Small v. Kauffman et al

Filing 88

MEMORANDUM (Order to follow as separate docket entry) re 78 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Third Amended Complaint filed by K. Kauffman, Connie Green. Signed by Honorable Jennifer P. Wilson on 8/1/2022. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEROME SMALL,

:
:
Plaintiff,
:
:
v.
:
:
K. KAUFFMAN, SUPERINTENDENT, :
et al.,
:
:
Defendants.

Civil No. 1:20-CV-01242

Judge Jennifer P. Wilson

MEMORANDUM
Jerome Small (“Plaintiff”) is a self-represented individual formerly
incarcerated at the Huntingdon State Correctional Institution (“SCI-Huntingdon”),
in Huntingdon, Pennsylvania.1 Plaintiff initiated this action in July 2020 asserting
that Defendants Superintendent K. Kauffman (“Kauffman”) and his assistant
Connie Green (“Green”) violated his Eighth Amendment rights and retaliated
against him for his filing of grievances. (Docs. 1, 20, 77.) Presently ripe for
disposition is Defendants’ motion to dismiss Plaintiff’s amended complaint. (Doc.
78.) For the following reasons, the court will grant in part and deny in part
Defendants’ motion to dismiss. The court will dismiss Plaintiff’s Eighth
Amendment claims with prejudice. The court will dismiss the retaliation
relocation claim against Defendant Kauffman without prejudice. The court will

1

Plaintiff is currently housed at SCI-Greene. See http://inmatelocator.cor.pa.gov (search:
HF6068; last visited July 21, 2022).
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not dismiss the retaliation claim against Defendant Kauffman based on the
relocation to a facility further away from Plaintiff’s family. The court will dismiss
with prejudice the retaliation claims against Defendant Kauffman regarding
Plaintiff’s housing at SCI-Greene. The court will dismiss without prejudice the
retaliation claims against both defendants based on the withholding of magazine,
legal papers, and property.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff initiated his action by filing an initial complaint in July of 2020.
(Doc. 1.) He filed an amended complaint in November of 2020, which this court
deemed to be a supplemental complaint. (Docs. 20, 69, p. 8.)2 Defendants filed a
motion for summary judgment. (Doc. 30.) On December 3, 2021, this court
entered an order allowing Plaintiff’s retaliation claims included in the
supplemental complaint to proceed, dismissing Plaintiff’s Eighth Amendment
claims, and allowing Plaintiff to file an amended complaint. (Doc. 70.) The
memorandum accompanying the order included instructions on how to file an
amended complaint, including “any amended pleading filed by Small replaces all
prior pleadings filed with the court. Therefore, Small must plead all claims against
Defendants, including those that were not dismissed by the court, i.e. his retaliation
claim, in his second amended complaint.” (Doc. 69, p. 27.)

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For ease of reference, the court utilizes the page numbers from the CM/ECF header.
2

Plaintiff then filed an amended complaint on February 11, 2022, which is the
operative complaint in this case. (Doc. 77.) In the amended complaint, he
realleges both the Eighth Amendment claims based on COVID-19 procedure,
realleges his retaliation claims, and raises new retaliation claims. (Id.) He alleges
that On March 17, 2020, the inmates housed at SCI-Huntingdon were locked down
due to the COVID-19 pandemic. (Id., ¶ 3.) On June 19, 2020, Plaintiff filed a
grievance to Defendant Connie Green reporting that staff were walking around
without masks or wearing improper masks, including scarves, bandanas, and
fleeces, that the staff on A/block tested positive for COVID-19, and that Plaintiff
developed COVID-19 symptoms after four inmates tested positive. (Id., ¶ 4.) He
further alleges that Plaintiff was never tested for COVID-19. (Id.) Plaintiff reports
that Defendant Green dismissed this grievance as untimely, while the violations
were still ongoing. (Id., ¶ 5.) He alleged that Defendant Kauffman, the
superintendent of the facility, was in the presence of staff who were either wearing
an improver mask or improperly wearing masks. (Id., ¶ 6.) Plaintiff alleges that
on August 7, 2020, Defendant Kauffman witnessed a work supervisor for inmates,
Mrs. Miller, not wearing a mask in the main hallway and did not take action. (Id.,
¶ 7.) Ms. Miller came through A/block without a mask on August 28, 2020, and
on September 2, 2020. (Id.) On June 23, 2021, Defendant Kauffman witnessed

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Officer Kyper with a “pantyhose style mask” and did not take action. (Id.) Officer
Kyper continued to wear this mask until Plaintiff was transferred. (Id.)
Plaintiff further alleges that Defendant Kauffman allowed bigger cohort
sizes than the Department of Corrections’ policy allowed. (Id., ¶ 8.) In December
of 2020, the Department of Corrections published a memo that cohort sizes were to
remain at 8 to16 people, and on February 5, 2021 and on March 10, 2021, the
whole bottom tier of the A/block was sent to A year at one time. (Id.) A year is
approximately 35 years by 10 yards, and one tier contains 95 plus inmates. (Id.)
On March 10, 2021, the high side was quarantined after someone got sick after
mixing the high side and low side and they did not test all the inmates.
Plaintiff alleges that Defendant Kauffman failed to put in place an
appropriate screening and control procedure, and that this failure helped to create a
dangerous environment becoming cruel and unusual punishment in violation of the
Eighth Amendment. (Id., ¶ 9.) The screening and control procedures consisted of
a head temperature check and having a face covering to enter the facility. (Id.)
Finally, Plaintiff alleges that Defendants Kauffman was aware of poor ventilation
at SCI-Huntingdon. (Id., ¶ 10.)
In summation of the Eighth Amendment claims, Plaintiff alleges that both
Kauffman and Green failed to ensure that all staff members at SCI-Huntingdon
were abiding by the DOC’s protocols and policies for mask wearing by staff,
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cohort sizes, and having the appropriate screening and control procedures in place.
(Id., ¶ 11.)
Plaintiff also alleges retaliation. First, he brought new claims of retaliation
regarding his transfer to SCI-Greene rather than facilities closer to his family and
being held in “SDU” instead of the general population. (Id., ¶ 12.) Plaintiff also
re-alleged the retaliation claims originally included in the supplement to his
complaint regarding withholding of magazines. (Id., ¶ 15.) He also brought new
claims of retaliation regarding alleged withholding of his legal paperwork. (Id., ¶
16.)
Defendants have filed a motion for summary judgment under Fed. R. Civ. P.
12(b)(6). (Doc. 78.) The parties have briefed the issues and the motion is ripe for
review.
JURISDICTION
The court has jurisdiction over Plaintiff’s 42 U.S.C. § 1983 action pursuant
to 28 U.S.C. § 1331, which allows a district court to exercise subject matter
jurisdiction in civil cases arising under the Constitution, laws, or treaties of the
United States. Venue is proper in this district because the alleged acts and
omissions giving rise to the claims occurred at SCI-Huntingdon, located in
Huntingdon County, Pennsylvania, which is in this district. See 28 U.S.C. §
118(b).
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STANDARD OF REVIEW
In order “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “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. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The pleadings of self-represented plaintiffs are to be liberally construed and
held to a less stringent standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193
(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be
granted leave to file a curative amended complaint even when a plaintiff does not
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seek leave to amend, unless such an amendment would be inequitable or futile.
See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.
2014). A complaint that sets forth facts which affirmatively demonstrate that the
plaintiff has no right to recover is properly dismissed without leave to amend.
Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).
DISCUSSION
A. Plaintiff’s Eighth Amendment Claims
The Eighth Amendment prohibits cruel and unusual punishment, which
includes the unnecessary and wanton infliction of pain by prison officials. U.S.
Const. Amend. VIII; Farmer v. Brennan, 511 U.S. 825 (1994). Although the
Constitution “does not mandate comfortable prisons ... neither does it permit
inhumane ones.” Farmer, 511 U.S. at 833 (quoting Rhodes v. Chapman, 452 U.S.
337, 349 (1981)). Conditions of confinement may, consistent with the
Constitution, be restrictive and harsh. Rhodes, 452 U.S. at 347. Prison officials
must, however, provide prisoners with adequate food, shelter, clothing, and
medical care, and take reasonable measures to guarantee their personal safety.
Farmer, 511 U.S. at 832; Helling v. McKinney, 509 U.S. 25, 31–32 (1993).
Prison conditions constitute cruel and unusual punishment if they result in
serious deprivation of the prisoner’s basic human needs. See Tillman v. Lebanon
Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). Only conditions that are so

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reprehensible as to be deemed inhumane under contemporary standards or deprive
an inmate of minimal civilized measures of the necessities of life violate the Eighth
Amendment. See Hudson v. McMillian, 503 U.S. 1, 8–9 (1992); Wilson v. Seiter,
501 U.S. 294, 298 (1991). However, “[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.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373–34 (3d Cir.
2019) (quoting Wilson, 501 U.S. at 304).
“A claim of inhumane prison conditions may rise to the level of an Eighth
Amendment violation where the prison official ‘deprived the prisoner of the
minimal civilized measure of life’s necessities’ and ‘acted with deliberate
indifference in doing so, thereby exposing the inmate to a substantial risk of
serious damage to [his] future health.’” Palakovic v. Wetzel, 854 F.3d 209, 225 (3d
Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016)). Such a
claim contains two requirements: an objective and subjective component. Farmer,
511 U.S. at 834. A prisoner asserting a claim that their conditions of confinement
violate the Eighth Amendment must allege (1) that objectively, they were
“incarcerated under conditions posing a substantial risk of serious harm,” and (2)
that the defendant prison official personally knew of the substantial risk to the
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inmate’s health or safety and failed to “respond [ ] reasonably to the risk.”
Farmer, 511 U.S. at 834, 844–45. Notably, deliberate indifference requires more
than mere negligence. Farmer, 511 U.S. at 835. Furthermore, “prison officials
who actually knew of a substantial risk to inmate health or safety may be found
free from liability if they responded reasonably to the risk, even if the harm
ultimately was not averted.” Farmer, 511 U.S. at 844.
Defendants do not dispute the objective component of the Farmer standard,
and agree that COVID-19 virus constitutes a substantial risk of harm to inmates.
(Doc. 79, p. 8.) Therefore, the only issue is whether the prison officials named as
defendants personally knew of the substantial risk to the inmate’s health and failed
to respond reasonably to the risk. In order to allege this element, Plaintiff has
pleaded facts intended to show that Defendants Kauffman and Green had actual
knowledge of the substantial risk: that Defendant Green was aware of the staff not
using masks based on Plaintiff’s grievance, Doc. 77, ¶ 4; that Defendant Kauffman
witnessed an unmasked Ms. Miller and an inadequately masked Officer Kyper, Id,
¶ 7; that Defendant Kauffman allowed bigger cohort seizes on three occasions, Id.,
¶ 8; that Defendant Kauffman failed to put in appropriate screening and control
procedures, Id., ¶ 9; and that Defendant Kauffman was aware of poor ventilation in
the facility, Id., ¶ 10.

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The Third Circuit has held that while a supervisor cannot encourage
constitutional violations, “a supervising public official has [no] affirmative
constitutional duty to supervise and discipline so as to prevent violations of
constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d
126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990).
The test for a sufficiently culpable state of mind on the part of the prison officials
is focused not on isolated failures but on the defendants’ entire course of conduct.
Swain v. Junior, 961 F.3d 1276, 1287–88 (11th Cir. 2020). Here, the DOC has
adopted detailed preventative steps to mitigate the risk to inmates and staff and to
control the spread of COVID-19 through the state correctional institutions. The
court may take judicial notice of this information, as it is publicly available on a
governmental website. See Vanderklok v. United States, 868 F.3d 189, 205 (3d
Cir. 2017). “A review of these steps suggests that DOC officials, including
Defendants, have not acted unreasonably with respect to the threat posed by
COVID-19 and instead have instituted measures to safeguard the entire inmate
population, including Plaintiff.” Bevins v. Kauffman, No. 1:20-cv-2012, 2021 WL
322168, at *5 (M.D. Pa. Feb. 1, 2021).
While the court understands Plaintiff’s concerns regarding the impact of the
COVID-19 pandemic in an institutional setting, it finds that Plaintiff’s complaint

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has failed to state a claim for which relief can be granted pursuant to the Eighth
Amendment.
B. Plaintiff’s Retaliation Claims
It is well-settled that prison officials may not retaliate against an inmate
because he exercises his right of access to the courts. Fantone, 780 F.3d at 191. A
prisoner asserting a retaliation claim must allege the following elements: (1) he
engaged in constitutionally protected conduct; (2) he suffered an adverse action
sufficient to deter a person of ordinary firmness from exercising his constitutional
rights; and (3) the constitutionally protected conduct was “a substantial or
motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333
(3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). The
filing of a lawsuit or a prison grievance constitutes protected activity under the
First Amendment. Fantone, 780 F.3d at 191. The court now applies this
framework to Plaintiff’s claims against the Defendants.
1. Transfer to SCI-Greene
Plaintiff alleges that his transfer from SCI-Huntingdon to SCI-Green instead
of a closer facility was retaliation for filing his Eighth Amendment claims, and that
Defendant Kauffman signed off on the transfer. (Doc. 77, ¶ 12–13.) Therefore,
these claims are only alleged against Defendant Kauffman.

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First, as noted above, it is well settled that the filing of a lawsuit or of a
prison grievance constitutes protected activity under the First Amendment.
Fantone, 780 F.3d at 191. However, Plaintiff does not allege this was the reason
for his transfer. Instead, Plaintiff alleges that the transfer, which took place in June
of 2021, followed a fight with his “celly” in May of 2021 and was deemed to be a
“separation transfer.” (Doc. 77, ¶ 12.) Therefore, Plaintiff fails to allege facts to
support a finding that the transfer itself was in retaliation for filing the instant suit.
Absent alleged facts that support such a finding, Plaintiff’s retaliation claim is
dismissed without prejudice.
Second, Plaintiff also alleges that the transfer to a facility as far away from
his family as SCI-Green rather than the facilities closer to his family in which he
did not have any separation requirements was in retaliation for filing of the instant
action. (Doc. 77, ¶ 13.) The court acknowledges that “the Constitution itself does
not give rise to a liberty interest in avoiding transfer to more adverse conditions of
confinement,” and inmates generally have no due process liberty interest in how
they are classified or where they are incarcerated. Wilkinson v. Austin, 545 U.S.
209, 221 (2005); see Meachum v. Fano, 427 U.S. 215, 225 (1976) (“That life in
one prison is much more disagreeable than in another does not in itself signify that
a Fourteenth Amendment liberty interest is implicated when a prisoner is
transferred to the institution with the more severe rules.”); Ali v. Gibson, 631 F.2d
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1126, 1134–35 (3d Cir.1980) (a prisoner has no liberty interest in remaining at a
particular prison and the Constitution does not require a hearing prior to a transfer).
However, a transfer in retaliation for the exercise of a constitutional right is an
actionable constitutional violation. Underwood v. Mendez, No. 3:04-CV-1624,
2005 WL 2300631, *5 (M.D. Pa. Sep. 9, 2005). Therefore, Plaintiff’s retaliation
claim that he was transferred further away from family because he filed the instant
action is an actionable claim that will be allowed to proceed against Defendant
Kauffman.
Third, Plaintiff claims that once relocated to SCI-Greene the retaliation
continued by not being placed in the general population. (Doc. 77, ¶ 12–13.) In
order to state a claim under § 1983, a plaintiff must sufficiently allege that the
defendants had personal involvement in the act or acts that the plaintiff claims
violated his constitutional rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988). This claim lacks the personal involvement of Defendant Kauffman,
as determinations regarding housing were up to supervisors at SCI-Greene, and not
supervisors at SCI-Huntingdon. Therefore, this retaliation claim is dismissed with
prejudice.
2. Magazines
Next, Plaintiff alleges a retaliation claim based on Defendants withholding
his magazines. (Doc. 77, ¶ 15.) Plaintiff’s complaint fails to establish the third
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element for a retaliation claim under Fantone. He does not allege that the filing of
the instant lawsuit, was the cause of the retaliation. Fantone, 780 F.3d at 191.
This element was previously alleged in the supplemental complaint, Doc. 20, p. 1,
but Plaintiff was directed to reallege these allegations in his amended complaint,
Doc. 69, p 27. Looking at only the amended complaint, this claim fails to state a
claim for which relief can be granted and is dismissed without prejudice.
3. Legal Work and Property
Plaintiff also raises a retaliation claim that his legal work and property had
not been delivered to him at SCI-Greene following the transfer. (Doc. 77, ¶ 16.)
Again, Plaintiff has failed to allege that this delay was in retaliation for filing the
instant action. See Fantone, 780 F.3d at 191. Therefore, this claim is dismissed
without prejudice.
CONCLUSION
Defendants’ motion to dismiss, Doc. 78, will be granted in part and denied
in part. Plaintiff’s Eighth Amendment claims against Kauffman and Green will be
dismissed with prejudice. Plaintiff has had the opportunity to amend these claims
and has failed to state a claim for which relief can be granted. Plaintiff’s
retaliation claim against Defendant Kauffman premised on the transfer to SCIGreene will be dismissed without prejudice. Plaintiff’s retaliation claim against
Defendant Kauffman based on being relocated further from his family will not be

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dismissed. The retaliation claims against both Defendants premised on the
withholding of magazines and the withholding of legal work and property will be
dismissed without prejudice. Plaintiff’s retaliation claim premised on his housing
following placement in SCI-Green will be dismissed with prejudice.
Plaintiff will be granted leave to file an amended complaint, but he must
clearly label the document as his second amended complaint and use the docket
number assigned to this case. Further he is cautioned that any amended pleading
filed with the court replaces all prior pleadings filed with the court. Therefore,
Plaintiff must plead all remaining claims against Defendants, including only those
that were not dismissed by the court, i.e. his retaliation claim locating him further
from family.
An appropriate order will follow.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: August 1, 2022

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