# LAMBERTY v. NICKLOW

> District Court, M.D. Pennsylvania · July 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10413413

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 19, 2023
- **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/10413413

## How later opinions describe it (automated extraction)

- recognizing Hudson’s holding as foreclosing a Fourth Amendment claim that arises from an unreasonable search of a prisoner’s cell
- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413413. Public record. Not legal advice.