                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2005

Jackson v. Gordon
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2005




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                                               NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                      NO. 04-2005
                    ________________

                 RYSHEEN A. JACKSON,

                              Appellant

                                v.

        MARGARET GORDON, Chief State Dietitian
        at Department of Corrections; TERESA LAW,
         Health Care Administrator of the Correctional
    Institution at Camp Hill; MARTIN LASKEY, Medical
   Director at the SCI Camp Hill; COLLEEN NEWFIELD,
          Chief Physician Assistant at SCI Camp Hill;
 WILLIAM HARRIS, Food Service Manager at SCI Camp Hill;
    THOMAS JAMES, Chief Grievance Coordinator at the
 Department of Corrections; SHARON BURKS, Acting Chief
   Grievance Coordinator of the Department of Corrections;
 DONALD KELCHNER, Superintendent of SCI at Camp Hill;
   MS. MAGEE, Food Service Manager at SCI Camp Hill

         ____________________________________

       On Appeal From the United States District Court
           For the Middle District of Pennsylvania
                   (D.C. Civ. No. 03-01725)
         District Judge: Honorable James M. Munley
       _______________________________________


         Submitted Under Third Circuit LAR 34.1(a)
                     August 12, 2005

Before: RENDELL, AMBRO AND FUENTES, CIRCUIT JUDGES

                   (Filed August 29, 2005)
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Appellant, Rysheen A. Jackson, an inmate at SCI-Camp Hill, sued medical and

other corrections officials. In his Complaint and an amendment construed by the District

Court as a Supplemental Complaint, Jackson claimed that his First Amendment rights

were violated when defendants Gordon, Kelchner, Law, Lasky, and Harris conspired to

and did suspend his therapeutic diet in retaliation for grievances he filed, and defendants

Burks and James dismissed his grievance after being put on notice of a conspiracy among

Gordon, Kelchner, Law, Lasky, and Harris to retaliate against him because he had filed

grievances. He also claimed that his Fourteenth Amendment rights were violated when

defendants Gordon, Law, Lasky, Newfield, and Harris denied him a therapeutic diet;

Kelchner failed to act to provide him with a therapeutic diet; and Burks and James

dismissed his grievance after being put on notice of a conspiracy to retaliate against him

because he had filed grievances. Jackson contended that he suffered Eighth Amendment

violations because Gordon, Law, Lasky, Newfield, and Harris interfered with his

therapeutic diet and Kelchner failed to prevent their actions. Jackson additionally brought

state tort claims for medical malpractice and negligence against Gordon, Law, Lasky,

Newfield, and Kelchner.



                                             2
         The District Court granted a motion to dismiss or, in the alternative, for summary

judgment filed on behalf of Lasky and Newfield 1 , as well as the motion to dismiss filed

by Gordon, Law, Harris, James, Burks, Kelchner, and Magee.2 Because the District Court

had construed Jackson’s “Amended Complaint” as a Supplement to the Complaint,3 the

District Court denied a motion to dismiss the amended complaint filed by Gordon, Law,

Harris, James, Burks, Kelchner, and Magee. The District Court also denied Jackson’s

motions for a TRO and a preliminary injunction, for supplemental pleading, and for

appointment of counsel. Jackson appeals. He also moves for sanctions and moves to

strike Newfield and Lasky’s brief on the ground that he received the brief past the filing

deadline.

         Upon review of the record, we conclude that the District Court did not abuse its

discretion by denying Jackson’s motions for a TRO and preliminary injunction, his

motion for supplemental pleading, and his motion for appointment of counsel. Although

the District Court correctly analyzed most counts of the Complaint, the Court erred in


  1
    Jackson’s argument that he did not have notice that the District Court was going to
treat Lasky and Newfield’s motion as a motion for summary judgment is of no moment.
The motion was labeled as a motion, in the alternative, for summary judgment and
accompanied by many pages of exhibits. In addition, Jackson had an opportunity to
present evidence in opposition to the motion.
  2
      Jackson does not contest the dismissal of Eloise Magee. See Appellant’s Brief at 29.
  3
    Jackson contends that the District Court’s decision to construe his “Amended
Complaint” as a supplement to the Complaint was error, but we disagree. Had Jackson’s
“Amended Complaint” supplanted instead of supplemented his Complaint, he would have
lost all but his one paragraph claim (labeled ¶ 63) against Burks and James.

                                              3
dismissing an Eighth Amendment claim, and failed to consider Jackson’s First

Amendment retaliation claim. Jackson’s state law claims, dismissed pursuant to 28

U.S.C. § 1367(c), must be reinstated because some of his federal claims will be

reinstated. See Gruenke v. Seip, 225 F.3d 290, 308 (3d Cir. 2000). Therefore, the District

Court’s order will be affirmed in part and vacated in part.

A.       Eighth Amendment Claims

         For the reasons stated on pages 6-11 and 13-14 of the District Court’s

Memorandum, Lasky and Newfield’s motion for summary judgment was properly granted

on the Eighth Amendment claims of cruel and unusual punishment and deliberate

indifference to serious medical needs. Similarly, and for the reasons stated on page 14 of

the District Court’s Memorandum, the motion to dismiss the Eighth Amendment claim of

deliberate indifference to serious medical needs was properly granted in favor of Gordon,

Law, and Kelchner.4

         However, the District Court erred in dismissing the Eighth Amendment claim of

cruel and unusual punishment against Gordon, Law, Harris, and Kelchner for failure to

state a claim.5 If all reasonable inferences are taken in Jackson’s favor, he states an



     4
   As Jackson notes, he did not sue Harris or Magee for deliberate indifference in
violation of the Eighth Amendment. See Appellant’s Brief at 20.
     5
   It does not appear that Jackson ever brought a claim of cruel and unusual punishment
against Magee. Even if he did, in addition to generally agreeing to the dismissal of
Magee, he specifically does not contest the portion of the District Court’s order
dismissing that claim against her. See Appellant’s Brief at 21.

                                              4
Eighth Amendment claim against these defendants. Jackson alleged that he is severely

lactose intolerant and allergic to eggs, that he was given “inadequate meals,” that “in

order for [him] to eat food, he has to get food from other inmates via a ‘transportation

device,’ which is disgusting and unsanitary,” that “this denial of a therapeutic diet is

taking a serious toll on his health,” and that he suffers “constant hunger” from the “lack

of proper nutrition.” See Complaint at ¶¶ 14, 17, 33, 35, 51, 52. See also id. at ¶¶ 50, 53

(implying that Jackson does not receive a “proper or adequate” diet).

B.     Fourteenth Amendment Claims

       The District Court failed to consider whether Gordon, Law, Lasky, and Newfield

had a legitimate reason rationally related to state interests to deny Jackson his therapeutic

diet. The Equal Protection Clause of the Fourteenth Amendment commands that

similarly situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). An equal

protection claim can be brought by a “class of one,” a plaintiff alleging that he has been

“intentionally treated differently from others similarly situated and that there is no rational

basis for the difference in treatment.” See Willowbrook v. Olech, 528 U.S. 562, 564

(2000). If a distinction between persons does not implicate a suspect or quasi-suspect

class, state action will be upheld if it is rationally related to a legitimate state interest. See

Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000). The District

Court concluded that “the claim advanced by Plaintiff is that he, as an individual, not



                                                5
based upon membership in a particular class, was treated unfairly with respect to his

request for a special diet.” See District Court Memorandum at 17. The District Court

accurately characterizes Jackson’s allegations as to Kelchner. See Complaint at ¶ 62.

However, Jackson specifically alleged that Gordon, Law, Lasky, and Newfield denied

him a needed therapeutic diet because he was a vegetarian. See id. at ¶ 56. Although

vegetarians are not a suspect or quasi-suspect class, the District Court is still obligated to

consider whether the prison had a rational basis for denying Jackson’s diet because he is a

vegetarian.

       The District Court also did not evaluate Jackson’s Fourteenth Amendment due

process claim against Gordon, Law, Lasky, and Harris, the merits of which we do not

consider. Jackson alleges that the failure of these Defendants to provide him an adequate

therapeutic diet in compliance with prison regulations and state law “constituted a denial

of the plaintiffs’ [sic] liberty interest in violation of the Fourteenth Amendment to the

United States Constitution.” See Complaint at ¶ 60. However, the District Court did

consider and correctly rule on Jackson’s Fourteenth Amendment due process claim

against Burks and James. Jackson contended that Burks violated Jackson’s right to due

process of law when she incorrectly dismissed Jackson’s grievance as untimely even

though Jackson had complied with prison regulations and state law, and that James

violated Jackson’s right to due process when he did not correct her error. See Complaint

at ¶¶ 40-43, 63; “Amended Complaint” at ¶ 63. As the District Court stated, prison



                                               6
inmates do not have a constitutionally protected right to a grievance process. See

McGuire v. Forr, No. 94-6884, c, *2 (E.D. Pa. Mar. 21, 1996), aff’d 101 F.3d 691 (3d

Cir. 1996). Therefore, Jackson failed to state a due process claim against Burks and

James.6

       C.     Conspiracy Claims

       To the extent that Jackson alleged a conspiracy (and he maintains on appeal that he

did so), the District Court correctly dismissed his claims for failure to state a cause of

action. Civil rights conspiracy claims that are based only on suspicion and speculation

instead of fact do not state a claim. See Young v. Kahn, 926 F.2d 1396, 1405 (3d Cir.

  6
      Jackson asserts that he does not raise a First Amendment access to the courts claim
based on the rejection of his grievance. See Appellant’s Reply Brief at 8. He worries,
nonetheless, that prison officials rejected his grievance to preserve the defense of failure
to exhaust administrative remedies. If Burks and James interfered with Jackson’s ability
to file administrative grievances, Jackson may still have satisfied the exhaustion
requirement, provided that he took advantage of all administrative remedies available to
him. See Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002); Taylor v. Barnett, 105 F.
Supp. 2d 483, 486 (E.D. Va. 2000). On the present record, the District Court could not
grant summary judgment in favor of Lasky and Newfield based on failure to exhaust, and
we cannot use the affirmative defense as an alternative ground to affirm the judgment in
favor of those defendants. Lasky and Newfield argued that Jackson failed to exhaust his
administrative remedies because his final appeal of grievance no. 48852 was dismissed as
untimely. They submitted a letter from Burks rejecting the final appeal as untimely. See
Lasky and Newfield’s Motion to Dismiss, or in the alternative, for Summary Judgment,
Exhibit D. However, they also submitted a letter from another person in Burks’ office
that acknowledges an earlier receipt of Jackson’s final appeal without attachments, and
that grants Jackson an extension of time “for filing [an] appeal[] to final review.” See id.
Jackson filed what appears to be a complete packet of attachments within the additional
time period he was afforded. See id. See also id. at Exhibit C, p. 9 (DC-ADM
804(D)(1)(h)). Although the parties and the District Court may wish to revisit this issue
on remand, the evidence presently is insufficient to provide an alternative basis for
affirmance by this Court.

                                              7
1991). Furthermore, actionable conspiracy claims pursuant to 42 U.S.C. § 1985(3) must

include an allegation that the conspiracy was motivated by race or class-based invidious

discrimination. See Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971). Jackson relies

solely on subjective suspicions and unsupported speculation. See, e.g., Complaint at ¶¶

47, 55-58. In addition, as Jackson concedes, see Appellant’s Brief at 26, he did not allege

race- or class-based animus sufficient to state a claim under 42 U.S.C. § 1985(3).

       D.     First Amendment Claim

       Jackson asserted that Gordon, Kelchner, Law, Lasky, Newfield, and Harris

suspended his therapeutic diet in retaliation for grievances he filed, in violation of his

rights under the First Amendment. See Complaint at ¶¶ 50-51, 55. The District Court

erred in failing to consider this claim.

                                           *   *   *

       In conclusion, for the reasons stated above, the District Court’s order will be

affirmed in part and vacated in part. The order will be vacated to the extent that it

dismissed the First Amendment retaliation claim against Gordon, Kelchner, Law, Lasky,

Newfield, and Harris, the Fourteenth Amendment due process claim against Gordon,

Law, Lasky, and Harris, the Fourteenth Amendment equal protection claim against

Gordon, Law, Lasky, and Newfield, the Eighth Amendment cruel and unusual

punishment claim against Gordon, Law, Harris, and Kelchner, and Jackson’s state law

claims. In all other respects, the District Court’s order will be affirmed. Jackson’s



                                               8
motion for sanctions and his motion to strike Newfield and Lasky’s brief are denied.




                                            9
