Ross v. Fiss

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TARAHJAY M. ROSS, :

Plaintiff :

: No. 1:21-cv-02080

v. :

: (Judge Kane)

LT. FISS, et al., :

Defendants :

MEMORANDUM

Pending before the Court is a motion to dismiss filed pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure by the remaining Defendants in the above-captioned action.

(Doc. No. 14.) For the reasons set forth below, the Court will deny the motion in its entirety.

I. BACKGROUND

A. Procedural Background

On December 13, 2021, pro se Plaintiff Tarahjay M. Ross (“Plaintiff”), who is currently

incarcerated as a pretrial detainee at the Franklin County Jail (“FCJ”) in Chambersburg,

Pennsylvania, commenced the above-captioned action by filing a complaint pursuant to the

provisions of 42 U.S.C. § 1983 (“Section 1983”) against the following Defendants, all of whom

were employed by the FCJ during the period of time relevant to Plaintiff’s claims: Lieutenant

Fiss (“Fiss”); Corrections Officers Heinbaugh (“Heinbaugh”), Thomas (“Thomas”), Donatto

(“Donatto”), and Cox (“Cox”); and Property Clerk Yates (“Yates”). (Doc. No. 1.) In addition to

the complaint, Plaintiff also filed a motion for leave to proceed in forma pauperis (Doc. No. 2)

and a motion to appoint counsel (Doc. No. 4).

On December 23, 2021, the Court granted Plaintiff’s motion for leave to proceed in

forma pauperis, denied his motion to appoint counsel without prejudice, and conducted an initial

review of the complaint pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”).1 (Doc.

Nos. 7, 8.) In accordance with that review, the Court partially dismissed the complaint for

failure to state a claim upon which relief could be granted pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii). (Id.) More specifically, the Court permitted Plaintiff to proceed on his

Fourteenth Amendment excessive use of force claims against Defendants Fiss, Heinbaugh, and

Thomas, as well as his First Amendment retaliation claims against Defendants Thomas and

Donatto, but dismissed the remainder of Plaintiff’s claims without prejudice. (Id.) The Court

also afforded Plaintiff the opportunity to file an amended complaint within thirty (30) days. (Id.)

The Court cautioned Plaintiff that, if he failed to file an amended complaint within the thirty (30)

days, the Court would direct service of the original complaint upon Defendants Fiss, Heinbaugh,

Thomas, and Donatto. (Doc. No. 8 ¶ 10.)

Because Plaintiff never filed an amended complaint, the Court issued an Order on March

8, 2022, stating that this action would proceed on Plaintiff’s Fourteenth Amendment excessive

use of force claims against Defendants Fiss, Heinbaugh, and Thomas and on Plaintiff’s First

Amendment retaliation claims against Defendants Thomas and Donatto. (Doc. No. 13.) In

addition, the Court, after receiving a suggestion of death for Defendant Heinbaugh, terminated

Defendant Heinbaugh from this action.2 (Id.)

After waiving service (Doc. No. 12), Defendants filed a motion to dismiss the complaint

and a brief in support thereof pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

(Doc. Nos. 14, 15.) On June 15, 2022, Plaintiff filed a brief in opposition. (Doc. No. 16.) As

1 See The Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26,

1996).

2 Although the Court provided Plaintiff with the opportunity to show cause why termination of

Defendant Heinbaugh should not occur (Doc. No. 13), Plaintiff did not show any cause.

reflected by the docket, Defendants did not file a reply brief, and the time period for doing so has

passed. Thus, Defendants’ motion to dismiss the complaint is ripe for the Court’s resolution.

B. Factual Background3

In his complaint, Plaintiff alleges that on July 5, 2021, Defendant Fiss and Corrections

Officer Baker, a non-party, took him out of his cell and cuffed him behind his back to go see the

nurse. (Doc. No. 1 at 5.) Plaintiff alleges that the nurse asked him to step on the scale because

he had submitted a sick call slip with concerns of being underweight. (Id.) Plaintiff alleges that,

after he stepped off the scale, Defendant Fiss pulled him by his arm. (Id.) Plaintiff alleges that

Defendant Fiss did this because he was cuffed. (Id. (averring that Defendant Fiss also stated, “I

already heard that you had it handed to you, talking about what happen[ed] to me back in

Dauphin”).) In addition, Plaintiff alleges that, once he returned to his cell, Defendant Fiss had

him place his hands through the slot in his cell door in order for the cuffs to be removed. (Id.)

Plaintiff alleges that Defendant Fiss removed the left cuff first and “then acted as if [Plaintiff’s]

right hand wasn’t out far enough[.]” (Id.) Plaintiff alleges that Defendant Fiss “started to yank

[his] right arm/wrist all the way through the hole.” (Id.) Plaintiff alleges that he submitted a

grievance about this incident because he had bruises on his wrist. (Id.) Plaintiff alleges that a

“Correctiona[l] Treatment Specialist” responded that efforts were made to improve

professionalism and that Plaintiff should submit a sick call slip to address any medical concerns.

(Id.)

Additionally, Plaintiff alleges that, on October 16, 2021, Defendant Thomas and

Corrections Officer Woodward “darted up to the top tier due to Woodward saying he heard

3 The Court recites the factual background of this case as it pertains to Plaintiff’s remaining

claims and surviving Defendants.

something sliding across the floor.” (Id. at 8.) According to Plaintiff, prior to October 16, 2021,

he had submitted a grievance about these officers refusing to turn on a television. (Id.)

Specifically, Plaintiff alleges that, on October 3, 2021, Defendant Thomas refused to turn on the

television, and Corrections Officer Woodward “stuck up his middle finger but did it as if he were

pushing up his glasses.” (Id.)

As for October 16, 2021, Plaintiff alleges that, after a “line/string” was found,

Corrections Officer Woodward instructed Defendant Thomas to cuff Plaintiff. (Id.) Plaintiff

responded that he had not done anything, but Corrections Officer Woodward told Plaintiff to cuff

up or be sprayed with mace. (Id. at 8-9.) Plaintiff alleges that he unbuttoned his jumper from

around his waist so that he could fully put on his jumper without exposing himself. (Id. at 9.)

Plaintiff also alleges that, while the jumper was “on to [his] body[,]” he “felt wetness [on] the

back of [his] head” and realized that he was being sprayed with oleoresin capsicum (“OC”)

spray. (Id.) Plaintiff asserts that he tried to wash his eyes out at his sink when he heard

Lieutenant Pretrill, a non-party, ask him to cuff up. (Id.) Plaintiff claims that he refused, arguing

that when he tried to cuff up the first time, he got sprayed for no reason. (Id.) Plaintiff alleges

that he was subsequently cuffed and taken out of his cell with none of his buttons fastened. (Id.)

Plaintiff also alleges that he appeared before a hearing officer on October 17, 2021. (Id.)

Plaintiff claims that the hearing officer sanctioned him with thirty (30) days’ disciplinary

custody. (Id.) Plaintiff asserts that his appeal of the sanction was denied. (Id.)

Additionally, Plaintiff alleges that, on October 27, 2021, Defendant Donatto turned off

the televisions on, presumably, Plaintiff’s cell block. (Id. at 11.) Plaintiff alleges that he asked

other inmates to ask Defendant Donatto to turn them back on, but that Defendant Donatto

refused because the jail was on lockdown. (Id.) According to Plaintiff, Defendant Donatto said,

“[l]et [Plaintiff] cry.” (Id.) Plaintiff alleges that he responded by saying that he was not crying

and that Defendant Donatto could not tell the other inmates no. (Id.) Plaintiff alleges that

Defendant Donatto then said, “shut [up] you nappy head n*****.” (Id.) Plaintiff alleges that he

asked to see a lieutenant and was refused, so he began to kick his cell door in an unsuccessful

attempt to have a lieutenant come talk to him. (Id.) Plaintiff alleges that Defendant Donatto then

came to his cell and began kicking the door. (Id.) According to Plaintiff, Defendant Donatto

“knew” that Plaintiff was writing a grievance about him, so Defendant Donatto decided to issue

Plaintiff two (2) misconducts, “making false accusations” against him. (Id.) In particular,

Plaintiff alleges that he was charged with threatening to “‘F’. . . up” Defendant Donatto and with

kicking his door to have others do the same. (Id.) Plaintiff also alleges that, later that day,

Defendant Donatto walked by his cell and refused him dinner. (Id.) In connection with all of

these allegations, Plaintiff asserts that he has suffered from lacerations, bruises, swollen joints,

PTSD, mental abuse, trauma, and pain and suffering. (Id. at 13.)

Based on the above factual allegations, Plaintiff claims violations of his rights under the

First and Fourteenth Amendments to the United States Constitution. (Id.) As for relief, Plaintiff

requests monetary damages. (Id.)

II. LEGAL STANDARD

Federal notice and pleading rules require the complaint to provide the defendant notice of

the claim and the grounds upon which it rests. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,

232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a

plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled

to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure

12(b)(6) for its “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.

12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the Court accepts as true all

factual allegations in the complaint and all reasonable inferences that can be drawn from them,

viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show that their claims

are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009). The plausibility standard requires more than a mere possibility that the

defendant is liable for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” See Iqbal, 556 U.S. at 679 (citing Fed. R.

Civ. P. 8(a)(2)).

Accordingly, the United States Court of Appeals for the Third Circuit has identified the

following steps that a district court must take when reviewing a 12(b)(6) motion: (1) identify the

elements that a plaintiff must plead to state a claim; (2) identify any conclusory allegations

contained in the complaint that are “not entitled” to the assumption of truth; and (3) determine

whether any “well-pleaded factual allegations” contained in the complaint “plausibly give rise to

an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(internal citations and quotation marks omitted). The Third Circuit has specified that in ruling on

a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must consider only the

complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly

authentic documents if the complainant’s claims are based upon these documents.” See Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White

Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful that a document

filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976). A

pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than

formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

III. DISCUSSION

A. Exhaustion of Available Administrative Remedies

Initially, Defendants argue that Plaintiff’s claims should be dismissed because he failed

to exhaust available administrative remedies at the FCJ before he filed his complaint in this

Court. (Doc. No. 15 at 9-11.) In support, Defendants argue that the complaint “is entirely silent”

as to whether Plaintiff exhausted such remedies and “does not allege” that Plaintiff filed any

grievances or that he fully appealed those grievances through the FCJ’s administrative remedy

process. (Id. at 11.) As a result, Defendants argue that Plaintiff’s claims are “premature” and

should be dismissed. (Id.) The Court is unpersuaded by this argument.

While the PLRA’s exhaustion requirement is mandatory, see Ross v. Blake, 578 U.S.

632, 638 (2016) (reiterating that the PLRA’s “language is mandatory: An inmate shall bring no

action (or said more conversationally, may not bring any action) absent exhaustion of available

administrative remedies” (citation and internal quotation marks omitted)), a plaintiff’s failure to

exhaust available administrative remedies is an affirmative defense. See Jones v. Bock, 549 U.S.

199, 216 (2007). Accordingly, “[t]he burden to plead and prove failure to exhaust as an

affirmative defense rests on the defendant.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d

Cir. 2018) (citation omitted). In other words, “it is not a pleading requirement for the prisoner-

plaintiff.” See Small v. Camden Cnty., 728 F.3d 265, 268-69 (3d Cir. 2013) (citations omitted)).

This is not to suggest that a prisoner-plaintiff’s failure to exhaust available administrative

remedies cannot ever form the basis for dismissal in connection with a defendant’s motion to

dismiss filed pursuant to Rule 12(b)(6). Rather, dismissal on that ground is appropriate only

where it is apparent from the allegations in the complaint that the prisoner-plaintiff has failed to

exhaust such remedies. See Jones, 549 U.S. at 215-216 (concluding that a prisoner’s failure to

exhaust available administrative remedies may form the basis for dismissal for failure to state a

claim if “the allegations in the complaint suffice to establish that ground, not on the nature of the

ground in the abstract” (citations omitted)); Thomas v. Brinich, 579 F. App’x 60, 62 (3d Cir.

2014) (unpublished) (explaining that, “[w]hile the failure to exhaust administrative remedies may

form a basis for a dismissal for failure to state a claim, dismissal on that ground is appropriate

only in those circumstances where the complaint reveals the exhaustion defense on its face”

(citation omitted)).

Here, however, the Court finds that the allegations in the complaint do not establish that

Plaintiff failed to exhaust his available administrative remedies at the FCJ before filing his

complaint in this Court. As acknowledged by Defendants, the complaint is “entirely silent” on

this issue. (Doc. No. 15 at 11.) Thus, the Court finds that Plaintiff’s failure to exhaust is not an

appropriate ground for dismissal at this stage of the litigation. As such, the Court will deny

Defendants’ motion to dismiss on this basis.

That being determined, the Court recognizes that the Prison Litigation Reform Act’s

exhaustion requirement commands that “‘[n]o action shall be brought with respect to prison

conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional

facility until such administrative remedies as are available are exhausted.’” See Paladino v.

Newsome, 885 F.3d 203, 207 (3d Cir. 2018) (quoting 42 U.S.C. § 1997e(a)) (alterations in

original). In other words, under that Act, exhaustion of available administrative remedies is a

prerequisite for Plaintiff’s assertion of Section 1983 claims against Defendants See Ross, 578

U.S. at 638 (explaining that the PLRA’s “language is ‘mandatory’: An inmate ‘shall’ bring ‘no

action’ (or said more conversationally, may not bring any action) absent exhaustion of available

administrative remedies”) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006))); Jones, 549 U.S.

at 211 (stating that “[t]here is no question that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court” (citation omitted)); Porter v. Nussle, 534 U.S.

516, 524 (2002) (stating that “[o]nce within the discretion of the district court, exhaustion in

cases covered by § 1997e(a) is now mandatory . . . [a]ll available remedies must now be

exhausted . . . ” (citation, internal citation, and internal quotation marks omitted) (alterations

added)); Downey v. Pennsylvania Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (stating that

the “stringent requirements” of the PLRA are designed to, among other things, “return[ ] control

of the inmate grievance process to prison administrators, encourage[ ] the development of an

administrative record, and perhaps settlements, within the inmate grievance process, and reduc[e]

the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits” (citation and

internal quotation marks omitted) (alterations added)).

Accordingly, because exhaustion of available administrative remedies is a prerequisite

for Plaintiff’s assertion of his Section 1983 claims in this action, and because Defendants are

raising the affirmative defense that Plaintiff failed to exhaust his available administrative

remedies at the FCJ, the Court will afford Defendants the opportunity to file a limited motion for

summary judgment on the threshold issue of whether they can meet their burden to establish

Plaintiff’s failure to exhaust. See Rinaldi, 904 F.3d at 268 (stating that “[t]he burden to plead

and prove failure to exhaust as an affirmative defense rests on the defendant” (citation omitted)).

B. Fourteenth Amendment Excessive Use of Force Claims

In the complaint, Plaintiff asserts Fourteenth Amendment claims against Defendants

Thomas and Fiss based upon their alleged use of excessive force. (Doc. No. 1.) A pretrial

detainee’s claim based upon the alleged use of excessive force arises under the Due Process

Clause of the Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)

(reiterating that “the Due Process Clause protects a pretrial detainee from the use of excessive

force that amounts to punishment” (citation and internal quotation marks omitted)). Because

“pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously

and sadistically[,]’” see Kingsley, 576 U.S. at 400, “‘a pretrial detainee must show only that the

force purposely or knowingly used against him was objectively unreasonable.’” See Jacobs v.

Cumberland Cnty., 8 F.4th 187, 194 (3d Cir. 2021) (emphasis in original) (quoting Kingsley, 576

U.S. at 396-97).

In considering whether the use of force was objectively unreasonable, “‘[a] court (judge

or jury) cannot apply this standard mechanically.’” See id. (quoting Kingsley, 576 U.S. at 397).

Instead, courts are to assess a variety of factors when determining whether an officer used

“objectively unreasonable force[:]”

the relationship between the need for the use of force and the amount of force

used; the extent of the plaintiff’s injury; any effort made by the officer to temper

or to limit the amount of force; the severity of the security problem at issue; the

threat reasonably perceived by the officer; and whether the plaintiff was actively

resisting.

See id. at 194-95 (quoting Kingsley, 576 U.S. at 397). In addition, courts are to analyze the

“circumstances from the perspective of a reasonable officer on the scene.” See id. at 195

(citation and internal quotation marks omitted); Kingsley, 576 U.S. at 399 (recognizing that

“[r]unning a prison is an inordinately difficult undertaking, . . . and that safety and order at these

institutions requires the expertise of correctional officials, who must have substantial discretion

to devise reasonable solutions to the problems they face” (citation and internal citation and

quotation marks omitted)).

1. Defendant Thomas

Defendants argue that Plaintiff’s Fourteenth Amendment excessive use of force claim

against Defendant Thomas should be dismissed because Plaintiff has not shown his personal

involvement in the alleged use of force and because the alleged use of force was justified and

reasonable under the circumstances. (Doc. No. 15 at 12-15.) As set forth above, Plaintiff’s

excessive use of force claim against Defendant Thomas is based upon the incident that allegedly

occurred on October 16, 2021. (Doc. No. 1 at 8-9.) More specifically, Plaintiff alleges that:

Corrections Officer Woodward instructed Defendant Thomas to cuff Plaintiff (id. at 8); Plaintiff

responded that he had not done anything (id.); Corrections Officer Woodward told Plaintiff to

cuff up or be sprayed with mace (id. at 8-9); Plaintiff again responded that he had not done

anything, but proceeded by unbuttoning his jumper from around his waist so that he could fully

put on his jumper without exposing himself (id. at 9); and, once the jumper was “on to [his]

body[,]” he “felt wetness [on] the back of [his] head” and realized that he was being sprayed with

OC spray before he even had the chance to button up his jumper (id.).

Accepting Plaintiff’s allegations as true, which the Court is required to do in connection

with its resolution of a Rule 12(b)(6) motion to dismiss, the Court concludes that the complaint

alleges facts sufficient to state a Fourteenth Amendment excessive use of force claim against

Defendant Thomas. Liberally construed, the complaint alleges that, when Plaintiff was

attempting to comply with the directive to cuff up, he was sprayed with OC spray. As a result,

the complaint plausibly alleges that the force used against Plaintiff was objectively unreasonable.

See Jacobs, 8 F.4th at 194.

That being said, the Court acknowledges Defendant Thomas’s argument that the

Kingsley factors support a finding that the force used against Plaintiff was not objectively

unreasonable under the circumstances of this case. (Doc. No. 15 at 12-15 (arguing that the

complaint alleges that Plaintiff was given two (2) verbal commands before the OC spray was

used on him).) Although there may be situations in which application of the Kingsley factors

can occur based upon the pleadings alone, the Court concludes that, in this matter, a developed

factual record is necessary to determine whether Defendant Thomas’s use of force was

objectively unreasonable under the circumstances. Most notably, the allegations in the complaint

do not shed light on the fourth or fifth Kingsley factors—i.e., the severity of the security problem

or the threat reasonably perceived by the officer. Even though the complaint alleges that

Defendant Thomas and Corrections Officer Woodward had gone to Plaintiff’s cell after a

“line/string” had been found (Doc. No. 1 at 8), the circumstances surrounding this “line/string”

or the threat that it posed, or the threat that Plaintiff posed, have not been fully developed in the

complaint. As a result, the Court is unable to conduct an appropriate Kingsley analysis at this

time.

The Court also acknowledges Defendants’ argument that Defendant Thomas should be

dismissed for lack of personal involvement in this Section 1983 action. (Doc. No. 15 at 14.)

While it is true that the complaint does not specify which corrections officer deployed the OC

spray, the complaint alleges that Corrections Officer Woodward directed Defendant Thomas to

cuff Plaintiff and that the OC spray was used on the back of Plaintiff’s head. (Doc. No. 1 at 8-9.)

Thus, at this stage of the litigation, the Court finds that the complaint contains sufficient

allegations to raise the plausible inference that Defendant Thomas was personally involved in the

October 16, 2021 incident. If discovery reveals that Defendant Thomas did not have any

personal involvement in the use of OC spray, such evidence could be presented in connection

with a motion for summary judgment.

Thus, for all of these reasons, the Court finds that the complaint plausibly states a

Fourteenth Amendment excessive use of force claim against Defendant Thomas. As such, the

Court will deny Defendants’ motion to dismiss on this basis.

2. Defendant Fiss

Defendants argue that Plaintiff pleads only a de minimis injury with respect to his

Fourteenth Amendment excessive use of force claim against Defendant Fiss. (Doc. No. 15 at 15-

17.) In support, Defendants argue that Plaintiff claims only that he suffered bruises on his wrists

as a result of the incident that allegedly occurred on July 5, 2021, when Defendant Fiss allegedly

“‘yank[ed]’” on Plaintiff’s arm/wrist to remove Plaintiff’s handcuffs. (Id. at 16 (quoting Doc.

No. 1 at 5).) As a result, Defendants argue that Plaintiff is not entitled to damages from

Defendant Fiss. (Id. at 15-17.) The Court is unpersuaded by this argument.

In order for the complaint to plausibly state a Fourteenth Amendment excessive use of

force claim against Defendant Fiss, Plaintiff must “‘show only that the force purposely or

knowingly used against him was objectively unreasonable.’” See Jacobs, 8 F.4th at 194 (quoting

Kingsley, 576 U.S. at 396-97) (emphasis in original). Thus, the critical inquiry is not the extent

of Plaintiff’s injury, but the nature of the force that was allegedly used against him. See

generally Wilkins v. Gaddy, 559 U.S. 34, 37, 39 (2010) (explaining that the “core judicial

inquiry” in an Eighth Amendment excessive use of force analysis is “not whether a certain

quantum of injury was sustained,” but rather the “nature of the force” applied (citation and

internal quotation marks omitted)). Plaintiff, in other words, is not required to show more than a

de minimis injury in order to plausibly allege the excessive use of force under the Due Process

Clause of the Fourteenth Amendment.

That being said, even if Plaintiff ultimately succeeds on a Fourteenth Amendment

excessive use of force claim against Defendant Fiss, the modest nature of Plaintiff’s alleged

injuries (i.e., bruises on his wrists) will certainly impact the damages that he may recover. The

modest nature of his alleged injuries do not, however, act as a complete bar to all damages. See,

e.g., Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (explaining that “certain absolute

constitutional rights may be vindicated by an award of nominal damages in the absence of any

showing of injury warranting compensatory damages”); Salley v. PA Dep’t of Corr., 181 F.

App’x 258, 263 (3d Cir. 2006) (unpublished) (stating that “[n]ominal damages may also be

awarded when the injury is merely de minimis”).

In their instant motion to dismiss and supporting brief, Defendants have not attempted to

distinguish between Plaintiff’s recovery of compensatory damages or any other types of

damages, such as nominal damages. Instead, Defendants broadly argue that Plaintiff is not

entitled to recover any damages based upon the de minimis nature of his alleged injury. (Doc.

No. 15 at 15-17.) This argument is not supported by the case law to which Defendants cite.4 As

a result, the Court will deny Defendants’ motion to dismiss on this basis.

4 The only precedential opinion that Defendants cite in this section of their brief is Mitchell v.

Horn, 318 F.3d 523 (3d Cir. 2003). (Doc. No. 15 at 15-17.) Based upon this opinion,

Defendants argue that Plaintiff cannot seek any damages with respect to his excessive use of

B. First Amendment Claims

In the complaint, Plaintiff asserts First Amendment retaliation claims against Defendants

Thomas and Donatto. (Doc. No. 1.) In order for a prisoner-plaintiff to plausibly state a First

Amendment retaliation claim, he must allege three (3) elements. First, he must allege that he

was engaged in constitutionally protected conduct. See Rauser v. Horn, 241 F.3d 330, 333 (3d

Cir. 2001). Second, he must allege “that he suffered some ‘adverse action’ at the hands of prison

officials.” See id. (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). This

requirement is satisfied by showing that the action “was sufficient ‘to deter a person of ordinary

firmness’ from exercising his First Amendment rights.” See id. (quoting Allah, 229 F.3d at 225).

Third, he must allege that “his constitutionally protected conduct was ‘a substantial or motivating

factor’ in the decision to discipline him.” See id. at 333-34 (quoting Mount Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). If a prisoner-plaintiff 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.” See id. at 334. If the prison officials can

make this showing, it defeats the prisoner-plaintiff’s retaliation claim. See Carter v. McGrady,

292 F.3d 152, 159 (3d Cir. 2002).

force claim against Defendant Fiss “because [Plaintiff] has not alleged a less-than-significant-

but-more-than-de minimis physical injury.” (Id. at 15-16 (quoting Mitchell, 318 F.3d at 533-

36).) The Court notes that the Mitchell Court held that the plaintiff failed to state a claim for

physical injury because he had alleged only a “[l]oss of food, water, and sleep[,]” not any actual

physical injuries. See Mitchell, 318 F.3d at 534 (explaining, however, that physical injuries

could result from not receiving food, water, and sleep for four (4) days and thus, plaintiff would

be permitted the opportunity to amend). The Mitchell Court also held that, under the PLRA, a

plaintiff must show “a less-than-significant-but-more-than-de minimis physical injury as a

predicate to allegations of emotional injury.” See id. at 536 (emphasis added) (footnote omitted).

The Mitchell court did not hold, however, that a de minimis physical injury, in and of itself, bars

a plaintiff from recovering all damages. Thus, Defendants’ argument is unavailing.

1. Defendant Thomas

Defendants contend that the complaint fails to plead a First Amendment retaliation claim

against Defendant Thomas based upon the October 16, 2021 incident. (Doc. No. 15 at 17-19.)

In support, Defendants argue that the complaint fails to allege facts that would satisfy the third

element of a retaliation claim—i.e., that Plaintiff’s constitutionally protected conduct was a

substantial or motivating factor in Defendant Thomas’s decision to discipline him. (Id.)

Although Defendants acknowledge the complaint’s allegations that, in early October 2021,

Plaintiff submitted grievances against Defendant Thomas and Corrections Officer Woodward

(id. at 18), Defendants argue that the complaint does not contain any allegations that Defendant

Thomas was actually aware of those grievances (id. at 19). As such, Defendants contend that

Plaintiff’s retaliation claim against Defendant Thomas necessarily fails. (Id.) The Court agrees.

Plaintiff’s complaint is devoid of any factual allegations that Defendant Thomas had

knowledge of Plaintiff engaging in protected activity (i.e., Plaintiff filing a grievance against

Defendant Thomas) such that this protected activity could have been a substantial or motivating

factor in Defendant Thomas’s alleged retaliatory conduct (i.e., Defendant Thomas using OC

spray against Plaintiff). As a result, the Court finds that Plaintiff’s complaint has not plausibly

alleged causation, the third element of a retaliation claim, against Defendant Thomas. See

Mearin v. Vidonish, 450 F. App’x 100, 102-03 (3d Cir. 2011) (unpublished) (affirming district

court’s determination that the prisoner-plaintiff had failed to show that his constitutionally

protected activity was a motivating factor in any of the defendants’ decisions since defendants

had no knowledge of the prisoner’s constitutionally protected activity at the time he suffered the

alleged adverse actions); Booth v. King, 228 F. App’x 167, 172 (3d Cir. 2007) (unpublished)

(affirming district court’s conclusion that the prison guards’ alleged actions of searching the

prisoner’s cell, confiscating his property, and approving disciplinary sanctions against him did

not constitute retaliation where the prison guards had no knowledge of the grievances the

prisoner had filed with prison administrators); Smart v. Cmty. Educ. Ctr., Inc., No. 16-cv-02099,

2017 WL 187148, at *6 (D.N.J. Jan. 17, 2017) (explaining that the prisoner-plaintiff’s failure to

allege that the prison officials “knew of any constitutionally protected activity when they took

the allegedly adverse action” was fatal to the prisoner’s retaliation claim (citations omitted)); see

also Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 196 (3d Cir. 2015) (stating, in the

employment context, that a plaintiff “cannot establish that there was a causal connection without

some evidence that the individuals responsible for the adverse action knew of the plaintiff’s

protected conduct at the time they acted” (citations omitted)).

Accordingly, the Court is persuaded by Defendants’ argument that the complaint fails to

allege facts sufficient to satisfy the third element of Plaintiff’s retaliation claim against

Defendant Thomas. Thus, the Court will grant Defendants’ motion to dismiss Plaintiff’s First

Amendment retaliation claim against Defendant Thomas.

2. Defendant Donatto

Defendants argue that the complaint fails to state a First Amendment retaliation claim

against Defendant Donatto based upon the incident that allegedly occurred on October 27, 2021.

(Doc. No. 15 at 20-21.) Similar to their arguments as to Defendant Thomas, Defendants argue

that the complaint fails to allege facts that would satisfy the third element of a retaliation claim

against Defendant Donatto—i.e., that Plaintiff’s constitutionally protected conduct was a

substantial or motivating factor in Defendant Donatto’s decision to discipline him. (Id.)

However, the Court is unpersuaded by this argument.

In the complaint, Plaintiff alleges that, on October 27, 2021, after Defendant Donatto

turned off the televisions, and following an exchange between Defendant Donatto and Plaintiff,

Defendant Donatto said to Plaintiff, “shut [up] you nappy head n*****.” (Doc. No. 1 at 11.)

Plaintiff alleges that he asked to speak to a lieutenant but “was told no[,]” so he began to kick his

cell door in an unsuccessful attempt to get a lieutenant’s attention. (Id.) Plaintiff alleges that

Defendant Donatto came to his cell and began kicking the door. (Id.) Plaintiff also alleges that

Defendant Donatto “knew” that Plaintiff was writing a grievance about him, so Defendant

Donatto decided to issue Plaintiff two (2) misconducts, “making false accusations” against him.

(Id. (alleging that he was charged with threatening Defendant Donatto and with kicking his cell

door to have others do the same).)

Having reviewed these allegations regarding Defendant Donatto, the Court finds that they

are “unusually suggestive” of a retaliatory motive—i.e., that Defendant Donatto issued Plaintiff

two (2) misconducts within what appears to be minutes or, at most, hours of discovering that

Plaintiff was writing a grievance against him. See Krouse, 126 F.3d at 503; Watson, 834 F.3d at

422; Rink, 717 F. App’x at 134. As a result, the Court is not persuaded by Defendants’ argument

that the complaint fails to allege facts sufficient to satisfy the third element of the retaliation

claim asserted against Defendant Donatto. Thus, the Court will deny Defendants’ motion to

dismiss Plaintiff’s First Amendment retaliation claim against Defendant Donatto.

C. Qualified Immunity

Finally, Defendants argue that they are entitled to qualified immunity. (Doc. No. 15 at

22-28.) “The doctrine of qualified immunity shields officials from civil liability so long as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Clark v. Coupe, 55 F.4th 167, 178 (3d Cir. 2022)

(citations omitted). In determining whether officials are entitled to such qualified immunity,

courts “engage in a two-part analysis: (1) whether the plaintiff sufficiently alleged a right had

been violated, and (2) whether that right was clearly established when it was allegedly violated to

the extent that it would have been clear to a reasonable person that his conduct was unlawful.”

See id. (citation and quotation marks omitted).

Under the first prong, courts “must define the right allegedly violated at the appropriate

level of specificity.” See Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021) (citation

and internal quotation marks omitted). This prong requires courts “to frame the right in light of

the specific context of the case, not as a broad general proposition.” See id. (citations and

quotation marks omitted).

Under the second prong, courts “must ask whether that right was clearly established at

the time of its alleged violation, i.e., whether the right was sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” See id. (citations and internal

quotation marks omitted). This prong “is an “objective (albeit fact-specific) question, where [the

defendants’] subjective beliefs . . . are irrelevant.” See id. (citations and internal quotation marks

omitted). In order to determine whether the right was clearly established at the time of its

alleged violation, courts must first look “to factually analogous Supreme Court precedent, as

well as binding opinions from [the Third Circuit Court of Appeals[.]” See id. (citation omitted).

Courts must next “consider whether there is a robust consensus of cases of persuasive authority

in the Courts of Appeals.” See id. (citations and internal quotation marks omitted).

Additionally, courts “may also take into account district court cases, from within the Third

Circuit or elsewhere.” See id. at 165-66 (citations omitted).

In assessing such case law, courts “must keep in mind that [the Third Circuit] takes a

broad view of what constitutes an established right of which a reasonable person would have

known.” See id. at 166. In fact, “a right may be clearly established even without a precise

factual correspondence between the case at issue and a previous case.” See id. (citations and

internal quotation marks omitted); Ashcroft, 563 U.S. at 741 (explaining that, even though “a

case directly on point” is not required, “existing precedent must have placed the statutory or

constitutional question beyond debate” (citations omitted)). Thus, “[a] public official does not

get the benefit of ‘one liability-free violation’ simply because the circumstance of his case is not

identical to that of a prior case.” See Peroza-Benitez, 994 F.3d at 165 (quoting Kopec v. Tate,

361 F.3d 772, 778 (3d Cir. 2004)).

In addition, the burden of establishing qualified immunity lies with the defendants. See

Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010). The defendants satisfy this burden “only if

they can show that a reasonable person in their position at the relevant time could have believed,

in light of clearly established law, that their conduct comported with recognized legal standards.”

See E. D. v. Sharkey, 928 F.3d 299, 306 (3d Cir. 2019) (citation omitted). And, finally, although

the issue of qualified immunity should be resolved “at the earliest possible stage” in the

litigation, see Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted), “qualified

immunity will be upheld on a 12(b)(6) motion only when the immunity is established on the face

of the complaint.” See Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d Cir. 2006) (citation and

internal quotation marks omitted).

Here, in addition to the various arguments set forth above, Defendants contend that

Plaintiff’s claims should be dismissed because Defendants are entitled to qualified immunity.

(Doc. No. 15 at 22-28.) The Court, having reviewed this contention, finds that Defendants have

not met their burden of establishing that they are entitled to qualified immunity. Defendants, in

asserting a qualified immunity defense in connection with their Rule 12(b)(6) motion to dismiss,

must accept that Plaintiff is entitled to all reasonable inferences from the facts alleged in the

complaint, not only those that support his claims, but also those that overcome a qualified

immunity defense. Ultimately, the Court finds that the facts alleged in the complaint do not

support a qualified immunity defense for Defendants.

Regarding the Fourteenth Amendment excessive use of force claim asserted against

Defendant Thomas, Defendants’ argument rests on the conclusion that Plaintiff was, in fact, non-

compliant during the incident that allegedly occurred on October 16, 2021. (Doc. No. 15 at 25-

26.) However, the Court has already determined that the complaint contains allegations

supporting a plausible inference that Plaintiff was attempting to comply with the directive to cuff

up by pulling up his jump suit from around his waist and buttoning it so that he was not fully

exposed. Thus, the allegations of the complaint, accepted as true and viewed in the light most

favorable to Plaintiff, assert that Defendant Thomas used OC spray on Plaintiff while Plaintiff

was attempting to comply with the directive to cuff up. Accordingly, the Court finds that the

determination of whether Defendant Thomas is entitled to qualified immunity on Plaintiff’s

Fourteenth Amendment excessive use of force claim is not properly before the Court because

Defendants’ argument relies upon a version of the facts that do not appear on the face of the

complaint. See, e.g., Johns v. City of Eugene, No. 16-cv-00907, 2017 WL 663092, at *6 (D. Or.

Feb. 15, 2017) (explaining that “Defendants’ reliance on a disputed version of events . . . drains

the persuasive force out of their [qualified immunity] argument”); Via v. City of Fairfield, 833 F.

Supp. 2d 1189, 1195 (E.D. Cal. 2011) (stating that, “[o]n a motion to dismiss . . . assessing

qualified immunity is difficult if an officer’s claim to qualified immunity depends on a version of

the facts that differs from the allegations in the complaint because the court must take the

allegations in the complaint as true” (citations omitted)); McGregory v. City of Jackson, Miss.,

504 F. Supp. 2d 143, 146 (S.D. Miss. 2007) (declining to dismiss plaintiff’s federal claims on the

basis of qualified immunity where defendants argued, in connection with their Rule 12(b)(6)

motion to dismiss, that they were entitled to immunity “based on their own version of the facts”

and not “based on the facts as alleged by plaintiff in his complaint” (emphasis in original)).

With regard to the First Amendment retaliation claim asserted against Defendant

Donatto, the Court finds that Defendants’ arguments suffer from the same flaws discussed above.

Although Defendants contend that the factual allegations of the complaint show that Plaintiff

engaged in conduct on October 27, 2021, that would warrant Defendant Donatto issuing Plaintiff

two (2) misconducts (Doc. No. 15 at 27-28), the Court disagrees. Indeed, the Court has already

determined that the complaint contains allegations supporting a plausible inference that Plaintiff

was retaliated against (i.e., issued two misconducts by Defendant Donatto) for engaging in

constitutionally protected activity (i.e., writing a grievance against Defendant Donatto). In other

words, the allegations of the complaint, accepted as true and viewed in the light most favorable

to Plaintiff, do not raise the inference that Plaintiff was engaged in conduct warranting the

issuance of the misconducts. Thus, the Court finds that the determination as to whether

Defendant Donatto is entitled to qualified immunity on Plaintiff’s First Amendment retaliation

claim is not properly before the Court because Defendants’ argument is based upon a version of

the facts that do not appear on the face of the complaint. See, e.g., Johns, 2017 WL 663092, at

*6; Via, 833 F. Supp. 2d at 1195; McGregory, 504 F. Supp. 2d at 146.

Finally, regarding the Fourteenth Amendment excessive use of force claim against

Defendant Fiss, Defendants argue in one sentence and without pointing to any allegations in the

complaint or any governing case law, that Defendant Fiss is entitled to qualified immunity

“because [Defendant Fiss] would not have been on notice that the alleged force violated

Plaintiff’s constitutional rights as the force in question was rather minimal as evidenced by

Plaintiff’s temporary and de minimis injuries.” (Doc. No. 15 at 28.) As stated above, however,

the burden of establishing qualified immunity rests with the Defendants. See Reedy, 615 F.3d at

223. And, here, Defendants’ one-sentence argument does not satisfy their burden. Moreover,

and as already discussed above, the critical inquiry when a prisoner alleges that prison officials

used excessive force against him is not the extent of injury, but the nature of the force allegedly

used. See Wilkins, 559 U.S. at 38-39. Defendants have not only failed to fully develop their

qualified immunity defense as to Defendant Fiss, but they have also failed to address this

precedent.

Thus, for all of these reasons, the Court finds that Defendants have failed to meet their

burden to show that Defendants are entitled to qualified immunity. As a result, the Court will

deny their motion to dismiss on this basis. Defendants will, of course, be permitted to reassert

this defense in connection with a motion for summary judgment.

IV. CONCLUSION

Accordingly, for all of the foregoing reasons, the Court will deny Defendants’ motion to

dismiss. An appropriate Order follows.