Roberts v. Luther

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RAHAMON ROBERTS, :

Plaintiff : No. 1:21-cv-00958

:

v. : (Judge Kane)

:

J. LUTHER, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to Defendants’ motion to dismiss (Doc. No. 9)

pro se Plaintiff Rahamon Roberts (“Plaintiff”)’s complaint (Doc. No. 1). Plaintiff has filed

neither a response nor a motion seeking an extension of time to respond. Accordingly, because

the time period for a response has expired, the motion to dismiss is ripe for disposition.

I. BACKGROUND

Plaintiff, who is currently incarcerated at the State Correctional Institution in

Huntingdon, Pennsylvania (“SCI Huntingdon”), initiated the above-captioned action by filing a

complaint pursuant to 42 U.S.C. § 1983 on May 27, 2021. (Doc. No. 1.) Plaintiff’s complaint

concerns events that allegedly occurred while he was incarcerated at SCI Smithfield. Plaintiff

names as Defendants Superintendent J. Luther (“Luther”), Restricted Housing Unit (“RHU”)

Manager N. Goss (“Goss”), Lieutenant Wiser (“Wiser”), Sergeant Rauch (“Rauch”), and

Corrections Officers Durst, Fleck, Low, Bickert, Sheets, Webb, and Frock (collectively,

“Defendants”).1 (Id.)

1 Although Plaintiff named Defendant Webb in the caption of his complaint, Webb was not

added to the docket as a Defendant in this matter. Moreover, Plaintiff did not name Defendant

Sheets in the caption of his complaint, but the body of his complaint indicates that he intends to

proceed against him. However, Defendants’ brief in support of their motion to dismiss addresses

Plaintiff’s claims against Defendants Webb and Sheets. The Court, therefore, will direct the

Clerk of Court to add Webb and Sheets to the docket as Defendants in this matter. Further,

Plaintiff avers that from March until June 2020, he was housed in the RHU at SCI

Smithfield and was “repeatedly exposed to excessive amounts of OC [p]epper [s]pray.” (Id.

¶ 11.) Plaintiff alleges that he was not “being unruly [and] non-compliant with RHU staff.” (Id.

¶ 13.) Instead, Plaintiff maintains that his exposure to the pepper spray “was the direct and

proximate cause of such chemical munitions being excessively, maliciously[,] and sadistically

employed by RHU staff,” who took no precautions to “prevent such chemical munitions from

circulating into the RHU’s central air system.” (Id.)

Plaintiff asserts that the first incident occurred on March 31, 2020, when Defendants

Wiser, Rauch, Webb, Durst, and Low “released massively excessive amounts of OC [p]epper

[s]pray in the area directly in front of Plaintiff’s cell,” causing him to “suffer an intense burning

sensation in his eyes, nose, mouth[,] and throat, as well as severe guttural coughing, sneezing[,]

and respiratory distress.” (Id. ¶ 14.) Plaintiff claims that the same Defendants gave no warning

before using the OC spray and failed to take any steps to disengage the RHU’s central air unit.

(Id. ¶ 15.) Plaintiff avers that when he asked Defendant Rauch to take such action, Defendant

Rauch responded by stating: “Shut up N*****, or you’re next.” (Id. ¶ 16.) The second incident

occurred on May 10, 2020, when Defendants Rauch, Webb, Fleck, and Low “released massively

excessive amount[s] of OC [p]epper [s]pray into a cell within the proximate vicinity of Plaintiff’s

cell.” (Id. ¶ 17.) Plaintiff alleges that he again experienced the symptoms noted above, as well

as vomiting. (Id.) No warnings were given, and no action was taken to disengage the central air

system. (Id. ¶ 18.)

Plaintiff further alleges that on June 5, 2020, Defendant Bickert “released a massively

Plaintiff initially named Defendant Flock; however, Defendants’ filings indicate that the correct

spelling of this Defendant’s name is Frock. The Court will therefore direct the Clerk of Court to

amend the docket to reflect the proper spelling.

excessive amount of OC [p]epper [s]pray into a cell within the near vicinity of Plaintiff’s cell.”

(Id. ¶ 19.) Plaintiff required emergency medical attention after experiencing the symptoms noted

above. (Id.) Again, no warning was given, and no action was taken to prevent the circulation of

the OC spray. (Id. ¶ 20.) The next two (2) incidents occurred three days later, on June 8, 2020,

when Defendants Frock and Sheets “release[d] massively excessive amounts of OC [p]epper

[s]pray directly into the [RHU’s] central air system.” (Id. ¶ 21.) Plaintiff required emergency

medical attention after these incidents. (Id.) No warning was given, and no action was taken to

prevent the circulation of the OC spray. (Id. ¶ 22.) Plaintiff alleges that because of his repeated

exposure to OC spray, he “has and continues to suffer from a chronic asthmatic condition, and

damage to his nasal, sinus[,] and tracheal passages.” (Id. ¶ 25.)

Plaintiff asserts that Defendants Wiser, Rauch, Sheets, Webb, Fleck, Durst, Low, Bickert,

and Frock violated his Eighth Amendment rights by using excessive force in the form of OC

spray. (Id. ¶¶ 23, 27-28.) He argues further that Defendants Luther and Goss violated his Eighth

Amendment rights by failing to take action to curb the excessive use of OC spray despite being

placed on notice of such behavior. (Id. ¶¶ 24, 29.) Plaintiff seeks declaratory relief,2 as well as

compensatory and punitive damages. (Id. at 10-11.)

2 Although Plaintiff seeks declaratory relief, he is no longer incarcerated at SCI Smithfield, and

his complaint does not allege facts from which the Court could reasonably conclude that he will

again be incarcerated at SCI Smithfield under the conditions alleged in his complaint. Thus,

Plaintiff’s claims for declaratory relief are moot. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d

Cir. 2003) (noting that “[a]n inmate’s transfer from the facility complained of generally moots

the equitable and declaratory claims”).

II. LEGAL STANDARDS

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Federal notice and pleading rules require the complaint to provide the defendant notice of

the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224,

232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a

plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled

to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure

12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.

12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts as true all

factual allegations in the complaint and all reasonable inferences that can be drawn from them,

viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims

are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the

defendant is liable for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” See Iqbal, 556 U.S. at 679 (quoting Fed.

R. Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a district court must

take when reviewing a 12(b)(6) motion: (1) identify the elements that a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint that are “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement to relief.” See

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and quotation

marks omitted). The Third Circuit has specified that in ruling on a Rule 12(b)(6) motion to

dismiss for failure to state a claim, “a court must consider only the complaint, exhibits attached

to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.” See Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d

1192, 1196 (3d Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful that a document

filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A

pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than

formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Section 1983 Standard

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

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

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights, but merely a method to vindicate

violations of federal law committed by state actors.” See Gonzaga Univ. v. Doe, 536 U.S. 273,

284-85 (2002). To state a cause of action under Section 1983, a plaintiff must allege that: (1) the

conduct complained of was committed by persons acting under color of state law; and (2) the

conduct violated a right, privilege, or immunity secured by the Constitution or laws of the United

States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West

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

III. DISCUSSION

A. Plaintiff’s Complaint

Defendants assert that the Court should dismiss Plaintiff’s complaint because: (1) it

violates Rule 20(b) of the Federal Rules of Civil Procedure; (2) Plaintiff’s official capacity

claims for damages are barred by sovereign immunity; (3) Plaintiff has failed to allege facts

showing the requisite personal involvement; (4) Plaintiff has not alleged sufficient facts against

each Defendant to maintain an Eighth Amendment excessive force claim; (5) Plaintiff has not

alleged sufficient facts against each Defendant to maintain an Eighth Amendment deliberate

indifference claim; and (6) Plaintiff’s claims regarding secondhand exposure to OC spray are

barred by qualified immunity. (Doc. No. 10 at 6.) The Court considers each argument below.

1. Rule 20

Defendants first assert that Plaintiff’s complaint should be dismissed “because he has

mis-joined multiple Defendants together in a single action in violation of Fed. R. Civ. P. 20(b).”

(Doc. No. 10 at 6.) Rule 20(b) provides that “[t]he [C]ourt may issue orders—including an order

for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice

that arises from including a person against whom the party asserts no claim and who asserts no

claim against the party.” See Fed. R. Civ. P. 20(b). While Rule 20(b) does not appear to be

implicated by Defendants’ arguments, Defendants presumably intend to invoke Rule 20(a)(2),

which provides that a plaintiff may join multiple defendants in a single case if: “(1) any right to

relief is asserted against them jointly, severally, or in the alternative with respect to or arising out

of the same transaction, occurrence, or series of transactions or occurrences”; and (2) “any

question of law or fact common to all defendants will arise in the action.” See Fed. R. Civ. P.

20(a)(2). “For courts applying Rule 20 and related rules, ‘the impulse is toward entertaining the

broadest scope of action consistent with fairness to the parties; joinder of claims, parties and

remedies is strongly encouraged.” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (quoting

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966)); see also Sanders v. Rose, 576

F. App’x 91, 94-95 (3d Cir. 2014) (concluding that an inmate-plaintiff’s numerous claims for

relief should not have been raised in separate complaints because “[a]ll of the incidents occurred

within the course of a few months and all concerned [the inmate-plaintiff’s] treatment as a

pretrial detainee in one prison”).

Defendants maintain that Plaintiff’s complaint violates Rule 20 because “he joins

separate incidents without including factual content showing a common question of law or fact.”

(Doc. No. 10 at 8.) They assert that “the only commonality between the incidents alleged in the

complaint is a deficient claim for supervisory liability against Luther and Goss,” and that,

“[d]rilling down, the allegations of [Plaintiff’s] complaint suggest that he is attempting to

effectuate a de facto consolidation of what should be five separate lawsuits—with each alleged

incident comprising its own suit.” (Id.) Defendants argue that Plaintiff’s complaint “should be

dismissed, without prejudice to his ability to re-file separate, self-contained complaints related to

each incident of alleged exposure to OC.” (Id. at 9.)

Upon review of Plaintiff’s complaint, the Court concludes that it does not violate Rule

20. Plaintiff alleges that the individual corrections officers violated his Eighth Amendment

rights by using excessive amounts of OC spray in a series of events that occurred over a span of

three (3) months, and that Defendants Luther and Goss failed to take action to stop such

violations. Plaintiff, therefore, has satisfied Rule 20’s requirements, set forth supra.

Furthermore, even if the Court were to conclude that the complaint violates Rule 20,

“[m]isjoinder of parties is not a ground for dismissing an action.” See Fed. R. Civ. P. 21. The

Court, therefore, declines to grant Defendants’ motion to dismiss on this basis.

2. Official Capacity Claims

Defendants next assert that Plaintiff’s damages claims against them in their official

capacities are barred by the doctrine of sovereign immunity. (Doc. No. 10 at 9-10.) The Court

agrees with Defendants. “A state official sued in his or her official capacity is not a ‘person’ for

purposes of § 1983 when a plaintiff seeks monetary damages, as the Supreme Court has not

construed § 1983 as an abrogation of the states’ Eleventh Amendment immunity.” Salter v.

Wetzel, No. 3:19-cv-1691, 2020 WL 3579554, at *6 (M.D. Pa. June 30, 2020) (citing Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 63-71 (1989)). This immunity, however, “is not shared

by state officers to the extent that the suit seeks prospective injunctive or declaratory relief or

seeks damages from the officers in their individual capacities.” See id. (citations omitted). The

Court will, therefore, grant Defendants’ motion to dismiss with respect to Plaintiff’s damages

claims against them in their official capacities.

3. Personal Responsibility

Defendants also assert that Plaintiff’s complaint “should be dismissed, albeit without

prejudice, for his failure to allege facts showing the requisite personal involvement of such

Defendants.” (Doc. No. 10 at 13.) Defendants claim that “numerous defects are immediately

apparent” in the following claims: (1) Plaintiff’s claims against Defendants Wiser, Rauch, Webb,

Durst, and Low for the incidents that occurred on June 5, 2020, and June 8, 2020; (2) Plaintiff’s

claims against Defendant Bickert for the incidents that occurred on March 31, 2020, May 10,

2020, and June 8, 2020; (3) Plaintiff’s claims against Defendants Sheets and Frock for the

incidents that occurred on March 31, 2020, May 10, 2020, and June 5, 2020; and (4) Plaintiff’s

direct and supervisory liability claims against Defendants Luther and Goss. (Id.)

For a § 1983 claim to survive a motion to dismiss, the plaintiff must sufficiently allege

that the defendant was personally involved in the act or acts that the plaintiff claims violated his

rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Solan v. Ranck,

326 F. App’x 97, 100 (3d Cir. 2009). As an initial matter, the Court does not agree that Plaintiff

has failed to set forth the requisite personal involvement against Defendants Wiser, Rauch,

Webb, Durst, Low, Bickert, Sheets, and Frock. Plaintiff’s complaint specifically alleges which

officers were involved in each use of OC spray. Accordingly, the Court declines to grant the

motion to dismiss on this basis.

Plaintiff also asserts that Defendants Luther and Goss were placed on notice of the other

Defendants’ conduct “through a number of complaints, grievances[,] and/or reports” but failed to

“take disciplinary action against them to curb or otherwise control their behavior.” (Doc. No. 1

¶ 24.) Supervisors “may not be held liable for the unconstitutional conduct of their subordinates

under a theory of respondeat superior.” See Iqbal, 556 U.S. at 676. The Third Circuit has noted

that there are two theories of supervisory liability applicable to claims brought pursuant to

§ 1983: (1) “a supervisor may be personally liable under § 1983 if he or she participated in

violating the plaintiff’s rights, directed others to violate them, or, as the person in charge, had

knowledge of and acquiesced in his subordinates’ violations”; and (2) policymakers may be

liable under § 1983 “if it is shown that such defendants, ‘with deliberate indifference to the

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

[the] constitutional harm.’” See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d

572, 586 (3d Cir. 2004). With respect to the second theory of liability, the plaintiff must allege

that: “(1) the existing policy or practice created an unreasonable risk of [constitutional] injury;

(2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was

indifferent to that risk; and (4) the injury resulted from the policy or practice.” See Beers-

Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d 1099,

1118 (3d Cir. 1989)). At a minimum, supervisory liability can be imposed “only where there are

both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern

of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found

to have communicated a message of approval to the offending subordinate.” See Chinchello v.

Fenton, 805 F.2d 126, 133 (3d Cir. 1986).

A liberal reading of Plaintiff’s complaint leads the Court to conclude that he has set forth

plausible claims against Defendants Luther and Goss. Plaintiff’s complaint suggests that

Defendants Luther and Goss were aware of the alleged excessive use of OC spray and took no

action to curb it. Likewise, Plaintiff suggests that these Defendants became aware of the

ongoing issue via complaints and grievances. Several courts have concluded that a supervisory

official may be held liable in connection with a review of grievances 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. 17-cv-311, 2018 WL

1833348, at *4 (W.D. Pa. Jan. 23, 2018), report and recommendation adopted by 2018 WL

943528 (W.D. Pa. Feb. 20, 2018); Gibbs v. Univ. Corr. Healthcare, No. 14-cv-7138, 2016 WL

6595916, at *2 (D.N.J. Nov. 7, 2016); Whitehead v. Rozum, No. 11-cv-102, 2012 WL 4378193,

at *2 (W.D. Pa. Aug. 7, 2012). Accordingly, the Court declines to grant Defendants’ motion to

dismiss on the basis that he has not alleged the requisite personal involvement.

4. Whether Plaintiff Has Stated Plausible Eighth Amendment Claims

a. Excessive Force

The standard governing the Court’s inquiry as to whether a plaintiff has a viable Eighth

Amendment excessive force claim is “whether force was applied in a good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose of causing

harm.” See Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009) (quoting Whitley v. Albers, 475

U.S. 312, 319 (1986)). In making this determination, courts are tasked with evaluating the

following factors:

(1) the need for the application of force; (2) the relationship between the need and

the amount of force that was used; (3) the extent of injury inflicted; (4) the extent

of the threat to the safety of staff and inmates, as reasonably perceived by the

responsible officials on the basis of the facts known to them; and (5) any efforts

made to temper the severity of a forceful response.

See Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321). “The

use of chemical agents to subdue recalcitrant prisoners is not cruel and unusual when reasonably

necessary.” Gibson v. Flemming, 837 F. App’x 860, 862 (3d Cir. 2020) (citing Soto, 744 F.2d at

1270).

Turning to Plaintiff’s claims regarding the five (5) uses of OC spray, Defendants assert

that Plaintiff’s complaint fails “to state a claim for excessive force because, with the exception of

the incident which allegedly occurred on March 31, he failed to allege any facts showing that

Defendants were even aware they were using force upon him.” (Doc. No. 10 at 14.) The Court

disagrees. Plaintiff alleges that on two (2) separate occasions on June 8, 2020, Defendants

Sheets and Frock sprayed OC spray directly into the RHU’s central air system. (Doc. No. 1

¶ 21.) Nowhere in Plaintiff’s complaint does he allege that OC spray was used on March 31,

2020, and June 8, 2020 to “subdue recalcitrant prisoners.” See Gibson, 837 F. App’x at 862.

Moreover, while Plaintiff alleges that OC spray was used against other inmates on May 10, 2020

and June 5, 2020, he asserts that officers involved in these incidents used “massively excessive”

amounts of OC spray. As noted supra, “it is a violation of the Eighth Amendment for prison

officials to use mace or other chemical agents in quantities greater than necessary or for the sole

purpose of punishment or the infliction of pain.” See Soto v. Dickey, 744 F.2d 1260, 1270 (7th

Cir. 1984). The Court’s liberal reading of the complaint compels the conclusion that Plaintiff

has set forth plausible excessive force claims regarding the use of OC spray on March 31, 2020,

May 10, 2020, June 5, 2020, and June 8, 2020. Therefore, the Court declines to grant

Defendants’ motion to dismiss on this basis.

b. Deliberate Indifference

Also related to the March 31, 2020, and June 8, 2020 incidents, Plaintiff asserts that his

Eighth Amendment rights were violated because the use of OC spray “constituted deliberate

indifference to [his] health and safety.” (Doc. No. 1 ¶ 28.) 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), abrogated in part on other grounds by Mack v. Yost, 968 F.3d 311 (3d

Cir. 2020).

Defendants assert that, “[w]ith the exception of the incident which allegedly occurred on

March 31 [involving] Defendant Rauch, Plaintiff failed to allege any facts showing that

Defendants were aware of [his] conditions of confinement, presence at the location, or need for

medical treatment.” (Doc. No. 10 at 15.) The Court, however, disagrees. “[C]ourts have held

that the failure to decontaminate prisoners or otherwise provide medical treatment for prisoners

exposed to pepper spray can support a claim for a violation of the Eighth Amendment where the

‘failure to treat a prisoner’s condition could result in further significant injury’ or the

‘unnecessary and wanton infliction of pain.’” Bomar v. Wetzel, No. 17-cv-1035, 2020 WL

907641, at *5 (W.D. Pa. Feb. 3, 2020) (quoting Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.

2002)), report and recommendation adopted by 2020 WL 906720 (W.D. Pa. Feb. 25, 2020).

Plaintiff avers that the use of OC spray on March 31, 2020, and June 8, 2020, was done

maliciously and occurred right outside of his cell (on March 31, 2020) and directly into the

central air system (twice on June 8, 2020). With respect to the use of OC spray on May 10,

2020, and June 5, 2020, Plaintiff avers that it occurred in close proximity to his cell and that he

suffered severe effects, such as respiratory distress and vomiting. Plaintiff also avers that he

continues to suffer medical issues from the repeated exposure. Accordingly, the Court concludes

that Plaintiff has set forth plausible deliberate indifference claims regarding the use of OC spray

on March 31, 2020, May 10, 2020, June 5, 2020, and June 8, 2020. The Court, therefore,

declines to grant Defendants’ motion to dismiss on this basis.

5. Qualified Immunity

Finally, Defendants argue that Plaintiff’s “complaint seeks damages based upon alleged

exposure to secondhand OC spray and thus should be barred by the doctrine of qualified

immunity.” (Doc. No. 10 at 10.) “Qualified immunity shields federal and state officials from

money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). In order to determine whether a right was clearly established, the Court must

ask “whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” See Schmidt v. Creedon, 639 F.3d 587, 598 (3d Cir. 2011). “If it

would not have been clear to a reasonable officer what the law required under the facts alleged,

then he is entitled to qualified immunity.” Id. Stated differently, for a right to be clearly

established, “existing precedent must have placed the statutory or constitutional question beyond

debate.” See al-Kidd, 563 U.S. at 741. As the Supreme Court recently noted, “[t]his demanding

standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’” See

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)). Accordingly, “there must be sufficient precedent at the time of action,

factually similar to the plaintiff’s allegations, to put [the] defendant on notice that his or her

conduct is constitutionally prohibited.” See Mammaro v. N.J. Div. of Child Prot. &

Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566,

572 (3d Cir. 2001)). To make this determination, the Court “look[s] first for applicable Supreme

Court precedent.” See id. “Even if none exists, it may be possible that a ‘robust consensus of

cases of persuasive authority’ in the Court of Appeals could clearly establish a right for purposes

of qualified immunity.” Id. (quoting Taylor v. Barkes, 575 U.S. 822, 826 (2015)).

“[I]t is a violation of the Eighth Amendment for prison officials to use mace or other

chemical agents in quantities greater than necessary or for the sole purpose of punishment or the

infliction of pain.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984); see also Thomas v.

Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010) (noting that it is a violation of the Eighth

Amendment “where chemical agents are used unnecessarily, without penological justification, or

for the very purpose of punishment or harm”); Thomas v. Comstock, 222 F. App’x 439, 442 (5th

Cir. 2007) (noting that the use of chemical agents can violate the Eighth Amendment when done

so as a “malicious or sadistic application of force”); Williams v. Benjamin, 77 F.3d 756, 763 (4th

Cir. 1996) (citing Soto for the same conclusion); cf. Jones v. Shields, 207 F.3d 491, 496 (8th Cir.

2000) (noting that “a limited application of [pepper spray] . . . constitutes a ‘tempered response

by prison officials’ when compared to other forms of force”). Accordingly, in light of the above

“robust consensus of cases of persuasive authority,” see Taylor, 575 U.S. at 826, the Court

concludes that inmates have a clearly established right, protected by the Eighth Amendment, to

be free from the unnecessary use of chemical agents without penological justification.

In the instant case, as noted supra, Plaintiff’s complaint involves five (5) separate

incidents involving the use of OC spray. Two (2) of those incidents—the ones that occurred on

May 10, 2020, and June 5, 2020—involved the use of “massively excessive” amounts of OC

spray on inmates in cells within close proximity to Plaintiff’s cell. (Doc. No. 1 ¶¶ 17-20.) On

March 31, 2020, officers used “massively excessive” amounts of OC spray in the area directly in

front of Plaintiff’s cell. (Id. ¶¶ 14-15.) Finally, Plaintiff avers that on two (2) occasions on June

8, 2020, Officers Sheets and Frock sprayed massive amounts of OC spray directly into the

RHU’s central air system. (Id. ¶¶ 22-22.) Plaintiff, therefore, has pled facts alleging deliberate

misuse of excessive amounts of OC spray to inflict unnecessary pain. Thus, in light of the body

of case law set forth above, the Court concludes that Plaintiff had a clearly established right,

protected by the Eighth Amendment, to be free from the use of “massively excessive” amounts

of OC spray designed to inflict unnecessary pain. Moreover, as discussed supra in Section

III.A.4, Plaintiff has adequately pled violations of that clearly established right. The Court,

therefore, declines to grant Defendants qualified immunity with respect to Plaintiff’s Eighth

Amendment claims.3

B. Leave to Amend

Courts are cautioned that because of the applicable pleading standard, a plaintiff should

generally be granted leave to amend before dismissing a claim that is merely deficient. See

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The federal rules allow for

liberal amendment in light of the “principle that the purpose of pleading is to facilitate a proper

3 In support of their motion to dismiss, Defendants cite Stroman v. Wetzel, No. 1:16-cv-2543,

2020 WL 1531325 (M.D. Pa. Mar. 31, 2020). In Stroman, the inmate-plaintiff alleged that on

two (2) separate occasions, officers at SCI Huntingdon used OC spray against other inmates on

his housing block without announcing such use. See id. at *1-2. Stroman asserted that the OC

spray traveled through the air ventilation system, into his cell, and caused him to suffer asthma

attacks. See id. Judge Conner granted the defendants summary judgment, concluding, inter alia,

that even if the inmate-plaintiff had “stated a colorable claim relating to his exposure to

secondhand OC spray, defendants are nevertheless entitled to qualified immunity from this claim

for damages.” See id. at *5. In so concluding, Judge Conner noted that “Defendants simply

could not have recognized that their use of OC spray in response to another inmate’s actions

across the block would violate a ‘clearly established statutory or constitutional right[] of which a

reasonable person would have known.’” See id. at *6 (quoting Wilson v. Layne, 526 U.S. 603,

609 (1999)). In the instant case, however, Plaintiff has alleged facts suggesting that officers did

more than just use OC spray against other inmates on his housing block. Rather, Plaintiff alleges

that on five (5) several occasions, officers used “massively excessive” amounts of OC spray. He

further alleges that the use of OC spray occurred near the vicinity of his cell, and that on two (2)

occasions, officers deliberately sprayed OC spray in the RHU’s central air system. Given these

allegations, the Court does not find Stroman to be persuasive authority leading to a conclusion

that Defendants in the above-captioned action are entitled to qualified immunity.

decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal

quotations omitted). The Court may deny a motion to amend where there is “undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of

the amendment, [or] futility of the amendment.” See id. The Court must also determine that a

proposed amendment would be futile if the complaint, as amended, would not survive a motion

to dismiss for failure to state a claim. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d

Cir. 2002). Based on the foregoing, the Court concludes that it would be futile to grant Plaintiff

leave to file an amended complaint with respect to his claims for declaratory relief and his

damages claims against Defendants in their official capacities.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (Doc. No. 9) will be granted in

part and denied in part. The motion will be granted with respect to Plaintiff’s claims for

declaratory relief and his damages claims against Defendants in their official capacities. The

motion will be denied with respect to Plaintiff’s claims against Defendants Luther and Goss, as

well as his Eighth Amendment claims regarding the use of OC spray on March 31, 2020, May

10, 2020, June 5, 2020, and June 8, 2020. An appropriate Order follows.