Thomas v. Tice et al

Filing 30

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 3/12/2018. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAHEEN THOMAS,

No. 4:16-CV-01487

Plaintiff,

(Judge Brann)

v.
(Magistrate Judge Saporito)
ERIC TICE, MARK GARMAN,
TIMOTHY MILLER, HEATHER
HALDEMAN,
Defendants.
MEMORANDUM OPINION
MARCH 12, 2018
Before the Court for disposition is Defendants Eric Tice, Mark Garman,
Timothy Miller, and Heather Haldeman’s Motion for Summary Judgment.
Magistrate Judge Joseph F. Saporito, Jr. has prepared a Report and
Recommendation advising that this motion be denied. For the following reasons,
this Report and Recommendation will be rejected, and Defendants’ Motion for
Summary Judgment will be granted for lack of personal involvement.
I.

BACKGROUND1
Plaintiff Briaheen Thomas (“Plaintiff”) was, at all times pertinent to this

action, an inmate in the custody of the Pennsylvania Department of Corrections
1

When considering a motion for summary judgment, this Court considers undisputed facts,
resolves factual disputes in favor of the non-moving party, and draws all reasonable
inferences in favor of that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
For purposes of this section, the non-moving party is Plaintiff Briaheen Thomas.

-1-

housed at SCI-Rockview.2 On May 31, 2015, Plaintiff was visiting with a friend in
the visiting room of the institution when Correctional Officer Walls approached
and handcuffed him.3 During a subsequent conversation with Department of
Corrections staff, Plaintiff learned that he was removed from the visiting area and
was being detained because he had been observed swallowing drugs given by his
visitor.4 Plaintiff denies ingesting drugs, and instead avers that he was observed
drinking soda and eating peanut M&Ms.5
Plaintiff was thereafter placed in administrative custody pursuant to ADM
802, Section 1.A.1.f., and taken to a “dry cell” without plumbing or running water.6
DC-ADM 802 is the Department of Corrections policy on Administrative
Custody.7 Section 1.A.f. of that policy authorizes the assignment of an inmate to
administrative custody “[if] the inmate has been charged with, or is under
investigation for a violation of facility rules and there is a need for increased
control pending disposition of charges or completion of the investigation.”8
2

ECF No. 19-1, Dep. of Briaheen Thomas, at 14:12-22.

3

Id. at 38:1-9.

4

Id. at 38:16-18.

5

Id. at 40:19-25; 41:20.

6

ECF No. 19-1, Dep. of Briaheen Thomas, at 67:10-16; Defs.’ Statement of Material Facts
(ECF No. 19) ¶ 15; Pl.’s Counter-statement of Material Facts (ECF No. 24) ¶ 15.

7

See Defs.’ Statement of Material Facts (ECF No. 19) ¶ 17; Pl.’s Counter-statement of
Material Facts (ECF No. 24) ¶ 17.

8

See Defs.’ Statement of Material Facts (ECF No. 19) ¶ 18; Pl.’s Counter-statement of
Material Facts (ECF No. 24) ¶ 18.

-2-

Confinement in administrative custody cannot exceed fifteen days, and an
administrative hearing before the Program Review Committee (“PRC”) must be
conducted within seven days to afford the inmate a chance to respond, and to
otherwise allow the PRC to determine if continued placement in administrative
custody is warranted.9
Once placed in administrative custody, Plaintiff was stripped of his clothes,
and given a smock to wear which, during his ten-day tenure in the dry cell, was not
replaced.10 He further avers that his mattress did not have a slip covering, sheet,
blanket, or pillow.11 Plaintiff was cold; however, despite several requests, he was
not given a blanket.12 This is in contravention of a Facility Security Policy No.
6.3.1.b(4) requiring that all inmates be issued a suicide blanket.
Throughout his imprisonment in the dry cell, Plaintiff further alleges that,
despite his requests, he was not provided toilet issue, water to wash his hands, hand
sanitizer, a shower, toothpaste, undergarments, or socks.13 Again, this denial
stands in contravention of Department of Corrections practice that toilet paper and
sanitizing wipes be provided by corrections officers after the inmate uses the bed

9

Defs.’ Statement of Material Facts (ECF No. 19) ¶¶ 19-20; Pl.’s Counter-statement of
Material Facts (ECF No. 24) ¶¶ 19-20.

10

ECF No. 19-1, Dep. of Briaheen Thomas, at 69:7-13.

11

Id. at 69:18-23.

12

Id. at 70:1-14.

13

Id. at 72:19-22; 74: 1-3; 75:3-5.

-3-

pan/urine bottle.14 Furthermore, there was constant illumination in the cell during
Plaintiff’s inhabitancy.15
Plaintiff further describes being handcuffed to the metal frame of the bed for
the duration of his confinement in the dry cell.16 This handcuffing was done in
such a way that his arm could not move and eventually went numb.17 Plaintiff
could not stand while handcuffed to the bed.18 His right arm had nerve damage
from a prior gunshot wound which he avers was exacerbated by the cuffing. He
was, however, given pain medication when requested.19
Upon admission on May 31, 2015, Plaintiff was given a laxative to induce a
bowel movement and hasten his exit from the dry cell.20 From May 31, 2015
through June 1, 2015, Plaintiff had seven bowel movements.21 No contraband was
found in Plaintiff’s excrement. An x-ray on June 1, 2015, however, indicated that
a foreign body was present in Plaintiff’s abdominal cavity. 22

14

Defs.’ Statement of Material Facts (ECF No. 19) ¶¶ 42-44; Pl.’s Counter-statement of
Material Facts (ECF No. 24) ¶¶ 42-44.

15

ECF No. 19-1, Dep. of Briaheen Thomas, at 54:6-8.

16

Id. at 55:7-8.

17

Id. at 55:15-18.

18

Id. at 78:20-22.

19

Id. at 93:1-9.

20

ECF No. 19-1, Dep. of Briaheen Thomas, at 80:19-23.

21

Id. at 86:19-24.

22

ECF No. 21-1, at 36.

-4-

On June 4, 2015, Defendants Eric Tice,23 Mark Garman,24 Timothy Miller,25
Heather Haldeman26 (“Defendants”), committee members of the Program Review
Committee at SCI-Rockview, conducted a hearing to determine the
appropriateness of continued administrative custody.27 Defendants opted to
continue Plaintiff’s administrative custody.28 Plaintiff remained housed in the dry
cell for an additional five days, and had five more bowel movements.29 Plaintiff
was released from the dry cell on June 9, 2015.
This action was instituted pursuant to 42 U.S.C. § 1983 and Eighth
Amendment to the United States Constitution on July 20, 2016.30 Following
discovery, Defendants filed a Motion for Summary Judgment on May 30, 2017,31

23

Defendant Tice was Deputy Superintendent for Facilities Management at SCI-Rockview
during the pertinent time period. Defs.’ Statement of Material Facts (ECF No. 19) ¶ 3; Pl.’s
Counter-statement of Material Facts (ECF No. 24) ¶ 3.

24

Defendant Garman was Deputy Superintendent for Centralized Services at SCI-Rockview
during the pertinent time period. Defs.’ Statement of Material Facts (ECF No. 19) ¶ 4; Pl.’s
Counter-statement of Material Facts (ECF No. 24) ¶ 4.

25

Defendant Miller was the Corrections Classification Program Manager at SCI-Rockview
during the pertinent time period. Defs.’ Statement of Material Facts (ECF No. 19) ¶ 5; Pl.’s
Counter-statement of Material Facts (ECF No. 24) ¶ 5.

26

Defendant Haldeman was Major of Unit Management at SCI-Rockview. Defs.’ Statement of
Material Facts (ECF No. 19) ¶ 6; Pl.’s Counter-statement of Material Facts (ECF No. 24) ¶ 6.

27

Defs.’ Statement of Material Facts (ECF No. 19) ¶¶ 22-23.

28

Id. ¶ 24.

29

See ECF No. 23, at 32-44.

30

ECF No. 1.

31

ECF No. 17.

-5-

which Magistrate Judge Saporito recommended denying.32 Defendants have since
filed objections.33 These objections have been fully briefed, and the matter is now
ripe for disposition.34
II.

LAW
A.

Report and Recommendation

Upon designation, a magistrate judge may “conduct hearings, including
evidentiary hearings, and . . . submit to a judge of the court proposed findings of
fact and recommendations.”35 Once filed, this Report and Recommendation is
disseminated to the parties in the case who then have the opportunity to file written
objections.36 When objections are timely filed, the District Court must conduct a
de novo review of those portions of the report to which objections are made.37
Although the standard of review for objections is de novo, the extent of review lies
within the discretion of the District Court, and the court may otherwise rely on the
recommendations of the magistrate judge to the extent it deems proper.38

32

ECF No. 26.

33

ECF No. 27.

34

ECF Nos. 28 & 29.

35

28 U.S.C. § 636(b)(1)(B).

36

28 U.S.C. § 636(b)(1).

37

28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

38

Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).

-6-

For portions of the Report and Recommendation to which no objection is
made, the court should, as a matter of good practice, “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.”39
Regardless of whether timely objections are made by a party, the District Court
may accept, not accept, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.40
B.

Summary Judgment

Summary judgment is granted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”41 A dispute is “genuine if a reasonable trier-of-fact could find in
favor of the non-movant,” and “material if it could affect the outcome of the
case.”42 To defeat a motion for summary judgment, then, the nonmoving party
must point to evidence in the record that would allow a jury to rule in that party’s

39

Fed. R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d
874, 878 (3d Cir. 1987)) (explaining that judges should give some review to every report and
recommendation).

40

28 U.S.C. § 636(b)(1); Local Rule 72.31.

41

Federal Rule of Civil Procedure 56(a).

42

Lichtenstein v. University of Pittsburgh Medical Center, 691 F.3d 294, 300 (3rd Cir. 2012)
(citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986)).

-7-

favor.43 When deciding whether to grant summary judgment, a court should draw
all reasonable inferences in favor of the non-moving party.44
III.

ANALYSIS

In this matter, Plaintiff brings a claim under 42 U.S.C. § 1983 (“Section
1983”) alleging that his Eighth Amendment right against cruel and unusual
punishment was violated by Defendants. Section 1983 is not a source of
substantive rights; rather, it merely provides a remedy for violations of
constitutional rights.45 To establish a claim under 42 U.S.C. § 1983, a plaintiff
must demonstrate that: (1) the conduct complained of was committed by a person
acting under color of state law; and (2) the conduct deprived the complainant of
rights secured under the Constitution or federal law.46
Here, the parties seemingly concede that, to the extent they were personally
involved, Defendants were acting under color of law at all pertinent times. They
instead focus their disagreement on whether a reasonable jury could find their
conduct to be constitutionally violative. In his Report and Recommendation,
Magistrate Judge Saporito advised that Defendants’ Motion for Summary

43

Federal Rule of Civil Procedure 56(c)(1); Liberty Lobby, 477 U.S. at 249.

44

Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
omitted).

45

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 815 (1985).

46

See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir.
1998).

-8-

Judgment should be denied because the totality of circumstances demonstrates a
genuine dispute of material fact precluding summary judgment, Defendants were
personally involved in the alleged violative conduct, and Defendants are not
entitled to qualified immunity.47 Defendants have since filed objections arguing
that (1) the Report does not comport with legal precedent, (2) the duration of
Plaintiff’s confinement was reasonable, (3) the conditions of Plaintiff’s
confinement do not amount to cruel and unusual punishment, (4) the evidence does
not demonstrate Defendants’ personal involvement, and (5) Defendants are entitled
to qualified immunity.48 Having afforded de novo review to the portions of the
Report and Recommendation implicated by these Objections, I find Defendants
personal involvement in the instant alleged constitutional violation to be lacking. I
therefore respectfully disagree with the recommendation of my colleague. My
reasoning is as follows.
The Eighth Amendment prohibits cruel and unusual punishment and
imposes duties on prison officials to provide prisoners with the basic necessities of
life, such as food, clothing, shelter, sanitation, medical care, and personal safety.49
While it is well settled that prison conditions constitute cruel and unusual
punishment if they result in serious deprivations of basic human needs, the Eighth
47

See generally Report and Recommendation (ECF No. 26).

48

See Objection to the Report and Recommendation (ECF No. 27).

49

Farmer v. Brennan, 511 U.S. 825, 832 (1994).

-9-

Amendment does not mandate comfortable prisons.50 Rather, in order to properly
implicate the Eighth Amendment, the Supreme Court has held that a condition
of confinement claim against a prison official must meet two requirements: (1)
“the deprivation alleged must be, objectively, sufficiently serious;” and (2) the
“prison official must have a sufficiently culpable state of mind.”51
The first element is satisfied when an inmate is deprived of “the minimal
civilized measure of life’s necessities.”52 In the instant matter, Magistrate Judge
Saporito began his analysis by noting, and I concur, that the use of a segregated
housing arrangement does not, in itself, offend the Eighth Amendment.53 Indeed,
segregated housing crosses the threshold of cruel and unusual punishment only
when the conditions of confinement are “foul, inhuman or totally without
penological justification.”54 In making this determination, both the duration
and conditions of segregated confinement must be considered.55
In his Report and Recommendation, Magistrate Judge Saporito found that
the “totality of circumstances” demonstrates a genuine dispute of material fact
precluding summary judgment on Plaintiff’s Eighth Amendment claim.
50

Tillman v. Lebanon Cnty. Corr.Facility, 221 F.3d 410 (3d Cir. 2000); Rhodes v. Chapman,
452 U.S. 337, 347 (1981).

51

Farmer, 511 U.S. at 834.

52

Rhodes, 452 U.S. at 347.

53

See Gilblom v. Gillipsie, 435 F. App’x. 165, 168 (3d Cir. 2011).

54

Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992).

55

Id. (citing Hutto v. Finney, 437 U.S. 678, 685 (1978)).

- 10 -

Defendants object to this conclusion arguing, in pertinent part, that, even
accepting the veracity of Plaintiff’s assertions concerning the conditions of his
confinement falling below DOC regulations, the evidence of record does not
demonstrate their personal involvement and knowledge of these alleged
deviations.56 I am in agreement with this contention.
Liability against a defendant in a civil rights action cannot be premised on a
theory of respondeat superior, or mere hypotheses that an individual defendant
may have had knowledge of or personal involvement.57 Rather, each named
defendant must be shown to have been personally involved in the events or
occurrences which underlie a claim.58 Indeed, as aptly described in Rode v.
Dellarciprete:
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.59
Defendants here argue that the factual record does not demonstrate such
involvement, and that the Report and Recommendation therefore erred in finding

56

Report and Recommendation (ECF No. 28) at 11.

57

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988)); Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003).

58

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

59

Rode, 845 F.2d at 1207.

- 11 -

personal involvement. As noted above, Defendants are committee members of the
Program Review Committee at SCI-Rockview. In that capacity, they did not make
the determination to send Plaintiff to the dry cell,60 nor did they oversee the
conditions of that confinement from May 31, 2015 through June 9, 2015. Rather,
their involvement was limited to determining, on June 4, 2015, whether continued
administrative custody was necessary to ensure the gastrointestinal passage of the
suspected contraband. This limited role at the June 4, 2015 hearing is insufficient
for a reasonable juror to find personal involvement in the conditions of
confinement alleged to be constitutionally violative.
First, Plaintiff complains that the conditions of confinement violated the
Eighth Amendment because he was denied basic necessities of life in the form of
access to water to wash his hands, toilet paper, a blanket, an opportunity to brush
his teeth, and an opportunity to shower. However, even assuming the veracity of
these allegations by Plaintiff, he has nevertheless failed to establish that the named
Defendants personally denied him access to these products.61 Furthermore, when
present before Defendants on June 4, 2015 for his administrative custody hearing,
Plaintiff did not complain of these deficiencies or denials by correction staff

60

ECF No. 19-1, Dep. of Briaheen Thomas, at 120:8-13.

61

Id. at 120:18-121:16.

- 12 -

overseeing his confinement. Instead, Plaintiff admitted in his deposition the
following:
Q.

During that time when the PRC was there, ---

A.

Yes.

Q.

--- did you speak to any of them about your request for - - - to wash
your hands or for a shower, for soap? Did any of that get discussed
with the PRC?

A.

No
I was trying to get out there.

Q.

Okay.

A.

I wasn’t trying to stay there and to wash my hands there. I was trying
to get out of there.62

As previously noted, the Third Circuit wrote in Young v. Quinlan, the
seminal case within this Circuit addressing challenges within a dry cell, that “the
duration and conditions of segregated confinement must be considered” in
determining whether such confinement passes constitutional muster.63 Here, in
absence of evidence that Defendants were made aware of conditions of
confinement which are contrary to DOC policy, they lack the personal involvement
necessary to sustain this suit. Indeed, in accord with the above consideration
outline by Young, Defendants controlled, at most, whether Plaintiff would remain

62
63

Id. at 105: 6-15.
Young, 960 F.2d at 364.

- 13 -

confined after June 4, 2015. Damningly for Plaintiff, their lack of knowledge of
conditions at odds with DOC policy precludes any liability as defendants.64
In the Report and Recommendation, Magistrate Judge Saporito focuses his
analysis on the failures of the PRC, or Defendants, to adhere to the mandates of the
Department of Corrections Administrative Custody Procedures Manual in
conducting the June 4, 2015 hearing.65 Such a violation, however, does not equate
to a violation or the Constitution,66 nor does it serve to convey upon Defendants
knowledge of the alleged deviations of Plaintiff’s confinement.
While the June 4, 2015 hearing was sufficient for Plaintiff to discuss the
conditions of his confinement and thus bring Defendants within the ambit of this
suit, the undisputed evidence, as cited above, reveals the lack of such an
occurrence and knowledge of such conditions. Therefore, finding no personal

64

Cf. Young, 960 F.2d at 365 (finding that Lewisburg prison officials were deliberately
indifferent to Young's requests where they had adduced no evidence to
rebut Young’s allegation that prison officials were aware of his confinement to a dry cell,
that they intentionally placed him in such a cell with full knowledge of his poor physical
condition, and that once in the dry cell, the officials obdurately refused to allow him to
relieve himself with dignity, let alone adequate sanitation); see also Gilblom, 435 F.App’x at
169 (affirming summary judgment in favor of two corrections officers directly involved and
with personal involvement in Plaintiff’s confinement in dry cell); Daniels v. Pitkin, No. 14CV-2383, 2017 WL 890090, at *3-4 (M.D.Pa. Mar. 6, 2017)(Conaboy, J.)(granting summary
judgment in favor of Defendants who, while knowing of Daniels’ dry cell placement, were
unaware of his claims that he was not being allowed to wash his hands after urinating and
defecating or of his concerns that urine and fecal matter was accumulating on his person,
smock, and bedding).

65

See Report and Recommendation (ECF No. 28) at 15-18.

66

See Williams v. Varano, No. 12-CV-529, 2015 WL 1470763, at *6 (M.D.Pa. Mar. 31,
2015)(Conaboy, J.).

- 14 -

involvement of Defendants in the cited conditions of confinement, summary
judgment in Defendants’ favor is appropriate here.
Furthermore, to the extent that Defendants knew, by virtue of their
supervisory role, of conditions inherent to dry cell confinement (and pursuant to
DOC policy) such as the handcuffing, denial of showers,67 and constant
illumination,68 they are entitled to qualified immunity for any constitutional
violation suffered. In Saucier v. Katz, the Supreme Court of the United States
established a two-step process for resolving claims of qualified immunity: “First, a
court must decide whether the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right. Second, if the plaintiff has satisfied this first
step, the court must decide whether the right at issue was ‘clearly established’ at
the time of defendant’s alleged misconduct.”69 The court is permitted to exercise
its discretion in deciding which of the two prongs of the qualifiedimmunity analysis should be addressed first in light of the circumstances of the
particular case.70
Defendants may therefore be entitled to qualified immunity in this case if
they can establish that the right at issue was not clearly established at the time of
67

See Daniels, 2017 WL 890090,at *5 (collecting cases).

68

Id.

69

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 534 U.S. 194, 201
(2001)).

70

Id. at 236.

- 15 -

their conduct. Pertinently, in Mullenix v. Luna, a November 2015 decision, the
Supreme Court emphasized as follows:
We have repeatedly told courts . . . not to define clearly established
law at a high level of generality. The dispositive question is whether
the violative nature of particular conduct is clearly established. This
inquiry must be undertaken in light of the specific context of the case,
not as a broad general proposition.71
Here, without deciding whether the conditions of a dry cell as imposed pursuant to
DOC policy violate the Eighth Amendment,72 the Court nevertheless finds that the
right to be free from such conditions was not clearly established. Indeed, while our
Court of Appeals has previously addressed issues involving the use of dry cells,
they have presented both disparate factual circumstances and outcomes insufficient
to provide fair warning to Defendants that the DOC policy per se was
unconstitutional.
For example, in Young v. Quinlan, the Third Circuit reversed the District
Court, which granted summary judgment for the defendant on a plaintiff's claims
regarding the conditions of his confinement.73 In that case, as punishment for
flooding his cell, the plaintiff was placed in a dry cell without a toilet or running

71

136 S. Ct. 305, 308 (2015) (internal citations and quotation marks omitted).

72

See Reichle v. Howards, 566 U.S. 658, 664 (2012) (explaining that a court “may grant
qualified immunity on the ground that a purported right was not ‘clearly established’ by prior
case law, without resolving the often more difficult question whether the purported right
exists at all” to avoid deciding constitutional questions unnecessarily).

73

Young, 960 F.2d at 353.

- 16 -

water for ninety-six hours.74 In addition, he was not provided with toilet paper,
and was forced to defecate and urinate throughout his cell without the benefit of a
urinal.75 It was only after twenty-nine hours that the plaintiff was finally provided
with a urinal and allowed to leave his cell to defecate.76 Noting that “the
touchstone [of the constitutional analysis] is the health of the inmate,” the Third
Circuit determined that the conditions of the plaintiff’s confinement worked a
deprivation of the basic necessities of human existence and thus were sufficient to
satisfy the objective prong of the analysis.77 In reaching this conclusion, our Court
of Appeals noted that the conditions alleged were made all the more revolting
because the plaintiff was HIV positive, and was more susceptible to infection and
disease.78
A disparate result was reached in Gilblom v. Gillipsie.79 In that case, the
plaintiff similarly asserted an Eighth Amendment claim based on his confinement
in a dry cell.80 The plaintiff in Gilblom specifically alleged that, due to his
placement in a dry cell for suspicion of ingesting contraband, he was in close

74

Id.

75

Id.

76

Id.

77

Id. at 364.

78

Id.

79

435 F. App’x. 165, 166-67 (3d Cir. 2011)(non-precedential).

80

Id.

- 17 -

proximity to his own excrement for thirty-six hours.81 Furthermore, owing to the
refusal of defendant correction officers, plaintiff was forced to search his own
excrement for evidence of contraband.82 While noting that the circumstances of
the plaintiff’s placement were “unsettling,” the Third Circuit nevertheless held that
the plaintiff’s placement in a dry cell was not, “in and of itself, problematic.”83 In
fact, given the prison’s interest in maintaining institutional security and internal
order, the Third Circuit wrote that the need to ensure that contraband would not be
brought into the prison certainly justified this placement.84
The above cases, presenting significantly more egregious circumstances, fail
to reveal an invalidation per se of the use of a dry cell and the governing DOC
policies. Given that Defendants lacked personal knowledge of the alleged
conditions deviating from DOC policy, I find that this lack of “applicable
precedent from the Supreme Court” or “a robust consensus of cases of persuasive
authority in the Courts of Appeals”85 invalidating the use of dry cells per se is
determinative. Consequently, to the extent Defendants had knowledge of DOC
policy concerning the use of dry cells, it was reasonable for them to believe that

81

Id.

82

Id.

83

Id. at 168.

84

Id. at 169.

85

Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir. 2015), cert. denied sub nom.
Spady v. Rodgers, 136 S. Ct. 1162 (2016).

- 18 -

their conduct was lawful. They are therefore entitled to qualified immunity, and
summary judgment is appropriate on this alternate ground.86
IV.

CONCLUSION

Based on the above reasoning, Magistrate Judge Saporito’s Report and
Recommendation is respectfully rejected, and Defendants’ Motion for Summary
Judgment is granted.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

86

In his Report and Recommendation, Magistrate Judge Saporito cites the Supreme Court case
of Hope v. Pelzer, 536 U.S. 730 (2002) and related cases concerning the prolonged
handcuffing of prisoners to show that the law was sufficiently clear to Defendants that their
prolonged use of handcuffs behavior was unconstitutional. See Report and Recommendation
(ECF No. 26) at 21-23. Following my review of these cases, however, I respectfully disagree
that Hope and the related cases reach the level of factual similarity so as to provide “fair
warning” to Defendants. See Hope, 536 U.S. at 741 (“[T]he salient question that . . . ought to
have asked is whether the state of the law . . . gave respondents fair warning that their alleged
treatment of Hope was unconstitutional.”). Here, the DOC policy governing dry cell
confinement indicates that cuffs are removed every two hours for ten minutes of exercise,
inmates are given the option of alternating wrists, and medical personnel inspect the
restraints. See Defs.’ Statement of Material Facts (ECF No. 19) ¶ 38; Pl.’s Counter-statement
of Material Facts (ECF No. 24) ¶ 38. Plaintiff’s Medical Records indicate that, at various
times, he often took advantage of this option. See ECF No. 19-1, at 265–290.

- 19 -