Tsosie v. Holt et al

Filing 68

MEMORANDUM AND ORDER: It is ORDERED that:1.Defendants Motion to Dismiss, or in the alternative, Motion for Summary Judgment (Doc. 42) is GRANTED.2.The claims against defendants Holt, Ousley, Brassard, Heenan, Shanley, Rosencrance, Moran, Voda, Stuffl e, Provost, Sadowski, Norwood, Lappin, the Bureau of Prisons and the United States are hereby dismissed due to Plaintiffs failure to exhaust his administrative remedies and failure to state a claim. 3.The Clerk of Court is directed to enter judgment in favor of defendants Holt, Ousley, Brassard, Heenan, Shanley, Rosencrance, Moran, Voda, Stuffle, Provost, Sadowski, Norwood, Lappin, the Bureau of Prisons and the United States against Plaintiff.4. Mr. Tsosies Motion to Admit (Doc. 61) is DENIED. 5.Mr. Tsosies Motion to Admit Newly Discovered Evidence (Doc. 65) is DENIED.6.Mr. Tsosies Motion to Supplement the Amended Complaint (Doc. 66) is DENIED.7.The Clerk of Court shall close this file.Signed by Honorable A. Richard Caputo on 4/10/12. (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD L. TSOSIE,
Plaintiff
v.
WARDEN RONNIE HOLT, et al.,
Defendants

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CIVIL NO. 3:CV-10-0255
(Judge Caputo)

MEMORANDUM
I.

Introduction
On February 2, 2010, Plaintiff Ronald L. Tsosie, a federal prisoner

incarcerated at the Canaan United States Penitentiary (USP-Canaan), in Waymart,
Pennsylvania, filed this Bivens1 action pursuant to 28 U.S.C. § 1331. Named as
Defendants are the following Bureau of Prisons (BOP) employees: BOP Northeast
Regional Counsel Henry Sadowski; BOP Northeast Regional Director J. L. Norwood;
BOP Director Harley Lappin; Warden Ronnie Holt; Lieutenant (Lt.) Herbert Ousley;
Lt. Richard Brassard; Senior Officer Christopher Heenan; Senior Officer Specialist

1

In Bivens, the Supreme Court held that a plaintiff may obtain damages for injuries
caused by a federal agent acting “under color of his authority” in violation of a claimant’s
constitutionally protected rights. Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 388, 395, 91 S.Ct. 1999, 2004, 29 L.Ed.2d 619 (1971).
Bivens actions are the federal counterpart to § 1983 claims brought against state officials.
Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004) (citing Brown v. Philip Morris, Inc., 250
F.3d 789, 800 (3d Cir. 2001)). “[C]ourts have generally relied upon the principles developed
in the case law applying section 1983 to establish the outer perimeters of a Bivens claim
against federal officials.” Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir. 1991).

Shanyn Shanley; Senior Officer Ryan Rosencrance; Senior Officer Michael Moran;
Senior Officer Joseph Voda; Corrections Officer (CO) Stuffle, and Senior Officer
Donovan Provost.
Mr. Tsosie filed this action after he was placed in a Special Housing Unit
(SHU) cell with a non-functioning toilet for three days in October 2009. See Doc. 13,
Am. Compl. He also claims that “the administration deliberately erase[d] all of [his
approved telephone] phone numbers,” which resulted in his lost opportunity to speak
with his father before he passed. Id. Mr. Tsosie alleges that the Defendants took
these actions in retaliation for his involvement in a May 2009 incident where another
inmate was assaulted, and a staff member was injured.
Presently before the Court is the Defendants’ Motion to Dismiss, or in the
alternative, Motion for Summary Judgment. Doc. 42. Mr. Tsosie has filed a
response to the motion, and Defendants have filed a reply brief. Thus, the motion is
ripe for disposition. For the reasons set forth below, the Defendants’ motion for
summary judgment will be granted.

II.

Background
A.

Mr. Tsosie’s New Criminal Charge Stemming from
Assault in May 2009.

On May 17, 2009, while incarcerated at USP-Canaan, Mr. Tsosie and two
other inmates assaulted another inmate. See Doc. 48, Defs.’ Statement of Material

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Facts (DSMF) at ¶2; Doc. 59, Pl.’s Statement of Material Facts (PSMF) at pp 83-96,2
¶2. The inmate victim was assaulted with a lock tied to a sheet or belt. DSMF at
¶2; PSMF at ¶3. When staff arrived at the scene of the assault, Mr. Tsosie and the
others did not initially heed the officers’ orders to get to the ground. DSMF ¶¶4-5;
PSMF ¶¶4-5. Eventually, Mr. Tsosie and the other assailants were handcuffed.
DSMF ¶6; PSMF ¶6. Mr. Tsosie, and the other aggressors were criminally charged
with conspiracy to assault; assault with a dangerous weapon; and
assaulting/resisting/impeding officers/employees, and traffic in contraband articles.
DSMF ¶5; PSMF ¶5. On March 16, 2010, Mr. Tsosie pled guilty to assault with a
dangerous weapon and was sentenced to 33 months imprisonment, to run
consecutive to his previously imposed sentence. DSMF ¶9; PSMF ¶¶9-10. All other
charges were dismissed.

B.

Three Days in SHU Cell with Malfunctioning Toilet.

Mr. Tsosie is a Native American. Doc. 13, Am. Compl. at p. 3. On Friday,
October 23, 2009, between 12:30 p.m. and 2:00 p.m., Mr. Tsosie returned from the
Lackawanna County Prison to USP-Canaan. Id.; DSMF ¶10. Plaintiff alleges that
Officers Heenan, Rosencrance and Moran knowingly placed him and another
inmate in a SHU cell with a toilet they could not flush. DSMF ¶11. However,
corrections officers were able to remotely flush the toilet from outside of the cell.

2

Unless otherwise noted, all citations to the record reflect the docket number and
page number assigned by the Electronic Case Filing system (ECF) rather than the page
number of the original document.

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DSMF ¶12. At least once during his shift that day, Officer Heenan flushed the toilet
in Mr. Tsosie’s cell. PSMF ¶19.
On the next shift, between 2 p.m. and 10 p.m., Officer Provost “was the head
officer for the SHU.” Doc. 13 at p. 5; PSMF ¶22. Mr. Tsosie sent an inmate request
slip to him about the broken toilet, but he “ignored the request”. Doc. 13 at p. 7;
PSMR 22; DSMF ¶ 15. Later that night, when Lt. Ousley made his rounds on the
SHU and learned of the malfunctioning toilet, he told Mr. Tsosie “he would look into
another cell” for him. DSMF ¶14; PSMF ¶23.
Plaintiff asked Officers Voda and Stuffle to manually flush the toilet but they
“deliberately walked by as not hearing plaintiff.” DSMF ¶16. Officer Stuffle is
alleged to have turned the water completely off after getting upset with Plaintiff’s
constant requests to flush his toilet. Doc. 13 at p. 7. Mr. Tsosie affirms that Officer
Voda finally flushed the toilet, but only after the smell of feces emanated from the
cell. Doc. 13 at p. 13; PSMF ¶28; DSMF ¶18.
The next day, Saturday, October 24, 2009, Mr. Tsosie spoke again to Lt.
Ousley about the broken toilet and asked to be moved to a different cell. DSMF
¶17; Doc. 13 at p. 5. He was not moved.
On Sunday, October 25, 2009, Officer Shanley was the officer in charge of
the SHU. Mr. Tsosie sent an inmate request slip to her about his housing problems,
but the request went unanswered. PSMF ¶32. Around 5:00 p.m. or 6:00 p.m.,
Plaintiff complained about the broken toilet to Lt. Brassard but was told nothing
could be done until Monday when maintenance staff returned. DSMF ¶¶20-21; Doc.
13 at p. 5; PSMF ¶33. The toilet was flushed once by Officer Brandenburg the
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evening of October 25, 2009. PSMF ¶34.
On Monday, October 26, 2009, around 4:00 p.m., Mr. Tsosie spoke to Officer
Shanley then moved Mr. Tsosie and his cellmate to another cell in the SHU “that
was open all this time.” Doc. 13 at p.7; DSMF ¶¶ 22-23; PSMF ¶35 and ¶ 37.
Officer Moran declares that he worked the 6:00 a.m. to 2:00 p.m. shift at
USP-Canaan on October 23 through 26, 2009. DSMF ¶29. On October 23, 2009,
Officer Stuffle worked overtime on a medical trip escort and was not in the SHU at
any time that day. DSMF ¶¶31-32. Officer Stuffle, however, did work the
afternoon/evening shift in the SHU on October 24 and 25, 2009. DSMF ¶33. He
recalls the SHU was full of inmates on those dates and denies shutting the water to
Mr. Tsosie’s cell off at any time. DSMF ¶¶35-36.

C.

Erasure of Mr. Tsosie’s Telephone Numbers.

Mr. Tsosie alleges that “[t]he administration deliberately erased all my phone
numbers sometime between 10/7 and 10/13 before [he] went to Court ... [he] did not
get his phone numbers put back until January.” Doc. 13 at p. 8; DSMF ¶26. As a
result, he did not learn of his father’s passing and lost the opportunity to speak with
him one last time before he died. Doc. 13 at p. 8; DSMF ¶27.

D.

Mr. Tsosie’s Exhaustion of Administrative Remedies.

On November 22, 2009, Mr. Tsosie attempted to informally resolve the issue
related to his SHU placement in a cell with a broken toilet for three days. Doc. 47-4

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at pp. 70-71. Mr. Tsosie’s counselor advised him that his allegations “are taken
seriously and will be given an appropriate amount of review and/or investigation . . .
we are unable to disclose to you any findings or result of our review in this matter.”
Id. at 72. Plaintiff then filed a formal administrative remedy with Warden Holt on
November 30, 2009, complaining of being placed in a cell with a non-flushing toilet
as well as the erasure of his phone numbers. Id. at p. 68, Admin. Remedy No.
568524-F1; DSMF at ¶50. Warden Holt responded to the grievance on December
22, 2009. Id. at p. 58 and p. 69. Mr. Tsosie was advised that if he was dissatisfied
with Warden Holt’s response he could file an appeal with the Regional Director. Id.
Mr. Tsosie’s appeal to the Regional Director was received on January 13, 2010, and
rejected on January 19, 2010, as untimely. Id. at p. 60; DSMF ¶¶51-52. BOP
records indicate that Mr. Tsosie did not seek an extension of time to file his regional
appeal, nor did he appeal the rejection to the BOP Central Office. DSMF at ¶53.

III.

Standard of Review
A.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a
complaint, in whole or in part, for failure to state a claim upon which relief can be
granted. Dismissal is appropriate only if, accepting as true all the facts alleged in
the complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that
is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 1974, 167 L.Ed.2d 929 (2007), meaning enough factual allegations “‘to raise a
reasonable expectation that discovery will reveal evidence of’” each necessary
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element, Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). The pleading standard of Federal
Rule of Civil Procedure 8 does not require “detailed factual allegations,” but “[a]
pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements
of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662,

, 129 S.Ct.

1937, 1959, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct.
at 1965). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Iqbal, 556 U.S. at

, 129 S.Ct. at 1950.

Thus, when determining the sufficiency of a complaint, a court must
undertake a three-part inquiry. See Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011). The inquiry involves: “(1) identifying the elements of the claim, (2) reviewing
the complaint to strike conclusory allegations, and then (3) looking at the
well-pleaded components of the complaint and evaluating whether all of the
elements identified in part one of the inquiry are sufficiently alleged.” Id.

B.

Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment should be granted “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
pertinent part, parties moving for, or opposing, summary judgment must support
their position by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,

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stipulations (including those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). All doubts as
to the existence of a genuine issue of material fact must be resolved against the
moving party, and the entire record must be examined in the light most favorable to
nonmoving party. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
“[T]he mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986). An issue is genuine only if there is a sufficient evidentiary basis on which a
reasonable jury could find for the non-moving party, and a factual dispute is material
only if it might affect the outcome of the suit under governing law. Kaucher v.
County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Liberty Lobby, Inc., 477
U.S. at 248, 106 S.Ct. at 2510). "[S]ummary judgment is essentially ‘put up or shut
up' time for the non-moving party: the non-moving party must rebut the motion with
facts in the record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument." Berckeley Inv. Group, Ltd. Colkitt, 455 F.3d 195,
201 (3d Cir. 2006). The moving party has the burden of showing the absence of a
genuine issue of material fact, but the nonmoving party must present affirmative
evidence from which a jury might return a verdict in the nonmoving party's favor.
Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. at 2514. "The non-moving party
cannot rest on mere pleadings or allegations," El v. Southeastern Pa. Transp.

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Auth., 479 F.3d 232, 238 (3d Cir. 2007), but "must set forth specific facts showing
that there is a genuine issue for trial." Saldana v. Kmart Corp. , 260 F.3d 228, 231 232 (3d Cir. 2001). Allegations made without evidentiary support may be
disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000). "Conclusory,
self-serving affidavits are insufficient to withstand a motion for summary judgment."
Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002). Hearsay testimony
contained in affidavits or statements that would be inadmissible at trial may not be
included in an affidavit to oppose summary judgment. Petruzzi's IGA Supermarkets,
Inc. v. Darling-Delaware Comp. , 998 F.2d 1224, 1234 n. 9 (3d Cir. 1993). The
non-moving party must raise "more than a mere scintilla of evidence in its favor" in
order to overcome a summary judgment motion. Williams v. Borough of West
Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV.

Discussion
A.

Exhaustion of Administrative Remedies.

Under the Prison Litigation Reform Act (PLRA), before a prisoner may bring a
civil rights action pursuant to 42 U.S.C. § 1983, or any other federal law, he must
exhaust all available administrative remedies. See 42 U.S.C. § 1997e; Porter v.
Nussle, 534 U.S. 516, 524, 122 S.C. 983, 988, 152 L.Ed.2d 12 (2002). There is no
“futility” exception to the administrative exhaustion requirement. Ahmed v.
Dragovich, 297 F.3d 201, 206 (3d Cir. 2002)(citing Nyhuis v. Reno, 204 F.3d 65, 78
(3d Cir. 2000)). The exhaustion requirement of the PLRA is one of "proper

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exhaustion." Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2383, 165 L.Ed.2d
368 (2006). Failure to substantially comply with procedural requirements of the
applicable prison's grievance system will result in the procedural default of a claim.
Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004). Dismissal of an inmate’s claim
is appropriate when a prisoner has failed to exhaust his available administrative
remedies before bringing a civil-rights action. Oriakhi v. United States, 165 F. App’x
991, 993 (3d Cir. 2006)(per curiam)(nonprecedential)(citing Ahmed, 297 F.3d at
209 & n. 9).
Retaliation is a separate claim and prisoners must raise the specific claim of
retaliation in their prison grievance in order to exhaust administrative remedies. See
Boyd v. United States, 396 F. App’x 793, 796 (3d Cir. 2010)(“[T]o pursue a claim in
federal court based on retaliation, [a prisoner] must first have exhausted
administrative remedies for that claim.”); see also Hoffenberg v. Provost, 154 F.
App’x 307, 311 (3d Cir. 2005)(retaliation claim must be presented and exhausted as
a separate claim from underlying assault claim). The exhaustion requirement is
mandatory and cannot be excused for “‘sensitive’ subject matter or ‘fear of
retaliation . . .’” Pena-Ruiz v. Solorzano, 281 F. App’x 110, 113 (3d Cir. 2008)(per
curiam) (nonprecedential).
All individuals incarcerated in institutions operated by the BOP may challenge
any aspect of their confinement using the BOP's procedures for filing a Request for
an Administrative Remedy. DSMF ¶¶38-39; see 28 C.F.R. § 542.10, et seq. (2004);
First, an inmate is to informally present the issue of concern to his unit team through

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an informal resolution attempt. DSMF ¶ 41; see 28 C.F.R. § 542.13. If that does
not resolve the issue, the inmate must submit a formal request for administrative
relief (BP-9) to the Warden. DSMF ¶42; see 28 C.F.R. § 542.14. The warden is
then to respond to the inmate’s complaint within 20 calendar days. DSMF ¶43; 28
C.F.R. § 542.18. An inmate dissatisfied with the Warden's response may submit an
appeal to the Regional Director (BP-10) within 20 calendar days. DSMF ¶44; see §
542.15(a). If dissatisfied with the response from the Regional Director, the inmate
may submit an appeal to the BOP's Central Office (BP-11) within 30 calendar days.
DSMF ¶45. No administrative appeal is considered to have been fully and finally
exhausted until it has been considered by the BOP's Central Office. DSMF ¶46.
In support of their motion for summary judgment in this case, the Defendants
submit the declaration of John E. Wallace, Esq., an attorney-advisor with the United
States Department of Justice, Federal Bureau of Prisons and the primary legal
advisor to USP-Canaan, who has access to all BOP files relevant to the
administrative grievance process. See Doc. 47-4, Wallace Decl. at p. 12-83.
Wallace attaches to his declaration a record of Administrative Remedy Generalized
Retrieval of Mr. Tsosie’s Administrative Remedy filings as of September 15, 2010.
See Doc 47-4 at pp. 35-67.
On November 22, 2009, Mr. Tsosie filed an informal resolution related to his
placement in a cell without a working toilet, the erasure of his phone numbers, and
denial of access to the law library and haircuts in retaliation for his alleged assault of
a USP-Canaan officer. Doc. 47-2 at pp. 70-71. On November 30, 2009, he filed
Administrative Remedy 56824-F1 alleging his phone numbers were erased and he
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is being treated unfairly by staff because of his unresolved criminal assault charges.
Id. at p. 68. The Warden responded on December 22, 2009. Id. at p. 69. Warden
Holt wrote that “[t]he investigation into [his] conduct is still pending criminal [via his]
proceedings” and then when he went out on writ to face these new charges he was
“advised of the status of the investigation.” Id. With respect to the erasure of his
telephone numbers, Warden Holt said he was “unable to disclose any findings or the
result of [the BOP’s] review concerning this matter.” Id. Mr. Tsosie was advised of
his appeal rights. Id. He appealed to the Regional Deputy but his appeal was
rejected as untimely. Id. at p. 60. Attorney Wallace declares that “[r]ecords indicate
that Tsosie did not seek an extension of time to file the regional appeal, nor did he
appeal the rejection to the next level.” Id. at p. 9. Thus, Defendants argue his
grievance is unexhausted, and therefore the claims contained within are subject to
dismissal.
In his opposition brief, Mr. Tsosie argues that he is not required to exhaust
administrative remedies that are not available to him. However, Plaintiff has failed
to support his conclusory statement that the administrative remedy process was
unavailable to him. Mr. Tsosie’s only assertion to support his theory of unavailability
is that as an SHU inmate, he must rely on his counselor to provide him with the
correct forms for each stage of the remedy process. Doc. 59 at p. 9. This “leaves
an inmate with no choice but wait another week to receive the next available
remedy” form. Id. This, however, does not explain why Mr. Tsosie did not seek an
extension of time to file his appeal to the Regional Director on this basis or failed to

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appeal the rejection of his appeal as untimely to the next, and final level, of review.
Clearly, the documents submitted by Defendants as to Mr. Tsosie’s use of the
administrative remedy process demonstrate his familiarity, use, and the availability
of the administrative remedy process to him. Additionally, it reveals his ability to
seek enlargements of time and appeal to final review. Unfortunately, Mr. Tsosie did
not exercise this strategy when pursuing Administrative Remedy 56824.
The record before the Court as to Mr. Tsosie’s exhaustion efforts is clear and
uncontested. Plaintiff failed to properly exhaust his available administrative
remedies before filing this action, and thus the Defendant are entitled to summary
judgment on all claims. See Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d
Cir. 2006).

B.

Erasure of Telephone Numbers.3

Mr. Tsosie alleges that “the administration deliberately erase[d] all my phone
numbers sometime between 10/7 and 10/13 before I went to Court.” Doc. 13 at p.8.
As a result, Plaintiff did not learn of his father’s passing and lost the opportunity to
speak to him one last time. Id. The constitutional right at issue has been described
as the right to communicate with people outside prison walls, and “a telephone
provides a means of exercising this right.” Almahdi v. Ashcroft, 310 F. App’x 519,
521–22 (3d Cir. 2009) (quoting Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir.

3

Although the Court has determined Mr. Tsosie failed to exhaust his administrative
remedies as to the claims raised in the Amended Complaint, the Court will nonetheless
address the merits of defendants’ equally successful alternative arguments as to the
substance of the underlying constitutional claims.

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2002)).
To state a viable § 1983 claim, a plaintiff must plead two essential elements:
(1) the conduct complained of was committed by a person acting under color of
state law; and (2) the conduct deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States. Natale v. Camden County
Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). “A defendant in a civil rights
action must have personal involvement in the alleged wrongs.... Personal
involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d
Cir. 1988). Individual liability can only be imposed if the state actor played an
“affirmative part” in the complained-of misconduct. Id.

Alleging a mere hypothesis

that an individual defendant had personal knowledge or involvement in depriving the
plaintiff of his rights is insufficient to establish personal involvement. Rode, 845
F.2d at 1208.
Based on the above legal standards, any claim against the Defendants for an
alleged First Amendment violation due to the erasure of Mr. Tsosie’s telephone list
is subject to dismissal. Nowhere in the Amended Complaint does Mr. Tsosie allege
that any of the named Defendants played an affirmative role in the alleged
intentional erasure of his telephone list. Consequently, the defendants’ motion to
dismiss will be granted with respect to this claim as to all defendants.

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C.

Placement in SHU Cell with Broken Toilet for Three Days.

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, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994). However, not all deficiencies and inadequacies in prison conditions
amount to a violation of an inmate’s constitutional rights. Likewise, the Eighth
Amendment does not mandate that prisons be free from discomfort. Id. at 832, 114
S.Ct. at 1976.
To sufficiently allege an Eighth Amendment conditions of confinement claim,
a plaintiff must allege: (1) that the deprivation is sufficiently serious; and (2) that the
defendant was deliberately indifferent to this deprivation. Young v. Quinlan, 960
F.2d 351, 359-60 (3d Cir. 1992) (citing Wilson v. Seiter, 501 U.S. 294, 298-303, 111
S.Ct. 2321, 2323-2326, 115 L.Ed.2d 271 (1991)). As to the objective component,
an Eight Amendment violation occurs when an inmate is deprived of “the minimal
civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347,
101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). “[C]onditions that cannot be said to
be cruel and unusual under contemporary standards are not unconstitutional. To
the extent that such conditions are restrictive and even harsh, they are part of the
penalty that criminal offenders pay for their offenses against society.” Id., 452 U.S.
at 347, 101 S.Ct. at 2399. The Eighth Amendment does not mandate that prisons
be free of discomfort. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117
L.Ed.2d. 156 (1992). Only “extreme deprivations” are sufficient to make out an

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Eighth Amendment claim. Id. Again, whether the required showing has been made
depends on a number of factors “includ[ing] the length of confinement, the amount
of time prisoners must spend in their cells each day, the opportunities for activities
outside the cells, and the repair and functioning of basic physical facilities such as
plumbing, ventilation and showers.” Tillery v. Owens, 907 F.2d 418, 427 (3d
Cir.1990).
As to the subjective component, the question is whether the defendant acted
with deliberate indifference to the inmate’s health or safety. Hudson, 503 U.S. at 8,
112 S.Ct. at 999. Thus, when considering a claim under the Eight Amendment,
courts must inquire as to whether “the officials act[ed] with a sufficiently culpable
state of mind” and whether the alleged wrongdoing was objectively “harmful enough”
to establish a constitutional violation. Id.
In reviewing this type of claim, the courts have stressed the importance of the
duration of the complainant’s exposure to the alleged unconstitutional conditions,
and a review of the “totality of the circumstances,” as being critical in the Eighth
Amendment determination, and not just the allegedly egregious conditions
themselves. Rhodes, 452 U.S. at 362-33, 101 S.Ct. at 2407. The denial of toilet
facilities, or exposure to one’s own waste, alone does not automatically equate to an
Eighth Amendment violation. See Wheeler v. Walker, 303 F. App'x 365, 368 (7th
Cir.2008) (rejecting Eighth Amendment claim where prisoner alleged that during a
two week period he had only a thin blanket to protect him from frigid air entering his
unheated cell, roaches crawled over him while he tried to sleep on badly torn
mattress, urine and waste “encrusted” sink and toilet, trash, dirt, and debris covered
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floors, walls, and sink, and stench of waste came from broken toilet); Davis v. Scott,
157 F.3d 1003, 1004 (5th Cir.1998) (holding three day placement in cell with blood
on walls and excrement on floors did not meet Eighth Amendment's objective
component); and Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996)(inmate
confined in cell for four days “made to endure the stench of [his] own feces and
urine,” did not rise to the level of an Eighth Amendment violation).
In this case, examining Mr. Tsosie’s claims under the above identified
principles reveals that he fails to satisfy the objective component necessary to
establish an Eighth Amendment conditions of confinement claim.4 While the Court
accepts that the odor caused by the excrement in the unflushed toilet was intensely
unpleasant, a review of the totality of the circumstances of his confinement as set
forth in the record, does not demonstrate any credible threat to Mr. Tsosie’s health
or safety. Specifically, the total period of his exposure to the challenged conditions
as a whole amounted to 72 hours. During this time, according to Mr. Tsosie, prison
officials remotely flushed his toilet three times. While each of these flushes afforded
only temporary relief, it still provided some level of relief from his exposure to the
smell of human waste. Additionally, Mr. Tsosie does not allege any facts indicating
that his limited period of exposure to the smell of feces and urine caused him any
4

Although Mr. Tsosie describes himself as being a pretrial detainee, he is not. At
all times relevant to this action, Mr. Tsosie was incarcerated at USP-Canaan. Accordingly,
he is, and was, a convicted prisoner since at least his admission to the BOP. The fact that
he incurred additional criminal charges while in jail, and those charges were yet unresolved
when he was housed in the SHU, does not turn back time and convert his status to that of a
pretrial detainee. Thus, his conditions of confinement claims must be considered under the
Eighth Amendment as opposed to the due process clause of the Fourteenth Amendment,
which is the applicable standard for pretrial detainees. See Hubbard v. Taylor, 399 F.3d
150, 158 (3d Cir. 2005).

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serious or significant harm. In fact, Mr. Tsosie does not seek damages for mental or
emotional distress but seeks compensation strictly for the alleged violation of his
constitutional rights. See Doc. 13 at p.5; Doc. 14 at p. 6.
Based on the undisputed facts as to the limited 72 hour duration of Mr.
Tsosie’s stay in the SHU cell with a malfunctioning toilet, Mr. Tsosie has failed to
demonstrate that he was deprived of the minimal civilized measures of the
necessities of life. Thus, Defendants are entitled to summary judgment on this
claim.

D.

Retaliation.

Mr. Tsosie alleges that defendants placed him in the SHU cell with a broken
toilet, and failed to place him in an available cell with a functioning toilet, in
retaliation for his May 2009 involvement in a group assault on another inmate during
which an officer was assaulted by one of Plaintiff’s co-defendants.
“Retaliation for constitutionally-protected activity is itself a violation of rights
secured by the Constitution actionable under section 1983.” White v. Napoleon, 897
F.2d 103, 112–13 (3d Cir. 1990). To prevail on a retaliation claim, the prisoner must
prove: (1) he engaged in constitutionally protected activity; (2) he suffered “some
adverse action” by a state actor; and (3) “a causal link between the exercise of [the]
constitutional right[ ] and the adverse action taken.” Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001). Once a prisoner establishes a prima facie case, the burden
shifts to the defendant to show by a preponderance of the evidence that the same

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disciplinary action would have been taken even in the absence of protected activity.
Rauser, 241 F.3d at 334.
Participation in an assault of another inmate or prison official is not a
protected activity, and thus cannot form the basis of a retaliation claim. Mr. Tsosie
does not argue otherwise. Because attempting to assault another inmate, or a
corrections officer, is not protected conduct under the First Amendment, Mr. Tsosie
fails to state a claim of retaliation. Accordingly, Defendants are entitled to summary
judgment on this claim.

E.

Motions to Admit Additional Documents.

Also pending before the Court is Mr. Tsosie’s Motion to Admit Documents,
Motion to Admit Newly Discovered Evidence, and Motion to Supplement. See Docs.
61, 65 and 66. Local Rule 7.5 requires a party to file a brief in support of any pretrial
motion. Mr. Tsosie did not file a brief in support of any of his motions, therefore they
are deemed withdrawn.
Nonetheless, Mr. Tsosie’s first motion to submit additional documents related
to his claim that “he did write a letter to the Court addressing the violations that
transpired while on pre-trial detainee status.” Doc. 61. The Court has already
established that Mr. Tsosie was not a pretrial detainee prior to pleading guilty to his
new assault charges stemming from his May 2009 assault of another inmate.
Additionally, his letter to Judge Munley, who presided over his criminal trial,
regarding the erasure of his telephone numbers is irrelevant as we dismissed that
claim due to Mr. Tsosie’s failure to allege any of the named Defendants were
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responsible for that act and his failure to exhaust his administrative remedies as to
this claim.
In his second motion to admit documents, Doc. 65, seeks to contest the
factual allegations of Officer Moran’s declaration which Defendants submitted in
support of their motion for summary judgment. Plaintiff wishes to submit documents
that will contradict Officer Moran’s statements that he was not working the shift he
was placed in the SHU cell with the broken toilet. See Doc. 65 at p. 65. Clearly,
Officer Moran is under the impression that Mr. Tsosie was placed in the SHU cell
during evening shift and not during his 6 a.m. to 2 p.m. shift. Mr. Tsosie presents
documentary evidence which reflects that he was placed in the SHU cell around
1:39 p.m., which would be during CO Moran’s shift. While this is a dispute of fact
between the parties, it is not material to our decision because Mr. Tsosie’s Eighth
Amendment claim is subject to dismissal due to his failure to exhaust his available
administrative remedies, and because the temporary nature of his placement in a
cell with a broken toilet does not rise to the level of an Eighth Amendment claim.
Therefore, the motions to submit additional documentation will be denied.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

Date: April 12, 2012

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD L. TSOSIE,
Plaintiff
v.
WARDEN RONNIE HOLT, et al.,
Defendants

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CIVIL NO. 3:CV-10-0255
(Judge Caputo)

ORDER
AND NOW, this 12th day of APRIL, 2012, in accordance with the
accompanying Memorandum, it is ORDERED that:

1.

Defendants’ Motion to Dismiss, or in the alternative,
Motion for Summary Judgment (Doc. 42) is GRANTED.

2.

The claims against defendants Holt, Ousley, Brassard,
Heenan, Shanley, Rosencrance, Moran, Voda, Stuffle,
Provost, Sadowski, Norwood, Lappin, the Bureau of
Prisons and the United States are hereby dismissed due
to Plaintiff’s failure to exhaust his administrative
remedies and failure to state a claim.

3.

The Clerk of Court is directed to enter judgment in favor
of defendants Holt, Ousley, Brassard, Heenan, Shanley,
Rosencrance, Moran, Voda, Stuffle, Provost, Sadowski,
Norwood, Lappin, the Bureau of Prisons and the United
States against Plaintiff.

4.

Mr. Tsosie’s Motion to Admit (Doc. 61) is DENIED.

5.

Mr. Tsosie’s Motion to Admit Newly Discovered Evidence
(Doc. 65) is DENIED.

6.

Mr. Tsosie’s Motion to Supplement the Amended
Complaint (Doc. 66) is DENIED.

7.

The Clerk of Court shall close this file.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

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