LAMBERTY v. NICKLOW

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDUARDO LAMBERTY, :

Plaintiff :

: No. 1:22-cv-01964

v. :

: (Judge Rambo)

MR. NICKLOW, et al., :

Defendants :

MEMORANDUM

Pro se Plaintiff Eduardo Lamberty (“Plaintiff”), a convicted and sentenced

state prisoner who is currently incarcerated at State Correctional Institution Camp

Hill (“SCI Camp Hill”) in Camp Hill, Pennsylvania, commenced the above-

captioned action by filing a complaint, followed by a supplemental complaint,

pursuant to 42 U.S.C. § 1983 (“Section 1983”), asserting violations of his

constitutional rights while incarcerated there. (Doc. Nos. 1, 12.) In accordance with

the Prison Litigation Reform Act,1 the Court conducted an initial review of

Plaintiff’s complaint and supplemental complaint (collectively, the complaint), and

dismissed Plaintiff’s complaint for failure to state a claim upon which relief could

be granted, but without prejudice to Plaintiff filing an amended complaint. (Doc.

Nos. 13, 14.) After Plaintiff filed his amended complaint (Doc. No. 15), the Court

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

1321 (Apr. 26, 1996).

again conducted an initial review and dismissed Plaintiff’s amended complaint for

failure to comply with Rules 8 and 20 of the Federal Rules of Civil Procedure. (Doc.

Nos. 18, 19.) Plaintiff was granted a final opportunity to amend his pleading.

Currently pending before the Court is Plaintiff’s second amended complaint. (Doc.

No. 20.) For the reasons set forth below, the Court will dismiss the second amended

complaint and direct the Clerk of Court to close this case.

I. BACKGROUND

On December 6, 2022, Plaintiff filed his Section 1983 complaint in the United

States District Court for the Eastern District of Pennsylvania (“Eastern District”).

(Doc. No. 1.) On December 9, 2022, the Eastern District transferred Plaintiff’s case

to this District Court. (Doc. No. 4 at 1 n.1 (explaining that: there was no apparent

basis for venue in the Eastern District; the events giving rise to Plaintiff’s claims

occurred in the Middle District; and the defendants are located in the Middle

District).) After receiving the transfer order from the Eastern District, this Court

issued two (2) Administrative Orders directing Plaintiff to either pay the requisite

filing fee or file the appropriate financial documentation. (Doc. Nos. 8, 10.) On

December 19, 2022, Plaintiff filed a motion for leave to proceed in forma pauperis,

and, on January 3, 2023, Plaintiff filed his prisoner trust fund account statement.

(Doc. Nos. 9, 11.)

A. Plaintiff’s Original Complaint

Plaintiff filed his Section 1983 complaint against the following defendants, all

of whom appeared to be employed by the Pennsylvania Department of Corrections

and to have worked at SCI Camp Hill during the period of time relevant to Plaintiff’s

claims: (1) Mr. Nicklow (“Nicklow”), the superintendent; (2) Tonya Heist (“Heist”),

the assistant to the superintendent and facility grievance coordinator; (3) Hannah

Trostle (“Trostle”), the medical supervisor; (4) Sergeant Young (“Young”), a

correctional officer; (5) Sergeant D. Johnson (“Johnson”), a correctional officer; and

(6) Sergeant Misti, a correctional officer. (Doc. Nos. 1 at 1, 2-4; 12 at 1.)

In his complaint, Plaintiff asserted that the events giving rise to his claims

occurred while he was incarcerated at SCI Camp Hill. (Doc. No. 1 at 6.) Plaintiff,

however, did not specify when these events occurred. (Id.) He alleged only that

these events occurred “[t]hroughout [his] incarceration at SCI Camp Hill[.]” (Id.)

In addition, Plaintiff claimed that “all Defendant’s [sic] constantly harass and

retaliate against [him] for filing grievances for all wrongs done against [him].” (Id.)

And, specifically, Plaintiff claimed that he was “assaulted by Defendant’s [sic] for

filing grievances” and that he “receives misconducts for no rule infractions.” (Id.)

Plaintiff also claimed that he “suffers from sleep apnia [sic] and was never given a

CPAP machine that [he] needs and was prescribed while outside before [his]

incarceration.” (Id.) Plaintiff further asserted that, because of his “sleep apnia[,]

[sic]” he “suffers from sleep deprivation[.]” (Id.) In connection with all of these

allegations, Plaintiff appeared to assert violations of his rights under the First and

Eighth Amendments to the United States Constitution, as well as a claim for

harassment.2 (Id. at 5.) As for relief, Plaintiff sought “[a] protection clause for the

constant harassment and retaliation by Defendant’s [sic]” as well as monetary

damages. (Id. at 6.)

By Memorandum and Order dated March 9, 2023, the Court granted Plaintiff

leave to proceed in forma pauperis, deemed his complaint filed, and dismissed it for

failure to state a claim upon which relief could be granted. (Doc. Nos. 13, 14.) More

specifically, the Court concluded that there was a complete absence of allegations in

the complaint that would give rise to a plausible inference that any of the named

Defendants were personally involved in any asserted deprivation of Plaintiff’s

federally protected rights. (Doc. No. 13 at 6–7.) The Court further concluded that,

without such allegations of personal involvement, liability could not be imposed

against Defendants under Section 1983. (Id. at 7.)

Additionally, the Court concluded that, because Plaintiff’s complaint did not

allege how Defendants were personally involved in committing a deprivation of

Plaintiff’s constitutional rights, the Court was left—and Defendants, if served,

2 Neither the legal nor factual basis of Plaintiff’s harassment claim was set forth in

his complaint. (Doc. Nos. 1, 12.)

would also be left— to speculate as to what alleged conduct on their part gives rise

to constitutional violations. (Id. at 7–8.) Accordingly, because Plaintiff’s complaint

did not provide fair notice of Plaintiff’s claims and/or the grounds upon which those

claims rested, the Court found that Plaintiff’s complaint did not satisfy Rule 8 of the

Federal Rules of Civil Procedure. (Id.)

Ultimately, however, the Court could not say that granting Plaintiff leave to

amend his claims against Defendants would be futile and, thus, the Court granted

Plaintiff leave to file an amended complaint within thirty (30) days in order to

attempt to cure the deficiencies identified above. (Id. at 9–10.) Plaintiff was

instructed, inter alia, that his amended complaint must set forth his claims in short,

concise, and plain statements as required by Rule 8 of the Federal Rules of Civil

Procedure. (Id. at 10.) In addition, Plaintiff was cautioned that neither conclusory

allegations nor broad allegations would set forth a cognizable claim. (Id.)

B. Plaintiff’s Amended Complaint

Plaintiff filed his amended Section 1983 complaint on March 30, 2023. (Doc.

No. 15.) Plaintiff set forth various encounters with, and perceived mistreatment by,

Defendants Nicklow, Heist, Trostle, Johnson, and Sergeant Misiti (“Misiti”), a

correctional officer at SCI Camp Hill.3 (Id. at 4, ¶ 2.) More specifically, Plaintiff’s

3 Plaintiff named Defendant Misiti for the first time in the amended complaint.

(Doc. No. 15.) Additionally, Plaintiff did not appear to name or mention Defendant

amended complaint included eleven (11) numbered paragraphs, styled as the

“Statement [o]f [t]he Case,” which briefly described events and concerns that

Plaintiff had concerning these five (5) Defendants. (Id. at ¶¶ 1–11.) Based upon

these alleged events and concerns, Plaintiff claimed that all of the Defendants

violated his rights under the First, Eighth, and Fourteenth Amendments to the United

States Constitution. (Id. at 6, ¶¶ 15–17.) As for relief, Plaintiff sought declaratory

and monetary relief. (Id. at 7.)

By Memorandum and Order dated May 4, 2023, the Court dismissed

Plaintiff’s amended complaint for failure to comply with Rules 8 and 20 of the

Federal Rules of Civil Procedure. (Doc. Nos. 18, 19.) As for Rule 8, the Court

explained, inter alia, that most of the numbered paragraphs in the amended complaint

contained nothing more than an abbreviated and disconnected summary of isolated

events that allegedly occurred during an eleven (11) month period at SCI Camp Hill,

concerning five (5) different employees. (Doc. No. 18 at 8–9.) In addition, the Court

explained that the amended complaint failed to identify the specific legal theories

supporting each of the isolated events alleged therein and, instead, only asserted

general claims against Defendants without tethering those general claims to any of

the isolated incidents. (Id. at 10.) As for Rule 20, the Court explained, inter alia,

Young in the amended complaint. (Id.) Defendant Young was previously named as

a Defendant in the complaint. (Doc. Nos. 1, 12.)

that it was unable to discern a single claim in the amended complaint that properly

connected all of the named Defendants. (Id. at 12 (explaining that there was no

obvious connection between the various isolated incidents spanning from November

of 2021 to October of 2022, concerning the alleged denial of his grievances, the

alleged denial of his medical care, the alleged failure to protect him from (a) an

assault by a fellow inmate and (b) the sexual advances made towards him by another

inmate, as well as his allegedly stolen property”). Accordingly, the Court dismissed

the amended complaint, but without prejudice to Plaintiff’s final opportunity to

amend his pleading. (Doc. No. 19 at 1.)

C. Plaintiff’s Second Amended Complaint

Plaintiff filed his second amended Section 1983 complaint on May 26, 2023.

(Doc. No. 20.) Named as Defendants are Johnson, Misiti, and Nicklow. (Id. at 1,

2–3, 5.) Plaintiff alleges that all of the events giving rise to his claims took place at

SCI Camp Hill between October 8, 2022, and May 19, 2023, “with previous times

of harassment prior with no definetve [sic] date.” (Id. at 4.) In support of his second

amended complaint, Plaintiff has submitted a document, titled “Statement [o]f

Facts.” (Doc. Nos. 21; 20 at 4 (containing the second amended complaint, wherein

Plaintiff states: “Please See Attached (Statement of Facts)”). Plaintiff’s “Statement

[o]f Facts” sets forth nine (9) numbered paragraphs. (Doc. No. 21.) More

specifically, Plaintiff alleges as follows.

On October 8, 2022, he “complained” to Defendant Johnson on the housing

unit “about issues with cellmate.” (Id. ¶ 1.) Plaintiff was told by Defendant Johnson

to return to his cell, which, Plaintiff alleges, placed him in a “hostile situation.” (Id.

¶ 2.) After entering his cell, “Plaintiff was assaulted by cellmate.” (Id. ¶ 3.) On that

same date, Plaintiff was falsely accused by Defendant Johnson of having contraband

in his cell. (Id. ¶ 4 (asserting that Plaintiff “wasn’t present and [his] cellmate was

moving cells with the cell in disarray”).) Plaintiff was then “restrained” by

Defendant Johnson, who told him that he was being taken to the RHU for writing

grievances on Defendant Misiti. (Id. ¶ 5.)

Thereafter, on October 16, 2022, Plaintiff wrote to Defendant Nicklow “about

issues involving him not returning copies of property and inmate account forms.”

(Id. ¶ 6.) Two (2) days later, on October 18, 2022, Plaintiff spoke to the RHU

sergeant about “property” and was told that “it never arrived and that he would make

a phone call to find out.” (Id. ¶ 7.) Plaintiff appears to allege that, later that day, his

property “finally arrived to the RHU.” (Id. ¶ 8.) “Plaintiff was told that the only

contents in side [sic] was state[-]issued browns [and] legal material.” (Id.) And,

finally, on November 2, 2022, Plaintiff filed a grievance regarding his “missing

property without property sheets due to [Defendant] Nicklow refusing to return

them.” (Id. ¶ 9.)

In connection with all of these allegations, Plaintiff claims that Defendant

Johnson and Misiti violated his rights under the First, Fourth, Fifth, and Fourteenth

Amendments of the United States Constitution “by leaving Plaintiff[’s] personal

property unsecured and allowing items to be stolen, lost, or missing.” (Doc. No. 20

at 5.) Plaintiff further claims that Defendant Nicklow violated his rights under the

Fifth and Fourteenth Amendments to the United States Constitution by “withholding

documents that were needed to properly file grievances and access the courts.” (Id.)

As for relief, Plaintiff seeks to have “all items returned” or to be “reimbursed[,]” as

well as “monetary damages for sentimental value items.” (Id.)

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 1915(e)(2), district courts are required to review

complaints in civil actions where a litigant is proceeding in forma pauperis. See 28

U.S.C. § 1915(e)(2). If the complaint is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief against a defendant who

is immune from such relief, then the district court must dismiss the complaint. See

id. In dismissing claims under § 1915(e)(2), district courts apply the standard

governing motions to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

To avoid dismissal under Rule 12(b)(6), a civil complaint must set out “sufficient

factual matter” to show that its claims are facially plausible. See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

When evaluating the plausibility of a complaint, the Court is required to

“accept all factual allegations in the complaint as true, construe the complaint in the

light favorable to the plaintiff, and ultimately determine whether plaintiff may be

entitled to relief under any reasonable reading of the complaint.” See Mayer v.

Belichick, 605 F.3d 223, 229 (3d Cir. 2010); Kedra v. Schroeter, 876 F.3d 424, 434

(3d Cir. 2017) (stating that the court “must accept as true all factual allegations in

the complaint and draw all inferences from the facts alleged in the light most

favorable to [the plaintiff]” (citation and internal quotation marks omitted)).

Additionally, in the specific context of pro se prisoner litigation, a district

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[.]” See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation and

internal quotation marks omitted).

III. DISCUSSION

Plaintiff has filed his second amended complaint pursuant to the provisions of

Section 1983, asserting violations of his constitutional rights. (Doc. No. 20.)

Section 1983 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,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

See 42 U.S.C. § 1983. Thus, “Section 1983 imposes civil liability upon any person

who, acting under the color of state law, deprives another individual of any rights,

privileges, or immunities secured by the Constitution or laws of the United States.”

See Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citation

omitted). Section 1983 “does not create any new substantive rights but instead

provides a remedy for the violation of a federal constitutional or statutory right.”

See id. (citation omitted).

Here, Plaintiff asserts violations of his First, Fourth, Fifth, and Fourteenth

Amendment rights to the United States Constitution. (Doc. No. 20 at 5.) The Court

addresses each of these asserted violations below.

A. Plaintiff’s First Amendment Access-to-Courts Claim

In his second amended complaint, Plaintiff asserts a violation of his First

Amendment rights based upon allegations that Defendant Nicklow denied him

access to the courts when he withheld “documents[.]” (Doc. No. 20 at 5.) Under

the First and Fourteenth Amendments to the United States Constitution, “prisoners

retain a right of access to the courts.” See Monroe v. Beard, 536 F.3d 198, 205 (3d

Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)); see also Jutrowski v.

Twp. of Riverdale, 904 F.3d 280, 294 n.17 (3d Cir. 2018) (explaining that, typically,

in the prisoner context, the right is “framed as a due process right” (citations

omitted)).

Generally speaking, access-to-courts claims fall into two (2) categories:

forward-looking claims and backward-looking claims. See Christopher v. Harbury,

536 U.S. 403, 413–14 (2002). Forward-looking claims seek relief from “systemic

official action” that “frustrates a plaintiff or plaintiff class in preparing and filing

suits at the present time.” See id. at 413. Thus, in these cases, the underlying cause

of action “has not been lost for all time, . . . but only in the short term[,]” and the

ultimate object of these sorts of access claims is to place the plaintiff in a position to

pursue the underlying cause of action “once the frustrating condition has been

removed.” See id.

Backward-looking claims seek relief for suits “that cannot now be tried (or

tried with all material evidence), no matter what official action may be in the future.”

See id. at 413–14 (footnote omitted). As a result, “[t]hese cases do not look forward

to a class of future litigation, but backward to a time when specific litigation ended

poorly, or could not have commenced, or could have produced a remedy

subsequently unobtainable.” See id. at 414 (footnote and internal footnote omitted).

The ultimate object of these sorts of access claims is not a judgment in a separate

suit, “but simply the judgment in the access claim itself[.]” See id.

In both types of access claims, the justification is the same: “to provide some

effective vindication for a separate and distinct right to seek judicial relief for some

wrong.” See id. at 414–15. The United States Supreme Court’s “cases rest on the

recognition that the right is ancillary to the underlying [cause of action], without

which a plaintiff cannot have suffered injury by being shut out of court.” See id. at

415. Thus, in pursuing an access-to-courts claim, a plaintiff must point to an actual

injury by “identify[ing] a nonfrivolous, arguable underlying [cause of action]” that

is lost or that is being obstructed by the asserted denial of access to the courts. See

id. (internal citation and quotation marks omitted). A plaintiff must also point to “a

remedy that may be awarded as recompense but not otherwise available in some suit

that may yet be brought.” See id.

Additionally, in the prison context, “the injury requirement is not satisfied by

just any type of frustrated legal claim.” See Lewis, 518 U.S. at 354. Instead, only

claims that involve “direct or collateral attacks on a prisoner’s conviction or

sentence, or civil rights suits challenging the conditions of his confinement—could

support an access-to-courts injury.” See Rivera v. Monko, 37 F.4th 909, 921 (3d

Cir. 2022) (citing Lewis, 518 U.S. at 355). As explained by the United States

Supreme Court, “[i]mpairment of any other litigating capacity is simply one of the

incidental (and perfectly constitutional) consequences of conviction and

incarceration.” See Lewis, 518 U.S. at 355 (emphasis in original).

Here, the Court finds that Plaintiff’s second amended complaint does not

sufficiently allege: any underlying cause of action, whether anticipated or lost; any

specific conduct on the part of Defendant Nicklow that impeded such cause of

action;4 any articulated injury suffered by Plaintiff as a result of Defendant

Nicklow’s conduct;5 or any remedy that could be awarded as recompense but not

otherwise available in some suit that may yet be brought. See Christopher, 536 U.S.

at 416 (explaining that, “[l]ike any other element of an access claim, the underlying

4 Plaintiff alleges that Defendant Nicklow withheld “documents[,]” (Doc. No. 20 at

5), but does not allege when Defendant Nicklow withheld those documents, what

documents he withheld, or how those documents were relevant to a separate

underlying cause of action.

5 Plaintiff asserts only that he was denied “access [to] the courts[,]” (Doc. No. 20 at

5), but not that he suffered any specific injury as a result thereof.

cause of action and its lost remedy must be addressed by allegations in the complaint

sufficient to give fair notice to a defendant” (citation omitted)); Monroe, 536 F.3d at

205–06 (explaining that when a prisoner asserts an access-to-courts claim, his

“complaint must describe the underlying arguable claim well enough to show that it

is ‘more than mere hope,’ and it must describe the ‘lost remedy’” in such a way that

defendants are on fair notice of it (quoting Christopher, 536 U.S. at 416–17)).

Accordingly, because Plaintiff’s second amended complaint has failed to make this

showing, the Court concludes that Plaintiff has not stated an access-to-courts claim

upon which relief can be granted against Defendant Nicklow. As such, this claim

will be dismissed.

B. Plaintiff’s First Amendment Retaliation Claim

In his second amended complaint, Plaintiff appears to assert that he suffered

retaliation for engaging in conduct protected by the First Amendment. (Doc. Nos.

20 at 5; 21 ¶ 5.) In order to state a First Amendment retaliation claim, Plaintiff must

show that: “(1) his conduct was constitutionally protected; (2) he suffered an adverse

action at the hands of prison officials; and (3) his constitutionally protected conduct

was a substantial or motivating factor in the decision to discipline him.” See Watson

v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citations omitted). However, even if

Plaintiff states a prima facie case of retaliation, “prison officials may still prevail if

they establish that “they would have made the same decision absent the protected

conduct for reasons reasonably related to a legitimate penological interest.” See id.

(citation and internal quotation marks omitted).

Here, Plaintiff appears to assert his First Amendment retaliation claim against

Defendant Johnson. (Doc. No. 21 ¶ 5.) More specifically, Plaintiff alleges that,

when he was being restrained by Defendant Johnson on October 8, 2022, Defendant

Johnson stated to him that he would be “taken to the RHU for writing grievances on

[Defendant] Misiti.” (Id.) The Court, however, finds that Plaintiff has failed to state

a First Amendment retaliation claim upon which relief can be granted.

The Court recognizes that the filing of lawsuits and prison grievances

constitute activity protected by the First Amendment. See Watson v. Rozum, 834

F.3d 417, 422 (3d Cir. 2016) (reiterating its prior holding that a prisoner-plaintiff

engages in constitutionally protected activity when he files a grievance against a

prison official (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003))); Smith v.

Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (reiterating its prior holding “that

falsifying misconduct reports in retaliation for an inmate’s resort to legal process is

a violation of the First Amendment’s guarantee of free access to the courts” (citation

omitted)); Allah v. Seiverling, 229 F.3d 220, 223-25 (3d Cir. 2000) (concluding that

the prisoner-plaintiff had stated a First Amendment retaliation claim where he

alleged that he had been kept in administrative segregation in retaliation for filing

civil rights claims against prison officials). In addition, the Court also recognizes

that transferring an inmate to the RHU constitutes an adverse action. See id. at 225

(providing that a prisoner’s transfer to administrative custody constitutes an adverse

action).

Even when recognizing these legal principles, however, the Court still finds

that Plaintiff’s second amended complaint does not allege “a causal link” between

Plaintiff engaging in such protected activity and the adverse actions that were

allegedly taken against him by Defendant Johnson. See Rauser v. Horn, 241 F.3d

330, 333 (3d Cir. 2001). In particular, the allegations against Defendant Johnson do

not provide sufficient information about when Plaintiff filed grievances against

Defendant Misiti or how long after he filed such grievances that the asserted

retaliation occurred. Thus, even when viewing the facts in the light most favorable

to Plaintiff, he has failed to show that the filing of grievances was a substantial or

motivating factor in the alleged retaliation. As a result, the Court concludes that

Plaintiff’s second amended complaint fails to state a First Amendment retaliation

claim upon which relief can be granted. The Court will, therefore, dismiss this claim.

C. Plaintiff’s Fourth Amendment Claim

In his second amended complaint, Plaintiff asserts a violation of his Fourth

Amendment rights against Defendants Johnson and Misiti. (Doc. No. 20 at 5.) The

Fourth Amendment, which applies to the States through the Fourteenth Amendment,

see Bailey v. United States, 568 U.S. 186, 192 (2013), provides as follows:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

See U.S. Const. amend. IV. Thus, there are two (2) clauses in the Fourth

Amendment, one pertaining to “searches and seizures” and the other pertaining to

“[w]arrants.” See id.

Here, Plaintiff’s second amended complaint appears to ground his Fourth

Amendment claim against Defendants Johnson and Misiti based upon an alleged

seizure of personal property in his cell. (Doc. No. 20 at 5.) The United States

Supreme Court has already ruled, however, that prisoners have no legitimate

expectation of privacy in their individual cells and, thus, the Fourth Amendment’s

prohibition on unreasonable searches does not apply in such cells. See Hudson v.

Palmer, 468 U.S. 517, 525–26 (1984) (holding that “society is not prepared to

recognize as legitimate any subjective expectation of privacy that a prisoner might

have in his prison cell and that, accordingly, the Fourth Amendment proscription

against unreasonable searches does not apply within the confines of the prison cell”);

Parkell v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016) (recognizing Hudson’s holding

as foreclosing a Fourth Amendment claim that arises from an unreasonable search

of a prisoner’s cell). Accordingly, to the extent that Plaintiff’s second amended

complaint asserts a Fourth Amendment claim against Defendants Johnson and Misiti

for the alleged seizure of personal property in his cell, the Court finds that this claim

fails to state a claim upon which relief can be granted. As a result, this claim will be

dismissed.

D. Plaintiff’s Fifth Amendment Claim

In his second amended complaint, Plaintiff asserts violations of his Fifth

Amendment rights against Defendants Johnson, Misiti, and Nicklow. (Doc. No. 20

at 5.) The Fifth Amendment provides, in pertinent part, that “[n]o person shall be

. . . deprived of life, liberty, or property, without due process of law[.]” See U.S.

Const. amend. V. The provisions of the Fifth Amendment only concern, however,

federal action, not state or private action. See, e.g., Dusenbery v. United States, 534

U.S. 161, 167 (2002) (explaining that “[t]he Due Process Clause of the Fifth

Amendment prohibits the United States, as the Due Process Clause of the Fourteenth

Amendment prohibits the States, from depriving any person of property without ‘due

process of law’”); Nguyen v. U.S. Cath. Conf., 719 F.2d 52, 54 (3d Cir. 1983)

(stating that “[t]he limitations of the [F]ifth [A]mendment restrict only federal

governmental action and not the actions of private entities” (citing Public Utilities

Commission v. Pollak, 343 U.S. 451, 461 (1952)); Nemeth v. Off. of Clerk of

Superior Ct. of New Jersey, 837 F. App’x 924, 929 n.5 (3d Cir. 2020) (unpublished)

(noting that the district court had properly concluded that, because all of the named

defendants were state and private officials and entities, the plaintiff could not pursue

a Fifth Amendment claim against any of them because the Fifth Amendment’s due

process clause only “protects against federal governmental actions, not state

actions”).

Here, Defendants Johnson, Misiti, and Nicklow are employees of the DOC

who are alleged to have worked at SCI Camp Hill during the period of time relevant

to Plaintiff’s claims. (Doc. No. 20.) These Defendants are, therefore, state

employees, not federal employees. Thus, to the extent that Plaintiff’s second

amended complaint asserts a Fifth Amendment due process claim against these state-

Defendants, the Court finds that this claim fails to state a claim upon which relief

can be granted. As a result, this claim will be dismissed.

E. Plaintiff’s Eighth Amendment Claim

“The Eighth Amendment, made applicable to the States through the

Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual

punishments.’” Glossip v. Gross, 576 U.S. 863, 876 (2015). In order “[t]o determine

whether prison officials have violated the Eighth Amendment, [courts] apply a two-

prong test: (1) the deprivation must be ‘objectively, sufficiently serious; a prison

official’s act or omission must result in the denial of the minimal civilized measure

of life’s necessities’; and (2) the prison official must have been ‘deliberate[ly]

indifferen[t] to inmate health or safety.’” See Porter v. Pennsylvania Dep’t of Corr.,

974 F.3d 431, 441 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834

(1994)).

Regarding the first prong, life’s necessities include food, clothing, shelter,

medical care, and reasonable safety. See Tillman v. Lebanon Cnty. Corr. Facility,

221 F.3d 410, 418 (3d Cir. 2000) (stating that “when the government takes a person

into custody against his or her will, it assumes responsibility for satisfying basic

human needs such as food, clothing, shelter, medical care, and reasonable safety”

(citation omitted)). Regarding the second prong, a prison official does not act with

deliberate indifference “unless the official knows of and disregards an excessive risk

to inmate health or safety”—that is, “the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” See Farmer, 511 U.S. at 837; Beers-Capitol v.

Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (explaining that the official “must

actually be aware of” the existence of the substantial risk and that “it is not sufficient

that the official should have been aware” (citing Farmer, 511 U.S. at 837–38)).

While the Eighth Amendment requires prison officials to take reasonable

measures “to protect prisoners from violence at the hands of other prisoners[,]” it is

well-settled that not “every injury suffered by one prisoner at the hands of another .

. . translates into constitutional liability for prison officials responsible for the

[victim-prisoner’s] safety.” See Farmer, 511 U.S. at 833–34.

Here, Plaintiff’s second amended sets forth the following allegations

regarding the assault in his cell: on October 8, 2022, Plaintiff “complained” to

Defendant Johnson “about issues with cellmate” (Doc. No. 21 ¶ 1); Plaintiff was told

by Defendant Johnson to return to his cell, which, Plaintiff alleges, placed him in a

“hostile situation” (id. ¶ 2); and, after entering his cell, “Plaintiff was assaulted by

cellmate” (id. ¶ 3).

Having carefully reviewed these allegations, the Court finds that Plaintiff has

failed to establish deliberate indifference on the part of Defendant Johnson. While

Plaintiff’s second amended complaint alleges that he complained to Defendant

Johnson about “issues with [his] cellmate,” (id. ¶ 1), Plaintiff has not set forth well-

pleaded facts that Defendant Johnson knew of and disregarded an excessive risk to

Plaintiff’s health and/or safety. For instance, Plaintiff does not: expand on the

alleged “issues” he was having with his cellmate; whether or not, and to what extent,

he explained these alleged “issues” to Defendant Johnson; or whether Defendant

Johnson was aware of any other facts from which the inference could be drawn that

a substantial risk of serious harm existed for Plaintiff and, further, that Defendant

Johnson actually drew that inference. See Farmer, 511 U.S. at 837. Rather,

Plaintiff’s allegations seem to suggest that, because he complained, Defendant

Johnson should have known that an incident could occur. Such a suggestion, without

such well-pleaded facts, is inadequate to rise to an Eighth Amendment violation.

See Beers-Capitol, 256 F.3d at 133 (explaining that the official “must actually be

aware of” the existence of the substantial risk and that “it is not sufficient that the

official should have been aware” (citing Farmer, at 837–38)). Accordingly, for all

of these reasons, the Court concludes that Plaintiff’s second amended complaint fails

to state an Eighth Amendment claim upon which relief can be granted. As such, this

claim will be dismissed.

F. Plaintiff’s Fourteenth Amendment Claim

In his second amended complaint, Plaintiff asserts a violation of his

Fourteenth Amendment rights against Defendants Johnson, Misiti, and Nicklow

based upon allegations that his property was allegedly stolen or lost at SCI Camp

Hill without procedural due process of law. (Doc. No. 20 at 5.) The Fourteenth

Amendment provides that no state shall “deprive any person of life, liberty, or

property, without due process of law[.]” See U.S. Const. amend. XIV, § 1. In order

to determine whether procedural due process requirements apply, the Court must

first consider whether the “property” interest asserted is one that is protected by the

Fourteenth Amendment. See Bd. of Regents of State Colleges v. Roth, 408 U.S.

564, 570–71 (1972) (stating that, in order “to determine whether due process

requirements apply in the first place, [courts] must look not to the weight but to the

nature of the interest at stake[,]” and thus, courts “must look to see if the interest is

within the Fourteenth Amendment’s protection of liberty and property” (internal

citation and quotation marks omitted)). The nature of the interest asserted here is

that prison officials allegedly deprived Plaintiff of personal property that was in his

cell.

It is well-established, however, that the negligent deprivation of property by

a state official does not give rise to a cognizable due process claim. See Daniels v.

Williams, 474 U.S. 327, 328 (1986) (providing that the negligent acts of state

officials causing unintentional loss of or injury to life, liberty, or property do not

violate the Due Process Clause of the Fourteenth Amendment); Allen v. Cooper, 140

S. Ct. 994, 1004 (2020) (stating that “a merely negligent act does not ‘deprive’ a

person of property” within the meaning of the Due Process Clause (citing Daniels,

474 U.S. at 328)); Johnson v. City of Philadelphia, 975 F.3d 394, 402 (3d Cir. 2020)

(stating that “‘the Due Process Clause is simply not implicated by a negligent act of

an official causing unintended loss of or injury to life, liberty, or property’” (quoting

Daniels, 474 U.S. at 328) (emphasis in original)).

It is further established that the intentional deprivation of property by state

officials also does not give rise to a cognizable due process claim if the plaintiff has

an adequate post-deprivation remedy available under state law. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984) (providing that “an unauthorized intentional

deprivation of property by a state employee does not constitute a violation of the

procedural requirements of the Due Process Clause of the Fourteenth Amendment if

a meaningful postdeprivation [sic] remedy for the loss is available”); Allen, 140 S.

Ct. at 1004 (explaining that a deprivation of property “must be intentional, or at least

reckless, to come within the reach of the Due Process Clause[,]” and that “[a] State

cannot violate that Clause unless it fails to offer an adequate remedy for [a

deprivation], because such a remedy itself satisfies the demand of ‘due process’”

(citation and internal citation omitted)).

With respect to post-deprivation remedies in the prisoner context, the United

States Court of Appeals for the Third Circuit has held that the DOC’s administrative

grievance system constitutes an adequate post-deprivation remedy. See, e.g.,

Monroe, 536 F.3d at 209–10 (finding that prison official-defendants who had

confiscated legal materials belonging to the prisoner-plaintiffs did not violate the

Due Process Clause, in part, because the DOC’s grievance procedure provided an

adequate post-deprivation remedy); Tillman, 221 F.3d at 422 (finding that the

prisoner-plaintiff had an adequate post-deprivation remedy in the county

correctional facility’s grievance program, thereby satisfying due process).

In addition to the DOC’s grievance system providing an adequate post-

deprivation remedy, it has also been held that Pennsylvania tort law provides an

adequate remedy for prison officials’ unlawful deprivation of inmate property. See

42 Pa. Cons. Stat. Ann. § 8522(a), (b)(3) (waiving sovereign immunity for negligent

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

control of Commonwealth parties . . .”); Mayo v. Hollibaugh, No. 18-cv-1492, 2020

WL 1467257, at *6 (M.D. Pa. Mar. 26, 2020) (explaining that even if the prison’s

grievance procedures “were constitutionally inadequate, [the prisoner-plaintiff]

could take advantage of state tort law which may serve as an adequate post-

deprivation remedy” (citing 42 Pa. Cons. Stat. Ann. § 8522(a), (b)(3))); Hernandez

v. Corr. Emergency Response Team, 771 F. App’x 143, 145 (3d Cir. 2019)

(unpublished) (explaining that “[e]ven if the prison grievance procedures could be

considered constitutionally inadequate, Pennsylvania’s state tort law would [still]

provide an adequate remedy” (citing 42 Pa. Cons. Stat. Ann. § 8522(b)(3))).

Applying these principles here, the Court finds that, to the extent Plaintiff’s

second amended complaint claims that Defendants Johnson, Misiti, and Nicklow

negligently deprived him of his personal property, Plaintiff’s allegations do not give

rise to a cognizable Fourteenth Amendment due process claim. See Daniels, 474

U.S. at 328; Allen, 140 S. Ct. at 1004; Johnson, 975 F.3d at 402. Additionally, the

Court finds that, to the extent Plaintiff’s second amended complaint claims that

Defendants Johnson, Misiti, and Nicklow intentionally deprived him of his property,

Plaintiff’s allegations do not give rise to a cognizable due process claim because

Plaintiff acknowledges that he filed a grievance at SCI Camp Hill (Doc. No. 21 ¶ 9)

and, thus, he had an adequate post-deprivation remedy available to him. See

Hudson, 468 U.S. at 533; Monroe, 536 F.3d at 209–10; Tillman, 221 F.3d at 422.

Accordingly, the Court concludes that Plaintiff’s second amended complaint

fails to state a Fourteenth Amendment claim upon which relief can be granted. As

a result, this claim will be dismissed.

G. Leave to Amend

The final issue is whether Plaintiff should be granted leave to amend his

second amended complaint. Due to the applicable liberal pleading standard, a

plaintiff should generally be granted leave to amend before a Court dismisses a claim

that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). The Federal Rules of Civil Procedure allow for amendments to be

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

a proper decision on the merits.” See Foman v. Davis, 371 U.S. 178, 182 (1962)

(citation and internal quotation marks omitted).

However, the Court may deny leave to amend where there is “undue delay,

bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, [or] futility of the amendment[.]”

See id. The Court may also deny leave to amend where the proposed amendment

would be futile—that is, where the pleading, “as amended, would fail to state a claim

upon which relief could be granted.” See In re NAHC, Inc. Sec. Litig., 306 F.3d

1314, 1332 (3d Cir. 2002) (citations and internal quotation marks omitted).

In accordance with this standard, the Court finds that granting Plaintiff any

further leave to amend his claims against Defendants would be futile, as Plaintiff

was previously granted two (2) opportunities to amend his pleading and has been

unable to state a claim upon which relief can be granted. See (Doc. No. 19 at 1

(containing the Court’s May 4, 2023 Order, wherein Plaintiff was granted “a final

opportunity to amend his pleading . . . ” (emphasis in original)).)

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Plaintiff’s second amended

complaint (Doc. No. 20) for failure to state a claim upon which relief can be granted.

An appropriate Order follows.

Dated: July 19, 2023 s/ Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge