Hill v. Rivello et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry) re 20 MOTION to Dismiss for Failure to State a Claim Signed by Honorable Robert D Mariani on 10/23/2024. (cac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TYRONE HILL,
Plaintiff

Civil No. 3:24-cv-22
(Judge Mariani)

V.

JOHN RIVELLO, et al.,
Defendants

MEMORANDUM
Plaintiff Tyrone Hill ("Hill"), an inmate housed at the State Correctional Institution,
Huntingdon, Pennsylvania ("SCI-Huntingdon"), initiated this civil rights action pursuant to 42
U.S.C. § 1983. (Doc. 1). Named as Defendants are Superintendent John Rivello, Captain
Long, Lieutenant Yonkers, (collectively, the "moving Defendants"), and five John Doe
individuals. Hill alleges that Defendants violated his constitutional rights under the Eighth
Amendment when oleoresin capsicum ("OC") spray was released against another inmate,
three stories below his cell, which caused him to fall on two occasions.
Presently ripe for disposition is the moving Defendants' motion (Doc. 20) to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the
motion will be granted in part and denied in part. (Doc. 20). The Court will also direct
service of the complaint on the newly identified Defendants.

I.

Allegations of the Complaint
The allegations of Hill's complaint stem from three separate incidents at SCI-

Huntingdon-the use of OC spray against a fellow inmate on June 27, 2023; Hill's fall down
the stairs on July 31 , 2023; and Hill's fall in the shower on November 11, 2023. (Doc. 1).
On the morning of June 27, 2023, Hill was confined in his cell (CA-437) when he
Defendant Yonkers and several other correctional officers approached a cell three floors
below him (CA-142). (Id.,, lll(C)(1-8)). Hill alleges that these prison officials had riot gear,
breathing respirators, a stun shield, and two large canisters of OC spray. (Id.). Hill avers
that Defendant Rivello gave the orders to prison officials to perform the cell extraction of
another inmate. (Id., lll(C)(7)). He then alleges that Defendant Yonkers and the other
correctional officers discharged QC spray into cell CA-142. (Id. , lll(C)(10)). There was no
ventilation and the QC spray rose to the fourth floor and "stayed there like fog." (Id. ,
lll(C)(11)). Hill alleges that the QC spray burned his eyes, made him choke, caused him to
urinate on himself, and caused back spasms. (Id., lll(C)(12)). The back spasms allegedly
caused him to fall. (Id.). During this incident, Hill was able to use his inhaler to help him
breathe. (Id.). "A long while later," when the housing tier was opened for all inmates, Hill
was sent to medical and received medication for his back spasms. (Id., lll(C)(13)). When
Hill inquired as to why he was not evacuated to a safe area prior to the use of OC spray, the
Block Sergeant and Unit Manager allegedly informed him that Defendant Long ordered that
Hill remain in his cell during the incident. (Id., lll(C)(15)).
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Hill next alleges that the "residual consequences of this cruel and unusual corporal
punishment" caused him to fall down steps on July 31 , 2023. (Id. ~ lll(C)(14)). Hill claims
the fall caused injury to his right knee and ankle. (Id.) .
Further, Hill alleges that, as a result of the QC spray incident in June of 2023, he had
back spasms in the shower on November 11 , 2023. (Id.). He asserts that the back spasms
made his right knee buckle, causing him to collapse in the shower in front of forty other
inmates. (Id. ~ V).
For relief, Hill seeks compensatory and punitive damages. (Id.~ VI) .
II.

Legal Standard
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6), if it

does not allege "enough facts to state a claim to relief that is plausible on its face." Be// At/.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) . The
plaintiff must aver "factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
"Though a complaint 'does not need detailed factual allegations,.. .a formulaic
recitation of the elements of a cause of action will not do."' De/Rio-Mocci v. Connolly Prop.
Inc. , 672 F.3d 241,245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
"[nactual allegations must be enough to raise a right to relief above the speculative level."
Covington v. Int'/ Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
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(internal citations and quotation marks omitted). A court "take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements." Ethypharm S.A. France v.

Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the
elements a plaintiff must plead to state a claim. Second, the court should
identify allegations that, because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show[n] - that the
pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted). This "plausibility" determination will be a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id.
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile ." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
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would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.

Id.
Ill.

Discussion
Section 1983 of Title 42 of the United States Code offers private citizens a cause of

action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute
provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress ... .

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under§ 1983, a plaintiff must allege "the
violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state
law." West v. Atkins, 487 U.S. 42, 48 (1988).
A.

Personal Involvement

Defendants Long and Rivello seek to dismiss the claims against them based on Hill's
failure to set forth sufficient allegations of their personal involvement in the alleged wrongful
conduct. (Doc. 21, pp. 8-11 ). Individual liability can be imposed under section 1983 only if
the state actor played an "affirmative part" in the alleged misconduct and "cannot be
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predicated solely on the operation of respondeat superior." Evancho, 423 F.3d at 353
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). "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, 845 F.2d at 1207-08; see a/so Rizzo v. Goode, 423 U.S. 362
(1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations, however, must
be made with appropriate particularity in that a complaint must allege the particulars of
conduct, time, place, and person 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.
The Court does not agree that Hill failed to set forth the requisite personal
involvement against Defendant Long. The complaint specifically alleges that Defendant
Long ordered that Hill remain in his cell during the use of OC spray incident. (Doc. 1 ~
lll(C)(15)). Accordingly, the Court declines to grant the motion to dismiss on this basis.
Hill also alleges that Defendant Rivello gave orders to his subordinates to perform
the cell extraction of another inmate. (Doc. 1 ~ lll(C)(7)). Supervisors "may not be held
liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior." Iqbal, 556 U.S. at 676. The Third Circuit has noted that there are two theories of
supervisory liability applicable to claims brought pursuant to§ 1983: (1) "a supervisor may
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be personally liable under§ 1983 if he or she participated in violating the plaintiff's rights,
directed others to violate them, or, as the person in charge, had knowledge of and
acquiesced in his subordinates' violations"; and (2) policymakers may be liable under§
1983 "if it is shown that such defendants, 'with deliberate indifference to the consequences,
established and maintained a policy, practice[,] or custom which directly caused [the]
constitutional harm."' AM. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Def. Ctr. , 372 F.3d 572,
586 (3d Cir. 2004). With respect to the second theory of liability, the plaintiff must allege
that: "(1) the existing policy or practice created an unreasonable risk of [constitutional]
injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the
supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice."

Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample v. Oiecks, 885
F.2d 1099, 1118 (3d Cir. 1989)). At a minimum, supervisory liability can be imposed "only
where there are both (1) contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents, and (2) circumstances under which the
supervisor's inaction could be found to have communicated a message of approval to the
offending subordinate." Chinchel/o v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986).
The Court finds that Hill has not set forth a plausible claim against Defendant Rivello.
The complaint only alleges that Defendant Rivello ordered his subordinates to perform the
cell extraction of another inmate. Hill does not allege that Defendant Rivello ordered the
correctional officers to use an excessive amount of OC spray, that he was aware of the
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alleged excessive use of OC spray and took no action to curb it, that he ordered the
correctional officers to target Hill with OC spray, or that he was aware Hill was susceptible
to OC spray. Hill's attempt to hold Defendant Rivello responsible for the actions of others
(the cell extraction) based on his supervisory position, is not a proper basis to establish
liability for the alleged constitutional wrongdoing at issue. The Court will grant the motion to
dismiss the claims against Defendant Rivello.
B.

Qualified Immunity

Hill alleges that his exposure to secondhand OC spray constituted cruel and unusual
punishment in violation of his Eighth Amendment rights. Defendants argue that they are
entitled to qualified immunity "because it is not clearly established that the secondhand
exposure to OC spray, in response to another inmate's actions on the housing block, would
violate an individual's rights." (Doc. 21, p. 11 ).
"The doctrine of qualified immunity protects government officials 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." Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). A qualified immunity
determination involves a two-pronged inquiry: (1) whether a constitutional or federal right
has been violated; and (2) whether that right was "clearly established." Saucier v. Katz, 533
U.S. 194,201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal
courts to exercise discretion in deciding which of the two Saucier prongs should be
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addressed first). "Qualified immunity balances two important interests-the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably." Pearson, 555 U.S. at 231. It "provides ample protection to all but the plainly
incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341
(1986). Accordingly, "there must be sufficient precedent at the time of action, factually
similar to the plaintiff's allegations, to put [the] defendant on notice that his or her conduct is
constitutionally prohibited." Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d
164, 169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).
To make this determination, the Court "look[s] first for applicable Supreme Court precedent."
Id. "Even if none exists, it may be possible that a 'robust consensus of cases of persuasive
authority' in the Court of Appeals could clearly establish a right for purposes of qualified
immunity." Id. (quoting Taylor v. Barkes, 575 U.S. 822, 826 (2015)).
"[l]t is a violation of the Eighth Amendment for prison officials to use mace or other
chemical agents in quantities greater than necessary or for the sole purpose of punishment
or the infliction of pain." Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984); see also
Thomas v. Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010) (noting that it is a violation of the
Eighth Amendment "where chemical agents are used unnecessarily, without penological
justification, or for the very purpose of punishment or harm"); Thomas v. Comstock, 222 F.
App'x 439, 442 (5th Cir. 2007) (noting that the use of chemical agents can violate the Eighth
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Amendment when done so as a "malicious or sadistic application of force"); Williams v.
Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (citing Soto for the same conclusion).
Accordingly, in light of the above "robust consensus of cases of persuasive authority,"
Taylor, 575 U.S. at 826, the Court concludes that inmates have a clearly established right,
protected by the Eighth Amendment, to be free from the unnecessary use of chemical
agents without penological justification.
Here, Hill alleges that Defendants used "excessive" amounts of QC spray on a fellow
inmate, that Hill was intentionally left in his cell during this incident, and that he suffered
unnecessary pain as a result of his exposure to QC spray. Therefore, at this juncture, Hill
has pied facts alleging misuse of excessive amounts of QC spray to inflict unnecessary
pain. In light of the body of case law set forth above, the Court concludes that Hill had a
clearly established right, protected by the Eighth Amendment, to be free from the use of
excessive amounts of QC spray. The Court declines to grant Defendants' motion to dismiss
on this ground.
IV.

Leave to Amend
When a complaint fails to present a prima facie case of liability, district courts must

generally grant leave to amend before dismissing the complaint. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d
Cir. 2000). Specifically, the Third Circuit Court of Appeals has admonished that when a
complaint is subject to dismissal for failure to state a claim, courts should liberally grant
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leave to amend "unless such an amendment would be inequitable or futile." Phillips, 515
F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). For the reasons set
forth above, the Court concludes that it would be futile to grant Hill leave to file an amended
complaint with respect to his claims against Defendant Rivello.
V.

Federal Rule of Civil Procedure 4(m)

Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has 90 days from the
date he filed his complaint to serve the complaint on the defendants. FED. R. CIv. P. 4(m).
Upon a showing of good cause for the failure to serve, the court must extend the time for
service; the court can, at its discretion, extend the time for service even if plaintiff has not
shown good cause for the delay. FED. R. CIv. P. 4(m). The factors a court should consider
in evaluating whether good cause exists are: (1) the reasonableness of the plaintiff's efforts
to effect service; (2) prejudice to the defendant because of untimely service; (3) whether the
plaintiff has moved for an enlargement of time; and (4) whether the statute of limitations will
bar the plaintiff's claims if the action is dismissed. See MCI Telecomms. Corp. v.
Teleconcepts, Inc., 71 F.3d 1086, 1097-98 (3d Cir. 1995).
The John Doe Defendants were named in the complaint that was filed on January 4,
2024. (Doc. 1). The Court granted Hill leave to conduct limited discovery to identify the
John Doe Defendants. (Doc. 18). In response, Hill has identified the John Doe Correctional
Officers as follows: CO A. Tress, CO Kirsh, CO Ainsworth, CO J. Myers, CO Gothard, and
CO K. Deihl. (Doc. 25). Accordingly, the Court will direct service on these individuals.
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VI.

Conclusion
Based on the foregoing, the Court will grant in part and deny in part Defendants,

motion to dismiss the complaint. (Doc. 20). The Court will also direct service on the newly
identified Defendants. A separate Order shall issue.

United States District Judge
Dated: Octoberd

, 2024

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