Pierre v. John Doe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MACARTON N. PIERRE, No. 4:23-CV-02044

Plaintiff, (Chief Judge Brann)

v.

C.O. RICHARDS, et al.,

Defendants.

MEMORANDUM OPINION

FEBRUARY 15, 2024

Plaintiff Macarton Pierre filed the instant pro se Section 19831 action,

asserting constitutional violations by various prison officials and medical staff at

Luzerne County Correctional Facility. The Court will dismiss in part Pierre’s

complaint under 28 U.S.C. § 1915A(b)(1) and will give him the option of filing an

amended complaint or proceeding on his remaining claims.

I. STANDARDS OF REVIEW

Courts are statutorily obligated to review, “as soon as practicable,” pro se

prisoner complaints targeting governmental entities, officers, or employees.2 One

basis for dismissal at the screening stage is if the complaint “fails to state a claim

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

v. Doe, 536 U.S. 273, 284-85 (2002).

upon which relief may be granted[.]”3 This language closely tracks Federal Rule

of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to

screening a pro se prisoner complaint for sufficiency under Section 1915A(b)(1) as

they utilize when resolving a motion to dismiss under Rule 12(b)(6).4

In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire

“whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.”5 The court must accept as true the factual

allegations in the complaint and draw all reasonable inferences from them in the

light most favorable to the plaintiff.6 In addition to the facts alleged on the face of

the complaint, the court may also consider “exhibits attached to the complaint,

matters of public record, as well as undisputedly authentic documents” attached to

a defendant’s motion to dismiss if the plaintiff’s claims are based upon these

documents.7

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.8 At step one, the court must “tak[e] note of the elements [the]

3 Id. § 1915A(b)(1).

4 See Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002); O’Brien

v. U.S. Fed. Gov’t, 763 F. App’x 157, 159 & n.5 (3d Cir. 2019) (per curiam) (nonprecedential);

cf. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).

5 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

6 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

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

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

8 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

plaintiff must plead to state a claim.”9 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.10 Finally, the court must review the presumed-truthful allegations

“and then determine whether they plausibly give rise to an entitlement to relief.”11

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”12

Because Pierre proceeds pro se, his pleadings are to be liberally construed

and his complaint, “however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers[.]”13 This is particularly true

when the pro se litigant, like Pierre, is incarcerated.14

II. DISCUSSION

Pierre is currently incarcerated at SCI Greene in Waynesburg,

Pennsylvania.15 His lawsuit, however, concerns incidents that allegedly occurred

in 2022 at Luzerne County Correctional Facility (LCCF).16

9 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

10 Id. (quoting Iqbal, 556 U.S. at 679).

11 Id. (quoting Iqbal, 556 U.S. at 679).

12 Iqbal, 556 U.S. at 681.

13 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

14 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).

15 Doc. 1 ¶ 3.

16 See generally Doc. 1; see id. ¶ 8.

Pierre alleges that—at some unspecified time in 2022—he was sent to the

Special Housing Unit (SHU) for an “unrelated incident.”17 He avers that defendant

C.O. Richards placed him in an unsanitary cell that contained “splattered” food as

well as urine and human feces “smeared all over the toilet/sink, floor, [and]

walls.”18 Pierre does not state when he was placed in this unsanitary cell or how

long he was housed in these alleged conditions.

He asserts that, due to his placement in the unsanitary SHU cell and the

recent death of his sister, he became “severely depressed.”19 He avers that on an

unspecified Tuesday, he requested to speak to a mental health counselor.20

Richards informed him that he had called the mental health providers and that they

said they were going to come to see Pierre but they never came.21 The next day,

Pierre again requested mental health treatment and expressed that he “felt like

hurting himself,” but once again no mental health staff came to see him.22

On Thursday, Pierre again asked Richards to see mental health and informed

him that he “felt like killing himself.”23 That day he was seen by mental health

counselor “John Doe.”24 Pierre advised the unidentified counselor of the “severe

17 Id. ¶ 8.

18 Id. ¶¶ 8-9.

19 Id. ¶ 10.

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

anxiety, depression, [and] P.T.S.D. he was suffering” and that he “needed help

because he was having suicidal ideation.”25 According to Pierre, the counselor told

him that he was going to check Pierre’s charts and “would be right back” but he

never returned.26

On Friday, Pierre once more requested mental health treatment.27 He claims

that he advised Richards of having suicidal ideations due to his sister’s death and

his conditions of confinement and alleges that Richards “failed to call mental

health.”28 Pierre then noticed that mental health counselor “Liz” had arrived on the

block.29 He informed Liz of his suicidal ideations as she walked past his cell but

she responded that she “was not doing rounds” and that Pierre “was not on her list

of inmates to see.”30 She advised Pierre to “write [her] a request” because she was

not on the block to see him and exited the SHU.31 Later that same evening, Pierre

was taken to the SHU shower and given a razor (presumably for grooming) and he

proceeded to cut “his arm/forearm/wrist several times in an attempt to commit

suicide.”32

25 Id.

26 Id.

27 Id. ¶ 11.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id. ¶ 12.

Pierre was taken to the “Psych Pod” and placed on “Max Watch” by Liz,

which included utilization of a “camera cell” and a “smock [and] security

blanket.”33 Pierre maintains that the “Max Watch” policy is promulgated by the

warden of LCCF. Under this suicide-watch policy, Pierre contends, psychology

inmates are observed 24 hours a day for three to seven days by inmate-worker

“monitors,” including when using the bathroom, showering, and discussing their

personal health information.34 He claims that, due to this policy, when he tried to

hang a towel up to cover himself while he was showering, prison staff forced him

to remove it and shower in front of various observers.35

Pierre sues Richards, the unidentified John Doe mental health counselor,

mental health counselor Liz, and the warden of LCCF.36 He states that he is

raising Section 1983 claims under the First, Fourth, Eighth, and Fourteenth

Amendments.37 As best the Court can ascertain, Pierre is asserting the following

constitutional tort claims: (1) a purported unconstitutional policy by the warden of

LCCF; (2) First Amendment retaliation against Richards and the warden of LCCF;

(3) unconstitutional conditions of confinement in violation of the Fourteenth

33 Id.

34 Id. ¶ 13.

35 Id. ¶ 14.

36 See id. ¶¶ 4-6.

37 See id. ¶¶ 17-19. Pierre also invokes the Fifth Amendment. See id. However, because he is

suing only local government officials, he has provided no basis for a claim under the Fifth

Amendment, which pertains exclusively to action by the federal government. See B & G

Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 662 F.3d 233, 246 n.14 (3d Cir.

2011).

Amendment38 against Richards; (4) deliberate indifference to serious medical

needs in violation of the Fourteenth Amendment against mental health counselors

John Doe and Liz (and possibly Richards); and (5) a Fourth Amendment violation

against the warden of LCCF based on purported invasions of privacy.

Many of Pierre’s claims suffer from significant pleading deficiencies. The

Court will address the sufficiency of his claims in turn.

A. Alleged Unconstitutional Policy

Pierre appears to assert that the warden of LCCF has promulgated an

unconstitutional policy, although he does not specify what constitutional

amendment (or amendments) the policy infringes. The contours of this claim are

nebulous, but it seems that Pierre is asserting that the “Max Watch” policy violates

LCCF prisoners’ constitutional rights. The Court disagrees.

Implementing a policy that requires vigilant, around-the-clock monitoring of

detainees or inmates with serious mental health problems who are at a heightened

38 Although Pierre invokes the Eighth Amendment, he was a pretrial detainee (not a convicted

prisoner) at the time of the alleged events, so his conditions-of-confinement and medical

indifference claims implicate the Due Process Clause of the Fourteenth Amendment, not the

Eighth Amendment’s prohibition of cruel and unusual punishments. See Jacobs v.

Cumberland County, 8 F.4th 187, 193-94 (3d Cir. 2021); Thomas v. Cumberland County, 749

F.3d 217, 223 n.4 (3d Cir. 2014); Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005)

(Hubbard I); see also Paulino v. Burlington Cnty. Jail, 438 F. App’x 106 (3d Cir. 2011)

(nonprecedential) (explaining that “sentenced prisoners are protected from punishment that is

‘cruel and unusual,’ while pretrial detainees are protected from any punishment” (citing

Hubbard I, 399 F.3d at 166-67)).

risk for suicide in no way violates the constitution. In fact, such a policy, which is

plainly aimed at protecting the health and safety of suicidal detainees and

prisoners, evinces the opposite of deliberate indifference to serious mental health

needs. Thus, any such “unconstitutional policy” claim by Pierre related to the

warden’s “Max Watch” policy will be dismissed with prejudice pursuant to 28

U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.

B. First Amendment Retaliation

Although a prisoner’s constitutional rights are necessarily circumscribed, an

inmate still retains First Amendment protections when they are “not inconsistent”

with prisoner status or with the “legitimate penological objectives of the

corrections system.”39 To state a First Amendment retaliation claim, a plaintiff

must plausibly plead that (1) “he was engaged in constitutionally protected

conduct,” (2) he suffered an “adverse action” by prison officials sufficient to deter

a person of ordinary firmness from exercising his First Amendment rights, and

(3) the plaintiff’s protected conduct was a “substantial or motivating factor” in the

prison officials’ decision to take the adverse action.40

Pierre asserts retaliation claims against Richards and the warden of LCCF.

He first alleges that, when he was sent to the SHU and placed in the initial “lock-

39 Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d

775, 781 (3d Cir. 2010)).

40 Id. (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)); Mitchell v. Horn, 318 F.3d

523, 530 (3d Cir. 2003) (quoting Rauser, 241 F.3d at 333).

up strip-cage,” (which appears to be different than his eventual unsanitary SHU

cell), he complained to Richards about a previous stint in the SHU and the alleged

unsanitary conditions that caused a COVID-19 infection.41 Pierre contends that

Richards responded, “You[‘re] not at the Hampton Inn or the Ramada, this is lock-

up!”42 Pierre then requested to speak to the lieutenant and asked “for a grievance,”

but Richards purportedly denied both requests, stating, “People who file grievances

down here do not eat, shower, or go to the yard.”43 Pierre claims that, in retaliation

for requesting a grievance and to speak to a lieutenant, he was placed in the

unsanitary SHU cell.44

Liberally construed, Pierre’s complaint plausibly states a First Amendment

retaliation claim against Richards. Oral grievances by prisoners have been held to

implicate protected First Amendment conduct,45 and Pierre’s pleadings can be

construed as alleging that he made an oral grievance to Richards about the SHU’s

conditions and that Richards retaliated against him by assigning him to an

exceptionally dirty cell.

Pierre’s retaliation claim against the warden, however, comes up short.

Pierre has not plausibly pled an adverse action taken by the warden. To the extent

41 Doc. 1 ¶ 8.

42 Id.

43 Id.

44 Id. ¶ 9.

45 See Mack v. Warden Loretto FCI, 839 F.3d 286, 301 (3d Cir. 2016).

that Pierre contends that being subjected to the “Max Watch” policy amounts to

retaliation, that contention fails. Being subject to an across-the-board policy that is

intended to protect suicidal prisoners’ health and safety is not “adverse” and

therefore cannot constitute an actionable “adverse action” for a retaliation claim.

C. Fourteenth Amendment Conditions of Confinement

When a pretrial detainee asserts a conditions-of-confinement claim, the Due

Process Clause of the Fourteenth Amendment requires courts to consider “first,

whether any legitimate purposes are served by the[] conditions, and second,

whether the[] conditions are rationally related to these purposes.”46 If pretrial

detainees are subjected to conditions that are not reasonably related to a legitimate

governmental objective, an inference may be made that the purpose of the prison

official’s action is punishment.47 Thus, “a particular measure amounts to

punishment when there is a showing of express intent to punish on the part of

detention facility officials, when the restriction or condition is not rationally related

to a legitimate non-punitive government purpose, or when the restriction is

excessive in light of that purpose.”48 As the Third Circuit instructs, courts

46 See Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir. 2008) (Hubbard II) (quoting Union Cnty.

Jail Inmates v. Di Buono, 713 F.2d 984, 992 (3d Cir. 1983)).

47 Hope v. Warden York Cnty. Prison, 972 F.3d 310, 326 (3d Cir. 2020).

48 Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (quoting Rapier v. Harris, 172 F.3d 999,

1005 (7th Cir. 1999)).

confronted with a Fourteenth Amendment conditions-of-confinement claim must

“consider the totality of the circumstances of confinement.”49

Pierre’s conditions-of-confinement claim against Richards is deficient

primarily because it lacks necessary detail. For example, Pierre does not set forth

how long he was kept in the alleged unsanitary conditions, whether there were

other unoccupied, cleaner cells available in the SHU, how many hours a day he

was confined in this cell, or whether he was permitted to clean the cell. In

particular, the duration of the alleged constitutional deprivation is a critical factor

in the conditions-of-confinement analysis.50 Thus, as it stands, Pierre has failed to

plausibly plead a conditions-of-confinement claim. Nevertheless, it is conceivable

that he could allege additional facts that would sufficiently state a claim for relief,

so the Court will grant leave to amend this claim.

D. Fourteenth Amendment Deliberate Indifference to Medical Needs

As noted, Pierre is a pretrial detainee, so his claims implicate the Due

Process Clause of the Fourteenth Amendment rather than the Eighth Amendment’s

cruel-and-unusual-punishments provision. However, it does not appear that the

United States Court of Appeals for the Third Circuit has established or adhered to a

different standard with respect to Fourteenth Amendment pretrial detainee medical

49 Hope, 972 F.3d at 326 (citing Hubbard I, 399 F.3d at 159-60).

50 See Thomas v. Tice, 948 F.3d 133, 139 (3d Cir. 2020) (stressing that “duration” of confinement

in a dry cell was crucial consideration in Eighth Amendment conditions-of-confinement

claim).

care claims versus those raised by incarcerated individuals under the Eighth

Amendment.51 Accordingly, the Court will apply existing Eighth Amendment

jurisprudence to Pierre’s Fourteenth Amendment medical indifference claims.

In the context of prison medical care, the Eighth Amendment “requires

prison officials to provide basic medical treatment to those whom it has

incarcerated.”52 To state an Eighth Amendment deliberate indifference claim

regarding inadequate medical care, a plaintiff must plausibly plead “(i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate

indifference to that need.”53 A serious medical need is “one that has been

diagnosed by a physician as requiring treatment or one that is so obvious that a lay

person would easily recognize the necessity for a doctor’s attention.”54

51 This remains so even following the Supreme Court of the United States’ decision in Kingsley

v. Hendrickson, 576 U.S. 389 (2015), which established a different standard for pretrial

detainee excessive force claims. See Thomas v. City of Harrisburg, 88 F.4th 275, 281 & n.23

(3d Cir. 2023) (applying Eighth Amendment standard to pretrial detainee’s medical care

claim); see also Moore v. Luffey, 757 F. App’x 335, 340 & n.2 (3d Cir. 2019) (nonprecedential)

(rejecting plaintiff’s argument to apply Kingsley’s holding to Fourteenth Amendment medical

care claim and instead analyzing under Eighth Amendment jurisprudence); see also Parker v.

Butler County, 832 F. App’x 777, 780 & n.1 (3d Cir. 2020) (nonprecedential) (applying Eighth

Amendment standard to pretrial detainee medical care claim while acknowledging Fourteenth

Amendment is source of right); Miller v. Steele-Smith, 713 F. App’x 74, 76 n.1, 78 (3d Cir.

2017) (nonprecedential) (same); Goode v. Giorla, 643 F. App’x 127, 129 & n.3 (3d Cir. 2016)

(nonprecedential) (same); Edwards v. Northampton County, 663 F. App’x 132, 136-37 (3d Cir.

2016) (nonprecedential) (citing Natale v. Camden Cnty Corr. Facility, 318 F.3d 575, 581 (3d

Cir. 2003)).

52 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

53 Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).

54 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

Deliberate indifference by prison officials may be evidenced by intentional

refusal to provide care known to be medically necessary, delayed provision of

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

or denial of reasonable requests for treatment resulting in suffering or risk of

injury.55 Deliberate indifference to serious medical needs is an exacting standard,

requiring a showing of “unnecessary and wanton infliction of pain.”56 Claims

sounding in mere medical negligence will not suffice.57

Pierre asserts that he was “deni[ed] mental health care” by two mental health

providers at LCCF. He further alleges that, after being denied appropriate medical

attention following repeated requests for care and expressions of suicidal ideation,

he attempted to take his own life. Pierre’s complaint plausibly states a Fourteenth

Amendment claim for deliberate indifference to serious medical needs against

mental health counselors Liz and John Doe.

If Pierre is intending to assert such a claim against Richards, who is not a

medical provider, he has not done so. There are no allegations that Richards was

deliberately indifferent to Pierre’s mental health beyond a single assertion that, on

the Friday when Pierre cut himself, Richards “failed to call mental health” when

55 See Durmer v. O’Carroll, 991 F.2d 64, 68 & n.11 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d

at 346).

56 Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).

57 Rouse, 182 F.3d at 197.

asked.58 Even if true, a single instance of failing to contact mental health services,

when viewed alongside Richards’ prior appropriate behavior of contacting mental

health services every time Pierre asked, does not reflect “unnecessary and wanton

infliction of pain.” At most it may implicate negligence, which does not rise to the

level of a constitutional violation.59

E. Unspecified Fourth Amendment Claim

Pierre attempts to assert a Fourth Amendment claim against the warden of

LCCF, seemingly due to alleged privacy violations for being forced to shower, use

the bathroom, and discuss mental health information in front of nonmedical

suicide-watch observers.60 The Fourth Amendment to the United States

Constitution, in pertinent part, protects against “unreasonable searches and

seizures.”61 However, in the prison context, it is well settled that “prisoners have

no legitimate expectation of privacy . . . and the Fourth Amendment’s prohibition

on unreasonable searches [and seizures] does not apply in prison cells[.]”62 Rather,

58 Doc. 1 ¶ 11.

59 Rouse, 182 F.3d at 197.

60 See Doc. 1 ¶ 19.

61 U.S. CONST. amend IV.

62 Hudson v. Palmer, 468 U.S. 517, 530 (1984); Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001)

(“The Hudson court confirmed that a Fourth Amendment right to be free from unreasonable

searches and seizures is inconsistent with incarceration.”); see also Humphrey v. Sec’y Pa.

Dep’t of Corr., 712 F. App’x 122, 125 (3d Cir. 2017) (nonprecedential) (holding that seizure

of legal materials did not state a cognizable Fourth Amendment claim) (citing Hudson, 468

U.S. at 536).

the Fourth Amendment’s application to prison settings has been narrowly

constrained to issues regarding bodily integrity.63

Pierre has not, and cannot, state a Fourth Amendment claim. His allegations

regarding observation while showering, using the bathroom, or discussing health

information simply do not amount to a Fourth Amendment violation in the prison

context, especially with respect to a detainee on suicide watch. Any Fourth

Amendment claim will be dismissed with prejudice.

F. Official Capacity Claims

Pierre sues all Defendants in their individual and official capacities.64 Suing

Defendants in their official capacities is akin to suing the municipality—Luzerne

County—itself.65 To assert a Section 1983 claim against Luzerne County by way

of an official capacity claim against a county employee, Pierre must identify a

policy or custom fairly attributable to the municipality that caused him

constitutional injury.66 He must also plausibly plead facts showing that each

Defendant is a decisionmaker endowed with authority to promulgate or establish

an official custom or policy.67

63 See Parkell v. Danberg, 833 F.3d 313, 324-25 (3d Cir. 2016) (distinguishing Hudson’s holding

from Fourth Amendment claims regarding invasive searches of prisoners’ bodies).

64 Doc. 1 ¶ 7.

65 See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978).

66 Id. at 690-91.

67 See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986) (explaining that a decision to

adopt a particular course of action made by the “government’s authorized decisionmakers”

represents an act of official government policy (emphasis added)); McTernan v. City of York,

As more fully explained above, Pierre’s claim alleging an unconstitutional

policy by the warden of LCCF—the only county official named as a defendant

who could plausibly have decisionmaking authority—fails to state a constitutional

violation. Pierre has not identified any other policies promulgated by the other

Defendants, nor has he plausibly alleged that those Defendants would have

decisionmaking authority. Accordingly, all official capacity claims will be

dismissed with prejudice.

G. Leave to Amend

Generally, “plaintiffs who file complaints subject to dismissal under [the

Prison Litigation Reform Act of 1995] should receive leave to amend unless

amendment would be inequitable or futile.”68 As noted above, the Court will

permit Pierre to file an amended complaint in the event that he can plausibly allege

a Fourteenth Amendment conditions-of-confinement claim against Richards. The

other individual capacity claims that are being dismissed—i.e., the unconstitutional

policy, retaliation, and Fourth Amendment claims—will be dismissed with

prejudice, as leave to amend would be futile.69 Pierre’s official capacity claims

will be dismissed with prejudice for the same reason.

564 F.3d 636, 658 (3d Cir. 2009) (noting that plaintiff failed to “allege conduct by a municipal

decisionmaker” in his attempt to assert municipal Section 1983 liability).

68 Grayson, 293 F.3d at 114.

69 See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000); Centifanti v. Nix, 865 F.2d 1422, 1431

(3d Cir. 1989) (“[T]he district court may properly deny leave to amend where the amendment

would not withstand a motion to dismiss.”).

If Pierre chooses to file an amended complaint in conformity with this

Memorandum, it should be a stand-alone document, complete in itself and without

reference to any previous pleadings. The amended complaint should set forth

Pierre’s claims in short, concise, and plain statements, and in sequentially

numbered paragraphs. Pierre should include the claims that have survived this

Court’s sufficiency review, but he may not include claims that have been dismissed

with prejudice. He must also sign the amended complaint and indicate the nature

of the relief sought.

If Pierre does not timely file a comprehensive amended complaint, dismissal

without prejudice of the conditions-of-confinement claim against Richards will

automatically convert to dismissal with prejudice and this case will proceed on the

following individual capacity claims: (1) First Amendment retaliation against

Richards; and (2) Fourteenth Amendment deliberate indifference to serious mental

health needs against mental health counselors “Liz” and “John Doe.” Pierre will

be responsible for identifying the John Doe defendant so that the Court can attempt

to effectuate service for this Defendant. If identification is not made within a

reasonable amount of time, the Court will be constrained to dismiss the Doe

defendant pursuant to Federal Rule of Civil Procedure 4(m).

III. CONCLUSION

Based on the foregoing, the Court will dismiss in part Pierre’s complaint

pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief

may be granted. Pierre, if he is able, may file an amended complaint in accordance

with this Memorandum. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge