HUGHSTON v. MCGEE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENJAH J. HUGHSTON, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-CV-1898

:

WARDEN SEAN P. MCGEE, :

et al., :

Defendants. :

MEMORANDUM

KENNEY, J. JUNE 20, 2023

Plaintiff Kenjah J. Hughston, a prisoner currently incarcerated at the Montgomery

County Correctional Facility (“MCCF”), brings this civil rights action pursuant to 42 U.S.C. §

1983 based on an alleged failure to provide Hughston at least two-hours of daily recreation in

violation of the Pennsylvania State Administrative Code. Hughston also claims to have been

placed in maximum security housing without a hearing. He seeks to proceed in forma pauperis.

For the following reasons, the Court will grant Hughston leave to proceed in forma pauperis and

dismiss his Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Hughston will be given an opportunity to cure the deficiencies identified by the Court by filing

an amended complaint.

I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

Hughston’s allegations concern events that occurred while he was incarcerated at MCCF

from December 2021 to the present.1 He names the following Defendants: (1) Warden Sean P.

1 Hughston was a pretrial detainee during most of that time, up to his conviction on March 7,

2023 for possession of a firearm, resisting arrest, reckless endangerment and a variety of other

charges. See Commonwealth v. Hughston, CP-46-CR-0000591-2022 (C.P. Montgomery).

McGee; (2) Assistant Warden Thomas Berger; (3) Board of Inspectors of MCCF; (4) B.O.I.

President Nancy Wieman; (5) B.O.I. Vice President C. Browne; (6) All Policy Makers of

Montgomery County Correction Jhon [sic] and Jane Doe; (7) United States Attorney General

Jhon [sic] Doe; (8) Director of Federal Bureau of Prisons Jhon [sic] Doe; (9) Commissioner of

Corrections Jhon [sic] Doe; (10) Julio M. Algarin; (11) Mark S. Murray; (12) Richard J. Brown;

and (13) Dr. G. Andrew Szekely. (Compl. at 1-3.) However, other than identifying the position

each of them holds, Hughston makes no substantive allegations against these individuals.

Hughston alleges that upon arrival at MCCF he was “placed in ‘max security housing’

without a hearing and held to a recreational standard of disciplinary inmates.” (Compl. at 4.)

Hughston claims that MCCF “has no recreation policy in place for the prison.” (Id.) Although

he does not explicitly state the amount of recreation time he received in maximum security

housing, Hughston specifically contends that he received less than the two-hours a day required

by “Title 37” for all inmates not in disciplinary custody.2 (Id.)

Hughston asserts violations of his constitutional rights based on the above allegations.

He claims that he suffered mental deterioration, increased weight gain, and “all around health

deterioration.” (Id.) He asks for monetary compensation and an order directing MCCF to

“adhere to Title 37 recreational standards.” (Compl. at 6.)

2 Hughston does not provide a full citation for “Title 37.” Based on the context of his

allegations, the Court assumes Hughston is referring to 37 Pa. Code § 95.238, the section of the

Pennsylvania Administrative Code applicable to county prisons that requires “[j]ails to provide

all prisoners at least 2 hours daily” of physical activity with the exception of “inmates under

disciplinary status or segregation [who] shall receive 1 hour of [] activity 5 days a week.” See 37

Pa. Code § 95.238 (1996); see also Schwartz v. Cnty. of Montgomery, 843 F. Supp. 962, 965

(E.D. Pa.), aff'd, 37 F.3d 1488 (3d Cir. 1994).

II. STANDARD OF REVIEW

The Court grants Hughston leave to proceed in forma pauperis because it appears that he

is incapable of paying the fees to commence this case.3 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 Hughston 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)).

III. DISCUSSION

Hughston brings his claims pursuant to § 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). Hughston has failed to allege either a

3 Because Hughston is a prisoner, he will be obligated to pay the fee in installments in

accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b).

plausible constitutional violation or a basis for any Defendants’ personal involvement in the

alleged wrongs.

A. Failure to Allege a Constitutional Violation for Violation of State Law

Hughston asserts a due process violation predicated on an alleged violation of state law.

He claims that his placement in maximum security housing afforded him less than two-hours of

daily recreation time, in violation of Title 37 of the Pennsylvania administrative code that

requires two-hours of daily recreation for all inmates not housed in disciplinary segregation.4

Violations of state law, assuming any such violations occurred here, do not on their own amount

to a constitutional violation. See Whittaker v. Cnty. of Lawrence, 437 F. App’x 105, 109 (3d Cir.

2011) (“[A] state official’s failure to follow state law does not, by itself, shock the conscience [in

violation of the constitution] in the absence of additional facts.”); Maple Properties, Inc. v. Twp.

of Upper Providence, 151 F. App’x 174, 179 (3d Cir. 2005) (explaining that “‘[a] violation of

state law is not a denial of due process of law.’” (quoting Coniston Corp. v. Village of Hoffman

Estates, 844 F.2d 461, 468-69 (7th Cir. 1988))). Accordingly, Hughston has not alleged a

plausible constitutional violation based on a violation of Title 37. See Wyatt v. Dep’t of Prob. &

Parole, No. 19-CV-5460, 2020 WL 2307351, at *7 (E.D. Pa. May 8, 2020) (“[E]ven if this Court

were to assume that the statute at issue was violated, a violation of state law generally does not

equate to a federal constitutional violation.”).

Hughston has not otherwise plausibly pled that receiving less than two-hours of daily

recreation time violates the Fourteenth Amendment. The Due Process Clause of the Fourteenth

4 Although he does not specify the amount of recreation time he receives in maximum security

housing, Hughston alleges that he is receiving the amount of recreation time afforded to inmates

in disciplinary segregation, which would be one-hour a day. (Compl. at 4.); see 37 Pa. Code §

95.238.

Amendment governs claims brought by pretrial detainees. Hubbard v. Taylor, 399 F.3d 150, 166

(3d Cir. 2005). To establish a basis for a Fourteenth Amendment violation, a prisoner must

allege that his conditions of confinement amount to punishment. Bell v. Wolfish, 441 U.S. 520,

538 (1979). “Unconstitutional punishment typically includes both objective and subjective

components.” Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). “[T]he objective component

requires an inquiry into whether the deprivation was sufficiently serious and the subjective

component asks whether the officials acted with a sufficiently culpable state of mind.” Id.

(internal quotations and alterations omitted). In that regard, “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.’” Bistrian v.

Levi, 696 F.3d 352, 373 (3d Cir. 2012) (quoting Stevenson, 495 F.3d at 68); Steele v. Cicchi, 855

F.3d 494, 504 (3d Cir. 2017).

Hughston’s allegation that he was denied exercise time while in disciplinary housing does

not state a plausible due process claim. Hughston alleges at most that he received less than two-

hours per day of recreation time, which does not on its own establish a sufficiently serious

deprivation. See Diaz v. Cumberland Cnty., No. 10-3932, 2010 WL 3825704, *5 (D.N.J. Sept.

23, 2010) (dismissing a claim by pretrial detainee asserting that he was afforded only one hour of

yard recreation per day); DiMaio v. George W. Hill Intake Dep't, 367 F. Supp. 3d 301, 306 (E.D.

Pa. 2019) (inmate’s inability to receive more than one hour of recreation time per day did not

constitute condition of confinement that violated Eighth or Fourteenth Amendments, absent

demonstration that inability to receive more recreation time amounted to punishment or

threatened inmate’s health). Moreover, Hughston has not alleged that Defendants’ acted with an

intent to punish or that the restricted recreation time was not rationally related to a legitimate

non-punitive government purpose. Because the Court cannot say at this time that Hughston can

never state a plausible claim under the Fourteenth Amendment based on diminished recreation

time, Hughston will be permitted to file an amended complaint.

Hughston, a pretrial detainee, also appears to claim that his placement in maximum

security housing without a hearing violates his Fourteenth Amendment due process rights.

Hughston asserts that he was “placed in ‘max security housing” without a hearing . . . . with no

reasoning besides how much [his] bail was.” (Compl. at 4.) While this may be the basis of a

plausible claim,5 as discussed next, Hughston has not alleged that any of the named Defendants

was personally responsible for this alleged violation of his rights. Accordingly, the claim will be

5 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)). “The degree of process required varies

depending on the reason for the transfer, with greater process accorded to prisoners who are

confined for disciplinary infractions than those moved for purely administrative reasons.” Id. at

70. “[T]he procedures required by Wolff v. McDonnell, 418 U.S. 539 (1974), apply if the

restraint on liberty is imposed for disciplinary reasons; if the restraint is for ‘administrative’

purposes, the minimal procedures outlined in Hewitt v. Helms, 459 U.S. 460 (1983) are all that is

required.” Lewis v. Williams, No. 05-013, 2011 WL 2441377, at *17 (D. Del. June 13, 2011)

(citing Stevenson, 495 F.3d at 70). The procedures set forth in Wolff “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.” Kanu v. Lindsey, 739 F. App’x 111, 116

(3d Cir. 2018); see also Quiero v. Ott, 799 F. App’x 144 at n.6 (3d Cir. 2020) (per curiam).

Hewitt requires that, within a reasonable time, a detainee be given an explanation of the reason

for the administrative transfer as well as an opportunity to respond. Steele, 855 F.3d at 507;

Stevenson, 495 F.3d at 70 (citations omitted). Hughston has not provided sufficient factual

details related to his confinement in maximum security housing. Any amended pleading should

include not only who was personally responsible for placing Hughston in segregated housing but

also the details of whether the placement was for disciplinary or administrative reasons as well as

the length of time that Hughston remained in segregated housing.

dismissed without prejudice and Hughston will be permitted to file an amended complaint if he

can cure this defect.

B. Failure to Allege Personal Involvement

Hughston has also failed to allege the personal involvement of any Defendant. “Because

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.” Iqbal, 556 U.S. at 676; see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988) (explaining that “[a] defendant in a civil rights action must have personal involvement in

the alleged wrongs” to be liable). There are “two general ways in which a supervisor-defendant

may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med.,

Inc., 766 F.3d 307, 316 (3d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S.

822 (2015). First, a supervisor may be liable if he or she “‘with deliberate indifference to the

consequences, established and maintained a policy, practice or custom which directly caused

[the] constitutional harm.” Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr.,

372 F.3d 572, 586 (3d Cir. 2004) (alteration in original)). “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 the

subordinate’s unconstitutional conduct.” Id.; see also Dooley v. Wetzel, 957 F.3d 366, 374 (3d

Cir. 2020) (“Personal involvement requires particular ‘allegations of personal direction or of

actual knowledge and acquiescence.’” (quoting Rode, 845 F.2d at 1207)).

Hughston does not allege that any Defendant was directly responsible for denying him

two-hours of daily recreation time or for placing him in restricted housing without a hearing, nor

does he allege a plausible basis for their personal involvement based on actual knowledge and

acquiescence. Rather, he suggests that the Court may imply their knowledge, apparently due to

their supervisory positions or positions of authority in relation to MCCF, and hold them liable on

that basis. In other words, Hughston seeks to hold the Defendants vicariously liable for the acts

of others based on their supervisory positions and/or positions of authority at MCCF. This is not

a permissible basis for liability under § 1983. The fact that these Defendants are high-level

officials is not a sufficient basis alone for liability. See Saisi v. Murray, 822 F. App’x 47, 48 (3d

Cir. 2020) (per curiam) (“Saisi asserted that some defendants were ‘in charge of agencies that

allowed this to happen,’ and that liability stemmed merely from defendants’ ‘belief’ that their

conduct would be ‘tolerated.’ However, a director cannot be held liable ‘simply because of his

position as the head of the [agency].’” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir.

2005)). This is another reason why Hughston’s claims fail at this juncture.6

IV. CONCLUSION

For the foregoing reasons, the Court will grant Hughston leave to proceed in forma

pauperis, and dismiss his claims. The Court will grant Hughston leave to amend so that he can

“flesh out [his] allegations by explaining the ‘who, what, where, when and why’ of [his]

claim[s].” See Gambrell v. S. Brunswick Bd. of Educ., No. 18-16359, 2019 WL 5212964, at *4

(D.N.J. Oct. 16, 2019). An appropriate Order follows, which provides further instruction as to

amendment.

6 Hughston, an inmate in state custody, names the United States Attorney General and the

Director of the Federal Bureau of Prisons. (Compl. at 3.) The Complaint makes no connection

between those two federal Defendants and Hughston’s allegations related to his state

confinement in MCCF. Accordingly, the United States Attorney General and the Director of the

Federal Bureau of Prisons are dismissed with prejudice.

BY THE COURT:

/s/ Chad F. Kenney

__________________________________________

CHAD F. KENNEY, J.