GRAZIANO v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

EDWARD GRAZIANO, )

)

Plaintiff ) 1:22-CV-00163-RAL

)

vs. ) RICHARD A. LANZILLO

) Chief United States Magistrate Judge

PENNSYLVANIA DEPARTMENT OF )

CORRECTIONS, LT. DEAL, LT. ) MEMORANDUM OPINION ON

HAGGERTY, CERT OFFICERS # 1-6, ) DEFENDANTS’ MOTIONS TO

BRIAN BYERS, LIBRARIAN CRILEY, ) DISMISS

DERECK F. OBERLANDER, SUSAN R. )

ADAMS, EARNEST MONGELLUZZO, ECF NOS. 60, 70

LISA REEHER, THERESA BIEL, ANGEL )

F. GRESSEL, BRUCE SIMONS, RICHARD )

CAMACHO, KIMBERLY SMITH, KEVIN _)

COWAN, ANDREW LESLIE, YVETTE )

PERRIN, GREGORY MILLER, )

MICHELLE CROWTHER, LISA FISCUS, )

LT. BOGARDUS, CO 1 MORGAN, CO 1 )

MINICH, CO 1 WITNESS OF DC-141, )

PART D2, LT. DICKEY, ERIN MILLER, )

ROSS MILLER, CENTURION, )

WELLPATH, and IAN GUSSTAFSON, )

Defendants

I. Introduction and Procedural History

Plaintiff Edward Graziano (“Graziano”), a prisoner in the custody of the Pennsylvania

Department of Corrections (“DOC”), brings this pro se action against the DOC, fifteen named

DOC employees, seven DOC employees identified as “John Doe” Defendants (collectively,

“DOC Defendants”),' two private companies contracted to provide medical services to DOC

1 All individual DOC Defendants except two are employed at the DOC’s State Correctional Institution at Forest

(“SCI-Forest), where Graziano was previously incarcerated. They are: Superintendent Oberlander, Deputy

Superintendent for Centralized Services (“DSCS”) Adams, Deputy Superintendent for Facilities Management

(“DCFS”) Mongelluzzo, Facility Grievance Coordinator/Corrections Superintendent Assistant (“CSA”) Reeher,

Administrative Officer (“A/O”) Biel, Licensed Psychology Manager (“LPM”) Simons, Corrections Health Care

Administrator (“CHCA”) Smith, Psychology Service Specialist (“PSS”) Cowan, Corrections Classification and

inmates (Centurion and Wellpath), three Centurion employees, and one Wellpath employee.”

See ECF 11. Graziano’s twenty-two-count, 510-paragraph Complaint asserts seventeen claims

pursuant to 42 U.S.C. § 1983 for violations of his rights under the First, Fourth, Eighth, and

Fourteenth Amendments to the United States Constitution, a claim under Title IT of the

Americans with Disabilities Act, 42 U.S.C. § 12132, and four claims under Pennsylvania state

tort law. Graziano seeks compensatory and punitive damages as well as declaratory and

injunctive relief. All individual Defendants are sued in their individual and official capacities.

The DOC Defendants have moved to dismiss certain of Graziano’s claims pursuant to

Fed. R. Civ. P. 12(b)(6), ECF Nos. 60, 61, and Centurion and its three employees, CRNP

Gressel, CRNP Byers, and Dr. Camacho, (collectively, “Centurion Defendants”) have moved to

dismiss all claims against them pursuant to Rule 12(b)(6). ECF Nos. 70,71. Graziano has filed

a single brief in opposition to the pending motions to dismiss, and Centurion responded with a

reply brief. ECF Nos. 99, 100. The Court has also exercised its obligation to screen certain

other claims for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A.

The matter is ripe for disposition.’

Program Manager (“CCPM”) Gustafson, Unit Manager (“UM”) Perrin, UM Miller, UM Crowther, Hearing

Examiner (“Hex”) Fiscus, Lieutenant (“Lt.”) Bogardus, Corrections Officer 1 (“CO1”) Morgan, and CO1 Minich.

The Complaint also refers to one of the DOC Defendants as “CO1 Witness of DC-141, Part 2D”. ECF No. 11, 30.

See id., Jf 10-15, 17, 19, 20, 21, 23-29. The remaining individual DOC Defendants are employed at SCI-Camp

Hill: Lt. Dickey, Corrections Counselor (“CC”) Miller, and UM R. Miller. See ECF No. 11, {¥ 31-33.

2 The Centurion employees are Certified Registered Nurse Practitioner (“CRNP”) Gressel, CRNP Byers, and Dr.

Camacho; and the Wellpath employee is Nurse Practitioner (“NP”) Leslie. See ECF No. 11, {ff 16, 18, 22.

3 This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343, and it can exercise supplemental

jurisdiction over the state-law claims under 28 U.S.C. § 1337. The parties have consented to the jurisdiction of a

United States Magistrate Judge to conduct all proceedings in this case, including the entry of final judgment, as

authorized by 28 U.S.C. § 636.

I. Standard of Review

A. Rule 12(b)(6)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 Gd Cir. 1993). In

deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual

allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S.

Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally

_consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of

public record, and documents that form the basis of a claim” when considering the motion to

dismiss.* Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997)).

In making its determination under Rule 12(b)(6), the court is not opining on whether the

plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual

allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and

4 Graziano’s Complaint includes an appendix with the following exhibits: medical records from SCI-Forest and SCI-

Camp Hill (ECF No. 15, pp. 1-7, 12-17); 07.24.2020 Inmate request to Staff Member (id, p. 8); Gressel’s license

(id., p. 9); 02.28.2021 Inmate Request to Staff Member (id., p. 10); Policy Procedure Waiver Request (id, p. 11);

Inmate Disability Accommodation Request Form (id., p. 18); 07.23.2019 Inmate Request to Staff Form (id, p. 19);

Inmate Disability Accommodations Request response (id, pp. 20-21); Misconduct D485643 documents (id, pp. 22,

24-28, 37-38, 41-45, 73); Unsworn Affidavit of John Fran (id., p. 23); Misconduct D485608 documents (id, pp. 29-

35, 46); 01.15.2021 Inmate Requests to Staff Member (id, p. 36); 01.08.2021 Inmate request to Staff Member (id.,

p- 39, 40); Misconduct D485627 documents (id., p. 47-57); Misconduct D485626 documents (id., p. 58-62);

Grievance 905968 documents (id., pp. 62-76); emails and letters (id, pp. 77-84, 86, 87); 03.19.21 Inmate Request to

Staff Member (id. p. 85); Grievance 920153 documents (id, p. 89-94); Grievance 920454 (id., pp. 95-100);

Grievance Restriction documents (id., pp. 101-104); sick call slips (d., pp. 105-08); 06.22.2021 Inmate Request to

Staff Member (id, p. 109); Grievance 933165 documents (id, pp. 111-113); Grievance 934135 (id, pp. 114-115);

06.20.2021 Inmate Requests to Staff Member (id., pp. 116-123); Personal Property Inventory (id, p. 124);

07.13.2021 Inmate Request to Staff Member (id, p. 125); package slips (/d., pp. 126-28); Grievance 938764

documents (id., pp. 130-134); Grievance 945565 documents (id., pp. 135-136); 10.21.2021 Inmate Requests to Staff

Member (id., pp. 137-39); Grievance 953430 documents (éd., pp. 141-46, 150-51); and Confiscated Items Receipts

(id., pp. 147-48).

Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege

“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570

(rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78

(1957)).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at

555. A “formulaic recitation of the elements of a cause of action will not do.” Jd. (citing

Papasan vy. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences

drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See

California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept

legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v.

City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

Finally, because Graziano is proceeding pro se, the allegations in the complaint must be

held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

404 U.S. 519, 520-521 (1972). Ifthe court can reasonably read a pro se litigant’s pleadings to

state a valid claim upon which relief could be granted, it should do so despite the litigant’s

failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence

construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S.

364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)

(petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of

tolerance’’).

B. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

Claims in this action are also “subject to sua sponte screening for dismissal pursuant to

28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A because [Graziano] is a prisoner proceeding pro

se and is seeking redress from a governmental employee or entity.” Sanchez, 2014 WL 7392400,

at *4 (W.D. Pa. Dec. 11, 2014) (citing Stackhouse v. Crocker, 266 Fed. Appx. 189, 190 (3d Cir.

2008). See ECF No. 2. The Prison Litigation Reform Act (“PLRA”), Pub.L. No. 104-134, §§

801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to assess

civil complaint in which a prisoner proceeds in forma pauperis (28 U.S.C. § 1915(e)(2)) or seeks

redress against a governmental employee or entity (28 U.S.C. § 1915A). See e.g., Sanchez v.

Coleman, 2014 WL 7392400, at *4 (W.D. Pa. Dec. 11, 2014); Hill vy. Carpenter, 2011 WL

8899478, at *2 (M.D. Pa. Aug. 3, 2011), report and recommendation adopted, 2012 WL

3779364 (M.D. Pa. Aug. 30, 2012) (citing 28 U.S.C. § 1915(e)(2)(B)Gi) (“This Court has a

statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs

given leave to proceed in forma pauperis in cases which seek redress against government

officials.”). Among other things, that statute requires the Court to dismiss any action in which

the Court determines that the action is “frivolous or malicious; fails to state a claim upon which

relief may be granted; or seeks monetary relief against a defendant who is immune from such

relief.” 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir.

2015). A frivolous complaint is one which is either based upon an indisputably meritless legal

theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions

which are clearly baseless (such as when the factual scenario described is fanciful or delusional).

Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails

to state a claim upon which relief may be granted is governed by the same standard applicable to

motions to dismiss under Rule 12(b)(6). D’Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72

(3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).

WI. Factual Allegations

The factual allegations of the Complaint span a period of approximately three years and

four months and challenge frequently unrelated conduct of numerous prison personnel at

multiple correctional institutions. These allegations are accepted as true for purposes of the

pending motions to dismiss. The Complaint organizes these allegations into nine categories: (A)

Deprivation of Basic Human Needs (see ECF No. 11, {J 47- 113); (B) Civil Conspiracy (see id.,

114-195); (C) Excessive Use of Force/Assault & Battery (see id., §§| 196-223); (D) Denial of

ADA Assessment & ADA Accommodations (see id., {§ 224-244); (E) Due Process, Retaliation,

and False Imprisonment (see id., {J 245-329); (F) Retaliation by Restriction of Prisoner/Visitor’s

Telephone and Visiting Privileges (see id., 330-343); (G) Retaliation by Way of Grievance

Restriction (see id., J] 344-349); (H) Sexual Harassment/Denial of Medical Care and Violation

of Medical Privacy and Confidentiality (see id., Jf 350-366); and (I) Conspiracy/Retaliatory

Interference with Court Access by Confiscation and Destruction of Legal Property (see id.,

367-417).

A. Asserted Deprivations of Basic Human Needs

Graziano has been diagnosed with several mental health (“MH”) disorders and, at all

relevant times, has been classified as a “C Roster” “on the active Mental Health/Intellectual

Disability (MH/ID) Roster...” ECF No 11, § 39. DOC healthcare providers have treated

Graziano’s anxiety and depression for approximately fifteen years, and his “psychiatric care has

consisted of antidepressant medications,” including Remeron and Cymbalta. Jd., { 43.

On January 24, 2019, he was transferred from SCI-Albion to SCI-Forest. Approximately

two weeks after Graziano’s arrival at SCI-Forest, his “antidepressants, namely Remeron

(mirtazapine) and Cymbalta (duloxetine), stopped working for him” because prison personnel

administered the medication during the last medication line/medline between 3:30 and 4:30 pm

each day rather than at bedtime as prescribed. /d., { 49. Graziano complained to prison officials

that he needed to take his medication at bedtime, but Defendants Smith, Adams, Mongelluzzo, and

Oberlander refused to move the evening medication line to a later time. /d. The earlier medication

intake exacerbated Graziano’s anxiety and depressive disorders. Id.,

Graziano also alleges that his mental health further deteriorated because of excessive noise

and light at the prison. Specifically, he complains that SCI-Forest “blared” between 150 and 200

“line movements and unit announcements...through cell intercom speakers daily from” 6:00 am

to 9:00 pm, and that its inmate count procedure caused “bright cell count lights” to “stay on from”

10:15 to 10:50 pm, 2:00 to 2:35 am, and 3:00 to 3:35 am “day in and day out.” Jd., 954. “Without

success,” Graziano sought relief from “his Psychiatric Review Team (PRT),° Unit Management

Team (UMT),° and Administration staff’ by communicating his distress “through direct

communication, Inmate Requests] to Staff and Inmate Grievance|s].” Jd., 68. Graziano also

“met with psychology staff virtually every 30 days, and psychiatric staff virtually every 90 days

in accordance with DOC Policy.” Jd, 772. Additionally, he also was seen ten times “during

> The PRT included Simons, Byers, Smith, Camacho, and UM Miller.

From May 2019 to August 2020, the UMT included Connors and UM Miller, and from August 3, 2020 to July 1,

2021, the UMT included Crowther, Morgan, Perrin, and Cowan.

January and July, 2019” by the PRT. Jd., 73. At each meeting with the PRT, Graziano reiterated

his concerns. “PRT, however, took no remedial action.” Id.

On July 18, 2019, Graziano “met with PRT to go over his new Individual Recovery Plan

(‘IRP’)”. Id.,9/74. The IRP consisted of the following four goals: “(1) Recovery from Depressive

Disorder; (2) Recovery from Anxiety Disorder; (3) Trauma; (4) Sleep and (5) Medication

Management.” Jd., 474. Defendants Simons, Byers, Camacho, Miller, Smith “and other staff at

SCI Forest . . . rendered that plan virtually impossible” because they “continued to routinely tell

[him] that there was nothing they could do to ensure he received his psychiatric medication at

bedtime as prescribed or mitigate his torturous living conditions.” Jd., §] 75.

Graziano later “discovered that the Special Needs Unit (SNU) at SCI-Forest had a special

medication line” at approximately 7:30 pm. Jd., 476. But Simons, Connors, Byers, Dr. Camacho,

and others denied Graziano’s request for admittance into this unit because they claimed he “did

not meet the criteria.” Jd, § 77. Graziano complained of this denial in a November 26, 2019

grievance, which UM Miller denied and, upon appeal, Oberlander upheld. Jd., { {| 78-81.

“On February 26, 2020, [Graziano] told CRNP Byers during a routine psychiatric

appointment, that he was having thoughts of suicide because his issues were being disregarded.”

84. No remedial action was taken. On April 2, 2020, Graziano relayed his suicidal ideations

to Simons, Hartzel, and Gressel. Simons informed Graziano that they could not change his

medication line or the institution’s operations, but “that PRT would refer him to the Program

Review Committee” to see what they could do. Jd., { 86. However, several weeks later, Graziano

received notice from Connors that Adams had denied his referral because it was unnecessary at

that time. Jd, 487. Graziano challenged this denial in a grievance, which Simons subsequently

denied. Id., J] 88-89.

Graziano related his suicidal ideations and depression to “Connors during a routine

appointment” on April 3, 2020. Id., “Immediately PSA Connors notified LPM Simons of

[Graziano’s] suicidal state and urged LPM Simons to notify Dr. Camacho.” Jd., 4 92. Simons

then called Camacho and asked him to speak with Graziano over the speakerphone. Graziano

“down-played his suicidal state” on the phone “in order to avoid” being placed in a psychiatric

observation cell (“POC”), which Camacho was considering. Jd, § 93. Dr. Camacho then told

Graziano that “there was nothing he could do at the present time about changing [his] living

conditions because facility transfers were on hold due to the COVID-19 pandemic,” but he did

increase the dosage of Graziano’s anti-depression and anxiety medications and promised Graziano

he would follow-up with him in-person shortly for a MH evaluation. Jd.

Graziano sent Connors an Inmate Request to Staff Member Form a few weeks later,

informing him that his medication increase was not working and asking for the date of his next in-

person appointment with Dr. Camacho. In response, Conners told him that in-person meetings

with psychiatric providers were limited because of COVID-19, and a date for the in-person

evaluation would be set in due time. Graziano’s June 3, 2020, follow-up appointment with

Dr. Camacho was subsequently “canceled for untold reasons.” Id., {| 97.

On June 8, 2020, Graziano complained to Adams that SCIJ-Forest’s announcement, inmate

count, and medication line time procedures were harming his mental health. Adams responded by

telling Graziano that the facility was not going to alter its operations. About a month later,

Graziano “again stressed to PSA Connors that his medication was not working and requested to

see CRNP Byers, the on-site psychiatric provider, for a medication change or adjustment because

his pending appointment with Dr. Camacho” still had not been re-scheduled. /d., 100. Connors

told him that because Byers was not available, he would refer him to Gressel, the on-site

psychiatric provider for the Restrictive Housing Unit (“RHU”), and “emphasiz[ed] that [Graziano]

‘would benefit from an in-person medication follow-up rather than tele-med services.” Jd., § 101.

Graziano did not end up meeting with Gressel because Gressel only changed medication via tele-

med, and Graziano made clear that he would only meet with Gressel in person.

Thereafter, Graziano declined the follow-up appointment scheduled with Dr. Camacho for

July 24, 2020, because it too would have been conducted via tele-med.

On July 27, 2020, a corrections counselor informed Graziano that Miller had “directed him

to not bother helping [Graziano] look into a MH related transfer because [Graziano] did not meet

the criteria,” even though determining an MH related transfer did not fall within Miller’s purview.

Id.,§ 109. Miller then transferred Graziano to a different housing unit.

B. Asserted Civil Conspiracy

On August 5, 2020, Smith informed Graziano “that going forward, he will be seen by

psychiatry via tele-med only and warned him that if he refused another tele-med appointment, he

would be taken off psychiatric care.” Jd, § 117. Graziano replied that he would not genuinely

and completely disclose his struggles “through such an impersonal and seemingly public forum.”

Id, 118. “From at least July, 2020 thru April 2021, SCI Forest did not have an ‘on-site’

psychiatric provider assigned to general population.” /d., { 120. Further, Gressel, the sole on-site

psychiatric provider, only treated RHU inmates and did not get licensed to prescribe medication

until January 26, 2021. Id.

Graziano attended his next appointment with Camacho on August 11, 2020, via tele-med.

He attended this appointment, as did Security at “the Administration[’s]” behest. Jd, § 130.

Because of his public surroundings, however, Graziano did not truthfully and completely divulge

his mental health situation. Graziano grieved his issues with virtual therapy. Reeher denied the

10

grievance, and in her Initial Review Response (“IRR”), she described Graziano’s conduct during

the appointment as aggressive.

On September 15, 2020, Graziano again met with Dr. Camacho over tele-med. Again, his

perception of the public-nature of tele-med prompted him not to discuss all his mental health

struggles. At this appointment, Dr. Camacho told Graziano “that he had recommended him for a

facility transfer . . . but ‘the Administration’ denied it.”” Id, § 140. Camacho also ordered an

increase in Graziano’s Remeron and Cymbalta dosage to fifteen milligrams above the 45 mg

recommended dose. “According to clinical studies,” taking more than the recommended amount

of Remeron and Cymbalta can cause “[t]rouble sleeping, panic attacks, irritation, agitation,

aggression, impulses, suicidal thoughts, dissinness [sic], drowsiness, and thinking and reaction

impairment.” Jd, § 142. Graziano suffered from each of these side effects, as well many other

medical and mental health issues. Nevertheless, Defendants decided “to wean [him] off the

medication . . . and remove[] his diagnosis of ‘persistent depressive disorder’ in pursuit and

furtherance of their plan” to take him off this medication. Jd., { 144.

On January 5, 2021, Graziano met with Gressel and Simmons in person for about ten

minutes. Graziano told Gressel that his medication was not working because he was receiving it

too early. Gressel told him about other psychiatric medications he could try that did not need to

be taken at bedtime. Gressel told Graziano that, in order to switch his medication, “she had to first

taper him off his current medication.” Jd., § 147. Graziano agreed to try the other medication, and

a follow-up appointment was set for sixty days later. On January 11, 2021, Gressel removed

Graziano’s diagnosis of “persistent depressive disorder.” Jd., { 150.

On January 8, 2021, Graziano was placed in the RHU “per orders of Hearing Examiner

Lisa Fiscus for a misconduct charge [he] had already been exonerated of on December 31, 2020.”

il

Id., § 148. Graziano spent forty-five days in the RHU, during which Gressel “urgently attempted

to meet with him repeatedly much earlier than their agreed upon 60 day follow-up which was due

on or about March 7, 2021.” Jd, § 155. Specifically, Gressel attempted to meet five times.

Graziano refused each time “out of mistrust, suspicion and fear that CRNP Gressel was acting in

bad faith and trying to cause him harm and even expose him to Covid-19.” Jd., § 158.

The tapering of Graziano’s psychiatric medication finished on February 2, 2021. Nine

days later, Leslie prescribed him Cymbalta 30 mg after examining him for headaches, eye pain,

and the joint/muscle pain he had complained of in a sick-call slip. The next day, Graziano alerted

Leslie, Gressel, and Smith that Cymbalta directly conflicted with his psychiatric care. He then

asked for “a different pain medication that would not interfere” with his mental health treatment.

161. By the end of the month, he still had not received new psychiatric medication, so he

sent Gressel and Simons an Inmate Request “pleading for psychiatry to get him started on new

psychiatric medication.” Id., § 163. CHCA Smith responded on March 2, 2021. She explained

that “[n]ew psychiatric meds are not being ordered at this time because the psychiatric providers

have determined you have no mental health diagnosis that indicates a need for meds. You can

follow up with the psychiatric team during PRT.” Jd., J 164.

The next day, Graziano was placed in the RHU under administrative custody (“AC”)

because of safety concerns for his life. Graziano’s mental health further deteriorated throughout

his time in the RHU. He grieved his worsening mental health on March 4, 2021. Id., J 12.

On March 9, 2021, Gressel prescribed Graziano a new medication to assist with his sleep

and anxiety (Vistaril/Hydroxine 50 mg) but refused to prescribe treatment for his depression. Id.,

4171.

12

On April 16, 2021, PSS Cowan conducted a one-hour, in-person, out-of-cell therapy

session with Graziano. “During that psychology session, PSS Cowan disclosed to [Graziano] ‘off

the record without mentioning names’ that his superiors and colleagues were conspiring against

[him] to undermine his MH claims because [his] complaints and threats to sue staff had brought

them ‘scrutiny’ by Central Office and ‘a lot of extra work.’” Jd., { 176. Cowan also told Graziano

that his mental health had been manipulated to “portray[] him as a problematic inmate who poses

a threat to staff.” Jd, 176. Cowan then informed Graziano that he would lose his job if he did

not “follow their ‘script’” and “back them up,” but “counseled [Graziano] on how to proceed with

MH staff at his next facility to get them to be more sympathetic to his MH needs.” | 176.

“While in the RHU, [Graziano] persistently complained to and begged” Cowan, Simons,

Gressel, Dougherty “‘and others for psychiatric care” and “to medical staff for medical care for his

related physiological symptoms.” □□□ § 186. On June 21, 2021, Graziano met in-person with Dr.

Max Gottesman, his treating psychiatric provider from his prior incarceration at SCI-Albion and

the doctor who first diagnosed him with depressive disorder. Gottesman maintained Graziano’s

prescription for Vistaril and reinstated 30 mg of Remeron, but he did not reinstate his depression

diagnosis. /d., § 188.

On July 1, 2021, Graziano was transferred from the RHU at SCI-Forest to the RHU at SCI-

Camp Hill. Jd, 190. He was released into SCI-Camp Hill’s general population on July 12, 2021.

Id. On July 21, 2021, SCI-Camp Hill personnel discontinued his Vistaril due to adverse side

effects. Id, § 189 n.17. A CRNP there diagnosed Graziano with “Adjustment Disorders with

Mixed Anxiety and Depressive Mood,” as well as “Antisocial Personality Disorder.” Jd, { 190.

She also prescribed him Remeron, which he first received at bedtime. Soon after, SCI-Camp Hill

13

personnel began administering the medication between 5:30 pm and 6:00 pm, “which is too early.”

Id.,§ 191.

“On January 28, 2022, [Graziano] agreed to a new MH treatment plan,” “with [Graziano’s]

input.” Id., 193. Nevertheless, Graziano believes “the goals set forth in [his] MH treatment plan

... are virtually unattainable . .. because no MH related groups are being made available to him

and he cannot remain medication compliant because his medication is not being administered at

‘bedtime’ as prescribed.” Jd, 194. Consequently, Graziano continues to struggle with numerous

mental health issues.

C. Asserted Excessive Force/Assault and Battery

On April 17, 2021, while Graziano was incarcerated at SCI-Forest, prison personnel placed

him in a POC for twenty-four hours because of the suicidal ideations he had relayed to medical

staff. The next day, Byers evaluated his mental health. Graziano informed Byers that his thoughts

of self-harm continued, as did the detrimental mental health effects of SCI-Forest’s inmate count,

announcements, and medication time procedures. Later that day, Graziano told Byers, Simons,

and Adams that he “would likely attempt to harm himself if left unattended.” Jd., § 199.

That evening, Graziano “[s|tood on the tabletop of his desk surveying whether he could

successfully kill himself if he dove off from its height.” Jd, 4 201. At that moment, Haggerty

approached and asked him what he was doing. Graziano “answered him frankly and asked to talk

with someone from psychology.” Id., 202. Haggerty responded that they had left and Graziano

was being moved to the RHU. Graziano then “threatened Lt. Haggerty that he would dive off the

table if anyone tried to move him to the RHU.” /d., 204. “Haggerty retorted, “We’ll see about

that’, and stormed off.” Id.

14

Shortly thereafter, Deal approached Graziano’s cell with “six (6) Corrections Emergency

Response Team (CERT) members, who were wearing riot helmets, gas masks and jackets, and

carrying shields, batons and a tear gas (Oleoresin Capsicum (OC)) dispenser (hereinafter “pepper

spray’).” Id.,§206. Graziano “was still standing on his desk when they arrived... Then suddenly,

he was pepper sprayed multiple times . . . in the face and chest and” the pepper spray “got into his

eyes and lungs,” which “caused [him] excruciating eye pain, temporary blindness and respiratory

impairment because it aggravated his asthma.” Jd., {{[ 207-210. Graziano “suffered from chronic

asthma” and “was prescribed aerosol inhalers Xopenex HFA (levalbuterol tartrate) and Alvesco

(ciclesonide).” Jd., 4 211.

The CERT officers handcuffed and shackled Graziano before taking him to the infirmary,

where medical staff treated his exposure to pepper spray. Jd, § 212. The officers then placed

Graziano in an RHU cell and began removing his handcuffs. “As the officer to [Graziano’s] right

fiddle[d] with the handcuffs and the middle positioned officer restrained him with a tether clamped

to the handcuffs, the officer to his left bashed his right hand multiple times with the aperture

security slider (made out of metal with sharp edges).” Jd, § 213. Consequently, Graziano

“suffered lacerations on his fingers . . . including bruising and swelling and pulsing pain which

grew more intense once the pepper spray he was covered with spread into his wounds.” Id., 214.

“During these events, [Graziano] did not resist or threaten the officers in any fashion or break any

prison rules.” Jd., 219. The CERT Officers then exited the “cold RHU cell,” and left Graziano

“without a mattress, bed-sheets, blanket, towel, toiletries or clothing except the suicide smock he

wore in POC which was soaked with pepper spray.” Jd., 4215.

Thereafter, Graziano requested medical assistance. RN Hill responded. She allowed

Graziano to “use his asthma inhalers and took pictures of his hand injury,” but “refused to dress

15

or treat his hand wounds and exposure to pepper spray or provide any pain medication.” Jd., □□□□

Ultimately, Graziano “spent approximately fifteen (15) hrs. in distress and pain without sleep

shivering from the cold cell temperatures with nothing to keep warm.” Id., 9218.

The next day, April 19, 2019, Graziano reported the previous day’s incidents to

Superintendent Oberlander. Oberlander said to Graziano in response: “Welcome to SCI Forest

Mr. Graziano. You can thank Deputy Superintendent Ennis ... for our hospitality ... you

remember Deputy Ennis Don’t you Mr. Graziano? By the way, he wishes you luck with your

lawsuit.” Jd., 9221. Graziano had initiated a civil suit against Mr. Ennis in January, 2019. Jd.

Following this interaction, Graziano received stitches for his fingers. Id., 222. Graziano grieved

the pepper spray and subsequent assault on April 22, 2019. Dickey investigated the grievance and

denied it. Oberlander upheld his denial, and Final Review upheld Oberlander’s decision.

D. Asserted Denial of ADA Assessment & ADA Accommodations

In June of 2019, Graziano’s mental health “disabilities caused him to regularly miss

meals,” “self-isolate in the cell[,] and avoid interacting with others” and prevented him from

“participating in recreational activities,” “staying medication compliant,” “engaging in pro-social

communication and rapport building with correctional staff,” and “achieving any of the treatment

goals set forth in his MH treatment plan”; and “subjected him to disciplinary action and negative

housing restrictions.” Jd., |] 237, 239, 238, 241, 242, 243, 240. On June 30th, Graziano submitted

to CHCA Smith an “Inmate Disability Accommodation Request Form” “seeking accommodations

from the . . . early medline, protractive cell lighting & constant cell intercom announcements.”

Graziano claimed that these procedures “substantially limited him from major life activities such

as sleep ([Graziano] stayed awake for 3 to 4 days at a time), interacting with others, reading,

concentrating, working and maintaining schedules, regimens and appointments among other major

16

life activities.” Jd., {§ 226, 225. Additionally, Graziano’s daily exhaustion caused him to drop

out of a reading class and an anger management self-help class.

Smith reviewed the ADA request per DOC policy, but, contrary to policy, “failed to

interview [him] regarding his ADA request or clinically assess the severity of his sleep

deprivation.” Jd, 4228. On August 23, 2019, Smith told Graziano that she had processed his

request and sent it to the Central Office Disability Committee “for their review.” Jd., 229. She

further stated that his “request for accommodation is not supported at local level but the disability

committee makes final determination.” Jd. On October 7, 2019, the committee denied Graziano’s

ADA request. Oberlander informed Graziano of this denial a month later.

E. Asserted Due Process Retaliation/False Imprisonment

Over Graziano’s objections, in J anuary 2019, he was moved to a unit within SCI-Forest

that followed a voluntary disciplinary scheme called “Swift, Certain and Fair” (SCF). Jd., { 246.

Afterwards, he complained to Simons, Hartzel, Crissman, Brugamin, Cummins, Miller, Sibble,

and others “that his worsening preexisting conditions of anxiety, depression and insomnia” due to

the prison’s lighting and announcement procedures “were impairing his ability to comply with all

standing counts.” Jd. § 250. Nevertheless, officers charged Graziano with a failure to stand on

two separate occasions under the SCF system. Graziano “refused to accept the Level 1 and 2

sanctions he was offered in each case, and as a result both infractions were respectively referred

to Level 3 disposition via misconducts nos. D041270 and D041275 before hearing examiner Lisa

Fiscus.” Id., § 252. Fiscus found Graziano guilty “and sentenced him to 15 and 30 days of cell

restriction.” Id. Graziano grieved his involuntary placement in the SCF unit and consequential

misconducts in Grievance No. 796875. Biel rejected this grievance. Id., | 254.

17

As discussed above, Graziano was placed in the POC on April 17, 2019, and then the RHU,

before being released to general population on May 30, 2019. Upon his release, he was placed in

anon-SCF unit. Thereafter, Graziano learned that the DOC intended to expand the SCF program.

In August 2019, Graziano filed suit against the DOC challenging the legality of this program. /d.,

258.

About a year later, Graziano was moved to a unit that adhered to the SCF system. Graziano

objected to UM Miller about the move and program. In response, UM Miller told him that his

failure to comply would result in his placement in the RHU. While Graziano grudgingly moved

to the new unit, he refused to sign the SCF participation form because of his lawsuit challenging

the program’s legality. Morgan informed him that inmates must comply with the SCF system

regardless of whether they signed the form. Two days later, on August 5, 2020, Graziano filed a

grievance alleging that he had been moved to this unit in retaliation for his lawsuit about the SCF

program. Id., { 267.

About four months later, Morgan issued Graziano a “Swift (SCF) for loaning or borrowing

property.” Id. § 268. Graziano declined to accept this Swift on the grounds that “he was not a

SCF Participant and was not taking a Swift based on trumped-up charges.” Jd., 269. About two

hours later, Morgan issued Graziano Misconduct No. D485643 charging him with the same.

Crowther attempted to discipline Graziano according to the SCF scheme for a level 2 disposition,

but Graziano refused to comply with the procedure. Jd., 4273. Graziano also presented Crowther

with “an Unsworn Affidavit from inmate John Fran # LD4839, which vindicated [Graziano] of the

charge of loaning or borrowing property.” Jd. Crowther reviewed the affidavit and then “refer[ed]

the misconduct to the hearing examiner for a Level 3 disposition” because of Graziano’s non-

compliance with SCF. Id., § 274.

18

On December 22, 2020, Fiscus presided over the misconduct hearing for Misconduct No.

D485643. Graziano immediately informed Fiscus that he had not received the required pre-

hearing psychological evaluation and then requested this exam. Fiscus informed him that she had

a form from Simons representing that Graziano had in fact received this exam. Fiscus proceeded

to hold the misconduct hearing. At this hearing, Graziano pled not guilty. Fiscus then placed

Graziano in a holding cell in order to conduct another hearing. /d., { 283.

Hearing Examiner Dupont continued Graziano’s hearing by video on December 29, 2020.

Dupont dismissed the charge without prejudice. Later that day, “Morgan recharged [Graziano |

with loaning or borrowing property via misconduct # D485608.” Jd., § 288. Dupont also

conducted the hearing on misconduct # D485608, found Graziano innocent, and dismissed this

charge with prejudice.

Ten days later, “COl Domies told [Graziano], via cell intercom, that he had a misconduct

hearing that morning and directed him to pack-up his personal property and stand-by for his

hearing,” even though Graziano had not received another misconduct. /d., 295. Before exiting

the cell, Domies asked Graziano to sign his property sheet, which declared that he had self-packed

his items. Graziano refused, however, because Domies had denied his request to itemize his

property on the form. Jd, § 299. Bogardus, Minich, and two additional officers then escorted

Graziano to his hearing. Graziano asked these officers what the misconduct charge was for and

was told that he would find out at the hearing. As he got dressed, Graziano overheard “Bogardus

tell Unit Sgt. Kobchick, CO1 Domies and COT Ferrell, ‘He [Plaintiff] is going to the hold [RHU]

regardless...” Id., 4303. At the hearing, presiding officer Fiscus informed Graziano “she had

convicted him in absentia and sentenced him to 45 days of disciplinary custody (DC) for

misconduct # D485643.” Id., { 307.

19

As Graziano awaited RHU processing, he saw Fiscus and called her over. Graziano

informed her that Dupont’s dismissal of Misconducts D485643 and D485608 prohibited her from

retrying him for Misconduct D485643. In response, Fiscus said: “You should have taken the Swift

sanction CO] Morgan initially offered you . . . I bet you’re regretting that now aren’t you?” □□□

{ 309. “In addition, Hex Fiscus, CO1 Minich and CO1 Witness of DC-141, Part 2D[RH17], signed

a hearing waiver on January 8, 2021, falsely attesting that [Graziano] refused to attend the. . .

misconduct hearing on January 8, 2021, and refused to sign said hearing waiver.” Jd, 311.

Following his placement in the RHU, Graziano appealed Fiscus’ hearing determination, first to

the PRC, and then to Oberlander after the PRC denied it. On February 3, 2021, Graziano received

Oberlander’s decision “dismiss[ing] misconduct # D485643 and permit[ing] recharge.” Jd., 4315.

On February 13, 2021, Morgan issued Graziano Misconduct No. D485627, re-charging

him with loaning or borrowing property. He again appeared before Fiscus, who again found him

guilty and sentenced him to forty-five days in the RHU, less the days he had already served since

his initial RHU placement on January 8, 2021 (he had not yet been released). Again, Graziano

appealed this charge and, again, “the PRC, namely Major M. Blicha, CCPM Gustafson, DSCS

Adams and DSFM Mongelluzzo,” denied his appeal, but Oberlander granted it. Id., { 323. While

Oberlander exonerated Graziano of the charge, Graziano had already completed his forty-five day

sanction.

Upon his March 22, 2021, release from the RHU, Graziano was assigned to Unit F/B,

another SCF Unit. A few days later, Morgan approached Graziano and said, “[a]pparently your

grievances and lawsuits against the Swift program are not working in your favor because here you

are again... You know F/B unit is a Swift block like E/A unit and like in E/A, it applies to all the

inmates on the unit, including you.” Jd., § 328.

20

F. Asserted Retaliation Based on Restriction of Visitor’s Telephone & Visiting

Privileges

In March of 2021, DOC personnel removed Ms. DiNardi from Graziano’s approved call

and visitation list despite Graziano’s having had frequent communication and visits with her

without incident for more than twenty-five years . Ms. DiNardi’s removal occurred a few months

after she began communicating with DOC personnel about Graziano’s MH treatment and

disciplinary proceedings. Ms. DiNardi first contacted Biel about Graziano’s MH treatment on

December 19, 2020. After a series of emails, she warned Biel that “she would add A/O Biel to a

list of ‘defendants’ she had on a current court issue if A/O Biel failed to act in accordance with the

law regarding [Graziano’s] MH needs.” Jd., § 334. On January 18, 2021, Ms. DiNardi sent the

DOC Secretary an email “demanding [Graziano’s] immediate release from the RHU and a

thorough investigation into the matter and his ongoing differential and retaliatory treatment and

hardship from staff at SCI-Forest.” Jd, § 335. Ms. DiNardi received a response from the

Secretary’s office explaining that her concerns would be forwarded to SCI-Forest’s administration.

On March 11, 2021, Ms. DiNardi presented the same complaint and demands to Biel via email,

and Biel responded that Graziano can pursue his concerns through the administrative process. Id.,

337.

When Graziano attempted to call Ms. Dinardi eight days later, “the DOC’s phone

automated system told him her telephone number was not on his approved phone list.” Jd., 338.

Graziano then submitted an Inmate Request seeking an explanation and received a response

confirming that Ms. DiNardi had been removed from his approved call list at the behest of UM

Perrin. Around this time, Ms. DiNardi received a letter from Oberlander declaring “that he had

removed her from [Graziano’s] approved visiting list and permanently suspended her visiting

privileges at SCI Forest and all other SCI facilities supposedly because while [Graziano] was

21

housed at SCI Rockview he was found to be in possession of two cell phones that were in the name

of Ms. DiNardi.” Jd., 4 340.

Graziano grieved the phone call and visiting restriction on March 19 and March 22, 2021.

On May 24, 2021, Oberlander reinstated DiNardi as an authorized phone and email

communications contact for Graziano, and he allowed DiNardi to have virtual visits with Graziano

but declined to reinstate “in-person and non-contact visits.” Id., 342, 343.

G. Asserted Retaliation By Way Of Grievance Restriction

Reeher placed Graziano on the maximum (90 days) grievance restriction on April 1, 2021.

Graziano appealed this restriction. Oberlander and final review affirmed the restriction.

H. Asserted Sexual Harassment/Denial of Medical Care/Violation of Medical

Privacy and Confidentiality

While Graziano was in the RHU in June of 2021, he submitted four sick-call slips. On

June 22, 2021, Leslie came to Graziano’s RHU cell in response to these sick-call slips. Graziano

asked Leslie if they could meet outside so Leslie could “physically examine him . . . and” so he

could “disclose his medical issues in private from neighboring prisoners and non-medical staff.”

Id., 4352. Leslie agreed. He then “pretend[ed] to be going to have RHU officers escort [Graziano]

out of the cell, but instead returned to medical|[,] leaving [Graziano] waiting in vain.” Jd., J 353.

Graziano grieved Leslie’s behavior. However, Reeher rejected this grievance because of

Graziano’s grievance restriction.

Leslie returned to Graziano’s RHU cell three days later. Again, Graziano requested they

meet outside of his cell for the same reasons. Leslie then said to him: “Show me your d*** tattoo

and I’Il have you pulled out.” Jd, 9356. Graziano responded, “What the {*** did you just say/?!”

Id., § 357. Leslie replied, “You heard me.” Jd, § 358. To which Graziano asked, “Are you

22

serious?” Id., | 359. Leslie then said, “Put in another sick-call slip when you’re ready to show

me.” Id., | 360.

Graziano grieved this exchange on June 28, 2021. “Reeher rejected this grievance and sent

a copy to the Security Office and the Prison Rape Elimination Act (PREA) Compliance Manager

for initiation of an investigation.” Id., § 361.

Graziano transferred to SCJ-Camp Hill three days later, after which Gross interviewed him

about the incident and then offered him counseling. Graziano accepted this invitation and

participated in the counseling. On August 2, 2021, Security Lt. Mihal also interviewed him about

the interaction with Leslie. Graziano never heard back about the grievance he filed at SCI-Forest

despite his attempts to obtain answers from Reeher and Mihal.

J. Asserted Conspiracy/Retaliatory Interference with Court Access by

Confiscation and Destruction of Legal Property.

In preparation for his transfer to SCI-Camp Hill, Graziano filled three boxes with legal

materials, including the complaint and related documents for the instant action. A couple of weeks

after his July 1, 2021, transfer, Dickey told Graziano he needed to pick up his property, which

consisted of only one of the three boxes of legal work Graziano had packed at SCI-Forest. Further,

“at least a quarter of the legal paperwork [Graziano] packed/shipped in the original box was

missing.” Id., § 376.

Because the legal paperwork concerned three civil suits Graziano had initiated against SCI

personnel, including Dickey, who had worked at SCI-Forest during Graziano’s time there and was

a named Defendant, Graziano concluded that his legal work had gone missing as retaliation. He

therefore asked Dickey if his retaliatory treatment would continue at SCI-Camp Hill, to which

Dicky said, “I mean... if you keep filing paperwork, you know how that goes.” Jd., § 381.

23

Ms. DiNardi subsequently asked a SCI-Forest mailroom employee about the missing

boxes. This employee informed her that the UPS tracking numbers showed that SCI-Camp Hill

had received all three boxes on July 2, 2021, and provided Ms. DiNardi with the boxes’ tracking

numbers. Graziano received the missing two boxes on July 23, 2021; however, his civil rights

complaint in this action along with other legal paperwork he had reported missing were not in

either box. He grieved these missing papers on August 1, 2021; his grievance was rejected at each

level of the grievance process.

After he redrafted the complaint, he gave it and related documents to Miller on

September 8, 2021, to copy and return to him. By September 13, Graziano had yet to receive the □

copies from Miller, prompting Graziano to file a grievance. The next day, Miller informed

Graziano that she had his copies and asked him to sign a grievance withdrawal form. Graziano

inspected the copied documents and noticed that his complaint was missing. Consequently, he

refused to sign her requested withdrawal form.

Graziano grieved the missing copy of his complaint shortly after. The Facility Manager

rejected his grievance, explaining that the records showed that Miller had returned his requested

photocopies and documents. The Final Appeal Decision upheld the Facility Manager’s decision.

On October 14, 2021, Graziano gave R. Miller sixteen legal documents to photocopy. He then

asked for the return of these documents on the October 19, 20, and 21. R. Miller told him that he

would ask CC Miller for these documents. On October 21, UM R. Miller told Graziano to ask the

library for his copies. Graziano argued back, to which R. Miller “told him, ‘Get the f*** away

from me now!’” Id., § 401. Graziano then asked Security to preserve the video of this interaction.

Security declined, explaining to Graziano that they do not provide such a service without a

subpoena.

24

The library sent Graziano a communication on October 27, 2021, informing him that they

complied with his copy request on October 15 and placed the copies in “I-Blk’s mailbox” that day.

Id.,§ 404. Graziano grieved these missing documents on November 3, 2021.

On December 14, 2021, Graziano was informed that “42 pages of legal documents

belonging to him were confiscated and given to Lt. Dickey because the material was considered

‘questionable litigation against Lt. Dickey and other correctional staff’” Jd, 412. Graziano

never recovered 42 pages of his original complaint or sixteen other legal documents.

IV. The Counts

Graziano asserts the following twenty claims:

e Count I: Eighth and Fourteenth Amendment claim for “deliberate indifference to

deprivation of basic human needs” against UM Miller, DSCS Adams, DSFM

Mongelluzzo, Supt. Oberlander, CHCS Smith, LPM Simons, Dr. Camacho, CRNP

Byers, and CRNP Gressel, see id., {J 419-23;

e Count II: First, Eighth, and Fourteenth Amendment claims, a civil rights conspiracy

claim, and § 1985 conspiracy claim against CHCA Smith, DSCS Adams, DSFM

Mongelluzzo, Supt. Oberlander, LPM Simons, Dr. Camacho, CRNP Gressel, and PSS

Cowan, see id., 4] 424-29;

e Count III: First, Eighth, and Fourteenth Amendment claim for “deliberate indifference

to serious medical needs” against CHCA Smith, DSCS Adams, DSFM Mongelluzzo,

Supt. Oberlander, LPM Simons, Dr. Camacho, and CRNP Gressel, see id., 430-33;

¢ Count IV: Eighth Amendment claim for “failure to intervene” against LPM Simons,

Dr. Camacho, and CRNP Gressel, see id., {| 434-37;

e Count V: Eighth and Fourteenth Amendment violations and an ADA violation for

“denial of ADA assessment and accommodations” against CHCA Smith, DSCS

Adams, and Supt. Oberlander, see id., {J 438-41;

e Count VI: Eighth Amendment claim for “excessive force” against Lt. Haggerty, Lt.

Deal, Lt. Dickey, six John Does (“CERT Officers #1-6”), and Supt. Oberlander, see

id., §§| 442-46;

e Count VII: Eighth Amendment claim for “deliberate indifference” against Supt.

Oberlander and Lt. Dickey, see id., 44 447-50;

¢ Count VIII: assault and battery claim under Pennsylvania law against Lt. Haggerty, Lt.

Deal, Lt. Dickey, CERT Officers # 1-6, and Supt. Oberlander, see id., 4 451-53;

25

e Count IX: First, Eighth, and Fourteenth Amendment claim for “retaliation for

exercising right of free speech and court access” against UM Miller, UM Crowther,

CO1 Morgan, HEX Fiscus, Supt. Oberlander, DSCS Adams, and DSFM Mongelluzzo,

see id., Ff 454-56;

e Count X: Eighth and Fourteenth Amendment claim for “due process” against UM

Crowther, CO1 Morgan, HEX Fiscus, Supt. Oberlander, DSCS Adams, DSFM

Mongelluzzo, CCPM Gustafson, CO1 Minich, and John Doe (“CO1 Witness of DC-

141, Part 2D”), see id., {| 457-60;

e Count XI: First, Eighth, and Fourteenth Amendment claim, a civil rights conspiracy

claim, and a § 1985 conspiracy claim against HEX Fiscus, Lt. Bogardus, CO] Minich,

and CO1 Witness of DC-141, Part 2D, see id., □□□ 461-64;

e Count XI: false imprisonment claim against UM Crowther, CO1 Morgan, HEX Fiscus,

Supt. Oberlander, DSCS Adams, DSFM Mongelluzzo, CCPM Gustafson, Lt.

Bogardus, and CO1 Minich, see id., {| 465-67;

e Counts XII and XIV: First Amendment claim for “retaliation for exercising right to

free speech” against UM Perrin, Supt. Oberlander, DSCS Adams, DSFM Mongelluzzo,

CCPM Gustafson, and A/O Biel,’ see id., [§ 468-70;

e Count XV: First and Fourteenth Amendment claim for “retaliation for exercising right

to free speech and court access” against CSA Reeher and Supt. Oberlander, see id.,

475-78;

e Count XVI: Eighth and Fourteenth Amendment claim for “denial of medical care and

deliberate indifference to serious medical needs” against NP Leslie, see id, {J 479-81;

e Count XVII: First, Fourth, and Fourteenth Amendment claim under § 1983 and § 1985

“civil conspiracy to retaliate for exercising right to free speech and court access” claims

against Lt. Dickey, see id., §] 482-85;

e Count XVIII: First, Fourth, and Fourteenth Amendment violations, and § 1983 and

§ 1985 “civil conspiracy to retaliate for exercising right to free speech and court access”

claims against Lt. Dickey, Librarian Criley, UM. R. Miller, and CC Miller, see id., □□

486-90;

e Count XIX: intentional infliction of emotional distress (“ITED”) claim under

Pennsylvania tort law against all Defendants, see id., □□ 491-93; and

e Count XX: negligent infliction of emotional distress (“NIED”) claim under

Pennsylvania tort law against all Defendants, see id., J 494-96.

7 Count XIV adds detail to the allegations asserted in XVII; in all other respects, the counts are the same.

26

V. Discussion

The Centurion Defendants argue that (1) the statute of limitations bars certain claims

against them, (2) Graziano did not exhaust his administrative remedies with respect to his claims

against Centurion, and (3) the counts asserted against them (Counts I, H, II, IV, XIX, and XX)

fail to state a claim for relief.2 DOC Defendants contend that (1) Counts I-V, [X-XII, XIV, XV,

XVIL and XVIII fail to state a claim for relief, (2) Count V fails to demonstrate the DOC

Defendants personal involvement, and (3) Counts VII, XIL XIX, and XX are barred by the

doctrine of sovereign immunity.? The Court will address these arguments in turn.

A. Whether Graziano’s claims are time-barred cannot be determined on the

face of the Complaint. .

Pennsylvania’s two-year statute of limitations for personal injury actions applies to

Graziano’s constitutional and state law claims. See Wilson v. Garcia, 471 U.S. 261, 266-67 (1985);

Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 457 n.9 (3d Cir. 1996) (citing 42 Pa. C.S.

§ 5524). Federal law determines the date of accrual of a claim and, thus, when the statute of

limitations period begins to run. See Montanez v. Sec’y Pennsylvania Dep’t of Corr., 773 □□□□

472, 480 (3d Cir. 2014). A § 1983 claim accrues “when the plaintiff has ‘a complete and present

cause of action,’” or in other words, “when the wrongful act or omission results in damages.”

Dique v. New Jersey State Police, 603 F.3d 181, 185-86 (3d Cir. 2010) (quoting Wallace v. Kato,

549 U.S. 384, 388 (2007)). “The determination of the time at which a claim accrues is an objective

8 The Centurion Defendants also argue that the Complaint does not comply with the pleading standards set forth in

Fed. R. Civ. P. 8(a)(2) because “[t]he claims span several years and are completely unrelated to one another”; and “the

pleading is confusing and difficult, if not impossible, to understand.” ECF No. 71. The Court agrees that the

Complaint presents a prolix screed of largely unrelated grievances against numerous prison officials and staff at

multiple institutions over an extended period. Nevertheless, given Graziano’s pro se status and his allegations

acknowledging mental illness, the Court has read his pleading with a degree of tolerance that it would not have

accorded to a pleading drafted by counsel.

9° DOC Defendants submit that “Graziano at least pleads a colorable claim” at this stage in the litigation in Counts VI,

VIL, XHL and XVI, though XVI is not asserted against DOC Defendants. ECF No. 61, p. 12.

27

inquiry” concerned with “what a reasonable person should have known.” Kach v. Hose, 589 F.3d

626, 634 (3d Cir. 2009). Pennsylvania’s discovery rule will toll the statute of limitation on a

§ 1983 claim until “the plaintiff knows, or reasonably should know, (1) that [the plaintiff] has been

injured, and (2) that [his or her] injury has been caused by another party’s conduct.” Bohus v.

Beloff, 950 F.2d 919, 924 (3d Cir. 1991) (quoting Cathcart v. Keene Indus. Insulation, 324 Pa.

Super. Ct. 123, 471 A.2d 493 (Pa. Super. Ct. 1984)). But “[a] plaintiffs ignorance regarding the

full extent of his injury is irrelevant to the discovery rule’s application, so long as the plaintiff

discovers or should have discovered that he was injured.” Stephens v. Clash, 796 F.3d 281, 288

(3d Cir. 2015).

Under the prison mailbox rule, the Court treats the filing of Graziano’s Complaint as

April 12, 2022, the day he signed his pleading.!° ECF No. 14, p. 11. Absent tolling, the statute of

limitations thus bars Graziano’s claims that accrued earlier than April 12, 2020, two years before

he signed the Complaint. The Centurion Defendants argue this bar extends to every claim asserted

against them because the claims are “based on conditions of [Graziano’s] confinement known to

him on January 24, 2019,” the day he transferred to SCI-Forest. ECF No. 71. Graziano responds

that the limitations period for his claims were tolled while he exhausted the administrative

grievance process, and his “ineffective course of [mental health] treatment was an ongoing course

of conduct.” ECF No. 99, p. 57. The Court agrees for purposes of the motion to dismiss.

10 Pennsylvania applies the prison mailbox rule, which provides that the “date of delivery of [the pleading] by the

[inmate] to the proper prison authority or to a prison mailbox is considered the date of filing of the [pleading].”

Galtoghab v. Doe, 2016 WL 757739, at *3 (W.D. Pa. 2016) (quoting Commonwealth v. Little, 716 A.2d 1287 (Pa.

Super. Ct. 1998).

28

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claaicmc riusane osb jecitniqvuceio rnyc"e wrniet"dhw haar te asopnearbssloheno uhladv e

knowKna.c"5h 8,F9 . 3a6dt3 4.

2. OnlyG razicaonnod'isot fci oofinnnmsee nctlim asa ccured

pritooAr p r1i22l·0 ,2 0.

Grazsia anlol'e gtahBtayiteo arnns Cd am achvoi olhaictsoe nds tiatnusdtt ialotanewa l

rigbhyft asi tloi nagd "dtrwheoesr ss epnsiyncgh oalnopdgh iycsailo cloongdiictailo ns

[Grazwiaaesnx op]e rideuntecoh i iensag rm leyd icianttiaaonkntde o rtulriovucison ngd itions

(cienltle arncnoomu ncementcsel/liplgr hotwtihrniaglcS)etC" iI av-teF a ocrcerbsuetefo dr e

Apri2l0 21E02C.,FN o1.1 ,r,6 8G.r azaivaneotr hsha itms e dicsattoipowpnoe rdkt iwnog

weeakftseh rit sr antsoSfe CrI -Faonrhdeeb s etg,ca onm platioBn yienCrgas m,a cahnoodt, h ers

about this “as early as February, 2019.” Jd., { 62. He also told them that the “early medication

intake and torturous living conditions . . . were upsetting his preexisting [mental health]

conditions,” and repeated these concerns to Camacho “during their tele-med appointments,” the

last of which occurred on September 15, 2020. Id., {[ 62, 65. But Camacho and Byers repeatedly

responded that they had no control over the inmate count, announcements, and medication time

procedures. ECF No. 11, 62. Graziano also alleges that Byers and Camacho’s failure to

“ensure [Graziano] received his psychiatric medication at bedtime . . . or mitigate his torturous

living conditions . . . effectively defeated” the MH treatment plan his PRT introduced him to in

July 2018. Id, 975. Graziano also alleges that Byers and Camacho’s failure to “ensure

[Graziano] received his psychiatric medication at bedtime . . . or mitigate his torturous living

conditions . . . effectively defeated” the MH treatment plan his PRT introduced him to in July

2019. Id.,§ 75. Graziano further stipulates that Byers and Camacho violated his rights when he

learned on January 15, 2020, that his PRT had denied his request to move to the SNU, even

though the SNU had a later medication line time and “MH related programs and groups.” Jd., {

76. Graziano knew of the injuries caused by SCI-Forest’s inmate count, announcements, and

medication line procedures, and Byers and Camacho’s failure to remedy these harms, long

before April 12, 2020. Thus, these claims are time-barred absent equitable tolling. Less clear is

whether Graziano’s claim that Camacho and Gressel “deprived [him] of adequate [mental health]

care” falls within the two-year limitations period. Jd., § 432.

Graziano argues that his claims of “ineffective course of [mental health] treatment was an

ongoing course of conduct that cannot be reduced to a single date because it did not have a

degree of permanence.” ECF No. 99, p.57. The Court agrees.

3]

“The continuing violation doctrine, where applicable, provides an ‘exception to the

normal knew-or-should-have-known accrual date.’” Powell v. Wetzel, 2016 WL 8731445, at *9

(M.D. Pa. Sept. 13, 2016), report and recommendation adopted, 2016 WL 8710470 (M.D. Pa.

Sept. 30, 2016) (quoting Gonzales v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (quoting Harris v.

City of New York, 186 F.3d 243, 248 (2d Cir. 1999))). A “continuing violation is occasioned by

continual unlawful acts, not continual ill effects from an original violation.” Sandutch v.

Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th

Cir. 1981), abrogated on other grounds by Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997)).

“This doctrine operates as a type of tolling and is often applied to address injuries that are the

‘collective result of many non-actionable’ slights.” Patterson v. Strippoli, 639 Fed. Appx. 137,

141 (3d Cir. 2016) (quoting Major Tours, Inc. v. Colorel, 799 F. Supp. 2d 376, 387 n.3 (D.N.J.

2011)). See O’Connor vy. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (noting that the

doctrine applies to hostile-environment claims, which are “designed explicitly to address

situations in which the plaintiff's claim is based on the cumulative effect of a thousand cuts,

rather than on any particular action taken by the defendant”). “Discrete acts that are individually

actionable, however, constitute separate unlawful practices and cannot be aggregated into a

hostile-environment claim.” Powell, 2016 WL 8731445, at *9 (citing Nat? R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113-114 (2002)). And “the continuing violation doctrine does

not apply when the plaintiff ‘is aware of the injury at the time it occurred.’” Montanez, 773 F.3d

at 481 (3d Cir. 2014) (quoting Morganroth & Morganroth v. Norris, McLaughlin & Marcus,

P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003)).

Reading the Complaint liberally, it alleges facts that plausibly support Gressel and

Camacho’s alleged ongoing deliberate indifference to Graziano’s mental health needs. The

32

Complaalilnettgh Ceaastm acrheol'escv oanndbtue cgtia nFn e br2u0a1rw9yh, eG nr azfiirasnto

comploafhi inlsei dvc ionngd itthoii PosRn Tsa, ne dn dseodm etaiftmeheriS se pte1m52b,0e 2r0 ,

telea-pmpeodi nwtimtDehrn .t CamTahCceoh mop.l aalilnettgh Gearste srseelle'cvsoa nndtu ct

begaanft eGrr aziinaJ nuon2 e0 2a0n,ed n duepdoh nit sr antsoSfe CIr- CamHpi lTlh.fae c tual

avermaegnatitsnh seDtse efe ndcanotvsse erv eprlaalur seilbialntyse tdoa fmn ecnehtsea alcl atrhe

andt reatimnecnlttu,hd eivinirgra tpupaoli nantdmr eenstpsot,noh si sesus i ciiddeaaltm ieonntsa,l

headlitahg nanodst erse,a tdmeecnitsB iaosnoesnGd. r aziaalnloe'gsia ctta innobonetss a,ai sad

matotfel rat wh aats,ifr doemC amachdoi'ssc arleltefaegi eldtu orc eh anGgrea zsil ainvoi'n g

condiatnioyof tn hsce,o nduupcowtnh ihcehb asheiscs l aiamgasi Gnrsetsa sneCdla macho

constdiitsucatrceert taset t hheaarc n o ntipnautitonefcgrn o ndAuscs tu.can hy,fu rtahnearl ysis

oft hset aotful tiem itwaitnlieloe tndoas w aaim to rdee velroepceoSdre dMe.c PhveD.ee Puy

OrthopIendc9i.8cF,9s. S , u p2pd4. 5 14,6( 5W .PDa.2. 0 1(2w)h etthhseet ra otfultiem itation

barcreerdct laaiwinam "ssn aoptp afrroemtn htfae c oef t hCeo mpl"ba eicnattuhcseoe u crotu ld

no"td eteer]tm hidena eot[new hitchhce a uosfae c taicocnr uaensddoc, o"u nlod"t c alctuhlea te

expiroaftt h.ie.os .nt aotflu itmei tpaetriioonds. ").

3. WhethaenryG rozafin ao'clsa iamrsse a vbeyedq uaiblte

tolclainnngbo edt e termbiansoeenddt h faec oef t he

Complaint.

Grazsiuabnmoti httashtt e i mhees pegnrti ehvimisen nght eaalcl atcrhle a siumfsfi ciently

toltlhsset aotful tiem itfoartt ihoecnslsea iUmnsd.te hrfee d erParliL siotni gRaetfoirAomcn t

("PL"R)4A,2U .S.§1C 9.9 7ape r,i siosrn eeqru tioer xehda auvsati plraibasldoemn i nistrativ

remedbieefosrc eo memncianl ga wsausiste rctlianibgma sso endh iosr h ecro ndiotfi ons

confineWmheintlthe.e perxihsaosunusecatrhds m inistrattihsvete a otrflue itmmeei dtiaetsi,o ns

itso llWeids.ni veF.wi sskc8ih5 eF7r. ,13 5d12 5,(8 d3 C i2r0.1 S7e)ae.l Csaor vtP.ee rn nsylvania

Dept. of Corrections, 2008 WL 5250433, at *11 (E.D. Pa. Dec. 17, 2008) (“[T]he statute of

limitations begins to run only when [a] plaintiff has exhausted his administrative remedies under

the PLRA.”). A plaintiff is not deemed to have exhausted his administrative remedies until a final

appeal decision on his grievance. See Fennell vy. Cambria Cty. Prison, 607 Fed. Appx. 145, 149

(3d Cir. 2015) (“proper exhaustion” means a prisoner's completion of the administrative review

process).

In his Complaint, Graziano avers that “[d]uring his incarceration at SCI Forest, [he] filed

over one hundred (100) inmate grievances relating to issues which adversely affected his MH

and defeated his MH treatment plan.” ECF No. 11,961. See id.,n.4. He further maintains that

he “exhausted his administrative remedies with respect to all claims and defendants.” /d., § 418.

Centurion Defendants retort that he “never exhausted administrative remedies as to Defendant

Centurion” and the sole grievance Graziano filed pertaining to Byers, Camacho, and Gressel’s

conduct does not extend the accrual date enough to save the claims. ECF No. 100, p. 2.

Whether exhaustion of his administrative remedies sufficiently tolls his time-barred claims

cannot be known from the record properly before the Court at this time.

Centurion Defendants maintain that Graziano’s grievance record belies his contention

that exhaustion saves his claims. They append to their motion allegedly “full and complete

copies of any and all grievances” Graziano fully exhausted, as well as “a spreadsheet outlining

[Graziano’s] extensive grievance history.” ECF No. 71, p. 9. Notably absent from this record,

however, is a sworn declaration certifying that the documents constitute a complete and accurate

record of Graziano’s grievance proceedings. See Sims v. Wexford Health Sources, 2015 WL

4041771, at *5 (W.D. Pa. July 1, 2015), affd, 635 Fed. Appx. 16 (3d Cir. 2015). “Absent such

authentication, this Court cannot rely on such documents to definitively conclude that [Graziano]

34

has failed to exhaust his administrative remedies as to the claims raised against” Centurion; or

that only one of the over one-hundred grievances Graziano allegedly filed could toll his claims

against Byers, Camacho, and Gressel. /d. Thus, the Court cannot say as a matter of law that the

time-barred claims against Centurion, Byers, Camacho, and Gressel are not saved by equitable

tolling at this juncture. As such, the face of the Complaint does not permit dismissal of any of

Graziano’s claims against Centurion Defendants based on the statute of limitations. This

holding, however, does not preclude Defendants from raising their statute of limitations

affirmative defense at a later stage of this case based on a more complete record.

B. Whether Graziano exhausted his claims against Centurion cannot be

determined based on the record presently before the Court.

Centurion Defendants next submit that the claims against Centurion must be dismissed

because Graziano did not exhaust his administrative remedies. “The Prison Litigation Reform

Act of 1995 (PLRA) requires a prisoner to exhaust any available administrative remedies before

challenging prison conditions in federal court.” Woodford v. Ngo, 548 U.S. 81, 81 (2006).

“Exhaustion is considered separately for each claim brought by an inmate, and if a complaint

includes both exhausted and unexhausted claims, courts will dismiss the latter but not the

former.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Jones v. Bock, 549 U.S.

199, 219-20 (2007)). The failure of an inmate to exhaust available administrative remedies is an

affirmative defense that the defendant must plead and prove. See Jones, 549 U.S. at 216. And

“Ti]n appropriate cases, failure to exhaust may be raised as the basis for a motion to dismiss.”

Brown v. Croak, 312 F.3d 109, 111 Gd Cir. 2002) (citing Ray v. Kertes, 285 F.3d 287, 295 n.8

(3rd Cir. 2002).

The Supreme Court has held that the PLRA requires “proper exhaustion,” meaning

“complet[ing] the administrative review process in accordance with the applicable procedural

35

rules,” Woodford, 548 U.S. at 88, which are supplied by the individual prisons, Jones, 549 U.S.

at 218 (“[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper

exhaustion.”). To determine whether exhaustion was proper, the court “evaluat[es] compliance

with the prison’s specific grievance procedures,” which in Pennsylvania’s state prison system are

set out in DOC Policy DC-ADM 804, “and analyz[es] whether the procedures were ‘available’ to

the inmate.” Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018) (quoting Drippe v.

Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)) (citing Small v. Camden County, 728 F.3d 265,

269, 271 (3d Cir. 2013); 42 U.S.C. § 1997e(a)). The purpose of this stringent application of the

exhaustion requirement is to alert the prison officials to a problem and allow the officials to □

remedy the problem before it is litigated in court; it is “not to provide personal notice to a

particular official that he may be sued.” Williams v. Beard, 482 F.3d 637, 640 (3d. Cir. 2007)

(quoting Jones, 549 U.S. at 219 (quoting Johnson v. Johnson, 385 F.3d 503, 522 (Sth Cir.

2004))).

Proper exhaustion also applies to the substance of the grievance. Section 11(d) of DC-

ADM 804 mandates that the inmate “shall identify individuals directly involved in the events.”

Green vy. Maxa, 2020 WL 1249205, at *5 (W.D. Pa. Mar. 16, 2020). See also Jackson v. Carter,

813 Fed. Appx. 820, 823 (3d Cir. 2020). Because the identification requirement is mandatory, “in

the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly identify a

defendant constitute[s] a failure to properly exhaust his administrative remedies under the PLRA.”

Williams y. Pa. Dep’t of Corr., 146 Fed. Appx. 554, 557 (3d Cir. 2005) (failure to identify

defendants in grievances “means that [plaintiff] failed to exhaust his administrative remedies in

accordance with Pennsylvania's grievance process and the PLRA”).

36

CentuDreifeonnd aarngttushe Ga rta zidainndoo et x hahuirsset m edfoirte hsce l aims

alleaggeadiC nesntt uriohned ibndeo nctaa muCese en tuirnai nooyfnh igsr ievaTnhcimesas y.

bet ruheo;w eDveefern,d anftasit'lao uu rteh entthgierc iaetvreae ncpcorero dh tihbCeio tufrsro tm

relyointn hged soec umteocn otnsfi trhmeJ? iOrs itAicocno.r dtihnCego lucyra,tn hnooltad sa

mattoeflr a twh Garta zfaiialnteoeod x hahuiassdt m inirsetmreawdtiiirtevehses ptehoci ctsl aims

agaiCnesntt uIr Iion_

C.E ighAtmhe ndmCelnati ms

TheC omplaapipnettar oas l lEeiggehA tmhe ndmceonntd iotfci oonnfisn eamnedn t

delibienrdaitffeec rleanaicgmeas i DnOsCat n Cde ntuDreifeonnd anDtOsCD. e fendaanrtgsu e

thtahtCe o mplfaaitinolst st aact oen diotfci oonnfisn ecmleabniatms oentd h lei vcionngd itions

atS CI-FSoCruFen sitat,nst d,h RHU e. DOCD efendaalnsstuosb tmhitatht Ce o mplfaaitinolt s

assaenEr itg Ahmtehn dmdeenlti bienrdaitffeet rose enrcimeoe udsin ceaecldl sa biams oenhd i s

menthaelat lrteha tanmdOe bnetr lanSdmeirant,dhA ,d amsa llefagieldtu orp er ovGirdaez iano

witahc commodfoartt hileoi nvcsio nngd itCieonntsuD.re ifeonnd lainktesaw sissteehr tatht e

Complfaaitinsolth s o hwo twh etirre aotmfGe rnatz sis aenroim'oe unhste aalnl etehmd asn ifested

delibienrdaitffeeT rheCeno cuer.t .a.g rees

1.ThCeo mplfaailitsno st t aatnEe ighAtmhe ndmceondnitt ions

ofc onfinecmleanaitgm a iannsDytO Co rC enturion

Defendant.

ThEei gAhmtehn dmpernoth'isob fci rtuiaeonuldnn uspuuanli sihmmepnots es

constiltiumtiitooannatap ilro inssoc noenrd'iostfc i oonnfisn eSmeeRenh to.n vd.e sC hapman,

11T hCeo unrott tehsta hto uGgrha zniaamnCoee sn tuarsai D oenfe ndtahnfaetc ,t uaalll egdaotn iomoten nst ion

Centuraintodhn oe n lcyou tnhtaaspt p teboae rb rouagghatiC nesntt uarrCieoo unnXIXt sa nXXd, w hiacrhbe r ought

agaianlDslet fe ndaAnntadssd . i scubseslteohdwe ,cs lea airmdesi smiosnts hmeeed r iAtdsd.i titoton haeelx ltye,n t

Graziinatneotn oad sssa enroytft hceo nstictluataiigmoasni Canelsn tt uCreinotnuD,re ifeonnd caonrrtesac rtgluye

thGarta zdioaennsoop tl ethaadCt e ntuhra"idao onnffi cicaolr poproaltoiircco uyns troems ulitnan[" i" nagl]l eged

constidteuptriiovnEaaCtlFi No7on1.p., 1." 6 ( citingCNaamtdaCeloneu vnC.tyo rFra.c i3l1iF8ty. ,35 d7( 53 Cdi r.

200M3o)n;ev lD.le ' pot Sf o Sce.r Ovfcs i.oty Nf e wYo rk4,3 U6. S6.5( 81 978).

452 U.S. 337 (1981); Graham v. Connor, 490 U.S. 386 (1989); Wilson V. Seiter, 501 U.S. 294

(1991). “[A] prison official violates the Eighth Amendment only when two requirements are

met.” Giblom v. Gillipsie, 435 Fed. Appx. 165, 168 (3d Cir. 2011) (quoting Farmer v. Brennan,

511 U.S. 825, 834 (1994)). First, the plaintiff must allege a deprivation that is “objectively,

sufficiently serious.” Beers-Capitol, 256 F.3d at 125 (quoting Farmer v. Brennan, 511 U.S. 825,

834 (1994)) (quotation marks and citations omitted). The objective component is narrowly

defined: only “extreme deprivations” are sufficient to make out an Eighth Amendment claim.

Hudson v. McMillian, 503 U.S. 1, 9 (1992). A prisoner must show that the condition, either

alone or in combination with other conditions, deprived him of “the minimal civilized measure

of life's necessities,” or at least a “single, identifiable human need.” Wilson v. Seiter, 501 U.S.

294, 304 (1991) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). These needs include

“food, clothing, shelter, sanitation, medical care and personal safety.” Griffin v. Vaughn, 112

F.3d 703, 709 (3d Cir.1997). “[A] totality of the circumstances test must be applied to determine

whether the conditions of confinement constitute cruel and unusual punishment.” Tillery v.

Owens, 907 F.2d 418, 427 (3d Cir. 1990).

Second, the plaintiff must show that the prison official “subjectively acted with a

sufficiently culpable state of mind, i.e., deliberate indifference.” Tillman v. Lebanon County

Correctional Facility, 221 F.3d 410, 418 (3d Cir. 2000). “This subjective component is also

narrowly construed.” Henry v. Overmyer, 2013 WL 3177746, at *2 (W.D. Pa. June 24, 2013). A

prison official’s conduct violates the Eighth Amendment “only if he knows that the inmate| |

face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable

measures to abate it.” Jd. (quoting Farmer, 511 U.S. at 847) (alterations in original).

38

Graziano alleges that SCI-Forest’s “protractive cell lighting, successive cell intercom

announcements and facility dispensary schedules which prevented [him] from receiving his

psychiatric medications at their prescribed time” amounts to unconstitutional living conditions.

ECF No. 11, 420. The Complaint avers that the “bright cell count lights,” “line movements and

unit announcements” “deprived [him] of peace, equanimity and sleep.” ECF No. 11, 99 53, 52,

54. Additionally, Graziano’s “early medication intake . . . disrupted his equilibrium and

aggravated his preexisting anxiety and depressive disorders.” Jd., 150. These conditions allegedly

caused Graziano’s “decompensation and sleep deprivation,” which led to his “psychological and

physiological deterioration.” Jd., § 58, 59, 54. Graziano further avers that his inability to obtain

ADA accommodations for the inmate count, announcement, and medication line procedures

violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Jd., 439.

Graziano fails to allege an “extreme deprivation of life’s basic necessities” as

contemplated by the Eighth Amendment. Though plausibly annoying, the three brief periods of

night time light fall far short of the “bright, constant illumination” the Third Circuit has found

violative of the Eighth Amendment. Mammana y. Fed. Bureau of Prisons, 934 F.3d 368, 374

(3d Cir. 2019) (quoting Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir. 1996)) (24 hours a day

of “bright, constant illumination causing ‘grave sleeping problems and other mental and

psychological problems’ can establish an Eighth Amendment deprivation”). See Molina v.

Harry, 2019 WL 3958422, at *3 (M.D. Pa. Aug. 22, 2019) (Plaintiff's assertion of “large bright

lights directly in front of his bed ... [that] shone into his cell (24) hours per day” stated an Eighth

Amendment deprivation, especially when “mutually enforced” by Plaintiffs noise complaints)

(citations omitted).!? The allegations also do not demonstrate that the announcements

12 Nevertheless, “[clontinuous lighting has been held to be permissible and reasonable in the face of legitimate

penological justifications, like the need for security and the need to monitor prisoners.” Huertas v. Sec'y Pennsylvania

39

constituted noise “so excessive and pervasive that it posed a serious risk of injury to” him.

Whitney v. Wetzel, 649 Fed. Appx. 123, 127 (3d Cir. 2016). See id. (Plaintiff's allegation that he

“was forced to live with mentally ill inmates” who “created intolerable noise” by “banging on

toilets and sinks” did not meet the objective component of an Eighth Amendment claim).

Moreover, because the announcements ceased by 9 PM, the noise did not “mutually enforce[e]”

the effects of the lights. Wilson, 501 U.S. at 304 (“Some conditions of confinement may

establish an Eighth Amendment violation ‘in combination’ when each would not do so alone, but

only when they have a mutually enforcing effect that produces the deprivation of a single,

identifiable human need.”). And the early medication line time does not equate to a deprivation

of medical care. Accordingly, the Complaint fails to establish that his conditions of confinement

while in general population, and his inability to receive accommodations for these conditions,

amount to a violation of the Eighth Amendment. !?

Graziano further avers that his placement in the SCF unit violated his Eighth amendment

rights because he did not consent to the program and “SCF lacked MH provisions to protect [his]

MH status.” ECF No. 11, § 455. Additionally, he maintains that his placement in the RHU

constituted cruel and unusual punishment “[Mental Health] status placed him at heightened risk of

harm when held in solitary confinement.” Jd., § 458. See id., ] 462.

Dep't of Corr., 533 Fed. Appx. 64, 68 (3d Cir. 2013) (citing O'Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir.1987)

and Turner v. Safley, 482 U.S. 78, 89 (1987)).

3 DOC Defendants additionally contend that Count V fails to allege the personal involvement of Adams, Oberlander,

and Smith, which is a requirement of a § 1983 claim. Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21,

2013) (It is axiomatic that liability under § 1983 requires a defendant's “personal involvement” in the deprivation of

a constitutional right.). The Complaint appears to premise Oberlander and Adams’ personal involvement solely on

their supervisory roles, and thus fails to demonstrate their personal involvement. Rode v. Dellarciprete, 845 F.2d

1195, 1207 Gd Cir. 1998) (Like that of any defendant, a supervisor’s liability must be based on “personal involvement

in the alleged wrongs.”). However, Graziano’s assertion that Smith did not assess his ADA accommodation request

prior to submitting it to the appropriate DOC office, as was required by her position as the CHCA, suffices to

demonstrate her personal involvement at this early stage in the proceedings.

40

These allegations do not plead an objectively serious deprivation. Graziano’s conclusory

assertion that the SCF unit lacks mental health care does not constitute a deprivation of medical

care, and there is no other indication that the SCF program deprived him of “the minimal

civilized measure of life’s necessities.” Wilson, 501 U.S. at 304. His conclusory allegation of

the RHU’s unconstitutional conditions similarly fails to demonstrate that his forty-five days in

disciplinary custody “violate[d] civilized standards of humanity and decency.” Griffin v.

Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (citing Young v. Quinlan, 960 F.2d 351, 359 (3d

Cir.1992)). Cf Palakovic v. Wetzel, 854 F.3d 209, 226 (3d Cir. 2017). As such, the Court

dismisses the Eighth Amendment conditions of confinement claims asserted in Counts I, III, IX,

X, XI pursuant to Rule 12(b)(6) and in Count V pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b).

2. The Complaint fails to allege an Eighth Amendment deliberate

indifference to serious medical needs claim against any DOC

or Centurion Defendant.

“TD ]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary

and wanton infliction of pain proscribed by the Eighth Amendment.” See Estelle v. Gamble, 429

U.S. 97 (1976)) (internal quotation omitted). To establish a violation of his constitutional right to □

adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical

need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need.

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a “failure

to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby

Twp., 946 F.2d 1017, 1023 3d Cir. 1991). Deliberate indifference is manifested by an intentional

refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed

medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of

41

injury, Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of

resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

The Complaint’s allegations concerning the nature and severity of Graziano’s mental

health satisfy the “serious medical need” element of his Eighth Amendment claim. Accordingly,

only the second prong of the deliberate indifference test is at issue here-whether the treatment of

Graziano’s mental health manifested a deliberate indifference to his serious medical need.

It is well-settled that “an inmate’s dissatisfaction with a course of medical treatment,

standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL

3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional

claims because “the exercise by a doctor of his professional judgment is never deliberate

indifference.” Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v.

Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises

professional judgment his behavior will not violate a prisoner’s constitutional rights.”)).

“Therefore, where a dispute in essence entails nothing more than a disagreement between an

inmate and doctors over alternate treatment plans, the inmate’s complaint will fail as a

constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo,

339 Fed. Appx. 132 (3d Cir. 2009) (characterizing a dispute over pain medication as the type of

“disagreement over the exact contours of [plaintiffs] medical treatment” that does not violate the

constitution)).

Similarly, “the mere misdiagnosis of a condition or medical need, or negligent treatment

provided for a condition, is not actionable as an Eighth Amendment claim because medical

malpractice standing alone is not a constitutional violation.” Jd. (quoting Estelle, 429 U.S. at 106).

“Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of

42

prisoners.” Durmer, 991 F.2d at 67 (citations omitted). And the Third Circuit has made clear that

“there is a critical distinction ‘between cases where the complaint alleges a complete denial of

medical care and those alleging inadequate medical treatment.’” Wisniewski v. Frommer, 751 Fed.

Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (quoting Pearson v. Prison Health Serv., 850 F.3d 526,

535 (3d Cir. 2017)). Thus, “courts have consistently rejected Eighth Amendment claims where

an inmate has received some level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3

(W.D. Pa. Aug. 15, 2018) (quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13,

2000)).

Here, Graziano submits that Defendants Simons, Camacho, Gressel, Smith, Adams,

Mongelluzzo, and Oberlander “deprive[d] [him] of adequate MH Care,” ECF No. 11, 431, and

Simons, Camacho, and Gressel “faile[d] to intervene to stop [his] psychological decompensation

upon learning from” Graziano that his living conditions “were preventing him from taking his

psychiatric medication at the prescribed time and exacerbating his preexisting MH conditions,”

ECF No. 11, § 435. He further asserts that these “[D]efendants were empowered to provide

input, recommendations and referrals concerning [his] mental health needs,” but “refused [his]

request” to delay his medication line time and transfer him into the SNU, in violation of his

Eighth Amendment rights. /d., { 436.

The Complaint is replete with evidence of Graziano’s continuous and robust mental

health care and treatment. Graziano states that his mental health care resumed upon his transfer

to SCI-Forest, and his anti-depressants continued to be prescribed. He asserts that while at SCI-

Forest, he “met with psychology staff virtually every 30 days, and psychiatric staff virtually

every 90 days in accordance with DOC Policy,” id., § 72, and “during Jan. and July 2019,” met

with the PRT approximately ten times, id., 73. After making numerous complaints to his

43

medical team, Graziano’s PRT designed a new Individual Recovery Plan aimed at treating his

depressive disorder, anxiety disorder, and trauma, as well as managing his sleep and medication.

Defendants communicated Graziano’s suicidal ideations to one and other and scheduled

numerous follow-up appointments with Graziano, though he refused to attend some of them. See

e.g., ECF No. 11, § 93, 107, 156. Graziano additionally received near continuous prescriptions

for Remeron, Cymbalta, Voltaren, and Vistaril. In fact, Defendants stopped a medication only

when responding to Graziano’s complaints of a medication’s side effects or ineffectiveness and

started him on a different medication shortly after he had weaned off the other one.

The Complaint’s detailed documentation of Graziano’s mental health care and treatment

throughout his incarceration at SCI-Forest belies his deliberate indifference claims. Graziano

makes clear that he took issue with the mental health treatment he received. But his

“disagreement with prison personnel over the exercise of medical judgment does not state a

claim for relief.” Young v. Quinlan, 960 F.2d 351, 358 n.18 (3d Cir. 1992). See Payo, 2022 WL

912588, at *8 (“Without more, however, his disagreement does not support an Eighth

Amendment claim or demonstrate deliberate indifference to his serious medical needs.). Indeed,

Courts have routinely found that regular assessment, treatment, and care like that provided in this

case do not support a finding of deliberate indifference under the Eighth Amendment. See, e.g.,

Payo v. Stechschulte, 2022 WL 912588, at *7 (W.D. Pa. Mar. 29, 2022) (No deliberate

indifference found where it was undisputed that “Plaintiff was seen, evaluated and treated on a

regular basis and was prescribed medication as medically needed.”); Gause, 339 Fed. Appx. at

135 (Deliberate indifference standard unmet where “[Plaintiff’s] medical records show that he

was seen many times by the prison medical staff and received medicine, physical therapy, and

even treatment outside of the prison,” thus establishing that “[Plaintiff] received medical care.”).

4A

The consistent medical treatment provided to Graziano also hinders the success of the

deliberate indifference claims asserted against non-medical prison officials. “[A]bsent a reason

to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not

treating) a prisoner, a non-medical prison official ... will not be chargeable with the Eighth

Amendment scienter requirement of deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236

(3d Cir. 2004). And where, like here, “a prisoner is under the care of medical experts,” “a non-

medical prison official will generally be justified in believing that the prisoner is in capable

hands.” Jd. Accordingly, Counts III and IV fail to state a claim of deliberate indifference to

Graziano’s serious medical needs, and the Court dismisses these claims with prejudice pursuant

to Rule 12(b)(6).

D. First Amendment Claims

The Complaint appears to assert First Amendment retaliation, free speech, and access to

court claims against DOC and Centurion Defendants. DOC Defendants insist that the access to

court claims fail because Graziano has not alleged an injury and that he has no constitutional

right to visitation privileges and short-term grievance restrictions. The Court addresses these

arguments and screens the remaining First Amendment claims in accordance with 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b).

1. Retaliation Claims

To state a retaliation claim, Graziano must plausibly plead that (1) he engaged in □

protected activity; (2) officials took an adverse action against the plaintiff; and (3) “a causal link”

exists “between the exercise of his constitutional rights and the adverse action taken against

him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 F.3d

220, 225 (3d Cir. 2000) (alteration in original)); Mitchell v. Horn, 318 F.3d 523, 530 Cir.

45

2003). See also Golden v. Perrin, 2022 WL 2791186, at *4—-5 (W.D. Pa. July 15, 2022). “[A]n

otherwise legitimate and constitutional government act can become unconstitutional when an

individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment

speech.” Anderson v. Davilla, 125 F.3d 148, 161 (3d Cir. 1997).

When analyzing whether an inmate engaged in constitutionally protected activity, courts

should be mindful that “[l]awful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction justified by the considerations underlying

our penal system.” Jones vy. North Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119, 125

(1977) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). Still, “prison inmates retain those

constitutional rights that are not inconsistent with their status as prisoners or with the legitimate

penological objectives of the corrections system.” White v. Napoleon, 897 F.2d 103, 112 (3d Cir.

1990) (citing Turner v. Safley, 482 U.S. 78 (1987)); Pell v. Procunier, 477 U.S. 817, 822 (1974).

An “adverse action” is one that would “deter a person of ordinary firmness” from

exercising his First Amendment rights. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)

(quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)). This is an objective inquiry.

See Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). “Government actions, which standing

alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in

substantial part by a desire to punish an individual for exercise of a constitutional right.” Jd. at

224 (internal quotation marks and citation omitted). The retaliatory conduct “need not be great

in order to be actionable” but must be “more than de minimus.” McKee v. Hart, 436 F.3d 165,

170 (3d Cir. 2006) (internal quotations omitted).

Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal

proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of

46

antagonism coupled with timing that suggests a causal link. /d. (citing Lauren W. ex rel. Jean W.

v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). “These are not the exclusive ways to show

causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.”

Farrell yv. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting Kachmar v.

SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)). With these principles in mind, the

Court will examine each of Graziano’s retaliation claims. -

a. The retaliation claim asserted in Count IX against UM Miller,

UM Crowther, CO1 Morgan, HEX Fiscus, Supt. Oberlander,

DSCS Adams, and DSFM Mongelluzzo must be dismissed.

Count IX avers that Miller, Crowther, Morgan, Fiscus, Oberlander, Adams, and

Mongelluzzo “subject[ed] [Graziano] to SCF . . . to punish [him] for trying to undermine the

legitimacy and application of SCF and to deter his efforts” because they knew he did not want to

participate in the program and that it lacked mental health provisions. ECF No. 11, § 455. The

allegations suffice to show a constitutionally protected activity but fail to allege the second and

third elements of a retaliation claim.

According to the Complaint, Graziano challenged the legality of the SCF program and his

involuntary placement in the program in grievances and a lawsuit. The filing of a lawsuit and

grievances represents protected activity within the scope of the first element of a retaliation

claim. See e.g., Watson v. Rozum, 834 F.3d 417, 422-23 (3d Cir. 2016) (quoting Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003)). But placing Graziano in an SCF unit does not

represent an adverse consequence. Per the allegations, SCF units are merely general population

housing units that adhere to an alternative discipline scheme. Moreover, “SCF applied to all the

residential inmates on [Graziano’s] unit without exceptions.” As such, his required participation

in SCF did not subject him to “a disadvantageous change in housing assignment, placement in

47

restricted housing or restrictive confinement . . . or a detrimental change in program level.”

Watson, 834 F.3d 417, 423 (Plaintiff suffered an adverse consequence when Defendant charged

him with a Class I misconduct because “Class J misconducts subject inmates to a range of

sanctions, including a disadvantageous change in housing assignment, placement in restricted

housing or restrictive confinement for up to 90 days, or a detrimental change in program level.”).

Even if he had alleged an adverse act, no plausible basis exists for inferring any

Defendant’s retaliatory motive. The complaint does not specify whether any of these Defendants

are named in the grievances challenging the SCF, and the lawsuit is initiated against the DOC.

Further, the Complaint makes clear that Defendants’ implementation of the SCF program was at

the behest of the DOC. Accordingly, the Court perceives no basis upon which to infer a causal

connection, and thus, to permit this claim for retaliation to proceed.

The pleading also does not state a retaliation claim based on his placement in the RHU.

Graziano appears to aver that Morgan issued him a false misconduct for his legal objections to

the SCF program and refusal to accept the Swift. Under a liberal reading of the Complaint,

Graziano again meets the first element of a retaliation claim. At this stage in the proceedings,

Morgan’s issuance of misconduct D485627 constitutes an adverse action because Graziano spent

45 days in the RHU before Oberlander dismissed the misconduct. See Watson, 834 F.3d 417,

423; Smith v. Mensinger, 293 F.3d 641, 653-654 (3d Cir. 2002) (fabricated misconduct charge

against inmate sufficiently deterring); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)

(several months in disciplinary confinement would deter a reasonably firm prisoner from

exercising First Amendment rights).

However, it is mere speculation on Graziano’s part that Morgan and Fiscus’ conduct was

in retaliation for his legal filings. Morgan issued Graziano the Swift four months after he told

48

Morgan about his lawsuit. This time-lapse, without more, does not suggest that Morgan had a

retaliatory motive. See Williams v. Nyberg, 2023 WL 4628378, at *6 (W.D. Pa. May 10, 2023),

report and recommendation adopted, 2023 WL 4628402 (W.D. Pa. July 19, 2023) (citing

Escanio v. United Parcel Serv., 538 Fed. Appx 195, 200 (3d Cir. 2013) (Court of Appeals for the

Third Circuit has concluded that a period of roughly three weeks between the protected activity

and the adverse action, without more, was not unduly suggestive of retaliatory motive). See also

Williams v. Pennsylvania Dep't of Corr., 2020 WL 5237606, at *9 (W.D. Pa. Aug. 14, 2020),

report and recommendation adopted, 2020 WL 5231417 (W.D. Pa. Sept. 2, 2020), 2020 WL

583983 (noting that periods of seventeen days, three weeks, seven weeks, and between one and

three months had each been deemed insufficient to establish causation) (citing Burt v. Lane, 2017

WL 4681807, at *9-10 (M.D. Pa. Apr. 4, 2017)). Fiscus’ comment likewise suggests only that

sanctions for a Swift are less severe than sanctions for a misconduct, and no other circumstantial

evidence supports such a motive for her allegedly improper hearing and unsupported guilty

finding and consequential sanction. 4

b. Count XIV states a First Amendment retaliation claim against

Oberlander, but fails against Perrin, Adams, Mongelluzzo,

Gustafson, and Biel.

Next, Graziano maintains that Perrin, Oberlander, Adams, Mongelluzzo, Gustafson, and

Biel removed Ms. DiNardi from his approved phone call and visiting lists in retaliation for the

complaints against them that he relayed through DiNardi. In Count XIII, Graziano insists that

Defendants caused DiNardi to be removed from his phone list because of “his grievances against

the defendants through [Ms. DiNardi], who at the time acted as [his] power of attorney and

advocate.” ECF No. 11, § 469. Count XIV similarly declares that Defendants “voted to

The allegations also fail to demonstrate Oberlander, Adams, and Mongelluzzo’s personal involvement in his

placement in the SCF and RHU.

49

terminat[e] [Graziano’s] visiting privileges with [Ms. DiNardi]” because he had her “report his

unlawful RHU confinement by Hex Fiscus and his grievances about” his “inadequate MH care

... to Secretary Wetzel, Supt. Oberlander and local elected government officials, and” because

she “threatened A/O Biel with court action if [Biel] failed to properly address [his] issues.” ECF

No. 11, § 472. Graziano’s allegation that through Ms. DiNardi he informed these Defendants of

the substance of his grievances and intention to take legal action satisfies the first element of the

retaliation claim. Cf Hill v. Barnacle, 509 F. Supp. 3d 380 (W.D. Pa. 2020) (wife of inmate had

constitutionally protected interest in “the November 5, 2011 letter in which [she] expressed

concerns to a number of people about the treatment her husband was receiving”). And

termination of his communication privileges with DiNardi for roughly two and a half months and

permanently in-person visiting privileges may constitute an adverse act. See id. (inmate’s wife

suffered an adverse act when her visiting privileges were suspended); cf Cordero v. Warren, 612

Fed. Appx. 650, 653 (3d Cir. 2015) (“A fact finder could similarly conclude that a person of

ordinary firmness would be deterred by the prospect of losing visitation with a close family

member for six months or more.”) (emphasis added). But see Bullock v. Buck, 2014 WL

4925275, at *6 (W.D. Pa. Sept. 30, 2014) (“sixty days without the ability to make phone calls or

buy things from the commissary” was not an adverse action). But Graziano has not alleged facts

sufficient to support the personal involvement of Adams, Mongelluzzo, Gustafson, or Biel in the

adverse act. A defendant in a § 1983 action “must have personal involvement in the alleged

wrongs to be liable and cannot be held responsible for a constitutional violation which he or she

neither participated in nor approved.” Saisi v. Murray, 822 Fed. Appx. 47, 48 (3d Cir. 2020)

(quoting Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007)). It is the plaintiff's burden to

“show that each and every defendant was ‘personal[ly] involve[d]’ in depriving him of his

50

rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. Sept. 14, 2006) (quoting Evancho vy.

Fischer, 423 F.3d 347, 353 d Cir. 2006)). Allegations that broadly implicate multiple

defendants without delineating individual conduct are legally insufficient. See Van Tassel v.

Piccione, 608 Fed. Appx. 66, 69-70 (3d Cir. 2015). Graziano avers that UM Perrin caused

DiNardi to be removed from his approved contacts list, and the Complaint infers that Oberlander

caused DiNardi to be removed from his visitor list. No other Defendant’s personal involvement

in these acts can be inferred from the allegations.

However, the claim against Perrin nevertheless fails because the allegations do not

support a causal connection between Graziano’s protected conduct and Perrin’s alleged adverse

act. Graziano avers that DiNardi’s removal from his call sheet occurred because “[he] was

relaying his grievances against the defendants through [DiNardi,].” /d., 469. But the allegations

do not specify when Perrin learned of Graziano’s grievances and lawsuit. The Complaint states

only that DiNardi exchanged emails with Biel, and “emailed John Wetzel and other correctional

staff at SCI Forest” about Graziano’s allegedly unlawful treatment. These general assertions do

not raise a plausible inference that Perrin knew of these communications, the timing of any such

knowledge, or what grievances allegedly motivated Perrin’s alleged adverse conduct. Count

XIII thus fails to allege a viable cause of action for retaliation against Perrin, Adams,

Mongelluzzo, Gustafson, or Biel. Accordingly, the Court will dismiss this claim pursuant to 28

U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

The allegations of Count XII, however, are minimally adequate to support a retaliation □

claim against Oberlander. Graziano avers that Oberlander informed Ms. DiNardi “that he had

removed her from [Graziano’s| approved visiting list and permanently suspended her visiting

privileges” and that, in contrast to his allegations against the other Defendants, Graziano avers

5]

that DiNardi communicated his grievances and legal filings to Oberlander. Jd, 4 340.!> And

because Oberlander appears to have revoked DiNardi’s visiting privileges shortly thereafter, a

causal connection between the constitutionally protected conduct and Oberlander’s adverse

action can be inferred. Thus, the retaliation claim asserted in Count XIV may proceed against

Oberlander.'®

c. Count XV fails to state a retaliation claim against CSA Reeher

and Supt. Oberlander based on Graziano’s exercise of his First

and Fourteenth Amendment rights.

Lastly, Graziano alleges that Reeher and Oberlander placed him on the maximum

grievance restriction (90 days) “without justification” in retaliation for exercising his right to free

speech and court access. According to the Complaint, Reeher placed him on this restriction in

accordance with DOC policy because his grievances were found to be frivolous. Graziano

disputed Reeher’s characterization of his grievance and appealed Reeher’s restriction.

Oberlander denied his appeal. Graziano alleges that “Reeher placed [him] on grievance

restriction to silence him in retaliation for his filing of grievances threatening to bring civil action

against SCI Forest staff.” Id., 4 348.

Graziano’s grievance filings and threats of litigation are protected conduct. However,

Oberlander’s denial of Graziano’s grievance restriction appeal does not constitute an adverse act.

_ See Owens v. Coleman, 629 Fed. Appx. 163, 167 (3d Cir. 2015) (holding that the “denial of

grievances is not an ‘adverse action’ for retaliation purposes”). This claim against Oberlander

will therefore be dismissed. In contrast, Reeher’s placement of Graziano “on the maximum

15 Tn the Complaint, Graziano adds that. Oberlander explained to DiNardi that the reason for her removal was that

Graziano had been found with two of her cell phones when he was incarcerated at SCI-Rockview twenty years

earlier. The Court takes no position on the validity of this claim at this time.

16 Graziano’s conclusory allegations of retaliation in Counts II and XVII additionally fail to state a claim for relief and

these claims are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

52

grievance restriction” allegedly “because he filed grievances, not because the grievances he filed

were frivolous,” can constitute an adverse act. Glenn v. DelBalso, 599 Fed. Appx. 457, 458 (3d

Cir. 2015) (citing United States v. Miller, 197 F.3d 644, 648 Gd Cir.1999) (citation omitted).

Nevertheless, the retaliation claim against Reeher fails because the allegations do not support a

causal connection between the threat to sue and the grievance restriction. See id. at 458-59.

Courts have repeatedly declined to find a causal connection “when the alleged perpetrator of the

retaliatory activity was not the subject of the constitutionally protected activity.” Robinson v.

Delbalso, 2023 WL 2760425, at *11 (M.D. Pa. Mar. 31, 2023) (citing Calloway v. Bauman,

2022 WL 4357468, at *9 (M.D. Pa. Sep. 20, 2022)) (parentheticals omitted); Victor v. Lawler,

2010 WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565 Fed. Appx. 126 (3d Cir. 2014);

Evans v. Rozum, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17, 2009) (“There is no apparent

reason why [the moving defendants] would want to retaliate against Plaintiff for filing a lawsuit

against others.”); Royster v. Beard, 308 Fed. Appx. 576, 579 (3d Cir. 2009) (affirming summary

judgment in favor of defendant on plaintiff's claim that he was retaliated against by a defendant

who was not the target of his protected activity). Graziano’s attempt to show a causal connection

by stating that the grievances communicated his intentions to sue “SCI-Forest staff’ is too

general to support a plausible inference that Reeher acted with a retaliatory motive. See Minor

v. Overmyer, 2022 WL 1126228, at *9 (W.D. Pa. Feb. 14, 2022), report and recommendation

adopted, 2022 WL 969754 (W.D. Pa. Mar. 31, 2022), affd, 2022 WL 2826437 (3d Cir. July 20,

2022) (quoting Miskovitch v. Hostoffer, 721 F. Supp. 2d 389, 396 (W.D. Pa. 2010)) (“To support

this last element, ‘a plaintiff must come forward with more than ‘general attacks’ upon the

defendant's motivations’”). Accordingly, the retaliation claim against Reeher will also be

dismissed.

53

2.G raziaalnelog'astfa iio tolns st aatnae c cteocs uostr csl iam.

Grazaipapneota oar sssa eF ritra snFtdo urtAemeenntdhma ecnctteoC s osu crltasi m

basoenDd e fendanatlsl'er geetda lcioantdoSurecCyeto .u nItXXs,I IXII,Van ,dX V.

AdditiCoonuaXnlVtlI ayIl, l tehgDaeitsc kveiyo lhaiFtsie rdFs otu,ra tnFhdo, u rteenth

Amendmreingbthyc t osn tritbotu hdteii snagp poefGa rraaznsici aneno i'ct oimapll EaCiFn t.

No1.1 �,4 84A.n idnC ouXnVtI GIrIa,z aivaentrohsD a itc kCeryi,Ul MeRyM.,i lalneCdrC ,

Mil"liemrp rocpoenrfilsyc[ aGtrea[zeid4a]2pn aog'oesfs]l edgoaclu m.e.nttw.cso a slhle .e ts

.a n.od t heevri dednotciuamrewynh tirsce,hs" u ilnGt readz idaenloafi'ylsei odnft g h e

ComplIadi,n4�t8 .9 .

"UndtehFrei rasnFtdo urtAemeenntdhm pernitssro,en teaarr isin go hfat c cteots hse

courMtosn.r"voB .ee a5r3dF6,. 31d9 280,(5 3 Cdi 2r0.0 8). p"rWihsaeosrnseee rrst that

defendaancttsih'oa nvisen hitbhieotiperpd o rttopu rneistapey an lstet g calla imm,u sstthh oewy

(1t)hats utffheearyn'e adc itnujaulr yt'h-etyha ca lhtoan stctope u ras' uneo nfriovrolous'

'arguaubnldee'rc llyaiainnm(gd;2 t )h tahthe ayv neoo th'erre mtehdmayat by e a waradse d

I

recompfoertn hsleeo c'sl ta oitmht ehrian nt hper esdeenntia aclc seousfis It d(..q" u oting

ChristvHo.ap rhbe5ur3r U6y. ,S4 .04 31,(52 00"2[)T)u].nh dee rclayuiosnfaeg c t.ii.oa.snn ,

elemtehnmatut sb ted escriintb hceeod m plaCihnrti.s"t5 o3pU6h. eSa4rt.1 , 5 .

Graziiasac ntoi pvuerlsytu hiaenb go ve-caacpttiAioconcn.oe rdd Dienfegnldya,n ts'

allecgoenddh uancsot pt r evehnifrtmoe mdi nittihalitasiw nsoguro i tth ercwaiushseiet mdo

loasn eo nfrivcollaoGiurmsa. z hiaatsnh oe rfaeifolrteeaod l laenig nej tusor uyp paonar ctc ess­

to-ccoluarAitcmsc. o rdtihCneog uldryit,s miwsistpehrs e jtuhdaeic ccee csosu crtltoa ims

asseirnCt oeudnI tXXs,I IXII,Van ,dX Vu ndietsrsc reeonbilnigga anitdnCi oounn XtVsIa In d

XVIpIuIr stuoRan utl1 e2 (b)(6).

3. The Complaint fails to state a First Amendment Freedom of

Speech Claim. .

Graziano asserts the Defendants’ conduct related to the SCF program, the misconduct

hearing, his RHU placement, the termination of his communication and visiting privileges with

Ms. DiNardi, his grievance restriction, and his missing documents constitute violations of his free

speech rights under the First Amendment. See Counts XIII, XIV, XV, XVII, XVIII.

While inmates retain “the protections afformed by the First Amendment,” see O'Lone v.

Estate of Shabazz, 482 U.S. 342, 348 (1987), but they “retain[ ] [only] those First Amendment

rights that are not inconsistent with [their] status as [ ] prisoner[s] or with the legitimate penological

objectives of the corrective system.” Pell y. Procunier, 417 U.S. 817, 822 (1974). “An inmate's

First Amendment right to free speech, therefore, may be curtailed if the inmate's speech poses ‘the

likelihood of disruption to prison order or stability, or otherwise interferes with the legitimate

penological objectives of the prison environment.’” Jones v. N.C. Dep't of Corr., 433 U.S. 119,

132 (1977); see also Turner v. Safley, 482 U.S. 78, 87 (1987) (noting that prison regulations can

restrict free speech if such restrictions are “reasonably related to legitimate penological interests’’).

“Thus, an inmate's First Amendment rights do not include the right to debate staff orders prior to

obeying them, disregard prison rules, or engage in activities that may incite a disturbance.” Isaac

Marsh, 2020 WL 6504637, at *4 (M.D. Pa. Nov. 5, 2020) (quoting Parran v. Wetzel, 2016 WL

1162328, at *6 (M.D. Pa, Mar. 23, 2016)). Types of speech that are also unprotected “include, but

are not limited to, fighting words, threats, obscenity, and speech that ‘imminently incites illegal

activity.” Jd. (quoting Parran, 2016 WL 1162328, at *6). The Complaint’s conclusory

allegations do not support a finding that any Defendant infringed upon any protected speech of

Graziano. Indeed, he does not specify what speech Defendants sought to prohibit, what conduct

55

constsiutcpuhrt oehdi obriw thietonhn ci,os n douccctu rTrheutdsh.,fre e sep ececlhab iamsse d

onp rotsepcetaeercddeh i smipsusrestduo2 a 8Un .tS §.§C1 .9 15(ea)n(1d29 )1(5BA)( b).

E.F ourteAemnetnmhde tnC liams

ThDeO CD efendnaenaxtstss tehrCatto uVnfa ti tlsost aaFt oeu rtAemeenntdhme eqnuta l

proteccltaCiioomun,Xn ItVfa itloss t atade u per occelsaansid mt ,hm eo rsep ecpirfiocv riuslieo n

barCso uVn'tss u bstdaunpetr iovcece lsasai nmad l olt haelrl eFgoeudr tAmeeenndtmhe nt

violat"itoharnates c ovebryem do rsep ecciofincs tiptruotviiosnEiaColFNn os6..1 "p, .7 .

Centurion DefeanrdgantutheGsa r tal ziikaenwoi'sse FourteeinnCt ohu nIAt­mse ndme

IIaIrd eu pliocfha itEsii vgehA tmhe ndmcelnatai nmadsd tdh tath Ceo mplfaaiiltnsost t aat e

viadbulpeer ocveisosl aTthieo nCa.og urraetnefu dsr tfihnedrts h tahtCe o mplfaaiitlnosst t ate

av iaFboluer tAemeenntdhmp ernotc edduuperr aolcc elsasi m.

1. Them ores pecpirfiioicsvno r ublaes r thFeo uerntteh

Amendmceonntd iotfci oonnfisn edmeelnitb,ie nrdaitffee rence,

couarctc easnrsde, t alcilaatiimosn.

"Wheraep articuAlmaern dmpernotva ined xepsl tiecxisttou uaorlfcc oen stitutional

proteacgtaiiaopn nas rtt iscoourfglt oa vre rnmbeenhtav tihoAarmt,e ndmneotnthtm e,o re

genernaoltiizsoeundb sotfda unpetr iovcmeeu ssbstet, h geu ifodrae n alytzhiecnslgea ims."

AlbriOglhit5v 1evU0r.. , S2 .6 6,(217939 S4eB)ee. t vtNe.sw CasYtolueDt ehvC .t r6.2F,1. 3d

24296,(03 Cdi 2r0.1 (0q)u oUntiitnSegtd a vtL.ea sn i5e2Ur0., S2 .5 29,7n2. (71 997)) ("ifa

constictluatiiicsmoo nvaeblrya es dp ecciofincs tiptruotviisosunicaaohlstn hF,eo uorrt h

EigAhtmhe ndmtehcnelt a,mi umsb tea nalyzetdhs etu annddearr d taotp hpsarptoe pcriifiact e

provinsouitno dnte,hrr eu borfsi ucb stdaunpetr iovcee Isnas c.c"o)�re.wd iattnhh" imso re

specpirfiocv irsuilaoenin, n" m at"ec'lsca oinmc emh[icison ngd]i otfci oonnfisn eamnaednnt

allegedb yt fahDieel feunrdeta oen ntsshu irse s.afi.fe.tsty q uareltyhE eiw gihtthh in

Amendment's prohibition on cruel and unusual punishment.” Scott v. Clark, 2020 WL 4905624,

at *7 (W.D. Pa. July 28, 2020), report and recommendation adopted, 2020 WL 4904212 (W.D.

Pa. Aug. 20, 2020) (quoting Beenick v. LeFebvre, 684 Fed. Appx. 200, 205 (3d Cir. Apr. 11,

2017) (citation omitted)). Likewise, a court evaluates an inmate’s “Fourteenth Amendment

claim for inadequate medical care under the standard used to evaluate similar claims brought

under the Eighth Amendment” because the Supreme Court held in Estelle that the Eighth

Amendment proscribes deliberate indifference to prisoners’ serious medical needs.” Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing 429 U.S. at 103-04). And

Graziano’s retaliation and access to courts claims are properly analyzed under the rubric of the

First Amendment, as discussed supra. See DeFranco vy. Miller, 2021 WL 6498250, at *6 (W.D.

Pa. Oct. 4, 2021), report and recommendation adopted, 2021 WL 6037580 (W.D. Pa. Dec. 21,

2021) (dismissing Fourteenth Amendment retaliation claim under the more specific provision

rule); Miller v. Hartwell, 2022 WL 768295, at *3 (W.D. Pa. Mar. 14, 2022) (dismissing

Fourteenth Amendment due process claim as redundant of First Amendment access to courts

claim) (citations omitted). Accordingly, the Court dismisses with prejudice the Fourteenth

Amendment conditions of confinement claims asserted in Counts J, III, V, and XI, deliberate

indifference to serious medical needs claims asserted in Counts III and XVI, ’’ retaliation claims

asserted in Counts [X, XIII, XIV, XV, XVII, and XVIII, and access to courts claims asserted in

Counts IX, XV, XVII, and XVIII.

The Court dismisses the Fourteenth Amendment claim asserted in Count XVI pursuant to 28 U.S.C. § 1915(e)(2)

and 28 U.S.C. § 1915A.

57

2. ThCeo mpalintfa islto s taapt reo cedduu perraolc cleasism .

ThCeo mplaalisfanoit lt sos taatp er ocedduuperr aolcc elsasai gma icnesrttD aOiCn

Defendanbtasso endt hdei spoosfim tiisocno nDd0u4c1t2Ds70 04,1 2a7n5Dd,4 856h4i3s,

conseqpuleancteiimantel hnRHU et, orh issu bseqmuoevntetoa i nSa ClFu n1i8t" .Tsot aat e

clauinmd §e1 r9 8fo3rd epriovfpa rtoicoendd uuperr aolcr eisgashp tlsa,im nutsaitlff l tehg(ae1t )

hew adse proifanv iendd ividutahliae stin nctoemrpweaissttsth ehiFdeno urtAemeenntdhm ent's

proteocf't liilofein,b eorrpt ryo,p eanrdt( y2t,)h'p e r oceadvuarietlsoha ibdlmie nd o ptr ovide

'dpureo coefslsa wH.iv"lB.'lo rooufKg uht zt4o5wF5n. ,3 d 223235-(,33C 4di 2r0.0 (6c)i ting

AlvviS.nu zu2k2Fi7., 31 d0 711,(6 3 Cdi r.2G0r0a0z)i)pa.rn ooc'esdd uuperr aolcc elsasfai imls

becahui4ss5e - dcaoyn fineimnte hRHUne t watso soh otroit m plail ciabtieenr tteyar netdsh te,

factasl leignte hCdeo mpldaoni onsttu ppano irntf ertehhnaictpse l aceimnte hnSetC Fu nit

"amounttoan[ 'eadt]y anpdis ciagln ihfiacradnwsthh eicnpo 'm parteotd h e oridnicnioadfre yn ts

prilsiofenN. if"av sB. e a3r7dF4,e Adp.p 2x4.21 4,(43 Cdi 2r0.1 (0")c onfiinAneC mfo er1n 7t8

dayasna d9 0-pdalya ceomnte hRRLne t doensoam to unttano 'atyapnisdci agln ihfiacrandts hip'

whecno mpatrote hodre d iniaryn ciodfpe rnitlssio fenS" e)ae.l Ssmoi vtM.he nsi2n9gF3e. r3,d

6416,5 (43 Cdi r.2(0s0e2mv)oe nnt ihnds i scipcloinnfianredymi endno ittm plialc iabteer ty

inteTroersvrtF.e)a s;u v2e9r2, 1F4.1135,d1 -(53C2di 2r0.0 (2d)i scidpeltienfonartfir iftyoe ne n

dayasna dd minisstergraetfogirav1 te2i d0oa nyd sin do itm pliapc raotteel citbieendrt tye rest);;

Sancvh.eW za lt2o0n1,WL9 2495a3t7* 2,- (3E .PDa.J. an .1 62,0 1(9")n i(n9e0dt)ay y

confmeimnse engtr eigsait nisounffit coie esntta tbhl[aiitsn hm waatdsee ]p roifva le idb erty

interTehsaetb "s)eo.nfa c lel egtaott riiodgnugspee r ro cpersost ercetqiuotinhdrseie ssm oifs sal

alplr ocedduuperr aolc celsasia msss eirnCt oeudn ItXsX, , X Iu ndtehrce o urstc'rse ening

.ahou ntt ·19y .

3. TheC omplafaiinlttoss t aet calm a uindetreh F oruteetnh

Amendmeenqtup'arslo teccltaiuosne .

TheC omplcaoinnttteh nadts DedfeenndGianretadsz si" anroi'tg oeh qtup arlo teocft ion

thlea w utnh.de.eF .ro urteenth EACFmN eon1.d1 ,m,r. e4,rn2t 40.2,"46 5,,846,24764,80,

484378,( oCunItI,sX X ,,X IX,V X,V IX,V IaIn,Xd V IIIe)s.t aTabov l iioslhoa ftt hiEeoq nu al

ProteCcltaiauop snle a,i mnutsoitrff d inaalrl"ietlghhyeae w t a tsr edaitffeedr enottlhye rt han

simisliartluyia ntmeaadtn etdsh ,a td itffheitrsre enattw mateshn rete soufil ntt entional

discrimbaisnoeanhdt i imsoe nm berisnaph riopt celcatseMsda. cv"k.W ardLeonr eFtCtI8o,3 9

F.328d6( d3C i2r0.61 ()c iHtaisnsgva C.ni otyNf e wY or8k0,F4 . 327d7 2,94( d3C i2r0.1 5)).

ThCe ompliadsie nvtoo fifa dc taulalle gtasotu ipoptnohsrGa trta zwiaatsnr oe daitffeedr ently

thanayno thseirm isliatrulpayet reosdrpo enr sAosn ss.tu hceehq ,up arlo teccltaimioumnssb t e

dismipsusrestduo2 a8 Un .tS §.§C1 .9 15)((eanB)d)(1 2915A(b).

F .Foutr hAmendmenCatli ms

Grazhiaaasnl ofs aoi tlose tdaa pt lea ucsliabuilnmedt ehFreo uArmtehn dmIenn t.

CouXnVtIsaI n XdV IGIrIa,z aivaentrohsD a etfe ndvanitosl aFtoeudAr mthehin sd mreingth t

nottob es ubjteocu tnerde assoenaarbaclnhsedee si zbuycr aeusso ircn ogn tritbotu htei ng

alledgiesda ppoefha irlsae ngpcaaelp eBrusGt.r azhiaannsool egiteixmpaetceot fpa rtiivoanc y

-itnh deo cumheecn ltaswi emrsle o sHtu.d svoP.na lm4e86rU ,. S5.1 57,3( 014 9)8s;eD eo ve.

Del2i57eF ,. 33d90 ,3 61( d3C i2r00.1 ()" Tdheefe ndcaonrtrse cttlhypa rtai ssdsooenn reotrt s

18D efendaanrtCesr owtMhoerrgF,ai ns,cO ubse,r lAanddaemrMs,o, n gelGluusztzaoafs,noC dnO 1, W itnoefs s

DC-1P4ar12t,D .

19T hCeo mpldaoiennsots t u ppapo rrto ceduprraolcc eldsafousire tm h ael lecgoendfi scoafGt riaozni ano's

documienCn otusnX tVsIa In XdV IbIeIc aGursaez hiaatsnh roei gthofit la eg rievoaracn ocnev earnsrdie opnl evin

actisotnac toieunt r sote "eakm eanipnogsfutl- derpermievdDayet.Fri"ao nn2c 0o2WL,1 6498a2t5* 06( ,c iting

HudsvoP.na lm4e6rU8,. S5.1 573,(3 1 9(8"4[)uA n]anu thionrtieznetdi onaolfp rdoeppberyarsi tytv aattei on

emplodyoeenesoc to nstavi itoultoaeftt hipeor no cerdeuqruairleo mfte hDneut Pesr ocCelsasou fst ehF eo urteenth

Amendmieafmn eta nipnogsfutl- derpermiefovdraty th lieoo isnass v ailable.")).

have a Fourth Amendment right to privacy in their cells.”). See also Ivy v. Wetzal, 2021 WL

4479721, at *12 (W.D. Pa. Sept. 30, 2021) (‘Ivy had no reasonable expectation of privacy in the

papers discussed in his Complaint.”); Com. y. Moore, 928 A.2d 1092, 1099 (Pa. Super. Ct.

2007) (no reasonable expectation of privacy in incoming and outgoing prisoner mail under

Fourth Amendment). Accordingly, the Fourth Amendment claims asserted in Counts XVII and

XVIII are dismissed with prejudice pursuant to § 1915(e)(2)(B) and § 1915A(b).

G. Civil Rights Conspiracy and 1985(3) Conspiracy Claims

The Centurion Defendants argue that Count II of the Complaint fails to state a civil rights

conspiracy claim. The Court agrees. The Court further finds that the Complaint fails to state a

civil rights conspiracy claim and a Section 1985 conspiracy claim against any Defendant and

dismisses these claims pursuant to § 1915(e)(2)(B) and § 1915A(b).

1. Counts I, XI, XVII, and XVIII fail to state a civil rights

conspiracy claim.

To state a civil rights conspiracy claim, the plaintiff must allege: “1) the specific conduct

that violated the plaintiff's rights, 2) the time and the place of the conduct, and 3) the identity of

the officials responsible for the conduct.” Sanchez v. Coleman, 2014 WL 7392400, at *9 (W.D.

Pa. Dec. 11, 2014) (citing Oatess v. Sobolevitch, 914 F.2d 428, 431 n.8 Gd Cir.1990)). Critical

to this claim is the complaint’s “factual allegations of combination, agreement, or understanding

among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry

out the alleged chain of events.” /d. (quoting Spencer vy. Steinman, 968 F.Supp. 1011, 1020

(E.D. Pa.1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D.

Pa.1994) (“[w]hile the pleading standard under [Fed. R. Civ. Proc .] Rule 8 is a liberal one, mere

incantation of the words ‘conspiracy’ or ‘acted in concert’ does not talismanically satisfy the

Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a

60

kind not likely to occur in the absence of agreement” are insufficient. Jd. It is likewise

“insufficient to allege that ‘the end result of the parties' independent conduct caused plaintiff

harm or even that alleged perpetrators of the harm acted in conscious parallelism.” Parness v.

Christie, 2015 WL 4997430, at *11 (D.N.J. Aug. 19, 2015) (quoting Desposito v. New Jersey,

2015 WL 2131073, at *14 (D.N.J. May 5, 2015)). “Additionally, as Section 1983 does not

create a cause of action for conspiracy in and of itself, a plaintiff must also allege some

underlying deprivation of a constitutional right.” Jd. (quoting Holt Cargo Systems, Inc. v.

Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa. 1998)).

Graziano asserts four conspiracy claims. Count II states that Smith, Adams, Mongeluzzo,

Oberlander, Simons, Camacho, Gressel, and Cowan “conspired, planned, agreed and intended to

harass, intimidate and cause psychological and physiological injury to [Graziano]” by

“undermin|ing] [his] MH related claims,” “depriv{ing| him of the MH provisions his MH status

entitled him to,” and “punish[ing] him through the infliction of cruel and unusual punishment.”

Id., 425, 428. Count XI asserts that Fiscus, Bogardus, Minich, and CO1 Witness of DC-141,

Part 2D conspired to place him in the RHU for the misconduct that they knew had already been

dismissed. Count XVII avers that “Dickey’s threats of ‘continued’ retaliatory treatment if

[Graziano] persisted in filing paperwork implicated Lt. Dickey as a conspirator in an active

concerted effort to chill [Graziano’s] exercise of his first [sic] and fourteenth [sic] amendment

rights.” Jd., | 484. And Count XVIII asserts a conspiracy claim against Dickey, Criley, UM R.

Miller, and CC Miller for “improperly confiscating [Graziano’s] 42 pages of legal documents.”

Id., § 487.

Even under the most charitable reading, the Complaint fails to state a civil rights

conspiracy claim against any Defendant. “[T]he allegations of conspiracy must be grounded

61

firmly in facts; they cannot be conclusory nor can they hinge on bare suspicions and

foundationless speculation.” Reed v. Harpster, 506 Fed. Appx. 109, 111 (3d Cir. 2012) (citing

Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir.1991) (affirming dismissal of conspiracy

claims based upon mere suspicion and speculation)). Graziano’s conclusory allegations fall far

short of supporting a plausible inference of an agreement or concerted effort among any

combination of Defendants to harm him. Graziano’s foundationless conspiracy claims must be

dismissed. .

2. Counts II, XI, XVI, and XVIII fail to state a Section 1985

conspiracy claim.

Graziano asserts a § 1985(2) conspiracy claim in Counts II and XI and an unspecified

§ 1985 conspiracy claim in Counts XVII and XVUI. Section 1985(1) prohibits a “conspiracy to

prevent any person from accepting or holding office, trust, or place of confidence under the

United States,” and § 1985(2) prohibits a conspiracy to “deter... any party or witness in any

court of the United States.” Thus, § 1985(3) is Graziano’s only potential avenue for relief.

To state a claim under § 1985(3), a plaintiff must allege facts to support “(1) a

conspiracy; (2) for the purpose of depriving ... any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in

furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or

deprived of any right or privilege of a citizen of the United States.” Slater v. Susquehanna Cnty.,

465 Fed. Appx. 132, 136 (3d Cir. 2012) (quoting United Bhd. of Carpenters & Joiners v. Scott,

463 U.S. 825, 828-29 (1983)). Graziano’s failure to allege a conspiracy dooms his § 1985(3)

conspiracy claims. Further, nothing in the Complaint supports an inference “that the conspiracy

was motivated by racial, gender, or other class-based discriminatory animus.” Jd. (citing Farber

62

vC.iotyfP a ter4s4Fo0.n 31,d3 1153,( 3Cdi 2r0.0 6A)ss) u.c thh§,e 1 98c5o nspcilraaicmys

musbted ismipsusrestduo2 a 8Un .tS §.§C1 .9 15(ea)n(1d29 )1(5BA)( b).

H.T hCeo mplafaiilsnt tos taatnAe DA c laaigma iSnmsitAt dha,m asn,d

Oberlainntd heeirin rd ivciadpuaaclbi utitita esls l,e gaartmeii onnism ally

suffictiose tnaattnA e D Ac laaigma itnhDseOt C .

CouVno tft hCeo mplianicnltau n"d AeDsaA c commodcaltafoiiromm no sn"e taanrdy

injunrcetlaiigveaefiS nmsiOttb he,r laannAddd earmi,snt heiinrd ivainoddffiu cailca alp acities.

ThCeo ucrotn sttrhcuilesa sai sam s seurntdTeeidrt I loIeft hAeD A2.0S ect1i2o1on3f T2 i tIlIe

prov"i[dneq]suo,a liinfideidv wiidtaudh ai ls asbhialbliyrlt e,ya osfso unc dhi sabbiel ity,

exclfruodmep dar ticiipnoa rbt edi eonnti hebede neofiftt hssee rvpircoegsro,ar am cst,i ovfi ties

ap ublico rbe esn utbijtetycod,t i esdc ribmyia nnsayut ceihno tni 4t2Uy ..S"§. 1C2.1 3S2t.a te

prisaordnees e m"epdu belnitciu tnideTesir"tI lIPe.a D.e 'pot fC orvrY..e sk5e2Uy4., S2 .0 6,

21(01, 99A8n)"d) t.ph hrea 'ssee rpvriocgeor,raam c,t iuvnidtTeyir'tI l.Ie.i '.se xtremely

broiansd c oanpdei nclaundyetsahp iunbgel nitcdi oteysF ,u"r'gv eP.sa Ds.e potfC. o r9r3.3,

F.32d8 52,8( 93 Cdi 2r0.1 9A)ss. u c"hap, r ison'tsoa crceofumsmaiolnd maatdteie ssa'b ilities

ins ucfuhn dameansmt oablishl yigtiyme,en dei,cc aaralen v,di rtauloaltl hlpeyrr i psroong rams

constidteunotiftea hslbe e an eofifatp sr issoenr'vspi rcoegsro,ar am cst,i uvnidtTeiiretI slI e"

oft hAeD AB.r ovwM.no nsa2l0u2WLd1 , 4 502a2t3*8 3(, M .PDa.S. e p3t02.,0 2(1q)u oting

Furg9e3sF3s. ,3a 2dt9 (0i ntqeurnoatlaa tncidio tnao tmiiotnt ed)).

AlthotuhCgeoh uo rfAt p pefoartl hT eh ird hCainsro actdu dirtet shisese sdu e

precedentcioaulhrlatyvhs,ee lmdTo isttIthldI aeo t en soa tu thsouriiatzgsea ignosvte rnment

20T itIpl reo hdiibsictrsi imenim npaltoiyo4mn2Ue .nSt.,§C 1 .2A11.2 (aan)td,h D eO Cd oensofa tl wli tThiitInll el 's

definiotfi"opnua bclciocm mod4a2Ut .iSo.nC§,1. "2A 1.8 1S(e7Se)n .i vdP.ee rn nsylDvOaCn5,i0 aF5 .S up3pd.

36309,(8M .PDa.2. 0 2i0d.)3,;9 n8. 1(5l6i sctaisneTgsh )uo.sn ,lT yi tIlaIep pltiote hasic st ion.

officers in their individual capacities. See e.g., Kokinda v. Pennsylvania Dep’t of Corr., 779 Fed.

Appx. 938, 942 (3d Cir. 2019) (concluding that plaintiff's “claims for individual damages

liability under Title II of the ADA fail for the simple reason that there is no such liability”)

(citations omitted); Holden v. Wetzel, 2021 WL 1090638, at *3 (W.D. Pa. Mar. 22, 2021); Miller

v. Little, 2023 WL 3674336, at *8 (E.D. Pa. May 25, 2023) (quoting Williams v. Hayman, 657 F.

Supp. 2d 488, 502 (D.N.J. 2008)). Accordingly, Graziano’s individual capacity ADA claims

against Smith, Adams, and Oberlander must be dismissed with prejudice.

Here, however, Graziano also asserts his ADA claim against the individual DOC

Defendants in their official capacities. “[S]tate officers can be sued for damages in their official

capacities for purposes of the ADA ... unless barred by the Eleventh Amendment.” Durham v.

Kelley, 2023 WL 6108591, at *2 (3d Cir. Sept. 19, 2023). Such a claim is, in effect, a claim

against the governmental entity that the officials represent. [d.; see also Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 691 n.55 (1978) (“official-capacity suits generally

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

agent...”). Thus, courts have held that, “[g]enerally, the proper defendant for a Title IIT ADA

claim is the public entity or an individual who controls or directs the functioning of the public

entity....” Miller, 2023 WL 3674336, at *8. At the same time, courts have expressed the view

that the preferred defendant is the public entity. See id. (holding that “[b]ecause ADA claims

asserted against individual prison officials named in their official capacities are really claims

against the DOC, all ADA claims asserted against the individually-named DOC Defendants

[should be dismissed] as duplicative of the claim against the DOC”) (citing Emerson v. Thiel

College, 296 F.3d 184, 189 (3d Cir. 2002)); Robinson v. Pennsylvania Dep’t of Corr., 2022 WL

970760, at *4 (E.D. Pa. Mar. 31, 2022) (dismissing official capacity ADA claims against

64

individual defendants as “duplicative” to claims against the DOC); Dews v. Link, 2021 WL

2223795, at *3 (E.D. Pa. June 2, 2021) (“[W]here the plaintiff simultaneously sues the state

entity that employs the individual defendants, the claims against the individuals may be

dismissed as duplicative of the claims against the state.”). Thus, the Court construes the

Complaint as asserting a Title II violation against the DOC.

The DOC Defendants argue that the Eleventh Amendment immunizes them from

Graziano’s ADA claim. The sovereign immunity afforded by the Eleventh Amendment provides

states and state agencies — including the DOC and its officials — with immunity from suit in

federal court unless, inter alia, this immunity has been abrogated by Congress or waived by the

state. See Durham, 2023 WL 6108592, at *5 (“Whether New Jersey’s sovereign immunity bars

money damages under the ADA is a more complicated question that involves determining

whether Title Il of the ADA validly abrogated the State’s sovereign immunity with respect to the

claims at issue.”); MCI Telecomm Corp. v. Bell-Atlantic-Pennsylvania, 271 F.3d 491, 503 3d

Cir. 2001). The United States Supreme Court has held that Title II of the ADA abrogates

sovereign immunity only to the extent that state conduct violates the Constitution. United States

v. Georgia, 546 U.S. 151, 159 (2006). This determination requires the court to: “(1) identify

which aspects of the State’s alleged conduct violated Title II; (2) identify to what extent such

conduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated

Title II but did not violate the Fourteenth Amendment, determine whether Congress’ purported

abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Bowers v.

Nat'l Collegiate Athletic Ass’n, 346 F.3d 402, 553 (3d Cir. 2003).

65

1. The Compalisntta atT eist I lIveo ilation.

Applyinthge se prhienrthce eCi,opu lrmetus sfi tr csotn swihdeetrGh rearz hiaasn o

allefagcettod ss uppaco laritfom r re ilefu ndTeiterlI I oft hAeD A-oitenhrw ortdhsah,t ei s a

qaulifieinddiv idula witadh i sawbhiwola idste yn ipaertidpc aitiio nasn e rvbiyrc eea osfho ins

disabiBloiwtye.4r7 5sF ,. 3ad5t53 ." Thtu osst,ea a tc laiumdn eTri tII lofeth eA DA, plaintiffs

musdte monstathtr(1:)at teheyar eq uliafi einddivi(d2uw)ai ltdshi; s aa bainl(d3i )tte hyyw; e er

exclufrdoemd p articipinao rtd einointhe ebd ne efitosft h es ervicesso,,r a pcvrttiioieogsfar am

pulbic entiort wye,rsu eb jetcodts iecidrmi natbiyao nsnyu cehni tty(4;)b yr esao onfth ie r

disabDiulrhaimt 2,y0.2WL"3 618059a1t*, 3( ci ttiaoonm tidet).Wh er,eli khee rtheeP,l aintiff

seeckosm pendsamaatgoher es"ym, u satl ssohow intendtsiircoinmailnu antdaied oerinlb erate

indiffersteanndcaerD du.r"h2 a0m2,WL3 601859,a1 t*4 .T od os o",a[ ]claimmuansattl lege

'() k1nowltehdaagfe tede raplrloyt reicgtihsesutd b stanltiilkaytel oblevy i oteld.a an.d.( 2)

failur toe acdetps iteth ta knowledIgd.e ."'

Graziaanlol ethgta tehsDe O Cv iolTaitetlI Ieb dy" re fuinsgt omakree asonable

accommowdhaitwciohou nhlasdev e nab[lheitdmos l] e estpa,aly e crnotc,ne tatr,ee ffectively

communicanadsto ceial ly inatcewtrih to thaednrp artsi ciipnsa etrev icesan,d apcrtoigvriatmise s

availablet op risiongne enrraelsp o pulatEiCoFNn o.1."1 � ,4 4 0 I. nsuppoofrttchl iasih me,

averthsa tht e" earaldiynmi trsaito onfh ipss yiacthrmiecd. s.p r.o locnleg lleidign gha tnd

consinttaenrtcan onmo umnecnetdse"p rhiivomefs d le epw,h iecxha cehrib"saan txeidae nt dy

depredsissiovread dne" rssut"bani astlyl limihtifremod m ma jorli fea civittsi".eE CFNo .1 1�,

225In.h i s Jun20e1 I9nm aetD isabAiclocmimtoyd aRteqiuoenFs omtr,h es pieficetdhh aits

"sleedpe rpivatdiisaobni"plr ietvyeh nmit freomd " lseep""a;ff eecd[ht]i[ as b]i lti ortaedy,l earn,

thi"nokcnc,e"n tr"aptreoly,pc "meo mrunicwaitt[h[hie ps]e]r se an sdtaaffn,d" "remain

medication complian|t]”; and “caus[ed] [him] to miss certain standing counts” and “meal-lines.”

ECF No. 15, p. 18. He additionally alleged that his “disabilities prevented him from

participating in recreational activities” and “achieving any of the treatment goals set forth in his

MH treatment plan” and caused him to drop out of a self-help group and computer class. ECF

No. 11, □□ 238, 243. To accommodate his disability, he asked the prison to: (1) turn off the cell

count lights immediately after completing the count, (2) restrict “cell intercoms to medical

emergencies and individualize[d] notifications,” and (3) either move evening medication

distribution to 5:30 PM or “transfer [him] to a suitable SCI where these institutional practices are

uncustomary.” Jd. Graziano submitted this request form to Smith, who allegedly forwarded the

request to the appropriate DOC office without first conducting her own assessment, in

contravention of DC-ADM 006. In October 2019, the DOC office declined Graziano’s

accommodations request because of “safety, security and operational concerns of the institution.”

ECF No. 11, 4 232 (quoting ECF No. 15, p. 20). Oberlander informed Graziano of this

determination a month later.

Accepting Graziano’s factual allegations as true, and drawing all inferences in his favor,

the Court finds that Graziano has sufficiently alleged a Title II violation and intentional

discrimination. The exhibits to the Complaint demonstrate Graziano’s various mental health

needs and adequately support his status as a qualified individual with a disability. See e.g.,

Snider v. Pennsylvania DOC, 505 F. Supp. 3d 360, 408 (M.D. Pa. 2020) (quoting 29 C.F.R. §

1630.2G)(3)Gi1)) (Plaintiffs mental health illnesses “‘substantially limit brain function’ for

purpose of the definition of disability under the Disabilities Act.”). Graziano’s allegations are

also adequate to support that the DOC’s failure to grant his accommodation requests denied him

the benefit of a prison service, program, or activity. Certain of Graziano’s allegations

67

concerning this third element of his ADA claim are conclusory and therefore entitled to no

consideration of the validity of his claim. See ECF No. 11, § 440 (by “refusing to make

reasonable accommodations which would have enabled [him] ... participate in services,

programs and activities available to prisoners in general population.”’). But other allegations

state facts minimally sufficient to support a finding of the denial of such benefits. See ECF No.

15 (Appendix to Complaint), p. 18 (refusal of Graziano’s accommodation requests prevented

him from “properly communicat[ing] with [his] peers and staff’ and “remaining medication

complian|t],” and “caus[ed] [him] to miss certain standing counts” and “meal-lines.”); see

Wareham v. Penn. Dept. of Corrections, 2014 WL 3529996, at *11-12 (W.D. Pa. July 15, 2014)

(inmate’s allegation that he missed “some meals and some yard-outs that he would have went to”

had he been offered reasonable accommodations for his mobility impairments was sufficient to

state an ADA violation); Durham, 2023 WL 6108591, at *3.7! Graziano’s allegations are also

minimally sufficient to support the intentional discrimination/causation element of his ADA

claim. See Durham, 2023 WL 6108591, at *4 (“Refusing to make reasonable accommodations

is tantamount to denying access, and the complaint pleads that Durham’s requests for a cane and

shower chair were repeatedly refused.”); Dinkins v. Correctional Medical Services, 743 F.3d

633, 634-35 (8th Cir. 2014) (alleged “denials of meals and adequate housing by reason of [a]

These facts distinguish this case from those which have rejected ADA claims based simply upon allegations that

prison officials neglected the disabled prisoner’s medical needs. See Mattis v. Dep’t of Corr., 2017 WL 6406884, at

*16 (W.D. Pa. Dec. 15, 2017) (denial of necessary medical care “does not implicate a service, program, or activity

contemplated by the ADA.”) (listing cases); Isley v. Beard, 200 Fed. Appx. 137, 142 (3d Cir. 2006) (“finding that

plaintiff had not claimed that he was excluded from any program on the basis of his disability but rather alleged

“that he was denied medical treatment for his disabilities, which is not encompassed by the ADA’s prohibitions”);

Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (a prison’s failure to attend to the medical needs of its disabled

prisoners or grant a requested special accommodation, absent factual allegations of discrimination, does not violate

the ADA). However, to the extent Graziano contends that the failure to accommodate him by modifying policies

and transferring him prevented him from participating in or benefiting from sleep, “[s]leeping in one's cell is not a

‘program’ or ‘activity.’” Mattis, 2017 WL 6406884 (quoting Bryant, 84 F.3d at 249).

68

disability” can form the basis for a viable ADA claim). Finally, as previously noted, because

Graziano seeks compensatory damages, he “must also show intentional discrimination under a

deliberate indifference standard.” Durham, 2023 WL 6108591, at *4. Again, Graziano’s

allegations are minimally sufficient to support that prison officials knew of his protected right

under the ADA but nevertheless failed to act on any of his requests. See id. (Plaintiff's

allegations that “[h]e made numerous prison officials aware that he had a cane, needed a cane to

walk, and was in severe pain without it,” and “[d]espite this, he was continuously denied his cane

and shower accommodations,” sufficiently pled intentional discrimination).

2. Sovereign immunity does not bar Graziano’s request for

money damages based on the allegations of the Complaint.

Turning to the second step of the Bowers analysis, the Court also finds the facts

minimally sufficient to implicate a potential Fourteenth Amendment violation. The United

States Supreme Court has held that the “refusal of prison officials to accommodate [an inmate’s]

disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all

other prison programs ... independently violate[s] the provisions of § 1 of the Fourteenth

Amendment.” United States v. Georgia, 546 U.S. at 157. Graziano’s allegation that the DOC’s

refusal to accommodate his disability by adjusting when his medication was to be dispensed

prevented him from participating in meals, recreational programs, and other services, if

substantiated through discovery, may rise to the level of a constitutional injury for purposes of

the Bowers abrogation analysis.””

22 Although the Court has found these allegations insufficient to state an Eighth Amendment claim against Adams,

Smith, and Oberlander in their individual capacities, it appears they may nevertheless support a Fourteenth

Amendment violation against the DOC for purposes of the Bowers analysis. See United States v. Georgia, 546 U.S.

69

AccordtihCneog ulmryut,sd te ntyhm eo titoodn i smGirsasz iTaintIolAI'eD s A c laim.

The DmOaCry e nietcwsh allteotn hvgeae r ieoluesmo eftn htcisls a anidmt hree asonableness

ofG razsir aenqou'ea sctceodm modattah tseiu omnmsjar uyd gmsetnaotgft e hc ea wshee tnh e

Couhratts h bee noeffiam t o rceo mprleectoer d.

I. StaLtaewC lasim

GrazaisasnPeoer ntnss ysltvalatancewil aa oifIm IsE (DC ouXnItXan )dN IE(DC ount

XX)agaianlDslet fe ndaanswt esal,sla ssanadub latt (tCeoruVynI tIa In)fd a lismep risonment

(CouXnIctIl )a aigmasic nesrtDt OaCiD ne fend2a3Tn htCese .ntuDreifeonnd arangtuste h tahte

Complfaaitinoslt ts a vtieaI bIlEaeDn N dI EcDl aiDmOsCD. e fendsanutbstm hisatot v ereign

immunbiattryhss e t altacewl aaigmasit nhseTtmh .Ce o urta dwdirtlehlsear ssg eu meinnturnt .s

1. Counts XIIa nXdX fa ilt os taatn IeI EoDrN IEcDl aaigma inst

anDye fendant.

Tos taact lea foirIm I EGDr,a zmiuasnatol lfaecgttesos hotwh tahtDe e fendants'

condwuac"st( e1x)t ranedmo eu tra(g2ei)on utse,no trri eocnkaallne( ds3 cs)a, u sseevde re

emotidoinsatlrS ehsusmv.aT."tw eiT ni Heors LpL.C,6, 5 F5.S up2pd5. 2 15,4( 1M .PDa..

200(c9 i)t Liinvgi nvgB.so troonu Egdhg eowf2o 0o0Wd8L, 5 10718a4 t* (6W ..DP a.2008)

(ciHtairnggr vaC.vi eotysPf hilad2e0l0Wp7Lh 1 i2a7,6 (9E3.7D A.pPra2i.62l ,0 07)).

Pennsyclovuahrnativdsaee fined "aenoxdut trreamcgeoe noduausscc otn"d "usocout t rageous

inc haraacnstdoee xrt,r iendm eeg raeste og, ob eyoanlpdlo ssbiobulnoedfd s e ceannctdyob , e

regaarsad terdo cainuodtu tsie,nr tloyl ienarc aibvliselo iczieIedd.t( yq.u"oH toiyn gv .

23C ouVnItaI sIs aes rttalsta aews saanubdla tt tcelraayig ma iLntHs.at g geLrtDt.ey aL,lt D,.i ckCeEyR,OT ffi cers

#1-a6n,Sd u pOtb.e rlaTnhdfaeel rsi.em priscolnamaiegmna tiU nMCs rto wtChOelMr o,r gHaEnX,F iscSuusp,t .

OberlanDdSeCArSd, a mDsS,F MM ongelClCuPzMGz uos,t aLfstBo.on g,a randduC sO,lM iniwcadhsi smissed,

supra.

Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998) (citing Buczek v. First Nat'l Bank of

Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987)). Graziano contends

that every Defendant “engaged in extreme and outrageous conduct that intentionally and

recklessly caused [Graziano] severe emotional distress.” /d., □ 492. This bald allegation, even

when viewed in the totality of Graziano’s factual allegations. fails to support an JIED claim

against any Defendant. None of the conduct alleged in the Complaint rises to the level of

extreme or outrageous conduct under Pennsylvania law.

The NEID claim fares no better. Under Pennsylvania law, a negligent infliction of

emotional distress claim is cognizable in four scenarios: “(1) the defendant had a contractual or

fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the

plaintiff was in a zone of danger and reasonably feared impending physical injury; or (4) the

plaintiff observed a tortious injury to a close relative.” Cohen v. Johnson & Johnson, 634 F. Supp.

3d 216, 240 (W.D. Pa. 2022) (quoting Rumner v. □□□ Bard, 108 F. Supp. 3d 261, 272 (E.D. Pa.

2015)). “A plaintiff must also establish the elements of a negligence claim, i.e., that the defendant

owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury

to the plaintiff, and the plaintiff suffered an actual loss or damage.” Jd. (quoting Wilder v. United

States, 230 F. Supp. 2d 648, 654 (E.D. Pa. 2002)). In support of his NIED claim, Graziano merely

states that Defendants “acted negligently,” and their negligence caused him to “suffer[] injuries

and damages. . . including severe emotional distress.” Jd., {§ 495, 496. This conclusory allegation

does not suffice to demonstrate any of the elements of an NIED claim. Accordingly, the Court

will dismiss both the JIED claim and the NIED claim.

71

2. ThCeo mplafaiilntsota lelg faects tos uppaos rttal tafaewl es

imprisocnlmaeinmt.

Grazaisansoae fa rltsse impcrliasuionmndP meeernn nts yllavawang iaaic nesrtDt OaCi n

Defendfoanrt" ss ubj[ehcittmios]n o gl ictoarnyf ineEmCeFNn o1t.1. �,"4 66S.u cach l aim

requaip rleasit noat lilfffae cgttesod emonstrate:

1)defenddaenttah ienaren;d2d )t hdee tewnatusin olna wful.

RenkCvi.oty Pf i tts5b3uP7ra 6g.8h 6,,4 A1. 22d8 299,(31 994)).

Morsep ecifilciaalbfolirfayl l,isi temy p risaotntmaewcnhhtee rse :

(ao)naec itnst entdoci onngfian noet hweirt bhoiunn dfiarxieeds·

byt haec t(obhr)i,a s cr te siunsl utcasch o finnemoeftn htoe t her,

an(dc )t hoet hiecsro nscoifto hcueos n fineomrieh sna tr mbeyd

it.

Kinvt.Kz leele m9a6Fn5.S, u p2pd6. 0 610,(8 M .D.2-0P1(a3c.)i Gtaignlgiv a.Lr ydn2in8 ,5

A.21d0 191,n1 . (21 9)7.G1 r)a zhiaanasol lengofae cdtt sso u pptohhraittcs o nfineimnteh net

RHUw ausn lawTfuhlci.ls a ima sfam iaalt ostf le arw .

3. ThCeo mlpant iallefagcetsussf ficti osetanttae na ssaanudlt

battcelraayig ma iLntHs.at g geLrtDt.ey a,Ll tD,.i ckCeEyR,T

Offic#e1r-as6n ,Sd u pOtb.e rlander.

LastGlrya,zc ilaantiohm tasht foe r cuet ilbiyHz aegdg eDretaDyli,,c kOebye,r lander,

anCdE ROTffi ce#r1s-a 6g aihniosmnt A pr1i82l,0 1c9o,n stainat sustanaedudb l att tery

purstuPoae nnnts yllvaanw"i.Ua n dPeern nsyllavanwa ,an sisaoa cuclwuthr eson n aec wtist h

thien tteopn ltaa cneo tihnre era soanndai bmmleed iate apopfhr aerhmoefuronl ffs einosni ve

contaanctdth a,ac tdt o ecsa ussueca hp preheAnb saittoeiansrn. yi ntenotffieonnbsaoildv iel y

contaZcitm.m"e vr.mS cahna e6ff5Fe4r.S , u p2pd2. 2 265,(5 M .PDa.A. u g1.72 ,0 09).

Grazailalnetogh oeanstt h eev enoifAn pgr1 i82l,0 1D9e,fe nd"apnetpssp perra[ yheidm ]

knowhiehn agad s thamnbada shheihdsa nwdh itlhete hy[e s tiocoo]kff h ihsan dcutfhfsle enft

hiimnp aainnsd u ffeirnaic nogal nded m pcteywl ilt hn.eoeoudrpt r ovocEaCtFNi oo1.n1 .�,"

452T.heaslel egsattaaict olena osifa m s saanubdla tt tery.

DOC Defendants do not dispute the assault and battery claim for purposes of the motion

to dismiss, but they do posit that they are immune from the state law claims under the doctrine of

sovereign immunity. Defendants are correct that, as DOC employees, they are entitled to

immunity for intentional tort claims so long as the tortious conduct was committed within the

scope of their employment. See, e.g., Brown v. Smith, 2019 WL 2411749, at *4 (W.D. Pa. June

7, 2019) (noting that assault and battery do not fall within the nine statutory exceptions to

immunity listed in § 8522). See 42 Pa.C.S. § 8522(b).%* However, courts in this Circuit have

held “that intentionally tortious conduct which is ‘unprovoked, unnecessary, or unjustified by

security concerns or penological goals’ does

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