HAILEY v. MONTGOMERY COUNTY CORRECTIONAL FACILITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALVIN MAURICE HAILEY : CIVIL ACTION

v. NO. 19-2171

C.O. FRED BEARD, et al.

MEMORANDUM

KEARNEY, J. October 29, 2019

While we expect male prison correctional officers may search male citizens in custody

including pat downs of genitalia and strip searches as warranted, they may not sexually assault

those in custody under the guise of their authority to protect the other inmates and officers. We

today evaluate pro se specific allegations of a correctional officer’s repeated sexual assaults upon

a man awaiting trial at a correctional facility under the Fourteenth Amendment. The pretrial

detainee claims he told other officers to help him but they did nothing to protect him and instead

impeded his grievance process. He also wrote to the prison’s warden who allegedly failed to

respond to his concerns. He finally wrote to the County District Attorney and Pennsylvania

Attorney General resulting in an investigation but then allegedly more threats to be quiet to get a

better deal on his pending charges. The warden and correctional officers now move to dismiss the

substantive claims and for summary judgment arguing the pretrial detainee did not exhaust the

prison’s grievance procedures. At this preliminary stage based solely on our liberal reading of the

pro se amended complaint, we deny summary judgment and the motion to dismiss as to the

Fourteenth Amendment claims against the alleged assaulting officer and warden who failed to

intervene upon notice. We dismiss the claims without prejudice against the other officers as the

pretrial detainee did not plead their knowledge of ongoing conduct.

I. Pro se alleged facts!

In August 2017, the Commonwealth detained Alvin Maurice Hailey in the Montgomery

County Correctional Facility awaiting his trial.? On an unplead date, Correctional Officer Beard

escorted Mr. Hailey to his housing unit on “Medium Max.” Correctional Officer Beard directed

Mr. Hailey face the wall to conduct a random pat down when they reached Mr. Hailey’s cell, and

Mr. Hailey complied.* Correctional Officer Beard ran his fingers from Mr. Hailey’s ankles up to

his thighs, where he began “massaging [Mr. Hailey’s] groin and penis.”* Mr. Hailey felt

uncomfortable and asked Correctional Officer Beard: “Can you please stop, Im [sic] feeling

uncomfortable and this search is unwarranted.” Instead of stopping, Correctional Officer Beard

replied: “Shut up bitch this is my house you do what I say when I say it. Your [sic] my bitch.”

Mr. Hailey immediately notified Captain Moyer of what happened following this incident, who

responded: “Grow a pair and man up.”®

The Facility rehoused Mr. Hailey due to a bail reduction hearing within months of this

incident, but Mr. Hailey continued to encounter Correctional Officer Beard “in visiting room and

in normal passing through the facility as a whole on a daily basis.” When Mr. Hailey saw

Correctional Officer Beard, Correctional Officer Beard blew kisses at him, stuck his tongue

through his index and middle finger in a sexual manner toward him, and made vulgar comments

to him.!°

One unidentified day following Mr. Hailey’s visit with “his father and/or mother,” the

Montgomery County Correctional Facility assigned Correctional Officer Beard as Mr. Hailey’s

strip search officer, which made Mr. Hailey “uneasy” due to his past encounters with Correctional

Officer Beard.!'! Correctional Officer Beard asked Mr. Hailey “to get fully naked,” and Mr. Hailey

complied.'* Correctional Officer Beard then ordered Mr. Hailey “to squat and cough,” and Mr.

Hailey complied “over and over” until he finally refused.!? When Mr. Hailey refused, Correctional

Officer Beard “gave a direct order to comply or [Mr. Hailey] would be sent to the hole and lose

his visits in the future indefinitely.”!4 Following the threat, Mr. Hailey complied with Correctional

Officer Beard’s orders and Correctional Officer Beard “physically grabbed [Mr. Hailey’s]

buttcheeks [sic] and spread them apart, . . . then got on his knees and asked [Mr. Hailey] to let him

‘taste him.’”!>

Mr. Hailey told Captain Smith, Major Carbo, Major Brown, and Lieutenant Zerr about the

“unbearable encounters” involving Correctional Officer Beard, who each threatened him to “stop

reporting it or be put in segragation [sic].”!® He asked Captain Smith, Major Carbo, Major Brown,

and Lieutenant Zerr for grievance forms, but they denied his requests and “swept [them] under the

rug.”

“On or around 2018,” Mr. Hailey encountered Correctional Officer Beard on Housing Unit

G-1 where Correctional Officer Beard continued verbally harassing Mr. Hailey, telling “inmates

[Mr. Hailey] is a ‘snitch.’”!® Correctional Officer Beard told Mr. Hailey no one would believe him

regarding Correctional Officer Beard’s sexual harassment and abuse because he is a “low life scum”

who “ha[s] no rights.”!? Mr. Hailey’s cellmate, Taren-Ebo Wilson, witnessed Correctional Officer

Beard’s inappropriate behavior and the sexual abuse on multiple occasions.”

Mr. Hailey wrote to Warden Julio Algarin “repeatedly on more than one occasion” using

request slips to try to escape Correctional Officer Beard’s abuse, but Warden Algarin never

responded.*! Specifically, Mr. Hailey wrote a letter to Warden Algarin on August 30, 2017

regarding Correctional Officer Beard sexually abusing him. Warden Algarin did not answer.””

Warden Algarin “turned a ‘blind eye’” to the request slips and alleged abuse, as Correctional

Officer Beard continued to sexually harass and abuse Mr. Hailey—the harassment and abuse

worsening with each incident.”?

The District Attorney’s Investigator, John Doe, visited Mr. Hailey following Mr. Hailey

sending the Montgomery County District Attorney’s Office “repeated correspondences,” Mr.

Hailey again trying to obtain help to escape Correctional Officer Beard’s sexual harassment and

abuse.”4 District Attorney Investigator John Doe threatened Mr. Hailey “to stop making reports or

their [sic] would be no deal on [his] case.”*° Security Captain Berger witnessed Investigator John

Doe’s threats and laughed.”°

Captain Moyer handled Mr. Hailey’s filed Prison Rape Elimination Act complaints, and

“[e]verytime [sic] [Mr. Hailey] filed a report with [PREA] Captain Moyer would dismiss it and

not investigate the issue.””’ The Facility also chose Mr. Hailey’s cell for random searches and

destroyed his property during those searches on multiple occasions.*® When Mr. Hailey asked

Majors Carbo and Brown “why this [was] happening,” Major Carbo replied: “[Y]ou don’t know

when to keep your mouth shut.””?

Mr. Hailey notified Major Carbo and Captain Smith of Correctional Officer Beard sexually

abusing him, but they allegedly failed to protect him or move him to protective custody per his

requests on multiple occasions.*° He notified Major Brown and Lieutenant Zerr of Correctional

Officer Beard sexually abusing him, who also failed to protect him from Correctional Officer

Beard’s sexual abuse.?!

Mr. Hailey used the Facility’s grievance procedure “to try and solve the problem,” but the

grievance he turned into Correctional Officer Errington “somehow disappeared.”?? Mr. Hailey

placed his initial grievance in Correctional Officer Errington’s care and custody, but the “grievance

was misplaced or lost by one of the formentioned [sic] bad actor’s [sic] in Montgomery County

Correctional Facility.”3? Because he never received a response to the initial grievance, he asked to

submit grievances multiple times, which Captain Moyer consistently denied.*4 Mr. Hailey also

tried writing to the Montgomery County District Attorney’s Office—specifically Montgomery

County District Attorney Kevin Steele—“to try and solve the problem” on April 25, 2018 and

April 13, 2019, but never received a response to either letter.*°

He wrote to Pennsylvania Attorney General Josh Shapiro, forwarding a copy of the April

13, 2019 letter he sent to District Attorney Steele, and received a response from the Pennsylvania

Attorney General’s Office dated May 8, 2019.°¢ Stephen St. Vincent, the Director of Policy and

Planning for the Pennsylvania Attorney General’s Office, informed Mr. Hailey he received his

letter regarding being a victim of sexual harassment and assault and he forwarded a copy of his

April 13, 2019 letter back to the Montgomery County District Attorney’s Office, as well as to the

Montgomery County Commissioners Office as they are “the agencies that are best equipped to

handle this issue... .”?7

Mr. Hailey pro se sues: (1) Correctional Officer Beard; (2) Warden Julio Algarin; (3)

Security Captain Berger; (4) District Attorney Investigator John Doe; (5) Captain Moyer; (6)

Major Carbo; (7) Major Brown; (8) Captain Smith; (9) Lieutenant Zerr; and, (10) Correctional

Officer Warren Errington in both their individual and official capacities as Montgomery County

Correctional Facility employees for his sexual abuse occurring in the Montgomery County

Correctional Facility.>8

Mr. Hailey sues Correctional Officer Beard for violating the Eighth Amendment of the

United States Constitution by sexually abusing Mr. Hailey.*? He alleges Correctional Officer

Beard’s actions caused him to suffer “grave emotional distress at the time of the incident” and

“continues to haunt [him] to this day,” requiring Mr. Hailey to receive professional guidance from

the SCI-Somerset Department of Psychiatry and Psychology.*° Mr. Hailey alleges Warden Algarin

“is responsible for the conduct of [his] staff and to insure [sic] once a sexual abuse claim is reported

to remove [the] victim or [his] staff to insure [sic] the abuse does not continue,” and Warden

Algarin “failed his duties” by not following this procedure.*' He alleges collusion by Investigator

John Doe, Captain Moyer, Major Carbo, Major Brown, Captain Smith, Lieutenant Zerr, and

Correctional Officer Errington “to cover up [Correctional Officer Beard’s] sexual abuse and

misconduct.’”4?

IL. Analysis

Correctional Officer Beard, Captain Moyer, Major Carbo, Major Brown, Warden Algarin,

Captain Smith, Lieutenant Zerr, Captain Berger, and Correctional Officer Errington move to

dismiss for failure to state a claim*’; or, in the alternative, for summary judgment arguing Mr.

Hailey failed to exhaust his administrative remedies under the Prison Litigation Reform Act of

1995.4

“To state a claim under [section] 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.’”*° “Section 1983 is not a

source of substantive rights, but merely a means of vindicating violations of federal constitutional

and statutory rights committed by state actors.’*° To obtain redress under section 1983, a plaintiff

must “establish{] an underlying violation of a federal constitutional or statutory right.’*”

A. Mr. Hailey alleges facts precluding judgment based on exhaustion as an

affirmative defense.

Correctional Officer Beard, Captain Moyer, Major Carbo, Major Brown, Warden Algarin,

Captain Smith, Lieutenant Zerr, Captain Berger, and Correctional Officer Errington argue Mr.

Hailey failed to exhaust his available administrative remedies under the Prison Litigation Reform

Act, requiring us to grant summary judgment in their favor. We disagree, as Mr. Hailey pro se

alleges facts precluding exhaustion as an affirmative defense.

Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to prison

conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.’“® “As a general rule,

inmates who fail to complete the prison grievance process are barred from subsequently litigating

claims in federal court.’”*? “A court must examine whether a prisoner has properly exhausted his

claim ‘by evaluating the prisoner’s compliance with the prison’s administrative regulations

governing inmate grievances, and the waiver, if any, of such regulations by prison officials.’”°°

“Defendants must plead and prove the failure of a prisoner to exhaust administrative remedies as

an affirmative defense.’”*!

But courts acknowledge “the exhaustion requirement may be affected by prison officials’

refusal to provide a prisoner with the necessary grievance forms.”** The Prison Litigation Reform

Act “only requires that prisoners exhaust such administrative remedies ‘as are available.’”* In

Ross v. Blake, the Supreme Court held “an administrative procedure is unavailable when (despite

what regulations or guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved inmates.”°* Where the

procedure is not “capable of use,” and “the facts on the ground demonstrate that no such potential

exists, the inmate has no obligation to exhaust the remedy.”>

Mr. Hailey pleads facts demonstrating the “unavailability” to him of the administrative

remedies at the Montgomery County Correctional Facility, excepting his need to exhaust such

remedies. He alleges Major Carbo, Major Brown, Captain Smith, and Lieutenant Zerr denied his

many requests to grieve Correctional Officer Beard’s harassment and “threat[ened] [him] to stop

reporting it or be put in segragation [sic].”°° He alleges Investigator John Doe also “threatened

[him] to stop making reports or their [sic] would be no deal on [his] case.”*” Mr. Hailey “multiple

times requested a grievance from [Captain] Moyer on many occasions to which [h]is request was

denied.’**® Because the prison officials denied him grievances, he wrote a letter to Warden Algarin

regarding Correctional Officer Beard’s harassment, but the Warden never responded.*? Mr. Hailey

resorted to sending multiple letters to the Montgomery County District Attorney’s Office and the

Pennsylvania Attorney General’s Office explaining the sexual harassment and abuse after his

unsuccessful efforts within the prison.”

As alleged, Mr. Hailey could not exhaust the Montgomery County Correctional Facility’s

grievance procedure because the prison officials at issue prevented his access to the procedure.

Although writing a letter to outside agencies does not exhaust remedies under the Prison Litigation

Reform Act,°! Mr. Hailey alleges facts demonstrating the grievance procedure’s unavailability,

excluding his obligation to exhaust the remedy and precluding the prison officials from claiming

exhaustion as an affirmative defense at this stage.

B. Mr. Hailey may state a claim under the Fourteenth Amendment.

Mr. Hailey sues under the Eighth Amendment for sexual abuse. Correctional Officer Beard,

Captain Moyer, Major Carbo, Major Brown, Warden Algarin, Captain Smith, Lieutenant Zerr,

Captain Berger, and Correctional Officer Errington argue the Eighth Amendment of the United

States Constitution is inapplicable because Mr. Hailey is a pretrial detainee, and Mr. Hailey must

bring his civil claims against them under the Fourteenth Amendment. We agree.

“In a [section] 1983 action with a pro se plaintiff, the [c]ourt must “apply the applicable

law, irrespective of whether a pro se litigant [] mention[s] it by name.”°? When defendants

allegedly violate a pretrial detainee’s civil rights, the Fourteenth Amendment—rather than the

Eighth Amendment—governs the pretrial detainee plaintiff's civil rights claim because he is not

yet a convicted prisoner. “[Pretrial detainees] are not yet at a stage of the criminal process where

they can be punished [as defined by the Eighth Amendment] because they have not yet been

convicted of anything.” But “[t]he Fourteenth Amendment affords pretrial detainees at least as

much protection as the Eighth Amendment provides convicted prisoners.”® Where pretrial

detainees bring nonmedical conditions of confinement claims, our Court of Appeals broadly holds

the pretrial detainees “are entitled to greater constitutional protection than that provided by the

Eighth Amendment.”®

Although Mr. Hailey asserts his current civil rights claims against Correctional Officer

Beard, Captain Moyer, Major Carbo, Major Brown, Warden Algarin, Captain Smith, Lieutenant

Zerr, Captain Berger, and Correctional Officer Errington under the Eighth Amendment, we must

acknowledge Mr. Hailey’s pro se status and analyze his claims under the applicable law. As Mr.

Hailey brings these claims regarding civil rights violations against him while a pretrial detainee,

we must analyze his claims under the Due Process Clause of the Fourteenth Amendment rather

than under the Eighth Amendment’s cruel and unusual punishment standard.

C. Mr. Hailey alleges facts supporting a claim against Correctional Officer Beard

for sexual abuse.

Correctional Officer Beard argues Mr. Hailey fails to allege a plausible civil rights claim

against him, as Mr. Hailey does not allege the pat down search violated standards of decency and

he scantily plead his sexual abuse claim against Correctional Officer Beard. We disagree.

“(Under the Due Process Clause [of the Fourteenth Amendment], a detainee may not be

punished prior to an adjudication of guilt in accordance with due process of

law.”°’ “[C]onditions . . . reasonably related to a penal institution’s interest in maintaining jail

security typically pass constitutional muster,”®® and a “particular measure amounts to punishment

when there is a showing of express intent to punish on the part of detention facility officials, when

the restriction or condition is not rationally related to a legitimate non-punitive government

purpose, or when the restriction is excessive in light of that purpose.” © “Whether

a pretrial detainee has been punished generally turns on whether the conditions have a purpose

other than punishment, and whether the totality of the conditions are ‘excessive’ such that they

resulted in ‘genuine privations of hardship over an extended period of time.’””°

Sexual assault constitutes impermissible punishment, as it cannot and does not serve a

legitimate governmental objective.’! In E.D. v. Sharkey, our Court of Appeals concluded an

immigration detainee—with “immigration detainees [being] entitled to the same due process

protections” as pretrial detainees’*—had a clearly established right “not to be sexually assaulted

by a state employee while in confinement,” and the detainee’s sexual assault allegations against

the employee “set forth a plausible violation of her right to personal bodily integrity protected by

the Due Process Clause of the Fourteenth Amendment.””? The detainee’s allegations of the state

employee’s sexual assault “could not have served a legitimate governmental objective and thereby

constituted impermissible punishment.”

Mr. Hailey alleges Correctional Officer Beard “massag[ed] [his] groin and penis” and did

not stop doing so even after Mr. Hailey told Correctional Officer Beard he felt “uncomfortable and

th[e] search is unwarranted.””> When asked to stop, Correctional Officer Beard told Mr. Hailey,

“Shut up bitch this is my house you do what I say when I say it. Your [sic] my bitch.””° Mr. Hailey

alleges Correctional Officer Beard threatened “he would be sent to the hole and lose his visits in

the future indefinitely’ when he did not comply to repetitive, uncomfortable orders after

performing them multiple times.’” Correctional Officer Beard allegedly “physically grabbed [Mr.

Hailey’s] buttcheeks and spread them apart . . . [and] got on his knees and asked [Mr. Hailey] to

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let him ‘taste him.’”’® He also allegedly blew kisses and made vulgar comments to Mr. Hailey and

“st{ujck his tounge [sic] through his index and middle finger in a sexual manner.””? Comparable

to E.D. v. Sharkey, Mr. Hailey pleads “a plausible violation of [his] right to personal bodily

integrity protected by the Due Process Clause of the Fourteenth Amendment.”®°

Though “[v]erbal abuse of a prisoner, even of the lewd variety . . . , is not actionable under

[section] 1983,”8! Mr. Hailey alleges Correctional Officer Beard’s actions did not stop at threats

and lewd gestures. Rather the threats and lewd gestures accompanied alleged unwanted and

violative physical touching of Mr. Hailey’s genitals and intruded on his personal integrity.

Correctional Officer Beard’s alleged sexual harassment cannot be rationally related to a legitimate

non-punitive government purpose—even if Mr. Hailey’s strip searches served a legitimate

governmental purpose and were justified at their inception—as they may exceed the bounds of a

permissible pretrial detainee strip search. As Mr. Hailey has a right to be free from sexual assault

by prison employees while a pretrial detainee and pleads sexual harassment and abuse by

Correctional Officer Beard, we find Mr. Hailey pleads civil rights claims against Correctional

Officer Beard.

D. Mr. Hailey fails to plead Monell civil rights claims against the named prison

officials.

Correctional Officer Beard, Captain Moyer, Major Carbo, Major Brown, Warden Algarin,

Captain Smith, Lieutenant Zerr, Captain Berger, and Correctional Officer Errington move to

dismiss Mr. Hailey’s section 1983 claims against them regarding supervisory liability arguing he

fails to plead a Montgomery County Correctional Facility policy or custom as the moving force

behind the constitutional violations under Monell v. New York City Department of Social Services.

We agree.

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The Supreme Court in Monell concluded a “municipality may be held liable under 42

U.S.C. § 1983 for a constitutional injury [] directly result[ing] from a municipality’s policy, custom,

or practice.” “To establish municipal liability under 42 U.S.C. § 1983, a plaintiff must

demonstrate [] the municipality itself, throughout the implementation of a policy or a custom,

caused the underlying constitutional violation.”*4 “A municipality is not liable under [s]ection

1983 unless the policy or custom was the ‘moving force’ underlying the constitutional violation.”®

Monell requires a plaintiff “plead[] the existence of: 1) a policy or lack thereof; 2) a policy maker

that effectuated said policy; and 3) a constitutional violation whose ‘moving force’ was the policy

in question.”®° “Under Monell, a municipality cannot be subjected to liability solely because

injuries were inflicted by its agents or employees.”®’ “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. Personal involvement can be shown through allegations of

personal direction or of actual knowledge and acquiescence.”®®

Where allegations in the early stage of proceedings are general but show “defendants were

aware of the unconstitutional conduct and that the offending conduct may have been policy and

practice at [the correctional facility], we should “allow the [c]omplaint to proceed against the[]

defendants . . . [when] it is not based solely on a theory of respondeat superior.”*? In Daniels v.

Morris County Correctional Facility, Judge Cavanaugh held Mr. Daniels, a state pretrial detainee

proceeding pro se, could assert civil rights claims against supervisory officials where he alleged

the “defendants operated, facilitated, maintained and/or allowed the [correctional facility] staff to

engage in unconstitutional behavior against [him],” even though he presented very general

allegations, as his civil rights claims against the defendants were “not based solely on a theory of

respondeat superior.”®° Mr. Daniels alleged supervisory liability claims sufficient for Judge

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Cavanaugh to deny the prison official defendants’ motion to dismiss at the early stage of the

proceedings.”! In Wright v. City of Philadelphia, Judge Pratter held Mr. Wright “allege[d] no fewer

than eight specific customs, practices, or policies maintained or indulged by the City at the time

of his arrest and prosecution that led to his constitutional injury . . . .”°? Judge Pratter emphasized

Mr. Wright specifically described how the same officers named in his case engaged in the type of

misconduct he alleged occurred to him, “allowing the Court to infer that the unconstitutional

practices of the Philadelphia Police Department caused Mr. Wright’s injuries and were sufficiently

widespread as to be ascribed to municipal policymakers.”

Mr. Hailey does not plead a Montgomery County Correctional Facility policy or custom,

or a “link between the challenged restriction and a municipal decisionmaker.”*4 Mr. Hailey does

not allege the sexual harassment and abuse nor the prison officials’ failure to protect him from

such abuse occurred due to a policy or custom of the local government operating the Montgomery

County Correctional Facility—nor does he identify a policy or custom of the Montgomery County

Correctional Facility on which to base these claim. Unlike in Wright where Mr. Wright alleged no

fewer than eight specific policies and customs leading to his constitutional injury, Mr. Hailey does

not identify one policy or custom contributing to his sexual harassment and abuse or the prison

officials’ failure to protect him from such abuse. The only person he alleges to have supervisory

power is Warden Algarin, who he alleges “is responsible for the conduct of [his] staff and to insure

[sic] once a sexual abuse claim is reported to remove [the] victim or [his] staff to insure [sic] the

abuse does not continue” and “failed his duties” by not following this procedure.® He alleges he

“repeatedly on more than one occasion through request slips wrote [Warden] Algarin about the

[sexual harassment] incident and never got a response,” as “[Warden] Algarin turned a ‘blind-eye’

because the sexual abuse continued and in each incident got worst [sic].””°

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Mr. Hailey fails to allege Captain Moyer, Major Carbo, Major Brown, Captain Smith,

Lieutenant Zerr, Captain Berger, or Correctional Officer Errington have supervisory powers and

allowed Correctional Officer Beard to act contrary to established policy. He failed to plead Captain

Moyer, Major Carbo, Major Brown, Captain Smith, Lieutenant Zerr, Captain Berger, or

Correctional Officer Errington proceeded with willful blindness as to Correctional Officer Beard’s

ignorance of Montgomery County Correctional Facility’s policies, or supervisors knew

Correctional Officer Beard sexually harassed and abused Mr. Hailey, yet allowed him to continue

such behavior despite this knowledge. Mr. Hailey does not plead a custom of Montgomery County

Correctional Facility or its supervisory employees turning a blind eye to individuals violating its

established policies.

Mr. Hailey does not plead the prison officials, including Warden Algarin, acted in a

deliberately indifferent manner or acquiesced in a specified custom of inaction.” Unlike in Daniels,

Mr. Hailey’s claims are based solely on a respondeat superior theory, precluding supervisory

liability under Monell.

Based on Mr. Hailey’s allegations, it appears Warden Algarin’s awareness of the

unconstitutional conduct and his inaction relating to the offending conduct fits squarely under Mr.

Hailey’s “failure to protect” claim against Warden Algarin. But even considering Mr. Hailey’s

pro se status and the early stage of this proceeding, we cannot allow his Monell claims against the

prison officials in their official capacities to proceed solely on a respondeat superior theory. We

deny these civil rights claims relating to the prison officials in their official capacities.

E. Mr. Hailey pleads a failure to protect claim against Warden Algarin, but not

against the other prison officials.

Major Carbo, Major Brown, Captain Smith, Warden Algarin, and Lieutenant Zerr move to

dismiss Mr. Hailey’s section 1983 claims against them regarding their failure to protect him from

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Correctional Officer Beard’s sexual! harassment and abuse, as his failure to protect claims against

them are purely conclusory and lack factual foundation. We agree as to Major Carbo, Major Brown,

Captain Smith, and Lieutenant Zerr, but disagree as to Warden Algarin.

Our Court of Appeals has not articulated the standard governing sexual harassment and

abuse in the pretrial detainee context, but it “ha[s] stated in dicta. . . the state of mind requirement

for prisoners’ failure to protect claims—‘deliberate indifference’—applies also to pretrial

detainees’ claims.”*® “[A] pretrial detainee presenting a failure-to-protect claim must plead that

the prison official acted with deliberate indifference to the detainee's health or safety.”°? The

Eighth Amendment’s “deliberate indifference” standard is a subjective one, requiring “the prison

official-defendant[s] must actually have known or been aware of the excessive risk to inmate

safety.”!°° A plaintiff must demonstrate “the defendant was subjectively aware of the risk of harm

to the plaintiff's health or safety, and disregarded it.”!°!

“Tt is well established [] merely negligent misconduct will not give rise to a claim under

[section] 1983; the [Commonwealth] defendant must act with a higher degree of intent.”!° Judge

Smith in E.D. v. Sharkey details the governing law confirming merely alleging “a defendant knew

of a risk to the plaintiff is insufficient to support an inference of deliberate indifference absent any

factual allegations supporting that conclusion, and thus cannot alone establish facial

plausibility.”!°? Judge Smith dismissed the inmate’s “failure to protect” allegations against the

prison guard as the inmate’s “conclusory statements [the prison official] noticed the attention

[another inmate] directed towards her and knew about their intimate relationship are not entitled

to a presumption of truth.”!°4 A fair comparison is found in Bistrian v. Levi where our Court of

Appeals concluded the inmate plead a plausible failure to protect claim by alleging he advised

several prison officials of a specific violent threat made by a specific inmate and the officers still

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placed him “in the recreation yard with . . . [inmates] who knew of his prior complicity with prison

authorities.” !°

1. Mr. Hailey pleads Warden Algarin’s deliberate indifference to his

health and safety.

Mr. Hailey alleges Warden Algarin “is responsible for the conduct of [his] staff and to

insure [sic] once a sexual abuse claim is reported to remove [the] victim or [his] staff to insure [sic]

the abuse does not continue,” and Warden Algarin “failed his duties” by not following this

procedure.!° He alleges he “repeatedly on more than one occasion through request slips wrote

[Warden] Algarin about the [sexual harassment] incident and never got a response,” as “[Warden]

Algarin turned a ‘blind-eye’ because the sexual abuse continued and in each incident got worst

[sic].”!°7 Mr. Hailey wrote to Warden Algarin on August 30, 2017 to notify him of Correctional

Officer Beard’s consistent sexual harassment and abuse.'®*

Mr. Hailey’s allegations against Warden Algarin are not generalized allegations. Instead

he pleads Warden Algarin personally knew of the sexual harassment—from the request slips,

including the one specifying the abuse and the abuser attached to Mr. Hailey’s Complaint—and

he provides sufficient facts from which we can conclude Warden Algarin violated his rights by

acting deliberately indifferent to a known risk to Mr. Hailey’s health and safety.

Mr. Hailey alleges he wrote Warden Algarin about the sexual harassment and abuse by

Correctional Officer Beard, but Warden Algarin did not respond. Unlike his allegations against the

other named prison officials, Mr. Hailey’s allegations against Warden Algarin establish facial

plausibility, as they are backed by other fact allegations supporting an inference of Warden

Algarin’s deliberate indifference. The August 30, 2017 letter notifying Warden Algarin of

Correctional Officer Beard’s sexual harassment and abuse demonstrates Warden Algarin may have

had personal knowledge of Correctional Officer Beard’s sexual harassment and abuse, and Mr.

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Hailey alleges Warden Algarin “turned a ‘blind eye’” to the situation as the “sexual abuse

continued and in each incident got worst [sic].”!°? Because his allegations against Warden Algarin

are not simply conclusory like those in Sharkey and are backed by fact allegations supporting

Warden Algarin’s plausible personal, subjective knowledge of the specific risk to Mr. Hailey’s

health and safety, they satisfy the deliberate indifference standard required for failure to protect

claims under section 1983 and are entitled to a presumption of truth at this preliminary stage.

2. Mr. Hailey fails to plead Majors Carbo and Brown’s, Captain Smith’s,

and Lieutenant Zerr’s deliberate indifference to his health and safety.

Mr. Hailey alleges he spoke to Majors Carbo and Brown, Captain Smith, and Lieutenant

Zerr about the “unbearable encounters with [Correctional Officer] Beard . . . to which he was met

with threats to stop reporting it or be put in segragation [sic].”!!° He also alleges he asked them for

grievances, but they denied his requests and “swept [Correctional Officer Beard’s sexual

harassment and abuse] under the rug.”!'' Majors Carbo and Brown also allegedly told Mr. Hailey

he did not “know when to keep [his] mouth shut” after Mr. Hailey asked why prison officials on

multiple occasions chose to search his cell and destroyed his property.''? Mr. Hailey alleges he

spoke to Captain Smith about the “unbearable encounters with [Correctional Officer] Beard . . . to

which he was met with threats to stop reporting it or be put in segragation [sic].”!' He also alleges

he asked Captain Smith for grievances, but he denied his requests ant “swept [Correctional Officer

Beard’s sexual harassment and abuse] under the rug.”!'*

These generalized allegations of “knowing” of the sexual harassment but “swept it under

the rug” do not provide sufficient facts from which we can conclude these officers acted with

deliberate indifference. There is no specificity in Mr. Hailey’s allegations allowing an inference

they personally knew of the risk to Mr. Hailey’s health and safety and failed to protect him from

the known risk. Though he alleges he told them “of the sexual abuse and [they] failed to protect

17

[him],”!!> these statements are purely conclusory. Like in Sharkey, Mr. Hailey’s allegations he told

them of the risk Correctional Officer Beard posed to him cannot alone establish facial plausibility,

as they are insufficient to support an inference of deliberate indifference absent other factual

allegations supporting such a conclusion. Mr. Hailey would need to show notice to these officers

including how they would know. Because his conclusory allegations against these officers do not

satisfy the deliberate indifference standard required for failure to protect claims under section 1983,

they are not entitled to a presumption of truth and must be dismissed without prejudice. Mr. Hailey

may seek to amend to plead their specific notice: what did he tell them and when? What role did

they have to protect him from Correctional Officer Beard? Unlike his claims against Warden

Algarin, Mr. Hailey does not plead the facts necessary to show these officials deliberate

indifference.

F. Mr. Hailey fails to plead a claim against Captain Berger for laughing during

his conversation with Investigator John Doe.

Captain Berger argues Mr. Hailey’s civil rights claim against him must be dismissed as

laughing constitutes verbal abuse and is not actionable conduct. We agree.

“Allegations of verbal abuse or threats, unaccompanied by injury or damage, are not

cognizable under [section] 1983, regardless of whether the inmate is a pretrial detainee or

sentenced prisoner.”!'® “Verbal abuse of a prisoner, even of the lewd variety . . . , is not actionable

under [section] 1983.”!!7 Mr. Hailey alleges Captain Berger “witnessed [Investigator] John Doe’s

threats [against him to stop making reports of Correctional Officer Beard’s sexual harassment and

abuse or risk losing a deal on his case] and just laughed.”'!® Mr. Hailey does not allege Captain

Berger verbally abused or threated him, or any injury or damage resulting from Captain Berger’s

laughter. Even if Captain Berger’s gesture of laughing is construed as verbal harassment, it still

18

fails to rise to a level of violating Mr. Hailey’s civil rights and must be dismissed without

prejudice.!'?

G. Mr. Hailey has no procedural due process right to specific prison grievance

procedures.

Correctional Officer Errington argues any claims against him must be dismissed as they

are not based upon his personal involvement in the constitutional violation, and Mr. Hailey has no

right to a specific prison grievance procedure. We agree.

The first step in analyzing a procedural due process claim “is [determining] whether the

nature of the interest is one within the contemplation of the ‘liberty or property’ language of the

Fourteenth Amendment.”!*° To present a cognizable procedural due process claim under the

Fourteenth Amendment, the claim must involve a protected interest.!?! For inmates, the Due

Process Clause’s safeguards are triggered only when circumstances “impose[] atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.”!?* Where an

inmate has no protected interest relating to his claim, there cannot be deprivation of due process

requiring constitutional redress.!77

“[A]lthough prisoners have a constitutional right to seek redress of grievances as part of

their right of access to courts, this right is not compromised by [prison officials’ failure] to address

these grievances.”!*4 “Access to prison grievance procedures is not a constitutionally-mandated

right, and allegations of improprieties in the handling of grievances do not state a cognizable claim

under [section] 1983.”!7° In Burnside v. Moser, our Court of Appeals affirmed “[iJnmates do not

have a constitutionally protected right to the prison grievance process.”!*° Our Court of Appeals

in Burnside did not commend failure to process grievances, but noted such behavior by prison

officials “does not rise to the level of [violating] a constitutional right.”

19

Mr. Hailey solely alleges Correctional Officer Errington “was responsible for turning in

[his] initial grievance as [he] placed it directly in [Correctional Officer Errington’s] care and

custody,” and the “grievance was misplaced or lost by one of the formentioned [sic] bad actor’s

[sic] in Montgomery County Correctional Facility.”!?8 Mr. Hailey concedes Correctional Officer

Errington’s only involvement in his claims relates to Correctional Officer Errington’s handling of

Mr. Hailey’s initial grievance, and his inability to identify who exactly lost or misplaced the

grievance. As Mr. Hailey does not have a constitutionally protected right to specific prison

grievance procedures—including redress from the improprieties in prison grievance handling—

his claims against Correctional Officer Errington must be dismissed without prejudice.

H. Mr. Hailey fails to plead conspiracy or intentional infliction of emotional

distress.

Mr. Hailey alleges Investigator John Doe, Captain Moyer, Major Carbo, Major Brown,

Captain Smith, Lieutenant Zerr, Captain Berger, and Correctional Officer Errington colluded “to

cover up [Correctional Officer] Beard’s sexual abuse and misconduct.”!”? Because Mr. Hailey fails

to plead the requisite requirements for collusion under section 1983, we must dismiss his collusion

claims against the named prison officials without prejudice.

The Supreme Court in Bell Atlantic Corp. v. Twombly concluded “a plaintiffs obligation

to provide the ‘grounds’ of his ‘entitle[ment] to relief? requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.”!*° To survive a Rule

12(b)(6) motion to dismiss, a plaintiff must plead factual allegations “rais[ing] a right to relief

above the speculative level.”!3! “Bare conclusory allegations of ‘conspiracy’ or ‘concerted action’

will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make

averments of communication, consultation, cooperation, or command from which such agreement

can be inferred.”!32

20

Mr. Hailey does not plead facts allowing an inference Investigator John Doe, Captain

Moyer, Major Carbo, Major Brown, Captain Smith, Lieutenant Zerr, Captain Berger, and

Correctional Officer Errington acted in concert and joint action to “cover up [Correctional Officer]

Beard’s sexual abuse and misconduct.”!*3 Instead Mr. Hailey concludes “the evidence suggest[s]

their [sic] was a collusion by the named Defendents [sic] to cover up [Correctional Officer] Beard’s

sexual abuse and misconduct” without providing allegations supporting such concert and joint

action among the individuals.'** He fails to plead facts. Without alleging an agreement or making

averments supporting concerted action, Mr. Hailey’s allegations are insufficient to allege an

agreement or concerted action among Investigator John Doe, Captain Moyer, Major Carbo, Major

Brown, Captain Smith, Lieutenant Zerr, Captain Berger, and Correctional Officer Errington, and

his claim cannot survive their motion to dismiss.'*> We dismiss without prejudice Mr. Hailey’s

section 1983 claim against Investigator John Doe, Captain Moyer, Major Carbo, Major Brown,

Captain Smith, Lieutenant Zerr, Captain Berger, and Correctional Officer Errington for their

alleged collusion in covering up Correctional Officer Beard’s sexual abuse and misconduct for

failure to plausibly plead concerted action.

Mr. Hailey also refers to, but fails to plead, facts allowing him to proceed on an intentional

or negligent infliction of emotional distress claim. He alleges “[Correctional Officer] Beard’s

actions caused [him] to suffer grave emotional distress at the time of the incident . . . [and his]

sexual abuse continues to haunt [him] to this day... .”!°6

To state a claim for intentional infliction of emotional distress, Mr. Hailey must plead: “(1)

extreme and outrageous conduct (2) that intentionally or recklessly (3) causes emotional distress

(4) which must be severe.”!?”’ Conduct is considered outrageous where it is “so outrageous in

character, and so extreme in degree as to go beyond all possible bounds of decency, and to be

21

regarded as atrocious, and utterly intolerable in a civilized society.”!38 “Generally, the case is one

in which the recitation of the facts to an average member of the community would arouse his

resentment against the actor, and lead him to exclaim, ‘Outrageous.’”!°?

To allege a claim for negligent infliction of emotional distress, Mr. Hailey must prove one

of the following four elements: “(1) [] the defendant had a contractual or fiduciary duty toward

him; (2) [] Plaintiff suffered from a physical impact; (3) Plaintiff was in a ‘zone of danger’ and at

risk of immediate physical injury; or (4) Plaintiff had a contemporaneous perception of tortious

injury to a close relative.”!4° “A [p]laintiff who alleges negligent infliction of emotional distress

must suffer immediate and substantial physical harm.”!*!

These claims may not proceed unless Mr. Hailey pleads the requisite elements of either

intentional or negligent infliction of emotional distress against specified parties.

III. Conclusion

We deny summary judgment against Mr. Hailey based on failure to exhaust as he alleges

facts demonstrating the grievance procedure’s unavailability, excluding his obligation to exhaust

the remedy and precluding the prison officials from claiming exhaustion as an affirmative defense.

We may revisit this issue following discovery.

We analyze Mr. Hailey’s civil rights claims while a pretrial detainee under the Due Process

Clause of the Fourteenth Amendment rather than under the Eighth Amendment’s cruel and unusual

punishment standard. As Mr. Hailey has a right to be free from sexual assault by prison employees

while a pretrial detainee and pleads sexual harassment and abuse by Correctional Officer Beard,

Mr. Hailey pleads valid Fourteenth Amendment claims against Correctional Officer Beard. We

also find Mr. Hailey pleads a valid failure to protect claim against Warden Algarin, but not against

Major Carbo, Major Brown, Captain Smith, or Lieutenant Zerr.

22

Even considering Mr. Hailey’s pro se status and the early stage of this proceeding, we

cannot allow his Monell claims against the prison officials in their official capacities to proceed

solely on a respondeat superior theory, and we dismiss these civil rights claims relating to the

prison officials in their official capacities without prejudice. We dismiss without prejudice Mr.

Hailey’s civil rights claim against Captain Berger as laughing constitutes verbal abuse, which is

not actionable conduct. We dismiss without prejudice Mr. Hailey’s claims relating to Correctional

Officer Errington possibly losing or misplacing his grievances as they are not based upon

Correctional Officer Errington’s personal involvement in Mr. Hailey’s sexual harassment and

abuse by Correctional Officer Errington, and Mr. Hailey has no right to a specific prison grievance

procedure. We dismiss Mr. Hailey’s references to Pennsylvania state law claims for collusion and

emotional distress as failing to state a claim without prejudice.

! <(A] Complaint, including a pro se Complaint, must conform with the requirements of Rule 8(a)

of the Federal Rules of Civil Procedure,” “requir[ing] [] the Complaint be simple, concise, direct

and set forth ‘a short and plain statement of the claim showing [] the pleader is entitled to relief.’”

Atun El v. United States, No. 13-3970, 2014 WL 1281230, at *1 (E.D. Pa. Mar. 31, 2014) (quoting

Fed. R. Civ. P. 8(a)(2)). But the Supreme Court holds the allegations in a pro se pleading must be

held to a “less stringent standard[] than formal pleadings drafted by lawyers ....” Haines v. Kerner,

404 U.S. 519, 520 (1972). “[B]ecause [plaintiff] has filed his complaint pro se, we must liberally

construe his pleadings, and we will apply the applicable law, irrespective of whether the pro se

litigant has mentioned it by name.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing

Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)).

* ECF Doc. No. 11 at § 18.

3 Id. at 919.

4 Td. at FJ 19-20.

> Id. at J 20.

§ Id. at 921.

23

8 Id. at 422.

9 Id. at 9 23.

10 Id. at 924.

Id. at 925.

2 Id.

13 Ig

4 Td.

15 Id at 426.

16 Td, at § 27.

17 Iq

18 Td. at J 28.

19 Iq

20 Id

21 Id at] 30.

22 Td. at □ 40, Ex. A.

23 Id. at 430.

24 Td. at] 31.

25 Iq

26 Id at J 32.

27 Id at 433.

28 Id at 429.

29 Id

30 Id at $9 34, 36.

24

31 Td. at 99 35, 37.

32 Td. at 4 39.

33 Id. at J 38.

4 Id. at 4 39.

35 Id. at § 41, Ex. B, Ex. C.

36 Jd. at J 42, Ex. D.

37 Td

38 Td. at FJ 5-16.

9 Id. at 4 44.

40 Id. at 45.

I Td at | 46.

42 Id. at 4 47.

43 When considering a motion to dismiss “[w]e accept as true all allegations in the plaintiff's

complaint as well as all reasonable inferences [potentially] drawn from them, and we construe

them in a light most favorable to the non-movant.” Tatis v. Allied Interstate, LLC, 882 F.3d 422,

426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)).

To survive dismissal, □□ complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when

the plaintiff pleads factual content [allowing] the court to draw the reasonable inference [] the

defendant is liable for the misconduct alleged.” Jd. (citing Twombly, 550 U.S. at 556). Our Court

of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion: (1) “it must ‘tak[e]

note of the elements [the] plaintiff must plead to state a claim;’” (2) “it should identify allegations

that, ‘because they are no more than conclusions, are not entitled to the assumption of truth;’” and,

(3) “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and

then determine whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane

Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Jgbal, 556 U.S. at 675, 679).

44 Summary judgment is proper when “the movant shows that there is no genuine issue as to any

material fact that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(a). “Material facts are those ‘that could affect the outcome’ of the proceeding, and ‘a dispute

about a material fact is “genuine” if the evidence is sufficient to permit a reasonable jury to return

a verdict for the non-moving party.’” Pearson v. Prison Health Services, 850 F.3d 526, 534 (3d

Cir. 2017) (quoting Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)). On a motion for

25

summary judgment, “we view the facts and draw all reasonable inferences in the light most

favorable to the nonmovant.” Pearson, 850 F.3d at 533-34 (citing Scott v. Harris, 550 U.S. 372,

378 (2007)). “The party seeking summary judgment ‘has the burden of demonstrating that the

evidentiary record presents no genuine issue of material fact.’” Parkell v. Danberg, 833 F.3d 313,

323 (3d Cir. 2016) (quoting Willis vy. UPMC Children’s Hospital of Pittsburgh, 808 F.3d 638, 643

(3d Cir. 2015)). If the movant carries its burden, “the nonmoving party must identify facts in the

record that would enable them to make a sufficient showing on essential elements of their case for

which they have the burden of proof.” Willis, 808 F.3d at 643 (citing Celotex Corporation v.

Catrett, 477 U.S. 317, 323 (1986)). “If, after adequate time for discovery, the nonmoving party

has not met its burden, pursuant to Federal Rule of Civil Procedure 56, the court must enter

summary judgment against the nonmoving party.” Willis, 808 F.3d at 643 (citing Celotex, 477 US.

at 322-23).

45 West v. Atkins, 487 U.S. 42, 48 (1988).

46 Hall-Wadley v. Maintenance Department, 386 F. Supp. 3d 512, 516-17 (E.D. Pa. 2019) (citing

Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)).

47 Hall-Wadley, 386 F. Supp. 3d at 516-17 (citing City of Rancho Palos Verdes, California v.

Abrams, 544 U.S. 113, 119-20 (2005)).

48 42 U.S.C. § 1997e(a).

49 Clemens v. Warden SCI Greene, 290 F. Supp. 3d 388, 393 (E.D. Pa. 2018).

°° Id. (quoting Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004)).

5! Td. (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)).

Id. (concluding inmate Mr. Clemens “pled facts precluding [d]efendants’ affirmative defense of

exhaustion” where Mr. Clemens filed the appropriate grievance forms but the prison did not

process those forms); see Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (prison officials

denied prisoner the necessary grievance forms); see also McKinney v. Guthrie, 309 F. App’x 586,

588 (3d Cir. 2009) (prison officials “thwarted his efforts to pursue administrative remedies”).

53 Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (quoting Camp v. Brennan, 219 F.3d 279,

281 (d Cir. 2000)); see Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (laying out three

circumstances where “an administrative remedy, though officially on the books, is not capable of

use to obtain relief,” excepting an inmate’s duty to exhaust “available” remedies).

54 Ross, 136 S. Ct. at 1859.

55 Id.; see Smith v. Merline, 719 F. Supp. 2d 438, 447 (D.N.J. 2010) (illustrating how a court should

not dismiss a prisoner’s civil rights claims for failure to exhaust administrative remedies and

providing several examples of circumstances permitting suit even where remedies are not

technically “exhausted”’).

26

6 ECF Doc. No. 11 at § 27.

7 Id. at 931.

8 Id. at 739.

°° Id. at 4 40, Ex. A.

69 Td. at 41-42, Ex. B, Ex. C.

61 Southerland v. County of Hudson, 598 F. App’x 62, 64 (3d Cir. 2015).

Higgins v. Breyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Department of Veteran

Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)).

83 See Hall-Wadley, 386 F. Supp. 3d at 516-17; Banks v. Lackawanna County Commissioners, 931

F, Supp. 359, 362 (M.D. Pa. 1996) (“As a pretrial detainee Banks’ claim is properly construed as

a purported violation of the right of due process under the Fourteenth Amendment to the United

States Constitution rather than as an alleged violation of the prohibition against cruel and unusual

punishment found in the Eighth Amendment.”’).

64 Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005).

65 City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983).

6° Hubbard, 399 F.3d at 167 n.23; see Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000)

(“{P]retrial detainees are entitled to at least as much protection as convicted prisoners, so the

protections of the Eighth Amendment would seem to establish a floor of sorts.”) (quoting Kost v.

Kozakiewicz, 1 F.3d 176, 188 n.10 (3d Cir. 1993)).

Bell v. Wolfish, 441 U.S. 520, 535-36 (1979); Paulino v. Burlington County Jail, 438 F. App’x

106, 109 (3d Cir. 2011) (‘Under the Due Process Clause, ‘the proper inquiry is whether [the

challenged] conditions amount to punishment of the detainee.’”) (quoting Bell, 441 U.S. at 535).

88 Bistrian v. Levi, 696 F.3d 352, 372-73 (3d Cir. 2012) (citing Bell, 441 U.S. at 540).

Bell, 441 U.S. at 538-39.

70 Td.; Hubbard, 399 F.3d at 159-60.

| ED. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019).

Id. at 306-07 (“This Circuit has long viewed the legal rights of an immigration detainee to be

analogous to those of a pretrial detainee”).

27

3 Id. at 307 (citing Stevenson v. Carroll, 495 F.3d 62, 67 (3d Cir. 2007)). “Panels of this Circuit

have repeatedly held in unpublished decisions that an immigration detainee is the equivalent of a

pretrial detainee, and that a pretrial detainee’s constitutional claims are considered under the Due

Process Clause.” Jd. at n.3 (citing Adekoya v. Chertoff, 431 F. App’x 85, 88 (3d Cir. 2011); Contant

v. Sabol, 431 F. App’x 177, 178 (3d Cir. 2011); Foreman v. Lowe, 261 F. App’x 401, 403 (3d Cir.

2008); Harvey v. Chertoff, 263 F. App’x 188, 191 (3d Cir. 2008); Dahlan v. Department of

Homeland Security, 215 F. App’x 97, 100 (3d Cir. 2007)).

™ Sharkey, 928 F.3d at 307.

ECF Doc. No. 11 at § 21.

76 Id.

7 Id at 925.

78 Id. at § 26.

Id. at 4 24.

8° Sharkey, 928 F.3d at 307.

81 4leem-X v. Westcott, 347 F. App’x 731, 731 (3d Cir. 2009).

82 Cf Randall v. County of Berks, Pennsylvania, No. 14-5091, 2015 WL 5027542, at *13 (E.D. Pa.

Aug. 24, 2015) (“Even absent probable cause, a strip search of a pretrial detainee does not violate

the Fourth [and Fourteenth] Amendment{[s] provided that the search is not unreasonable... .

Courts [testing reasonableness] must consider the scope of that particular intrusion, the manner in

which it is conducted, the justification for initiating it, and the place in which it is conducted.”).

83 Hunter v. Prisbe, 984 F. Supp. 2d 345, 353 (M.D. Pa. 2013) (citing Monell v. Department of

Social Services of the City of New York, 436 U.S. 658, 695 (1978)).

84 Stevens v. Borough, No. 11-7216, 2013 WL 2292047, at *2 (E.D. Pa. May 23, 2013) (quoting

Monell, 436 U.S. at 690-91).

85 Td at *3 (quoting Kelly v. Borough of Carlisle, 622 F.3d 248, 263, (3d Cir. 2010)).

86 Stevens, 2013 WL 2292047, at *3 (quoting Monell, 436 U.S. at 694).

87 Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).

88 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (internal citations omitted).

8° Daniels v. Morris County Correctional Facility, No. 06-2460, 2006 WL 2524177, at *2, *4

(D.N.J. Aug. 30, 2006).

28

0 Id. at *4.

9! Id; see also Abuhouran v. Acker, No. 04-2265, 2005 WL 1532496, at *4 (E.D. Pa. June 29,

2005) (“Despite defendants’ arguments to the contrary, plaintiffs allegations that [the supervising

prison officials] had knowledge of and acquiesced in plaintiff's alleged ethnic harassment by

{another prison official] are sufficient to sustain a complaint at this stage in the proceedings.”).

°2 Wright v. City of Philadelphia, 229 F. Supp. 3d 332, 336 (E.D. Pa. 2017); ef Thomas v. City of

Philadelphia, 290 F. Supp. 3d 371, 387 (E.D. Pa. 2018) (dismissing a Monell claim where the

plaintiff did not sufficiently allege a municipal custom or policy as he alleged only one other

instance of the defendants engaging in the same violative conduct).

3 Wright, 229 F. Supp. 3d at 337.

°4 McTernan vy. City of York, Pennsylvania, 564 F.3d 636, 659 (3d Cir. 2009).

°5 ECF Doc. No. 11 at ¥ 46.

© Id. at § 30.

97 See McTernan, 564 F.3d at 658-59 (“To satisfy the pleading standard, [plaintiff] must identify

a custom or policy, and specify what exactly that custom or policy was.”).

°8 Edwards v. Northampton County, 663 F. App’x 132, 135 (3d Cir. 2016) (finding no reason to

apply a different standard in a case involving a pretrial detainee’s conditions of confinement, as

“Tthey] have applied the ‘deliberate indifference’ standard both in cases involving prisoners. . .

and pretrial detainees”); see Colburn v. Upper Darby Township, 946 F.2d 1017, 1024 (3d Cir.

1991).

°° Burton v. Kindle, 401 F. App’x 635, 638 (3d Cir. 2010) (per curiam).

100 Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001); see also Bistrian, 696 F.3d at 367

(“It is not sufficient [] the official should have known of the risk. A plaintiff can, however, prove

an official’s actual knowledge of a substantial risk to his safety [through circumstantial evidence].”)

(internal citations omitted).

10! Sharkey, 2017 WL 2126322, at *4; see, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994)

(concluding “a prison official cannot be found liable under the Eighth Amendment for denying an

inmate humane conditions of confinement unless the official knows of and disregards an excessive

risk to inmate health or safety ....”).

102 Burton, 401 F. App’x at 637-38 (“In assessing where on the state-of-mind continuum

misconduct must fall to establish a [section] 1983 claim, we have settled on ‘deliberate indifference’

{] in cases involving prisoners .. . .”).

103 Sharkey, 2017 WL 2126322, at *6-7.

29

104 Td at *7.

105 Bistrian, 696 F.3d at 368-71.

106 ECF Doc. No. 11 at ¥ 46.

107 Td

108 Td. at § 40, Ex. A.

109 Td. at 30, 40, Ex. A.

N0 Td. at § 27.

111 Td

"2 Tq at 4 29.

113 Td at § 27.

114 Id

NS Td. at If 34-35.

16 Brown v. Hamilton Police Department, No. 13-260, 2013 WL 3189040, at *2 (D.N.J. June 21,

2013); see Willson v. Yerke, No. 10-1376, 2013 WL 6835405, at *8 (M.D. Pa. Dec. 23,

2013), aff'd, 604 F. App’x 149 (3d Cir. 2015) (‘[Ml]ere gestures or verbal harassment do not give

rise to a substantive due process claim”); see also Abuhouran, 2005 WL 1532496, at *4 (“It is well

established . . . verbal harassment, or threats standing alone do not state a constitutional claim”).

17 4leem-X, 347 F. App’x at 731.

18 ECF Doc. No. 11 at § 31-32.

119 See, e.g., Rodriguez v. Baeli, No. 10-4242, 2011 WL 42998, at *2 (D.N.J. Jan. 5, 2011) (“Since

the [p]laintiff’s allegations that Gonzalez laughed in the [p]laintiff’s presence are not cognizable

under [section] 1983, . . . [p]laintiff’s claims will be dismissed for failure to state a claim upon

which relief may be granted.”); Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979) (dismissing

prisoner’s claim where prison guard laughed at him and threatened to hang him).

120 Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000).

121 See Brown v. Hannah, 850 F. Supp. 2d 471, 476 (M.D. Pa. 2012) (“If there is no protected

liberty or property interest, it is unnecessary to analyze what procedures were followed when an

alleged deprivation of an interest occurred.”).

30

122 Sandin v. Connor, 515 U.S. 472, 484 (1995).

123 Shoats, 213 F.3d at 143; cf Eddowes v. Director, State Department of Corrections, et al., No.

18-125, 2018 WL 2248751, at *9 (M.D. Pa. Apr. 9, 2018) (“More fundamentally, {inmate’s claim

prison officials failed to respond to his grievances] fails as a matter of law “because there is no

apparent obligation for prison officials to investigate prison grievances.’ Therefore, the alleged

failure to adequately respond to these grievances does not support a free-standing constitutional

tort claim, and this claim should be dismissed.” (quoting Paluch v. Secretary of Pennsylvania

Department of Corrections, 442 F. App’x 690, 695 (3d Cir. 2011)).

!24 Booth v. King, 346 F. Supp. 2d 751, 761 (E.D. Pa. 2004).

Glenn v. DelBalso, 599 F. App’x 457, 459 (3d Cir. 2015); Booth, 346 F. Supp. 2d at 761

(“Prisoners are not constitutionally entitled to a grievance procedure and the state creation of such

a procedure does not create a liberty interest requiring procedural protections under the Fourteenth

Amendment.”).

126 Burnside v. Moser, 138 F. App’x 414, 416 (3d Cir. 2005).

127 Id; see also Dickens v. Taylor, 464 F. Supp. 2d 341, 353 (D. Del. 2006) (“Plaintiff cannot

maintain constitutional claims based upon inadequate grievances system,” grievance denial, or

failure to address his grievances).

!28 ECF Doc. No. 11 at 38.

129 Td. at 947.

130 Bell Atlantic Corp., 550 U.S. at 555; see Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting

courts “are not bound to accept as true a legal conclusion couched as a factual allegation” on a

motion to dismiss).

'3! Bell Atlantic Corp., 550 U.S. at 555.

'32 Thomas v. U.S. Airways, No. 13-6121, 2014 WL 1910245, at *3 (E.D. Pa. May 13, 2014)

(quoting Flanagan y. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992)).

'33 RCF Doc. No. 11 at § 47.

134 Id

135 See, e.g., Strategic Environmental Partners, LLC y. Bucco, 184 F. Supp. 3d 108, 132-33 (D.N.J.

2016) (dismissing plaintiff's section 1983 conspiracy claim under Rule 12(b)(6) where plaintiffs

alleged “[e]ach [d]efendant, in concert and conspiracy with the other [d]efendants, intentionally

violated the civil rights of the [p]laintiffs,” as “simply alleging ‘agreement’ without facts from

which that agreement can be inferred is insufficient.”) (quoting Martinez v. New Jersey, No. 11-

2223, 2012 WL 2116407, at *6 (D.N.J. June 11, 2012)); Thomas v. U.S. Airways, No. 13-6121,

31

2014 WL 1910245, at *3 (E.D. Pa. May 13, 2014) (“Merely pleading that U.S. Airways employees

‘made statements that they knew to be false and about [plaintiff] . . . between themselves, to

Philadelphia Police Officers, and to other presently unknown persons,’ is insufficient to allege an

agreement or concerted action between parties and cannot permit plaintiff's claim to survive

defendants’ motion.”) (internal citation omitted); Rodriguez v. Widener University, No. 13-1336,

2013 WL 3009736, at *4 (E.D. Pa. June 17, 2013) (finding plaintiff failed to plausibly plead the

conspiracy element of his section 1983 claim where “there [was] nothing . . . in the [c]omplaint

from which a conspiratorial agreement or concerted action [could] be inferred to plausibly plead a

constitutional conspiracy.”’).

136 ECF Doc. No. 11 at 945.

137 White v. Ottinger, 442 F. Supp. 2d 236, 251 (E.D. Pa. 2006) (citing Hoy v. Angelone, 691 A.2d

476, 482 (Pa. Super. 1997)).

138 Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (quoting Buczek v. First National Bank of

Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987)).

139 Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997).

140 Stock v. Braswell, No. 16-6412, 2017 WL 3279059, at *8 (E.D. Pa. Aug. 2, 2017) (quoting Doe

v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25, 27 (Pa. Super.

2000)).

141 Stock, 2017 WL 3279059, at *8 (quoting Doe, 745 A.2d at 28).

32