Tejada v. Delbalso

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RICKY TEJADA,

: CIVIL ACTION NO. 3:18-CV-1096

Plaintiff, : (JUDGE MARIANI)

: (Magistrate Judge Saporito)

V.

SUPERINTENDENT DELBASO, et al.,_:

Defendants. :

MEMORANDUM OPINION

|. INTRODUCTION

Magistrate Judge Joseph F. Saporito’s Report and Recommendation (“R&R”) (Doc.

217) in which he addresses the claims contained in Plaintiffs second amended complaint

(Doc. 122) is pending before the Court.1 The second amended complaint contains

numerous allegations of wrongdoing which Plaintiff maintains violate the United States

Constitution and Pennsylvania state law. Defendants filed a motion for summary judgment

seeking judgment in their favor on most claims contained in the operative complaint. (See

Docs. 152, 163.) Magistrate Judge Saporito recommends granting Defendants’ motion,

dismissing Doe Defendants sua sponte, dismissing Plaintiffs Fourth and Fourteenth

Amendment excessive force claims and Eighth Amendment medical claim sua sponte,

‘ Plaintiff's second amended complaint (Doc. 122) is the operative complaint and is incorrectly titled

“First Amended Complaint.” The Court herein will refer to the document as the “second amended

complaint’ or “operative complaint.”

entering judgment in Defendants’ favor on the remaining 42 U.S.C. § 1983 claims,

dismissing Plaintiff's supplemental state-law tort claims without prejudice, and closing the

case. (Doc. 218 at 77-78.) In considering the recommended disposition, the Court takes

into account Plaintiff's objections to the R&R (Doc. 239),2 Defendant's response (Doc. 240),

and all other relevant documents. For the reasons that follow, Plaintiffs objections will be

overruled in part and sustained in part and the R&R will be adopted in part.

Il. STANDARD OF REVIEW

lf a party timely and properly files a written objection to a Magistrate Judge's Report

and Recommendation, the District Court “shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection

is made.” Id. at § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); M.D. Pa. Local Rule 72.3;

Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). “If a party does not object timely to a

magistrate judge's report and recommendation, the party may lose its right to de novo

review by the district court.” EEOC v. City of Long Branch, 866 F.3d 93, 99-100 (3d Cir.

2017). The de novo standard applies only to objections which are specific. Goney v. Clark,

749 F.2d 5, 6-7 (3d Cir. 1984). However, “because a district court must take some action

for a report and recommendation to become a final order and because the authority and the

2 On December 15, 2021, Plaintiff requested leave to amend his objections to the R&R filed on July

23, 2021 (Doc. 218). (Doc. 235.) The Court granted Plaintiffs request by Order of January 10, 2022.

(Doc. 236.) After requesting and being granted an extension of time to file amended objections (Docs. 237,

238), Plaintiff filed the document addressed herein on April 13, 2022 (Doc. 239). These objections replace

rather than supplement Plaintiff's original objections.

responsibility to make an informed, final determination remains with the judge, even absent

objections to the report and recommendation, a district court should afford some level of

review to dispositive legal issues raised by the report.” City of Long Branch, 866 F.3d at 100

(internal citations and quotation marks omitted).

Ill. OBJECTIONS TO REPORT AND RECOMMENDATION

A. First Amendment Access-to-Courts

Plaintiff first objects to Magistrate Judge Saporito’s conclusion that summary

judgment should be granted on his First Amendment access-to-courts claim. (Doc. 239 at

7-8.) In his objections to the R&R, Plaintiff maintains that he referred to a deprivation of

property which affected his access to courts in an Exhibit attached to his second amended

complaint. (Doc. 239 at 7 (citing Ex A1 to second amended complaint).) The identified

Exhibit, an Inmate’s Request to Staff Member” dated March 17, 2016, addresses alleged

retaliation for filing grievances and deprivation of property which Plaintiff said was hindering

him from presenting claims and defenses to the court. (/d. at 26.) Plaintiff's second

amended complaint itself (Doc. 122 at 1-23) does not address any access-to-courts claim

based on the deprivation of property hindering him from presenting matters to courts.

However, Magistrate Judge Saporito liberally construed Plaintiffs second amended

complaint to raise such a claim and appropriately found the claim to be without merit. (See

Doc. 217 at 25 n.7, 36-38.) Magistrate Judge Saporito also appropriately concluded that

Plaintiffs specific “Denial of Access to Court by Not making Administrative Remedy

Available” (Doc. 122 at 21-23) presented in his second amended complaint to be without

merit. (Doc. 217 at 38-39.)

In support of his assertion that his access-to-court claim should go forward, Plaintiff

now focuses on Defendant Wall’s alleged late mailing of his appeal of the Lehigh County

Court’s April 7, 2016, denial of his PCRA petition to the Superior Court which allegedly

caused his appeal to be rejected. (Doc. 239 at 8.) The problem with Plaintiffs reliance on

this event is that, in the second amended complaint (Doc. 122), he does not mention

anything about his appeal of the PCRA denial to the Superior Court.

Although the Court must “construe pro se complaints nonrestrictively,” Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003), a plaintiff may not amend his complaint in a brief in

opposition to a motion, see, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.9

(3d Cir. 2002). As explained in Jones v. Treece, 774 F. App’x 65 (3d Cir. 2019),

a plaintiff generally “may not amend his complaint through arguments in

his brief in opposition to a motion for summary judgment.” Shanahan v. City of

Chicago, 82 F.3d 776, 781 (7th Cir. 1996). In briefing, Jones concedes that he

“did not specifically, by name, allege an inhumane conditions of confinement

action....”... But Jones argues that this failure should be forgiven because

his pro se complaint should be liberally construed to include this claim. Jones

is correct that a pro se litigant's pleadings are liberally construed. Higgs v. Att'y

Gen., 655 F.3d 333, 339 (3d Cir. 2011). But “[lliberal pleading does not require

that, at the summary judgment stage, defendants must infer all possible claims

that could arise out of facts set forth in the complaint.” Gilmour v. Gates,

McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004).

774 F. App'x at 67. Nor can a plaintiff raise a new legal theory for the first time in objections

to a report and recommendation or otherwise amend a complaint in his objections. Glover

v. Urden, Civ. A. No. 08-990, 2014 WL 6682461, at *3 (W.D. Pa. Nov. 25, 2014) (citing

Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n. 9 (3d Cir. 2002) (a plaintiff may not

effectively amend a complaint “through any document short of an amended pleading.”);

Jimenez v. Barnhart, 46 F. App'x 684, 685 (3d Cir. 2002) (issues raised initially in the

objections to the magistrate judge's report and recommendation are deemed waived)).

Notwithstanding the foregoing basis for overruling Plaintiffs objection and granting

summary judgment on Plaintiffs access-to-courts claim, Plaintiff fares no better if the Court

were to consider the merits of the claim now raised and that asserted in his brief in

opposition to summary judgment (Doc. 198). Plaintiff states in his brief in opposition to

summary judgment that his “PCRA petition was denied because Defendants kept depriving

him of his property and denying him law library - preventing him from appealing to Superior

Court PCRA outcome.” (Doc. 198 at 24 (citing “Ex. ‘N’ attached”) (emphasis added).) In

the cited exhibit, an Affidavit of Ricky Tejada, states that because he “had no property or

way to get stationery off of other inmates on housing unit,” he could not appeal the PCRA

Court's April 7, 2016, PCRA denial.? (Doc. 199 at 15.) However, in his objections to the

R&R, Plaintiff asserts that he got his property back on April 28, 2016, “he immediately

turned over his notice of appeal” appealing the PCRA Court's denial, and Defendant Wall

3 Plaintiff's assertion that he could not appeal because he did not have his property or a way to get

stationery is not supported by the record. The Lehigh County Criminal Docket shows that Petitioner filed

Sees yom in the month following the April 7, 2016, denial of his PCRA petition. (See Doc. 163-

caused the appeal to be untimely because he did not promptly mail it. (Doc. 239 at 8.)

Plaintiff refers to documents supporting his current allegation as “now available

documentary proof.” (/d. (citing Exs. A and A1 (Docs. 239-2, 239-3).) However, whatever

might be “new” about this “proof” is not relevant. Though Plaintiff now asserts that

Defendant Wall’s late mailing caused his appeal to be rejected by the Superior Court (Doc.

239 at 8), he provides no evidence to support this assertion. The Court of Common Pleas

of Lehigh County Criminal Docket shows that Plaintiffs appeal of the April 7, 2016, PCRA

denial was docketed on May 25, 2016. (Doc. 163-1.) Reference to Plaintiffs cited exhibits

shows that the Certificate of Service was dated April 29, 2016, and docketed in the Lehigh

County Court on May 25, 2016, but there is no verification that April 29'" was the date

Plaintiff submitted his appeal for mailing. (Doc. 293-3 at 2.) The cited exhibits also show

that on May 9, 2016, Plaintiff filed an “Inmate’s Request to Staff Member” inquiring of

Defendant Wall whether mail to the Lehigh County Court House “end of April beginning of

May” had been mailed. (Doc. 293-2 at 2.) On May 16, 2016, Defendant Wall responded

that Plaintiffs mail “was placed in the mailbox after my approval.” (/d.) A review of the

Lehigh County Court of Common Pleas docket does not indicate that, following May 25,

2016, the Superior Court rejected any of Plaintiffs numerous appeals as untimely. (See

Doc. 163-1 at 53-62.) Rather, on May 4, 2017, one appeal was withdrawn, and between

October 5, 2017, and January 4, 2018, eleven appeals were dismissed due to Plaintiff's

failure to file a brief. (See id. at 61-62.) Therefore, assuming arguendo that Plaintiffs claim

that his appeal was rejected because Defendant Wall failed to timely mail the appeal to the

Lehigh County Court had been properly raised, his assertion that this was the cause of the

appeal being denied is not supported by the record. For these reasons, Plaintiffs objection

regarding his access-to-courts claim is overruled.

B. Seizure of Property

With his objection to Magistrate Judge Saporito’s determination that Plaintiffs Fourth

Amendment claims for the seizure and loss of his personal property is without merit, Plaintiff

presents no basis to find error. (See Doc. 239 at 9-10.) Therefore, this objection is

overruled.

C. Eighth Amendment Excessive Force

1. July 26, 2018, Van Transport Incident

Regarding Plaintiffs objection to the Magistrate Judge’s conclusion that summary

judgment should be granted on Plaintiff's claim related to the July 26, 2018, van incident

(Doc. 239 at 10-12), the Court agrees that summary judgment is not warranted. Defendants

focus on the fact that Plaintiff never sought medical treatment for his injuries and his alleged

deprivation of a meal does not give rise to an Eighth Amendment claim. (Doc. 163 at 15.)

The Magistrate Judge agreed, analyzing the claim as follows:

[W]henever prison officials stand accused of using excessive physical force in

violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry

is... whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian,

503 U.S. 1, 6-7 (1992).

In making this inquiry, the Supreme Court has highlighted five

factors: “(1) the need for the application of the force;” (2) “the

relationship between the need and the amount of force that was

used;” (3) “the extent of the injury inflicted;” (4) “the extent of the

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

by responsible officials on the basis of facts known to them;” and

(5) “any efforts made to temper the severity of a forceful

response.”

Baez v. Lancaster Cty., 487 Fed. App’x 30, 32 (3d Cir. 2012) (per curiam)

(quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). An inmate need not

prove that the harm he suffered was sufficiently serious in order to make out a

constitutional claim where excessive force was used, as the absence of

significant injury does not necessarily foreclose the inquiry. Hudson, 503 U.S.

at 7; see also Brooks v.Kyler, 204 F.3d 102, 108-09 (3d Cir. 2000) (“[T]he

absence of objective proof of non-de minimis injury does not alone warrant

dismissal.”).

At the same time, courts have held that the Constitution does not protect

an inmate against an objectively de minimis use of force, provided that the use

of force is not “repugnant to the conscience of mankind.” Whitley, 475 U.S. at

327 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)): see also Lindsey v.

O’Connor, 327 Fed. App’x 319, 321 (3d Cir.2009); Reyes v. Chinnici, 54 Fed.

App’x 44, 48 (3d Cir. 2002) (“There exists some point at which the degree of

force used is so minor that a court can safely assume that no reasonable

person could conclude that a corrections officer acted maliciously and

sadistically.”). “[NJot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers,violates a prisoner’s

constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973); see

also Murphy v. Palmer, Civ. Action No. 14-cv-6896 (FLW) (DEA), 2017 WL

2364195, at *13 (D.N.J. May 31, 2017) (“[NJot every push, shove or grab

constitutes excessive force.”).

Here, Tejada testified at his deposition that, while he was in a van being

transported between SCI Mahanoy, a local courthouse, and SCI Retreat, Thorx

and two unidentified correctional officers

threw stuff on me, threw liquids on me, slapped me up the side,

back of my head. They put this coat on me around my head,

around my face, so | couldn't breathe. They kicked me, threw

me all over the seat. From the seat, | fell on the floor. They didn't

give me my lunch when they transported me. They did all kind of

stuff to me.

(Doc. 153-1, at 59.) When asked what injuries, if any, he suffered as a result of

this use of force, Tejada testified: “They inflicted pain on me... . They never

cut me... . | wasn’t bleeding. . . . [There were] no visible bruises.” (/d. at 61.)

Tejada has failed to adduce evidence of any injury whatsoever as a

result of the purportedly excessive use of force by Thorx and two other,

unidentified officers on July 26, 2018. See Wilkins v. Gaddy, 559 U.S. 34, 37

(2010) (noting that “[t]ne extent of injury may . . . provide some indication of the

amount of force applied”). Based on this and the other

evidence of record, viewed in the light most favorable to the non-moving

plaintiff, we find that Tejada as adduced nothing more that a de minimis use of

force by Thorx and the other officers. [Listing cases.]

(Doc. 217 at 48-51.)

The Court agrees with Defendants that the deprivation of a single meal does not give

rise to a constitutional claim. (See Doc. 163 at 15 (citing Lindsey v. O'Connor, 327 F. App’s

319, 321 (3d Cir. 2009); Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)).) However,

regarding the use of force on July 26, 2018, while Plaintiff did not have visible injuries, the

Court cannot conclude that Plaintiffs allegations do not point to a “wanton use of

unnecessary force,” protection from which is “at the hub of the Eighth Amendment.” Brooks,

204 F.3d 108.

Assessing the five relevant factors identified by the Supreme Court, Defendants

have addressed only “the extent of the injury inflicted.” Whitley, 475 U.S. at 321.

Defendants have not shown a “need for the application of the force,” and, with no need for

force, Defendants cannot show a “relationship between the need and the amount of force

that was used.” /d. Defendants have presented no evidence of any “threat to the safety of

staff and inmates” or “any efforts made to temper the severity of a forceful response.” /d.

Because Defendants provide absolutely no evidence that any use of force was needed

during the van transport, the Court concludes that they have not satisfied their burden of

showing that summary judgment is warranted on this claim. Therefore, Plaintiffs objection

on this issue will be sustained with the result that Defendant's motion for summary judgment

on Plaintiffs claim for excessive force based on the July 26, 2018, van transport allegations

will be denied without prejudice.

2. May 31, 2016, Incident

Plaintiff has not shown error based on his objections related to the May 31, 2016,

incident. (See Doc. 239 at 12-15.) Contrary to his assertion that “a reasonable jury could

find that defendants unnecessarily escalated there [sic] use of force” (id. at 15), a review of

the evidence concerning the May 31, 2016, event (particularly the hand-held video with

sound) shows that no reasonable juror could disagree that force was applied only after

Defendant kicked an officer upon exiting the shower, that the use of force was justified, and

that the force used was not excessive. Therefore, Plaintiff's objection on this issue will be

overruled and summary judgment will be granted on this claim.

D. “Facts Overlooked or Misapprehended by Magistrate”

With his assertion regarding “Facts Overlooked or Misapprehended by Magistrate”

(Doc. 239 at 15), Plaintiff focuses on information he did not receive during discovery,

10

including information about the John/Jane Doe Defendants (id. at 16). Plaintiff does not

indicate that he specifically sought evidence regarding these Defendants or filed any motion

alleging that such evidence had been withheld. The record shows that Defendant filed

several motions to compel discovery (Docs. 86, 100, 111, 141) and on at least one occasion

sought reconsideration (Doc. 149). Although Plaintiff specifically sought names of

witnesses present or in the vicinity when “the incident” took place (see Doc. 112 at 1, Doc.

150 at 1), Plaintiff does not point to, and the Court has not found, any request for

information about John Doe and Jane Doe Defendants. Therefore, Plaintiffs allegations

that he was “subject to abusive and evasive discovery practices” is unsubstantiated and

creates no basis to undermine Magistrate Judge Saporito’s recommendations regarding

John Doe and Jane Doe Defendants (see Doc. at 31-34). Therefore, “John and Jane Doe

Medical Defendants” are dismissed from this action. However, because two John Doe

Defendants are implicated in the events of July 26, 2018, (Doc. 122 77) and this Eighth

Amendment claim goes forward, these John Doe Defendants will not be dismissed.

E, Retaliation

With his contention that the events of May 31, 2016, were in retaliation for the filing

of grievances (Doc. 239 at 17-18), Plaintiff does not show error in Magistrate Judge

Saporito’s assessment of his general claims of retaliation, i.e., Plaintiffs “position that

everything the defendants did to him was done in retaliation for his prior filing of unspecified

inmate grievances.” (Doc. 217 at 72.) However, to the extent Plaintiff alleges specifically

11

that the confiscation/destruction of personal property on May 31, 2016, was in retaliation for

an informal grievance filed that morning and the use of force alleged during the van

transport on July 26, 2018, was allegedly expressly stated to be in retaliation for the filing of

grievances, closer evaluation is needed. The R&R sets out the following relevant

framework:

To prevail on a retaliation claim, a prisoner must establish the following

elements: (1) constitutionally protected conduct; (2) an adverse action by

prison officials that is sufficient to deter a person of ordinary firmness from

exercising his constitutional rights; and (3) a causal link between the exercise

of his constitutional rights and the adverse action taken against him. Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003). Courts must diligently enforce these

requirements lest public officials be deterred from legitimate decisions for fear

of litigation. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d

Cir. 2007). This diligent enforcement does not create a heightened standard of

proof, but merely recognizes that courts “should approach prisoner claims of

retaliation with skepticism and particular care due to the near inevitability that

prisoners will take exception with the decisions of prison officials and the ease

with which claims of retaliation may be fabricated.” Alexander v. Forr, Civil

Action No. 3:CV-04-0370, 2006 WL 2796412, at *22 (M.D. Pa. Sept. 27, 2006)

(internal quotation marks omitted), affd per curiam, 297 Fed App’x 102 (3d Cir.

2008).

Throughout the pendency of this case, Tejada’s position has been that

everything the defendants did to him was done in retaliation for his prior filing

of unspecified inmate grievances. It is well established that “[t]he filing of

grievances is protected under the First Amendment.” Kelly v. York County

Prison, 340 Fed. App’x 59, 61 (3d Cir. 2009) (per curiam). Similarly, it is well

established that many of the purportedly wrongful acts by the defendants may

constitute adverse actions sufficient to meet the second element. See, e.g.

Mincy v. Chmielsewski, 508 Fed. App’x 99, 104 (3d Cir. 2013) (per curiam)

(destruction of personal property); Mitchell, 318 F.3d at 530 (issuance of

purportedly false misconduct report); Christian v. Garman, No. 3:18-cv-1363,

2019 WL 5450573, at *7 (M.D. Pa. Oct. 24, 2019) (use of force).

To evaluate the existence of a causal link, the Third Circuit has adopted

12

a burden-shifting analysis: the prisoner-plaintiff bears the initial burden of

proving that his constitutionally protected conduct was a substantial or

motivating factor in the decision to take adverse action against him; and once

a prisoner has made his prima facie case, the burden shifts to the defendant to

prove by a preponderance of the evidence that he would have taken the same

adverse action even in the absence of the protected activity, for reasons

reasonably related to penological interest. Carter v. McGrady, 292 F.3d 152,

157-58 (3d Cir. 2002); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

(Doc. 217 at 71-73.)

Defendants have not sought summary judgment on the specific claims which the

Court concludes warrant further analysis. Further, because the facts of record show that,

on these claims, Plaintiff arguably could satisfy the elements set out in Mitchell, the burden

may shift to Defendant to defeat the specifically identified retaliation claims. Therefore,

Plaintiffs objection to the recommendation that summary judgment be granted on his

retaliation claims is sustained in part and overruled in part. The objection is sustained

insofar as Plaintiff's First Amendment retaliation claim goes forward as it relates to the May

31, 2016, confiscation of property and the July 26, 2018, excessive force allegations, and

Defendants’ motion for summary judgment will be denied without prejudice as to these

claims. The objection is overruled, and summary judgment will be granted on Defendant's

First Amendment retaliation claim in all other respects.

4 The Court does not separately address Plaintiff's objection that “Civil Liability May Be Imposed for

Property Claim” (Doc. 239 at 18) because this objection has to do with the property confiscated on May 31,

2016, and he appears to be relating this to his retaliation claim previously addressed by the Court and

decided in his favor as explained in the text.

13

IV. OTHER MATTERS

A. State Law Claims

Magistrate Judge Saporito recommends that Plaintiffs state-law tort claims for

assault and battery be dismissed without prejudice based on his recommendation that all

federal claims be dismissed. (Doc. 217 at 76-77.) However, because the Court has

determined that the First Amendment Retaliation claim and Eighth Amendment excessive

force claim properly go forward in part and because Defendant did not seek summary

judgment on the assault and battery claims, these claims also go forward, see supra p.9,

B. Clear Error Analysis

The Court finds no clear error in Magistrate Judge Saporito’s analysis and

recommendation regarding matters to which Plaintiff did not object. However, because the

claims identified above go forward, allegations of supervisory liability and conspiracy related

to those claims also go forward. Similarly, claims against John Doe Defendants alleged to

have been involved in the July 26, 2018, van incident go forward though the “John/Jane

Doe medical department staff’ will be dismissed (see Doc. 217 at 32-34).

Judgment in Defendant's favor or dismissal of all claims against Defendants

Department of Corrections and SCI-Mahanoy is appropriate for the reasons set out in the

R&R. (Doc. 217 at 34-35.)

14

V. CONCLUSION

For the reasons set forth above, the R&R (Doc. 217) will be ADOPTED IN PART.

Plaintiffs Fourth Amendment and Fourteenth Amendment excessive force claims will be

DISMISSED for failure to state a claim upon which relief can be granted pursuant to 28

U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1). Pursuant to Grayson, 293 F.3d at 108,

the claims will be dismissed without leave to amend. (See Doc. 217 at 54-55.) Plaintiff's

Eighth Amendment claims for deliberate indifference to serious medical needs will be

DISMISSED for failure to state a claim upon which relief can be granted pursuant to 28

U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1).5 Pursuant to Grayson, 293 F.3d at 108,

the claims will be dismissed without leave to amend. (See Doc. 217 at 67.) Defendants

“John/Jane Doe medical department staff,” Department of Corrections, and SCl-Mahanoy

will be dismissed from this action. The Motion for Summary Judgment of Department of

Corrections Defendants (Doc. 152) will be GRANTED IN PART and DENIED IN PART. The

Motion will be DENIED WITHOUT PREJUDICE as to the Eighth Amendment excessive

force claim related to the July 26, 2018, van incident and the First Amendment retaliation

claims based on the confiscation of property on May 31, 2016, and the events of July 26,

2018. This denial includes supervisory and conspiracy claims related to these events. The

~sMagistrate Judge Saporito notes that Plaintiff did not set out an Eighth Amendment claim for deliberate indifference to

reatmentfor ines he sured (See Doc 217 al 2423, 00842) Pursuanl to Mala. Crown Bay Mar, nc, 7043

239, 244-46 (3d Cir. 2013), Magistrate Saporito liberally construes Plaintiffs second amended complaint and provides a

thorough analysis of a deliberate indifference to serious medical needs. (See Doc. 217 at 60-67.)

15

motion will be GRANTED in all other respects. This matter will be remanded to Magistrate

Judge Saporito for further pretrial handling. A separate Order will be entered.

wr

\V dad

Robert D. Mariani

United States District Judge

16