McClure v. Haste et al

Filing 27

MEMORANDUM re MOTION TO DISMISS 16 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 2/19/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TABU N. MCCLURE,
Plaintiff
vs.
COMMISSIONER JEFFREY T.
HASTE, et al.,
Defendants

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CIVIL NO. 1:14-CV-2249

(Judge Rambo)

MEMORANDUM
Background
On November 25, 2014, Tabu N. McClure, an inmate
presently confined at the State Correctional
Institution, Somerset, Pennsylvania (“SCI-Somerset”),
filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983 relating to the conditions of confinement
which he was exposed to while incarcerated at the
Dauphin County Prison as a pretrial detainee and parole
violator.1 Doc. 1.

McClure contends those conditions

violated his rights under the Eighth and Fourteenth
Amendments to the United States Constitution. Id. With
1. It is not clear as to whether or not McClure was
serving a sentence for a parole violation or merely
detained as an alleged parole violator as well as
waiting trial on new charges.

respect to the Eighth Amendment, McClure claims he was
subjected to cruel and unusual punishment and with
regard to the Fourteenth Amendment he claims he was
denied due process and equal protection.2 Id.

McClure

names the following individuals as defendants: (1)
Commissioner Jeffrey T. Haste; (2) Warden Dominic
DeRose; (3) Deputy Warden Nichols; (3) Deputy Warden
D.W. Carroll; (4) Major Stewart; (5) Captain Neidigh;
(6) Lieutenant Carnazzo; (7) Lieutenant Hostetter; and
(8) Sergeant R. Adams. Id.

McClure also names the Board

of Dauphin County Prison and an “Unknown number of John
Does” as defendants.3

Id.

Along with his complaint,

McClure also alleges that his rights were violated
under a section of the Pennsylvania Crimes Code
relating to official oppression, 18 Pa.C.S. § 5301.
These allegations are not cognizable under 42 U.S.C. §
1983. Elkin v. Fauver, 969 F.2d 48, 52 (3d Cir.
1992)(“An alleged violation of state law . . . does not
state a claim under section 1983.”); Funk v. Wetzel,
2015 WL 2338995, *5 (M.D. Pa. May 12, 2015); Spell v.
Allegheny County Administration, 2015 WL 1321695, *4
(W.D. Pa. Mar. 24, 2015).
2.

The “John Does” have not been identified or served
by McClure. It is well-settled that the use of
John/Jane Doe defendants absent compelling reasons will
not suffice and the district court may dismiss such
defendants if plaintiff, after being granted a
reasonable period of discovery, fails to identify the
3.

(continued...)
2

McClure submitted a motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915.
McClure’s complaint is typewritten and consists
of 68 paragraphs. Id.

The pertinent factual allegations

which are somewhat disjointed and rambling are set forth
in paragraphs 5 through 55. Id.

Those paragraphs reveal

that McClure on February 8, 2013, was incarcerated at
the Dauphin County Prison as a pretrial detainee and
parole violator, and on that date he received a
misconduct for refusing to turn on his cell light during
a shakedown. Id., ¶¶ 5 and 17.

McClure claims that he

was removed from his cell by correctional officers who
used mace and physical force and “placed [him] in a

3.

(...continued)

defendants. Sheetz v. Morning Call, 130 F.R.D. 34
(E.D. Pa. 1990). Based on this court's review of the
record, although his action was filed almost 15 months
ago, McClure has not yet provided this court with the
identities of the John Doe defendants.
Thus, this court will grant McClure thirty (30) days
from the date of this memorandum in which to properly
identify the John Doe defendants. If McClure fails to
timely identify those defendants, they shall be
dismissed from this action under the authority of
Sheetz.

3

strip cell with no clothing or sheets, [or]
and no toilet paper.” Id., ¶ 18.

blanket,

McClure claims it was

the middle of winter and the cell was very cold and “so
after about two hours still under these conditions [he]
ripped the stuffing from inside of [his] mattress and
crawled inside of it like a sleeping bag to stay warm.”
Id., ¶ 19. McClure alleges that during this time he
repeatedly asked a correctional officer for toilet
paper, sheets and a blanket but his requests were
denied. Id., ¶ 20.

McClure does not identify the

correctional officers who allegedly removed him from his
cell, placed him in a strip cell with no clothing and
failed to provide him with toilet paper, sheets and a
blanket. Id., ¶¶ 17-20.

McClure then alleges, without

identifying the responsible correctional officers, that
he was issued a misconduct for destroying county
property and his mattress was taken from him. Id., ¶ 21.
McClure then avers that he was restricted to having the
same damaged mattress from 8:00 a.m. to 9:00 p.m. based
on a memo issued by Lieutenant Hostetter on February 9,
2013. Id.

McClure than states “[u]pon information and

4

belief” that Lt. Hostetter “issued [the] memo at the
behest of Deputy Warden Carroll’s directive.”4

Id., ¶

22. McClure contends that Lt. Hostetter “instructed that
he be given the same damaged mattress to use” between
the hours of 8:00 a.m. and 9:00 p.m. Id., ¶ 24.

McClure

next contends that the mattress was defective and
useless because a substantial amount of the “internal
insulation” had been removed from the mattress.”5 Id., ¶
25. McClure alleges that over the “next several months
until September 9, 2013" he “was forced to use this
defective shell of a mattress, while in the hole or
segregation[.]” Id., ¶ 26.

4. “Upon information and belief” averments are
insufficient under Iqbal and Twombly, infra, unless (1)
“the facts are peculiarly with the possession and
control of the defendant” or (2) the “belief is based
on factual information that makes the inference of
culbability plausible.” Arista Records, LLC v. Doe 3,
604 F.3d 110, 120 (2d Cir. 2010). Clearly the fact
averred is not within the exclusive control of
Defendant Carroll and McClure has not provided factual
information which make the “inference of culpability
plausible.” McClure does not allege he was privy to a
written directive or that Defendant Hostetter stated
that Deputy Warden Carroll issued such a directive.
5. The court infers based on the allegations that it
was McClure who removed the internal insulation.
5

McClure then switches gears and sets forth
allegations regarding his ability to shower and engage
in recreation while housed at Dauphin County Prison.
Id., ¶¶ 27-28.

McClure contends that from February 10

through 16, 2013, a period of seven days, while in
segregation he was required to go to the shower and
recreation in shackles and handcuffs and “was only given
30 minutes for showering and recreation altogether.”
Id.

McClure does not specify the correctional officers

who imposed these restrictions but merely avers “[u]pon
information and belief” that it was the “policy, custom
or practice at [the Dauphin County Prison] to use
restraints on all inmates during shower and recreation
while housed in segregation and to only give 30 minutes
of recreation for five days a week.” Id.
McClure next contends that after being deprived
of a mattress and because of a pre-existing back problem
from lifting weights, he began to experience a
substantial amount of pain in the lower back and
occasional tingling and numbness sensation in his legs.
Id., ¶¶ 29-31.

As a result of these symptoms he claims

he “signed up for medical” beginning on or about March
6

20, 2013, and “each time [he] was only given Motrin for
five or seven days.” Id.

McClure contends that he lost

sleep, he experienced a stiff back and had reduced
mobility and the conditions aggravated previously
diagnosed mental and emotional problems. Id.
McClure alleges that on February 26, 2013, he
had a visit from his public defender and apparently
prior to that visit he was handcuffed behind his back
and placed in a holding pen or cell by Sergeant Adams
for over two hours. Id., ¶¶ 32-35.

McClure contends

that once he was placed in the holding pen or cell the
use of the handcuffs was not “justified penologically.”
Id. Furthermore, he claims that during that two hour
period he had to use the restroom and asked Sergeant
Adams how he was going to use the bathroom while his
hands were cuffed behind his back and claims that
Sergeant Adams responded by stating “you figure it out.”
Id.
McClure next claims that he filed a grievance
relating to the incident with Sergeant Adams and that
Captain Neidigh denied the grievance and his appeals
were denied by Warden DeRose, Prison Board Chairman
7

Haste, the Full Prison Board and the County Solicitor.
Id., ¶¶ 36-41.

McClure alleges that Sergeant Adams

violated a policy established in September, 2012, by
Major Stewart which required inmates to be taken out of
handcuffs when placed in a holding cell or cage and that
corrections officers have been violating that policy.
Id.
McClure contends that he was treated differently
than other prisoners who engaged in destruction of
county property.6 Id.,¶¶ 42-44. He claims that one
inmate who destroyed property on two occasions only
received 34 days of mattress restriction and a monetary
assessment of $42.00 and another inmate who destroyed
property received 30 days of disciplinary confinement
and a monetary assessment of $42.00 but he was not
placed on a mattress restriction. Id.
McClure next alleges that from March 10 through
18, April 19 through May 2 and on July 10, 2013, he was
again placed in segregation and was forced to shower
with handcuffs and shackles and was only allowed 30

6.

McClure admits he destroyed county property.
8

minutes for recreation or 2.5 hours per week outside of
his cell and he was deprived of a mattress and “only had
a concrete slab to either sit or lie on.” Id.,¶¶ 45-47 &
51.

McClure does not identify the correctional officers

responsible for these conditions and restrictions. Id.
Finally, McClure contends that he filed numerous
grievances regarding the mattress restriction and the
use of physical restraints and the grievances and/or
appeals were ignored or denied by Lt. Hostetter, Deputy
Warden Carroll, Warden DeRose, Prison Board Chairman
Haste, the Full Prison Board, and the County Solicitor.
McClure attached to his complaint a copy of the
grievance he filed relating to the use of restraints and
a copy of the grievance relating to the mattress
restriction as well as the responses by prison
officials.

Doc. 1, at 10-26.

The response of the

Prison Board to the grievance relating to the use of
restraints states in pertinent part as follows:
The Dauphin County Prison Board, at its meeting
held on June 26, 2013, reviewed your grievance
appeal from Prison Board Chairman Jeffery (sic)
T. Haste’s denial of your complaint regarding an
alleged denial of use of the restroom and
improper use of restraints. . . .
In its deliberations, the Prison Board reviewed
9

your concerns, as well as the pertinent records.
In your underlying grievance and subsequent
appeal to Commissioner Haste, you stated that
the incident at issue occurred on 2/27/13. In
this appeal, you have revised the date and
stated the incident in question occurred on
2/26/13. A new investigation has been conducted
and the video from that date and relevant times
has been reviewed. It has been concluded that
your allegations regarding being handcuffed in
the bullpen are verified. However, at not time
does it appear that you requested to use the
restroom. Moreover, you are alone in the cell
and therefore not in danger from any other
inmates. The officer involved felt that this
action was necessary as a result of your unruly
behavior while in the previous holding cell.
That officer has stated that you were screaming
and continued this behavior even after being
ordered to stop. Moreover, your records at this
facility, and at others, indicate that you have
a history of violent and combative behavior.
Id. at 15.

The response of the Prison Board to the

grievance relating to the mattress restriction states in
pertinent part as follows:
In your appeal you claim that your “mattress
deprivation” cannot be justified. You are not
being deprived of a mattress. Your are given
a mattress for sleeping purposes between the
hours of 9:00 p.m. and 8:00 a.m. While you
assert that you only destroyed the mattress in
an effort to use it as a sleeping bag, the
records reflect that you used the stuffing from
the mattress to cover the windows on your cell
door, thereby creating a security risk.7 As

7.

A review of the record reveals that McClure has not
(continued...)
10

such, there is a legitimate penological interest
in restricting your access to a mattress.
Id. at 24.

The response further addresses an additional

claim of McClure regarding the use of restraints as
follows:
You also claim that use of restraints
constitutes a “wanton practice” and is
“used to inflict pain or cause harm
unnecessarily.” It should be noted that you
have complained of neck pain on one (1)
occasion following the use of restraints.
However, that complaint was resulting from the
use of the restraint chair, and not the use of
handcuffs and shackles as complained of in
your appeal. As further support of your
proposition that you should not be restrained,
you allege that there is no record of any
violent behavior. Your disciplinary file here,
and at PA DOC, indicates otherwise. During
your most recent incarceration at this facility
beginning on 12/26/12, it has been documented
that you exhibited violent behavior on at least
four (4) occasions. Additionally, your records
from DOC indicate that you assaulted an officer
and made numerous threats to employees and/or
inmates. You also have been charged, and found
guilty of, at least three (3) assaults while
housed throughout the years.

7.

(...continued)

denied that he used the stuffing from the mattress to
cover the windows on his cell door.
11

Id.

As relief McClure requests an award of compensatory

and punitive damages. Id., ¶¶64-68.
On February 3, 2015, the Court granted McClure’s
motion to proceed in forma pauperis and the Clerk of
Court was appointed to serve a copy of the complaint on
the defendants named therein. Doc. 10.

Waiver of

service forms were sent to Defendants and on March 10,
2015, the named Defendants waived service. Doc. 14.

On

April 6, 2015, Defendants filed a motion to dismiss the
complaint. Doc. 16.

A brief in support of the motion

was filed on April 20, 2015. Doc. 18.

After being

granted an extension of time, McClure filed a brief in
opposition on May 18, 2015. Doc. 23.

The motion to

dismiss became ripe for disposition on June 4, 2015,
when Defendants elected not to file a reply brief.
Defendants argue inter alia that McClure’s
complaint should be dismissed because he failed to
allege more than a de minimis physical injury, there are
insufficient allegations of deliberate indifference or
denial of equal protection by Defendants, and the
12

allegations against the prison supervisory officials
and the Dauphin County officials are insufficient to
establish liability.

For the reasons set forth below,

McClure’s complaint will be dismissed with leave to file
an amended complaint.
Motion to Dismiss
Pro se parties are accorded substantial
deference and liberality in federal court. Haines v.
Kerner, 404 U.S. 519 (1972); Hughes v. Rowe, 449 U.S. 5
(1980).

They are not, however, free to ignore the

Federal Rules of Civil Procedure.

Federal Rule of Civil

Procedure 8 requires that a complaint contain a short
and plain statement setting forth (1) the grounds upon
which the court's jurisdiction rests, (2) the claim
showing that the pleader is entitled to relief, and (3)
a demand for judgment for the relief sought by the
pleader.
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which
relief can be granted.”

Under Rule 12(b)(6), we must
13

“accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008)).

While a complaint need

only contain “a short and plain statement of the claim,”
Fed.R.Civ.P. 8(a)(2), and detailed factual allegations
are not required, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929
(2007), a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.”

Id. at

570, 550 U.S. 544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d
929.

“The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted
unlawfully.”

Ashcroft v. Iqbal,___U.S.___, 129 S.Ct.

1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550
U.S. at 556, 127 S.Ct. at 1965.) “[L]abels and
14

conclusions” are not enough, Twombly, 550 U.S. at 555,
127 S.Ct. at 1964-65, and a court

“‘is not bound to

accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case
omitted).
In resolving the motion to dismiss, we thus
“conduct a two-part analysis.” Fowler, supra, 578 F.3d
at 210. First, we separate the factual elements from the
legal elements and disregard the legal conclusions. Id.
at 210-11.

Second, we “determine whether the facts

alleged in the complaint are sufficient to show that the
plaintiff has a “‘plausible claim for relief.’” Id. at
211 (quoted case omitted).
In addition, because McClure complains about
“prison conditions,” the screening provisions,

28

U.S.C. § 1915(e), of the PLRA apply,8 given that McClure
8. Section 1915(e)(2), which was created by § 804(a)(5)
of the PLRA, provides:

(2) Notwithstanding any filing fee, or any
portion thereof, that may have been paid, the
court shall dismiss the case at anytime if the
(continued...)
15

was granted in forma pauperis status to pursue this
suit.

The court's obligation to dismiss a complaint

under the PLRA screening provisions for complaints that
fail to state a claim is not excused even after
defendants have filed a motion to dismiss. See, e.g.,
Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir.
2000). Hence, if there is a ground for dismissal which
was not relied upon by a defendant in a motion to
dismiss, the court may nonetheless sua sponte rest its
dismissal upon such ground pursuant to the screening
provisions of the PLRA. See Lopez; Dare v. U.S., Civil
No. 06-115E, 2007 WL 1811198, at *4 (W.D.Pa. June 21,
2007), aff'd, 264 Fed. Appx. 183 (3d Cir.2008).

8.

(...continued)

court determines that (A) the allegation of
poverty is untrue; or (B) the action or appeal
(i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted;
or (iii) seeks monetary relief against a
defendant who is immune from such relief.
16

Discussion
McClure has raised claims under the Eighth and
Fourteenth Amendment as well as state law.9

Defendants

have argued that McClure has failed to sufficiently
alleged the personal involvement of several of the
Defendants.

This argument has substantial merit.

A person seeking to recover damages under
section 1983 must satisfy three requirements; he must:
(1) assert that a constitutionally protected right has

9. McClure appears to allege that his rights under
state law were violated when he was deprived of a
mattress. However, the Political Subdivision Tort
Claims Act (“PSTCA”) “provides absolute immunity to
local agencies and its employees for official actions
excluding eight statutorily defined exceptions.” Spiker
v. Whittaker, 553 Fed.Appx 275 n. 6 (3 Cir. 2014).
None of those eight exceptions are applicable in this
case: vehicle liability; care custody or control of
personal property; real property; trees, traffic
control and street lighting; utility services
facilities; streets; sidewalks; and care, custody and
control of animals. 42 Pa.C.S.A. § 8542. Furthermore,
although the PTCSA does not grant immunity to employees
of local agencies, such as a prison, for conduct which
goes beyond negligence and constitutes “a crime, actual
fraud, actual malice or wilful misconduct,” 42
Pa.C.S.A. § 8550, the facts alleged in the complaint do
not support an inference of such conduct. The state law
claims will, therefore, be dismissed.
17

been violated; (2) state a cause of action sufficient to
invoke the general federal question jurisdiction of the
district court; and (3) demonstrate why money damages
are the appropriate form of relief.

See Muhammad v.

Carlson, 739 F.2d 122, 123-4 (3d Cir. 1984).
Moreover, in addressing whether a viable claim
has been stated against a defendant the court must
assess whether McClure has sufficiently alleged personal
involvement of the defendant in the acts which he claims
violated his rights.

Liability may not be imposed under

section 1983 on the traditional standards of respondeat
superior. Capone v. Marinelli, 868 F.2d 102, 106 (3d
Cir. 1989)(citing Hampton v. Holmesburg Prison
Officials, 546 F.2d 1017, 1082 (3d Cir. 1976)).

In

Capone, the court noted "that supervisory personnel are
only liable for the § 1983 violations of their
subordinates if they knew of, participated in or
acquiesced in such conduct." 868 F.2d at 106 n.7.
The only basis for liability against a local
governmental body, such as a Prison Board, is an
18

allegation that an official policy or custom is
responsible for a deprivation of rights protected by the
Constitution.10

Monell v. Department of Social Services,

436 U.S. 658 (1978); see also Roman v. Jeffes, 904 F.2d
192 (3d Cir. 1990).

In Monell, the Supreme Court added

that liability may not be premised on a theory of
respondeat superior, rather, only on a claim that the
governmental unit itself supported the alleged
constitutional violation.
With respect to Defendants Haste, DeRose,
Nichols, Carroll, Stewart, Neidigh, Carnazzo and the
Dauphin County Prison Board the court discerns no
"Policy is made when a 'decisionmaker possess[ing]
final authority to establish municipal policy with
respect to the action' issues an official proclamation,
policy, or edict." Andrews v. City of Philadelphia,
895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v.
City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292,
1299, 89 L.Ed.2d 452 (1986)). Custom, on the other
hand, can be proven by showing that a given course of
conduct, although not specifically endorsed or
authorized by law, is so well-settled and permanent as
virtually to constitute law. Andrews, 895 F.2d at
1480; see also Fletcher v. O'Donnell, 867 F.2d 791,
793-94 (3d Cir.), cert. denied, 492 U.S. 919 (1989)
("Custom may be established by proof of knowledge and
acquiescence.").
10.

19

allegations in the complaint that those Defendants were
involved in any conduct which violated McClure’s
constitutional rights. The only involvement of those
Defendants was with respect to the handling of McClure’s
grievances and appeals relating thereto.

Such

involvement is insufficient as a matter of law to render
those defendants liable. Rauso v. Vaughn, Civil No.
96-6977, 2000 WL 873285, at *16 (E.D.Pa., June 26,
2000)(“[T]he failure of a prison official to act
favorably on an inmate's grievance is not itself a
constitutional violation.”); see also Overholt v.
Unibase Data Entry, Inc., 221 F.3d 1335 (Table), 2000 WL
799760, at *3 (6th Cir.2000) (“The defendants were not
obligated to ‘properly’ respond to Overholt's grievances
because there is no inherent constitutional right to an
effective prison grievance procedure. Hence, his
allegations that the defendants did not properly respond
to his grievances simply do not rise to the level of a
constitutional violation.”) (citations omitted);
Mitchell v. Keane, 974 F.Supp. 332, 343 (S.D.N.Y.1997)
20

(“it appears from the submissions before the court that
Mitchell filed grievances, had them referred to a prison
official, and received a letter reporting that there was
no evidence to substantiate his complaints. Mitchell's
dissatisfaction with this response does not constitute a
cause of action.”);

Caldwell v. Beard, Civil No.

2:07-CV-727, 2008 WL 2887810, at *4 (W.D.Pa. July 23,
2008) (“Such a premise for liability [i.e., for
performing a role in the grievance process] fails as a
matter of law.”), aff'd,--- Fed.Appx. ----, 2009 WL
1111545 (3d Cir. April 27, 2009); Caldwell v. Hall,
Civil No. 97-8069, 2000 WL 343229, at *2 (E.D.Pa. March
31, 2000) (“The failure of a prison official to act
favorably on an inmate's grievance is not itself a
constitutional violation.”); Orrs v. Comings, Civil No.
92-6442, 1993 WL 418361, at *2 (E.D.Pa. Oct.13, 1993)
(“But an allegation that a defendant failed to act on a
grievance or complaint does not state a Section 1983
claim.”); Jefferson v. Wolfe, Civil No. 04-44, 2006 WL
1947721, at *17 (W.D. Pa. July 11, 2006) (“These
21

allegations [of denying grievances or grievance appeals]
are insufficient to establish such Defendants' personal
involvement in the challenged conduct under Section
1983. See Watkins v. Horn, 1997 WL 566080 at * 4
(E.D.Pa..[sic] 1997) (concurrence in an administrative
appeal process is not sufficient to establish personal
involvement)”).
Furthermore, other than vague, conclusory and
speculative statements by McClure, there are no
allegations in the complaint from which it could be
concluded that Defendants Haste, DeRose, Nichols,
Carroll, Stewart, Neidigh, Carnazzo and the Dauphin
County Prison Board were responsible for a custom,
policy or practice which violated McClure’s rights.
Consequently, the motion to dismiss as it relates to
those Defendants will be granted.
As for Defendants Hostetter and Adams, the
fundamental principles of Eighth Amendment11 analysis
The Eighth Amendment provides that "[e]xcessive
bail shall not be required, nor excessive fines

11.

(continued...)
22

reveal that "only 'the unnecessary and wanton infliction
of pain' constitutes cruel and unusual punishment
forbidden by [that Amendment]."

Ingraham v. Wright, 430

U.S. 651, 670 (1977) (citations omitted).

Accord

Whitley v. Albers, 475 U.S. 312, 319 (1986).

This

Amendment must be interpreted in accordance with "the
evolving standards of decency that mark the progress of
a maturing society."
(1958).

Trop v. Dulles, 356 U.S. 86, 101

But a judge, when confronted with an Eighth

Amendment claim, may not impose upon a prison his or her
"notions of enlightened policy."

Hassine v. Jeffes, 846

F.2d 169, 175 (3d Cir. 1988).
The right to be free from cruel and unusual
punishment while incarcerated has both objective and
subjective components.
298 (1991).

Wilson v. Seiter,

501 U.S. 294,

The objective component, i.e., whether the

wrongdoing is harmful enough to establish a
constitutional violation, is both "contextual and

11.

(...continued)

imposed, nor cruel and unusual punishments inflicted."
23

responsive to 'contemporary standards of decency.'"
Hudson v. McMillian, 503 U.S. 1, 8 (1992)(quoting
Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

In the

context of the prison environment, "extreme deprivations
are required to make out a conditions-of-confinement
claim."

Id. at 9.

Part of the penalty facing those who

violate the norms of society is routine discomfort.
Id.; Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

The

Eighth Amendment does not require that inmates be
provided with comfortable prisons.

Rhodes, 452 U.S. at

349; Loe v. Wilkinson, 604 F. Supp. 130, 133-34 (M.D.
Pa. 1984).

To determine whether conditions of

confinement are in violation of the Eighth Amendment, a
court must look at the totality of the circumstances.
Tillery v. Owens, 907 F.2d 418, 426 (3d Cir. 1990).

The

United States Supreme Court in Wilson held that
[s]ome 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
24

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 a single human
need exists.
501 U.S. at 304-305 (citations omitted).
The subjective component is met if the person or
persons causing the deprivation acted with "a
sufficiently culpable state of mind".
at 298.

Wilson, 501 U.S.

The legal malice required to satisfy the

subjective component of an Eighth Amendment claim is not
present unless the defendant's conduct involved
unnecessary and wanton infliction of pain.
Ingraham, 430 U.S. at 670;
153, 173 (1976).

Id.;

Gregg v. Georgia, 428 U.S.

Wantonness "does not have a fixed

meaning but must be determined with 'due regard for
differences in the kind of conduct against which an
Eighth Amendment objection is lodged.'"

Wilson, 501

U.S. at 302 (quoting Whitley, 475 U.S. at 320).

In the

final analysis the Court concluded that an inmate must
25

demonstrate that a prison official was deliberately
indifferent
confinement.

to the conditions of his or her
Id. at 303.

Over 10 years ago, in Farmer

v. Brennan, 511 U.S 825, 114 S.Ct. 1970 (1994), the
Court described the standard for determining deliberate
indifference as follows:
[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 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 Court added that "it is enough that the

official acted or failed to act despite his knowledge of
a substantial risk of harm." Id. at 842.
Under the above standards the allegations
against Defendant Adams for leaving McClure handcuffed
in a cell for over 2 hours are insufficient to state an
Eighth Amendment claim. See, e.g., Jones v. Marshall,
2010 WL 234990, at *3 (S.D.N.Y. Jan. 19, 2010)(denial of
right to use restroom for 90 minutes did not establish
26

the objective prong of an Eighth Amendment violation);
Bourdon v. Roney, 2003 WL 21058177, at *11 (N.D.N.Y.
Mar. 6, 2003)(three hour deprivation of restroom
privileges did not deprive inmate of his Eighth
Amendment rights). Likewise, the claims against
Defendant Hostetter are insufficient. McClure alleges
that he was subjected to certain conditions, including a
mattress restriction, from February 10 through 16, March
10 through 18, April 19 through May 2 and on July 10,
2013.

This amounts to a total of 30 days.

McClure has

failed to allege the “extreme deprivations” which give
rise to Eighth Amendment liability.12

See, e.g., Muniz

v. Hill, 2008 WL 1995457, at *5 (D.Or. May 6,
2008)(prisoner compelled to sleep on rubber security mat

To state an Eighth Amendment claim, a prisoner is
required to allege facts from which it could be
concluded that the prisoner suffered a serious or
significant physical injury or emotional injury
resulting from the challenged condition and that a
substantial risk of serious harm resulted from the
prisoner’s exposure to the challenged condition. Rish
v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997).
12.

27

instead of mattress for thirty days did not implicate
Eighth Amendment).
McClure next alleges that he was denied his
right to equal protection under the Fourteenth Amendment
because other inmates who destroyed property did not
receive a mattress restriction.

The Court of Appeals

for the Third Circuit has routinely recognized that a
plaintiff in order to establish a viable equal
protection violation must show an intentional or
purposeful discrimination.

Wilson v. Schillinger, 761

F.2d 921, 929 (3d Cir. 1985), cert denied, 475 U.S. 1096
(1986).

The Fourteenth Amendment of the Constitution

provides in pertinent part: "No State shall . . .
deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws."

The Court of Appeals for the Third Circuit has

observed that the equal protection clause "is not a
command that all persons be treated alike but, rather,
'a direction that all persons similarly situated should
28

be treated alike.'"

Artway v. Attorney General, 81 F.3d

1235, 1267 (3d Cir. 1996)(quoting City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 439 (1985)); see
also Kuhar v. Greensburg-Salem Sch. Dist., 616 F.2d 676,
677 n.1 (3d Cir. 1980)("An equal protection claim arises
when an individual contends that he or she is receiving
different treatment from that received by other
individuals similarly situated.").
It is well-settled that a litigant in order to
establish a viable equal protection violation must show
an intentional or purposeful discrimination. Snowden v.
Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761
F.2d 921, 929 (3d Cir. 1985), cert denied, 475 U.S. 1096
(1986); E & T Realty v. Strickland, 830 F.2d 1107, 111314 (11th Cir. 1987), cert. denied, 485 U.S. 961 (1988).
This "state of mind" requirement applies equally to
claims involving (1) discrimination on the basis of
race, religion, gender, alienage or national origin, (2)
the violation of fundamental rights and (3)
classifications based on social or economic factors.
29

See, e.g., Britton v. City of Erie, 933 F. Supp. 1261,
1266 (W.D. Pa. 1995), aff'd, 100 F.3d 946 (3d Cir.
1996); Adams v. McAllister, 798 F. Supp. 242, 245 (M.D.
Pa.), aff'd, 972 F2d 1330 (3d Cir. 1992).13
McClure has failed to allege facts from which it
can be concluded that Defendants engaged in intentional
or purposeful discrimination or that he was treated
differently than similarly situated individuals on the
basis of his race or some other impermissible reason.
Consequently, his equal protection claim will be
dismissed.
Finally, McClure contends that his right to due
process under the Fourteenth Amendment was denied.

This

allegation by McClure is completely conclusory without
any supporting factual allegations.

The court assumes

that McClure is suggesting that he was denied due
process in the context of a prison disciplinary

However, when a statute, rule or regulation
"discriminates on its face," there is no need to
present any further evidence of intent. See E & T
Realty, 830 F.2d at 1112 n.5.
13.

30

proceeding or with respect to confinement in
administrative segregation.

It appears that McClure was

a pretrial detainee as well as parole violator.

The

standards are different with respect to an individual
serving a sentence and one who is pending trial. See
Bistrian v. Levi, 696 F.3d 352, 372-374 (3d Cir. 2012).
The court will first assume that McClure was a
pretrial detainee. “[P]retrial detainees have ‘federally
protected liberty interests that are different in kind
from those of sentenced inmates.’” Id. at 372.

The

standard which applies is set forth in Bell v. Wolfish,
441 U.S. 520, 535 (1979).

The Supreme Court in that

case made it clear that a pretrial detainee may not be
punished prior to an adjudication of guilt in accordance
with due process of law. Id.

However, the key was

whether the detention or segregation was punishment or a
condition “reasonably related to a penal institutions
interest in maintaining jail security” which “typically
pass[es] constitutional muster.” Bistrian, 696 F.3d at
373; see also Stevenson v. Carroll, 495 F.3d 62, 68 (3d
31

Cir. 2007)(quoting Rapier v. Harris, 172 F.3d 999, 1005
(7th Cir. 1999)(a given restriction imposed on an inmate
“amounts to punishment when there is a showing of
express intent to punish on the part of the detention
facility officials, when the restriction or condition is
not rationally related to a legitimate non-punitive
government purpose, or when the restriction is excessive
in light of that purpose.”).

The allegations in the

complaint and the attachments thereto point to security
concerns in imposing segregated confinement on McClure.
Consequently, under the circumstances, the complaint
fails to state a due process claim upon which relief can
granted.
Likewise, if McClure was serving a sentence as
the result of a parole violation, McClure has not stated
a viable due process claim in light of Sandin v. Conner,
515 U.S. 472, 115 S.Ct. 2293 (1995).
Liberty interests protected by the Fourteenth
Amendment may arise either from the Due Process Clause
itself or from state law.

Meachum v. Fano, 427 U.S.
32

215, 223-26 (1976).

In Wolff v. McDonnell, 418 U.S.

539, 563-573 (1974), where the plaintiffs were deprived
of good time credits as a severe sanction for serious
misconduct, the Supreme Court held that such inmates
have various procedural due process protections in a
prison disciplinary proceeding, including the right to
call witnesses and to appear before an impartial
decision-maker.14
In Wolff, the Supreme Court recognized that
"prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights
due a defendant in such proceedings does not apply."
Id. at 556. Nonetheless, the Supreme Court held that
a prisoner facing serious institutional sanctions is
entitled to some procedural protection before
penalties can be imposed. Id. at 563-71. The Supreme
Court set forth five requirements of due process in a
prison disciplinary proceeding: (1) the right to
appear before an impartial decision-making body; (2)
twenty-four hour advance written notice of the
charges; (3) an opportunity to call witnesses and
present documentary evidence, provided the
presentation of such does not threaten institutional
safety or correctional goals; (4) assistance from an
inmate representative, if the charged inmate is
illiterate or if complex issues are involved; (5) a
written decision by the fact finders as to the
evidence relied upon and the rationale behind their
disciplinary action. Id.
14.

(continued...)
33

Thereafter, the Court in Hewitt v. Helms, 459
U.S. 460, 471 (1983), stated that a state law which
"used language of an unmistakably mandatory character"
creates a protected liberty interest.

Following Hewitt

many courts held that a state regulation can create a
due process interest -- such as freedom from punitive
segregation -- if the rule contains mandatory language
such as "shall" or "will."

E.g., Layton v. Beyer, 953

F.2d 839, 848-49 (3d Cir. 1992).

Our Court of Appeals,

this court, and other courts applied the Wolff
principles to prison disciplinary hearings which did not
result in withdrawal of good time credit but instead in
disciplinary or administrative segregation.

E.g.,

Grillo v. Coughlin, 31 F.3d 53 (2d Cir. 1994); Griffin
v. Spratt, 969 F.2d 16 (3d Cir. 1992); Cook v. Lehman,
863 F. Supp. 207 (E.D. Pa. 1994); Edwards v. White, 501
(...continued)

An additional procedural requirement was set forth
in Superintendent, Massachusetts Correctional
Institution at Walpole v. Hill, 472 U.S. 445, 453-456
(1985). In that case, the Court held that there must
be some evidence which supports the conclusion of the
disciplinary tribunal.
34

F. Supp. 8 (M.D. Pa. 1979), aff'd, 633 F.2d 209 (3d Cir.
1980).15
The Supreme Court's decision in Sandin, however,
marked a shift in the focus of liberty interest analysis
from one "based on the language of a particular
regulation" to "the nature of the deprivation"
experienced by the prisoner.

Id. at 2299.

In Sandin

the Court was presented with the procedural due process
claims of a state prisoner who had been found guilty of
misconduct and sentenced to 30 days in disciplinary
segregation.

Id. at 2296-97.

The Court first found

that the approach adopted in Hewitt -- described above - was unwise and flawed.

Id. at 2298-2300.

The Court

also rejected plaintiff Conner's argument that "any
state action taken for punitive reasons encroaches upon
a liberty interest under the Due Process Clause even in
the absence of any state regulation."

Id. at 2300.

The

Court reasoned, inter alia, that "[d]iscipline by prison
15. Even if Wolff was applicable in this case, McClure
has not alleged how any Defendant failed to comply with
Wolff.
35

officials in response to a wide range of misconduct" is
expected as part of an inmate's sentence.

Id. at 2301.

The nature of plaintiff Conner's confinement in
disciplinary segregation was found similar to that of
inmates in administrative segregation and protective
custody at his prison. Id.
Focusing on the nature of the punishment instead
of on the words of any regulation, the Court held that
the procedural protections in Wolff were inapplicable
because the "discipline in segregated confinement did
not present the type of atypical, significant
deprivation in which a state might conceivably create a
liberty interest."

115 S.Ct. at 2301.

The Court

examined the nature of Conner's disciplinary segregation
and found that "[b]ased on a comparison between inmates
inside and outside disciplinary segregation, the State's
actions in placing him there for 30 days did not work a
major disruption in his environment."

Id.

In the final

holding of the opinion, the Court stated "that neither
the Hawaii prison regulation in question, nor the Due
36

Process Clause itself, afforded Conner a protected
liberty interest that would entitle him to the
procedural protections set forth in Wolff." Id.
(emphasis added).
In light of Sandin, prison disciplinary
segregation will violate the protected liberty interest
of the Fourteenth Amendment only if it dramatically
departs, in length of time or otherwise, from basic
prison conditions and imposes atypical, significant
hardship on the inmate.
This court and others within this circuit,
applying Sandin in various actions, have found no merit
in the procedural due process claims presented. See Diaz
v. Canino, 502 Fed. Appx. 214, 218-219 (3d Cir.
2012)(360 days in disciplinary segregation did not
deprive inmate of protected liberty interest); Smith v.
Messinger, 293 F.3d 641, 653 (3d Cir. 2002)(seven months
in disciplinary segregation is insufficient to trigger a
due process violation); Griffin v. Vaughn, 112 F.3d 703,
706-708 (3d Cir. 1997)(no liberty interest avoiding
37

fifteen (15) month placement in administrative custody
because said confinement was not atypical); Young v.
Beard, 227 Fed. Appx. 138 (3d Cir. 2007)(aggregate 980
days in disciplinary segregation did not violate the due
process clause).
The complaint and attachments thereto reveal
that McClure was confined at Dauphin County Prison from
December 26, 2012, to sometime in September, 2013, a
period of no more than 10 months.

Assuming that McClure

was confined is disciplinary segregation for the entire
10 months,16 under Sandin and its progeny such
confinement does not amount to an atypical significant
hardship giving rise to a due process violation.
Under even the most liberal construction,
McClure’s complaint fails to state a claim upon which
relief can be granted and is in violation of Rule 8.
Accordingly, the complaint is subject to dismissal by
the court. Such dismissal will be ordered with leave to

McClure does not specify the total period of time
he spent in segregated confinment.

16.

38

file an amended complaint. See Ala’ Ad-Din Bey v. U.S.
Department of Justice, 457 Fed.Appx. 90, 91 (3d Cir.
2012)(quoting Salahudin v. Cuomo, 861 F.2d 40 (2d Cir.
1988)).
Although the complaint as filed fails to state a
cause of action against any of the named defendants, it
is possible that the deficiencies may be remedies by
amendment.
opportunity.

Consequently, McClure will be granted such
McClure is also advised that the amended

complaint must be complete in all respects.

It must be

a new pleading which stands by itself without reference
to the complaint already filed.

Such amended complaint

should set forth his claims in short, concise and plain
statements.

It should specify which actions are alleged

as to which defendants.

If McClure fails to file an

amended complaint adhering to the standards set forth
above, this case will be closed.

39

An appropriate order will be entered.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated:

February 19, 2016.

40