SHAW v. NUTTER et al

Filing 17

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 3/6/17. 3/7/16 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________________
:
OMAR TYRICK SHAW,
:
:
Plaintiff,
:
CIVIL ACTION
:
v.
:
:
MICHAEL NUTTER
:
No. 15-1209
LOUIS GIORLA
:
MICHELLE FARRELL,
:
:
Defendants.
:
:

Mitchell S. Goldberg, J.

March 6, 2017
MEMORANDUM OPINION

Pro se Plaintiff, Omar Tyrick Shaw, brings this action under 42 U.S.C. § 1983 (“Section
1983”). He alleges violations of his constitutional rights while incarcerated as a pretrial
detainee within the Philadelphia Prison System (“PPS”). Defendants, represented by the City
of Philadelphia Law Department (“City”), have filed a motion to dismiss for failure to state a
claim. In an order dated May 9, 2016, Shaw was directed to file a written response to the
Defendants’ motion to dismiss, or ask the Court to decide the motion without a response from
him.1
Shaw did not file a response to the Defendant’s motion to dismiss. Defendants filed a
second motion to dismiss for lack of prosecution on February 14, 2017. However, a motion to
dismiss for failure to state a claim should not be granted solely because the motion is
unopposed. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (stating that before
dismissal a court should analyze the complaint to determine if it does, in fact, state a claim); see
1

This case was transferred from the late Honorable Judge Norma L. Shapiro’s docket to my
docket on August 1, 2016. (Doc. No. 15).
1

also Ray v. Reed, 240 F. App’x 455, 456 (3d Cir. 2007) (“[A] motion to dismiss under Rule
12(b)(6) should not be granted without an analysis of the underlying complaint, notwithstanding
local rules regarding the granting of unopposed motions.”).
Accordingly, I will deny Defendants’ second motion to dismiss based upon lack of
prosecution and will consider the facts in Shaw’s amended complaint.

For the reasons

explained below, Defendants’ first motion to dismiss will be granted in part and denied in
part.2
I.

FACTUAL BACKGROUND
Shaw filed his original complaint on March 9, 2015. This complaint was dismissed for

failure to state a claim because Shaw failed to include allegations that the Defendants were
personally involved in the alleged deprivation of his constitutional rights. (Doc. No. 6). Shaw
was given leave to file an amended complaint, which he filed on October 28, 2015. (Doc. No.
8). In his amended complaint, Shaw asserts claims against Defendants acting as supervisors:
Michael Nutter, the former Mayor of Philadelphia; Louis Giorla, the former Commissioner of
the PPS; and Michelle Farrell, former Warden of Curran-Fromhold Correctional Facility
(“CFCF”).
Shaw appears to allege three distinct claims: (1) that his constitutional rights under
the Fourteenth Amendment were violated as a result of overcrowded prison conditions,
commonly referred to as a “triple celling” claim (Claim I);3 (2) that his constitutional right

2

Any reference to Defendants’ motion to dismiss from here on will be referencing Defendants’
first motion to dismiss. (Doc. No. 10.)
3

Triple celling claims allege that constitutional violations arise due to the plaintiff, along with
two or three other men, being housed together in a cell originally designed for two people. The
third man typically sleeps in a plastic bed (referred to as a “boat”) that is placed on the floor of
the cell in between the bottom bunk and the toilet.
2

under the First Amendment to freely practice religion was violated (Claim II); and (3) a tort
claim for intentional infliction of emotional distress (Claim III). The City filed a motion to
dismiss on behalf of all Defendants.
II.

STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires more than a
“sheer possibility that a defendant has acted unlawfully.” Id. While it “does not impose a
probability requirement at the pleading stage,” plausibility does require “enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary elements of a claim.”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
To determine the sufficiency of a complaint under Twombly and Iqbal, a court must take
the following three steps: (1) the court must “tak[e] note of the elements a plaintiff must plead to
state a claim”; (2) the court should identify the allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth”; and (3) “where there are well-pleaded
factual allegations, [the] court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Burtch v. Milberg Factors, Inc., 662 F.3d 212,
221 (3d Cir. 2011) (citations omitted). Courts must construe the allegations in a complaint “in
the light most favorable to the plaintiff.” Id. at 220.
A pro se plaintiff’s complaint is to be read liberally, particularly where that plaintiff is a
prisoner. Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004) (citing Alston v Parker, 363
F.3d 229, 233-34 (3d Cir. 2004)). A motion to dismiss for failure to state a claim should be
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granted only if it appears beyond doubt that a pro se plaintiff can prove no set of facts in support
of the claim that would entitle him to relief. Leamer v. Fauver, 288 F.3d 532, 547 (3d Cir. 2002).
While a pro se plaintiff cannot be held to as high a pleading standard as other litigants, a court
cannot infer facts central to the plaintiff’s claims that are not stated in the complaint or other
documents before the court. See, e.g., Hamilton v. Jamieson, 355 F. Supp. 290, 298 (E.D. Pa.
1973); Wells v. Brown, 891 F. 2d 591, 592-94 (6th Cir. 1988) (collecting cases where courts
have required pro se litigants to adhere to basic pleading requirements); Case v. State Farm
Mutual Automobile Insurance Co., 294 F.2d 676, 678 (5th Cir. 1961) (“[T]here is no duty [on
the part] of the trial court or appellate court to create a claim which appellant has not spelled
out in his pleading.”).
III.

DISCUSSION
Defendants’ motion asserts that the amended complaint fails to state a claim because

Shaw failed to allege the Defendants’ “personal involvement” in the alleged constitutional
violations. Defendants do not make a distinction between the Fourteenth Amendment and First
Amendment violations alleged, and do not address the intentional infliction of emotion distress
claim in their motion to dismiss. I will address each claim in turn below.
A.

Claim I – Triple Celling

Shaw first argues that Defendants violated his 5th, 8th, and 14th Amendment rights in
ignoring the practice of triple celling at CFCF. Shaw states that he has been placed in three-man
and four-man cells that are dirty, forced to sleep on the floor on a plastic boat, and subjected to
various diseases and bodily pains due to sleeping on the boat. He alleges that Defendant Nutter
knew about the conditions because Shaw wrote letters to Nutter. Shaw explains that similar
lawsuits have been filed and there is “no way [Nutter] could or would have been oblivious to the

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defendant and other situations and thereof.” Regarding Defendant Giorla, Shaw states that he
knew about the situation because Shaw spoke with Giorla on two occasions and asked to be
moved to a different cell, to which Giorla said “I can’t do anything about it.” Shaw also cites to
an interview with Giorla by the Metro newspaper regarding the overcrowding. Finally, Shaw
alleges Defendant Farrell knew about the conditions because Shaw filed numerous grievances
and spoke with Farrell once. (Am. Compl. at 1-4.) Defendants argue that Shaw has failed to
allege that they were personally involved in the alleged wrongs. (Mot. at 2-3.)
A pretrial detainee’s conditions of confinement claim, including a triple celling claim,
is analyzed under the Due Process Clause of the Fourteenth Amendment to the United States
Constitution, which proscribes pretrial punishment. Bell v. Wolfish, 441 U.S. 520, 534 (1979);
Hubbard v. Taylor, 399 F.3d 150, 166-67 (3d Cir. 2005). A condition of confinement is
unconstitutional punishment if it results from an express intent to punish or is not rationally
related to a legitimate governmental purpose. Bell, 441 U.S. at 538-39. In assessing whether
triple celling is rationally related to a legitimate government purpose, a court must determine
whether triple celling serves any legitimate purpose and, if so, whether it is rationally related to
that purpose. Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008) (“Hubbard II”).

To

determine whether triple celling is rationally related to a government’s legitimate purpose, a
court must inquire whether “these conditions ‘cause inmates to endure such genuine privations
and hardship over an extended period of time,’ that the adverse conditions become excessive in
relation to the purposes assigned to them.” Id. at 233. The court must “look to the totality of
the conditions” at the prison in assessing the excessiveness of the conditions. Id.
Here, Defendants do not discuss whether triple celling serves a legitimate purpose,
however, the United States Court of Appeals for the Third Circuit has found that triple celling

5

serves the legitimate purpose of managing an overcrowded prison. Id. (citing Bell, 441 U.S. at
540).

Shaw’s amended complaint does not specifically address whether triple celling is

rationally related to the legitimate purpose of managing an overcrowded prison. However, his
amended complaint lists several allegations of unsanitary, unsafe, or otherwise inadequate
conditions that, construed liberally, imply that Shaw contends that the triple celling conditions
are excessive such that there is no rational relationship between the conditions and managing an
overcrowded prison. His allegations provide a glimpse of the totality of the circumstances that
Shaw experienced. For example, Shaw states he was “in a 3 man cell sleeping on the floor,”
causing him “neck, back and head pains.” Shaw further states the “boat [he] sleeps on is
approximately 3 feet away from the toilet so . . . urine gets on him” and that “being made to
sleep on the floor has caused . . . mental health issues compelling him to take psychological
medications.” He also alleges he experiences “constant lockdowns on end depriving him from
adequately cleansing himself,” and that the clothing provisions and laundry access are
extremely limited. (Am. Compl. at 3-4.)
The facts alleged, construed liberally and taken as true, provide enough detail about the
circumstances in the prison to survive a motion to dismiss. The allegations plausibly plead that
the triple celling conditions are “excessive in relation to the purposes assigned them,” and thus
are not rationally related to the purpose of managing an overcrowded prison. See Peele v.
Delaney, No. 12-4877, 2017 WL 467347, at *2 (E.D. Pa. Feb. 3, 2017) (finding that the facts
pled provided sufficient detail to survive a motion to dismiss, though plaintiff had not
specifically addressed whether triple celling is rationally related to the legitimate purpose of
managing an overcrowded prison).

6

Under Section 1983, a plaintiff must also demonstrate that the defendant, acting under
color of state law, deprived him of a right secured by the Constitution or the laws of the United
States. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). While, “[g]overnment
officials may not be held liable [under section 1983] for the unconstitutional conduct of their
subordinates under a theory of respondeat superior,” there are “two general ways in which a
supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.”
Barkes v. First. Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds,
Taylor v. Barkes, 135 S. Ct. 2042 (2015). Supervisor-defendants may be liable if they were
“personally involved” in the constitutional violation, i.e. they participated in it, directed others to
commit it, or had actual knowledge of and acquiesced in it. Id. Supervisor-defendants may also
be liable if “they, ‘with deliberate indifference to the consequences, established and maintained a
policy, practice or custom which directly caused the constitutional harm.’” Id. (quoting A.M.
ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
Post-Twombly, the Third Circuit requires that a plaintiff alleging personal involvement
“plausibly plead facts,” Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010), and
that a plaintiff alleging a policy, practice, or custom demonstrating deliberate indifferent must
do so with “specificity” as to “exactly” the policy, practice, or custom. McTernan v. City of
York, 564 F.3d 636, 658 (3d Cir. 2009).
i.

Knowledge and Acquiescence

Shaw has not alleged any facts to suggest that Defendants directly participated in the
alleged misconduct or that they directed others to commit it. Rather, Shaw’s allegations center
on Defendants’ apparent knowledge of the misconduct and failure to intervene. As such, I will
proceed under the theory of supervisory liability involving knowledge and acquiescence.

7

For a supervisor to be held liable through knowledge and acquiescence, they must
contemporaneously know of the violation of a plaintiff’s rights and fail to take action. See
Banks v. Rozum, 639 F. App’x 778, 784 (3d Cir. 2016); Robinson v. City of Pittsburgh, 120
F.3d 1286, 1294 (3d Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006). “Allegations of . . . actual knowledge and acquiescence,
however, must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988).
In his amended complaint, Shaw attributes knowledge and acquiescence to Nutter
through letters, Giorla through conversations and weekly tours of CFCF, and Farrell through
grievances and a conversation. Viewing the complaint in a light most favorable to Shaw, I find
that he has not alleged sufficient facts to establish that Nutter was personally involved in the
constitutional violation. The only fact Shaw alleges regarding Nutter’s personal involvement is
that he sent letters to Nutter.

This fact alone is not sufficient to demonstrate personal

involvement. See, e.g., Smith v. Danberg, No. 07-476, 2010 WL 2400468, at *5 (D. Del. June
15, 2010) (observing that a plaintiff’s allegation that he sent letters to defendants regarding a
prison condition was not enough to show actual knowledge); Bullock v. Horn, No. 3CV991402,
2000 WL 1839171, at *5 (M.D. Pa. Oct. 31, 2000) (“Merely asserting that Plaintiff sent letters
to these two defendants will not suffice. Indeed, it would be anomalous to suggest that a
prisoner could name as a Defendant any governmental official whatsoever, no matter how far
removed in the chain of authority from the actual conduct in question, simply by sending that
official a letter.”).
I find that Shaw has, however, alleged sufficient facts to establish that Defendants
Giorla and Farrell were personally involved through knowledge and acquiescence. As to

8

Giorla, Shaw states that he sent multiple letters to Giorla, spoke with Giorla twice about
overcrowding, and that Giorla told him there was nothing he could do about the overcrowding.
Though letters alone cannot establish knowledge, Shaw describes a scenario where he sent
letters, actually spoke with Giorla twice, and was then told by Giorla that nothing could be
done. This is enough to allege knowledge and acquiescence, and to thus survive a motion to
dismiss.
As to Farrell, Shaw states that he filed grievances with Farrell and spoke with her about
the overcrowding. Shaw also asserts that Farrell “does weekly tours and is aware that the
blocks hold twice as much people that its suppose to [sic].” (Am. Compl. at 2-3.) Though
filing a grievance is not enough to impute knowledge, see Brooks v. Beard, 167 F. App’x 923,
925 (3d Cir. 2006); Rode, 845 F.2d at 1208, allegations of Farrell performing weekly tours of
the prison and Shaw speaking with Farrell are enough to plausibly plead knowledge and
acquiescence.
ii.

Deliberate Indifference

Shaw has not explicitly argued that Defendants established and maintained a policy,
practice, or custom which directly caused the constitutional harm of which he complains. He
does, however, allege that Nutter “controls and promulgates” policies governing the PPS, Giorla
“operate[s] and enforce[s] policies and procedures within the [PPS],” and that Farrell “is the
overseer of policies, operations . . . and is aware that the blocks hold twice as much people that
its supposed to [sic].” (Am. Compl. at 1-3.)
The Third Circuit has adopted a test to evaluate whether supervisors are liable under
Section 1983 for deliberate indifference to an unconstitutional policy, practice, or custom.
“The plaintiff must (1) identify the specific supervisory practice or procedure that the

9

supervisor failed to employ, and show that (2) the existing custom and practice without the
identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3)
the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent
to the risk; and (5) the underling's violation resulted from the supervisor’s failure to employ that
supervisory practice or procedure.” Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir.
2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). A plaintiff must
specifically identify the acts or omissions of the supervisors that show deliberate indifference, and
suggest to the court a relationship between the “identified deficiency” of a policy or custom
and the injury suffered. Id.
Defendants do not address whether Shaw has alleged facts establishing a policy, practice,
or custom with deliberate indifference to the resulting harm, however, I find that Shaw has not.
The amended complaint merely states the Defendants’ job titles and that they either (1) are
responsible for managing or overseeing operations at CFCF or (2) promulgated policies
governing the PPS.

Without additional factual support, these conclusory allegations are

insufficient to allege that Defendants were deliberately indifferent to the harm caused by a
policy, practice, or custom.
In sum, as to Giorla and Farrell, the amended complaint contains factual allegations
that, construed in the light most favorable to Shaw, (1) satisfy the elements of an underlying
violation of the Due Process Clause connected to the practice of triple celling in the PPS, and (2)
sufficiently alleges supervisory liability for a Fourteenth Amendment violation under Section
1983. The amended complaint fails to allege sufficient facts to establish supervisory liability
as to Nutter.

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B.

Claim II – First Amendment Violation

Shaw next argues that Defendants violated his First Amendment rights. He contends
that the triple celling conditions prevent him from being able to practice his religion due to
limited space for praying. (Am. Compl. at 4.) Defendants do not address this allegation in their
motion.
Individuals have a constitutionally protected right to follow the religious teachings and
practices of their choice. Employment Div. v. Smith, 494 U.S. 872, 881-83 (1990). An inmate
“retains those First Amendment rights that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S.
817, 822 (1974). “[W]hen a prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological interests.” Turner v.
Safley, 482 U.S. 78, 89 (1987). In Turner v. Safley, the Supreme Court outlined four factors
(the “Turner Factors”) that are relevant when determining if a prison regulation is valid:
First, there must be a valid, rational connection between the prison regulation
and the legitimate governmental interest put forward to justify it. . . . A second
factor relevant in determining the reasonableness of a prison restriction . . . is
whether there are alternative means of exercising the right that remain open to
prison inmates. . . . A third consideration is the impact accommodation of the
asserted constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally. . . . Finally, the absence of ready
alternatives is evidence of the reasonableness of a prison regulation.
Id. at 89-90.
Applying Turner, the Third Circuit has adopted a two-step analysis for determining if a
prison regulation is rationally related to a penological interest. “First, the prison has the burden
of demonstrating the First Turner Factor. This burden is slight, and in certain instances, the
connection may be a matter of common sense. Second, if the prison meets its burden under the
First Turner Factor, then we consider the Other Turner Factors.” Sharp v. Johnson, 669 F.3d 144,
11

156 (3d Cir. 2012) (internal citations omitted); see also Fontroy v. Beard, 559 F.3d 173, 177 (3d
Cir. 2009) (“Although the Inmates bear the ultimate burden of showing that the DOC’s new mail
policy is unconstitutional, it is the DOC Officials’ burden to demonstrate that a rational
connection exists between the policy and a legitimate penological interest”); Monroe v. Beard,
536 F.3d 198, 207 (3d Cir. 2008) (stating that the party challenging the regulation bears the burden
of showing that it is unreasonable, but that the prison must come forward with a legitimate
interest justifying the regulation). The Third Circuit further explained in Jones v. Brown, 461
F.3d 353, 360-61 (3d Cir. 2006), that the “ultimate burden of persuasion with regard to the
reasonableness of a regulation” is on the inmate, but the prison is required to “put forward the
legitimate governmental interest alleged to justify the regulation and demonstrate that the policy
drafters could rationally have seen a connection between the policy and [that interest].”
In his amended complaint, Shaw states only that “being forced to be in a 3 man cell
stops him from practicing his religion freely because the limited space [means] he cannot pray
therefore violating his First Amendment [rights].” (Am. Compl. at 4.) Shaw has not alleged
that the PPS policy of triple celling inmates serves “no legitimate penological objectives.” See
Pell, 417 U.S. at 822; see also Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010) (affirming
dismissal of an inmate’s First Amendment claim where the inmate did not allege that the
regulation at issue did not serve a legitimate penological purpose or was not reasonably related
to the purpose of rehabilitation). Shaw has also failed to plead any facts related to the three
other Turner Factors: (2) the facts on the record are not sufficient to determine if the policy
was reasonable, or if there are alternative means for Shaw to exercise his right to pray;
(3) there is no mention of the impact an accommodation for Shaw would have on guards, other
inmates, or allocation of prison resources; and (4) there is no mention of the presence or absence

12

of alternative policies or measures. The facts as plead, even construed liberally, are not
sufficient to show a violation of the First Amendment right to practice religion, and I will
therefore dismiss Shaw’s First Amendment claim.
C.

Claim III – Intentional Infliction of Emotional Distress

Shaw’s final claim is that Defendants intentionally inflicted emotional distress on him
when they placed him in a three-man cell. He states that the “forced actions of being made to
sleep on the floor has caused the plaintiff emotional distress [and] mental health issues
compelling him to take psychological medications.” (Am. Compl. at 6.) Defendants do not
address this claim in their motion to dismiss.
To establish a claim for intentional infliction of emotional distress under Pennsylvania
law, a plaintiff must plead that defendants engaged in: “(1) extreme and outrageous conduct,
(2) performed intentionally or recklessly, (3) causing emotional distress, (4) which is severe.”
Serine v. Marshall, No. 14–4868, 2015 WL 803108, at *4 (E.D. Pa. Feb. 25, 2015). A “court
must make the initial determination of whether a defendant's conduct was so extreme and
outrageous that recovery may be justified.” Small v. Juniata College, 682 A.2d 350, 355 (Pa.
Super. Ct. 1996).
Taken in the light most favorable to Shaw, and construed liberally, the amended
complaint does not allege any direct actions by any of the Defendants, other than the fact that
Defendants were aware of the overcrowded prison conditions and that they “cultivated and
maintained a hostile atmosphere and environment.” (Am. Compl. at 6.) Shaw has not pled any
facts showing that Defendants’ conduct was intentional, outrageous, and/or resulted in a physical
injury to him. Even if he could prove a physical injury, no reasonable trier of fact could
conclude that any of Defendants’ intentional actions directed at Shaw were so outrageous or

13

extreme that they would be liable for intentional infliction of emotional distress. Therefore, I
find Shaw has failed to plead sufficient facts to plausibly state a claim for intentional infliction
of emotional distress and will dismiss this claim.
IV.

LEAVE TO AMEND
After a motion to dismiss has been filed, a district court should inform a plaintiff he has

leave to amend his complaint within a set period of time, unless an amendment would be
inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). As
stated above, even if Shaw could prove a physical injury, no reasonable trier of fact could
conclude that any of Defendants’ intentional actions were so outrageous or extreme that they
could be liable for intentional infliction of emotional distress. It would be futile to allow Shaw
to amend his complaint in an attempt to state a valid claim of intentional infliction of emotional
distress, and I therefore will not give him leave to amend this claim. I also will not give Shaw
leave to amend his Fourteenth Amendment claim as to Nutter because he has already amended
his complaint and failed to allege sufficient facts with respect to this claim. See In re Avandia
Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d Cir. 2014) (“Denial of
leave to amend a complaint is especially appropriate where a party has already been given the
opportunity to amend the complaint.”).
It is conceivable, however, that Shaw could amend his complaint to more clearly detail
facts to support a claim that his First Amendment rights were violated due to prison conditions
during his incarceration. Consequently, Shaw will be given leave to amend his complaint with
respect to the First Amendment claim within thirty (30) days of this Memorandum Opinion.

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V.

CONCLUSION
For the reasons discussed above, I will deny Defendants’ motion to dismiss for lack of

prosecution. I will also deny Defendants’ first motion to dismiss with respect to the Fourteenth
Amendment violation by Defendants Giorla and Farrell. I will grant Defendants’ motion to
dismiss as to Shaw’s Fourteenth Amendment claim against Defendant Nutter, First
Amendment claim against all Defendants, and intentional infliction of emotion distress claim
against all Defendants. I will give Shaw leave to amend his complaint within thirty (30) days
as to only his First Amendment claim. An appropriate Order follows.

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