RIVERA v. (CHESTER COUNTY) MUNICIPLE et al

Filing 99

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 3/28/17. 3/28/17 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL A. RIVERA

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:
:
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v.
CHESTER COUNTY, et al.

CIVIL ACTION
NO. 15-5609

O’NEILL, J.

March 28, 2017
MEMORANDUM

The present action involves a pro se complaint filed against more than sixty defendants
by plaintiff Michael A. Rivera. Plaintiff’s claims arise out of a lengthy string of events
beginning with his initial arrest and continuing through his subsequent and continuing
incarceration. Four groups, which encompass all of the named defendants, each filed a motion to
dismiss. Upon consideration of these motions and plaintiff’s joint response, I will grant the
motions in part and deny them in part.
FACTUAL BACKGROUND
Plaintiff initiated this action on February 16, 2016 against multiple corrections officers,
the Chester County Prison warden, the prison’s food and medical director, several random prison
employees, Chester County municipality, PrimeCare Medical, Inc., prison medical staff, the East
Vincent Township Police Department, New Garden Township Police Department, the Chester
County Detectives Office and individual Chester County Detectives. His amended complaint
sets forth a litany of constitutional violations under the First, Eighth and Fourteenth Amendments
resulting from events beginning with an arrest in 2014 and continuing through July 2015 during
his incarceration. The allegations, which consume over 150 paragraphs in the amended
complaint and another sixteen pages of what appears to be a memorandum of support for his

claims, cover a wide variety of subjects including excessive force, deliberate indifference to a
serious medical need, deprivation of access to the law library, inhumane conditions of
confinement, equal protection violations and denial of access to the grievance system.
I originally dismissed plaintiff’s complaint without prejudice under 28 U.S.C. § 1915A
for failure to state a claim upon which relief may be granted. In doing so, I gave plaintiff explicit
instructions for filing an amended complaint. Specifically, I directed that:
1.
The amended complaint must be filed within thirty days
from the date of this memorandum and order.
2.
The amended complaint must recite factual allegations
which are sufficient to raise plaintiff’s claimed right to relief above
the level of mere speculation.
3.
The amended complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief”
and set forth allegations that are “simple, concise, and direct.”
4.
The amended complaint must describe plaintiff’s causes of
action in separately numbered paragraphs for each incident about
which plaintiff alleges a claim. The allegations must clearly
identify the time, place, conduct and name of the person
responsible for the offending acts.
5.
The amended complaint must be a new pleading which
stands by itself as an adequate complaint without reference to any
other pleading already filed.
6.
The amended complaint must be legible and should be
either handwritten in blue or black ink with proper margins, or
typewritten.
Mem. & Order, ECF No. 87, Sept. 19, 2016.
On November 2, 2016, plaintiff filed a sixteen-page amended complaint consisting of
more than 150 numbered paragraphs. These paragraphs follow the same general format by
listing in chronological order the type of violation (e.g., Eighth Amendment, Fourteenth
Amendment), the defendant against whom the violation is stated (e.g., Officer Matthew

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Williams, PrimeCare), the date and a cursory basis for the claim (e.g., for giving plaintiff
involuntary medications, for denying plaintiff basic hygiene/showers, for using excessive force
without cause). In addition, plaintiff attaches another document that, like his previous complaint,
gives a sixteen-page, single-spaced, run-on narrative of the various events underlying his claims.
The document, which I shall refer to as the “complaint memorandum,” provides factual
allegations to support each cause of action.
On November 16, 2016, defendants PrimeCare Medical, Inc., Staci Suzuki, Psy.D., John
P. Fraunces, Ed.D., Karen Murphy, RN, CCHP, Molly Longare, PA-C., Megan Hughes, PA-C,
Briana Culp, PA-C, Corey Cotton, LPN, Mabel Moiyallah, MA and Nurse Lisa (collectively, the
“medical defendants”) filed a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). Dkt. No. 91. On the same day, a similar motion was filed by defendants County of
Chester, Cpl. Michael Marconi, Correctional Officer (CO) Troy Daniels, Sgt. Yaroslav Yancik,
CO Wilson, CO Valerie McCormack, CO Joseph Moore, Cpl. Preston Whitesell, Cpl. Jose
Garcia, Lt. P. Steve Sergi, Lt. David Ham, Lt. Edson Forbes, Capt. Morgan Taylor, Warden D.
Edward McFadden, Capt. Harry Griswold, Lt. Robert Mastnjak, Sgt. Donald Muller, Sgt. Golden
English, CO Randy Little, CO Kenneth Klinger, CO David Haines, Capt. Ocie Miller, Capt.
Pamela Saunders, Capt. Gene Farina, Major D. Scott Graham, CO Powers, Deputy Warden
Walter Reed, Counselor Jorge Vazquez, CO Weed, Corporal Ca’role White, Lt. James Brooks,
Sgt. Michael Young, Sgt. Arnold Lynch, CO Raymond Riggins (and/or Riggens), CO (CEU)
Tear, Director of Treatment Services Jack Healy, Corporal James Svah, CO Jesus Ruiz, CO
Domonique Bemberry, CO Wesley Suydum, CO Weed, Officer Stevenson, Work Supervisor
Robert Francis, Chester County Detectives Office, Detective Robert Balcunis, Detective David
Grandizio and Detective Ken Beam (collectively, the “Chester County defendants”). Dkt. No.

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90. Defendants New Garden Township PD and Officer Matthew Jones filed a Rule 12(b)(6)
motion to dismiss on November 17, 2016, Dkt. No. 92, and Defendants East Vincent Township
PD and Chief Matthew Williams filed a motion to dismiss on February 7, 2017. Dkt. No. 95.
On February 13, 2017, plaintiff responded to all four motions. Dkt. No. 98.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of
demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United
States Supreme Court has recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quotations omitted). “[T]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice” and “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. A complaint does not show an entitlement to relief when the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct. Id.
The Court of Appeals has detailed a three-step process to determine whether a complaint
meets the pleadings standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014). First, the court
outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Next, the court
must “peel away those allegations that are no more than conclusions and thus not entitled to the
assumption of truth.” Id. Finally, the court “look[s] for well-pled factual allegations, assume[s]
their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to

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relief.’” Id., quoting Iqbal, 556 U.S. at 679. The last step is “‘a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.’” Id., quoting
Iqbal, 556 U.S. at 679.
A prisoner’s pro se complaint should be “held to less stringent standards than formal
pleadings drafted by lawyers.” United States ex rel. Walker v. Fayette Cnty., Pa., 599 F.2d 573,
575 (3d Cir. 1979), citing Haines v. Kerner, 404 U.S. 519, 521 (1972). The court must construe
the facts stated in the complaint liberally in favor of the plaintiff. Haines, 404 U.S. at 520. “Yet
there are limits to our procedural flexibility. For example, pro se litigants still must allege
sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013). Thus, even a pro se complaint must conform with the
requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation” or “naked assertions” that are
devoid of “factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotations omitted). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action’ will not do.” Id.
DISCUSSION
I.

Compliance with 28 U.S.C. § 1915A
As noted above, I originally dismissed plaintiff’s complaint without prejudice under 28

U.S.C. § 1915A, which requires that I conduct a preliminary review of any pro se complaint
seeking redress against government officials. Section 1915A provides, in pertinent part:
(a) Screening.—The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a
complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity.

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(b) Grounds for dismissal.—On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A. This standard mirrors the standard for addressing a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir.
2012).
Plaintiff’s amended complaint does not fully comply with my previous instructions.
Most notably, the amended complaint does not stand alone as an adequate pleading, but rather
relies on the attached “complaint memorandum.” Moreover, rather than dividing his claims into
categories, the complaint memorandum provides a stream-of-consciousness type discussion of
the operative facts. Given these failures, I would be justified in again dismissing the complaint
with or without prejudice to leave to amend pursuant to § 1915.
Nonetheless, I decline to do so for two reasons. First, as plaintiff has already been given
detailed directions on pleading, allowing leave to amend again would likely not result in a
significantly improved complaint. More importantly, plaintiff’s complaint memorandum, which
is similar to his initial complaint, provides more detailed factual allegations in support of the
causes of action set forth in his amended complaint. His actual amended complaint then
provides cross-references between each of his separately-numbered claims and the pertinent
section in the complaint memorandum. Taking these two documents together, I find that
plaintiff can survive § 1915 screening.
Defendants have now filed a second round of motions to dismiss that specifically address
the merits of plaintiff’s underlying claims. Plaintiff, in turn, has substantively responded to

6

defendants’ motions. Reading plaintiff’s complaint and response in the most liberal fashion and
drawing all plausible inferences in favor of plaintiff’s claims, I will now address the substance of
the claims in the amended complaint.
II.

Motion to Dismiss by Defendants New Garden Township Police Department and
Officer Matthew Jones
Defendants New Garden Township Police Department and Officer Matthew Jones seek

dismissal of all claims against them. For the following reasons, I will grant their motion in part
and deny it in part.
A.

New Garden Township Police Department

Plaintiff does not provide any factual allegations or legal claims against New Garden
Police Department. Assuming plaintiff meant to impose liability against New Garden Police
Department based on the acts of its employees, this claim must fail for two reasons.
First, “[i]n Section 1983 actions, police departments cannot be sued in conjunction with
municipalities, because the police department is merely an administrative arm of the local
municipality, and is not a separate judicial entity.” DeBellis v. Kulp, 166 F. Supp. 2d 255, 265
(E.D. Pa. 2001). Thus, a police department “is not a ‘person’ subject to suit in a § 1983 civil
rights action because it lacks an identity separate from the municipality of which it is a part.”
Draper v. Darby Twp. Police Dep’t., 777 F. Supp. 2d 850, 856 (E.D. Pa. 2011); see also Briggs
v. Moore, 251 F. App’x 77, 79 (3d Cir. 2007) (affirming the dismissal of a Section 1983 suit
against the Monmouth County District Attorney’s Office because it “is not a separate entity that
can be sued under § 1983”); Reitz v. Cnty. of Bucks, 125 F.3d 139, 148 (3d Cir. 1997) (affirming
district court’s entry of summary judgment in favor of the Bucks County District Attorney’s
Office because it “is not an entity for purposes of § 1983 liability”). Under this well-established
jurisprudence, New Garden Township Police Department is not a proper party to this litigation.
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Second, even to the extent New Garden Township could be properly substituted for New
Garden Police Department, plaintiff’s claims, which are premised on 42 U.S.C. § 1983, fail to
state cognizable constitutional violations. In the seminal case of Monell v. Department of Social
Services, 436 U.S. 658 (1978), the United States Supreme Court confirmed that “Congress did
intend municipalities and other local government units to be included among those persons to
whom §1983 applies,” but emphasized that, “a municipality cannot be held liable under § 1983
on a respondeat superior theory.” Id. at 690–91 (emphasis in original). Instead, “[a] local
government may be sued under § 1983 only for acts implementing an official policy, practice or
custom.” Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 910 (3d Cir. 1984), citing Monell,
436 U.S. at 690–91; see also Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 237 (3d Cir.
2013), citing Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).
Guided by such principles, the Court of Appeals has explained that there are three
situations where the acts of a government employee may be deemed to be the result of a policy
or custom of the governmental entity for whom the employee works, rendering the entity liable
under § 1983:
The first is where the appropriate officer or entity promulgates a
generally applicable statement of policy and the subsequent act
complained of is simply an implementation of that policy. The
second occurs where no rule has been announced as policy but
federal law has been violated by an act of the policymaker itself.
Finally, a policy or custom may also exist where the policymaker
has failed to act affirmatively at all, [though] the need to take some
action to control the agents of the government is so obvious, and
the inadequacy of existing practice so likely to result in the
violation of constitutional rights, that the policymaker can
reasonably be said to have been deliberately indifferent to the
need.
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (internal quotation
marks and citations omitted).
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The amended complaint is devoid of any allegations of any policy, practice or custom
within New Garden Township that caused the purported constitutional violations. Because a
municipality cannot be held liable simply on a respondeat superior basis for the acts of its
employees, I must dismiss this claim.
B.

Officer Matthew Jones

Plaintiff also sets forth an Eighth Amendment claim of excessive force against Officer
Matthew Jones. Am. Compl. ¶ 2. Plaintiff asserts that during the course of his arrest on
December 23, 2014, Officer Jones slammed him to the floor when he was not resisting and
punched him in the back of the head. Compl. Mem., 1 p.1, lines 2–4. These actions left plaintiff
with bruising, swelling, a cast on his finger, cuts on his left check and stitches. Id. at p. 1, lines
9–11. Defendants now argue that plaintiff’s claim must be dismissed because (1) the Eighth
Amendment is inapplicable to plaintiff; (2) the claim fails to set forth a constitutional violation
and (3) Officer Jones is protected by qualified immunity.
1.

Applicability of the Eighth Amendment

Defendants’ first argument is premised on the fact that plaintiff asserts his excessive
force claim under the Eighth Amendment, which applies only to convicted prisoners. Natale,
318 F.3d at 581. As plaintiff admits that Officer Jones’s actions occurred during his arrest of
plaintiff, not while plaintiff was incarcerated, the Eighth Amendment provides no protection. As
set forth above, however, I must construe plaintiff’s claims liberally given his status as a pro se
litigant. Haines, 404 U.S. at 520; see also Wilson v. Sobina, No. 11-298, 2012 WL 6840521, at
*2 (W.D. Pa. July 16, 2012) (“If the court can reasonably read pleadings to state a valid claim on
which the litigant could prevail, it should do so despite failure to cite proper legal authority,
1

For purposes of citation, I refer to plaintiff’s complaint memorandum attached to his
amended complaint as “Compl. Mem.”
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confusion of legal theories, poor syntax and sentence construction, or litigant’s unfamiliarity
with pleading requirements.”). Doing so, I will assume that plaintiff meant to plead this claim
under the Fourth and Fourteenth Amendments, which prohibits the use of unreasonably
excessive force when making an arrest. Graham v. Connor, 490 U.S. 386, 394 (1989).
2.

Failure to Plead a Constitutional Violation

I also reject defendants’ second argument—that plaintiff fails to adequately plead a
constitutional violation. The Supreme Court has stated that the “use of force is contrary to the
Fourth Amendment if it is excessive under objective standards of reasonableness.” Saucier v.
Katz, 533 U.S. 194, 202 (2001). In making this determination, the court must evaluate the
reasonableness of “a particular use of force . . . from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight,” while recognizing “that police officers
are often forced to make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary.” Graham, 490 U.S. at 396–97. As
the United States Supreme Court has held:
[T]he “reasonableness” inquiry in an excessive force case is an
objective one: the question is whether the officer[’s] actions are
“objectively reasonable” in light of the facts and circumstances
confronting [him], without regard to [his] underlying intent or
motivation . . . . An officer’s evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of
force; nor will an officer’s good intentions make an objectively
unreasonable use of force constitutional.
Id. at 397 (internal citations omitted). Careful attention must be given to the facts and
circumstances of each particular case, recognizing that the use of some coercion necessarily
inheres in the officer’s right to make such an investigatory stop or seizure. Id. at 396. These
facts and circumstances include “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
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or attempting to evade arrest by flight.” Id. Our Court of Appeals has included additional
factors for consideration, such as “the duration of the action, whether the action takes place in the
context of effecting an arrest, the possibility that the suspect may be armed, and the number of
persons with whom the police officers must contend at one time.” Sharrar v. Felsing, 128 F.3d
810, 822 (3d Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir.
2007).
As stated above, plaintiff alleges that during the course of plaintiff’s arrest, Officer Jones
slammed him to the floor and punched him in the back of the head, even though plaintiff was not
resisting. Taken as true, such allegations could plausibly rise to the level of excessive force
prohibited by the Constitution. Therefore, I will not dismiss this cause of action for failure to
state a claim. 2
3.

Qualified Immunity

Finally, defendants argue that if the excessive force claim survives, Officer Jones is
entitled to qualified immunity. Qualified immunity provides that government officials are
immune from suits for civil damages under 42 U.S.C. § 1983 “insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quotations omitted). This
doctrine attempts to balance the competing values of protecting innocent individuals from
litigation while allowing liability for those who abuse their discretion. Harlow v. Fitzgerald, 457
U.S. 800, 813–14 (1982). The qualified immunity analysis is specific to each individual

2

Defendants contend that Williams was arresting plaintiff for murdering his mother and
burning her apartment complex two days earlier. Def. Williams’s Mem. Supp. Mot. to Dismiss,
ECF No. 95, at 5 n.1. These “facts,” however, are extraneous to the amended complaint and,
therefore, may not properly be considered on a motion to dismiss.
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defendant and considers the totality of the circumstances at the time of the defendant’s
challenged conduct. Curley v. Klem, 499 F.3d 199, 207 (3d Cir. 2007).
Qualified immunity is a question of law consisting of two prongs to be considered in any
order. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The first question inquires whether the
facts alleged by a plaintiff make out a violation of a constitutional right. Id. at 232. The second
inquiry asks “whether the right at issue was ‘clearly established’ at the time of defendant’s
alleged misconduct.” Id. A right is clearly established if “‘it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.’” Reedy v. Evanson, 615
F.3d 197, 224 (3d Cir. 2010), quoting Saucier v. Katz, 533 U.S. 194, 202 (2001). “This inquiry
turns on the objective legal reasonableness of the action, assessed in light of the legal rules that
were clearly established at the time it was taken.” Pearson, 555 U.S. at 244 (quotations omitted).
The court must consider “the information within the officer’s possession at that time.” Harvey v.
Plains Twp. Police Dep’t, 421 F.3d 185, 194 (3d Cir. 2005).
The qualified immunity inquiry is premature at this stage of the litigation. Plaintiff has
adequately alleged a violation of his constitutional right to be free from the use of the excessive
force. The prohibition against excessive force was clearly established at the time of the events in
question and, at this juncture, I cannot ascertain whether it would have been clear to Officer
Jones that his conduct was unlawful in the situation he confronted. Therefore, I will reject the
qualified immunity defense without prejudice to Officer Jones’s right to raise it at a later date.
II.

Motion to Dismiss by Defendants East Vincent Township Police Department and
Chief Matthew Williams
Defendants East Vincent Township Police Department and Chief Matthew Williams also

seek dismissal of all claims against them. For the following reasons, I will grant the motion as to
East Vincent Township Police Department and deny it as to Chief Williams.
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A.

East Vincent Township Police Department

Like the claims against New Garden Township Police Department, plaintiff’s claim
against East Vincent Township Police Department also fails for two reasons. First, as set forth
above, a police department “is not a ‘person’ subject to suit in a § 1983 civil rights action
because it lacks an identity separate from the municipality of which it is a part.” Draper v. Darby
Twp. Police Dep’t., 777 F. Supp. 2d 850, 856 (E.D. Pa. 2011); see also Briggs v. Moore, 251 F.
App’x 77, 79 (3d Cir. 2007) (affirming the dismissal of a Section 1983 suit against the
Monmouth County District Attorney’s Office because it “is not a separate entity that can be sued
under § 1983”). Second, even if I were to assume that plaintiff intended to sue East Vincent
Township, plaintiff has failed to state a claim against it. East Vincent Township, either as a
police department or a municipality, is not mentioned anywhere in plaintiff’s pleadings.
Moreover, plaintiff has not set forth any allegations of any policy, practice or custom within East
Vincent Township that could be said to have proximately caused the alleged constitutional
violations. Accordingly, I dismiss this claim with prejudice.
B.

Chief Matthew Williams

Plaintiff’s claim against Chief Williams is also premised on an allegation of excessive
force. Am. Compl. ¶ 3. He asserts that, in the course of the arrest at issue, Chief Williams threw
him onto the floor and, while plaintiff was flat on his stomach, Williams kicked and “knee
dropped” him. Compl. Mem., p.1, lines 3–4. Officer Williams then tased plaintiff twice, pointed
his pistol at him and threatened to shoot him. Id. at p. 1, lines 6–8. As with Officer Jones,
defendants argue that plaintiff’s claim must be dismissed because (1) the Eighth Amendment is
inapplicable to plaintiff; (2) the claim fails to set forth a constitutional violation and (3) Williams
is protected by qualified immunity.

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I decline to dismiss the claims against Williams on any of these grounds. First, consistent
with my ruling as to Officer Jones, I will liberally construe the amended complaint to allege an
excessive force claim under the Fourth and Fourteenth Amendments. Second, I find that
plaintiff’s allegations as to Chief Williams—consisting of kicking, “knee dropping” and tasing
plaintiff without cause—could give rise to a plausible claim of excessive force. Finally,
defendants’ request for qualified immunity is premature. 3 Although defendants assert that Chief
Williams had a reasonable belief that force was warranted given plaintiff’s arrest for murdering
his mother and burning her apartment complex two days earlier, the facts as alleged in the
amended complaint do not suggest that plaintiff posed any threat against or resistance to Chief
Williams at the time of the arrest. Therefore, I decline to dismiss the claim against this
defendant and will allow Chief Williams to re-raise the qualified immunity defense at a later
time.
III.

Motion to Dismiss by Defendants PrimeCare Medical, Inc., Staci Suzuki, Psy.D.,
John P. Fraunces Ed.D., Karen Murphy, RN, Molly Longare, PA-C, Megan Hughes,
PA-C, Brianna Culp, PA-C, Corey Cotton, LPN, Mabel Moiyallay, MA, and Nurse
Lisa
The third motion before me seeks dismissal of the claims against defendants PrimeCare

Medical, Inc., Staci Suzuki, Psy.D., John P. Fraunces Ed.D., Karen Murphy, RN, Molly Longare,
PA-C, Megan Hughes, PA-C, Brianna Culp, PA-C, Corey Cotton, LPN, Mabel Moiyallay, MA,
3

Defendants attach numerous exhibits to their brief and argue that these exhibits
demonstrate Chief Williams’s reasonable belief in using force in plaintiffs’ arrest. In addition,
they cite two cases for the proposition that qualified immunity is appropriate under these
circumstances. This argument is misplaced. “In determining whether a claim should be
dismissed under Rule 12(b)(6), a court looks only to the facts alleged in the complaint and its
attachments without reference to other parts of the record.” Jordan v. Fox, Rothschild, O'Brien
& Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). Accordingly, I may not consider defendants’
exhibits. Moreover, quite unlike this case, the cases cited by defendants granted qualified
immunity at the summary judgment stage. See Wisneski v. Denning, No. 12-864, 2014 WL
1758118 (W.D. Pa. Apr. 30, 2014); Kist v. Fatula, No. 06-0067, 2009 WL 506863 (W.D. Pa.
Feb. 27, 2009).
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and Nurse Lisa (collectively, “the medical defendants”). 4 The amended complaint sets forth
multiple claims against these defendants including: (1) medical indifference; (2) Fourteenth
Amendment equal protection violations; (3) Eighth and Fourteenth Amendment conditions of
confinement; and (4) Monell claims against PrimeCare for constitutionally violative customs and
policies. Based on my review of the amended complaint, I will dismiss all of these claims.
A.

Claims of Deliberate Medical Indifference

Plaintiff first brings a series of claims against the individual medical defendants alleging
“medical indifference” under the Eighth Amendment. 5 Defendants now contend that these
claims do not survive Rule 12(b)(6) scrutiny. I agree.
The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97,
103–105 (1976). In order to set forth a cognizable claim, an inmate must allege (i) a serious
medical need and (ii) acts or omissions by prison officials that indicate deliberate indifference to
that need. Id. at 104; see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
“Seriousness” is proven if a plaintiff is able to demonstrate that the need is “‘one that has been
diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would
easily recognize the necessity for a doctor’s attention.’” Monmouth Cnty. Corr. Institutional
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), quoting Pace v. Fauver, 479 F. Supp. 456,
458 (D.N.J. 1979), aff’d, 649 F.2d 860 (3d Cir. 1981); see also Pearson v. Prison Health Servs.,
___ F.3d ___, 2017 WL 892371, at *4 (3d Cir. Mar. 7, 2017) (noting that a medical need is
4

Although plaintiff also asserts claims against a Dr. Davis, Am. Compl. ¶¶ 83, 130, 134,
Dr. Davis is not a named defendant in this action.
5

Plaintiff actually brings these claims under the Fourteenth Amendment, even though the
relevant constitutional provision is the Eighth Amendment. In light of plaintiff’s pro se status, I
will construe these claims as being raised under the Eighth Amendment.
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serious where it has been diagnosed by a physician as requiring treatment). Moreover, “where
denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical
need is considered serious.” Lanzaro, 834 F.2d at 347.
To demonstrate the deliberate indifference prong of Estelle, a plaintiff must show that
the defendants were more than merely negligent in diagnosing or treating his serious medical
condition. Mere medical malpractice or disagreement with the proper treatment of an illness
cannot give rise to a violation of the Eighth Amendment. White v. Napoleon, 897 F.2d 103, 108
(3d Cir. 1990); see also Rouse, 182 F.3d at 197; Lanzaro, 834 F.2d at 346. Rather, a prison
official is deliberately indifferent if he knows that a prisoner faces a substantial risk of serious
harm and fails to take reasonable steps to avoid the harm. Farmer v. Brennan, 511 U.S. 825, 837
811 (1994). The Court of Appeals has found that the deliberate indifference standard is satisfied
[W]hen prison officials 1) deny reasonable requests for medical
treatment, and the denial exposes the inmate to undue suffering or
the threat of tangible residual injury, 2) delay necessary medical
treatment for non-medical reasons, or 3) prevent an inmate from
receiving recommended treatment for serious medical needs, or
deny access to a physician capable of evaluating the need for
treatment.
Whooten v. Bussanich, 248 F. App’x 324, 326–27 (3d Cir. 2007). Beyond these types of
circumstances, a court will generally not “second-guess the propriety or adequacy of a particular
course of treatment . . . [since such determinations] remain[] a question of sound professional
judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(quotations omitted). “[A]s long as a physician exercises professional judgment his behavior
will not violate a prisoner’s constitutional rights.” Brown v. Borough of Chambersburg, 903
F.2d 274, 278 (3d Cir. 1990).
In the present case, plaintiff presents fifteen claims of deliberate indifference as follows:

16

•

A claim against Nurse Cotton for unwrapping and unsplinting plaintiff’s wound and
finger contrary to doctor’s orders on December 24, 2014. Am. Compl. ¶ 9; Compl.
Mem., p.1, line 19.

•

A claim against Nurse Moiyallay for not “intaking my medical issues or addressing
them” on December 24, 2014. Am. Compl. ¶ 11; Compl. Mem., p. 1, lines 19–20.

•

A claim against Nurse Moiyallay, Nurse Cotton and Dr. Suzuki who witnessed plaintiff’s
stitches injury, but did not ensure or refer for treatment. Am. Compl. ¶ 30, Compl.
Mem., p. 3, line 18.

•

A claim against PA Longare, PA Brianna and PA Hughes for pre-existing conditions
never being addressed despite reports from plaintiff and repeated complaints. Am.
Compl. ¶ 32. These conditions included a herniated disc, disc bulge and stitches. Compl.
Mem., p. 3, line 15.

•

A claim against Nurse Cotton and Nurse Moiyallay for not reporting plaintiff’s
complaints of pre-existing conditions during intake on December 24, 2014. Am. Compl.
¶ 33; Compl. Mem., p. 3, lines 14–15.

•

A claim against all medical staff after plaintiff defecated and staff denied him a shower or
hygiene supplies on December 28, 2014. Am. Compl. ¶ 37.

•

A claim against all medical staff for not addressing plaintiff’s obvious injuries after the
use of physical force by the guards on January 4, 2015. Am. Compl. ¶ 51. Specifically,
after guards physically assaulted him, plaintiff was taken to medical, given a band-aid
and referred for an x-ray, despite the fact that he was reporting more visible injuries such
as bleeding in the mouth, wrist pain, chest pain, bruising of his ribs, swollen knee, painful
lumps on his head, neck pain, a phlegm cough and difficulty breathing. Compl. Mem., p.
5, lines 19–22.

•

A claim against Dr. Fraunces for being informed of a medical need but not addressing it
on January 8, 2015. Am. Compl. ¶ 62. Plaintiff received no attention until the following
day when he passed out with a fever and profuse sweating and was hyperventilating.
Compl. Mem., p. 6, lines 18–20.

•

A claim against Nurse Lisa for not properly treating plaintiff’s visible injuries on January
9, 2015. Am. Compl. ¶ 65. On that date, Nurse Lisa asked if plaintiff was in pain from
previous interactions with the correctional officers and when he said yes, she put him in a
room without further attention. When a nurse later came to check his temperature and
blood pressure, he passed out and fell, requiring the nurse and a correctional officer to
help him. Compl. Mem., p. 6, lines 23–26.

•

A clam against PA Hughes for not addressing or treating plaintiff’s visible injuries on
January 9, 2015. Am. Compl. ¶ 66. Plaintiff showed Hughes his injuries and explained
his problem breathing, but she did not prescribe anything for pain. Rather, he was given
17

ibuprofen or Tylenol for the fever and put in a room with a shower. Compl. Mem., p. 6,
lines 26–28.
•

A claim against PA Hughes for medical indifference to plaintiff’s medical condition on
January 11, 2015. Am. Compl. ¶ 67. On January 11, 2015, PA Hughes discharged
plaintiff from medical, but still did not prescribe anything for pain for his obvious
physical injuries. Compl. Mem., p. 7, lines 8–10.

•

A claim against PA Longare for denying plaintiff medical attention for his pre-existing
medical condition when informed on January 23, 2015. Am. Compl. ¶ 71. On that date,
after Longare learned that the x-ray of plaintiff’s wrist was within normal limits, Longare
prescribed him Napricin for his wrist pain. He told her about other issues, but she only
addressed his wrist saying that he had tendonitis. Compl. Mem., p. 7, lines 20–24.

•

A claim against PA Culp for not treating plaintiff’s reported injuries or even inquiring
into his condition after being informed. Am. Compl. ¶ 96. On February 23, 2015, PA
Culp told plaintiff he was being treated, but when he explained that he was still in pain
and pointed out that his knee was swollen, she stated that it might be lifelong pain and
nothing else. Compl. Mem., p. 8 line 27–p. 9 line 1.

•

A claim against PA Culp for once again ignoring plaintiff’s request for medical treatment
for existing and pre-existing medical conditions on March 26, 2015. Am. Compl. ¶ 106.
Plaintiff saw PA Culp on that day and she informed him that he would only be given
three more months of Napricin, but she did not address any other issues even when
plaintiff showed her his swollen knee. Compl. Mem., p. 10, lines 6–8.

•

A claim against Karen Murphy for not allowing plaintiff to review medical records after
repeated attempts. Am. Compl. ¶ 126. Specifically, he requested from Karen Murphy
the opportunity to review his medical records, but did not receive a response from her.
Compl. Mem., p. 12, lines 21–23.
None of these claims allege facts sufficient to set forth a plausible claim for relief.

Primarily, for most of these claims, plaintiff has not alleged facts upon which I can infer that he
had a “serious” medical condition that either has been diagnosed by a physician as requiring
treatment or is so obvious that a lay person would easily recognize the necessity for a doctor’s
attention. Lanzaro, 834 F.2d at 347 (quotations omitted). Nor has he alleged that delay in
treatment caused him to suffer a life-long handicap or permanent loss. Id. at 347. Indeed, the
alleged facts suggest only that plaintiff had a finger that was splinted, a wound that received
stitches, a pre-existing but non-severe back condition, some non-specific injuries from an
18

altercation with the guards, an illness with a fever and a swollen knee. None of these conditions
suggests a “serious” medical condition for purposes of a constitutional claim.
More importantly, even assuming plaintiff could establish a serious medical condition, he
has failed to plead that any of the named defendants acted with deliberate indifference. Plaintiff
never disputes that he received medical care for his various injuries. Rather, he simply disagrees
with the type and extent of the care he received, an allegation that does not state a valid claim of
medical mistreatment under the Eighth Amendment. Pearson, 2017 WL 892371, at *7. At no
point does plaintiff suggest that he was denied reasonable requests for medical treatment that
exposed him to undue suffering or the threat of tangible residual injury. Nor does plaintiff claim
that medical treatment was denied for non-medical reasons or that he was prevented from
receiving recommended treatment for serious medical needs or denied access to qualified
medical professionals. Indeed, the allegations in plaintiff’s pleadings clearly demonstrate that he
was seen, evaluated and provided medication by medical personnel on multiple occasions. As
the amended complaint does not put forth any facts to allow an inference of deliberate
indifference, I dismiss these claims with prejudice.
B.

Equal Protection Claim

Plaintiff has also alleged an equal protection claim against PA Longare, PA Culp and PA
Hughes. As I find that plaintiff has not adequately pled such a claim, I will grant defendants
motion to dismiss.
The Equal Protection Clause provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. The Court of
Appeals has recognized that in order to establish a viable equal protection violation, a plaintiff
must show intentional or purposeful discrimination. See Wilson v. Schillinger, 761 F.2d 921,

19

929 (3d Cir. 1985). The Equal Protection Clause is not a command that all persons be treated
alike but, rather, “a direction that all persons similarly situated should be treated alike.” Artway
v. Attorney Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996), quoting City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
If the action does not involve a suspect classification, the plaintiff may establish an equal
protection claim under a “class of one” theory by showing that he or she was intentionally treated
differently from other similarly situated individuals without a rational basis for the difference in
treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To allege an equal
protection claim under a class-of-one theory, a plaintiff must show that “(1) the defendant treated
him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there
was no rational basis for the difference in treatment.” Phillips v. County of Allegheny, 515 F.3d
224, 243 (3d Cir. 2008), citing Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)).
In a prison setting,
[A]n inmate must demonstrate that he was treated differently than
others similarly situated as a result of intentional or purposeful
discrimination . . . . He must also show that the disparity in
treatment cannot survive the appropriate level of scrutiny, which,
in a prison setting, means that [a plaintiff] must demonstrate that
his treatment was not “reasonably related to [any] legitimate
penological interests.”
Holland v. Taylor, 604 F. Supp. 2d 692, 701 (D. Del. 2009), quoting Phillips v. Girdich, 408
F.3d 124, 129 (2d Cir. 2005) (internal citation, quotation marks, and alterations omitted). Stated
simply, the Equal Protection Clause in a prison setting only requires that a regulation which
results in unequal treatment of an inmate bear some rational relationship to a legitimate
penological interest. See DeHart v. Horn, 227 F.3d 47, 61 (3d Cir. 2000).

20

Plaintiff’s equal protection claim does not claim discrimination based on his membership
in a protected class. Rather, he alleges that PA Culp, PA Longare and PA Hughes violated his
rights by treating him differently than inmates similarly situated. Am. Compl. ¶ 120. He reasons
that, on June 11, 2015, he passed out while using the bathroom. Although he told the nurse that
his blood pressure had been lower than usual and was low that night, the nurse did not provide
any follow up. Compl. Mem., p. 11, line 26–p. 12, line 1. Another inmate, Hart, told him that he
had the same issue with his blood pressure and was put on regular blood pressure checks. Id. at
p. 12, line 2. Such bare statements fail to adequately allege that inmate Hart was similarly
situated for purposes of the equal protection clause. Moreover, even assuming this one inmate
was similarly situated, plaintiff fails to make the basic allegation either of intentional or
purposeful discrimination necessary to prove an equal protection violation or that there was no
rational basis to any legitimate penological interest for not giving him regular blood pressure
checks. Even drawing all reasonable inferences from the amended complaint in plaintiff’s favor,
plaintiff’s equal protection claim appears to be nothing more than a mere disagreement with
medical staff as to treatment decisions. Despite the more relaxed scrutiny afforded to pro se
prisoners, such a claim does not survive Rule 12(b)(6) scrutiny.
C.

Eighth Amendment Conditions of Confinement Claim

Plaintiff brings a few sporadic claims under the Eighth Amendment alleging
constitutionally inadequate conditions of confinement against the medical defendants. I find that
they fail to state a claim upon which relief may be granted.
“The Eighth Amendment, in only three words, imposes the constitutional limitation upon
punishments: they cannot be ‘cruel and unusual.’” Rhodes v. Chapman, 452 U.S. 337, 345
(1981). Prison officials have a duty under the Eighth Amendment to “provide humane

21

conditions of confinement.” See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Thus, to prevail
on a “conditions of confinement” claim, an inmate must show that the deprivation is “objectively
sufficiently serious” and that the prison official subjectively acted with deliberate indifference to
inmate health or safety. Id. at 834. Deliberate indifference is something more than mere
negligence, but something less than acts or omissions purposely designed to cause harm. Id. at
835; Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
In the amended complaint, plaintiff alleges the following Eighth Amendment claims: 6
1.

A claim against Nurse Cotton, Correctional Officer Riggens and others for giving
plaintiff involuntary medications and for subjecting him to an “unreasonable
strip.” Am. Compl. ¶¶ 16, 17. Specifically, on December 26, 2014, a correctional
officer (defendant Officer Riggens) came to his cell and tauntingly waived a
needle at him. Various staff came over, pulled plaintiff out of his cell, stripped
him of his clothing and gave him a smock and gave him an involuntary shot of
medication. Compl. Mem., p. 1, line 26–p. 2, line 2; id. p. 3, lines 19–21. Nurse
Cotton is not personally implicated in these actions.

2.

A claim against Dr. Suzuki for “denial of basic human need shower/hygiene to
plaintiff” from December 24, 2014 to December 29, 2014. Am. Compl. ¶ 26. He
explains that “[w]hile in medical I informed every nurse and Dr. (Suzuki) of my
pain and request for hygiene yet nothing was given.” Compl. Mem., p. 3 lines 8–
9.

Based on these sparse allegations, I cannot find that plaintiff has adequately pled an
Eighth Amendment violation. These facts do not suggest that plaintiff was incarcerated under
conditions posing a substantial risk of serious harm or even that he suffered any such harm.
Moreover, plaintiff has failed to set forth facts showing that either Nurse Cotton or Dr. Suzuki
was subjectively aware of any risk of harm to plaintiff. Indeed, plaintiff has failed to plead that
Nurse Cotton was even involved in giving the involuntary medication or ordering the “strip” of

6

Plaintiff brings some of these clams under the Fourteenth Amendment. Liberally
construing his pleadings, I will assume that plaintiff meant to assert violations of the Eighth
Amendment.
22

plaintiff, or that Dr. Suzuki knew about or had any control over when plaintiff would receive a
shower. Given this cursory pleading, I will dismiss these claims.
D.

Section 1983 Claims Against PrimeCare

Plaintiff also seeks to impose section 1983 liability against PrimeCare, the company that
employed the prison medical staff and managed the prison medical operations. Under § 1983, a
private corporation contracted by a prison to provide healthcare for inmates is similar to a
municipality in that it cannot be held liable on a respondeat superior theory. Gannaway v. Prime
Care Med., Inc., 150 F. Supp. 3d 511 (E.D. Pa. 2015). “[R]ather, pursuant to Monell, such a
private corporation can be held liable for constitutional violations only if it has a custom or
policy exhibiting deliberate indifference to a prisoner’s serious medical needs.” Gannaway, 150
F. Supp. 3d at 350, citing Natale v. Camden Cnty Corr. Facility, 318 F.3d 575, 583–84 (3d Cir.
2003); see also Weighner v. Prison Health Servs., 402 F. App’x 668, 669–70 (3d Cir. 2010)
(holding that a private corporation providing healthcare to state prisoners cannot be held liable
under a respondeat superior theory). “To satisfy the pleading standard, [a plaintiff] must identify
a custom or policy, and specify what exactly that custom or policy was.” McTernan v. City of
York, 564 F.3d 636, 658 (3d Cir. 2009). If a plaintiff alleges that he or she was harmed by a
custom, as opposed to a formally enacted policy, “[c]ustom requires proof of knowledge and
acquiescence by the decisionmaker.” Id. Failure “to allege conduct by a municipal
decisionmaker” is “fatal” to a Monell claim. Id.; Santiago v. Warminster Twp., 629 F.3d 121,
135 & n.11 (3d Cir. 2010) (noting that a plaintiff has “the obligation to plead in some fashion
that [the decisionmaker] had final policy making authority, as that is a key element of a Monell
claim”). In addition, a plaintiff must establish causation by properly pleading that the

23

municipality’s policy or custom “was the source of [his or] her injury.” Santiago, 629 F.3d at
135.
Plaintiff makes the following claims against PrimeCare:
1.

A claim for cursory intake process done by Nurse Moiyallay as policy or custom.
Am. Compl. ¶ 10. As support for this claim, plaintiff alleges that Nurse
Moiyallay did intake questions at the prison and plaintiff informed her of the
incident occurring at his arrest as well as his pre-existing condition from a work
accident. He also informed her of his prescribed medication and because of the
nature of the medication, he was sent to medical for medical observation. Compl.
Mem., p. 1, lines 19–22.

2.

A claim for “custom or policy of indifference to a basic human need
hygiene/showers to inmates.” Am. Compl. ¶ 25. Plaintiff alleges that even after
defecating on himself on December 28, 2014, during a confrontation with the
guards, he was not given a shower until December 29, 2014. Compl. Mem., p. 2,
line 13.

3.

A claim for the policy allowed in taking J-Block’s sick call request which does
not ensure inmates reports or request for medical attention. Am. Compl. ¶ 141.

4.

A claim for the custom of influencing the care of inmates when they may have
been subject to force by the correctional officers at Chester County Prison. Id. ¶
145.

5.

A claim for the policy or custom of how inmates request and receive grievances,
which is inadequate. Id. ¶ 146.

Under the aforementioned standards, these allegations are simply inadequate to set forth a
claim of Monell liability against PrimeCare. As to claims one and two above, although plaintiff
uses the buzzwords of “custom” and “policy,” he neither alleges sufficient facts indicating the
existence of such a policy or custom nor identifies a municipal policymaker. See Buoniconti v.
City of Phila., 148 F. Supp. 3d 425, 437 (E.D. Pa. 2015) (“[T]o survive Defendants’ motion to
dismiss, Plaintiff must have set forth sufficient facts indicating a policy or custom of the City.”)
Thus, these allegations constitute nothing more than an attempt to impose vicarious liability on
PrimeCare for the actions by individual defendants. As to the third claim above, plaintiff points

24

to no facts in his amended complaint or his complaint memorandum that describe any instance
wherein he was denied a sick call request while on J-Block. To the contrary, plaintiff describes
numerous instances of requesting and being granted visits to medical during which time he
received medical care, albeit not always the precise care he desired. As to claim number four, I
am unable to decipher any policy or custom underlying plaintiff’s allegation of “influencing the
care of inmates,” and plaintiff offers no further explanation. Finally, in claim number five,
plaintiff complains of a policy influencing the request and receipt of grievances—a task that is
beyond the scope of PrimeCare’s duties in the prison. 7
Absent some identification of some facts underlying the alleged custom or policy that
directly caused the alleged constitutional transgressions, 8 plaintiff has failed to adequately plead
7

Plaintiff’s response to the motion to dismiss concedes that the process in which to get a
medical grievance is through Mr. Jack Healy, who is not an employee of PrimeCare. Pl.’s Resp.
Opp’n Mot. to Dismiss, ECF No. 98, at 6. To the extent plaintiff is referring to the request and
receipt of his medical files, plaintiff specifically alleges that when he wanted to inspect his
medical history and medical files, he wrote to PrimeCare which provided him with instructions
on the procedure of how to do so. Compl. Mem., p. 11, lines 7–8.
8

In his response in opposition to the motions to dismiss, plaintiff argues:
Primecare is subject to Monell due to having Doctors who have
Authoritative positions who allowed the constitutional violation
that are asserted. For example, why was plaintiff and another
Hispanic inmate; Kenneth Santos the only ones denied shower in
the medical housing area. This is grounds for equal protection
claims under § 1985. For example why was plaintiff’s wound not
treated but other similarly situated inmates wounds treated,
cleaned, and rebandaged? [T]his is grounds for equal protection
violation of medical care. For example why does Primecare have a
policy that a inmate must see a nurse and pay for 3 visits to the
nurse before seeing a Physician Assistant? This is grounds for
liability under Monell. For example why did not the treating PA’s
look into plaintiff’s pleas of back pain history so that they could
treat him and make an informed decision, instead of ignoring an
established condition for 9 months. These are the issues that the
defendant seem to overlook in an attempt to avoid liability and
responsibility for th[ei]r actions.
25

Monell liability against PrimeCare. Therefore, I will grant defendants’ motion to dismiss this
claim.
E.

Claims Under 42 U.S.C. §§ 1985 and 1986

Finally, plaintiff alleges that all of the medical defendants are subject to liability under 42
U.S.C. §§ 1985 and 1986. The medical defendants again move to dismiss. I agree and will
dismiss these claims with prejudice.
To maintain a § 1985 cause of action, a plaintiff must establish: (1) a conspiracy by the
defendants; (2) that the conspiracy was designed to deprive plaintiff of the equal protection of
the laws or equal privileges and immunities; (3) the commission of an overt act in furtherance of
that conspiracy; (4) a resultant injury to person or property or a deprivation of any right or
privilege of citizens; and (5) that defendants’ actions were motivated by a racial or otherwise
class-based invidiously discriminatory animus. Litz v. Allentown, 896 F. Supp. 1401, 1414
(E.D. Pa. 1995). “To withstand a motion to dismiss, a complaint alleging a civil rights
conspiracy should identify with particularity the conduct violating plaintiffs’ rights, the time and
place of these actions, and the people responsible therefor.” DeJohn v. Temple Univ., No. 06778, 2006 WL 2623274, at *5 (E. D. Pa. Sept. 11, 2006), quoting Boddorff v. Publicker Indus.,
Inc., 488 F. Supp. 1107, 1112 (E.D. Pa. 1980). In addition, specific allegations of an agreement
to carry out the alleged chain of events are essential in stating a claim for conspiracy. Spencer v.
Steinman, 968 F. Supp. 1011, 1020 (E.D. Pa. 1997). “It is not enough that the end result of the

Pl.’s Resp. Opp’n Mot. to Dismiss, ECF No. 98, at 2–3 (underlining in original). None of these
theories of Monell liability are included in plaintiff’s amended complaint. Having had the
opportunity to amend his complaint, and having filed a sixteen-page amended complaint with
allegations against sixty defendants, plaintiff may not now raise new theories of Monell liability
in his response to the second round of motions to dismiss. In any event, these arguments simply
attempt to impose vicarious liability on PrimeCare rather than properly setting forth a policy,
custom or practice that caused the alleged constitutional violations.
26

parties’ independent conduct caused plaintiff harm or even that the alleged perpetrators of the
harm acted in conscious parallelism.” Id. Finally, the element of class-based animus is essential
to a proper § 1985 claim. Robison v. Canterbury Village, Inc., 848 F.2d 424, 430 (3d Cir. 1988);
Pratt v. Thornburgh, 807 F.2d 355, 357 (3d Cir. 1986) (“As to the claim founded on 42 U.S.C.
§1985(3), we need only say that it was properly denied since it is not alleged that the conspiracy
involved in that count was motivated by a racial or class-based animus.”).
Plaintiff sets forth two section 1985 claims against the medical defendants as follows:
1.

A claim against CO Riggins and Nurse Cotton for agreeing upon behavior that
violated plaintiff’s rights to be free from involuntary medication. Am. Compl., §
1985 ¶ 2.

2.

A claim against the CEU team and medical staff on December 28, 2014 for
further denying plaintiff hygiene supplies/shower after plaintiff defecated on
himself. Am. Compl., § 1985 ¶ 4.

Absent from plaintiff’s amended complaint are any specific allegations of an agreement to carry
out these actions. Moreover, plaintiff has not put forth any allegations from which I can infer
that these actions were motivated by any racial or class-based animus. Accordingly, I dismiss
these claims with prejudice.
The dismissal of plaintiff’s § 1985 claim necessitates the dismissal of his § 1986 claim.
Under 42 U.S.C. § 1986:
Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in the preceding section [42
U.S.C. § 1985], are about to be committed, and having power to
prevent or aid in preventing the commission of the same, neglects
or refuses so to do, if such wrongful act be committed, shall be
liable to the party injured, or his legal representatives, for all
damages caused by such wrongful act, which such person by
reasonable diligence could have prevented; and such damages may
be recovered in an action on the case; and any number of persons
guilty of such wrongful neglect or refusal may be joined as
defendants in the action.

27

42 U.S.C. § 1986. Because § 1986 claims are derived from § 1985 claims, if a plaintiff fails to
state a § 1985 claim, his § 1986 claim also fails. Koorn v. Lacey Twp., 78 F. App’x 199, 208 (3d
Cir. 2003) Hilton v. Whitman, No. 04-6420, 2008 WL 5272190, at *11–12 (D.N.J. Dec. 16,
2008). Accordingly, defendants’ motion to dismiss this claim will be granted as well.
IV.

Motion to Dismiss by the Chester County Defendants
The final motion to dismiss plaintiff’s amended complaint comes from the Chester

County Defendants, which include the County of Chester, Cpl. Michael Marconi, Officer Troy
Daniels, Sgt. Yaroslav Yancik, CO Wilson, CO Valerie McCormack, CO Joseph Moore, Cpl.
Preston Whitesell, Cpl. Jose Garcia, Lt. P. Steve Sergi, Lt. David Ham, Lt. Edson Forbes, Capt.
Morgan Taylor, Warden D. Edward McFadden, Capt. Harry Griswold, Lt. Robert Mastnjak, Sgt.
Donald Muller, Sgt. Golden English, CO Randy Little, CO Kenneth Klinger, CO David Haines,
Capt. Ocie Miller, Capt. Pamela Saunders, Capt. Gene Farina, Major D. Scott Graham, CO
Powers, Deputy Warden Walter Reed, Counselor Jorge Vazquez, CO Weed, Corporal Ca’role
White, Lt. James Brooks, Sgt. Michael Young, Sgt. Arnold Lynch, CO Raymond Riggins (and/or
Riggens), CO (CEU) Teary, Director of Treatment Services Jack Healy, Corporal James Svah,
CO Jesus Ruiz, CO Domonique Bemberry, CO Wesley Suydum, CO Weed, Officer Stevenson,
Work Supervisor Robert Francis, Chester County Detectives Office, Detective Robert Balcunis,
Detective David Grandizio and Detective Ken Beam. For the reasons set forth below, I will
grant this motion in part and deny it in part.
A.

Municipal Liability Claim Against Chester County

Plaintiff first alleges a municipal liability claim against Chester County for: (1) its policy
or custom of use of zip ties when detaining people and (2) the use of dynamic entry by its
officers. Am. Compl. ¶¶ 4–5. In support of this claim, however, plaintiff provides absolutely no

28

factual allegations. Although plaintiff discusses actions by Officers Williams and Jones, both of
whom work for township police departments located in Chester County, he does not allege that
these officers used zip ties or dynamic entry. Absent some factual underpinning for this claim,
plaintiff cannot establish that these alleged policies resulted in any violation of his constitutional
rights. Therefore, I dismiss this claim.
B.

Fourteenth Amendment Delay in Medical Treatment

Plaintiff next contends that he was denied medical care during his arrest by Detectives
Balchunis, Beam and Grandizio. A deliberate indifference standard under the Due Process
Clause of the Fourteenth Amendment applies to an individual’s claim for inadequate medical
care during the course of an arrest. See Smith v. Gransden, 553 F. App’x 173, 177 (3d Cir.
2014); Suarez v. City of Bayonne, 566 F. App’x 181, 187 (3d Cir. 2014). In order to succeed on
such a claim, a plaintiff must provide evidence of a serious medical need and acts or omissions
by arresting officers indicating deliberate indifference to those needs. Bocchino v. City of
Atlantic City, 179 F. Supp. 3d 387, 406 (D.N.J. 2016).
As with Officers Jones and Williams, discussed above, plaintiff alleges that during the
course of his arrest, Detectives Balchunis, Grandizio and Beam failed to give on site medical
attention and unnecessarily delayed in his medical treatment. 9 Am. Compl. ¶¶ 6–7. Specifically,
Officers Jones and Williams punched, kicked and tased plaintiff. Compl. Mem., p. 1, lines 1–8.
He had bruising, swelling, blood coming out of his ear and scuff marks on his left cheek, and he
required stitches and a finger cast for swelling in his hand. Id. at p. 1, lines 8–11. He was turned

9

Plaintiff brings these claims under the Eighth Amendment. The Eighth Amendment, as
noted above, only applies to those in confinement. These particular claims are governed by the
Fourteenth Amendment.
29

over to the Chester County Detectives Balchunis, Grandizio and Beam who, “upon [his] medical
request, prolonged and delayed [his] medical treatment.”
These allegations fail to state a viable Fourteenth Amendment claim. Immediately
following the allegations regarding his injuries, plaintiff concedes that he was brought to the
prison medical unit where he received treatment for his injuries. Compl. Mem., p. 1, lines 15–
23. Based on plaintiff’s factual assertions, I can draw no reasonable inference either that the
Detectives’ acts or omissions demonstrated deliberate indifference to his medical needs.
Accordingly, I dismiss these claims. 10
C.

Eighth Amendment Excessive Force Claims

When analyzing an excessive force claim under the Eighth Amendment, the court must
determine “whether the force was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475
U.S. 312, 320–21 (1986) (citations omitted). In determining whether a correctional officer has
used excessive force in violation of the Eighth Amendment, courts look to several factors
including: (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
facts known to them; and (5) any efforts made to temper the severity of the forceful response.
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000), citing Whitley, 475 U.S. at 321. “Therefore,
de minimis injuries do not necessarily establish de minimis force.” Smith v. Mensinger, 293 F.3d
641, 649 (3d Cir. 2002). When there are two different accounts of an incident, there remains “an
10

Plaintiff also brings a claim against Detectives Grandizio and Balchunis for
impermissibly sending a photo of plaintiff to Nurse Cotton. Am. Compl. ¶ 8. I cannot discern
any constitutional violation from this factual allegation and plaintiff has not elaborated any
further on this claim. I will therefore dismiss it.
30

issue of fact to be resolved by the fact finder based upon the totality of the evidence; it is not an
issue of law a court can decide.” Id.
Plaintiff’s amended complaint sets forth two instances of excessive force by several of
the Chester County defendants. First, plaintiff claims that Cpl. Marconi, CO Daniels and the cell
extraction unit team used excessive force against him on December 28, 2014. Am. Compl. ¶¶
20, 22, 23, 24. On that date, plaintiff was knocking on his door requesting “hygiene” when CO
Daniels got vulgar and called a cell extraction unit team. He purportedly complied with the team
members, but an officer aimed a pepper pistol at him. Although he followed orders to lie down,
he was shocked with a shield until he urinated and defecated. His wrist was then twisted and he
was lifted by his wrists, instead of his shoulder, resulting in serious shoulder pain. He was then
stripped, placed in a restraint chair and, while strapped in, choked by Cpl. Marconi. CO Daniels
subsequently cited plaintiff for these events. Compl. Mem., p. 2, lines 3–12.
The second alleged incident involving Sgt. Yancik, Cpl. Whitesell, CO Moore and Cpl.
Garcia occurred on January 4, 2015. Am. Compl. ¶¶ 41–44. The day prior, Sgt. Yancik escorted
plaintiff from the restricted housing unit to the medical unit. Compl. Mem., p. 4, lines 14–15.
When he entered the nurses’ office, plaintiff told the nurse that he got eighty days in “the hole”
because of Sgt. Yancik’s lying about his actions. Yancik jumped in the conversation and
threatened to get plaintiff more time until the nurse calmed the two men down. Id. at lines 16–
20. Later that shift, Yancik came into his cell and threatened plaintiff with violence. Id. at lines
20–24. The following day, after Cpl. Whitesell escorted plaintiff back to his cell from medical,
Whitesell grabbed plaintiff, who was handcuffed in front, and threw him into the bunk stating
plaintiff “wanted to play.” Id. at p. 5, lines 2–4. The cuffs impacted on plaintiff’s chest and
wrist and he was slammed to the floor injuring his knee. Id. at lines 4–5. Even though plaintiff

31

gasped for air, said he could not breathe and stated “y’all gonna hurt me with cuffs on,” Cpl.
Whitesell told plaintiff to “shut up and kiss the floor like a good b**ch, f***ing pussy” while
kicking him in the ribs and punching him in the body. Id. at lines 5-8. CO Moore then punched
him in his head and placed his full weight on his neck and jaw area. Id. at lines 8–10. For a
moment, plaintiff blacked out until Cpl. Garcia twisted his hands and wrists and stomped down
on his cuffed wrist causing pain and cutting his wrists. Id. at lines 10-12. Plaintiff struggled to
stand up as they took the cuffs off, “forcefully placing a foot on the cell door to pull,” and Cpl.
Whitesell bent his thumb back purposefully. Id. at lines 12–15.
In an attempt to have these claims of excessive force dismissed, defendants contend that
exhibits B and D of the amended complaint place the account in the proper context and show that
the reason for the force was not the wanton infliction of pain, but rather “to keep Plaintiff from
injuring himself and others and to maintain order.” Chester Cnty Defs.’ Mem. Supp. Mot to
Dismiss, ECF No. 90-1, at 9. At best, however, these exhibits simply reflect a factual dispute as
to the precise course of events. On a motion to dismiss, I am obligated to take all properly plead
factual averments in the complaint as true. Doing so, I can reasonably infer, under a totality of
the circumstances analysis, that the officers maliciously inflicted force on plaintiff without
genuine need and without any effort to temper the severity of their actions. See Mesinger, 293
F.3d at 649 (“Punching and kicking someone who is handcuffed behind his back and under the
control of at least six prison guards as he is being thrown into cabinets and walls is ‘repugnant to
the conscience of mankind,’ absent the extraordinary circumstances necessary to justify that kind
of force.”). As plaintiff has adequately pled an Eighth Amendment claim of improper use of
excessive force against defendants Marconi, Daniels, the CEU team, Yancik, Moore, Whitesell, I
will deny the motion to dismiss these claims.

32

D.

Eighth Amendment Conditions of Confinement Claims

A substantial number of plaintiff’s claims allege cruel and unusual conditions of
confinement under the Eighth Amendment. As set forth above, the Eighth Amendment
prohibition against cruel and unusual punishment demands that prison officials do not house
inmates under conditions that deprive them of one or more basic human needs, such as
reasonable safety, adequate physical space and the need for some degree of ventilation and fresh
air. Helling v. McKinney, 509 U.S. 25, 32 (1993). It does not, however, mandate that prisons be
free of discomfort and prisons may be “restrictive and even harsh.” Farmer, 511 U.S. at 833,
quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “No static test determines whether
conditions of confinement are ‘cruel and unusual.’ These terms must ‘draw [their] meaning from
the evolving standards of decency that mark the progress of a maturing society.’” Tillery v.
Owens, 719 F. Supp. 1256, 1261 (W.D. Pa. 1989), citing Rhodes, 452 U.S. at 346. Conditions
that cannot be said to be cruel and unusual under contemporary standards are not
unconstitutional. Rhodes, 452 U.S. at 347.
Plaintiff sets forth numerous types of Eighth Amendment violations. I review each
category individually.
1.

Verbal Harassment

A multitude of plaintiff’s claims against defendants involve the defendants’ alleged
verbal harassment of plaintiff as follows:
•

A claim against Daniels for harassment of plaintiff during his medical appointment. Am.
Compl. ¶ 38; Compl. Mem., p. 4, lines 15–20.

•

A claim against Yancik for threatening plaintiff with physical harm on January 3, 2015
by telling him “do something so I can f**k you up” and “you gonna get yours anyway.”
Am. Compl. ¶ 39; Compl. Mem., p. 4, lines 23–35.

•

A claim against Daniels for harassing plaintiff. Am. Compl. ¶ 69.
33

•

A claim against Svah for harassing plaintiff on February 9, 2015, by giving him a hard
time about getting books from the law library and filing a grievance. Id. ¶ 78; Compl.
Mem., p. 8, lines 14–17.

•

A claim against Powers for harassment on February 17, 2015 by telling him he did not
submit a law library request. Am. Compl. ¶ 83; Compl. Mem., p. 8, lines 20–22.

•

A claim against Sgt. English for threatening plaintiff on April 24, 2015 with bodily harm.
Am. Compl. ¶ 108.

•

A claim against CO Haines and CO Klinger for discussing plaintiff’s business with other
inmates. Id. ¶¶ 113–14.

•

A claim against CO Powers for harassing plaintiff in front of other inmates regarding
plaintiff’s legal status and information on August 15, 2015. Am. Compl. ¶ 134; Compl.
Mem., p. 14, lines 4–5.
“Verbal harassment of a prisoner, without more, does not violate the Eighth

Amendment.” Brown v. Deparlos, 492 F. App’x 211, 215 (3d Cir. 2012), citing McBride v.
Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) and DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000). A prisoner’s rights are not violated when prison guards direct towards him racially
derogatory or sexually explicit language, vulgarity, profane and offensive name-calling or idle
and laughing threats. Kirk v. Roan, No. 04-1990, 2006 WL 2645154, at *4 (M.D. Pa. Sept. 14,
2006) (citing cases). Given this principle, I must dismiss plaintiff’s verbal harassment claims.
2.

Failure to Protect/Intervene

Plaintiff also brings failure to protect and failure to intervene claims against defendants
Riggens, Daniels, Yancik, Moore, Garcia, Klinger, Sergi, Taylor, McFadden, Vasquez, Little,
Bemberry, Forbes, Taylor, Furina, Graham and all high-ranking officers in the prison. I find no
merit to all but one of these claims.
“Being violently assaulted in prison is simply not part of the penalty that criminal
offenders pay for their offenses against society.” Farmer, 511 U.S. at 834 (quotation marks

34

omitted). Therefore, the Eighth Amendment imposes on prison officials “a duty to protect
prisoners from violence . . . .” Id. at 833 (quotations omitted). To prevail on an Eighth
Amendment failure to protect claim, a plaintiff is required to show that (1) he is incarcerated
under conditions posing a substantial risk of serious harm (the objective element); and (2) prison
officials acted with deliberate indifference, i.e., that prison officials knew of and disregarded an
excessive risk to inmate health or safety (the subjective element). Id. at 834.; see also Griffin v.
DeRosa, 153 F. App’x. 851 (3d Cir. 2005). “[T]he 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 838. “[A]n officer’s failure to alleviate a
significant risk that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.” Id. An officer is only
liable for failure to protect an inmate from another officer’s excessive use of force “if there is a
realistic and reasonable opportunity to intervene.” Mensinger, 293 F.3d at 650–51.
Plaintiff alleges a claim against CO Riggens for failing to protect plaintiffs from the
illegal administration of involuntary medication on December 26, 2014. Am. Compl. ¶ 15;
Compl. Mem., p. 1 line 26–p. 2 line 2. This claim is meritless. The Constitution accepts a de
minimis amount of force so long as it is not “repugnant to the conscience of mankind.” Hudson
v. McMillian, 503 U.S. 1, 8–9 (1992) (quotations omitted). “[I]solated and unauthorized
incidents do not violate the Eighth Amendment.” Barber v. Grow, 929 F. Supp. 820, 823 (E.D.
Pa. 1996). “[C]ourts in this district have frequently dismissed claims for their failure to allege
more than minimal injury or the requisite state of mind.” Id. (citing cases). Based on plaintiff’s
cursory allegations, I cannot find that the administration of a single shot of medication involved a
substantial risk of serious harm.

35

Plaintiff brings a claim against CO Daniels for failing to protect plaintiff and
unnecessarily calling the cell extraction unit team. Am. Compl. ¶ 19. On December 28, 2014,
while plaintiff was knocking on his cell door requesting hygiene from Daniels and called for a
cell extraction unit team. Compl. Mem., p. 2, lines 4–6. Although the excessive force claim
against the cell extraction team members remains viable, plaintiff has not alleged that CO
Daniels was involved in the use of force, knew that such use of force was going to occur or had a
reasonable opportunity to intervene.
Plaintiff alleges that Sgt. Yancik failed to protect him by not directing CO Daniels to
cease his harassment of plaintiff during plaintiff’s medical appointment on January 8, 2015. Am.
Compl. ¶ 40. Sgt. Yancik had escorted plaintiff to his medical appointment and CO Daniels was
taunting him and Yancik did nothing. Compl. Mem., p. 4, lines 14–19. Like the claim against
Officer Riggens, this claim alleges neither any real injury nor the requisite state of mind.
Plaintiff sets forth a claim against CO Moore and Cpl. Garcia for failing to protect
plaintiff from Cpl. Whitesell on January 4, 2015. Am. Compl. ¶¶ 45, 46. Plaintiff explains that
when Whitesell attacked plaintiff, Moore and Garcia did nothing and, in fact, contributed to the
beating. Compl. Mem., p. 5, lines 8–15. Based on plaintiff’s detailed allegations about the
attack and the remaining excessive force claim, one can make the reasonable inference that these
defendants were aware of the force and had an opportunity to intervene, but did not. Therefore,
the failure to protect/intervene claims against Moore and Garcia survive Rule 12(b)(6) review.
Plaintiff also brings a claim against CO Klinger for failure to protect plaintiff from the
attack by Whitesell, Garcia and Moore on January 4, 2015. Am. Compl. ¶ 47. Specifically, he
notes that after the attack, plaintiff began requesting medical and Klinger told him to “shut up
and rest my neck” and then called more officers to “come get [him].” Compl. Mem., p. 5, lines

36

15–17. Plaintiff does not allege that Klinger was aware of any facts prior to the attack that
would have alerted him to the substantial risk of harm and on which he could have acted.
Therefore, this claim must be dismissed.
Plaintiff contends that Lt. Sergi, Cpt. Taylor and Warden McFadden are liable under a
failure to protect theory for not investigating plaintiff’s claims of being assaulted on January 4,
2015. Am. Compl. ¶¶ 53–55, Compl. Mem., p. 6, lines 7–10. These allegations, however, do
not set forth a failure to protect claim. “[A]n allegation that an official ignored an inmate’s
request for an investigation or that the official did not properly investigate is insufficient to hold
that official liable for the alleged violations.” Padilla v. Beard, No. 06-478, 2006 WL 1410079,
at *6 (M.D. Pa. May 18, 2006); see also Horan v. Wetzel, No. 13-140, 2014 WL 631520, at *7
(M.D. Pa. Feb. 18, 2014) (“Generally, an allegation of failure to investigate an event after the
fact, without another recognizable constitutional right, is not sufficient to sustain a § 1983
claim.”). Plaintiff does not claim that these defendants had any contemporaneous knowledge of
the attack or approved the use of such force. Absent such facts, this claim must be dismissed.
Plaintiff alleges a claim against Counselor Vasquez for failing a duty to protect plaintiff
from a deprivation of property interest. Am. Compl. ¶ 82. He offers no further explanation for
this claim. Moreover, a property interest does not equate to a serious risk of harm necessary to
establish a failure to protect claim. Therefore I will dismiss this claim.
Plaintiff next sets forth a claim against CO Little for failing to protect plaintiff from Cpl.
Svah’s harassment of plaintiff when entering plaintiff’s cell on February 19, 2015. Am. Compl.
¶ 87. Plaintiff alleges that after he submitted grievances, Cpl. Svah and CO Little entered his cell
and told him he was not getting any more law library and “f**k a grievance, [he] can asked but

37

ain’t getting sh**.” Compl. Mem., p. 8, lines 23–26.) These facts assert only verbal harassment
and do not give rise to a reasonable inference that any substantial risk of harm existed.
Plaintiff alleges a claim against CO Bemberry for “not addressing the inmates’ issues”
properly on March 21, 2015 and “failing a duty to protect.” Am. Compl. ¶ 104. When inmate
Debellis told Bemberry about feeling suicidal, Bemberry replied “have fun.” Compl. Mem., p. 9,
lines 25–26. Plaintiff, however, has no standing to bring a claim on behalf of another inmate.
Horan, 2014 WL 631520, at *17. Therefore, I do not have jurisdiction not have jurisdiction to
consider this claim.
Finally, plaintiff brings a claim against Lt. Forbes, Cpt. Furina, Cpt. Taylor, Major
Graham and Warden McFadden for failing to protect plaintiff’s due process rights despite being
informed of others’ harassment of him. Am. Compl. ¶ 111. Specifically, plaintiff claims that he
wrote a grievance to these defendants on April 26, 2015, but only received a response from Cpt.
Taylor denying the grievance. Compl. Mem., p. 10, lines 17–19. As set forth above, however,
“[a]n allegation that an official ignored an inmate’s request for an investigation or that the
official did not properly investigate is insufficient to hold that official liable for the alleged
violations.” Padilla, 2006 WL 1410079, at *6.
In light of the foregoing, I will not dismiss the claims against CO Moore and Cpl. Garcia
for failure to protect plaintiff in connection with the attack by Whitesell. I will, however,
dismiss the remainder plaintiff’s failure to protect claims with prejudice.
3.

Denial of Hygiene/Shower

Plaintiff’s next category of Eighth Amendment conditions claims alleges denials of
hygiene supplies or showers. Plaintiff sets forth the following claims:
•

From December 26, 2014 to December 29, 2014, plaintiff was not given a shower. On
December 26, 2014, Officer Riggens ignored his request for a shower. Am. Compl. ¶ 13;
38

Compl. Mem., p. 1, lines 25–26. On December 28, 2014, CO Daniels denied his request
for a shower. Am. Compl. ¶ 19; Compl. Mem., p. 2, lines 2–4.
•

Failure of CEU team to allow plaintiff a shower and hygiene supplies after he defecated
on December 28, 2014. Am. Compl. ¶ 37.

•

Failure of CO Wilson and CO McCormick to ensure that plaintiff got a shower between
December 26, 2014 and December 29, 2014. Id. ¶¶ 28, 29.

•

Denial of shower and hygiene by Officer Yancik. Id. ¶ 27. During one of his checkups
in medical, plaintiff requested hygiene supplies and a shower, but Officer Yancik denied
his request. Plaintiff pointed out that Yancik was chewing tobacco and said “just because
[you] got that tobacco doesn’t mean I don’t wanna brush my teeth.” Yancik supposedly
got upset about that comment. Compl. Mem., p. 2, lines 17–22.

•

Denial of hygiene by Officer Weed. Am. Compl. ¶ 142. On March 2, 2015, Weed
“denied [plaintiff] his legal bag and hygiene after [his] food tray was missing food and he
wouldn’t call for it.” Compl. Mem., p. 15, lines 18–20.
These claims do not give rise to any constitutional violation. As noted above, the Eighth

Amendment 11 requires that prison officials provide “humane conditions of confinement”
including adequate food, clothing, shelter and medical care. Farmer, 511 U.S. at 832. “[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.” Id. at 837.
The Eighth Amendment does not require that inmates receive frequent showers.
DiFilippo v. Vaughn, No. 95-909, 1996 WL 355336, at *5 (E.D. Pa. Jan. 24, 1996). An
extended delay in receipt of a shower, while seemingly harsh, does not give rise to a
constitutional deprivation. See, e.g., Barndt v. Wenerowicz, No. 15-2729, 2016 WL 6612441, at

11

Plaintiff actually brings these claims under the Fourteenth Amendment. As he was
confined at the time, however, the proper constitutional provision is the Eighth Amendment.
39

*1 (E.D. Pa. Nov. 8, 2016) (denial of shower for twenty-eight days not a constitutional
violation); Briggs v. Heidlebaugh, No. 96-3884, 1997 WL 318081, at *2 (E.D. May 21, 1997)
(denial of shower for two weeks not a constitutional violation); Tinsley v. Vaughn, No. 90-0113,
1991 WL 95323, at *4 (E.D. Pa. May 29, 1991) (suspension of shower privileges for twelve days
does not violate the Eighth Amendment).
According to plaintiff’s amended complaint, defendants denied him a shower for a
maximum of four days. While such a situation may not be entirely pleasant, particularly if
plaintiff had soiled himself in some fashion, I cannot find that defendants’ actions violated the
Eighth Amendment. Therefore, I will dismiss this claim with prejudice.
4.

Deliberate Indifference to Medical Need

Plaintiff’s list of alleged Eighth Amendment violations includes two claims of deliberate
indifference to medical need or interference with medical treatment. As set forth above, the
Eighth Amendment proscription against cruel and unusual punishment requires that prison
officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103
(1976). In order to set forth a cognizable claim, an inmate must allege (i) a serious medical need
and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need. Id.
at 104. “A medical need is ‘serious,’ in satisfaction of the second prong of the Estelle test, if it is
‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor’s attention.’” Monmouth Cnty.
Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quotations omitted).
Deliberate indifference occurs where prison guards intentionally deny or delay an inmate’s
access to medical care or intentionally interfere with the treatment once prescribed. See United

40

States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.3 (3d Cir. 1979), citing Estelle, 429
U.S. at 104–05.
Plaintiff first sets forth a claim against CO Klinger and Cpl. White for deliberate
indifference to plaintiff’s medical need after he was injured. Am. Compl. ¶¶ 48–49. Following
the alleged excessive force by Whitesell, Moore and Garcia on January 4, 2015, plaintiff
requested medical treatment. CO Klinger “not only told [him] to ‘shut up and rest [his] neck’ but
call[ed] more officers to ‘come get [him].’” Compl. Mem., p. 5, lines 15–17. A group of COs
came to his cell, including Cpl. White, and “[a]fter [a] delay,” plaintiff was taken to medical and
treated. Id. at p. 5, lines 17–23. Such a claim does not rise to the level of a constitutional
violation. Even assuming that plaintiff had a serious medical need that required medical
attention, plaintiff admits that he was taken to the medical unit that day, was treated and given an
x-ray. Id. at p. 5, lines 19–23. Plaintiff’s disagreement with the type of care he received while in
the medical unit does not suggest that the prison guards who brought him there on the same day
his injuries occurred were deliberately indifferent to his need for medical care. Accordingly,
defendants’ motion to dismiss this claim is granted.
Plaintiff’s second claim alleges that Lt. Mastnjak interfered with plaintiff’s medical
treatment on January 9, 2015. Am. Compl. ¶ 64. On January 9, 2015, plaintiff passed out with a
fever and profuse sweating and was hyperventilating. When medical said he might need to be
sent to the hospital, Lt. Mastnjak and others stated that he might still have injuries from an
incident with the COs on January 4, 2015. Compl. Mem., p. 6, lines 19–22. Nurse Lisa asked if
he was in pain from the incident and when he said “yes,” “they” put him in a room without
further attention for some time. Id. at p. 6, lines 23–28. He ended up staying in the medical unit
for treatment until January 11, 2015. Id. at p. 6, line 25–p. 7, line 10.

41

Such allegations allow no reasonable inference that Lt. Mastnjak interfered with or was
deliberately indifferent to plaintiff’s medical needs. “‘[A] non-medical prison official’ cannot
‘be charge[d] with the Eighth Amendment scienter requirement of deliberate indifference’ when
the ‘prisoner is under the care of medical experts’ and the official does not have ‘a reason to
believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not
treating) a prisoner.’” Pearson v. Prison Health Serv., ___ F.3d ___, 2017 WL 892371, at *11
(3d Cir. Mar. 7, 2017), quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Indeed,
plaintiff specifically alleges that he was already in the care of medical officials, meaning that
Mastnjak did not deny or delay his access to medical treatment. Therefore, I will dismiss this
claim.
5.

Other “Conditions of Confinement” Claims

Finally, plaintiff’s amended complaint sets forth a litany of other “conditions of
confinement” claims that do not lend themselves to any broad categorization. Because the
Eighth Amendment does not mandate that prisons be free of discomfort, Farmer, 511 U.S. at
832, a plaintiff setting forth an Eighth Amendment claim must show that he has been deprived of
“the minimal civilized measure of life’s necessities.” Griffin v. Vaughn, 112 F.3d 703, 709 (3d
Cir. 1997), quoting Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992). This includes showing
that the conditions of his confinement pose “a substantial risk of serious harm” to his health or
safety. Farmer, 511 U.S. at 834. “In reviewing this type of claim, courts have stressed the
duration of the complainant’s exposure to the alleged unconstitutional conditions and the ‘totality
of the circumstances’ as critical to a finding of cruel and inhumane treatment.” Caldwell v.
Luzerne County Corr. Facility Mgmt. Emps., 732 F. Supp. 2d 458, 470–71 (M.D. Pa. 2010),

42

citing Rhodes v. Chapman, 452 U.S. 337, 362–63 (1981). As explained by the United States
Supreme Court:
Some conditions of confinement may establish an Eighth
Amendment violation “in combination” when each would not do
so alone, but only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need such
as food, warmth, or exercise—for example, a low cell temperature
at night combined with a failure to issue blankets . . . . To say that
some prison conditions may interact in this fashion is a far cry
from saying that all prison conditions are a seamless web for
Eighth Amendment purposes. Nothing so amorphous as “overall
conditions” can rise to the level of cruel and unusual punishment
when no specific deprivation of single human need exists.
Wilson v. Seiter, 501 U.S. 294, 304–05 (1991) (internal citations omitted) (emphasis in original);
see also Tillery v. Owens, 907 F.2d 418, 427 (3d Cir. 1990) (elaborating on factors to be
considered, including “food, medical care, sanitation, control of vermin, lighting, heating,
ventilation, noise level, bedding, furniture, education and rehabilitation programs, safety and
security and staffing”), citing Peterkin v. Jeffes, 855 F.2d 1021, 1025–26 & n.7 (3d Cir. 1988).
Plaintiff’s claims are as follows:
•

A claim against CO Riggens for the involuntary administration of medication to
plaintiff. Am. Compl. ¶¶ 14, 16. On December 26, 2014, after plaintiff
repeatedly requested hygiene from CO Riggens, Riggens waived a needle
“tauntingly” in front of plaintiff. A unit came, took plaintiff out of his cell,
stripped him and involuntarily shot him with a needle of medication before giving
him a smock. Compl. Mem., p. 1 line 26–p. 2, line 3.

•

A claim against CO Riggens and others for the involuntary strip set forth above.
Am. Compl. ¶ 17.

•

A claim against CO Daniels for abuse of his position in fabricating plaintiff’s
efforts to harm himself. Id. ¶ 31. Daniels allegedly claimed that plaintiff was
banging his head on the window, which he later admitted was not true. This
allegation resulted in the cell extraction unit being called to forcefully put plaintiff
in a restraint chair. Compl. Mem., p. 3, line 24–p. 4, line 3.

•

A claim against Mr. Francis for not doing anything about repeated complaints
regarding the food being served by the kitchen. Am. Compl. ¶ 99. Even after Mr.
43

Francis was notified about the problems and promised that the food would get
better, the next set of trays that came to J-Block were all under-portioned and
cold. Compl. Mem., p. 9, lines 7–11.
•

A claim against CO Haines for leaving the hot water running in the closet,
depriving inmates of hot water or pressure for the showers on March 11, 2015.
Am. Compl. ¶ 100; Compl. Mem., p. 9, lines 14–17.

•

A claim against Cpl. Garcia for serving plaintiff’s food to another inmate on April
16, 2015. Am. Compl. ¶ 107. Specifically, on April 16, 2015, Garcia gave
plaintiff’s bowl of salad to inmate Flamet and stated “f**k him” when Flamet said
it was plaintiff’s. Compl. Mem., p. 10, lines 9–10.

•

A claim against Sgt. English and Lt. Forbes for ordering plaintiff to be on cuff
order absent any disciplinary misconduct by plaintiff. Am. Compl. ¶¶ 109–110.
On April 26, 2015, plaintiff was informed by CO Little and Sgt. Young that he
was on cuff order once again per Lt. Forbes. This order was seemingly in
response to an incident on April 24, 2015 where Sgt. English came down during
searches, at which time he and plaintiff had a discussion over “untying sheets and
[plaintiff] said it was an exaggeration to which [English] got upset and said, “I
don’t have to do nothing to you, I’ll get others to f**k you up.” Compl. Mem., p.
10, lines 12–17.

•

A claim against Cpl. Whitesell for harassing plaintiff and poking holes in his
drinking cup during searches on May 31, 2015. Id. ¶ 115; Compl. Mem., p. 11,
lines 11–12.

•

A claim against CO Daniels or harassing plaintiff and others by giving CO Boyd
cleaning supplies for inmates that were insufficient for cleaning their rooms. Am.
Compl. ¶ 131. On July 19, 2015, CO Boyd was doing cleanup. When plaintiff
asked for a broom, Boyd said “[you] ain’t getting one” and that was what Daniels
gave him. Plaintiff said they were supposed to get one and Boyd got upset with
him while Daniels was smirking. Compl. Mem., p. 13, lines 15–17.

•

A claim against Sgt. Mueller for making plaintiff and others be cuffed backwards
without incident and knowing that officers were intentionally slamming people
into walls. Am. Compl. ¶ 132. After an incident with inmate Scott on July 20,
2015, Sgt. Mueller made all inmates put their hands behind their backs to be
cuffed. After that, two other inmates were slammed against the wall after they
were cuffed. Compl. Mem., p. 13, lines 18–22.

•

A claim against Mr. Francis for not ensuring proper food servings. Am. Compl. ¶
140.

44

•

A claim against CO Little for denying plaintiff utensils for eating after plaintiff
pointed out his unfairly denying another inmate yard time. Id. ¶ 143; Compl.
Mem., p. 16, lines 14–18.

None of these claims—considered either individually or collectively—rise to the level of
an Eighth Amendment violation. With respect to the involuntary medication claims, the
involuntary strip, the involuntary restraint and the cuffing and cuff order claims, Am. Compl. ¶¶
14, 16, 17, 31, 109–10, 132, plaintiff does not allege that he suffered any serious pain or injury
resulting from these events. “The Eighth Amendment does not protect an inmate against an
objectively de minimis use of force.” Lindsey v. O’Connor, 327 F. App’x 319, 321 (3d Cir.
2009); see, e.g. Wilson v. Brown, 261 F. App’x 442, 444 (3d Cir. 2008) (locking plaintiff in cell
with handcuffs on does not rise to Eighth Amendment violation); Washington v. Grace, 445 F.
App’x 611, 616 (3d Cir. 2011) (holding that various minor altercations do not rise to the level of
severity required to violate the Eighth Amendment). With respect to plaintiff’s claims about
food temperature, food portions and a one-time serving of plaintiff’s food to another inmate, Am.
Compl. ¶¶ 99, 107, 140, “[t]he purported deprivation of a single meal is not of such magnitude as
to rise to the level of a constitutional violation;” only a “substantial deprivation” of food to a
prisoner sets forth a viable Eighth Amendment claim. Lindsey, 327 F. App’x at 321; see also
Grace, 445 F. App’x at 616 (“[T]he occasional denial of a ‘full meal’ . . . do[es] not suffice to
state an Eighth Amendment violation.”). Plaintiff’s claim that he and other inmates were not
given enough cleaning supplies to clean their rooms, Am. Compl. ¶ 131, is similarly insufficient
to state a constitutional violation. Glazewski v. Corzine, 385 F. App’x 83, 89 (3d Cir. 2010)
(“[Prisoner’s] complaint that he was not given sufficient cleaning supplies is insufficient to state
a constitutional violation.”). Finally, the one-time denial of eating utensils or and poking of
holes in plaintiff’s drinking cup, Am. Compl. ¶¶ 115, 143, do not result in a denial of any
necessity and, therefore, does not rise to the level of an Eighth Amendment violation. See
45

Pepper v. Carroll, 423 F. Supp. 2d 442, 448–49 (D. Del. 2006) (denial of reading material,
exercise, television, cleaning tools, boiling water, ice, razors and writing utensils while
voluntarily in security housing unit does not constitute a denial of necessities and, therefore, is
not a serious deprivation under the Eighth Amendment).
In short, plaintiff has documented problems that he finds both upsetting and
uncomfortable, but they do not satisfy the objective element of an Eighth Amendment claim.
Rather, plaintiff’s allegations merely equate to unpleasant incidents of prison life that do not rise
to the level of a constitutional violation. Therefore, I will dismiss all of these claims.
E.

Procedural Due Process

Plaintiff brings a procedural due process claim against two defendants in connection with
their alleged failure to properly adhere to Pennsylvania’s internal procedures for handling
citations and grievances. Specifically, he contends that Lt. Ham failed to given him twenty-four
hour written notice of an incident report, Am. Compl. ¶ 34; failed to provide him with a factfinding guilty statement on January 2, 2015, id. ¶ 35; had plaintiff removed from a hearing on
January 5, 2015 without cause, despite plaintiff’s right to be present, id. ¶ 50; and did not provide
plaintiff with a guilt-finding statement for the January 5, 2015 hearings. Id. ¶ 52. He also claims
that Warden McFadden is liable for not having a disciplinary process adhering to plaintiff’s
rights. 12 Id. ¶ 36.
“[S]tate procedures, in themselves, do not confer a liberty interest protected by the due
process clause.” Thomas v. Rosemeyer, 199 F. App’x 195, 198 (3d Cir. 2006). Thus, a
prisoner’s claim that a prison failed to comply with its own or with state procedures during a
disciplinary hearing does not give rise to procedural due process concerns. Ayers v. Campbell,
12

Plaintiff suggests he was entitled to the procedural due process protections given to pretrial detainees, but offers no allegation that he was a pre-trial detainee rather than a convicted
prisoner.
46

267 F. App’x 176, 177 (3d Cir. 2008). Accordingly, plaintiff’s procedural due process claims
related to his disciplinary hearings must be dismissed.
F.

Failure to Provide Grievance Forms

Plaintiff sets forth multiple claims against numerous defendants for failure to provide
grievance forms or implement the established grievance procedure. Specifically, plaintiff asserts
claims against the following defendants:
•

Warden McFadden for not implementing a known accessible grievance procedure. Am.
Compl. ¶ 56.

•

Capt. Taylor, Cpt. Griswold, Cpt. Saunders, Cpt. Furina and Cpt. Miller for not providing
a grievance form to report excessive force. Id. ¶¶ 57–61.

•

Cpl. White and Sgt. English for denying plaintiff the right to redress the January 23, 2015
violation of his rights. Id. ¶¶ 70, 72.

•

Lt. Brooks and Major Graham for not providing plaintiff with a grievance form to report
excessive force used by officers on January 4, 2015. Id. ¶¶ 73–74.

•

Capt. Griswold, Capt. Taylor and Mr. Healy for not providing plaintiff with a grievance
form for medical issues on February 1, 2015. Id. ¶¶ 75–77.

•

Cpl. Svah by discouraging plaintiff from filing a grievance. Id. ¶ 78.

•

Mr. Healy for not providing a grievance form . Id. ¶ 81.

•

Lt. Ham, Lt. Brooks, Lt. Mastnjak, Capt. Griswold, Capt. Miller, Capt. Furina, Capt.
Taylor and Capt. Saunders for not providing a grievance form to report the February 19,
2015 incident. Id. ¶¶ 88–95.

•

Sgt. English for not providing plaintiff grievance forms for grievable incidents on
February 23, 2015. Id. ¶ 97.

•

Cpl. White for denying plaintiff a grievance form for grievable issues on February 10,
2015. Id. ¶ 98.

•

Sgt. English for not providing plaintiff with a grievance form to report Haines’s actions
on March 11, 2015. Id. ¶ 101.

•

Lt. Forbes, Capt. Furina, Capt. Taylor, Major Graham and Warden McFadden for
denying plaintiff a grievance form requested on or around April 26, 2015. Id. ¶ 112.
47

•

Capt. Taylor for not allowing plaintiff the right to file a grievance in regards to him being
on cuff order on June 1, 2015. Id. ¶ 117.

•

Mr. Healy for not responding to plaintiff’s repeated request for grievance forms on or
around June 10, 2015. Id. ¶ 119.

•

Mr. Healy for not giving plaintiff the grievance form requested to report civil violations
on or around June 19, 2015. Id. ¶ 122.

•

Capt. Taylor for denying plaintiff his right to redress with grievance forms. Id. ¶ 128.

•

Warden McFadden for not responding to plaintiff’s appeal filed July 11, 2015. Id. ¶ 129.

•

Cpl. White for “twisting plaintiff’s word on July 23, 2015 in request of the grievance
form as he had done since plaintiff’s first request.” Id. ¶ 133.

•

Sgt. English for denying plaintiff his right to a grievance form to report Powers’s actions
on August 15, 2015. Id. ¶ 135.

•

Mr. Francis for not providing plaintiff with a grievance form after repeated incidents with
the food servings or temperatures on September 21, 2015. Id. ¶ 136.

•

Warden McFadden for the conduct of the grievance procedure which is inadequate to
serve inmates’ rights to report violations of rights. Id. ¶ 144.
“[T]he failure of a prison official to process a grievance does not violate a constitutional

right because there is no constitutional right to an effective prison grievance procedure.” Bucano
v. Monroe Cnty. Corr. Facility, No. 13-1782, 2014 WL 509396, at *5 (M.D. Pa. Jan. 7, 2014),
citing Burnside v. Moser, 138 F. App’x 414, 415–16 (3d Cir. 2005) (failure of prison officials to
process administrative grievance did not amount to a constitutional violation or personal
involvement in the alleged constitutional deprivation); see also Dickens v. Taylor, 464 F. Supp.
2d 341, 353 (D. Del. 2006) (“Plaintiff cannot maintain constitutional claims based on an
inadequate grievances system, that grievances were denied, that he was not provided a hearing
upon the filing of a grievance, or that his grievances were not addressed.”). While the absence of
an effective grievance process may excuse the administrative exhaustion requirement under the

48

Prison Litigation Reform Act, it cannot, in and of itself, give rise to a constitutional claim.
Bucano, 2014 WL 509396, at *5; see also Platt v. Brockenborough, 476 F. Supp. 2d 467, 470
(E.D. Pa. 2007) (“A prisoner who does not receive a response to his grievance may file suit in
federal court. As a result, the prison’s failure to respond does not infringe on the prisoner’s
access to the courts.”)
All of plaintiff’s grievance-related claims allege that he was not provided a grievance
form or that the grievance process was generally inadequate. Therefore, I grant defendants’
motion to dismiss these claims.
G.

First Amendment and First Amendment Retaliation Claims

Plaintiff maintains two claims under the First Amendment: one against CO Haines for
disclosure of legal information and one against Cpl. Svah and CO Little for retaliation. Neither
claim states a plausible cause of action
First, plaintiff brings a single claim against CO Haines for improperly disclosing
plaintiff’s legal information to other inmates. Am. Compl. ¶ 68. Specifically, after plaintiff
returned from court on January 6, 2015, he was told by other inmates that Haines was discussing
his legal information out loud to the block. Compl. Mem., p. 7, line 13–15. This claim does not
set forth an actionable constitutional violation.
A plaintiff may state a First Amendment claim against Defendants who read his legal
materials if he alleges that there was a pattern or practice of opening and reading his legal
materials outside of his presence. See Schreane v. Holt, 482 F. App’x 674, 676–77 (3d Cir.
2012), citing Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006)); see also Thompson v. Hayman,
No. 09-1833, 2011 WL 2652185, at *5 (D.N.J. July 6, 2011). Where, however, plaintiff alleges
neither actual injury nor that a pattern and practice of defendants reading his legal materials,

49

plaintiff fails to state a First Amendment claim. See Nixon v. Secretary Pa. Dept. of Corr., 501
F. App’x 176, 178 (3d Cir. 2012) (holding that a single, isolated incident where a prisoner’s mail
was confiscated and destroyed did not state a claim for violation of the First Amendment); Hale
v. Pa. Dept. of Corr., No. 07-0345, 2010 WL 3791833, at *3 (M.D. Pa. Sept. 16, 2010) (“Isolated
incidents of opening legal mail outside of an inmate’s presence, without any evidence of
improper motive, is nothing more than an assertion of negligence and is insufficient to establish a
constitutional violation.”); Drake v. Muniak, No. 13-3868, 2015 WL 2169875, at *5 (D.N.J. May
7, 2015) (holding that an allegation that plaintiff’s legal materials were read and confiscated one
time does not state First Amendment claim). Accordingly, plaintiff’s allegation that CO Haines,
on a single occasion, discussed plaintiff’s legal papers and affairs with other inmates fails to state
a claim upon which relief may be granted.
Also under the guise of the First Amendment, plaintiff alleges that Cpl. Svah and CO
Little retaliated against him for filing a grievance. Am. Compl. ¶¶ 84–86. In order to establish
an illegal retaliation claim for engaging in protected conduct, a prisoner must prove that (1) his
conduct was constitutionally protected; (2) he suffered adverse action at the hands of prison
officials; and (3) his constitutionally protected activity was a substantial or motivating factor in
the decision to discipline him. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). It is
undisputed that a prisoner’s filing of a grievance satisfies the first prong of “protected conduct.”
Id. In order for an action to qualify as “adverse” under the second prong, it must be “sufficiently
serious ‘to deter a person of ordinary firmness from exercising his constitutional rights.’”
Walker v. Mathis, 665 F. App’x 140, 143 (3d Cir. 2016), quoting Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003). A single temporary inconvenience does not qualify as adverse. See
Walker, 665 F. App’x at 143 (temporary removal from work privilege and two days of prison

50

wages not adverse action); Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (charging
prisoner with misconduct that was later dismissed not an adverse action); Verbanik v. Harlow,
512 F. App’x 120, 122–23 (3d Cir. 2013) (transfer to a less desirous cell and being locked up in
the shower for two hours on one occasion not adverse act.)
In this case, plaintiff alleges that, on February 19, 2015, after he submitted his grievance,
Cpl. Svah and CO Little entered his cell telling him that he was “not getting any more law
library” and “F**k grievance. [He] can ask, but ain’t getting sh*t.” Compl. Mem., p. 8, lines
24–26. While his submission of the grievance constituted protected activity, nothing in his
allegations suggest any adverse action. Indeed, plaintiff does not contend that Svah and Little
actually followed through on any threats to deny him further law library access. Because mere
comments are not sufficiently serious to deter a person of ordinary firmness from exercising his
constitutional rights, I must dismiss these claims.
H.

Sixth Amendment Access to Courts

Plaintiff also alleges that he was denied access to the law library and legal materials.
“Under the First and Fourteenth Amendments, prisoners retain a right of access to the courts.”
Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008), citing Lewis v. Casey, 518 U.S. 343, 350–1
(1996). “Access to the prison law library is not a ‘freestanding’ right, however, and a prisoner
challenging the denial of access must allege some actual injury to have standing to assert a claim
on this basis.” Platt v. Brockenborough, 476 F. Supp. 2d 467, 470 (E.D. Pa. 2007); see also
Tinsley v. Gioria, 369 F. App’x 378, 381 (3d Cir. 2010) (“[A] prisoner making an access-tocourts claim is required to show that the denial of access caused actual injury.”). As defined by
our Court of Appeals, “[w]here prisoners assert that defendants’ actions have inhibited their
opportunity to present a past legal claim, they must show (1) that they suffered an ‘actual

51

injury’—that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; and
(2) that they have no other ‘remedy that may be awarded as recompense’ for the lost claim other
than in the present denial of access suit.” Monroe, 536 F.3d at 205.
Plaintiff’s amended complaint sets forth the following Sixth Amendment claims:
•

A claim against Capt. Taylor and counselor Vasquez for denial of access on February 10,
2015. Am. Compl. ¶¶ 79–80. Specifically, plaintiff received a note on a sent request slip
from Capt. Taylor regarding law library use by which he was given books from the law
library on assigned days. Compl. Mem., p. 8, lines 13–15. Plaintiff, however, was not
able to use the computers or copy cases, resulting in counselor Vasquez charging him
$40. Id. at p. 8, lines 17–18. In addition, when requesting to make legal calls, Vasquez
said he had to find an “escort” for him. Id. at p. 8, lines 18–19.

•

A claim against Sgt. Young, Sgt. Lynch and Capt. Saunders for denying plaintiff law
library access when they had the authority to permit him access. Am. Compl. ¶¶ 123–24.
After repeated law library requests to Sgt. Young and Sgt. Lynch, Lynch said he sent an
e-mail to Capt. Saunders, but his request was denied. Compl. Mem., p. 12, lines 18–19.

•

A claim against counselor Vasquez for again charging plaintiff for case law from the law
library on June 28, 2015. Am. Compl. ¶ 125; Compl. Mem., p. 12, lines 20–21.

•

A claim against CO Powers for harassing plaintiff by denying him access to the law
library when plaintiff properly requested access and did nothing wrong. Am. Compl. ¶
130. Plaintiff believes Powers denied him access to the law library because plaintiff had
filed a grievance. Compl. Mem., p. 13, lines 12–14.

•

A claim against counselor Vasquez for not providing plaintiff with legal envelopes on
July 8, 2015. Am. Compl. ¶ 137. Another claim against counselor Vasquez for denying
plaintiff a legal cell ordered by the court on August 10, 2015. Id. ¶ 138. Plaintiff
contends that Vasquez has charged and/or denied material for “legal stuff” multiple
times, including envelopes and calls to his lawyer for court purposes. Compl. Mem., p.
14, lines 15-18.
Nothing within these allegations allows an inference that plaintiff suffered an “actual

legal injury.” Although plaintiff claims to have been improperly charged for materials or
suffered some understandable frustration in accessing materials, 13 he does not assert that he lost

13

Plaintiff asserts that the illegibility of his original complaint resulted from defendants’
refusal to provide plaintiff with proper supplies. Pl.’s Resp. Opp’n Mot. to Dismiss, ECF No.
52

any opportunity to pursue any of his underlying claims. Quite to the contrary, plaintiff has
managed to file the present case setting forth more than 150 claims against the defendants.
Absent some legal injury, these Sixth Amendment claims must be dismissed.
I.

Equal Protection Claims

Defendants next seek to dismiss plaintiff’s equal protection claims. As explained
previously, “[t]he Equal Protection Clause of the Fourteenth Amendment commands that no
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is
essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985), citing Plyler v. Doe, 457 U.S. 202,
216 (1982). Thus, to state a claim under the Equal Protection Clause, a plaintiff must allege that
he is a member of a protected class and was treated differently from similarly situated inmates.
Graf v. Lanigan, No. 14-2613, 2016 WL 324946, at *3 (D.N.J. Jan. 27, 2016), citing Cleburne,
473 U.S. at 439. Where the plaintiff does not claim membership in a protected class, he must
state facts showing that: “(1) the defendant treated him differently from others similarly situated,
(2) the defendant did so intentionally, and (3) there was no rational basis for the difference in
treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006); see also Holland v.
Taylor, 604 F. Supp. 2d 692, 702 (D. Del. 2009) (“Courts have consistently held that, in the
absence of a fundamental right or a protected class, equal protection only requires that a
regulation which results in unequal treatment of an inmate bear some rational relationship to a
legitimate penological interest.”), citing McGinnis v. Royster, 410 U.S. 263 (1973); Hodges v.
Klein, 562 F.2d 276 (3d Cir. 1977).

98, at 7. Plaintiff has suffered no actual legal injury, however, because he was given leave to
amend his complaint and has managed to file a legible document.
53

With regard to discretionary decisions in prison, courts in the Third Circuit have noted
that it is improbable that prisoners would be similarly situated to one another for equal protection
purposes, under any circumstances. See Wilson v. Sobina, No. 11-028, 2012 WL 6840521, at *4
(W.D. Pa. July 16, 2012), report and recommendation adopted, No. 11-298, 2013 WL 140525
(W.D. Pa. Jan. 11, 2013); Grejda v. Longley, No. 11-184, 2012 WL 2861733, *14 (W.D. Pa. Jun.
20, 2012); Johnson v. Paparozzi, 219 F. Supp. 2d 635, 644 (D.N.J. 2002); Bagwell v.
Brewington-Carr, No. 97-321, 2000 WL 1728148, at *19 (D. Del. Apr. 27, 2000), aff’d, 33 F.
App’x 647 (3d Cir. 2002); Watkins v. Horn, No. 96-4129, 1997 WL 566080 at *4 (E.D. Pa. Sept.
5, 1997); Adams v. McAllister, 798 F. Supp. 242, 246 (M.D. Pa.), aff’d, 972 F.2d 1330 (3d Cir.
1992); Rowe v. Cuyler, 534 F. Supp. 297, 301 (E.D. Pa. 1982), aff’d, 696 F.2d 985 (3d Cir.
1982).
Plaintiff, in this case, sets forth several equal protection claims:
•

A claim against CO Riggens for denying plaintiff hygiene, but allowing it for others.
Am. Compl. ¶ 12. Plaintiff explains that, in December 2014, he noticed other people
taking showers, but he and others were not given one. Even though he repeatedly
requested one from CO Riggens, Riggens ignored his request. Compl. Mem., p. 1, lines
24–26.

•

A claim against Sgt. English for not allowing plaintiff to file a grievance when other
inmates were allowed to do so. Am. Compl. ¶ 102. Specifically, in March 2015, plaintiff
asked Sgt. English for a grievance against CO Haines for purposely leaving hot water
running. Two other inmates, Aguilar and Voros, requested and submitted grievances, but
plaintiff’s request was denied. Compl. Mem., p. 9, lines 15–19.

•

A claim against Lt. Brooks for giving another inmate a grievance form, but denying
plaintiff a grievance form on April 17, 2015. Am. Compl. ¶ 105. Plaintiff explains that
Brooks offered another inmate a grievance form to report an incident of violence with CO
Bemberry, but when plaintiff wanted a grievance to report cold conditions, it was denied.
Compl. Mem., p. 10, lines 1–6.

•

A claim against Lt. Forbes for giving other inmates grievances, but denying plaintiff’s
request on June 1, 2015 for a grievance to report his having to wear cuffs during exercise.
Compl. Mem., p. 11, lines 12–13.

54

•

A claim against Lt. Ham, Capt. Taylor and Warden McFadden for treating plaintiff
differently than similarly-situated inmates in disciplinary actions. Am. Compl. ¶ 121.
Plaintiff seems to assert that he was “cuff ordered” for threatening officers when another
inmate, Debellis, was not “cuff ordered” when he “allegedly threatened” an officer
named Townsend. Compl. Mem., p. 12, lines 5–6. He also notes that other inmates
(Saunders, Lopez) received lighter disciplinary punishment for their actions. Id. at p. 12,
lines 9–13.

•

A claim against Lt. Forbes for giving other inmates grievances, but denying plaintiff’s
request on June 1, 2015 for a grievance to report his having to wear cuffs during exercise.
Id. at p. 11, lines 12–13.
Although, for some of his claims, plaintiff identifies other inmates who received different

or more favorable treatment, he fails to allege sufficient facts to permit an inference that they
were similarly-situated. Indeed, the decisions at issue—the denial of hygiene and the denial of
grievance forms—are precisely the type of discretionary decisions for which the ability to show
similarly-situated inmates is highly “improbable.” Mere identification of other prisoners who
received showers or grievance forms in the same time frame that plaintiff was denied similar
treatment does not plausibly state a claim that these prisoners were similarly-situated for
purposes of an equal protection violation. Accordingly, I will dismiss these claims as well.
J.

Supervisory Responsibility Claims

Plaintiff also sets forth three supervisory liability claims related to the conditions of
confinement in the prison. I will dismiss these claims with prejudice.
As previously explained, it is well established that supervisory liability cannot be
imposed under § 1983 on a respondeat superior theory. Monell v. Dept. of Soc. Servs., 436 U.S.
658, 691 (1978). Purpose rather than knowledge is required to impose liability on an official
charged with violations arising from his or her supervisory responsibilities. Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009). “Absent vicarious liability, each Government official, his or her title
notwithstanding, is only liable for his or her own misconduct.” Id. Therefore, a plaintiff may set

55

forth a claim for supervisory liability under § 1983 if he “(1) identif[ies] the specific supervisory
practice or procedure that the supervisor failed to employ, and show[s] 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). It is not enough for a plaintiff to argue that the alleged injury would not have occurred if
the supervisor had “done more.” Id. He must identify specific acts or omissions of the
supervisor that evidence deliberate indifference and establish a link between the act or omission
and the ultimate injury. Id.
Notably, participation in the after-the-fact review of a grievance is not enough to
establish personal involvement. Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006)
(allegations that prison officials and administrators responded inappropriately to inmate’s laterfiled grievances do not establish the involvement of those officials and administrators in the
underlying deprivation); see also Cole v. Sobina, No. 04-99J, 2007 WL 4460617, at *5 (W.D.
Pa. Dec. 19, 2007); Ramos v. Pa. Dept. of Corr., No. 06-1444, 2006 WL 2129148, at *2 (M.D.
Pa. July 27, 2006). Thus, the filing of a grievance is not sufficient to show that the recipient had
the actual knowledge necessary for personal involvement. Rode v. Dellarciprete, 845 F.2d 1195,
1208 (3d Cir. 188).
The claims of supervisory liability in the amended complaint are as follows:
•

A claim against Capt. Griswold and Major Graham for allowing inmates to be in a harsh,
cold environment and for not addressing inmates’ needs, such as blankets. Am. Compl. ¶
103. Plaintiff explains that, for a week and a half in early March 2015, the heat was off

56

and plaintiff personally wrote to Capt. Griswold, Major Graham and a Dr. Davis. One
inmate even requested medical for the cold conditions. Compl. Mem., p. 9, lines 21–25.
•

A claim against Warden McFadden for “the conditions of J-block against pretrial
detainees and the length of confinement allowed.” Am. Compl. ¶ 139.

•

A claim against Warden McFadden for conditions permitted in the RHU which are so
harsh that inmates frequently go to medical for suicide watch. Am. Compl. ¶ 147.

Such allegations are clearly insufficient to state a claim under the Eighth Amendment. As an
initial matter, general allegations of “harsh” conditions without identification of those conditions
do not set forth any plausible claim for relief. More importantly, plaintiff has failed to identify
specific acts or omissions of the supervisors that allow an inference of deliberate indifference
and establish a link between the act or omission and the ultimate injury. Instead, plaintiff simply
argues that the supervisors should have “done more” or responded positively to his grievances,
claims which fail to establish supervisory liability. See, e.g., Compl. Mem., p. 9, lines 21–25.
Absent factual allegations allowing an inference of deliberate indifference on the part of these
defendants, I must dismiss these claims.
K.

Section 1985 and 1986 Claims

The final set of claims in the amended complaint involves allegations under 42 U.S.C. §§
1985 and 1986, as follows:
•

A claim against Detective Balchunis, Detective Grandizio and Detective Ken
Beam for delaying plaintiff’s medical treatment. Am. Compl. § 1985 claims, ¶ 1.

•

A claim against CO Riggens and Nurse Cotton for agreeing upon behavior that
violated plaintiff’s rights to be free from involuntary medication. Id. § 1985
claims, ¶ 2.

•

A claim against the Chester County Prison Administration who have two weekly
meetings for allowing and permitting plaintiff’s due process rights to be violated
and put on cuff order which in turn affected his security level. Id. § 1985 claims,
¶ 3.)

57

•

A claim against the CEU team and medical staff on December 28, 2014 for
further denying plaintiff hygiene supplies/shower after plaintiff defecated on
himself. Id. § 1985 claims, ¶ 4.

•

A claim against Cpl. Whitesell, CO Moore and Cpl. Garcia for the physical force
unnecessarily used on plaintiff on January 4, 2015. Id. § 1985 claims, ¶ 6.

•

A claim against CO Little and Cpl. Svah for their acts of harassment towards
plaintiff on February 19, 2015 by denying him law library access and making
remarks on denial of grievances. Id. § 1985 claims, ¶ 7.

•

A claim against Sgt. English and Lt. Forbes for initiating the due process violation
of putting plaintiff on cuff order without cause. Id. § 1985 claims, ¶ 8.

•

A claim against Sgt. English, Cpl. White and Capt. Taylor for repeatedly denying
plaintiff grievance having knowledge and understanding of such denial. Id. §
1985 claims, ¶ 9.

•

A claim against Cpl. Marconi and CO Daniels for their behavior on December 28,
2014 in denying plaintiff a basic human need and causing a “CEU [cell extraction
unit] event” absent any relevant cause. Id. § 1985 claims, ¶ 10.

•

A claim against Capt. Furina, Capt. Taylor, Major Graham and Warden
McFadden for collectively having knowledge of plaintiffs due process being
violated and not providing a grievance. Id. § 1985 claims, ¶ 11.

•

A claim under § 1986 against all the above defendants because they had the
authority to protect plaintiff from a violation of his rights, but did not. Id. § 1986
claim, ¶ 1.

As set forth previously, to maintain a § 1985 cause of action, a plaintiff must establish:
(1) a conspiracy by the defendants; (2) that the conspiracy was designed to deprive plaintiff of
the equal protection of the laws or equal privileges and immunities; (3) the commission of an
overt act in furtherance of that conspiracy; (4) a resultant injury to person or property or a
deprivation of any right or privilege of citizens; and (5) that defendants’ actions were motivated
by a racial or otherwise class-based invidiously discriminatory animus. Litz v. Allentown, 896
F. Supp. 1401, 1414 (E.D. Pa. 1995). Specific allegations of an agreement to carry out the
alleged chain of events are essential in stating a claim for conspiracy. Spencer v. Steinman, 968

58

F. Supp. 1011, 1020 (E.D. Pa. 1997). “It is not enough that the end result of the parties’
independent conduct caused plaintiff harm or even that the alleged perpetrators of the harm acted
in conscious parallelism.” Id. Finally, the element of class-based animus is essential to a proper
§ 1985 claim. Robison v. Canterbury Village, Inc., 848 F.2d 424, 430 (3d Cir. 1988).
Plaintiffs § 1985 claims fail to state a cognizable claim on multiple grounds. Primarily,
for all but the claims of excessive force, Am. Compl. § 1985, ¶ 6, plaintiff does not set forth any
constitutional violations that were the object of the alleged conspiracies. Moreover, plaintiff
alleges no facts from which I can infer an agreement among the various defendants to commit
the alleged constitutional violations; rather, his claims rest on the mere facts that the defendants
acted in parallel. Finally, plaintiff has not pled that any of these actions were motivated by a
class-based animus. Therefore, I will dismiss all of these claims with prejudice. In turn, because
§ 1986 claims are derived from § 1985 claims, the § 1986 must likewise be dismissed. Koorn v.
Lacey Twp., 78 F. App’x 199, 208 (3d Cir. 2003) Hilton v. Whitman, No. 04-6420, 2008 WL
5272190, at *11–12 (D.N.J. Dec. 16, 2008).
CONCLUSION
Plaintiff’s amended complaint clearly reflects his dissatisfaction with his prison
conditions and treatment. Unfortunately for plaintiff, however, “the Constitution does not
mandate comfortable prisons” and prisons “which house persons convicted of serious crimes,
cannot be free of discomfort.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). I recognize that
plaintiff has a constitutional entitlement to be free from excessive force and, to the extent he has
pled such claims or related failure to protect claims, I will not dismiss his amended complaint.
The remainder of his claims, however, simply do not allege conditions or treatment that rise to
the level of constitutional violations. While I remain cognizant that pro se prisoners are accorded

59

a great deal of latitude in pleading and generally must be given leave to amend, plaintiff has
already been afforded that opportunity following explicit instructions from the court. As any
further grant of leave to amend would be both futile in light of plaintiff’s previous efforts and
inequitable given defendants’ repeated efforts to move to dismiss on the merits of the claims, I
will dismiss with prejudice all but the excessive force claims and the related failure to protect
claims.
An appropriate Order follows.

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