McCollum v. Pries

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNIE MCCOLLUM, :

Plaintiff :

: No. 1:22-cv-01710

v. :

: (Judge Rambo)

MICHAEL H.W. PRIES, et al., :

Defendants :

MEMORANDUM

Before the Court is Defendants’ motion to dismiss Plaintiff’s amended

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc.

No. 32.) Also before the Court is Plaintiff’s motion for leave to amend his amended

complaint. (Doc. No. 36.) For the reasons set forth below, the Court will grant in

part and deny in part Defendants’ motion and deem Plaintiff’s motion withdrawn.

I. BACKGROUND

A. Procedural Background

Plaintiff Johnnie McCollum (“Plaintiff”), a convicted and sentenced state

prisoner (Doc. No. 16 at 3), is currently in the custody of the Pennsylvania

Department of Corrections. On October 28, 2022, while Plaintiff was incarcerated

as a pretrial detainee at Dauphin County Prison (“Prison”) in Harrisburg,

Pennsylvania, he filed a complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”)

against the following thirteen (13) Defendants: Michael H.W. Pries, George P.

Hartwick, and Chad Saylor, Dauphin County Commissioners; John F. Cherry, the

President Judge of the Court of Common Pleas of Dauphin County; William

Wenner, a Magisterial District Judge in Harrisburg, Pennsylvania; Nicholas

Chimienti, the Sheriff of Dauphin County; James Markel, the Acting Controller of

the Dauphin County Prison Board (“Prison Board”); Frank Lavery, Jr., a Solicitor of

the Prison Board; Gregory Briggs, the Warden of the Prison; Lionel Pierre, the

Deputy Warden of the Prison; Roger Lucas, the Major of Security at the Prison;

Mike Welker, the Grievance Coordinator at the Prison; and Damon Fields, the

Chaplain at the Prison. (Doc. No. 1 at 1–6.)

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

occurred while he was incarcerated as a pretrial detainee at the Prison (Doc. No. 1

at 7) and generally concerned the following two (2) categories: lockdowns and

access to religious material (id. at 7–14). In connection with his various allegations,1

Plaintiff asserted that his rights under the First and Fourteenth Amendments to the

United States Constitution had been violated. (Id. at 12.) For relief, Plaintiff sought

monetary damages, as well as various forms of injunctive relief. (Id. at 12, 14.)

By Memorandum and Order dated December 14, 2022, the Court deemed

Plaintiff’s complaint filed, granted him leave to proceed in forma pauperis, and

1 Because Plaintiff is now proceeding on an amended complaint, the Court need not

recount those allegations here. However, the Court notes that the allegations

contained in Plaintiff’s original complaint, have been fully set forth by the Court in

its December 14, 2022 Memorandum. (Doc. No. 5.)

dismissed his complaint without prejudice to him filing an amended complaint.

(Doc. Nos. 5, 6.) In particular, the Court found that, with respect to numerous

Defendants, Plaintiff had failed to sufficiently allege their personal involvement in

the acts that he claimed violated his federally protected rights. (Doc. No. 5 at 9-10.)

Because Plaintiff had failed to allege such personal involvement, the Court also

found that his complaint did not provide fair notice of his claims and/or the grounds

upon which those claims rest, as required by Rule 8 of the Federal Rules of Civil

Procedure. (Id. at 10–11.) In addition, the Court found that, with respect to the

Defendants Plaintiff discussed with some level of specificity, the complaint failed to

state a Fourteenth Amendment claim upon which relief could be granted. (Id. at 11–

17.) And, finally, the Court dismissed Plaintiff’s requests for injunctive relief as

moot, because—during the pendency of this litigation—he was transferred from the

Prison to a state correctional institution, and there was no alleged expectation that

he would be returned to the Prison since he is now in the custody of the Pennsylvania

Department of Corrections. (Id. at 17–18.)

However, because the Court could not say that granting Plaintiff leave to

amend his Section 1983 claims would be futile, the Court granted Plaintiff leave to

file an amended complaint. (Id. at 18–19.) Following two (2) extensions of time

(Doc. Nos. 8, 9, 10, 12), Plaintiff filed his amended complaint on April 5, 2023 (Doc.

No. 16). Shortly thereafter, on April 11, 2023, Plaintiff filed what appears to be a

continuation of his amended complaint. (Doc. No. 18.) In other words, Plaintiff’s

amended complaint has been filed in two (2) parts on the Court’s docket. (Doc. Nos.

16, 18.)

In his amended complaint, Plaintiff once again names the following

Defendants: Pries; Hartwick; Saylor; Cherry; Wenner; Chimienti; Markel; Lavery;

Briggs; Pierre; Welker; and Lucas. (Id. at 1–5.) He also names, for the first time,

Joseph Curcillo III, the Chief Solicitor of Dauphin County, and Francis T. Chardo,

the District Attorney of Dauphin County. (Id. at 2, 5.) The only Defendant, who

was named in the original complaint that has not been named in the amended

complaint is Defendant Fields, the Chaplain at the Prison. Compare (Doc. No. 1)

with (Doc. Nos. 16, 18). As a result, Defendant Fields was previously terminated

from the caption of this case.

In his amended complaint, Plaintiff reasserts allegations concerning his

incarceration as a pretrial detainee at the Prison. More specifically, he allege that he

was denied the right to order books, magazines, and newsletters, and also denied the

right to exercise, to have recreational opportunities, and to have a “healthful

environement.” (Doc. No. 16 at 6–9.) In connection with these allegations, Plaintiff

asserts violations of his rights under the First, Eighth, and Fourteenth Amendments

to the United States Constitution, as well as a violation of “17 61 P.A.C.S. Section

1724 Subsection (B).” (Doc. No. 18 at 2.) Unlike his original complaint, Plaintiff’s

amended complaint expounds upon the factual basis of his claims, as well as the

personal involvement of the Defendants. (Doc. Nos. 16, 18.) As a result, the Court

directed the Clerk of Court to serve a copy of Plaintiff’s amended complaint on the

named Defendants.2

On June 5, 2023, counsel entered an appearance on behalf of Defendants and

subsequently filed a waiver of the service of summons. (Doc. Nos. 24, 25, 27.) In

addition, Defendants filed a motion to dismiss Plaintiff’s amended complaint, along

with a supporting brief. (Doc. Nos. 32, 35.) As reflected by the Court’s docket,

Plaintiff has not filed a brief in opposition to Defendants’ motion to dismiss or

sought an extension of time in which to do so. However, Plaintiff did file a motion

for leave to amend his amended complaint. (Doc. No. 36.) Notably, Plaintiff’s

motion to amend is not accompanied by a supporting brief or a proposed amended

complaint.

B. Factual Background

In his amended complaint (Doc. Nos. 16, 18), Plaintiff sets forth the following

allegations. Plaintiff asserts that, while he was incarcerated at the Prison, he was

denied the right: to order books and magazines “of [his] choice[;]” to have one hour

2 In addition to his amended complaint, Plaintiff also filed a motion seeking the

appointment of counsel and a motion seeking class certification. (Doc. Nos. 14, 15.)

On May 25, 2023, the Court denied, without prejudice, both of these motions. (Doc.

Nos. 21, 22.)

per day of exercise; to have “consistent recreational opportunities[;]” and to have a

“clean healthful environment.” (Doc. No. 16 at 6.)

In support of his assertion that he was denied the right to order books and

magazines, Plaintiff sets forth various allegations concerning his attempts to

administratively grieved this claim at the Prison. See (id. at 6–7.) For instance,

Plaintiff alleges that: he submitted grievances to Defendant Briggs, “addressing the

inadequacy of the library[;]” he received “a grievance appeal” from Defendant Pries;

and the Prison Board “voted to deny” his grievance. (Id. at 6.) Plaintiff also alleges,

however, that he subsequently received a response from Defendant Lavery, which

stated that his grievance was approved in part and denied in part and that, within

sixty (60) days, the “administration” would develop procedures to allow inmates

access to materials not currently provided. (Id. at 7.) Finally, Plaintiff alleges that

he appealed and received a response from Defendant Curcillo. (Id.) In connection

with these various allegations, Plaintiff seems to suggest that the “Prison Board

recognize[d] the need to let [inmates] order magazines and legal subscription[,]” but

did not put any “procedures” into “place to allow” inmates to do so. (Id.)

In support of his assertions that he was denied the right to exercise and the

right to recreational opportunities, Plaintiff alleges that there were continuous

lockdowns at the Prison such that he “was locked down 19–23 days” per “month”

because of “a severe staff shortage.” (Id. (stating that “out of 30 days, I was locked

down 19–23 days”).) Because of this staff shortage, Plaintiff could not “attend

programs, have regular recreation, receive [c]onsistent visits,” or “go to [the] gym

everyday for a [sic] hour to exercise.” (Id. at 8; id. at 7 (claiming that, after two-

and-a-half years at the Prison, he has been unable to complete one program and that

he was “forced to appear in front of the Judge with no programs completed”); Doc.

No. 18 at 1 (stating that confining inmates to their cells “because of something out

of their control is not a healthful environment”).) Plaintiff claims that he put

Defendant Briggs, Pierre, Lucas, Welker, and every member of the Prison Board on

notice of these conditions. (Doc. No. 16 at 7.) Plaintiff also claims that, although

he has attempted to administratively grieve this issue, he was told that “prison

schedules are not up for negation with inmates” (id. at 8) and, further, that this issue

was “non grieveable” (id. at 9).

In addition, Plaintiff asserts that he “had people from the community attending

the Dauphin County Prison Board[ ] meetings and bringing up the lockdown

situation” and how it is affecting the inmates, but that the answer “was always[,] ‘we

are working on it.’” (Id.) Plaintiff asserts that the Prison Board is “well aware” of

the conditions at the Prison and how those conditions contribute to the “depression”

of inmates. (Id.) Plaintiff further asserts that the “solution” is to “increase the pay

and people will come and work.” (Id.)

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

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

States Constitution and, also, that they violated “17 61 P.A.C.S. Section 1724

Subsection (B).” (Doc. No. 18 at 2.) As a result of these alleged violations, Plaintiff

asserts that he has suffered from “[s]evere depression, anxiety, panic depression,

bipolar mood sings,” and “difficulties with thinking and concentrating]” (Id.; id. at

3 (stating that he had to “go[ ] on psych medication” because of his “level of

depression . . . ”). For relief, Plaintiff seeks: (1) an order from the Court compelling

the Board “to add incentives to attract more guards[;]” (2) “[i]mplement a

[p]ublishers only rule so individuals can orders books, magazines, [and] news

letters[;]” and (3) monetary relief. (Id. at 2.) In support of his claims and requests

for relief, Plaintiff has attached to his amended complaint various administrative

remedy documents that Plaintiff filed at the Prison, and the responses he received.

(Doc. Nos. 18-1 at 2–14; 18-2 at 1–7; 18-3 at 1–9; 18-4 at 1–5.)

II. LEGAL STANDARD

In order to survive a motion to dismiss under Rule 12(b)(6) of the Federal

Rules of Civil Procedure, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). And a claim is plausible on its face when the complaint

contains “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556).

When considering a Rule 12(b)(6) motion, the court “accept[s] as true all well-

pled factual allegations in the complaint and all reasonable inferences that can be

drawn from them.” See Taksir v. Vanguard Grp., 903 F.3d 95, 96-97 (3d Cir. 2018)

(citation and internal quotations omitted). The court also construes the factual

allegations “in the light most favorable to the plaintiff[.]” See In re Ins. Brokerage

Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (citation and internal quotations

omitted). The court, however, is not required to credit “conclusions of law” or to

draw “unreasonable factual inferences.” See Curay-Cramer v. Ursuline Acad. of

Wilmington, Delaware, Inc., 450 F.3d 130, 133 (3d Cir. 2006).

Additionally, the United States Court of Appeals for the Third Circuit has

outlined a three-step process to determine whether a complaint meets the pleading

standard established by Twombly and Iqbal. See Connelly v. Lane Const. Corp.,

809 F.3d 780, 787 (3d Cir. 2016). First, the court “must ‘tak[e] note of the elements

[the] plaintiff must plead to state a claim.’” See id. (quoting Iqbal, 556 U.S. at 675)

(alterations in original). Second, the court “should identify allegations that, ‘because

they are no more than conclusions, are not entitled to the assumption of truth.’” See

id. (quoting Iqbal, 556 U.S. at 679). And, third, “‘[w]hen there are well-pleaded

factual allegations, [the] court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.’” See id. (quoting Iqbal,

556 U.S. at 679).

III. DISCUSSION

A. Plaintiff’s Motion Amend

Plaintiff has filed a motion for leave to amend his amended complaint. (Doc.

No. 36.) However, Plaintiff has not filed a brief in support of his motion or a

proposed amended complaint, as required by the Local Rules of this Court. See

M.D. Pa. L.R. 7.5 (providing that: “[w]ithin fourteen (14) days after the filing of any

motion, the party filing the motion shall file a brief in support of the motion[,]” and

that, “[i]f a supporting brief is not filed within the time provided in this rule the

motion shall be deemed to be withdrawn”); M.D. Pa. L.R. 15.1 (instructing that:

“[w]hen a party files a motion requesting leave to file an amended pleading, the

proposed amended pleading must be retyped or reprinted so that it will be complete

in itself including exhibits and shall be filed on paper as a separate document or, in

the Electronic Filing System, as an attachment to the motion” ). As a result, the

Court will deem Plaintiff’s motion withdrawn.

B. Defendants’ Motion to Dismiss

Defendants have filed a motion to dismiss Plaintiff’s amended complaint.

(Doc. No. 32.) In connection with their motion, Defendants have also filed a

supporting brief, setting forth various arguments. (Doc. No. 35.) As reflected by

the Court’s docket, however, Plaintiff has not filed an opposition brief. Thus, under

the Court’s Local Rules, he is deemed not to oppose Defendants’ motion. See M.D.

Pa. L.R. 7.6 (providing, in pertinent part, as follows: “[a]ny party opposing any

motion, other than a motion for summary judgment, shall file a brief in opposition

within fourteen (14) days after service of the movant’s brief, or, if a brief in support

of the motion is not required under these rules, within seven (7) days after service of

the motion[;]” and “[a]ny party who fails to comply with this rule shall be deemed

not to oppose such motion . . . ”). That said, the Court addresses Defendants

arguments in turn.

1. Individual Members of the Prison Board

Initially, Defendants argue that the members of the Prison Board (i.e.,

Defendants Pries, Hartwick, Saylor, Cherry, Wenner, Chimienti, Markel, Lavery,

Jr., Curcillo, and Chardo) are not proper defendants in this action. (Doc. No. 35 at

7–8.) In support, they point to Newman v. Burrows, 22-cv-00556, 2023 WL

4360554, at *1 (W.D. Pa. May 3, 2023), report and recommendation adopted, No.

CV 22-556, 2023 WL 4100401 (W.D. Pa. June 21, 2023), and argue that this case is

“on point.” (Doc. No. 35 at 7.) In Newman, the prisoner-plaintiff brought suit

against numerous defendants concerning alleged violations of his civil rights while

he was incarcerated as a pretrial detainee at the Mercer County Jail. See id. at *1.

Among the defendants named was the Mercer County Prison Board. See id. at *2.

In moving for dismissal of the plaintiff’s amended complaint, the county defendants

argued that the individual members of the prison board were not proper defendants.

(Id. at *4.) In support, they asserted that “Pennsylvania law expressly vests control

and supervision over a county jail . . . in a prison board of inspectors pursuant to 61

Pa. C.S.A. § 1731(a).” See id. (citation omitted). As a result, they argued, “no

individual member ha[d] final policymaking authority and [was, instead,] subject to

the will of the other members[.]” See id. The court agreed, stating as follows:

“because the individual members of the Prison Board lack final policymaking or

supervisory authority to act alone, they cannot be held individually liable[.]” See id.

Based upon this case, Defendants argue that the individual members of the Prison

Board should be dismissed from this action.

The Court turns to the statutory law cited by Defendants. Specifically, that

law provides for boards of inspectors of county jails or prisons “[i]n counties of the

third, fourth and fifth class[.]” See 61 Pa. C.S.A. § 1731(a)(1). Dauphin County is

considered a county in the third class.3 In addition, the board is comprised of the

following members: the president judge of the court of common pleas or a judge

3 Information concerning county classes in Pennsylvania is available at the

following website:

https://www.pacourts.us/news-and-statistics/research-and-statistics/dashboard-

table-of-contents/resources/WebHelp/General_Information/County_Classes.htm.

designated by him; the district attorney; the sheriff; the controller; and the county

commissioners. See id. § 1731(a)(2). “[T]he board and the officers appointed by it”

are authorized to “provide for the safekeeping, discipline and employment of

inmates and the government and management of the correctional institution.” See

id. § 1731(a)(3). The board is also empowered to “make such rules and regulations

for the government and management of the county correctional institution and the

safekeeping, discipline and employment of the inmates, as may be deemed

necessary.” See id. § 1732(b); see also id. § 1732(a) (providing that “[a] majority of

the members of the board shall constitute a quorum for the transaction of business,

and all actions of the board shall be by the approval of a majority of all the members

of the board”). Thus, based upon this statutory law, the rules and regulations for the

government and management of the prison, as well as the health and safekeeping of

the inmates, are the responsibility of the board. See id. §§ 1731, 1732.

In addition to this statutory law, federal courts have held, in the context of

Section 1983 claims arising in Pennsylvania, that a prison board “would be the

proper defendant against which to assert Monell liability for unlawful prison policies

or customs[.]”4 See White v. Pennsylvania, 22-cv-01692, 2024 WL 915558, at *1

4 See Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690–91 (1978)

(explaining that local governmental entities “can be sued directly under [Section]

1983 for monetary, declaratory, or injunctive relief where . . . the action that is

alleged to be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted or promulgated by that body’s officers” or

(M.D. Pa. Mar. 4, 2024); Fleckenstein v. Crawford,14-cv-01085, 2015 WL 5829758,

at *7 (M.D. Pa. Oct. 1, 2015) (adopting report and recommendation that the plaintiffs

had adequately stated a municipal liability claim under Section 1983 against the

county prison board); Bradley v. PrimeCare Med. Inc., No. 12-cv-00292, 2013 WL

1149267, at *6–7 (M.D. Pa. Mar. 19, 2013) (explaining that Pennsylvania law

specifically provides that the county prison board is responsible for the policies and

management of the county prison, not the county itself); Goodine v. Lackawanna

Cnty. Sheriff, 8-cv-01898, 2010 WL 830956, at *5 (M.D. Pa. Mar. 4, 2010) (stating

that a county prison board is a local government unit and is, therefore, amenable to

suit under Section 1983); see also Williams v. Delaware Cnty. Bd. of Prison

Inspectors, 844 F. App’x 469, 475 (3d Cir. 2021) (unpublished) (recognizing the

defendant’s arguments that the Pennsylvania county was not liable for the pretrial

detainee’s Section 1983 claim because the county did not exercise control over the

correctional facility under Pennsylvania law and that, instead, the prison board

controlled the administration of the facility (citing, in part, 61 Pa. C.S.A. § 1731)).

where a “constitutional deprivation[ ]” was caused by a “governmental ‘custom’

even though such a custom has not received formal approval through the body’s

official decision-making channels”); Mulholland v. Gov’t Cnty. of Berks, Pa., 706

F.3d 227, 237 (3d Cir. 2013) (providing, in the context of municipality liability under

Section 1983, that a local governmental entity is “liable when the alleged

constitutional transgression implements or executes a policy, regulation or decision

officially adopted by the governing body or informally adopted by custom”

(citations omitted)).

Thus, in applying all of these principles here, the Court observes that

Plaintiff’s amended complaint, while it names the individual members of the Prison

Board, does not challenge the conduct of the individual members, and, instead,

challenges the conduct of the Prison Board, as whole. The Court finds that this is

consistent with Pennsylvania law, which requires approval of a majority of the

members of the Prison Board for actions taken by the Prison Board. See id. 61 Pa.

C.S.A. § 1732(a) (providing that “[a] majority of the members of the board shall

constitute a quorum for the transaction of business, and all actions of the board shall

be by the approval of a majority of all the members of the board”).

Accordingly, the Court will grant Defendants’ motion to dismiss the

individual members that comprise the Prison Board and will direct Plaintiff to file

an amended pleading naming the Prison Board as a defendant. See 61 Pa. C.S.A. §§

1731, 1732; Tarapchak v. Lackawanna Cnty., 173 F. Supp. 3d 57, 85 (M.D. Pa.

2016) (stating that, “[i]n Pennsylvania, the prison board is the authorized

policymaker for county prisons, tasked with making policy decision regarding the

safekeeping, discipline, and employment of inmates”).

2. Prison Defendants’ Personal Involvement

Next, Defendants argue that Plaintiff’s amended complaint has not alleged

their personal involvement in this Section 1983 action. (Doc. No. 35 at 8–10.) With

respect to the Prison individuals (i.e., Defendants Briggs, Pierre, Lucas, and

Welker),5 Defendants argue that they had no personal involvement in the alleged

denial of Plaintiff’s ability to exercise, engage in recreational opportunities, or order

books and magazines. (Id. at 8.) In addition, they argue that their mere involvement

in the grievance process at the Prison is “[n]ot [e]nough.” (Doc. No. 35 at 8.)

Accordingly, based upon this lack of personal involvement, Defendants contend that

they should be dismissed. (Id.) The Court agrees, but only in part.

In order to plausibly state a claim under Section 1983, a plaintiff must allege

that each defendant was personally involved in the act or acts that the plaintiff claims

violated his federally protected rights. See Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988). “A plaintiff makes sufficient allegations of a defendant’s

personal involvement by describing the defendant’s participation in or actual

knowledge of and acquiescence in the wrongful conduct.” Chavarriaga v. New

5 Because the Court will dismiss the individual members of the Prison Board as

Defendants and will grant Plaintiff leave to file an amended pleading naming the

Prison Board as a Defendant, the Court need not address Defendants’ remaining

arguments concerning the individual members of the Prison Board. The remainder

of the Court’s discussion will, therefore, be focused on Defendants Briggs, Pierre,

Lucas, and Welker. For ease of reference, the Court will refer collectively to these

Defendants as the “Prison Defendants.”

Jersey Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (citing Rode, 845 F.2d at

1207); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (stating that “[p]ersonal

involvement requires particular ‘allegations of personal direction or of actual

knowledge and acquiescence’” (quoting Rode, 845 F.2d at 1207)).

Generally speaking, the mere filing of a grievance is insufficient to impute the

actual knowledge that is necessary to demonstrate a defendant’s personal

involvement in an asserted constitutional violation. See Rode, 845 F.2d at 1207–08

(finding that the filing of a grievance with the Governor-defendant’s office was

insufficient to demonstrate that the Governor himself had personal knowledge of the

alleged wrongdoing). In addition, grievances that complain of events that have

already occurred and that are in the past are not sufficient to show that defendants

who respond to such grievances were personally involved in the asserted

constitutional violations. See Robles v. Casey, No. 10-cv-02663, 2011 WL 398203,

at *2 (M.D. Pa. Feb. 3, 2011) (concluding that plaintiff had not shown personal

involvement where “plaintiff’s grievance only reported violations that had occurred

in the past”).

Under certain circumstances, however, a grievance may be sufficient to place

a defendant on notice of continued wrongdoing and, thus, may show actual

knowledge of and acquiescence in the events that form the basis of a plaintiff’s

asserted constitutional claims. See, e.g., Sutton v. Rasheed, 323 F.3d 236, 249–50

(3d Cir. 2003), as amended (May 29, 2003) (finding that prisoner-plaintiffs had

established the personal involvement of a defendant who had played an “active role”

in the continued denial of plaintiffs having access to religious texts and basing this

finding, in part, on the fact that the defendant had issued a written response denying

a final-grievance-appeal letter from one of the plaintiffs, which requested access to

such religious texts); Diaz v. Palakovich, 448 F. App’x 211, 215 (3d Cir. 2011)

(unpublished) (vacating district court’s grant of summary judgment where the

district court had failed to consider grievances pertaining to a pattern of ongoing

wrongful conduct, and explaining that a reasonable factfinder could find that (a) the

defendants had knowledge of such wrongful conduct through the prisoner’s

grievances and (b) had acquiesced in such conduct by failing to address the ongoing

pattern of wrongful conduct).

Thus, on one hand, the Court acknowledges that merely responding to an

inmate’s grievance that complains of events that have already occurred and are in

the past does not constitute the knowledge and acquiescence that is necessary to

show personal involvement under Section 1983. On the other hand, however, the

Court also acknowledges that responding to a grievance that complains of events

that are ongoing and denying the requested relief may constitute the knowledge and

acquiescence that is necessary to show personal involvement in a Section 1983

action. That said, the Court turns to Plaintiff’s amended complaint.

a. Defendants Pierre, Lucas, and Welker

With respect to Defendants Pierre, Lucas, and Welker, Plaintiff’s amended

complaint alleges that they: (a) were informed through the grievance process that

Plaintiff was being denied the right to exercise, engage in recreational opportunities,

and have a “healthful” environment; and (b) responded to Plaintiff’s grievances by

denying his requests for relief. (Doc. No. 16 at 7.) In addition to these allegations,

Plaintiff has attached documentation to his amended complaint showing that

Defendants Pierre, Lucas, and Welker had, in fact, denied Plaintiff’s grievances

complaining about the lockdowns at the Prison. See, e.g. (Doc. Nos. 18-2 at 1, 7

(Defendant Welker’s denial); 18-3 at 1–2 (Defendant Welker’s denials); 18-2 at 2

(Defendant Lucas’s denial); 18-4 at 3 (Defendant Pierre’s denial)). Accordingly, the

Court will deny Defendants’ motion to the extent that they seek dismissal of this

Section 1983 claim against Defendants Pierre, Lucas, and Welker. The Court will

grant their motion, however, to the extent that Defendants Pierre, Lucas, and Welker

seek dismissal of Plaintiff’s Section 1983 claim concerning the availability of books

and magazines at the Prison. There are neither allegations in the amended complaint

nor documentation attached to the amended complaint which would suggest that

Defendants Pierre, Lucas, and Welker had any personal involvement in the denial of

books and magazines.

b. Defendant Briggs

With respect to Defendant Briggs, Plaintiff’s amended complaint alleges that

Defendant Briggs was “put on notice” of the lockdowns (Doc. No. 16 at 7) because

Plaintiff wrote to Defendant Briggs about these conditions at the Prison (id. at 8).

In support of this allegation, Plaintiff has attached to his amended complaint a letter

that he sent to Defendant Briggs, which discusses, inter alia, the “incessant

lockdowns” at the Prison. (Doc. No. 18-2.) In addition, Plaintiff has also attached

a document which reveals that Defendant Welker had responded to one of Plaintiff’s

grievances concerning the lockdowns at the Prison, stating: “the cancellation of

visits is due to security concerns. The Warden is looking at . . . video visits.” (Doc.

No. 18-2 at 1.) Thus, while Plaintiff does not appear to allege that Defendant Briggs

responded to his letter, the Court finds that there is a plausible inference that

Defendant Briggs knew about and acquiesced in the lockdowns at the Prison.

Accordingly, the Court will deny Defendants’ motion to the extent that they seek

dismissal of this Section 1983 claim against Defendant Briggs based upon Plaintiff’s

failure to allege personal involvement.

The Court will also deny their motion to the extent that they seek dismissal of

Plaintiff’s Section 1983 claim concerning books and magazines against Defendant

Briggs. Plaintiff alleges that he wrote to Defendant Briggs on umerous occasions

about the inadequacy of the library at the Prison. (Doc. No. 16 at 6.) In addition to

these allegations, Plaintiff has attached to his amended complaint numerous inmate

request forms that he sent to Defendant Briggs concerning the denial of books and

magazines. (Doc. No. 18-2 at 2–8.) Further, Plaintiff has shown that this issue was

appealed beyond the Prison level and to the Prison Board of Inspectors Chairman

(Doc. No. 18-1 at 10), the full Prison Board (id. at 11), and the Chief Solicitor (id.

at 12). Based upon Plaintiff’s allegations and these subsequent appeals, which are

supported by documentation attached to Plaintiff’s amended complaint, there is a

plausible inference that Defendant Briggs knew about and acquiesced in the

availability (or lack thereof) of books and magazines at the Prison.

3. Plaintiff’s Section 1983 Claims Against Prison Defendants

Given the alleged personal involvement of Defendants Briggs, Pierre, Lucas,

and Welker, the Court proceeds by addressing Plaintiff’s Section 1983 claims. As

set forth above, Plaintiff asserts violations of his First Amendment and Fourteenth

Amendment rights. (Doc. Nos. 16, 18.) The Court addresses these asserted violations

in turn.

a. First Amendment

In his amended complaint, Plaintiff asserts that he should be afforded “[t]he

right to order books and magazines of [his] choice.” (Doc. No. 16.) Because he was

not permitted to do so at the Prison, Plaintiff claims that his First Amendment rights

were violated while he was incarcerated there. (Id.) In their motion to dismiss and

supporting brief, Defendants argue that Plaintiff is not entitled to any and all books

of his choosing. (Doc. No. 35 at 11–13.) The Court agrees.

With respect to the prison setting, the United States Supreme Court has

explained that “convicted prisoners do not forfeit all constitutional protections by

reason of their conviction and confinement in prison[,]” and, thus, they “clearly

retain protections afforded by the First Amendment[.]” See O’Lone v. Est. of

Shabazz, 482 U.S. 342, 348 (1987) (citations and internal quotation marks and

citations omitted). Indeed, “[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution.” See Turner v. Safley, 482 U.S.

78, 84 (1987).

That said, however, the Supreme Court has recognized that “[r]unning a

prison is an inordinately difficult undertaking that requires expertise, planning, and

the commitment of resources, all of which are peculiarly within the province of the

legislative and executive branches of government.” See id. at 84–85. Accordingly,

the Supreme Court has rejected application of a strict scrutiny standard to prison

regulations that impinge on constitutional rights, and, instead, has adopted the

following standard: “when a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to legitimate penological

interests.” See id. at 89 (alteration omitted); see also id. at 89–91 (explaining that,

in determining the reasonableness of a prison regulation that infringes on inmates’

constitutional rights, courts are to consider several factors). Ultimately, this standard

“ensures the ability of corrections officials to anticipate security problems and to

adopt innovative solutions to the intractable problems of prison administration[,] . .

. and[, additionally, this standard] avoids unnecessary intrusion of the judiciary into

problems particularly ill suited to resolution by decree.” See O’Lone, 482 U.S. at

349–50 (citations and internal quotation marks omitted).

Here, from what the Court can discern, Plaintiff’s amended complaint does

not challenge any Prison policy or regulation. Rather, his complaint makes clear

that he simply wants to be able to order any book or magazine that he desires. (Doc.

No. 16 at 6.) Such a desire, however, is not consistent with legitimate penological

objectives of the corrections system. See Mack v. Warden Loretto FCI, 839 F.3d

286, 298 (3d Cir. 2016) (stating that a prisoner “retains those First Amendment rights

that are not inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system”). Indeed, unfettered access to any

and all books and magazines implicate obvious security issues. See, e.g., Bell v.

Wolfish, 441 U.S. 520, 551 (1979) (explaining that hardback books, which are

difficult to search effectively, “are especially serviceable for smuggling contraband

into an institution; money, drugs, and weapons easily may be secreted in the

bindings”). In fact, Plaintiff acknowledges as much in one of the grievances he filed

at the Prison concerning the alleged denial of books and magazines. (Doc. No. 18-

1 at 7 (stating as follows: “Im [sic] going to be totally honest[,] I acknowledge there

is an issue with drug use here at this facility . . . ”).)

Moreover, the Court cannot say that the alleged restriction on Plaintiff’s

ability to order any book or magazine that he desires (Doc. No. 16 at 6) is an

“exaggerated response” to such legitimate penological interests. See Beard v.

Banks, 548 U.S. 521, 528 (2006) (explaining that prison restrictions are “permissible

if they are reasonably related to legitimate penological interests, . . . and are not an

exaggerated response to such objectives” (citation, internal citation, and internal

quotation marks omitted)). Indeed, Plaintiff has attached documentation to his

amended complaint, which suggests that: (1) there were over eight-hundred and

seventy (870) “titles” in the library collection at the Prison while he was incarcerated

there, and “more titles are being added regularly” (Doc. No. 18-1 at 10); and (2) the

Prison was working towards providing inmates with even more access to

magazines/periodicals and newspapers (id. at 11, 12).

Furthermore, in light of Plaintiff’s broad desire to be able to order any book

or magazine he desires, the Court emphasizes the Supreme Court’s admonition that

federal courts owe “substantial deference to the professional judgment of prison

administrators[,]” see, e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003), and that,

sometimes, the Constitution “permits greater restriction” of an individual’s rights

“in a prison than it would allow elsewhere.” See Beard, 548 U.S. at 528 (upholding

Pennsylvania Department of Corrections’ policy restricting inmate access to

newspapers, magazines, and photographs and concluding that it was justified by the

need to provide particularly difficult prisoners with incentives for better behavior).

Thus, for all of these reasons, the Court agrees with Defendants that Plaintiff’s

complaint fails to state a First Amendment claim upon which relief can be granted.

As such, the Court will grant Defendants’ unopposed motion and dismiss Plaintiff’s

First Amendment claim.

b. Fourteenth Amendment

In his amended complaint, Plaintiff’s remaining claims concern the conditions

of his confinement. (Doc. No. 16.) More specifically, Plaintiff alleges that, while

he was incarcerated as a pretrial detainee at the Prison, he was denied the right to

have one hour per day of exercise, to have “consistent recreational opportunities[,]”

and to have a “clean healthful environment.” (Id. at 6.) Each of these alleged

conditions have the same cause (i.e., severe staff shortage at the Prison) and the same

remedy (i.e., increased wages for prison guards).

When pretrial detainees, such as Plaintiff,6 “challenge their conditions of

confinement, [courts] must consider whether there has been a violation of the Due

6 The Court agrees with Defendants (Doc. No. 35 at 14) that it is difficult to discern,

if Plaintiff was a pretrial detainee at all times relevant to his amended complaint or,

if at any time therein, he became a convicted and sentenced state prisoner. Thus, for

purposes of the Court’s discussion, the Court will, as Defendants did (id.), afford

Plaintiff the benefit of the doubt that he was a pretrial detainee.

Process Clause of the Fourteenth Amendment.” E. D. v. Sharkey, 928 F.3d 299, 307

(3d Cir. 2019) (quoting Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008)).

The Supreme Court has instructed that, when “evaluating the constitutionality of

conditions or restrictions of pretrial detention that implicated only the protection

against deprivation of liberty without due process of law, . . . the proper inquiry is

whether those conditions amount to punishment of the detainee.” See Bell v.

Wolfish, 441 U.S. 520, 535 (1979). Thus, “[u]nder the Due Process [C]lause, ‘a

detainee may not be punished prior to an adjudication of guilt.’” See Sharkey, 928

F.3d at 307 (quoting Bell, 441 U.S. at 535).

In determining whether the challenged conditions of confinement amount to

punishment of the pretrial detainee, “[courts] must decide whether [the challenged

condition] is imposed for the purpose of punishment or whether it is but an incident

of some other legitimate governmental purpose.” See Bell, 441 U.S. at 538 (citation

omitted); see also Hope v. Warden York Cnty. Prison, 972 F.3d 310, 326 (3d Cir.

2020) (stating that “[t]he touchstone for the constitutionality of detention is whether

conditions of confinement are meant to punish or are but an incident of some other

legitimate governmental purpose” (citations and internal quotation marks omitted)).

Thus, this determination requires courts to consider whether the challenged

conditions were imposed “for the express purpose of punishment, and if not, whether

they are rationally connected to a legitimate purpose but excessive in relation to its

purpose.” See id. at 328 (citing Bell, 441 U.S. at 538). In making this determination,

courts are to “consider the totality of the circumstances of confinement[.]” See id.

at 326 (explaining that “the totality of the circumstances of confinement” includes

“any genuine privations or hardship over an extended period of time, and whether

[the challenged] conditions are (1) rationally related to their legitimate purpose or

(2) excessive in relation to that purpose” (citations omitted)).

In addition, and importantly, “courts must acknowledge that practical

considerations of detention justify limitations on ‘many privileges and rights.’” See

id. (quoting Bell, 441 U.S. at 545–46). Thus, even though a pretrial detainee is not

a convicted prisoner, “a detainee ‘simply does not possess the full range of freedoms

of an unincarcerated individual.’” See id. (quoting Bell, 441 U.S. at 546). In a

similar vein, courts must also acknowledge “the legitimate objectives and difficulties

of managing a detention facility[.]” See id. (citation omitted). Judicial deference is,

therefore, accorded to a prison administrator “not merely because the administrator

ordinarily will, as a matter of fact in a particular case, have a better grasp of his

domain than the reviewing judge, but also because the operation of our correctional

facilities is peculiarly the province of the Legislative and Executive Branches of our

Government, not the Judicial.” See Bell, 441 U.S. at 548 (citations omitted).

Thus, in accordance with this governing legal standard, the Court must

consider whether the challenged conditions (i.e., the lockdowns at the Prison) were

for the purpose of punishment, and if not, whether the conditions were rationally

related to a legitimate purpose or excessive in relation to that purpose. See Hope,

972 F.3d at 328 (explaining that courts are to consider whether the challenged

conditions were imposed “for the express purpose of punishment, and if not, whether

they are rationally connected to a legitimate purpose but excessive in relation to its

purpose” (citing Bell, 441 U.S. at 538)).

In his amended complaint, Plaintiff alleges that there were continuous

lockdowns at the Prison such that he “was locked down 19–23 days” per “month”

because of “a severe staff shortage.” (Doc. No. 16 at 7.) As a result of this alleged

staff shortage, Plaintiff could not “attend programs, have regular recreation, receive

[c]onsistent visits,” or “go to [the] gym everyday for a [sic] hour to exercise.” (Id.

at 8; id. at 7 (claiming that, after two-and-a-half years at the Prison, he has been

unable to complete one program and that he was “forced to appear in front of the

Judge with no programs completed”); Doc. No. 18 at 1 (stating that confining

inmates to their cells “because of something out of their control is not a healthful

environment”).)

Having reviewed these allegations, the Court finds that Plaintiff’s amended

complaint does not allege that the lockdowns at the Prison were imposed for the

purpose of punishment. Instead, his amended complaint expressly alleges that the

lockdowns were imposed because of a “staff shortage.” (Id. at 7.) As a result, the

Court cannot say that Plaintiff’s complaint has shown that the challenged conditions

(i.e., the lockdowns at the Prison) were imposed for the purpose of punishment. See

Bell, 441 U.S. at 538 (explaining that “[a] court must decide whether the [challenged

condition] is imposed for the purpose of punishment or whether it is but an incident

of some other legitimate governmental purpose” (citation omitted)).

In addition, the Court finds that Plaintiff’s amended complaint does not allege

sufficient facts concerning the “totality of the circumstances of confinement[.]” See

Hope, 972 F.3d at 326. For instance, Plaintiff’s complaint does not set forth any

allegations concerning: how long each lockdown lasted; the restrictions that were

placed upon him when these lockdowns occurred; the size of his living space or the

extent to which he was permitted to move, if at all, throughout the Prison during

these lockdowns; or any other circumstances that would clarify the conditions in

which he was held in connection with these lockdowns. See Hubbard, 538 F.3d at

233 (citing Ferguson v. Cape Girardeau County, 88 F.3d 647, 650 (8th Cir. 1996)

for the following proposition: “[i]n evaluating the conditions, the court must look to

a number of factors, including the size of the detainee’s living space, the length of

confinement, the amount of time spent in the confined area each day, and the

opportunity for exercise”); Chapolini v. City of Philadelphia, No. 22-cv-284, 2022

WL 815444, at *12 (E.D. Pa. Mar. 17, 2022) (dismissing the pretrial detainee’s

Fourteenth Amendment claim concerning the lockdown measures ordered by the

commissioner of the Philadelphia prison system for failure to set forth sufficient

facts). In addition, while Plaintiff’s amended complaint claims that he was denied

“regular recreation” and “programs” (Doc. No. 16 at 8), his complaint fails to specify

any of the circumstances surrounding such denials—such as, what recreation and

programs Plaintiff sought to attend, whether the Prison offered such recreation and

programs, and what impact, if any, his alleged inability to attend the programs would

have had on him. At most, he claims that he was unable to show a judge that he did

not complete any programs.

As a result, the Court cannot say that the lockdowns at the Prison—even if not

imposed for the purpose of punishment—amount to punishment because they were

excessive in relation to the issues surrounding the alleged “staff shortage” at the

Prison. See Hope, 972 F.3d at 326 (explaining that, absent an intent to punish, courts

are to look at “the totality of the circumstances of confinement[,]” which includes

whether the challenged “conditions are (1) rationally related to their legitimate

purpose or (2) excessive in relation to that purpose” (citations omitted)).

Thus, for all of these reasons, the Court finds that Plaintiff’s amended

complaint fails to state a claim under the Fourteenth Amendment claim upon which

relief can be granted. The Court will, therefore, dismiss Plaintiff’s Fourteenth

Amendment claim.

4. Plaintiffs Claim Based Upon Pennsylvania Statute

In his amended complaint, Plaintiff claims that there has been a violation of

the following Pennsylvania statute, 61 Pa. C.S.A. § 1724. Specifically, Plaintiff

asserts that Defendants violated Section (b) of that statute, which provides as

follows: “(b) Living conditions.--The board shall ensure that the living conditions

within the prison and alternative housing facilities are healthful and otherwise

adequate.” See 61 Pa.C.S.A. § 1724(b).

In response, however, Defendants argue that, for all of the reasons discussed

in their motion to dismiss and supporting brief, Plaintiff’s amended complaint has

failed to state a constitutional deprivation under Section 1983. (Doc. No. 35 at 18–

19.) Defendants further argue that, because Plaintiff’s amended complaint has

failed to do so, any alleged violation of 61 Pa.C.S.A. § 1724 should also be

dismissed. (Id.)

Although the precise contours of this claim are unclear to the Court, it appears

that Plaintiff’s alleged violation of 61 Pa.C.S.A. § 1724 is based upon the lockdowns

at the Prison. As set forth above, however, Plaintiff’s amended complaint fails to

describe the factual circumstances surrounding the lockdowns. Thus, until Plaintiff

has filed an amended pleading clarifying these circumstances, the Court will refrain

from addressing the alleged violation of this Pennsylvania statute, at this time.

C. Leave to Amend

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

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, 371 U.S. at 182 (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.

In accordance with this standard, the Court will grant Plaintiff a final

opportunity to amend so that he can name the Prison Board as a Defendant and so

that he can amend his pleading in order to attempt to cure the deficiencies identified

above. Plaintiff is advised that his second amended complaint must be complete in

all respects. It must be a new pleading that stands by itself without reference to the

complaint, amended complaint, or any other document already filed. His second

amended complaint shall set forth his claims in short, concise, and plain statements

as required by Rule 8 of the Federal Rules of Civil Procedure. Finally, neither

conclusory allegations nor broad allegations will set forth a cognizable claim.7

IV. CONCLUSION

To conclude, the Court will grant in part and deny in part Defendants’ motion

to dismiss Plaintiff’s amended complaint. (Doc. No. 32.) In addition, the Court will

deem Plaintiff’s motion for leave to amend his amended complaint withdrawn.

(Doc. No. 36.) Finally, the Court will grant Plaintiff a final opportunity to amend

his pleading. An appropriate Order follows.

Dated: April 2, 2024 s/ Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge

7 Because Plaintiff will be afforded the opportunity to file an amended pleading, the

Court will refrain from addressing Defendants’ qualified immunity argument at this

time. (Doc. No. 35 at 19–20.) Defendants are free, of course, to reassert this

argument following the filing of Plaintiff’s amended pleading.