Johnson v. Fieni

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DARYL JOHNSON, No. 4:23-CV-01315

Plaintiff, (Chief Judge Brann)

v.

J. FIENI, et al.,

Defendants.

MEMORANDUM OPINION

OCTOBER 24, 2023

Plaintiff Daryl Johnson is currently incarcerated at the State Correctional

Institution in Huntingdon, Pennsylvania (SCI Huntingdon). He filed the instant

pro se Section 19831 action claiming that officials at SCI Huntingdon violated his

constitutional rights, primarily with regard to COVID-19 vaccination. The Court

will dismiss many of Johnson’s claims pursuant to 28 U.S.C. § 1915A(b)(1) for

failure to state a claim upon which relief may be granted, but will allow him to

proceed on his retaliation claim.

I. BACKGROUND

Johnson alleges that, on August 4, 2021, a memorandum from SCI

Huntingdon superintendent John Rivello was issued to inmates regarding COVID-

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

19 vaccination.2 According to that memo, unvaccinated inmates would be moved

to a single housing unit on “CA” block but inmates who were vaccinated could

remain in their current housing assignment.3 Johnson alleges that the memo also

indicated that “the Moderna vaccine could be available by the end of the week.”4

That evening, Johnson and a group of other inmates were called to the front

of the housing block to either receive the COVID-19 vaccination or be moved to

the “CA housing unit” with the other unvaccinated inmates.5 Johnson avers that

the only vaccine available at this time was the Janssen COVID-19 vaccine, and he

had heard “via Fireside Chat” that the on-site vaccines expired on August 7, 2021.6

Johnson claims that, when his turn came, he told nurse John Doe #1 (who

was administering the injections) and Health Care Administrator Paula Price that

he did not want to take the Janssen vaccine but would instead take the Moderna

vaccine when it became available, as described in Rivello’s memo. Price allegedly

reviewed the memo and responded, “We’re not doing that. It’s either the [Janssen]

vaccine or C-block.”7 Johnson asserts that he expressed concerns about the

handling of the on-site vaccines and their approaching expiration date, but Price

told him, “Oh, they extended [the expiration date]. The CDC does it all the time.”8

2 Doc. 1 at 5.

3 Id.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id. Johnson appears to contend that this statement by Price was a lie. See id. at 10.

She also informed him that he could wait for the Moderna vaccine but would have

to move to CA unit in the meantime and would lose his contact visits for 60 days.9

Johnson alleges that John Doe #1 then stated, “Look, it’s either this or C-block.

Those are the only options we’re offering. Are you taking it or not?”10

Johnson admits that he reluctantly agreed to take the Janssen vaccine.11

Before receiving the injection, he was asked to sign the electronic voluntary

consent form, which he eventually agreed to do, but maintained that his acceptance

was “definitely not voluntary” because he was being threatened with losing his

contact-visitation privileges.12 Around that time, Johnson alleges that corrections

officer J. Fieni began yelling at him to “[s]ign the vaccine [consent form] or go

pack.”13 Johnson claims that he signed the consent form and received the Janssen

vaccine “[u]nder duress,” in particular because being sent to CA unit “would

almost guarantee” that he contracted COVID-19, which was “potentially a death

sentence.”14

After the injection, Johnson alleges that the following interaction with Fieni

occurred. Johnson asserts that he was told to wait in the crowded post-injection

observation area, and at some point Fieni yelled at the gathered inmates to “move

9 Id. at 5-6.

10 Id. at 6.

11 Id.

12 Id.

13 Id.

14 Id. at 6-7.

down on the bench” because he did not want “15 guys standing around,” to which

Johnson responded that there was “no room.”15 Fieni replied that he “wasn’t

talking to” Johnson, and then a few seconds later drew his OC spray and threatened

to spray Johnson and told him to “take [his] ass out on center.”16 Johnson asserts

that he complied and “went to sit on center.”17 Apparently, Fieni subsequently

issued a misconduct to Johnson, for which he was sanctioned with 30 days in the

Restricted Housing Unit (RHU).18 Johnson maintains that the misconduct report

contained “false accounts” by Fieni and was intended to retaliate against Johnson

for “exercising a right and protected liberty interest in making an informed

decision to take or refuse treatment.”19

Johnson names four defendants: Rivello, Fieni, Price, and Doe.20 He claims

that his First, Eighth, and Fourteenth Amendment rights were violated by being

forced to receive the Janssen vaccine and by being mistreated and retaliated against

by Fieni.21 He claims that he suffers from “emotional distress” and “on-going

anxiety” due to the allegedly forced injection and the falsified misconduct.22

15 Id. at 7.

16 Id.

17 Id. It is unclear what “on center” means.

18 See id. at 6, 7-8.

19 Id. at 7, 10.

20 See id. at 2-3.

21 See id. at 10.

22 See id. at 10-11.

II. STANDARDS OF REVIEW

Courts are statutorily obligated to review, “as soon as practicable,” pro se

prisoner complaints targeting governmental entities, officers, or employees.23 One

basis for dismissal at the screening stage is if the complaint “fails to state a claim

upon which relief may be granted[.]”24 This language closely tracks Federal Rule

of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to

screening a pro se prisoner complaint for sufficiency under Section 1915A(b)(1) as

they utilize when resolving a motion to dismiss under Rule 12(b)(6).25

In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire

“whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.”26 The court must accept as true the factual

allegations in the complaint and draw all reasonable inferences from them in the

light most favorable to the plaintiff.27 In addition to the facts alleged on the face of

the complaint, the court may also consider “exhibits attached to the complaint,

matters of public record, as well as undisputedly authentic documents” attached to

23 See 28 U.S.C. § 1915A(a).

24 Id. § 1915A(b)(1).

25 See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002); O’Brien

v. U.S. Fed. Gov’t, 763 F. App’x 157, 159 & n.5 (3d Cir. 2019) (per curiam) (nonprecedential);

cf. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

26 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

27 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

a defendant’s motion to dismiss if the plaintiff’s claims are based upon these

documents.28

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.29 At step one, the court must “tak[e] note of the elements [the]

plaintiff must plead to state a claim.”30 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.31 Finally, the court must review the presumed-truthful allegations

“and then determine whether they plausibly give rise to an entitlement to relief.”32

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”33

Because Johnson proceeds pro se, his pleadings are to be liberally construed

and his complaint, “however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers[.]”34 This is particularly true

when the pro se litigant, like Johnson, is incarcerated.35

28 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

29 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

30 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

31 Id. (quoting Iqbal, 556 U.S. at 679).

32 Id. (quoting Iqbal, 556 U.S. at 679).

33 Iqbal, 556 U.S. at 681.

34 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citations omitted).

35 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).

III. DISCUSSION

Before addressing the sufficiency of Johnson’s complaint, the Court must

identify the claimed constitutional violations.36 The gravamen of Johnson’s

complaint is that several Defendants violated his constitutional rights by coercing

him to receive a vaccine against his will. This type of allegation plainly implicates

the substantive due process clause of the Fourteenth Amendment.37 He also

appears to contend that his First Amendment rights were violated by Fieni’s

alleged retaliatory actions.38 In addition, Johnson cursorily claims that his Eighth

Amendment rights were infringed by Fieni’s conduct. Finally, Johnson asserts that

Rivello’s “directions and practices” at SCI Huntingdon “constituted a state-created

danger.”39

Most of Johnson’s constitutional tort claims are riddled with fatal

deficiencies and require dismissal with prejudice. The Court will discuss his

claims in turn.

36 Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The first step in any [Section 1983] claim is to

identify the specific constitutional right allegedly infringed.”); Graham v. Connor, 490 U.S.

386, 394 (1989) (explaining that analysis of a Section 1983 claim requires “identifying the

specific constitutional right allegedly infringed by the challenged” conduct).

37 See White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 1990) (“The Due Process clause of the

Fourteenth Amendment substantively protects certain fundamental rights. Among these are

the right to be free from unjustified intrusions into the body . . . [and] the related right to refuse

unwanted medical treatment . . . .” (citing, respectively, Ingraham v. Wright, 430 U.S. 651,

673 (1977); Rennie v. Klein, 653 F.2d 836, 844 (3d Cir. 1981))).

38 See Doc. 1 at 10 (citing First Amendment).

39 Doc. 1 at 10.

A. Fourteenth Amendment Substantive Due Process

The primary claim in Johnson’s complaint is that he was allegedly forced to

take the Janssen COVID-19 vaccine against his will. Johnson’s allegations,

however, do not—and cannot—establish a substantive due process violation.

“The Due Process clause of the Fourteenth Amendment substantively

protects certain fundamental rights. Among these are the right to be free from

unjustified intrusions into the body . . . [and] the related right to refuse unwanted

medical treatment . . . .”40 In a substantive due process challenge to governmental

conduct, “the threshold question is whether the behavior of the governmental

officer is so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.”41 Whether governmental action shocks the conscience

is “a matter of law for the courts to decide.”42

In the instant case, Johnson alleges that he received the Janssen COVID-19

vaccine under “duress.” According to Johnson, the prison’s policy—promulgated

by Rivello—was that inmates were required to choose whether to receive the

Janssen vaccine or be moved to a different housing unit with other unvaccinated

inmates and subjected to the loss of certain privileges, including contact visitation.

40 See White v. Napoleon, 897 F.2d 103, 111 (3d Cir. 1990) (citing, respectively, Ingraham v.

Wright, 430 U.S. 651, 673 (1977); Rennie v. Klein, 653 F.2d 836, 844 (3d Cir. 1981)).

41 Benn v. Univ. Health Sys., Inc., 371 F.3d 165, 174 (3d Cir. 2004) (quoting County of

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)).

42 Id. (quoting Rochin v. California, 342 U.S. 165, 172 (1952)).

In other words, Johnson maintains that he was coerced into getting the Janssen

vaccine by being forced to choose between (a) vaccination with the Janssen

product, or (b) being transferred to a different unit that housed unvaccinated

prisoners and losing his contact-visitation privileges.

Simply put, neither this policy, nor any of Price’s or Doe’s alleged actions

on August 4, 2021, establish that Johnson was forced to receive a vaccination

against his will. His allegations clearly show that prisoners were given a choice

regarding whether to be vaccinated with the Janssen vaccine or be moved to a unit

with other unvaccinated prisoners and lose contact-visitation privileges. Johnson

does not contend, for example, that the policy called for physical restraint and

injection against an inmate’s will, or even for misconducts being issued for

refusing to be vaccinated. The Court additionally notes that, at that time under

Department of Corrections policy, “[v]accination among the inmate population is

voluntary,” and inmates were incentivized to get vaccinated and boosted by being

offered financial compensation, further demonstrating that COVID-19 vaccination

was not forced or mandatory in state prisons.43

Defendants’ purported action of attempting to vaccinate prisoners against the

COVID-19 virus and separating vaccinated and unvaccinated inmates in no way

43 See Fennell v. Wetzel, No. 4:22-cv-00880, 2023 WL 1997116, at *5 (M.D. Pa. Feb. 14, 2023)

(quoting COMMW. OF PA., PA. DEP’T OF CORR., COVID-19, https://www.cor.pa.gov/Pages/

COVID-19.aspx (last visited Feb. 9, 2023)).

represents “conscience-shocking” conduct. It is, in fact, an eminently reasonable

course of action to protect against the spread of the virus, undertaken at a time

when COVID-19 and its variants were spreading rapidly.44

Nor do Johnson’s allegations about the day of his vaccination implicate a

substantive due process violation. Johnson admits that he agreed to receive the

unexpired Janssen vaccination, signed the electronic consent form, and was

vaccinated. He was also permitted to express his concerns and received responses

from healthcare personnel about issues like vaccine expiration dates. Additionally,

he was given the option of waiting to receive the Moderna COVID-19 vaccine

(although he would have to quarantine with other unvaccinated prisoners until that

time).

While Johnson faced the alternative of being moved to a different housing

unit with other unvaccinated inmates, this choice does not establish that he was

forced to receive an injection against his will or that his substantive due process

rights were violated. Johnson’s allegations simply do not describe governmental

action that could be found to be “conscience shocking” or an “unjustified

intrusion” into his body. Thus, Johnson cannot plausibly state a Fourteenth

Amendment substantive due process claim against any Defendant.

44 See Walker v. Sorber, No. 21-CV-3477, 2022 WL 4586137, at *5, 7 (E.D. Pa. Sept. 29, 2022)

(“Due to the necessarily close and continued contact that prisoners experience, SCI-Phoenix

had every reason to attempt to prevent a large-scale outbreak by segregating vaccinated from

unvaccinated prisoners[.]”); Fennell, No. 4:22-CV-00880, 2023 WL 1997116, at *5.

B. Eighth Amendment Claim

Johnson also appears to assert an Eighth Amendment claim against Fieni,

although this claim is conclusory and undeveloped. Nevertheless, if Johnson is

asserting an Eighth Amendment claim based on the alleged conduct of Fieni as

described in the complaint, he has not stated such a claim.

Johnson’s allegations of yelling, verbal threats, and profanity by Fieni do not

and cannot state a plausible Eighth Amendment violation. In general, conduct like

verbal harassment, threats, taunting, and profanity, without any injury, is

insufficient to implicate a constitutional infringement under either the Eighth or

Fourteenth Amendment.45 While the Court in no way condones Fieni’s alleged

unprofessional conduct (e.g., yelling at Johnson and threatening to use OC spray

when unnecessary), such conduct has repeatedly been held not to amount to a

constitutional violation. Accordingly, the Court must dismiss the Eighth

Amendment claim against Fieni under Section 1915A(b)(1) for failure to state a

claim for relief as well.

45 See Prisoners’ Legal Ass’n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) (explaining that

“verbal harassment does not give rise to a constitutional violation enforceable under § 1983”);

see also Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) (collecting cases);

Manning v. Flock, No. 1:11-CV-0293, 2012 WL 1078227, at *12 (M.D. Pa. Mar. 30, 2012)

(collecting cases); Graham v. Main, Civil Action No. 10-5027(SRC), 2011 WL 2412998, at

*24-25 (D.N.J. June 9, 2011) (“Allegations of verbal abuse or threats, unaccompanied by

injury or damage, are not cognizable under § 1983, regardless of whether the inmate is

a pretrial detainee or sentenced prisoner.”); Mohamed v. Aviles, Civil No. 06-4794 (FSH),

2007 WL 923506, at *5 (D.N.J. Mar. 26, 2007) (collecting cases).

To the extent that Johnson contends that Fieni’s alleged retaliatory action

(issuing a false misconduct) violated the Eighth Amendment, such a claim is

already covered by a Section 1983 retaliation claim and is better considered under

that cause of action.46 The Court thus turns to Johnson’s retaliation claim.

C. “First Amendment” Retaliation

Johnson appears to raise a retaliation claim under the First Amendment. To

state a prima facie First Amendment retaliation claim, a prisoner must allege that

(1) “he was engaged in constitutionally protected conduct,” (2) he suffered an

“adverse action” by prison officials sufficient to deter a person of ordinary

firmness from exercising his First Amendment rights, and (3) the inmate’s

protected conduct was a “substantial or motivating factor” in the prison officials’

decision to take the adverse action.47

Johnson alleges that Fieni retaliated against him by filing a false misconduct

report, resulting in 30-days’ detention in the RHU. Johnson maintains that he was

retaliated against “for exercising a right and protected liberty interest in making an

informed decision to take or refuse treatment.”48

46 It also would not independently satisfy the type of conditions required for an Eighth

Amendment claim in the prison setting.

47 Wisniewski, 857 F.3d at 156 (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001));

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (quoting Rauser, 241 F.3d at 333).

48 Doc. 1 at 10.

It is well settled that a charged misconduct constitutes “adverse action” by a

prison official for a retaliation claim.49 The issue with Johnson’s claim is that the

“constitutionally protected conduct” he alleges does not implicate the First

Amendment. For example, he does not assert that he was retaliated against for

exercising his freedom of speech, expression, petition, religion, or association.

Rather, Johnson is claiming that he was retaliated against for exercising his right

under the Fourteenth Amendment to make an informed decision regarding medical

treatment.

This type of retaliation claim appears to fall under the rubric established in

White v. Napoleon.50 In that case, the United States Court of Appeals for the Third

Circuit explained that “[r]etaliation for the exercise of constitutionally protected

rights is itself a violation of rights secured by the Constitution actionable under

[S]ection 1983.”51 The Third Circuit found that the prisoner-plaintiff had stated a

retaliation claim when he alleged that a prison doctor “filed disciplinary charges

against him in retaliation for exercising his right to refuse treatment.”52 Here,

although Johnson has not plausibly stated a substantive due process claim, he has

asserted a viable retaliation claim by alleging that he was seeking to make an

informed decision regarding the Janssen vaccine and Fieni retaliated against him

49 See Watsom v. Rozum, 834 F.3d 417, 423 (3d Cir. 2016).

50 897 F.2d 103 (3d Cir. 1990).

51 Id. at 111-12.

52 Id. at 111.

for this constitutionally protected conduct. Johnson’s invocation of the First

Amendment in his complaint, therefore, appears to simply be a pleading error.

D. State-Created Danger

Johnson’s final claim asserts that Rivello’s “directions and practices” with

regard to COVID-19 constitute “a state-created danger.”53 To properly plead a

claim for state-created danger, a plaintiff must allege four elements: “(1) the harm

ultimately caused to the plaintiff was foreseeable and fairly direct; (2) the state-

actor acted in willful disregard for the plaintiff's safety; (3) there was some

relationship between the state and the plaintiff; and (4) the state-actor used his

authority to create an opportunity for danger that otherwise would not have

existed.”54 With regard to the second element, the plaintiff must show that the

state acted “with a degree of culpability that shocks the conscience,”55 requiring

proof that the state actor disregarded a known or obvious consequence of his

action.”56

Johnson’s claim against Rivello fails at the first and second elements. He

has not alleged that he has been physically harmed by Rivello’s vaccination policy,

let alone in a “foreseeable” and “fairly direct” manner. Although Johnson alleges

that receiving the Janssen vaccine caused him emotional distress and anxiety, the

53 Doc. 1 at 10.

54 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

55 Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).

56 Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997).

Court is unaware of any plausible state-created danger case asserting only

emotional damages (rather than serious physical injuries).57 Moreover, such

emotional injuries cannot be said to be foreseeable and fairly direct harm resulting

from the vaccination and quarantine of unvaccinated inmates to prevent the spread

of COVID-19.58 Additionally, as noted above, in no way can Rivello’s actions

with regard to COVID-19 prevention be said to “shock the conscience.” Rather,

the separation of vaccinated from unvaccinated inmates is a completely reasonable

course of action in the prison setting during a pandemic.

E. Leave to Amend

Generally, “plaintiffs who file complaints subject to dismissal under [the

Prison Litigation Reform Act of 1995] should receive leave to amend unless

amendment would be inequitable or futile.”59 Here, leave to amend the dismissed

claims will be denied because amendment would be futile. Johnson’s allegations

do not, and cannot, implicate a substantive due process violation, an Eighth

Amendment claim, or state-created danger. Johnson’s allegations with respect to

these claims are legally, rather than factually, deficient, and thus amendment

57 See, e.g., Maxwell ex rel. Maxwell v. Sch. Dist. of Phila., 53 F. Supp. 2d 787 (E.D. Pa. 1999)

(violence, sexual harassment, and rape); Schieber v. City of Philadelphia, 320 F.3d 409, 416

(3d Cir. 2003) (rape and murder); Brown v. Dep’t of Health Med. Servs. Training Inst., 318

F.3d 473, 478 (3d Cir. 2003) (death); see also Carey v. City of Wilkes-Barre, 410 F. App’x

479, 483 (3d Cir. 2011) (nonprecedential) (finding that “the emotional distress alleged by

[plaintiff] is not a cognizable harm” for a state-created danger claim).

58 See Carey, 410 F. App’x at 483 (“The anxiety [plaintiff] claims she suffered after the closing

of the fire station does not rise to the level of foreseeable and fairly direct harm.”).

59 Grayson, 293 F.3d at 114.

would be futile. This case, therefore, will proceed on Johnson’s retaliation claim

against Fieni only.

IV. CONCLUSION

Based on the foregoing, the Court will dismiss in part Johnson’s complaint

pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief

may be granted. This case will proceed only as to Johnson’s Section 1983

retaliation claim against defendant J. Fieni. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge