Dwayne Rieco v. Moran

633 F. App'x 76
CourtCourt of Appeals for the Third Circuit
DecidedDecember 1, 2015
Docket15-2529
StatusUnpublished
Cited by39 cases

This text of 633 F. App'x 76 (Dwayne Rieco v. Moran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dwayne Rieco v. Moran, 633 F. App'x 76 (3d Cir. 2015).

Opinion

OPINION *

PER CURIAM.

Dwayne Rieco appeals from a District Court order granting Appellees’ motion to dismiss. Because this appeal presents no substantial question, we will summarily affirm.

Rieco is a Pennsylvania state prisoner housed at SCI-Pittsburgh. He brought a § 1983 action against the Appellees for their role in an incident involving alleged food tampering. He asserts that on February 15, 2014, Appellees Moran, Smith, and Guskiewicz gave him a broken food tray containing a fruit cup contaminated with urine and a tofu burger containing a “hot and spicy substance.” (D.C. dkt. #5). Rieco asserts that he immediately voiced his concern that his food had been tampered with, but that Moran, upon returning to collect his tray, slammed it down on Rieco’s arms. Rieco also asserts that thereafter Smith issued him with a misconduct citation. Rieco filed grievances indicating that he was assaulted and served tampered food.

Based on these events, Rieco alleges: (i) food tampering and food deprivation, (ii) *78 physical assault, (iii) verbal threats and retaliation, (iv) fabrication of a misconduct report, (v) improper interference with grievance process, (vi) failure to investigate, (vii) denial of access to the courts, and, finally, (vii) denial of medical treatment. The District Court dismissed all of Rieco’s claims as to all of the Appellees except Moran, who, Rieco asserts, physically assaulted him with the food tray. Rieco later entered into a settlement agreement in which he agreed to drop all claims against Moran.

Rieco has appealed the order granting the motion to dismiss. We have jurisdiction over this appeal under 28 U.S.C. § 1291. Our review of orders granting motions to dismiss is plenary. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). We may summarily affirm the District Court’s order where there is no substantial question presented by the appeal. Third Circuit LAR 27,4 and I.O.P. 10.6.

The District Court correctly concluded that Rieco failed to state an Eighth Amendment claim of food tampering because his Complaint contained no allegation that he ate the food, and that doing so caused him to suffer injury. See Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (“prison officials may violate the Eighth Amendment by serving unsanitary, spoiled or contaminated food if the prisoner also alleges that he or she suffered a distinct and palpable injury.”). The Court also correctly concluded that he failed to state an Eighth Amendment claim of deprivation of food. While he claims that Appel-lee Helsel failed to provide him with a replacement food tray on February 15, 2014, deprivation of a single meal does not rise to the level of an Eighth Amendment violation because “only a substantial deprivation of food to a prisoner” states a viable Eighth Amendment claim. Lindsey v. O’Connor, 327 Fed.Appx. 319, 321 (3d Cir.2009).

The District Court correctly concluded that Rieco did not state a First Amendment retaliation claim. Rieco complains that Appellee Guskiewicz tampered with his food on February 15, 2014, in retaliation for a grievance that Rieco filed against Guskiewicz five months earlier, in September of 2013, in which he alleged assault. An “unusually suggestive” proximity in time between the protected activity and the adverse action may be sufficient, on its own, to establish the requisite causal connection for purposes of a retaliation claim. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir.1997). This Court held in Jalil v. Avdel Corp. that the discharge of a plaintiff two days after filing an EEOC complaint was sufficient to establish such causation. 873 F.2d 701, 708 (3d Cir.1989). This Court also held that a period of nineteen months between the filing of an EEOC claim and the plaintiff being placed on workers compensation leave is insufficient to establish such a causal connection. Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir.1997). A period of five months between constitutionally protected activity and an adverse action could establish the temporal proximity required to suggest causation for purposes of a First Amendment retaliation claim, but only if the plaintiff pleads other facts to • demonstrate that he was subject to unfavorable treatment during that time period. Marra v. Philadelphia Housing Authority, 497 F.3d 286, 303-05 (3d Cir.2007). In Marra, this Court held that, for purposes of a Title VII employment discrimination claim, a period of five months between a plaintiff’s trial testimony against her employer and subsequent termination was enough to establish causation in a retaliation claim because the plaintiff pled that, during that time, her *79 employer harassed her in numerous ways. Id. Rieco has failed to plead anything beyond a five-month temporal relationship between his grievance against Guskiewicz and the food tampering incident. The Court therefore correctly concluded that this is insufficient to establish causation and fails to state a retaliation claim.

The District Court correctly dismissed Rieco’s claim that Guskiewicz made offensive and threatening comments towards him, reasoning that words alone cannot establish an Eighth Amendment claim. See McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir.2001) (taunts and threats are not an Eighth Amendment violation); Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir.1987) (vulgar language does not give rise to an Eighth Amendment violation).

The District Court also correctly dismissed Rieco’s claim that Appellees issued a false misconduct report against him. Prison disciplinary proceedings, on their own, do not state a claim under § 1983. Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir.2002). A claim of a false misconduct report violates an inmate’s First Amendment guarantee of access to the courts where it is in retaliation for an inmate’s resort to legal process. Id. A claim that an inmate was subject to disciplinary proceedings without due process may state a claim under § 1983 as well. Id. Here, Rieco does not assert that the misconduct report was filed against him in retaliation for his engaging in any protected activity.

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Bluebook (online)
633 F. App'x 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwayne-rieco-v-moran-ca3-2015.