WILLIAMS v. NUTTER

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

ROBERT WILLIAMS, :

Plaintiff, :

:

v. : No. 2:17-cv-00563

:

MICHAEL NUTTER; LOUIS GIORLA; :

JOHN DELANEY; and :

CORIZON MEDICAL COMPANY, :

Defendants. :

__________________________________________

O P I N I O N

PPS Defendants’ Motion for Summary Judgment, ECF No. 46 – Granted

Defendant Corizon’s Motion for Summary Judgment, ECF No. 47 – Granted

Plaintiff’s Motion to Deny Summary Judgment, ECF No. 49 - Denied

Joseph F. Leeson, Jr. November 12, 2019

United States District Judge

I. INTRODUCTION

Plaintiff Robert Williams alleges that during his term of incarceration at the Curran-

Fromhold Correctional Facility (“CFCF”) in Philadelphia, Pennsylvania,1 he was triple-celled2 in

violation of his constitutional rights, received inadequate medical care after sustaining injuries in

a fall from the top bunk bed, and was retaliated against for filling grievances regarding the same.

Named as Defendants are Michael Nutter, formerly the Mayor of the City of Philadelphia; Louis

Giorla, formerly the Commissioner of the Philadelphia Prison System (“PPS”); John Delaney,

formerly the Warden of CFCF;3 and Corizon Medical Services, a private company contracted to

1 Williams is currently incarcerated at the State Correctional Institute in Huntingdon,

Pennsylvania.

2 Triple-celling occurs when three or more inmates are placed in a cell designed to house

two. Triple-celling has been used as a method to deal with prison over-crowding.

3 Nutter, Giorla, and Delaney are collectively referred to herein as “PPS Defendants.”

1

provide medical care for inmates. For the reasons discussed below, there is no evidence showing

that any Defendant violated Williams’s constitutional rights and summary judgment is granted in

favor of all Defendants on all claims.

II. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A disputed fact is “material” if proof of its existence or nonexistence might affect the

outcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). An issue of material fact is “genuine” if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party. Id. at 257.

The party moving for summary judgment bears the burden of showing the absence of a

genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once

such a showing has been made, the non-moving party must go beyond the pleadings with

affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324;

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the

non-moving party “must do more than simply show that there is some metaphysical doubt as to

the material facts”). The party opposing the motion must produce evidence to show the

existence of every element essential to its case, which it bears the burden of proving at trial,

because “a complete failure of proof concerning an essential element of the nonmoving party’s

case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

2

III. PROCEDURAL HISTORY

Williams’s initial complaint was dismissed for failure to state a claim, with leave to

amend. See Order dated March 20, 2017, ECF No. 4. Williams thereafter filed an amended

complaint, see Am. Compl., ECF No. 9, which all Defendants moved to dismiss. However, the

proceedings were stayed when the case was referred to the Prisoner Civil Rights Panel to attempt

to aid Williams in finding an attorney. See ECF Nos. 12, 16, 21. When no attorney agreed to

represent Williams, the stay was lifted and the case proceeded to discovery. PPS Defendants and

Corizon have since filed motions for summary judgment. See ECF Nos. 46-51.

IV. FACTUAL BACKGROUND

The Amended Complaint asserts three counts. See Am. Compl. First, Williams alleges

that PPS Defendants breached their duty to protect him by triple-celling him in unsanitary living

conditions, and subjected him to constant lock-downs. See id. Second, Williams alleges that

Corizon was deliberately indifferent to his medical needs by delaying treatment for his rib injury

until the evening after his early morning fall and then providing only pain relief but no diagnostic

testing.4 See id. Third, Williams alleges that he was subjected to retaliatory transfers within the

PPS for filing grievances. See id. He also alleges that he filed grievances but received no

response, and that Delaney and Giorla implemented a policy to dissuade inmates from filing

grievances by ordering CFCF guards to confiscate and destroy copies of all grievances and

complaints. See id.

Williams was incarcerated in the PPS from February 2015 to July 12, 2016. See Pl.’s

Dep. 8:8-18, ECF No. 46-2. During his incarceration, Williams never saw or had any

4 Williams admitted that none of the PPS Defendants were personally involved in

Williams’s medical treatment. See Pl.’s Dep. 30:1-11.

3

interactions with Nutter or Giorla. See Pl.’s Dep. 10:5 – 11:5. Williams did see Delaney walk

through the prison, but testified that Delaney did not “even walk on the blocks to see how the

blocks are running [he] just walk[ed] around the bubble and le[ft] right out.” See Pl.’s Dep. 10:5

– 11:20. Williams never had any personal interaction with Delaney. See id.

There is little or no evidence in the record regarding how long Williams was housed in

each type of detention and/or cell. In fact, the Amended Complaint only refers to Williams being

triple-celled between February 2015 and June 2015. See Am. Compl. ¶¶ 9-23, 41-42. Over the

course of those four months, Williams was in a three-man cell for approximately one month until

he was transferred to a four-man cell, allegedly in retaliation for filing grievances. See id. ¶¶ 9-

13, 16-17. Two months later, Williams was transferred to the Detention Center, again allegedly

in retaliation for filing grievances. See id. ¶ 41. After a one-day stay in medical a few weeks

later, Williams was transferred back on June 4, 2015, to the same four-man cell. See id. ¶¶42-43.

Although there are no other details about the housing placements in the record, in light of

Williams’s pro se status,5 the Court assumes that when Williams testified about his treatment in

the PPS, his complaints pertain to the entire period of incarceration: February 2015 to July 2016.

There is also a lack of evidence regarding Williams’s living conditions. Aside from

Williams’s statement that he was subjected to “constant lock-downs,” see Am. Compl. ¶ 19, he

offers no details about the length or frequency of such lock-downs. It is clear from the record,

however, that “constant” does not literally mean every day, as Williams testified about leaving

his cell for breakfast and for lunch on the day of his fall in June 2015. See Pl.’s Dep. 17:10-14,

5 Although the court must construe a pro se complaint liberally, a pro se litigant opposing

summary judgment still faces “the formidable task of avoiding summary judgment by producing

evidence ‘such that a reasonable jury could return a verdict for [him].’” Zilich v. Lucht, 981 F.2d

694, 696 (3d Cir. 1992) (quoting Anderson, 477 U.S. at 242).

4

21:3-17. Similarly, although Williams states that he was placed in a “boat” to sleep on the floor,

see Am. Compl. ¶ 34, he slept in a bunk bed on the day of his fall, see Pl.’s Dep. 14:25 – 16:9.

On the day of his fall in June 2015,6 according to the undisputed facts, Williams rolled

off the top bunk in the early morning hours. See Pl.’s Dep. 16:7-12. He testified that he

repeatedly pushed the call button but it “didn’t work” so, in an effort to avoid waking his

cellmates, Williams climbed back into bed and waited until the next morning. See id. at 16:19-

25. A few hours later when all inmates were let out for breakfast, Williams first informed one of

the correctional officers that he was injured, and that officer promptly called for medical. See id.

at 16:20 – 18:9. Williams went to medical, but could not be seen without an incident report. See

id. at 16:13 – 17:24, 19:1 – 23:15. After having lunch, Williams returned to his cell to wait. See

id. at 21:3-14. While waiting, he did not take pain medication or make any efforts to obtain the

same. See id. at 23:2-12. Williams returned to medical that evening, at which time Dr. DiLauro

examined him, gave him a shot of morphine, which helped his pain, and ordered x-rays. See id.

at 23:13 – 24: 22; DiLauro Progress Notes 6/17/2015, ECF No. 48-3 (listing Williams’s vitals at

8:00 p.m.). Dr. DiLauro, who explained to Williams why it was not appropriate to wrap his ribs,

also prescribed a dose of pain medication for that night, which was administered. See id.;

Marinho Note 06/17/2015, ECF No. 48-3.

In addition to these undisputed facts, there is also disputed evidence regarding Williams’s

injuries and treatment following his fall from the top bunk bed. Specifically, Williams testified

that Dr. DiLauro informed him that he had three fractured ribs, but that he did not get x-rays until

6 There is some discrepancy as to whether Williams fell on June 17, 2015, or June 19,

2015, but for the reasons discussed herein, this difference is not “material.” Cf. Pl.’s Dep. 25:2-

8, with DiLauro Progress Notes, ECF No. 48-3.

5

two months later7 and he continued to have pain. See Pl.’s Dep. at 25:1 – 26:12. However, Dr.

DiLauro’s Progress Notes dated June 17, 2015, describing Williams’s fall and medical treatment,

state that Williams was diagnosed with “very bad contusions of ribs,” but that it was “less likely

fracture.” See DiLauro Progress Notes. Also, medical records from Bustleton Radiology

Associates, Ltd. show that x-rays were performed on June 19, 2015, two days after the fall, and

revealed no evidence of a fracture. See ECF No. 48-3. Williams was treated again by medical

on June 22, 2015, and June 25, 2015. The Progress Notes of PA Karen McKinney dated June

25, 2015, indicate that the x-rays were negative for rib fractures. See McKinney Progress Notes,

ECF No. 48-3. The Progress Notes of PA Helen Sarskaya dated July 21, 2015, also mention the

negative x-rays. See Sarskaya Progress Notes, ECF No. 48-3. Between June 2015 and May

2016, Williams received medical attention on twenty separates dates,8 never more than two

months apart. See Medical Records, ECF No. 48-3. However, the rib injury was not mentioned

in the records beyond the second month of treatment.

V. ANALYSIS

A. The evidence does not support a constitutional claim for triple-celling

against any Defendant.9

7 In August 2015, Williams was treated by medical after experiencing shortness of breath.

See Pl.’s Dep. at 28:23 – 29:20; Progress Notes 08/30/2015 and 08/31/2015, ECF No. 48-3.

8 Williams received medical treatment at the prison on June 22, June 25, July 21, August

30, August 31, October 9, October 19, October 21, October 23, November 16, November 19,

December 21, and December 22, 2015, and on February 7, February 8, February 19, February

22, March 17, March 23, and May 12, 2016.

9 There is no suggestion or evidence that Corizon had any involvement with the triple-

celling of Williams. Thus, this section is limited to a discussion of the PPS Defendants and any

related Monell claim. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (discussing

the circumstances under which a municipality and other local government unit may be liable

under § 1983).

6

Assuming for the sake of argument that the conditions of Williams’s triple-celling rose to

the level of a constitutional violation,10 there is no evidence that any PPS Defendant was

personally involved.

A “defendant in a civil rights action must have personal involvement in the alleged

wrongs; liability cannot be predicated solely on the operation of respondeat superior.” See Rode

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal involvement can be shown

through allegations of personal direction or of actual knowledge and acquiescence. Allegations

of participation or actual knowledge and acquiescence, however, must be made with appropriate

particularity.” Id. at 1207-08. Additionally, a supervisory defendant may be liable under 42

U.S.C. § 1983 if the defendant, “with deliberate indifference to the consequences, established

and maintained a policy, practice or custom which directly caused [the plaintiff’s] constitutional

harm.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989).

1. Knowledge and Acquiescence Theory

“Although a court can infer that a defendant had contemporaneous knowledge of

wrongful conduct from the circumstances surrounding a case, the knowledge must be actual, not

constructive.” Chavarriaga v. New Jersey Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015).

10 But see Dan v. Curran-Fromhold Corr. Facility, 2018 U.S. Dist. LEXIS 81107, at *4-5

(E.D. Pa. May 14, 2018) (finding that the allegations - the plaintiff was confined with two other

inmates in 8’ x 6’ cells for approximately nineteen months, there was a bed on the floor next to a

toilet, he experienced back pain, and when placed in solitary he was unable to take a shower or to

leave his cell for an entire day- failed to state an Eighth Amendment claim for overcrowding);

Mohorcic v. Hogue, No. 11-575, 2013 U.S. Dist. LEXIS 165282, at *11-12 (W.D. Pa. Nov. 21,

2013) (granting the defendants’ motion for summary judgment on the broader Fourteenth

Amendment triple-celling claim because despite the splashing of urine on his bedding, the

longest period of time the plaintiff spent assigned to a cot was approximately four months and

the record was silent as to how much time he had to spend in his cell).

7

Actual knowledge cannot be derived solely from grievances filed with the defendant’s office.

See Rode, 845 F.2d at 1208.

There is no evidence that any Defendant participated or had actual knowledge of the

conditions Williams experienced. Williams testified that he had never personally interacted

with, or had seen, either Nutter or Giorla. In fact, Williams testified that he did not even know

who Giorla is. See Pl.’s Dep. 10:5 – 11:5. Although Williams testified that Delaney walked

through the prison, there is no evidence that Delaney actually observed the living conditions or

spoke directly with any inmate. Accord Lopez v. City of Phila., No. 13-6571, 2017 U.S. Dist.

LEXIS 103270, at *12-13 (E.D. Pa. July 5, 2017) (concluding that the plaintiff alleged sufficient

facts to show the warden’s personal involvement in the triple-celling violation because the

plaintiff spoke personally with the warden while the warden made rounds through the prison).

2. Deliberate Indifference Theory

When relying on policy or custom under the second theory of liability, the plaintiff must:

(1) identify the specific supervisory practice or procedure that the supervisor failed

to employ, and show that (2) the existing custom and practice without the identified,

absent custom or procedure created an unreasonable risk of the ultimate injury, (3)

the supervisor was aware that this unreasonable risk existed, (4) the supervisor was

indifferent to the risk; and (5) the underling’s violation resulted from the

supervisor’s failure to employ that supervisory practice or procedure.

Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001). “[P]roof of the mere existence of

an unlawful policy or custom is not enough to maintain a § 1983 action.” Bielevicz v. Dubinon,

915 F.2d 845, 850 (3d Cir. 1990). A plaintiff must also “specifically identify the acts or

omissions of the supervisors that show deliberate indifference, and suggest to the Court a

relationship between the ‘identified deficiency’ of a policy or custom and the injury suffered.”

Cain v. Nutter, No. 16-1614, 2016 U.S. Dist. LEXIS 166071, at *7 (E.D. Pa. Nov. 30, 2016).

8

Although Williams alleges that there was a custom and practice at PPS of triple-celling

inmates in unsafe and unsanitary conditions, there is no specific evidence in the record to support

such a claim. As mentioned previously, Williams does not provide any facts regarding the

length of his housing placements or of the lock-downs. Additionally, although the inmates in the

same cell as Williams would necessarily have been subject to similar conditions, there is no

evidence or even specific allegations regarding whether such practices were widespread and

permanent, or, if they were, how long they had been occurring. See Jiminez v. All Am.

Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007) (holding that a plaintiff “may establish that a

course of conduct constitutes a ‘custom’ when, though not authorized by law, ‘such practices of

state officials [are] so permanent and well settled’ that they operate as law” (quoting Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).

There is also no evidence that Williams suffered an injury as a result of any custom or

practice of triple-celling. See Bielevicz, 915 F.2d at 850 (“[P]roof of the mere existence of an

unlawful policy or custom is not enough to maintain a § 1983 action. A plaintiff bears the

additional burden of proving that the municipal practice was the proximate cause of the injuries

suffered.”); Losch v. Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984) (explaining that where the

constitutional violation is based on a policy, custom, or practice, there must be a “causal link

between execution of the policy and the injury suffered”). Williams’s rib injury occurred when

he rolled out of the top bunk and is unrelated to the triple-celling conditions.11

11 To the extent Williams’s failure to protect count is based on his assignment to a top bunk

with no guard rails, the evidence is also insufficient to survive summary judgment. Not only is

there no evidence that any Defendant was personally involved with assigning Williams to a top

bunk, but there is no evidence that Williams should not have been assigned to a top bunk,

whether based on his age, medical condition, or a history of falling. See Veanus v. Northampton

Cnty. Prison, 238 F. App’x 753, 754-55 (3d Cir. 2007) (granting summary judgment in the

prison’s favor regarding the bunk assignment claim because there was no evidence of a policy

9

Summary judgment is therefore granted in favor of the individual PPS Defendants on

Williams’s triple-celling claims.12 See Goode v. Nutter, No. 11-6420, 2017 U.S. Dist. LEXIS

125832, at *11 (E.D. Pa. Aug. 8, 2017) (dismissing the triple-celling claims against the mayor,

the commissioner, and the warden because the plaintiff “did not articulate any specific conduct

by the Defendants which led to the conditions of which he complained). For the same reasons,

summary judgment is also granted as to Williams’s Monell claim, if any. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 481 n.10 (1986) (holding that a Ҥ 1983 plaintiff [] may be able to

recover from a municipality without adducing evidence of an affirmative decision by

policymakers if able to prove that the challenged action was pursuant to a state ‘custom or

usage’” (emphasis added)).

for handling bunk assignments, nor any evidence that the need for such a policy “was so obvious

and so likely to lead to the violation of constitutional rights that the policy maker’s failure to

respond amounts to deliberate indifference” because the plaintiff did not present evidence, “for

example, that any other prisoner had been denied a medically-required bunk assignment, had

fallen from a top bunk, or had ever complained about this issue”). Further, a prison’s failure to

install safety rails on bunk beds intended to be used solely by adults does not rise to the level of a

constitutional violation. See Walker v. Walsh, No. 3:11-CV-1750, 2012 U.S. Dist. LEXIS

12200, at *14 (M.D. Pa. Feb. 1, 2012).

12 The individual Defendants would also be entitled to qualified immunity with respect to

the triple-celling claims because, for the reasons previously stated, their conduct did not violate a

constitutional right and, moreover, any such right was not clearly established. See Saucier v.

Katz, 533 U.S. 194, 199 (2001) (discussing the two-part test the courts apply to determine

whether an official is entitled to qualified immunity). Pretrial detainees do not have a

constitutional right to be free from triple-celling. See Hubbard v. Taylor, 538 F.3d 229, 236 (3d

Cir. 2008). Because the determination as to whether triple-celling rises to the level of a

constitutional violation is “very fact-specific and require[s] close consideration of all the

circumstances,” a reasonable official under the facts of the instant action might not appreciate the

differences between the circumstances giving rise to a constitutional violation. See Duran v.

Merline, 923 F. Supp. 2d 702, 718-19 (D.N.J. 2013). “The qualified immunity standard gives

ample room for mistaken judgments by protecting all but the plainly incompetent or those who

knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal quotations

omitted). “This accommodation for reasonable error exists because ‘officials should not err

always on the side of caution’ because they fear being sued.” Id. (internal quotations omitted).

10

B. There is no evidence that any Defendant was deliberately indifferent to

Williams’s serious medical needs.13

“Pretrial detainees may assert Section 1983 claims for inadequate medical care under the

Fourteenth Amendment’s substantive due process clause.” Moore v. Luffey, 767 F. App’x 335,

340 (3d Cir. 2019) (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir.

2003)). Such claims are evaluated “under the same standard used to evaluate similar claims

brought under the Eighth Amendment.” Id. This standard has two elements: “the 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.’” Id. (quoting

Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)). A medical need is “serious”

if it has been diagnosed by a physician as requiring treatment or is so obvious that a lay person

would easily recognize the need for medical attention. See Monmouth Cnty. Corr. Inst.’l Inmates

v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citing Estelle v. Gamble, 429 U.S. 97 (1976)).

“[T]here is a critical distinction between cases where the complaint alleges a complete

denial of medical care and those alleging inadequate medical treatment.” Pearson, 850 F.3d at

526 (internal quotations omitted). Neither mere allegations of malpractice nor mere

disagreements as to the proper medical treatment support an Eighth Amendment violation. See

Lanzaro, 834 F.2d at 346. “Thus, a complaint that a physician has been negligent in diagnosing

or treating a medical condition does not state a valid claim of medical mistreatment under the

Eighth Amendment.” Estelle, 429 U.S. at 106.

13 To the extent Williams may have attempted to assert a claim of medical negligence, the

claim does not survive summary judgment because he has not offered any evidence of causation.

See Mitzelfelt v. Kamrin, 584 A.2d 888, 892 (Pa. 1990) (concluding that in a medical malpractice

case, the plaintiff “is also required to present an expert witness who will testify, to a reasonable

degree of medical certainty, that the acts of the physician deviated from good and acceptable

medical standards, and that such deviation was the proximate cause of the harm suffered”).

11

As to the PPS Defendants, there is no evidence that any were personally involved in

Williams’s medical care. See Peters v. Brown, No. 18-2796, 2019 U.S. App. LEXIS 32490, at

*8-9 (3d Cir. Oct. 30, 2019) (affirming the entry of summary judgment because the prison

officials were not personally involved in the plaintiff’s medical care (citing Rode, 845 F.2d at

1207); Batts v. Giorla, 550 F. App’x 110, 112-13 (3d Cir. 2013) (affirming the district court’s

decision to grant summary judgment to Giorla, the Commissioner of PPS, because the plaintiff

did not claim that Giorla had a role in providing or determining the medical treatment he

received). Moreover, Williams did receive medical treatment from medical professionals. See

Peters, 2019 U.S. App. LEXIS 32490, at *8-9 (holding that “a nonmedical prison official is not

deliberately indifferent to a pretrial detainee’s serious medical needs when the pretrial detainee

was recently under the care of medical experts and the official does not have a reason to believe

or actual knowledge that those medical experts or their assistants mistreated or failed to treat the

pretrial detainee” (citing Pearson, 850 F.3d at 543)); McCluskey v. Vincent, 505 F. App’x 199,

203 (3d Cir. 2012) (holding that “non-physician defendants cannot be considered deliberately

indifferent simply because they failed to respond directly to the medical complaints of a prisoner

who was already being treated by the prison doctor” (internal citations omitted)). Accordingly,

summary judgment is granted in favor of the PPS Defendants.

Summary judgment is also granted in favor of Corizon because Williams’s complaint that

medical failed to promptly14 obtain diagnostic testing for his rib fractures is nothing more than a

mere disagreement with the care provided, which does not support an Eighth Amendment claim

of deliberate indifference. See Lanzaro, 834 F.2d at 346 (holding that mere allegations of

14 For purposes of this Opinion, the Court accepts Williams’s allegations of a two-month

delay in determining whether he has offered sufficient evidence to survive summary judgment.

12

malpractice and/or mere disagreement as to the proper medical treatment do not support a

deliberate indifference claim under the Eighth Amendment). “[T]he question whether an X-ray -

or additional diagnostic techniques or forms of treatment - is indicated is a classic example of a

matter for medical judgment. A medical decision not to order an X-ray, or like measures, does

not represent cruel and unusual punishment.” Estelle, 429 U.S. at 107. Williams was regularly

seen by medical: six times in the first two months after his fall, and he has offered no evidence

that additional and/or different treatment was medically required. See Carson v. Ahsan, No. 15-

2237 (BRM), 2019 U.S. Dist. LEXIS 88961, at *10-12 (D.N.J. May 24, 2019) (granting

summary judgment in favor of the prison doctor because the prisoner received frequent treatment

for his foot injury and no further treatment was necessary). The evidence, therefore, does not

show that Corizon acted with deliberate indifference. See Rowland v. Duran, 538 F. App’x 146,

146-47 (3d Cir. 2013) (concluding that the prisoner’s complaint that he did not receive an x-ray15

until two months after he injured his foot in a fall did not rise to the level of deliberate

indifference); Ruff v. Health Care Adm’r, 441 F. App’x 843, 846 (3d Cir. 2011) (stating that

while it was unfortunate the prisoner’s fractured rib went undisclosed for two years, the

physician’s medical choice to not order an x-ray at the time of the injury “at most exhibits

negligence, which is insufficient to state a cognizable Eighth Amendment claim”).

There is also insufficient evidence to show that Williams had a “serious medical need.”

Although Williams experienced pain from the fall, he was able to climb back into bed and wait

for several hours until a correctional officer came by at breakfast time to hear his medical

request. When Williams was not immediately treated by medical because he did not have an

incident report, Williams went to lunch and then returned to his cell to wait, but did not take, or

15 The x-ray revealed that the prisoner’s foot was broken.

13

try to obtain, any pain medication. This evidence does not show that Williams’s injury rose to

the level of a “serious medical need.” See Lanzaro, 834 F.2d at 347 (holding that the

“seriousness of an inmate’s medical need may also be determined by reference to the effect of

denying the particular treatment” and citing examples such as delay causing “unnecessary and

wanton infliction of pain” and/or “a life-long handicap or permanent loss”). Williams’s claim of

deliberate indifference because he was not immediately treated when first seen by medical,

therefore, also fails to rise to the level of a constitutional violation. See Mesadieu v. Union Cnty.,

No. 17-9014, 2019 U.S. Dist. LEXIS 76287, at *10-11 (D.N.J. May 6, 2019) (concluding that the

inmate’s bruised ribs and severe leg pain were not sufficiently “serious” for purposes of

establishing a constitutional claim for deliberate indifference to medical needs); Dzwonczyk v.

Syracuse City Police Dep’t, 710 F. Supp. 2d 248, 268 (N.D.N.Y. 2008) (determining that the

plaintiff’s injuries (swollen face, two black eyes, bruised ribs, and a bruised back) may have

caused great pain at the time of infliction, but were not “serious” in constitutional terms).

Finally, even if the medical staff were deliberately indifferent to a serious medical need,

in order to hold Corizon liable, Williams must meet the standard of liability set forth in Monell,

as discussed above. But, Williams offers no evidence, nor does he even allege, that a policy,

custom, or practice of Corizon caused him constitutional harm. See Talbert v. Corizon Inc., 711

F. App’x 668, 670 (3d Cir. 2017) (agreeing with the district court that the inmate, who alleged

prison medical staff were deliberately indifferent for not ordering x-rays to test for tuberculosis,

“failed to state a claim against Corizon pursuant to Monell [] because he failed to allege facts

plausibly demonstrating the existence of a relevant custom or policy of Corizon”). Nor does

Williams offer any evidence linking any such policy, custom, or practice to the alleged

constitutional violation, or showing how a final policymaker is responsible. See Beatty v.

14

Person, No. 19-1720, 2019 U.S. App. LEXIS 31681, at *7-8 (7th Cir. Oct. 23, 2019) (granting

summary judgment in favor of Corizon because the inmate failed to point to a policy that caused

a constitutional injury or any evidence that a policymaker at Corizon required different care).

For all these reasons, summary judgment is granted in favor of all Defendants on

Williams’s second count.

C. There is no evidence to support a retaliation claim.16

Williams’s third count, alleging retaliatory transfers17 because Williams filed grievances,

16 Th facts underlying this claim involve the PPS Defendants only and this section is

therefore limited to a discussion of the evidence against them. To the extent Williams intended

to also bring this claim against Corizon, the evidence is woefully insufficient to survive summary

judgment. See Talbert, 711 F. App’x at 670 (affirming the dismissal of the inmate’s retaliation

claim against Corizon for keeping him in medical lock-in because there were no allegations of

personal involvement or any facts suggesting a policy, practice, or custom of Corizon).

17 Williams also alleges in the Amended Complaint that Delaney and Giorla implemented a

policy to dissuade inmates from filing grievances by ordering prison guards to confiscate and

destroy copies of all grievances and complaints. However, aside from this broad statement and

Williams’s comments in response to the summary judgment motions that his grievances were

lost, Williams offers no evidence to support these accusations and his deposition testimony did

not delve into this claim. See Royster v. Beard, 308 F. App’x 576, 579 (3d Cir. 2009) (granting

summary judgment in the defendants’ favor because the plaintiff could not identify a specific

grievance he believed motivated the alleged retaliatory conduct, failed to demonstrate any causal

connection between his grievances and the confiscation of his property, could not name which

specific items were confiscated, and presented no evidence that the defendants were directly

involved in confiscating the materials). Moreover, “[p]risoners do not have a constitutional right

to prison grievance procedures, [and the] alleged obstruction or misapplication of these

procedures is not independently actionable.” Freeman, 447 F. App’x at 387 (internal citation

omitted). Williams’s allegations regarding the confiscation of grievances and related property

(such as “notes documenting violations”) is also not actionable under the Due Process Clause

because the “[d]eprivation of inmate property by prison officials does not state a cognizable due

process claim if the prisoner has an adequate post-deprivation state remedy.” See Freeman, 447

F. App’x at 388 (holding that a state tort action is an adequate remedy available to a prisoner

alleging that his property was confiscated and destroyed); See Torres v. Fauver, 292 F.3d 141,

150 (3d Cir. 2002) (holding that an inmate’s “transfer to ‘less amenable and more restrictive

quarters’ did not implicate a liberty interest protected by the Due Process Clause’” (quoting

Hewitt v. Helms, 459 U.S. 460, 468 (1983))).

15

is analyzed under the First Amendment.18 “To establish a claim of retaliation under the First

Amendment, [the plaintiff] must show that (1) the conduct in which he was engaged was

constitutionally protected; (2) he suffered adverse action at the hands of prison officials; and (3)

his constitutionally protected conduct was a substantial or motivating factor in the decision to

take the adverse action.” Freeman v. Dep’t of Corr., 447 F. App’x 385, 387-88 (3d Cir. 2011)

(citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). “To make out a viable retaliation

claim, the alleged retaliatory action must be sufficiently adverse to deter a person of ordinary

firmness from exercising his First Amendment rights.” Bullock v. Buck, 611 F. App’x 744, 747

(3d Cir. 2015) (internal citations and quotations omitted).

Filing grievances is constitutionally protected conduct. See Bullock, 611 F. App’x at 747.

However, the evidence does not show that Williams suffered an “adverse action.” “An inmate

does not have a right to be placed in the cell of his choice.” Sheehan v. Beyer, 51 F.3d 1170,

1174 (3d Cir. 1995) (citing Hewitt v. Helms, 459 U.S. 460, 468 (1983)). Thus, a transfer from

one three-man cell to a different three-man cell would not deter a person of ordinary firmness

from exercising his First Amendment rights. See Griffin v. Williams, No. 1:CV-10-02472, 2011

U.S. Dist. LEXIS 88524, at *18 (M.D. Pa. Aug. 10, 2011) (concluding that transferring an

inmate from one two-bunk cell to another two-bunk cell in the same cell block is not sufficient to

deter a reasonable person from exercising his constitutional rights). Nor did it deter Williams

from continuing to file grievances. Williams’s transfer to a four-man cell a month later was also

not sufficiently adverse. See Smith v. Hayman, 489 F. App’x 544, 548 (3d Cir. 2012) (affirming

the entry of summary judgment on the inmate’s retaliation claim because apart from temporal

18 See Torres v. Fauver, 292 F.3d 141, 150 (3d Cir. 2002) (holding that an inmate’s

“transfer to ‘less amenable and more restrictive quarters’ did not implicate a liberty interest

protected by the Due Process Clause’” (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983))).

16

proximity, the plaintiff failed to provide any evidence probative of retaliation, nor did he show

that transfer from a single cell to a double-occupancy cell was such that a person of ordinary

firmness would have been deterred from exercising his constitutional rights).

Moreover, there is no evidence that the transfers were retaliatory. Although inmates

frequently invite courts to infer retaliatory motives to cell assignment and other prison policies,

such invitations are rarely embraced. See Sears v. Foulds, No. 1:16-CV-2341, 2019 U.S. Dist.

LEXIS 18445, at *12-13 (M.D. Pa. Feb. 4, 2019). Williams was incarcerated in a three-man cell

from the first day he arrived at PPS and aside from having allegedly filed numerous grievances

during the first four months of his confinement, during which time he was also transferred, there

is no evidence that the grievances were a substantial or motivating factor in the transfer

decisions. There is also no evidence in the record as to who made the transfer decisions, or

whether those individuals were policymakers or even knew Williams had filed a grievance. See

Tinsley v. Giorla, 369 F. App’x 378, 381 (3d Cir. 2010) (concluding that the plaintiff did not

provide evidence suggesting that the alleged retaliatory acts were motivated by his complaints

because although he claimed that he was transferred for having filed grievances against certain

defendants, the plaintiff failed to identify the official who actually transferred him, who had the

authority to transfer him, or that such person was aware of the grievances). There is also no

evidence of personal involvement by any of the named Defendants or of a policy, custom, or

practice. See Solan v. Ranck, 326 F. App’x 97, 101 (3d Cir. 2009) (determining that the

plaintiff’s bare allegation the defendant probably had something to do with his transfer based on

her supervisory position failed to set forth facts indicating that the defendant personally directed

or knew of and acquiesced in his transfer for retaliatory reasons).

Summary judgment is therefore granted in favor of all Defendants on this claim.

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VI. CONCLUSION

Summary judgment is granted in favor of all Defendants on all three counts. As to the

first count, the evidence regarding the circumstances of Williams’s triple-celling do not support a

constitutional violation. There is also no evidence that the PPS Defendants were personally

involved in the triple-celling or of any custom, policy, or practice regarding the same. On the

second count, there is no evidence that the PPS Defendants were involved with Williams’s

medical care. There is also no evidence that a policy, custom, or practice of Corizon caused him

constitutional harm. Further, Williams’s complaints reflect his mere disagreement with the

treatment provided by medical staff and do not rise to the level of deliberate indifference, and he

has failed to offer expert evidence that the treatment provided violated the standard of care.

Finally, there is no evidence to support the only actionable claim (retaliatory transfer) in the third

count. Williams does not offer evidence showing that the transfers were sufficiently “adverse,”

that his filing of grievances was a substantial or motivating factor in the decisions to transfer

him, or of any connection, whether by personal involvement or policy, practice, or custom, to

any Defendant. Defendants’ Motions for Summary Judgment are granted.

A separate order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._____

JOSEPH F. LEESON, JR.

United States District Judge

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