Washington v. Barnhart

Full title: HENRY UNSELD WASHINGTON, Plaintiff, v. JONATHAN BARNHART, DR. ROBINSON…

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date published: May 14, 2021

Civil Action No. 3:17-cv-00070 (W.D. Pa. May. 14, 2021)

Opinion

Civil Action 3:17-cv-00070

05-14-2021

HENRY UNSELD WASHINGTON, Plaintiff, v. JONATHAN BARNHART, DR. ROBINSON, RICHARD IRWIN, MARK MAYLE, DR. HUTCHINSON, J. STRAMAT, ANGELA JOHNSTON, ROXANNE PLAYSO, BRIAN P. HYDE, TESA ADELEKAN, B. COSTEA, LT. CINKO, J. R. MCDANNELL, M. J. FOSTER, K. TURNER, WILLIAM BOWERS, PHILLIP MAUST, HEIDI SROKA, ROBERT SNYDER, R. PESCHOCK, J. GIRONE, and ELLIS KAUFFMAN, Defendants.

Henry Unseld Washington Counsel for Defendants.

LISA PUPO LENIHAN, United States Magistrate Judge.

Henry Unseld Washington Counsel for Defendants.

Kim R. Gibson, Judge.

REPORT AND RECOMMENDATION ON PLAINTIFF'S AND DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ECF NOS. 202, 205, 208, 214, 220, 232

LISA PUPO LENIHAN, United States Magistrate Judge.

I. RECOMMENDATION

For the reasons stated herein, it is respectfully recommended that the one (1) Motion for Summary Judgment filed by Plaintiff, ECF No. 232, be denied and the five (5) Motions for Summary Judgment as to Plaintiff's Amended Complaint, ECF No. 63, filed by Defendants be granted. The Motions filed by Defendants are: Medical Defendant Dr. Irwin, ECF No. 202; Medical Defendant Dr. Mayle, ECF No. 205; Medical Defendants Adelekan and Dr. Girone, ECF No. 220; Medical Defendants Barnhart, Dr. Robinson, Dr. Hutchinson, Dr. Stramat, Johnston, Playso and Kauffman, ECF No. 208; and Corrections Defendants Hyde, Costea, Cinko, McDannell, Foster, Turner, Bowers, Maust, Sroka, Snyder and Peschock, ECF No. 214.

II. FACTUAL AND PROCEDURAL HISTORY; COMPLAINT

As set forth in this Court's prior Report and Recommendations on Medical Defendants' Motions to Dismiss, ECF No. 96 (adopted at ECF No. 112) and ECF No. 180 (adopted at ECF No. 183): Plaintiff Henry Unseld Washington, an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”) and currently confined at the State Correctional Institution at Somerset (“SCI Somerset”), is an African American male in his mid-seventies. Plaintiff commenced the present pro se prisoner civil rights action against a wide array of medical and corrections SCI Somerset staff. ECF Nos. 11 and 63. Plaintiff's Amended Complaint alleges scores of events occurring over a span of approximately three years while Plaintiff was incarcerated at SCI Somerset.¹ Plaintiff's reports of these alleged events are striking in their factual similarity - indeed, in their increasing similarity across Plaintiff's many years of litigation - to the reported circumstances held to give rise to maintainable claims of Constitutional violation in the numerous cases cited with parentheticals in Plaintiff's copious pleadings. See supra n. 1. Moreover, as recently noted in this Court's Memorandum Opinion on the five (5) Motions to Dismiss in Plaintiff's latest litigation, Second SCI Somerset Action, Plaintiff expressly states that he uses his prior filings as “a template” for the next. As the Court concluded therein:

1 Plaintiff has been in the custody of the DOC for several decades and is quite familiar with filing suit to address the myriad forms of mistreatment that he has allegedly suffered in the many correctional institutions in which he has been incarcerated. The following Opinion of the Third Circuit Court of Appeals is illustrative:

Plaintiff's uninterrupted and increasingly redundant litigation derives, as he observes, from his perception that he “exist[s] in a perpetual [desire] to seek a remedy to the violations of his rights as well as a remedy to obtain immediate medical and physical needs, [while] Defendant[s], thus far have responded with deliberate indifferen[ce].” That is, Plaintiff continues to bring the same/similar claims based on the same/similar conduct owing to his underlying chronic physical and mental health impairments, and his misunderstandings of both (a) the limitations of medical assistance legally required and/or medical relief possible and (b) other applicable legal standards governing both statements of a claim (by even a pro se plaintiff) and plausible liability for specific Constitutional-rights violations. Plaintiff's apparent inability to accept these governing facts despite the Court's (and the correctional institutions') numerous attempts to address his complaints and explain medical and legal guidelines/constraints to him over several decades and actions, while regrettable, does not alter the bounds of either medical science or Constitutional liability.

See Washington v. Delisma, Civil Action No. 3:19-cv-00196, ECF No. 109 at 3-4 (citation omitted).

Plaintiff initiated the instant pro se prisoner civil rights action, per 18 U.S.C. § 1983, with the filing of a Motion for Leave to Proceed in forma pauperis on April 28, 2017, which was granted on May 18, 2017. ECF Nos. 1, 10. Plaintiff's Complaint, together with five supplements thereto, was docketed on May 18, 2017. ECF No. 11. Plaintiff was permitted to file an Amended Complaint, which was docketed on December 7, 2018. ECF No. 63.

In his fifty-page, four-hundred-paragraph Amended Complaint, Plaintiff alleged that Defendants violated his rights under the Eighth, Fourteenth, and First Amendments, as well as a federal statute.² In particular, Plaintiff alleged (as best decipherable from his often vague, ambiguous, conclusory, fragmented, unstructured and repetitive pages of allegations) violations of his right to (a) freedom from cruel and unusual punishment under the Eight Amendment, premised on (i) deliberately indifferent denial of medical care by all Defendants (as in other actions, specific allegations are made against only some Defendants, while blanket allegations against all Defendants set forth as a string of surnames are unsupported by individual factual allegations against all Defendants named) and (ii) psychologically-oppressive cell placement by Corrections Defendants (although a blanket allegation appears supported by any particulars only as to Defendants Costea, Foster, McDannell, Bowers and Cinko); (b) equal protection under the Fourteenth Amendment, premised on racial discrimination by all Defendants;³ (c) due process under the Fourteenth Amendment, premised on denial of grievance processing by Corrections Defendant Sroka; (d) retaliatory and discriminatory denial of employment as a sports official in violation of the First and Fourteenth Amendments by Corrections Defendant Peshock; (e) free exercise of religion under the First Amendment and violation of the Religious Land Use and Inmate Protection Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq, premised on denial of his religious materials by Corrections Defendants (with specific allegations apparently made as to Defendants Maust, Cinko, Snyder and Turner);⁴ and (f) freedom from retaliation under the First Amendment, premised on retaliation for filing grievances and litigation against all Defendants.

2 Plaintiff appears to allege violations of his rights under the Religious Land Use and Inmate Protection Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. See, e.g., ECF No. 63 at ¶¶ 277, 281. See also infra; ECF No. 96 at 12 (noting that Plaintiff makes no factual allegations that support or suggest any ability to support such a claim). Here, as in Plaintiff's Second SCI Somerset Action, any intended RLUIPA claim must fail as Plaintiff's Amended Complaint neither states nor suggests a claim for violation, and Plaintiff has also proffered no evidence to maintain one. First, RLUIPA does not permit actions against government employees in their individual capacities. Sharp v. Johnson, 669 F.3d 144, 153-55 (3d Cir. 2012). And as this Court recently explained in its Opinion on Motions to Dismiss:

3 Although the vast majority of Plaintiff's allegations are directed to a claim of racial discrimination, his Amended Complaint contains references to his belief that he is also in a protected class based on religious beliefs and/or age. As previously addressed by this Court in this action, ECF No. 96 at 11, n. 13: “[B]ecause Plaintiff's Amended Complaint contains no factual allegations supporting a maintainable equal protection claim . . . on the basis of either religion or age, the Court concludes that Plaintiff alleges a racial classification.” See also Second SCI Somerset Action, ECF No. 109 (“[T]he Court notes here, as it has in prior actions, that Plaintiff's assertions neither support an age discrimination claim nor suggest the existence of any plausible basis for one. Accordingly, these few entirely unsupported and randomly-appearing assertions of age discrimination are disregarded.”).

4 Although it appeared that Plaintiff also raised First Amendment claims premised on access to religious materials against the Medical Defendants, Plaintiff disavowed any intention to do so in response to Medical Defendants' Motions to Dismiss and such claims were, accordingly, dismissed. The Court has also previously noted the absence of factual allegations to support a RLUIPA claim. See supra n. 2; see also infra.

In this, as in other actions, Plaintiff lists chronic ailments, which have included: excruciating digestive tract pain (sometimes specified as a digestive disability in response the prison food, and often described as “pain-n-discomfort”), Whipple's disease, ⁵ leg swelling, heart valve disease and chest pain, respiratory impairment, difficulty speaking aloud, difficulty remaining upright or awake, difficulty concentrating, insomnia, needing laser surgery in his right eye, ⁶ weight loss, elbow/angle/digit “deformity”, dry skin, testosterone deficiency, semen discharge, rectum discharge, memory loss (ofttimes specified as “dementia”), muscle weakness, fatigue, nose bleeds, urethra stricture, peripheral numbness, irreversible foot fungus, unilateral loss of hearing, and bunk and/or cell-related heart-attack symptoms/claustrophobia and other symptomology.

5 According to the Mayo Clinic's website, Whipple's Disease is a rare but treatable bacterial infection that most often affects the joints and digestive system. Whipple's Disease interferes with normal digestion by impairing the breakdown of foods, such as fats and carbohydrates, and hampering the body's ability to absorb nutrients. It can also infect other organs, including the brain, heart and eyes. Without proper treatment, Whipple's Disease can be serious or fatal. However, it is extremely uncommon, affecting fewer than 1 in 1 million people. The evidence in Plaintiff's 2015 Greene Action, as the Court concluded on summary judgment, indicated that his chronic ailments were not attributable to Whipple's Disease. See ECF No. 168.

6 As reflected in Plaintiff's 2015 SCI Greene litigation, Plaintiff had cataract surgery in this eye in 2014 and 2015. As reflected in the Court's prior Report and Recommendation in this 2017 SCI Somerset litigation, he was subsequently advised, with specialist/ophthalmic medical care, that no further surgeries could save the deteriorating vision in his right eye. See ECF No. 96.

As more fully set forth in the Medical Defendants' Briefs in Support of Motions for Summary Judgment, ECF Nos. 208-3, 203, 206 and 221, as well as in the Amended Complaint, ECF No. 63, it appears that Plaintiff includes the remaining allegations:

All Medical Defendants denied him medical care with deliberate indifference to his many serious aliments on one or more occasions, often with strikingly similar outrageous remarks regarding their pleasure at Plaintiff's pain while knowing he needed medical care; and each expressed racial motivation by statements such as their purposefully denying treatment because “Blacks have Obama care”, or race-based derogatory remarks about Plaintiff's character (e.g., Plaintiff is a “freeloader”, Black men are complaining or lazy), or unspecified “racist rants”;⁷ and each Medical Defendant's denial of medical care was expressly in retaliation for Plaintiff's filing grievances and prior lawsuits.⁸ Defendant Irwin advised Plaintiff that neither glasses nor further laser surgery could help the loss of vision in his right eye and refused him treatment, and Defendant Mayle refused to provide additional eye surgery. The Medical Defendants' alleged denials of care include non-responsiveness to Plaintiff's multitude of sick call requests in the forms of: denial of even cursory examinations, blood work or other testing, medication, and/or requested specialist referrals when Plaintiff has presented in pain and with blood or other fluid discharging from, e.g., his feet, eye or a body orifice. In addition, some Defendants, e.g., Barnhart and Hyde, ignored other medical advice that Plaintiff be provided specialist care for, e.g., gastroenterology/Whipple's Disease. ECF No. 63. See, e.g., ECF Nos. 208-3, 203, 206 and 221. See also ECF Nos. 208-17, 207, 222 and 231 (Medical Defendants' CSMFs).

7 The allegations that a Defendant spoke or gestured at an unspecified time in an unspecified threatening and/or racist way are - as has been explained to Plaintiff in other litigations - legally insufficient to state any claim. See infra.

8 As duly noted in the Defendants' filings, in some instances Plaintiff's claim against a particular Defendant is comprised of nothing more than threadbare and conclusory allegations that on a particular date he was denied care in response to his sick call. For example, Plaintiff's only specific factual allegation against Dr. Girone is that on January 15, 2018, Girone denied Plaintiff medical care for reasons of retaliation and racial discrimination.

As more fully set forth in the Corrections Defendants' Brief in Support of Motion for Summary Judgment, ECF No. 215, and CSMF, ECF No. 216, it appears that Plaintiff includes the following specific allegations:

Corrections Health Care Administrator Hyde denied Plaintiff medical care on many occasions from late 2015 through 2017, related to his eye and other chronic conditions, sometimes in the presence of a doctor, sometimes by discarding/refusing to process his requests to see a doctor or failing to schedule laser surgery. On one or two of the following occasions -twice in November 2016, once in October 2017 and once in January 2018 - Unit Managers Costea and Bowers, Lieutenant Cinko, and Officers Foster and McDannell, each placed Plaintiff in a cell that caused him to have traumatic dreams/hallucinations and heart attack symptoms owing to its location on the bottom tier of the housing unit. Defendant Bowers knew continuously - by Plaintiff's multiple-times-weekly “reminders” - that Plaintiff was being affected psychologically by his cell location but failed to move him despite the appeals of numerous psychologists and psychiatrists. Grievance Coordinator Sroka refused to process duplicative grievances or grievances requesting monetary damages and “scold[ed]” Plaintiff beginning in July 2015. Beginning in April 2018, Activities Specialist Peschock denied Plaintiff prison employment as a basketball/sports official and - for reasons of retaliation, discrimination and preferring a homosexual Muslim clique - instead assigned him “menial” tasks such as sweeping and uniform folding. Lieutenants Cinko and Turner each denied Plaintiff his religious books on two separate occasions in January 2017. Captain Snyder and Chaplain Maust denied Plaintiff his religious books in April and August 2017, respectively.⁹ See also ECF No. 216 (Corrections Defendants' CSMF).

9 As noted in this Court's Memorandum Opinion in the Second SCI Somerset Action, Plaintiff's claim with regard to his religious materials is, at bottom, that he has not been allowed to keep sufficient numbers of boxes of property in his cell to read the number of books his religion, which he himself invented, requires and he attributes this restriction of his property to racial discrimination and retaliation. See supra n. 2; ECF No. 109 at 26.

As reflected in the Amended Complaint, ECF No. 63, Plaintiff also makes generalized allegations of racial and retaliatory motivation to all Corrections Defendants' generalized denial of medical care for his various serious conditions and other alleged Constitutional violations, e.g., denial of religious material. And he alleges that Corrections Defendants Hyde, Turner and Sroka were aware of and failed to prevent or intervene in other Defendants' denial of medical care. ECF No. 63.

Finally, Plaintiff's prayer for relief is similar to that in his prior 2015 and other actions. For example, in his 2015 SCI Greene Action, in addition to compensatory and punitive damages, Plaintiff requested laser eye surgery at Will's Eye Clinic in Philadelphia, Pennsylvania; medical care by an ophthalmologist and podiatrist at John Hopkins University Hospital; placement in John Hopkins University Hospital until he is “convinced all of his health problems have been cured or corrected”; sick call visits and medication free of charge; choice of diet supplements; doctor visits three days per week without having to submit a sick call request; each sick call request responded to in one day; and no limit on in-cell storage space. See 2015 SCI Greene Action, ECF No. 76.

All Medical Defendants filed Motions to Dismiss, and by Orders on its prior Report and Recommendations, ECF Nos. 96 and 180, adopted at ECF Nos. 112 and 183, this Court dismissed Plaintiff's First Amendment free exercise of religion claims against the Medical Defendants. All Defendants have now moved for summary judgment, as set forth in their above-referenced pleadings. Plaintiff has also filed a Motion for Summary Judgment, ECF No. 232 and a Concise Statement of Material Facts, ECF No. 234.¹⁰ Over the course of many months, the parties have filed multiple Responses in Opposition, Replies, Concise Statements of Material Fact (“CSMF”), Exhibits, and Counterstatements/Responses to CSMFs. See, e.g., supra; see also ECF Nos. 207, 216-17, 222-23, 231, 233-45, 251-64, 266-67, 270-71. The Court notes the extent of the docket in this litigation as reflected by the ECF numbers, and that the parties' pleadings have incorporated multiple extensive other filings as exhibits. The Motions are now ripe for review.

10 Plaintiff's CSMF is largely comprised of repetition of conclusory allegations and statements of law contained in his prior filings and additional allegations; as noted in Section III, infra, Plaintiff's allegations are of themselves insufficient to meet the summary judgment standard now applicable, which requires evidence of a material fact on matters as to which he bears the burden of proof.

III. STANDARD OF REVIEW

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party bears the initial burden of identifying evidence, or the lack thereof, which demonstrates the absence of a genuine issue of material fact. Nat'l State Bank v. Fed.l Reserve Bank of New York, 979 F.2d 1579, 1581-82 (3d Cir. 1992) (citing Celotex, 477 U.S. at 323-25). Once that burden has been met, the nonmoving party may not rest on the allegations in the complaint, but must “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e) (1963). See also Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) (“Plaintiff cannot resist a properly supported motion for summary judgment merely by restating the allegations of his complaint, but must point to concrete evidence in the record that supports each and every essential element of his case.”) (citing Celotex, supra).

An issue is genuine only “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In Anderson, the United States Supreme Court noted the following:

[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. …[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted).¹¹

11 The Court notes that here, as in all other aspects of Plaintiff's litigations, the Court remains cognizant of and has applied the following and other applicable pro se considerations to its readings of Plaintiff's claims: “When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney.” Haines v. Kerner, 404 U.S. 519, 520 (1972). “When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences . . . .” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).

When the parties have filed cross-motions for summary judgment, as in this case, the summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa. 2006). “When confronted with cross-motions for summary judgment, . . . ‘the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.'” Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App'x. 266, 270 (3d Cir. 2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).

IV. ANALYSIS

Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. In pertinent part, § 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. ...

Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must show a deprivation of a “right secured by the Constitution and the laws of the United States ... by a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). There is no dispute that individual Defendants were acting under color of state law at all times relevant to this litigation.

A. Eighth Amendment Claims

1. Deliberate Indifference to Serious Medical Need

The Supreme Court has admonished that “[n]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. . . .” Whitney v. Albers, 475 U.S. 312, 319 (1986). “‘After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.'” Id. (quoting Ingraham, 430 U.S. at 670) (ellipsis in original). The Eighth Amendment imposes a duty on prison officials to provide “humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). And under the Eighth Amendment, prison officials are prohibited from exhibiting deliberate indifference to serious medical needs of inmates. Estelle v. Gamble, 429 U.S. 97, 104 (1976).¹² To set forth a cognizable claim for deliberate indifference to a serious medical need, a plaintiff must allege (1) a serious medical need and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Id. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

12 Moreover, “[t]his is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle, 429 U.S. at 104-05.

Additionally, “a prisoner has no right to choose a specific form of medical treatment, ” so long as the treatment provided is reasonable. Harrison v. Barkley, 219 F.3d 132, 138-40 (2d Cir. 2000). An inmate's claims against members of a prison medical department are not viable under § 1983 where the inmate receives continuing care, but has a difference of opinion, such as believing, e.g., that more should be done by way of diagnosis and treatment and maintaining that options available to medical personnel were not pursued on his behalf. Estelle, 429 U.S. at 107; Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“mere disagreement as to the proper medical treatment” is insufficient to state a constitutional violation). See also infra at 16-17. Allegations of medical malpractice are also insufficient to establish a Constitutional violation. White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990) (citations omitted); Daniels v. Williams, 474 U.S. 327, 332-34 (1986) (negligence is not compensable as a Constitutional violation).¹³ See also SCI Greene Action, ECF No. 96 at 19-20.

13 "When making a determination as to deliberate indifference, the court must focus [on] what a defendant's mental attitude actually was (or is), rather than what it should have been (or should be). Deliberate indifference is a state of mind more blameworthy than negligence." Blackstone v. Thompson, 568 Fed.Appx. 82, 84 (3d Cir. 2014) (internal citations and quotation marks omitted).

As noted above and as in Plaintiff's previous and subsequently-filed actions, Plaintiff asserts that he has, for decades, been experiencing a lengthy list of chronic “serious health problems”. He asserts that Defendants impeded his access to or refused to provide care, or what he believes would be appropriate care, in response to the sick calls that Plaintiff submits with extreme frequency. On occasions when he was seen by Medical Defendants, Plaintiff alleges - as in his other actions - that they have responded to his pleas for medical care, including his requests for pain and/or other specific medications and specialists, by telling him to get out, cursing at him, giving him the middle finger, or making racist comments. Plaintiff asserts that Defendants' refusal to provide constitutionally adequate medical care was (a) race-based and (b) to penalize Plaintiff for filing complaints, in various forms, against Defendants personally, as well as other medical and correctional officers.¹⁴

14 As discussed supra, and in this Court's writings in his other litigations, Plaintiff's Eighth Amendment claims substantially mirror, to a great degree of specificity - in action and speech across an increasing multitude of defendants and dates - when specifics are alleged, those he has raised against other medical and correctional personnel at other correctional institutions in prior and subsequent actions. See, e.g., Washington v. Gilmore, No. 15-01031, ECF No. 96 at 20-21.

With respect to the first requirement of his claim, a medical need is “serious, ” for Eighth Amendment purposes, 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 Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Whether a medical need is of the serious nature contemplated by the Eighth Amendment “may also be determined by reference to the effect of denying the particular treatment.” Lanzaro, 834 F.2d at 347. Thus, a medical need is similarly “serious” if “unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, ” or if “denial or delay causes an inmate to suffer a life-long handicap or permanent loss.” Id. (citations omitted).

As in his 2015 SCI Greene Action and Second SCI Somerset Action, Plaintiff alleges that he has “several serious health problems” that have been “ongoing for years”. As noted supra, the health problems which Plaintiff describes as “chronic ailments” have included extreme pain and discomfort throughout his digestive tract and diarrhea caused by most foods served to inmates, Whipple's Disease, difficulties concentrating, breathing, speaking, ¹⁵ remaining upright and awake, loss of vision/near blindness in his right eye, loss in weight, extreme dry skin, deformed ankles, elbows and fingers, penis and rectal discharge, memory loss and dementia, muscle weakness, nose bleeds, testosterone deficiency, urethra stricture, heart attack symptoms such as chest pain, respiratory difficulties, lower bunk claustrophobia, peripheral numbness, and irreversible foot fungus. Although one or more of these chronic ailments could constitute a “serious medical need” (particularly, and as previously noted, Plaintiff's alleged Whipple's disease and need for further eye surgery), the medical record is simply insufficient to raise any genuine material fact question of “deliberate indifference” to a “serious medical condition” on the part of any Defendant.¹⁶ More specifically:

15 Plaintiff has previously stated that he was attacked by guards at SCI-Greene in 1997, and, ever since then he periodically throughout the day can barely raise his voice above a whisper. He said that he is “always complaining to the doctor that I'm losing my voice and can barely talk.” See SCI Greene Action, ECF No. 168 at 5 (citing Exh. C, pp.27-28).

16 A claim that the adequacy of care constituted a constitutional violation, to proceed to trial, requires a genuine issue of fact on both the adequacy of care and the defendant's intent. The “mere receipt of inadequate medical care does not itself amount to deliberate indifference - the defendant must also act with the requisite state of mind when providing that inadequate care.” Pearson at 535 (citing Durmer, 991 F.2d at 69 n.13). See also supra.

With respect to the second requirement, a prison official acts with “deliberate indifference” if “he knows that [an] inmate[] face[s] a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). More specifically, a prison official may manifest “deliberate indifference” by “intentionally denying or delaying access to medical care.” Estelle, 429 U.S. at 104-05. In addition, “deliberate indifference” is evident when “prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to a physician capable of evaluating the need for such treatment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979). Accordingly, courts have found deliberate indifference in the following circumstances: (1) prison authorities deny reasonable requests for medical treatment, (2) knowledge of the need for medical care is accompanied by the intentional refusal to provide it, (3) necessary medical treatment is delayed for non-medical reasons, and (4) prison authorities prevent an inmate from receiving recommended treatment for serious medical needs. Lanzaro, 834 F.2d at 347; Pearson at 538; Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). Correspondingly, however, "in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate." McClain v. Kale, 2013 WL 5272816, *9 (M.D. Pa. Sept. 17, 2013) (internal citations omitted).

As noted supra at n. 13, the “deliberate indifference” standard in the context of medical treatment is fundamentally different than medical negligence. “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Pearson v. Prison Health Service, 850 F.3d 526, 534 (3d Cir. 2017) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). A physician exercising his sound professional judgment in providing treatment to an inmate is not acting with deliberate indifference. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). And in determining the sufficiency of the treatment provided to a plaintiff, courts give deference to the course of treatment determined by medical professionals. See e.g., Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir. 1979). “Federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” Pearson at 539 (quoting United States ex. rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979)).¹⁷

17 Similarly, once a prisoner plaintiff comes under the care of medical professionals, a non-medical prison official cannot be deliberately indifferent for failing to intervene in the medical treatment unless s/he has reason to believe or actual knowledge that prison medical providers are mistreating the prisoner. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993); Spruill v. Gillis, 372 F.3d 218, 236-37 (3d Cir. 2004); Roberts v. Tretnick, 2014 WL 4218249 at *3-4 (W.D. Pa. 2014); Giles v. Medical Contractors CMS, 723 F.Supp.2d 710, 717 (D. Del. 2010). The Third Circuit has explained that, following the division of labor in a prison, a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands. Spruill, 372 F.3d at 236.

Plaintiff alleges that Defendants intentionally refused to provide him with medical care while he was experiencing pain, excreting blood and other fluids, suffering vision loss, and requesting assistance. ECF No. 63. Indeed, here, as in his SCI Greene and other actions, he largely claims that during medical visits in response to frequent sick calls during the time frame at issue, the Medical Defendants refused to examine him, treat him or provide him with any medical care whatsoever, More specifically, Plaintiff has alleged Defendant Mayle performed right-eye laser surgery on him on May 15, 2015 and failed to provide necessary subsequent surgery to the same eye, while Defendant Irwin explicitly expressed disregard for Plaintiff's complete loss of sight in his right eye or discharges of blood and infection therefrom. ECF No. 63; ECF Nos. 203 and 206. Plaintiff similarly alleges disregard for his requests for, e.g., medications and presentation in need of medical care for his gastric and other ailments. ECF No. 63; ECF No. 208-3.

In contrast to Plaintiff's allegations, however, the medical record now in evidence through both Plaintiff's and Defendants' filings, which the Court has thoroughly reviewed, is replete with documentation of Plaintiff's ongoing submission of sick call requests and frequent attendance by a doctor, PA or CRNP. By way of example, with regard to Plaintiff's optical care alone, the Briefs in Support, CSMFs and extensive supporting exhibits document approximately thirty (30) provisions of medical service - including at least two surgical procedures, follow-up visits with specialists, and coordination of medical care between multiple medical providers and correctional staff. There is also abundant evidence documenting actions taken by the named Defendants in response to Plaintiff's requests for further attention with regard to his vision, as well as extensive medical services provided in response to his complaints of gastric discomfort or other chronic ailments from the time of his arrival at SCI Somerset in July 2015 throughout the multi-year period of this action. As the evidentiary record as to Plaintiff's vision/eye care is well summarized in pleadings such as ECF No. 206 at 3-12, with evidentiary citations, the Court will not repeat it here. And as it is well summarized as to his other chronic ailments in pleadings such as Medical Defendants' ECF No. 208-3 and 208-17 and Correction Defendants' ECF No. 215 and 216 (Briefs in Support and CSMFs), with evidentiary citations and the extensive medical record, the Court will not repeat it in such detail here.¹⁸

18 In addition, the medical care provided to Plaintiff by Medical Defendant Adelekan in September and October, 2016, and by Dr. Girone in 2018 - the specific times they are complained of - is adequately summarized in their Brief in Support, ECF No. 221 at 3-6, and supported in their CSMF and the evidentiary record. See ECF No. 222. The Court notes the following solely by way of example of the level of care being provided Plaintiff, as supported by the documentary record:

In general, here as in the 2015 SCI Greene Action, the record reflects that Plaintiff's sick requests (which he himself describes as “two-three sick call requests on a daily basis” at ECF No. 63 at ¶ 221) were primarily reiterations of his ongoing complaints and insistence on other treatment of his preference, particularly as to additional eye surgery and treatments for Whipple's Disease. Although Plaintiff believed he was suffering from a variety of conditions and needed to be seen by specialists, in fact doctors and other medical staff found no clinical evidence supporting his claims of need for other than the frequent care Plaintiff was receiving. The medical record reflects that in response to his assertions of Whipple's Disease, Plaintiff was provided numerous medical assessments, and diagnostic services such as abdomen xray and ultrasound, and lab work. Medical Defendants made repeated requests that Plaintiff authorize release of the Geisinger Hospital 2009 medical records he asserts include a diagnosis of Whipple's Disease, which Plaintiff repeatedly refused.¹⁹ The record indicates that Plaintiff also sometimes refused to sign his sick call forms, to take his thyroid for an interval (believing it to be a ruse by Medical Defendants) and to have a colonoscopy. He repeatedly refused to be weighed as part of requested examinations, and when he did consent was found to be maintaining his weight within five pounds of 190 for approximately three years.²⁰ Neither Plaintiff's own presentation nor ordered lab work or documented examinations/consultations suggested or supported any need for the additional medical care and medications Plaintiff desired. The records reflect Plaintiff's diagnosis of early dementia, and his ongoing treatment for early dementia, thyroid, gastritis, foot fungus and coronary artery conditions (including CT scan, chest xray, EKG, lab work, followups and medication). Plaintiff has reportedly become agitated or argumentative when advised of the lack of medical findings in support of his self-diagnoses and when his requests for particular care and medications are denied. Finally, sick call notes indicate that Plaintiff was being advised to comply with the protocol of one medical issue per request slip, but continued to submit requests with multiple issues (using a photocopy/template method of submitting frequent and repetitive hand-written material, as is his wont in other - such as legal - submissions). See ECF No. 216 and exhibits referenced therein.²¹

19 The only Geisinger records ultimately obtained/reviewed by an SCI Somerset medical provider indicated that Plaintiff was diagnosed with minor gastritis. Id.

20 In July 2018, Plaintiff's weight temporarily deceased to 178 pounds, at which time he received abdominal xray and ultrasound, which were normal.

21 Plaintiff's medical records were previously found by this Court to evidence that he does not have Whipple's disease and nothing in the current evidentiary record alters that prior finding. See SCI Greene Action, ECF No. 168 at 5, n. 6 (“Plaintiff claims, without evidence, that he was diagnosed with Whipple's Disease. (Exh. C., pp. 32-33.) However, his medical records reveal that on September 19, 2014, he was seen by Dr. Dascani and complained of having Whipple's Disease and needing six months of Plaquenil and Doxycycline. (ECF No. 147-2, p.12.) Dr. Dascani reviewed Plaintiff's lab work and found no abnormalities suggestive of Whipple's Disease. Id. On October 24, 2014, Dr. Dascani saw Plaintiff on sick call and Plaintiff said “I'm fine but I want to see a gastroenterologist about Whipple's Disease.” Id., p.14. Dr. Dascani noted: “Hypochondriac, Att. Seeking, no apparent acute problem”. Id.)

2. Conditions of Confinement - Psychologically Oppressive Housing

The Court now moves on to Plaintiff's claims of Eighth Amendment violation by placement in/failure to move him from a psychologically-oppressive cell location, i.e., one on a bottom tier, where he experiences hallucinations, traumatic dreams, heart-attack symptoms, and heart palpitations. ECF No. 63.

In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court set forth the standard for alleged violations of the Eighth Amendment while addressing non-medical conditions of confinement. To succeed on an Eighth Amendment conditions of confinement claim, the inmate must demonstrate both an objective element-that the deprivation was sufficiently serious-and a subjective element-that the prison officials acted with a sufficiently culpable mind, which means deliberate indifference to that risk. Id. at 298; Farmer v. Brennan, 511 U.S. 825, 834 (1994); Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). Prison conditions may objectively violate the Eighth Amendment proscription against cruel and unusual punishment when inmates are deprived of “the minimal civilized measure of life's necessities.” Rhodes, 452 U.S. at 347. See also Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (citing Sandin v. Connor, 515 U.S. 472 (1995); Young v. Quinlan, 960 F.2d 351, 361 (3d Cir. 1992); McCluskey v. Vincent, 505 Fed.Appx. 199, 204 (3d Cir. 2012). But only extreme deprivations are sufficient to present a claim for unconstitutional conditions of confinement. Dockery v. Beard, 509 Fed.Appx. 107, 112 (3d Cir. 2013); Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392 (1981); Hudson v. McMillian, 503 U.S. 1, 8-9, 112 S.Ct. 995 (1992)).²²

22 While the Eighth Amendment imposes a duty on prison officials to provide humane conditions of confinement, the constitution does not mandate comfort. Carson v. Mulvihill, 488 Fed.Appx. 554, 560 (3d Cir. 2012); Dockery, 509 Fed.Appx. at 112. To the extent that prison conditions are restrictive and even difficult, they are part of the penalty that criminal offenders pay for their offenses against society. Farmer, 511 U.S. at 834; Rhodes, 452 U.S. at 347; Booth v. King, 228 Fed.Appx. 167, 171 (3d Cir. 2007) (quoting Tillery v. Owens, 907 F.2d 418, 426-27 (3d Cir. 1990)).

In accordance with the second element of a conditions of confinement claim, a prison official cannot be found liable under the Eighth Amendment “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 837-38; Hamilton v. Leavy, 117 F.3d 742, 476 (3d Cir. 1997); Bistrian v. Levi, 696 F.3d 352, 367-68 (3d Cir. 2012). This is a subjective standard. Additionally, “an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 837-38. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual “punishments.” Farmer at 838. Furthermore, “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Id., 511 U.S. at 845.

It is well-established that there is no constitutional right for an inmate to be celled in a particular place, or under particular circumstances. “[B]y virtue of their convictions, inmates must expect significant restrictions, inherent in prison life, on rights and privileges free citizens take for granted.” McKune v. Lile, 536 U.S. 24, 39-40 (2002); Podhorn v. Grondolsky, 350 Fed.Appx. 618, 620 (3d Cir. 2009) (“[P]risoners have no constitutional right to be assigned to a particular institution, facility or rehabilitative program.”). Rather, “the prison has a penological interest in the housing placement of its inmates and ‘[i]t is well settled that the decision where to house inmates is at the core of prison administrators' expertise.'”) Thomaston v. Meyer, 519 Fed.Appx. 118, 119 (3d Cir. 2013) (quoting McKune, 536 U.S. at 39). Thus, inmates also have no right to a particular cell. Brown v. Sobina, 2009 WL 5173717 at *8 (W.D. Pa. 2009) (citing Rhodes v. Chapman, 452 U.S. 337 (1981)); Smith v. Thomas, 2014 WL 2091869 at *7 (M.D. Pa. 2014) (citing Sheehan v. Beyer, 51 F.3d 1170, 1174 (3d Cir. 1995); Toussaint v. Good, 276 Fed.Appx. 122, 124 (3d Cir. 2008); Lim v. Cruz, 2015 WL 1185982 at *7 (M.D. Pa. 2015).

As noted supra, Plaintiff alleges that Corrections Defendants violated his Eighth Amendment rights on various occasions by placing him in a low tier/ground floor cell and, despite his multiple-times weekly “reminders” and multiple medical/psychiatric professionals assessments recommending that he be relocated for mental health reasons, failing to reassign him to a high tier cell. Plaintiff asserts that this cell placement has caused terrifying nightmares and waking hallucinations of prior or prospective prison abuse, and heart attack/claustrophobic symptoms. As detailed in Defendants' CSMF, ECF No. 216, Plaintiff has proffered no evidence in support of his alleged medical contraindications for any particular cell placement. Defendants have proffered that Plaintiff's single-cell status restricts the number of cells available for his placement. Moreover, Plaintiff's unit manager reviewed Plaintiff's file with regard to placement and consulted the medical department which advised there was no medical restriction against a lower/bottom tier cell assignment.²³ Here, Plaintiff simply has not come forward with any evidence that he was exposed to objectively harmful conditions and that any Defendant was deliberately indifferent to it.

23 The Court notes Defendants' submission that on another occasion when Plaintiff wanted to be moved, at that time from one top tier cell to another top tier cell, his motivation was to have a cell that maximized his television reception. See ECF No. 215.

In conclusion, Defendants are entitled to summary judgment on Plaintiff's Eighth Amendment claims as follows:

(1) Although Plaintiff alleges a lack of medical care related to his Whipple's disease, eyes and other chronic conditions, here as in the SCI Greene Action, see ECF No. 168, the now completed evidentiary record clearly reflects that Plaintiff received frequent medical care from multiple doctors, including specialists, for his extensive complaints and concerns of a variety of chronic ailments, including his eyes and his gastrointestinal and other conditions. Plaintiff disagreed with the assessments/diagnosis and treatment provided. See generally ECF Nos. 207, 208-17, 216, 222, 231 (Defendants' CSMFs); see also supra n. 20. The medical records sub judice reflect that medical treatment provided to Plaintiff was both responsive and supported by professional judgment, albeit not the additional eye surgeries or indefinite gastric oversight of Johns Hopkins specialists Plaintiff prefers. The records therefore also indicate that there was no reason for a Corrections Defendant to believe Plaintiff was being medically mistreated. Plaintiff has failed to establish an evidentiary record from which a reasonable jury could find in his favor on this claim and, accordingly, Defendants are entitled to judgment as a matter of law.²⁴

24 The Court concurs with Defendants that: “[A]s the Concise Statement and Plaintiff's medical records attached as Exhibit 1 show, Plaintiff received copious amounts of medical care. As for his primary medical complaints, his medical records show that he does not have Whipple's disease. He received extensive treatment on both eyes including surgery on his left eye during the period covered by this lawsuit and surgeries on his right eye in the years preceding that period. Finally, he was under the medical care of many doctors and mid-level practitioners with such thorough care that non-medical personnel . . . had no reason to believe that he was not being treated properly for his conditions. In the end, what this claim amounts to is nothing more than a disagreement on medical treatment, which is never sufficient to state an Eighth Amendment claim . . . .” ECF No. 215 at 9-10; ECF No. 215-1.

(2) Plaintiff alleges traumatic dreams/hallucinations and heart attack/claustrophobia symptoms when placed on a cell on the bottom tier of the housing unit. However, he has evidenced no medical contraindication for any cell placement. Plaintiff has presented no material fact question that Defendants' assignments/denials of his requests for cell reassignment were either (a) an objectively serious depravation or (b) punishment imposed with awareness that Plaintiff was thereby placed in substantial risk of serious harm. Nor does the record reflect any material factual dispute regarding the prison's penological interest in assigning Plaintiff to an available cell and declining to initiate reassignment of other inmates and/or otherwise undermine its housing policies to accommodate Plaintiff's medically-unsubstantiated claims of an extreme health need to be located on a higher tier. Cf. Alexander v. Fritch, 396 Fed.Appx. 867, 872 (3d Cir. 2010) (prison's interest in maintaining its housing policies). As Plaintiff has failed to establish an evidentiary record from which a reasonable jury could find in his favor on this claim, Defendants are entitled to judgment as a matter of law.

B. Fourteenth Amendment Equal Protection and Due Process

As for the alleged violation of his Fourteenth Amendment rights, Plaintiff has asserted claims under the Equal Protection and Due Process Clauses. The Fourteenth Amendment provides that a State may not “deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.

1. Equal Protection - Racial Discrimination

The Equal Protection Clause, however, “is not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly situated should be treated alike.'” Artway v. Att'y Gen., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). Accordingly, to state a cognizable equal protection claim, a plaintiff “must allege that he is a member of a protected class, similarly situated to members of an unprotected class, and treated differently from the unprotected class.” Pollack v. City of Phila., No. 06-04089, 2007 U.S. Dist. LEXIS 11624 at *4 (E.D. Pa. Feb. 16, 2007) (citations omitted). In addition, a plaintiff must allege that this differential treatment was intentional. See, e.g., McClesky v. Kemp, 481 U.S. 279, 292 (1987) (“[A plaintiff] who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.”). Unlike Plaintiff's 2015 SCI Greene Action, which failed to identify a protected class and in which pro se Plaintiff was then fully advised of the elements of an equal protection claim, this action now alleges that he is an African American subjected to race discrimination. As he has alleged membership in a “suspect class, ” strict scrutiny applies to his Fourteenth Amendment equal protection claim. See, e.g., Plyler v. Doe, 457 U.S. 202, 217 (1982). Thus, Plaintiff need only allege that the differential treatment was “not precisely tailored to serve a compelling governmental interest.” Id.

The essence of Plaintiff's broad equal protection claim is that all Defendants intentionally, and for no rational reason, treated him differently for reasons of racial animus by, e.g., refusing to provide Plaintiff, who describes himself as a “dark skin[ned]” African American, with medical care while providing medical care to all non-African American inmates; or refusing his access to the desired additional religious materials; or refusing to move him to a high-tier cell from racial animus while granting the same requests/providing these benefits to all non-African American inmates; or refusing to process his grievances; or refusing to assign him to officiate prison basketball/sports games.²⁵ ECF No. 63.

25 Plaintiff, more specifically, alleges that Defendants routinely provided medical care or other desired/requested benefits to “all other inmates, especially white inmates.” See, e.g., ECF No. 63 at ¶ 228. This factual allegation of “everyone one but me” would not, of course, as presented, state a claim of membership in a disfavored class. However, as Plaintiff reiterates claims of racial bias and animus throughout his Amended Complaint, the Court understands Plaintiff to intend to allege that Defendants provided care only to “all other [non-African American] inmates, especially white inmates.”

Under the standards applicable to his pro se Complaint at the time of Defendants' Motions to Dismiss, Plaintiff had sufficiently alleged an equal protection claim.²⁶ Compare SCI Greene Action, ECF No. 96 at 11-13 (dismissing equal protection claim and explaining that Plaintiff failed to state factual allegations regarding reason he was intentionally treated differently from others similarly situated) (citing Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008)). The standard is now more stringent and looks to Plaintiff's establishment of material fact questions on the matters for which he bears the burden of proof at trial. On the completed record three years and 271 docket entries (non-inclusive of numerous exhibits) later, Plaintiff has failed to proffer evidence from which a reasonable jury could find that he was treated differently/discriminated against and his equal protection rights were violated by any Defendant with regard to Defendants' provision of medical care, housing assignments, grievance processing, access to religious materials, or prison employment tasks. See discussions of each of these claims herein. As Plaintiff has failed to establish an evidentiary record from which a reasonable jury could find in his favor on his equal protection claims, Defendants are entitled to judgment as a matter of law.

26 As previously noted in ECF No. 96, and supra, although Plaintiff also alleged that he is a member of a protected class based on his religious beliefs and/or age, Plaintiff's Amended Complaint contains absolutely no factual allegations supporting a maintainable equal protection claim on the basis of either religion or age. The Court has accordingly concluded of record that Plaintiff alleges a racial classification.

2. Due Process - Failure to Process Grievances

Plaintiff also contends that his Fourteenth Amendment rights were violated by Defendant Sroka's refusal to process his grievances. In analyzing any procedural due process claim of this type, “the first step is to determine whether the nature of the interest is one within the contemplation of the ‘liberty or property' language of the Fourteenth Amendment.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)). Should the Court determine that a protected property or liberty interest has been implicated, “the question then becomes what process is due to protect it.” Id. (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Should the court determine, however, that a protected liberty or property interest has not been implicated, then no further analysis is warranted. See, e.g., Evans v. Fanelli, Civ. No. 1:CV-12-2385, 2013 WL 3049112, *4 (M.D. Pa June 17, 2013).

The Due Process Clause of the Fourteenth Amendment does not protect every change in the conditions of confinement having a substantial adverse impact on a prisoner. Meachum, 427 U.S. at 224. Rather, a liberty interest inherent in the Constitution arises when a prisoner has acquired a substantial, although conditional, freedom such that the loss of liberty entailed by its revocation is a serious deprivation requiring that the prisoner be accorded due process. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973); see also Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir. 2003) (A plaintiff's “procedural due process rights are triggered by deprivation of a legally cognizable liberty interest.”). Interests recognized by the Supreme Court as falling within this category include the revocation of parole, Morrissey, 408 U.S. at 482, and the revocation of probation, Gagnon, 411 U.S. at 782.

Conversely, however, the Courts have held that prisoners do not possess a constitutional right to a prison grievance system - that is, prison grievance procedures confer no liberty interest on a prisoner - and thus they hold no procedural due process rights with respect thereto. See, e.g., Simpson v. Black, 2:16-CV-00160, 2016 WL 8677235, at *8 (W.D. Pa. Mar. 25, 2016), report and recommendation adopted, 2:16-CV-160, 2016 WL 1546850 (W.D. Pa. Apr. 15, 2016). See also Jones v. N. Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 137-38 (1977) (Burger, J., concurring); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“the existence of a prison grievance procedure confers no liberty interest on a prisoner.”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). As Plaintiff has failed to assert a constitutionally protected liberty interest, the procedural due process protections of the Fourteenth Amendment have not been triggered.

Moreover, even if the refusal to process Plaintiff's grievance constituted an adverse action for purposes of a § 1983 complaint, which this Court concludes it does not, Plaintiff has “failed to produce any evidence, beyond his bare assertions”, that the alleged refusal to process “his grievances were in any way motivated by retaliatory animus.” Alexander v. Fritch, 396 Fed.Appx. 867, 872 (3d Cir. 2010) (citing Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir.2000)) (a retaliation claim cannot rest on the “logical fallacy of post hoc, ergo propter hoc, literally ‘after this, therefore because of this'”). See e.g. ECF Nos. 215-17. Cf. ECF No. 215 at 17-18 (“Plaintiff leaves out that he has filed dozens upon dozens of grievances that have been processed, answered, and appealed to final review. In fact, in Defendants' Appendix, 38 of the exhibits are grievances, and this does not count grievances rejected for contesting other grievances or grievances on subject matters unrelated to this lawsuit . . . .”); cf. Wilkins v. Bittenbender, 3:CV-04-2397, 2006 WL 860140, at *12 (M.D. Pa. Mar. 31, 2006) (noting claim of interference with his attempts to file grievances was “also undermined by the fact that the prisoner filed 116 requests for administrative remedies” and that court had “not made a determination that any part” of matter was “subject to dismissal on the basis of non-exhaustion”). Defendant Sroka and any other Defendants intended to be included, by way of, e.g., a stray/blanket allegation, are therefore also entitled to judgment as a matter of law on this claim.

C. First Amendment Free Exercise of Religion

The First Amendment provides, in relevant part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. Amend. I. Because “[t]here is no iron curtain drawn between the Constitution and the prisoners of this country, ” Wolff v. McDannell, 418 U.S. 539, 555-56 (1974), prisoners, like all persons, possess a right to practice their religion under the First Amendment. Bell v. Wolfish, 441 U.S. 520, 544 (1979). This constitutional right, although not entirely extinguished, is, however, lessened in the prison context, where legitimate penological interests must be considered when assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78, 89 (1987). Consequently, in order to establish a free exercise of religion claim, a plaintiff “must show that the [defendants] burdened the practice of his religion by preventing him from engaging in conduct mandated by his faith without any justification reasonably related to legitimate penological interests.” Heleva v. Kramer, No. 08-03408, 2009 WL 1426759 (3d Cir. 2009) (citing Turner, 482 U.S. at 89). In general, if a prison regulation impinges on a prisoner's constitutional right to free exercise of his sincerely-held religious beliefs, the analysis turns to the four-factor test in Turner, 482 U.S. at 89, under which courts consider: (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest; (2) whether alternative means exist for inmates to exercise the constitutional right at issue; (3) what impact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alternatives exist. See e.g., DeHart v. Horn, 390 F.3d 262, 268 (3d Cir. 2004); Sharp v. Johnson, 669 F.3d 144 (3d Cir. 2012).

Plaintiff states that Corrections Defendants²⁷ either (a) personally denied him adequate access to the religious literature - e.g., in the form of additional boxes permitted in his cell or sufficient frequency or quantity of exchange of his religious materials - needed to conduct his daily readings and worship or (b) witnessed and failed to correct other Corrections Defendants denying him access to his religious literature.²⁸ Plaintiff specifically identifies a number of isolated instances, over an Amended Complaint time period of two to three years, when he was assertedly denied his First Amendment right to practice his religion by four specific Defendants. ECF No. 63; ECF No. 215 at 2. Cf. SCI Greene Action, ECF No. 96 at 9-11 (dismissing claim based on isolated incidents over two years and explaining the law); compare Second SCI Somerset Action (alleging continual interference with/denial of religious practices/material in this 2019 action as committed on a “daily basis” by Defendants).

27 As fully set forth in this Court's prior Report and Recommendation, in the portion of his Amended Complaint asserting violations of his First Amendment right to free exercise of religion, Plaintiff included conclusory paragraphs that recited the names of all Defendants, including Medical Defendants. ECF No. 63. However, Plaintiff made not a single specific factual allegation to support a First Amendment free exercise of religion claim against any of the Medical Defendants; he later clarified that no such claim was intended and said claim was dismissed.

28 Plaintiff alleges that he is “the founder and leader of the Children of the Sun Church[, ] who[se] beliefs dictate[] a daily reading of four different spiritually inspired Afro[c]entri[c] books or literature.” ECF No. 63 at ¶ 283. He has also noted that he has a Settlement Agreement whereby the DOC agreed to provide him with weekly access to his property in order to exchange his reading materials. See Washington v. Klem, No. 01-2432, ECF No. 172-2 (M.D. Pa. Mar. 27, 2009). See also 2015 SCI Greene Action, ECF Nos. 96 and 168; discussion infra.

First, Plaintiff has not proffered sufficient evidence from which a reasonable jury could find in his favor on his First Amendment claim. See, e.g., Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009) (isolated acts in which prison officials failed to timely approve requests for religious accommodations did not amount to free-exercise violations but “were, at most, isolated acts of negligence, not pervasive violations of [the inmate's] right to free exercise of religion”); Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) (isolated occasions constituted only a de minimis burden on prisoner's religion and did not violate Free Exercise Clause).²⁹ Second, here, as in the SCI Greene Action, Plaintiff has not established any evidence of the invalidity of Defendants' prison neutral, legitimate interests in limiting the number of property boxes in inmate cells, ³⁰ nor of any conscious or intentional interference with Plaintiff's free exercise rights; and indeed, the record is now to the contrary. In particular, Defendants' evidence supports their CSMF representations that Plaintiff has been allowed to keep boxes of property in his cell and his routinely-accessible other/storage area in accordance with Plaintiff's previous Settlement Agreement, and SCI-Somerset has at times even permitted additional property. As set forth in ECF No. 216, Correction Defendants' CSMF, and the exhibits thereto:

29 See also Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (“relatively short-term and sporadic” impositions on religious exercise did not constitute substantial interference); Wilson v. Woodbourne Correctional Facility, 2012 WL 1377615, at *3 (N.D.N.Y. Mar. 21, 2012) (collecting cases); Evans v. Albany Cty. Corr. Fac., 2009 WL 1401645, at *8 (N.D.N.Y. May 14, 2009); Odom v. Dixon, 2008 WL 466255, at *11 (W.D.N.Y. Feb. 15, 2008).

30 If there is a prison regulation that impinges on the inmate's constitutional right to free exercise of his religion, “the regulation is valid if it is reasonably related to legitimate penological interests.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Williams v. Morton, 343 F.3d 212, 216 (3d Cir. 2003). “This approach ensures the ability of corrections officials to anticipate security issues and adopt innovative solutions to the intractable problems of prison administration and avoids unnecessary intrusion of the judiciary into problems particularly ill-suited to resolution by decree.” O'Lone, 482 U.S. at 349-50. Importantly, “the burden is not on the state to prove the validity of the challenged prison regulation but instead is on the inmate to disprove it.” Williams, 343 F.3d at 217.

Plaintiff and the Department of Corrections entered into a 2008 Settlement Agreement. ECF No. 217-3, supra n. 28. Pursuant to the Agreement, Plaintiff (while housed in general population) was allowed to retain nine boxes of religious books - five in his cell and the balance in storage - and to have a weekly 10-minute exchange window. In the months complained of herein - January, April and August 2017 - the record indicates that Plaintiff's claims of violation of his Constitutional rights are premised on (1) a requirement in January 2017 that, on his release from RHU, Plaintiff reduce the number of boxes of religious material, which had accumulated to 13, down to the permitted nine, and a denial of his request to keep nine boxes in his cell; (2) denial of his March 2017 reiteration of that request to Defendant Pastor/Chaplin Maust, which was denied with explanation of the safety and security reasons for limiting cell property;³¹ and (3) Maust's August 2017 denial of Plaintiff's request that the DOC print and provide Plaintiff with 40 pages of religious material free of charge as outside the Agreement. Again, Plaintiff has failed to provide an evidentiary record from which a reasonable jury could find in his favor on this claim and, accordingly, Defendants are entitled to judgment as a matter of law.³²

31 The Court concurs that “[a]t that core of this matter, Plaintiff wishes to exceed the limits of his own Settlement Agreement and has resisted attempts to bring his property into compliance in accordance with that Agreement.” And that “an accommodation of even more property would overburden the prison” and create tension with other prisoners subject to the facility's far more restrictive general population property rules. ECF No. 215 at 20-21.

32 The Court again notes that no asserted RLUIPA claim could be maintained. See prior Orders at ECF Nos. 112 and 183; note 2 supra.

D. First Amendment Retaliation

As this Court has previously noted, Plaintiff's extensive claims of denial of his right to freedom of speech are, in essence, claims of retaliation in violation of the First Amendment. It is well recognized that, under the First Amendment, “[r]etaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution.” White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990). In order to set forth a cognizable claim for First Amendment retaliation, a plaintiff must allege that “(1) he engaged in a constitutionally protected activity; (2) he suffered, at the hands of a state actor, adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) the protected activity was a substantial or motivating factor in the state actor's decision to take adverse action.” Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). The adverse action must be sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2005); Wilson v. Marrow, 917 A.2d 357, 364 (Pa. Cmwlth. 2007); Huertas v. Sobina, 476 Fed.Appx. 981, 984 (3d Cir. 2012). Further, to establish the critical element of causation, a plaintiff usually must allege “either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997)).

Because retaliation claims can be easily fabricated, district courts must view prisoners' retaliation claims with sufficient skepticism to avoid becoming entangled in every disciplinary action taken against a prisoner. See Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir.1996); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996). If a plaintiff is able to meet his prima facie case, the burden then shifts to the defendants to prove by a preponderance of the evidence that they would have made the same decision absent the protected conduct for reasons reasonably related to penological interest. Rauser, 241 F.3d at 334.

With respect to his retaliation claim, Plaintiff contends that all Defendants engaged in some or all of the aforementioned alleged wrongdoing (i.e., violated his rights under the Eighth and/or Fourteenth Amendments) “to penalize Plaintiff for suing [professionals employed at other state correctional institutions], filing grievances against [Defendants] pe[r]sonally, and [for] continuous[ly] communicat[ing] with authorities.” ECF No. 63.

As to the first requirement, it is well settled that not only the filing of a lawsuit, but also the filing of a prison grievance, constitutes protected activity under the First Amendment. Fantone, 780 F.3d at 191. Plaintiff alleges that he engaged in both of these types of protected activity. See, e.g., ECF No. 63 at ¶ 84. As to the second and third requirements, Plaintiff alleged an adverse action “sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights” (indeed, one which Defendants' allegedly expressly attributed to their retaliatory animus) at the motion to dismiss stage, particularly given his a pro se status.³³However, under the summary judgment standard now applicable, he has failed to proffer evidence of an adverse action sufficient to a reasonable jury's finding in his favor. Rather, as explicated supra, Plaintiff has failed to create a material fact question as to any Defendant's adverse action/violation of his Constitutional rights by reason of his medical care, denial of requests for cell reassignment, grievance processing or access to religious materials.

33 CompareSCI Greene Action, ECF No. 96 at 5-7 (dismissing retaliation claim premised on obstruction/denial of grievances and explaining that unspecified dates and threats did not arise to “adverse action” and were insufficient to state a claim absent, e.g., specific harm such as a denial of medical care) (citing, e.g., Diaz-Cruz v. Symons, 2016 WL 6248025, at *16 (M.D. Pa. Oct. 26, 2016) . Cf. supra (noting Plaintiff's pattern of filing a “template” Complaint in his new actions, in which noted pleading deficiencies in prior action are now met by further allegations of previously-absent conduct against the next group of Defendants).

Finally, with regard to Plaintiff's claim for retaliation alleged against Defendant Peschock on the basis of refusal to assign Plaintiff to basketball officiating, rather than to the other athletic activity related duties (jersey folding, sweeping, loose balls) which Plaintiff disfavors:

First, as noted above, it is well settled that the filing of a lawsuit or of a prison grievance constitutes protected activity under the First Amendment. Fantone, 780 F.3d at 191. As to the second requirement, Plaintiff alleges that Defendant deprived him of preferred or favorable prison employment. Inmates do not, however, possess a constitutional right to employment while in prison. Carey, 2008 WL 724101, at *9 (“It is well settled that prisoners have no inherent constitutional right to a prison job . . . .”) (collecting cases); see also Fidtler v. Pa. Dep't of Corr., 55 Fed.Appx. 33, 35 (3d Cir. 2002) (citing Bryan v. Werner, 516 F.2d 233, 240 (3d Cir. 1975)); James v. Quinlan, 866 F.2d 627, 630-31 (3d Cir. 1989)(prison inmates lack a protected liberty or property interest in prison employment); Wilkins v. Bittenbender, 3:CV-04-2397, 2006 WL 860140, at *9 (M.D. Pa. Mar. 31, 2006) (holding that claim relating to transfer to a different institutional job assignment did not set forth a valid claim of constitutional misconduct).³⁴ Rather, “the right to earn wages while incarcerated is a privilege, not a constitutionally guaranteed right. An inmate's expectation of keeping a specific prison job, or any job, does not implicate a protected property interest.” Dinkins v. Hall, 4:19-CV-01460, 2020 WL 7711283, at *4 (M.D. Pa. Dec. 29, 2020). While courts have held that prison officials cannot punish or retaliate against a prisoner for filing an administrative grievance via the loss of his prison job, ³⁵ here Plaintiff's work assignment was merely modified to reduce his officiating. This change of duties did not affect a legal right. Third, as also noted above, an “adverse action” must be one sufficient to deter a person of ordinary firmness from exercising his constitutional rights. Mitchell, 318 F.3d at 530; Wilson v. Marrow, 917 A.2d 357, 364 (Pa. Cmwlth. 2007); Huertas v. Sobina, 476 Fed.Appx. 981, 984 (3d Cir. 2012). This is an objective inquiry. Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). Not being able to officiate some (e.g., the faster-paced) games would not deter a reasonable person of ordinary firmness from a constitutionally-protected activity.³⁶

34 Both the federal and state courts in Pennsylvania have determined that Pennsylvania inmates do not have any constitutionally protected right to employment or to earn wages while incarcerated. See, e.g. Bryan v. Werner, 516 F.2d 233, 240 (3d Cir.1975); Fidtler v. Pennsylvania Dept. of Corrections, 55 Fed.Appx. 33, 2002 WL 31648368 (3d Cir. Nov.25, 2002); McCoy v. Chesney, 1996 WL 119990 (E.D.Pa. March 15, 1996); Aultman v. Department of Corrections, 686 A.2d 40, 42 (Pa.Commw.1996), aff'd, 549 Pa. 577, 701 A.2d 1359 (1997).

35 Cf. e.g., Watson v. Wetzel, Civ. A. No. 11-281J, 2013 WL 501376, *8 (W.D. Pa. Jan. 9. 2013) (refusal to reinstate may be sufficient to deter a prisoner from exercising his constitutional rights).

36 Plaintiff continued to officiate slower-paced basketball and football games for older inmates. ECF No. 215 at 26 (citing Ex. 38, Ex. 50). The Court notes that the retaliation cause of action is designed to protect rights of access and not to police all interactions between prisoners and corrections officers.

Finally, even if Plaintiff sufficiently claimed an adverse action, which the Court concludes he did not, Plaintiff has not established a material fact question that Peschock's placement of some basketball or other sports team officiating restrictions on an inmate with Plaintiff's medical history - i.e., extraordinarily frequent sick calls, medical treatment and a multitide of chronic ailments including fungused/bleeding/swollen feet and calves, difficulties standing, muscle weakness, difficulties speaking above a whisper, fatigue, chest pain, respiratory impairment, peripheral numbness, unilateral loss of hearing and near-blindness in one eye - was actually motived by retaliatory animus rather than by Peschock's responsible regard given Plaintiff's actual/perceived medical conditions and physical limitations. Cf. Alexander v. Fritch, 396 Fed.Appx. 867, 873 (3d Cir. 2010).

V. CONCLUSION

In Anderson, the United States Supreme Court noted that “at the summary judgment stage the judge's function is . . . to determine whether there is a genuine issue for trial . . . . [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). Accordingly, for the foregoing reasons, it is respectfully recommended that the Plaintiff's Motion for Summary Judgment, ECF No. 232, be denied and the five (5) Motions for Summary Judgment as to Plaintiffs Amended Complaint, ECF No. 63, filed by Defendants at ECF Nos. 202, 205, 208, 214 and 220, be granted.

In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.

[Washington's] long history in the Pennsylvania prison system has been characterized by repeated transfers, long stints in restricted housing and/or solitary confinement, and, he claims, sustained abuse. According to Washington, he was incarcerated in SCI Dallas . . . where he was repeatedly assaulted by staff members . . . . Following a transfer to SCI Greene, a “major assault” by prison staff left him with significant medical disabilities. This pattern of mistreatment, he avers, continued through transfers to SCI Mahanoy and SCI Retreat, where guards and prison staff - familiar with his “rabble rousing” tendencies, and angry about the grievances he filed regarding their friends in other institutions - continued to abuse him.

Washington v. Grace, 445 Fed.Appx. 611, 613 (3d Cir. 2011). The present action is simply “yet another lawsuit in the ongoing series of litigation commenced by Washington against officials at the various state institutions where he is incarcerated.” Washington v. Grace, No. 8-01283, 2010 WL 4919074 (M.D. Pa., Nov. 29, 2010). Plaintiff's other actions before this Court have included Washington v. Folino, 11-cv-01046 (SCI Greene); Washington v. Gilmore, 15-cv-01031 (the “2015 SCI Greene Action”); and most recently Washington v. Delisma, 19-cv-00196 (the “Second SCI Somerset Action”). In the Second SCI Somerset Action, the Court was “compelled to note that Plaintiff's modification of allegations in successive litigations - e.g., such that shortcomings in defendants' putative conduct identified to Plaintiff as the reason for dismissal of particular Constitutional claims are subsequently asserted as now also being committed - suggests that Plaintiff's continued failure to comply with basic pleading requirements may reflect more unwillingness than inability. Compare, e.g., 2015 SCI Greene Action, ECF No. 96 (Report and Recommendation on Motion to Dismiss, dismissing with provision of legal requirements for each cause of action, 1st and 14th Amendment claims regarding retaliation, equal protection and free speech) with 2017 SCI Somerset Action, ECF No. 63 (Amended Complaint).” ECF No. 109 at 9, n. 9.

As previously, Plaintiff sometimes inserts seemingly blanket, unsupported assertions of violation of his rights under the Religious Land Use and Inmate Protection Act (“RLUIPA”), 42 U.S.C. § 2000 et seq. Section 3 of the RLUIPA provides that “no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest.” Holt v. Hobbs, 135 S.Ct. 853, 860 (2015), quoting 42 U.S.C.§2000cc1a.

For the purposes of RLUIPA, a substantial burden exists where: “(1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the precepts of his religion in order to receive a benefit; OR (2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.” Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007). Plaintiff has not made allegations meeting or suggesting either forced choice between religious adherence and inmate benefits or pressure to violate his religion. Rather, the crux of Plaintiff's claim is Defendants' alleged non-compliance and/or Plaintiff's own dissatisfaction with a prior settlement agreement pursuant to which he is permitted access to “religious material” in his cell beyond that generally permitted an inmate. The Court notes that not only do the alleged circumstances fail to state a claim under the “substantial burden” tests of RLUIPA, but, had they, the government's compelling interest would be evaluated in light of the importance of order, security, and the granting of deference to prison administrators, with “particular sensitivity” to security concerns. RLUIPA does not “elevate accommodation of religious observances over an institution's need to maintain order and safety”. Washington, 497 F.3d at 283 (citing Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)). There is a compelling governmental interest in limiting the amount of property that any one inmate can retain in his cell.

See ECF No. 109 at 7 n. 6. The Court further notes, relatedly, that it concludes herein that Defendants are entitled to summary judgment as to Plaintiff's claim of violation of his First Amendment rights of free exercise of religion. See infra.

As Plaintiff also references Defendants as violating the ADA in his Amended Complaint, the Court assumes that Plaintiff is confused as to the applicability of a claim under Title II of the ADA, as amended 42 U.S.C. § 12131, et seq. Title II of the ADA prohibits discrimination by public entities, such as state prisons. See Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 210, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (Title II of the ADA applies to state prisons); United States v. Georgia, 546 U.S. 151, 154, 126 S.Ct. 877, 163 L.Ed.2d 650 (2006) (Title II of the ADA authorizes suits by inmates against public entities such as state prisons). Specifically, Title II of the ADA provides, in relevant part, that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services or activities of a public entity or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. However, individual defendants, sued in their individual capacities, are not liable under Title II of the ADA because they are not “public entities” within the meaning of the ADA. Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir.2002). And as noted in Medical Defendants Brief in Support, ECF No. 208-3 at 3, Plaintiff also raises stray blanket allegations of an equal protection violation premised on a “class of one” theory. As recently noted by this Court in Plaintiff's Second SCI Somerset Action on Motion to Dismiss: “Following the Court's guidance on his unnecessary assertion of a “class of one” equal protection claim in his 2015 SCI Greene Action, see, e.g., ECF No. 63 at ¶ 226, in addition to a claim of race discrimination, Plaintiff no longer advances that additional claim.” ECF No. 109 at 36, n. 21. As Plaintiff had not had the advantage of this guidance at the time of his 2017 action, the claim remains in ECF No. 63, but is no less superfluous and entirely unsupported than in his 2015 SCI Greene Action and cannot be maintained. Finally, as noted in the Corrections Defendants Brief in Support, ECF No. 215 at 28, “[s]prinkled throughout [Plaintiff's] Amended Complaint are conclusory labels that this or that action taken by some Defendant violated the Older Americans Act, specifically 42 U.S.C. §3025(a). However, that statute relates to state participation in federal grants to states concerning state and community programs on aging and appears to have no applicability to the allegations in this case.”

Cf ECF No. 206 at 2, n. 1. (“Interestingly, Plaintiff alleges that he is nearly blind in his right eye. ECF No. 63 at ¶ 30. However, he has been able to draft a fifty-page, 402-paragraph, handwritten Amended Complaint, in addition to numerous other lengthy, handwritten motions and responses. See ECF No. 63. In addition, Plaintiff details how is religious practices require him to read from "four different books by four different authors than Plaintiff read within the past four days." ECF No. 63 at ¶ 318. Moreover, Plaintiff's prayer for relief includes a request to be the crew chief of his sports teams. ECF No. 119 at ¶ 427. These allegations and prayers for relief seemingly contradict Plaintiff's claim that he is nearly blind in his right eye.”).

Plaintiff's 100-page Exhibits in Support, ECF No. 249, is largely comprised of his Requests to Staff Members re various complaints, including those which are subjects of this action; Sick Call Requests; Grievance forms (numerous, repeating, e.g., Plaintiff's objections to denial of further right eye surgery and Whipple's treatment, denial of change in cell assignment to top tier, unspecified denials of religious literature, denial of crew chief/officiating of basketball games); printed materials regarding, e.g., Whipple's Disease and the AMA Code of Ethics; portions of an Inmate Handbook and SCI Somerset's Housing Rules, Access to Healthcare Procedures Manual and Inmate Grievance System Procedures Manual; Medical Progress Notes Summaries from, e.g., 1994, 2009-2012 (as to which the Courts notes the frequency and extent of medical assessment and care, documentation of Plaintiff's episodic noncompliance/refusals of examination or consultation, and his history of the chronic ailments alleged herein and insistence on treatment despite a lack of medical substantiation of his self-diagnosed conditions); various sports official Signal Charts; and five Affidavits apparently written by Plaintiff and signed by other inmates in support of his fitness as a sports official. The Court has carefully reviewed these and all of Plaintiff's other submissions of record. As discussed infra, they largely fail to support Plaintiff's allegations and, indeed, are consistent with Defendants' other evidence and CSMFs. See, e.g. EFC No. 249 (Medical Progress Notes Summaries, individual Progress Notes, Consultation Records, Laboratory Reports); id. (Declaration of Dr. Jin, SCI-Greene, averring that Plaintiff (1) suffered from and was being treated for hypertension, benign prostatic hypertrophy, gastroesophageal reflux disease (“GERD”), and his history of coronary artery disease; (2) in response to continuous complaints, received close medical monitory, psychiatric observation and diagnostic testing, during which he was sometimes uncooperative; and (3) was being closely followed and not in need of urgent or other additional medical care).

On January 15, 2018, Plaintiff was seen by Joseph Girone, MD in follow up to recent prescriptions for hypertension and hypothyroidism. (SOF, at ¶ 42). Plaintiff had a list of other symptoms and concerns, including the continued belief that he was diagnosed with Whipple's Disease in 2009 while incarcerated at SCI-Dallas; however, Plaintiff's medical records prior to 2012 were not available. (SOF, at ¶ 42). Plaintiff also reported weight loss, arthralgia,

and gastrointestinal pain and intermittent diarrhea with a long list of irritant foods. (SOF, at ¶ 42). Dr. Girone noted that Plaintiff weighed 190 pounds, which was compared to his weight of 185 pounds as of April 16, 2017. (SOF, at ¶ 43). Dr. Girone also noted that Plaintiff's current medication was inadequately controlling his hypertension and that an EKG indicated left ventricular hypertrophy consistent with hypertension. (SOF, at ¶ 43). Plaintiff exhibited cardiac murmur suggestive of mitral valve prolapse with possible mitral regurgitation. (SOF, at ¶ 43). Plaintiff also had severe venous insufficiency and stasis dermopathy, as well as severe onychomycosis. (SOF, at ¶ 43). Dr. Girone increased Plaintiff's dosage of Lisinopril and ordered Hydrochlorothiazide. (SOF, at ¶ 44). He ordered aransthoracic echocardiogram to evaluate Plaintiff's cardiac murmur, rheumatoid factor and routine antinuclear antibody testing, and x-rays of Plaintiff's hands, elbows, and feet. (SOF, at ¶ 44). He noted to obtain Plaintiff's prior medical records to review an alleged 2009 workup for Whipple's Disease. (SOF, at ¶ 44). He also noted to repeat blood testing in five weeks to determine testosterone replacement therapy efficacy and ACEI safety. (SOF, at ¶ 44). To monitor Plaintiff's alleged weight loss, Dr. Girone ordered that Plaintiff be weighed once every two weeks. (SOF, at ¶ 44)

ECF No. 221 at 8-9.

It also observes that (1) Defendants had a legitimate penological reason for denying requests for a change that would require other inmates to move, and there record is devoid of any indication that Plaintiff had obtained any other inmate's agreement, and (2) transferring Plaintiff to his desired higher tier at his persistent insistence and in the absence of, e.g., medical necessity, would undermine the prison's legitimate goals of maintaining control over inmates and preventing abuse of the prison's accommodation policies.. Cf. Defendants' CSMFs and exhibits thereto.