Jones v. Catell et al

Filing 26

MEMORANDUM (Order to follow as separate docket entry) re 10 MOTION to Amend/Correct filed by Marcellus A Jones, 13 Amended Complaint filed by Marcellus A Jones, 11 MOTION to Dismiss the Complaint filed by Brandon Hoffner, Patricia Comer, Kimberly Boogs, William Nicklow, Lori Newsome, Hosterman, Baptist, Houser, Bonetti, Crozier, Boose, Benner, Walsh, Alvord, Nitchman, Hoener, 25 MOTION for Extension of Time to File Brief to 15 MOTION to Parti ally Dismiss the Amended Complaint filed filed by Marcellus A Jones, 15 MOTION to Partially Dismiss the Amended Complaint filed by Brandon Hoffner, Patricia Comer, Kimberly Boogs, William Nicklow, Doyle, Lori Newsome, Hos terman, Flinchbaugh, Baptist, Houser, Bonetti, Crozier, Iagovino, Freed, Benner, Boose, Miller, Walsh, Noss, Mayers, Nitchman, Alvord, Misiti, Hoener, Rodriguez. Jones will be permitted to proceed on the following claims:1.First Amendment retaliation claims against Mayers, Flinchbaugh, Misiti, Iagovino, Rodriguez, Benner, Comer, Hoffner, and Newsome;2.Eighth Amendment conditions of confinement claims against Alvord, Kuzar, Newsome, Comer, Gordon, and Hoffner;3 .An Eighth Amendment excessive force claim against Hoffner;4.An Eighth Amendment failure to intervene claim against Hosterman;5.An Eighth Amendment claim for denial of medical care against Dr. Catell; 6.State law claims of conversion and trespass to chattels against Boose, Crozier, Nitchman, Iagovino, Rodriguez, Miller, Mayers, Noss, Doyle, Freed, Misiti, Flinchbaugh, Newsome, Nicklow, Evans, and Benner.An appropriate order follows. Signed by District Judge Joseph F Saporito, Jr on 1/29/25. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MARCELLUS A. JONES,
Plaintiff,

CIVIL ACTION NO. 1:23-cv-1991

v.

(SAPORITO, J.)

CATELL, et al.,
Defendants.
MEMORANDUM
Plaintiff Marcellus A. Jones, a prisoner proceeding pro se and in

forma pauperis, filed an amended complaint (Doc. 13) alleging that
dozens of employees and medical staff at SCI-Camp Hill engaged in a
campaign of abuse against him between July 2022 and June 2023. 25
defendants affiliated with the Pennsylvania Department of Corrections1
have moved to dismiss the complaint in part. (Doc. 15). The Court will
grant the motion in part, but permit Jones to pursue some of his First
and Eighth Amendment claims and state law tort claims.

The “DOC defendants” are defendants Comer, Hoffner, Boose,
Hoerner, Walsh, Hosterman, Newsome, Houser, Baptist, Bonetti, Alvord,
Benner, Nitchman, Crozier, Boogs, Nicklow, Iagovino, Miller, Noss, Doyle,
Mayers, Freed, Flinchbaugh, Misiti, and Rodriguez.
1

I.

BACKGROUND
Although Jones labeled the complaint as a “Proposed Amended

Complaint,” he had the right to file it as a matter of course because it was
filed within 21 days after service of a motion to dismiss his prior
complaint. See Fed. R. Civ. P. 15(a)(1). Therefore, all motions directed to
the prior complaint will be denied as moot, and the Court’s analysis is
directed to the amended complaint and related filings.
Jones’s timeline of events is difficult to track, but in essence, he
claims that various personnel at SCI-Camp Hill targeted him for abuse
because of a prior lawsuit and his complaints against staff. He alleges as
follows: On July 6, 2022, defendants Boose, Crozier, Nitchman, and
several unnamed individuals confiscated Jones’s typewriter for what
Jones describes as “retaliatory purposes.” Sometime in August 2022,
Jones spoke with defendant Benner, a major at SCI-Camp Hill, about
recovering property that was missing from Jones’s cell (although it is
unclear whether the typewriter was among the items discussed). Benner
allegedly said: “[B]ecause you’re known around here for filing
complaints[,] I’m only gonna return some of your stuff . . . I’ll always back
my guys up against you wanna be jailhouse lawyers.” On another

-2-

occasion, Jones asked defendants Benner and Nicklow about his missing
property and Nicklow responded: “[Y]ou need to be grateful that you got
anything [from] us with so many complaints by you, you shouldn’t get
nothing.” Benner then stated: “[Y]ou’ve gotten all I’m gonna let you have
from us [or] else you better file a lawsuit to get it.”
On August 6, 2022, Jones was scheduled to attend a court hearing
in the Huntingdon County Court of Common Pleas, which was allegedly
set “to address Jones[’s] petitions for waiver of counsel, and to have the
pending charges against him dismissed.” However, defendant Alvord, an
assistant superintendent at SCI-Camp Hill, “would not allow Jones to
appear at this hearing at this time.” Instead, defendants Alvord, Kuzar,
Newsome, Comer, Gordon, and Hoffner “signed on” to move Jones into a
cell with no running water or air circulation during an “extremely
oppressive heat wave.” The cell was in a “condemned” section of the
“medical infirmary area,” which was allegedly infested with rodents and
cockroaches. Jones alleges that these defendants were aware of the
conditions, which were “a torture tactic when they confine people to this
specific cell.” Jones has also filed another case in this district, Jones v.

Mros, 4:18-CV-2353 (M.D. Pa. filed Dec. 7, 2018), in which Hoffner is a

-3-

defendant. Comer allegedly told Jones he would “be held in this hot ass
cell with no water until he dropped his [other] case against Hoffner.”
Newsome allegedly told Jones: “I support my officers, so you need to leave
Hoffner out of your lawsuit [bullsh*t] if you want us to stop putting you
in hard cells.” It is unclear how long Jones was kept in the cell.
On August 28, 2022, defendants Hoffner and Hosterman stopped
Jones in a hallway, and Hoffner allegedly stated: “[N]ow look what we
have here, today is the day I’m gonna make you regret that case you filed
against me.” As he made the statement, Hoffner allegedly struck Jones
with a handheld metal detector, while Hosterman “stood by and made
snide derogatory statements encouraging Hoffner’s attack.”
On March 13, 2023, defendants Iagovino and Rodriguez allegedly
took several e-cigarettes, tobacco pouches, and legal books from Jones
during a strip search. Jones asked them why the items had not been
returned to him, and Iagovino responded: “[S]ince you don’t know when
to stop filing paperwork against us you’re not getting nothing back[.]
[Y]ou’re lucky we don’t [f*ck] you up right here.” Rodriguez added: “Yes
ain’t nobody here to help you, so I think you should shut up and keep
Hoffner’s name out of your snitching mouth.” Jones spoke with defendant

-4-

Misiti, a housing block supervisor, about this lost property, and Misiti
allegedly stated: “I’m gonna stick with my officers and co-workers, now
unless you’re willing to drop that case against Hoffner I ain’t giving you
[sh*t].”
In March 2023, defendants Houser and Boogs, a correctional officer
and a nurse, respectively, came to Jones’s cell. Houser allegedly told
Jones “you have to let Dr. [Catell] stick his finger up your ass[] if you
want treatment today.” Jones stated that he would not allow this, and
Boogs allegedly responded, “well you must not want treatment” as
Houser and Boogs walked away laughing. Jones alleges he was “never
allowed to see anybody about his serious medical needs.”
In April 2023, defendants Bonetti and Comer “forced [Jones] into a
torture cell” at a time when he was scheduled to receive a daily injection
of insulin. An unnamed nurse told him he could not get any insulin “per
orders of Dr. Catell.” “Days later,” Dr. Catell came to Jones’s cell and
allegedly “asked [Jones] if he wanted a ‘hand job’ or if he could put a
finger up Jones’s ass.” When Jones refused, Dr. Catell said “you won’t get
any insulin then,” and walked away. The deprivation of insulin caused
Jones to experience dizziness, headaches, eye pain, tremors, and

-5-

excessive urination.
On April 11, 2023, defendants Boose and Hosterman stopped Jones
on his way to get medication. Boose allegedly stated: “[N]o deed goes
unpunished you [f*cking] snitch,” and Hosterman added: “[W]e’ll get
even with you for all of those complaints you put in, we’re gonna [f*ck]
you up real soon.”
On May 15, 2023, Hosterman stopped Jones on his way to get
insulin and told him: “[Y]ou need to stop filing so many allegations
against us, cause you might end up in the hospital for being a little
snitch.” Jones tried to report this to a lieutenant in the area, at which
point Hosterman “ran up behind” Jones and started yelling threats and
obscenities at him. Hosterman allegedly said: “I don’t care if a
lieutenant’s here or not I’ll kick your ass as soon as you walk away from
this nurse’s station, in the middle of your cry-baby tattle-telling.” Jones
attempted to report the threats to a lieutenant again on May 21, 2023,
which prompted Hoffner to tell Jones: “[I]t don’t matter who you run to
here cause nobody’ll do anything to stop us from [f*cking] you up.”
On May 26, 2023, following an investigation into the July 2022
confiscation of Jones’s typewriter, the typewriter was returned to Jones.

-6-

Defendants Miller, Mayers, Noss, Doyle, and Freed proceeded to take the
typewriter again. At the time, Jones was preparing several court filings
using the typewriter’s memory, the loss of which allegedly caused a judge
to enter an order dismissing one of his cases. Jones asked Miller if the
typewriter could be returned, but Miller responded: “I don’t give a [f*ck]
about any of the legal paperwork you need, so keep crying and use up
some more trees with your legal [bullsh*t].” Jones later asked Mayers
why the typewriter had been confiscated, and Mayers allegedly said:
“[W]e don’t like you[,] and since you use that typewriter to write so much
snitch paperwork you won’t be getting it back on our watch.”
On June 28, 2023, Jones was purportedly denied food items that he
had purchased from the prison commissary. Jones complained about this,
which prompted defendants Flinchbaugh, Newsome, Nicklow, Evans,
and Benner to come to his cell. Flinchbaugh allegedly told Jones: “[S]ince
you wanted to be transferred so badly and because you reported that you
were being abused you won’t mind us sharing the food you ordered with
our officers, especially your favorite[,] Hoffner.” Benner added: “[W]e
know you’re not getting the foods you ordered[,] now you should consider
it payment for all the trouble you’ve caused with those complaints you

-7-

made.” Jones was never given a refund for the food items.
The complaint asserts claims for cruel and unusual punishment,
denial of access to the courts, failure to intervene, retaliation, and
unspecified “intentional and conversion torts.” The complaint asserts an
additional claim against defendant Wellpath Solutions (“Wellpath”), SCICamp Hill’s medical services subcontractor, for purportedly failing to
train many of its employees, apparently in connection with Jones’s
placement in the “torture cell” on August 5, 2022.
II.

LEGAL STANDARDS
The DOC defendants seek dismissal of numerous claims pursuant

to Federal Rule of Civil Procedure 12(b)(6). Under 28 U.S.C. § 1915A, the
Court is also obligated to screen any civil complaint in which a prisoner
seeks redress from a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A; James v. Pa. Dep’t of Corr., 230
Fed. App’x 195, 197 (3d Cir. 2007). The Court has a similar obligation
with respect to actions brought in forma pauperis and actions concerning
prison conditions. See 28 U.S.C. § 1915(e)(2)(B)(i); id. § 1915(e)(2)(B)(ii);
42 U.S.C. § 1997e(c)(1); see generally Banks v. Cty. of Allegheny, 568 F.
Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation

-8-

screening procedures and standards).
The legal standard for dismissing a complaint for failure to state a
claim under § 1915A(b)(1), § 1915(e)(2)(B)(ii), or § 1997e(c) is the same as
that for dismissing a complaint pursuant to Rule 12(b)(6). Brodzki v.

Tribune Co., 481 Fed. App’x 705, 706 (3d Cir. 2012) (per curiam); Mitchell
v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp.
2d at 588. “Under Rule 12(b)(6), a motion to dismiss may be granted only
if, accepting all well-pleaded allegations in the complaint as true and
viewing them in the light most favorable to the plaintiff, a court finds the
plaintiff ’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen

Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may
consider the facts alleged on the face of the complaint, as well as
“documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept
the fact allegations in the complaint as true, it is not compelled to accept
“unsupported conclusions and unwarranted inferences, or a legal
conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d

-9-

160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195
(3d Cir. 2007)). The Court also disregards allegations made only in a prior
complaint, see Argentina v. Gillette, 778 F. Appx 173, 175 n.3 (3d Cir.
2019), and any new factual allegations made in the brief opposing the
motion to dismiss, see Hughes v. United Parcel Serv., Inc., 639 F. App’x
99, 104 (3d Cir. 2016) (citation omitted).
Jones asserts claims under 42 U.S.C. § 1983. Section 1983 provides
in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
42 U.S.C. § 1983. To establish a Section 1983 claim, a plaintiff must
establish that the defendants, acting under color of state law, deprived
the plaintiff of a right secured by the United States Constitution. Mark

v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid
dismissal for failure to state a claim, a civil rights complaint must state
the conduct, time, place, and persons responsible for the alleged

- 10 -

violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Further,
“[c]ivil rights claims cannot be premised on a theory of respondeat

superior. Rather, each named defendant must be shown . . . to have been
personally involved in the events or occurrences which underlie a claim.”

Millbrook v. United States, 8 F. Supp. 3d 601, 613 (M.D. Pa. 2014)
(citation omitted). As explained by the Third Circuit Court of Appeals:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs . . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made
with appropriate particularity.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
III.

DISCUSSION
A. Retaliation Claims
To state a prima facie case of First Amendment retaliation, a

plaintiff must show that (1) he was engaged in constitutionally protected
conduct, (2) he suffered an “adverse action” by prison officials sufficient
to deter a person of ordinary firmness from exercising his First
Amendment rights, and (3) the protected conduct was a “substantial or
motivating factor” in the prison officials’ decision to take the adverse
action. Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting
- 11 -

Newman v. Beard, 617 F.3d 775, 781 (3d Cir. 2010)).
“[T]he filing of grievances and lawsuits against prison officials
constitutes constitutionally protected activity” for purposes of a
retaliation claim. See Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir.
2011). Causation can be shown through “unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory
action,” or “a pattern of antagonism coupled with timing to establish a
causal link.” Watson v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016). In some
cases, causation can be established “from the evidence gleaned from the
record as a whole.” Id.
Based

on

the

remarks

attributed

to

defendants

Mayers,

Flinchbaugh, Misiti, Iagovino, Rodriguez, and Benner, the complaint
supports an inference that these defendants either permanently
confiscated Jones’s property or confiscated it for an extended period2, at

2 A permanent deprivation of an inmate’s property is an adverse

action for retaliation purposes. See Mincy v. Chmielsewski, 508 F. App’x
99, 104 (3d Cir. 2013). A short-term deprivation, or a “delay” in returning
property, may not be sufficient. See, e.g., Coit v. Grohowski, No. 1:20-CV1075, 2021 WL 4033116, at *6 (M.D. Pa. Sept. 3, 2021) (listing cases);
Nunez v. Wertz, No. 3:14-CV-0727, 2017 WL 3868524, at *9 (M.D. Pa.
Sept. 5, 2017). The complaint is not entirely clear as to how long Jones
was deprived of the various items, but affording him all reasonable

(continued on next page)

- 12 -

least in part because of Jones’s prior lawsuit or his other “complaints.”3
Jones has also plausibly alleged retaliation claims against Comer,
Hoffner, and Newsome, based on those defendants’ alleged decision to
place him in a cell that was infested with vermin without air circulation
during a heat wave.4
The movants seek dismissal of the claims against Benner,
Flinchbaugh, and Misiti, arguing that Jones’s allegations suggest only a
“failure to address a grievance” about lost property, which is not itself an

inferences, it appears that all relevant items were either withheld for
several months or never returned.
3 At the pleading stage, the Court infers that Jones’s complaints

were protected activity, although it is not always clear whether they were
written grievances or oral complaints. See Mack v. Warden Loretto FCI,
839 F.3d 286, 297-99 (3d Cir. 2016) (recognizing an oral complaint as
protected activity).
4 Although “the law is unsettled as to whether the placement of an

inmate in a dirty, unsanitary cell for several days constitutes an adverse
action for the purposes of a retaliation claim,” Jones sufficiently alleges
that these conditions could have deterred a person of ordinary firmness
from exercising his First Amendment rights. See Hagan v. Mason, No.
1:19-CV-2120, 2021 WL 4502236, at *8 (M.D. Pa. Sept. 30, 2021); see also
Kapellusch v. Schnell, No. 1:23-CV-00226-SPB-RAL, 2024 WL 5319116,
at *7 (W.D. Pa. Dec. 5, 2024), report and recommendation adopted sub
nom. Kappelusch v. Schnell, No. 1:23-CV-00226-SPB-RAL, 2025 WL
72794 (W.D. Pa. Jan. 10, 2025).
- 13 -

adverse action. But the statements attributed to these defendants do not
merely indicate that they fielded his complaints, but also that they
exercised control over Jones’s property and withheld it from him because
of those complaints. 5
The movants also seek dismissal of the claims against Mayers,
Flinchbaugh, Iagovino, Rodriguez, and Benner for lack of causation.
Specifically, they argue that any retaliation allegedly motivated by
Jones’s prior civil suit against Hoffner is implausible, because it was filed
in 2018 and the events here took place in 2022 and 2023. However, the
Court takes judicial notice that in that case, the Court granted partial
summary judgment in August 2022, the parties engaged in unsuccessful
mediation between September and December 2022, and the parties
contested pre-trial motions filed by Jones in April 2023. See Jones v.

Mros, 4:18-CV-2353 (M.D. Pa. filed Dec. 7, 2018). Given these events, the
timing of the alleged retaliation is plausible.

5

See (Doc. 13 at 8-9) (Benner: “[B]ecause you’re known around here

for filing complaints[,] I’m only gonna return some of your stuff”;
Flinchbaugh: “[B]ecause you reported that you were being abused you
won’t mind us sharing the food you ordered with our officers[.]”; Misiti:
“[U]nless you’re willing to drop that case against Hoffner I ain’t giving
you [sh*t].”).
- 14 -

Defendants also argue that Jones has not plausibly alleged that
these defendants would be retaliating for complaints against other
officers, citing cases in which courts declined to make that inference.
However, this is not a case where the plaintiff merely assumes retaliation
from unrelated complaints and invites the Court to make the same
inference. 6 Here, each surviving defendant is alleged to have directly
attributed their adverse actions to Jones’s prior complaints, allegations
that are entitled to the presumption of truth at the pleading stage.
However, Jones’s retaliation claims against seventeen other
defendants will not proceed, including the following7:
• Nicklow: Although Nicklow allegedly commented that Jones
“should be grateful” for a partial return of his property, and
“should[] get nothing,” the complaint does not allege that
Nicklow possessed Jones’s property or that he was responsible

6

Cf. Murray v. McCoy, No. 1:21-CV-320, 2023 WL 2285877, at *8

(M.D. Pa. Feb. 28, 2023) (rejecting claim where plaintiff ’s complaint
“implied” retaliation by officers based on complaints against other
officers); Victor v. Lawler, No. 3:07-CV-2058, 2010 WL 5014555, at *4-5
(M.D. Pa. Dec. 3, 2010) (plaintiff ’s complaint merely “claimed” retaliation
based on a grievance filed against another officer).
7 Any other intended defendants are omitted because the complaint

suggests no plausible adverse action or retaliatory motive.
- 15 -

for deciding whether it should be returned. Nicklow’s
apparent threat about what Jones “should get,” although
unpleasant, is not an adverse action for retaliation purposes.

See Burgos v. Canino, 358 F. App’x 302, 306 (3d Cir. 2009).
Roughly twelve months later, Nicklow was among the officers
who visited Jones’s cell following the alleged confiscation of
his commissary items, but there is no indication that he was
responsible for confiscating the food, or that there is any
connection between that incident and his prior remarks.
• Boose, Crozier, and Nitchman: These defendants are alleged
to have confiscated Jones’s typewriter for “retaliatory
purposes.” This conclusory allegation is insufficient to state a
claim. Ten months later, Boose was alleged to have told Jones
“no deed goes unpunished you [f*cking] snitch,” but the
complaint does not support an inference that this was in any
way connected to the typewriter incident 10 months before.
Jones does not allege any other adverse action connected to
the verbal harassment.
• Alvord, Kuzar, and Gordon: These defendants are alleged to

- 16 -

have “signed on to” placing Jones in what he calls the “torture
cell.” However, in contrast to Comer, Hoffner, and Newsome,
the complaint does not allege that these individuals did so in
retaliation for filing complaints.
• Hosterman: Hosterman is alleged to have made a variety of
threatening or abusive remarks to Jones because of his
complaints or grievances. As noted, verbal abuse does not
sustain a retaliation claim, and the complaint does not
describe any specific adverse action taken by Hosterman
against Jones.
• Noss, Doyle, Freed, and Miller: These defendants were
alleged to have confiscated Jones’s typewriter in July 2023,
but the complaint does not support an inference that they did
so out of retaliation. Miller is quoted to have said, after the
fact: “I don’t give a [f*ck] about any of the legal paperwork you
need, so keep crying . . .”. While this statement indicates a
lack of concern toward Jones’s complaints, that does not itself
support an inference that Miller confiscated the typewriter
because of those complaints.

- 17 -

• Evans: Evans was among the officers who visited Jones’s cell
following the alleged confiscation of his commissary items, but
there is no indication that he was responsible for confiscating
the items.
B. State Law Tort Claims
Jones asserts unspecified state law “intentional and conversion
torts” against various defendants. Defendants seek dismissal of Jones’s
state tort claims on the basis that Pennsylvania has not waived sovereign
immunity, but Pennsylvania law recognizes an exception to sovereign
immunity for certain claims for “damages arising out of a negligent act”
caused by “[t]he care, custody or control of personal property in the
possession or control of Commonwealth parties.” 42 Pa. Con. Stat. Ann §
8522(a), (b)(3)); see, e.g., Alexander v. Gennarini, 144 F. App’x 924, 925
(3d Cir. 2005) (unpublished).8

Defendants point to a case from the Western District of
Pennsylvania in which the court granted summary judgment to prison
officers on a conversion claim, finding that they were immune from suit
because the record indicated their acts were intentional rather than
negligent. See Walton v. Harkleroad, No. 2:13-CV-1109, 2016 WL
11480713, at *7 (W.D. Pa. Mar. 3, 2016), report and recommendation
adopted sub nom. Walton v. Corr. Officer Harkleroad, No. 2:13-CV-1109,
2016 WL 3963214 (W.D. Pa. July 21, 2016). This appears to be at odds
8

(continued on next page)

- 18 -

Under Pennsylvania law, conversion is “the deprivation of another’s
right of property in, or use or possession of a chattel, or other interference
therewith, without the owner’s consent and without lawful justification.”

Universal Premium Acceptance Corp. v. York Bank & Trust Co., 69 F.3d
695, 704 (3d Cir. 1995). Jones plausibly avers claims against the
defendants who allegedly confiscated his property: Boose, Crozier, and
Nitchman (typewriter); Iagovino and Rodriguez (e-cigarettes, tobacco
pouches, and legal books); and Miller, Mayers, Noss, Doyle, and Freed
(typewriter). Jones also states plausible claims against six defendants
who, while not alleged to have confiscated Jones’s property, allegedly had
control over the property and refused to return it: Misiti (e-cigarettes,
tobacco pouches, and legal books); Flinchbaugh, Newsome, Nicklow, and
Evans (commissary items); and Benner (commissary items and other
unspecified property).
The Court also construes Jones’s complaint as stating a claim for
trespass to chattels against these sixteen defendants. The elements of

with the Third Circuit’s interpretation in several unpublished cases
recognizing conversion as a plausible remedy for apparently intentional
deprivations of prisoners’ property. See, e.g., Harris v. Wetzel, 822 F.
App’x 128, 129 (3d Cir. 2020). Regardless, dismissal on this ground would
not be appropriate at the pleading stage.
- 19 -

trespass to chattels are “essentially the same” as conversion. Real v.

Wetzel, No. 19-CV-4128, 2019 WL 6828636, at *8 (E.D. Pa. Dec. 12, 2019)
(quoting Rosemont Taxicab Co. v. Philadelphia Parking Auth., 327 F.
Supp. 3d 803, 828 (E.D. Pa. 2018)); see Pestco, Inc. v. Associated Prods.,

Inc., 880 A.2d 700, 708 (2005) (“A trespass to a chattel may be committed
by intentionally dispossessing another of the chattel, or using or
intermeddling with a chattel in the possession of another.”) (citations
omitted). The tort may apply when the degree of interference with the
property is “not sufficiently important to be classified as conversion,
thereby allowing for damages less than the full market value of the
chattel in question.”9 Deitrick v. Costa, No. 4:06-CV-01556, 2015 WL
1606641, at *16 (M.D. Pa. Apr. 9, 2015). The complaint does not support
any other tort claims for which Pennsylvania has waived sovereign
immunity.
C. Denial of Access to Courts
Next, Jones pursues a claim for denial of access to the courts. To

As potentially relevant here, trespass to chattels provides a
remedy when the possessor is merely “deprived of the use of the chattel
for a substantial time.” See Dickerson v. DeSimone, Inc., No. 1581 EDA
2015, 2016 WL 5921721, at *3 n.2 (Pa. Super. Ct. Sept. 7, 2016) (citing
Restatement (Second) of Torts §§ 217, 218).
9

- 20 -

state a claim, a plaintiff must show (1) that he suffered an “actual injury,”

i.e., that he lost a chance to pursue a “nonfrivolous” or “arguable”
underlying claim; and (2) that he has no other “remedy that may be
awarded as recompense” for the lost claim other than in the present
denial of access suit. Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008)
(quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). “The
complaint must describe the underlying arguable claim well enough to
show that it is ‘more than mere hope,’ and it must describe the ‘lost
remedy.’” Id. at 205 (quoting Christopher, 536 U.S. at 416-17). “Prisoners
may only proceed on access-to-courts claims in two types of cases,
challenges (direct or collateral) to their sentences and conditions of
confinement.” Id. Here, Jones alleges that an unspecified case against
him would have been dismissed if defendant Alvord had permitted him
to attend a hearing in the Huntingdon County Court of Common Pleas.
He also alleges that another case, presumably one that he filed, was
dismissed because he was unable to prepare a filing with his typewriter.
However, he does not describe the cases in sufficient detail to support an
inference that he lost a non-frivolous claim or defense. Nor does he allege
that the cases involved a direct or collateral challenge to his sentence or

- 21 -

his conditions of confinement. Accordingly, this claim may not proceed. 10
D. Non-Medical Eighth Amendment Claims
The complaint suggests three potential Eighth Amendment claims
that do not involve medical care: a conditions of confinement claim based
on what Jones refers to as the “torture cell,” an excessive force claim
against Hoffner for striking him with a metal detector, and a claim
against Hosterman for failure to intervene in the metal detector incident.
Jones’s allegations regarding the “torture cell” support an inference
of an Eighth Amendment violation. The Eighth Amendment “prohibits
any punishment which violates civilized standards and concepts of
humanity and decency,” including deprivations of “the minimal civilized
measure of life’s necessities.” Thomas v. Tice, 948 F.3d 133, 138 (3d Cir.
2020) (quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991)). The conditions
must pose a “substantial risk of serious harm,” and the “prison official
must have a sufficiently culpable state of mind.” Farmer v. Brennan, 511

10 Jones also asserts a “Class of One” claim on the basis that the

defendants “subjected Jones to worse treatment than people confined at
[SCI-Camp Hill] that engaged in legal pursuits.” However, he has not
alleged facts about how these prisoners were treated, or that these
prisoners were “similarly situated” to Jones, as would be required to state
a Fourteenth Amendment equal protection claim. See Renchenski v.
Williams, 622 F.3d 315, 337 (3d Cir. 2010).
- 22 -

U.S. 825, 834 (1994). The complaint must support an inference of
deliberate indifference, meaning that the named defendants “actually
knew of and disregarded constitutional violations.” Thomas, 948 F.3d at
138 (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)).
Although there is no precise standard for when unpleasant or
unsanitary conditions become an Eighth Amendment violation, “[i]t is
clear under Wilson that extreme cell temperatures may satisfy the
objective deprivation requirement . . . if warranted by the surrounding
circumstances,” which is “often an issue to be determined by the trier of
fact.” Forshey v. Huntingdon Cnty., No. 1:13-CV-00285, 2016 WL
7743050, at *3 (M.D. Pa. Dec. 9, 2016) (citing Sampson v. Berks Cty.

Prison, 171 Fed. Appx. 382, 385 (3d Cir. 2006)); see also Kost v.
Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (“Although we recognize that
the Eighth Amendment does not mandate comfortable prisons, we
believe that inmates do have a right to be free of conditions that generate
infestations of vermin.”) (quotation and citation omitted). 11 At the

11

But see Mitchell v. Dodrill, 696 F. Supp. 2d 454, 467 (M.D. Pa.

2010) (where plaintiff alleged “inadequate plumbing,” infestation with
“cockroaches, spiders, worms, [g]nats, mice and other unknown insects,”
lack of ventilation, and temperatures of 100-105 degrees, he failed to

(continued on next page)

- 23 -

pleading stage, Jones’s allegations of persistent heat, vermin infestation,
and lack of ventilation suggest a sufficiently serious deprivation.
Defendants seek dismissal on the basis that Jones “admits he was only
in the cell for one day” (Doc. 16 at 17, citing Doc. 13 ¶ 39), but the Court
finds no such admission in the cited paragraph or elsewhere in the
complaint. Jones further alleges that the defendants allegedly
responsible, Alvord, Kuzar, Newsome, Comer, Gordon, and Hoffner, were
aware of the conditions and placed Jones in that cell with the intent of
exposing him to those conditions. Accordingly, Jones may proceed on
conditions of confinement claims against these defendants.12
Jones may also proceed on an excessive force claim against Hoffner
and the attendant failure to intervene claim against Hosterman. The
Eighth Amendment prohibits prison officials from unnecessarily and

allege that “any of the conditions in his cell jeopardized, or potentially
jeopardized, his health, or caused the cell to be unfit for habitation”).
As noted above, Jones asserts a claim against Wellpath for
inadequate training of employees, apparently relating to the “torture
cell.” However, other than repeating the phrase “failure to train,” Jones
does not allege any facts that would explain how Wellpath’s training was
inadequate, nor identify any other Wellpath policy or custom that caused
the allegedly unconstitutional conditions. See Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003).
12

- 24 -

wantonly inflicting pain in a manner that offends contemporary
standards of decency. See Hudson v. McMillian, 503 U.S. 1, 8 (1992). For
an excessive force claim, the Court must determine whether the “force
was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Banks v. Meck, 531 F. App’x
205, 207 (3d Cir. 2013) (quoting Hudson, 503 U.S. at 7). Jones offers only
a vague description of this incident, but he alleges that Hoffner struck
him with a handheld metal detector and said, “today is the day I’m gonna
make you regret that case you filed against me.” This remark would
support an inference that Hoffner applied force to cause harm and
without a legitimate purpose. At the pleading stage, Jones may proceed
even though he has not alleged that he sustained significant injury from
the attack. See Wilkins v. Gaddy, 559 U.S. 34, 36-38 (2010).
Jones alleges that Hosterman “stood by and made snide derogatory
statements encouraging Hoffner’s attack.” An officer may be liable for
failure to intervene in excessive force against a prisoner if the attending
officer “had a reasonable opportunity to intervene and simply refused to
do so.” See Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002).
Hosterman’s alleged remark supports that inference here. Accordingly,

- 25 -

Jones may proceed on a failure to intervene claim against Hosterman. 13
E. Medical Claims
Jones alleges that various defendants denied him medical
treatment or prevented him from seeking it. For an Eighth Amendment
claim based on denial of medical care, a plaintiff must “make (1) a
subjective showing that ‘the defendants were deliberately indifferent to
[his or her] medical needs’ and (2) an objective showing that ‘those needs
were serious.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir.
2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192, 197
(3d Cir. 1999)).
Jones complains of a March 2023 incident in which officers Houser
and Boogs approached Jones’s cell and told him “you have to let Dr.
[Catell] stick his finger up your ass[] if you want treatment today.” Jones
refused, and Houser and Boogs “walked away laughing.” Even assuming

13 Although Jones asserts a general claim for “failure to intervene”

against all defendants, apparently based on their failure to stop other
retaliatory conduct alleged in the complaint, courts have declined to
recognize such a claim beyond the context of excessive force. See, e.g.,
Armstrong v. Furman, No. 3:19-CV-141, 2020 WL 5545270, at *6 (W.D.
Pa. Sept. 16, 2020) (citing Weimer v. Cnty. of Fayette, Pennsylvania, 972
F.3d 177, 191 (3d Cir. 2020)). To the extent Jones identifies any defendant
with the requisite personal involvement in any of his surviving claims,
the claims proceed against those defendants directly.
- 26 -

from this vague description that Houser and Boogs prevented Jones from
seeking medical attention, the complaint provides no basis to infer that
the officers knew Jones had an objectively serious medical need. Jones
also alleges that in April 2023, Bonetti and Comer placed Jones in a
“torture cell” at a time when he was scheduled to receive insulin. But
again, the complaint does not support an inference that Bonetti and
Comer were aware of an objectively serious medical need or that they
prevented him from receiving medical care in the cell.
Finally, Jones asserts claims based on an April 2023 incident in
which Dr. Catell allegedly denied him insulin.14 Jones alleges that he is
a “‘High Risk’ diabetic who needs many doses of insulin daily,” which
contradicts own allegation in the same paragraph that he was prescribed
a “daily” dose. He alleges that he suffered “dizziness, headaches, eye pain,
tremors, and excessive urination” from the deprivation of insulin. Even
accounting for the inconsistent allegations, the complaint supports an

14 Jones appears to allege a connection between Dr. Catell’s alleged

conduct and the various claims of retribution by non-medical officers that
make up the rest of the complaint. For this reason, the Court will not
dismiss or sever this claim as misjoined pursuant to Federal Rule of Civil
Procedure 20(a)(2), but we may issue future orders as appropriate. See
Fed. R. Civ. P. 21, 42(b).
- 27 -

inference of a serious medical need. See Perkins v. Schwappach, 313 F.
App’x 473, 476 (3d Cir. 2008) (at the pleading stage, allegations of a
“relatively brief” denial of insulin requiring emergency treatment were
sufficient).
Jones alleges that after he refused to perform a sexual act, Dr.
Catell told him “you won’t get any insulin then.” This allegation, assumed
as true at the pleading stage, supports an inference that Dr. Catell was
aware of Jones’s need for insulin and delayed necessary medication for a
non-medical reason. See Rouse, 182 F.3d at 197 (deliberate indifference
exists where a defendant “delays necessary medical treatment based on
a non-medical reason” or “prevents a prisoner from receiving needed or
recommended medical treatment”).
IV.

CONCLUSION
For the reasons described above, Jones will be permitted to proceed

on the following claims:
1.

First

Amendment

retaliation

claims

against

Mayers,

Flinchbaugh, Misiti, Iagovino, Rodriguez, Benner, Comer, Hoffner, and
Newsome;
2.

Eighth Amendment conditions of confinement claims against

- 28 -

Alvord, Kuzar, Newsome, Comer, Gordon, and Hoffner;
3.

An Eighth Amendment excessive force claim against Hoffner;

4.

An Eighth Amendment failure to intervene claim against

Hosterman;
5.

An Eighth Amendment claim for denial of medical care

against Dr. Catell;
6.

State law claims of conversion and trespass to chattels

against Boose, Crozier, Nitchman, Iagovino, Rodriguez, Miller, Mayers,
Noss, Doyle, Freed, Misiti, Flinchbaugh, Newsome, Nicklow, Evans, and
Benner.
An appropriate order follows.

s/Joseph F. Saporito, Jr.

Dated: January 29, 2025

JOSEPH F. SAPORITO, JR.
United States District Judge

- 29 -