Small v. Kauffman

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEROME SMALL, : Civil No. 1:20-CV-1242

:

Plaintiff, :

:

v. :

:

K. KAUFFMAN, SUPERINTENDENT, :

et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Jerome Small (“Small” or “Plaintiff”) is a self-represented individual

formerly incarcerated at the Huntingdon State Correctional Institution (“SCI-

Huntingdon”), in Huntingdon, Pennsylvania.1 Small initiated this action in July

2020 asserting Defendants Superintendent K. Kauffman (“Kauffman”) and his

assistant Connie Green (“Green”) violated his Eighth Amendment rights and

retaliated against him for his filing of grievances. (Docs. 1, 20.) Presently ripe for

disposition are the following motions: (1) Defendants’ motion to dismiss the

complaint and supplemental complaint (Doc. 30); (2) Plaintiff’s motion to file a

second amended complaint (Doc. 41); (3) Defendants’ motion to dismiss the

second amended complaint (Doc. 47); and (4) Plaintiff’s three motions for

injunctive relief (Docs. 42, 52, 59). Upon a review of the filings, the court will

1 Plaintiff is currently housed at SCI-Greene. See http://inmatelocator.cor.pa.gov (search:

HF6068; last visited Oct. 14, 2021).

grant Defendants’ motion to dismiss Small’s Eighth Amendment claims without

prejudice and deny the motion to dismiss as to Small’s retaliation claim. The court

will deny Small’s motion to file a second supplemental complaint without

prejudice to him filing a separate action concerning his claim against Ms.

Hammon, a non-defendant in this action. The court will also deny Plaintiff’s

motions for injunctive relief as moot based on his transfer to SCI-Greene. Finally,

Small will be granted leave to file an amended complaint concerning his Eighth

Amendment claim against Defendants.

FACTUAL BACKGROUND2 AND PROCEDURAL HISTORY

A. Summary of Small’s Complaint and Supplemental Complaints

Small alleges that since March 2020, SCI-Huntingdon inmates are being

exposed at a high rate to the COVID-19 virus due to the facility’s lack of proper

ventilation and overcrowding. As of July 2020, “there have been 183 positive

cases and 5 deaths, [and] over 54 staff members have tested positive.” (Doc. 1, p.

4.)3 In July 2020, Small claims an entire block was placed under quarantine and

the gymnasium was turned into a makeshift hospital. (Id., p. 2.) At times, Small

2 Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe all

reasonable inferences in favor of the nonmoving party. Doe v. Univ. of Scis., 961 F.3d 203, 208

(3d Cir. 2020).

3 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

2

states inmates are locked in their cells 24 hours a day without an opportunity to

shower. (Id.) Small claims Superintendent Kauffman “allows his staff to come to

work without the correct [personal protective equipment (“PPE”)].” (Doc. 1, p. 1.)

On June 19, 2020, Small filed a grievance raising these issues. (Id., p. 4.)

Defendant Green denied the grievance as untimely because it “was not submitted

15 working days after the events upon which claims are based.” (Id.) Plaintiff

argues the grievance was improperly denied as “the even[t]s are still on going.”

(Id., p. 2.)

Small filed a supplement to his complaint on October 28, 2020 asserting a

retaliation claim against Defendants after he was denied receipt of two magazines

ordered from outside vendors. (Doc. 20.) In September 2020, the Incoming

Publications Review Committee (“IPRC”)4 ruled that the magazines did not

comply with DC-ADM 803. (Id., pp. 2–3.) Small claims the IPRC knowingly and

improperly withheld his magazines because they knew he would be forced to

grieve the matter before “the two defendants in hopes and search of receiving [his]

mail, but the plaintiff kn[ew] that he will not or would not receive due process, as

there is a conflict of interest and the plaintiff most likely than not [would] be

4 The IPRC is group of individuals selected by Kauffman to review all incoming publications

and determine their compliance with DC-ADM 803, the Pennsylvania Department of

Corrections’ (“DOC”) Inmate Mail and Incoming Publications Procedures Manual.

3

prejudice[d].” (Id., p. 2.) Due to this belief, Plaintiff filed an appeal directly to the

Secretary’s Office of Inmate Grievance and Appeals (“SOIGA”). The grievance

was rejected because it was filed at the wrong level. Small then filed an appeal to

“Kauffman, and Ms. Connie Green[ ] responded” stating he had to file a grievance

first. (Id.) When Small did file a grievance, Green denied it “with an off the wall

reason.” (Id.) Kauffman upheld Green’s denial with “zero investigation.” (Id.)

The court construes Small’s complaint and supplement as asserting an

Eighth Amendment and retaliation claim against Defendants Kauffman and Green.

(Id., p. 4.) Aside from monetary damages, Small seeks declaratory and injunctive

relief. Plaintiff asks the court to “mandate PPE requirements for officers to

follow” as well as direct prison officials to provide him with a single cell. (Doc. 1,

p. 5.) He also seeks the return of his confiscated magazines. (Doc. 20.)

On March 3, 2021, Small filed a motion to file a second supplemental

complaint seeking to join Ms. C. Hammon as a defendant. (Doc. 41.) In the

proposed amendment, Small claims that on February 24, 2021, Ms. Hammon

“temporarily removed” him from the law library attendance list. Ms. Hammon

allegedly removed Small from the list “to ensure that all inmates have access to

legal time in the library.” (Id., p. 4.) Ms. Hammon further advised Small that

there would be “monthly rotations and [that he would] be placed on a waiting list

until it is [his] turn again. Deadlines [would] be given priority 30–45 days before

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they expire.” (Id.) Small claims the removal was “RETALIATORY treatment for

filing a section 1983 claim” adding that “Ms. C. Hammon, was hired by Kevin

Kauffman.” (Id., p. 2.) Small avers Ms. Hammon’s actions interfered with his

“access to the courts” and impeded his ability “to properly object to anything that

will be filed by the defendant[s’] counselor.” (Id.) As relief, Small seeks to be

placed back on the law library list “for the same time he was once on @ 7:00 pm as

plaintiff work[s] from 4:30 am to 5:30 pm.” (Id.) He also seeks monetary

damages.

B. Summary of Facts Related to Small’s Preliminary Injunction

Motions

On March 5, 2021, Small filed his first of three motions for injunctive relief

seeking a single cell after 39 inmates at the facility tested positive for COVID-19

the same day. (Doc. 42.) In his first motion, Small suggests that “[t]hese are

unsafe conditions to be housed with another inmate” and requests a single cell.5

(Doc. 42.) Plaintiff filed his second motion for injunctive relief, Doc. 52, while

housed in the SCI-Huntingdon’s Restricted Housing Unit (“RHU”) under

disciplinary custody after getting into a “serious fist fight” with his cellmate. (Id.,

p. 3.) At the time he alleged that SCI-Huntingdon’s cells were “unfit for human

5 Small did not file a brief in support of his motion as required by M.D. Pa. Local Rule 7.5.

5

habitation.” (Id., p. 4.) He argued that only “the newest block G, which is the

RHU[,] is modern and ha[s] ventilation.” (Id., p. 5.) As relief, Small sought a

single cell and a court appointed “independent compliance representative to

provide the court with their findings as to the ventilation in the cells and the

conditions.” (Id., p. 7.) On June 25, 2021, Small filed a third motion for injunctive

relief. (Doc. 59, 62.) At the time, Small was still in the RHU, but housed in

administrative custody pending his transfer to another facility due to security

concerns. (Id.) Small sought an order staying his transfer pending the outcome of

this action. (Id., p. 3.) Without elaborating, he claims his transfer would “prevent

[him] from pursuing [his] constitutional rights.” (Id., p. 4.)

C. Summary of DOC’s Response to COVID-19

The DOC has provided publicly available information regarding its efforts to

mitigate the risk of the transmission of COVID-19.6 See https://www.cor.pa.gov/

Pages/COVID-19.aspx.) (last accessed Oct. 14, 2021).

In March 2020, the DOC implemented a statewide quarantine of its

population which included a halt to all in-person visitation.7 At first, SCI-Retreat,

and now SCI-Smithfield, served as the designated reception facility for all new

6 The court may take judicial notice of this information as it is publicly available on a

governmental website. See Vanderklok v. United States, 868 F.3d 189, 205 (3d Cir. 2017).

7 In-person visitation resumed at select facilities beginning in May 2021.

6

male court commitments and parole violators, allowing for their quarantining and

medical screening prior to their transfer to a facility. The DOC also implemented

several measures to reduce its population by working with the parole board.

Additionally, all individuals entering a facility are screened for flu-like symptoms.

No one with a fever over 100 degrees is permitted to enter a facility. Inmates and

staff are required to wear masks and are provided cleaning materials to clean their

cells. (Id.) Correctional Industries continues to produce masks and anti-bacterial

soap which is available to inmates. (Id.) COVID-19 vaccines are available to all

inmates and staff. (Id.) As of August 4, 2021, for the protection of the

unvaccinated portion of the SCI-Huntingdon’s inmate population, they were

moved to a single housing unit. See https://www.cor.pa.gov/Documents/

SCI%20COVID%20Communications/HUN-Fireside-Chat-8-4-21.pdf (last visited

Oct. 14, 2021). Leadership at each facility, including SCI-Huntingdon, continue to

frequently update inmates “on the latest in the ever-changing COVID-19

landscape.” See https://www.cor.pa.gov/Pages/COVID-19-SCI-Messages.aspx.

(last visited Oct. 14, 2021).

As of October 14, 2021, SCI-Huntingdon housed 1,669 inmates. There are

presently no reported inmate cases of COVID-19 at the facility. Cumulatively, the

institution has had 313 inmates test positive for COVID-19. A total of eight SCI-

Huntingdon inmates have died from COVID-19. SCI-Huntingdon has

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administered over 2,500 COVID-19 tests to inmates. The vaccination status of

SCI-Huntingdon’s inmate population is as follows: 1,564 inmates are fully

vaccinated; 9 are partially vaccinated, and 96 are not vaccinated. See DOC

COVID Dashboard, https://www.cor.pa.gov/Pages/COVID-19.aspx (last visited

Oct. 14, 2021).

D. Procedural History

On July 13, 2020, Small initiated this action against Kauffman and Green.

(Doc. 1.) Defendants filed a motion to dismiss the complaint on October 13, 2020.

(Doc. 16.) After Small filed a supplemental complaint, Doc. 20, the court

dismissed Defendants’ motion to dismiss without prejudice. Defendants were

granted the opportunity to file a response to the complaint and supplemental

complaint. (Doc. 22.) Defendants later filed a motion to dismiss the complaint

and supplemental complaint. (Doc. 30.) Plaintiff filed an opposition brief on

January 4, 2021. (Doc. 33, 34.) Defendants did not file a reply brief.

On March 8, 2021, without leave of court, Small filed a second supplemental

complaint against Ms. Hammon for temporarily removing him from the law library

list. (Doc. 41.) Defendants filed a motion to dismiss limited to addressing claims

raised in Small’s second supplemental complaint. (Docs. 47, 48.) On April 27,

2021, Small opposed the latest motion to dismiss. (Doc. 50.) Defendants did not

file a reply brief. On September 8, 2021, without leave of court, Small filed

8

objections to Defendants’ motion to dismiss, Doc. 66, and a second brief in

opposition to Defendants’ motion to dismiss. (Docs. 67, 68.) 8

JURISDICTION AND VENUE

The court has jurisdiction over Plaintiff’s 42 U.S.C. § 1983 action pursuant

to 28 U.S.C. § 1331, which allows a district court to exercise subject matter

jurisdiction in civil cases arising under the Constitution, laws, or treaties of the

United States. Venue is proper in this district because the alleged acts and

omissions giving rise to the claims occurred at SCI-Huntingdon, located in

Huntingdon County, Pennsylvania, which is in this district. See 28 U.S.C. §

118(b).

STANDARDS OF REVIEW

A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

8 Pursuant to M.D. Pa. Local Rule 7.7, “[n]o further briefs may be filed without leave of court”

after the moving party’s reply brief is filed, or the period for filing such a brief has expired.

Accordingly, the court did not consider Small’s recent filings when resolving Defendants’ or

Plaintiff’s pending motions.

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inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

The pleadings of self-represented plaintiffs are to be liberally construed and

held to a less stringent standard than formal pleadings drafted by attorneys. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193

(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be

granted leave to file a curative amended complaint even when a plaintiff does not

seek leave to amend, unless such an amendment would be inequitable or futile.

See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.

2014). A complaint that sets forth facts which affirmatively demonstrate that the

plaintiff has no right to recover is properly dismissed without leave to amend.

Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).

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B. Preliminary Injunction Standard

“A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A

preliminary injunction maintains the status quo pending a final decision on the

merits, whereas a “mandatory injunction” alters the status quo by granting

injunctive relief before trial, and as such is appropriate only in extraordinary

circumstances. Acierno v. New Castle Cnty., 40 F.3d 645, 653 (3d Cir. 1994) (“A

party seeking a mandatory preliminary injunction that will alter the status quo

bears a particularly heavy burden in demonstrating its necessity.”) Mandatory

injunctions should be used sparingly. United States v. Price, 688 F.2d 204, 212

(3d Cir. 1982). A request for some form of mandatory proactive injunctive relief

in the prison context “must always be viewed with great caution because ‘judicial

restraint is especially called for in dealing with the complex and intractable

problems of prison administration.’” Goff v. Harper, 60 F.3d 518, 520 (8th Cir.

1995).

DISCUSSION

Defendants assert Plaintiff’s complaint, supplemental complaint, and

proposed second supplemental complaint should be dismissed because: (1)

Defendants lack personal involvement in the alleged violations of Plaintiff’s rights;

(2) Plaintiff has failed to state a plausible Eighth Amendment claim; (3) Small’s

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retaliation claim concerning the denial of two magazines is without merit and

raises allegations unrelated to those asserted in the complaint; and (4) Plaintiff’s

second supplemental complaint involving Ms. Hammon fails to state a valid denial

of access to the courts claim and does not involve Defendants. (Docs. 31, 48.)

Defendants seek the denial of two of Plaintiff’s three motions for preliminary

injunction based on his inability to demonstrate irreparable harm or the likelihood

of success on the merits. (Docs. 45, 53.) The court will consider each argument

below.

A. Personal Involvement Requirement

Section 1983 provides that persons acting under color of state law may be

held liable if they deprive an individual of “any rights, privileges, or immunities

secured by the Constitution and laws” of the United States. See 42 U.S.C. § 1983.

To state a Section 1983 claim, a plaintiff must plead two essential elements: (1) the

conduct complained of was committed by a person acting under color of state law;

and (2) the conduct deprived the plaintiff of a right, privilege, or immunity secured

by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42,

48 (1998); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

A defendant in a civil rights action “cannot be held responsible for a

constitutional violation which he or she neither participated in nor approved.”

Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). There is no respondeat

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superior liability under Section 1983. (Id.) “[A] government official is liable only

for his or her own conduct and accordingly must have had some sort of personal

involvement in the alleged unconstitutional conduct.” Argueta v. U.S. Immigration

& Customs Enf't, 643 F.3d 60, 71 (3d Cir. 2011). “[T]here are two theories of

supervisory liability, one under which supervisors can be liable if they established

and maintained a policy, practice or custom which directly caused the

constitutional harm, and another under which they can be liable if they participated

in violating plaintiffs rights, directed others to violate them, or, as the persons in

charge, had knowledge of and acquiesced in their subordinates’ violations.”

Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (quotation and

alteration marks omitted). Such allegations, however, must be made with

appropriate particularity in that a complaint must allege the particulars of conduct,

time, place, and person responsible. Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir.

2005); Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d Cir. 1998).

Subsequent knowledge of an incident is insufficient to demonstrate that a

state actor played an “affirmative part” in the alleged misconduct. See Rode, 845

F.2d at 1207–08 (3d Cir. 1988) (the after-the-fact submission of a grievance is

“simply insufficient” to establish a defendant's knowledge of an underlying

constitutional violation at the time it occurred); Dooley v. Wetzel, 957 F.3d 366,

374 (3d Cir. 2020) (Grievance Coordinator and Superintendent’s involvement in

13

review and denial of grievance insufficient to establish personal involvement).

Alleging a mere hypothesis that an individual defendant had personal knowledge

or involvement in depriving the plaintiff of his rights is insufficient to establish

personal involvement. Rode, 845 F.2d 1208.

1. Superintendent Kauffman

Small alleges that Superintendent Kauffman manages the “day-to-day

operations” of SCI-Huntingdon. He claims Superintendent Kauffman knew “there

is no ventilation [at SCI-Huntingdon] and if [COVID-19] made it[s] way into this

prison it would be bad.” (Doc. 1, p. 1.) Additionally, Small claims Superintendent

Kauffman “allow[ed] his staff to come to work without the correct PPE” and pass

out mail and meals to inmates “without gloves and some with their masks down.”

(Id., pp. 1–2.)

Here, Small’s complaint fails to set forth a plausible supervisory liability

claim against Superintendent Kauffman. Small’s complaint fails to present any

facts suggesting Superintendent Kauffman was personally aware of any ventilation

deficiencies within the facility, let alone Small’s housing unit, that posed a serious

risk to Plaintiff’s health and failed to correct them. Similarly, Plaintiff fails to

allege any facts suggesting Defendant Kauffman personally regularly witnessed

staff members incorrectly wearing their PPE and condoned or acquiesced to this

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behavior. Moreover, there are no factual allegations in the complaint that

Superintendent Kauffman instructed staff to wear their PPE improperly.

As such, Small’s allegations of Superintendent Kauffman’s alleged

knowledge of the alleged violations and failure to act to prevent them are

conclusory in nature and insufficient to state the requisite causal link between this

Defendant and the claimed constitutional violations. Plaintiff does not make a

sufficient showing of any personal participation, direction, or knowledge on

Superintendent Kauffman’s part regarding any other prison officials’ actions. The

only allegation of direct participation by this Defendant is alleged in the single

grievance Small filed on June 19, 2020, that was rejected by Defendant Green as

untimely. Accordingly, the court agrees that Small has failed to set forth a

plausible supervisor liability claim against Superintendent Kauffman.

2. Grievance Coordinator Green

Green is the Superintendent’s Assistant at SCI-Huntingdon and serves as the

institution’s Grievance Coordinator. (Doc. 1, p. 3.) Small alleges that Green

denied his June 19, 2020 grievance setting forth his COVID-19 claims as untimely

even though the events complained of were “on going.” (Id., p. 2.) Defendants

argue Small has failed to allege Green’s personal involvement “in causing the

conditions at the facility or in implementing preventative measures there.” (Doc.

31, p. 10.) The court does not agree.

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Defendants correctly note that “prisoners do not have a constitutional right

to prison grievance procedures.” Iwanicki v. Pa. Dep’t of Corr., 582 F. App’x 75,

81 (3d Cir. 2014). Consequently, a defendant’s “after-the-fact” review of a

grievance or report will not establish the responding prison official’s personal

involvement in the alleged underlying constitutional violation that has concluded.

See Dooley, 957 F.3d at 374. However, a defendant’s personal involvement can

also be shown by their actual knowledge and acquiescence in another’s alleged

constitutional violation. Rode, 845 F.2d at 1207.

Viewing the complaint in the light most favorable to Plaintiff, the court

concludes that Small presented Green with a grievance intended to correct alleged

ongoing violations DOC’s PPE policies (masks and gloves). According to Small,

Green dismissed his June 19, 2020 grievance as untimely even though “the

even[t]s are still ongoing mind you … the jail just had recent cases.” (Doc. 1, pp.

2–3.) Thus, the court declines to dismiss Plaintiff’s Eighth Amendment claim

against Defendant Green based on her alleged lack of personal involvement. See

Wilkins v. Wolf, No. 1:20-CV-2450, 2021 WL 1578250 (M.D. Pa. April 22, 2021)

(denying defendants’ motion to dismiss asserting lack of personal involvement

based on role in reviewing grievance based on alleged ongoing constitutional

violation). Based on the above, Defendants’ motion to dismiss Small’s Eighth

16

Amendment claim against Green based on her lack of personal involvement will be

denied.

B. Small Fails to Allege a Plausible Eighth Amendment Claim against

Defendants

The Eighth Amendment prohibits cruel and unusual punishment, which

includes the unnecessary and wanton infliction of pain by prison officials. U.S.

Const. Amend. VIII; Farmer v. Brennan, 511 U.S. 825 (1994). Although the

Constitution “does not mandate comfortable prisons … neither does it permit

inhumane ones.” Id., 511 U.S. at 833 (quoting Rhodes v. Chapman, 452 U.S. 337,

349 (1981)). Conditions of confinement may, consistent with the Constitution, be

restrictive and harsh. Rhodes, 452 U.S. at 347. Prison officials must, however,

provide prisoners with adequate food, shelter, clothing, medical care, and take

reasonable measures to guarantee their personal safety. Farmer, 511 U.S. at 832;

Helling v. McKinney, 509 U.S. 25, 31–32 (1993).

Prison conditions constitute cruel and unusual punishment if they result in

serious deprivation of the prisoner’s basic human needs. See Tillman v. Lebanon

Cnty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). Only conditions that are so

reprehensible as to be deemed inhumane under contemporary standards or deprive

an inmate of minimal civilized measures of the necessities of life violate the Eighth

Amendment. See Hudson v. McMillian, 503 U.S. 1, 8–9 (1992); Wilson v. Seiter,

17

501 U.S. 294, 298 (1991). However, “[s]ome conditions of confinement may

establish an Eighth Amendment violation ‘in combination’ when each would not

do so alone, but only when they have a mutually enforcing effect that produces the

deprivation of a single, identifiable human need such as food, warmth, or

exercise.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373–34 (3d Cir.

2019) (quoting Wilson, 501 U.S. at 304).

“A claim of inhumane prison conditions may rise to the level of an Eighth

Amendment violation where the prison official ‘deprived the prisoner of the

minimal civilized measure of life’s necessities’ and ‘acted with deliberate

indifference in doing so, thereby exposing the inmate to a substantial risk of

serious damage to [his] future health.’” Palakovic v. Wetzel, 854 F.3d 209, 225 (3d

Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016)). Such a

claim contains two requirements: an objective and subjective component. Farmer,

511 U.S. at 834. A prisoner asserting a claim that their conditions of confinement

violate the Eighth Amendment must allege (1) that objectively, they were

“incarcerated under conditions posing a substantial risk of serious harm,” and (2)

that the defendant prison official personally knew of the substantial risk to the

inmate’s health or safety and failed to “respond [ ] reasonably to the risk.”

Farmer, 511 U.S. at 834, 844–45. Notably, deliberate indifference requires more

than mere negligence. Farmer, 511 U.S. at 835. Furthermore, “prison officials

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who actually knew of a substantial risk to inmate health or safety may be found

free from liability if they responded reasonably to the risk, even if the harm

ultimately was not averted.” Farmer, 511 U.S. at 844.

As Defendants do not dispute Small’s satisfaction of the objective prong of

his Eighth Amendment claim,9 the sole issue is whether Plaintiff has sufficiently

plead facts demonstrating Defendants’ deliberate indifference to the risk posed by

COVID-19. The court agrees with the Defendants that based on the myriad of

steps taken by the DOC and implemented at each facility, Small has failed to plead

that the Defendants were aware of the substantial risk COVID-19 posed to Small

and failed to take reasonable steps to abate that risk.

Here, even taking the facts in the light most favorable to Small, the court

cannot find that Plaintiff has satisfied the subjective component of his Eighth

Amendment claim as to either Defendant. The court reaches this finding in part

based on Small’s failure to allege the personal involvement of Superintendent

Kauffman, discussed supra, as well as the review of the DOC’s detailed mitigation

efforts in response to the COVID-19 pandemic designed to reduce the spread of the

virus throughout the system and institutions to protect the inmate population as

well as staff. These steps include efforts to limit the introduction of the virus from

9 Defendants concede that “the COVID-19 virus constitutes a substantial risk of harm to

inmates.” See Doc. 31, p. 7.

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sources outside of its facilities, inside the facility, as well as strategic management

of the inmate population to allow for testing of inmates and staff having COVID-

19 symptoms or suspected of being exposed to someone who has tested positive

for COVID-19. Medical isolation, COVID-19 testing, and screening is available at

each facility, as well as vaccines. The DOC has also reduced its overall inmate

population where appropriate by means of furloughs, compassionate release, and

expedited parole releases. All of these actions are a reasonable response to the

danger created by COVID-19 within the prison setting.

The DOC’s response to the pandemic, as well as the practices employed by

SCI-Huntingdon, demonstrate that Defendants did not ignore or fail to reasonably

respond to the substantial risk posed by COVID-19. Even though 313 inmates at

SCI-Huntingdon tested positive for the virus, and 8 inmates died, this does not

demonstrate that Defendants Kauffman or Green were deliberately indifferent to

the risk that COVID-19 poses. As noted in Farmer, “prison officials who actually

knew of a substantial risk to inmate health or safety may be found free from

liability if they responded reasonably to the risk, even if the harm ultimately was

not averted.” Farmer, 511 U.S. at 844-45.

In sum, without discounting Small’s valid and significant concerns about

contracting COIVD-19 while incarcerated at SCI-Huntingdon, the court agrees

with the numerous courts throughout the nation that have concluded that similar

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allegations do not support a plausible inference that officials have demonstrated

deliberate indifferent to inmates’ Eighth Amendment rights. See, e.g., Swain v.

Junior, 958 F.3d 1081, 1089 (11th Cir. 2020) (granting defendants’ motion to stay

the district court’s grant of a preliminary injunction on the basis that, inter alia, the

plaintiffs had not demonstrated that defendants were deliberately indifferent to the

risk posed by COVID-19 because the correctional facility had “implemented many

measures to curb the spread of the virus”); Wylie v. Bonner, No. 2:20-cv-2593-

TLP-tmp, 2021 WL 261280, at *4-6 (W.D. Tenn. Jan. 26, 2021) (finding that

inmate-plaintiff had failed to state an Eighth Amendment conditions of

confinement claim because he failed to allege that staff knew of and disregarded

the risks posed by COVID-19); Shokr v. LeBlanc, No. 20-488, 2020 WL 8093228,

at * (M.D. La. Dec. 14, 2020) (concluding that the inmate-plaintiff had failed to

state a plausible Eighth Amendment claim because measures were being taken to

combat the COVID-19 virus); Kesling v. Tewalt, 476 F. Supp. 3d 1077, 1086-88

(D. Idaho 2020) (concluding that inmate-plaintiff’s amended complaint failed to

set forth a plausible Eighth Amendment claim when prison officials had developed

and instituted policies to curb the spread of COVID-19); McKissic v. Barr, No.

1:20-cv-526, 2020 WL 3496432, at *6 (W.D. Mich. June 29, 2020) (concluding

that inmate-plaintiff failed to state an Eighth Amendment claim where defendants

had taken “significant measures . . . to secure prisoner safety and prevent

21

infection” and the plaintiff’s “speculation about the mere possibility that he will

become infected does not rise to the level of an Eighth Amendment violation”).

Indeed, “the Eighth Amendment does not require perfection on the part of prison

officials.” See Wylie, 2021 WL 261280, at *6.

From Plaintiff’s complaint, as pled, the court “cannot conclude that, when

faced with a perfect storm of a contagious virus and the space constraints inherent

in a correctional facility, [Defendants] here acted unreasonably by ‘doing their

best.’” See Swain, 961 F.3d at 1289. The court, therefore, will grant Defendants’

motion to dismiss Small’s Eighth Amendment claims against both Defendants.

C. Small’s First Supplemental Complaint

It is well-settled that prison officials may not retaliate against an inmate

because he exercises his right of access to the courts. Fantone, 780 F.3d at 191. A

prisoner asserting a retaliation claim must allege the following elements: The

elements necessary for a prisoner retaliation claim require the prisoner to allege

that: (1) he engaged in constitutionally protected conduct; (2) he suffered an

adverse action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights; and (3) the constitutionally protected conduct was “a

substantial or motivating factor” for the adverse action. See Rauser v. Horn, 241

F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.

2003). The filing of a lawsuit or a prison grievance constitutes protected activity

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under the First Amendment. Fantone, 780 F.3d at 191. The court now applies this

framework to Small’s claims against the Defendants.

On October 28, 2020, Small filed an “amended complaint.” (Doc. 20.) In

this pleading, he asserted a new claim of retaliation against the existing

Defendants, Kauffman, and Green, for denying his grievance appeal of the IPRC’s

decision to ban two of his magazines as prohibited pursuant to the DOC’s DC-

ADM 803. (Id.) On November 16, 2020, the court issued a memorandum and

order defining the pleading as a supplement to the existing complaint. See Docs.

21, 22. The order also held that although the claim presented in the supplement

was not COVID-19 related, which is the central theme of Small’s original

complaint, it alleged actions taken by both Defendants against Small since his

filing of the original complaint. Federal Rule of Civil Procedure allow a party to

assert “as many claims as it has against an opposing party.” Fed. R. Civ. P. 18(a);

see also Rainey v. Link, No. 3:20-CV-0058, 2021 WL 666968, at *3 (M.D. Pa.

Feb. 19, 2021) (Plaintiff may assert as many claims as he has “against one or more

Defendants, even if those additional claims are unrelated to the common claim

linking all Defendants.”) Small’s supplemental complaint asserting a retaliation

claim against Defendants is, thus, properly joined in this matter and will not be

dismissed on this ground.

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Next, Defendants seek dismissal of Small’s retaliation claim based on a lack

of merit. (Id., p. 12.) Defendants argue that courts have upheld the DOC’s

confiscation of incoming publications, for legitimate penological reasons such as

safety and security. (Id.) The court cannot reach the merits of Small’s retaliation

based solely on the allegations of the supplemental complaint. This is especially

true where the IPRC’s rationale for denying Small’s magazines is not spelled out in

the supplemental complaint. Accordingly, Defendants’ request to dismiss the

retaliation claim is premature. Defendants’ motion to dismiss the supplemental

complaint will be denied on this ground as well.

D. Small’s Second Supplemental Complaint

Small seeks leave to file a second supplemental complaint, while Defendants

seek to dismiss it. (Docs. 41, 48.) The parties do not dispute the narrow scope of

the proposed supplemental pleading. In the proposed supplemental complaint,

Small “seeks to add another Defendant Hammon, who is accused of Retaliation,

by stopping him from going to the law library.” (Doc. 50.) Defendants seek

dismissal of the supplemental pleading as it seeks to add a new claim against a new

party. (Doc. 48.) Small opposes dismissal of the second supplemental complaint

because Ms. Hammon’s actions “prevented the Plaintiff from filing adequately, the

Plaintiff had know[n] access to relevant state and federal statutes, did not have

access to state and federal law reporters” etc. (Id., p. 3.)

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Rule 15(d) of the Federal Rules of Civil Procedure governs supplemental

complaints and provides in part that “[o]n motion and reasonable notice, the court

may, on just terms permit a party to serve a supplemental pleading setting out any

transaction, occurrence, or event that happened after the date of the pleading to be

supplemented.” (emphasis added). However. this rule must be read in conjunction

with other relevant rules such as Rule 18 and Rule 20. Rule 18(a) governs the

joinder of claims and provides: “A party asserting a claim ... may join, as

independent or alternative claims, as many claims as it has against an opposing

party.” Fed. R. Civ. P. 18(a). Rule 20(a)(2) permits joinder of multiple defendants

in one action if: “(A) 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 (B) any question of law

or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2).

Here, Small’s second supplemental complaint violates both Rule 18 and 20

as it seeks to add new claims and a new party to this action that has no connection

to Small’s existing allegations against Defendants. It is undisputed that Ms.

Hammon is not presently a party to this action. Additionally, the proposed

supplemental complaint does not allege that Kauffman or Green are alleged to

have played any active role in or acquiesced to Ms. Hammon’s February 24, 2021

actions of temporarily removing Small from the library call out list to ensure other

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inmates’ access to the law library. (Doc. 41.) To allow Small to bootstrap

unrelated claims of constitutional torts by non-defendants, in which Defendants are

not alleged to have any personal involvement, would be improper. Accordingly,

Small’s motion to file a second supplemental complaint will be denied without

prejudice to Small filing an independent civil action concerning Ms. Hammon’s

actions. As such, Defendants’ motion to dismiss the second supplemental

complaint will be denied as moot.

E. Small’s Motions for Preliminary Injunctive Relief

Small’s transfer from SCI-Huntingdon to SCI-Greene renders all three of his

motions for injunctive relief moot. Once a prisoner who is complaining of his

conditions of confinement is transferred from the prison about which he is

complaining, the court cannot grant him meaningful prospective relief because he

would not benefit from that relief. Thus, with limited exceptions not at issue here,

Small’s claims for injunctive relief are moot. See Sutton v. Rasheed, 323 F.3d 236,

248 (3d Cir. 2003) (stating that “[a]n inmate’s transfer from the facility complained

of generally moots the equitable and declaratory claims”). As Small is no longer

housed at SCI-Huntingdon, his motions for preliminary injunction for relief from

his conditions of confinement at that facility are denied as moot.

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F. Leave to Amend

As noted above, Small’s Eighth Amendment claim is subject to dismissal

due to his failure to adequately plead Defendants’ deliberate indifference to the

substantial risk COVID-19 posed to his health while housed at SCI-Huntingdon.

However, because the court cannot determine that it would be futile or prejudicial

to permit Plaintiff to file an amended complaint against Defendants that corrects

the identified deficiencies of this claim, the court will grant Plaintiff twenty-one

days (21) to file an amended complaint as to his Eighth Amendment conditions of

confinement claim.

If Small decides to file an amended complaint, he must clearly label it as

such on the face of the document. It must bear the docket number assigned to this

case and must be retyped (double spaced) or legibly rewritten (double spaced) in

its entirety, on the court-approved form. In addition, any amended pleading filed

by Small replaces all prior pleadings filed with the court. Therefore, Small must

plead all claims against Defendants, including those that were not dismissed by the

court, i.e. his retaliation claim, in his second amended complaint. Plaintiff may not

include his claims against Ms. Hammon in his second amended complaint. He

may, however, file a separate action concerning his alleged access to the courts

claim against her if he so choses.

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The court cautions Small that his second amended complaint must be

concise and direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in

individually numbered paragraphs in short, concise, and simple statements. Id.;

Fed. R. Civ. P. 10(b). The factual allegations of the second amended complaint

may not be conclusory. Instead, the facts alleged should be specific enough as to

time and place of the violations and must identify the specific person or persons

responsible for the deprivation of his constitutional rights and what each defendant

did to harm him. Iqbal, 556 U.S. at 676.

If Small fails to file a second amended complaint on the court’s form within

twenty-one (21) days, this action will proceed solely on Small’s retaliation claim

set forth in his amended complaint.

CONCLUSION

Defendants’ motions to dismiss, Docs. 30 and 47, will be granted in part and

denied in part. Small’s claims against Kauffman will be dismissed for lack of

personal involvement. Small’s Eighth Amendment conditions of confinement

claim will be dismissed without prejudice. Defendants’ motion to dismiss Small’s

retaliation claim set forth in his supplemental complaint will not be granted.

Plaintiff’s motion to file a second supplemental complaint, Doc. 41, asserting

claims against Ms. Hammon will be denied. Accordingly, Defendants’ motion to

dismiss the proposed second supplemental complaint will be denied as moot.

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Plaintiff’s motions for injunctive relief, Docs. 42, 52, and 59, will be denied as

moot. An appropriate order will follow.

s/ Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Dated: December 3, 2021 Middle District of Pennsylvania

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