Sean Tapp v. Proto .

• Decision Date: 13 May 2010
• Docket Number: Civil Action No. 07-3725.
• Citation: 718 F.Supp.2d 598
• Parties: Sean TAPP, Plaintiff, v. Andy PROTO, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

718 F.Supp.2d 598

Sean TAPP, Plaintiff,

v.Andy PROTO, et al., Defendants.

Civil Action No. 07-3725.

United States District Court,E.D. Pennsylvania.

May 13, 2010.

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Sean Tapp, Huntingdon, PA, pro se.

Thomas P. Wagner, Michael L. Detweiler, Marshall Dennehey Warner Coleman & Goggin, Louis J. Isaacsohn, Henry F. Canelo, Wilson Elser Moskowitz Edelman & Dicker LLP, Philadelphia, PA, Christine E. Munion, Law Offices William J. Ferren & Associates, Blue Bell, PA, for Defendants.

MEMORANDUM

ANITA B. BRODY, District Judge.

I. Introduction

In this § 1983 action, Sean Tapp, a Pennsylvania state prisoner currently incarcerated at the State Correctional Institution at Huntingdon, seeks compensatory and punitive damages for alleged violations of his Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights while he was a pretrial detainee and a convicted prisoner at Lancaster County Prison (“Prison”), a period lasting from December 2, 2006 to October 4, 2007. ¹ Tapp also alleges that defendants violated the Racketeer Influenced and Corrupt Organizations (“RICO”) Act in violation of his civil rights.

Tapp's allegations can be organized into the following categories:

(1) Religious discrimination: Tapp, a self-proclaimed black Sephardic Jew, alleges that Prison officials interfered with his rights to religious expression by denying him Kosher food during December 2006 and generally being inconsistent in serving him quality Kosher meals throughout the remainder of his time at the Prison; ²

(2) Denial of access to courts: Tapp alleges that Defendant Romanowski denied him access to the Prison's law library and notary services; that Defendants Deputy Warden Robert Siemasko (improperly identified as “Robert Samasko”) and Major Klinovski (improperly identified as “Mr. Klowonsky”) failed to respond to his grievances; and that Defendants Correctional Officers (“C.O.s”) Brown, McCormick, Ovens, Minotti, and Deford failed to report when his meals were not in compliance;

(3) Nonmedical and medical conditions of confinement:

(a) Tapp alleges that he was deprived of a mattress, bed space (i.e., that he was placed in an overcrowded cell), clean clothes, a place to eat, an adequately nutritious diet, clean water, shower and outdoor recreation opportunities, and disease-free cell-mates, ³ and

(b) Tapp alleges that he was denied adequate medical care by the Prison medical staff, including Dr. Robert Doe (improperly identified as “Dr. Dough”), Nurse Rachel Downs (incompletely named “Nurse Rachel”), and Nurse Darlene Hehnly (improperly identified as “Nurse Hennly”), who allegedly failed to document and respond to his weight loss or test him for infectious diseases;

(4) Other Due Process violations: including false imprisonment by Warden Guarini; a lack of process in relation to a disciplinary hearing orchestrated by C.O. Barley, Sergeant Lesse, and an unnamed party, Shawn Rye; as well as a theft of Tapp's property allegedly perpetrated by C.O. Masterangelo and Sergeant Wolffe;

(5) Racial discrimination; ⁴

(6) RICO violations: Tapp alleges that Proto and Warden Guarini profited from prison overcrowding and cheap inmate food and clothing purchases; and

(7) Conspiracies to deprive Tapp of his constitutional rights: Tapp claims that many of the above officials conspired with each other to deny Tapp his rights.

All of the defendants, except for Dr. Doe, have filed motions for summary judgment. Tapp filed a cross-motion for summary judgment. Because many of Tapp's claims are frivolous and he has failed to provide any evidence in support of his legitimate claims, I will deny Tapp's cross-motion for summary judgment and grant Defendants' motions for summary judgment.

II. Background ⁵ A. Kosher Diet

Sean Tapp was born in Harlem, New York and raised in the Baptist Church. (Def. Proto et al.'s Mot. Summ. J., Ex. B, Tapp Dep. 135:15-25, Jan. 8, 2009). He has been incarcerated on many occasions since the early 1990s. ( Id. at 19:23-22:1) In 2004, while serving five years in New York's Southport Correctional Facility, Tapp became a Sephardic Jew. ( Id. at 30:24-31:15.) Although Tapp never went through a formal conversion process, he learned the customs and practices of Sephardic Jews from other inmates he met and, while he was incarcerated at New York's Great Meadow Correctional Facility, he was given informational materials about his religion from the prison's rabbi, Rabbi Kelleman. ( Id. at 35:25-37:25). Tapp believes that he may only eat food that is blessed (i.e., meat that is slaughtered in a certain way, but no pork), and that at certain times he is to only eat unleavened bread. ( Id. at 38:13-39:23.)

On December 9, 2006, seven days after Tapp first arrived at Lancaster County Prison, he filed a grievance request for a Kosher diet and was told to forward his request to the Chaplain's office. ( Id. at Ex. “Tapp 2.”) It is unclear at what point Tapp began receiving Kosher meals; however, on December 31, 2006, Tapp filed a second grievance regarding his meals in which he admitted that he had begun to receive hot Kosher meals approximately ten to fourteen days prior to December 31. ( See Proto et al.'s Mot. Summ. J., Ex. F.)

Early in Tapp's stay at the Prison, Andy Proto, the Prison's Food Administrator, personally visited Tapp to discuss his Kosher diet needs. Proto told Tapp that he had “never seen or heard of a black Jew before.” (Compl. ¶ 2.) Tapp recalls having several conversations with Proto about his diet. Initially, Proto told Tapp that he would provide him with cheese dishes, which Tapp did not enjoy; later, Proto began giving Tapp boiled eggs for breakfast as well as grits and oatmeal. Tapp found that Proto was willing to accommodate him, so he asked Proto for more variety in his diet. Proto agreed to try to supply Tapp with a more varied diet and Tapp was relatively satisfied with his efforts. (Tapp Dep. 124:3-125:14.)

On December 27, 2006, Proto, having received additional grievances from Tapp, contacted the rabbi at Great Meadow Correctional Facility, Rabbi Kelleman, and requested that the rabbi review the Kosher menu that Proto had developed for Tapp. Proto also contacted Rabbi Sackett, a Lancaster County rabbi, to obtain his approval of Tapp's diet. ( See Proto et al.'s Mot. Summ. J., Ex. D.)

On January 1, 2007, prison officials began supplying Tapp with a one-page menu of Kosher meals. Officials would place a check mark beside the description of the meal that was being served (i.e., breakfast, lunch, or dinner), and both the Kitchen Supervisor in charge and a C.O. would sign the sheet. Tapp would frequently sign the sheet as well. The Kosher meals listed on the menu included: spaghetti and meatballs, lemon fish, meat loaf, brisket meat, turkey breast, salisbury steak, and cold cereal with boiled eggs, bread, and fruit. ( See id. at Ex. E.)

Once Tapp began receiving Kosher meals, his concern turned to the way the food was served: he alleges that Proto and his staff served him the same dishes repeatedly, failed to heat the dishes (sometimes serving them raw or spoiled), wrapped the dishes poorly, etc., in an attempt to make the meals so unappetizing that he would not eat the food, which would prevent him from partaking in the Jewish custom of eating Kosher food. ⁶

B. Denial of Access to Courts

Tapp alleges that Defendant Romanowski denied him access to the law library and notary services. While Tapp was a detainee at Lancaster County Prison, he had three or four pending civil rights suits in federal district courts in New York, as well as a habeas corpus petition. (Tapp Dep. 4:22-10:15.) In addition, Tapp was representing himself in the criminal action for which he was detained at the prison. ( Id. at 51:5-7.) Tapp visited the Prison library often-by his estimate, more than 55 times in eleven months. ( Id. at 50:1-4).

Tapp's primary reason for going to the library was to prepare for his criminal matter. ( Id. at 51:11-14.) Tapp contends that he never had difficulty obtaining access to the law library until the weeks leading up to his criminal trial in June or July 2007. Although he can recall neither who denied him access to the library, nor the exact dates on which the denials occurred, Tapp believes he was denied access between two and possibly five times in the weeks prior to his trial. ( Id. at 63:25-65:7.)

Tapp also contends that Romanowski denied him notary services from April 25, 2007 to the end of his confinement at the Prison. The Prison's notarial registry demonstrates that Romanowski notarized documents for Tapp on ten occasions during Tapp's incarceration at the Prison, including four times after April 25, 2007. ⁷ The dockets for Tapp's civil cases that were pending while he was detained at the Prison show that Tapp was able to file materials between April 25, 2007 and October 4, 2007. ( See Def. Romanowski et al.'s Mot. Summ. J., Ex. D, 1:06-cv-13631-KMW, filing of May 10, 2007, Doc. # 7; 9:05-cv-01479-NAM-DEP, filing of May 10, 2007, Doc. # 36; 9:05-cv-01442-LEK-DRH, filing of May 11, 2007, Doc. # 31). As for the criminal case for which Tapp was detained at the Prison and in which Tapp was proceeding pro se, Tapp testified that he could not recall any instances in which his filings in that case were rejected for a lack of notarization. ( See Tapp Dep. 57:22-25.)

Tapp also alleges that Deputy Warden Siemasko and Major Klinovski failed to answer his grievance complaints, ⁸ but he does not recall what the grievances were about, nor does he have any copies of the grievances. ( See Tapp Dep. 77:7-78:9.) Finally, Tapp alleges that C.O.s Brown, McCormick, Ovens, Minotti, and Deford failed to report when his meals were not in compliance, on May 14 (Minotti), May 18 (McCormick), June 11 and 12 (Ovens), June 20 (Brown), and August 23, 2007 (Deford). ( See Compl. ...