STORY v. WETZEL et al

Filing 70

OPINION AND ORDER granting in part and denying in part 49 Motion to Dismiss for Failure to State a Claim; granting 57 Motion to Dismiss for Failure to State a Claim in its entirety. IT IS FURTHER ORDERED that, to the extent that Plaintiff believes he can cure the substantial pleading deficiencies identified in the Opinion as to his Eighth Amendment deliberate indifference claim brought against Dr. Jin at Count IV and his First Amendment access to courts claim at Count VI, he may file an Amended Complaint solely as to those two claims by December 19, 2016. Signed by Chief Magistrate Judge Maureen P. Kelly on 11/28/16. [A copy of this Opinion and Order was mailed to Plaintiff on this date at his address of record]. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STANTON STORY,
Plaintiff,
v.
JOHN E. WETZEL, DORINA VARNER,
KERRI MOORE, ROBIN M. LEWIS, L.S.
KERNS, BARR, ROBERT GILMORE,
TRACEY SHAWLEY, IRMA VIHLIDAL,
DR. BYUNGHAK JIN, CAPTAIN
ARMSTRONG, CAPTAIN MITCHELL, LT.
KELLY, LT. SILBAUGH, LT. HOWELLS,
LT. A.J. MORRIS, LT. GREGO, C.O.
JOHNSON, C.O. BARNHART, C.O.
SCHIRRA, SARGENT PLUMLEY,
SARGENT TROUT, and NURSE JANE
DOE,
Defendants.

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Civil Action No. 15-1241
Chief Magistrate Judge Maureen P. Kelly

Re: ECF Nos. 49 and 57

OPINION AND ORDER
KELLY, Chief Magistrate Judge
Plaintiff Stanton Story (“Plaintiff”) is an inmate in the custody of the Pennsylvania
Department of Corrections (“DOC”), and is currently incarcerated at the State Correctional
Institution at Greene (“SCIG”). Plaintiff initiated with civil action against DOC officials John E.
Wetzel (“Wetzel”), Dorina Varner (“Varner”), Kerri Moore (“Moore”), Robin M. Lewis
(“Lewis”), L.S. Kerns Barr (“Barr”), Robert Gilmore (“Gilmore”), Tracey Shawley (“Shawley”),
Irma Vihlidal (“Vihlidal”), Captain Armstrong (“Armstrong”), Captain Mitchell (“Mitchell”),
Lt. Kelly (“Kelly”), Lt. Silbaugh (“Silbaugh”), Lt. Howells (“Howells”), Lt. A.J. Morris
(“Morris”), Lt. Grego (“Grego”), C.O. Johnson (“Johnson I”), C.O. Barnhart (“Barnhart”), C.O.
Schirra (“Schirra”), Sargent Plumley (“Plumley”), Sargent Trout (“Trout”) and C.O. Johnson

(“Johnson II”) (collectively, “the DOC Defendants”), alleging that the DOC Defendants violated
his rights provided by the Constitution by placing him in a “dry cell” following a suspicious
interaction that Plaintiff had with a visitor. Plaintiff has also has named Byunghak Jin, MD (“Dr.
Jin”) as a defendant contending that Dr. Jin violated his constitutional rights when he performed
an anal probe on Plaintiff and gave Plaintiff an enema. Plaintiff alleges that Defendants’ action
ran afoul of the First, Eighth and Fourteenth Amendments to the United States Constitution.1
Presently before the Court is a Motion to Dismiss submitted on behalf of the DOC
Defendants, ECF No. 49, and a separate Motion to Dismiss submitted on behalf of Dr. Jin. ECF
No. 57. For the reasons that follow, the DOC’s Motion will be granted in part and denied in part,
and Dr. Jin’s Motion will be granted in its entirety.
I.

FACTUAL AND PROCEDURAL BACKGROUND
According to the Complaint and the documents that Plaintiff has submitted in conjunction

with the Complaint,2 Plaintiff was removed from the visitation room at SCIG on September 21,
2014, by Defendants Plumley, Johnson I, Barnhart and Schirra under suspicion of receiving
contraband from a visitor. ECF No. 12 ¶ 27. See ECF No. 12-1 at 23. Plaintiff was taken to the
restroom section of the “strip and search area” and was asked by Plumley “if [Plaintiff] had
anything,” which Plaintiff denied. ECF No. 12 ¶ 29. Plaintiff alleges that Schirra left the
restroom and within thirty seconds announced that he had found “something.” Id. ¶ 30.
According to the misconduct report subsequently filed against Plaintiff, Schirra saw something

1

Although Plaintiff makes reference to the Fifth, Sixth and Ninth Amendments to the Constitution in the Complaint,
he has alleged no facts to support any such claims. ECF No. 12 ¶¶ 1, 61, 101.
2

It is well established that in deciding a motion to dismiss, “[i]n addition to the allegations contained in the
pleadings, the Court may also review “matters of public record, exhibits attached to the complaint and items
appearing in the record of the case,” as well as “undisputably authentic document[s] that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Ickes v. Flanagan, 2008 WL
859183, at *1 (W.D. Pa. Mar. 31, 2008), quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1384-85 n.2 (3d Cir. 1994), and Steinhardt Group Inc. v. Citicorp, 126 F.3d 144, 145 (3d Cir. 1997).

2

fall out of Plaintiff’s pant leg which was later found to be packaged marijuana. ECF No. 12-1 at
23. Plumley then allegedly threatened Plaintiff with a strip search if Plaintiff did not give him
“something.” ECF No. 12 ¶ 31. Plaintiff again denied having “anything” and was then taken
briefly to a holding cell by Defendants Johnson I and Barnhart and ultimately taken to a “dry
cell” in the infirmary by Defendant Kelly and some other unidentified corrections officers. Id. ¶¶
29, 32-35, 39. Plaintiff alleges that there he was shackled and handcuffed to the wall for 26
hours despite his complaints that his hands and wrists were swelling and numb and that he was in
“great pain.” Id. ¶¶ 40-44.
On the following day, September 22, 2014, Plaintiff was taken by Defendant Kelly for an
x-ray after which he was returned to the dry cell and allegedly re-shackled and handcuffed to the
wall. Id. ¶¶ 45-46. Defendant Kelly allegedly told Plaintiff that he would be released only if
Plaintiff submitted to an anal probe which Plaintiff agreed to have done. Id. ¶¶ 47-48. An anal
probe and enema were subsequently performed by Dr. Jin in the dry cell with Kelly present. Id.
¶¶ 49-51. Plaintiff was then taken to the Restrictive Housing Unit (“RHU”).
On September 24, 2014, Plaintiff was taken for another x-ray. Id. ¶¶ 52-54. On that
same date, Plaintiff filed a grievance concerning alleged nerve damage to his hands stemming
from being handcuffed to the wall. On October 2, 2014, November 20, 2014, and December 17,
2014, respectively, Plaintiff filed grievances against Dr. Jin regarding the anal probe, Dr. Jin’s
alleged refusal to prescribe medicine for a skin condition, and his failure to administer medical
attention for facial pain that Plaintiff was experiencing. Id. ¶¶ 57-60.
It also appears that on September 25, 2014, Plaintiff received notice from the Program
Review Committee that Plaintiff was under investigation relative to the events that transpired on
September 21, 2014, in the visitors’ room, and on October 1, 2014, Plaintiff was escorted from

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the RHU to a misconduct hearing before Defendant Barr. Id. ¶¶ 56, 62. The record shows that
Plaintiff was charged with possession or use of a dangerous controlled substance; violating of the
Pennsylvania Crimes Code, i.e. introduction of contraband into the institution; refusing to obey
an order; possession of contraband; violating visiting regulations; lying to an employee; and
failure to report the presence of contraband. ECF No. 12-1 at 23. At Plaintiff’s request, Barr
postponed the hearing so that she could review the camera footage of the incident in question.
ECF No. 12 ¶ 62. The hearing was reconvened the next day, at which time Barr allegedly told
Plaintiff that she had observed Plaintiff “doing a lot of squirming around” and that she accepted
the corrections officers’ accounts of the incident. Id. ¶ 63. According to the documents Plaintiff
has attached to his Complaint, Barr specifically found that the video showed:
the visitor reaching into his right pants pocket and then put his hand down
as Story puts his left hand down. He then brings his left hand onto his lap
with his hand cupped. Puts his right hand over the left then makes a
scooping motion with right hand closing his right hand and then with his
right hand closed he uses his left hand to pull his right sleeve and puts his
right hand into his jumpsuit. He sits up and is moving his hand around at
the back of his body in his jumpsuit for 4 seconds. Then the officer arrives,
HEX also viewed photos of the items taken that the inmate dropped from
his clothing. Balls of marijuana (total.weight 38.2 grams), plastic bag,
electrical tape and the NIK testing packet.
10/2/14 HEX viewed the video from the holding area. HEX views the
inmate squirming around with hand cuffs on. He is up and down off the
bench. Finally HEX sees officer Johnson arrive and that is when the second
ball of black tape is found.
ECF No. 12-1 at 22. See id. at 6-7, 14. Following the hearing, Barr found Plaintiff guilty of
possession of a controlled substance, possession of contraband, lying to an employee, and failure
to report the presence of contraband and gave Plaintiff a total of 270 days in disciplinary
confinement as a result. Id. at 22, 24.

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According to the Complaint, on October 3, 2014, Defendant Trout allegedly removed
Plaintiff from his cell in the RHU to inventory Plaintiff’s property that had been sent from the
unit where Plaintiff had been housed previously. During the inventory, Plaintiff informed Trout
and Defendant Barnhart that not all of his property was there. ECF No. 12 ¶¶ 64-65. As a result,
Trout and Barnhart placed the property that was being inventoried “in the disputed property”
pending an investigation. Id. ¶ 66. See ECF 12-1 at 33-35. Plaintiff’s complaints that he had
on-going cases in both Pennsylvania state and Federal court systems went unheeded and, as a
result, Plaintiff alleges that he missed filing deadlines and his cases were “denied.” ECF No. 12
¶¶ 68-69. On October 3, 2014, Plaintiff apparently filed a grievance as well as a request to
Defendant Armstrong regarding the confiscation of his property to no avail. Id. ¶¶ 70-72. It also
appears that Plaintiff filed another grievance regarding the confiscation of his personal property
that his former cell mate, Anthony Shaw, told Plaintiff he had given to Defendant Johnson II. Id.
¶ 75. That grievance was denied, as were Plaintiff’s subsequent appeals. Id. ¶¶ 76-79.
Plaintiff submitted the instant Complaint on September 23, 2015, bringing claims against
Defendants pursuant to the Due Process Clause of the Fourteenth Amendment to the Constitution
relative to his being escorted from the visitors’ room and taken to the dry-cell (Count I); a claim
for cruel and unusual punishment under the Eighth Amendment relative to Plaintiff being
handcuffed to the wall of the dry-cell for 26 hours (Count II); a Fourteenth Amendment due
process claim relative to his subsequent confinement to the RHU (Count III); an Eight
Amendment deliberate indifference claim against Dr. Jin (Count IV); a Fourteenth Amendment
claim relative to the misconduct hearing (Count V); a First Amendment access to courts claim
(Count VI); a state law conversion claim (Count VII); and a Fourteenth amendment due process

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claim relative to the grievance process and a claim for intentional infliction of emotional distress
(Count VIII).
The DOC Defendants filed a Motion to Dismiss and an accompanying brief on May 5,
2016, ECF Nos. 49, 50, to which Plaintiff filed a Response and accompanying brief on May 13,
2016. ECF Nos. 54, 55. Dr. Jin filed a Motion to Dismiss and an accompanying brief on June 2,
2016, ECF Nos. 57, 58, to which Plaintiff filed a Response and an accompanying brief on June
16, 2016. ECF Nos. 60, 61. As such both Motions are ripe for review.
II.

STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in
the complaint and all reasonable factual inferences must be viewed in the light most favorable to
the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not
accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set
forth in the complaint. See California Pub. Empl. Ret. Sys. v. The Chubb Corp., 394 F.3d 126,
143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265, 286
(1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed
under Fed. R. Civ. P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that
is plausible on its face,” id. at 570, or where the factual content does not allow the court "to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir.

6

2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the
elements of a cause of action” do not suffice but, rather, the complaint “must allege facts
suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation
that discovery will reveal evidence of the necessary element[s] of his claim”).
In addition, pro se pleadings, “however inartfully pleaded,” must be held to “less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520–521 (1972). In a civil rights action, the court must liberally construe the pro se litigant's
pleadings and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it
by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002), quoting Holley v. Dep't of
Veteran Affairs, 165 F.3d 244, 247–48 (3d Cir. 1999). Notwithstanding this liberality, pro se
litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal
claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).
III.

DISCUSSION
Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983 ("Section 1983"), which

provides that:
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 . . . .
42 U.S.C. § 1983. “Section 1983 provides remedies for deprivations of rights established in the
Constitution or federal laws. It does not, by its own terms, create substantive rights.” Kaucher v.
Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006), citing Baker v. McCollan, 443 U.S. 137, 145
n.3 (1979) (footnote omitted). Thus, in order to state a claim for relief under Section 1983, the

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plaintiff must allege facts from which it could be inferred that “the defendant, acting under color
of state law, deprived him or her of a right secured by the Constitution or the laws of the United
States.” Id. at 423. As previously discussed, Plaintiff alleged that Defendants violated his rights
provided by the First, Eighth and Fourteenth Amendments to the Constitution.
A.

The DOC Defendants’ Motion to Dismiss
1.

Personal Involvement

The DOC Defendants argue that Plaintiff’s claims brought against Defendants Wetzel,
Varner, Lewis, Gilmore, Vihlidal, Armstrong, Mitchell, Silbaugh, Moore, Barr, Shawley,
Howells, Morris and Grego should be dismissed because Plaintiff has failed to set forth sufficient
facts in the Complaint to show that they were personally involved in the alleged underlying
constitutional violations.
It is well established that “[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs to be liable, and cannot be held responsible for a
constitutional violation which he or she neither participated in nor approved.” Baraka v.
McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). Personal involvement in the alleged wrongdoing
may be shown “through allegations of personal direction or of actual knowledge and
acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005), quoting Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). See Ruff v. Health Care Adm’r, 441 F.
App’x 843, 846 (3d Cir. 2011) (per curiam) (“[t]o be liable under § 1983, a defendant must have
some personal involvement in the underlying unconstitutional conduct”). See also Kaucher v.
Cty. of Bucks, 455 F.3d 418, 432 n.7 (3d Cir. 2006), quoting Estate of Smith v. Marasco, 430
F.3d 140, 151 (3d Cir. 2005) (“[i]n order to prevail on a § 1983 claim against multiple
defendants, a plaintiff must show that each individual defendant violated his constitutional

8

rights”). See Rode v. Dellarciprete, 845 F.2d at 1207-08 (“[a]llegations of participation or actual
knowledge and acquiescence, however, must be made with appropriate particularity” such as
stating time, place and persons responsible”).
Moreover, liability of an individual government defendant cannot be predicated on the
unconstitutional conduct of his or her subordinate under a theory of respondeat superior.
Evancho v. Fisher, 423 F.3d at 353, quoting Rode v. Dellarciprete, 845 F.2d at 1207. See Baraka
v. McGreevey, 481 F.3d at 210 (a supervisor can only be held liable if his or her own actions
resulted in the constitutional injury).
It is also well established that participating in the grievance process is not sufficient to
show the actual knowledge necessary for a defendant to be found personally involved in the
alleged unlawful conduct. Rode v. Dellarciprete, 845 F.2d at 1207. See Ramos v. Pa. Dep’t of
Corr., No. 06-1444, 2006 WL 2129148, at *2 (M.D. Pa. July 27, 2006) (“review and denial of
the grievances and subsequent administrative appeal conducted does not establish personal
involvement by those Defendants in the alleged underlying unconstitutional conduct”); Jefferson
v. Wolfe, No. 04-44 E, 2006 WL 1947721, at *17 (W.D. Pa. July 11, 2006) (finding that
allegations that the defendants denied the plaintiff’s appeal of his grievance was insufficient to
establish the defendant’s personal involvement in the challenged conduct); Watkins v. Horn, No.
96-4129, 1997 WL 566080, at *4 (E.D. Pa. Sept. 5, 1997) (concurrence in an administrative
appeal process is not sufficient to establish personal involvement).
Here, Plaintiff has not alleged any facts to support a finding that Defendants Wetzel,
Varner, Lewis, Gilmore, Vihlidal, Armstrong, Mitchell or Silbaugh were personally involved in
the alleged unconstitutional conduct at issue but rather seek to hold them liable based solely on
the fact that they hold supervisory positions. ECF No. 12 ¶¶ 71, 72, 85, 88, 89, 90, 91, 92, 94.

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Because these Defendants cannot be held liable for the actions of their subordinates, the claims
brought against them are properly dismissed.3
Similarly, Plaintiff seeks to hold Defendants Moore, Barr, Shawley, Howells, Morris and
Grego liable simply because they participated in reviewing the grievances and subsequent
appeals filed by Plaintiff relative to the alleged underlying constitutional violations.4 Id. ¶¶ 62,
63, 76, 79, 81, 82, 84, 86, 93. Plaintiff’s failure to allege facts from which it could be inferred
that these Defendants were personally involved in the alleged violations themselves, the claims
brought against them are properly dismissed as well.
2.

Due Process Claims (Counts I, III, IV, V, VI and VIII)

Plaintiff refers to the Due Process Clause of the Fourteenth Amendment in six Counts of
the Complaint. Plaintiff’s complaints in Counts I, III and V all revolve around the disciplinary
process relative to the misconduct issued to Plaintiff after he received contraband from a visitor
on September 21, 2014. Specifically, Plaintiff complains about being escorted from the visiting
room and charged with the misconduct (Count I); being confined to the RHU on mere conjecture
(Count III); and the manner in which Defendant Barr conducted the misconduct hearing (Count
V).
It is well established that “[p]risoners ... may not be deprived of life, liberty or property
without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). It is equally well
established, however, that prison inmates are generally not entitled to procedural due process in
prison disciplinary hearings since the sanctions imposed as a result of those hearings usually do
3

Although the DOC’s Motion to Dismiss was filed before counsel entered her appearance on behalf of Defendant
Lewis, who apparently died in December of 2015, see ECF No. 6, the analysis regarding her personal involvement
vis-à-vis the grievance process applies to her as well. ECF No. 12 ¶ 91.
4

Although Defendant Barr did not participate in the grievance process, the analysis regarding personal involvement
in any underlying constitutional violations is equally applicable to her as Plaintiff’s claim against Barr is based
solely on her role as the hearing examiner at Plaintiff’s subsequent misconduct hearing.

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not impinge on a protected liberty interest and that an inmate's due process rights are not
triggered unless the prison “imposes atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 483–84 (1995). See
Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170-71 (3d Cir. 2011).
The United States Court of Appeals for the Third Circuit has specifically held that
imposing a sanction of up to nine months in the RHU does not constitute an atypical and
significant hardship under Sandin. Crosby v. Piazza, No. 11-1176, 2012 WL 641938, at *3-4 (3d
Cir. Feb. 29, 2012) (a total of 270 days in the RHU after being found guilty of both misconducts
does not constitute an atypical and significant hardship under Sandin). See Smith v. Mensinger,
293 F.3d 641, 654 (3d Cir. 2002) (holding that seven months of disciplinary confinement “does
not, on its own, violate a protected liberty interest as defined in Sandin”); Griffin v. Vaughn, 112
F.3d 703, 706 (3d Cir. 1997) (finding that fifteen months in segregation was not an atypical and
significant hardship). See also Hewitt v. Helms, 459 U.S. 460, 468 (1983), overruled on other
grounds as recognized, Mackey v. Dyke, 111 F.3d 460, 462 (6th Cir. 1997) (the Due Process
Clause of the Fourteenth Amendment does not create an inherent liberty interest to remain free
from administrative custody); Stephany v. Wagner, 835 F.2d 497, 499 (3d Cir. 1987) (“the Due
Process Clause does not give a prisoner a liberty interest in remaining in the general prison
population”).
In the instant case, it is clear from the documents submitted by Plaintiff in conjunction
with the Complaint that, as a result of the misconduct, he received 270 days in the RHU. ECF
No. 12-1 at 24. Thus, under Sandin, Plaintiff was not entitled to due process relative to the
misconduct and he is unable to state a due process claim relative to the disciplinary process.
Plaintiff’s claims brought at Counts I, III, and V of the Complaint therefore will be dismissed.

11

At Count IV of the Complaint, although Plaintiff mentions the Fourteenth Amendment,
his claim revolves around Dr. Jin’s alleged deliberate indifference to his medical needs and does
not state a due process claim against the DOC Defendants. Thus, Count IV of the Complaint is
properly dismissed as to the DOC Defendants as well.
Plaintiff’s claim at Count VI of the Complaint revolves around the alleged unlawful
confiscation of his legal materials. The unauthorized intentional deprivation of property by a
prison official, however, does not violate the Due Process Clause where the inmate has a
meaningful post-deprivation remedy available to him. Monroe v. Beard, 536 F.3d 198, 210 (3d
Cir. 2008), quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984). Thus, in order to succeed on a
due process claim, an inmate must not only show that his property was confiscated but that he
was not afforded a post-deprivation administrative remedy. Ball v. Campbell, No. 11-2239,
2011 WL 7080692, at *7 (M.D. Pa. Dec. 9, 2011), Report & Recommendation adopted, 2012
WL 201846 (M.D. Pa. Jan. 23, 2012). The United States Court of Appeals for the Third Circuit
has found that adequate post-deprivation remedies include the ability to file a state tort action or
use of the prison's grievance process. Tapp v. Proto, 404 F. App'x 563, 567 (3d Cir. 2010);
Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000). The existence of
either of these post-deprivation remedies therefore “forecloses any due process claim . . . even if
[the] inmate is dissatisfied with the result of the process.” Iseley v. Horn, No. 95-5389, 1996
WL 510090, at *6 (E.D. Pa. Sept. 3, 1996), citing Austin v. Lehman, 893 F. Supp. 448, 454
(E.D. Pa. 1995). See Pettaway v. SCI Albion, No. 11-158 E, 2012 WL 366782, at *3-4 (W.D.
Pa. Feb. 2, 2012).
Here, it is clear from the Complaint that Plaintiff had a post-deprivation remedy available
to him and that he, in fact, took advantage of that remedy. Indeed, Plaintiff has alleged that he

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filed an inmate grievance concerning the confiscation of his legal, religious and personal
property on October 3, 2014. ECF No. 12 ¶ 70. As such, Plaintiff is unable to state a due
process claim relative to the confiscation of his legal materials and to the extent he seeks relief
under the Fourteenth Amendment, Plaintiff’s claim at Count VI will be dismissed.
Finally, Count VIII of the Complaint appears to revolve around the grievance process at
SCIG in general and specifically around the handling of two grievances Plaintiff filed with
respect to his missing personal property and the treatment he received by Dr. Jin. Id. ¶¶ 109, 7594. The Court of Appeals for the Third Circuit, however, has rejected due process claims
relating to prison grievance procedures finding that “[p]risoners do not have a constitutional right
to prison grievance procedures . . . [n]or do they have a liberty interest protected by the due
process clause in the grievance procedures.” Fears v. Beard, 532 F. App’x 78, 81 (3d Cir. 2013),
citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (state's inmate grievance
procedures do not give rise to a liberty interest protected by the Due Process Clause). As such,
to the extent that Plaintiff’s due process claim brought at Count VIII revolves around the prison
grievance procedures, it is properly dismissed. See Rowkosky v. Burns, No. 13-174, 2013 WL
891913, at *1 (W.D. Pa. Mar. 8, 2013), quoting Morales v. Beard, No. 09–162, 2009 WL
2413425, at *2 (W.D. Pa. July 31, 2009) (“even if prison grievance system was inadequate,
prisoner still had ‘at least one adequate post-deprivation remedy in the form of a state law tort
suit’”).

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3.

First Amendment Claim (Count VI)5

Plaintiff alleges at Count VI of the Complaint that his First Amendment right of access to
the courts was violated when his legal materials were confiscated.
An incarcerated prisoner, like any other citizen, has a constitutionally protected right of
access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The United States Supreme
Court has established that in order to have standing to bring a claim for denial of access to the
courts, an inmate must establish that he suffered an “actual injury” as a result of the alleged
denial. Id. at 349. See Dunbar v. Barone, 487 F. App’x 721, 724 (3d Cir. 2012). “Actual injury
occurs when a prisoner demonstrates that a ‘nonfrivolous’ and ‘arguable’ claim was lost because
of the denial of access to the courts.” Fortune v. Hamberger, 379 F. App’x 116, 120 (3d Cir.
2010), quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002). See Dunbar v. Barone, 487 F.
App’x at 724; Atwell v. Lavan, 557 F. Supp. 2d 532, 558-59 (M.D. Pa. 2008), aff’d, 366 F.
App’x 393 (3d Cir. 2010) (proof of actual injury caused by virtue of absence of records is
required). Thus, in order to state a claim for denial of access, the allegedly lost suit must have
been non-frivolous since losing the ability to litigate a frivolous suit simply causes no injury.
Christopher v. Harbury, 536 U.S. at 415. It therefore follows that “the underlying cause of
action . . . is an element that must be described in the complaint, just as much as the allegations
must describe the official acts frustrating the claim.” Id. See id. at 416 (“[h]ence the need for
care in requiring that the predicate claim be described well enough to apply the ‘nonfrivolous’
test and to show that the ‘arguable’ nature of the underlying claim is more than hope”).

5

Although Defendants indicate that Plaintiff has also brought First Amendment claims in Counts IV and V of the
Complaint, as previously discussed, Count IV revolves around Dr. Jin’s alleged deliberate indifference to Plaintiff’s
medical needs and does not state a First Amendment claim against the DOC Defendants. Further, at Count V of the
Complaint, although Plaintiff generally alleges that he was denied his rights provided by the First Amendment,
Count V revolves around Defendant Barr’s handling of the misconduct hearing held on October 2, 2014, and does
not implicate Plaintiff’s First Amendment rights.

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In this case, to support his First Amendment claim that he was denied access to the courts
Plaintiff alleges only that he informed Defendant Trout that he had “open cases in Federal and
State Court” and that the failure to return his legal documents caused him to miss important
deadlines which, in turn, caused “litigations in both state and federal court to be denied.” ECF
No. 12 ¶¶ 67-69, 106. These assertions fall woefully short of describing the underlying causes of
action or demonstrating that Plaintiff suffered an actual injury. Plaintiff has not identified any
particular litigation, the issues raised therein or any facts that would suggest that his cases had
any merit.
Further, the documents that Plaintiff has attached to the Complaint to support his First
Amendment claim do not demonstrate that any filing deadlines were missed. The orders from
the Supreme Court and Superior Court of Pennsylvania show only that Plaintiff had an appeal
from the denial of a PCRA petition pending in the Superior Court of Pennsylvania in March and
April of 2014, and that his subsequent Petition for Allowance of Appeal to the Supreme Court of
Pennsylvania was denied in January of 2015. ECF No. 12-1 at 41-44. With respect to the order
from the Third Circuit Court of Appeals dated July 1, 2015, in which Plaintiff’s application for a
certificate of appealability in a habeas proceeding was denied, the record shows that Plaintiff’s
Motion to Amend/Correct Petition for Writ of Habeas Corpus, which is the subject of the Order
at issue, was denied by the District Court on September 30, 2014, and Plaintiff’s Notice of
appeal to the Third Circuit Court of Appeals was filed on October 27, 2014.6 Thus, contrary to
Plaintiff’s suggestion, the appeal and/or request for a certificate of appealability was timely

6

A court may take judicial notice of matters of public record including prior judicial proceedings. In re: Lamictal
Indirect Purchaser & Antitrust Consumer Litig., 172 F. Supp. 3d 724, 738 (D.N.J. 2016), citing Sands v.
McCormick, 502 F.3d 263, 268 (3d Cir. 2007), Buck v. Hampton Tp. School Dist., 452 F.3d 256, 260 (3d Cir.
2006), and McTernan v. City of York, Penn., 577 F.3d 521, 526 (3d Cir. 2009).

15

filed.7 In short, there is absolutely no indication in any of these records to suggest that any of
Plaintiff’s cases were dismissed because he missed deadlines as the result of his property being
confiscated. Under these circumstances, Plaintiff’s First Amendment claim brought at Count VI
of the Complaint is properly dismissed.8

7

Although the Order from the Third Circuit Court of Appeals submitted by Plaintiff makes reference to the timely
filing of a notice of appeal and the propriety of equitable tolling, the appeal to which it refers was that of a habeas
petition that Plaintiff filed in 1992, which was docketed at C.A. No. 92-0281, and ultimately denied by this Court on
March 31, 1997. See C.A. 2:99-cv-2012, ECF No. 50 at 3-6. Counsel for Plaintiff failed to timely appeal the denial
of relief and this Court denied counsel’s subsequent requests for an extension of time to file a notice of appeal.
Plaintiff then filed a second petition, on November 1, 1999, which was docketed at C.A. No. 99-2102, challenging
the effectiveness of the representation he received relative to the first petition due to counsel’s failure to timely
appeal. Id. On November 1, 2013, over ten years after the second petition was denied and the appeal was upheld by
the Court of Appeals, Plaintiff filed a Motion to Amend/Correct the Petition, in which he sought, at least in part, to
revisit this Court’s Order issued in 1997 denying his counsel’s request for an extension of time to file a notice of
appeal from the denial of Plaintiff’s first habeas petition. Id. In reviewing the District Court’s Order denying
Plaintiff’s Motion to Amend as a successive petition, which was issued on September 30, 2014, the Court of
Appeals for the Third Circuit rejected Plaintiff’s argument that the District Court should have equitably tolled the
time to appeal Plaintiff’s first habeas petition, noting that the timely filing of a notice of appeal is a jurisdictional
requirement and not subject to equitable exceptions. Id. at ECF No. 54. It is this Order which Plaintiff has attached
to the instant Complaint which clearly does not support Plaintiff’s assertion that he missed deadlines in Federal
Court because his property was confiscated in 2014.
8

The Court notes here that Plaintiff also references the Equal Protection Clause of the Fourteenth Amendment in
Counts III, VI and VIII of the Complaint. Plaintiff, however, has not alleged any facts regarding other similarly
situated individuals that were treated more favorably than Plaintiff was treated. Plaintiff therefore has failed to state
an equal protection claim and to the extent Plaintiff intended to do so those claims are properly dismissed as well.
See Parran v. Wetzel, No. 14-1522, 2016 WL 1162328, at *9 (M.D. Pa. Mar. 23, 2016), citing Tillman v. Lebanon
Cty. Corr. Facility, 221 F.3d 410, 423–24 (3d Cir. 2000) (“[t]o state an equal protection claim, Parran must allege
(1) that he is a protected class member and (2) that he was treated differently from similarly situated persons outside
his protected class”). Further, although Plaintiff alleges at Counts III, IV, V, VI, VII and VIII of the Complaint that
Defendants’ actions ran afoul of DOC Policy, he has failed to state a claim. Not only is there no independent state
law cause of action for violating DOC policy but, to the extent Plaintiff offers his assertions to support his
constitutional claims, it is clear that “a violation of an internal policy does not automatically rise to the level of a
constitutional violation.” Atwell v. Lavan, 557 F. Supp. 2d at 556 n.24, citing Whitcraft v. Twp. of Cherry Hill, 974
F. Supp. 392, 398 (D.N.J. 1996); Daniels v. Williams, 474 U.S. 327, 332–33 (1986); Edwards v. Baer, 863 F.2d 606,
608 (8th Cir. 1988); Jones v. Chieffo, 833 F. Supp. 498, 505–506 (E.D. Pa. 1993), aff’d, 22 F.3d 301 (3d Cir. 1994).
Thus, it is incumbent on a plaintiff making such a claim to plead facts suggesting that the alleged policy violations in
his or her particular case rose to the level of a constitutional violation. Here, Plaintiff has not alleged any such facts.
Accordingly, Plaintiff’s claims revolving around DOC policy violations will be dismissed.

16

4.

State Law Claim - Conversion (Count VII)9

Defendants argue that Plaintiff’s state law claim for conversion should be dismissed
because there is no indication that Defendants permanently dispossessed Plaintiff of his property.
In so arguing, Defendants rely on Ickes v. Grassmeyer, 30 F. Supp. 3d 375 (W.D. Pa. 2014), in
which the Court stated:
[a]n individual commits the tort of trespass to chattels by intentionally
dispossessing another person of a chattel or intermeddling with a chattel in
another person's possession. Pestco, Inc. v. Associated Products, Inc., 880
A.2d 700, 708 (Pa. Super. Ct.2005). If the interference with the owner's
right of possession is sufficiently severe to permanently deprive him or her
of that right, the trespass culminates in a conversion. Baram v. Farugia, 606
F.2d 42, 43–44 (3d Cir. 1979). A conversion can occur even if the
defendant does not appropriate the property for his or her own use. Central
Transport, LLC v. Atlas Towing, Inc., 884 F. Supp. 2d 207, 218–19 (E.D.
Pa. 2012).
Id. at 402.
9

Although at Count II of the Complaint Plaintiff alleges that Defendants violated his right “to be free from cruel
and unusual punishment with deliberate indifference and negligence,” it is clear that Plaintiff is not bringing a state
law claim for negligence but seeks to hold Defendants liable under Section 1983 for their alleged negligent conduct.
It is equally clear, however, that negligence cannot support a Section 1983 claim. See Davidson v. Cannon, 474
U.S. 344, 347 (1986) (negligence cannot support a § 1983 cause of action); Stankowski v. Farley, 487 F. Supp. 2d
543, 565 (M.D. Pa. 2007) (“…negligence is not a basis for a § 1983 action. It is well-settled that mere negligence is
not an actionable § 1983 claim”). Further, at Count IV of the Complaint Plaintiff alleges that the actions of
Defendants denied Plaintiff his rights under Pennsylvania law and “clearly shows . . . negligence.” ECF No. 12 ¶
101. The actions upon which Plaintiff basis his claim at Count IV, however, revolve around Dr. Jin’s alleged failure
to provide medical treatment and not the DOC Defendants. Id. ¶¶ 58-60, 101. Thus, Plaintiff has failed to state a
claim of negligence under state law against the DOC Defendants. Daniels v. Williams, 474 U.S. 327 (1986).
Finally, although not addressed by the DOC Defendants, the Court notes that, to the extent Plaintiff has brought a
claim for intentional infliction of emotional distress at Count VIII of the Complaint, and even assuming that Plaintiff
is able to establish an Eight Amendment cruel and unusual punishment claim relative to his being handcuffed to a
wall for twenty-six hours, the Court finds that, under the circumstances of this case, such actions do not rise to the
level of extreme and outrageous conduct required to sustain an IIED claim. See Hill v. City Of Philadelphia, 331 F.
App'x 138, 143 (3d Cir. 2009), citing Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (“in order to recover for IIED,
defendant's conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society”). See also Whiting
v. Bonazza, No. 09-1113, 2011 WL 500797, at *14 (W.D. Pa. Feb. 10, 2011) (“[c]onduct deemed sufficiently
outrageous in Pennsylvania to constitute IIED includes:(1) killing the plaintiff's son with an automobile and then
burying the body, rather than reporting the incident to the police; (2) intentionally fabricating documents that led to
the plaintiff's arrest for murder; and (3) knowingly releasing to the press false medical records diagnosing the
plaintiff with a fatal disease”). Thus, the only state law claim at issue is that of conversion.

17

Here, as Defendants correctly point out, the confiscation slips that Plaintiff has submitted
to support his claims shows that Plaintiff’s property was merely being held because the content
was “disputed” by Plaintiff. ECF No. 12-1 at 33-35. Moreover, Plaintiff has alleged in the
Complaint that Defendant Trout told Plaintiff that his property would be placed in the “disputed
property” until the issue was resolved. ECF No. 12 ¶ 68. Although the Court agrees that there is
no indication in the record that Defendants permanently dispossessed Plaintiff of his property,
and the evidence cited above suggests that Plaintiff’s property would eventually be returned to
him, there is also no indication that it actually was returned to him. Indeed, the confiscation slips
are dated October 3, 2014. The instant Complaint in which Plaintiff complains that his property
was still being held was filed on September 23, 2015 -- almost one year later. Id. ¶ 72. Under
these circumstances, the Court cannot find, at least not at this early juncture, that Plaintiff has
failed to state a claim for conversion and the DOC Defendants’ Motion as to Count VII will be
denied.10
B.

Dr. Jin’s Motion to Dismiss11
1.

Count II

At Count II of the Complaint Plaintiff alleges that Dr. Jin’s actions in performing a
painful anal probe and enema on Plaintiff violated his rights to be free from cruel and unusual

10

Although Defendants make the alternative argument that the Court should decline to exercise supplemental
jurisdiction over Plaintiff state law conversion claim, the Court may only decline to exercise supplemental
jurisdiction over pendent state law claims where all of the claims over which the Court has original jurisdiction have
been dismissed. 28 U.S.C. ' 1367(c)(3). Defendants, however, have not sought dismissal over Plaintiff’s Eighth
Amendment claims revolving around his being handcuffed to a wall for 26 hours and thus at least one claim over
which this Court has original jurisdiction remains for adjudication. ECF No. 50 p. 1 n.1.
11

Although Plaintiff refers generally to “Defendants” in all of his eight causes of action, the only specific allegations
against Dr. Jin appear in paragraphs 49-51 and 58-60 of the Complaint which provide the basis for Plaintiff’s claims
brought at Counts II and IV. The Court therefore finds that only Counts II and IV pertain to Dr. Jin and has only
addressed Dr. Jin’s arguments in his Motion to Dismiss that pertain to those Counts.

18

punishment and deliberate indifference as provided by the Eight Amendment to the Constitution.
ECF No. 12 ¶¶ 97-98, 49-51.
The Eighth Amendment's prohibition on cruel and unusual punishment
protects prisoners from the “unnecessary and wanton infliction of pain” that
is “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730,
737... (2002) (citations omitted). Only “calculated harassment” or
“maliciously motivated” conduct that is unrelated to institutional security is
considered unconstitutional. Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir.
2004).... Del Raine v. Williford], 32 F.3d [1024,] 1039-42 [(7th Cir. 1994)]
(upholding reasonableness of digital rectal search against Eighth
Amendment challenge because there was no evidence that officials
undertook search in “malicious and sadistic fashion for the very purpose of
causing harm”) (citations omitted).
Green v. Hallam, 105 F. App’x 858, 862 (7th Cir. 2004). See Wiley v. Serrano, 37 F. App’x 252,
254 (9th Cir. 2002), quoting Wilson v. Seiter, 501 U.S. 294, 302-03 (1991) (“[t]o establish an
Eighth Amendment violation, an inmate must show either that (1) prison officials inflicted pain
on an inmate ‘maliciously and sadistically for the very purpose of causing harm,’ or (2) prison
officials were deliberately indifferent to inadequate conditions of confinement”); Del Raine v.
Williford, 32 F.3d 1024, 1040 (7th Cir. 1994) (“[a]n Eighth Amendment application ... requires
this court to focus on the words “abusive” and “reasonable.” .... Abusiveness occurs when there is
evidence of some palpable malevolence attributable to a prison official exacerbated by the lack
of a justifiable penological objective for the search”) (emphasis in original); Miller v. Trometter,
No. 11-811, 2012 WL 5933015, at *15 (M.D. Pa. Nov. 27, 2012) (the Eight Amendment applies
when the strip search is conducted in a physically abusive manner); Sanchez v. Pereira-Castillo,
573 F. Supp. 2d 474, 485–86 (D.P.R. 2008), aff'd in part, vacated in part on other grounds, 590
F.3d 31 (1st Cir. 2009), quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“searches do not
violate the Eighth Amendment as long as they are conducted in a reasonable manner. However,
if such searches are done ‘maliciously and sadistically for the very purpose of causing harm’

19

they violate the Eighth Amendment”); Payton v. Vaughn, 798 F. Supp. 258, 261 (E.D. Pa. 1992)
(“to establish that prison conditions violate the eighth amendment, a plaintiff must allege facts
showing that such conditions result in the wanton and unnecessary infliction of pain, or are
grossly disproportionate to the severity of the crime warranting punishment”).
Moreover, it is well established that “[p]reventing drugs and weapons that can be
smuggled through the alimentary canal or hidden in the rectal cavity is a legitimate penological
concern[, and that] [d]igital rectal searches are a legitimate means of maintaining order and do
not violate the Eighth Amendment as long as they are conducted in a reasonable manner.” Green
v. Hallam, 105 F. App’x at 862, citing Bell v Wolfish, 441 U.S. 520, 559 (1979); Johnson v.
Phelan, 69 F.3d 144, 146 (7th Cir. 1995). See Sanchez v. Pereira-Castillo, 573 F. Supp. 2d at
485–86.
In the instant case, the Complaint is completely devoid of any suggestion that Dr. Jin
conducted the anal probe or enema in a physically abusive manner or with excessive force; that
Dr. Jin was maliciously motivated; that his actions were calculated to harass Plaintiff; or that he
acted in order to cause Plaintiff harm. Although Plaintiff alleges that the probe was painful and
humiliating, “[t]he Eighth Amendment's prohibition of ‘cruel and unusual’ punishment
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a sort ‘repugnant to the conscience of mankind.’” Williamson v.
Garman, No. 15-1797, 2016 WL 3566967, at *6 (M.D. Pa. June 29, 2016), quoting Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992). Further, “[e]mbarrassment alone because of casual
observances by others does not offend the constitution.” Payton v. Vaughn, 798 F. Supp. at 262.
See Millhouse v. Arbasak, 373 F. App’x 135, 137 (3d Cir. 2010) (body cavity strip “searches,
even if embarrassing and humiliating, do not violate the constitution”); Brown v. Blaine, 185 F.

20

App’x 166, 170 (3d Cir. 2006) (“[w]hile we recognize that Brown may have suffered
embarrassment and humiliation while the search was being conducted, we cannot conclude that
Brown's constitutional rights were violated by the search procedures employed”); Williamson v.
Garman, 2016 WL 3566967, at *5 (“Plaintiff’s allegation that the search was degrading and
embarrassing fails to state a constitutional violation”). Thus, neither the discomfort that
accompanies the performance of an anal probe nor the humiliation Plaintiff suffered as a
consequence give rise to an Eighth Amendment claim. Because Plaintiff has failed to allege
facts that Dr. Jin’s digital probe was conducted in an unreasonable manner, he has failed to state
an Eight Amendment claim against Dr. Jin at Count II of the Complaint. See Lim v. Cruz, No.
14-108, 2015 WL 1185982, at *7 (M.D. Pa. Mar. 13, 2015) (“[a]s the complaint does not allege
that Defendants conducted the search in a physically abusive fashion or with excessive force,
Plaintiff has failed to state an Eighth Amendment claim for relief”). See also Del Raine v.
Williford, 32 F.3d at 1039-42 (upholding reasonableness of a digital rectal search against Eighth
Amendment challenge because there was no evidence that officials undertook search in
malicious and sadistic fashion for the purpose of causing harm”).
In addition, although Plaintiff has not alleged at Count II of the Complaint that Dr. Jin’s
actions ran afoul of the Fourth Amendment, even if he had, the claim would be equally
unavailing as Plaintiff has not alleged any facts to show that the search was unreasonable.12
There is no doubt that digital rectal examinations entail an intrusion
greater than the “severe if not gross interference with a person’s privacy that
occurs when guards conduct a visual inspection of body cavities.” Bonitz [v.
Fair], 804 F.2d [164,] 172 [1st Cir. 1986](quotation omitted). At a
12

See Miller v. Trometter, 2012 WL 5933015, at *15 (when a pro se plaintiff frames his claim in terms of one
particular constitutional Amendment, the court should not limit his allegations to a theory of recovery under that
Amendment when another Amendment applies); Allen v. Warden of Dauphin Cty. Jail, No. 07-1720, 2008 WL
4452662 , at *1 n.6 (M.D. Pa. Sept. 29, 2008), citing Smith v. Johnson, 202 F. App'x 547, 549 (3d Cir. 2006) (“the
court is obligated to construe [a pro se inmate's] complaint liberally and to ‘apply the relevant law, regardless of
whether the pro se litigant has identified it by name’”).

21

minimum, they are “highly intrusive and humiliating.” Tribble v. Gardner,
860 F.2d 321, 324 (9th Cir. 1988). Nevertheless physical rectal
examinations of prisoners, when carried out by trained medical staff under
sanitary conditions, are at times “a necessary and reasonable concomitance
of ... imprisonment.” Daughtery v. Harris, 476 F.2d 292, 295 (10th Cir.
1973).
Sanchez v. Pereira-Castillo, 590 F.3d 31, 42–44 (1st Cir. 2009). Indeed, as this Court
has recently stated:
Although strip searches constitute a “significant intrusion on an individual's
privacy,” see United States v. Whitted, 541 F.3d 480, 486 (3d Cir. 2008),
where officials conduct such searches in a reasonable manner to maintain
security and to prevent the introduction of contraband or weapons in the
facility, strip searches do not violate the Fourth Amendment. See Florence
v. Bd. of Chosen Freeholders of Cty. of Burlington, 621 F.3d 296, 309–11
(3d Cir. 2010), aff'd,—U.S., 132 S. Ct. 1510, 1516–17 (2012) (emphasis
added). The relevant test for ascertaining the reasonableness of a search
“requires a balancing of the need for the particular search against the
invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S.
520, 559 (1979). In applying this balancing test, the Court “must consider
the scope of the particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it is conducted.”
Bell, 441 U.S. at 559.
Hughes v. Harper, No. 14-00585, 2015 WL 7428493, at *5 (W.D. Pa. Oct. 2, 2015), Report &
Recommendation adopted, 2015 WL 7444642 (W.D. Pa. Nov. 23, 2015). See also Green v.
Hallam, 105 F. App’x at 861 (“[p]rison officials are in the best position to determine what is
required to manage prisons, and therefore they are afforded wide-ranging deference in evaluating
what is necessary to preserve order and discipline”) (internal quotations omitted).
Here, it is clear from the Complaint and the documents attached thereto that the search
was conducted by Dr. Jin for the legitimate penological purpose of locating and removing
contraband and was conducted in a cell in the prison infirmary by a medical professional with
only Defendant Kelly present. ECF No. 12 ¶¶ 39, 46, 49-50, 58. This, coupled with the Court’s
earlier finding that the Complaint is devoid of any indication that Dr. Jin conducted the search in

22

an unreasonable manner, Plaintiff has failed to allege facts to support a plausible Fourth
Amendment claim against Dr. Jin at Count II of the Complaint. See Sanchez v. Pereira-Castillo,
590 F.3d at 42–44 (We conclude that the rectal searches of plaintiff described in the complaint,
carried out by medical professionals in the relatively private, sanitary environment of a hospital,
upon suspicion that plaintiff had contraband in his rectum, and with no abusive or humiliating
conduct on the part of the law enforcement officers or the doctors, were not unreasonable”);
Williamson v. Garman, 2016 WL 3566967, at *5 (finding no constitutional violation had been
alleged where the plaintiff asserted that seven corrections officers held him down, cut off his
clothes, placed him on his stomach, and one officer grabbed his buttock and spread his butt
cheeks apart”). As such, Count II of the Complaint will be dismissed as to Dr. Jin.
2.

Count IV

At Count IV of the Complaint Plaintiff brings a claim against Dr. Jin alone for deliberate
indifference to Plaintiff’s medical needs in violation of the Eighth Amendment. Specifically,
Plaintiff alleges that in November of 2014, Dr. Jin charged him for a sick call visit but refused to
prescribe anything to Plaintiff for his skin condition. Plaintiff also alleges that in December of
2014 Dr. Jin charged him a fee but refused to administer medical attention for pain that Plaintiff
was experiencing around the right side of his nose and nostril area. ECF No. 12 ¶¶ 101, 59-60.
See ECF No. 12-1 at 19-21.
The Eighth Amendment's prohibition against cruel and unusual punishment requires
prison officials to provide basic medical treatment to those whom it has incarcerated and that
deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and
wanton infliction proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). Thus, in order to establish an Eighth Amendment violation, a plaintiff must demonstrate:

23

(1) a serious medical need; and (2) that the defendants were deliberately indifferent to that need.
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). See Spruill v. Gillis, 372 F.3d 218, 235 (3d
Cir. 2004).
In order to establish deliberate indifference, a “plaintiff must make an ‘objective’
showing that the deprivation was ‘sufficiently serious,’ or that the result of defendant's denial
was sufficiently serious. Additionally, a plaintiff must make a ‘subjective’ showing that
defendant acted with a ‘sufficiently culpable state of mind.’” Montgomery v. Pinchak, 294 F.3d
492, 499 (3d Cir. 2002), citing Wilson v. Seiter, 501 U.S. 294, 298 (1991). “[T]he official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Wilson v. Burks, 423 F. App’x 169, 173 (3d
Cir. 2011), quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Moreover, it is well established that an inmate is not entitled to a particular course of
treatment or to have particular tests performed. Jetter v. Beard, 130 F. App'x 523, 526 (3d Cir.
2005) (noting that while plaintiff would have preferred a different course of treatment, his
preference does not establish an Eighth Amendment cause of action); Pilkey v. Lappin, No. 055314, 2006 WL 1797756, at *2 (D.N.J. June 26, 2006) (“refusal to consider inmate's selfdiagnoses,” or “to perform tests or procedures that the inmate desires” does not amount to cruel
and unusual punishment). Rather, “the question of whether certain diagnostic technique or form
of treatment should be prescribed, ‘is a classic example of a matter for medical judgment,’” and
does not give rise to an Eighth Amendment violation. McNeil v. Redman, 21 F. Supp. 2d 884,
887 (C.D. Ill. 1998), quoting Estelle v. Gamble, 429 U.S. at107. See Spruill v. Gillis, 372 F.3d
at 235 (neither claims of medical malpractice nor disagreements regarding the proper medical
treatment are actionable); Maqbool v. Univ. Hosp. of Med. & Dentistry of N.J., No. 11-4592,

24

2012 WL 2374689, at *9 (D.N.J. June 13, 2012) (the refusal to perform tests or procedures that
the inmate desires, or to explain to the inmate the reason for medical action or inaction, however,
does not amount to cruel and unusual punishment).
Furthermore, the United States Court of Appeals for the Third Circuit has held that, under
the deliberate indifference standard, prison medical authorities have “considerable latitude” in
exercising this judgment in the diagnosis and treatment of inmate patients and that Court's should
"disavow any attempt to second-guess the propriety or adequacy of a particular course of
treatment which remains a question of sound professional judgment.” Carter v. Smith, 483 F.
App’x 705, 707 (3d Cir. 2012), quoting Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754,
762 (3d Cir. 1979) (citation omitted).
With respect to his first claim against Dr. Jin, Plaintiff has not pled any fact in the
Complaint to suggest he suffers from a serious medical condition or that Dr. Jin was aware of
facts from which it could be inferred that a substantial risk of harm existed. Plaintiff has merely
alleged that he suffered from some unidentified skin condition. Moreover, the documents that
Plaintiff has submitted to support his claim, i.e., the grievance he subsequently filed against Dr.
Jin and the initial review response, show that the skin condition of which Plaintiff complained
was merely “dry skin.” ECF No. 12-1 at 20. Dr. Jin, however, found no evidence of
significantly dry skin and thus found there was no medical reason to prescribe lotion. Dr. Jin
therefore informed Plaintiff he could buy moisturizer from commissary. Id. At best, these facts
show that Plaintiff simply disagreed with Dr. Jin’s assessment of a non-serious medical need
which fails to state an Eighth Amendment deliberate indifference claim.
In addition, it is not at all clear that suffering from facial pain, as Plaintiff claims he was
experiencing when he saw Dr. Jin in December of 2014, could be considered a serious medical

25

need. Plaintiff has alleged no facts concerning the onset of the pain, the extent of the pain or the
duration of the pain. Nor has he alleged any facts from which the inference could be made that a
substantial risk of harm existed, that Dr. Jin was aware of those facts, or that Dr. Jin actually
drew the inference. Indeed, Plaintiff has not alleged that he suffered any harm as the result of
Dr. Jin’s alleged inaction. Plaintiff therefore has failed to state an Eighth Amendment deliberate
indifference claim relative to his second visit with Dr. Jin as well.
Moreover, to the extent that Plaintiff suggests that Dr. Jin’s conduct ran afoul of the
Eighth Amendment because he charged Plaintiff for the sick call visits, his claim also fails. The
Court of Appeals for the Third Circuit has specifically held that “[i]f a prisoner is able to pay for
medical care, requiring such payment is not ‘deliberate indifference to serious medical needs.’”
Reynolds v. Wagner, 128 F.3d 166, 174 (3d Cir. 1997), quoting Helling v. McKinney, 509 U.S.
25, 32 (1993). See Stankowski v. Farley, 487 F. Supp. 2d at 556. Moreover, as the Facility
Grievance Coordinator explained to Plaintiff, it appears that “Dr. Jin was required per DC-ADM
20 Section 2(A)(4) to have [Plaintiff] sign the cash slip,” and that Plaintiff was appropriately
charged for the sick call visits. ECF No. 12-1 at 20.
Finally, to the extent that Plaintiff has brought a retaliation claim against Dr. Jin at Count
IV of the Complaint, he has also failed to state a claim. To prevail on a retaliation claim, a
plaintiff must demonstrate: (1) that he engaged in constitutionally protected conduct; (2) that an
adverse action was taken against him by a prison official; and (3) that there is a causal
connection between the exercise of his constitutional rights and the adverse action. Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003). See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)
(the constitutionally protected conduct must be “a substantial or motivating factor” in the
decision to discipline the inmate).

26

In this case, Plaintiff has not specifically identified what protected activity he engaged in
or what actions Dr. Jin took that were retaliatory. Insofar as it can be inferred from the
Complaint that Dr. Jin retaliated against Plaintiff by refusing to treat his facial pain in December
of 2014, because Plaintiff had filed a grievance against Dr. Jin the month before, it is not at all
clear that failing to administer treatment that Plaintiff believes he should have received for
“pain” around his nose area constitutes an adverse action for purposes of a First Amendment
retaliation claim in the prison context. See Dunbar v. Barone, 487 F. App’x at 723, citing
Mitchell v. Horn, 318 F.3d at 530 (actions deemed sufficiently adverse to sustain such a claim in
the prison context are those such as being placed in disciplinary confinement or administrative
segregation; denied parole; transferred to an institution whose distance made regular family visits
impossible; suffering some sort of financial penalty; or being severely limited access to the
commissary, library, recreation, and rehabilitative programs).
Moreover, although temporal proximity can serve to establish a causal connection
between the protected conduct and the adverse action, courts in civil rights cases have frequently
rebuffed speculative efforts to infer causation from temporal proximity when a span of weeks or
months separated the plaintiff's constitutionally protected conduct from the defendants’ alleged
acts of retaliation. See Killen v. Nw. Human Servs., Inc., No. 06-4100, 2007 WL 2684541, at *8
(E.D. Pa. Sept. 7, 2007) (holding that temporal proximity of seventeen days was insufficient to
establish causation). See also Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.6 (3d Cir.
2000) (suggesting that temporal proximity of seven weeks would be insufficient to establish
causation); Smith v. ABF Freight Sys., Inc., No. 04-2231, 2007 WL 3231969, at *11 (M.D. Pa.
Oct. 29, 2007) (holding that temporal proximity of one and one-half months was insufficient to
establish causation); Fischer v. Transue, No. 04-2756, 2008 WL 3981521, at *10 (M.D. Pa. Aug.

27

22, 2008) (holding that temporal proximity of three weeks was insufficient to establish
causation).
Here, Plaintiff filed two grievances against Dr. Jin on October 2, 2014, and November
20, 2014. ECF No. 12-1 at 19. It was not until December 16, 2014, almost four weeks later, that
Dr. Jin allegedly declined to treat Plaintiff for his facial pain. Id. at 21. The proximity between
the two events is not such that the filing of Plaintiff’s grievance can be said to be a substantial or
motivating factor in Dr. Jin’s alleged decision not to provide Plaintiff with treatment. As such,
Plaintiff has failed to state a claim against Dr. Jin at Count IV of the Complaint and it is properly
dismissed.
IV.

CONCLUSION
For the foregoing reasons, the DOC’s Motion to Dismiss is properly granted in part and

denied in part, and Dr. Jin’s Motion is properly granted in its entirety. The United States Court
of Appeals for the Third Circuit, however, has held that when dismissing a civil rights case for
failure to state a claim, a court must give the plaintiff an opportunity to amend the complaint
whether or not the plaintiff has asked to do so unless to allow an amended complaint would be
inequitable or futile. See Fletcher–Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d
247, 251 (3d Cir. 2007), citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Here, the
Court finds that it would be futile to allow Plaintiff to amend his Complaint except as to his

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Eighth Amendment deliberate indifference claim brought against Dr. Jin at Count IV and his
First Amendment access to courts claim brought at Count VI. Accordingly the following Order
is entered:
ORDER
AND NOW, this 28th day of November, 2016, upon consideration of the Motion to
Dismiss submitted on behalf of the DOC Defendants, ECF No. 49, and the Motion to Dismiss
submitted on behalf of Dr. Jin, ECF No. 57, IT IS HEREBY ORDERED that DOC’s Motion to
Dismiss is granted in part and denied in part. The DOC’s Motion is denied with respect to
Plaintiff’s state law claim for conversion and granted in all other respects. IT IS FURTHER
ORDERED that Dr. Jin’s Motion to Dismiss is granted in its entirety.13 IT IS FINALLY
ORDERED that, to the extent that Plaintiff believes he can cure the substantial pleading
deficiencies identified in the Opinion as to his Eighth Amendment deliberate indifference claim
brought against Dr. Jin at Count IV and his First Amendment access to courts claim at Count VI,
he may file an Amended Complaint solely as to those two claims by December 19, 2016.
BY THE COURT:

/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc:

Stanton Story
AP-3330
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
All counsel of record via CM/ECF

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Accordingly, the only claims remaining for adjudication should Plaintiff decline to file an Amended Complaint
are Plaintiff’s Eighth Amendment cruel and unusual punishment claims brought at Count IV against Defendants
Kelly, Johnson I, Barnhart and Schirra relative to Plaintiff being handcuffed to a wall for 26 hours and his state law
claim for conversion brought against Defendants Plumley, Trout and Johnson II brought at Count VII.

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