# GILLMORE v. LAMAS

> District Court, E.D. Pennsylvania · December 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10402287

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** December 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10402287

## How later opinions describe it (automated extraction)

- clarifying that just because an employee’s unauthorized conduct may be within the scope if it is “incidental” to some authorized conduct, this does not serve as a “catchall intended to give legal cover to all manner of unsanctioned behavior.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARSHALL GILLMORE :
Plaintiff,

v. :

MARIROSA LAMAS, Superintendent, SCI
Chester; LORIE EASON, Security Captain, :
SCI Chester; DAVID FRIEND, Lieutenant, CIVIL ACTION
SCI Chester; NEECE, Captain, SCI Chester; NO. 19-5571
B. ADAMS, Lieutenant, SCI Chester; :
A. WHITE, Lieutenant, SCI Chester;
C. KAISER, Lieutenant, SCI Chester;
K. KAISER, Lieutenant, SCI Chester; :
C. DUNLAP, Sergeant, SCI Chester;
B. GREEN, Registered Nurse, SCI Chester; and,
P. BOCCO, Lieutenant, SCI Chester :
Defendants.

MEMORANDUM
JONES, II J. December 10, 2021
I. INTRODUCTION
Plaintiff Marshall Gillmore, a prisoner incarcerated at the State Correctional Institution in
Chester, Pennsylvania (SCI Chester), filed a Second Amended Complaint alleging claims
pursuant to 42 U.S.C. §1983 and Pennsylvania state law. Specifically, Plaintiff is suing eleven
prison officials on the basis of treatment he received while housed in a dry cell for a four-day
period.1 Defendants—except for Nurse Green—filed the instant Motion to Dismiss Counts II

1 Plaintiff’s claims are for Conditions of Confinement (Count I), Excessive Force (Count II),
Deliberate Indifference to Serious Medical Needs (Count III), Failure to Intervene (Count IV),
Supervisory Liability (Count V), Retaliation (Count VI), and Intentional Infliction of Emotional
Distress (Count VII).
through V and VII under Federal Rule of Civil Procedure 12(b)(6).2 For the reasons set forth
below, Defendants’ Motion to Dismiss Counts III and VII shall be granted; the Motion to
Dismiss Counts II, IV and V shall be denied; and, the Motion to Dismiss Plaintiff’s request for
declaratory judgment shall be granted.

II. BACKGROUND
Plaintiff alleges that while housed as an inmate at SCI Chester on August 4, 2019, two
correctional officers—who are not named as Defendants—searched him for contraband. (Sec.
Am. Compl. ¶ 22.) Although no illegal items were found, Plaintiff was subsequently strip-
searched, handcuffed, and underwent an x-ray scan. (Sec. Am. Compl. ¶¶ 24-30.) Neither the
strip-search nor the x-ray revealed any contraband; however, Defendant Lorie Eason ordered
Defendant David Friend to transport Plaintiff to a dry cell.3 (Sec. Am. Compl. ¶ 38.) Plaintiff’s

placement in the dry cell was documented by Defendant C. Kaiser on a DC-141 form (report of
misconduct), which was then reviewed, approved, and signed by Defendant Neece. (Sec. Am.
Compl. ¶¶ 41-43.)

2 In the cover page to their motion, Moving Defendants refer to Fed.R.Civ.P. 12(b)(1) as a basis
for dismissal. (ECF No. 27 at 2.) However, their Brief is devoid of any discussion regarding this
issue. Accordingly, this Court shall only address Movants’ 12(b)(6) claims.
3 As explained by the United States Court of Appeals for the Third Circuit:
A “dry cell” is a cell that lacks water—all standing water has been drained from the
toilet, the room’s water supply has been shut off, and the sink and toilet have been capped
to prevent inmate access. An inmate may be placed in a dry cell when prison staff have
observed the inmate attempt to ingest an item of contraband or they learn that the inmate
is attempting to introduce contraband into the prison. Dry cells are used to closely
observe the inmate until natural processes allow for the ingested contraband to be
retrieved. To this end, dry cells lack all linens and moveable items other than a mattress,
inmates’ clothes are exchanged for a simple smock, and their movements are carefully
controlled to prevent them from concealing or disposing of any retrievable contraband.
Thomas v. Tice, 948 F.3d 133, 137 (3d Cir. 2020).
Plaintiff was held in the dry cell for over four days. (Sec. Am. Compl. ¶ 63.) He describes
that he was forced to wear a paper-thin smock and was restrained with shackles on his ankles and
hands. (Sec. Am. Compl. ¶ 54.) Plaintiff alleges he was forced to urinate into a plastic container
and defecate into a pan while squatting. (Sec. Am. Compl. ¶ 65.) Officers would then search
through his feces but never found contraband at any point during his confinement. (Sec. Am.

Compl. ¶¶ 66-68.) Plaintiff alleges the dry cell smelled strongly of urine and feces, and that the
room was stained with what appeared to be bodily fluids and mold. (Sec. Am. Compl. ¶¶ 55-57.)
Plaintiff reports the dry cell was so cold that it left him shivering, and he became sleep deprived
because the lights were never turned off. (Sec. Am. Compl. ¶¶ 61-64.) Plaintiff also alleges he
was not permitted to wash himself or otherwise engage in any form of personal hygiene. (Sec.
Am. Compl. ¶¶ 69-71.)

Plaintiff contends that over the course of the four days he spent in the dry cell,
Defendants Friend, Adams, White, K. Kaiser, Dunlap, and Green each entered his cell multiple
times but did nothing to improve his living conditions. (Sec. Am. Compl. ¶ 76.) During these
encounters, Plaintiff told the aforementioned corrections officials about the pain he was
experiencing from the shackles and alleges he requested that changes be made. (Sec. Am.
Compl. ¶¶ 78-79.) Plaintiff was periodically permitted to engage in “range and motion;” ten-
second intervals where his restraints were removed. (Sec. Am. Compl. ¶ 82.) On one such
occasion, Plaintiff reports Nurse Green observed that Plaintiff’s feet were swollen, he was in
excruciating pain, and he was shivering from the cold. (Sec. Am. Compl. ¶ 88.)
On August 9, 2019, Plaintiff was transported to the Restricted Housing Unit (“RHU”)

and was again scanned for contraband. (Sec. Am. Compl. ¶ 102.) The scan did not reveal the
presence of contraband. (Sec. Am. Compl. ¶ 107.) On August 10, 2019, Defendant Green visited
Plaintiff in the RHU, at which point Plaintiff reported to her that his thumbs were numb and his
back ached badly. (Sec. Am. Compl. ¶¶ 112-13.)
Plaintiff alleges Defendants caused lasting harm by exposing him to the conditions of the
dry cell for several days. In particular, Plaintiff reports waking up in the middle of the night with
cold sweats, experiencing nightmares, and having a general fear of going to sleep at night. (Sec.

Am. Compl. ¶¶ 117-18.) A prison mental health professional told Plaintiff he was exhibiting
symptoms of Post-Traumatic Stress Syndrome (PTSD), and prescribed a medication called
Minipress for the symptoms. (Sec. Am. Compl. ¶¶ 119-21.) Plaintiff further claims he still
experiences thumb numbness and back pain. (Sec. Am. Compl. ¶¶ 125-28.)
Lastly, Plaintiff alleges he faced retaliation from Defendants Bocco and Eason because
he filed numerous grievances between August and September 2019 regarding his confinement in
the dry cell. (Sec. Am. Compl. ¶ 149.) In particular, on November 9, 2019, while he was
retrieving a legal aid book from a fellow inmate, Plaintiff alleges Defendant Bocco forced him to
strip naked in front of the other prisoner and then proceeded to direct sexual gestures and

comments towards Plaintiff. (Sec. Am. Compl. ¶¶ 152-59.) On February 20, 2020, Defendant
Eason confronted Plaintiff in the prison yard about his pending lawsuit against her and allegedly
threatened to transfer him to another prison—further away from his family—if he continued to
pursue the lawsuit. (Sec. Am. Compl. ¶¶ 166-68.)
III. STANDARD OF REVIEW
When reviewing a Rule 12(b)(6) motion, district courts must first separate legal
conclusions from factual allegations. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Legal conclusions should be
discarded, and well-pled facts given the deference of truth. Id. at 210-211. Courts must then
determine whether the well-pleaded facts state a “plausible claim for relief.” Id. at 211.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, [will] not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 556 (2007)). “In other words, a complaint must do more than allege
the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips, 515 F.3d at 231).
IV. DISCUSSION
Plaintiff raises constitutional claims pursuant to 28 U.S.C. § 1983 based on his placement
in the dry cell, the conditions in the dry cell, the manner in which he was restrained, the denial of
medical care while he was in the dry cell, the failure of certain Defendants to respond to his
plight, the responses to his grievances, and alleged retaliation in various forms. “To state a claim
under § 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.” West v. Atkins, 487 U.S. 42, 48 (1988). “A defendant in a civil
rights action must have personal involvement in the alleged wrongs” for liability to attach under
§ 1983. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Iqbal, 556 U.S.
at 676 (explaining that, “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a
plaintiff must plead that each Government-official defendant, through the official’ s own
individual actions, has violated the Constitution.”).
A. Excessive Force
Plaintiff brings an excessive force claim against all Defendants except Lamas and Bocco
for the manner in which he was restrained while confined in the dry cell. (Sec. Am. Compl. ¶
177.) Defendants C. Kaiser and Neece seek dismissal from the excessive force claim, arguing
that because neither officer physically applied restraints to Plaintiff, neither had the personal

involvement required to sustain a §1983 claim. (Defs.’ Mot. Dismiss 12.)
“After conviction, the Eighth Amendment serves as the primary source of substantive
protection in cases where an inmate challenges a prison official’s use of force as excessive and
unjustified.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000). In the excessive force context,
“the central question is ‘whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.’” Id. (quoting Hudson v. McMillian,
503 U.S. 1, 7 (1992)). It is well settled that . . .
In determining whether a correctional officer has used excessive force in violation
of the Eighth Amendment, courts look to several factors including: (1) “the need
for the application of force”; (2) “the relationship between the need and the
amount of force that was used”; (3) “the extent of injury inflicted”; (4) “the extent
of the threat to the safety of staff and inmates, as reasonably perceived by
responsible officials on the basis of the facts known to them”; and (5) “any efforts
made to temper the severity of a forceful response.”

Id. (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)).
With that said, “[a] defendant in a civil rights action 'must have personal involvement in
the alleged wrongs to be liable,’ and ‘cannot be held responsible for a constitutional violation
which he or she neither participated in nor approved.’” Baraka v. McGreevey, 481 F.3d 187, 210
(3d Cir. 2007) (quoting Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003); C.H. ex rel. Z.H. v.
Oliva, 226 F.3d 198, 201 (3d Cir. 2000)). Although personal involvement is clearly established
through participation, it can also be shown through allegations of “actual knowledge and
acquiescence,” when made with “appropriate particularity.” Rode, 845 F.2d at 1207-08. In the
civil rights context, a Complaint is sufficiently specific when it provides information such as the
offending conduct, time, place, and identity of the responsible parties. See Hall v. Pa. State
Police, 570 F.2d 86, 89 (3d Cir. 1978).
Here, Plaintiff has sufficiently alleged Defendants C. Kaiser and Neece had knowledge

of, and acquiesced to, the purported use of excessive force. As a Lieutenant, Defendant C. Kaiser
was necessarily aware of the dry cell policy implemented at SCI Chester. Regardless, on the
afternoon of August 5, 2019, without any information regarding the existence of contraband on
or in Plaintiff, said Defendant completed paperwork for Plaintiff to be transferred to a dry cell.
(Sec. Am. Compl. ¶¶ 22, 41-42.) Similarly, on that same day, Defendant Neece reviewed and
approved said paperwork, despite possessing knowledge that neither the strip search nor the body
scanner had revealed the existence of any contraband. (Sec. Am. Compl. ¶¶ 22, 43.) Plaintiff
concludes that these facts, when combined with these Defendants’ knowledge of the dry cell
policies and practices at SCI Chester, raise “the obvious inference” that C. Kaiser and Neece

knew he would be shackled in a manner that constitutes excessive force. (Pl.’s Mot. Resp. 21.)
This Court agrees. Accordingly, Defendants’ Motion to Dismiss Count II against Defendants
Neece and C. Kaiser shall be denied.
B. Deliberate Indifference to Serious Medical Needs
Plaintiff alleges that all Defendants except Lamas and Bocco were deliberately
indifferent to three specific medical needs: his bipolar disorder, the physical pain from his
restraints, and the psychological harm resulting from his confinement in the dry cell. (Sec. Am.
Compl. ¶¶ 179-80.) All Defendants named in Count III, except for Nurse Green,4 move to be

4 Eason, Friend, Neece, Adams, White, C. Kaiser, K. Kaiser, and Dunlap.
dismissed from the deliberate indifference to serious medical needs claim. (Defs.’ Mot. Dismiss
11.)
To state a constitutional claim based on a failure to provide medical treatment, a prisoner
must allege facts indicating that prison officials were deliberately indifferent to his serious
medical needs. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). “A plaintiff . . . must show

that (1) he had a serious medical need, (2) defendants were deliberately indifferent to that need,
and (3) the deliberate indifference caused harm or physical injury to the plaintiff.” DeJesus v.
Delaware through Delaware Dep’t Corr., 833 F. App’x 936, 940 (3d Cir. 2020) (footnotes
omitted). “A medical need is serious . . . if it is one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987) (internal quotations omitted). Deliberate indifference has been
found “where the prison official (1) knows of a prisoner’s need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-

medical reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Plaintiff herein has sufficiently alleged his bipolar disorder constituted a serious medical
need. Plaintiff alleged that he was diagnosed with Unspecified Bipolar Disorder and ADHD prior
to entering the DOC. (Sec. Am. Compl. ¶ 18.) Further, he was prescribed the medication
Trazodone as treatment, which he was taking regularly prior to his dry cell confinement (Sec.
Am. Compl. ¶ 21.) Nevertheless, Plaintiff has failed to provide factual assertions showing the
moving Defendants were deliberately indifferent. Plaintiff asserted he did not receive Trazodone,
or any other medication, during the entirety of his four-day confinement period in the dry cell.
(Sec. Am. Compl. ¶ 92.) However, he did not establish that Defendants Eason, Friend, Neece, C.
Kaiser, K. Kaiser, or Dunlap knew he was diagnosed with bipolar disorder or that he required
medication. Plaintiff does allege that Defendants Adams and White knew he needed medication
based on seeing him in the medication line prior to his transfer to the dry cell. (Sec. Am. Compl.
¶ 94.) Even if that was true, Plaintiff failed to allege that they intentionally refused, delayed, or

prevented him from receiving his medication. Therefore, Plaintiff’s deliberate indifference claim
regarding his bipolar disorder fails.
Next, although Plaintiff has sufficiently alleged the pain from his restraints constituted a
serious medical need, he failed to adequately allege Defendants were deliberately indifferent to
that need. Because this issue did not involve a diagnosis, Plaintiff’s pain must have been so
obvious that even a lay person could easily recognize that he needed the attention of a physician.
Plaintiff alleged that he was restrained in a visibly painful way: his legs were shackled together,
a metal chain was wrapped around his waist with the lock positioned into his back, and his hands
were handcuffed and zip tied back-to-back. (Sec. Am. Compl. ¶¶ 48-53.) He also alleged that he

told Defendants Friend, Adams, White, K. Kaiser and Dunlap that the shackles were causing him
pain. (Sec. Am. Compl. ¶ 79.) However, Plaintiff does not allege that any of the defendants
moving for dismissal of this claim personally observed any obvious physical effects from the
shackling.5
Although it is plausible that a factfinder could conclude Plaintiff’s pain constituted a
serious medical need, he has not properly alleged that the corrections officers intentionally

5 Plaintiff only alleges that Nurse Green saw that his feet were swollen from the shackles. (Sec.
Am. Compl. ¶ 88). By the time Nurse Green approached Plaintiff to photograph his feet, the
swelling had already subsided. (Sec. Am. Compl. ¶ 112.) Again, Nurse Green is not seeking
dismissal of this claim.
refused, delayed, or prevented him from receiving medical treatment. Plaintiff did not request
that his shackles be removed, nor did he request treatment for his alleged injuries. On the
contrary, Plaintiff concedes his restraints were removed periodically for “range and motion”
exercises. (Sec. Am. Compl. ¶ 82.) Accordingly, Plaintiff’s deliberate indifference claim
regarding his pain from the shackles is deficient.

Finally, Plaintiff asserts Defendants were deliberately indifferent to the psychological
harm he endured while confined in the dry cell. Although Plaintiff was diagnosed with
symptoms of PTSD by a prison mental health professional, he only started exhibiting these
symptoms after his release from the RHU. (Sec. Am. Compl. ¶¶ 117-19.) Plaintiff concedes that
at that point in time, he received medication to treat his PTSD symptoms. (Sec. Am. Compl. ¶¶
121, 124.) Plaintiff does not allege that he requested, or was denied, any medical assistance for
his mental health while confined in the dry cell. Thus, Plaintiff’s deliberate indifference claim for
psychological harm also fails.
Because Plaintiff has failed to plead a valid claim for deliberate indifference to serious

medical need, Defendants’ motion to dismiss Claim III shall be granted on behalf of Defendants
Eason, Friend, Neece, Adams, White, C. Kaiser, K. Kaiser and Dunlap.
C. Failure to Intervene
Defendants (with the exception of Lamas and Bocco) next seek dismissal of Plaintiff’s
cause of action for failure to intervene. (Sec. Am. Compl. ¶¶ 182-83.) Corrections officers can
be liable for failing to intervene when a constitutional violation takes place in their presence or
within their knowledge and they have a “realistic and reasonable opportunity to intervene.” Smith
v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002). This duty to intervene does not depend on an
officer’s rank. Id. at 651. Therefore, officers—including lieutenants and sergeants following the
orders of the Superintendent—cannot escape liability by relying on their inferior rank, and senior
officers may be responsible for the actions of officers acting under their supervision if they
“knew of and acquiesced” to such treatment. Id. at 650-51 (quoting Baker v. Monroe Twp., 50
F.3d 1186, 1193 (3d Cir. 1995)). To that end,
The approving silence emanating from the officer who stands by and watches as
others unleash an unjustified assault contributes to the actual use of excessive
force, and we cannot ignore the tacit support such silence lends to those who are
actually striking the blows. Such silence is an endorsement of the constitutional
violation resulting from the illegal use of force. It is incompatible with the
restrictions imposed under the Eighth Amendment, and is therefore unacceptable.
We will not immunize such conduct by suggesting that an officer can silently
contribute to such a constitutional violation and escape responsibility for it. The
restriction on cruel and unusual punishment contained in the Eighth Amendment
reaches non-intervention just as readily as it reaches the more demonstrable
brutality of those who unjustifiably and excessively employ fists, boots or clubs.

Although our case law refers to police officers, not corrections officers, this does
not change our analysis. Both are law enforcement officers, both are sworn to
uphold the law, and both are authorized to use force (even deadly force) toward
that end. We are, of course, aware of the obvious security concerns inside the
close confines of a prison. However, that is simply one factor that must be
considered in determining if a particular application of force is reasonable. It does
not suggest a different Eighth Amendment inquiry for corrections officers as
opposed to police officers. The law does not allow either to condone or cover up
the use of excessive force. Similarly, neither can escape liability by turning either
a blind eye or deaf ear to the illegal conduct of their colleagues.

Smith, 293 F.3d at 651-652.
As previously discussed, this Court has determined valid constitutional violations—
namely, conditions of confinement6 and excessive force—are plausible in this case. (ECF No.
15 at 14-18.) In view of the facts sets forth in Plaintiff’s Second Amended Complaint, this Court
further finds Lieutenants Friend, Adams, White, K. Kaiser and Sergeant Dunlap had a reasonable

6 This Court previously determined Plaintiff’s Conditions of Confinement claim was sufficient,
therefore Defendants do not currently seek dismissal of same (Count I of Second Amended
Complaint) for purposes of the instant Motion.
opportunity to intervene and failed to do so. Plaintiff alleges each of these defendants entered
Plaintiff’s dry cell multiple times while he was restrained by shackles. (Sec. Am. Compl. ¶ 76.)
When doing so, said officers had to cover their noses because of the foul odor in Plaintiff’s cell.
(Sec. Am. Compl. ¶ 77.) More importantly, over the course of four days, Plaintiff told each of
these officers the shackles were causing him pain. (Sec. Am. Compl. ¶ 79.) Yet, none of these

officers did anything to assist Plaintiff. (Sec. Am. Compl. ¶ 76.)7
Courts in this district have found that the mere allegation that an officer was present and
failed to act to prevent excessive force was sufficient to survive a motion to dismiss. See
Williams v. Whitaker, Civil Action No. 16-6379, 2020 U.S. Dist. LEXIS 42572, at *15-17 (E.D.
Pa. March 10, 2020) (finding corrections officer sitting in passenger seat of prisoner transport
vehicle had duty to intervene when the officer operating the vehicle was driving recklessly and
inmate was imploring him to not do so); Burk v. Budd, No. 18-04702, 2019 U.S. Dist. LEXIS
134238, at *14 (E.D. Pa. Aug. 9, 2019) (denying a motion to dismiss a failure to intervene claim
against two correctional officers because they were present while a third officer sexually abused

defendant inmate); Ferrara v. Delaware Cty., No. 18-CV-05157, 2019 U.S. Dist. LEXIS
104207, at *15 (E.D. Pa. June 21, 2019) (finding that a pretrial detainee had sufficiently stated a
claim against correctional officer defendants because they were present and stood idly by while
he was assaulted by another officer). In light of the facts set forth in Plaintiff’s Second Amended
Complaint, this Court finds Plaintiff has adequately pleaded claims of failure to intervene against
these five officers.

7 Plaintiff alleges Defendant Dunlap expressly acknowledged the dry cell procedures being
utilized against Plaintiff were not appropriate but did nothing in response. (Sec. Am. Compl. ¶¶
80-81.)
With respect to Plaintiff’s failure to intervene claims against Defendants Eason, C. Kaiser
and Neece, said individuals were responsible for ordering Plaintiff’s transfer to the dry cell,
completing the paperwork, and reviewing and approving the transfer. (Sec. Am. Compl. ¶¶ 38-
43.) As discussed above, when assessing a claim such as this, the court must remain mindful that
“[a] defendant in a civil rights action ‘must have personal involvement in the alleged wrongs to

be liable,’ and ‘cannot be held responsible for a constitutional violation which he or she neither
participated in nor approved.’” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (quoting
Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003); C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198,
201 (3d Cir. 2000)). Utilizing this standard, this Court finds that although Plaintiff has not
alleged these particular defendants ever entered Plaintiff’s dry cell or observed him in his
restraints, he has alleged they did initiate and approve Plaintiff’s transfer to the dry cell. As
trained officers of SCI Chester, these Defendants were necessarily aware of what that would
entail. Accordingly. Defendants’ motion to dismiss Claim IV shall be denied.
D. Supervisory Liability

Defendant Lamas seeks dismissal of Plaintiff’s supervisory liability claim on two bases:
(1) lack of merit; and, (2) law of the case doctrine. (Defs.’ Mot. Dismiss 8.) With respect to her
argument that Plaintiff’s claim lacks merit, this Court notes that two theories of supervisory
liability are potentially applicable in this case. First, “policymakers may be liable under § 1983 if
it is shown that such defendants, ‘with deliberate indifference to the consequences, established
and maintained a policy, practice or custom which directly caused [the] constitutional harm.’”
A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). “[T]he
plaintiff must identify a specific policy or practice that the supervisor failed to employ and show
that: (1) the existing policy or practice created an unreasonable risk of the Eighth Amendment
injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor
was indifferent to that risk; and (4) the injury resulted from the policy or practice.” Beers-Capitol
v. Whetzel, 256 F.3d 120, 134 (F. Cir. 2010) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she

“participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in his subordinate’s violations.” Id. (citing Baker v.
Monroe Twp., 50 F.3d 1186, 1190-91 (3rd Cir. 1995)).
Plaintiff herein has sufficiently alleged a supervisory claim against Defendant Lamas as a
policymaker. First, Plaintiff alleged Lamas was the highest ranking official at SCI Chester and
possessed oversight and operational responsibilities of the prison. (Sec. Am. Compl. ¶ 5.)
Further, Plaintiff alleged it was Lamas who established the SCI Chester dry cell policies and
practices, and that these policies and practices were divergent—in a harmful way—from the
generally accepted DOC procedures. (Sec. Am. Compl. ¶¶ 133-140.) As such, the dry cell

policies and practices carried out at SCI Chester created an unreasonable risk to inmates. (Sec.
Am. Compl. ¶¶ 129-139.) Plaintiff specifically alleged that DOC policy did not authorize
handcuffing hands back-to-back, the use of ankle shackles, zip ties, or waist chains. (Sec. Am.
Compl. ¶ 133.) Additionally, Plaintiff alleged the DOC policy did not allow dry cells to be
constantly illuminated, did not withhold personal hygiene supplies, and did not keep cells at cold
temperatures. (Sec. Am. Compl. ¶¶ 134-39.) Next, Plaintiff adequately pleaded facts showing
Defendant Lamas was aware of this unreasonable risk and was indifferent thereto. Again,
Defendant Lamas was the highest ranking official at SCI Chester at the time and possessed
oversight and operational responsibilities for the prison. (Sec. Am. Compl. ¶ 5.) The added harm
to an already highly punitive procedure demonstrates Lamas’ unreasonable indifference to the
risk. Finally, the injury sustained by Plaintiff was the alleged violation of his 8th Amendment
rights and resultant PTSD.
In addition to the foregoing, as Superintendent of the facility, Defendant Lamas clearly
had knowledge that her employees—Lieutenants Friend, Adams, White, K. Kaiser, and Sergeant

Dunlap—would enforce SCI Chester’s dry cell policy and by reason of same, acquiesced in her
subordinate’s violations. Given the facts asserted, Plaintiff has adequately pled a supervisory
claim against Lamas.
As an alternative argument in support of dismissal, Defendant Lamas argues the
supervisory claim is barred by the law of the case doctrine because this Court previously
dismissed all the claims against her and terminated her as a party to the case. (Mot. Dismiss 8;
ECF No. 16.) The law of the case doctrine stands for the proposition that “when a court decides
upon a rule of law, that decision should continue to govern the same issues in subsequent stages
in the same case.” Arizona v. California, 460 U.S. 605, 618 (1983) (emphasis added). The

purpose is to “maintain consistency and avoid reconsideration of matters once decided during the
course of a single continuing lawsuit.” Pub. Interest Research Grp. of New Jersey, Inc. v.
Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997) (quoting Federal Practice and
Procedure § 4478 at 788 (1981)). The doctrine governs the court’s discretion and therefore does
not “preclude [] reconsideration of previously decided issues in extraordinary circumstances such
as where: (1) new evidence is available; (2) a supervening new law has been announced; or (3)
the earlier decision was clearly erroneous and would create manifest injustice.” In re City of
Philadelphia Litig., 158 F.3d 711, 718 (3d Cir. 1998).
Contrary to Defendant Lamas’ argument, the supervisory liability claim against her has
not yet been decided by this Court. Plaintiff previously alleged Defendant Lamas violated his
First Amendment right to be free from retaliation by ignoring his grievances. (First Am. Compl.
¶¶ 59, 85.) In contrast, the Second Amended Complaint alleged Defendant Lamas violated
Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment. (Sec. Am.

Compl. ¶¶ 184-91.) Therefore, the court is not deciding the “same issue” and the doctrine does
not apply as a bar to Plaintiff’s claim. Assuming arguendo the law of the case doctrine was
applicable, Plaintiff offered new factual allegations that Lamas was responsible for the dry cell
policy at SCI Chester. (Sec. Am. Compl. ¶¶ 140-46). New evidence is one of the “extraordinary
exceptions” in which the Court may reconsider an issue. Accordingly, Defendants’ motion to
dismiss Count V shall be denied.
E. Sovereign Immunity and Intentional Infliction of Emotional Distress
Plaintiff alleges Defendant Bocco is liable for intentional infliction of emotional distress
(IIED) for ordering Plaintiff and another inmate strip down in front of each other and for then

making sexual gestures and comments about Plaintiff’s genitalia while condemning him for
filing a lawsuit against prison personnel. (Sec. Am. Compl. ¶¶ 154-59.) Plaintiff further alleged
he “felt violated and humiliated by Defendant Bocco’s words and actions and the fact that he was
made to strip in front of another prisoner.” (Sec. Am. Compl. ¶ 160.) Defendant Bocco moves
to dismiss Plaintiff’s state law claim for intentional infliction of emotional distress on the basis
that it is barred by sovereign immunity. (Defs.’ Mot. Dismiss 8.)
Under Pennsylvania Law, employees of the Commonwealth are protected by sovereign
immunity for acts performed within the scope of their duties. 1 Pa.C.S. § 2310. It is undisputed
that Defendant Bocco, as a corrections officer at SCI Chester, is an employee of the
Commonwealth. Therefore, the issue of liability becomes whether Plaintiff adequately alleged
that Defendant Bocco was acting outside the scope of his duties when he conducted the
November 9, 2019 strip search.
Pennsylvania courts have consistently applied the Restatement to determine whether
conduct is within the scope of employment for purposes of sovereign immunity. Justice v.

Lombardo, 208 A.3d 1057, 1068 (Pa. 2019). Conduct is within the scope if “(a) it is of the kind
he is employed to perform, (b) it occurs substantially within the authorized time and space limits,
(c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally
used by the servant against another, the force is not unexpected by the master.” Restatement
(Second) of Agency § 228(1) (1958). “We have long held that whether a particular act of an
employee is within the scope of his employment is ordinarily a question of fact for the jury. We
have explained that the only exception to this well-established rule is where neither the facts nor
the inferences to be drawn from them are in dispute.” Justice, 208 A.3d at 1068. “Moreover,
because sovereign immunity is an affirmative defense . . . the defendant carries the burden at trial

of proving that his conduct was within the scope of his employment.” Id.
Here, Defendant Bocco has failed to show that his conduct throughout the strip-search on
November 9, 2019, was entirely within the scope of his duties. Although performing strip-
searches is part of Bocco’s duties as a corrections officer, this fact alone does not entitle him to
sovereign immunity for the entirety of his conduct during the encounter with Plaintiff. See Id.
(clarifying that just because an employee’s unauthorized conduct may be within the scope if it is
“incidental” to some authorized conduct, this does not serve as a “catchall intended to give legal
cover to all manner of unsanctioned behavior.”). On the contrary, Plaintiff alleges facts that are
plausibly outside the scope of a corrections officer’s duties, including performing strip-searches
in front of other prisoners and making sexual gestures and comments. (Sec. Am. Compl. ¶¶ 152-
60.) Plaintiff further alleges these acts were motivated by Defendant Bocco’s personal motive to
retaliate against Plaintiff for filing a grievance against him. (Sec. Am. Compl. ¶¶ 149-51.)
Because the question of whether Defendant Bocco’s conduct is within the scope of his
employment is still very much in dispute, the defense of sovereign immunity does not extinguish

Plaintiff’s IIED claim.
Notwithstanding the foregoing, Plaintiff’s IIED claim is deficient on the merits. The
Pennsylvania Supreme Court has determined that a plaintiff asserting a claim of intentional
infliction of emotional distress (IIED) must “demonstrate intentional outrageous or extreme
conduct by the defendant, which causes severe emotional distress to the plaintiff.” Reeves v.
Middletown Athletic Ass’n, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004) (citing Hoy v. Angelone,
720 A.2d 745, 754 (Pa. Super. Ct. 1998)). Additionally, the plaintiff must suffer some physical
harm because of the defendant’s outrageous conduct. Id. at 1122-23. “‘Outrageous or extreme
conduct’ has been defined by the appellate courts of this Commonwealth as conduct that is ‘so

outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in civilized society.’” Id. at 1122, n. 5.
Courts must make the initial determination as to whether the defendant’s conduct is extreme
enough to allow the plaintiff to recover. Swisher v. Pitz, 868 A.2d 1228, 1231 (Pa. Super. Ct.
2005).
Plaintiff alleges Defendant Bocco forced him to strip in front of another incarcerated
person, in violation of standard practices within the DOC. (Sec. Am. Compl. ¶¶ 154-55).
Defendant Bocco was then alleged to have made sexual gestures and a lewd comment about the
Plaintiff’s genitalia (Sec. Am. Compl. ¶ 159.) Not only was this conduct intentional, but Plaintiff
also claims it was motivated by a desire for retaliation. (Sec. Am. Compl. ¶¶ 148-151.) Finally,
Plaintiff alleges that this incident left him feeling violated and humiliated. (Sec. Am. Compl. ¶
160). The bar for the level of extreme and outrageous conduct needed to sustain an IIED claim is
very high. Although Defendant’s conduct was certainly unprofessional and offensive, Plaintiff
has failed to allege a physical harm resulting from the incident. As such, Defendant Bocco’s

motion to dismiss Count VII shall be granted.
F. Declaratory Judgment
Finally, Defendants move to dismiss Plaintiff’s request for declaratory relief on the basis
that such a remedy is inappropriate based on the claims asserted. (Defs.’ Mot. Dismiss 12-13.)
“To have standing to sue for injunctive or declaratory relief, Plaintiff must be the person who
will be injured by the future action sought to be enjoined.” City of Los Angeles v. Lyons, 461
U.S. 95, 101 (1983). “The rule in federal cases is that an actual controversy must be extant at all
stages of review, not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S.
452, 459 n. 10 (1974). “A prisoner's transfer or release from prison moots his claims for

injunctive or declaratory relief since he is no longer subject to the conditions he alleges are
unconstitutional.” Doss v. Dauphin Cty. Prison, Civil No. 3:CV-14-0287, 552014 U.S. Dist.
LEXIS 156725, at *5 (M.D. Pa Nov. 5, 2014) (citing Abdul-Akbar v. Watson, 4 F.3d 195, 206-07
(3d Cir. 1993), Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir.1981), and Toney v. Bledsoe, 427 F.
App’x 74 (3d Cir.2011)). Here, Plaintiff’s request for declaratory judgment is moot because he
was released on parole on June 23, 2021.8 As such, he is no longer subject to the dry cell
confinement and retaliation he alleged was unconstitutional. Thus, declaratory relief is no longer
an appropriate remedy and Defendants’ motion to dismiss declaratory judgment shall be granted.

8 See http://inmatelocator.cor.pa.gov and http://vinelink.com.
G. Amendment
Amendments to a Complaint may be made as a matter of course, but only if the
amendment occurs within: “21 days after serving it, or . . . if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” FED. R. CIV. P. 15(a)(1).

Inasmuch as the conditions for amendment as a matter of course are absent here,
amendment is only permitted by leave of court or with the written consent of the opposing party.
FED. R. CIV. P. 15(a)(2). Leave must be freely granted “when justice so requires.” Id. However,
leave may be denied where undue delay, bad faith, dilatory motive, prejudice, or futility are
present. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). In examining futility, the legal
standards of Rule 12(b)(6) must be applied. Id.
In this case, Plaintiff has had an opportunity to file three Complaints; two of which were
drafted with the benefit of this Court’s rulings regarding pleading deficiencies. Plaintiff does not
currently seek leave to amend a third time. This Court finds that in light of its rulings herein and

the procedural posture of this case, any further attempt to amend would be futile and would
result in prejudice to Defendants. Accordingly, dismissal of Plaintiff’s claims shall be with
prejudice.
V. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss shall be granted as to
Counts III, VII and Plaintiff’s declaratory judgment claim, and shall be denied as to Counts II,
IV and V.

An appropriate Order follows.

BY THE COURT:

/s/ C Darnell Jones, II J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402287. Public record. Not legal advice.