HOLMES v. WHITESIDE et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JUAN R. SANCHEZ ON 7/27/11. 7/28/11 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WHITESIDE, et al.
WHITESIDE, et al.
Juan R. Sánchez, J.
July 26, 2011
In these consolidated civil actions, pro se Plaintiff James Holmes brings claims under 42
U.S.C. § 1983 for excessive force and failure to respond to grievances against Defendants
Correctional Officer Whiteside, Captain Wilson, Deputy Warden of Security Reed, Deputy Warden
of Treatment Phillips, Warden McFadden, and Executive Director Healy, arising out of an incident
that occurred while Holmes was a pretrial detainee at the Chester County Prison.1 Defendants ask
this Court to dismiss the actions for failure to state a claim upon which relief can be granted pursuant
to Federal Rule of Civil Procedure 12(b)(6).2 For the reasons set forth below, this Court will grant
Because both of the above-captioned actions challenge the legality of the same acts, this Court
consolidated the actions by order of July 26, 2011. Healy is only named as a defendant in Civil
Action No. 11-988.
Defendants filed a motion to dismiss Civil Action No. 11-988 in March 2011 and a motion to
dismiss Civil Action No. 11-748 in June 2011. Holmes filed an opposition to the former motion but
has not responded to the latter.
Defendants’ motions in their entirety.
On December 20, 2010, Holmes was in pre-trial custody at the Chester County Prison (the
Prison). While conducting a routine pat-down search of Holmes following his visit to the Prison law
library, Whiteside pushed Holmes “very hard” in the back, causing Holmes’s lower back and/or left
side to jerk. Compl. 748 ¶ II.D; Compl. 988 ¶ II.D. When Holmes asked why Whiteside pushed
him, Whiteside said Holmes needed to “move up.” Compl. 748 ¶ II.D; Compl. 988 ¶ II.D. As
Whiteside resumed the pat down, Holmes spread his arms at shoulder height. Whiteside then
“threw” Holmes’s arms up “in a forceful manner,” again causing Holmes to jerk. Compl. 988 ¶
II.D.; Compl. 748 ¶ II.D. Holmes asked Whiteside why he was putting his hands on Holmes, and
Whiteside said Holmes needed to move his arms up. Holmes again asked why Whiteside was
putting his hands on Holmes without first telling him what to do. Whiteside responded by saying
“so what” and asking Holmes what he was going to do about it. Compl. 988 ¶ II.D. Holmes told
Whiteside he was going to write him up.
Following this incident, Holmes sought medical attention and was prescribed Motrin and
“inflammatory medicine” for his symptoms, including pain in his sciatic nerve. Compl. 988 ¶ III.
He also saw a psychologist or psychiatrist for his emotional distress. Holmes wrote grievance letters
regarding the incident to the remaining Defendants, and told Wilson and McFadden that Whiteside
has a problem with African Americans because Whiteside called an African American co-worker
When considering a motion to dismiss pursuant to Rule 12(b)(6), this Court accepts as true the
well-pleaded factual allegations of the complaint. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
The following facts are drawn from Holmes’s Complaints in both Civil Action No. 11-748
(hereinafter Compl. 748) and Civil Action No. 11-988 (hereinafter Compl. 988).
a “spade” and has had several grievances filed against him for racially motivated actions. Compl.
748 ¶ II.D. Only Wilson responded to Holmes’s letter, describing the grievance as “frivolous” and
declining to interview either of the witnesses to the incident identified by Holmes.4 Compl. 988 ¶
In February 2011, Holmes filed applications to proceed in forma pauperis in both of the
above-captioned actions. Both motions were granted, and Holmes’s Complaints were thereafter
filed. In both actions, Holmes alleges Whiteside used excessive force in violation of the Eighth
Amendment during the pat-down search. As to the remaining Defendants, Holmes claims they
improperly failed to respond to his grievances or, in Wilson’s case, inadequately responded to
Holmes’s grievance letter. Holmes seeks damages against all Defendants and court-ordered changes
to the Prison’s grievance procedures.
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating a motion to dismiss, the court “must accept all of the complaint’s well-pleaded facts as
true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). The court must then determine whether the facts alleged in the complaint are
sufficient to “nudge [the plaintiff’s] claims across the line from conceivable to plausible.” Phillips
Holmes also alleges he reported the incident to the United States Department of Justice and the
Chester County District Attorney’s Office, and that Chester County Detective Matt Gordon
subsequently interviewed him and his witnesses about the alleged assault. Holmes is “still waiting
for the end result” of Gordon’s investigation. Compl. 988 ¶ II.D.
v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). Where,
as here, the plaintiff is proceeding pro se, “the court has an obligation to construe the complaint
liberally.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
Although Holmes mentions the Eighth Amendment in both of his Complaints, because he
asserts he was a pretrial detainee at the time of the incident, Pl.’s Resp. to Def.’s Mot. to Dismiss
¶ 1, his excessive force claim arises under the Fourteenth Amendment. Fuentes v. Wagner, 206 F.3d
335, 346 (3d Cir. 2000). However, in evaluating excessive force claims challenging “the amount
of force used on a pretrial detainee for the purpose of institutional security,” the same standard
governing Eighth Amendment claims applies. Id. at 347 (citation omitted); see also Smith v. Addy,
343 F. App’x 806, 808-09 (3d Cir. 2009) (evaluating a pretrial detainee’s claim he was subjected to
excessive force while being transported to his preliminary hearing under the Eighth Amendment
standard). Pursuant to this standard, a court must determine “whether force was applied in a good
faith effort to maintain or restore discipline, or maliciously and sadisitically for the very purpose of
causing harm.” Fuentes, 206 F.3d at 347 (citation omitted). The factors relevant to whether force
used was excessive include
(1) the need for the application of force; (2) the relationship between the need and the
amount of force that was used; (3) the extent of the injury inflicted; (4) the extent of
the threat to the safety of staff and inmates, as reasonably perceived by responsible
officials on the basis of the facts known to them; and (5) any efforts made to temper
the severity of a forceful response.
Washam v. Klopotoski, 403 F. App’x 636, 640 (3d Cir. 2010). Although the focus of the court’s
inquiry is on the nature of the force used rather than the degree of the resulting injury, “[a]n inmate
who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state
an excessive force claim.” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010); see also Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992) (holding the Eighth Amendment does not prohibit “de minimis
uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of
mankind” (internal quotation marks and citation omitted)).
Here, Holmes alleges Whiteside was unnecessarily rough with him during the pat-down
search because Whiteside used force to move Holmes into position for the search without first telling
Holmes where to stand or how high to raise his arms. Holmes alleges Whiteside’s forceful push
injured his back and states when Whiteside forcefully threw Holmes’s arms up, it caused Holmes
pain in his back and shoulder. Even assuming Whiteside could have secured Holmes’s compliance
with the search without using any force, the force Holmes alleges was not significantly
disproportionate to the need to conduct the search, and Holmes’s injuries were not serious.
Moreover, although Holmes alleges Whiteside “has a problem with African Americans,” Compl. 748
¶ II.D, he does not allege any facts from which it can plausibly be inferred that Whiteside’s conduct
during the pat-down search was racially motivated. Even if the pat-down search was overly rigorous,
the de minimis use of force alleged “is not of a sort ‘repugnant to the conscience of mankind,’”
Hudson, 503 U.S. at 10 (citation omitted), and is therefore insufficient to state an excessive force
claim. See Washam, 403 F. App’x at 640 (holding that knocking books out of a prisoner’s hands,
slamming him to the ground, and handcuffing him, even absent a need to apply force, did not amount
to excessive force where there was no evidence the defendant acted with religious or racial animus);
Hughes v. Smith, 237 F. App’x 756, 758-59 (3d Cir. 2007) (holding a single pat-down frisk in which
a corrections officer allegedly touched the plaintiff’s genitals did not violate the Eighth Amendment
where the officer was alleged to have made sexual comments in the past but not during the frisk at
issue); Headley v. Fisher, No. 06-6331, 2008 WL 1990771, at *3, *19 (S.D.N.Y. May 7, 2008)
(holding allegations that corrections officers pushed a prisoner during searches and roughly searched
him did not give rise to an Eighth Amendment excessive force claim); Rasheed v. Cox, No. 06-5017,
2007 WL 1314878, at *2 (E.D. Pa. May 3, 2007) (holding a prisoner’s allegations that a guard
touched his penis, grabbed him by the neck, and a placed him in a bear hug during a pat-down search
fell “well short” of stating an Eighth Amendment excessive force claim where the force was not
alleged to have caused the prisoner any pain or injury); Anderson v. Sullivan, 702 F. Supp. 424, 427
(S.D.N.Y. 1988) (granting summary judgment for prison guards who pushed a prisoner into a bar
and pulled his hands behind his back to handcuff him, holding that even if the prisoner did not refuse
to be placed in handcuffs, the amount of force used “was not significantly disproportional to the goal
of handcuffing [the prisoner]”).5
Holmes has also failed to state a claim against the remaining Defendants insofar as he seeks
to hold them liable for failing to respond, or responding inadequately, to his grievances. “[T]he
failure of a prison official to act favorably on an inmate’s grievance is not itself a constitutional
violation.” Rauso v. Vaughn, No. 96-6977, 2000 WL 873285, at *16 (E.D. Pa. June 26, 2000); see
also Stringer v. Bureau of Prisons, 145 F. App’x 751, 753 (3d Cir. 2005) (holding the “failure to
process or respond to [a prisoner’s] grievances did not violate his rights to due process and is not
actionable”); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991).
Because Holmes has not adequately alleged a violation of his constitutional rights, the
The remaining Defendants cannot be held liable for excessive force because Holmes does not allege
any of them were personally involved in Whiteside’s use of force against him. A defendant in a
§ 1983 action “must have personal involvement in the alleged wrongs; liability cannot be predicated
solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988). Personal involvement includes “personal direction or . . . actual knowledge and
acquiescence.” Id. Holmes does not allege any such involvement on the part of these Defendants.
Defendants’ motions to dismiss will be granted. When dismissing a pro se civil rights complaint,
a district court must grant leave to amend, “even if the plaintiff does not request it, unless
amendment would be futile or leave to amend is not warranted for some other reason.” Tate v.
Morris Cnty. Prosecutors Office, 284 F. App’x 877, 879 (3d Cir. 2008). As set forth above, the use
of force alleged by Holmes does not rise to the level of a constitutional violation, and amending his
Complaints would not cure this defect. Because amendment would be futile, Holmes’s actions will
be dismissed with prejudice. See id. at 880 (denying pro se prisoner leave to amend when his claims
failed as a matter of law).
An appropriate order follows.
BY THE COURT:
/s/ Juan R. Sánchez
Juan R. Sánchez, J.
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