CLAUSO v. MARTINELLI

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

THOMAS JAMES CLAUSO, :

:

Plaintiff, : Civ. No. 18-12217 (NLH) (LHG)

:

v. : OPINION

:

:

:

WARDEN WILLIE BONDS, et al., :

:

Defendants. :

:

______________________________:

APPEARANCES:

Gurbir S. Grewal, Attorney General of New Jersey

Niccole L. Sandora, Deputy Attorney General

Office of the New Jersey Attorney General

R.J. Hughes Justice Complex

PO Box 116

Trenton, NJ 08625

Counsel for Defendants Willie Bonds, Guard Hansen, and

Guard Martinelli

Thomas James Clauso

59252

South Woods State Prison

215 South Burlington Road

Bridgeton, NJ 08302

Plaintiff pro se

HILLMAN, District Judge

This matter comes before the Court on Willie Bonds’, Guard

Hansen’s, and Guard Martinelli’s (collectively “Defendants”)

motion for summary judgment. ECF No. 47. Plaintiff Thomas

Clauso has filed several letters opposing the motion for summary

judgment. ECF Nos. 56, 58, 59.

For the reasons stated herein, the Court will grant the

motion for summary judgment in part. Summary judgment will be

denied to Guard Hansen on the excessive force claim and to Guard

Martinelli on the denial of showers claim.

I. BACKGROUND

Plaintiff has submitted letters and documentation in

opposition to the motion but no opposing statement of material

facts. As such, the Court accepts Defendants’ statement of

material facts not in dispute (“DSOF”), ECF No. 47-1, as true.

See Fed. R. Civ. P. 56(e)(2).

Plaintiff is a convicted and sentenced state prisoner

currently detained in South Woods State Prison (“SWSP”),

Bridgeton, New Jersey. DSOF ¶ 1. On July 26, 2018, Plaintiff

filed a lawsuit under 42 U.S.C. § 1983 against Defendants and

other individuals raising claims regarding the conditions of his

confinement. Id. ¶¶ 3-4. Prior to Plaintiff’s transfer to SWSP

in April 2018, Plaintiff received disciplinary sanctions at

Northern State Prison for prohibited act *.704, perpetrating

frauds, deceptions, confidence games, riots or escape plots, a

category B offense. Id. ¶ 8. The hearing officer imposed 155

days administrative segregation, 155 days loss of computation

time, 20 days loss of recreation privileges, and 10 days loss of

telephone privileges as sanctions. Id. Plaintiff was placed

into SWSP’s Administrative Close Supervisor Unit (“ACSU”) C-Pod

1029 C after his transfer due to the charges from Northern

State. Id. ¶¶ 7-8. “[H]e was housed in ACSU C-Pod 1029 C from

April 19, 2018 to May 27, 2018, and the[n] again from May 28,

2018 to August 22, 2018.” Id. ¶ 9.

According to the complaint,1 Guard Martinelli falsely

claimed that Plaintiff threatened to stab him with a screwdriver

Plaintiff kept in his cell. ECF No. 1 at 16. On or about May

27, officers took Plaintiff to “the rubber room.” Id. at 17.

Sergeant Chard threatened Plaintiff with his “Iron Maiden” and

said they “got the idea from Apartheid.” Id. Plaintiff alleges

Guard Martinelli threatened to chain his face to the toilet.

Id. The disciplinary charges against Plaintiff were later

dropped, but the officers allegedly continued to harass

Plaintiff. Id. at 18. Plaintiff alleged that the officers were

“all racist, Nazis and white Supremacists” and described various

acts of torture against Black people. Id. Plaintiff claims he

1 “Plaintiff’s complaint is lengthy, handwritten, difficult to

read, and may be missing pages. Plaintiff’s allegations in any

event are somewhat unclear – they weave back in on themselves

and it is not always clear whether some repeated allegations

refer to the same incidents or incidents which reoccurred. It

is also difficult to discern from Plaintiff’s complaint the

exact timeline of when Plaintiff was confined to his cell, and

how much of the time that he claims he has been without a shower

or yard time overlaps with his temporary confinement to the

‘rubber room’ in May 2018.” ECF No. 3 at 3 n.1.

informed Administrator Bonds of all this, and Administrator

Bonds responded at one point that if Plaintiff “[kept] it up,”

Administrator Bonds “would have Sgt. Chard finish [him] off.”

Id. at 22-23.

Plaintiff’s complaint also alleges various claims related

to the conditions of his confinement. According to Plaintiff,

Plaintiff was confined to his cell for a period of a few weeks.

During this time, Plaintiff states that he was denied access to

a shower, denied exercise time, denied his walking equipment or

a wheelchair, and was essentially left to fester in his cell by

Chard, Hansen, and Martinelli. Plaintiff further alleges that

the guards refused to turn on the lights in his cell.2

On July 3, 2019, the Court screened the complaint under 28

U.S.C. § 1915(e) and permitted a conditions of confinement claim

against Defendants Chard, Goldsborough, Hansen, Martinelli,

Bonds, and Williams; a claim for targeted harassment unrelated

to prison needs by the four guards; a claim for denial of

medical care related to the seizing of his walkers and

wheelchair by the four guards; an excessive force claim against

Goldsborough; and a legal mail claim against Defendants

2 Plaintiff made other allegations against people who are not

parties to the motion for summary judgment. The Court need not

address those claims at this time since Defendants Chard,

Goldsborough, and Williams have not entered an appearance in

this matter.

Goldsborough and Bonds to proceed. ECF No. 3. Defendants

Hansen, Martinelli, and Bonds now move for summary judgment on

Plaintiff’s claims against them. ECF No. 47.

II. STANDARD OF REVIEW

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the non-moving party’s evidence “is to be believed and

all justifiable inferences are to be drawn in his favor.”

Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp.,

477 U.S. at 323. Once the moving party has met this burden, the

nonmoving party must identify, by affidavits or otherwise,

specific facts showing that there is a genuine issue for trial.

Id. Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 256-57. A party opposing summary

judgment must do more than just rest upon mere allegations,

general denials, or vague statements. Saldana v. Kmart Corp.,

260 F.3d 228, 232 (3d Cir. 2001).

III. DISCUSSION

Defendants argue Plaintiff’s claims against them should be

dismissed because he failed to exhaust his administrative

remedies. Alternatively, Defendants argue that Plaintiff cannot

prove his constitutional claims as a matter of law.

A. Failure to Exhaust

The Prison Litigation Reform Act (“PLRA”) “mandates that an

inmate exhaust ‘such administrative remedies as are available’

before bringing suit to challenge prison conditions.” Ross v.

Blake, 136 S. Ct. 1850, 1854–55 (2016) (quoting 42 U.S.C. §

1997e(a)). “[T]hat language is ‘mandatory’: An inmate ‘shall’

bring ‘no action’ (or said more conversationally, may not bring

any action) absent exhaustion of available administrative

remedies.” Id. at 1856 (citing Woodford v. Ngo, 548 U.S. 81, 85

(2007)). “There is no question that exhaustion is mandatory

under the PLRA and that unexhausted claims cannot be brought in

court.” Jones v. Bock, 549 U.S. 199, 211 (2007). This includes

constitutional claims, Woodford, 548 U.S. at 91 n.2, and

“applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

Exhaustion under the PLRA must be proper, meaning

“prisoners must ‘complete the administrative review process in

accordance with the applicable procedural rules,’ rules that are

defined not by the PLRA, but by the prison grievance process

itself.” Jones, 549 U.S. at 218 (quoting Woodford, 548 U.S. at

88). “A prisoner must exhaust these remedies ‘in the literal

sense[;]’ no further avenues in the prison’s grievance process

should be available.” Smith v. Lagana, 574 F. App’x 130, 131

(3d Cir. 2014) (quoting Spruill v. Gillis, 372 F.3d 218, 232 (3d

Cir. 2004)). “Failure to exhaust is an affirmative defense the

defendant must plead and prove[.]” Small v. Camden Cty., 728

F.3d 265, 268 (3d Cir. 2013).

“As formulated in this Circuit, the failure-to-exhaust

affirmative defense has two distinct stages. The first inquiry

is whether the prison-employee defendants can demonstrate that

the inmate failed to exhaust the on-the-books remedies.” West

v. Emig, 787 F. App’x 812, 814 (3d Cir. 2019). Defendants

present the certification of Edward Hugh Haas, Esq., who is

employed by the State of New Jersey Department of Corrections as

a Legal Specialist in the Office of Legal and Regulatory

Affairs, in support of their motion. Certification of Edward

Hugh Haas, Esq. (“Haas Cert.”), ECF No. 47-7 ¶ 3.

Mr. Haas states “the DOC utilizes a multi-level inmate

remedy system (IRS) to allow inmates access to appropriate

correctional facility staff and administration in order to

obtain information and for the review and potential resolution

of grievances.” Id. ¶ 14. He further certifies that kiosks

maintained by JPay, a privately held corrections-related service

provider, are located within each housing unit of each DOC

facility. Id. “Through the Kiosks, inmates can submit JPay

inquiry forms to obtain information, file grievance forms,

concerns and complaints to correctional facility staff. They

can also file administrative appeals of grievances, which go

directly to the Administrator or Administrator’s designee, to

appeal decisions or findings rendered by correctional facility

staff.” Id.

Mr. Haas describes the internal remedy process at NJSP:

Pursuant to DOC policy, an inmate inquiry form should be

utilized to make routine inquiries to obtain

information. Inquiry forms are to be addressed within

fifteen (15) days. They are not subject to

administrative appeal. If there are additional

questions, the inmate should submit a new inquiry form.

An inmate grievance form should be utilized when there

are circumstances or actions an inmate believes to be

unjust or grounds for complaint. They must be submitted

within ten (10) of the date of the incident/issue unless

it is not possible. Inmates should provide a summary of

details, date, time and individuals involved and

description of the incident. Supportive documents or

other information may be attached. Inmate’s grievance

forms are to be responded to within thirty (30) days.

Pursuant to DOC policy, inmates may appeal a staff

response to a grievance form if he/she is dissatisfied

with the response. This is done by using the appeal

section of the inmate grievance form, to file an

administrative appeal. This must be done within ten

(10) days of the receipt of the disputed grievance

response. The administrator or administrative designee

has ten (10) working days to answer the appeal, excluding

weekends and holidays. The decision or finding of the

Administrator or designee is the final level of review

and the final finding of the New Jersey Department of

Corrections.

Id. ¶¶ 15-16.

Defendants submitted copies of 12 grievances filed by

Plaintiff that pertain to the allegations in the complaint. Id.

¶ 6; ECF No. 47-9. Mr. Haas certifies that “[t]he DOC does not

have any records of Director Bonds receiving any other letters

or information from Clauso.” Hass Cert. ¶ 6.

The Court finds the following grievances to be exhausted:

Grievance SWSP18015934 dated June 16, 2018 alleging inadequate

medical care, ECF No. 47-9 at 6; Grievance SWSP18017252 dated

June 24, 2018 alleging Plaintiff was denied his prescription

skin cream, id. at 8;3 Grievance SWSP18018211 dated June 29,

2018, alleging Guard Hansen was “purposely closing [Plaintiff’s]

skin in the handcuffs”, id. at 9; Grievance SWSP18018374 dated

June 30, 2018, alleging Plaintiff was placed on Camera Watch

without notice and was being denied showers and exercise, id. at

11;4 Grievance SWSP18018844 dated July 3, 2018, alleging Sgt.

Chard and other officers were denying Plaintiff showers and

exercise, id. at 12; and Grievance SWSP18019330 dated July 6,

2018, reiterating the allegation that Plaintiff was being denied

showers, exercise, and legal access, id. at 13. Under NJSP’s

protocols, these are the only claims that have been properly

exhausted. See Jones v. Bock, 549 U.S. 199, 218 (2007). The

Court concludes that Plaintiff exhausted his claims that he

received “terrible medical care” and was denied prescribed

3 Defendants argue Grievance SWSP18017252 was not appealed. ECF

No. 47-2 at 16-17. The record indicates Plaintiff appealed on

August 5, 2018 and Administrator Bond responded on August 6,

2018. ECF No. 47-9 at 8. The Court find this claim to have

been exhausted.

4 Defendants argue Grievance SWSP18018374 was not appealed. ECF

No. 47-2 at 18. Plaintiff submitted his grievance on June 30,

2018 and Administrator Bonds responded on August 6, 2018. ECF

No. 47-9 at 11. As the response was more than 30 days from the

filing of the grievance, it is considered exhausted. See

Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir.

2016). Additionally, the Administrator issued the first

response so the highest authority in the prison has already

addressed the grievance.

medication, that Guard Hansen purposefully used excessive force

in handcuffing him, and that Plaintiff was denied showers and

exercise while on Camera Watch.

Plaintiff did not exhaust his other claims that were

permitted to proceed past this Court’s § 1915 screening:

targeted harassment (excluding the allegation of excessive force

by Guard Hansen), improper seizure of his walkers and

wheelchair, and interference with his legal mail. “[O]nce the

defendant has established that the inmate failed to resort to

administrative remedies, the onus falls on the inmate to show

that such remedies were unavailable to him.” Rinaldi v. United

States, 904 F.3d 257, 268 (3d Cir. 2018). Plaintiff has not

submitted any evidence contradicting Defendants’ assertions;

therefore, the Court considers whether a reasonable factfinder

could conclude that NJSP’s remedies were unavailable to

Plaintiff on the record before the Court.

The Supreme Court has identified at least “three kinds of

circumstances in which an administrative remedy, although

officially on the books,” is not “available” because it is “not

capable of use to obtain relief”: (1) when “it operates as a

simple dead end — with officers unable or consistently unwilling

to provide any relief to aggrieved inmates”; (2) when it is “so

opaque that it becomes, practically speaking, incapable of use,”

such as when no ordinary prisoner can discern or navigate it; or

(3) when “prison administrators thwart inmates from taking

advantage of a grievance process through machination,

misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct.

1850, 1859-60 (2016). The Third Circuit has also found remedies

to be unavailable to inmates when prison officials failed to

comply with their own deadlines for responding to grievances,

Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir.

2016), and “where an inmate is deterred from pursuing an

administrative grievance by a prison official’s serious threats

of substantial retaliation,” Rinaldi, 904 F.3d at 267.

There is no indication that prison officials took

affirmative action to prevent Plaintiff from filing grievances,

whether by intimidation or some other means. Plaintiff filed

several grievances concerning his claims and appealed some of

them to Administrator Bonds. See generally ECF No. 47-9. The

record also indicates that the grievance procedure was not a

“dead end.” Plaintiff received responses from prison staff,

whether by directing him to follow the appropriate procedures or

investigating his allegations. For example, the prison

investigated Plaintiff’s claim that Guard Hansen injured

Plaintiff while handcuffing him. Id. at 9. The investigation

concluded the allegation was “unfounded but nonetheless staff

was reminded about proper protocol and procedure for the

application of restraints.” Id. Plaintiff may not have always

received the result he wanted, but he did receive responses from

staff. Plaintiff’s frequent use of the system, including filing

appeals of initial responses, indicates the system was not too

confusing for a reasonable inmate to use.

There are some grievances where the prison did not comply

with the 30-day response time as stated in the handbook. “‘A

prisoner’s administrative remedies are deemed exhausted when a

valid grievance has been filed and the state’s time for

responding thereto has expired.’” Robinson v. Superintendent

Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016) (quoting Powe v.

Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (per curiam)).

Accordingly, the Court considers Grievance SWSP18008521, filed

May 5, 2018 and responded to June 19, 2018 (37 days) ECF No. 47-

9 at 2, and Grievance SWSP18012498, filed May 26, 2018 and

responded to June 29, 2018 (34 days) id. at 3, to be exhausted.

Based upon the evidence submitted, the Court concludes

Plaintiff failed to exhaust his available prison remedies for

his targeted harassment and interference with his legal mail

claims. Defendants are entitled to judgment as a matter of law

on these claims.

B. Merits

Defendants also move for summary judgment on the merits of

the claims against them. A plaintiff may have a cause of action

under 42 U.S.C. § 1983 for certain violations of his

constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory

... 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 ....

§ 1983. Thus, to state a claim for relief under § 1983, a

plaintiff must allege, first, the violation of a right secured

by the Constitution or laws of the United States and, second,

that the alleged deprivation was committed or caused by a person

acting under color of state law. See West v. Atkins, 487 U.S.

42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.

2011).

Defendants argue they are entitled to judgment as a matter

of law on Plaintiff’s conditions of confinement claim against

Hansen, Martinelli, and Bonds, targeted harassment claims

against Hansen and Martinelli; denial of medical care claims;

and a legal mail claim against Bonds.

1. Denial of Medical Care

Plaintiff alleges Guards Hansen and Martinelli denied him

adequate medical care in violation of the Eighth Amendment when

they seized his wheelchair and walker cane. He also alleges

Administrator Bonds was deliberately indifferent to Plaintiff’s

“terrible” situation and did not provide Plaintiff with

hydrocerin skin cream.

To prove an Eighth Amendment Claim, a plaintiff must show

that defendants were deliberately indifferent to his or her

serious medical need. Estelle v. Gamble, 429 U.S. 97, 104

(1976). To accomplish this, “a plaintiff must make (1) a

subjective showing that ‘the defendants were deliberately

indifferent to [his or her] medical needs’ and (2) an objective

showing that ‘those needs were serious.’” Pearson v. Prison

Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (second alteration in

original)).

“[T]he failure to provide a wheelchair for an inmate may

constitute deliberate indifference to a serious medical need in

some circumstances.” Shakka v. Smith, 71 F.3d 162, 167 (4th

Cir. 1995). The Court concludes there is a factual dispute as

to whether Plaintiff had a serious medical need for a

wheelchair, brace, or cane. Defendants argue that there was no

medical necessity at the relevant time since the order for those

items had expired at the time they were taken. ECF No. 47-9 at

3. They assert that the alert on Plaintiff’s face sheet that

states: “NEED FOR WHEEL CHAIR OR OTHER DEVICE,” ECF No. 47-4 at

2, “was placed on [Plaintiff’s face sheet after medical orders

were entered on September 19, 2018.” ECF No. 57 at 1-2. “Thus,

the medical brace and/or cane were removed from Clauso’s

possession in May 2018 because there was no active medical order

those pieces of equipment at that time. When he filed his

grievance regarding the brace and cane he was advised by the

medical patient advocate that there were no active medical

orders for either.” Id. at 2. “At no time after these items

were deemed medically necessary was Clauso denied access to

those items, nor does he allege he was denied access aside from

this May 2018 incident prior to the medical alerts being in

place.” Id.

However, Plaintiff submitted copies of medical records

dated May 3, 2018 which includes a reference to an order for a

“wheelchair [EQ021].” ECF No. 58 at 8. This predates the May

26, 2018 grievance about the seizure of the items. He also

provided records from East Jersey State Prison dated June 21,

2016 that state “Per Medical Dpt I/M has cane permanent . . . .”

Id. at 9. There are also orders that indicated a wheelchair was

necessary in March 2018, before it was seized in May 2018. ECF

No. 57-2 at 4. The conflicting medical records indicate there

is a genuine dispute as to the objective prong of the Eighth

Amendment analysis.

Defendants are entitled to summary judgment despite this

dispute because there is no evidence the officers acted with

deliberate indifference. “Deliberate indifference is a

‘subjective standard of liability consistent with recklessness

as that term is defined in criminal law.’” Natale v. Camden

Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting

Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)). Assuming

there was a current order for a medical device in May 2108,

Plaintiff must submit more than a scintilla of evidence that

Guards Hansen and Martinelli actually knew of and intentionally

ignored that order; it is not enough to say they should have

known of its existence. Farmer, 511 U.S. at 837-38. “[A]n

official’s failure to alleviate a significant risk that he

should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the

infliction of punishment.” Id. at 838. Plaintiff has not

provided any evidence from which a reasonable factfinder could

conclude that Hansen and Martinelli were deliberately

indifferent to his need for the devices. The Court will grant

summary judgment on this claim.

The Court will also grant summary judgment on Plaintiff’s

vague claim of “terrible” medical care. Plaintiff submitted a

grievance directed to Administrator Bonds stating “this

situation with medical is [terrible] . . . .” ECF No. 47-9 at

6. There is no clarification what the “situation” is other than

mentioning someone had cursed at him and “dose’nt [sic] care

about who my people calls about my health[.]” Id. The person

accused of providing poor care is not a defendant. A general

accusation of a terrible situation does not prove a serious

medical condition. Plaintiff’s grievance does not explain what

medical treatment was being denied or how the situation was

“terrible” other than objecting to the person’s demeanor.

Administrator Bonds noted in his response that he was

forwarding Plaintiff’s complaint to the Patient Advocate and

gave Plaintiff the contact information for the Statewide Patient

Advocate. Id. In the absence of a more specific complaint,

directing Plaintiff to the Patient Advocate does not indicate

deliberate indifference. See Parkell v. Danberg, 833 F.3d 313,

337 (3d Cir. 2016) (“The written responses to those grievance

show that the prison officials ensured that [plaintiff] was

under the care of medical personnel and being treated, and

therefore that the officials were not deliberately

indifferent.”). Summary judgment is appropriate for all

Defendants as there is no allegation against Hansen and

Martinelli and there is no evidence that Administrator Bonds was

deliberately indifferent.

Plaintiff’s third medical complaint is that Administrator

Bonds did not ensure Plaintiff was given hydrocerin cream for a

skin condition. Plaintiff stated in his grievance that he

sustained severe damage to his skin while deployed overseas and

had been treated with hydrocerin. ECF No. 47-9 at 8. “All of a

sudden my hydrocerin has been abruptly replaced with mentholated

cream irritates, burns, and aggravates my skin condition.” Id.

Staff responded that the hydrocerin order expired three weeks

prior. Id.

Defendants’ evidence indicates the skin cream had only been

prescribed on a temporary basis: “Hydrocerin is an ‘as needed’

Rx and you will need to submit an MR007 if you’d like to speak

with medical about renewing it. If your provider determines

that this cream is medically necessary, it will be re-ordered

for you.” Id. Plaintiff’s medical team determined that only a

temporary prescription was necessary, and “when medical care is

provided, we presume that the treatment of a prisoner is proper

absent evidence that it violates professional standards of

care.” Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d

Cir. 2017). Plaintiff also has not produced evidence that

decision to switch medications “was based on an ulterior motive

beyond routine patient care within the confines of the prison’s

policies.” Fortune v. Hamberger, 379 F. App’x 116, 123 (3d Cir.

2010); see also White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

1990) (doctor’s choice of one drug over another is not

actionable).

Moreover, there is no evidence from which a reasonable

juror could conclude that Administrator Bonds, who is not a

medical provider, would have had reason to believe the medical

staff was not treating Plaintiff appropriately. See Spruill v.

Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“If a prisoner is

under the care of medical experts . . . , a non-medical prison

official will generally be justified in believing that the

prisoner is in capable hands.”). Plaintiff told Administrator

Bonds via grievance appeal that “I still need the forementioned

cream. I had no success with the nurse,” and Administrator

Bonds forwarded Plaintiff’s request to the medical staff. ECF

No. 49-9 at 8. This “show[s] that the prison officials ensured

that [plaintiff] was under the care of medical personnel and

being treated, and therefore that the officials were not

deliberately indifferent.” Parkell v. Danberg, 833 F.3d 313,

337 (3d Cir. 2016). “[A]bsent a reason to believe (or actual

knowledge) that prison doctors or their assistants are

mistreating (or not treating) a prisoner, a non-medical prison

official . . . will not be chargeable with the Eighth Amendment

scienter requirement of deliberate indifference.” Spruill, 372

F.3d at 236.

The Court concludes that Defendants are entitled to

judgment as a matter of law on Plaintiff’s denial of medical

care claims because a reasonable factfinder could not conclude

from the evidence that Defendants were deliberately indifferent

to any serious medical need.

2. Conditions of Confinement

“The Constitution ‘does not mandate comfortable prisons,’

but neither does it permit inhumane ones and it is now settled

that ‘the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825,

832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981);

Helling v. McKinney, 509 U.S. 25, 31 (1993)). “The Eighth

Amendment imposes duties on prison officials to ‘provide humane

conditions of confinement’ and ‘ensure that inmates receive

adequate food, clothing, shelter, and medical care.’” Barndt v.

Wenerowicz, 698 F. App’x 673, 676–77 (3d Cir. 2017) (quoting

Farmer, 511 U.S. at 832). “To establish an Eighth Amendment

conditions of confinement claim, [Plaintiff] must show that (1)

the deprivation alleged was objectively, ‘sufficiently serious’

such that the prison officials’ acts or omissions resulted in

the denial of ‘the minimal civilized measure of life’s

necessities’; and (2) that the prison officials exhibited a

‘deliberate indifference’ to his health and safety.” Id. at 677

(quoting Farmer, 511 U.S. at 834).

a. Placement on Constant and Camera Watch

Plaintiff alleges that he was put in the Administrative

Close Supervision Unit (“ACSU”) when Guard Martinelli made a

false accusation that Plaintiff had threatened to kill him with

a screwdriver. ECF No. 1 at 16. Eventually a nurse came by to

ask him questions about his mental health.5 Id. “[A] nurse came

to my cell said I got to answer mental health questions I said I

would not answer questions in front of the guards.” Id. At

some point thereafter Hansen, Sgt. Chard, and others placed

Plaintiff into a “rubber room.” Id. at 19. Plaintiff claims he

was put on constant watch for no reason whatsoever.

“As defined by DOC Policy, ‘Constant Watch status’ is the

term used for the procedures used by the DOC to manage suicidal

or potentially suicidal inmates consistent with security

requirements and accepted mental health practices. It is the

uninterrupted observance of an inmate either in person or by

video monitor.” Haas Cert. ¶ 10. “Pursuant to DOC policy

regarding Constant Watch status, when an inmate demonstrates or

reports a risk of self-destructive behavior, the inmate will be

placed on Constant Watch status until the inmate is evaluated by

the mental health staff. Any staff member, whether clinical,

custody or administrative has the authority to place an inmate

on watch when such behavior is observed.” Id.

Defendants state Plaintiff was in the ACSU from May 2018 to

August 2018. Id. ¶ 7. Mr. Haas certifies that “Clauso was

placed on Constant Watch from May 27, 2018 to May 29, 2018 after

5 The timeline of events is not entirely clear from the

complaint. See supra note 1.

failing to contract for safety, meaning he refused to agree that

he was not a danger to himself or others.” Id. ¶ 11. A

psychologist authorized this placement. DSOF ¶ 20. Plaintiff

received “a suicide gown, suicide blanket, a suicide mattress

and finger foods,” Haas Cert. ¶ 12, and he was evaluated daily,

ECF No. 48. Plaintiff was released from Constant Watch status

on May 29, 20186 after the psychologist evaluated Plaintiff and

Plaintiff affirmed that he was not a danger to himself or

others. Haas Cert. ¶ 11. Afterwards, he was placed on “camera

watch”, which “can be used only after an inmate has been on

constant watch. . . . [T]his type of watch involves

intermittent observation of an inmate, either by video or in

person, in variables not to exceed 15 minutes.” Id. ¶ 13.

Plaintiff has not proved an Eighth Amendment claim based on

his time on camera and close watch. The evidence before the

Court indicates Plaintiff was placed on Constant Watch for his

safety because he refused to state he was not a danger to

himself or others. Plaintiff does “not state any facts that, if

proven, would show that [he] was denied one of life’s minimal

necessities. At most, the facts that [Plaintiff] did plead

allow the potential inference that he suffered or perceived

6 The Court presumes the May 29, 2019 date in Mr. Haas’

certification is an error as the medical records provided are

for May 2018.

inconvenience, discomfort, and stigma due to [Defendants’]

decision to implement a suicide watch . . . .” Smith v. Bolava,

632 F. App’x 683, 687 (3d Cir. 2015). “Rather than denying a

human need, a suicide watch is canonically understood as

protecting inmates who are vulnerable to self-harm.” Id. The

Court shall grant summary judgment to Defendants on this claim.

b. Denial of Shower Access

Plaintiff further alleges that Hansen and Martinelli would

not let Plaintiff take showers for at least two weeks.

Plaintiff allegedly developed a rash because of not being able

to take showers. ECF No. 1 at 23. The Court concludes there is

a factual dispute precluding summary judgment on this claim.

“[R]easonable access to safe bathing . . . constitute[s] a

component of civilized living . . . .” Partelow v.

Massachusetts, 442 F. Supp. 2d 41, 50 (D. Mass. 2006). The

parties agree that Plaintiff did not take a shower for a period

of time but dispute the length and the reason why. Defendants

submit copies of the ASCU shower log in support of their motion.

ECF No. 47-10. According to the logbook, Plaintiff refused to

take a shower on June 22 and July 2, 4, 6, 9, and 11 in 2018.

Id. at 13-15. Plaintiff’s name does not appear in the book for

the June 28, 2018 shower date. Id. at 12-13. Defendants argue

that Plaintiff chose not to take a shower for seven days, which

is not enough time to rise to the level of a constitutional

violation. ECF No. 47-2 at 34. Plaintiff denies refusing

showers and states he was intentionally kept from the showers

for seventeen days. Plaintiff produced copies of medical

records wherein the medical professional documented Plaintiff’s

consistent allegation that “he has been kept from showering for

17 days- including today [July 13, 2018]. He denied ever

refusing a shower.” ECF No. 56 at 2. The logbook indicates

Plaintiff took a shower on July 13. ECF No. 47-10 at 16.

This dispute is central to the deliberate indifference

claim, and “courts may not resolve genuine disputes of fact in

favor of the party seeking summary judgment.” Tolan v. Cotton,

572 U.S. 650, 656 (2014). Accepting Plaintiff’s version of

events as true, a reasonable juror could conclude that denying

Plaintiff access to showers for seventeen days in summertime,

causing a skin condition, violates basic human dignity. Cf.

Fortune v. Hamberger, 379 F. App’x 116, 122 (3d Cir. 2010) (per

curiam) (finding that fifteen days without shower did not

violate Eighth Amendment when plaintiff did not “suffer[] any

harm as a result of the denial of additional showers”).

A reasonable juror could make a reasonable inference of

deliberate indifference by Guard Martinelli. The logbook

reflects he was on duty several times when Plaintiff did not

shower. See ECF No. 47-10 at 12-16. Accepting Plaintiff’s

version as true for summary judgment purposes, a reasonable

juror could conclude Guard Martinelli evidenced a culpable state

of mind when he falsified the logbook to state Plaintiff refused

a shower. There is nothing indicating Guard Hansen was on duty,

however. Id. Therefore, a reasonable juror could not find that

Guard Hansen disregarded an excessive risk to Plaintiff’s health

or safety. The Court will deny summary judgment to Guard

Martinelli and grant summary judgment to Guard Hansen.

Plaintiff asserts that “Willie Bonds knows all the above,”

ECF No. 1 at 21, but the only “evidence” is Administrator Bonds’

responses to Plaintiff’s grievances. ECF No. 47-9 at 11-12. “A

warden’s participation in the review of a grievance is

insufficient to establish personal involvement . . . .”

Robinson v. Green, No. 12-1212, 2012 WL 5401079, at *4 (E.D. Pa.

Nov. 5, 2012) (citing Durmer v. O’Carroll, 991 F.2d 64, 69 (3d

Cir. 1993)). There is no evidence that Administrator Bonds

directed Guard Martinelli to deny Plaintiff showers. The Court

will grant summary judgment to Administrator Bonds on this

claim.

c. Targeted Harassment

Plaintiff alleges a harassment campaign by various SWSP

guards; however, most of those allegations are against

defendants who are not a party to this motion. The only

incidents attributed to the moving Defendants are an allegation

of excessive force against Guard Hansen for purposefully

injuring Plaintiff while handcuffing him and a statement in

Plaintiff’s complaint that Guard Martinelli threatened to chain

Plaintiff to the toilet. As there is no evidence outside of

Plaintiff’s complaint that supports his claim that Guard

Martinelli threatened him and there is no evidence supporting a

claim that Guard Martinelli participated in an ongoing

harassment campaign, the Court will grant summary judgment to

Guard Martinelli on this claim.

“SCO Hansen is purposefully closing my skin in the

handcuffs. My wrists are bruised and lacerated. I know this is

intentional because SCO Hansen was trained to properly cuff

inmates. Yet, he does this every time that he cuffs me.” ECF

No. 47-9 at 9. On June 29, 2018, Plaintiff showed the “small

cuts on both wrists” during a medical visit and stated that

“this is happening each and every time he is handcuffed by a

specific officer.” ECF No. 56 at 3. Prison staff investigated

Plaintiff’s allegation and concluded the “allegations were

unfounded but nonetheless staff was reminded about proper

protocol and procedure for the application of restraints.” ECF

No. 47-9 at 9.

The Eighth Amendment prohibits prison officials from

unnecessarily and wantonly inflicting pain in a manner that

offends contemporary standards of decency. See Hudson v.

McMillian, 503 U.S. 1, 8 (1992); Rhodes v. Chapman, 452 U.S.

337, 347 (1981). In an excessive force claim under the Eighth

Amendment, the inquiry is whether force was applied in a good

faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm. Wilkins v. Gaddy, 559 U.S. 34,

40 (2010). “Thus, courts considering a prisoner’s claim must

ask both if ‘the officials act[ed] with a sufficiently culpable

state of mind’ and if the alleged wrongdoing was objectively

‘harmful enough’ to establish a constitutional violation.”

Hudson, 503 U.S. at 8 (quoting Wilson v. Seiter, 501 U.S. 294,

298, 303 (1991)).

The Court will deny summary judgment to Guard Hansen on

this claim. Viewing the evidence in the light most favorable to

Plaintiff, Guard Hansen repeatedly placed handcuffs on Plaintiff

in a manner that left bruises and cuts on Plaintiff’s wrists. A

social worker documented cuts to Plaintiff’s wrists on June 29,

2018. ECF No. 56 at 3. A jury could conclude that Guard Hansen

intentionally inflicted the injuries because he did so again and

again. “[T]he absence of significant resulting injury is not a

per se reason for dismissing a claim based on alleged wanton and

unnecessary use of force against a prisoner. Although the

extent of an injury provides a means of assessing the legitimacy

and scope of the force, the focus always remains on the force

used (the blows).” Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir.

2000).

In assessing the use of force, Courts must consider: “(1)

the need for the application of force; (2) the relationship

between the need and the amount of force that was used; (3) the

extent of injury inflicted; (4) the extent of the threat to the

safety of staff and inmates, as reasonably perceived by

responsible officials on the basis of the facts known to them;

and (5) any efforts made to temper the severity of a forceful

response.” Id. at 106 (citing Whitley v. Albers, 475 U.S. 312,

321 (1986)) (internal quotation marks omitted). Defendants have

not addressed these factors, nor have they addressed the

“particular criteria relevant to the use of excessive force

test” that apply when mechanical restraints were used. Young v.

Martin, 801 F.3d 172, 180 (3d Cir. 2015) (citing Hope v. Pelzer,

536 U.S. 730 (2002)); therefore, they have not shown that they

are entitled to judgment as a matter of law.

The Court will deny summary judgment to Guard Hansen on

this claim and will grant summary judgment to Guard Martinelli

and Administrator Bonds.

d. Denial of Recreation Time and Adequate Light

Plaintiff’s final Eighth Amendment claims against moving

Defendants are allegations that they denied him recreation time

and adequate light while in the ASCU. The Court will grant

summary judgment to Defendants on these claims.

“Where the nonmoving party will bear the burden of proof at

trial, the moving party may meet its burden by showing that the

admissible evidence contained in the record would be

insufficient to carry the nonmoving party’s burden of proof.”

Ins. Co. of Greater New York v. Fire Fighter Sales & Serv. Co.,

120 F. Supp. 3d 449, 456 (W.D. Pa. 2015) (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986)). “The nonmoving party

cannot defeat a well-supported motion for summary judgment by

simply reasserting unsupported factual allegations contained in

his or her pleadings.” Id.

Defendants have submitted evidence in the form of Mr. Haas’

certification that “the office in the LCP has control of the

lighting in each cell. However, there is always a ‘night light’

on in each cell, that is not controlled by the officer, such

that no inmate is ever without light.” Haas Cert. ¶ 19.

Medical records indicate that a nurse investigated Plaintiff’s

claim he had no light and received confirmation that “the light

in his cell was indeed already on.” ECF No. 48 at 11.

Plaintiff has produced nothing to contradict this evidence.

Defendants have also put forth evidence that Plaintiff was

not unconstitutionally deprived of recreation time. “There is

no question that meaningful recreation ‘is extremely important

to the psychological and physical well-being of the inmates.’”

Peterkin v. Jeffes, 855 F.2d 1021, 1031 (3d Cir. 1988) (quoting

Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)).

Defendants’ uncontradicted evidence indicates Plaintiff had

recreational time while in the ACSU except for when he lost

recreation privileges as the result of being adjudicated guilty

in disciplinary proceedings. ECF No. 47-4 at 11, 27; DSOF ¶¶

29-30. Plaintiff has produced no evidence to contradict this.

“[S]ummary judgment is essentially ‘put up or shut up’ time

for the non-moving party: the non-moving party must rebut the

motion with facts in the record and cannot rest solely on

assertions made in the pleadings, legal memoranda, or oral

argument.” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195,

201 (3d Cir. 2006). The “nonmoving party must adduce more than

a mere scintilla of evidence in its favor, and cannot simply

reassert factually unsupported allegations contained in its

pleadings.” Williams v. Borough of W. Chester, Pa., 891 F.2d

458, 460 (3d Cir. 1989) (internal citation and footnote

omitted). Plaintiff has produced no evidence, let alone more

than a scintilla, to create an issue of fact on his inadequate

lighting and denial of recreation claims. Therefore, the Court

will grant summary judgment to Defendants on these claims.

3. Interference with Legal Mail and Access to the Courts

Plaintiff brings a claim of interference with his legal

mail against Administrator Bonds. He also asserts Defendants

violated his right of access to the courts by refusing to let

him make telephone calls. As discussed supra, Plaintiff did not

exhaust these claims in his administrative remedies. Although

that alone warrants summary judgment, the Court notes that the

claims would fail on their merits as well.

The Constitution permits prisons to restrict prisoners’

right to send and receive mail for legitimate penological

interests. Turner v. Safley, 482 U.S. 78, 89 (1987). However,

“prisoners, by virtue of their incarceration, ‘do not forfeit

their First Amendment right to use of the mails,’ and . . . a

‘pattern and practice of opening properly marked incoming

[legal] mail outside an inmate’s presence infringes

communication protected by the right to free speech.’” Jones v.

Brown, 461 F.3d 353, 358 (3d Cir. 2006) (quoting Bieregu v.

Reno, 59 F.3d 1445, 1452 (3d Cir. 1995)) (alteration in

original). Prisoners’ legal mail is accorded heightened

protection because “opening properly marked court mail . . .

chills protected expression and may inhibit the inmate’s ability

to speak, protest, and complain openly, directly, and without

reservation with the court.” Id. at 358–59 (internal quotation

marks omitted).

Plaintiff’s (unexhausted) grievance states that he “mailed

legal mail to the District Court in Camden, the Third Circuit,

and to Rutgers (medical). Yet, to date I have received no mail

receipts indicating that my mail has been delivered.” ECF No.

47-9 at 10. Dianna Sheehan responded: “We can only send in

receipts that we have received back.” Id. Plaintiff has not

provided any evidence from which a reasonable juror could

conclude Administrator Bonds had anything to do with this

incident. Moreover, a single incident of interfering with legal

mail is not enough to prove a First Amendment claim absent

evidence of improper motive. See Gibson v. Erickson, 830 F.

App’x 372, 373 (3d Cir. 2020) (per curiam); Thompson v.

Ferguson, No. 19-4580, 2020 WL 7872629, at *8 (E.D. Pa. Dec. 31,

2020). Plaintiff has produced no such evidence, so the Court

will grant summary judgment to Administrator Bonds.

Plaintiff’s vague allegation of denial of legal access,

which the Court presumes refers to his unexhausted claim in

Grievance SWSP18016475 that he was not able to make a legal

telephone call, ECF No. 47-9 at 7, does not meet the standard

for a denial of access to the courts. For his access to the

courts claim, Plaintiff must prove that “he has suffered an

actual injury to his ability to present a claim. A prisoner can

show an actual injury only when a nonfrivolous, arguable claim

is lost.” Henry v. Moore, 500 F. App’x 115, 117 (3d Cir. 2012)

(citing Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis

v. Casey, 518 U.S. 343, 352–54 (1996)). Additionally, “the

claim must relate to either a direct or collateral challenge to

the prisoner’s sentence or conditions of confinement [and] a

prisoner must demonstrate that no other remedy will potentially

compensate for the lost claim.” Id. (internal citations

omitted); see also Lewis, 518 U.S. at 355 (“Impairment of any

other litigating capacity is simply one of the incidental (and

perfectly constitutional) consequences of conviction and

incarceration.”). Plaintiff has not produced evidence on either

of these requirements, i.e., he has not shown that the inability

to make phone calls caused him to lose a direct or collateral

challenge to his sentence or conditions of confinement. The

Court will therefore grant summary judgment on this claim.

4. Summary

In conclusion, the Court will deny summary judgment to

Guard Hansen on the excessive force claim and to Guard

Martinelli on the denial of showers claim. The Court will grant

summary judgment on the remainder of the claims and dismiss

Administrator Bonds from this action.

C. Qualified Immunity

Defendants further assert they are entitled to qualified

immunity on Plaintiff’s claims. “[O]fficers are entitled to

qualified immunity under § 1983 unless (1) they violated a

federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was ‘clearly established at the

time.’” D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). The first prong

of the analysis “asks whether the facts, [t]aken in the light

most favorable to the party asserting the injury, ... show the

officer’s conduct violated a [federal] right[.]” Tolan v.

Cotton, 572 U.S. 650, 655-56 (2014) (internal quotation marks

and citations omitted) (alterations and omissions in original).

The evidence viewed in the light most favorable to

Plaintiff does not show a constitutional violation of his Eighth

Amendment right to adequate medical care or his First Amendment

rights to legal mail or access to the courts. Nor does the

evidence indicate a violation of Plaintiff’s right to be free

from cruel and unusual conditions of confinement because of

inadequate lighting, lack of recreation time, or arbitrary close

watch placement. As these claims fail on the first prong,

Defendants would be entitled to qualified immunity as well as

judgment on the merits for these claims.

The Court will deny qualified immunity on Plaintiff’s claim

that Guard Martinelli deliberately deprived him of basic hygiene

and that Guard Hansen used excessive force against him at this

time because there are disputed issues of fact for those claims.

Specifically, it is a matter of dispute how long Plaintiff was

denied showers, whether he intentionally refused to take

showers, and the circumstances surrounding Plaintiff’s handcuff

injuries. Although the Court is cognizant of the need for

resolution of qualified immunity questions at the earliest

possible stage of litigation, the Court cannot do so until all

the material historical facts are no longer in dispute. “Just

as the granting of summary judgment is inappropriate when a

genuine issue exists as to any material fact, a decision on

qualified immunity will be premature when there are unresolved

disputes of historical fact relevant to the immunity analysis.”

Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). After a jury

has decided the remaining factual issues, the Court will

reconsider whether qualified immunity is warranted.

D. Damages

Defendants ask the Court to dismiss any claims Plaintiff

may have for punitive, compensatory, and emotional distress

damages. The Court declines to do so.

Under § 1983, a defendant whose conduct demonstrates a

reckless or callous indifference toward others’ rights may be

liable for punitive damages. See Smith v. Wade, 461 U.S. 30, 56

(1983) (stating that a jury may award punitive damages when a

“defendant’s conduct is shown to be motivated by evil motive or

intent, or when it involves reckless or callous indifference to

the federally protected rights of others”); Savarese v. Agriss,

883 F.2d 1194, 1204 (3d Cir. 1989) (holding that a defendant’s

conduct must be at minimum reckless or callous to impose

punitive damages under § 1983). The Third Circuit “has

explained that the term ‘reckless indifference’ refers to the

defendant’s knowledge that he ‘may be acting in violation of

federal law.’” Whittaker v. Fayette Cty., 65 F. App’x 387, 393

(3d Cir. 2003) (quoting Alexander v. Riga, 208 F.3d 419, 431 (3d

Cir. 2000)). A reasonable jury could decide on the record

before the Court that Defendants were aware that they were

violating Plaintiff’s federally protected rights. This is

therefore a question for the jury. See Coleman v. Rahija, 114

F.3d 778, 787 (3d Cir. 1997).

“It is well settled that compensatory damages under § 1983

are governed by general tort-law compensation theory. In other

words, ‘damages are available under [§ 1983] for actions found .

. . to have been violative of . . . constitutional rights and to

have caused compensable injury . . . .’” Allah v. Al-Hafeez,

226 F.3d 247, 250 (3d Cir. 2000) (quoting Carey v. Piphus, 435

U.S. 247, 255 (1978) (alteration and omissions in original)).

The Supreme Court has held “that substantial damages may only be

awarded to compensate for actual injury suffered as a result of

the violation of a constitutional right.” Id. (citing Memphis

Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986)); see

also Carey, 435 U.S. at 248 (compensatory damages may not be

awarded absent proof of actual injury).

Plaintiff has actual costs associated with the two claims

that the Court will send to the jury. Giving Plaintiff the

benefit of all reasonable inferences on summary judgment,

Plaintiff has medical co-pays and prescription costs that are

directly associated with the denial of showers and handcuff

injuries. ECF No. 56 at 6. The Court will not dismiss these

claims at this time.

However, the Court will dismiss any claims for mental or

emotional damages. Section 1997e bars compensatory damages for

mental and emotional injuries in § 1983 cases brought by

prisoners “without a prior showing of physical injury or the

commission of a sexual act (as defined in section 2246 of Title

18).” 42 U.S.C. § 1997e(e). “[R]eading 1997e(e) to allow a

plaintiff to allege any physical injury, no matter how minor,

would produce an unintended (indeed absurd) result.” Mitchell

v. Horn, 318 F.3d 523, 535 (3d Cir. 2003). The Third Circuit

has held that prisoners subject to § 1997e must show “a less-

than-significant-but-more-than-de minimis physical injury as a

predicate to allegations of emotional injury.” Id. at 536.

Viewed in the light most favorable to Plaintiff, the

evidence before the Court indicates Plaintiff developed a skin

condition as a result of being denied access to the shower and

received “small cuts” and bruises from Guard Hansen’s handcuffs.

There is no evidence to suggest these physical symptoms are more

than de minimus; therefore, Plaintiff does not qualify for

damages as the result of mental and emotional injuries.

IV. CONCLUSION

For the reasons set forth above, the Court will deny

summary judgment to Guard Hansen on the excessive force claim

and to Guard Martinelli on the denial of showers claim. The

Court will grant summary judgment on the remainder of the claims

and dismiss Administrator Bonds from this action. The Court

will also dismiss any claim for damages as the result of mental

and emotional injuries.

An appropriate Order follows.

Dated: March 15, 2021 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.