that they would have
made the same decision absent the protected conduct for reasons
reasonably related to a legitimate penological interest.” Rauser, 241 F.3d at
334.

Barney believes that Defendant Knapp transferred him to another unit

in retaliation for filing a grievance regarding smoking on his current unit.
(Doc. 33). Such allegation, however, is negated by Plaintiff’s own exhibit,
which demonstrates that Plaintiff requested to be transferred as a result of
the smoking on his unit. (See Doc. 1 at 27). Plaintiff was offered protective
custody but “declined, stating [he] wanted a Z code and moved to another

housing unit.” Id. Plaintiff was then “moved to another housing unit.” Id. Thus,
Plaintiff’s allegations fail, as his own exhibit shows that in response to his
grievance, he was accommodated by being moved into another cell on a

different unit.
Plaintiff’s next claim of retaliation is that “after [Plaintiff] filed a
grievance against Mr. Miller concerning the smoking problem, Mr. Miller
retaliated against [Plaintiff] by job suspending him and not having a meeting

between [Plaintiff] and Mr. Miller and his staff to resolve the issue.” (Doc. 33
at 5). Once again, Plaintiff’s allegations are belied by his own exhibits.
Plaintiff’s grievance and grievance appeals regarding his job reveal that

Plaintiff “refused to do [his] assigned job” and was therefore “removed from
the job.” (See Doc. 1 at 37-42). Additionally, Plaintiff’s grievance about
smoking on the block was filed on May 10, 2017. (Doc. 1 at 28). Plaintiff was
not suspended from his job until June 21, 2017. (Doc. 1 at 41). Thus, Plaintiff

fails to demonstrate the temporal proximity between the protected activity
and the alleged retaliatory act, as well as the timing to establish a causal link.
See Rauser, 241 F.3d at 333-34. Consequently, his retaliation claim fails.
Finally, with respect to Plaintiff’s claim that Defendants “threaten[ed] or
allow[ed] threats upon [his] well-being”, (Doc. 33 at 7), in order to

demonstrate an “adverse action,” which is an element of a successful
retaliation claim, a prisoner must show that “the action ‘was sufficient to deter
a person of ordinary firmness from exercising his [constitutional] rights.’ ”).

Rauser, 241 F.3d at 333. However, verbal threats cannot, as a matter of law,
constitute a retaliatory action given that verbal threats cannot as a matter of
law deter a prisoner of ordinary firmness from engaging in protected
activities. See Gaut v. Sunn, 810 F.2d 923 (9th Cir. 1987)(wherein the court

noted that “Gaut also alleged he was ‘threatened with bodily harm’ by the
defendants ‘to convince him to refrain from pursuing legal redress’ for the
beatings. This allegation fails to state a cause of action under section 1983....

The fact that the complaint alleges the threat to be for the purpose of denying
Gaut access to the courts does not compel a contrary result.”)). This Court
agrees that the verbal threat which Defendants allegedly made in retaliation
for Plaintiff’s filing of grievances simply is not sufficient to state a First

Amendment retaliation claim. See, e.g., Washington v. Webster, 883 F.2d
76 (Table), 1989 WL 91653, at *1 (6th Cir. 1989)(“The threat to do harm in
order to interfere with plaintiff’s constitutional rights does not in itself give rise

to a constitutional violation.”); Rustan v. Rasmussen, 208 F.3d 218 (Table),
2000 WL 227987, at *2 (8th Cir. 2000) (no First Amendment retaliation claim
where inmate alleged correctional officers harassed and verbally threatened

him in retaliation for his grievance and petition against one of the officers;
the court holding that the prisoner's claim of officers verbally threatening him
“cannot form the basis of a cognizable section 1983 claim”); Bartelli v. Lewis,

NO. CIV.A. 3:CV-04-0908, 2005 WL 2406048, *2 (M.D. Pa. Sept. 29,
2005)(“we determine that verbal threats do not constitute an ‘adverse action’
and, therefore, do not fulfill a requisite element of a retaliation claim”). Thus,
Plaintiff’s allegations regarding verbal threats are without merit.

C. Eighth Amendment Claim
Plaintiff invokes the Eighth Amendment’s proscription against the
imposition of cruel and unusual punishment. The Eighth Amendment

“requires that inmates be furnished with the basic human needs, one of
which is ‘reasonable safety’.” Helling v. McKinney, 509 U.S. 25, 33 (1993)
(quoting DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S.
189, 200 (1989)). “Liability based on exposure to ETS requires proof of (1)

exposure to unreasonably high levels of ETS contrary to contemporary
standards of decency; and (2) deliberate indifference by the authorities to
the exposure to ETS.” [Demetrius] Brown v. U.S. Justice Dep’t, 271 F. App’x

142, 144 (3d Cir. 2008) (citing Helling, 509 U.S. at 35). The Supreme Court
has observed that the adoption by a prison of an anti-smoking policy “will
bear heavily on the inquiry into deliberate indifference.” Helling, 509 U.S. at

36.
The United States Court of Appeals for the Third Circuit has explained
that ETS claims come in two varieties, present injury, and future injury. With

respect to future injury, Helling sets forth the following two-part inquiry for
ETS claims:
The Court explained that the first prong of the Helling test is an
objective one: “[The prisoner] must show that he himself is being
exposed to unreasonably high levels of ETS.” Id. at 35, 509 U.S.
25, 113 S.Ct. 2475, 125 L.Ed.2d 22. With respect to the objective
factor, the Court noted that beyond a scientific and statistical
inquiry into the seriousness of the potential harm and the
likelihood that such injury to health will actually be caused by
exposure to ETS, the Eighth Amendment requires “a court to
assess whether society considers the risk that the prisoner
complains of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a
risk.” Id. at 36, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22
(emphasis in original). The Court stated: “In other words, the
prisoner must show that the risk of which he complains is not one
that today’s society chooses to tolerate.” Id.

The second prong of the Helling test is a subjective one: whether
prison officials were deliberately indifferent to a serious risk of
harm. Id. at 36, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22.
The Supreme Court has held that “a prison official cannot be
found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Farmer v. Brennan, 511 U.S.
825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003). A present injury claim
based on exposure to ETS requires proof of: 1) a sufficiently serious medical
need related to ETS exposure; and 2) deliberate indifference by the prison
authorities to that need. Id. at 266 (citing Estelle v. Gamble, 429 U.S. 97, 104
(1976)).

Thus, both present and future injury claims require an objective
component, either that the prisoner be subjected to an unreasonably high
level of ETS or that the prisoner suffer from a sufficiently serious medical
need; and both require as a subjective component that the prison authorities

be deliberately indifferent. Defendants argue that Plaintiffs cannot satisfy
either prong. The Court agrees.
Initially, the Court notes that Plaintiff has failed to demonstrate that he

suffers from any type of medical need or illness related to ETS exposure.
Nor does Plaintiff demonstrate that he ever sought medical treatment due to
ETS exposure. Thus, Plaintiff fails to meet the objective element of either a
present or future injury claim, as he has failed to link any symptom to ETS

exposure. See Abhouran v. United States, 389 F. App’x 179, 183–84 (3d Cir.
2010) (prisoner presented no evidence that smoke came through ventilation
system); Goode v. Nash, 2007 WL 201007 (M.D. Pa. Jan.23, 2007) (despite
opportunity to develop a record, the plaintiff relied on only his only
speculations that ETS exposure resulted in his nasal discomfort, coughing

and other maladies), aff’d, 241 F. App’x 868 (3d Cir. 2007); [Abdul] Brown v.
Varner, 2013 WL 4591817, at *18–19 (M.D. Pa. Aug.28, 2013) (when
prisoner filed grievances of ETS but did not have any injuries and was

informed that the prison had a no-smoking policy that was enforced, his
claims failed); Keyes v. Chamberlin, 2011 WL 113445, at *5 (W.D. Pa.
Jan.13, 2011) (Lenihan, M.J.) (when prisoner claimed ETS exposure at SCI–
Graterford but prison proffered evidence of a no-smoking policy that was

enforced, his claims failed); Belland v. Matachiski, 2009 WL 1585811, at *5–
6 (M.D. Pa. June 3, 2009) (inmate with asthma failed to show that he was
injured by ETS or that he was exposed to it at a level that society is unwilling

to accept); Buchanan v. United States, 2007 WL 983312, at *8 (M.D. Pa. Mar
27, 2007) (no evidence other than prisoner's own speculation that ETS
exposure caused his eye irritation, nausea, headaches and breathing
problems); Meo v. Wall, 2003 WL 22358649, at *3–4 (D.R.I. Sep.11, 2003)

(plaintiffs failed to demonstrate that the ETS that they were exposed to
caused them to suffer “serious” current health problems where they had no
reported medical condition which could have been aggravated by ETS, but

rather shortness of breath, wheezing, tearing of eyes and pains in the chest).
Additionally, Plaintiff has failed to prove that prison officials were
deliberately indifferent to a serious risk of harm. Plaintiff acknowledges that

the DOC has a policy prohibiting smoking inside its buildings. (See Doc. 39).
Plaintiff was advised SCI-Rockview is a non-smoking facility, which
reprimands or disciplines inmates who smoke in their cell, when their identity

is disclosed. (See Doc. 1 at 30). Moreover, Plaintiff’s own exhibits
demonstrate that when Plaintiff did complain about being exposed to smoke,
he was moved. Thus, given the responsiveness displayed by prison officials
and their adherence to the DOC no-smoking policy, Plaintiff’s ETS claim fails.

See Slaughter v. Rogers, 408 Fed. Appx. 510 (3d Cir. 2010) (finding that
evidence of a smoking policy, citations for violations of the policy and
acknowledging receipt and consideration of Slaughter’s complaints sufficient

to meet Helling two-part inquiry); Panton v. Nash, 317 Fed. Appx. 257 (3d
Cir. 2009) (holding that a prison official cannot be deliberately indifferent to
a serious medical need if there is insufficient documentation to put the official
on notice of that need); Brown v. Varner, No. 3:11-cv-1258, 2013 WL

4591817, at *15 (M.D. Pa. Aug. 28, 2013) (finding Defendants entitled to
summary judgment in an ETS case for three reasons: First, Brown does not
identify any personally culpable defendants. Second, Brown does not

present proof of any present injury as a result of ETS exposure. Third, Brown
does not show deliberate indifference to his needs given the responsiveness
displayed by prison officials, and their adherence to the Department of

Corrections no-smoking policies).

IV. Preliminary Injunction

An injunction is an “extraordinary remedy” that is never awarded as of
right. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).
The United States Court of Appeals for the Third Circuit has delineated
four (4) factors that a district court must consider when ruling on a motion for

a preliminary injunction: (1) whether the movant has shown a reasonable
probability of success on the merits; (2) whether the movant will be
irreparably injured if the court denies the requested relief; (3) whether

granting the requested relief will result in even greater harm to the
nonmoving party; and (4) whether granting the relief will be in the public
interest. See Gerardi v. Pellulo, 16 F.3d 1363, 1373 (3d Cir. 1994); Hoxworth
v. Blinder, Robinson & Co., 903 F.2d 186, 1970–98 (3d Cir. 1990). These

same factors are used in considering a motion for temporary restraining
order. Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994). The moving
party has the burden of satisfying these factors. Adams v. Freedom Forge

Corp., 204 F.3d 475, 486 (3d Cir. 2000). While each factor need not be
established beyond a reasonable doubt, they must combine to show the
immediate necessity of injunctive relief. Stilp v. Contino, 629 F.Supp.2d 449,

457 (M.D. Pa. 2009) (citing Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d
Cir. 2002) ). In addition, “[a]s these elements suggest, there must be a
‘relationship between the injury claimed in the party’s motion and the conduct

asserted in the complaint’.” Ball v. Famiglio, 396 Fed. App’x 836, 837 (3d Cir.
2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ).
Moreover, the power of a court to issue injunctive relief is also limited
and circumscribed by the mootness doctrine. The mootness doctrine

recognizes a fundamental truth in litigation: “[i]f developments occur during
the course of adjudication that eliminate a plaintiff's personal stake in the
outcome of a suit or prevent a court from being able to grant the requested

relief, the case must be dismissed as moot.” Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 698–99 (3d Cir. 1996).
In the instant case, Barney seeks injunctive relief against the
Defendants, all employees of SCI-Rockview, “as they are informing inmates

that the Plaintiff in this matter is the reason why the DOC is going tobacco
free.” (Doc. 31). However, Barney is no longer confined at SCI–Rockview.
Subsequent to the filing of the above captioned action, Plaintiff was

transferred to SCI-Forest, where he is currently confined.
The Third Circuit Court of Appeals has observed that, when addressing
inmate requests for injunctive relief:

As a preliminary matter, we must determine whether the inmates’
claims are moot because “a federal court has neither the power
to render advisory opinions nor to decide questions that cannot
affect the rights of litigants in the case before them.” Preiser v.
Newkirk, 422 U.S. 395, 401 (1975) (quotations omitted); see
also, Abdul–Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993). An
inmate’s transfer from the facility complained of generally moots
the equitable and declaratory claims. Abdul–Akbar, 4 F.3d at 197
(former inmate’s claim that the prison library’s legal resources
were constitutionally inadequate was moot because plaintiff was
released five months before trial.)

Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). This Court has
previously held, in a case such as the present, where an inmate seeks
injunctive relief against his jailers but is no longer housed at the prison where
those injunctive claims arose, his transfer to another institution moots any
claims for injunctive or declaratory relief. Fortes v. Harding, 19 F.Supp.2d
323, 326 (M.D. Pa. 1998). For these reasons, Plaintiff’s pending motion for
a gag order and permanent injunctive relief must be denied as moot since
he is no longer confined at SCI–Rockview, and there is no indication that he
will be housed at that facility in the foreseeable future.
V. LEAVE TO AMEND
The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be inequitable
or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Here, it is clear from the facts alleged in the pro se amended complaint
that any attempt to file a second amend complaint against the named
Defendant would be futile. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004). Thus, the Court will dismiss the Plaintiff’s §1983 claims without leave

to amend to file a second amended complaint.

VI. CONCLUSION

For the reasons set forth above, the Court will grant Defendants’
motion to dismiss. Plaintiff’s motion for injunctive relief will be dismissed as
moot, as well as Plaintiff’s remaining outstanding motions.
A separate Order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

DATE: March 2, 2021
17-1779-01

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409866. Public record. Not legal advice.