Williams v. Priliszh

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RASHAWN DAVID WILLIAMS, :

Plaintiff : CIVIL ACTION NO. 3:18-2446

v. : (JUDGE MANNION)

JUSTIN PRILISZH, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Rashawn David Williams, an inmate currently confined at the

Rockview State Correctional Institution (“SCI-Rockview”), Bellefonte,

Pennsylvania, filed the above caption civil rights action pursuant to 42 U.S.C.

§1983. (Doc. 1). The action proceeds via an amended complaint. (Doc. 29).

The Plaintiff complains of events which occurred at his former place of

confinement, the Lycoming County Prison. Id. The named Defendants are

the Lycoming County Prison Board and the following Lycoming County

Prison employees: Warden Brad Shoemaker, Deputy Warden Ryan Barnes,

and Correctional Officer Justin Priliszh. Id. Plaintiff seeks compensatory and

punitive damages for an incident that occurred on November 28, 2018, when

Defendant Priliszh allegedly used excessive force after Plaintiff struck his

arm through his cell door food tray slot to prevent it from being closed. Id.

Presently before the Court are Defendants’ motions to dismiss

Plaintiff’s amended complaint. (Docs. 30, 51). The motions are fully briefed

and are ripe for disposition. For the reasons that follow, the Court will grant

Defendants’ motions to dismiss.

II. ALLEGATIONS IN AMENDED COMPLAINT

Plaintiff’s amended complaint (Doc. 29), in conjunction with Plaintiff’s

sworn affidavit1 (Doc. 1) reveals the following:

On November 28, 2018, at 4:20-4:35 I was housed as a pre-trial

detainee in Lycoming County MSMU cell #66. During this time

prison guard Justin Priliszh was passing out food trays. Justin

Priliszh came to my cell and opened the food slot. At that time I

noticed he didn’t have any gloves on which is unsanitary because

he is passing food out. I asked this prison guard to put gloves on.

This prison guard then ask me do I want food I say yes but not

until you put gloves on. So this prison guard trys (sic) to deny me

my food and trys (sic) to close the food slot so I stick my arm out

the food slot and grab the door handle (the MSMU is a very

secure housing unit the only way the doors can be open is from

1 In addition to reviewing the facts contained in the complaint, a court

may consider “matters of public record, orders, exhibits attached to the

complaint and items appearing in the record of the case.” Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994). When a

document integral to or relied upon in the complaint is included, the court

may also consider that document. In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1426 (3d Cir. 1997).

a control panel) so he can’t close it or deny me my food. At this

time I tell prison guard Priliszh to call the supervisor. At first he

denys (sic) my request then I ask prison guard Priliszh to call the

supervisor a second time he does. In the time the supervisor is

coming Priliszh is bending my hand arm and wrist (I am not a

threat because I am behind a locked door). Prison guard Priliszh

was using excessive force. This guard was acing maliciously

when slammed my wrist in the food slot. Priliszh was causing me

pain and suffering because he chose to ignore my please (sic)

for him to stop. He just kept applying more pressure to my wrist.

Plaintiff screamed and yelled in excessive pain from the pressure

of metal/steel iron door food slot aperture that pinched the nerves

and bones in the left wrist while pleading with Defendant Priliszh

to stop.

Defendant Priliszh cursed and laughed at Plaintiff while inmate

Lamont Cradle in Cell #67 and inmate Omar Smith in cell #74

screamed repeatedly for Defendant Priliszh to stop because

Plaintiff Williams was not resisting and was being hurt and

Defendant Priliszh cursed at them to mind their business or they

would be next.

Plaintiff from the November 29, 2018 assault and battery by

Defendant Priliszh injury to left limb included bruised skin, broken

open with cuts, abrasions, contusions, pain and numbness with

discoloration and swelling and inability to squeeze left hand

closed.

Plaintiff Williams continued to tell medical staff about numbness

of the nerve in the left limb from November 29, 2018 through

December 16, 2018 but medical staff would simply tell Plaintiff

Williams you’re ok.

Plaintiff used the inmate grievance system which is done by

computer internally to make Defendant Warden Shoemaker and

Deputy Warden Barnes aware, knowledgeable, informed of

excessive unnecessary force by Defendant Priliszh.

Defendant Barnes denied grievance of Plaintiff and then

Defendant Shoemaker denied grievance appeal of Plaintiff on

December 12, 2018.

Plaintiff appealed to the 3rd level of the grievance appeals to the

Prison Board of Lycoming County but there never was any

response to the computer appeal from Lycoming County Prison

Board.

Defendant Shoemaker and Barnes and Lycoming County Prison

Board were directly involved in failure to train in de-escalation

training Defendant Priliszh which contributed to the failure to

protect Plaintiff from harm and injury by Defendant Priliszh.

Defendants Shoemaker and Barnes and Lycoming County

Prison Board are responsible and legally liable for after being

made aware of Defendant Priliszh’s action, the failure to take

corrective measures to adequately investigate and discipline.

(Doc. 29, Amended Complaint and Doc. 1, Affidavit of Rashawn Williams).

Thus, Plaintiff filed the instant action seeking compensatory and punitive

damages as well as injunctive relief, “enjoining his return to Lycoming County

Prison”. Id.

III. LEGAL STANDARDS

A. Motion to Dismiss

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 (citing 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 is merely a means

through which “to vindicate violations of federal law committed by state

actors.” See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa.

2004) (quoting 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)).

IV. DISCUSSION

As a threshold matter, Plaintiff was a pretrial detainee at the time of the

incident, as such, his excessive use of force claim would be treated as a due

process claim under the Fourteenth Amendment. See Bell v. Wolfish, 441

U.S. 520, 535–539 (1979) (holding that the Due Process Clause of the

Fourteenth Amendment protects a pretrial detainee from the use of

excessive force that amounts to punishment). If, however, Plaintiff was not a

pretrial detainee but was, rather, a convicted and sentenced inmate awaiting

transfer to a state correctional institution, his excessive use of force claim

would be governed by the Eighth Amendment. See Whitley v. Albers, 475

U.S. 312, 327 (1986). Nonetheless, as a practical matter, the Third Circuit

has determined that a §1983 excessive use of force claim brought by a

pretrial detainee under the Fourteenth Amendment Due Process Clause

should be analyzed under the same standard as an excessive use of force

claim brought under the Eighth Amendment. Fuentes v. Wagner, 206 F.3d

335, 346-47 (3d Cir. 2000). Thus, Plaintiff’s Fourteenth Amendment claim is

essentially subsumed by his Eighth Amendment claim in any event.

A. Excessive Force Claim

The cruel and unusual punishment clause of the Eighth Amendment

protects inmates against the application of excessive force by correctional

officers. See Whitley v. Albers, 475 U.S. 312, 318–19 (1986). In an excessive

force claim, the core judicial inquiry is not whether a certain quantum of injury

was sustained, but rather whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.

Wilkins v. Gaddy, 559 U.S. 34 (2010). In applying this test, courts are tasked

with considering 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. Id.

The reasonableness of a particular use of force is often dependent

upon the relevant factual context and must be “judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989); see also

Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000) (“[E]ven if we concede

[that an inmate] has established at most that prison officials overreacted to

the disturbance that he caused . . . any such over-reaction would still fall

short of supporting a finding that prison officials acted ‘maliciously and

sadistically to cause harm.’”). Additionally, de minimis use of physical force

does not qualify as excessive force unless the force is “repugnant to the

conscience of mankind.” Brooks v. Kyler, 204 F.3d 102, 107 (3d Cir. 2000)

(citing Hudson, 503 U.S. at 6); see also Wilkins, 559 U.S. 34 (clarifying that

de minimis force, rather than de minimis injury, is the dispositive issue). Not

“every malevolent touch by a prison guard gives rise to a federal cause of

action.” Hudson, 503 U.S. at 9. To that end, when “it appears that the

evidence, viewed in the light most favorable to the plaintiff, will [not] support

a reliable inference of wantonness in the infliction of pain,” summary

judgment is appropriate. Brooks, 204 F.3d at 106 (quoting Whitley, 475 U.S.

at 322).

Conversely, “when prison officials maliciously and sadistically use

force to cause harm…contemporary standards of decency are always

violated . . . whether or not significant injury is evident. Otherwise, the Eighth

Amendment would permit any physical punishment, no matter how diabolic

or inhuman, inflicting less than some arbitrary quantity of injury.” Wilkins, 559

U.S. at 37 (quoting Hudson, 503 U.S. 1).

Additionally, in the context of prison excessive force claims, in

determining “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm,” Hudson,

503 U.S. at 6–7, “even if we concede [that an inmate] has established at

most that prison officials over-reacted to the disturbance that he caused ...,

any such over-reaction would still fall short of supporting a finding that prison

officials acted ‘maliciously and sadistically to cause harm’.” Fuentes, 206

F.3d 346.

Finally, courts considering Eighth Amendment excessive force claims

have generally held that an isolated, single incident does not amount to a

constitutional violation. See e.g., Norman v. Taylor, 25 F.3d 1259, 1262–64

(4th Cir.1994); White v. Holmes, 21 F.3d 277, 280–281 (8th Cir.1994); Black

Spotted Horse v. Else, 767 F.2d 516 (8th Cir.1985); Ricketts v. Derello, 574

F.Supp. 645 (E.D.Pa.1983).

It is clear, in analyzing the case law above in relation to the instant

wicket closing incident, that Plaintiff’s own allegations fail to prove the

elements necessary to raise an Eighth Amendment claim of Excessive

Force. Here, Plaintiff admits that he intentionally shoved his arm out of the

food tray slot and was reaching for the outside door handle in order to

prevent Defendant Priliszh from closing the slot. Thus, it was not

unreasonable for Defendant Priliszh to attempt to gain control of the situation

by manipulating Plaintiff’s arm as necessary to try and close the slot. Plaintiff

then claims that defendant Priliszh bent Plaintiff’s wrist and hand, applied

pressure against plaintiff’s requests for defendant to stop, and “slammed”

plaintiff’s wrist in the food slot. As a result, plaintiff claims he suffered bruised

skin, cuts, abrasions, contusions, pain and numbness with discoloration and

swelling, and that he now has numbness in his arm.

As the Hudson Court stated, this type of force of closing a wicket is not

of the “sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at

9–10. See also Caldwell v. Luzerne County Correctional Facility

Management, 732 F. Supp.2d 458, 469 (M.D. Pa. 2010) (summary judgment

granted where the Corrections Officer initiated violence by punching,

pushing, spitting, verbally abusing, and using racial slurs against the Plaintiff

amounted to only de minimus force at best). There is nothing unreasonable

about a guard physically responding to an inmate who has created a security

breach within a special management unit. See Hall v. Koehn, 2012 WL

3011784 (M.D. Pa. 2012) (finding that guard who slammed inmate’s hand in

open wicket did not use excessive force, where inmate was holding wicket

open in contravention of institutional rules).

Thus, the Court finds that this that an isolated, single incident does not

amount to a constitutional violation. See, e.g., Lloyd v. MacNeish, 2015 WL

1391476 (E.D.N.C. 2015) (no excessive force found where guards forcibly

stopped inmate from having hands in a food tray slot); Minnis v. Pittman,

2018 WL 3974112 (M.D. Fla. 2018) (inmate’s claim that guard slammed a

food tray flap on his hand did not rise to the level of excessive force); Watkins

v. Evans, 1996 WL 499094 (6th Cir. 1996)(guard’s use of force to stop

inmate from sticking arm out of food tray slot was a reasonable response to

“admitted intransigence,” and not excessive force); Kelly v. Jones, 2017 WL

2676422 (M.D. Ga. 2017) (even if true that the guard had intentionally

slammed food tray slot flap onto inmate’s hand and locked the flap with

inmate’s pinky caught in the flap, such force would not be excessive);

Johnson v. Moody, 206 F. App’x. 880, 884 (11th Cir. 2006) (guard who

kicked a food tray slot flap which broke an inmate’s finger did not use

excessive force); Brockington v. Stanco, 2016 WL 4443204 (M.D. Ga. 2016)

(inmate’s refusal to take his arm out of food tray slot constituted a

disturbance requiring the use of force); Moss v. Brown, 2012 WL 1033475

(N.D. Tex. 2012) (“A prisoner does not have the right to refuse to comply with

orders and then claim that actions taken in response to his refusal were

maliciously done.”). Accordingly, Defendant Priliszh’s motion to dismiss will

be granted.

B. Personal Involvement

A plaintiff, in order to state an actionable civil rights claim, must plead

two essential elements: (1) that the conduct complained of was committed

by a person acting under color of law, and (2) that said conduct deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or laws

of the United States. See Groman v. Township of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42

(3d Cir. 1990).

Furthermore, federal civil rights claims brought under §1983 cannot be

premised on a theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988). Rather, each named defendant must be shown,

via the complaint’s allegations, to have been personally involved in the

events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S.

362 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir.

1976). As explained in Rode:

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.

Rode, 845 F.2d at 1207.

Inmates also do not have a constitutional right to a prison grievance

system. See Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119,

137-138 (1977); Speight v. Sims, No. 08-2038, 2008 WL 2600723 at *1 (3d.

Cir. Jun 30, 2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir.

2001)(“[T]he existence of a prison grievance procedure confers no liberty

interest on a prisoner.”)). Consequently, any attempt by Plaintiff to establish

liability against a defendant solely based upon the substance or lack of

response to his institutional grievances does not by itself support a

constitutional due process claim. See also Alexander v. Gennarini, 144 Fed.

Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident grievance

process not a basis for §1983 liability); Prvor-El v. Kelly, 892 F. Supp. 261,

275 (D. D.C. 1995) (because prison grievance procedure does not confer

any substantive constitutional rights upon prison inmates, the prison officials’

failure to comply with grievance procedure is not actionable).

With respect to Defendants Warden Shoemaker, Deputy Warden

Barnes and Lycoming County Prison Board, the amended complaint alleges

that these Defendants denied Plaintiff’s grievances or appeals or failed to act

on his appeal, although they were aware of the November 28, 2018 incident,

they did not take actions to correct, adequately investigate or discipline.

Based on those vague assertions and the record which reveals the

only involvement of these Defendants were through their involvement with

Plaintiff’s grievances, it is apparent that Plaintiff is attempting to establish

liability against these Defendants based upon either their respective

supervisory capacities or their review of his institutional grievances. Pursuant

to the above discussion, either approach is insufficient for establishing civil

rights liability against those Defendants and they are entitled to judgment as

a matter of law.

Finally, to the extent that Plaintiff alleges that Defendants endorse a

custom or policy approving forceful, punitive, and violent actions towards

inmates, this claim simply falls woefully short of the applicable legal standard

for vicarious liability in the constitutional arena.

After Monell v. Department of Social Services of the City of New York,

“a local government may not be sued under §1983 for an injury inflicted

solely by its employees or agents. . . [instead, it is when execution of a

government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under §1983.” 436 U.S.

658, 694 (1978). “Proof of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing, unconstitutional municipal

policy, which policy can be attributed to a municipal policymaker.” City of

Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). “Otherwise the

existence of the unconstitutional policy, and its origin, must be separately

proved.” Id.

The policy requirement set forth in Monell stems from the fact that a

governmental entity “is not liable under the doctrine of respondeat superior”

for constitutional claims. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.

1996). As the Beck court elaborated, a government policy or custom under

Monell must be proven in one of two ways:

Policy is made when a decisionmaker possessing final authority

to establish municipal policy with respect to the action” issues an

official proclamation, policy, or edict. A course of conduct is

considered to be a custom when, though not authorized by law,

such practices of state officials are so permanent and well settled

as to virtually constitute law.

Id. at 971 (internal citations and quotation marks omitted).

Accordingly, “[s]ingular disputes between parties who may have

shared a rocky relationship in the past is not enough to satisfy the Monell’s

policy requirement, which serves ‘as a means of determining which acts by

municipal employees are properly attributed to the municipality’.” Anything to

Rent Lease Wholesale, Inc. v. Hughesville Borough, No. 4:16-CV-00895,

2017 WL 736859, at *6 (M.D. Pa. Feb. 24, 2017) (quoting City of St. Louis v.

Praprotnik, 485 U.S. 112, 139 n.3 (1988)). See, e.g., Tuttle, 471 U.S. at 824,

105 S.Ct. 2427 (“But where the policy relied upon is not itself

unconstitutional, considerably more proof than the single incident will be

necessary in every case to establish both the requisite fault on the part of

the municipality, and the causal connection between the ‘policy’ and the

constitutional deprivation.”) (internal footnote omitted). Thus, Plaintiff’s claim

of alleged unlawful conduct based on one occasion fails as a matter of law.

C. Verbal Harassment

It has been recognized that the use of words generally cannot

constitute a constitutional violation. Johnson v. Glick, 481 F.2d 1028, 1033

n. 7 (2d Cir. 1973); Maclean v. Secor, 876 F.Supp. 695, 698–99 (E.D.Pa.

1995); Murray v. Woodburn, 809 F.Supp. 383, 384 (E.D.Pa. 1993) (“Mean

harassment ... is insufficient to state a constitutional deprivation.”); Prisoners’

Legal Ass’n v. Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993) (“[V]erbal

harassment does not give rise to a constitutional violation enforceable under

§1983.”). Mere threatening language and gestures of a custodial officer do

not, even if true, amount to constitutional violations. Fisher v. Woodson, 373

F.Supp. 970, 973 (E.D.Va. 1973); see also Balliet v. Whitmire, 626 F.Supp.

219, 228–29 (M.D. Pa.) (“[v]erbal abuse is not a civil rights violation ...”), aff’d,

800 F.2d 1130 (3d Cir. 1986). A constitutional claim based only on verbal

threats will fail regardless of whether it is asserted under the Eighth

Amendment’s cruel and unusual punishment clause, or under the Fifth

Amendment’s substantive due process clause. See Prisoners’ Legal Ass’n,

822 F.Supp. at 189; Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991).

Verbal harassment or threats, with some reinforcing act accompanying

them, however, may state a constitutional claim. For example, a viable claim

has been found if some action taken by the defendant escalated the threat

beyond mere words. See Northington v. Jackson, 973 F.2d 1518 (10th Cir.

1992) (guard put a revolver to the inmate’s head and threatened to shoot);

Douglas v. Marino, 684 F.Supp. 395 (D.N.J. 1988) (involving a prison

employee who threatened an inmate with a knife). It has also been found

that verbal harassment can rise to a constitutional level in a situation where

fulfillment of the threat was conditioned on the inmate’s exercising some

constitutionally protected right. Bieros v. Nicola, 860 F.Supp. 226, 233

(E.D.Pa. 1994); see also Prisoners’ Legal Ass’n, 822 F.Supp. at 189; Murray,

809 F.Supp. at 384.

Therefore, based on the foregoing, Plaintiff’s allegation that Plaintiff

Priliszh “cursed” at Plaintiff and other inmates, does not rise to the level of a

viable civil rights claim. See Hart v. Whalen, 2008 WL 4107651, *10 (M.D.Pa.

2008).

D. Injunctive Relief

Plaintiff seeks to be enjoined from ever returning to Lycoming County

Prison. (Doc. 29). Plaintiff, however, is incarcerated at SCI-Rockview as a

result of his December 17, 2018 sentence to life in prison for a criminal

homicide conviction. See Commonwealth v. Williams, CP-41-1442-2017.

Plaintiff has plead no facts indicating that he may return to Lycoming County

Prison. Thus, his request for injunctive relief is moot.

The mootness doctrine recognizes that “[i]f developments occur during

the course of adjudication that eliminate a plaintiff's personal stake in the

outcome of a suit or prevent a court from being able to grant the requested

relief, the case must be dismissed as moot.” Blanciak v. Allegheny Ludlum

Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). An inmate’s transfer from the

facility complained of generally moots the equitable and declaratory claims.

Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993); see Griffin v.

Beard, 401 F. App’x 715 (3d Cir. 2010) (transfer from SCI-Huntingdon

renders inmate injunctive relief claim moot). Thus, Plaintiff’s request for

injunctive relief must be dismissed.

V. LEAVE TO AMEND

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

The Federal Rules of Civil Procedure allow for amendments to be granted

liberally in light of the “principle that the purpose of pleading is to facilitate a

proper decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182

(1962). 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 whether a proposed

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

a motion to dismiss for failure to state a claim upon which relief may be

granted. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir.

2002).

In the instant case, the Court concludes that it would be futile to permit

Plaintiff to file a second amended complaint because he has already been

granted an opportunity to cure the deficiencies identified in his initial

complaint and his amended complaint failed to cure such deficiencies. See

Jones v. Unknown DOC Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d

Cir. 2019) (concluding that when an inmate-plaintiff “has already had two

chances to tell his story ... giving him further leave to amend would be futile”).

Thus, the Court will dismiss the Plaintiff’s §1983 claims without leave

to amend.

VI. CONCLUSION

For the reasons set forth above, the Court will grant Defendants’

motions to dismiss. (Docs. 30, 51).

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 16, 2022

18-2446-01