Hill v. Lappin et al

Filing 62

MEMORANDUM Entry of summary judgment in favor of Defendants Lappin and Norwood on the basis of lack of personal involvement is appropriate. Based upon the undisputed facts, especially the submmitted videotape evidence, Defendants request for summary judgment with respect to Plaintiffs claims of excessive force, denial of medical care, and issuance of a meritless misconduct charge will be granted. Finally, defendants request for qualified immunity will be granted with respect to Plaintiffs claim of being subjected to unconstitutional conditions of confinement. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 3/15/12. (cc, )

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

DAVID E. HILL,
Plaintiff
v.
HARLEY LAPPIN, ET AL.,
Defendants

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CIVIL NO. 3:CV-11-319
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
David E. Hill (Plaintiff), an inmate presently confined at
the United States Penitentiary, Lewisburg, Pennsylvania (USPLewisburg), initiated this pro se Bivens1-type civil rights action.
An Amended Complaint (Doc. 12) was subsequently filed.
Named as Defendants therein are Director Harley Lappin and
Regional Director J.L. Norwood of the Federal Bureau of Prisons
(BOP) as well as the following USP-Lewisburg officials: Warden B.A.
Bledsoe; Lieutenants T. Johnson and C. Scampone; Correctional
Officer (CO) Kevin Gemberling; Emergency Medical Technician (EMT)
B. Walls; and Physician Assistant (PA) F. Alama.
According to the Amended Complaint, on August 31, 2010
Plaintiff was housed in the USP-Lewisburg Special Management Unit
1. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). Bivens stands for the proposition that "a
citizen suffering a compensable injury to a constitutionally
protected interest could invoke the general federal question
jurisdiction of the district court to obtain an award of monetary
damages against the responsible federal official." Butz v.
Economou, 438 U.S. 478, 504 (1978).
1

(SMU).

On the morning of said date, Plaintiff refused an order to

be placed in handcuffs by Lieutenant Scampone and backed away from
his cell door because he disagreed with a determination that he
should be assigned a cellmate, Inmate John Anthony Cole.2
Approximately one (1) hour later, Scampone returned and
again ordered Plaintiff to “cuff up.”

Doc. 12, ¶ 14.

This time,

Hill complied and was taken from his cell by the “force team” which
was accompanying Scampone.

Id.

Plaintiff alleges that during this

extraction his head and neck were twisted and his back was bent
over in a compromising position.

Hill also claims that the force

team placed him in overly tight ambulatory restraints which
purportedly caused injury to his wrists and legs. The Plaintiff was
then placed in a cell with Inmate Coles who had also been placed in
restraints.
It is next asserted that two hours later Scampone and Walls
returned to Hill’s cell but refused the prisoner’s request to
loosen the restraints.

Several hours later, Defendant Johnson

purportedly denied a similar request by Plaintiff to have his
restraints loosened.

The Amended Complaint asserts that Hill

remained in restraints for a total of eleven (11) hours.

During

that period, he was allegedly unable to lie down on his bunk, eat,
or use the toilet.
In addition, Hill states that he was issued a meritless
misconduct report by Defendant Gemberling which charged him with

2.

Inmate Cole similarly refused to be housed with Hill.
2

making threatening remarks towards Inmate Cole.3

Finally, Hill

contends that he sought but was denied adequate medical treatment
for head, neck, wrist, and waist injuries by PA Alma.
18.

See id. at ¶

Plaintiff seeks declaratory relief as well as punitive and

compensatory damages.
Defendants have responded to the Amended Complaint by filing
a motion to dismiss and for summary judgment.

See Doc. 37.

Plaintiff has opposed the motion which is ripe for consideration.
Discussion
Motion to Dismiss
Defendants’ pending dispositive motion is supported by
evidentiary materials outside the pleadings.

Federal Rule of Civil

Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleading are
presented to and not excluded by the
court, the motion must be treated as one
for summary judgment under Rule 56. All
parties must be given reasonable
opportunity to present all the material
that is pertinent to the motion.
Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials
accompanying the Defendants' motion.

Thus, their motion will be

treated as solely seeking summary judgment.

See Latham v. United

States, 306 Fed. Appx. 716, 718 (3d Cir. 2009)(when a motion to
dismiss has been framed alternatively as a motion for summary
judgment such as in the present case, the alternative filing “is
3. The Amended Complaint contends that Warden Bledsoe created a
policy whereby inmates who refuse cellmates are issued falsified
misconduct reports.
3

sufficient to place the parties on notice that summary judgment
might be entered.”)
Summary Judgment
Defendants assert that they are entitled to entry of summary
judgment on the grounds that: (1) this Court lacks jurisdiction
over BOP Director Lappin; (2) the claims against Defendants Lappin,
Norwood and Bledsoe are improperly premised on a theory of
respondeat superior; (3) the claims against Defendants in their
official capacities are barred by the doctrine of sovereign
immunity; (4) the undisputed record establishes that Plaintiff was
not subjected to an excessive use of force; (5) Hill did not have a
serious medical need;(6) Plaintiff was not subjected to
unconstitutional conditions of confinement; and (7) they are
entitled to qualified immunity.
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that
would allow a reasonable fact-finder to return a verdict for the
non-moving party.

Id. at 248.

The court must resolve all doubts
4

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden at
trial.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).

5

Lack of Jurisdiction
Defendants’ initial argument asserts that this Court lacks
personal jurisdiction over Defendant Lappin, the retired Director
of the BOP.

See Doc. 43, p. 5.

According to their supporting

brief, Defendant Lappin was employed as the Director of the BOP in
Washington, D.C. and was a resident of Maryland. The Defendants
assert that BOP Director Lappin “did not have sufficient contacts
with Pennsylvania for the Court to retain personal jurisdiction.”
Id.
As explained in Trujillo v. Williams, 465 F.3d 1210, 1217-18
(10th Cir. 2006):
The exercise of jurisdiction over a nonresident defendant
comports with due process “‘so long as there exists minimum
contacts between the defendant and the forum State.’” The
minimum contacts necessary for specific personal
jurisdiction may be established where the “defendant has
‘purposefully directed’ its activities toward the forum
jurisdiction and where the underlying action is based upon
activities that arise out of or relate to the defendant’s
contacts with the forum.”
Based upon a review of the Amended Complaint there is no
assertion by Plaintiff that Director Lappin purposefully directed
his activities to Pennsylvania or can otherwise be found in
Pennsylvania.

There is also no suggestion that Plaintiff’s claims

are based upon activities that arise out of or are related to
Defendant Lappin’s contacts with Pennsylvania.

Accordingly,

Plaintiff has failed to satisfy his burden of establishing either
that the cause of action arose from the Defendant’s forum related
activities or that the Defendant has systematic contacts with the

6

forum state.

See Asanov v. Hunt, 2006 WL 1289055 *1 (M.D. Pa. May

8, 2006)(Conner, J.).
In light of the failure of the Amended Complaint to set
forth any allegations which could establish that retired Director
Lappin is subject to personal jurisdiction in Pennsylvania, entry
of summary judgment is appropriate.

See Greer v. Safeway, No.

09-4007, 2009 WL 754769 (10th Cir. March 24, 2009) (affirming sua
sponte dismissal of in forma pauperis action where it was clear
that defendants were not subject to personal jurisdiction in Utah).
Moreover, even assuming that this Court does have personal
jurisdiction over former Director Lappin on the basis that he had
continuous and systematic and contacts with Pennsylvania, for the
reasons set forth below it is apparent that the Defendant lacked
personal involvement in the alleged constitutional misconduct.
Respondeat Superior
Defendants’ second argument maintains that there are no
allegations that Defendants Lappin, Norwood, and Bledsoe had any
personal involvement in the alleged constitutional misconduct and
any attempt by Plaintiff to establish liability against those
officials solely based upon their supervisory capacities must fail.
See Doc. 43, p. 7.
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the conduct
complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
7

United States.

Groman v. Township of Manalapan, 47 F.3d 628, 638

(3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 114142 (3d Cir. 1990).
Civil rights claims brought cannot be premised on a theory
of respondeat superior.
(3d Cir. 1988).

Rode v. Dellarciprete, 845 F.2d 1195, 1207

Rather, each named defendant must be shown, via

the complaint's allegations, to have been personally involved in
the events or occurrences which underlie a claim.

See Rizzo v.

Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077 (3d Cir. 1976).

As explained in Rode:

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, 845 F.2d at 1207.
Retired Director Lappin and Regional Director Norwood are
clearly employed in supervisory capacities by the BOP.

There is no

allegation that either of those officials had direct involvement
with respect to any of the alleged constitutional violations which
occurred at USP-Lewisburg.

It is specifically noted that there is

no contention that either of those officials in any way authorized
or acquiesced in the August 31, 2010 cell extraction and use of
ambulatory restraints which is the foundation for this action.
There are no facts alleged which could support a claim that they
acquiesced in Warden Bledsoe allege initiation of a policy

8

requiring that prisoners who refuse cellmates are to be issued
misconduct charges.

Based upon the standards announced in Rode,

Director Lappin and Regional Director Norwood are entitled to entry
of summary judgment since it is apparent Plaintiff is attempting to
establish liability against those officials solely on the basis of
their respective supervisory capacities.
With respect to Warden Bledsoe it is undisputed that he is
employed in a supervisory capacity at USP-Lewisburg.

According to

the undisputed record, at the time of the alleged events of August
31, 2010, Bledsoe was attending training in San Diego, California
and there is no allegation in the Amended Complaint that he
authorized or acquiesced in the August 31, 2010 decision to use a
force team to extract Hill from his cell and thereafter place the
inmate in ambulatory restraints.

Likewise, there is no contention

that the Warden had any involvement in the subsequent decision as
to the prisoner’s need, if any, for medical treatment.
Hence the only basis for liability against Bledsoe is
Plaintiff’s bald assertion that Bledsoe “has created a policy where
he has instruct [sic] his staff to write false incident reports
when inmates refuse to except [sic] cellmates.”

Doc. 12, ¶ 17.

Based upon an application of the standards set forth in
Rode, Bledsoe is entitled to entry of dismissal on the basis nonpersonal involvement with exception of the claim that he
implemented an unconstitutional policy requiring the issuance of
meritless misconduct charges to USP-Lewisburg inmates who refused
to accept cellmates.
9

It is also possible that Plaintiff may be attempting to
establish liability against Lappin, Norwood, and Bledsoe due to
their responses or non-response to administrative grievances or
complaints.

Prisoners have no constitutionally protected right to

a grievance procedure.

See Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J.,
concurring) (“I do not suggest that the [grievance] procedures are
constitutionally mandated.”); Speight v. Sims, No. 08-2038, 2008 WL
2600723 at *1 (3d. Cir. Jun 30, 2008)(citing Massey v. Helman, 259
F.3d 641, 647 (7th Cir. 2001)(“[T]he existence of a prison
grievance procedure confers no liberty interest on a prisoner.”)
While prisoners do have a constitutional right to seek
redress of their grievances from the government, that right is the
right of access to the courts which is not compromised by the
failure of prison officials to address an inmate’s grievance.

See

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance
regulations providing for administrative remedy procedure do not
create liberty interest in access to that procedure).

Pursuant to

those decisions, any attempt by Plaintiff to establish liability
against Lappin, Norwood and Bledsoe based upon their handling of
his administrative grievances or complaints does not support a
constitutional claim.

See also Alexander v. Gennarini, 144 Fed.

Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident
grievance process not a basis for § 1983 liability); Pryor-El v.
Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because prison
grievance procedure does not confer any substantive constitutional
10

rights upon prison inmates, the prison officials' failure to comply
with grievance procedure is not actionable).
Accordingly, summary judgment will be entered in favor of
Defendants Lappin, Norwood, and Bledsoe on the grounds of lack of
personal involvement with exception of the of the sole claim that
Warden Bledsoe implemented an unconstitutional policy requiring the
issuance of meritless misconduct charges to USP-Lewisburg inmates
who refused to accept cellmates
Eleventh Amendment
Defendants’ next argument contends that Plaintiff’s action
to the extent that it raises claims for monetary damages against
them in their official capacities is barred by the Eleventh
Amendment.

See Doc. 43, p. 10.

The United States is generally immune from suit absent an
explicit waiver of sovereign immunity, United States v. Mitchell,
445 U.S. 535, 538 (1980).
nature,”

This “immunity is jurisdictional in

FDIC v. Meyer, 510 U.S. 471, 475

(1994), and extends to

government agencies and employees sued in their official
capacities.

Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996);

Chinchello v. Fenton, 805 F. 2d 126, 130, n. 4 (3d Cir. 1986).
“Congress has not waived sovereign immunity for damages
claims for constitutional violations.”

Germosen v. Reno, Civil No.

99-1268, slip op. at 13 (M.D. Pa. Sept. 20, 2000)(Vanaskie, C.J.).
Therefore, entry of summary judgment in favor of the Defendants is
appropriate to the extent that the Amended Complaint asserts Bivens
claims against them in their official capacities.
11

Excessive Force
With respect to Plaintiff’s assertions of being subjected to
excessive force by the force team, Defendants contend that based
upon the undisputed record “no reasonable person would conclude
defendants’ conduct amounted to a violation of Hill’s
constitutional rights.”

Doc. 43, p. 15.

In addition they claim

entitlement to qualified immunity.
Defendants explain the undisputed facts show that “Hill was
not assaulted or treated roughly in any manner.”

Id., p. 13.

Plaintiff counters that because he eventually consented to be
cuffed up there was no need for him to be forcefully extracted from
his cell by the force team and placed in ambulatory restraints.
A correctional officer's use of force in order to constitute
cruel and unusual punishment, must involve the "unnecessary and
wanton infliction of pain."
(1986).

Whitley v. Albers, 475 U.S. 312, 319

“It is obduracy and wantonness, not inadvertence or error

in good faith, that characterize[s] that conduct prohibited by the
Cruel and Unusual Punishment Clause, whether the conduct occurs in
connection with establishing conditions of confinement, supplying
medical needs, or restoring official control over a tumultuous
cellblock.”

Id.

In a later ruling, the United States Supreme Court
recognized that the use of force may constitute cruel and unusual
punishment even if the prisoner does not sustain "significant"
injuries.

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

The core

judicial inquiry is “whether force was applied in a good faith
12

effort to maintain or restore discipline or maliciously and
sadistically to cause harm.”

Fuentes v. Wagner, 206 F.3d 335, 345

(3d Cir.), cert. denied, 531 U.S. 821(2000); Brooks v. Kyler, 204
F.3d 102, 106 (3d Cir. 2000)(even a de minimis use of force, if
repugnant to the conscience of mankind, may be constitutionally
significant).

As explained in Fuentes:

Resolution of an Eighth Amendment claim
therefore ‘mandate[s] an inquiry into a
prison official’s state of mind.’ Two
considerations define that inquiry. We
must first determine if the deprivation
was sufficiently serious to fall within
the Eighth Amendment’s zone of
protections. If not, our inquiry is at an
end. In other words, we must determine if
they were motivated by a desire to inflict
unnecessary and wanton pain. ‘What is
necessary to establish an “unnecessary and
wanton infliction of pain. . .” varies
according to the nature of the alleged
constitutional violation.’However, if the
deprivation is sufficiently serious, we
must determine if the officials acted with
a sufficiently culpable state of mind.
Fuentes, 206 F.3d at 344.
It is undisputed that the August 31,2010 incident was
triggered when Plaintiff refused a direct order by Lieutenant
Scampone to be placed in handcuffs.

The parties also concur that

shortly thereafter Scampone returned to Plaintiff’s cell with a
force team at which time Plaintiff consented to be placed in
handcuffs.

The prisoner was then taken from his cell, placed in

restraints, searched and escorted to another cell.
The most relevant and compelling evidence regarding this
incident is the submitted videotape footage taken of the events at

13

issue which clearly details the entire extraction of Hill from his
cell as well as the subsequent search and escort carried out by the
force team.

Based on this Court’s thorough review of the

undisputed videotape evidence, there was simply no altercation on
the day in question. On the contrary, the video evidence confirms
that Plaintiff consented to be placed in handcuffs and did not
resist being placed in ambulatory restraints.

There is also no

evidence that any correctional officer did anything more then that
firmly hold the prisoner.

Hill was not struck in any fashion or

unnecessarily shoved or pushed.

Plaintiff did not verbalize any

complaints of being injured and does not appear to be in pain.
It is apparent to this Court that based upon an application
of the factors announced in Brooks and Whitley to the undisputed
facts, the actions taken by Defendants and the members of the force
team were not an intentional sadistic attempt to inflict harm on
Plaintiff but rather a good faith effort to diffuse what began as a
dangerous situation.

See Wilson v. Horn, 971 F. Supp. 943, 948

(E.D. Pa. 1997)(a plaintiff must establish that the force was
applied maliciously and sadistically, instead of in good faith).
Moreover, while Plaintiff may have at the most experienced some
temporary discomfort there has been no evidence presented which
could establish that the force which was exercised was excessive.
See Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied,
414 U.S. 1033 (1973) ("[n]ot every push or shove, even if it may
later seem unnecessary in the peace of the judge's chambers,
violates a prisoner's constitutional rights.") . On the contrary, it
14

appeared that Plaintiff was only firmly held and immobilized by the
force team.

There is no indication that Hill was slapped, kicked,

punched or struck in any manner.
While the Plaintiff may have been forcefully held
immobilized and firmly escorted, no reasonable jury could find the
wanton and unnecessary infliction of pain required to establish an
Eighth Amendment violation with respect to the August 31, 2010
incident.

The request for entry of summary judgment with respect

to the assertions of excessive force will be granted.4
Medical Treatment
Plaintiff alleges that the escort and placement of
ambulatory restraints caused injury to his back, neck, wrists and
waist.

See Doc. 12, ¶ 18.

He adds that when he submitted a

request slip to the Medical Department the following day, PA Alama
responded that “I don’t have time to pull you out.”

Doc. 12, ¶ 18.

Defendants counter that they are entitled to summary
judgment because Plaintiff displayed no sign of injury following
the extraction and was examined by a member of the prison’s Medical
Department both after initially being placed in restraints and when
he reported to the Medical Department the following day.
Accordingly, they conclude that those allegations do not establish

4. The United States Supreme Court has stated that “when opposing
parties tell two different stories one of which is blatantly
contradicted by the record so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007).
15

an Eighth Amendment violation and they are entitled to qualified
immunity.
The Eighth Amendment “requires prison officials to provide
basic medical treatment to those whom it has incarcerated.”

Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)).

In order to establish an Eighth

Amendment medical claim, an inmate must allege acts or omissions by
prison officials sufficiently harmful to evidence deliberate
indifference to a serious medical need.

See Spruill v. Gillis, 372

F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).

In the context of

medical care, the relevant inquiry is whether the defendant was:
(1) deliberately indifferent (the subjective component) to (2) the
plaintiff’s serious medical needs (the objective component).
Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).
A serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor’s
attention.”

Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26,

2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr. Inst.
Inmates, 834 F.2d at 347.

“[I]f unnecessary and wanton infliction

of pain results as a consequence of denial or delay in the
provision of adequate medical care, the medical need is of the
serious nature contemplated by the Eighth Amendment.” Young v.

16

Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth
Cty. Corr. Inst. Inmates, 834 F.2d at 347).
It is apparent that the cuts and bruises allegedly suffered
by Plaintiff as a result of the August 31, 2010 incident were not
of such magnitude as to satisfy the serious medical need
requirement.

See Wesson v. Igelsby, 910 F. 2d 278, 284 (5th Cir.

1990)(swollen wrists not a serious medical need); Price v. Engert,
589 F. Supp.2d 240, 246 (W.D.N.Y. 2008)(wrist and hand injuries do
not satisfy the serious medical need requirement).
With respect to the subjective deliberate indifference
component, the Supreme Court has established that the proper
analysis for deliberate indifference is whether a prison official
“acted or failed to act despite his knowledge of a substantial risk
of serious harm.”

Farmer v. Brennan, 511 U.S. 825, 841 (1994).

A

complaint that a physician or a medical department “has been
negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth
Amendment [as] medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”

Estelle, 429

U.S. at 106.
When a prisoner has actually been provided with medical
treatment, one cannot always conclude that, if such treatment was
inadequate, it was no more than mere negligence.
O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

See Durmer v.

It is true, however,

that if inadequate treatment results simply from an error in
medical judgment, there is no constitutional violation.
17

See id.

However, where a failure or delay in providing prescribed treatment
is deliberate and motivated by non-medical factors, a
constitutional claim may be presented.

See id.; Ordonez v. Yost,

289 Fed. Appx. 553, 555 (3d Cir. 2008)(“deliberate indifference is
proven if necessary medical treatment is delayed for non-medical
reasons.”).
Based upon a review of the videotape, it cannot be disputed
that after being placed in restraints, Plaintiff was examined by a
member of the prison’s medical staff who determined that the
prisoner had adequate circulation.

While Hill remained in

restraints he was periodically checked.

See Doc. 40-1, p. 4.

Plaintiff also underwent a medical assessment during that period
that revealed he had no compromise to his circulation and
medical complaints.”

“no

See id. at p. 8.

The following day Plaintiff seen by PA DeLeon for complaints
of neck and back pain.

The PA noted that Plaintiff was able to get

down from the top bunk and ambulate and lean his head towards the
cell door without difficulty.

See Doc. 42-1, Attachment E.

PA

DeLeon also observed that Hill did not have any open wounds or
swelling.

See id.

Accordingly, the undisputed record establishes that
Plaintiff was evaluated by the prison’s medical staff on both
August 31, 2010 and September 1, 2010 and it was determined that he
did not required any medical treatment.

Hence, this is not a

situation where Plaintiff was not provided with medical attention.
There is also no allegation by Hill that he was subsequently

18

diagnosed by any medical professional with having any need for
treatment stemming from the events of August 31, 2010.
Pursuant to the standards developed in Estelle and Durmer,
it is clear that Hill’s assertions at best sound in negligence, not
deliberate indifference.

See Davidson v. Cannon, 474 U.S. 344,

347-48 (1986)(medical negligence does not expose a defendant to
liability under § 1983).

Simply put, “[a]llegations of negligent

treatment are medical malpractice claims, and do not trigger
constitutional protections.”

Whooten v. Bussanich, No. 07-1441,

slip op. at 4 (3d Cir. Sept. 12, 2007)(citation omitted).

Thus,

entry of summary judgment in favor of Defendants with respect to
the claims that there was deliberate indifference to Plaintiff’s
medical needs is appropriate.
Conditions of Confinement
Plaintiff also contends that his placement in ambulatory
restraints for several hours constituted an unconstitutional
condition of confinement.

It is undisputed that after being

removed from his cell Plaintiff was placed in ambulatory
restraints.

He was then placed in a cell with Inmate Cole.

As

previously noted both prisoners objected to their being housed
together.

Hill and Cole both remained in ambulatory restraints for

approximately eight (8) hours.

See Doc. 40-1, Attachment B, p. 2.

Defendants assert that while held in restraints, Hill’s well
being was regularly monitored.

Specifically, his restraints were

checked, and there was monitoring of his food consumption, use of
toilet, and overall health.

See Doc. 43.

19

Accordingly, Defendants

conclude that during the several hours that he was in restraints,
the Plaintiff was not subject to unconstitutional conditions of
confinement.

They further claim entitlement to qualified immunity.

As previously mentioned, the United States Supreme Court, in
Farmer described the standard for determining deliberate
indifference as follows:
[A] prison official cannot be found liable
under the Eighth Amendment ... unless the
official knows of and disregards an excessive
risk to inmate health or safety; the official
must be aware of facts from which the inference
could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference.
Farmer, 511 U.S at 837. Thus, to succeed on such a claim, the
prisoner must show: (1) that he was incarcerated under conditions
posing a substantial risk of serious harm; (2) that the defendant
was "aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists"; (3) that the defendant
actually drew this inference; and (4) that the defendant
deliberately disregarded the apparent risk. Id.
The United States Supreme Court in Sandin v. Conner, 515
U.S. 472, 480-84 (1995), the Supreme Court reasoned that
"[d]iscipline by prison officials in response to a wide range of
misconduct" is expected as part of an inmate's sentence.
485.

Id. at

The Third Circuit Court of Appeals applying Sandin has

found

no merit in a procedural due process claim presented regarding
disciplinary custody placement.

See Torres v. Fauver, 292 F.3d

141, 150-51 (3d Cir. 2002)(because prisoners can reasonably
anticipate transfer to disciplinary custody, placement in
20

segregation as a disciplinary sanction did not implicate a
protected liberty interest).
In Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000) the Third
Circuit Court of Appeals addressed a claim involving the placement
of a prisoner in a restraint chair for eight (8) hours following a
disturbance.

The Court found that those circumstances did not

constitute cruel and unusual punishment.

A subsequent ruling, Camp

v. Brennan, 54 Fed. Appx. 78, 81 (3d Cir. 2002) similarly concluded
that the restrain of a prisoner on a table for two days while
shackled and clothed only in a blanket did not constitute an Eighth
Amendment violation.
Following those decisions, the United States Supreme Court
handed down its decision in Hope v. Pelzer, 536 U.S. 730, 737-38
(2002) wherein it recognized that handcuffing an inmate to a
hitching post for seven hours in a standing position, with his
shirt off, subject to sunburn and scorching heat, without water or
bathroom breaks while subject to taunting by correctional officers
presented an Eighth Amendment violation.
In the present case Hill was not confined to either a chair,
hitching post, or a table.

He was also not subject to the extreme

conditions presented in Hope.

Rather, the submitted videotape

undisputably clearly shows that Hill while in restraints had the
ability to sit, stand, and walk about his cell.
Moreover, based upon undisputed institutional records
submitted by the Defendants, Hill’s placement in restraints only
lasted approximately eight (8) hours, those records further show

21

that he was subject to regular monitoring during that period.

He

was not naked and there is no claim that he was denied meals (it
appears that lunch on the day in question may have been the only
meal implicated).
Qualified immunity is an affirmative defense which must be
pleaded by the defendant official.

Verney v. Pennsylvania Turnpike

Comm'n, 881 F. Supp. 145, 149 (M.D. Pa. 1995).

In Harlow v.

Fitzgerald, 457 U.S. 800 (1982), the United States Supreme Court
held "that government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known."

Id. at 818; Sherwood v. Mulvihill, 113 F.3d 396, 398-99

(3d Cir. 1997); Showers v. Spangler, 957 F. Supp. 584, 589 (M.D.
Pa. 1997).

It has also been held that "qualified immunity is

coextensive for suits brought against state officials under 42
U.S.C. § 1983 (1982), and for suits brought directly under the
Constitution against federal officials."

People of Three Mile

Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 144 n.9
(3d Cir. 1984) (citing Butz v. Economou, 438 U.S. 478, 504 (1978)).
The United States Supreme Court in Saucier v. Katz, 533 U.S.
194 (2001), subsequently established a two part test for analyzing
qualified immunity claims.

See also Curley v. Klem, 298 F.3d 271

(3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002).
The initial inquiry in a qualified immunity examination is whether
“the facts taken in the light most favorable to the plaintiff show

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a constitutional violation.”

Bennett, 274 F.3d at 136.

The second

prong requires a determination as to whether the constitutional
right at issue was clearly established.

If so, then a court must

inquire as to “whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 201.

A determination that the conduct

violated a clearly established constitutional right precludes the
granting of qualified immunity.
Assuming

that Hill satisfied the first prong of Saucier,

Defendants are nonetheless entitled to qualified immunity under the
second prong of Saucier, which requires that “a right is clearly
established if it would be clear to a reasonable officer that the
conduct was unlawful in the situation he confronted.”
City of Jersey City, 2002 WL 1877036 *1 (3d Cir. 2002).

Jones v.
Courts

considering a request for qualified immunity must ask if a
reasonable officer would have understood that his actions were
prohibited.

Bennett, 274 F.3d at 136.

Under the standards

developed in Jones and Bennett, it must be shown that the officer
knew the constitutional right existed, ignored the right, and
deliberately acted in violation of that right.
There are relatively few post-Hope cases dealing with
placement in ambulatory restraints.
819558 * 13 (M.D. Pa. March 2, 2011).

See Womack v. Smith, 2011 WL
Many of those cases such as

Womack dealt with far more aggravated circumstances where prisoners
were kept in restraints for a prolonged period of time.

23

However, other post-Hope decisions have indicated that a
short term placement in ambulatory restraints approximate to the
pending factual circumstances does not rise to a constitutional
violation.

See Holley v. Johnson, 2010 WL 2640328 (W.D. Va. June

30, 2010); Barker v. Goodrich, 2010 WL 55719 *5 (S.D. Ohio Jan. 4,
2010).

Based upon those holdings, as well as the prior pre-Hope

decisions of Fuentes and Camp this is simply not a case where “it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”

Saucier, 533 U.S. at

201.
While the placement of Hill in ambulatory restraints could
be viewed as unconstitutional conditions of confinement, there is
no factual support for a finding that the correctional officers
knew or that a reasonable officer would have realized the
challenged conduct was unlawful as contemplated under Saucier.
This is simply not a case where the allegations asserted could
support a conclusion that a reasonable officer would have realized
that his actions were constitutionally prohibited.

Defendants’

request for qualified immunity will be granted.
False Misconduct Charge
An alleged false misconduct charge does not by itself
qualify as a violation of the Eighth Amendment.

See Booth v.

Pensce, 354 F. Supp.2d 553, 558-59 (E.D. Pa. 2005).5

Rather, due

5. Since Hill enjoyed no constitutional right to a single cell,
this is not a case where the charge was issued in retaliation for
the exercise of a constitutional right); Flanagan v. Shively, 783
(continued...)
24

process is satisfied when an inmate is afforded to be heard and to
defend against an allegedly falsified or baseless misconduct
charge.

See Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir.

2002.
Accordingly Plaintiff’s claims that Warden Bledsoe and CO
Gemberling violated his constitutional rights by having him issued
a disciplinary charge which alleged that he made threatening
remarks cannot proceed.
Conclusion
Any Bivens claims for monetary damages against the
defendants in their official capacities is precluded by sovereign
immunity.

Second, the Amended Complaint fails to establish that

personal jurisdiction exists with respect to Defendant Lappin.
Entry of summary judgment in favor of Defendants Lappin and
Norwood on the basis of lack of personal involvement is
appropriate.

Based upon the undisputed facts, especially the

submmitted videotape evidence, Defendants request for summary
judgment with respect to Plaintiff’s claims of excessive force,
denial of medical care, and issuance of a meritless misconduct
charge will be granted.

Finally, defendants ‘ request for

qualified immunity will be granted with respect to Plaintiff’s

5. (...continued)
F. Supp. 922, 931 (M.D. Pa. 1992) (McClure, J.) (same); Wilson v.
Maben, 676 F. Supp. 581, 584 (M.D. Pa. 1987) (Nealon, J.) ("When an
inmate charged with misconduct has been afforded . . . procedural
due process . . ., an allegation that he was falsely accused does
not state a claim for a violation of his constitutional rights . .
. .").
25

claim of being subjected to unconstitutional conditions of
confinement.

An appropriate Order will enter.

S/Richard P.Conaboy___________________
RICHARD P. CONABOY
United States District Judge

DATED: MARCH 15, 2012

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