# Ivy v. Harry

> District Court, M.D. Pennsylvania · August 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10412121

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412121

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GLAVIN IVY, : CIVIL ACTION NO. 1:18-CV-1506
:
Plaintiff : (Judge Conner)
:
v. :
:
SGT. JOHNSON, SGT. BAINEY, :
LT. MORTON, ERIC FULLER, :
RACHAEL JONES, :
:
Defendants :
MEMORANDUM
Plaintiff Glavin Ivy (“Ivy”) commenced this action pursuant to 42 U.S.C. §
1983 alleging that his rights were violated under the First and Eighth Amendments,
and under Pennsylvania state law. (Doc. 1). The action is proceeding via a second
amended complaint. (Doc. 94). The remaining defendants are Sergeant Johnson,
Sergeant Bainey, Lieutenant Morton, Correctional Officer Rachael Jones, and
Correctional Officer Eric Fuller. Defendants move for summary judgment pursuant
to Federal Rule of Civil Procedure 56. (Doc. 115). For the reasons set forth below,
the motion will be granted in part and denied in part.
I. Factual Background & Procedural History1
Ivy was transferred to the State Correctional Institution at Camp Hill,

Pennsylvania (“SCI-Camp Hill”) on August 9, 2017. (Doc. 133 ¶ 1; Doc. 145 ¶ 1). His
time at SCI-Camp Hill was for classification purposes. (Id. ¶ 2). On August 17, 2017,
Ivy was moved from R Block to general population. (Id. ¶ 3). Beginning on August
9, 2017, Ivy submitted several requests for a law library pass. (Doc. 94 ¶¶ 13, 20-21,
23-24, 26-28, 30-32). On August 25, 2017, Ivy was issued a law library pass but was
only permitted a brief visit to the library. (Id. ¶¶ 30-35). Later that afternoon, Ivy
alleges that defendant Johnson made a derogatory statement to him about his

efforts to visit the law library. (Id. ¶¶ 36-37). Ivy contends that defendant Johnson
retaliated against him and exhibited hostility towards him because he was
convicted of sex crimes. (Id. ¶¶ 38, 41).
During yard on August 25, 2017, Ivy saw defendant Johnson talking to other
inmates, who he believes threatened him on behalf of defendant Johnson. (Id. ¶¶
39, 46, 48-49). After yard was over, defendant Johnson allegedly moved Ivy’s

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.
A party opposing a motion for summary judgment must file a separate statement of
material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issues to be tried. Id. Unless otherwise
noted, the factual background herein derives from the allegations in the second
amended complaint and the parties’ Rule 56.1 statements of material facts. (Docs.
94, 133, 145). To the extent the parties’ statements are undisputed or supported by
uncontroverted record evidence, the court cites directly to the statements of
material facts.
2
cellmate to another cell to isolate Ivy, signifying to other inmates that Ivy required
this isolation because he was either a snitch or was convicted of a sex crime. (Id. ¶¶

40-41). On August 27, 2017, Ivy asked a fellow inmate whether he should report
these events to a lieutenant or file a grievance. (Id. ¶ 50).
On the evening of August 27, 2017, Ivy alleges that defendant Johnson
entered his cell, threw him against the wall, and struck him on the side of his head.
(Id. ¶¶ 52-54). Ivy asserts that he briefly lost consciousness and suffered bleeding
from his ear. (Id. ¶ 54). During this assault, defendant Johnson also allegedly
verbally threatened Ivy by stating, “[y]ou’re a bitch” and warned Ivy that if he ever

mentioned his name to a lieutenant or in a grievance, he would transfer Ivy to the
Restricted Housing Unit (“RHU”). (Id. ¶ 55). Ivy believes that defendants Fuller
and Jones, who were working the control board that evening, opened the cell door
to allow defendant Johnson to enter his cell. (Id. ¶ 53).
On August 28, 2017, Ivy submitted a grievance pertaining to, inter alia, the
events of August 27, 2017. (Id. ¶ 56). He approached defendant Morton and
informed him about the assault by defendant Johnson. (Id. ¶¶ 57-59). Defendant

Morton informed Ivy that he would order defendant Johnson not to communicate
with him anymore, that Ivy would be transferred to another area of the prison, and
that Ivy would be treated by medical. (Id. ¶¶ 58-59). A few hours later, Ivy was
transferred to the RHU. (Id. ¶ 62).

3
On August 28, 2017, defendant Johnson issued a misconduct against Ivy
charging him with threatening an employee. (Id. ¶ 63). The hearing examiner

ultimately dismissed the misconduct. (Id. ¶¶ 70, 93).
As a result of the assault on August 27, 2017, Ivy alleges that he suffered from
migraines, temporary hearing loss, bleeding in his ear, impaired vision, pain and
suffering, and emotional distress. (Id. ¶¶ 65-67). Ivy maintains that he did not
receive any medical attention for his injuries. (Id. ¶¶ 65-66, 92).
During his stay in the RHU, Ivy alleges that defendant Bainey confiscated his
soap and toothpaste for one week and he was not permitted to shower from August

28, 2017 through September 11, 2017. (Id. ¶¶ 71, 91). He further contends that
various inmates were placed in his cell to incite hostility towards him. (Id. ¶ 86).
The Pennsylvania Department of Corrections (“DOC”) has established a
formal policy and procedures manual that must be followed by inmates who file
grievances while incarcerated at state correctional institutions. (Doc. 133 ¶ 4; Doc.
145 ¶ 4). The purpose of a grievance is to allow an inmate to bring concerns and
complaints to the attention of prison officials. (Id.) The grievance procedures are

set forth in the DOC’s Administrative Directive 804 (“DC-ADM 804”), titled Inmate
Grievance System. (Id. ¶ 5). The policy provides a three-tiered system for the
resolution of inmate grievances: (1) an initial review by a Grievance Officer; (2)
appeal to the Facility Manager or designee; and (3) appeal to the Secretary’s Office
of Inmate Grievance and Appeals for final review. (Id. ¶ 6). Pursuant to DC-ADM
804, a grievance must be submitted in writing, using the grievance form available
4
on all housing units or blocks, within fifteen working days after the events noted in
the grievance. (Id. ¶ 7). A grievance must include the following: a statement of facts

relevant to the claim including the date and approximate time and location of the
events giving rise to the grievance; the identity of any individuals who were directly
involved in the events; any claims the inmate wishes to make concerning violations
of DOC directives, regulations, court orders, or other law; and any compensation or
legal relief desired. (Id. ¶ 8). Upon receipt, the Facility Grievance Coordinator
assigns each grievance to a Grievance Officer. (Id. ¶ 9). If an inmate is dissatisfied
with the initial response, he or she may appeal that decision to the Facility

Manager. (Id. ¶ 10). The Facility Manager then provides a written response to the
grievance. (Id. ¶ 11). The Facility Manager may uphold the response, uphold the
inmate, dismiss the grievance as untimely or on the merits, or uphold in part and
deny in part. (Id.) The Facility Manager may also remand the Initial Review
Response for further investigation or consideration. (Id.) If an inmate is not
satisfied with the decision of the Facility Manager, he or she may submit an appeal
to the Secretary’s Office of Inmate Grievances and Appeals. (Id. ¶ 12). Only issues

raised in both the original grievance and the appeal to the Facility Manager may be
appealed to this level. (Id.) That appeal must include the original grievance, the
Initial Response Review, the appeal to the Facility Manager, the Facility Manager’s
response, and the appeal to final review with any exhibits. (Id. ¶ 13). The
Secretary’s Office of Inmate Grievances and Appeals may then uphold the
response, uphold the inmate, dismiss, or uphold in part and deny in part. (Id. ¶ 14).
5
Defendants contend that an inmate has not exhausted the grievance
procedure unless a grievance is properly appealed to the Secretary’s Office of

Inmate Grievances and Appeals. (Doc. 133 ¶ 15). Ivy disputes whether a grievance
must be properly appealed to the Secretary’s Office of Inmate Grievances and
Appeals in order to exhaust the grievance procedure. (Doc. 145 ¶ 15).
In his appeal to the Secretary’s Office of Inmate Grievances and Appeals, Ivy
failed to provide a legible copy of his original grievance or a copy of his appeal to
the Facility Manager. (Doc. 133 ¶ 16; Doc. 145 ¶ 16). Ivy did not remedy this
deficiency after being informed of it. (Id. ¶ 17).

II. Legal Standard
Through summary adjudication the court may dispose of those claims that do
not present a “genuine issue as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The
burden of proof is upon the non-moving party to come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P.

56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence
must be adequate, as a matter of law, to sustain a judgment in favor of the non-
moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see
also FED. R. CIV. P. 56(a), (e). Only if this threshold is met may the cause of action
proceed. Pappas, 331 F.Supp.2d at 315.
6
III. Discussion
A. Exhaustion of Administrative Review2

Defendants first contend that Ivy failed to properly exhaust his grievances in
the prison’s administrative review process prior to proceeding to federal court.
(Doc. 135 at 17-20). Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a
prisoner is required to pursue all avenues of relief available within the prison’s
grievance system before bringing a federal civil rights action concerning prison
conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir.
2000). Section 1997e(a) establishes the requirement of administrative exhaustion:

No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a).
The PLRA “exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002). It has been made clear that the exhaustion requirement is
mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth v.
Churner, 532 U.S. 731, 741 (2001) (holding that the exhaustion requirement of the

2 In accordance with Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), the
court placed the parties on notice that it would consider exhaustion in its role as
fact finder and afforded them the opportunity to be heard under Small v. Camden
Cty., 728 F.3d 265 (3d Cir. 2013). (Doc. 149).
7
PLRA applies to grievance procedures “regardless of the relief offered through
administrative procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same).

“[I]t is beyond the power of [any] court . . . to excuse compliance with the
exhaustion requirement.” Nyhuis, 204 F.3d at 73 (quoting Beeson v. Fishkill Corr.
Facility, 28 F. Supp.2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies an inmate must comply with all
applicable grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d
Cir. 2004). The PLRA requires not only technical exhaustion of the administrative
remedies, but also substantial compliance with procedural requirements. Spruill,

372 F.3d at 227-32; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the
prisoner, either through late or improper filings, bars the prisoner from bringing a
claim in federal court unless equitable considerations warrant review of the claim.
Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
As stated, the Department of Corrections has an Inmate Grievance System,
set forth in DC-ADM 804, which permits any inmate to seek review of problems that
may arise during the course of confinement. See 37 PA. CODE § 93.9(a); PA. DEP’T

OF CORR., No. DC-ADM 804. After an attempt to resolve any problems informally,
an inmate may submit a written grievance to the Facility’s Grievance Coordinator
for initial review. This must occur within fifteen days after the events upon which
the claims are based. Within fifteen days of an adverse decision by the Grievance
Coordinator, an inmate may then appeal to the Facility Manager of the institution.
Thereafter, within fifteen days of an adverse decision by the Facility Manager, an
8
inmate may file a final appeal to the Secretary’s Office of Inmate Grievances and
Appeals. An appeal to final review cannot be completed unless an inmate complies

with all established procedures. An inmate must exhaust all three levels of review
and comply with all procedural requirements of the grievance review process in
order to fully exhaust an issue. See Booth, 206 F.3d at 293 n. 2 (outlining
Pennsylvania’s grievance review process).
In the instant action, Ivy argues that he exhausted his remedies pursuant to
DC-ADM 001. (Doc. 147 at 8-10; Doc. 147-1 ¶¶ 3-8). Under DC-ADM 001, an inmate
“who is the victim of abuse” can report the abuse in one of three ways:

1. report it verbally or in writing to any staff member;

2. file a grievance in accordance with Department policy DC-ADM
804, “Inmate Grievance System;” or

3. report it in writing to the Department’s Bureau of Investigations
and Intelligence (BII).

DC-ADM 001, Inmate Abuse Policy § IV(D)(1)-(3), available at
http://www/cor.state.pa.us (last accessed August 23, 2022). DC-ADM 001 also
provides for certain procedures that must be followed by the facility’s Security
Office when investigating allegations of abuse, which include preparing an
investigative report that is then forwarded to the Bureau of Investigations and
Intelligence (“BII”) for review. DC-ADM 001, Inmate Abuse Procedures Manuel §
1(C).
In the event that an inmate elects to report the alleged abuse by filing a
grievance in accordance with DC-ADM 804, the allegations of abuse are still
9
handled in accordance with DC-ADM 001’s procedures governing investigations.
See DC-ADM 804 § 1(D)(2) (“A grievance dealing with allegations of abuse shall be

handled in accordance with Department policy DC-ADM 001, ‘Inmate Abuse.’”); see
also DC-ADM 001 § 1(B)(2) (“A grievance dealing with the allegations of abuse shall
be handled in accordance with this procedures manual.”). As a result, the time for
responding to an inmate’s grievance may be extended, and the initial review
response will be completed by the assigned Grievance Officer when the results of
the investigation from the Bureau of Investigations and Intelligence are received.
DC-ADM 804 § 1(D)(3), (5); DC-ADM 001 § 1(B)(2). However, the extension “will not

alter the inmate’s ability to appeal upon his/her receipt of the initial review
response.” Id.
Relative to this case, Ivy filed only one grievance about the events of August
27, 2017, and in it he alleged excessive force by defendant Johnson. Specifically, in
grievance number 694286, Ivy stated that defendant Johnson threw him against a
wall, struck him on the sides and back of his head, and verbally threated him. (Doc.
133-2 at 49, 51). He also alleged that defendant Fuller opened his cell door to allow

defendant Johnson to enter, and that defendant Jones worked on the housing unit
that day. (Id.) In response to that grievance, Ivy was informed that an investigation
would be conducted into his allegations of abuse. (Id. at 50). The investigation was
assigned to Security Lieutenant Joe Francis who, on September 20, 2017, issued a
lengthy report summarizing his findings and concluding that the allegations of
abuse by excessive force and verbal threat were unfounded. (Doc. 147-2 at 33-52,
10
Investigation #2017-A-551). The investigation was reviewed by Captain R. Evans.
(Id. at 33). On October 20, 2017, the Director of the Department of Corrections

Office of Special Investigations and Intelligence, James C. Barnacle, issued his
report in which he concurred with Lieutenant Francis’ findings after reviewing his
investigation. (Id. at 53). After conclusion of the investigation and subsequent
review, Ivy’s grievance was denied on October 5, 2017. (Doc. 133-2 at 48). Ivy then
filed an appeal to the Facility Manager. (Id. at 47). The Facility Manager upheld
the initial response and denied Ivy’s appeal. (Id. at 46). Ivy filed an appeal to the
Secretary’s Office of Inmate Grievances and Appeals. Upon review, the Chief

Grievance Officer found that Ivy’s appeal was incomplete because he failed to
comply with the procedures set forth in DC-ADM 804 requiring that all relevant
documentation be provided on appeal. (Id. at 45). Ivy was directed to submit a
legible copy of his original grievance and a copy of his appeal to the Facility
Manager within fifteen days of the date of the decision. (Id.) It is undisputed that
Ivy did not comply with the directive of the Chief Grievance Officer and did not
submit the requisite documentation. (Doc. 133 ¶¶ 16-17; Doc. 145 ¶¶ 16-17).

When faced with the interplay between the general prison grievance policy,
DC-ADM 804, and the inmate abuse reporting policy, DC-ADM 001, the Third
Circuit has declined to decide whether exhaustion of administrative remedies is
possible by reporting abuse under DC-ADM 001. See Victor v. Lawler, 565 F. App’x

11
126, 129 (3d Cir. 2014).3 However, many courts have held that “an inmate need only
file a grievance with the [Department’s Office of Professional Responsibility] under

DC-ADM 001 in order to exhaust administrative remedies.” Id.; see also Moore v.
Lamas, No. 3:12-CV-223, 2017 WL 4180378 (M.D. Pa. Sep. 21, 2017) (proper
exhaustion for the purposes of the PLRA under the DC-ADM 001 requires only
reporting the abuse and waiting for the investigation to be complete); Robinson v.
Tennis, No. 3:11-CV-1724, 2017 WL 4479349 (M.D. Pa. Sep. 8, 2017) (inmate properly
exhausted by reporting abuse under DC-ADM 001 and filing grievance under DC-
ADM 804, even though inmate did not appeal unfavorable determination).

Accordingly, we find that Ivy properly exhausted his claim for excessive force under
DC-ADM 001. Defendants’ motion for summary judgment based on failure to
exhaust administrative remedies will be denied.
B. Constitutional Claims
1. Qualified Immunity
Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983.

The statute provides, in pertinent part, as follows:
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,

3 The court acknowledges that nonprecedential decisions are not binding
upon federal district courts. Citations to nonprecedential decisions reflect that the
court has carefully considered and is persuaded by the panel’s ratio decidendi.
12
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress...

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The doctrine of qualified immunity protects a state actor who has committed
a constitutional violation if the plaintiff’s rights were not “clearly established” when
the individual acted. Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). “Qualified
immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties

reasonably.” Id. at 231. “Thus, so long as an official reasonably believes that his
conduct complies with the law, qualified immunity will shield that official from
liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555
U.S. at 244). The burden to establish qualified immunity rests with the defendant
claiming its protection. Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir.
2001).
A qualified immunity determination involves a two-pronged inquiry: (1)

whether a constitutional or federal right has been violated; and (2) whether that
right was “clearly established” at the time of the alleged violation. Saucier v. Katz,
13
533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting
federal courts to exercise discretion in deciding which of the two Saucier prongs

should be addressed first). Here, we find that there are genuine issues of material
fact with respect to certain First and Eighth Amendment claims. Thus, granting
summary judgment on the basis of qualified immunity would be inappropriate.
This claim will proceed.
2. Claims against Defendants Fuller, Jones, and Morton
Individual liability can be imposed under section 1983 only if the state actor
played an “affirmative part” in the alleged misconduct and “cannot be predicated

solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)).
“A defendant in a civil rights action must have personal involvement in the alleged
wrongs. . . . Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207-08; see
also Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir.
2003). 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, 423 F.3d at 354; Rode, 845 F.2d at 1207-08. 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 at 1208. A claim of a constitutional deprivation cannot be premised

14
merely on the fact that the named defendant was the prison warden, or a prison
supervisor, when the incidents set forth in the complaint occurred. Id. at 1207.

Supervisors “may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676. With
respect to supervisory liability, there are two theories: “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 plaintiff’s 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).
Ivy asserts that defendants Fuller and Jones purposefully opened his cell
door to enable defendant Johnson to enter and assault him. (Doc. 94 ¶ 53; Doc. 133-
2 at 49, 51). At his deposition, Ivy testified regarding the roles of defendants Jones
and Fuller as follows:
As for John Doe and Jane Doe, which I think what we now know as
Eric Fuller and Mrs. Jones, I think her name was, but they opened the
cell door. Somebody had to have opened the cell door in the—behind
the controls. Because—and the reason why I know this is because of
the time that it took for the cell door to open and for Sergeant Johnson
to enter the cell, which was a mere second. I would say not any more
than three seconds. And for that to occur, he obviously couldn’t have
opened the door himself, somebody else had to have opened the door.
So they obviously were in conspiracy with Sergeant Johnson and
allowed for this assault to occur.

15
(Doc. 133-1, Deposition of Glavin Ivy (“Ivy Dep.”) at 83, Notes of Transcript (“N.T.”)
82:5-19). Ivy surmises that “[b]ecause of how quickly Sgt. Johnson entered the cell

after the cell gate opened, which were mere seconds, it is evident that C.O. Eric
Fuller and C.O. Rachael Jones, who were stationed on the C-Block that night and
were working the control board . . . opened Plaintiff’s cell for Sgt. Johnson to
enter.” (Doc. 94 ¶ 53). In support of his contention that defendants Jones and
Fuller opened his cell door, Ivy relies almost entirely on his sworn declaration.
(Doc. 147-1). While Ivy’s declaration amounts to little more than a recitation of the
allegations in his second amended complaint, it is “an admissible form of evidence

used to support factual positions during summary judgment.” Shelton v. Bledsoe,
522 F. App’x 109, 112 (3d Cir. 2013) (per curiam) (citing FED. R. CIV. P. 56(c)). The
United States Court of Appeals for the Third Circuit has “consistently said that a
pro se inmate, like [Ivy], ‘is in a decidedly difficult position from which to generate
record evidence’ and that affidavits ‘are about the best that can be expected’ at the
summary judgment stage.” Id. (quoting Brooks v. Kyler, 204 F.3d 102, 108 n.7 (3d
Cir. 2000); citing Smith v. Mensinger, 293 F.3d 641, 649 n.4 (3d Cir. 2002)). Thus, we

must accept the declaration as an admissible form of evidence used to support Ivy’s
factual positions. Ivy’s claims against defendants Fuller and Jones will proceed.
With respect to defendant Morton, Ivy asserts that he approached defendant
Morton in the dining hall and informed him that he was assaulted by defendant
Johnson. (Doc. 133-1 at 58, Ivy Dep. N.T. 57:1-11). After lunch, defendant Morton
and Ivy spoke extensively about the incident. (Id. at 58, Ivy Dep. N.T. 57:12-21).
16
Defendant Morton told Ivy that he would order defendant Johnson not to
communicate with him anymore, that Ivy would be transferred to another area of

the prison, and that Ivy would be treated by medical. (Id. at 58-61, Ivy Dep. N.T.
57:18-60:9). The record confirms that Ivy was transferred to the RHU on August 28,
2017, and he never saw defendant Johnson after the alleged assault on August 27,
2017. (Id. at 59-60, 67, Ivy Dep. N.T. 58:22-59:11, 66:16-25). However, Ivy asserts that
he did not receive any medical attention for his injuries, “as promised by Lt.
Morton.” (Doc. 94 ¶ 65). The court will deny defendants’ motion on the basis that
defendant Morton lacked personal involvement in the alleged wrongs.

3. Eighth Amendment Claims
The Eighth Amendment prohibits the infliction of cruel and unusual
punishment on prisoners. See Wharton v. Danberg, 854 F.3d 234, 247 (3d Cir. 2017).
There are several types of Eighth Amendment claims, including claims alleging:
denial of, or inadequate access to, medical care; exposure to adverse conditions of
confinement; the use of excessive force; and failure to protect from assaults by other
inmates. An Eighth Amendment claim includes both objective and subjective

components. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Under the objective
prong, the court must consider “if the alleged wrongdoing was objectively ‘harmful
enough’ to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8
(1992) (quoting Wilson, 501 U.S. at 298). However, “[w]hat is necessary to show
sufficient harm for purposes of the Cruel and Unusual Punishments Clause
depends upon the claim at issue.” Id. The subjective component is met if the
17
person or persons causing the deprivation acted with “a sufficiently culpable state
of mind.” Wilson, 501 U.S. at 298.

a. Excessive Force Claim
Defendants state that “if the allegation of a physical assault of Plaintiff by
Defendant Johnson were true, which is denied, such a claim would be stated.”
(Doc. 135 at 22 n. 3). Regardless, defendants argue that this claim cannot stand
because Ivy failed to exhaust his administrative remedies with respect to this claim,
and defendants Fuller and Jones lack personal involvement. (Id.) As set forth
herein, Ivy has properly exhausted his excessive force claim, and the claims against

defendants Jones and Fuller will proceed at this stage of the litigation. Moreover,
defendants have not moved for summary judgment on the merits of the excessive
force claim. Hence, this claim will proceed.
b. Conditions of Confinement Claim
In order to succeed on a claim as to one’s conditions of confinement, a
plaintiff must establish that: “(1) he was incarcerated under conditions posing a
substantial risk of serious harm, (2) the official was deliberately indifferent to that

substantial risk to his health and safety, and (3) the official’s deliberate indifference
caused him harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2015). “[T]he
Constitution does not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S.
337, 349 (1981). Therefore, conditions of imprisonment violate the Eighth
Amendment only if they, “alone or in combination . . . deprive inmates of the
minimal civilized measures of life’s necessities.” See id. at 347. Such necessities
18
include “adequate food, clothing, shelter, and medical care.” Farmer v. Brennan,
511 U.S. 825, 832 (1994). Thus, “extreme deprivations are required to make out a

conditions-of-confinement claim.” Hudson, 503 U.S. at 9. 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, 372 (3d Cir. 2019) (quoting Wilson, 501 U.S. at 304 and Rhodes, 452 U.S. at 347).
Ivy asserts that defendant Bainey denied him hygiene products for one week

and the ability to shower from August 28, 2017 through September 11, 2017. (Doc.
94 ¶¶ 71, 91; Doc. 147-1 ¶ 54). However, the averments contained in Ivy’s second
amended complaint are contradicted by his deposition testimony, where he was
unable to identify any individuals who denied him the opportunity to shower. (Doc.
133-1 at 73-75, Ivy Dep. N.T. 72:18-74:4-21). At his deposition, defense counsel asked
Ivy the following question: “So these—the specific correctional officers that denied
your showers, you don’t know who they are?” (Id. at 75, N.T. 74:18-20). In

response, Ivy stated: “No, but they knew who I was.” (Id. at 75, N.T. 74:21). There
is simply no evidence indicating that defendant Bainey was on duty when Ivy was
denied shower access and Ivy does not aver that he suffered any harm from these
potentially unsanitary conditions. Rather, he contends that there was simply a “risk
of harm.” (Doc. 14 at 22). The court is cognizant that the conditions of which Ivy
complains, particularly the denial of shower access for two weeks, is quite close to
19
the level of an Eighth Amendment violation. Nevertheless, we conclude that, while
potentially unpleasant, Ivy has failed to establish that he was deprived of “the

minimal civilized measure of life’s necessities.” Wilson, 501 U.S. at 298; see also
Barndt v. Wenerowicz, 698 F. App’x 673, 677 (3d Cir. 2017) (concluding that the
denial of showers for twenty-eight days did not rise to the level of an Eighth
Amendment violation); Adderly v. Ferrier, 419 F. App’x 135, 140 (3d Cir. 2011)
(holding that denial of access to clothing, toiletries, legal mail, a pillow, a mattress,
and showers for seven days did not “constitute a denial of the ‘minimal civilized
measures of life’s necessities’”) (quoting Williams v. Delo, 49 F.3d 442, 444-47 (8th

Cir. 1995)); Lindsey v. Shaffer, 411 F. App’x 466, 468 (3d Cir. 2011) (per curiam)
(concluding that whether plaintiff suffered harm was critical to determination of
whether unsanitary conditions were unconstitutional); Fortune v. Hamberger, 379
F. App’x 116, 122 (3d Cir. 2010) (concluding that the denial of showers for fifteen
days did not violate the Eighth Amendment when the inmate-plaintiff did not
“suffer[ ] any harm as a result of the denial of additional showers”). The court,
therefore, will grant summary judgment in favor of defendants with respect to Ivy’s

Eighth Amendment claim concerning his conditions of confinement.
c. Verbal Threats
Ivy asserts that defendant Johnson was verbally abusive during the physical
assault on August 27, 2017. Defendant Johnson allegedly stated, “[y]ou’re a bitch”
and warned Ivy that if he ever mentioned his name to a lieutenant or in a grievance,
he would transfer Ivy to the RHU. (Doc. 94 ¶ 55; Doc. 133-1 at 46-47, 52, Ivy Dep.
20
N.T. 45:24-46:4, 51:3-7). If defendant Johnson’s alleged statements to Ivy were not
accompanied by physical injury, they would not amount to malicious behavior

violative of the Eighth Amendment. See Dunbar v. Barone, 487 F. App’x 721, 723
(3d Cir. 2012) (“[V]erbal threats or taunts, without more, are not sufficient to
constitute a violation of the Eighth Amendment.”); Quiero v. Muniz, No. 14-225,
2015 WL 13738994, at *5 (M.D. Pa. Aug. 3, 2015) (“Allegations of verbal abuse or
threats, unaccompanied by injury or damage, are not cognizable under § 1983,
regardless of whether the inmate is a pretrial detainee or sentenced prisoner.”).
Section 1997e(e) of Title 42 provides: “[n]o Federal civil action may be brought by a

prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e). More than a de minimis physical injury must be
alleged as a predicate to allegations of mental or emotional injury. See Mitchell v.
Horn, 318 F.3d 523, 536 (3d Cir. 2003). In addition to the verbal abuse, Ivy also
asserts that defendant Johnson slammed him against a wall and struck him in the
head, causing him to temporarily lose consciousness. (Doc. 94 ¶ 54). He contends

that he suffered pain, migraines, vision impairment, and bleeding from his ear.
(Doc. 133-1 at 54, Ivy Dep. N.T. 53:5-17). Based on the foregoing, defendants’
motion for summary judgment will be denied with respect to this claim.
d. Failure to Intervene Claim
Defendants have construed Ivy’s second amended complaint as asserting a
failure to intervene claim. (Doc. 135 at 25-26). To prevail on a failure to intervene
21
claim, plaintiff must show: “(1) that the defendant failed or refused to intervene
when a constitutional violation took place in his or her presence or with his or her

knowledge; and (2) there was a ‘realistic and reasonable opportunity to intervene.’”
Knight v. Walton, No. 2:12-CV-984, 2014 WL 1316115, at *8 (W.D. Pa. Mar. 28, 2014)
(quoting Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002)) (citation omitted).
The Third Circuit Court of Appeals has held that a corrections officer who fails to
intervene when other officers are beating an inmate may be liable on a failure-to-
protect claim if the officer had “a realistic and reasonable opportunity to intervene”
and “simply refused to do so.” Smith, 293 F.3d at 650-51.

Ivy maintains that defendant Johnson acted alone, he testified that no one
was nearby when he was assaulted by defendant Johnson (other than fellow
inmates in their cells), and his deposition testimony does not identify any prison
officials who purportedly failed to intervene. (Doc. 94 ¶ 54; Doc. 133-1 at 56-57, Ivy.
Dep. N.T. 55:23-56:12; Doc. 147-1 ¶ 29). Additionally, in his brief in opposition to
defendants’ motion for summary judgment, Ivy does not even address the failure to
intervene claim. (See Doc. 147). Therefore, defendants’ motion for summary

judgment will be granted with respect to any potential failure to intervene claim.
e. Deliberate Indifference to Medical Needs
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that prison
officials violate the Eighth Amendment when they are deliberately indifferent to a
prisoner’s serious medical needs. Id. at 104-05. To succeed on such a claim, “a
plaintiff must make (1) a subjective showing that ‘the defendants were deliberately
22
indifferent to [his or her] medical needs’ and (2) an objective showing that ‘those
needs were serious.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir.

2017) (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)).
Deliberate indifference occurs when prison officials “intentionally deny[ ] or
delay[ ] access to medical care or interfer[e] with the treatment once prescribed.”

Pearson, 850 F.3d at 534 (quoting Estelle, 429 U.S. at 104-05). A mere complaint
“that a physician has been negligent in diagnosing or treating a medical condition
does not state a valid [constitutional] claim of medical mistreatment[.]” Estelle, 429
U.S. at 106. Moreover, “mere disagreement as to the proper medical treatment does
not support a claim of” deliberate indifference. Pearson, 850 F.3d at 535 (internal
quotations omitted); Monmouth County Correctional Institutional Inmates v.
Lanzaro, 834 F.2d 326 (3rd Cir.1987). Rather, where there has been medical care,

“we presume that the treatment of a prisoner is proper absent evidence that it
violates professional standards of care.” Id. As long as a physician exercises
professional judgment, his or her behavior does not violate a detainee’s
constitutional rights. See Brown v. Borough of Chambersburg, 903 F.2d 274, 278
(3d Cir. 1990).
Ivy sets forth a deliberate indifference claim against defendant Morton for
failing to refer him to medical personnel for treatment of the injuries sustained in

the assault on August 27, 2017. In response, defendants argue that Ivy failed to
establish that he suffered from serious medical needs and that he had no visible
23
injuries. (Doc. 135 at 26-27). They have submitted a video of Ivy’s escort to the
RHU the day after his alleged assault in support of their contention that Ivy did not

have any noticeable injuries.
Generally, a court must take the facts in the light most favorable to the non-
moving party when disposing of a summary judgment motion. However, a “limited
exception” to this general rule exists where the non-movant’s version of the events
may be disregarded to the extent those facts are “blatantly contradicted” by the
summary judgment record. Scott v. Harris, 550 U.S. 372, 380 (2007). While video
footage has been found to establish this “limited exception,” not all video footage or

mechanical depictions will allow a court to disregard the non-movant’s version of
the events. See Scott, 550 U.S. at 380; Patterson v. City of Wildwood, 354 F. App’x
695, 697-98 (3d Cir. 2009) (“courts have declined to apply the limited exception set
forth in Scott v. Harris where a videotape or other mechanical depiction does not
capture the whole incident or the entire arrest, or where the videotape or
mechanical depiction is susceptible to multiple reasonable interpretations.”). Here,
the record is currently devoid of the type of evidence that is capable of blatantly

contradicting Ivy’s version of the events in his sworn declaration so that no
reasonable jury could believe it. There are genuine issues of material fact with
regard to whether defendant Morton was deliberately indifferent to Ivy’s medical
needs in failing to refer him for medical treatment after the alleged physical assault
on August 27, 2017. The claim will proceed as to this defendant.

24
4. First Amendment Retaliation Claim
Ivy sets forth a retaliation claim against defendant Johnson based on the

assault and the filing of a false misconduct. He also asserts a retaliation claim
against defendant Bainey based on the denial of hygiene products and showers.
The First Amendment offers protection for a wide variety of expressive activities.
See U.S. CONST. amend I. These rights are lessened, but not extinguished in the
prison context, where legitimate penological interests must be considered in
assessing the constitutionality of official conduct. See Turner v. Safley, 482 U.S. 78,
89 (1987). Retaliation for expressive activities can infringe upon an individual’s

rights under the First Amendment. See Allah v. Seiverling, 229 F.3d 220, 224-25 (3d
Cir. 2000).
To prevail on a retaliation claim, Ivy bears the burden of demonstrating three
elements. First, he must prove that he was engaged in a constitutionally protected
activity. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Second, he must
demonstrate that he “suffered some ‘adverse action’ at the hands of prison
officials.” Id. (quoting Allah, 229 F.3d at 225). This requirement is satisfied by

showing adverse action “sufficient ‘to deter a person of ordinary firmness’ from
exercising his First Amendment rights.” Id. (quoting Suppon v. Dadonna, 2013 F.3d
228, 235 (3d Cir. 2000)). Significantly, the effect of the adverse action must be more
than de minimis. McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006). Third, he is
required to show that “his constitutionally protected conduct was ‘a substantial or
motivating factor’ in the decision” to take action against him. Rauser, 241 F.3d at
25
333-34 (quoting Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)).

If a prisoner establishes a prima facie case of retaliation, the burden shifts to
prison officials to show, by a preponderance of the evidence, that “they would have
made the same decision absent the protected conduct for reasons reasonably
related to a legitimate penological interest.” Rauser, 241 F.3d at 334. “This is often
referred to as the ‘same decision defense.’” Watson v. Rozum, 834 F.3d 417, 422 (3d
Cir. 2016). If the prison officials can make this showing, it defeats the retaliation
claim. See Carter v. McGrady, 292 F.3d 152, 159 (3d Cir. 2002).

a. Defendant Johnson
Ivy avers that defendant Johnson assaulted him in retaliation for discussing
the filing of a grievance with another inmate. (Doc. 147 at 19-20). While the filing of
an inmate grievance certainly constitutes a constitutionally protect activity, here,
Ivy does not claim that he was retaliated against for filing a grievance. See Fantone
v. Latini, 780 F.3d 184, 192 n.8 (3d Cir. 2015) (“The filing of a prison grievance is an
activity protected by the First Amendment.”). Rather, Ivy asserts that merely

talking to another inmate about filing a grievance triggered the alleged retaliatory
act. Ivy’s conversation with another inmate about filing a grievance may be
considered constitutionally protected activity. See Eichenlaub v. Twp. of Indiana,
385 F.3d 274, 282-83 (3d Cir. 2004) (“All speech is protected by the First Amendment
except narrow categories that are entitled to no protection, including obscenity and
‘fighting words.’”). Ivy has thus satisfied the first Rauser prong. With respect to the
26
second prong of the Rauser test, an inmate assault by a correctional officer
constitutes adverse action “sufficient to deter a person of ordinary firmness from

exercising his [First Amendment] rights.” Rauser, 241 F.3d at 333. The court must
next determine whether there is a causal connection between the exercise of the
constitutional right and the adverse action. Ivy has established an “unusually
suggestive” temporal proximity between his protected conduct and the defendant’s
adverse action to support an inference of retaliatory motive: defendant Johnson
allegedly assaulted Ivy several hours after Ivy spoke to a fellow inmate about filing a
grievance. (Doc. 94 ¶¶ 50-55). Ivy has met prong three.

As stated, if the prisoner establishes a prima facie case of retaliation, as is the
case here, the burden then shifts to prison officials to show by a preponderance of
the evidence that “they would have made the same decision absent the protected
conduct for reasons reasonably related to a legitimate penological interest.”
Rauser, 241 F.3d at 334. Defendants have not presented any evidence to
demonstrate that defendant Johnson’s alleged acts were reasonably related to a
legitimate penological interest. Summary judgment will be denied as to this

retaliation claim against defendant Johnson.
Ivy also asserts that defendant Johnson issued a false misconduct against
him in retaliation for filing a grievance and reporting the assault to defendant
Morton. This resulted in his placement in the Restricted Housing Unit. The filing
of a grievance is an activity protected by the First Amendment and the issuance of a
misconduct report constitutes adverse action as it carries with it more than de
27
minimis consequences. See Watson, 834 F.3d at 417, 422; Mitchell, 318 F.3d at 530
(“[plaintiff]’s allegation that he was falsely charged with misconduct in retaliation

for filing complaints against [a corrections officer] implicates conduct protected by
the First Amendment”); see also Allah, 229 F.3d at 225 (transfer to administrative
custody constitutes adverse action). The court must next determine whether there
is a causal connection between the exercise of the constitutional right and the
adverse action. Again, Ivy has established an “unusually suggestive” temporal
proximity between his protected conduct and the defendant’s adverse action to
support an inference of retaliatory motive because defendant Johnson issued Ivy

the misconduct on August 28, 2017, the same day Ivy filed his grievance. (See Doc.
147-2 at 18-20; see also Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 759 n.15 (3d
Cir. 2019) (“ample evidence” existed “from which a reasonable juror could conclude
that a causal link existed” when the protected activity and adverse action occurred
within one week)). Ivy has satisfied the three Rauser prongs. The burden now
shifts to the prison officials. Rauser, 241 F.3d at 334.
When “evaluating the legitimacy of a misconduct report, [the court] considers

‘the quantum of evidence of the misconduct to determine whether the prison
officials’ decision to discipline an inmate for his violations of prison policy was
within the broad discretion [the court] must afford them.’” Williams v. Folino, 664
F. App’x. 114, 148-149 (3d Cir. 2016) (not precedential) (quoting Watson, 834 F.3d at
426). Here, the evidence confirms that the hearing examiner ultimately dismissed
the misconduct charge against Ivy. (Doc. 147-2 at 20, 23-24, 28-29). Defendants have
28
not satisfied their burden; they have not presented a sufficient quantum of evidence
of misconduct to demonstrate that the discipline imposed was reasonably related to

a legitimate penological interest, and that Ivy would have been disciplined
regardless of the filing of the grievance. Consequently, summary judgment will be
denied as to this retaliation claim.
b. Defendant Bainey
Ivy next avers that defendant Bainey deprived him of life’s basic necessities
and issued a false misconduct against him “for succeeding in his defense against
Sgt. Johnson’s misconduct” and “in furtherance of Sgt. Johnson’s retaliation.”

(Doc. 147 at 19-20). While Ivy complains of these retaliatory acts, he fails to assert
that he was involved in any constitutionally protected activity when defendant
Bainey allegedly retaliated against him. Instead, Ivy implies that defendant
Bainey’s retaliation is based on the protected conduct that prompted defendant
Johnson to retaliate against him. Courts have consistently rejected retaliation
claims “against one defendant based on [protected activity] against another
[individual]” for lack of retaliatory motive. Victor v. Lawler, 2010 WL 5014555, at *5

(M.D. Pa. Dec. 3, 2010), aff’d, 565 F. App’x 126 (3d Cir. 2014); see also Evans v.
Rozum, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17, 2009) (“There is no apparent
reason why [the moving defendants] would want to retaliate against Plaintiff for
filing a lawsuit against others.”); Royster v. Beard, 308 F. App’x 576, 579 (3d Cir.
2009) (affirming summary judgment in favor of defendant on plaintiff’s claim that he
was retaliated against by a defendant who was not the target of his protected
29
activity). Ivy fails to clear the first Rauser hurdle in that he has not established that
he was engaged in constitutionally protected activity at the time of defendant

Bainey’s alleged retaliatory conduct. Defendant Bainey is entitled to an entry of
summary judgment on this claim.
C. State Law Claims
1. Sovereign Immunity
Defendants seek an entry of summary judgment on Ivy’s state law tort claims
of assault and battery, and intentional infliction of emotional distress, arguing that
the doctrine of sovereign immunity bars these claims against state employees.

(Doc. 135 at 34-35). We agree. It is beyond dispute that, “[t]he Department of
Corrections is an agency of the Commonwealth and the defendants, as employees of
an agency of the Commonwealth, are entitled to the protection afforded by
sovereign immunity.” McGrath v. Johnson, 67 F.Supp.2d 499, 511 (E.D. Pa. 1999)
(citing Maute v. Frank, 441 Pa. Super. 401, 402, 657 A.2d 985, 986 (1995) (state prison
officials enjoy sovereign immunity); Robles v. Pennsylvania Dep’t of Corrections,
718 A.2d 882, 884 (Pa. Commw. Ct. 1998) (same)), aff’d, 35 F. App’x 357 (3d Cir. 2002).

As a general matter, subject only to nine specific statutory exceptions not applicable
here, this sovereign immunity bars state law tort claims like those alleged here,
since Commonwealth employees are immune from liability for either negligence or

30
intentional torts.4 McGrath, 67 F.Supp.2d at 511, aff’d, 35 F. App’x 357 (3d Cir.
2002). Defendants are entitled to an entry of summary judgment on the state law

tort claims.
2. Civil Conspiracy Claim
Ivy asserts a civil conspiracy against defendants Johnson and Morton for
acting in a common purpose to retaliate against him and cover-up the assault. (Doc.
147 at 26). Under Pennsylvania law, to establish a prima facie case of civil
conspiracy, a plaintiff must plead and prove: (1) a combination of two or more
persons acting with a common purpose to do an unlawful act or to do a lawful act by

unlawful means or for an unlawful purpose; (2) an overt act in furtherance of the
conspiracy; and (3) actual legal damages. Deitrick v. Costa, No. 4:06-CV-1556, 2015
WL 1606714, at *9 (M.D. Pa. April 9, 2015) (citing Goldstein v. Phillip Morris, Inc.,
854 A.2d 585, 590 (Pa. Super. 2004). Proof of malice, defined as an intent to injure, is
required. Reading Radio, Inc. v. Fink, 833 A.2d 199, 212 (Pa. Super. 2003). The
unlawful intent must be without justification. Thompson Coal Co. v. Pike Coal Co.,
412 A.2d 466, 472 (Pa. 1979). The elements of civil conspiracy may be proven

circumstantially, so long as the evidence is “full, clear and satisfactory.” Rumbaugh

4 The nine categories for which sovereign immunity will not apply are: (1)
vehicles in the possession or control of a Commonwealth party; (2) acts of health
care employees of Commonwealth agency medical facilities or institutions; (3) the
care, custody, or control of personal property; (4) a dangerous condition of
Commonwealth agency real estate and sidewalks; (5) dangerous conditions of
highways created by potholes or sinkholes; (6) the care, custody, or control of
animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and
vaccines. See 42 PA. CONS. STAT. ANN. § 8522(b).
31
v. Beck, 601 A.2d 319, 327 (Pa. Super. 1991). A plaintiff cannot rely on subjective
suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16
(3d Cir. 1991).

Here, Ivy’s vague and conclusory allegations of conspiracy fail to satisfy the
specific pleading requirements set forth above. He contends that defendant
Johnson removed Ivy’s cellmate so he would not witness the assault, defendant
Morton failed to complete the incident report and failed to contact the medical
department, and Lieutenant Francis failed to preserve the video footage. (Doc. 147
at 25-26). The various conspiracies identified are conclusory and speculative in
nature and lack the requisite specificity. Ivy, as the adverse party, must raise “more

than a mere scintilla of evidence in its favor” and cannot survive by relying on
unsupported assertions, conclusory allegations, or mere suspicions. Williams v.
Borough of West Chester, Pa., 891 F.2d 458, 460 (3d Cir. 1989). Ivy fails to come
forward with evidence of a civil conspiracy between defendants Johnson and
Morton. Because Ivy fails to meet his burden, defendants are entitled to an entry of
summary judgment on this claim.

IV. Conclusion
Defendants’ motion (Doc. 115) for summary judgment will be granted in part
and denied in part. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: August 24, 2022

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412121. Public record. Not legal advice.