Falciglia v. Erie County Prison , 279 F. App'x 138 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-27-2008
Falciglia v. Erie Cty Prison
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4300
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CLD-129 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-4300
_____________
WAYNE FALCIGLIA,
Appellant
v.
ERIE COUNTY PRISON; CANTEEN SERVICE ERIE COUNTY; VINCENT
KINNANI, DEPUTY WARDEN; JAMES VESHECCO, WARDEN
________________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 06-cv-00192E)
District Judge: Honorable Maurice B. Cohill
__________________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
February 14, 2008
Before: AMBRO, FUENTES and JORDAN, Circuit Judges
(Filed: May 27, 2008 )
______________________
OPINION
______________________
PER CURIAM
In August 2006, Wayne Falciglia, a state prisoner, filed a pro se civil rights
complaint alleging that he was not provided with adequate access to the prison law
library, that he did not receive a medically approved diabetic diet, and that he was placed
in the restrictive housing unit in retaliation for arguing with a prison employee and
“without . . . being found guilty of any infraction.” Falciglia sought monetary damages
and declaratory and injunctive relief.1 The defendants, the Erie County Prison, its warden
and deputy warden, and Canteen Correctional Services (“Canteen”), filed motions for
summary judgment.
The matter was referred to a Magistrate Judge, who recommended granting the
summary judgment motions. Specifically, the Magistrate Judge concluded that the Prison
was immune from suit, that Falciglia did not demonstrate an actual injury to his ability to
litigate a claim, that his placement in the restrictive housing unit did not implicate a
protected liberty interest, and that Falciglia failed to contradict evidence that he was
served a diet appropriate for diabetics. The District Court adopted the Magistrate Judge’s
Report and Recommendation and entered judgment in favor of the defendants. In a
separate opinion, the District Court rejected Falciglia’s arguments that the defendants
were permitted to circumvent discovery, that the Prison is not a state agency entitled to
qualified immunity, and that he was prevented from filing a petition for a writ of
certiorari in a separate civil rights action. Falciglia appealed.
We have reviewed Falciglia’s complaint and amended complaint, his responses to
1
Falciglia also filed a motion for a preliminary injunction, seeking an order
requiring the Prison to provide him with an appropriate diet. After the Prison provided
evidence concerning the caloric content of Falciglia’s meals, the District Court denied the
motion. Because Falciglia is no longer housed at the Erie County Prison, his request for
injunctive relief is moot.
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the motions for summary judgment, and his objections to the Magistrate Judge’s Report
and Recommendation. Because we conclude the appeal presents no substantial question,
see I.O.P. 10.6, we will summarily affirm.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
the District Court’s order is plenary. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir.
2004). Summary judgment is proper where, viewing the evidence in the light most
favorable to the nonmoving party and drawing all inferences in favor of that party, there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(c); Kaucher v. County of Bucks, 455 F.3d 418, 423
(3d Cir. 2006). We may affirm the District Court’s grant of summary judgment on any
basis supported by the record. See Fairview Township v. EPA, 773 F.2d 517, 525 n.15
(3d Cir. 1985).
The District Court properly granted summary judgment on Falciglia’s claims
against the Erie County Prison. Liability under 42 U.S.C. § 1983 may not based on the
doctrine of respondeat superior. See Durmer v. O’Carroll, 991 F.2d 64, 69 n.14 (3d Cir.
1993). Thus, in order for the Prison to be liable, Falciglia would have to show that it had
an established policy or custom that resulted in the alleged constitutional violations at
issue. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). Falciglia failed
to identify any such customs or policies.
Falciglia claimed that the warden and deputy warden limited his access to the
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prison library, thereby preventing him from filing a timely petition for a writ of certiorari.
Prisoners have a right of access to the courts. See Lewis v. Casey, 518 U.S. 343 (1996).
To state an access to the courts claim, however, a prisoner must demonstrate that the
underlying claim was “arguable” and “nonfrivolous,” describe the official acts frustrating
the litigation, and identify a remedy that could not otherwise be obtained. See
Christopher v. Harbury, 536 U.S. 403, 415 (2002). Falciglia has not made this showing.
In support of this claim, Falciglia submitted an order, issued by the United States Court of
Appeals for the Second Circuit, denying a motion for reconsideration. He also provided a
letter from the Supreme Court Clerk rejecting a certiorari petition in the same case
because it was filed too late. Importantly, however, other than the name of the case,
Falciglia v. Westchester County Jail, there is no information concerning the underlying
cause of action. Christopher, 536 U.S. at 416 (requiring that “the predicate claim be
described well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’
nature of the underlying claim is more than hope.”). Therefore, the District Court
properly dismissed Falciglia’s access to the courts claim. See Gibson v. Superintendent
of N.J. Dep’t of Law & Public Safety-Div. of State Police, 411 F.3d 427, 444-45 (3d Cir.
2005) (dismissing denial of access claim for failure to specify causes of action lost as a
result of alleged wrongdoing).
Falciglia further alleged that he was “placed in [the] Restrictive Housing Pod
without ever getting a misbehavior report or being found guilty of anything.” Following
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an argument with a prison employee, Falciglia moved to the restrictive housing unit
where he was confined to his cell 24 hours a day for the first seven days; over the next 30
days, he was “lock[ed] down” for 18 hours a day. The Due Process Clause protects
liberty interests created by the laws or regulations of a state. See Sandin v. Conner, 515
U.S. 472 (1995). In Sandin, the Supreme Court held that “these interests will be generally
limited to freedom from restraint” which impose an “atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Id. at 484. Applying
Sandin and its progeny to the circumstances presented here, we are convinced that the
conditions experienced by Falciglia while in the restrictive housing unit for 37 days did
not impose on him an “atypical and significant hardship.” See Griffin v. Vaughn, 112
F.3d 703, 708-09 (3d Cir. 1997) (15 months in administrative custody not “atypical and
significant hardship”). In addition, the uncontroverted record indicates that prison
officials prepared a misconduct report and held a hearing on the charges against Falciglia.
Thus, Falciglia was not deprived of a state created liberty interest and, as such, there
could be no due process violation.2
Finally, Falciglia alleged that the defendants failed to provide him with an
2
To the extent that Falciglia asserted a retaliation claim based on his placement in
the restrictive housing unit, he failed to prove that the conduct that led to the alleged
retaliation (his argument with a prison employee) was constitutionally protected. See
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001).
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“A.M.A. diabetic diet,” thereby exhibiting “deliberate indifference” to a serious medical
need. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). Prison officials must ensure that
“inmates receive . . . adequate food . . . .” Farmer v. Brennan, 511 U.S. 825, 832-33
(1994). But a prison official cannot be found liable for an Eighth Amendment violation
“unless the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
In this case, the summary judgment record convinces us that the defendants did not act
with deliberate indifference. The defendants submitted the affidavit of Canteen’s Food
Service Director, which indicated that Falciglia was served a diet designed for diabetics
that, while similar to the general population menu, modified the portions served and
substituted certain menu items, such as fruit for cookies and cake. In addition, the diet
menu – which provided for either 2000, 2400, or 3000 calories per day, depending on the
inmate’s specific needs – consisted of three full meals, plus three snacks, seven days a
week. “Diet Orders” in the record demonstrated that medical personnel had authorized a
diabetic menu for Falciglia over a period of several months. Falciglia did not provide any
evidence, other than his own conclusory statements, establishing that the defendants knew
that his diet was inappropriate for a diabetic. See Pastore v. Bell Telephone Co. of
Pennsylvania, 24 F.3d 508, 511- 12 (3d Cir. 1994) (holding that once the moving party
has carried the initial burden of showing that no genuine issue of material fact exists, the
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“nonmoving party cannot rely upon conclusory allegations in its pleadings or in
memoranda and briefs to establish a genuine issue of material fact.”). Falciglia’s
dissatisfaction with the diabetic diet does not amount to a constitutional deprivation. See
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).
For the foregoing reasons, we conclude the appeal presents no substantial question.
Accordingly, we will summarily affirm. See I.O.P. 10.6.
Judge Ambro would have remanded for answers to interrogatories.
7