ORTIZ v. AMAZON

F O R ITNH TEH EEA USTNEITREND D SITSATTREICST D OISFT PREICNTN SCYOLUVRATN IA

ANDY ORTIZ, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 21-CV-3104

:

LT. HORSEY, et al., :

Defendants. :

MEMORANDUM

PAPPERT, J. January 11, 2022

Andy Ortiz, a convicted prisoner1 incarcerated at the Curran-Fromhold

Correctional Facility (“CFCF”), commenced this civil action by filing a pro se Complaint

pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. (ECF No.

2.) He also filed a Motion for Leave to Proceed in Forma Pauperis and a prisoner

account statement. (ECF No. 1, 9.) Ortiz subsequently filed an Amended Complaint

(ECF No. 14) which serves as the operative pleading.2 For the following reasons, Ortiz

1 In his Complaint, Ortiz checked boxes indicating that he was a pretrial detainee and a

civilly committed detainee (ECF No. 2 at 4.) Review of the publicly available docket reflects

that on March 5, 2021, Ortiz pled guilty to rape of a child and related offenses.

Commonwealth v. Ortiz, No. CP-51-CR-1258-2020 (C.P. Phila.) On October 7, 2021, while

awaiting sentencing, Ortiz filed a motion to withdraw his guilty plea. That motion remains

pending. (Id.) Thus, Ortiz was a pretrial detainee on February 24, 2021, the date the

events giving rise to his claims are alleged to have occurred.

2 See Shahid v. Borough of Darby, 666 F. App'x 221, 223 n.2 (3d Cir. 2016) (per curiam)

(“Shahid’s amended complaint, however, superseded his initial complaint.” (citing W. Run

Student Hous. Assocs. LLC v. Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013)) ));

see also Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019), cert. denied, 140 S. Ct.

1611 (2020) (“In general, an amended pleading supersedes the original pleading and

renders the original pleading a nullity. Thus, the most recently filed amended complaint

becomes the operative pleading.”) (internal citations omitted); see also Argentina v. Gillette,

778 F. App’x 173, 175 n.3 (3d Cir. 2019) (holding that “liberal construction of a pro se

amended complaint does not mean accumulating allegations from superseded pleadings”).

will be granted leave to proceed in forma pauperis, and he will be permitted to proceed

on his excessive force claims against Correctional Officers Bernett and Amazon, his

failure to protect claims against Correctional Officers Petel, Tita, and Bailey, his

deliberate indifference claims against Lt. Horsey and Sgt. White, and his due process

claim against Major Martin. The remainder of his claims will be dismissed for failure

to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Because Ortiz’s official

capacity claim will be dismissed without prejudice, Ortiz will be granted the option of

filing an amended complaint to attempt to cure the defects discussed below or

proceeding only on the claims that pass statutory screening.

I3

Ortiz’s claims arise from events that allegedly occurred while he was

incarcerated at the Philadelphia Industrial Correctional Center (“PICC”). (ECF No. 14

at 4.) Ortiz names the following Defendants: Lt. Horsey, Sgt. White, Correctional

Officer (“CO”) Bernett, Major Martin, CO Amazon, CO Petel, CO Tita, CO Bailey,

Blanche Carney, the Philadelphia Department of Prisons, and the City of Philadelphia.

(Id. at 1, 4.)

Ortiz alleges that on February 24, 2021, CO Bernett wrapped both hands around

Ortiz’s neck and squeezed and shook him violently. (Id. at 1.) He is also alleged to

have pushed Ortiz to the ground. (Id.) Ortiz claims Bernett then pushed him around

in his cell, demanding that Ortiz spit on him. (Id. at 2.) At or about the same time, CO

Amazon allegedly punched Ortiz in the face 8 to 9 times while Ortiz was handcuffed

3 The allegations set forth in this Memorandum are taken from Ortiz’s Amended

Complaint. The Court adopts the pagination assigned to the Amended Complaint by the

EC/ECF docketing system.

and shackled. (Id.) Amazon also allegedly slammed Ortiz from door to door. Ortiz

claims he suffered lumps and swelling on his face and a nosebleed as a result of Bernett

and Amazon’s actions. (Id.) Ortiz claims that CO Petel watched Amazon assault Ortiz

and did not try to stop him. (Id. at 3.) He further alleges that COs Tita and Bailey

watched Bernett assault and choke Ortiz and did not try to stop him. (Id.)

Ortiz alleges that he told Lt. Horsey what COs Bernett and Amazon did and

requested medical attention. (Id.) Horsey allegedly ignored his request and prepared a

false disciplinary write up. (Id.) Ortiz also alleges that Sgt. White watched CO

Amazon slamming Ortiz from door to door and instructed Amazon to “take it easy.”

(Id.) When Amazon ignored him, Sgt. White removed Ortiz from Amazon. Sgt. White

also purportedly ignored Ortiz’s request for medical care. (Id.)

Ortiz claims that Major Martin assigned him to the Restricted Housing Unit

(“RHU”) where he spent a month without receiving a hearing. (Id. at 4)

Ortiz asserts a claim against Carney because he sent her a grievance and

received no response. He also names the Philadelphia Department of Prisons and the

City of Philadelphia as Defendants because they are alleged to run the jail. (Id.)

Based on the foregoing, Ortiz alleges excessive force claims against COs Bernett

and Amazon, failure to protect claims against COs Petel, Tita and Bailey, deliberate

indifference claims against Lt. Horsey and Sgt. White, a due process claim against

Major Martin, and what the Court understands to be claims against Carney in both her

individual and official capacities. Ortiz also contends that he was “taunted by guards,”

but does not identify which guards or provide any details. (Id. at 3.) He also claims

that he “lost [his] property, legal paperwork,” but does not identify which, if any, of the

Defendants was responsible for this. (Id.) He claims that unconstitutional policies and

hiring of unqualified guards and a failure to train existed, but does not identify a

responsible party. (Id.) He requests a declaration that the Defendants violated the

United States Constitution, and an award of compensatory and punitive damages. (Id.

at 4.)

II

Because Ortiz appears to be unable to pay the filing fee, the Court will grant him

leave to proceed in forma pauperis.4 Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires

the Court to dismiss the Complaint if it fails to state a claim. Whether a complaint fails

to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to

motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine

whether the complaint contains “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)

(quotations omitted). “At this early stage of the litigation,’ ‘[the Court will] accept the

facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the

plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . .

contains facts sufficient to state a plausible [] claim.’” Shorter v. United States, 12

F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir.

2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Ortiz is

proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F. 4th

182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45

(3d Cir. 2013)).

4 Because Ortiz is a prisoner, under the provisions of the Prison Litigation Reform Act, he

must still pay the full filing fee in installments.

III

The vehicle by which federal constitutional claims may be brought in federal

court is Section 1983 of Title 42 of the United States Code, which provides in part:

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

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983. “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

Ortiz requests a declaration that the Defendants have acted violently and in

violation of the United States Constitution. (ECF No. 14 at 4.) However,

“[d]eclaratory judgment is inappropriate solely to adjudicate past conduct,” and is also

not “meant simply to proclaim that one party is liable to another.” Corliss v. O’Brien,

200 F. App’x 80, 84 (3d Cir. 2006) (per curiam); see also Taggart v. Saltz, No. 20-3574,

2021 WL 1191628, at *2 (3d Cir. Mar. 30, 2021) (per curiam) (“A declaratory judgment

is available to define the legal rights of the parties, not to adjudicate past conduct

where there is no threat of continuing harm.”). Ortiz’s request for declaratory relief

must be dismissed accordingly.

B

Ortiz’s claim against the Philadelphia Department of Prisons is based on his

assertion that the Department is responsible for running PICC. As the United States

Court of Appeals for the Third Circuit has held, “the Philadelphia Prison System, [a]

department[ ] of the City of Philadelphia itself, [is] not [a] proper defendant[ ]” in an

action brought under § 1983. Russell v. City of Philadelphia, 428 Fed. App’x 174, 177

(3d Cir. 2011) (citing 53 Pa. Con. Stat. Ann. § 16257; Bey v. City of Philadelphia, 6 F.

Supp. 2d 422, 423 (E.D. Pa. 1998)); see also Durham v. Philadelphia Prison Sys., Civ. A.

No. 18-2113, 2018 WL 3105589, at *2 (E.D. Pa. June 25, 2018) (explaining that the

“Philadelphia Prison System is not an entity that is subject to suit separate from the

City of Philadelphia.”) (citing 53 Pa. Cons. Stat. Ann. § 16257). Because the

Philadelphia Department of Prisons is not considered a “person” for purposes of § 1983,

Durham, 2018 WL 3105589 at *2 (citing Peele v. Philadelphia Prison Sys., Civ. A. No.

12-4877, 2015 WL 1579214, at *2 (E.D. Pa. April 8, 2015)), Ortiz’s claim against it is

dismissed with prejudice.

C

Ortiz includes a claim against the City of Philadelphia and possibly an official

capacity claim for money damages against Defendant Carney, who is alleged to be the

Commissioner of Prisons. (ECF No. 14 at 4.) Claims against county and municipal

officials named in their official capacity are indistinguishable from claims against the

local government entities that employ them. See Kentucky v. Graham, 473 U.S. 159,

165-66 (1985) (“Official-capacity suits . . . ‘generally represent only another way of

pleading an action against an entity of which an officer is an agent.’”) (quoting Monell v.

N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978)). That is because “an official-

capacity suit is, in all respects other than name, to be treated as a suit against the

entity.” Kentucky, 473 U.S. at 166.

To state a claim for municipal liability, a plaintiff must allege that the

municipality’s policy or custom caused the alleged constitutional violation. See Monell,

436 U.S. at 694. “To satisfy the pleading standard, [the plaintiff] must . . . specify what

exactly that custom or policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d

Cir. 2009). “‘Policy is made when a decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action issues an official proclamation,

policy, or edict.’” Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)

(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)).

“‘Custom, on the other hand, can be proven by showing that a given course of conduct,

although not specifically endorsed or authorized by law, is so well-settled and

permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915 F.2d

845, 850 (3d Cir. 1990)).

For a custom to be the proximate cause of an injury, a plaintiff must establish

that the Defendant “had knowledge of similar unlawful conduct in the past, failed to

take precautions against future violations, and that its failure, at least in part, led to

[plaintiff’s] injury.” Id. (internal quotations and alterations omitted). Allegations that

simply paraphrase the standard for municipal liability, are too vague and generalized

to support a claim against the City. See, e.g., Szerensci v. Shimshock, Civ. A. No. 20-

1296, 2021 WL 4480172, at *7 (W.D. Pa. Sept. 30, 2021) (“Plaintiffs’ conclusory

allegation, which generally paraphrases the relevant standard, is insufficient

to state a claim for § 1983 liability under Monell.”) (citing cases).

A plaintiff may also state a basis for municipal liability by “alleging failure-to-

supervise, train, or discipline . . . [and alleging facts showing] that said failure amounts

to deliberate indifference to the constitutional rights of those affected.” Forrest v.

Parry, 930 F.3d 93, 106 (3d Cir. 2019). “This consists of a showing as to whether (1)

municipal policymakers know that employees will confront a particular situation, (2)

the situation involves a difficult choice or a history of employees mishandling, and (3)

the wrong choice by an employee will frequently cause deprivation of constitutional

rights.” Id.

As the Third Circuit stated,

If the alleged policy or custom at issue is a failure to train or supervise (as

it is here), the plaintiff must show that this failure “amounts to ‘deliberate

indifference’ to the rights of persons with whom [the municipality’s]

employees will come into contact.” Thomas v. Cumberland Cty., 749 F.3d

217, 222 (3d Cir. 2014) (quoting Carter v. City of Phila., 181 F.3d 339,357

(3d Cir. 1999)). “Ordinarily,” this requires a plaintiff to identify a

“‘pattern of similar constitutional violations by untrained employees’” that

“puts municipal decisionmakers on notice that a new program is

necessary.” Id. at 223 (quoting Connick v. Thompson, 563 U.S. 51, 62

(2011)). Otherwise, the plaintiff needs to show that failure to provide the

identified training would “likely . . . result in the violation of

constitutional rights” — i.e., to show that “the need for more or different

training [was] so obvious.” City of Canton v. Harris, 489 U.S. 378, 390

(1989).

Johnson v. City of Phila., 975 F.3d 394, 403 (3d Cir. 2020).

Ortiz conclusorily alleges that unconstitutional policies, and a failure to train

and hire qualified individuals existed at PICC. (ECF No. 14 at 3.) He does not describe

these alleged deficiencies with any particularity, and does not tie them to the

constitutional violations he is alleged to have suffered. The Court will therefore

dismiss Ortiz’s claim against Defendant Carney in her official capacity as not plausible.

For the same reasons, the Court will dismiss Ortiz’s claim against the City of

Philadelphia. Because the Court cannot state with certainty that Ortiz will not be able

to state a plausible claim, he will be permitted to amend this claim.

D

Ortiz also alleges that Defendant Carney ignored a grievance he sent her.

Claims based on the handling of prison grievances fail because “[p]rison inmates do not

have a constitutionally protected right to a grievance process.” Jackson v. Gordon, 145

F. App’x 774, 777 (3d Cir. 2005) (per curiam); see also Caldwell v. Beard, 324 F. App’x

186, 189 (3d Cir. 2009) (per curiam). This claim will thus be dismissed with prejudice.

E

In his Amended Complaint, Ortiz states, without more, “lost my property, legal

work.” (ECF No. 14 at 3.) He does not identify which, if any, of the named Defendants

was responsible for this loss, does not describe the lost property, and does not describe

the circumstances surrounding the loss. Even if he did, however, a prisoner detained

by a Pennsylvania County cannot state a Fourteenth Amendment claim based on the

loss of property. See Spencer v. Bush, 543 F. App’x 209, 213 (3d Cir. 2013) (“‘[A]n

unauthorized intentional deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.’” (quoting Hudson, 468 U.S. at 533)). While the Pennsylvania Political

Subdivision Tort Claims Act, 42 Pa. Con. Stat. § 8541, provides “no local agency shall be

liable for any damages on account of any injury to a person or property caused by any

act of the local agency or an employee thereof or any other person,” there are eight

exceptions to this grant of immunity. See id. § 8542(b). One such exception is that a

political subdivision like Philadelphia County may be held

liable for damages on account of an injury to a person or property within

the limits set forth in this subchapter if both of the following conditions

asureb sseacttiisofnie d(b a):n d the injury occurs as a result of one of the acts set forth in

(1) The damages would be recoverable under common law or a

statute creating a cause of action if the injury were caused by a

person not having available a defense under section 8541 (relating

to governmental immunity generally) or section 8546 (relating to

defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency

or an employee thereof acting within the scope of his office or

duties with respect to one of the categories listed in subsection (b).

As used in this paragraph, “negligent acts” shall not include acts or

conduct which constitutes a crime, actual fraud, actual malice or

willful misconduct.

Since Ortiz has under these provisions a meaningful postdeprivation remedy available

for his property loss claim in an appropriate state court, his constitutional claim is not

plausible and must be dismissed.

To the extent Ortiz’s reference to the lost property as “legal materials” indicates

that he also seeks to raise a First Amendment access to the courts claim, that claim is

also not plausible. “A prisoner making an access-to-the-courts claim is required to show

that the denial of access caused actual injury.” Jackson v. Whalen, 568 F. App’x 85, 87

(3d Cir. 2014) (per curiam) (quoting Lewis v. Casey, 518 U.S. 343, 350 (1996)). This is

because the right of access to the courts “rest[s] on the recognition that the right is

ancillary to the underlying claim, without which a plaintiff cannot have suffered injury

by being shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). In other

words, a prisoner claiming that he was denied access to the courts must allege an injury

traceable to the conditions of which he complains. Diaz v. Holder, 532 F. App’x 61, 63

(3d Cir. 2013) (per curiam) (affirming dismissal of denial of access claims where

plaintiff failed to tie alleged deficiencies in library to harm in underlying action). In

general, an actual injury occurs when a prisoner demonstrates that a “nonfrivolous”

and “arguable” claim was lost because of the denial of access to the courts. Christopher,

536 U.S. at 415. “[T]he underlying cause of action, . . . is an element that must be

described in the complaint.” Id. Furthermore, the right to access the courts may be

satisfied if the plaintiff has an attorney. Diaz, 532 F. App’x at 63 (citing Bounds v.

Smith, 430 U.S. 817, 831 (1977) and Peterkin v. Jeffes, 855 F.2d 1021, 1042 (3d Cir.

1988)); see also Prater v. City of Phila., 542 F. App’x 135, 137 n.4 (3d Cir. 2013) (per

curiam). Ortiz does not allege that a nonfrivolous and arguable claim was lost due to

the alleged loss or destruction of his legal materials. Accordingly, this portion of his

Amended Complaint must also be dismissed.

F

In his Amended Complaint, Ortiz alleges that he was “taunted by guards.” (ECF

No. 14 at 3.) He does not identify the alleged perpetrators, does not describe the nature

of the taunts, and does not describe the circumstances surrounding them. Even if he

did, however, his allegation would not state a § 1983 claim because verbal threats or

taunts, without more, are insufficient to violate the Constitution. See Dunbar v.

Barone, 487 F. App’x 721, 723 (3d Cir. 2012) (holding that threats that inmate was a

“marked man and that his days were numbered” did not state Eighth Amendment

claim); McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001) (holding that threat

to spray inmate with mace did not violate Eighth Amendment); DeWalt v. Carter, 224

F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not

constitute cruel and unusual punishment, deprive a prisoner of a protected liberty

interest or deny a prisoner equal protection of the laws.”) This claim will be dismissed

with prejudice.

G

Ortiz claims that he advised Lt. Horsey that he had been choked and punched by

COs Bernett and Amazon and requested medical care, which Lt. Horsey refused. Ortiz

also alleges that Sgt. White observed CO Amazon punching and slamming Ortiz and

eventually removed Ortiz from Amazon. Ortiz alleges that when he requested medical

care, Sgt. White also refused it. To state a constitutional claim based on the failure to

provide medical treatment, a detainee must allege facts indicating that prison officials

were deliberately indifferent to his serious medical needs.5 See Farmer v. Brennan, 511

U.S. 825, 835 (1994). Deliberate indifference is properly alleged “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).

Ortiz alleges that as a result of CO Bernett choking him and slamming him to

the ground, and CO Amazon punching him, he suffered lumps and swelling on his face

and a nosebleed. Ortiz further alleges that Sgt. White, who observed and stopped CO

Amazon’s alleged assault on Ortiz, and Lt. Horsey, to whom Ortiz allegedly described

COs Bernett and Amazon’s treatment of him, both refused Ortiz’s request for medical

5 As it appears that Ortiz was a pretrial detainee at the time of the events in question, the

Fourteenth Amendment governs his claims. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d

Cir. 2005). However, the standard under the Eighth Amendment and Fourteenth

Amendment for claims related to a prisoner’s medical needs is essentially the same for

purposes of the analysis. See Parkell v. Morgan, 682 F. App’x 155, 159 (3d Cir. 2017) (per

curiam); see also Moore v. Luffey, No. 18-1716, 2019 WL 1766047, at *3 n.2 (3d Cir. Apr. 19,

2019) (declining to address whether a new standard applies to claims raised by pretrial

detainees based on issues related to medical care).

treatment despite allegedly apparent injuries. This is adequate to state a plausible

deliberate indifference claim and this claim will be served for a responsive pleading.

H

Ortiz alleges that CO Bernett wrapped both hands around Ortiz’s neck and

squeezed and shook him violently, and that he pushed Ortiz to the ground. (ECF No. 14

at 1.) Ortiz claims Bernett then pushed him around in his cell, demanding that Ortiz

spit on him. (Id. at 2.) At or about the same time, CO Amazon is alleged to have

punched Ortiz in the face 8 to 9 times while Ortiz was handcuffed and shackled. (Id.)

Amazon is also alleged to have slammed Ortiz from door to door. Ortiz alleges that he

suffered lumps and swelling on his face and a nosebleed as a result of Bernett and

Amazon’s treatment. (Id.) Based on these allegations, Ortiz’s Amended Complaint will

be served on the COs for a responsive pleading. See Hudson v. McMillian, 503 U.S. 1, 8

(1992) (holding that the Eighth Amendment prohibits prison officials from

unnecessarily and wantonly inflicting pain in a manner that offends contemporary

standards of decency); Jacobs v. Cumberland Cty., 8 F.4th 187, 193-94 (3d Cir. 2021)

(citing Bell v. Wolfish, 441 U.S. 520, 535, 545 (1979) (noting that in Bell the Supreme

Court explained that “pretrial detainees, who have not been convicted of any crimes,

retain at least those constitutional rights that we have held are enjoyed by convicted

prisoners.”)).6

6 The Jacobs Court noted that the United States Supreme Court has not yet determined

whether pretrial detainees can bring excessive-force claims under the Fourth Amendment.

Id. at 194, n.4 (citing Kingsley v. Hendrickson, 576 U.S. 389, 408 (2015) (Alito, J.,

dissenting)).

I

Ortiz contends CO Petel watched CO Amazon assault Ortiz and did not try to

stop him. (Id. at 3.) He further alleges that COs Tita and Bailey watched CO Bernett

assault and choke Ortiz and did not try to stop him. (Id.) He asserts a claim against

these COs for failing to protect him. Ortiz’s allegations that these COs watched what

COs Bernett and Amazon did and did not stop them states a plausible failure to protect

claim. See Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (holding that the

objective component of a Fourteenth Amendment claim requires an inquiry into

whether “the deprivation [was] sufficiently serious” and the subjective component asks

whether “the officials act[ed] with a sufficiently culpable state of mind[.]”); Wilson v.

Seiter, 501 U.S. 294, 298-99 (1991) (deliberate indifference means that a defendant

consciously disregarded a serious risk to the detainee’s health or safety). This claim

will be served for a responsive pleading.

J

The Court understands Ortiz to be stating a due process claim based on Major

Martin’s placement of Ortiz in the RHU for a month without affording him a hearing.

“Generally, prisons may sanction a pretrial detainee for misconduct that he commits

while awaiting trial, as long as it is not a punishment for the ‘underlying crime of which

he stands accused.’” Kanu v. Lindsey, 739 F. App’x 111, 116 (3d Cir. 2018) (quoting

Rapier v. Harris, 172 F.3d 999, 1003-06 (7th Cir. 1999)). However, while “‘pretrial

detainees do not have a liberty interest in being confined in the general prison

population, they do have a liberty interest in not being detained indefinitely in

[disciplinary segregation] without explanation or review of their confinement.’”

Singleton v. Superintendent Camp Hill SCI, 747 F. App’x 89, 92 (3d Cir. 2018) (per

curiam) (quoting Bistrian v. Levi, 696 F.3d 352, 375 (3d Cir. 2012)). With respect to

pretrial detainees, “the imposition of disciplinary segregation for violation of prison

rules and regulations cannot be imposed without providing the due process protections

set forth in Wolff v. McDonnell, 418 U.S. 539 . . . (1974).” Kanu, 739 F. App’x at 116.

Such protections “include the right to receive written notice of the charges at least 24

hours before the hearing, the opportunity to present witnesses and documentary

evidence, and a written statement of the reasons for the disciplinary action taken and

the supporting evidence.” Id. (citing Wolff, 418 U.S. at 563-66); see also Stevenson v.

Carroll, 495 F.3d 62, 70 (3d Cir. 2007).

Moreover, while “the filing of a fraudulent misconduct report and related

disciplinary sanctions do not without more violate due process,” Seville v. Martinez, 130

F. App’x 549, 551 (3d Cir. 2005) (per curiam), “[d]ue process is satisfied where an

inmate is afforded an opportunity to be heard and to defend against the allegedly false

misconduct reports,” Thomas v. McCoy, 467 F. App’x 94, 97 (3d Cir. 2012) (per curiam);

see also Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (“[S]o long as certain

procedural requirements are satisfied, mere allegations of falsified evidence or

misconduct reports, without more, are not enough to state a due process claim.”).

Ortiz alleges that Lt. Horsey prepared a false disciplinary write up and Major

Martin placed Ortiz in the RHU, where he remained without a hearing. These

allegations state a plausible claim that he was not afforded the required due process in

connection with his confinement to the RHU, and this claim will be served for a

responsive pleading.

IV

For the reasons stated, Ortiz’s application for leave to proceed in forma pauperis

will be granted. Ortiz will be permitted to proceed on his excessive force claims against

Correctional Officers Bernett and Amazon, his failure to protect claims against

Correctional Officers Petel, Tita, and Bailey, his deliberate indifference claims against

Lt. Horsey and Sgt. White, and his due process claim against Major Martin. The

remainder of his claims will be dismissed for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii). Because Ortiz’s municipal and official capacity claims will be

dismissed without prejudice, Ortiz will be granted the option of filing an amended

complaint to attempt to cure the defects identified herein. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). An Order follows, which shall be

docketed separately.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.