          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sidney Martin,                        :
                    Appellant         :
                                      :
              v.                      : No. 1934 C.D. 2016
                                      : Submitted: May 5, 2017
Nancy Giroux, Sgt. Maloney,           :
Melanie Kosinski, and Dorina Varner, :
sued in their individual and official :
capacities                            :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                               FILED: May 26, 2017


             Sidney Martin (Martin) appeals, pro se, a Court of Common Pleas of
Erie County’s (trial court) order sustaining the preliminary objections of Nancy
Giroux, Sgt. Maloney, Melanie Kosinski, and Dorina Varner (collectively,
Defendants) and dismissing his complaint on grounds of sovereign immunity and
failure to state a cause of action. Discerning no error, we affirm.


                                          I.
             The facts as alleged in the complaint, except as otherwise noted, are as
follows. Martin is currently incarcerated at the State Correctional Institution at
Albion (SCI-Albion).     In early 2014, plumbers in SCI-Albion’s maintenance
department became aware of a cracked valve in the water tower. The maintenance
department submitted an agency purchasing request to fix the cracked valve, which
then-Superintendent Nancy Giroux (Superintendent Giroux) denied. Over one
year later, on the morning of March 9, 2015, SCI-Albion experienced water
problems and the water for the facility had to be turned off.1 For three days, the
cells on Martin’s prison unit were without running water or functioning toilets.


              That same day, a water cooler holding ten gallons of water was
brought to Martin’s unit and prisoners were permitted to sign up to receive water.2
In the afternoon, 14 portable toilets were brought to SCI-Albion for prisoners on
the west side of the facility to use. Twenty-four additional portable toilets were
provided on March 10, 2015.3 These portable toilets became unsanitary through
use and prisoners had no access to them from 8:50 p.m. on March 9, 2015, through
7:40 a.m. on March 10, 2015, because they were locked in their cells.4

       1
          The Department of Corrections’ (Department) responses to a grievance Martin later
filed regarding this issue explained that SCI-Albion experienced an unplanned loss of water due
to a leak in the water tower. SCI-Albion declared a limited state of emergency and water to the
institution was shut off in an effort to conserve any remaining water. Martin attached a copy of
his grievance and the Department’s responses to his complaint.

       2
          The Department’s final appeal decision regarding Martin’s grievance indicates that the
water cooler jugs were replaced twice a day during the water outage. While showers could not
be utilized, body wipes were provided for prisoners to clean themselves.

       3
         Again, the Department’s responses to Martin’s grievance indicate that there were very
limited resources available due to the capacity vendors could provide in one trip and the time it
took to get these provisions in place while still ensuring security measures at the facility.

       4
         The Department’s responses to grievances also stated that the portable toilets were
cleaned twice daily during the water outage. Moreover, inmates were instructed to notify staff if
they needed to use a portable toilet during the nighttime hours.



                                               2
             At approximately 3:45 p.m. on March 10, 2015, Martin expressed his
need to use the toilet, and Sgt. Maloney told him, “You will go, when we say you
can go. Now take it in, or I’ll write you up for loitering.” (Complaint ¶ 42.) At
approximately 7:35 a.m. on March 11, 2015, another sergeant refused Martin’s
request to use the toilet. At some point on March 11, 2015, Martin obtained a clear
plastic bag, brought it back to his cell and defecated inside the bag. Throughout
the three-day water shutoff, Martin had to urinate in Styrofoam cups, a coffee bag,
a potato chip bag and eventually in the sink because he could not leave his cell to
use a functioning toilet when he needed to. This caused a stench in Martin’s cell.
The water was restored to SCI-Albion by 11:15 a.m. on March 12, 2015.


             Martin filed an official inmate grievance regarding the non-
functioning toilets and lack of running water in his cell, as well as the alleged
unsanitary conditions during the water outage. Martin’s grievance was denied, and
he appealed it to final review.


             Martin claimed in his complaint that the Defendants’ conduct was
negligent because they breached their duty of care to him. Martin also alleged that
their actions subjected him to cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution because he was forced to live
in a cell for three days without a functioning toilet or running water, thus depriving
him of basic needs. Martin claimed he “has not been able to function properly”
(Complaint ¶ 72) since the incident, and having to hold his bowels for extreme
periods of time caused him physical discomfort, abdominal pain, severe headaches,




                                          3
distress and embarrassment. Martin sought compensatory and punitive damages as
well as costs.


               Defendants filed preliminary objections arguing that Martin’s
negligence claim was barred by sovereign immunity because the negligent acts did
not fall within an exception to this immunity.                Defendants also asserted that
Martin’s Eighth Amendment claim failed as a matter of law because the facts did
not meet either the subjective or objective prongs of the cruel and unusual
punishment standard.           Finally, Defendants asserted that Martin’s Eighth
Amendment claim failed for lack of personal involvement of any of the named
Defendants. Martin filed preliminary objections to the Defendants’ preliminary
objections.


               Following oral argument, the trial court sustained the Defendants’
preliminary objections and dismissed Martin’s complaint, with prejudice. This
appeal followed.5


                                               II.
                                                A.
               Martin first argues that the trial court erred in applying the incorrect
standard of review because there was a genuine issue of material fact and the
Defendants’ preliminary objections should not have been decided without a jury

       5
         Our review of a trial court order sustaining preliminary objections is limited to
determining whether the trial court abused its discretion or erred as a matter of law. Bussinger v.
Dyne, 76 A.3d 137, 140 n.6 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 817 (Pa. 2014).




                                                4
first determining if Martin suffered injuries. There can be no material facts at issue
when ruling on preliminary objections because all of the facts in a complaint are
accepted as true. As the trial court pointed out, a “court will sustain a preliminary
objection if, after accepting all well-pleaded facts as true and accepting all
reasonable inferences that follow from those facts, the law will not allow recovery.
. . . Only in circumstances that are free from doubt may preliminary objections be
sustained.” Humphrey v. Department of Corrections, 939 A.2d 987, 990 n.4 (Pa.
Cmwlth. 2007), aff’d, 955 A.2d 348 (Pa. 2008) (citations omitted).


                                              B.
              Martin also argues that the trial court erred in finding that the
Defendants were entitled to sovereign immunity because the Commonwealth is not
a party and the Defendants acted outside the scope of their employment.6 It is well
established that “the Commonwealth, and its officials and employees acting within
the scope of their duties, shall . . . enjoy sovereign immunity and official immunity
and remain immune from suit except as the General Assembly shall specifically
waive the immunity.” 1 Pa. C.S. § 2310. The fact that the Commonwealth itself is
not named as a party is irrelevant as sovereign immunity has also been granted to
Commonwealth employees. A “Commonwealth party” has been defined as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act
within the scope of his office or employment.” 42 Pa. C.S. § 8501.



       6
          Martin on appeal does not contend that if the Defendants are covered by sovereign
immunity that any of the alleged conduct falls within one of the nine exceptions to immunity set
forth in 42 Pa. C.S. § 8522.




                                               5
               As this Court has observed:

               the proper test to determine if a Commonwealth
               employee is protected from liability pursuant to 1 Pa.
               C.S. § 2310 and 42 Pa. C.S. § 8522 is to consider
               whether the Commonwealth employee was acting within
               the scope of his or her employment; whether the alleged
               act which causes injury was negligent and damages
               would be recoverable but for the availability of the
               immunity defense; and whether the act fits within one of
               the nine exceptions to sovereign immunity.


LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992) (citing Yakowicz v.
McDermott, 548 A.2d 1330 (Pa. Cmwlth. 1988), appeal denied, 565 A.2d 1168
(Pa. 1989)).


               Here, the facts as pled demonstrate that the Defendants were acting
within the scope of their employment because the actions Martin complains of
were of the kind and nature the Defendants were employed to perform at SCI-
Albion, the allegations occurred substantially within authorized time and space
limits, and were actuated at least in part by a purpose to serve the Department. See
Schell v. Guth, 88 A.3d 1053, 1067 (Pa. Cmwlth. 2014) (citing Sanchez v.
Montanez, 645 A.2d 383 (Pa. Cmwlth. 1994)).


               Martin also claims that the Defendants are not entitled to sovereign
immunity because their actions amount to willful misconduct. In contrast to the
protection afforded Commonwealth employees, local agency employees may still
be held liable for willful misconduct even if they acted within the scope of their
duties. See 42 Pa. C.S. § 8545.          However, no such provision exists for


                                             6
Commonwealth employees, and immunity still applies to those employees even if
the conduct that caused the injury was willful. See Kull v. Guisse, 81 A.3d 148,
157 (Pa. Cmwlth. 2013); Holt v. Northwest Pennsylvania Training Partnership
Consortium, Inc., 694 A.2d 1134, 1140 (Pa. Cmwlth. 1997); LaFrankie.


                For these reasons, the trial court did not err in determining that the
Defendants were entitled to the defense of sovereign immunity.


                                                C.
                Martin also contends that the trial court erred in deciding that he did
not make out an Eighth Amendment claim because he failed to establish any
personal involvement of the Defendants or that the conditions he was subject to
constituted cruel and unusual punishment. Martin fails to make out a claim on
either basis.


                                                1.
                To be liable for constitutional claims under 42 U.S.C. § 1983,7 a
government defendant must have personal involvement in the alleged wrongdoing.


       7
          Section 1983 is not a source of substantive rights, but a means to redress violations of
federal law by state actors. Gonzaga University v. Doe, 536 U.S. 273, 284-85 (2002). Section
1983 provides, in pertinent part:

                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
(Footnote continued on next page…)

                                                 7
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citing Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988)).                 Moreover, allegations of personal
involvement must be made with particularity, Rode, 845 F.2d at 1207, and liability
cannot be predicated solely on the theory of respondeat superior. See id.; Rizzo v.
Goode, 423 U.S. 362 (1976).


              The only allegation against Sgt. Maloney was that he refused Martin’s
request to use the toilet facilities and told him to go back to his cell. Martin’s
allegation against Defendants Kosinski, Varner and Superintendent Giroux is that
they responded to his grievance in a way he did not like. These allegations do not
demonstrate that the Defendants were personally involved in the damage to the
water tower that caused the three-day water outage at SCI-Albion or in the
resulting unsanitary prison conditions alleged in the complaint.8                   Moreover,
prisoners have no constitutionally-protected right to a grievance procedure and
participation in the after-the-fact review of a grievance or appeal is not enough to
establish personal involvement for purposes of § 1983. See Brooks v. Beard, 167
Fed. App’x 923, 925 (3d Cir. 2006); Rode, 845 F.2d at 1208; Atwell v. Lavan, 557


(continued…)

              injured in an action at law, suit in equity, or other proper
              proceeding for redress. . . .

42 U.S.C. § 1983.

       8
          While Martin alleges that Superintendent Giroux denied an agency purchasing request
to fix a cracked valve in the water tower, he does not allege that this failure caused the water
emergency at SCI-Albion over a year later. In addition, Martin does not allege that
Superintendent Giroux ordered that the water be shut off, was personally responsible for the
conditions in his cell or denied him access to running water or a functioning toilet.



                                               8
F. Supp. 2d 532, 547 (M.D. Pa. 2008). Because Martin failed to allege facts that
would establish any of the Defendants’ actions caused a purported violation of his
Eighth Amendment rights, the trial court properly found that he failed to make out
a cause of action on that basis against any of the Defendants.


                                         2.
             Martin also failed to state an Eighth Amendment claim for the
conditions of his confinement during the water outage.           While the Eighth
Amendment does not mandate comfortable prisons, Tindell v. Department of
Correction, 87 A.3d 1029, 1041 (Pa. Cmwlth. 2014) (citing Farmer v. Brennan,
511 U.S. 825 (1994)), it does impose a duty on prison officials to provide humane
conditions of confinement. As such, “[p]rison officials must ensure that inmates
are not deprived of the ‘minimal civilized measure of life’s necessities,’ including
food, clothing, shelter, sanitation, medical care and personal safety.” Tindell, 87
A.3d at 1041 (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)).
Nevertheless, extreme deprivations are required to establish a conditions of
confinement claim, Hudson v. McMillian, 503 U.S. 1, 8-9 (1992), and “prison
conditions may be ‘restrictive and even harsh’ without violating the Eighth
Amendment.” Neely v. Department of Corrections, 838 A.2d 16, 20 (Pa. Cmwlth.
2003) (quoting Rhodes, 452 U.S. at 347). To establish an Eighth Amendment
conditions of confinement claim, the alleged deprivation must be, objectively,
sufficiently serious, and the prison official must have a sufficiently culpable state
of mind, i.e., one of “deliberate indifference” to inmate health or safety. See
Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001) (quoting Farmer, 511
U.S. at 834). As the United States Supreme Court has established:



                                         9
             a prison official cannot be found liable under the Eighth
             Amendment for denying an inmate humane conditions of
             confinement 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.


             Here, the Defendants were aware of the lack of water at SCI-Albion
and acted reasonably by providing Martin and other prisoners at the facility with
access to portable toilets and drinking water. Martin admits that these amenities
were provided during the water outage, and the supporting documentation attached
to his complaint demonstrates that he was not deprived of the minimal civilized
measure of life’s necessities. This fact also demonstrates the Defendants were not
deliberately indifferent as they did not disregard an excessive risk to Martin’s
health and safety. While the lack of water and toilet facilites were certainly
unpleasant, they did not rise to the standard to show cruel and unusual punishment
necessary to make out an Eighth Amendment claim. Because Martin failed to
establish both the objective and subjective prongs of an Eighth Amendment claim,
the trial court did not err in dismissing that claim.


             Accordingly, for the foregoing reasons, the order of the trial court is
affirmed.



                                                ______________________________
                                                DAN PELLEGRINI, Senior Judge


                                           10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sidney Martin,                        :
                    Appellant         :
                                      :
              v.                      : No. 1934 C.D. 2016
                                      :
Nancy Giroux, Sgt. Maloney,           :
Melanie Kosinski, and Dorina Varner, :
sued in their individual and official :
capacities                            :




                                  ORDER


            AND NOW, this 26th day of May, 2017, the order of the Court of
Common Pleas of Erie County in the above-captioned matter is hereby affirmed.



                                           ______________________________
                                           DAN PELLEGRINI, Senior Judge
