# Sears v. Mooney

> District Court, M.D. Pennsylvania · December 11, 2019

URL: https://www.frixlaw.com/law-library/cases/10408062

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 11, 2019
- **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/10408062

## How later opinions describe it (automated extraction)

- noting that a plaintiff “cannot establish that there was a causal connection without some evidence that the individuals responsible for the adverse action knew of the plaintiff’s protected conduct at the time they acted”
- concluding that a mere “linkage in the prison chain of command” is not sufficient to demonstrate personal involvement for purposes of a civil rights action
- concluding that where a defendant, after being informed of the violation through the filing of grievances, reports, or appeals, failed to take action to remedy the alleged wrong is not enough to show that the defendant had the necessary personal involvement
- noting that “when deciding a motion for summary judgment, ‘the evidence of the non-movant is to be believed’” (quoting Anderson, 477 U.S. at 255)

## Opinion text

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

RICHARD SEARS, :
Plaintiff :
: No. 1:17-cv-50
v. :
: (Judge Kane)
VINCENT MOONEY, et al., :
Defendants :

MEMORANDUM

I. BACKGROUND
Pro se Plaintiff Richard Sears (“Plaintiff”), who is currently confined at the State
Correctional Institution in Albion, Pennsylvania (“SCI Albion”), initiated the above-captioned
action by filing a complaint pursuant to 42 U.S.C. § 1983 on January 9, 2017, against numerous
employees of the Department of Corrections (“DOC”) at the State Correctional Institution in
Coal Township, Pennsylvania (“SCI Coal Township”). (Doc. No. 1.) On September 25, 2017,
Plaintiff filed an amended complaint, asserting claims of interference with his right to use the
grievance system, retaliation, interference with his right of free speech, defamation, denial of
access to the courts, unconstitutional conditions of confinement, deliberate indifference to his
medical needs, due process violations, equal protection violations, and excessive force in
violation of the First, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States
Constitution, as well as claims alleging violations of the Universal Declaration of Human Rights
and various state torts. (Doc. No. 33.)
After engaging in discovery, Defendants filed a motion for summary judgment (Doc. No.
84) and supporting materials (Doc. Nos. 85, 86, 99). Plaintiff subsequently filed a motion to
exclude alleged evidence of his deposition (Doc. No. 89) and a motion to strike Defendants’
motion for summary judgment (Doc. No. 92). On February 6, 2019, Magistrate Judge Carlson
denied Plaintiff’s motion to strike. (Doc. No. 96.) After receiving two (2) extensions of time
(Doc. Nos. 101, 102, 103, 104), Plaintiff filed a response to Defendants’ statement of facts (Doc.
No. 105) and brief in opposition (Doc. No. 106). Defendants then filed a reply brief (Doc. No.
110) after receiving an extension of time to do so (Doc. Nos. 107, 109). Accordingly,
Defendants’ motion for summary judgment (Doc. No. 84) and Plaintiff’s motion to exclude

(Doc. No. 89) are ripe for disposition.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) requires the Court to render summary judgment “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). “[T]his standard provides
that the mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
A disputed fact is “material” if proof of its existence or nonexistence would affect the

outcome of the case under applicable substantive law. See id. at 248; Gray v. York Newspapers,
Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477
U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the Court must view
the facts and all reasonable inferences in favor of the nonmoving party. See Moore v. Tartler,
986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corp., 963 F.2d 599, 600 (3d Cir.
1992); White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary
judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his
or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56
of identifying evidence that demonstrates the absence of a genuine issue of material fact, the
nonmoving party is required to go beyond his pleadings with affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific material facts that give rise to a

genuine issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the
motion “must do more than simply show that there is some metaphysical doubt as to the material
facts.” See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule
56 shifts the burden of production to the nonmoving party, that party must produce evidence to
show the existence of every element essential to its case that it bears the burden of proving at
trial, for “a complete failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.” See Celotex, 477 U.S. at 323; see also
Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
In determining whether an issue of material fact exists, the Court must consider the

evidence in the light most favorable to the nonmoving party. See White, 862 F.2d at 59. In
doing so, the Court must accept the nonmovant’s allegations as true and resolve any conflicts in
his favor. See id. (citations omitted). However, a party opposing a summary judgment motion
must comply with Local Rule 56.1, which specifically directs the oppositional party to submit a
“statement of the material facts, responding to the numbered paragraphs set forth in the statement
required [to be filed by the movant], as to which it is contended that there exists a genuine issue
to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted.” See L.R. 56.1. A
party cannot evade these litigation responsibilities in this regard simply by citing the fact that he
is a pro se litigant. These rules apply with equal force to all parties. See Sanders v. Beard, Civ.
No. 09-1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010) (stating that pro se parties “are
not excused from complying with court orders and the local rules of court”); Thomas v. Norris,
Civ. No. 02-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006) (explaining that pro se
parties must follow the Federal Rules of Civil Procedure).

III. DISCUSSION
A. Plaintiff’s Motion to Exclude Alleged Evidence of Deposition
Defendants submitted a transcript of Plaintiff’s deposition in support of their motion for
summary judgment. (Doc. No. 86-1.) Plaintiff moves to exclude his deposition, arguing that
upon his review of the transcript, he “discovered a plethora of pertinent testimony did get
erroneously or illegally omitted from the recording or transcription of said deposition.” (Doc.
No. 89 at 2.) He maintains that he “listed as many changes and corrections as he could list on the
single ‘errata sheet’ provided to him,” and has attached the errata sheet to his motion. (Id. at 2,
6.) Plaintiff believes the transcript “has [the] tendency to cause unfair prejudice to [him], create

confusion of the issues, and mislead the Court at summary judgment.” (Doc. No. 90 at 2.)
Upon review of the errata sheet, the Court observes that Plaintiff takes issue with
misspelled words and the omission of words and phrases in the transcript. (Doc. No. 89 at 6.)
Evidence, however, “should not be excluded on summary judgment on hypertechnical grounds.”
See Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir. 1989). The Court is not persuaded by
Plaintiff’s argument that the transcript causes unfair prejudice, confuses the issues, and misleads
the Court. Accordingly, the Court will deny Plaintiff’s motion to exclude. (Doc. No. 89.) To
the extent the errata sheet is relevant, the Court will consider it when evaluating Defendants’
motion for summary judgment.
B. Motion for Summary Judgment
1. Statement of Material Facts1
On June 9, 2014, Plaintiff was transferred to a hard cell within SCI Coal Township’s
Restricted Housing Unit (“RHU”). (Doc. No. 85 ¶ 1.) A hard cell is “used for observation
purposes for inmates who display some type of mental instability or might harm themselves.”2

(Id. ¶ 3.) Unlike a regular cell, hard cells do not have tables and stools, and they have wickets
that are used to pass items, such as food trays, through the doors. (Id. ¶ 4.) Plaintiff was never
provided an explanation of why he was placed in the hard cell. (Id. ¶ 7.) Plaintiff stayed in the
hard cell for eighty-five (85) days. (Id. ¶ 2.)

1 The Local Rules provide that in addition to the requirement that a party file a brief in
opposition to the moving party’s brief in support of its motion, “[t]he papers opposing a motion
for summary judgment shall include a separate, short and concise statement of material facts
responding to the numbered paragraphs set forth in the statement [of material facts filed by the
moving party] . . . as to which it is contended that there exists a genuine issue to be tried.” See
M.D. Pa. L.R. 56. 1. The Rule further requires the inclusion of references to the parts of the
record that support the statements. See id. Finally, the Rule states that the statement of material
facts required to be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing party. See id. Unless
otherwise noted, the background herein is derived from Defendants’ Rule 56.1 statement of
material facts. (Doc. No. 85.)
Plaintiff has complied with M.D. Pa. L.R. 56.1 by filing a response to Defendants’
statement of undisputed material facts. (Doc. No. 105.) Moreover, while Plaintiff’s verified
amended complaint (Doc. No. 33) may be treated as an affidavit in opposition to the motion for
summary judgment, the allegations must be based on personal knowledge, and the Court is not
“required to accept unsupported, self-serving testimony as evidence sufficient to create a jury
question.” See Hammonds v. Collins, Civ. No. 12-236, 2016 WL 1621986, at *3 (M.D. Pa. Apr.
20, 2016) (citing Brooks v. Am. Broad. Co., 999 F.2d 167, 172 (6th Cir. 1993)). Accordingly,
the Court recites the undisputed facts above with footnotes setting forth the parties’ relevant
factual disputes.

2 Plaintiff maintains that he was “non-violent and had no mental instability, and actually
requested to get moved out of [the hard cell] to a regular cell and was refused.” (Doc. No. 105
¶ 3.)
Plaintiff experienced disruptions in his daily activities while assigned to the hard cell.
(Id. ¶ 5.) He complained about his placement “and sent request slips to the sergeants to be
moved to a different cell but his requests were ignored.”3 (Id. ¶ 6.) On August 4, 2014, Plaintiff
asked Defendant McDonald to use his fingernail clippers, and Defendant McDonald responded
that “the clippers were not there.”4 (Id. ¶¶ 8-9.)

During Plaintiff’s time in the hard cell, Plaintiff experienced issues as to the cell’s
plumbing. (Id. ¶ 10.) Specifically, the water was leaving “dark traces around the inside of his
cup and was making his throat irritated.”5 (Id.) Inmates in neighboring cells did not have the
same issue with their water. (Id. ¶ 11.) Plaintiff complained about the plumbing issues to RHU
officers, including Defendants Kistler, Shipe, Drucis, Howel, Burrows, Heistand, and

3 Plaintiff adds that he complained to Defendants Kistler, Shipe, Drucis, Howel, Burrows,
Heistand, and Krzykowski, and that these Defendants “had authority to move him and all had
knowledge of the problem but all refused to move him or taunted him or made some type of
derogatory statement, and just took it as a joke regardless of his suffering and severity of his
complaints.” (Id. ¶ 6.) He also maintains that Defendants Kistler and Shipe told him “that that’s
just how it is and that he . . . just ha[s] to deal with it.” (Id.)

4 Plaintiff adds that Defendant McDonald told him that he was “the one who initiated the whole
thing.” (Id. ¶ 9.) He “understood that to mean he . . . was being retaliated against for speaking
freely and making complaints about the hard cell.” (Id.)

5 Plaintiff maintains that Defendants refused either to fix the plumbing or move him to a different
cell. (Id. ¶ 10.) According to Plaintiff, the water was “so awful and foul that it left black dark
traces around the inside of his white Styrofoam cup and irritated his throat during his entire 85
days in the hard cell and that he felt tortured.” (Id.)
Krzykowski.6 (Id. ¶ 12.) Defendants Kistler, Shipe, Krzykowski, Drucis, and Howel had the
authority to move Plaintiff, but Defendant Heistand did not.7 (Id. ¶ 13.)
Plaintiff was moved to a regular cell on September 4, 2014. (Id. ¶ 14.) Nothing of note
occurred with respect to Plaintiff while Plaintiff was assigned to that cell. (Id. ¶ 15.) Plaintiff
was moved to another regular cell on September 29, 2014. (Id. ¶ 16.) At lunchtime on that day,

Defendant Lenker and another officer placed Plaintiff’s meal tray on the wicket, but before
Plaintiff could reach for the tray, the wicket was closed, and the tray fell to the floor. (Id. ¶ 17.)
Plaintiff called out and the unnamed officer returned, saw the tray on the floor, and stated that he
would notify Defendant Lenker.8 (Id. ¶ 18.) Later that day, Defendant McDonald came to
Plaintiff’s cell.9 (Id. ¶ 19.) Plaintiff asked Defendant McDonald to look at the tray on the floor
and stated that he needed a new tray, but Defendant McDonald refused to do so and walked
away. (Id. ¶ 20.) Plaintiff heard Defendant McDonald report that he had refused to give up his
tray.10 (Id. ¶ 21.) Defendant Baker then made a racially charged comment to Plaintiff. (Id.
¶ 22.) Plaintiff complained to Defendant Novalis about the tray and complained to Defendant

6 Plaintiff adds that these Defendants and other RHU officers refused to have the plumbing fixed.
(Id. ¶ 12.)

7 Plaintiff contends that Defendants Kistler, Shipe, Krzykowski, Drucis, and Howel were fully
aware of the problems with the plumbing and water and still refused to move him to another cell.
(Id. ¶ 13.)

8 Plaintiff adds that the unnamed officer also saw the food on the floor, and that Defendant
Lenker refused to help even though Plaintiff made him “fully aware that he . . . was hungry and
in need of another tray.” (Id. ¶ 18.)

9 Defendants maintain that Defendant Baker was with Defendant McDonald. (Doc. No. 85 ¶ 19.)
Plaintiff, however, indicates that Defendant McDonald was alone. (Doc. No. 105 ¶ 19.)

10 Plaintiff maintains that this statement was a lie. (Id. ¶ 21.)
Peters about Defendant McDonald because Defendant Peters was Defendant McDonald’s
supervisor.11 (Id. ¶¶ 23-24.)
Plaintiff subsequently received a misconduct for refusing to give up the tray.12 (Id. ¶ 25.)
Defendant Scicchitano signed off on the misconduct. (Id. ¶ 31.) Later that day, Defendant
Howel walked past Plaintiff “at mealtime, laughing, and did not give him a tray.”13 (Id. ¶ 26.)

Plaintiff heard other officers, including Defendants Shipe, Heistand, and Hayes, laughing while
they were standing at the bottom of the tier, so he wrote a grievance. (Id. ¶ 27.) Plaintiff “went
about 20-some hours without food.” (Id. ¶ 28.) The next morning, Plaintiff received a food loaf
meal.14 (Id. ¶ 29.) He was also placed on movement restriction for seven (7) days, meaning that
he could not shower or go to the exercise yard.15 (Id. ¶ 30.) Plaintiff received the food loaf for
nine (9) meals over a three (3)-day period.16 (Id. ¶ 32.)
On October 14, 2014, Plaintiff was moved to another regular cell, which had a leaking
toilet and sink. (Id. ¶¶ 33-34.) Plaintiff complained about the leaks to Defendant Gilbert, but the

11 Plaintiff contends that Defendant Novalis refused to help Plaintiff obtain another tray and that
Defendant Peters did nothing to help him or to deter the behavior. (Id. ¶¶ 23-24.)

12 Plaintiff maintains that the Hearing Examiner ultimately dismissed the misconduct. (Id.
¶ 25.)

13 According to Plaintiff, Defendant Howel also stated, “[Y]ou want to take shots we’ll fire shots
back,” and Plaintiff interpreted this comment to mean that he would be retaliated against. (Id.
¶ 26.)

14 Plaintiff contends that he received food loaf because of the false misconduct written by
Defendant McDonald. (Id. ¶ 29.)

15 Plaintiff maintains this restriction was also a result of the false misconduct written by
Defendant McDonald. (Id. ¶ 30.)

16 Plaintiff adds that he received “ice cold” food loaf during each of these meals. (Id. ¶ 32.)
leaks were not fixed.17 (Id.) Plaintiff would use toilet paper or cloth to prevent the leaks from
spreading. (Id. ¶ 35.) Further, Plaintiff observed an “awful smell” in connection with the
leaking. (Id. ¶ 36.) The toilet was also “back-flushing,” and sometimes “other people’s feces
would flush into the toilet even when it was not in use.”18 (Id. ¶ 37.)
On December 12, 2014, the sink and toilet flooded Plaintiff’s cell. (Id. ¶ 39.) When

Plaintiff “got out of bed to pray, he slipped, fell, and hurt his knee, which had an open wound.”19
(Id.) No one responded when Plaintiff pressed the call button in his cell. (Id. ¶ 40.) When
Defendant Gilbert conducted rounds of the unit, Plaintiff informed him of his injury, and
Defendant Gilbert responded that he would notify the medical department.20 (Id. ¶ 41.) The
medical department did not respond immediately, but, rather, arrived during normal rounds,
which occurred hours after Plaintiff’s incident. (Id.) Plaintiff was given a Band-Aid for the

17 Plaintiff states that he complained about the leaks for “about an entire month” before a flood
occurred. (Id. ¶ 34.)

18 Plaintiff states that he told Defendant Gilbert and other officers about the leaking and back-
flushing, but that they refused to resolve these issues. (Id. ¶ 37.) Defendants maintain that
Plaintiff testified that he could tolerate these issues. (Doc. No. 85 ¶ 38.) Plaintiff, however,
contends that he was meant that he was able to tolerate these problems “after the two major
floods” described infra. (Doc. No. 105 ¶ 38.)

19 Plaintiff adds that he suffered “long-lasting knee pain” as a result of his fall and that he had
previously undergone knee surgery “at the same location . . . where he sustained the open
wound.” (Id. ¶ 39.)

20 Plaintiff maintains that Defendant Gilbert “was aware of the severity of the problem because
[Plaintiff] showed [him] his . . . own wound and [Defendant] Gilbert [saw] that [Plaintiff’s] skin
was missing.” (Id. ¶ 41.)
wound. (Id.) Additionally, Plaintiff complained to officers in the RHU about the plumbing
issue, which went unresolved.21 (Id. ¶ 42.)
On January 6, 2015, a major flood occurred, with feces and urine coming out of
Plaintiff’s sink and toilet.22 (Id. ¶ 43.) The flood spread to about four (4) other cells. (Id.) The
extension cords and electrical wires for Plaintiff’s typewriter, radio, and television were on the

floor and were submerged in the water.23 (Id. ¶ 44.) Plaintiff complained to Defendant Gilbert
during rounds, and Defendant Gilbert responded that he would call maintenance.24 (Id. ¶ 45.)
Hours later, staff from the maintenance department arrived, and Plaintiff was moved to the
shower while they worked on the plumbing and cleaned the cell.25 (Id. ¶ 46.) When Plaintiff
was moved back to his cell, it flooded again, prompting staff to go “through the same process to
have the cell cleaned.” (Id. ¶ 47.) That time, the issue was fixed to the extent that the cell did
not flood again. (Id. ¶ 48.)

21 Plaintiff contends that he complained about the plumbing issues to Defendants Gilbert and
Howel and other RHU officers four about a month and a half and that they “still refused to have
the plumbing problem fixed” even after the flood and Plaintiff’s injury. (Id. ¶ 42.)

22 Plaintiff adds that feces and urine got on his property, paperwork, boxes, commissary items,
and typewriter. (Id. ¶ 43.)

23 Plaintiff adds that his feet were also submerged in the water and that Defendant Gilbert
observed the conditions but did nothing to remove him from the cell. (Id. ¶ 44.)

24 Plaintiff asserts that Defendant Gilbert “kept walking past the cell laughing” and left him in
the cell for hours. (Id. ¶ 45.)

25 Plaintiff suggests that maintenance did not arrive until approximately four (4) hours after the
flood occurred. (Id. ¶ 46.)
2. Claims Against Defendants Mooney, Varner, Kelley, Shomper,
Merritt, Weikel, Scicchitano, and Peters

In his complaint, Plaintiff alleges that Defendants Mooney, Varner, Kelley, Shomper,
Merritt, Weikel, Scicchitano, and Peters violated his rights by “systematically denying or
dismissing every grievance” submitted by Plaintiff and by “actively failing or refusing to address
all issues” raised by Plaintiff in his grievances. (Doc. No. 33 ¶ 202.) Defendants assert that they
are entitled to summary judgment because Plaintiff has not described how they had any personal
involvement in the alleged violations of his rights.
Liability may not be imposed under § 1983 on the traditional standards of respondeat
superior. See Capone v. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (citing Hampton v.
Holmesburg Prison Officials, 546 F.2d 1017, 1082 (3d Cir. 1976)). In Capone, the court noted
“that supervisory personnel are only liable for the § 1983 violations of their subordinates if they
knew of, participated in or acquiesced in such conduct.” See id. at 106 n.7. The plaintiff must
allege that the defendant was personally involved in the events or occurrences that underlie the
claim. See Atkinson v. Taylor, 316 F.3d 257, 270-71 (3d Cir. 2003); Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal involvement can be shown through allegations
of personal direction or of actual knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made with appropriate particularity.”).
Moreover, the filing of a grievance, participation in “after-the-fact” review of a grievance, or

dissatisfaction with the response to an inmate’s grievance, does not establish the involvement of
officials and administrators in any underlying constitutional deprivation. See Pressley v. Beard,
266 F. App’x 216, 218 (3d Cir. 2008) (“The District Court properly dismissed these defendants
and any additional defendants who were sued based on their failure to take corrective action
when grievances or investigations were referred to them.”); Brooks v. Beard, 167 F. App’x 923,
925 (3d Cir. 2006) (holding that allegations that prison officials responded inappropriately to
inmate’s later-filed grievances do not establish the involvement of those officials and
administrators in the underlying constitutional deprivation); Ramos v. Pa. Dep’t of Corr., No. 06-
1444, 2006 WL 2129148, at *3 (M.D. Pa. July 27, 2006) (“[C]ontentions that certain correctional

officials violated an inmate’s constitutional rights by failing to follow proper procedure or take
corrective action following his submission of an institutional grievance are generally without
merit.”); Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997) (noting that a complaint
alleging that prison officials failed to respond to the inmate-plaintiff’s grievance does not state a
constitutional claim), aff’d, 142 F.3d 430 (3d Cir. 1998); see also Rode, 845 F.2d at 1207
(concluding that where a defendant, after being informed of the violation through the filing of
grievances, reports, or appeals, failed to take action to remedy the alleged wrong is not enough to
show that the defendant had the necessary personal involvement); Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985) (concluding that a mere “linkage in the prison chain of command” is not

sufficient to demonstrate personal involvement for purposes of a civil rights action).
In opposition, Plaintiff maintains that these Defendants “had knowledge of the violations
or past misbehaviors through [his] grievances and acquiesced in the violations by failing or
refusing to address or correct [them].” (Doc. No. 106 at 4.) Specifically, Plaintiff asserts that
they had notice “of the repeated failure or refusal to take preventative action and have the
plumbing [in the cells] fixed, repaired, or replaced and of the repeated failure or refusal to protect
and immediately remove him from the hazardous living conditions of those cells.” (Id. at 5.)
While the review of grievances will not establish personal involvement in an underlying
violation, several courts have concluded that a supervisory official may be held liable stemming
from the review of a grievance alleging an ongoing violation because the official “is personally
involved in that violation because he is confronted with a situation he can remedy directly.” See
Mayo v. Oppman, No. CV 17-311, 2018 WL 1833348, at *4 (W.D. Pa. Jan. 23, 2018), report and
recommendation adopted, 2018 WL 943528 (W.D. Pa. Feb. 20, 2018); Gibbs v. Univ. Corr.
Healthcare, No. CV 14-7138 (MAS) (LHG), 2016 WL 6595916, at *2 (D.N.J. Nov. 7, 2016);

Whitehead v. Rozum, No. 11-102, 2012 WL 4378193, at *2 (W.D. Pa. Aug. 7, 2012). In the
instant case, however, the evidence before the Court indicates that Plaintiff did not present these
Defendants with grievances intended to correct ongoing violations, but, rather, submitted
grievances only with the intention of addressing past violations. Cf. Talley v. Wetzel, No. 2:18-
cv-0230, 2018 WL 6198364, at *2-3 (W.D. Pa. Nov. 28, 2018) (concluding that the inmate-
plaintiff had stated plausible supervisory liability claims because he submitted grievances for
each day he was subjected to the challenged conditions). Thus, as a matter of law, Defendants
Mooney, Varner, Kelley, Shomper, Merritt, Weikel, Sccichitano, and Peters cannot be held liable
based upon their participation in after-the-fact review of his grievances. See Brooks, 167 F.

App’x at 925. Accordingly, the Court will grant summary judgment in favor of these Defendants
as to Plaintiff’s claims against them.26

26 Defendants also argue that Plaintiff has failed to allege that Defendant Kistler had any
personal involvement in the violations of his rights. (Doc. No. 99 at 11-14.) Upon review of
Plaintiff’s amended complaint, however, the Court disagrees with this assertion. To the extent
that Plaintiff seeks to hold Defendant Kistler liable based upon his responses to Plaintiff’s
grievances, he cannot for the reasons set forth above. However, as discussed infra, Plaintiff
alleges that Defendant Kistler retaliated against him by refusing to move him from the hard cell.
3. Plaintiff’s First Amendment Claims
a. Right to Redress Grievances
Plaintiff also maintains that Defendants interfered with his First Amendment right to seek
redress of his grievances, presumably due to their failure to his grievances in a way that was
favorable to him. (Doc. No. 33 ¶¶ 187, 190, 193, 196, 199, 202.) Prisoners, however, do not

have a constitutional right to prison grievance procedures. See Heleva v. Kramer, 214 F. App’x
244, 247 (3d Cir. 2007). Thus, a prison official’s failure to investigate or respond favorably to
an inmate’s grievances does not constitute a constitutional violation. See Stringer v. Bureau of
Prisons, Fed. Agency, 145 F. App’x 751, 753 (3d Cir. 2005); Thibodeau v. Watts, No. 1:CV-05-
2505, 2006 WL 89213, at *5 (M.D. Pa. Jan. 6, 2006). Moreover, while “[p]risoners do have a
constitutional right to seek redress of their grievances from the [G]overnment, . . . that right is
the right of access to the courts, and this right is not compromised by the failure of the prison to
address his grievances.” See Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997).
To the extent Plaintiff alleges that Defendants violated his rights to access the courts, he

cannot maintain such a claim. In order to sustain such a claim, an inmate must allege facts
demonstrating an “actual injury” to his litigation efforts. See Lewis v. Casey, 518 U.S. 343, 349
(1996). To establish an actual injury, an inmate must demonstrate that a non-frivolous legal
claim had been frustrated or was being impeded. See id.; see also O’Connell v. Williams, 241 F.
App’x 55, 57 (3d Cir. 2007). “[A]n inmate cannot establish a relevant actual injury simply by
establishing that his prison’s law library or legal assistance . . . is subpar in some theoretical
sense.” Lewis, 518 U.S. at 351; see also Monroe v. Beard, 536 F.3d 198, 206 (3d Cir. 2008)
(observing that a “claim rest[ing] solely on the ground that the defendants confiscated . . . legal
materials” is insufficient on its face to support a denial of access to the courts claim). Rather, to
establish a right of access to the courts claim, a plaintiff must plead that he lost an opportunity to
file a case in court and that he could not subsequently file that case after the interference with the
right of access to the court ceased. See Christopher v. Harbury, 536 U.S. 403, 415 (2002). In the
instant case, nothing in the record establishes that Plaintiff either lost an opportunity to file a case
in court or that he could not subsequently file a case after the alleged interference with his right

of access to the courts ceased. Thus, the Court will grant Defendants summary judgment as to
Plaintiff’s claims that Defendants violated his First Amendment right to redress his grievances.
b. Right to Freedom of Speech and Expression
Plaintiff next suggests that Defendants’ actions violated his First Amendment rights to
freedom of speech and expression. (Doc. No. 33 ¶¶ 187, 190, 193, 196, 199, 202.)
“[I]mprisonment does not automatically deprive a prisoner of certain important constitutional
protections, including those of the First Amendment.” Beard v. Banks, 548 U.S. 521, 528
(2006). The Constitution, however, “sometimes permits greater restriction of such rights in a
prison than it would allow elsewhere.” See id. To recover under § 1983 for a violation of this

First Amendment right, a plaintiff “must allege that the defendant intended to inhibit speech
protected by the First Amendment, and that his ‘speech was in fact chilled or intimidated.’” See
Proverb v. O’Mara, No. 08-cv-431-PB, 2009 WL 368617, at *14 (D.N.H. Feb. 13, 2009)
(quoting Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989)). Here, nothing in the record
establishes that Defendants acted in any way intended to inhibit Plaintiff’s right to free speech or
expression. Accordingly, the Court will grant summary judgment to Defendants as to these
claims.
c. Right to Be Free from Defamation
Next, Plaintiff maintains that Defendants’ actions violated his First Amendment right to
be free from defamation of character. (Doc. No. 33 ¶¶ 187, 190, 193, 196, 199, 202.)
Defamation, however, is actionable under § 1983 only “if it occurs in the course of or is
accompanied by a change or extinguishment of a right or status guaranteed by state law or the

Constitution.” See Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989). Thus, “to make out
a . . . claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his
reputation plus deprivation of some additional right or interest.” See Hill v. Borough of
Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). This showing has become known as the “stigma
plus” test. See Graham v. City of Phila., 402 F.3d 139, 142 n.2 (3d Cir. 2005). “To satisfy the
‘stigma’ part of the test, it must be alleged that the purportedly stigmatizing statement(s) (1) were
made publicly, and (2) were false.” Hill, 455 F.3d at 236. “To satisfy the ‘plus’ requirement, a
plaintiff must demonstrate that the alleged defamation harming [his] reputation ‘occurs in the
course of or is accompanied by extinguishment of a right or status guaranteed by law or the

Constitution.’” Mun. Revenue Servs., Inc. v. McBlain, No. 06-4749, 2007 WL 879004, at *4
(E.D. Pa. Mar. 19, 2007).
Here, nothing in the record before the Court suggests that Defendants made public false
statements about Plaintiff. Likewise, nothing in the record suggests that any alleged defamation
extinguished a right or status guaranteed to Plaintiff by law or the Constitution. Accordingly, the
Court will grant Defendants summary judgment as to Plaintiff’s First Amendment claims
regarding defamation.
d. Retaliation
Plaintiff also raises retaliation claims against Defendants. Specifically, he asserts that:
(1) Defendants Kistler, Shipe, Krzykowski, Howel, Drucis, Burrows, and Heistand retaliated
against him by subjecting him to the hard cell conditions; (2) Defendant McDonald retaliated
against him by refusing him use of his nail clippers, writing a false misconduct, and placing him

on food loaf and movement restriction, which meant he could not shower or go to the exercise
yard for a week; (3) Defendants Lenker, McDonald, Baker, Novalis, Shipe, Heistand, Hayes, and
Howel retaliated against him by denying him a food tray; (4) Defendant Gilbert retaliated against
him by refusing to fix the leaks in his cell and by not immediately removing him from the cell
when it flooded on January 6, 2015; (5) Defendant Kelley retaliated against him by designating
Defendant Scicchitano to serve as the officer responding to his grievance; and (6) Defendants
Scicchitano, Mooney, Weikel, Shomper, Kistler, Peters, Varner, and Merritt retaliated against
him by dismissing his grievances. (Doc. No. 33 ¶¶ 190, 193, 196, 199, 202.) According to
Plaintiff, all of these actions were taken in retaliation for his submission of written grievances as

well as his verbal complaints. (Id. ¶¶ 190, 193, 196, 199, 202.) Defendants assert that they are
entitled to summary judgment on these claims because Plaintiff cannot establish two of the three
necessary elements for a claim of retaliation. (Doc. No. 99 at 16-17.)
To state a retaliation claim under the First Amendment, a plaintiff bears the burden of
satisfying three (3) elements. First, a plaintiff must prove that he was engaged in a
constitutionally protected activity. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
Second, a plaintiff must demonstrate that he “suffered some ‘adverse action’ at the hands of
prison officials.” See id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This
requirement is satisfied when the adverse action is “sufficient ‘to deter a person of ordinary
firmness’ from exercising his First Amendment rights.” See id. (quoting Suppon v. Dadonna,
2013 F.3d 228, 235 (3d Cir. 2000)). Third, a prisoner must prove that “his constitutionally
protected conduct was ‘a substantial or motivating factor’ in the decision to discipline him.” See
Rauser, 241 F.3d at 333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977)).

The mere fact that an adverse action occurs after either a complaint or grievance is filed
is relevant, but not dispositive, for the purpose of establishing a causal link between the two
events. See Lape v. Pennsylvania, 157 F. App’x 491, 498 (3d Cir. 2005). Only when the facts of
a particular case are “unusually suggestive” of a retaliatory motive will temporal proximity, on
its own, support an inference of causation. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503
(3d Cir. 1997). If a prisoner establishes a prima facie case of retaliation, the burden shifts to
prison officials to show, by a preponderance of the evidence, that “they would have made the
same decision absent the protected conduct for reasons reasonably related to a legitimate
penological interest.” See Rauser, 241 F.3d at 334. “This is often referred to as the ‘same

decision defense.’” Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). If the prison officials
can make this showing, it defeats the retaliation claim. See Carter v. McGrady, 292 F.3d 152,
159 (3d Cir. 2002).
In the instant case, Defendants concede that Plaintiff engaged in protected activity by
filing grievances. (Doc. No. 99 at 16); see also Mearin v. Vidonish, 450 F. App’x 100, 102 (3d
Cir. 2011). Plaintiff’s verbal complaints constitute protected activity, as well. See Brewer v.
Kamas, 533 F. Supp. 2d 318, 329 (W.D.N.Y. 2008) (citing Smith v. Woods, No. 9:03-CV-480,
2006 WL 1133247, at *10 (N.D.N.Y. 2006)); Davila-Bajana v. Holohan, No. 04-253 Erie, 2007
WL 2811633, at *5 (W.D. Pa. Sept. 24, 2007) (assuming that an inmate-plaintiff’s verbal
complaints were constitutionally protected activity). Defendants argue, however, that Plaintiff
cannot establish either that adverse action was taken by Defendants against him or the existence
of a causal connection between such adverse action and Plaintiff’s protected activity. (Doc. No.
99 at 16-17.) The Court considers these arguments in turn below.
To be actionable under § 1983, the adverse action “need not be great” but “must be more

than de minimus.” See McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006). As noted supra,
Plaintiff alleges several instances of adverse action. The United States Court of Appeals for the
Third Circuit has noted, however, that “[t]he denial of grievances is not an ‘adverse action’ for
retaliation purposes.” See Owens v. Coleman, 629 F. App’x 163, 167 (3d Cir. 2015). Likewise,
the Court finds that in this case, Plaintiff’s inability to use nail clippers on one occasion, the
denial of one food tray, and Plaintiff’s inability to shower and use the exercise yard for a week
do not rise to the level of adverse actions. See, e.g., Burgos v. Canino, 358 F. App’x 302, 307
(3d Cir. 2009) (concluding that denial of recreation period did not rise to the level of adverse
action); Quezada v. Fischer, No. 9:13-CV-00885 (MAD/TWD), 2017 WL 9509993, at *28

(N.D.N.Y. Aug. 31, 2017) (noting that the denial of a shower, soap, razor, and electric clippers
did not rise to the level of adverse action), report and recommendation adopted, Quezada v.
Gutwein, 2017 WL 4286304 (N.D.N.Y. Sept. 27, 2017); Martinez v. White, No. 5:13CV-P53-
GNS, 2015 WL 1611840, at *3 (W.D. Ky. Apr. 10, 2015) (concluding that denial of showers for
three days did not constitute adverse action); Purdie v. Graham, No. 9:09-CV-971 (GTS/ATB),
2012 WL 1085817, at *7 (N.D.N.Y. Feb. 29, 2012) (noting that the denial of several meals,
showers, and recreation for a few days is not sufficient to rise to the level of adverse action);
report and recommendation adopted in part and rejected in part, Purdie v. Connors, 2012 WL
1097321 (N.D.N.Y. Mar. 30, 2012); Kearney v. Goord, No. 09-CV-679, 2011 WL 1260076, at
*6 (W.D.N.Y. Mar. 4, 2011) (noting that the denial of several meals is de minimus); Lunney v.
Brureton, No. 04 Civ. 2438 (LAK) (GWG), 2007 WL 1544629, at *21 (S.D.N.Y. May 29, 2007)
(noting that “[c]ase law suggests that the isolated or sporadic denial of privileges do[es] not
suffice to state a claim of actionable retaliation”), report and recommendation adopted, 2007 WL
2050301 (S.D.N.Y. July 18, 2007). Moreover, receiving food loaf for a finite period of time is

insufficient adverse action. See Jordan v. Wetzel, No. 16-307, 2019 WL 1382512, at *5 (W.D.
Pa. Mar. 27, 2019); Branham v. Bergh, No. 2:06-cv-262, 2009 WL 728460, at *6 (W.D. Mich.
Mar. 11, 2009). Finally, Plaintiff’s receipt of an allegedly false misconduct does not rise to the
level of sufficient adverse action because the misconduct charge was later dismissed. See
Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (concluding that a misconduct charge
against an inmate-plaintiff, which is later dismissed, does not rise to the level of adverse action
for purposes of a retaliation claim). On the other hand, Plaintiff’s stay in the hard cell for eighty-
five (85) days is sufficient to permit Plaintiff to satisfy the second element of a retaliation claim.
See Bracey v. Price, No. 09-1662, 2012 WL 6015727, at *6 (W.D. Pa. Dec. 3, 2012) (suggesting

that placement in a hard cell for three (3) days was ‘objectively de minimus” to satisfy the
second element of a retaliation claim). Moreover, the Court assumes without deciding that
Defendant Gilbert’s alleged refusal to fix the leaking in Plaintiff’s cell and refusal to remove him
immediately from the cell after it flooded on January 6, 2015 constitutes adverse action sufficient
to satisfy the second element of a retaliation claim.
As noted above, Defendants also argue that Plaintiff has not demonstrated a causal
connection between these actions and his act of filing grievances. (Doc. No. 99 at 16-17.) While
causation may be established by direct or circumstantial evidence, “motivation is almost never
subject to proof by direct evidence.” See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).
Thus, motivation is typically demonstrated by “evidence of either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing that suggests a causal link.” See id.
In their brief in support of their motion for summary judgment, Defendants assert that
“there is no evidence that all of the Defendants knew of Plaintiff’s grievances and the

Defendants who were involved in responding to the grievances filed by Plaintiff were largely
uninvolved with his day-to-day routine.” (Doc. No. 99 at 16.) The Court agrees with
Defendants’ argument. Nothing in the evidence presently before the Court would permit a
finding that Defendants Kistler, Shipe, Drucis, Howel, Burrows, Heistand, Krzykowski, and
Gilbert were aware of any written grievances submitted by Plaintiff. See Daniels v. Sch. Dist. of
Phila., 776 F.3d 181, 196-97 (3d Cir. 2015) (noting that a plaintiff “cannot establish that there
was a causal connection without some evidence that the individuals responsible for the adverse
action knew of the plaintiff’s protected conduct at the time they acted”); Whitehead v. Rozum,
No. 09-220J, 2012 WL 4078422, at *6 (W.D. Pa. Aug. 14, 2012) (concluding that the inmate-

plaintiff had failed to demonstrate that corrections officers were “aware of his filing of . . .
grievances such as to establish any motivating factor”), report and recommendation adopted,
2012 WL 4086717 (W.D. Pa. Sept. 17, 2012).
As noted above, Plaintiff’s verbal complaints regarding the conditions in the cells also
constitute protected activity. In their reply brief, Defendants argue that Plaintiff cannot show
that his complaints substantially motivated Defendants’ actions because they did not have the
authority to move him. (Doc. No. 110 at 5-6.) This assertion, however, contradicts Defendants’
statement of undisputed material facts, in which Defendants state that while Defendant Heistand
did not have authority to move Plaintiff, Defendants Kistler, Shipe, Krzykowski, Drucis, and
Howel did have such authority. (Doc. No. 85 ¶ 13.) Moreover, nothing in the record before the
Court suggests that Defendant Gilbert did not have the authority to address the leaking sink and
toilet or to remove Plaintiff from the cell immediately when it flooded on January 6, 2015. Upon
review of the record, the Court finds that the evidence establishes that Defendants Heistand and
Burrows had no authority to move Plaintiff from the hard cell despite his complaints. Plaintiff,

therefore, cannot maintain his retaliation claims against them, for these Defendants “would have
made the same decision absent the protected conduct.” See Rauser, 241 F.3d at 334; see also
Carter, 292 F.3d at 159. Thus, the Court will grant summary judgment to Defendants with
respect to Plaintiff’s retaliation claims against Defendants Heistand and Burrows.
However, in light of the evidence presented by the parties, it is the Court’s view that there
are genuine disputes of material fact regarding whether the adverse action Plaintiff suffered is
causally connected to Plaintiff’s verbal complaints to Defendants Kistler, Shipe, Drucis, Howel,
Krzykowski, and Gilbert. Such issues of fact will likely turn on a credibility assessment, a task
in which this Court may not partake at the summary judgment stage. See Anderson, 477 U.S. at

252. Given the discrepancies in the parties’ view of the events, and viewing the facts in the light
most favorable to Plaintiff, a reasonable juror could conclude that Defendants Kistler, Shipe,
Drucis, Howel, and Krzykowski refused to move Plaintiff from the hard cell and that Defendant
Gilbert refused to take action regarding the leaking toilet and sink and refused to remove
Plaintiff from the cell immediately after the flood because of Plaintiff’s conduct in making verbal
complaints as to his conditions of confinement. Accordingly, the Court will deny summary
judgment as to Plaintiff’s retaliation claims against Defendants Kistler, Shipe, Drucis, Howel,
Krzykowski, and Gilbert.
4. Plaintiff’s Sixth Amendment Claim
Plaintiff vaguely alleges that Defendants’ actions violated his right to access the courts
under the Sixth Amendment. (Doc. No. 33 ¶ 187.) The Sixth Amendment provides, in pertinent
part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . and to have the Assistance of Counsel for his defence.” See

U.S. Const. amend. VI. The Sixth Amendment, however, does not govern civil cases. See
Turner v. Rogers, 564 U.S. 431, 441 (2011). Moreover, to the extent that Plaintiff believes his
Sixth Amendment rights were violated during his prison disciplinary proceedings, his claim
lacks merit “because the Sixth Amendment guarantees apply only to criminal prosecutions and
prison disciplinary proceedings are not criminal prosecutions within the meaning of the Sixth
Amendment.” See Smith v. Holt, No. 4:CV-05-1889, 2006 WL 485352, at *2 (M.D. Pa. Feb.
28, 2006) (quoting Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Kirby v. Illinois, 406 U.S.
682, 690 (1972)). Thus, the Court will grant Defendants summary judgment on Plaintiff’s Sixth
Amendment claim.

5. Plaintiff’s Eighth Amendment Claims
Plaintiff also maintains that Defendants subjected him to various unconstitutional
conditions of confinement in violation of the Eighth Amendment. The Eighth Amendment
prohibits the infliction of cruel and unusual punishment on prisoners. There are several types of
Eighth Amendment claims, including claims alleging: denial of, or inadequate access to, medical
care; exposure to adverse conditions of confinement; and the use of excessive force by prison
guards. An Eighth Amendment claim includes both objective and subjective components. See
Wilson v. Seiter, 501 U.S. 294, 298 (1991). Serious hardship to the prisoner is required to
satisfy the Eighth Amendment’s objective component. See id. The subjective component is met
if the person or persons causing the deprivation acted with “a sufficiently culpable state of
mind.” See id.
In order to succeed on a claim as to one’s conditions of confinement, a plaintiff must
establish that: “(1) he was incarcerated under conditions imposing a substantial risk of serious
harm, (2) the defendant-official was deliberately indifferent to that substantial risk to his health

and safety, and (3) the defendant-official’s deliberate indifference caused him harm.” See
Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2015). “[T]he Constitution does not mandate
comfortable prisons.” Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Therefore, conditions of
imprisonment violate the Eighth Amendment only if they, “alone or in combination . . . deprive
inmates of the minimal civilized measures of life’s necessities.” See id. at 347. Such necessities
include “adequate food, clothing, shelter, and medical care.” See Farmer, 511 U.S. at 832.
Thus, “extreme deprivations are required to make out a conditions-of-confinement claim.” See
Hudson, 503 U.S. at 9. The Court addresses each deprivation alleged by Plaintiff in turn.
a. Conditions in the Hard Cell

Plaintiff first suggests that Defendants Kistler, Shipe, Krzykowski, Howel, Drucis,
Burrows, and Heistand violated his Eighth Amendment rights by subjecting him to various
conditions in the hard cell for eighty-five (85) days. (Doc. No. 33 ¶ 190.) Specifically, Plaintiff
maintains that his Eighth Amendment rights were violated when he was forced to consume the
“foul drinking water” that left black marks inside of his cup and when he had to “eat/read/and
write standing or sitting in awkward positions” because he did not have a table and stool. (Id.)
As an initial matter, the fact that Plaintiff did not have a table or stool during his
confinement in the hard cell fails to establish a violation of the Eighth Amendment. See
Freeman v. Miller, 615 F. App’x 72, 77-78 (3d Cir. 2015) (concluding that the inmate-plaintiff
could not maintain an Eighth Amendment claim based upon the denial of a desk, seat, showers,
mattress, soap, recreation, mail, and toilet paper during placement in a hard cell). With respect
to Plaintiff’s claim regarding the drinking water, while “[p]oisoning the prison water supply or
deliberately inducing cancer in a prisoner would be forms of cruel and unusual punishment,” a
prison’s failure to “provide a maximally safe environment, one completely free from pollution or

safety hazards,” is not. See Carroll v. DeTella, 255 F.3d 470, 472-73 (7th Cir. 2001). In the
context of Plaintiff’s claim, “the objective prong requires him to demonstrate that he was
personally exposed to unreasonably high levels of contaminated water.” See Smith v. Buskirk,
No. 12-4259, 2015 WL 328238, at *3 (E.D. Pa. Jan. 22, 2015) (citing Helling v. McKinney, 509
U.S. 25, 35 (1993)). This prong requires “more than a scientific and statistical inquiry into the
seriousness of the potential harm and the likelihood that such an injury to health will actually be
caused by exposure” to the contaminants, but also an assessment by the Court as to whether the
contamination is “so grave that it violates contemporary standards of decency to expose anyone
unwilling to such a risk.” See Helling, 509 U.S. at 36.

In his verified complaint and affidavit, Plaintiff maintains that he suffered a sore throat,
nausea, and stomach pain from drinking the water in the hard cell, and that the water left black
marks in his Styrofoam cup. (Doc. Nos. 33 ¶ 45, 106-3 ¶ 12.) As indicated above, the Court has
deemed the facts set forth by Defendants to be undisputed unless otherwise noted. However, the
Court must also view the facts and all reasonable inferences in favor of the nonmoving party.
See Clement, 963 F.2d at 600; White, 862 F.2d at 59; see also Pearson v. Prison Health Serv.,
850 F.3d 526, 541 n.5 (3d Cir. 2017) (noting that “when deciding a motion for summary
judgment, ‘the evidence of the non-movant is to be believed’” (quoting Anderson, 477 U.S. at
255)). Thus, having construed the material factual disputes regarding the drinking water in favor
of Plaintiff, the non-movant, the Court concludes that one may reasonably infer that the drinking
water in the hard cell had some level of contamination. Plaintiff, however, fails to cite any
evidence, other than his own statements, that his ailments were caused by the drinking water and,
in addition, has made “no showing that such exposure [to the drinking water] violated
contemporary standards of decency.” See Brown v. Williams, 399 F. Supp. 2d 558, 566 (D. Del.

2005); see also Wolfe v. Christie, No. 10-2083, 2013 WL 3223625, at *5 (D.N.J. June 25, 2013)
(granting summary judgment where the inmate-plaintiff who asserted contaminated water caused
an occasional rash did not provide any evidence that the water as actually contaminated);
Crocamo v. Hudson Cty. Corr. Facility, No. 06-1441, 2007 WL 1175753, at *6 (D.N.J. Apr. 19,
2007) (granting summary judgment where the plaintiffs who alleged unsanitary drinking water
caused them to experience rashes and skin infections failed to produce “any evidence upon
which a reasonable jury could find a constitutional violation had occurred”). As the United
States Court of Appeals for the Seventh Circuit has noted, “the Eighth Amendment does not
require prisons to provide prisoners with more salubrious air, healthier food, or cleaner water

than are enjoyed by a substantial number of free Americans.” See Carroll, 255 F.3d at 472.
As to the subjective factor, the Court finds that Plaintiff has presented no evidence from
which a factfinder could conclude that Defendants both were aware of a substantial risk to
inmate health or safety and then affirmatively disregarded that risk. Even though Plaintiff
complained about the water to Defendants Kistler, Shipe, Drucis, Howel, Burrows, Heistand, and
Krzykowski, the pertinent evidence of record does not indicates that these Defendants knew that
the water posed any serious health risks. Moreover, in response to Plaintiff’s grievance
regarding the water, Defendant Shomper replied that the drinking water came “from the local
municipal water company which supplies to thousands of customers and is tested regularly.”
(Doc. No. 106-4 at 30.) In light of this evidence, the Court cannot conclude that there is a
genuine issue of material fact as to whether Defendants had the requisite awareness to support a
finding of deliberate indifference in this case. See Smith, 2015 WL 328238, at *5 (concluding
same). Accordingly, the Court will grant summary judgment to Defendants with respect to
Plaintiff’s claims concerning conditions in the hard cell.

b. Denial of Fingernail Clippers
Next, Plaintiff suggests that Defendant McDonald violated his Eighth Amendment rights
by denying him use of his fingernail clippers. (Doc. No. 33 ¶ 193.) The Third Circuit, however,
has held that the withholding of nail clippers is not sufficient to maintain a violation of the
Eighth Amendment. See Washington v. Grace, 445 F. App’x 611, 616 (3d Cir. 2011)
(summarily noting that an inmate-plaintiff cannot maintain an Eighth Amendment claim based
upon the denial of nail clippers). Accordingly, the Court will grant Defendants summary
judgment as to this claim.
c. Receipt of Food Loaf

Plaintiff next maintains that Defendants violated his Eighth Amendment rights by placing
him on “ice-cold food loaf” for nine (9) meals. (Doc. No. 33 ¶ 193.) “A Food Loaf is a 29-30
ounce loaf (raw weight) made of various food ingredients as specified by the [DOC’s]
standardized recipe . . . that when blended together and baked, contains all the necessary caloric
and nutritional requirements.” Brown v. Sobina, No. 08-128E, 2009 WL 5173717, at *6 (W.D.
Pa. Dec. 29, 2009). While inmates have a right to a nutritionally adequate diet, see Laufgas v.
Speziale, 263 F. App’x 192, 198 (3d Cir. 2008), they have no constitutional right to be served a
particular type of meal. See Burgin v. Nix, 899 F.2d 733, 734-35 (8th Cir. 1990). Thus,
“placing a prisoner on a food loaf diet for a limited period of time has . . . been found not to
assert a viable Eighth Amendment violation.” See Wilson v. Wetzel, No. 3:CV-12-5, 2013 WL
4812497, at *6 (M.D. Pa. Sept. 9, 2013); see also Banks v. Meck, No. 10-555, 2013 WL
1101135, at *4 (W.D. Pa. Jan. 31, 2013), report and recommendation adopted, 2013 WL
1101127 (W.D. Pa. Mar. 15, 2013) (collecting cases noting that subjecting inmates to food loaf
for as long as fourteen (14) days does not violate the Eighth Amendment). Likewise, the receipt

of cold meals does not violate the Eighth Amendment. See Mosley v. Haidle, No. 3:18-CV-
0305, 2018 WL 5263432, at *3-4 (M.D. Pa. Oct. 23, 2018). Accordingly, because Plaintiff
cannot maintain an Eighth Amendment claim regarding the receipt of food loaf, the Court will
grant Defendants summary judgment on this claim.
d. Denial of Dinner Tray
Next, Plaintiff contends that Defendant Howel violated his Eighth Amendment rights by
denying him a dinner tray, and that Defendants Shipe, Heistand, and Hayes violated his rights by
refusing to intervene when they observed Defendant Howel doing so. (Doc. No. 33 ¶ 196.)
Plaintiff maintains that their actions caused him to go approximately 20 ½ hours without food.

(Id.)
Even crediting Plaintiff’s allegations as true, the Court concludes that Plaintiff has not
demonstrated that the denial of a dinner tray violated his Eighth Amendment rights. As the
Third Circuit has noted, “[t]he purported deprivation of a single meal is not of such magnitude as
to rise to the level of a constitutional violation.” See Lindsey v. O’Connor, 327 F. App’x 319,
321 (3d Cir. 2009). Accordingly, the Court will grant Defendants summary judgment as to this
claim.
e. Placement on Movement Restriction
Finally, Plaintiff maintains that his Eighth Amendment rights were violated when he was
placed on movement restriction for seven (7) days, resulting in an inability to shower or access
the exercise yard during that time. (Doc. No. 33 ¶ 193.) Plaintiff’s inability to shower for seven
(7) days, however, does not rise to the level of an Eighth Amendment violation, and nothing in

the record suggests that Plaintiff was unable to use soap and water to clean himself in his cell.
See Barndt v. Wenerowicz, 698 F. App’x 673, 677 (3d Cir. 2017) (concluding that the denial of
showers for twenty-eight (28) days did not rise to the level of an Eighth Amendment violation);
Briggs v. Heidlebaugh, No. Civ. A. 96-3884, 1997 WL 318081, at *3 (E.D. Pa. May 21, 1997)
(concluding that a denial of showers for two (2) weeks does not amount to a constitutional
violation).
Likewise, Plaintiff’s inability to access the exercise yard during that seven (7)-day period
fails to rise to the level of a constitutional violation. The Third Circuit “has never extensively
addressed in a precedential opinion when a deprivation of outdoor exercise amounts to a

substantial deprivation.” See Barndt, 698 F. App’x at 677. The Court of Appeals has noted,
however, that “when making this determination, courts should consider the totality of the
circumstances, including, but not limited to, the length of the deprivation, the availability of
recreation within the cell, and whether the inmate suffered any ill health effects as a result of the
deprivation.” See id. In the instant case, there is no evidence of record suggesting that Plaintiff
was unable to exercise within his cell and that he suffered any ill health effects. Moreover, the
deprivation of outdoor exercise for seven (7) days was not a substantial deprivation. See id.
(concluding that the inmate-plaintiff could not maintain an Eighth Amendment claim based upon
deprivation of outdoor exercise for twenty-eight (28) days). Accordingly, because the denial of
showers and outdoor exercise for seven (7) days does not rise to the level of an Eighth
Amendment violation, the Court will grant Defendants summary judgment as to Plaintiff’s claim
regarding his placement on movement restriction.
f. Conditions Pertaining to Cell Leaking and Flooding
Finally, Plaintiff asserts that Defendant Gilbert violated his Eighth Amendment rights by

failing to have the leaking toilet and sink fixed, failing to “take substantial and immediate action”
after Plaintiff notified him of his knee wound, and refusing to remove Plaintiff from his cell
immediately after it flooded on January 6, 2015. (Doc. No. 33 ¶ 199.) Defendants maintain that
they are entitled to summary judgment because these alleged failures do not rise to the level of
constitutional violations. (Doc. No. 99 at 27-30.) The Court considers each allegation in turn.
Plaintiff first takes issue with Defendant Gilbert’s alleged failure to have the leaking
toilet and sink fixed. While “[u]nsanitary conditions can be cruel and unusual,” see Allah v.
Bartkowski, 574 F. App’x 135, 138 (3d Cir. 2014), “the mere presence of an unsanitary
condition at a given point in time does not rise to the level of an Eighth Amendment violation.”

See Walker v. Regan, No. 13-7556, 2018 WL 347685, at *3 (E.D. Pa. Jan. 9, 2018). For
example, the Third Circuit has found that confinement in a cell for thirty (30) days with a toilet
that often backed up and overflowed is not sufficient to maintain an Eighth Amendment claim.
See Burkholder v. Newton, 116 F. App’x 358, 363 (3d Cir. 2004). Likewise, being held in a cell
with an overflowing toilet and being “made to endure the stench of [one’s] own feces and urine”
does not rise to the level of an Eighth Amendment violation. See Smith v. Copeland, 87 F.3d
265, 268 (8th Cir. 1996). Moreover, while the undisputed facts indicate that Plaintiff complained
about the leaks to Defendant Gilbert, the record is devoid of any evidence suggesting that
Defendant Gilbert “subjectively knew of and appreciated a substantial risk of harm with regard
to that leak.” See Santiago v. Guarini, No. 03-4375, 2004 WL 2137822, at *2 (E.D. Pa. Sept. 20,
2004). While Plaintiff did slip and fall because of water on the floor, “[s]lippery prison
floors . . . do not state even an arguable claim for cruel and unusual punishment.” See LeMaire
v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993); see also Santiago, 2004 WL 2137822, at *2
(concluding that a toilet and sink leak in inmate’s cell, which caused a slip-and-fall injury, did

not present a substantial risk to the inmate’s safety and were not objectively serious conditions).
Plaintiff next faults Defendant Gilbert for not “tak[ing] substantial and immediate action”
after Plaintiff notified him of his knee wound. In the context of medical care, the Eighth
Amendment “requires prison officials to provide basic medical treatment to those whom it has
incarcerated.” See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). In order to establish an
Eighth Amendment deliberate indifference claim, a claimant must demonstrate “(i) a serious
medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to
that need.” See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). A
serious medical need 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.” See Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987). Not every condition is a serious medical need; instead, the serious medical need element
contemplates a condition of urgency, namely, one that may produce death, degeneration, or
extreme pain. See id. 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.” See Rouse, 182 F.3d at 197.
However, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants
are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be
chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” See
Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).
Assuming arguendo that Plaintiff’s open wound on his knee constitutes a serious medical
need, there is no evidence of record that would reasonably permit a factfinder to conclude that

Defendant Gilbert displayed deliberate indifference to Plaintiff’s needs. The undisputed facts
indicate that Plaintiff notified Defendant Gilbert of his injury and that Defendant Gilbert
responded that he would notify the medical department. While medical staff did not come
immediately, nothing in the record presently before the Court suggests that Defendant Gilbert
failed to notify the medical department of Plaintiff’s injury or delayed his receipt of treatment in
any way. In sum, the Court finds that Plaintiff simply has not demonstrated that Defendant
Gilbert had a sufficiently culpable state of mind to sustain an Eighth Amendment claim
regarding his knee wound against him.
Plaintiff next contends that Defendant Gilbert violated his Eighth Amendment rights by

failing to remove him from his cell immediately when it flooded on January 6, 2015. As noted
supra, the flood caused feces and urine to emanate from the sink and toilet and spread to about
four (4) other cells. (Doc. No. 85 ¶ 43.) Extension cords and electrical wires for Plaintiff’s
typewriter, radio, and television were submerged in the water. (Id. ¶ 44.) After Plaintiff
complained to Defendant Gilbert, Defendant Gilbert indicated he would call maintenance, and
maintenance responded “hours later.” (Id. ¶¶ 45-46.) Plaintiff was not removed from the cell
until maintenance responded. (Id. ¶ 46.)
While the conditions Plaintiff describes are unpleasant, the Court agrees with Defendants
that they do not rise to the level of an Eighth Amendment violation. In this regard, the Court
must consider the length and degree of exposure to such conditions, for such conditions “might
be tolerable for a few days and intolerably cruel for weeks or months.” See Hutto v. Finney, 437
U.S. 678, 686-87 (1978). The undisputed facts establish that Plaintiff remained in the cell after
the flood for a matter of hours. Courts have concluded that exposure to human waste for longer
periods of time was insufficient to establish an Eighth Amendment claim. See, e.g., Smith v.

Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996) (concluding that an inmate-plaintiff who was
housed for four (4) days in a cell with raw sewage from an overflowing toilet failed to state an
Eighth Amendment claim); Spears v. Ferguson, No. 08-5203, 2010 WL 909202, at *6 (W.D.
Ark. Mar. 11, 2010) (finding no Eighth Amendment violation when the inmate-plaintiff spent
nineteen (19) hours in a cell with residue, including excrement, resulting from flooding). But see
DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (concluding that the inmate-plaintiff who
alleged that flood conditions backed up toilets and caused exposure to urine and feces in the
standing water for three (3) days stated an Eighth Amendment violation); McBride v. Deer, 240
F.3d 1287, 1291 (10th Cir. 2001) (concluding that forcing an inmate-plaintiff to live in a feces-

covered cell for three (3) days violated the Eighth Amendment). Thus, after having considered
the undisputed facts and relevant evidence of record in light of the governing authority, the Court
concludes Plaintiff cannot maintain an Eighth Amendment claim against Defendant Gilbert for
failing to remove him from the flooded cell immediately on January 6, 2015.
In sum, Plaintiff has not demonstrated that Defendant Gilbert violated his Eighth
Amendment rights with respect to the cell flooding and Plaintiff’s wound. Accordingly, the
Court will grant summary judgment to Defendants as to these claims.
6. Plaintiff’s Ninth Amendment Claims
Plaintiff further asserts that Defendants’ actions violated his rights under the Ninth
Amendment. (Doc. No. 33 ¶¶ 187, 190-91, 193-94, 196, 199, 202.) The Ninth Amendment,
however, “does not independently provide a source of individual constitutional rights.” See
Clayworth v. Luzerne Cty., 513 F. App’x 134, 137 (3d Cir. 2013); see also Soder v. Chenot, No.

4:CV 06-1522, 2007 WL 1098970, at *4 (M.D. Pa. Apr. 11, 2007) (“The Ninth Amendment does
not independently secure any substantive constitutional rights, but rather has been interpreted to
be a rule of construction. . . . A § 1983 civil rights claim premised on the Ninth Amendment
fails because there are no constitutional rights secured by that amendment.”). Thus, the Court
will grant Defendants summary judgment on Plaintiff’s Ninth Amendment claims.
7. Plaintiff’s Fourteenth Amendment Claims
Plaintiff also maintains that Defendants’ actions violated his rights under the Fourteenth
Amendment’s privileges and immunities, due process, and equal protection clauses. (Doc. No.
33 ¶¶ 187, 190, 193, 196, 199, 202.) Plaintiff also suggests that Defendants violated his

Fourteenth Amendment right to be free from the use of excessive force. (Id. ¶ 187.) The Court
considers in each in turn below.
i. Privileges and Immunities Clause
To maintain a claim under the Fourteenth Amendment’s Privileges and Immunities
Clause, a plaintiff must show “(1) a violation of a fundamental right; and (2) a determination as
to whether there are substantial reasons for discrimination and whether the degree of
discrimination bears a close relation to them.” See Thomas v. Cianfrani, No. 01-3096, 2009 WL
1704471, at *8 (E.D. Pa. June 17, 2009) (internal quotation marks omitted) (quoting Salem v.
Blue Collar Workers Ass’n v. City of Salem, 33 F.3d 265, 268 (3d Cir. 1994)). The Clause
“only applies to uniquely federal rights.” See id. (citing Slaughter-House Cases, 83 U.S. 36, 73-
74 (1873)). For example, such rights include “the right to inform federal officials of violations
of federal law, the right to be free from violence while in the lawful custody of a United States
marshal, the right to enter the public lands, the right to vote in national elections, the right to
petition Congress for redress of grievances, and the right to pass freely from state to state.” See

In re Sacred Heart Hosp. of Norristown, 133 F.3d 237, 245 n.11 (3d Cir. 1988). Since Slaughter-
House, “the Privileges and Immunities Clause . . . has remained essentially moribund . . . and the
Supreme Court has subsequently relied almost exclusively on the Due Process Clause as the
source of unenumerated rights.” See id. at 244 (internal quotation marks omitted). In the instant
action, Plaintiff’s amended complaint does not implicate any of these unique federal rights.
Accordingly, because the record contains no suggestion of a violation of a fundamental right
under the Privileges and Immunities Clause, Defendants will be granted summary judgment as to
these claims.
ii. Due Process

Plaintiff also suggests that Defendants’ actions violated his right to due process under the
Fourteenth Amendment. (Doc. No. 33 ¶¶ 187, 190, 193, 196, 199, 202.) Specifically, Plaintiff
maintains that Defendants’ actions infringed on his liberty interests in redressing his grievances,
remaining free from retaliation and cruel and unusual punishment, having access to safe drinking
water, being protected from hazardous living conditions, being able to shower, and not being
denied basic human needs. (Id.) Essentially, Plaintiff’s allegations are premised on violations of
his First, Sixth, and Eighth Amendment rights, as set forth above.
In adopting the “more-specific-provision-rule” established in County of Sacramento v.
Lewis, 523 U.S. 833, 843-44 (1998), the Third Circuit noted that “[u]nder this rule, ‘if a
constitutional claim is covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process.’” See Betts v. New Castle Dev. Ctr.,
621 F.3d 249, 260-61 (3d Cir. 2010). Here, because Plaintiff’s alleged due process violations fit
squarely within his First, Sixth, and Eighth Amendment claims, this rule forecloses any

substantive due process claims Plaintiff may be raising. Thus, the Court will grant summary
judgment to Defendants as to these claims.
While not clear from the complaint, Plaintiff may also be raising a procedural due
process claim challenging his placement in a “hard cell” in the RHU for 85 days. Procedural due
process protection, however, “for a state created liberty interest . . . is limited to those situations
where deprivation of that interest ‘imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’” See Griffin v. Vaughn, 112 F.3d 703, 706 (3d
Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). The Third Circuit has
“concluded that placement in restrictive confinement for periods of up to one year, and more,

does not trigger a constitutionally protected liberty interest as it does not constitute an atypical
and significant hardship in relation to the ordinary incidents of prison life.” See Torrealba v.
Hogsten, No. 3:CV-06-0108, 2009 WL 3242293, at *9 (M.D. Pa. Oct. 8, 2009) (citing Smith v.
Mensinger, 293 F.3d 641 (3d Cir. 2002)); see also Wilson v. Hogsten, 269 F. App’x 193, 195-96
(3d Cir. 2008) (concluding that a prisoner’s placement in administrative detention and an
extended stay in the special housing unit did not constitute atypical and significant hardships).
Nothing in the record before the Court suggests that during his 85-day stay in a “hard cell” in the
RHU, Plaintiff was subjected to atypical and significant hardship. Accordingly, the Court will
grant Defendants summary judgment as to Plaintiff’s procedural due process claim.
iii. Equal Protection
Plaintiff further claims that Defendants’ actions violated his right to equal protection
under the Fourteenth Amendment. (Doc. No. 33 ¶¶ 187, 190, 193, 196, 199, 202.) The Equal
Protection Clause requires all persons “similarly situated” to be treated alike by state actors. See
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Traditionally, “[i]n order to

establish a prima facie case of discrimination under the Equal Protection Clause, [plaintiffs]
need[] to prove that they were members of a protected class [such as race or gender] and that
they received different treatment than that received by similarly-situated individuals.” See
Oliveira v. Twp. of Irvington, 41 F. App’x 555, 559 (3d Cir. 2002).
However, where a plaintiff alleges that he alone “has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment,” he may raise a “class of one” equal protection claim. See Engquist v. Or. Dep’t of
Agric., 553 U.S. 591, 598 (2008). To maintain such a claim, a plaintiff must establish that he has
been irrationally singled out for disparate treatment. See id. “[A]t the very least, to state a claim

under [a class of one theory], a plaintiff must allege that (1) the defendant treated him differently
from others similarly situated, (2) the defendant did so intentionally, and (3) there was no
rational basis for the difference in treatment.” Mosca v. Cole, 217 F. App’x 158, 164 (3d Cir.
2007). When alleging the existence of similarly situated individuals, plaintiffs “cannot use
allegations . . . that amount to nothing more than ‘conclusory, boilerplate language’ to show that
he may be entitled to relief,” and “bald assertion[s] that other[s] . . . were treated in a dissimilar
manner” will not suffice. See Young v. New Sewickley Twp., 160 F. App’x 263, 266 (3d Cir.
2005) (citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)).
In the instant case, Plaintiff does not state that he is a member of a protected class.
Indeed, prisoners are not a protected class of individuals. See Abdul-Akbar v. MeKelvie, 239
F.3d 307, 317 (3d Cir. 2001) (concluding that prisoners are not a subject class). Moreover, the
only evidence before the Court pertaining to other inmates indicates that other inmates in cells
neighboring Plaintiff’s cell did not experience issues with their water supply. (Doc. No. 86-1 at

15.) Nothing in the record before the Court, however, suggests that Defendants intentionally
treated Plaintiff differently from other inmates or treated other inmates more favorably in any
respect. Plaintiff’s allegations that his equal protection rights were violated are simply “bald
assertions” that fail to allege “occasions and circumstances” of different treatment. See Young,
160 F. App’x at 266. Accordingly, the Court will grant Defendants summary judgment as to
Plaintiff’s equal protection claims.
iv. Excessive Force
Plaintiff suggests that the “force of keeping [him] subject to the hazardous conditions of
the hard cell” violated his right to be free from excessive force under the Fourteenth

Amendment. (Doc. No. 106-1 ¶ 7.) Plaintiff cannot maintain a Fourteenth Amendment
excessive force claim because he is not a pretrial detainee. See Sylvester v. City of Newark, 120
F. App’x 419, 423 (3d Cir. 2005) (noting that excessive force claims for pretrial detainees are
analyzed under the Fourteenth Amendment). Accordingly, the Court will grant Defendants
summary judgment as to Plaintiff’s Fourteenth Amendment excessive force claim.27

27 To the extent Plaintiff asserts an excessive force claim under the Eighth Amendment, nothing
in the record suggests that Defendants used physical force against him that involved the
“unnecessary and wanton infliction of pain.” See Whitley v. Albers, 475 U.S. 312, 319 (1986).
Thus, Defendants are entitled to summary judgment on any Eighth Amendment excessive force
claim that Plaintiff may be asserting.
8. Plaintiff’s Universal Declaration of Human Rights Claims
Plaintiff also maintains that Defendants’ actions violated his rights under the Universal
Declaration of Human Rights. (Doc. No. 33 ¶¶ 188, 190-91, 193-94, 197, 200, 203.) The
Universal Declaration of Human Rights, however, “is a non-binding declaration that provides no
private rights of action.” See United States v. Chatman, 351 F. App’x 740, 741 (3d Cir. 2009)

(citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004)). Accordingly, Defendants will be
granted summary judgment on Plaintiff’s Universal Declaration of Human Rights claims.
9. Plaintiff’s State Law Claims
Finally, Plaintiff raises various state law tort claims based upon Defendants’ actions,
including claims for intentional infliction of emotional distress, negligence, gross negligence,
abuse of process, and conspiracy. (Doc. No. 33 ¶¶ 189, 192, 195, 198, 201, 204.) Defendants
assert that they are protected from these claims by operation of the doctrine of sovereign
immunity. (Doc. No. 99 at 37-38.)
Under Pennsylvania’s sovereign immunity statute, “the Commonwealth, and its officials

and employees acting within the scope of their duties, shall continue to enjoy sovereign and
official immunity and remain immune from suit except as the General Assembly shall
specifically waive the immunity.” See 1 Pa. Cons. Stat. Ann. § 2310. Pursuant to Section
8522(b) of Title 42, the following nine exceptions to sovereign immunity are recognized: (1)
operation of any motor vehicle in the possession or control of a Commonwealth party; (2) acts of
health care employees of Commonwealth agency medical facilities or institutions; (3) care,
custody, or control of personal property in the possession or control of Commonwealth parties;
(4) dangerous conditions posed by Commonwealth agency real estate and sidewalks; (5)
dangerous conditions of highways under the jurisdiction of Commonwealth agency that are
created by potholes or sinkholes or other similar conditions created by natural elements; (6) care,
custody, or control of animals in the possession or control of a Commonwealth party; (7) sale of
liquor at Pennsylvania liquor stores; (8) acts of a member of the Pennsylvania military forces;
and (9) administration, manufacture and use of a toxoid or vaccine. See 42 Pa. Cons. Stat. Ann.
§ 8522(b). In the instant case, Plaintiff’s claims do not fall within any of these nine (9)

exceptions.
Moreover, sovereign immunity applies even to intentional torts committed by
Commonwealth defendants acting in their individual capacities. See Story v. Mechling, 412 F.
Supp. 2d 509, 518 (W.D. Pa. 2006), aff’d, 214 F. App’x 161 (3d Cir. 2007). Sovereign
immunity “applies to Commonwealth employees in both their official and individual capacities,
so long as the employees are ‘acting within the scope of their duties.’” See Larsen v. State
Emps’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008). In the instant action, the relevant
evidence of record demonstrates that Defendants were acting within the scope of their
employment. Accordingly, because they are entitled to sovereign immunity, the Court will grant

Defendants summary judgment as to Plaintiff’s state law tort claims.
IV. CONCLUSION
For the foregoing reasons, the Court will deny Plaintiff’s motion to exclude alleged
evidence of his deposition. (Doc. No. 89.) The Court will also grant in part and deny in part
Defendants’ motion for summary judgment. (Doc. No. 84.) Specifically, the Court will deny
Defendants’ motion with respect to Plaintiff’s First Amendment retaliation claims against
Defendants Kistler, Shipe, Drucis, Howel, Krzykowski, and Gilbert. The Court will grant
Defendants’ motion with respect to Plaintiff’s remaining claims. An appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408062. Public record. Not legal advice.