2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-28-2012

Daniel Wesley v.;David Varand

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3010

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BLD-034 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3010

___________

DANIEL WESLEY,

Appellant

v.

DAVID A. VARAND, Superintendent of SCI Coal Township;

ROBERT MCMILLIAN, Deputy Superintendent of Facility Management;

RHONDA M. ELLETT, Deputy Superintendent of Centralized Services;

ANTOINETTE M. SHEDLESKI, Food Service Manager; 

JOHN DOE, Food Service Steward;

KATHY MCCARTHY, Health Care Administrator; 

EDWARD A. SCHETOMA, Dental Medical Doctor;

KANDIS K. DASCANIS, Superintendent’s Assistant; 

FACILITY GRIEVANCE COORDINATOR, 

sued in their official and individual capacity

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-12-cv-01131)

District Judge: Honorable John E. Jones III

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

November 8, 2012

Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: November 28, 2012)

_________

OPINION

_________
2

PER CURIAM

Daniel Wesley, a prisoner proceeding pro se and in forma pauperis, appeals the 

dismissal of his civil rights complaint by the United States District Court for the Middle 

District of Pennsylvania for failure to state a claim upon which relief can be granted, as 

well as the subsequent denial of his motion for reconsideration. We will summarily 

affirm.

I.

Wesley brought a civil rights action, 42 U.S.C. § 1983, against numerous 

correctional officials, including several superintendents and food and health 

administrators at the State Correctional Institution Coal Township (“SCI Coal 

Township”), where Wesley is presently incarcerated. Wesley alleged that the Defendants 

were deliberately indifferent to his safety and placed him at risk of serious harm by 

carrying out a conspiracy to serve a discharged bullet in his food during dinner on May 

31, 2011. He further alleged that biting on the bullet caused chunks of his teeth to fall 

out, and claimed that a dental professional in the prison repaired the damage to his teeth 

resulting from this incident. Wesley sought compensatory and punitive damages, along 

with injunctive relief in the form of a special diet for the duration of his confinement.

The District Court dismissed Wesley’s complaint for “fail[ure] to state a claim on 

which relief may be granted” in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii). Wesley 

timely filed a notice of appeal. The following day he filed a timely motion for 
3

reconsideration with a supporting brief. The District Court denied Wesley’s motion for 

reconsideration. Wesley then timely filed an amended notice of appeal. 

Wesley moved to proceed in forma pauperis. The Clerk granted the request. 

Accordingly, we now consider the possibilities of dismissing Wesley’s appeal pursuant to 

28 U.S.C. § 1915(e)(2) or taking summary action. 3d Cir. LAR 27.4; I.O.P. 10.6.1

 

Under our rule, we may take summary action on an appeal that presents “no substantial 

question.” Id.

II.

We have jurisdiction over both the appeal of the order dismissing the complaint 

and the order denying Wesley’s motion for reconsideration pursuant to 28 U.S.C. § 1291. 

Our review of a district court’s sua sponte dismissal for failure to state a claim is plenary. 

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We must accept as true all of the 

factual allegations contained in the complaint and draw reasonable inferences in favor of 

the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). We review a denial of 

the motion for reconsideration for abuse of discretion. Lazaridis v. Wehmer, 591 F.3d 

666, 669 (3d Cir. 2010). A motion for reconsideration is a limited vehicle used “to 

correct manifest errors of law or fact or to present newly discovered evidence.” 

 1 Wesley was afforded twenty-one days to submit argument in support of his appeal. He 

has not responded.

Max’s 
4

Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros

III.

, 176 F.3d 669, 677 (3d Cir. 1999) 

(citation omitted).

We will summarily affirm the order of the District Court dismissing Wesley’s 

complaint for failure to state a claim upon which relief may be granted. To survive 

dismissal, a complaint must contain sufficient factual matter, accepted as true, to “state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Notably, in order to state 

a viable claim, a plaintiff must allege personal participation by the defendants in the 

alleged wrongdoing. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). A 

corollary to this is that a supervisor may not be held vicariously liable for the wrongs of 

his subordinate. To state a viable claim against a supervisor a plaintiff must make 

“allegations of personal direction or of actual knowledge and acquiescence” in the 

wrongdoing. See Evancho v. Fisher, 423 F.3d 347, 353-54 (3d Cir. 2005) (quoting Rode, 

845 F.2d at 1207).

2

 2 As the District Court correctly pointed out, most of the Defendants merely reviewed 

Wesley’s grievances within the prison system, and were not actually involved in the 

incident. To the extent, if any, that Wesley intended to make a separate claim based on 

the handling of his grievance, we are not persuaded. See Flick v. Alba, 932 F.2d 728, 

729 (8th Cir. 1991) (per curiam) (holding that inmates do not have a constitutionally 

protected right to the prison grievance process); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 

1994) (holding that “the Constitution creates no entitlement to grievance procedures or 

access to any such procedure voluntarily established by a state”). We observe that 

Wesley’s grievance was in fact addressed, albeit not to his liking.
5

Wesley alleged in his complaint that there was an overarching conspiracy among 

the Defendants against him. He stated that the Defendants “carri[ied] out a conspiracy to 

place a discharged bullet in [his] food” and that “food service personnel[] watched [him] 

eat his food with a discharged bullet in it without interfe[]ring to correct the matter.” 

Comp. 3-4, June 15, 2012, ECF No. 1. However, he did not point to any facts that 

indicate the named Defendants were ever together, or were ever allied against him in 

particular. Wesley simply does not paint a plausible picture of a wide-ranging conspiracy 

by the named Defendants. See Iqbal

After setting aside the allegations of a conspiracy that is implausible on its face, 

we are left with the one-time adulteration of Wesley’s food, which he believes constitutes 

“cruel and unusual punishment.” Comp. 3, 8, ECF No. 1. He is mistaken. “It is 

obduracy and wantonness, not inadvertence or error in good faith, that characterize the 

conduct prohibited by the Cruel and Unusual Punishments Clause.” 

, 556 U.S. at 678.

Whitley v. Albers, 

475 U.S. 312, 319 (1986). “[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.” Farmer v. 

Brennan, 511 U.S. 825, 837 (1994). “[A]n accident or inadvertence or mere negligence 

does not [in itself] trigger the Eighth Amendment.” Grabowski v. Jackson Cnty. Pub. 

Defenders Office, 47 F.3d 1386, 1395 n.12 (5th Cir. 1995) (citing Estelle v. Gamble, 429 
6

U.S. 97, 105–06 (1976)). Wesley’s complaint did not plausibly allege anything more 

than simple negligence, if that.3

Wesley claimed that there was improper training and supervision of the food 

service personnel, but he did not point to any facts suggesting the Defendants were aware 

of and disregarded an excessive or substantial risk of harm to him. Perhaps Wesley was 

suggesting that the supervisors he named should be held liable for the unusual one-time 

event he described. However, as we noted above “liability cannot be predicated solely on 

the operation of respondeat superior,” Rode, 845 F.2d at 1207 (citations omitted) and a 

constitutional violation cannot be predicated on negligence. Whitley v. Albers, 475 U.S. 

312, 319 (1986). Wesley’s factual allegations simply do not rise to the standard required 

to sustain an Eighth Amendment claim. See Wilson v. Seiter

Lastly, we note that Wesley included the prison dentist, Edward A. Schetoma in 

his list of defendants. It is difficult to understand which claims Wesley attributes to 

Schetoma specifically. Wesley did not allege that Dr. Schetoma exhibited deliberate 

indifference in treating his dental problem, whatever its nature or source. 

, 501 U.S. 294, 297 (1991). 

See White v. 

Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990) (quoting Estelle

 3 David Varano, the superintendent of SCI Coal Township, explained the incident 

complained of was an unfortunate and isolated event, likely caused by a mistake during 

the canning process and not due to negligence on the part of prison food management. 

Comp. Ex. 24, ECF No. 1.

, 429 U.S. at 103, 106). 

It appears Wesley’s claim is simply that Dr. Schetoma could not verify that his dental 
7

problem was caused by a bullet. See Comp. 5, ECF No. 1; Br. Sup. Mot. Rec. ¶ 9, ECF 

No. 17. But that does not state a viable claim. See Whitley, 475 U.S. at 319. Moreover, 

we reiterate that Wesley did not “plead[] factual content that allows the court to draw a 

reasonable inference that” Schetoma participated in a conspiracy against him. See Iqbal

In light of the above, we conclude that the District Court properly dismissed the 

complaint in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii). The complaint simply did

not allege “enough facts to state a claim to relief that is plausible on its face.” 

, 

556 U.S. at 678.

Twombly, 

550 U.S. at 570. We further agree with the District Court that granting Wesley leave to 

amend was not necessary under the circumstances. See Grayson v. Mayview State 

Hospital

IV.

, 293 F.3d 103, 108 (3d Cir. 2002).

Finally, we perceive no error in the District Court order denying Wesley’s motion 

for reconsideration. The District Court may amend a judgment if the moving party shows 

that there was either an intervening change in the law; newly discovered evidence is 

available for consideration; or a clear error of law must be corrected to prevent manifest 

injustice. Max’s Seafood Café, 176 F.3d 669, 677 (3d Cir. 1999). Wesley did not 

identify any of these factors in his motion. Thus, the District Court did not abuse its 

discretion in denying his motion for reconsideration.
8

V.

For the foregoing reasons, we will summarily affirm the judgment of the District 

Court. Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d 

Cir. L.A.R. 27.4; I.O.P. 10.6.