# COLON v. ANGLIKOWSKI

> District Court, W.D. Pennsylvania · July 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10416772

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 8, 2021
- **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/10416772

## How later opinions describe it (automated extraction)

- noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”
- holding that the plaintiff's allegations that a guard grabbed and rubbed his buttocks in a degrading manner during a shakedown in the food area was insufficient to establish an Eighth Amendment violation

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CARLOS COLON, )
)
Plaintiff ) Case No. 1:20-cv-00036 (ERIE)
)
vs. )
) HON. RICHARD A. LANZILLO
ERIC ANGLIKOWSKI, JOHN WETZEL, ) UNITED STATES MAGISTRATE JUDGE
MARK CAPOZZA, DEBRA )
HAWKINBERRY, MELANIE NAGY, )
ADAM KNEPPER, SCOTT RIDDLE, ) MEMORANDUM OPINION
SETH ERICKSON, MICHAEL CLARK, _ ) ON DEFENDANTS’ MOTION
DAVID RADZIEWICS, and ) TO DISMISS (ECF NO. 41)
TRICIA BASHOR, )
)
Defendants )

1. Background and Procedural Posture
Plaintiff Carlos Colon (Colon), proceeding pro se, commenced this civil rights action against
ten employees of the Pennsylvania Department of Corrections (Defendants), all of whom worked at
the State Correctional Institution at Albion, where Colon was previously incarcerated.’ See ECF No.
15 (Complaint). His original Complaint alleged that one of the defendants, Corrections Officer
Anglikowski, sexually assaulted and harassed him during his incarceration and that the other
defendants were somehow complicit in or responsible for Anglikowski’s misconduct. Id.
In response to Colon’s Complaint, the Defendants filed a Motion for More Definite
Statement pursuant to Federal Rules of Civil Procedure 8 and 10. See ECF No. 29, 43. Because the
Complaint did not disclose the factual basis underlying Colon’s claims against any defendant other
than Anglikowski, the Court granted the Defendants’ motion and ordered Colon to file an Amended
Complaint. ECF No. 32. Colon complied with that order and filed an Amended Complaint. ECF

1 Colon is presently incarcerated at SCI-Fayette.

No. 38 (Amended Complaint). Thereafter, Defendants filed the pending Motion to Dismiss the
Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and a supporting brief. ECF Nos. 41, 42.
Colon has filed a Response in opposition to the motion. ECF No. 46. All parties have consented to
the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636. Defendants’
motion is ripe for disposition.
Il. Standard and Scope of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a
motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the
merits; rather, the plaintiff must only present factual allegations sufficient “to raise a tight to relief
above the speculative level.” Be// Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C.
Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also
Asheroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12
(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41
(1957)). In making this determination, the court must accept as true all well-pled factual allegations
in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Lid. v.
Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a
complaint must provide more than labels and conclusions. Twombly, 550 US. at 555. A “formulaic
recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265,
286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are
unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The
Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse ». Lower Merion Sch. Dist., 132 F.3d 902,

906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations.
Twombly, 550 US. at 555. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir.
2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”).
Expounding on the Twombly/ Iqbal line of cases, the Third Circuit has articulated the
following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Second, the court should identify allegations
that, ‘because they are no more than conclusions, are not entitled to
the assumption of truth.’ Finally, ‘where there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.’
Burtch v. Milberg Factors, Inc. 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629
F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the
teviewing coutt to draw on its judicial experience and common sense.” Igbal, 556 U.S. at 679.
When ruling upon a motion to dismiss pursuant to Rule 12(b)(6), the Court must “generally consider
only the allegations in the complaint, exhibits attached to the complaint, matters of public record,
and documents that form the basis of a claim.” Lwm v. Bank of Am., 361 F.3d 217, 222 n.3 3d Cir.
2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 3d Cir. 1997). A court may
take judicial notice of documents filed in other court proceedings because they ate matters of public
record. Liberty Int'l Underwriters Can. v. Scottsdale Ins. Co., 955 F. Supp. 2d 317, 325 (D.N,J. 2013).
Finally, because Colon is representing himself, the allegations in the Amended Complaint
must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v, Kerner,
404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to state a
valid claim upon which relief could be granted, it should do so despite the litigant’s failure to cite

ptoper legal authority, confusion of legal theories, poor syntax and sentence construction, or
unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982), United States ex rel.

Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be
inartfully drawn and should be read “with a measure of tolerance”). Thus, the Court may consider
facts and make inferences where it is appropriate. But “any pleading must still contain sufficient
factual allegations that, when accepted as true, ‘state a claim to relief that is plausible on its face.’””
Heffley v. Steele, 2019 WL 5092127, at *4 (W.D. Pa. Oct. 11, 2019), aff'd, 826 Fed. Appx. 227 (3d Cir.
2020) (citations omitted). See also Baex v. Mooney, 2021 WL 816013, at *3 (W.D. Pa. Feb. 8, 2021),
report and recommendation adopted, 2021 WL 808726 (W.D. Pa. Mat. 3, 2021).
Ill. Discussion and Analysis
A. Colon’s Factual Allegations and Claims”
Colon’s Amended Complaint is a 28-page verified pleading. An amended complaint
“supersedes the original and renders it of no legal effect, unless the amended complaint specifically
tefets to or adopts the earlier pleading.” W. Run S tudent Hous. Assocs., LLC v. Huntington Nat'l Bank,
712 F.3d 165, 171 (3d Cir. 2013). Colon’s amended pleading includes no such incorporation and
therefore is the operative pleading under consideration.
Generally, Colon claims he was deprived of his ‘Federal Constitutional Rights as named by
the 5, 8, and 14" Amendments, namely his rights to due process and freedom from cruel and
unusual punishment and though unprovable at this time sexual abuse and sexual harassment at the
hands of correctional staff.” ECF No. 38,990. The claims against all defendants appear to arise
out of, or relate to, an incident of alleged sexual abuse by Anglikowski during a body search on

2 Colon has not organized his Amended Complaint into counts or specified which Defendants are the subject of each of
his claims. Consistent with its obligation to construe Colon’s prv se pleading liberally, the Court has attempted to
extrapolate this information from a generous reading of the Amended Complaint. The Court notes, however, that
notwithstanding his pro se status, Colon—like any litigant—must allege facts sufficient to state a claim as to each
defendant. See, e.g, Brandt v. Thuring, 2019 WL 1418125, at *4 (D.NJJ. Mar. 29, 2019). See also Hamilton v. Jamieson, 355 F,
Supp. 290, 298 (E.D. Pa. 1973) (“We are not required to stretch our imagination to manufacture allegations to
supplement the complaint ....”); Cassell v. Cty. of Montgomery, 2017 WL 2672653, at *3 (E.D Pa. Jun. 20, 2017) (“pro se
litigants must nevertheless adhere to basic pleading requirements”); Case ». State Farm Mut. Auto. Ins. Co., 294 F.2d 676,
678 (5th Cir. 1961)(“[T]here is no duty [on the part] of the trial court or appellate court to create a claim which appellant
has not spelled out in his pleading.”’).

May 18, 2018, and alleged sexually harassing comments Anglikowski made to Colon after the
incident.
According to the Amended Complaint, on May 18, 2018, Colon was “singled out by COI
Anglikowski while in a re-routed inmate movement.” Id., J 4(A). Anglikowski told Colon to
“assume the position, which refers in common prison lingo (vernacular) to empty all pocket[s] and
spread arms and legs in preparation for a body search.” Id. {| 4(C). Anglikowski then commenced a
body search on Colon that “became abusive and finally intrusive as he stopped patting me down and
then statted rubbing me.” Id., | 4(C)-(D). Specifically, Anglikowski “placed his fingers and thumbs
of both hand{[s] within the area of my gluteus maximus muscles (cheeks) on my posterior (buttoks)
(sic) in an unprofessional manner.” Id., | 4(E). Upon returning to his housing unit, Colon reported
the incident on the Prison Rape Elimination Act (PREA) hotline. After Colon submitted his PREA
teport, Anglikowski began to verbally harass Colon with comments such as “can’t we just get
along,” “lookin’ good,” “I’m gonna get some of that,” and “hey baby boy.” Id, {6 (A)-(D).
On July 12, 2018, while Colon was in line for medication, Anglikowski again singled him out
for questioning. Id. □□ □□ Anglikowski attempted to provoke an argument about Colon’s work
schedule, and then terminated the conversation, telling Colon to “drive safe sexy.” Id., ff] 10, 15.
Colon also reported this incident on the PREA hotline and sent a letter to the “BCI/PREA
coordinator.” Id., 4 16.
On July 25, 2018, after meeting with counselors and the institution’s employment officer,
Colon met with Lt. Barner and Ms. Cheek. Id., § 29. Colon was asked to “sign off’ on his
previously filed grievances “with the condition that CO Anglikowski is moved off his post.” Id.
Later that day and despite the separation agreement, Colon encountered Anglikowski in the west
yard of the prison but did not enter the west yard “out of fear and anxiety.” Id. § 30. Colon
encountered Anglikowski again in the prison yard on August 18, 2018. Id, 435. While reporting

for work on September 23, 2018, Colon encountered Anglikowski, who “continued to stare at and
attempted to provoke a response” from Colon. Id, 37. Colon did not report to work and instead
returned to his housing unit “out of fear.” Id.
On October 24, 2018, Colon met with Defendant Bashor, the “appointed PREA compliance
[manager],” about CO Anglikowski and the ongoing sexual harassment and retaliation Colon was
experiencing. Id., § 43. Colon contends Bashor did nothing. Id., {| 48-55. Colon then contends he
retaliated against by being put in a “more restrictive housing condition” before being transferred
to another institution. Id, { 68.
Defendant Nagy evaluated Colon upon his arrived at SCI-Fayette in April of 2019. Id., □□□
69, 71. Nagy removed Colon’s “low security status,” “raised it ... toa level 4,” “removed [Colon’s]
work privilege,” and “implaced (sic) a H-code without a proper not accurate evaluation.” Id, {| 69.
The Amended Complaint states that Defendants Erickson and Knepper agreed with these changes.
Id.,474. Colon notified Defendant Hawkenberry, the PREA compliance manager at SCI -Fayette,
of these changes to his status on April 30, 2019. Id, □□ 80. Colon claims Hawkinberry failed to
investigate the “sexually related motivation for my custody level increase.” Id., 4] 83. The Amended
Complaint also states that Defendant Capozza, SCI-Fayette’s Superintendent, failed to “rectify or
investigate his subordinate’s behavior.” Id., {| 84.
B. The Claims Against Defendant Anglikowski
Colon appeats to assert two claims against Corrections Officer Anglikowski. First, Colon
alleges that Anglikowski sexually assaulted him during the May 18, 2018 body search and thereafter
subjected him to comments that constituted sexual harassment in violation of his rights under the
Eighth Amendment. See ECF No. 38, 4(E). Second, the Amended Complaint appears to allege
that Colon retaliated against him for filing of a PREA complaint in violation of his First
Amendment rights. See ECF No. 38, §[6.

1. The Amended Complaint Fails to State an Eighth Amendment Sexual
Assault/Harassment Claim Against Anglikowski.
The sexual abuse of an inmate by prison officials violates the Eighth Amendment’s
prohibition against cruel and unusual punishment. Ricks ». Shover, 891 F.3d 468 (3d Cir. 2018).
Colon alleges that Defendant Anglikowski sexually assaulted him during the May 18, 2018 body
seatch by inappropriately touching his buttocks. ECF No. 38, 4. Colon also alleges that
Anglikowski later made several statements to him that constituted ongoing sexual harassment.
These statements included “Cant’ we just get along?,” “looking good,” “I’m gonna get some of
that,” and “hey baby boy.” ECF No. 38, 4] 6. On July 26, 2018, more than two months after the
body search, Anglikowski also told him to “drive safe sexy.” Id.,4 15. In moving for dismissal,
Anglikowski argues that neither the physical contact nor the verbal comments alleged by Colon is
setious enough to implicate the Eighth Amendment. See ECF No. 42, p. 7.
In evaluating whether conduct rises to the level of an Eighth Amendment violation, the
Coutt of Appeals for the Third Circuit adopted an analysis that focuses on both subjective and
objective components. Ricks, 891 F.3d. at 475. To be actionable, the Court explained, “the incident
must be objectively, sufficiently intolerable and cruel, capable of causing harm, and the official must
have a culpable state of mind.” Id. at 475. Under this analysis, even “a single incident, if sufficiently
setious or severe, can run afoul of the Eighth Amendment as sutely as can multiple, less egregious
incidents.” Id. at 477. Examples of conduct sufficient to satisfy the first component of the analysis
include “sexualized fondling, coerced sexual activity, combinations of ongoing harassment and
abuse, and exchanges of sexual activity for special treatment or to avoid discipline.” Id. at 478. At
the same time, the Supreme Court has warned that “not... every malevolent touch by a prison
guard gives tise to a federal action.” Hudson v. McMilhan, 503 U.S. 1, 9 (1992). “Rather, in contrast
to common tort law, the Eighth Amendment shields inmates from only those actions ‘repugnant to
the conscience of mankind.” Id, at 475-476 (quoting Hudson, 503 U.S. at 10). “The objective

element ‘is therefore contextual and responsive to ‘contemporary standards of decency.” Rucks, 891
F.3d at 476 (citations omitted). “And ‘conditions that cannot be said to be cruel and unusual under
contemporary standards are not unconstitutional.” Id. (citing Rhodes v. Chapman, 452 U.S. 337, 347
(1981)).
Colon’s allegations fall short of satisfying the objective standard of the analysis. Colon
acknowledges that Anglikowski’s touching occurred during a routine body search that “commenced

... aS pet normal policy standards, starting with arms, chest, back and sides.” ECF No. 38., 1 4).
Caselaw confirms that Anglikowski’s actions—placing his fingers and thumbs “within the area” of
Colon’s buttocks—during a body search are not severe enough to support an Eighth Amendment
claim. In McIntyre v. Kellinger, 2018 WL 3429964, at *1 (3d Cir. 2018), the Court of Appeals for the
Third Circuit held that allegations that a guard dragged his hands down an inmate’s buttocks,
gtipped his buttocks, patted the inmate’s thighs, and “squeezed [his] ass as if [the inmate] were a
woman” during a pat-down search failed to state an Eighth Amendment claim. Similarly, in Sarvey v.
Wetzel, 2019 WL 235322, at *13 (W.D. Pa. Jan. 16, 2019), this Court held that a corrections officer’s
sttiking of an inmate’s buttocks with a ruler was not sevete enough to support a cognizable Eighth
Amendment claim.? Colon’s alleged placing of his fingers and thumbs “within the area” of his

3 See also Ricks, 891 F.3d at 479 (suggesting that an “isolated, momentary” incident in which guard “rubbed his erect
penis against [plaintiff's] buttocks through both men’s clothing” was not sufficiently severe); Hughes v. Smith, 237 Fed.
Appx. 756, 759 (3d Cir. 2007) (no Eighth Amendment violation where correctional officer allegedly touched the
inmate’s testicles through his clothing during a single pat-down frisk); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997)
(allegations that a female correction officer squeezed plaintiffs penis, said “[Y]ou know [you're] a sexy black devil, I like
you,” bumped into plaintiff with her breasts, and pinned him against the wall “with her whole body vagina against penis”
were not sufficiently serious to amount to an Eighth Amendment violation); Watson v. Wingard, 2018 WL 2108316 (W.D.
Pa. Jan. 31, 2018) (allegations that defendant gave plaintiff an “upper cut” to the groin with his forearm, “groped and
massaged [his] penis,” and examined plaintiff's “butt ... like a doctor” did not amount to sexual abuse); Jackson v. Madery,
158 Fed. Appx. 656, 661 (6th Cir. 2005) (holding that the plaintiff's allegations that a guard grabbed and rubbed his
buttocks in a degrading manner during a shakedown in the food area was insufficient to establish an Eighth Amendment
violation); Pantusco v. Sorrell, 2011 WL 2148392, at *7-8 (D.N,J. May 31, 2011) (defendant did not violate Eighth
Amendment by groping plaintiff's genitals on a single occasion during a routine pat-search); Harris ». Zappan, 1999 WL
360203 (B.D. Pa. May 28, 1999) (allegations of one instance of sexually explicit comments combined with fondling and
rubbing on thighs and breasts not sufficiently serious for an Eighth Amendment violation); Jones v. Cukinary Manager I, 30
F. Supp.2d 491, 497 (E.D. Pa. 1998) (a single incident alleging that a guard pinned plaintiff and ground his pelvis against
plaintiff's buttocks while threatening sex not sufficiently serious).

buttocks during a routine body search similarly is not “objectively, sufficiently intolerable and cruel,
capable of causing harm,” such that it satisfies the objective element of an Eighth Amendment
claim.
As this Court has previously noted, “the standard for sexual assault is not zero tolerance for
all minor sexualized touching in prison, such that all such claims are objectively setious to a
constitutional degree.” Armstrong v. Diraimo, 2018 WL 6788524, at *4 (W.D. Pa. Dec. 28. 2018)
(citing Ricks, 891 F.3d at 477). This holding in no way condones or trivializes Anglikowsk1’s alleged
behavior. But such behavior does not amount to a cognizable constitutional violation. See Sarvey,
2019 WL 235322, at *13
Likewise, Anglikowski’s alleged comments to Colon after the May 18, 2018 body seatch also
fail to support a constitutional claim. “Verbal harassment, including lewd comments, sexual
propositioning, and the like, is not sufficient to satisfy the objective element of an Eighth
Amendment sexual harassment claim.” McCain v. Wilhams, 2018 WL 1211507, at *3 (W.D. Pa. Mar.
8, 2018) (citing Manon v. Garrison, 2012 WL 3542328 (M.D. Pa. Aug. 15, 2012)). Anglikowski’s
alleged comments, while distasteful, do not amount to a constitutional violation. See, eg., Ledcke v.
Pennsylvania Dept. of Corr., 655 Fed. Appx. 886, 888-89 (3d Cir. 2016) (detainee’s “claims of verbal
harassment fail{ed] as a matter of law”). Therefore, Colon’s sexual assault and harassment claim
against Anglikowski fails as a matter of law.

3. The Amended Complaint Fails to State a First Amendment Retaliation Claim
Against Anglikowsku.

Allegations in the Amended Complaint can be interpreted as an attempt to bring a claim of
First Amendment retaliation against Anglikowski. Construed as such, the claim fails as a matter of
law.

The Amended Complaint states that after Colon reported Anglikowski’s actions on the
PREA hotline, Anglikowski arrived at Colon’s work assignment and told “CO Doxy” that Colon
“keeps telling on me for f***ing with him,” and that “he shouldn’t be working the block because he
works in the education building.” ECF No. 38, 19(A)-(C). The Amended Complaint identifies
Anglikowski’s showing up at Colon’s work assignment and at other places in the institution,
including the prison yard, as acts of retaliation, and avers that these acts violated DOC policy
designed to protect inmates who file PREA complaints.’ Id., ] 22. The Amended Complaint alleges
no other incidents of retaliation by Anglikowski.
To establish a First Amendment retaliation claim, “an inmate must demonstrate: (1) that he
engaged in constitutionally protected conduct; (2) that an adverse action was taken against him by a
prison official; and (3) that there is a causal connection between the exercise of his constitutional
rights and the adverse action.” Mearin v. Swartz, 951 F. Supp.2d 776, 786 (W.D. Pa. 2013) (citing
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). The inmate may show retaliatory motive by either
“(1) an unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, ot (2) a pattern of antagonism coupled with timing that suggests a causal link.”
Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016). If retaliation is established, the burden then shifts
to the defendant prison officials to “establish that ‘they would have made the same decision absent
the protected conduct for reasons reasonably telated to a legitimate penological interest.” Id. (citing
Rauser v. Horn, 241 F.3d 330, 334 3d Cir. 2001)).

4 Colon relies upon 28 CFR. § 115.64(2)(1) as the source of Anglikowski’s obligation not to approach or engage him.
But that regulation does not appear to require a separation, but instead concerns the initial duties of first responders to
an incident of alleged sexual abuse: “Staff first responder duties—Upon learning of an allegation that an inmate was
sexually abused, the first security staff member to respond to the report shall be required to: (1) Separate the alleged
victim and abuser: (2) Preserve and protect any crime scene until appropriate steps can be taken to collect any evidence;
$06, 0.8. James v. LaCroix, 2017 WL 2602598, at *4 (W.D. La. Apr. 17, 2017), report and recommendation adopted, 2017
WL 2588570 (WD. La. June 14, 2017).
10

Although the filing of a PREA complaint is a protected activity, Colon must also allege
facts to support the “adverse action” element of his claim. An “adverse action” is one sufficient to
deter a person of ordinary firmness from exercising his constitutional rights. Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003); Huertas v. Sobina, 476 Fed. Appx. 981, 984 (3d Cir. 2012). This is an
objective inquiry. Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012). Colon alleges that after he filed
his PREA Complaint, Anglikowski “continued to question” him and “attempted to provoke” Colon
by “becoming argumentative over [Colon’s] work schedule,” ECF No. 38, {| 10, made “a specific
inquiry into [Colon’] work schedule,” id, 14, and showed up in locations where Colon was present,
in contravention of “PREA separation orders/policy,” and looked at him from a distance while
smiling. Id., J 30, 32. Colon does not allege that he lost his prison job as a result of filing the
PREA complaint. See, e.g. Baex v. Mooney, 2021 WL 816013, at *3 (W.D. Pa. Feb. 8, 2021), report and
recommendation adopted, 2021 WL 808726 (W.D. Pa. Mar. 3, 2021).
Anglikowski’s alleged actions after the filing of the PREA complaint do not constitute
“adverse actions” as that term is used in the context of a retaliation claim. While a “‘campaign of
harassment which though trivial in detail” may become “substantial in gross” and rise to an adverse
action, that is not what Colon has alleged in his Amended Complaint. See, ¢.g., Yow v. Robertson, 2021
WL 2400792, at *9 (M.D. Pa. June 11, 2021) (citing Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir.
2000). At best, the Amended Complaints alleges that Anglikowski verbally teased or harassed
Colon. Such conduct does not constitute an adverse action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights. See, ¢.g., Marten v. Hunt, 479 Fed. Appx. 436, 439

5 Colon does plead that he met with a prison employment counselor “in hopes of finding a solution that may help avoid
contact with Co. Anglikowski, including quitting his job and self-isolating in his assigned housing.” ECF No. 38, {] 27.
He also states that he “broke down in tears for fear of Anglikowski’s manipulation and possible falsification of facts that
could lead to his dismissal from work.” Id., ] 28. Nevertheless, Colon does not allege that Anglikowski caused him to
lose his work assignment. Further, although Colon alleges that he was placed in “a more restrictive housing condition in
the RHU that preceded a transfer to another SCI facility,” id., 168, he in no way attributes this placement to
Anglikowski.
11

(3d Cir. 2012) (affirming dismissal of First Amendment retaliation claim because verbal threats are
not sufficient to constitute an adverse action).
Thus, the Amended Complaint fails to allege facts to support a legally sufficient retaliation
claim against Anglikowski.
B. The Claims Against Remaining Defendants
1. The Amended Complaint Fails to State an Eighth Amendment Claim
Against DOC Secretary Wetzel.
The Defendants interpret Colon’s Amended Complaint as asserting an Eighth Amendment
deliberate indifference claim against Secretary Wetzel. This understanding likely comes from
Colon’s allegation that “Plaintiff fully and continually notified Secretary of Corrections John Wetzel
of the ongoing mismanagement of his subordinate staff (recorded) yet he too failed to protect my □□
Amendment and Fifth Amendment rights to due process and freedom from cruel and unusual
punisment (sic).” ECF No. 38, 486. The Amended Complaint also pleads that Wetzel violated the
Eighth Amendment by failing “not only to respond in kind to my many notifications to him (all
stamped); nor to remedy the problem, but to condone the ineffective response to my claims by his
deliberate indifference to the retaliation I suffered that led to a more restrictive housing condition in
the RHU that preceded a transfer to another SCI facility.” Id., 68. Finally, regarding Wetzel, the
Amended Complaint alleges:
Plaintiff avers that it is the statewide PREA coordinatot’s
interpretation of this federal mandate that falls short and fails to hold
accountable to the highest “best practice” standards, deserving of the
citizens of this Commonwealth. Further the lack of enforcement of
this “best practice” by appointed PREA compliance managers of the
Pennsylvania Dept. of Correction facilities allows this state to fall
behind in the quality of its corrections programs and is a direct
reflection on the efforts of the Secretary of Corrections, Mr. John
Wetzel.
Id, 968. The foregoing are the Amended Complaint’s only allegations against Defendant Wetzel.

12

Because Colon has failed to allege facts to support a constitutional violation on the part of
Anglikowski, any claim of supervisory liability or “failure to protect” claim against Wetzel based on
Anglikowski’s conduct likewise fails as a matter of law. See Martin v. City of Reading, 118 F. Supp. 3d
751, 773 (B.D. Pa. 2015) (“a plaintiff may prevail on a supervisory liability claim only if the plaintiff
can establish a causal link between the allegedly defective supervision and the constitutional violation”)
(emphasis supplied).
Further, even if Colon had alleged facts to support a constitutional claim against
Anglikowski, his claim against Wetzel would still fail. Constitutional tort lability is personal in
natute and can only follow personal involvement in the alleged wrongful conduct. Robinson v. City of
Pittsburgh, 120 F.3d 1286 (3d Cir. 1997); abrogated in part on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 3d
Cir.1988) (“A defendant in a civil rights action must have personal involvement in the alleged
wrongs” in order to be liable)). When proceeding under § 1983, as Colon is doing here, a plaintiff
cannot prevail unless he can demonstrate that the defendant played an “affirmative part” in the
complained-of misconduct. Igbal, 556 U.S. at 677 (“Absent vicarious liability, each Government
official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Okver v.
Beard, 358 Fed. Appx. 297, 300 (3d Cir. 2009). In the absence of specific allegations that a defendant
played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, eg,
Mearin v. Swartz, 951 F. Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule
12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain
defendants had played an affirmative part in the alleged Eighth Amendment violation).
These principles apply to supervisory officials such as Secretary Wetzel. See, e.g, Rode, 845
F.2d at 1207 (noting that liability for supervisory officials must still be based on “personal
involvement in the alleged wrongs”); Igbal, 556 U.S. at 676 (“Because vicatious liability is

13

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”). Although a
supervisor cannot encourage constitutional violations, “a supervising public official has [no]
affirmative constitutional duty to supervise and discipline so as to prevent violations of
constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 Gd Cir.
1986); Brown v. Grabowski, 922 F.2d 1097, 1120 3d Cir. 1990). Rather, a supetvisot-defendant may
only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with
deliberate indifference to the consequences, established and maintained a policy, practice or custom
which directly caused [the] constitutional harm; or (2) participated in violating the plaintiffs rights,
directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the
subordinate’s unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty, Juvenile Det. Cir., 372 F.3d
572, 586 (3d Cir. 2004).
Here, Colon’s claim against Secretary Wetzel is based solely on allegations that certain
actions (or inactions) of PREA compliance managers are a “direct reflection” on the Secretary and
Secretary Wetzel failed to respond to Colon’s letters; and a boilerplate assertion that Wetzel “failed
to protect my 8 Amendment and 5" Amendment rights.” ECF No. 38, {[f] 62, 68, and 86. None of
these allegations is sufficient to support an Eighth Amendment deliberate indifference claim against
Wetzel. First, Colon’s allegation that a subordinate’s actions are a “direct reflection” on the
Secretary, by definition, is not an allegation of personal involvement but rather a consequence of
another’s actions. Second, the allegation that Wetzel failed to respond to Colon’s correspondence
represents a failure to react to a subsequent complaint about misconduct, not personal involvement
in the misconduct itself. See, ¢,g., Alexander v. Fritch, 2010 WL 1257709, *15-16 (W.D. Pa. Mar. 26,
2010). Finally, Colon’s vague and conclusory averment that Defendant Wetzel violated his
constitutional rights does not sustain a claim because it is unsupported by factual allegations. See,

14

Iqbal, 556 U.S. at 676; Robinson, 120 F.3d at 1293-95, Colon’s Amended Complaint includes no
factual allegations suggesting that Secretary Wetzel’s participated in any constitutional violation or
his adoption of a policy or custom that was the moving force behind any constitutional violation. In
the absence of such allegations, Colon’s Amended Complaint fails to state a claim under § 1983
against Secretary Wetzel. See, eg. Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15,
2018) (allegation that supervisory defendant was “made awate of several issues of the plaintiff's and

.. failed to help him” is insufficient to state a claim for relief); Anson v. United States, 2020 WL
2425780, at *4 (W.D. Pa. Apr. 6, 2020) (dismissing supervisory claims against federal prison warden
for lack of personal involvement). Accordingly, Colon’s claims against Wetzel will be dismissed.
2. The Amended Complaint Fails to State a Claim Against Defendants
Hawkinberry and Capozza.
The Amended Complaint’s factual allegations concerning Defendants Hawkinberry and
Capozza are similarly sparce. For example, Colon claims that he notified Hawkinberry “of the
undeserved ISP status placed by staff, its removal, the H-Code reason change as she is appointed the
PREA Compliance mgt at SCI-Fayette on 4-30-19.” ECF No. 38, { 80. He claims she violated his
tights under the Eighth Amendment by failing to investigate the “sexually related motivation for my
custody level increase.” Id., J] 83. In other words, Colon claims that Hawkinberry violated his
Eighth Amendment rights by failing to investigate Colon’s ISP status, which was imposed by other
ptisoner staff members, not Hawkinberry. Construing this claim as one premised on Hawkinberty’s
supervisory role over other prison staff members, it must be dismissed. See, ¢.g., Pearson v. Sweeney,
2021 WL 615072, *2 (D.N,J. Feb. 16, 2021) (construing failure to investigate claim as premised on
defendant’s supervisory role).
As noted, supervisory liability under 42 U.S.C. § 1983 must be supported by factual
allegations that the supervisor “established and maintained a policy, practice or custom which
directly caused [the] constitutional harm,” or the supervisor “participated in violating plaintiff's
15

rights, directed others to violate them, or, as the person|s] in charge, had knowledge of and
acquiesced in [their] subordinates’ violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 0.5 3d
Cir. 2010);.A.M. ex rel J.MLK. v. Luzerne Cnty. Juvenile Det. Ctr, 372 F.3d 572, 586 3d Cir. 2004)
(second alteration in original). Here, Colon has not alleged the existence of a policy or custom
maintained by Hawkinberry that caused him to suffer a constitutional injury. Colon has not even
alleged facts to support that Hawkinberry participated or acquiesced in the misclassification of his
custody level. His Amended Complaint fails to state a constitutional claim against her.
The same is true for Colon’s allegations against Defendant Capozza. The Amended
Complaint alleges only that “after (stamped) notification, Warden Capozza failed to rectify or even
investigate his subordinate’s behavior.” ECF No. 38, {| 84. Here, Colon explicitly bases Capozza’s
liability on his role as a supervisor and without any allegations of his direct involvement in actionable
conduct. “An allegation of a failure to investigate, without another recognizable constitutional right,
is not sufficient to sustain a section 1983 claim.” Graw v. Fantasky, 68 Fed. Appx. 378, 383 (3d Cir.
2003) (quotations omitted). Accordingly, Colon cannot state a claim against Capozza based on his
failure to investigate after Colon complained. See, ¢.g., Gilmore v. Lamaz, 2020 WL 703655, *6 (E.D.
Pa. Feb. 11, 2020).
3. The Amended Complaint Fails to State a Claim Against Defendant Nagy
According to the Amended Complaint, Defendant Nagy is an intake counselor for B-Block
at SCI-Fayette. ECF No. 38, { 69. Colon alleges that Nagy acted with deliberate indifference when
she removed his “low celling status” and “removed my work privilege and implaced (sic) an
H-code” without first conducting a “proper investigation.” Id. These allegations fail to state a claim
against Nagy.
First, as to Colon’s claim that Nagy gave him a less than desirable housing code, this Court
recently explained:
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It is well-established that there is no constitutional right for an inmate
to be celled in a particular place, or under particular circumstances.
“(Bly virtue of theit convictions, inmates must expect significant
restrictions, inherent in prison life, on rights and privileges ftee
citizens take for granted.” McKune v. Lile, 536 U.S. 24, 39-40 (2002);
Podhorn v. Grondolsky, 350 Fed. Appx. 618, 620 (3d Cir. 2009)
(“[P]risoners have no constitutional right to be assigned to a
patticular institution, facility or rehabilitative program.”’). Rather,
“the prison has a penological interest in the housing placement of its
inmates and ‘i]t is well settled that the decision where to house
inmates is at the core of prison administrators’ expertise.’ ’”)
Thomaston v. Meyer, 519 Fed. Appx. 118, 119 (d Cir. 2013) (quoting
McKune, 536 U.S. at 39).
Washington v. Barnhart, et al, 2021 WL 2342924, at *12 (W.D. Pa. May 14, 2021), report and
recommendation adopted sub nom. Washington v. Barnhart, 2021 WL 2339281 (WD. Pa. June 8, 2021).°
Nor does Colon possess any constitutional right to a specific education or work program
while incarcerated. See, e.g, Garcia v. Kimmel, 2009 WL 2950628, *12 (W.D. Pa. Sept. 9, 2009) (citing
Savage v. Kerestes, 2009 WL 1585807, *2 (M.D. Pa. June 3, 2009) (“The right to earn wages while
incarcerated is a privilege, not a constitutionally protected right.”). The same is true for Nagy’s
placing a restrictive “H-Code” on Colon. See Padilla v. Beard, et al., 2006 WL 1410079, *7 (M.D. Pa.
May 18, 2006) (dismissing claim that placement of an “H-Code” violated plaintiffs constitutional
tights because there is no constitutional right to a prison job). Thus, Colon’s claim that Nagy
violated his constitutional rights by changing his custody level and assigning him an “H-Code” must
be dismissed.
Finally, the Amended Complaint includes no allegation that Nagy’s removal of Colon’s “low
celling status,” loss of his “work privilege,” or placement on “H-code” status was retaliatory based
on the filing of his PREA complaint or any protected conduct. Even if such a claim had been
raised, it would fail because the facts alleged do not support a causal connection between any protect

6 Moreover, Pennsylvania law clearly states that an inmate does not have a right to be housed in a particular facility. See
37 Pa. Code Ann. § 93.11(a).
17

conduct and Nagy’s actions. No unusually suggestive temporal proximity between protected activity
and Nagy’s actions ts alleged; no pattern of antagonism coupled with timing exists to suggests a
causal link. See Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).
4, The Amended Complaint Fails to State a Claim Against Defendants Riddle,
Knepper, and Erickson.
Like the allegations against Nagy, the Amended Complaint alleges that Defendant Riddle
(Nagy’s supervisory on B-Block) approved “trumped up accusations” that resulted in the change in
Colon’s ISP status. ECF No. 38, 972. Colon further alleges that, when he submitted a “Request to
Staff,” asking Riddle about these changes, Riddle responded that the change in his status was
apptoved by “a general consensus,” which included the views of Defendants Erickson and Knepper.
Id., 474. As with Nagy, the Amended Complaint alleges that Riddle, Erickson, and Knepper violated
his constitutional rights by changing his custody level and assigning him an “H-Code,” which
rendered him ineligible for a prison job. Id, $77. And, as against Nagy, the allegations also fail to
state an Eighth Amendment deliberate indifference claim against Riddle, Erickson, and Knepper.
As noted above, Colon possesses no constitutional right to a specific education or work program
while incarcerated. See, e.g, Garcia, 2009 WL 2950628, at *12 (citation omitted). The same holds
true for these Defendants’ actions relating to the placement of a restrictive “H-Code” on Colon. See
Padilla, 2006 WL 1410079, at *7 (dismissing claim that placement of an “H-Code” violated plaintiffs
constitutional rights because there is no constitutional right to a prison job). Therefore, the Court
will also dismiss these claims.

5. The Amended Complaint Fails to State a Claim Against Defendant Clark.
Colon’s claim against Defendant Clark, the Superintendent at SCI-Albion, is based on
allegations that he
failed to insure that the facility of Albion SCI had a
properly trained candidate to assume the
tole/responsibility of PREA Compliance Mgr. and
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also failed to hold that appointed (sic) to the highest
“best practice” standards afforded the inmates,
employees, contractors, and volunteers by the Pa.
State coordination mandate of meeting the
NATIONAL STANDARD set by the FEDERAL
ACT.
ECF No. 38, □ 64. He faults Clark for “fail[ing] to hold those under his supervision to adhere to the
higher ‘best practice’ standards, thus creating a culture of deliberate indifference.” Id, 67. These

allegations represent yet another factually unsupported supervisory liability claim.
The Amended Complaint does not allege any facts to support an inference that Warden
Clark was evet made aware of Colon’s interaction with Anglikowski or had contemporaneous
knowledge of his alleged misconduct. See Webrit v. Allegheny Cty., 2017 WL 1233619, at *8 (W.D. Pa.
Apt. 4, 2017) (citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). The Amended Complaint
does not support that Clark established a policy, custom, or practice that caused constitutional harm
to Colon or that Clark petsonally participated in any constitutional violation. See Barkes v. First Corr.
Med., Inc., 766 F.3d 307, 316-19 (3d Cir. 2017), overturned on other grounds, Taylor v. Barkes, 135 S. Ct.
2042 (2015). Given these deficiencies, and the absence of any viable constitutional claim against any
subordinate of Superintendent Clark, the claim against him must be dismissed.
6. The Amended Complaint Fails to State a Claim Against Defendants Bashor
and Radziewicz.
The Amended Complaint lists several ways that Defendant Bashor “failed to fulfill her
responsibilities.” ECF No. 38, | 48. Specifically, Colon claims Bashor failed to prevent
Anglikowski’s “ongoing sexual harassment and retaliation that followed.” Id. Further, Bashot ts
alleged not to have informed the Deputy Superintendent, who had an obligation to meet with
Anglikowski; failed to “continually monitor” Anglikowski, ignored regulations that required Bashor
to monitor him for ninety-days; failed to order mental health services for Colon; failed to ensure the
proper collection of evidence; and failed to recognize that Colon’s PREA complaint “contributed to

19

this abuse/hatassment by enabling the same.” See {J 49-54. Finally, the Amended Complaint
alleges that Bashor failed “to perform as designated PREA Compliance Mgr.” by accepting the
“findings and assumptions” that resulted from the Pennsylvania State Police’s determination that
there was a “lack of evidence” to support his PREA complaint. Id., 55. All of the foregoing
allegations are based on Bashor’s failure to respond properly to Anglikowski’s alleged misconduct.
Because the Court has determined that Anglikowski’s alleged conduct does not rise to the level of a
constitutional violation, Colon’s claims against Bashor based her failure to supervise or train
Anglikowski or failure to protect Colon also fail.
The claims against State PREA coordinator David Radziewicz will also dismissed. Briefly,
Colon alleges that Radziewicz failed to “fulfill his responsibility to investigate the less than best
ptactice behavior of both SCI Albion and SCI Fayette compliance managers Lt. Bashor and Debra
Hawkenberry.” ECF No. 38, § 85. As explained, liability cannot be imposed under § 1983 by
respondeat superior. Here, however, Colon faults Radziewicz for failing to investigate the actions of
his subordinates. In essence, this a “failure to supervise” claim.
“Failure to’ claims” such as “failure to train, failure to discipline, or ... failure to supervise,
ate considered to be a subcategory of policy ot practice liability.” Barkes ». First Correctional Medical,
766 F.3d 307, 317 (d Cir. 2014), reversed on other grounds by Taylor v. Barkes, 575 U.S. 822, 135 S.
Ct. 2042, 192 L.Ed.2d 78 (2015). As described in Barkes, supra., the existence of a policy or practice
is insufficient to plead supervisory liability absent allegations that the official was aware that the
policy or practice created an unreasonable risk of a constitutional injury, and the official was
indifferent to that tisk. The Amended Complaint makes no such allegations. And further, Colon
does not identify a particular policy beyond “best practices” that Radziewicz failed to follow. To the
extend this claim implicates the DOC’s PREA policies, Colon does not allege that Radziewicz ever
reviewed Colon’s PREA complaint. See, ¢.2., Skelton v. New Jersey Dep’t of Corr., 2020 WL 6376652, at

20

*8 (D.NJ. Oct. 30, 2020). Instead, all that he has alleged is that this Defendant failed to investigate
what Colon believes is the subpar work performance of Defendants Bashor and Hawkenberry,
including their failure to follow “best practices,” which he fails to delineate. Thus, Colon has failed
to plead a claim of supervisory liability against Radziewicz.
7. The Amended Complaint Fails to State a Conspiracy Claim Against Any
Defendant.
Paragtaph 88 of the Amended Complaint appears to raise a claim of conspiracy against all
Defendants (“Anglikowski, et al. acted in accord with one objective . ..”). ECF No. 38, J] 88. Colon
contends that the Defendants conspired to “maintain this plaintiffs condition and status.” Id. This
claim will be dismissed.
“To demonstrate the existence of a conspitacy under § 1983, ‘a plaintiff must show that two
ot more conspirators reached an agreement to deprive him or her of a constitutional right under
color of law.”” LeBlanc v. Stedman, 483 Fed. Appx. 666, 670 (3d Cit.2012) (quoting Parkway Garage,
Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993), abrogated on other grounds by United Artists Theatre
Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003)). “It is not enough that the end result of
the parties’ independent conduct caused the plaintiff harm or even that the alleged perpetrators of
the harm acted in conscious parallelism.” Perez v. Gamez, 2013 WL 6073877, at *9 (M.D. Pa. Nov.18,
2013). Rather, Colon must show that the Defendants acted in concert with the specific intent to
violate his rights. Davis v. Fox, 2013 WL 5656125, at *5 (M.D. Pa. Oct.15, 2013). Further, a
“conspitacy claim only atises when there has been an actual deprivation of a right.” Perano v. Tup. of
Tilden, 423 Fed. Appx. 234, 239 (3d Cir. 2011).
Here, Colon has not alleged facts to support the “agreement” element of a conspiracy claim.
“To properly plead such an agreement, ‘a bare assertion of conspiracy will not suffice.” Great
Western Mining ¢» Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Be//
Allantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)). Colon offers
21

only vague allegations the Defendants acted “in accord” to deprive him of his rights. Because Colon
has not alleged facts to support a reasonable inference that the Defendants agreed to deprive him of
his constitutional rights, his conspiracy claim must be dismissed.
IV. Further Amendment.
Having determined that the Amended Complaint fails to state a claim against any defendant,
the Court must now determine whether further amendment of that pleading would be futile. See
Hockenberry v. SCI Cambridge Springs/ Pennsylvania Dep't of Corr., 2019 WL 2270345, at *3 (W.D. Pa.
May 28, 2019) (stating “[t]he U.S. Court of Appeals for Third Circuit has instructed that if a civil
rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a
curative amendment, unless an amendment would be inequitable or futile”). At the outset, the
Court notes that Colon has already been given an opportunity to amend his pleading following the
granting of the Defendants’ Motion for A More Definite Statement. ECF No. 32. See also Reed v.
Chambersburg Area Sch. Dist. Found., 2014 WL 1028405, at *15 (M.D. Pa. Mat. 17, 2014) (where a
plaintiff has already once been granted leave to amend, and has been given ample time to assemble
the first amended complaint, but has again failed to sufficiently state a claim, a district court need
not grant Plaintiff subsequent leave to amend). The Court further notes that its Opinion and Order
granting Defendants’ Motion for A More Definite Statement pointed out the deficiencies in Colon’s
original Complaint and gave him instructions regarding what he needed to do to cute those
deficiencies. ECF No. 32. Those instructions included the following:
Plaintiff must provide a description of how each defendant violated
his rights. Plaintiff must show personal involvement in the alleged
wrongdoing by each defendant. See Rode v. Dellarciprete, 845 F.2d
1195, 1207 Gd Cir. 1988) (“A defendant in a civil rights action must
have personal involvement in the alleged wrongs”). Wherever
possible, this description should include references to relevant dates,
times, and locations. It should explain to the Court what happened
by specifically describing each defendant’s behavior or action and
how that behavior ot action — ot lack of action — resulted in the
alleged violations. ... Plaintiff should be specific about the particulars
22

of the event, each defendant’s misconduct, and how such misconduct
resulted in a violation or denial of the civil nght at issue.
Td.
Based on the nature of the deficiencies in the Amended Complaint, the Court finds that any
further attempt to amend as to any defendant would be futile. In his original Complaint and his
Amended Complaint, Colon described in detail the conduct upon which he based his claims against
Anglikowski. As discussed above, caselaw makes clear that this alleged conduct does not constitute
a violation of the Eighth Amendment or the First Amendment. Further amendment cannot alter
this outcome. To the extent Colon is pursuing theories of supervisory liability and a “failure to
protect” claim against the other defendants, the absence of a viable constitutional claim against
Anglikowski rendets amendment as to the other defendants futile. Further, the roles of the other
defendants, as identified by Colon, do not support a viable claim against them. Finally, the facts
alleged in the Amended Complaint establish the absence of any reasonable basis for a retaliation or
any other claim against any of the defendants. Therefore, amendment as to these claims is also
futile. Accordingly, this action will be dismissed, with prejudice.
A separate Order follows this Memorandum.

Entered this 8° day of July, 2021. Ka A Z 4-7
Richard A. Lanzillo
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416772. Public record. Not legal advice.