Petition for Writ of Certiorari — Jeremiah Moore, Petitioner v. Ms. Durand, et al.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2915

JEREMIAH MOORE,

Appellant

v.

MS. DURAND; K. OWENS; K. SORBER; D. VARNER

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:21-cv-02695)

District Judge: Honorable Juan R. Sanchez

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 17, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed: August 1, 2023)

OPINION*

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Appellant Jeremiah Moore, who was incarcerated at SCI Phoenix during the

relevant time-period1 and is proceeding pro se, appeals from the District Court’s orders

dismissing Moore’s complaint and amended complaint. We will vacate the judgment of

the District Court in part, affirm in part, and remand for further proceedings.

Moore, who is asthmatic, filed an in forma pauperis complaint in June of 2021

requesting damages for numerous alleged r.nn siitutionaLviolations in relation to

Defendants’ failures to reassign Moore to a cell with a non-smoking cellmate. At the

initial screening, the District Court dismissed most of Moore’s claims either with

prejudice for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) or for lack

of subject matter jurisdiction. However, the District Court granted Moore leave to file an

amended complaint with respect to Moore’s claim against Defendant Durand based on

exposure to environmental tobacco smoke (ETSJ and any claim based upon deliberate

indifference to Moore’s serious medical needs. Moore filed an amended complaint in

July of 2022. In relation to Moore’s federal civil rights claims, the District Court

further ame.ndmp.nt would he. futile. To the extent Moore’s amended complaint reasserted

any state law negligence claims, the District Court dismissed them without prejudice to

i Moore was housed as a pre-trial detainee and has since been released.

2

Moore’s ability to bring those claims in an appropriate state forum. This appeal

followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s sua sponte dismissal under § 1915(e)(2)(B)(ii). See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a

complaint for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as that for

dismissing a complaint pursuant to a motion filed under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. See Allah. 229 F.3d at 223. To avoid dismissal, a complaint.

accepted as true, must, “state a claim that is nlausible_on itsJace” bv including facts which

“permit the court to infer more than the mere possibility of misconduct.” Ashcroft v.

Iqbal. 556 U.S. 662, 678-79 (2009).

There are two varieties of ETS Claims.2 The first is prospective. To allege that

^exposure to ETS unreasonably endangers his future health, an inmate must show (1)

2 ETS exposure claims are typically brought under the Eighth Amendment. Because

Moore was a pre-trial detainee, his claims for inadequate medical care are brought under

the Fourteenth Amendment’s substantive due process clause rather than the Eighth

Amendment. See Natale v. Camden Cty. Corr. Facility. 318 F.3d 575, 581 (3d Cir.

2003). “[T]he Fourteenth Amendment affords pretrial detainees protections at least as

great as the Eighth Amendment protections available to a convicted prisoner.” Id. So,

Moore’s claims are evaluated under the same standard used to evaluate similar claims

under the Eighth Amendment.

3

exposure to “unreasonably high” levels of ETS contrary to contemporary standards of

decency: and (2) deliberate indifference by the authorities to the exposure. See Helling v.

McKinney, 509 U.S. 25, 35-36 (1993); Atkinson v. Taylor, 316 F.3d 257, 262-63, 66 (3d

Cir. 2003). The second concerns a current or pre-existing jury.^To allege that ETS

\

exposure has aggravated a pre-existing illness, a plaintiff musEshnw, (1) a sufficiently

k

serious medical need related to the ETS exposure. Atkinson v. Taylor, 316 F.3d 257, 262

(3d Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)), and (2) deliberate

indifference by prison authorities. Id. at 266.

Regarding any claim of future harm raised by Moore, we agree with the_District

Court that Moore’s pleadings fail to satisfy the first Helling prong. ‘TPIlainly relevant” is

C Ct»( /vv£ ur&r% rw>

the fact that Moore is no longer in custody. Helling, 509 U.S. at 35-36; e.g„ Oliver v.

Deen., 77 F.3d 156, 159-60 (7th Cir. 1996) (noting that the plaintiff could not make a

future injury ETF claim when was no longer in the defendants’ custody). And other than

to vaguely state that the events giving rise to his allegations occurred on twelve different

dates over the course of three months, Moore has neglected to allege any specific facts

sufficient to plausibly demonstrate that his levels of ETS exposure were unreasonably

highu Compare Helling, 509 U.S. at 35 (holding that inmate, who bunked with cellmate

who smoked five packs a day, was exposed to unreasonably high levels of ETS), and

Atkinson, 316 F.3d at 264-65 (holding that inmate, who shared cell with two constant

4

b

smokers for seven months, was exposed to unreasonably high levels of ETS), with

Richardson v. Spurlock, 260 F.3d 495, 498 (5th Cir. 2001) (finding that sitting near

smokers sometimes is not unreasonable exposure). Moore’s unspecific allegations were

insufficient to allege a plausible prospective injury ETS exposure claim. DCT No. 13 at

5. See Bell Atl. Corp. v. Twombly. 550 U.S. 544, 555 (2007) (“Factual allegations must

be enough to raise a right to relief above the speculative level[.]”).

------ However, Moore’s original complaint alleged that the ETS exposure aggravated

his chronic asthma, which caused him to suffer difficulty breathing, woke him up at

night, required medical officials to examine whether an additional inhaler was necessary,

and interfered with his medication for an unrelated mental health concern. DCT No. 2.

Moore also claimed that the prison medical department advised him to request a cell

change from his unit manager. DCT No. 2 at 13-14. Moore’s original complaint averred

that he sent a number of requests to Defendant Durand to switch his cell assignment

because he had asthma and was-having-adverse reactions to ETS from his cellmate

smoker. DCT No. 2. Assuming, as we must, that these factual allegations are true, we.

conclude that the District Court erred in dismissing Moore’s present-injury ETS exposure

claim against Defendant Durand..

A present injury ETS exposure claim can be based on a prison official’s housing

an inmate, who has a medical need for a smoke-free environment, in a cell with a

5

e

prisoner who smokes. See Atkinson, 316 F.3d at 268 ('“FTlhe Eighth Amendment’s

objective component is vi

smoke free environment to share his cell with an inmate who smokes.” (quoting Hunt v.

Reynolds, 974 F.2d 734, 735-36 (6th Cir. 1992)); see also Atkinson. 316 F.3d at 268 at

268 (“When a susceptible prisoner is confined to a cell, a small and confined space, with

a “constant” smoker for an extended period of time, such symptoms may transform what

would otherwise be a passing annoyance into a serious ongoing medical need.”);

Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir. 2001) (finding a potential Eighth

Amendment claim where inmate alleges ETS exposure exacerbated his chronic asthma).

Thus, the factual allegations contained in Moore’s original complaint are sufficient to

plausibly assert such a claim. And the District Court appears to have erred in concluding

that Moore’s original complaint failed to sufficiently allege Defendant Durand’s

deliberate indifference. See Atkinson. 267 F.3d at 268 (“Atkinson has produced evidence

that after telling prison officials about his sensitivity to ETS no change was made in

housing conditions. This evidence demonstrates deliberate indifference on the part of

prison officials.”). The District Court did not err, however, in its dismissal for lack of

personal knowledge of Moore’s present-injury ETS exposjure_allegatlons against

Defendant’s Owens, Serber. and Varner. See Rode v. Dellarciprete, 845 F.2d 1195,

1207-1208 (3d Cir. 1988).

6

Accordingly, we will vacate the District Court’s order to the extent that it

dismissed Moore’s present-injury ETS exposure claim against Defendant Durand and

remand for further proceedings. We will otherwise affirm.3

r

3 Moore’s appellate brief does not specifically challenge or otherwise address the legal

bases asserted by the District Court in dismissing any of his other claims, including the

District Court’s findings regarding subject matter jurisdiction. We therefore deem

forfeited any challenge to those rulings. See In re Wettach, 811 F.3d 99, 115 (3d Cir.

2016) (deeming forfeited arguments that were not developed in the appellants’ opening

brief). Even had Moore preserved such challenges, we agree with the District Court’s

decision to dismiss those claims.

7

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2915

JEREMIAH MOORE,

Appellant

v.

MS. DURAND; K. OWENS; K. SORBER; D. VARNER

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:21-cv-02695)

District Judge: Honorable Juan R. Sanchez

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 17, 2023

Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

JUDGMENT

This cause came to be considered on the record from the United States District

Court for the Eastern District of Pennsylvania and was submitted pursuant to Third

Circuit LAR 34.1(a) on July 17, 2023. On consideration whereof, it is now hereby

ORDERED and ADJUDGED by this Court that the judgment of the District Court

entered the order of the District Court entered September 23, 2022, be and the same is

hereby affirmed in part and vacated in part. This matter is remanded for further

proceedings. All of the above in accordance with the opinion of this Court.

■

ATTEST:

s/ Patricia S. Dodszuweit

Clerk

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 22-2915

JEREMIAH MOORE,

Appellant

v.

MS. DURAND; K. OWENS; K. SORBER; D. VARNER

(E.D. Pa. No. 2-21-cv-02695)

SUR PETITION FOR REHEARING

Present: CHAGARES, Chief Judge. JORDAN, HARDIMAN, SHWARTZ,

KRAUSE, RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN,

MONTGOMERY-REEVES, CHUNG, and SCIRICA*. Circuit Judges

The petition for rehearing filed by appellant in the above-entitled case having been

submitted to the judges who participated in the decision of this Court and to all the other

available circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a majority of the judges of the

* As to panel rehearing only

A?feMdt>a ft

circuit in regular service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc, is denied.

BY THE COURT,

s/Anthony J. Scirica

Circuit Judge

Date:

SLC/cc:

December 4, 2023

Jeremiah Moore

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEREMIAH MOORE, et al,

Plaintiff,

CIVIL ACTION NO. 21-CV-2695

v.

DEPARTMENT OF CORRECTIONS,

et al.,

Defendants.

MEMORANDUM

SANCHEZ, C.J.

JUNE 22, 2022

Jeremiah Moore, who was formerly incarcerated at SCI Phoenix, filed this civil rights

Complaint naming as Defendants the Pennsylvania Department of Corrections (“DOC”), SCI

Phoenix, four officials at SCI Phoenix, the DOC’s Chief Secretary’s Office of Inmate Grievance

and Appeals and D. Varner.1 Moore also seeks to proceed in forma pauperis. For the following

reasons, the Court will grant Moore leave to proceed in forma pauperis and dismiss his

Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

I.

FACTUAL ALLEGATIONS

Moore asserts that on February 21, 2021, while he in custody at SCI Phoenix, he sent a

request to Defendant Ms. Durand, a Unit Manager on E block, asking to be housed in a different

cell with a non-smoker. Moore informed Durand that he had asthma and exposure to

environmental tobacco smoke (“ETS”) was placing his health at risk. (Compl., ECF No. 2, at 3.)

Durand responded that she could not move him at that time. (Id. at 3, 11.) Moore sent another

i

Moore filed a change of address with tl^e Clerk of Court on September 13, 2021

indicating he was no longer incarcerated at SCI Phoenix, but had been moved to a community

correctional center. (ECF No. 5.) On December 15, 2021, he filed another change of address

indicating he was released to his home. (ECF No. 7.)

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 2 of 17

request on February 7, 2021, again complaining that his asthma was bothered by ETS. (Id. at 3

(alleging that ETS was “causing me to suffer to breath”), see also id. at 12 (stating in request

form that ETS “triggers my asthma with the attacks”). Moore sent a third request to Durand on

February 15, 2021, in which he also requested not to be housed with a homosexual inmate

“because its [sic] against my religion.” (Id. at 3, 13.) In that request he told Durand he had

“multiple asthma attacks” that woke him up’ at night because he wheezes when he lays down.

(Id. at 13.)

On February 20, 2021 Moore filed a grievance about Durand’s lack of action on his

request. (Id. at 3, 14.) The grievance listed his three request forms to Durand, and stated that

Moore had also written to the prison medical department, which was working to get him an

asthma inhaler. (Id. at 14.) His grievance asserted he was being forced to live under unhealthy

conditions because his cellmate smoked, and mental health medication Moore took caused him

to sleep heavily and made it hard for him to wake up when he felt an asthma attack. (Id.) The

grievance was rejected on February 23, 2021 by Defendant K. Owens on the ground that it was

not submitted within 15 working days of the events upon which the claims were based. (Id. at 3,

15.) Moore’s appeal of the denial of the grievance was rejected by Defendant K. Sorber. (Id. at

4, 14.) Moore then filed a final appeal to the DOC Chief Secretary’s Office of Inmate

Grievances and Appeals on March 12, 2021. (Id. at 4, 18.) The final appeal was rejected by

Defendant Varner. (Id. at 19.)

Moore asserts that Durant, Owens, Sorber, and Varner each violated his “10th

Amendment of the U.S. Constitution by negligence to render relief’ by confining him in

unhealthy prison conditions. (Id. at 6-7.) He also asserts each violated his due process rights and

inflicted cruel and unusual punishment in violation of his Eighth Amendment rights, and he also

2

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 3 of 17

cites the Universal Declaration of Human Rights. (Id.) Finally, Moore alleges a violation of his

equal protection rights under the Fourteenth Amendment “in the negligence to a serious medical

condition” because his cell assignment was not changed. (Id. at 8.) Moore seeks a declaration

that his rights were violated, an injunction ordering Defendants to “cease their negligence” and

move him to a cell with a non-smoking, non-homosexual cellmate, and pay him money damages.

(Id. at 8-9.)

II.

STANDARD OF REVIEW

Moore is granted leave to proceed in forma pauperis. Accordingly, 28 U.S.C. §

1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. Whether

a complaint fails to state a claim under § 1915 (e)(2)(B)(ii) is governed by the same standard

applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher

v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether

the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). “At this

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

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

complaint, liberally construed,... contains facts sufficient to state a plausible [] claim.’-”

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

768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678.

Furthermore, the Court must dismiss any claims over which it lacks subject matter jurisdiction.

Fed. R. Civ. P. 12(h)(3). As Moore is proceeding pro se, the Court construes his allegations

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

Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

3

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 4 of 17

III.

DISCUSSION

Moore seeks money damages and other relief due to alleged violations of his civil rights.

The vehicle by which federal constitutional claims may be brought in federal court is 42 U.S.C. §

1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A.

Declaratory and Injunctive Relief

In addition to money damages, Moore seeks a declaration that his rights have been

violated and an injunction directing prison officials to house him in with a non-smoking, non­

homosexual cell mate. Both of these forms of relief are improper. Declaratory relief is

unavailable to adjudicate past conduct, so Moore’s request for a declaration that his rights were

violated in the past is improper. See Corliss v. O’Brien, 200 F. App’x 80, 84 (3d Cir. 2006) {per

curiam) (“Declaratory judgment is inappropriate solely to adjudicate past conduct” and is also

not “meant simply to proclaim that one party is liable to another.”); see also Andela v. Admin.

Office of U.S. Courts, 569 F. App’x 80, 83 (3d Cir. 2014) (per curiam) (“Declaratory judgments

are meant to define the legal rights and obligations of the parties in the anticipation of some

future conduct.”). A declaratory judgment is also not “meant simply to proclaim that one party is

liable to another.” Corliss, 200 F. App’x at 84 (per curiam); see also Taggart v. Saltz, No. 203574, 2021 WL 1191628, at *2 (3d Cir. Mar. 30, 2021) (per curiam) (“A declaratory judgment is

available to define the legal rights of the parties, not to adjudicate past conduct where there is no

threat of continuing harm.”).

The request for prospective injunctive relief is moot since Moore is no longer

incarcerated at SCI Phoenix or otherwise in the custody of the Pennsylvania Department of

4

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 5 of 17

Corrections. Mootness is a jurisdictional “doctrine that ‘ensures that the litigant’s interest in the

outcome continues to exist throughout the life of the lawsuit,”’ and “is ‘concerned with the

court’s ability to grant effective relief.’” Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017)

(quoting Freedom from Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469,

476 (3d Cir. 2016), and Cty. ofMorris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir.

2001)). “[T]he central question of all mootness problems is whether changes in circumstances

that prevailed at the beginning of the litigation have forestalled any occasion for meaningful

relief.” Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985) (citation

omitted). Moore’s release from custody at SCI Phoenix is such a change in circumstance

because his release means that he can no longer be subjected to the conditions of confinement of

which he complains, namely exposure to ETS and being housed with a homosexual cellmate, and

the Court cannot fashion any form of appropriate injunctive relief. Accord Williams v. Sec ’y

Pennsylvania Dep’t of Corr., 447 F. App’x 399, 403 (3d Cir. 2011) (finding prospective

injunctive relief seeking the elimination of distinctions between sex offenders and other

offenders with respect to community correction center placement was moot because prisoner had

been released and the condition that he obtain placement in a CCC was waived); Sutton v.

Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (stating that “[a]n inmate’s transfer from the facility

complained of generally moots the equitable and declaratory claims”); Marshall v. Pa. Dep’t of

Corr., 499 F. App’x 131, 134 (3d Cir. 2012) (concluding that because Marshall “asked for an

injunction that restrains SCI-Mahanoy officials from violating his civil rights, but he has now

been transferred out from under their control[,] . . . the District Court was unable to fashion any

form of meaningful relief against these defendants, and thus the motion for injunctive relief was

5

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 6 of 17

moot”). Accordingly, Moore’s requests for declaratory relief is dismissed as not plausible and

his request for injunctive relief is dismissed as moot.

B.

Claims for Money Damages

1.

Claims Against the Department of Corrections and its Entities

Moore seeks money damages against the DOC, the DOC’s Chief Secretary’s Office of

Inmate Grievance and Appeals, and SCI Phoenix. These claims are not plausible. States and

their agencies, like the DOC, are not considered “persons” for purposes of § 1983. See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 65-66 (1989). Furthermore, the Eleventh Amendment

bars suits against a state and its agencies in federal court that seek monetary damages. See

Pennhurst State Sch. And Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984); A. W. v. Jersey City

Public Schs., 341 F.3d 234, 238 (3d Cir. 2003). The Commonwealth of Pennsylvania has not ,

waived that immunity. See 42 Pa. Cons. Stat. § 8521(b). Since the DOC’s Chief Secretary’s

Office of Inmate Grievance and Appeals and SCI Phoenix are both entities within the DOC, they

are also entitled to Eleventh Amendment immunity and are not “persons” for purposes of § 1983.

Lavia v. Pennsylvania, Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (explaining that,

“[bjecause the Commonwealth of Pennsylvania’s Department of Corrections is a part of the

executive department of the Commonwealth, it shares in the Commonwealth’s Eleventh

Amendment immunity” and is also not considered a person for purposes of § 1983); see also

Pettaway v. SCI Albion, 487 F. App’x 766, 768 (3d Cir. 2012) (per curiam) (“[A]s a state agency

and the prison it administers, the Department of Corrections and SCI-Albion are not ‘persons’

and thus cannot be sued under 42 U.S.C. § 1983.”).

The Eleventh Amendment serves as “a jurisdictional bar which deprives federal courts of

subject matter jurisdiction.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n.2 (3d Cir.

6

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 7 of 17

1996). As this dismissal based on Eleventh Amendment immunity is for lack of subject-matter .

jurisdiction, the dismissal is without prejudice even though Moore cannot reassert another claim

for monetary relief against the DOC, the DOC’s Chief Secretary’s Office of Inmate Grievance

and Appeals, or SCI Phoenix in this court. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172,

182 (3d Cir. 1999) (agreeing that “a dismissal for lack of subject-matter jurisdiction is not an

adjudication on the merits and thus should be ordered ‘without prejudice’ ” (citations omitted)).

2.

Exposure to ETS

Although he repeatedly uses the term “negligence” in his Complaint, the Court

understands Moore to be asserting constitutional claims against the named Defendants for failing

to provide him a smoke-free environment. Exposure to ETS experienced by a convicted prisoner

is analyzed under the Eighth Amendment. Murray v. Wetzel, No. 17-1637, 2021 WL 5500511,

at *2 (M.D. Pa. Nov. 23, 2021) (“It is well established that a prisoner can bring a claim under the

Eighth Amendment for exposure “to levels of ETS that pose an unreasonable risk of serious

damage” to the inmate’s health.”); Mearin v. Swartz, 951 F. Supp. 2d 776, 780 (W.D. Pa. 2013).

In order to pass statutory screening on an Eighth Amendment claim based on exposure to ETS, a

prisoner must allege plausibly that he has been “exposed to unreasonably high levels of ETS

contrary to contemporary standards of decency; and ... that the authorities were deliberately

indifferent to the exposure to ETS. Mearin, 951 F. Supp. 2d at 780-81 (citing Brown v. U.S.

Justice Dep’t, 271 F. App’x 142, 144 (3d Cir. 2008) (citing Helling v. McKinney, 509 U.S. 25,

35 (1993))). The prisoner must allege plausibly that the official was “both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. (citing Wilson v. Burks, 423 F. App’x 169, 173 (3d Cir.

2011), quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

7 .

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 8 of 17

Moore’s allegations fail to meet this standard, and the claim must be dismissed. While he

asserts that he asked Defendant Durand to change his cell assignment because exposure to ETS

placed his health at risk, and his asthma was bothered by ETS, he fails to allege that the level of

ETS to which he was exposed was unreasonable, contrary to contemporary standards, or

excessive. Compare, e.g., Helling, 509 U.S. at 35 (holding that bunking with a cellmate who

smoked five packs of cigarettes per day exposed an inmate to an unreasonable risk of future

harm from ETS exposure), and Atkinson v. Taylor, 316 F.3d 257, 259 (3d Cir. 2003) (holding

that a prisoner who claimed that he had shared a cell with constant smokers for many months

stated a claim for a violation of a clearly established right), with Richardson v. Spurlock, 260

F.3d 495, 498 (5th Cir. 2001) (holding that sitting near some smokers sometimes is not an

unreasonable exposure to ETS) and Pryor-El v. Kelly, 892 F. Supp. 261, 267 (D.D.C. 1995)

(dismissing an ETS claim in which the plaintiff alleged “only that various unnamed inmates and

prison officials smoke ‘in the TV room, games room, and the letter writing room’”). See

also Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001) (“The Eighth Amendment does not

require prisons to provide prisoners with more salubrious air . . . than are enjoyed by substantial

numbers of free Americans.”).

Moreover, Moore’s assertions that his asthma was “bothered” by ETS, that ETS was

“causing [him] to suffer to breath,” that it “triggers my asthma with the attacks,” and he had

“multiple asthma attacks” that woke him up at night {see Compl. at 3, 12, 13), is markedly less

detailed than those situations where courts have found that symptoms of ETS exposure were

sufficient to pass the plausibility threshold. See, e.g., Murry, 2021 WL 5500511, at *3 (noting

diagnosis of “allergic rhinitis . . . from smoke exposure triggering mucus production”; “constant

heavy mucus/sputum build up in [his] chest area and nostrils,” “difficulty breathing during

8

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 9 of 17

exertion,” “mucus build-up in his nose, throat, chest and lungs,” post-nasal drip and cough, and

“mild hypertrophy” and “congestion” in his nose; and that he repeatedly treated for these

conditions (including having a chest X-ray and bloodwork performed); Atkinson, 316 F.3d at 268

(allegations of “nausea, inability to eat, headaches, chest pains, difficulty breathing, numbness in

his limbs, teary eyes, itching, burning skin, dizziness, sore throat, coughing and production of

sputum” sufficient); Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (allegations of

aggravation of asthma sufficient where prisoner alleged his asthma medication had to be

increased); Weaver v. Clarke, 45 F.3d 1253, 1254, 1256 (8th Cir. 1995) (allegations of “severe

headaches, dizziness, nausea, vomiting, and breathing difficulties” sufficient); Brown v.

DiGuglielmo, 418 F. App’x 99, 102 (3d Cir. 2011) (per curiam) (allegations of “sinus

congestion, headaches, tightness of the lungs, and difficulty breathing” sufficient); Mearin, 951

F. Supp. 2d at 781 (allegations of “coughs, headaches, chest pains, shortness of breath, vomiting,

and fatigue” sufficient); but see Torres v. Beard, No. 08-200, 2009 WL 1684682, at *1, *7 (W.D.

Pa. June 16, 2009) (allegation of exacerbation of asthma found sufficient). Finally, Moore’s

ability to assert a plausible claim of unreasonable exposure must be viewed in light of his

allegation that the exposure began in February 2021, but he was released from SCI Phoenix in

September 2021. See Oliver v. Been, 77 F.3d 156, 160-61 (7th Cir. 1996) (summary judgment

granted dismissing Eighth Amendment medical indifference claim where prisoner’s medical

records evaluated his asthma as only a mild case and he received medication and an inhaler, and

record showed he shared a cell with a smoker for only 133 days). Nonetheless, because the

Court cannot say at this time that Moore can never allege a plausible Eighth Amendment claim

against Durand based on unreasonable exposure to ETS, the dismissal of this claim will be

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without prejudice and Moore will be provided the opportunity to file an amended complaint to

flesh out his allegations in order to cure the defects in his ETS claim.

3.

Claims Based on Grievance Process

Intertwined with his allegations of exposure to ETS and his attempts to have Durand

change his cell assignment, Moore asserts that his grievance about the failure to change his cell

was denied at all levels by the other named individual Defendants. He also alleges in conclusory

fashion that his due process rights were violated. To the extent that Moore asserts a separate

constitutional claim based on the handling by the Defendants of his grievance over his lack of

reassignment, that claim is not plausible and will be dismissed with prejudice.

Claims based on the handling of prison grievances fail because “[pjrison inmates do not

have a constitutionally protected right to a grievance process.” Jackson v. Gordon, 145 F. App’x

774, 777 (3d Cir. 2005) (per curiam)', see also Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir.

2009) (per curiam). Additionally, the handling of a prisoner’s grievance is generally insufficient

to show personal involvement to in the underlying violation. See also Woods v. First Corr. Med.

Inc., 446 F. App’x 400, 403 (3d Cir. 2011) (per curiam) (“[Bjecause a prisoner has no free­

standing constitutional right to an effective grievance process, [a prisoner] cannot maintain a

constitutional claim ... based upon his perception that [the defendant] ignored and/or failed to

properly investigate his grievances.” (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991))).

Moreover, to the extent Moore seeks to hold prison officials who were involved in his grievance

process liable on his underlying ETS exposure claim, that too fails to allege a plausible claim.

See Folk v. Prime Care Med., 741 F. App’x 47, 51 (3d Cir. 2018) (per curiam) (“Although some

of these defendants were apparently involved in responding to some of Folk’s prison grievances,

there are no allegations linking them to the underlying incidents and thus no basis for liability

10

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based on those later grievance reviews.”); Curtis v. Wetzel, 763 F. App’x 259, 263 (3d Cir. 2019)

(per curiam) (“The District Court properly determined that Defendants [Superintendent]

Wenerowicz, Lewis, and Shaylor - who participated only in the denial of Curtis’ grievances lacked the requisite personal involvement [in the conduct at issue].”). Accordingly, the facts

alleged by Moore about grievances do not give rise to a plausible basis for a constitutional claim.

The dismissal of the grievance claims will be with prejudice since any attempt at amendment

would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002).

4.

Medical Indifference Claims

Although Moore mentions that exposure to ETS placed his health at risk and mentions he

contacted the prison medical department to get an asthma inhaler, it is not entirely clear if seeks

to also raise a separate claim that any of the named Defendants, none of whom are medical

providers, were deliberately indifferent to his serious medical needs. To state a constitutional

claim based on the failure to provide medical treatment, a prisoner must allege facts indicating

that prison officials were deliberately indifferent to his serious medical needs. See Farmer, 511

U.S. at 835. A prison official is not deliberately indifferent “unless the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Id. at 837. “A medical need is serious,... if it is one that has

been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person

would easily recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal quotations omitted). Deliberate

indifference is properly alleged “where the prison official (1) knows of a prisoner’s need for

medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment

11

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based on a non-medical reason; or (3) prevents a prisoner from receiving needed or

recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A

serious medical need exists where “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).

Allegations of medical malpractice and mere disagreement regarding proper medical treatment

are insufficient to establish a constitutional violation. See Spruill v. Gillis, 372 F.3d 218, 235 (3d

Cir. 2004). Furthermore, “[a] defendant in a civil rights action must have personal involvement

in the alleged wrongs” to be liable. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (“Personal involvement requires

particular ‘allegations of personal direction or of actual knowledge and acquiescence.’” (quoting

Rode, 845 F.2d at 1207)).

Moore does not assert that any of the named Defendants refused, delayed, or prevented

him from receiving needed or recommended medical treatment. Any such claim is, therefore,

not plausible. Moreover, “[i]f 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.” See

Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004); see also Carter v. Smith, 483 F. App’x 705,

708 (3d Cir. 2012) (per curiam) (“Prison officials cannot be held to be deliberately indifferent

merely because they did not respond to the medical complaints of a prisoner who was already

being treated by the prison medical staff”). However, because the Court cannot say that Moore

can never assert a plausible deliberate indifference claim, the dismissal will be without prejudice

and Moore will be afforded the opportunity to amend this claim as well.

12

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5.

First Amendment Religion Claim

It is also unclear whether Moore is asserting a separate claim that his First Amendment

freedom of religion rights were violated. His third request to Defendant Durand for a cell

reassignment on February 15, 2021 also requested not to be housed with a homosexual inmate

“because its [sic] against my religion.” (Compl. at 3, 13.) He also mentioned this request in

several grievance forms. To the extent Moore attempts to raise a religious freedom claim, it is

not plausible.

Although inmates retain certain protections afforded by the First Amendment, “lawful

incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a

retraction justified by the considerations underlying our penal system.” O ’Lone v. Shabazz, 482

U.S. 342, 348 (1987) (quotations omitted). While federal courts must take cognizance of valid

constitutional claims of prison inmates, the Supreme Court has repeatedly cautioned that the task

of prison administration has been committed to the responsibility of the legislative and executive

branches of government, and that federal courts should be reluctant to second guess these

authorities. See, e.g., Turner v. Safley, 482 U.S. 78, 84 (1987); O’Lone, 482 U.S. at 353.

Importantly, “those courts confronted with the question of whether inmates have a constitutional

right to choose a cellmate have held that no such right exists.” Murray v. Bledsoe, 650 F.3d 246,

247 (3d Cir. 2011) (citing Harris v. Greer, 750 F.2d 617, 618 (7th Cir. 1984), and Cole v.

Benson, 760 F.2d 226, 227 (8th Cir. 1985) (per curiam))-, see also Drayton v. Cohen, No. 103171, 2012 WL 666839, at *6 (D.S.C. Feb. 29, 2012) (“For obvious reasons, courts have widely

rejected any notion that a prisoner has any constitutional right to choose his cellmate”), aff’d,

474 F. App’x 991 (4th Cir. 2012). Courts have also rejected claims based on cell, or cellmate,

assignments even where the assignment allegedly had an adverse effect on the inmate’s ability to

13

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practice his religion. For example, in Ochs v. Thalacker, 90 F.3d 293 (8th Cir. 1996), the United

States Court of Appeals for the Eighth Circuit held that state prison “officials properly rejected

Ochs’s request for racially segregated living quarters even if that substantially burdened his

sincerely held religious beliefs,” since the defendants’ decisions as to cell assignments

implicated institutional security, and “allowing such exceptions would create serious

administrative and security problems.” Id. at 296-97 (emphasis added). Accordingly, any

religion claim for money damages based on Moore’s being housed with certain cellmates is

dismissed with prejudice.

6.

Claims Based on the Universal Declaration of Human Rights

Moore invokes the Universal Declaration of Human Rights as a basis for his claims. As

the United States Court of Appeals for the Third Circuit has recognized, “the Universal

Declaration of Human Rights is a non-binding declaration that provides no private rights of

action.” See United States v. Chatman, 351 F. App’x 740, 741 (3d Cir. 2009) (citing Sosa v.

Alvarez-Machain, 542 U.S. 692, 734 (2004)) (explaining that the Universal Declaration of

Human Rights is merely a resolution of the United Nations and “does not of its own force

impose obligations as a matter of international law”). District courts throughout this Circuit have

routinely dismissed claims brought under the Universal Declaration of Human Rights with

prejudice for failure to state a claim or as legally frivolous. See, e.g., Best v. S.C.I. Huntingdon,

No. 19-01599, 2019 WL 5866707, at *5 (M.D. Pa. Oct. 9, 2019), report and recommendation

adopted, 2019 WL 5868259 (M.D. Pa. Nov. 8, 2019) (recommending dismissal of claims under

the Universal Declaration of Human Rights for failure to state a claim upon which relief can be

granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(l) in a prisoner civil rights

action); Hamilton v. Dolce, No. 18-2615, 2019 WL 4509375, at *3 (D.N.J. Sept. 19, 2019)

14

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(dismissing with prejudice pro se prisoner’s claims for violations of the Universal Declaration of

Human Rights); Pavalone v. Pres. Mgmt. Inc., No. 18-191, 2019 WL 1117931, at *3 (M.D. Pa.

Jan. 8, 2019), report and recommendation adopted, 2019 WL 1117919 (M.D. Pa. Mar. 11, 2019)

(recommending dismissal of non-prisoners’ claims for the “alleged violation[s] of their rights

under the Universal Declaration of Human Rights ... as legally frivolous, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i)). Accordingly, to the extent Moore raises claims against the Defendants for

violating the Universal Declaration of Human Rights, they are dismissed with prejudice as any

amendment would be futile.

7.

Negligence Claims

While negligence is not a constitutional standard, see Daniels v. Williams, 474 U.S. 327,

328 (1986) (holding that official’s mere negligence is not actionable under § 1983 because “the

Due Process Clause is simply not implicated by a negligent act of an official causing unintended

loss of or injury to life, liberty, or property”), read liberally Moore may be seeking to assert state

law claims in his Complaint based on the negligence of the Defendants. Because the Court has

dismissed his federal claims, the Court will not exercise supplemental jurisdiction under 28

U.S.C. § 1367(c) over any state law claims. Accordingly, the only independent basis for

jurisdiction over any such claims is 28 U.S.C. § 1332(a), which grants a district court jurisdiction

over a case in which “the matter in controversy exceeds the sum or value of $75,000, exclusive

of interest and costs, and is between ... citizens of different States.”

Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’

even though only minimal diversity is constitutionally required. This means that, unless there is

some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any

defendant.’” Lincoln Ben. Life Co. v. AElLife, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting

15

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Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood,

592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). An individual is a citizen of the

state where he is domiciled, meaning the state where he is physically present and intends to

remain. See Washington v. Hovensa LLC, 652 F.3d 340, 344 (3d Cir. 2011). “[T]he domicile of

a prisoner before his imprisonment presumptively remains his domicile during his

imprisonment.” Pierro v. Kugel, 386 F. App’x 308, 309 (3d Cir. 2010). It is the plaintiff s

burden to establish diversity of citizenship. See Gibbs v. Buck, 307 U.S. 66, 72 (1939); Quaker

State Dyeing & Finishing Co., Inc. v. ITT Terryphone Corp., 461 F.2d 1140, 1143 (3d Cir. 1972)

(stating that, in diversity cases, the plaintiff must demonstrate complete diversity between the

parties and that the amount in controversy requirement has been met); Jackson v. Rosen, C.A.

No. 20-2842, 2020 WL 3498131, at *8 (E.D. Pa. June 26, 2020).

Moore does not allege the citizenship of the parties. Rather, he provides only

Pennsylvania addresses for himself and the Defendants, which suggests that he and some, if not

all, of the Defendants may be Pennsylvania citizens. Accordingly, Moore has not sufficiently

alleged that the parties are diverse for purposes of establishing the Court’s jurisdiction over any

state law negligence claims he intends to pursue.

IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss Moore’s Complaint in part with

prejudice and in part without prejudice. His claims for declaratory relief, as well as all claims

based on the handling of prison grievances, a violation of his First Amendment freedom of

religion, and a violation of the Universal Declaration of Human Rights are dismissed with

prejudice. Moore’s claim against Defendant Durand based upon exposure to ETS and any claim

asserting deliberate indifference to a serious medical need are dismissed without prejudice. His

16

Case 2:21-cv-02695-JS Document 10 Filed 06/22/22 Page 17 of 17

r

moot claim for injimctive relief, his claims against the DOC, the DOC’s Chief Secretary’s Office

of Inmate Grievance and Appeals, SCI Phoenix, and all state law negligence claims are

dismissed without prejudice for lack of subject matter jurisdiction. An appropriate order follows

giving Moore instructions on filing an amended complaint if he seeks to reassert his ETS claim.

BY THE COURT:

/s/ Juan R. Sanchez

JUAN R. SANCHEZ, C.J.

17

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEREMIAH MOORE, et al.,

Plaintiff, •

CIVIL ACTION NO. 21-CV-2695

v.

MS. DURAND, etal.,

Defendants.

MEMORANDUM

SANCHEZ, C.J.

SEPTEMBER 23, 2022

Jeremiah Moore, a former prisoner1 proceeding pro se, initiated this civil rights action in

2021 with respect to alleged violations of his constitutional rights during his incarceration at SCI

Phoenix. By prior Memorandum, see Moore v. Dep’t of Corr., No. 21-2695, 2022 WL 2240086,

at *3 (E.D. Pa. June 22, 2022), the Court granted Moore leave to proceed in forma pauperis and

dismissed his Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). The majority of Moore’s claims

were either dismissed with prejudice or dismissed for lack of subject matter jurisdiction.

However, the Court granted Moore leave to file an amended complaint with respect to two

claims. Moore filed an Amended Complaint on July 22, 2022. (Am. Compl., ECF No. 12.) For

the following reasons, the Court will dismiss Moore’s Amended Complaint for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

1 Moore filed a change of address with the Clerk of Court on September 13, 2021 indicating he

had been released from prison. (ECF No. 5.) Based on a review of the public record related to

Moore’s underlying criminal offenses, it appears that Moore was a pretrial detainee at the time of

the events alleged in the Amended Complaint. See Commonwealth v. Moore, CP-46-CR0006395-2019 (C.P. Montgomery).

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 2 of 11

I.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

In his original Complaint, Moore alleged that exposure to environmental tobacco smoke

(“ETS”) at SCI Phoenix in February of 2021 was placing his health at risk because he had

asthma and was unable to secure a new housing placement in a cell with a non-smoker. (Compl.,

ECF No. 2, at 3, 11-13.) After his multiple requests to be rehoused were not acted upon, Moore

alleged that he grieved prison officials’ inaction asserting that he was being forced to live under

unhealthy conditions because his cellmate smoked. (Id. at 3, 14.) Moore’s initial grievance and

his two subsequent appeals were rejected. (Id. at 3, 14-15, 18-19.) Based on these allegations,

Moore asserted claims that Defendants violated his “10th Amendment of the U.S. Constitution

by negligence to render relief’ by confining him in unhealthy prison conditions, subjected him to

cruel and unusual punishment in violation of the Eighth Amendment, violated his due process

rights, and denied him equal protection under the Fourteenth Amendment. (Id. at 6-8.)

Upon screening Moore’s original Complaint, the Court dismissed several claims without

permitting amendment. Specifically, the Court dismissed Moore’s claims for money damages

against the Department of Corrections (“DOC”), and other Commonwealth entities that he

named because the Commonwealth and its entities are not “persons” as that term is used in 42

U.S.C. § 1983 and because the Eleventh Amendment bars claims for money damages against

those entities. Moore was advised that he could not “reassert another claim for monetary relief

against the DOC, the DOC’s Chief Secretary’s Office of Inmate Grievance and Appeals, or SCI

Phoenix in this court.” Moore , 2022 WL 2240086, at *3. Additionally, the Court dismissed

Moore’s “constitutional claim based on the handling ... of his grievance over his lack of

reassignment” with prejudice finding that such a claim was not plausible, and amendment would

be futile. Id. at *4. Moore’s “claims for declaratory relief,... a violation of his First

2

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 3 of 11

Amendment freedom of religion, and a violation of the Universal Declaration of Human Rights

[were also] dismissed with prejudice.” Id. at *7.

Two claims were dismissed without prejudice. Moore’s Eighth Amendment deliberate

indifference claim based on exposure to ETS was dismissed because Moore failed to “allege that

the level of ETS to which he was exposed was unreasonable, contrary to contemporary

standards, or excessive” and because Moore’s allegations related to his symptoms from ETS

exposure were “markedly less detailed than those situations where courts have found that

symptoms of ETS exposure were sufficient to pass the plausibility threshold.” Id. at *3-*4.

Moore’s Eighth Amendment deliberate indifference claim based on an alleged failure to provide

medical treatment was dismissed because Moore failed to “assert that any of the named

Defendants refused, delayed, or prevented him from receiving needed or recommended medical

treatment.” Id. at *5. Moore was permitted to file an amended complaint with respect to these

two claims.

On July 22, 2022, Moore filed his Amended Complaint naming the same individual

Defendants that he named in his original Complaint: (1) Ms. Durand, a Unit Manager at SCI

Phoenix; (2) K. Owens, the Facility Grievance Coordinator at SCI Phoenix; (3) K. Sorber,

Facility Manager at SCI Phoenix; and (4) D. Varner, an Inmate Grievance and Appeals Officer at

the DOC’s Chief Secretary’s Office. (Am. Compl. at 2-3.) The allegations of the Amended

Complaint are brief. Moore asserts that “a tort was commit[t]ed against” him while he was

incarcerated at SCI Phoenix from February to April of 2021 because he “was forced to live in

pollution ... [and] forced to breathe harmful toxins caused by second hand smoke” despite

having asthma - a chronic illness[.]” (Id. at 5.) Moore reiterates his assertion that he “suffered

to breathe [for] 6 months[,]” and alleges that Durand, Owens, Sorber, and Vamer, “all showed

3

1

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 4 of 11

negligence to [his] health” in their handling of his requests for a housing transfer, and his related

grievances and appeals.2 (Id.) Moore asserts that Defendants violated his rights under the First,

Fifth, Eighth, Ninth, and Fourteenth Amendments. (Id. at 3.)

Moore claims that these violations resulted in his “pain, suffering, and distress” and that

he required relief because he was suffering to breathe, but it was not within the authority of the

medical department to rehouse him. (Id. at 5, 8.) Moore seeks $250,000 in compensation for his

“pains, distress, and sufferings” and $100,000 in punitive damages for negligence. (Id. at 5.)

II.

STANDARD OF REVIEW

The Court previously granted Moore leave to proceed in forma pauperis. Accordingly,

28 U.S.C. § 1915('ey2)(B)(ii) requires the Court to dismiss the Amended Complaint if it fails to

state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by

the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure

12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the

Court to determine whether the comnlaint contains “sufficient factual matter, accented as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quotations omitted). “At this early stage of the litigation,’ ‘[the Court will] accept the facts

alleged in [thepro se amended] complaint as true,’ ‘draw[] all reasonable inferences in [the

plaintiffs] favor,’ and ‘ask only whether [that] complaint, liberally construed,... contains facts

2 The Court previously dismissed with prejudice any attempt by Moore to assert “a separate

constitutional claim based on the handling by the Defendants of his grievance over his lack of

reassignment” related to his exposure to ETS. Moore, 2022 WL 2240086, at *4 (“Accordingly,

the facts alleged by Moore about grievances do not give rise to a plausible basis for a

constitutional claim. The dismissal of the grievance claims will be with prejudice since any

attempt at amendment would be futile.”) To the extent Moore’s Amended Complaint seeks to

reassert such a claim, it is again dismissed for the reasons previously stated. Id.

4

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sufficient to state a plausible H claim.’” Shorter v. United States, 12 F.4th 366, 374 (3d Cir.

2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory

allegations do not suffice. Iqbal, 556 U.S. at 678.

As Moore is proceeding pro se, the Court construes his allegations liberally. Vogt v.

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

244-45 (3d Cir. 2013)). “This means we remain flexible, especially ‘when dealing with

imprisoned pro se litigants [.]”’ Vogt, 8 F.4th at 185 (quoting Mala, 704 F.3d at 244. The Court

will “apply the relevant legal principle even when the comp1aint_has failed-to name it.” Id.

‘“[P]ro se litigants still must allege sufficient facts in their complaints to support a claim.’” Vogt,

8 F.4th at 185 (quoting Mala, 704 F.3d at 245). However, “liberal construction of a pro se

amended complaint does not mean accumulating allegations from superseded pleadings.”

Argentina v. Gillette, 778 F. App’ x 173, 175 n.3 (3d Cir. 2019).

III.

DISCUSSION

Moore seeks money damages due to alleged violations of his civil rights. The vehicle by

which federal constitutional claims may be brought in

,3 “To

state a claim under § 1983.. a plaintiff must allege the violation of a right secured by the

3 Much like his original Complaint, Moore continues to allege that Defendants acted negligently

with respect to his exposure to ETS while incarcerated at SCI Phoenix. (See, e.g., Am. Compl.

5) (“Ms. Durand, K. Owens, K. Sorber, D. Varner all showed negl[i]gence to my health .. .”);

(id.) (requesting punitive damages “for negl[i]gence”); (cf. id.) (asserting that “[t]here was a tort

committed against” Moore). However, Moore specifically seeks to bring his claims under §

1983, and repeatedly asserts that Defendants violated his constitutional rights. (See id. at 3)

(affirmatively checking the box to bring a claim under § 1983 and citing alleged violations of

various Constitutional Amendments); (see also id. at 5) (alleging that Defendants conduct was

“in violation of [his] Constitutional rights.”). Accordingly, the Court analyzes Moore’s claims in

Amended Complaint under § 1983.

5

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Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A.

Eighth Amendment Deliberate Indifference Claim for Exposure to ETS

The Court understands Moore to again assert an Eighth Amendment deliberate

indifference claim against Defendants in their individual capacities based on Moore’s exposure

to ETS at SCI Phoenix.4 As the Court previously explained, when a convicted prisoner is

exposure to ETS, the legal analysis proceeds under the Eighth Amendment.5 Moore, 2022 WL

2240086, at *3 (citing Murray v. Wetzel, No. 17-1637, 2021 WL 5500511, at *2 (M.D. Pa. Nov.

4 Moore’s Amended Complaint was filed utilizing the Court’s standard form for a prisoner filing

a civil rights complaint. In completing this form, Moore checked the box for each Defendant

indicating that he seeks to bring his claims for money damaged against them in their official

capacities. Moore does not appear to understand the implication of checking the official capacity

box. Claims against state employees such as Defendants Durand, Owens, Sorber, and Varner,

named in their official capacity are indistinguishable from claims against the Commonwealth.

See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits ... ‘generally

represent only another way of pleading an action against an entity of which an officer is an

agent.’”) (quoting Monell v. N.Y.C. Dept. ofSoc. Servs., 436 U.S. 658, 690, n. 55 (1978)). “[A]n

official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”

Id.

Because Moore’s Amended Complaint does not attempt to allege an official capacity claim,

see Monell, 436 U.S. at 694, the Court will liberally construe the Amended Complaint to assert

claims against Defendants in their individual capacities instead. See Downey v. Pa. Dep’t of

Corr., 968 F.3d 299, 310 (3d Cir. 2020) (“To determine whether a plaintiff sued state officials in

their official capacity, we first look to the complaints and the course of proceedings.” (quotations

omitted)); Coward v. City ofPhiladelphia, No. 21-1619, 2021 WL 4169422, at *3 (E.D. Pa.

Sept. 13, 2021) (permitting claim against defendant in his individual capacity to proceed event

though “[plaintiff] did not check the box indicating a desire to sue [that defendant] in his

individual capacity” where the allegations clearly sought relief based on the defendant’s

conduct]. Furthermore, this construction of Moore’s Amended Complaint is consistent with the

DOC in

2240086, at *3.

5 {Although it appears on amendment that Moore’s ETS claim is brought pursuant to the Due

Process Clause of the Fourteenth Amendment, “Eighth Amendment standards are nonetheless

applicable as the minimal standard that must be met.” See Aruanno v. Green, 527 F. App’x 145,

146 n.l (3d Cir. 2013)J

6

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23, 2021) (“It is well established that a prisoner can bring a claim under the Eighth Amendment

for exposure “to levels of ETS that pose an unreasonable risk of serious damage” to the inmate’s

health.”); Mearin v. Swartz, 951 F. Supp. 2d 776, 780 (W.D. Pa. 2013)). In order to pass

statutory screening on an Eighth Amendment claim based on exposure to ETS, a prisoner must

allege plausibly that he has been “exposed to unreasonably high levels of ETS contrary to

contemporary standards of decency; and ... that the authorities were deliberately indifferent to

the exposure to ETS. Mearin, 951 F. Supp. 2d at 780-81 (citing Brown v. U.S. Justice Dep’t, 271

F. App’x 142, 144 (3d Cir. 2008) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993))). The

prisoner must allege plausibly that the official was “both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Id. (citing Wilson v. Burks, 423 F. App’x 169, 173 (3d Cir. 2011), quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)).

fThe Court previously found that Moore’s allegations failed to meet this standard, and

dismissed his claim because he did not “allege that the level of ETS to which he was exposed

was unreasonable, contrary to contemporary standards, or excessive.” Moore, 2022 WL

2240086, at *3J The Court further concluded that Moore’s assertions about his exposure - that it

“bothered” his asthma, caused him breath problems, and triggered asthma attacks that woke him

up at night - were “markedly less detailed than those situations where courts have found that

symptoms of ETS exposure were sufficient to pass the plausibility threshold.” Id. at *4.

However, given Moore’s contention that he asked Defendant Durand to change his cell

assignment because exposure to ETS placed his health at risk, and his asthma was bothered by

ETS, the Court granted Moore leave to amend so that he could “flesh out his allegations ...

[and] cure the defects in his ETS claim.” Id.

7

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 8 of 11

Despite having the opportunity to amend and cure these defects, Moore’s Amended

Complaint similarly fails to plead sufficient facts to state a plausible Eighth Amendment claim

based on exposure to ETS. The allegations of Moore’s Amended Complaint are extremely brief.

and do not flesh out any additional details that demonstrate that his exposure to ETS was

unreasonable, contrary to contemporary standards, or excessive. Rather, Moore essentially

reiterates the allegations of his original Comnlaint. asserting that he “was forced to live in

pollution ... [andl forced to breathe harmful toxins caused by second hand smoke” despite

having asthma - a chronic illnessf.1” (Am. Compl. at 5.) Despite the Court’s extensive citation

to cases where prisoners alleging ETS exposure claims alleged sufficient details to pass the

plausibility threshold, see Moore, 2022 WL 2240086, at *4 (collecting cases),^Moore’s Amended

Complaint does not provide the Court with any additional details on the precise nature or

severity of his symptoms, nor does he provide any further explanation of the extent of his alleged

exposure. Instead, Moore primarily repeats his assertions that he “suffered to breathe” for six

months, that second-hand smoke caused him to have asthma attacks, and his “right to adequate

living was being violated[.]” (Id. at 5, 7.) These allegations remain insufficient to allege a

plausible Eighth Amendment exposure to ETS claim. As Moore has already been given an

opportunity to cure the defects in his Eighth Amendment ETS exposure claim and has been

unable to do so, the Court concludes that further amendment would be futile. See Jones v.

Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (amendment by

pro se litigant would be futile when litigant “already had two chances to tell his story”).]

B.

Eighth Amendment Deliberate Indifference to Medical Needs Claim

As the Court previously stated, for a constitutional claim based on the failure to provide

medical treatment to be plausible a prisoner must allege facts indicating that prison officials were

8

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 9 of 11

deliberately indifferent to his serious medical needs. Moore, 2022 WL 2240086, at *5 (citing

Farmer, 511 U.S. at 835). A prison official is not deliberately indifferent “unless the official

knows of and disregards an excessive risk to inmate health or safety; the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.6 “A medical need is

serious,... if it is one that has been diagnosed by a physician as requiring treatment or one that

is so obvious that a lay person would easily recognize the necessity for a doctor’s attention.”

Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)

(internal quotations omitted). Deliberate indifference is properly alleged “where the prison

official (1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide

it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a

prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182

F.3d 192, 197 (3d Cir. 1999). T serious medical need exists where “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). Allegations of medical malpractice and mere disagreement

regarding proper medical treatment are insufficient to establish a constitutional violation. See

Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).

(The deliberate indifference claim in Moore’s original Complaint was dismissed because

it was not entirely clear if he sought to raise a separate claim that any of the named Defendants

were deliberately indifferent to his serious medical needsj'Moore. 2022 WL 2240086, at *5.

6 The standard under the Eighth Amendment and Fourteenth Amendment for claims related to a

prisoner’s medical needs is essentially the same for purposes of the analysis. See Moore v.

Luffey, 161 F. App’x 335, 340 n.2 (3d Cir. 2019); Parkell v. Morgan, 682 F. App’x 155, 159-60

(3d Cir. 2017) (per curiam).

9

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 10 of 11

/However, the dismissal was without prejudice and Moore was permitted to amend the claim if he

could plausibly allege that a named Defendant “refused, delayed, or prevented him from

receiving needed or recommended medical treatment.” Id. The Court also noted, the Defendants

named in the original Complaint were not medical providers^Id.

Moore’s Amended Complaint does not fare any better. Moore once again fails to allege

any facts that a named Defendant refused, delayed, or prevented him from receiving needed or

recommended medical treatment, nor does he allege that he needed medical care of any kind. He

also fails to assert that any Defendants is even a medical provider. Accordingly, Moore has

again failed to allege a plausible claim for deliberate indifference to medical needs under the

Eighth Amendment.7 Since Moore was previously granted leave to amend in order to cure the

defects in his claim and has been unable to do so, the Court concludes that further amendment

would be futile. See Jones, 944 F.3d at 483.

7 To the extent Moore’s Amended Complaint could be liberally construed to assert state law

negligence claims against Defendants, the Court will decline to exercise supplemental

jurisdiction under 28 U.S.C. § 1367(c) over such claims, having dismissed all of Moore’s federal

claims with prejudice. The only independent basis for jurisdiction over any such claims is 28

U.S.C. § 1332(a), which grants a district court jurisdiction over a case in which “the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between

. .. citizens of different States.” Like his original Complaint, Moore’s Amended Complaint does

not allege the citizenship of the parties, but simply Pennsylvania addresses for himself and the

Defendants. This again suggests that Defendants may be Pennsylvania citizens, complete

diversity is lacking, and the Court does not have subject matter jurisdiction over these claims.

Therefore, any such negligence claims will be dismissed without prejudice to Moore’s right to

bring those claims in an appropriate state court.

10

Case 2:21-cv-02695-JS Document 13 Filed 09/23/22 Page 11 of 11

IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss Moore’s Amended Complaint with

prejudice for failure to state a claim, and his state law negligence claims are dismissed without

prejudice for lack of subject matter jurisdiction. An appropriate order follows.

BY THE COURT:

/s/ Juan R. Sanchez

JUAN R. SANCHEZ, C.J.

11

Case 2:21-cv-02695-JS Document 11 Filed 06/22/22 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JEREMIAH MOORE, et al.,

Plaintiff,

CIVIL ACTION NO. 21-CV-2695

v.

DEPARTMENT OF CORRECTIONS,

et al.,

Defendants.

ORDER

AND NOW, this 22nd day of June, 2022, upon consideration of Plaintiff Jeremiah

Moore’s Motion to Proceed In Forma Pauperis (ECF No. 9) and his pro se Complaint (ECF No.

2), it is ORDERED that:

1.

Leave to proceed in forma pauperis is GRANTED pursuant to 28 U.S.C. § 1915.

2.

The Complaint is DEEMED filed.

3.

The Complaint is DISMISSED IN PART WITH PREJUDICE AND IN PART

WITHOUT PREJUDICE for the reasons stated in the Court’s Memorandum as follows:

a.

All claims for declaratory relief, as well as all claims based on the

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3.

handling of prison grievances, a violation of his First Amendment freedom of

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religion, and a violation of the Universal Declaration of Human Rights are

DISMISSED WITH PREJUDICE for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2)jBXii)

b.

Moore’s claim against Defendant Durand based upon exposure to

environmental tobacco smoke, and any claim based upon deliberate indifference

to his serious medical needs are DISMISSED WITHOUT PREJUDICE for

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Case 2:21-cv-02695-JS Document 11 Filed 06/22/22 Page 2 of 4

>7

c.

Moore’s moot claim for injunctive relief, his claims against the

Department of Corrections, the DOC’s Chief Secretary’s Office of Inmate

Grievance and Appeals, and SCI Phoenix, and all state law negligence claims are

DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.

4.

The Clerk of Court is DIRECTED to terminate the Department of Corrections,

the DOC’s Chief Secretary’s Office of Inmate Grievance and Appeals, SCI Phoenix, K. Owens,

K. Sorber, and D. Varner as Defendants.

5.

Moore may file an amended complaint within thirty (30) days of the date of this

Order. Any amended complaint must identify all defendants in the caption of the amended

complaint in addition to identifying them in the body of the amended complaint and shall state

the basis for Moore’s claims against each defendant. The amended complaint shall be a

complete document that does not rely on the initial Complaint or other papers filed in this case to

state a claim. When drafting his amended complaint, Moore should be mindful of the Court’s

reasons for dismissing the claims in his initial Complaint as explained in the Court’s

Memorandum. Moore may not reassert (1) any claim that has already been dismissed with

prejudice, (2) any claim determined to be moot, or (3) any claim for money damages against the

Department of Corrections, the DOC’s Chief Secretary’s Office of Inmate Grievance and

Appeals, or SCI Phoenix. Upon the filing of an amended complaint, the Clerk shall not make

service until so ORDERED by the Court.

2

Case 2:21-cv-02695-JS Document 11 Filed 06/22/22 Page 3 of 4

.. ’ *

6.

The Clerk of Court is DIRECTED to send Moore a blank copy of the Court’s

form complaint for a prisoner filing a civil rights action bearing the above civil action number.

Moore may use this form to file his amended complaint if he chooses to do so.

7.

If Moore does not wish to amend his Complaint and instead intends to stand on

his Complaint as originally pled, he may file a notice with the Court within thirty (30) days of

the date of this Order stating that intent, at which time the Court will issue a final order

dismissing the case. Any such notice should be titled “Notice to Stand on Complaint,” and shall

include the civil action number for this case. See Weber v. McGrogan, 939 F.3d 232 (3d Cir.

2019) (“If the plaintiff does not desire to amend, he may file an appropriate notice with the

district court asserting his intent to stand on the complaint, at which time an order to dismiss the

action would be appropriate.” (quoting Borelli v. City ofReading, 532 F.2d 950, 951 n.l (3d Cir.

1976))); In re Westinghou.se Sec. Litig., 90 F.3d 696, 703-04 (3d Cir. 1996) (holding “that the

district court did not abuse its discretion when it dismissed with prejudice the otherwise viable

claims ... following plaintiffs’ decision not to replead those claims” when the district court

“expressly warned plaintiffs that failure to replead the remaining claims . . . would result in the

dismissal of those claims”).

8.

If Moore fails to file any response to this Order, the Court will conclude that

Moore intends to stand on his Complaint and will issue a final order dismissing this case.2 See

Weber, 939 F.3d at 239-40 (explaining that a plaintiffs intent to stand on his complaint may be

1 This form is available on the Court’s website at

http://www.paed.uscourts.gov/documents/forms/ffmcl983f.pdf.

2 The six-factor test announced in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d

Cir. 1984), is inapplicable to dismissal orders based on a plaintiffs intention to stand on his

complaint. See Weber, 939 F.3d at 241 & n.l 1 (treating the “stand on the complaint” doctrine as

distinct from dismissals under Federal Rule of Civil Procedure 41(b) for failure to comply with a

3

Case 2:21-cv-02695-JS Document 11 Filed 06/22/22 Page 4 of 4

inferred from inaction after issuance of an order directing him to take action to cure a defective

complaint).

BY THE COURT:

/s/ Juan R. Sanchez

JUAN R. SANCHEZ, C.J.

court order, which require assessment of the Poulis factors); see also Elansari v. Altria, 799 F.

App’x 107, 108 n. 1 (3d Cir. 2020) {per curiam). Indeed, an analysis under Poulis is not required

when a plaintiff willfully abandons the case or makes adjudication impossible, as would be the

case when a plaintiff opts not to amend his complaint, leaving the case without an operative

pleading. See Dickens v. Danberg, 700 F. App’x 116, 118 (3d Cir. 2017) {per curiam) (“Where

a plaintiff’s conduct clearly indicates that he willfully intends to abandon the case, or where the

plaintiffs behavior is so contumacious as to make adjudication of the case impossible, a

balancing of the Poulis factors is not necessary.”); Baker v. Accounts Receivables Mgmt., Inc.,

292 F.R.D. 171, 175 (D.N.J. 2013) (“[T]he Court need not engage in an analysis of the

six Poulis factors in cases where a party willfully abandons her case or otherwise makes

adjudication of the matter impossible.” (citing cases)).

4