Hernandez-Tirado v. Lowe et al
MEMORANDUM (Order to follow as separate docket entry) (PLEASE SEE MEMORANDUM FOR COMPLETE DETAILS)Signed by Honorable A. Richard Caputo on 8/10/17. (lh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSÉ A. HERNÁNDEZ-TIRADO,
CRAIG LOWE, et al.,
CIVIL NO. 3:CV-14-1897
This pro se civil rights action was initiated on September 25, 2014, by plaintiff José A.
Hernández-Tirado, a prisoner formerly confined at the Pike County Correctional Facility
(PCCF), in Lords Valley, Pennsylvania.1 (ECF No. 1, Compl.) An Amended Complaint was
filed on January 16, 2015. (ECF No. 27, Am. Comp.) Named as Defendants are Warden
Craig Lowe; Lieutenant (Lt.) Erik Campos; Correctional Officer (CO) Erik Christensen; CO
Joedy Barry; CO Gaspare Vetrano; and Elisa Wenzel.
Presently before the Court is Defendants’ Motion to Dismiss the Amended Complaint.
(ECF No. 31.) Mr. Hernández-Tirado filed an opposition brief. (ECF No. 33.) Defendants did
not file a reply brief.
For the reasons that follow, the motion will be granted in part and denied in part.
Mr. Hernández-Tirado is currently housed at the Beaumont United States Penitentiary
(USP-Beaumont) in Beaumont, Texas. See ECF No. 38, Change of Address.
Standard of Review
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. See Fed. R. Civ.
P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining
if a plaintiff is entitled to offer evidence in support of his claims. See Semerenko v. Cendant
Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will
ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint
fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
A pleading that states a claim for relief must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement
required by Rule 8(a)(2) must “‘give the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)). Detailed factual allegations are not required.
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964 - 65. However, mere conclusory statements will
not do; “a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must “show” this
entitlement by alleging sufficient facts. Id. While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662,
664, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). As such, “[t]he touchstone of the pleading
standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (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.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
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,”
Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, meaning enough factual allegations “'to raise a
reasonable expectation that discovery will reveal evidence of”' each necessary element.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at
556, 127 S.Ct. at 1965). “The plausibility standard is not akin to a 'probability requirement,' but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S.
at 678, 127 S.Ct. at 1949. “When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679, 127 S.Ct. at 1950.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993)). The court may also consider “undisputedly authentic” documents when
the plaintiff's claims are based on the documents and the defendant has attached copies of the
documents to the motion to dismiss. Pension Benefit Guar. Corp., 998 F.2d at 1196. The
court need not assume that the plaintiff can prove facts that were not alleged in the complaint,
see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit
a complaint's “‘bald assertions’” or “‘legal conclusions,’” Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1429 - 30 (3d Cir. 1997)).
Mr. Hernández-Tirado’s Amended Complaint2
Mr. Hernández-Tirado claims that “since” filing his Complaint he has determined that
Warden Lowe “was aware of the Harassment, Retaliation, Mistreatments Abuse and
Discrimination” he suffered but ignored and failed to remedy the “widespread safety problems”
to which he was exposed. (ECF No. 27, ¶ 22 - 24.) Because Warden Lowe is aware of these
acts “through grievances, letters and complaints seeking help, personally involves Lowe of a
conduct that caused an amounted violation of Plaintiff's Constitutional Rights.” (Id. at ¶ 25.)
He also claims Warden Lowe, “Supervisors and Members of the Grievance Committee”
abdicated their duties to supervise their subordinates and failed to conduct proper
investigations of his grievances against staff. (Id. at ¶¶ 14 - 16).
Consistent with the Fed. R. Civ. P. 12(b)(6) legal standard, supra, the Court will accept Mr.
Hernández-Tirado’s properly pleaded allegations as true.
Corrections Officer Christensen
On August 21, 2014, at about 10:00 p.m., Mr. Hernández-Tirado was escorted from his
housing unit, Unit-C, to the “intake area” based on CO Christensen’s request after he issued
Plaintiff a disciplinary report for being in an unauthorized area and being disrespectful. (Id. at
¶ 29.) CO Christensen issued the misconduct report after ordering Mr. Hernández-Tirado to
return to his lower tier cell after spotting him on the upper tier of the unit. (Id. at p. 70.) Plaintiff
claims “[w]hite race inmates housed in a lower tier were on the upper tier and the C/O only
addressed [him]”. (Id.) Sgt. Graham (a non-defendant and CO Christensen’s supervisor),
interviewed Mr. Hernández-Tirado, and after watching “the video,” dismissed the misconduct
report and sent Plaintiff back to his housing unit. (Id. at ¶ 29.)
Six days later, on August 27, 2014, CO Christensen searched Mr. Hernández-Tirado’s
cell outside of Plaintiff’s presence. (Id. at ¶ 30.) Following the search, CO Christensen issued
Mr. Hernández-Tirado a misconduct for the possession of property belonging to another
person or unauthorized county property and possession of contraband altered item(s). (Id.)
Specifically, CO Christensen found a blue pen casing, “chewed on near the tip,” that contained
a red ink cartridge. CO Christensen found the altered pen in Mr. Hernández-Tirado’s property.
(Id.; see also p. 57.) CO Christensen asked Mr. Hernández-Tirado’s cellmates, Agostini and
Banks, who owned the pen. (Id.) After both denied ownership, Mr. Hernández-Tirado was
issued the misconduct. Plaintiff claims the misconduct was issued by CO Christensen in
retaliation for his conversation with Sgt. Graham, CO Christensen’s supervisor, on August 21,
On September 3, 2014, the PCCF Disciplinary Board, consisting of Lt. Campos, Ms.
Wenzel and CO Vetrano, held a hearing on the misconduct. (Id. at ¶ 50.) Mr. HernándezTirado requested five witnesses to appear on his behalf at the hearing. Four of the five
witnesses were called and questioned by the Disciplinary Board at the hearing. (Id.) The fifth
witness, CO Willis, was not at the facility that day. Inmate Santiago testified he did not see
where the pen was found but overheard CO Willis state that CO Christensen found the pen in
Mr. Hernández-Tirado’s tote. (Id., p. 57.) Inmate Blondell testified to being present when CO
Christensen questioned inmate Banks as to ownership of the pen. (Id.) Inmate Agostini
testified that CO Christensen questioned him about the pen found on his desk. Agostini
disavowed ownership of the pen or telling CO Christensen the pen belonged to Mr. HernándezTirado as reported in the misconduct. (Id.)
Initially, the Disciplinary Board advised Mr. Hernández-Tirado that “[d]ue to speaking
to witnesses,” he would receive their decision on September 4, 2014. (Id., p. 55.) The next
day he was again told that “[d]ue to speaking to witnesses,” he would receive the outcome of
his disciplinary hearing on September 5, 2014. (Id., p. 56.) The Disciplinary Board’s report
notes that “Officer Willis states that Officer Christensen informed him that the pen had been
found in inmate Hernandez-Tirado’s tote.” (Id., p. 57.) “Based on the fact that a blue pen with
a red ink cartridge was found in [his] property the board [found Plaintiff] guilty of the charge
class I #44 A (Possession of contraband: altered items).” (Id., p. 59.) As the second charge
was redundant to the first offense, the Board dismissed it. (Id.) Mr. Hernández-Tirado was
sanctioned to fourteen days in the Restricted Housing Unit (RHU).
Mr. Hernández-Tirado appealed the disciplinary decision claiming a proper investigation
was not conducted. First, he alleged there was “no evidence” presented upon which the
disciplinary board could base its decision. Second, Plaintiff argued his Due Process rights
were violated when CO Willis “was telephone (sic) called on his day off for questioning about
what happened”. (Id., p. 59). Mr. Hernádez-Tirado believes Lt. Campos’ interview of CO
Willis, outside of the presence of himself and the other Board members, was improper. (Id.)
Next, on September 8, 2014, while housed in the institution's RHU, Mr. HernándezTirado claims CO Christensen assaulted him.
CO Putney (non-defendant) and CO
Christensen entered Plaintiff’s cell to place him in restraints prior to escorting him to the law
library. (Id. at ¶ 35.) CO Christensen placed the right leg shackle on Plaintiff “extremely hard
causing pain in [his] right ankle and leaving marks of the shackles.” (Id., p. 51.) When Mr.
Hernández-Tirado complained of pain, CO Christensen, in a funny manner, asked “Why it
hurts?” (Id.) CO “Christensen loosen the shackles and grab Plaintiff right arm and squeezed
it.” (Id. at ¶ 35.) Upon requesting to be seen by a member of the medical staff, CO
Christensen told Mr. Hernández-Tirado to file a medical request slip. (Id.) Mr. HernándezTirado was seen by medical staff the following day. (Id., p. 64.) Although no injury was noted
to his right ankle or right upper arm, he was given Tylenol. (Id., p. 64.)
CO Christensen is alleged to have made the following retaliatory comment to Mr.
Hernández-Tirado “[a] few days” after learning that Mr. Hernández-Tirado spoke to his
supervisor but before Plaintiff’s receipt of the August 27, 2014 fabricated misconduct:
You are the type of dude who likes to file grievances and that it
doesn’t matter if you filed a [lawsuit] because you will not get any
money and nothing is going to be done
(Id. at ¶ 31.)
CO Christensen issued Plaintiff a second retaliatory misconduct on November 27, 2014.
CO Christensen issued Mr. Hernández-Tirado a misconduct report after encountering water
spilling from Plaintiff’s toilet into the hallway and medical area of his housing unit. (Id., p. 61.)
Plaintiff claimed he only flushed the toilet once when it became clogged. (Id.) After the area
was cleaned and disinfected, Mr. Hernández-Tirado was placed in Administrative Segregation.
(Id. at ¶ 32.) Plaintiff claims CO Christensen only issued him a misconduct, even though there
were other inmates on the same unit, when the “situation occurred”. (Id. at ¶ 32.)
At Plaintiff’s Disciplinary Board Action it was learned that Mr. Hernández-Tirado, who
admitted to flooding his cell on other occasions, had a malfunctioning toilet. (Id., p. 62.) The
misconduct was dismissed after it was learned that Mr. Hernández-Tirado’s toilet, and that of
his neighbor's, shared common plumbing and both were malfunctioning when the flooding
Next, Mr. Hernández-Tirado, who is Hispanic, claims CO Christensen discriminated
against him on the basis of his race. CO Christensen allegedly treats Hispanics and AfricanAmericans differently than members of the white race. (Id. at ¶¶ 38 - 39.) Plaintiff claims racial
discrimination to be “the only plausible reason for the treatment [he] is experiencing.” (Id.; see
also p. 49) (“[D]iscriminatory intent is a possible explanation for what was going with the
actions made by” CO Christensen.)
Mr. Hernández-Tirado points to the unfounded
misconducts CO Christensen issued him on “July 21, 2014"3 and November 27, 2014,4 and his
As there is no record of Plaintiff receiving a misconduct on this date, it is believed that he
unreasonable cell searches as evidence of CO Christensen's racial discrimination. (Id. at ¶
39.) Mr. Hernández-Tirado also claims to have suffered emotional distress as a result of CO
Corrections Officer Barry
Mr. Hernández-Tirado claims CO Barry subjected him to racial discrimination. CO
Barry’s “racially offensive comments against Hispanics triggered arguments between inmates
of different races which involve[d] Plaintiff in a serial of arguments”. (Id. at ¶ 45; see also pp.
78 - 83.) On August 12, 2014, at approximately 1:00 p.m., CO Barry made the following
racially charged comments “that could be subject to a race war against White, Blacks and
Hispanics” (Id. at ¶ 46):
all this search is thanks to Santana and Polanco. Just blame it on
the Hispanics people.
While conducting the search, CO Barry told a white inmate (Stearns):
now you cannot be blowing kisses to your girl because Polanco is
complaining about that; I let you do it and do not said nothing to
you but if he (Polanco) does it, I give him a twenty four (24).
(Id. at ¶ 46.) CO Barry’s statements “created an atmosphere of racial tension on the block
(Unit-C) in which Plaintiff has been affected and inmates had being (sic) involved in
altercations (fights) inside of cells and living like enemies arguing”. (Id.) After an altercation
is referring to the August 21, 2014 misconduct he received for being in an unauthorized area.
This is the date Plaintiff received the misconduct for flooding his SNU cell.
between Polanco and Stearns, Polanco was pulled off the housing unit and received a
misconduct. (Id.) Mr. Hernández-Tirado claims that CO Barry’s racially charged comments
created an atmosphere that placed his safety at risk. (Id.; see also pp. 79 - 80). Mr.
Hernández-Tirado does not allege he was involved in a physical altercation with any other
inmate due to the racially hostile environment CO Barry created within his housing unit.
Three months later, on November 15, 2014,5 Mr. Hernández-Tirado claims CO Barry
approached his SNU cell and asked him:
(1) Why did you file a lawsuit against me and did not warn me
about it; and
(2) Do not think that you are getting any money out of this bullshit
because the jail has good lawyers.
(Id. at ¶ 47.) Upset by these comments, Mr. Hernández-Tirado spoke with CO Barry’s
supervisor, Sgt. Frawley and filed a grievance. (Id.; see also p. 81 - 83).
Two months later, on January 8, 2015, CO Barry attempted to file a false misconduct
against Mr. Hernández-Tirado. He claimed Plaintiff threatened another officer. (Id. at ¶ 48.)
After learning that Sgt. Frawley spoke with two other officers who did not confirm his report,
CO Barry reported to Sgt. Frawley that Plaintiff yells offensive comments at him. Again, Sgt.
Frawley investigated the matter and could not confirm CO Barry’s charges.
Hernández-Tirado claims CO Barry’s actions are in retaliation for his filing of grievances and
a lawsuit against him. (Id.)
It is noted that Mr. Hernández-Tirado initiated this action on September 25, 2014.
Plaintiff's Claim for Injunctive Relief is Moot
Mr. Hernández-Tirado no longer resides at the PCCF; he is imprisoned at USPBeaumont in Beaumont, Texas. An inmate's transfer or release from the facility complained
of generally moots equitable and declaratory claims. Sutton v. Rasheed, 323 F.3d 236, 248
(3d Cir. 2008); Abdul- Akbar v. Watson, 4 F.3d 195, 206 (3d Cir.1993). There is nothing in the
present record to suggest a reasonable probability that Plaintiff will return to the PCCF in the
future. Accordingly, Mr. Hernández-Tirado’s claim for injunctive relief will be dismissed as
A governmental entity cannot be held liable for the alleged unconstitutional actions of
its employees on a theory of respondeat superior. See Monell, 436 U.S. at 694, 98 S.Ct. at
2037 - 38. Rather, to state a plausible § 1983 claim against a municipality, the complaint must
contain factual allegations showing that a municipal custom or policy caused the constitutional
violation. Id.; McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009) (the plaintiff
must “identify a custom or policy, and specify what that custom or policy was”). A “direct
causal link between a municipal policy or custom and the alleged constitutional deprivation”
must be established. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103
L.Ed.2d 412 (1989).
“Policy is made when a decisionmaker possessing final authority to establish municipal
policy with respect to the action issues an official proclamation, policy, or edict.” Berg v. Cty.
of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (internal citations and alterations omitted). A
municipal custom, although lacking the formal approval of a policy, refers to those official
practices which are “so permanent and well settled as to constitute ... the force of law.” Monell,
436 U.S. at 691, 98 S.Ct. at 2036.
A custom may be demonstrated by showing that a practice is so well-settled and
widespread that the policymaking officials had actual or constructive knowledge of it. Berg,
219 F.3d at 276. To show causation where the alleged policy or custom does not facially
violate constitutional rights, the plaintiff “must demonstrate that the municipal action was taken
with 'deliberate indifference' as to its known or obvious consequences.” Bd. Of Cty. Comm'rs
v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 1388, 137 L.Ed.2d. 626 (1997).
Under certain circumstances, a municipality's failure to properly train its employees and
officers can amount to a “custom” that will trigger liability under § 1983. See City of Canton
v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). “Where the policy
'concerns a failure to train or supervise municipal employees, liability under section 1983
requires a showing that the failure amounts to 'deliberate indifference' to the rights of person
with whom those employees will come into contact.” Thomas v. Cumberland Cty., 749 F.3d
217, 222 (3d Cir. 2014) (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). To
establish deliberate indifference, it is “ordinarily necessary” for plaintiff to show a “pattern of
similar constitutional violations by untrained employees.” Connick, 563 U.S. at 62, 131 S.Ct.
at 1360. “[A] single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”
Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995). Finally, proof of the existence
of an unlawful policy or custom is not sufficient to impose municipal liability under section 1983,
there must also be a violation of the plaintiff's constitutional rights. Brown v. Comm., Dep't of
Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003).
Here, Mr. Hernández-Tirado claims that the “Supervisory Officers and Committee
Members of the PCCF failed to properly” supervise and monitor Plaintiff's safety and permitted
a “pattern” of staff misconduct to develop and persist. (ECF No. 27, ¶¶ 14 - 16.) Defendants
suggest he “fails to state a Monell claim because he does not identify a Pike County policy,
practice or custom that infringed on his 8th or 14th Amendment rights.” (ECF No. 32, Defs' Br.
in Supp. Mot. to Dismiss, p. 9.) In response, Mr. Hernández-Tirado claims “[t]he rules and
regulations of PCCF has been disrupted by the [ ] defendants violating Plaintiff['s] rights”.
(ECF No. 33-1, Pl's Opp'n Br., pp. 8 - 9.) He claims Warden Lowe knew of the harassment,
retaliation and mistreatment through the grievances and letters sent to him seeking his help
and Warden Lowe failed to respond. (Id., p. 10.) However, Plaintiff does not suggest that
Warden Lowe is a policymaker for the purpose of Monell liability or that his failures were due
to his failure to properly implement a municipal policy or practice which caused his injury.
Based on the allegations of the Amended Complaint, the Court finds that Plaintiff fails to state
a municipal liability claim.
Claims Against the Individual Defendants in their Official Capacities
Mr. Hernández-Tirado sues the individual Defendants in both their official and individual
capacities. (ECF No. 27, ¶ 10.) Section 1983 “creates a private right of action to vindicate
violations of 'rights, privileges, or immunities secured by the Constitution and laws' of the
United States.” Rehberg v. Paulk, 566 U.S. 356, 361, 132 S.Ct. 1497, 1501, 182 L.Ed.2d 593
(2012); Mack v. Warden Loretto FCI, 839 F.3d 286, 302 (3d Cir. 2016). Mr. HernándezTirado's official capacity claims are “only another way of pleading an action against an entity
of which an officer is an agent.” Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658,
690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611 (1978). In an official-capacity suit, the
entity of which the officer is an agent is the real party in interest. Kentucky v. Graham, 473
U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.2d. 114 (1985). In this instance, that is the Pike
County. Mr. Hernández-Tirado concedes his official capacity claims are barred. (ECF No. 331, p. 20.) Accordingly, Mr. Hernández-Tirado's claims against the Defendants in their official
capacities are dismissed.
Respondeat Superior Claims against Warden Lowe
Defendants argue that Mr. Hernández-Tirado fails to state a claim against Warden Lowe
because he lacks personal involvement in the alleged wrongs, and because Plaintiff’s claims
against him are based solely on the doctrine of respondeat superior.
Individual liability can be imposed under Section 1983 only if the state actor played an
“affirmative part” in the alleged misconduct and “cannot be predicated solely on the operation
of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)); Sutton v. Rasheed, 323 F.3d 236, 24950 (3d Cir. 2003). The personal involvement of a defendant in a § 1983 action may be shown
“through allegations of personal direction or of actual knowledge and acquiescence.” Argueta
v. U.S. ICE, 643 F.3d 60, 72 (2011) (quoting Rode, 845 F.2d at 1207). Such allegations,
however, must be made with appropriate particularity in that a complaint must allege the
particulars of “conduct, time, place, and persons responsible.” Evancho, 423 F.3d at 354;
Rode, 845 F.2d at 1207 - 08. 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.
A supervisory official may also be liable for a failure to train subordinates, a failure to
train being considered as subcategory of establishing an unconstitutional policy or practice,
personal conduct that would allow for the imposition of liability on a supervisory official. See
Korth v. Hoover, 190 F.Supp. 3d 394 (M.D. Pa. 2016); Palakovic v. Wetzel, 854 F.3d 209, 233
(3d Cir. 2017). To properly assert such a claim of supervisory liability, a “plaintiff must allege
that: ‘(1) the policy or procedures in effect at the time of the alleged injury created an
unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the
policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the
constitutional injury was caused by the failure to implement the supervisory practice or
procedures.” Mark v. Patton,
, 2017 WL 2557412, *2 (3d Cir. 2017)
(nonprecedential)(quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014),
rev’d on other grounds sub nom. Taylor v. Barkes,
78 (2015)(per curiam)).
, 135 S.Ct. 2042, 192 L.Ed.2d
Nonetheless, a defendant “cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved.” C.H. ex rel. Z.H.
v. Oliva, 226 F.3d 198, 201-202 (3d Cir. 2000). Allegations that a supervisor “had constructive
knowledge of a subordinate's unconstitutional conduct simply because of his role as a
supervisor” do not suffice. Broadwater v. Fow, 945 F.Supp.2d 574, 588 (M.D. Pa. 2013) (citing
C.H. ex. rel. Z.H., 266 F.3d at 202)).
A state prisoner’s allegation that prison officials and administrators responded
inappropriately, or failed to respond to a prisoner’s complaint or official grievance, does not
establish the prison official’s contemporary involvement in the alleged underlying
unconstitutional conduct. Ramey v. Mellow, 675 F. App’x 109, 111 (3d Cir. 2017) (failure to
respond to grievance insufficient basis to state a claim); Simonton v. Tennis, 437 F. App’x 60,
64 (2011) (supervisor’s “secondary review of an inmate’s grievance or appeal” does not
demonstrate personal involvement); Rode, 845 F.2d at 1207 - 08 (after-the-fact review of a
grievance is insufficient to demonstrate actual knowledge necessary to establish personal
involvement); Brooks v. Beard, 167 F. App’x. 923, 925 (3d Cir. 2006) (allegations of
inappropriate response to later filed grievance concerning alleged unconstitutional events fails
to allege personal involvement).
Mr. Hernández-Tirado claims he was issued false misconducts and assaulted by CO
Christensen, and that CO Barry placed his life in danger by creating a racially hostile
environment on his housing unit. He also asserts the members of the disciplinary panel (Lt.
Campos, Ms. Wenzel and CO Vetrano) violated his due process rights at his misconduct
hearing. Plaintiff fails to plead that Warden Lowe was personally involved in the alleged
constitutional deprivations. Additionally, in the sixty (60) plus pages of documentation (ranging
from letters to the Pennsylvania State Police, local police departments, the Marshals Service,
the Department of Justice, misconduct reports, disciplinary appeals, and grievances forms)
attached to the Amended Complaint, none of them suggest a basis upon which the Court can
find his personal involvement in the alleged constitutional violations. See ECF No. 27, pp. 32 100. Notably, the majority of these documents were authored between August and November
2014.6 Moreover, none of them were addressed to Warden Lowe. Plaintiff provides no facts
to support his conclusory allegation that Warden Lowe participated in, knew of or acquiesced
to the other Defendants' alleged violation of his constitutional rights. To the extent Warden
Lowe may have incidentally received copies of the myriad of letters attached to the Amended
Complaint, any attempt by Plaintiff to establish liability against Warden Lowe solely based upon
his after-the-fact knowledge of the allege constitutional violations does not by itself support a
Mr. Hernández-Tirado's arguments regarding policy making ability are equally
insufficient. “[T]o establish a claim against a policy maker under § 1983 a plaintiff must allege
and prove that the official established or enforced policies and practices directly causing the
constitutional violation.” Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 223 (3d Cir.
2015). As noted earlier, Plaintiff fails to allege that Warden Lowe had policy making authority.
Id., 806 F.3d at 223 (“Courts recognize that liability under § 1983 may be imposed on an official
with final policymaking authority if that official establishes an unconstitutional policy that, when
implemented, injures a plaintiff.” (emphasis added)). Mr. Hernández-Tirado thus fails to
sufficiently allege that Warden Lowe is responsible for establishing or enforcing an
unconstitutional policy that caused his injury.
Mr. Hernández-Tirado filed his initial Complaint on September 30, 2014. (ECF No. 1.) His
Amended Complaint was filed on January 16, 2015. (ECF No. 27.)
Plaintiff’s Due Process Claims against Lt. Campos, Ms.
Wenzel and CO Vetrano
A pretrial detainee is protected by the Due Process Clause of the Fourteenth
Amendment. Hubbard v. Taylor, 399 F.3d 150, 157-80 (3d Cir. 2005). “Although pretrial
detainees do not have a liberty interest in being confined in the general prison population, they
do have a liberty interest in not being [segregated] indefinitely ... without explanation or review
of their confinement.” Stevenson v. Carroll, 495 F.3d 62, 69 (3d Cir. 2007). “The protections
due to sentenced inmates provide a floor for what pretrial detainees may expect.” Id.
“The degree of process required under the Fourteenth Amendment varies depending
on the reason for the transfer to more restrictive housing, with greater process accorded to
prisoners who are confined for disciplinary infractions than those moved for purely
administrative reasons.” Stevenson, 495 F.3d at 70. In the context of a pretrial detainee who
is transferred into more restrictive housing for purely administrative purposes, prison officials
need only provide “an explanation of the reason for their transfer as well as an opportunity to
respond.” Id. If, however, a restraint is imposed for disciplinary reasons, a pretrial detainee
is entitled to the process noted in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d
935 (1974).7 (Id.) Where the procedural requirements of Wolff are met, the decision of the
In Wolff, Supreme Court set forth the following minimum procedural due process rights to
be afforded to a prisoner accused of misconduct in prison which may result in the loss of good time
credit: (1) the right to appear before an impartial decision-making body; (2) twenty-four hour
advance written notice of the disciplinary charges; (3) an opportunity to call witnesses and present
documentary evidence in his defense when it is consistent with institutional safety and correctional
goals; (4) assistance from an inmate representative if the charged inmate is illiterate or complex
issues are involved; and (5) a written decision by the fact finder of the evidence relied upon and the
rationale behind the disciplinary action. Wolff, 418 U.S. at 563 - 67, 94 S.Ct. at 2978 - 2980.
hearing examiner satisfies due process if there is “some evidence” to support the decision.
Superintendent v. Hill, 472 U.S. 445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985). The
Supreme Court has held that the standard of review with regard to the sufficiency of the
evidence is whether there is “any evidence in the record that could support the conclusion
reached by the disciplinary board.” Id at 455 - 56, 105 S.Ct. 2774.
Here Mr. Hernández-Tirado attacks both the process and the result of his September
2014 disciplinary hearing held by Lt. Campos, Ms. Wenzel and CO Vetrano. To the extent he
challenges the disciplinary process, he fails to allege sufficient facts to suggest he was denied
due process. The documents attached to the Amended Complaint demonstrate that Mr.
Hernández-Tirado received a copy of the incident report and advance notice of the disciplinary
hearing. He had the opportunity to make his own statement and present witnesses on his own
behalf. None of his inmate witnesses were present when CO Christianson found the altered
pen in Plaintiff’s cell. He was provided with a written statement of the evidence upon which
the disciplinary board relied, and an explanation for the reasons for the sanction imposed.
While Plaintiff argues that it was improper for CO Willis to be interviewed outside of his
presence, inmates do not have a constitutional right to confrontation and cross examination
in prison disciplinary proceedings. Wolff, 418 U.S. at 567 - 68, 94 S.Ct. at 2980. Based on the
allegations of the Amended Complaint, and the documents attached to it, Mr. HernándezTirado has not shown that he did not receive the due process required by Wolff.
Furthermore, due process only requires that disciplinary findings resulting in the loss
of good time credits be supported by “some evidence” in the record. Superintendent v. Hill,
472 U.S. at 454 - 56, 105 S.Ct. at 2773 - 74. Here, the disciplinary board sanctioned Mr.
Hernández-Tirado's to fourteen days of disciplinary custody after holding that an altered pen
was found in Plaintiff’s property. While Plaintiff wishes to dispute whether the altered pen was
found on his desk or in his tote, is immaterial. After receiving testimony from Mr. HernándezTirado's witnesses, the disciplinary board members based their decision “on the fact that a blue
pen with a red ink cartridge was found in [Mr. Hernández-Tirado’s] property the board [found
him] guilty of the charge class I #44A (Possession of contraband: altered items).” (ECF No.
27, p. 58.) Ultimately, under the doctrine of constructive possession, Plaintiff is responsible
for contraband found in his cell. Griffin v. Spratt, 969 F.2d 16 (3d Cir. 1992). Finally, the
disciplinary board members were well within their discretion under Wolff in finding the reporting
officer’s report more credible than Plaintiff.
Mr. Hernández-Tirado's due process claim is also dismissed because he fails to allege
a deprivation of “a protected liberty or property interest” under the Fourteenth Amendment.
The Fourteenth Amendment prohibits the states from depriving “any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. In order to determine
whether a due process violation has occurred, an initial determination must be made that a
protected liberty interest exists and, if so, the next step is to define what process is mandated
to protect it. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d
418 (1995). A protected liberty interest may be created by either the Due Process Clause itself
or by state law. Id. Due process requirements apply only when the prison officials’ actions
impose “an atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.” Id. at 484, 115 S.Ct. at. 2300. Conversely, there can be no due process
violation where there is no protected liberty interest. See Sample v. Diecks, 885 F.2d 1099,
1113 (3d Cir. 1989) see also Diaz v. Canino, 502 Fed.Appx. 214, 217 (3d Cir. 2012) (“Without
the presence of a protected interest, a § 1983 due process claim simply cannot stand.”).
In Sandin, the Supreme Court reasoned, inter alia, that “[d]iscipline by prison officials
in response to a wide range of misconduct” is expected as part of an inmate’s sentence.
Sandin, 515 U.S. at 485, 115 S.Ct. at 2301. The Third Circuit Court of Appeals, applying
Sandin, have found no merit in due process claims presented regarding short term institutional
administrative or disciplinary custody placement. See Torres v. Fauver, 292 F.3d 141, 150 51 (3d Cir. 2002) (placement in segregation as a disciplinary sanction did not implicate a
protected liberty interest); Griffin v. Vaughn, 112 F.3d at 708 (no liberty interest in being free
from fifteen months in administrative custody because said confinement was not atypical).
Thus, even if Mr. Hernández-Tirado disciplinary hearing did not comport with federal due
process, it did not deprive him of a protected interest as he has failed to show that he was
exposed to the atypical conditions for an extraordinary period of time that would implicate a
liberty interest. Accordingly, Mr. Hernández-Tirado’s due process claims against Lt. Campos,
Ms. Wenzel and CO Vetrano will be dismissed.
Plaintiff's Claim of Retaliation against CO Christensen is
To prevail on a retaliation claim, a prisoner must show that: (1) he engaged in
constitutionally protected conduct; (2) he suffered some “adverse action” by prison officials
sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and
(3) that his protected conduct was a substantial or motivating factor in the decision to discipline
him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). “To establish the requisite causal
connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.” Lauren W. V. DeFlaminis, 480 F.3d
259, 267 (3d Cir. 2007). The mere fact that an adverse action occurs after a complaint or
grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link
between the two events.8 See Lape v. Pennsylvania, 157 Fed. App'x. 491, 498 (3d Cir.2005).
Once a prisoner establishes a prima facie case, a defendant may overcome the
retaliation claim by showing “by a preponderance of the evidence that it would have made the
same decision absent the protected conduct for reasons reasonably related to penological
interest.” Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (citation omitted). Even if “a
prisoner demonstrates that his exercise of a constitutional right was a substantial or motivating
factor in the challenging decision, the prison officials may still prevail by proving that they would
have made the same decision absent the protected conduct for reasons reasonably related
to legitimate penological interest.” Rauser, 241 F.3d at 334. When analyzing a retaliation
claim, it must be recognized that the task of prison administrators and staff is difficult, and the
decisions of prison officials require deference, particularly where prison security is concerned.
Id. at 334.
Only where the facts of a particular case are “unusually suggestive” of a retaliatory motive
will temporal proximity, standing alone, support an inference of causation. Krouse v. American
Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
Mr. Hernández-Tirado alleges CO Christensen engaged in a series of retaliatory
activities following his August 21, 2014 conversation with CO Christensen's supervisor, Sgt.
Graham, and his filing of grievances and lawsuits. (ECF No. 27, ¶¶ 26 - 41.) Specifically, he
alleges CO Christensen engaged in the following retaliatory behavior: (1) August 24, 2014,
search of his cell after which he issued him a misconduct for contraband; and (2) issued him
a false misconduct on November 27, 2014, after the plumbing in his cell flooded a portion of
the housing unit.
First, it is beyond dispute that Plaintiff has alleged that he was engaged in
constitutionally protected conduct, the filing of grievances and lawsuits.
Second, Mr. Hernández-Tirado has sufficiently alleged that he suffered an adverse
action in the form of a cell search on August 24, 2014, which would arguably deter a person
of ordinary firmness from exercising his First Amendment rights. Although it is well established
that cell searches are a routine part of prison life, Hudson v. Palmer, 468 U.S. 517, 526 - 27,
104 S.Ct. 3194, 3200 - 01, 82 L.Ed.2d 393 (1984), it does not mean that searches which
constitute “calculated harassment unrelated to prison needs” are permissible. Id. at 530, 104
S.Ct. at 3202. A cell search, and the resulting confiscation of property, may nonetheless
constitute an adverse action,9 if motivated solely by a retaliatory motive. See Stafford v.
Wetzel, Civ. No. 4:CV013-2026, 2015 WL 474273, at *6 (M.D. Pa. Feb. 5, 2015) (denying
defendants' motion to dismiss that a cell search could not constitute adverse action).
An adverse action is any action “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights.” Allah, 229 F.3d at 225.
Accordingly, his retaliation claim concerning his cell search and resulting misconduct will be
permitted to proceed.
With respect Mr. Hernández-Tirado's receipt of misconduct reports, including the
disciplinary report for flooding his cell, even if issued for retaliatory purposes, these claims are
not sufficient to meet the adverse-action element of a retaliation claim. Brightwell v. Lehman,
637 F.3d 187, 194 (3d Cir. 2011) (a misconduct charge against a prisoner, which is later
dismissed, for filing a false grievance does not rise to the level of “adverse” action for purposes
of retaliation claim). Accordingly, Plaintiff's retaliation claim related to CO Christensen's
issuance of misconduct reports, which were ultimately dismissed, do not state a claim of
Claim of Verbal Harassment by CO Christiansen and CO Barry
“It is well-settled that verbal abuse does not give rise to a constitutional violation under
§ 1983.” Begnoche v. DeRose, 676 F. App'x 117, 121 - 22 (3d Cir. 2017). Mere verbal abuse,
even abuse involving racial or sexual harassment, is not actionable as a civil-rights claim.
Dunbar v. Barone, 487 F. App’x 721 (3d Cir. 2012)(nonprecedential) (“[V]erbal threats or
taunts, without more, are not sufficient to constitute a violation of the Eighth Amendment,” also
noting that racial harassment by mimicking Ku Klux Klan hoods failed to state a claim );
Robinson v. Taylor, 204 F. App’x 155, 156 (3d Cir. 2006)(nonprecedential)(inmate claiming
correctional officers made racial and sexual comments toward him failed to state an Eighth
Amendment claim). “However, words accompanied by physically intrusive behavior may
amount to constitutional violation.” Begnoche, 676 F. App'x at 122.
While Mr. Hernández-Tirado may categorize CO Christensen's language as “harassing,”
that does not elevate it to the level of a constitutional violation. See ECF No. 27, Am. Compl.
at ¶31 and ECF No. 33-1, Opp'n Br. at p. 7. CO Christensen's statements while arguably
harassing, without some reinforcing act accompanying them, do not state a constitutional
Next, the Court examines the racially offensive comments by CO Barry. See ECF No.
27 at ¶ 44. Mr. Hernández-Tirado claims CO Barry created a racially charged housing unit due
to his comments that blamed cell searches and other events “on the Hispanics people.” (Id.
at ¶ 46.) He also told Plaintiff that his lawsuits and grievances against him would not result in
him “getting any money out of this bullshit because the jail has good lawyers.” (Id. at ¶ 47.)
This comment made Mr. Hernández-Tirado feel harassed and upset. (Id.)
As Defendants' note, the comments made by CO Barry would certainly be
unprofessional. However, making racially offensive comments in the absence of threats of
physical violence are not actionable. To the extent Mr. Hernández-Tirado claims that CO
Barry's comments, which were directed to the entire block, and not individually at him (or
referenced him), created a racially charged environment pitting Hispanics against other
inmates, he fails to demonstrate that he personally suffered any harm as a result. Construing
Mr. Hernández-Tirado's claim liberally, even if the Court were to extrapolate his claim to one
of asserting that Defendants' did not provide him a safe environment due to CO Barry's
comments, he fails to state a claim as the allegations concerning CO Barry do not rise to the
level of extreme psychological harm.
To prevail on an Eighth Amendment claim under 42 U.S.C. § 1983, plaintiff must show
that (1) he is incarcerated under conditions posing a substantial risk of serious harm, and (2)
the prison officials involved had a sufficiently culpable state of mind, or knew of and
disregarded an excessive risk to his health or safety. See Farmer v. Brennan, 511 U.S. 825,
834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994); Hamilton v. Leavy, 117 F.3d 742, 746 (3d
conditions-of-confinement claim, only those deprivations denying ‘the minimal civilized
measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment
violation.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992)
CO Barry's racially charged comments were made to an entire housing unit, and were
not exclusively directed, or otherwise singled out Plaintiff. Plaintiff does not assert that he was
ever involved in a physical altercation due to CO Barry's comments.
See Gause v.
Dombrowsky, Civ. No. 07-3752, 2008 WL 4925011, at *3 (E.D. Pa. Nov. 17, 2008) (“[T]he
Eighth Amendment is violated when an inmate endures verbal sexual harassment from prison
guards plus physical sexual assault or threats of physical sexual assault.”) (citingSchwenk v.
Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). Here Mr. Hernández-Tirado fails to allege that
he was subject to assault or threats of assault due to CO Barry's racially charged comments.
Thus, his comments of racially inappropriate comments, alone, is not enough to state an Eight
Amendment violation. Thus, he fails to state a claim against CO Barry.
Excessive Use of Force
As a pretrial detainee at the time of the incident, Mr. Hernández-Tirado's excessive
force claim is properly considered under the Fourteenth Amendment's Due Process Clause.
Kingsley v. Hendrickson,
, 135 S. Ct. 2466, 2475, 192 L.Ed.2d 416 (2015).
A pretrial detainee asserting an excessive use of force claim need only show that the force
purposely, knowingly, or possibly recklessly used against him was objectively unreasonable.
, 135 S.Ct. at 2472. To determine the reasonableness of the force used, the Court
is to consider the following non-exclusive list of factors: (1) the relationship between the need
for the use of force and the amount of force used; (2) the extent of the plaintiff's injury; (3) any
effort made to temper or limit the amount of force; (4) the severity of the security problem at
issue; (5) the threat reasonably perceived by the defendant and (6) whether the plaintiff was
activity resisting. Id.
To establish a claim for use of excessive force in violation of the Due Process Clause
of the Fourteenth Amendment, plaintiff must show that the force used was applied “maliciously
and sadistically to cause harm” and not “in a good-faith effort to maintain or restore discipline.”
Baez v. Lancaster Cty, 487 F. App'x 30, 32 (3d Cir. 2012) (quoting Hudson v. McMillian, 503
U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992)). In evaluating an excessive force
claim, “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a
judge's chambers, violates the Fourth Amendment.” Graham v. Connor, 490 U.S. 386, 396,
109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). Plaintiff is required to show that the force
purposely or knowingly used against him was objectively unreasonable. Kingsley, 135 S. Ct.
Here, Mr. Hernández-Tirado charges that on September 8, 2014, CO Christensen used
excessive force when applying shackles to Plaintiff's right ankle and holding his arm while
transporting him from the RHU to the law library. (ECF No. 27 at ¶¶ 34 - 36.) When Plaintiff
advised CO Christensen that the shackles were causing him pain, CO Christensen “in a funny
manner and laughing about it ... loosen[ed] the shackles and grab[bed] Plaintiff['s] right arm
and squeezed it in the way that Plaintiff ha[d] to react and force a move, so Plaintiff can
released his arm from Christensen's grip.” (Id. at ¶ 35.) Plaintiff was seen by medical the
following day. (Id., p. 64.) No injuries to his ankle or right arm were noted. (Id.) He was given
Defendants assert that to the extent Mr. Hernández-Tirado was injured following this
event, his injuries were de minimis and thus fail to state a claim. At this stage of the litigation,
the Court cannot agree. The absence of injuries only suggests that the amount of force CO
Christensen used was de minimis, not that it was objectively reasonable. Accordingly, the
Court will allow Mr. Hernández-Tirado's excessive use of force claim against CO Christensen
Pennsylvania Political Subdivision Tort Claim Act.
The PCCF Defendants contend that Mr. Hernández-Tirado's state law negligence claims
against them should be dismissed because they are immune from state law tort claims such
as this under Pennsylvania's Political Subdivision Tort Claims Act (PPSTCA), 42 PA.
CONS.STAT. § 8501, et seq. Defendants are correct. To the extent Mr. Hernández-Tirado
claims the Defendants are negligent under state law, the immunity protection provided by the
PPSTCA bars such a claim since the claims do not fall within any of the exceptions in which
liability claims are permitted. See Stanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (“The
Act provides that 'no local agency shall be liable for any damages on account of any injury to
a person or property caused by an act of the local agency or an employee thereof or any other
person' 42 Pa. Const. Stat. § 8541.”) Plaintiff's negligence claims do not fall within any of the
exceptions in which liability claims are permitted. Accordingly, the individual Defendants are
entitled to immunity under the PPSTCA and Mr. Hernández-Tirado's state negligence claims
will be dismissed.
An appropriate order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: August 10, 2017
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