Lee-Chima v. Hughes

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KASHEYON LEE-CHIMA, :

Plaintiff : CIVIL ACTION NO. 1:20-2349

v. : (JUDGE MANNION)

K. HUGHES, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Kasheyon Lee-Chima, an inmate in state custody who was

formerly confined at the State Correctional Institution in Waymart,

Pennsylvania (SCI Waymart), filed the above-captioned civil rights action

pursuant to 42 U.S.C. §1983.1 Lee-Chima also asserts various state-law

claims. Presently before the Court is Defendants’ motion to dismiss the

amended complaint. (Doc. 38). For the reasons set forth below, the Court

will Grant in part and Deny in part Defendants’ motion to dismiss.

1 Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of

substantive rights; it serves as a mechanism for vindicating rights otherwise

protected by federal law. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85

(2002).

II. FACTUAL ALLEGATIONS IN THE COMPLAINT

Lee-Chima’s allegations are lengthy and detailed. His claims,

however, revolve around several distinct events that he alleges occurred in

April 2019. First, Lee-Chima avers that on April 4, 2019, he was physically

assaulted by three correctional officers. (Doc. 34 ¶¶ 1, 10-15, 17-18). He

claims that—for no penological reason—defendants K. Hughes and C.O.

McHugh shoved and pinned him against a wall and then repeatedly struck

and punched him all over his body. (Id. ¶¶ 10-15, 17-18). He further alleges

that, at some point during the physical assault, defendant C.O. Van Burren

witnessed the beating, failed to intervene, and then joined in the attack. (Id.

¶¶ 13-15, 17). Additionally, Lee-Chima asserts that Hughes sexually

assaulted him following the physical abuse by “groping/fondling [his]

buttocks.” (Id. ¶ 18).

Lee-Chima contends that he was then wrongfully placed in disciplinary

segregation in the Restrictive Housing Unit (RHU) based on an intentionally

falsified misconduct report. (Id. ¶¶ 19-23). He alleges this misconduct (which

was filed by Hughes and charged Lee-Chima with acting as the aggressor

by attempting to assault Hughes, McHugh, and Van Burren) was fabricated

to cover up the physical assault, (id. ¶ 23), and that he was subsequently

denied procedural due process during the misconduct hearing by defendant

C.J. McKeown, (id. ¶¶ 28-36, 44, 48, 50, 54, 59, 63-64, 70-73, 76-77).

Specifically, Lee-Chima claims that McKeown wrongfully (1) denied his

request to present eyewitness testimony to support his case, and (2) refused

to allow him to review the surveillance video footage from the incident or to

admit that video footage into evidence. (Id. ¶¶ 32-35). Lee-Chima avers that

he was not released from the RHU until July 3, 2019, spending 90 days in

disciplinary segregation for a misconduct he did not commit. (Id. ¶ 76). He

further asserts that, due to this false misconduct and procedurally flawed

hearing process, he was sanctioned to the “termination/removal” of his

prison job and lost wages in the amount of $48.48. (Doc. 34 at 38).2

The final incident that Lee-Chima appears to complain of allegedly

occurred on April 5, 2019. (See Doc. 34 ¶¶ 24-26). He asserts that

correctional officers wrongfully “removed and destroyed” his personal

property (“primarily . . . food”) that he values at $31.12. (Id. ¶ 25; Doc. 34 at

38-39).

2 Lee-Chima’s amended complaint was docketed in a manner where the

pages are out of order and occasionally upside down. Accordingly, when no

paragraph number is given in the amended complaint, the Court will cite to

the handwritten page numbers Lee-Chima provides rather than the

electronically stamped CM/ECF docket page numbers that appear at the top

of the page.

From these three incidents, Lee-Chima attempts to assert a bevy of

federal and state-law claims against the four named Defendants. As best the

Court can ascertain, he brings Section 1983 claims under the Eighth

Amendment for excessive force, failure to protect (or failure to intervene),

and deliberate indifference to serious medical needs. (See Doc. 34 at 3, 37).

He also asserts Fourteenth Amendment claims for denial of procedural due

process related to the misconduct proceedings, deprivation of personal

property without due process, and violation of his equal protection rights.

(See id.).3 As for state-law claims, Lee-Chima seems to assert claims

sounding in assault, battery, and false imprisonment. (See id. at 3-4, 37).

Defendants move to dismiss Lee-Chima’s amended complaint in its

entirety. (See Doc. 38). That motion is fully briefed and ripe for disposition.

III. STANDARD OF REVIEW - MOTION TO DISMISS

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a

complaint for “failure to state a claim upon which relief can be granted.”

3 Lee-Chima also invokes the Fifth Amendment for some of his due process

claims, but that constitutional provision is reserved for claims involving

federal—not state—actors. See Brown v. Philip Morris Inc., 250 F.3d 789,

800 (3d. Cir. 2001) (explaining that, to assert a cognizable Fifth Amendment

claim, defendants must be “federal actors”); Dunbar v. Barone, 487 F. App’x

721, 725 n.3 (3d Cir. 2012) (nonprecedential) (same).

Under Rule 12(b)(6), the Court must “accept all factual allegations as true,

construe the complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint, the

plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008)). While a complaint need only contain “a short and plain

statement of the claim,” FED. R. CIV. P. 8(a)(2), and detailed factual

allegations are not required, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007), a complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Id. at 570. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662

(2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and conclusions” are

not enough, Twombly, 550 U.S. at 555, and a court “is not bound to accept

as true a legal conclusion couched as a factual allegation.” Id. (citation

omitted).

In resolving a motion to dismiss, the Court must “conduct a two-part

analysis.” Fowler, 578 F.3d at 210. First, it must separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at

210-11. Second, it must “determine whether the facts alleged in the

complaint are sufficient to show that the plaintiff has a “plausible claim for

relief.” Id. at 211 (citation omitted).

IV. DISCUSSION

Defendants take issue with nearly every claim that Lee-Chima asserts

in his amended complaint. The Court, therefore, will assess the sufficiency

of each claim in turn.

A. Eighth Amendment Claims

Lee-Chima alleges Eighth Amendment violations sounding in

excessive force, failure to protect (or failure to intervene), and deliberate

indifference to serious medical needs. Only the last of these claims lacks

sufficient factual allegations.

1. Excessive Force

In a Section 1983 claim for excessive force, the “pivotal inquiry” is

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

discipline, or maliciously and sadistically to cause harm.” Ricks v. Shover,

891 F.3d 468, 480 (3d Cir. 2018) (quoting Smith v. Mensinger, 293 F.3d 641,

649 (3d Cir. 2002)). The factors analyzed when making this inquiry include:

“(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 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 the forceful

response.” Id. (quoting Smith, 293 F.3d at 649).

Defendants do not take issue with any of the elements of Lee-Chima’s

excessive force claim against Hughes, McHugh, and Van Burren. His

allegations of being beaten while restrained and without a penological

purpose clearly satisfy the pleading requirements for stating an excessive

force claim. Instead, Defendants argue that Lee-Chima has failed to exhaust

his administrative remedies with respect to this claim.

The problem with Defendants’ argument is that failure to exhaust

administrative remedies is an affirmative defense rather than a pleading

requirement, and necessarily will require a factual determination that goes

beyond the complaint. See Paladino v. Newsome, 885 F.3d 203, 208, 211

(3d Cir. 2018). The Court, therefore, cannot grant a Rule 12(b)(6) motion on

this basis. Although Defendants are free to raise such an affirmative defense

through a motion for summary judgment, Lee-Chima’s extensive and well-

documented grievance history, (see generally Doc. 34; Doc. 34-1), creates

a formidable barrier to his excessive force claims being decided solely on an

administrative exhaustion basis.

2. Failure to Protect, Failure to Intervene

To establish an Eighth Amendment failure-to-protect claim against a

prison official, the inmate must show that “(1) he was incarcerated under

conditions posing a substantial risk of serious harm, (2) the official was

deliberately indifferent to that substantial risk to [the prisoner’s] health and

safety, and (3) the official’s deliberate indifference caused [the prisoner]

harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other

grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020). In this context,

deliberate indifference is a subjective standard; that is, “the prison official-

defendant must actually have known or been aware of the excessive risk to

inmate safety.” Id. (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d

Cir. 2001)). Actual knowledge or awareness of a substantial risk to an

inmate’s safety can be proven “in the usual ways, including inference from

circumstantial evidence.” Id. (quoting Farmer, 511 U.S. at 842).

This Eighth Amendment claim against Van Burren appears to be the

only Section 1983 claim that Defendants leave unchallenged. Nevertheless,

because Lee-Chima uses language in his amended complaint that implicates

a failure-to-intervene claim and argues for its inclusion in his brief in

opposition to Defendants’ motion to dismiss, (see Doc. 48 at 10-13), the

Court will address its sufficiency.4

Lee-Chima alleges that Van Burren witnessed Hughes and McHugh

physically assaulting him in a defenseless position but failed to take any

action to intervene. This type of allegation has long been held to state an

Eighth Amendment violation. See Mensinger, 293 F.3d at 650-51 (holding

that “a corrections officer’s failure to intervene in a beating can be the basis

of liability for an Eighth Amendment violation under §1983 if the corrections

officer had a reasonable opportunity to intervene and simply refused to do

so”). Lee-Chima’s allegations, taken as true, demonstrate that there was

ample opportunity for Van Burren to intervene. Lee-Chima claims that he

was physically assaulted in two different places and that Van Burren

replaced one of the assailants when the assault continued in a new location.

Consequently, Lee-Chima’s failure-to-intervene claim against Van Burren

can proceed.

3. Deliberate Indifference to Serious Medical Needs

The Eighth Amendment to the United States Constitution prohibits the

infliction of cruel and unusual punishments on prisoners. See Farmer v.

4 Lee-Chima’s claim against Van Burren appears to fit better under the rubric

of a “failure-to-intervene” claim, and thus the Court will construe it as such.

Brennan, 511 U.S. 825, 832 (1994). In the context of prison medical care,

the Eighth Amendment “requires prison officials to provide basic medical

treatment” to incarcerated individuals. Rouse v. Plantier, 182 F.3d 192, 197

(3d Cir. 1999). To establish an Eighth Amendment claim of deliberate

indifference regarding inadequate medical care, a plaintiff must demonstrate

(1) “a serious medical need,” and (2) “acts or omissions by prison officials

that indicate deliberate indifference to that need.” Natale v. Camden Cnty.

Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). A serious medical need is

“one that has been diagnosed by a physician as requiring treatment or one

that is so obvious that a lay person would easily recognize the necessity for

a doctor’s attention.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834

F.2d 326, 347 (3d Cir. 1987).

Deliberate indifference by prison officials may be evidenced by

intentional refusal to provide care known to be medically necessary, delayed

provision of medical treatment for non-medical reasons, denial of prescribed

medical treatment, and denial of reasonable requests for treatment resulting

in unnecessary suffering or risk of injury. See Durmer v. O’Carroll, 991 F.2d

64, 68 & n.11 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d at 346). Deliberate

indifference to serious medical needs is an exacting standard, requiring a

showing of “unnecessary and wanton infliction of pain.” Estelle v. Gamble,

429 U.S. 97, 104 (1976) (citation omitted). Claims sounding in mere medical

negligence will not suffice. Rouse, 182 F.3d at 197.

Defendants again do not challenge Lee-Chima’s medical deliberate

indifference claim based on its elements. Instead, they argue that Lee-Chima

has failed to allege that any of the named Defendants had any personal

involvement in the purportedly deficient medical care. (See Doc. 39 at 18-

19). Defendants are correct.

It is well established that, for Section 1983 claims, a plaintiff must plead

the requisite personal involvement in the alleged constitutional violation. See

Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2022) (citation omitted). Lee-

Chima does not provide any plausible allegations that Defendants—who are

not medical providers or healthcare administrators—had any involvement in

his medical care or purported lack thereof.

Lee-Chima argues, in his sur-reply, that medical staff failed to timely

treat him “under the direction of Defendants Hughes and McHugh,” and

baldly claims that there was a “conspiracy” by Defendants to cover up the

assault. (Doc. 55 at 19-20). There are two deficiencies with Lee-Chima’s

argument. First, it is well settled that a plaintiff cannot amend his pleadings

through a brief in opposition to a motion to dismiss. See Frederico v. Home

Depot, 507 F.3d 188, 201-02 (3d Cir. 2007) (citing Pa. ex rel. Zimmerman v.

PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)). Second, even if these

assertions appeared in his amended complaint, which they do not, such

conclusory allegations regarding a conspiracy cannot meet the pleading

requirements of Twombly and Iqbal. The Court, therefore, must dismiss Lee-

Chima’s claim of deliberate indifference to serious medical needs.

B. Fourteenth Amendment Claims

Lee-Chima asserts three varieties of alleged Fourteenth Amendment

violations. He claims that his procedural due process rights were infringed

throughout the misconduct proceedings, that he was deprived of his personal

property without due process of law, and that his equal protection rights were

violated. Defendants challenge each claim under Rule 12(b)(6).

1. Procedural Due Process

To plausibly state a Section 1983 claim for infringement of procedural

due process rights, “a plaintiff must allege that (1) he was deprived of an

individual interest that is encompassed within the Fourteenth Amendment’s

protection of ‘life, liberty, or property,’ and (2) the procedures available to him

did not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d

225, 233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d

Cir. 2000)). Notably, “inmates are generally not entitled to procedural due

process in prison disciplinary hearings because the sanctions resulting from

those hearings do not usually affect a protected liberty interest.” Burns v. Pa.

Dep’t of Corr., 642 F.3d 163, 171 (3d Cir. 2011).

Defendants contend that Lee-Chima’s 90-days’ disciplinary

segregation in the RHU does not amount to an “atypical and significant

hardship” such that a liberty interest would be implicated. They further

contend that the process Lee-Chima received satisfies the Fourteenth

Amendment’s requirements in the context of a prison disciplinary

proceeding. The Court need only address Defendants’ first argument.

It has long been held that disciplinary segregation alone generally does

not rise to the level of an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” See Sandin v. Conner, 515

U.S. 472, 484, 486 (1995). The United States Court of Appeals for the Third

Circuit has repeatedly held that disciplinary segregation for periods much

longer than that which Lee-Chima experienced does not rise to the level of

an atypical and significant hardship. See Mensinger, 293 F.3d at 654 (seven

months); Torres v. Fauver, 292 F.3d 141, 151 (3d Cir. 2002) (135 days);

Griffin v. Vaughn, 112 F.3d 703, 705-07 (3d Cir. 1997) (fifteen months);

Dunbar, 487 F. App’x at 725 (540 days). Thus, Lee-Chima’s 90-day

placement in the RHU, without more, does not implicate a liberty interest

under the Fourteenth Amendment, so his procedural due process claim must

be dismissed.

That Lee-Chima also lost his prison job does not affect this

determination. There is no independent liberty or property interest in a prison

job arising from the Due Process Clause of the Fourteenth Amendment.

James v. Quinlan, 866 F.2d 627, 629, 630 (3d Cir. 1989); see also Burns,

642 F.3d at 171 (explaining that prisoner-plaintiff did not have a property

interest in his prison job). Nor does the loss of prison employment implicate

an atypical and significant hardship such that there would be a deprivation

of a state-created liberty interest. See Presbury v. Wenerowicz, 472 F. App’x

100, 101 (3d Cir. 2012) (nonprecedential). Moreover, the cases upon which

Lee-Chima relies concern revocation of good time credits, a liberty interest

that is protected by the Fourteenth Amendment but not implicated in his

case. (See Doc. 48 at 13-15 (citing Edwards v. Balisok, 520 U.S. 641 (1997);

Wolff v. McDonnell, 418 U.S. 539 (1974); Howard v. U.S. Bureau of Prisons,

487 F.3d 808 (2007))).

2. Deprivation of Property Without Due Process

Lee-Chima appears to raise a claim that he was deprived of his

personal property by state actors without due process of law.5 Such claims

are cognizable in Section 1983 actions, see Hudson v. Palmer, 468 U.S. 517,

533 (1984), but are difficult to establish. That is primarily because a due

process property-deprivation claim will not lie when “adequate state post-

deprivation remedies are available.” Id. In other words, even if an inmate is

negligently or intentionally deprived of personal property by a state actor,

there is no constitutional violation if the state provides “a meaningful post

deprivation remedy for the loss.” Id. & n.14.

Lee-Chima’s amended complaint is silent as to whether adequate state

post-deprivation remedies exist for the alleged confiscation and destruction

of his personal property, but the Court notes that state tort law likely provides

a remedy for claims like those he is asserting. See 42 PA. CONS. STAT.

§8522(a), (b)(3) (waiving state statutory sovereign immunity for negligent

acts related to the “care, custody or control of personal property in the

5 Defendants attack this claim on the basis that it purports to invoke the

Takings Clause, (see Doc. 39 at 20-21), but the Court finds that a claim of

deprivation of property without due process is a more appropriate fit for Lee-

Chima’s allegations. Lee-Chima, in his surreply, echoes this sentiment. (See

Doc. 55 at 22).

possession or control of Commonwealth parties”); see also Cruz v. SCI-SMR

Dietary Servs., 566 F. App’x 158, 160 (3d Cir. 2014) (nonprecedential)

(noting that district court correctly dismissed Fourteenth Amendment due

process property-deprivation claim due to existence of state post-deprivation

remedies). The Third Circuit has also held that the prison grievance process

constitutes an adequate post-deprivation remedy for claims like those

asserted here, even if the plaintiff disagrees with the results. See Tillman v.

Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000).

Consequently, the Court must dismiss Lee-Chima’s Fourteenth Amendment

property deprivation claim, because adequate state post-deprivation

remedies exist for this alleged $31.12 loss, even if Lee-Chima did not avail

himself of those remedies.

3. Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides

that “[n]o State shall . . . deny to any person within its jurisdiction the equal

protection of the laws.” U.S. CONST. amend. XIV, §1. To state a Fourteenth

Amendment equal protection claim, a prisoner must allege “that he was

treated differently than other similarly situated inmates, and that this different

treatment was the result of intentional discrimination based on his

membership in a protected class[.]” Mack v. Warden Loretto FCI, 839 F.3d

286, 305 (3d Cir. 2016). An equal protection claim can also be asserted

under a “class of one” theory, whereby a plaintiff alleges that a state actor

intentionally treated him differently than others who are similarly situated

“and there is no rational basis for the difference in treatment.” Phillips, 515

F.3d at 243 (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000)).

Lee-Chima contends that he was discriminated against by Hughes

based on his race and sexual orientation.6 (See Doc. 34 ¶¶ 7, 18). It appears

that he is claiming that the verbal harassment, abuse, and threats from

Hughes on April 4, 2019, constituted the discriminatory conduct to which he

was subjected. (See id. ¶ 8). The problem for Lee-Chima is that verbal

harassment on a single occasion does not implicate a constitutional violation.

See DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone,

simple verbal harassment does not constitute cruel and unusual punishment,

deprive a prisoner of a protected liberty interest or deny a prisoner equal

protection of the laws.”), abrogated on other grounds by Savory v. Cannon,

947 F.3d 409 (7th Cir. 2020). Moreover, as Defendants point out, Lee-

6 Lee-Chima, however, never identifies his race or sexual orientation in his

amended complaint. In his surreply, he states that he is “Latinx” and

homosexual. (Doc. 55 at 27).

Chima’s amended complaint does not allege that he was treated differently

than other similarly situated prisoners. For these reasons, Lee-Chima’s

equal protection claim must be dismissed.

C. State-Law Claims

Lee-Chima also asserts several state-law intentional torts against

Defendants. Although not well developed, the claims appear to be assault,

battery, and false imprisonment. These claims are barred by state statutory

sovereign immunity.

Commonwealth parties acting within the scope of their employment

generally are immune from suit except when immunity is explicitly waived.

See 1 PA. CONS. STAT. §2310; 42 PA. CONS. STAT. §§8521, 8522(a).

Pennsylvania’s General Assembly has carved out certain limited exceptions

from its grant of sovereign immunity to Commonwealth actors. See generally

42 PA. CONS. STAT. §§8521, 8522. Section 8522(b) of Title 42 of the

Pennsylvania Consolidated Statutes provides ten narrow categories7 where

the state has waived its sovereign immunity for claims involving negligent

7 The ten exceptions set forth in 42 PA. CONST. STAT. §8522(b) concern: (1)

vehicle liability; (2) medical-professional liability; (3) care, custody or control

of personal property; (4) Commonwealth real estate, highways and

sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or

control of animals; (7) liquor store sales; (8) National Guard activities; (9)

toxoids and vaccines; and (10) sexual abuse.

conduct by Commonwealth parties. See id. §8522(a), (b). This statutory

immunity applies to both negligent and intentional torts committed by

Commonwealth actors. See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.

Commw. Ct. 1992).

Lee-Chima’s claims against Defendants—who are state actors and

were working for the Commonwealth when the alleged incidents occurred—

do not fall into any of the enumerated exceptions provided by Section

8522(b). Accordingly, his state-law claims of assault, battery, and false

imprisonment are barred by state statutory sovereign immunity.

D. Official Capacity Claims

Finally, although not addressed by Defendants, Lee-Chima’s claims

against Defendants in their official capacities, (see Doc. 34 at 6), must be

dismissed because they are barred by Eleventh Amendment sovereign

immunity. See 28 U.S.C. §1915(e)(2)(B)(ii) (mandating that “the court shall

dismiss” a case at any time if the court determines that it “fails to state a

claim on which relief may be granted”).

The Eleventh Amendment to the United States Constitution prevents

federal courts from entertaining lawsuits—by United States citizens or

citizens of foreign states—brought against a state. U.S. CONST. amend. XI;

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Hans v.

Louisiana, 134 U.S. 1, 10 (1890). This immunity from private suit extends to

state agencies as well as state officials acting in their official capacity,

because such lawsuits are essentially civil actions “against the State itself.”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). States may waive

this immunity if they choose, but Pennsylvania has explicitly not waived its

immunity with respect to claims brought under Section 1983. See 42 PA.

CONS. STAT. §8521(b); Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d

Cir. 2020); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 & n.5 (3d

Cir. 2010) (citing 42 PA. CONS. STAT. §8521(b)). There are two exceptions to

the Eleventh Amendment’s bar to private suits against nonconsenting states:

(1) “Congress may abrogate a state’s immunity” and (2) “parties may sue

state officers for prospective injunctive and declaratory relief.” Wheeling &

Lake Erie Ry. Co. v. Pub. Util. Comm’n of Pa., 141 F.3d 88, 91 (3d Cir. 1998)

(citing, inter alia, Ex parte Young, 209 U.S. 123 (1908)).

Lee-Chima does seek injunctive relief in his amended complaint, (see

Doc. 34 at 40-41), but he either requests retroactive injunctive relief or

injunctive relief that does not involve remediation of violations of federal law.

Lee-Chima seeks expungement of the misconduct from his record and a

lowering of his custody level, which is retroactive injunctive relief. He also

seeks “immediate release on Parole” and an order that Defendants begin

paying damages within 30 days of successful resolution of his claims. (See

id. at 41). Such remedies are not the type of prospective injunctive relief

contemplated for official capacity claims against state officers. Rather, to

meet the Ex Parte Young exception to Eleventh Amendment sovereign

immunity, the injunctive relief sought must be “to remedy an ongoing violation

of federal law.” M.A. ex rel. E.S. v. State-Operated Sch. Dist. of Newark, 344

F.3d 335, 345 (3d Cir. 2003).8

V. LEAVE TO AMEND

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

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

must permit a curative amendment unless granting leave to amend would be

inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d

Cir. 2002).

Here, it is clear from the facts alleged in the amended complaint that

any further attempt to amend would be futile as to the following claims:

Fourteenth Amendment procedural due process; Fourteenth Amendment

8 The Court additionally notes that, as to Lee-Chima’s request for “immediate

release” on parole, such a request sounds in habeas corpus rather than a

Section 1983 remedy.

deprivation of property without due process of law; state-law intentional torts

of assault, battery, and false imprisonment; and the official capacity claims

against all Defendants. Thus, the Court will dismiss these claims with

prejudice.

If able, Lee-Chima will be granted leave to amend his claims of Eighth

Amendment deliberate indifference to serious medical needs and Fourteenth

Amendment equal protection. If Lee-Chima chooses to file a second

amended complaint in conformity with this Memorandum, it should be a

stand-alone document, complete in itself and without reference to any

previous pleadings. The complaint should set forth all Lee-Chima’s claims

(except those dismissed with prejudice) in short, concise, and plain

statements, and in sequentially numbered paragraphs. It should, among

other things, name proper defendants, specify the offending actions taken

by a particular defendant, be signed, and indicate the nature of the relief

sought.

If Lee-Chima chooses not to amend his pleadings a second time, his

case will proceed on the following claims: (1) Eighth Amendment excessive

force against Hughes, McHugh, and Van Burren in their individual capacities;

and (2) Eighth Amendment failure-to-intervene against Van Burren in her

individual capacity.

VI. CONCLUSION

For the reasons set forth above, the Court will Grant in part and Deny

in part Defendants’ motion (Doc. 38) to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). The Court will also dismiss with prejudice Lee-

Chima’s official capacity claims against all Defendants pursuant to 28 U.S.C.

§1915(e)(2)(B)(ii) for failure to state a claim. Leave to amend will be granted,

albeit in a limited fashion. A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: July 11, 2022

20-2349-01