MCINTOSH v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEENAN MCINTOSH, )

)

Plaintiff, )

)

vs. )

) Civ. A. No. 20-1957

)

JOHN E. WETZEL, et al, )

)

Defendants. )

)

MEMORANDUM OPINION1

Plaintiff Keenan McIntosh (“McIntosh”), who is proceeding pro se, is a state prisoner who

at all relevant times was housed either at State Correctional Institution (“SCI”) at Houtzdale or

SCI-Pine Grove.2 McIntosh brings claims under the First, Eighth, and Fourteenth Amendments

and Pennsylvania state law against former Secretary of Corrections John E. Wetzel,

Superintendent Barry Smith, Deputy Superintendent Close, Deputy Superintendent B.J. Salamon,

unidentified Certified Emergency Response Team (“CERT”) members, “Nurse,” Captain Lewis,

Captain Acey, Lt. Detwiler, Lt. H. Veihdoffer, Sgt. Rieg, Correctional Officer (“C.O.”) Miller,

C.O. Stivison, C.O. Hershberger, Superintendent Lee J. Estock, C.O. Rietscha, Librarian B.

Weaver, and Security Captain B. Sheeder (collectively, the “Corrections Defendants”) in their

official and individual capacities.

Pending before the Court is a partial motion to dismiss filed by the Corrections Defendants.

(ECF No. 42.) For the reasons below, the motion will be granted in part and denied in part.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented

to have a United States Magistrate Judge conduct proceedings in this case. Thus, the undersigned

has the authority to decide dispositive motions and enter final judgment.

2 McIntosh is currently confined at SCI-Phoenix.

I. Relevant Procedural History

After his motion to proceed in forma pauperis was granted, McIntosh’s initial complaint

was docketed on January 8, 2021. (ECF No. 7.) The Corrections Defendants moved to dismiss,

and McIntosh responded by filing an Amended Complaint. (ECF Nos. 19; 27.) The Corrections

Defendants then filed a motion for a more definite statement, which this Court granted and ordered

McIntosh to file a second amended complaint. (ECF Nos. 29; 34.) McIntosh did so on August

19, 2021. (ECF No. 34.)

The Corrections Defendants again moved to dismiss. (ECF No. 35.) McIntosh filed a

response in opposition, which included substantial additional facts. (ECF No. 41.) Consequently,

the Court denied the motion to dismiss without prejudice. (Id.) It also notified the parties that it

would “construe Plaintiff’s response as a supplement to his Second Amended Complaint,” and

ordered the Corrections Defendants to plead or otherwise respond by January 22, 2022. (Id.) The

Corrections Defendants subsequently filed a motion for partial dismissal pursuant to Fed. R. Civ.

P. 12(b)(6). (ECF No. 42.) McIntosh having filed a response in opposition (ECF No. 45), the

motion is ripe for disposition.

McIntosh has expressly asserted the following claims: (1) First Amendment retaliation;

(2) excessive force, failure to protect, and conditions of confinement under the Eighth and

Fourteenth Amendments; (3) negligence; (4) intentional infliction of emotional distress (“IIED”);

and (5) breach of contract.

II. Relevant Factual Background

A. Events at SCI-Houtzdale

On January 8, 2019, Lt. Veihdoffer, Nurse, and unidentified members of the CERT team

informed McIntosh that he was being transferred from the mental health unit to the restricted

housing unit (“RHU”) at SCI-Houtzdale. (ECF No. 34, Negligence ¶ 1.) When McIntosh refused

to go, Lt. Veihdoffer and one of the CERT team members sprayed McIntosh with mace as the

remaining CERT team members and Nurse stood by and watched. (Id.) Despite not being able to

breathe or see and the fact that these parties knew that he had asthma, McIntosh was then

handcuffed and escorted to the RHU on the C block. (Id.)

Upon arrival at his new cell, someone shouted, “Put him in that fucked up cell” and “Get

that mattress out of there” before he was ordered to lie down on the bed’s metal frame. (Id.) He

was then ordered to open his eyes so that Nurse could rinse them. (Id.) Instead, someone sprayed

him with mace a second time. (Id.) Everyone then left. (Id.) The cell in which McIntosh was

placed was an observation cell with a camera both inside the cell and outside the door. (Id.)

McIntosh was housed in this cell for the next seventy-two days (until March 19, 2019).

(Id. ¶ 2.) During this period, because his eyes were never rinsed, he endured reoccurring asthma

attacks and sustained permanent eye damage. (ECF No. 34, Failure to Protect ¶¶ 1, 2.) The cell

in which McIntosh was placed had a window with a “ten[-]inch spiderweb shape[d] crack.” (ECF

No. 34, Negligence ¶ 1.) Because the window’s crack was so large and much of the time he was

housed there was in the middle of winter, ice accumulated in his cell. (Id. ¶ 2.) Although he

complained to C.O. Hershberger and C.O. Miller during routine searches of his cell, they joked

that his cell looked like “Siberia” instead of helping him. (Id.)

During the first two weeks of his stay, a light was left on outside of his cell and he was

denied a mattress, bedding, clothing, footwear, toilet paper, showers, a functioning toilet, cleaning

supplies, and trips to the yard. (ECF No. 34, Negligence ¶ 2, IIED ¶ 2.) As a result, he was forced

to sleep on a freezing metal bedframe, the concrete floor, or on the metal toilet that was

overflowing with urine and feces due to the water being cut off in his cell. (Id.) Throughout this

seventy-two-day period, he sought help from Deputy Superintendent Salamon, Captain Lewis,

Sgt. Rieg, Lt. Detwiler, C.O. Stivison, and Superintendent Barry Smith. (Id.; ECF No. 38(6).)

Although he was told he would be moved to another cell once he was no longer on mattress and

toilet paper restriction, it took seventy-two days for that occur. (Id.)

Because no action was being taken, McIntosh availed himself of the grievance system. He

filed Grievance No. 792494 on March 19, 2019, in which he requested relief in the form of pictures

of the damaged window, any documents related to the damages in his cell, and all camera footage

while he was a resident there, i.e., from January 8, 2019 until March 19, 2019. (ECF No. 34,

Negligence ¶ 2.) The grievance coordinator denied the grievance, and Superintendent Barry Smith,

who was named in the grievance, upheld the decision. (Id.)

McIntosh then filed a second grievance, Grievance No. 795404, on April 21, 2019, asking

for video footage and documents recording the damage to his cell. (Id. ¶ 3.) Captain Acey

performed the Initial Review, and Superintendent Barry Smith upheld the response at the Facility

Manager level. (Id.) McIntosh believes that Captain Acey deliberately failed to preserve video

footage McIntosh needs to prove his case and Superintendent Barry Smith ratified his actions.

(Id.) Because he was never provided with the video footage, McIntosh believes Superintendent

Barry Smith engaged in a cover-up scheme with respect to both of his grievances at SCI-Houtzdale.

(ECF No. 38 ¶ (b)(3).)

B. Events at SCI-Pine Grove

McIntosh was then transferred from SCI-Houtzdale to SCI-Pine Grove. (ECF No. 34,

Negligence ¶ 4.) C.O. Stivison was transferred to SCI-Pine Grove around the same time. (Id.) On

October 27, 2020, while McIntosh was housed in the RHU, C.O. Stivison informed him that there

was a “target on his back,” that C.O. Stivison “knew who he was [be]cause of what he [had done]

to his brother[,] and that he was going to continue to make [McIntosh’s] life a living hell.” (Id.)

McIntosh has never met C.O. Stivison’s brother and suspects C.O. Stivison may have been

referring to himself. (Id.)

Following this event, McIntosh filed Grievance No. 898642 on November 10, 2020,

relating to C.O. Stivison’s threat of retaliation. (ECF No. 34, Negligence ¶ 5.) Security Captain

Sheeder and Superintendent Estock responded. (Id.) McIntosh alleges that they improperly denied

him video footage from the dates of October 27, 2020 through November 9, 2020, as part of a

cover-up scheme. (Id.) Specifically, Security Captain Sheeder denied the request on the ground

that C.O. Stivison never worked in the RHU and Superintendent Estock responded similarly to

cover-up the retaliation. (Id.)

On October 22, 2020, McIntosh sent “transcripts” to the library to be copied so he could

prepare an appeal in his criminal case. (Id. ¶ 6.) Five days later, Librarian Weaver and

C.O. Rietscha delivered his legal documents to another cell. (Id.) This occurred despite every

prisoner’s name being listed outside each cell and McIntosh’s actions of repeatedly calling out to

Librarian Weaver and C.O. Rietscha from his cell, inquiring about the whereabouts of his copies,

and specifically requesting that they “make sure” they were delivering the copies to the right cell.

(Id.) The prisoner who erroneously received McIntosh’s documents notified a corrections officer,

and McIntosh received his documents one hour later. (Id.) When McIntosh received them, none

of the pages had been copied and some of the pages of the originals were missing. (Id.) Because

his transcripts were not copied, McIntosh contends his motion for leave to file an amended appeal

to the Supreme Court of Pennsylvania was denied. (Id.) Thereafter, McIntosh filed Grievance

No. 896471. (Id.)

McIntosh contends he now suffers from reoccurring asthma attacks, permanent damage to

his left eye and feet, back pain, arthritis, inflammatory damage to his feet, difficulty sleeping, and

psychological distress in the form of panic attacks, anxiety, depression, trouble sleeping, and an

intense fear of seeking psychological treatment. (ECF No. 34, Injury ¶ 1.) He further suggests

that the loss of his legal documents was an invasion of privacy, caused him to lose his criminal

appeal which in turn resulted in a loss of liberty, and created further psychological distress. (Id.

¶ 7.) He seeks only monetary relief for these alleged damages. (ECF No. 34, Prayer for Relief.)

III. Legal Standard

A complaint requires only “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Federal Rule of Civil Procedure

12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the

court must “accept all factual allegations as true, construe the complaint in the light most favorable

to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff

may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting

Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2009)). However, conclusory allegations

“are not entitled to the assumption of truth.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d

Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). “In other words,” the Third

Circuit Court of Appeals has explained, the court “‘must accept all of the complaint’s well-pleaded

facts as true, but may disregard any legal conclusions.’” Id. at 131 (quoting Fowler, 578 F.3d at

210-11). The court must “also disregard ‘naked assertions devoid of further factual enhancement’

and ‘threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements.’” Id. (quoting Iqbal, 556 U.S. at 678).

To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

at 678. “Though ‘detailed factual allegations’ are not required, a complaint must do more than

simply provide ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action.’” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly,

550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim has

substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014).

To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three

steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away

those allegations that are no more than conclusions and thus not entitled to the assumption of truth;

(3) look for well-pled factual allegations, assume their veracity, and then determine whether they

plausibly give rise to an entitlement to relief. See, e.g., Burtch v. Milberg Factors, Inc., 662 F.3d

212, 221 (3d Cir. 2011). The court’s plausibility determination is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556

U.S. at 679.

“A document filed pro se is to be liberally construed . . . and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation marks

omitted); see also Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to

liberally construe a pro se litigant’s pleadings is well-established”). Additionally, the court must

“apply the relevant legal principle even when the complaint has failed to name it.” Mala v. Crown

Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Nevertheless, “pro se litigants still must allege

sufficient facts in their complaints to support a claim[,]” and “they cannot flout procedural rules—

they must abide by the same rules that apply to all other litigants.” Id. at 245.

IV. Discussion

A. Claims against the Corrections Defendants in their Official Capacities

The Corrections Defendants argue that the Eleventh Amendment bars all claims against

the Corrections Defendants in their official capacities. (ECF No. 43 at 16.) McIntosh responds

that even if this is the case, he nonetheless has stated viable claims against them in their individual

capacities. (ECF No. 45 ¶ 2.)

“[A] suit against a state official in his or her official capacity is not a suit against the official

but rather is a suit against the official’s office. As such, it is no different from a suit against the

State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted).

In this case, the Corrections Defendants were employees of the DOC. Therefore, a suit against

them in their official capacities is, in reality, a suit against the DOC, and it is no different from a

suit against the Commonwealth of Pennsylvania.

The Eleventh Amendment provides states with immunity not only from suits brought by

citizens of other states, but also from suits brought by their own citizens. Hans v. La., 134 U.S. 1,

12-14 (1890). However, a state’s Eleventh Amendment protection from federal suits is not

absolute. Congress may authorize such a suit under its power to enforce the Fourteenth

Amendment, College Savings Bank v. Fl. Prepaid Postsecondary Education Expense Board, 527

U.S. 666, 670 (1999), thereby abrogating a state’s sovereign immunity, but only “when it both

unequivocally intends to do so and ‘acts pursuant to a valid grant of constitutional authority,’”

Board of Trustees of the University of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (quoting Kimel v.

Bd. of Regents, 528 U.S. 62, 73 (2000)). A state may also waive its sovereign immunity by

consenting to suit. Coll. Sav. Bank, 527 U.S. at 670 (citing Clark v. Barnard, 108 U.S. 436, 447-

48 (1883)). Additionally, a person seeking purely prospective relief against state officials for

ongoing violations of federal law may sue under the “legal fiction” of Ex parte Young, 209 U.S.

123, 159-60 (1908), despite the text of the Eleventh Amendment. Alden v. Maine, 527 U.S. 706,

757 (1999).

By statute, the Commonwealth of Pennsylvania has specifically withheld its consent to be

sued. 42 Pa. Stat. and Con. Stat. Ann. § 8521(b) (“Nothing contained in this subchapter shall be

construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by

the Eleventh Amendment to the Constitution of the United States”); see also Laskaris v.

Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Additionally, Congress has not expressly abrogated

Pennsylvania’s Eleventh Amendment immunity from civil rights suits for damages. See, e.g., Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (“Section 1983 provides a federal forum to

remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants

who seek a remedy against a State for alleged deprivations of civil liberties”); Quern v. Jordan,

440 U.S. 332, 341 (1979); Boykin v. Bloomsburg Univ. of Pa., 893 F. Supp. 378, 394 (M.D. Pa.

1995) (holding that States’ immunity has not been abrogated for actions brought under §§ 1981,

1983, 1985, and 1986), aff’d, 91 F.3d 122 (3d Cir. 1996).

For these reasons, McIntosh is barred from seeking money damages against the Corrections

Defendants in their official capacities. Because he does not plead any claim for prospective relief

arising out of any ongoing violation of federal law (ECF No. 34, Jurisdiction & Venue ¶ 1), he

also has not asserted a viable claim for prospective relief against the Corrections Defendants in

their official capacities. As such, the Court will grant the motion to dismiss relative to McIntosh’s

claims against the Corrections Defendants in their official capacities.

B. Claims against the CERT Team Members

The Corrections Defendants argue that the CERT team is not a proper defendant and should

be dismissed because it is an agent of the state and as such, enjoys Eleventh Amendment immunity.

(ECF No. 43 at 7-8.) McIntosh responds that he “listed CERT Team Members as a defendant in

order to act as a placeholder until these individuals are exposed during the discovery phase.” (ECF

No. 45 ¶ (f)(1).)

In his Second Amended Complaint and Supplement, McIntosh names “Certified

Emergency Response Team members” as a party. (ECF No. 34, Parties ¶ 15.) While it is true

“the CERT team, sued in its official capacity, is entitled to the same Eleventh Amendment

immunity that the Commonwealth enjoys,” Gonzalez v. Harlow, No. CA 12-309, 2014 WL

688765, at *3 (W.D. Pa. Feb. 21, 2014), McIntosh has made it clear that he intended to use this

name as a placeholder until he learns the names of the bad actors in discovery. Given this, the

Court will construe the claims against the “Certified Emergency Response Team Members” in the

Second Amended Complaint and Supplement to be claims against “John and Jane Doe members

of the CERT Team” and deny the Corrections Defendants’ motion to dismiss as to them.

C. First Amendment Retaliation Claims against Librarian Weaver, C.O. Rietscha, and C.O.

Stivison

The Corrections Defendants also move to dismiss McIntosh’s First Amendment retaliation

claims against Librarian Weaver, C.O. Rietscha, and C.O. Stivison. (ECF No. 43 at 9-10.)

Specifically, they argue that McIntosh has alleged nothing more than bald, unsupported

accusations that it was Librarian Weaver and C.O. Rietscha’s conscious objective to sabotage

McIntosh’s criminal case and retaliate against him for seeking legal redress against a coworker.

(Id.) Additionally, with respect to C.O. Stivison, they assert McIntosh failed to allege an adverse

action sufficient to deter him from exercising his constitutional rights because verbal harassment,

without more, does not rise to the level of an adverse action. (Id.)

McIntosh responds that Librarian Weaver and C.O. Rietscha were aware that he had filed

a grievance against C.O. Stivison and purposefully gave his legal documents to another prisoner,

which ultimately resulted in him losing his appeal. (ECF No. 45(3)(h).) Concerning his claims

against C.O. Stivison, McIntosh responds that his claims stem from C.O. Stivison’s threat related

to filing a grievance. (ECF No. 45 ¶ (3)(g)(2).)

To state a claim for retaliation, a prisoner must allege that: (1) he was engaged in

constitutionally protected conduct; (2) the defendant at issue took an adverse action against him;

and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision

to take that adverse action. See, e.g., Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser

v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). An “adverse action” is one that would “deter a person

of ordinary firmness from exercising his First Amendment rights.” Allah v. Seiverling, 229 F.3d

220, 225 (3d Cir. 2000) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)).

Verbal threats alone do not constitute an adverse action for purposes of establishing a prima

facie retaliation claim. See, e.g., Chruby v. Kowaleski, 534 F. App’x 156, 161 (3d Cir. 2013). See

also Dunbar v. Barone, 487 F. App’x 721, 723 (3d Cir. 2012) (finding no adverse action based on

allegations that defendants called plaintiff a “marked man” and threatened his “days were

numbered”); Mack v. Clark, Civ. A. No. 1:21-CV-0004, 2022 WL 2669510, at *11 (W.D. Pa. July

11, 2022) (“An unexecuted threat to file a misconduct report is not an ‘adverse action’ because it

is not sufficiently severe to deter a reasonable person from pursuing his rights”).

Accordingly, in the absence of any other allegations, C.O. Stivison’s threat simply does

not rise to the level of an adverse action and McIntosh’s First Amendment retaliation claim against

him must be dismissed.

McIntosh has plausibly pleaded a First Amendment retaliation claim against Librarian

Weaver and C.O. Rietscha, however.3 He has alleged adverse action because having one’s

property discarded would discourage a person of ordinary firmness from engaging in further

constitutionally protected activity. See Jackson v. Carter, 813 F. App’x 820, 825 (3d Cir. 2020).

He further pleaded that this was done in order to stop him from pursuing legal action against

C.O. Stivison. Therefore, the motion with respect to Librarian Weaver and C.O. Rietscha will be

denied.

D. IIED Claims

The Corrections Defendants argue that McIntosh’s allegations are too vague to support a

claim for IIED because he has not alleged a physical harm that resulted from extreme and

outrageous conduct. (ECF No. 43 at 12-13.) McIntosh summarily responds that the Corrections

Defendants’ motion with respect to these claims is “frivolous.” (ECF No. 45 ¶ 5.)

To state a claim for IIED, a plaintiff must allege: “(1) extreme and outrageous conduct;

(2) intentional or reckless conduct; (3) conduct caused the emotional distress; and (4) severe

emotional distress.” See, e.g., Smith v. Wa. Area Humane Soc’y, No. 2:19-cv-1672, 2020 WL

6364762, *8 (W.D. Pa. Oct. 29, 2020) (citation omitted). Importantly, the “[p]laintiff must allege

physical manifestations of the emotional distress.” Id. (emphasis added) (citing Reeves v.

Middletown Athletic Ass’n, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004)). Thus, “a plaintiff ‘must

3 To the extent McIntosh may be raising an access to courts claim, this claim would also be without

merit because there are no facts suggesting that he “lost a chance to pursue a ‘nonfrivolous’ or

‘arguable’” legal claim or lost a remedy. See Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).

suffer some type of resulting physical harm due to the defendant’s outrageous conduct.’”

Richardson v. Barbour, No. 2:18-cv-1758, 2020 WL 4815829, at *14 (E.D. Pa. Aug. 19, 2020)

(quoting Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010)). See Dobson v. Milton Hershey

Sch., 356 F. Supp.3d 428, 439-40 (M.D. Pa. 2018) (holding plaintiff’s bald allegations of “physical

harm,” “physical manifestations of emotional distress,” and “conscious pain and suffering” were

not enough, without more, to set forth a plausible IIED claim). See also Hoy v. Angelone, 720

A.2d 745, 755 (Pa. 1998) (describes IIED as a “most limited” tort); Gomez v. Markley, No. 2:07-

cv-868, 2011 WL 112886, at *1 (W.D. Pa. Jan. 13, 2011) (“in order to state a claim for [IIED]

under Pennsylvania Law, a plaintiff must establish physical injury or harm . . . at the very least,

existence of the alleged emotional distress must be supported by competent medical evidence”)

(internal citations and quotation omitted).

The Corrections Defendants correctly contend that McIntosh has not made any allegations

that he sustained a physical manifestation as a result of his emotional distress. Instead, he merely

suggests that he may need future psychological and psychiatric treatment. This is not sufficient.

Consequently, this Court will grant the Corrections Defendants’ motion to dismiss McIntosh’s

IIED claims with prejudice.

E. Breach of Contract Claims

The Corrections Defendants also move to dismiss McIntosh’s claims for breach of contract.

They assert that McIntosh has pointed to no legal authority under which former Secretary Wetzel,

Superintendent Barry Smith, Deputy Superintendent Close, Deputy Superintendent Salamon, and

Superintendent Estock can be held liable for breaching a contractual agreement with McIntosh

based on violating various prison policies and placing him in a cell with impermissible conditions.

(ECF No. 43 at 13.) McIntosh responds by asserting that the Corrections Defendants’ motion with

respect to his breach of contract claim is “frivolous.” (ECF No. 45 ¶ 6.)

To plausibly plead a breach of contract claim under Pennsylvania law, a plaintiff must

allege “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed

by the contract, and (3) resultant damages.” Marcus v. Truist Fin. Corp., No. CV 21-1037, 2022

WL 1524113, at *3 (E.D. Pa. May 13, 2022) (quoting Udodi v. Stern, 438 F. Supp. 3d 292, 299

(E.D. Pa. 2020)). “Pennsylvania courts generally do not recognize handbooks as contracts without

a clear intent of the parties to give a handbook contractual force.” Talbert v. Corr. Dental Assocs.,

No. CV 18-5112, 2020 WL 890212, at *5 (E.D. Pa. Feb. 21, 2020). “This is particularly true in

the prison context where an inmate cannot accept an offer from the SCI or reach a meeting of the

minds upon the terms of the handbook.” Id. (internal citation and quotation omitted).

In his Second Amended Complaint, McIntosh asserts that the Inmate Handbook constitutes

a binding contract between Corrections Defendants and McIntosh. Based on this contention,

McIntosh claims that the Corrections Defendants breached the terms of the handbook by failing to

accommodate people with respiratory disabilities in use of force training. However, as discussed,

the Inmate Handbook is not a binding contract between a prison and an inmate. Consequently,

McIntosh’s breach of contract claims will be dismissed with prejudice.

F. Negligence Claims

The Corrections Defendants also move to dismiss McIntosh’s negligence claims based on

their contention that they are entitled to sovereign immunity as to these claims. They assert that

this is true even as to McIntosh’s claims for lost legal documents against Librarian Weaver and

C.O. Rietscha because they claim that McIntosh is not seeking monetary damages, does not

identify what documents were missing, and merely asserts that the loss of these documents

negatively influenced his criminal appeal. (ECF No. 43 at 14-15.) McIntosh again summarily

counters that the Corrections Defendants’ motion with respect to his negligence claims is

“frivolous” and should be denied. (ECF No. 45 ¶ 7.)

In general, employees of the Commonwealth of Pennsylvania acting within the scope of

their duties are immune from liability. 1 Pa. Stat. and Con. Stat. Ann. § 2310; see, e.g., Moss v.

Pa., 838 F. App’x 702, 707 (3d Cir. Dec. 9, 2020). To this end, Pennsylvania’s sovereign

immunity statute affords broad immunity to state officials from state-law tort claims. With respect

to claims of negligence, there are certain specifically delineated exceptions to this general rule of

sovereign immunity, including, in relevant part, when the claim pertains to the “care, custody or

control of personal property in the possession or control of Commonwealth parties[.]”4 42 Pa.

Stat. and Con. Stat. Ann. § 8522(b)(3). See Williams v. Stickman, 917 A.2d 915, 918 (Pa. Commw.

Ct. 2007), appeal denied, 917 A.2d 915 (Pa. 2007). This exception may apply here with respect

to certain allegations made in the Second Amended Complaint and Supplement.

Contrary to the Corrections Defendants’ assertion, McIntosh is seeking monetary damages.

Moreover, McIntosh also alleges that Librarian Weaver and C.O. Rietscha failed to return some

of his legal papers, causing him to lose his appeal and sustain harm. At this stage of the litigation,

the Court cannot conclude that these two defendants are immune from suit with respect to any

negligence claim McIntosh is asserting against them relative to his property. For these reasons,

the motion to dismiss the negligence claim is denied as to Librarian Weaver and C.O. Rietscha.

4 The General Assembly has waived its sovereign immunity in cases of (1) vehicle liability;

(2) medical-professional liability; (3) care, custody or control of personal property;

(4) Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous

conditions; (6) care, custody, or control of animals; (7) liquor store sales; (8) National Guard

activities; and (9) toxoids and vaccines. 42 Pa. Stat. and Con. Stat. Ann. § 8522(b).

Conversely, the negligence claims against the other Corrections Defendants will be

dismissed with prejudice. This is because McIntosh’s allegations with respect to the remaining

Corrections Defendants do not fall within any of the nine statutory exceptions. Consequently, they

are immune from suit and the negligence claims against them must be dismissed with prejudice.

G. Failure to Protect/ Intervene Claims

The Corrections Defendants argue that McIntosh has not alleged facts to support his claim

that one or more of them had a reasonable opportunity to intervene while he was being physically

assaulted but chose not to do so. (ECF No. 43 at 15-16.) Once again, McIntosh responds that the

Corrections Defendants’ motion with respect to this claim is “frivolous.” (ECF No. 45 ¶ 8.)

It is well-established that any duty to intervene is limited to situations involving excessive

force. Armstrong v. Furman, No. 3:19-CV-141, 2020 WL 5545270, at *7 (W.D. Pa. Sept. 16,

2020). “To be directly liable under a failure to intervene theory, (1) the plaintiff must have

demonstrated that her underlying constitutional rights were violated; . . . (2) the officer had a duty

to intervene; and (3) the officer must have had a realistic and reasonable opportunity to intervene.”

Klein v. Madison, 374 F. Supp. 3d 389, 419 (E.D. Pa. 2019). Here, the Corrections Defendants

contend that they did not have a meaningful opportunity to intervene.

In the applicable complaint, McIntosh alleges that after he was sprayed with mace in front

of Lt. Veihdeffer, Nurse, and members of the CERT team, he was then placed in handcuffs and

forced to walk to his new cell despite him being unable to see or breathe. Once he was placed in

the cell, he was ordered to open his eyes so that Nurse could flush them out. Instead of this

occurring, however, he was sprayed with more mace before they left his cell.

Based on these allegations, the Court concludes that at this stage, McIntosh has pleaded a

plausible failure to intervene claim against Lt. Veihdeffer, Nurse, and the Jane and John Doe

members of the CERT Team. See Martin v. Sec’y of Corr., Civ. A. No. 21-1522, 2022 WL

1576758, at *3 (3d Cir. May 19, 2022). Contra Miller v. Machuga, Civ. A. No. 3:17-0771, 2022

WL 852855, at *6 (M.D. Pa. Mar. 22, 2022) (“as the video tape evidence points out, the physical

force used lasted only minutes, and thus, even if the force were excessive, [the d]efendants lacked

a ‘realistic and reasonable’ opportunity to intervene”). Therefore, the motion will be denied as to

them.

At the same time, the motion to dismiss will be granted with prejudice as to the remaining

Corrections Defendants. None of these defendants are alleged to have been present during the

above-described events and there are no plausible allegations to support their personal

involvement.

H. Eighth Amendment Claims against Captain Lewis, Deputy Superintendent Salamon,

Lt. Detwiler, and Sgt. Rieg

The Corrections Defendants contend that because McIntosh’s negligence, failure to

protect, and IIED claims fail as a matter of law, Captain Lewis, Deputy Superintendent Salamon,

Lt. Detwiler, and Sgt. Rieg must be dismissed from this case if his Eighth Amendment conditions

of confinement claims against them are also insufficient. (ECF No. 43 at 11.) They argue that the

Eighth Amendment claims fail because McIntosh has failed to identify the dates and times he

spoke with each defendant and alleges that he only complained once to Lt. Detwiler and Sgt. Rieg.

The Eighth Amendment’s prohibition against cruel and unusual punishment guarantees

that prison officials must provide humane conditions of confinement. Although “[t]he Constitution

‘does not mandate comfortable prisons,’ . . . neither does it permit inhumane ones.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).

Thus, prison officials must ensure that inmates receive adequate food, clothing, shelter and medical

care, and must “‘take reasonable measures to guarantee the safety of the inmates[.]’” Id. (quoting

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). To state a claim for an Eighth Amendment

violation based on the conditions of confinement, a prisoner must plausibly allege that prison

officials’ acts or omissions denied him “the minimal civilized measure of life’s necessities.”

Rhodes, 452 U.S. at 347; Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010)

(stating that the Eighth Amendment’s prohibition of cruel and unusual punishment requires that

prison officials provide “humane conditions of confinement”).

As a sister court recently explained:

[P]laintiffs asserting conditions of confinement claims must demonstrate that they

were subjected to an objectively, sufficiently serious deprivation that resulted in the

denial of minimal civilized measures of life’s necessities and that the defendant

prison official was deliberately indifferent to inmate health or safety. Porter v. Pa.

Dept. of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (citing Farmer, 511 U.S. at 834).

A defendant is deliberately indifferent to the conditions of an inmate’s confinement

if he or she “knows of and disregards an excessive risk to inmate health or safety.”

Id. (quoting Farmer, 511 U.S. at 837). An evaluation of the context of the claim is

necessary. “Some conditions of confinement may establish an Eighth Amendment

violation ‘in combination’ when each would not do so alone, but only when they

have a mutually enforcing effect that produces the deprivation of a single

identifiable human need such as food, warmth, or exercise—for example a low cell

temperature at night combined with a failure to issue blankets.” Id. at 304.

Major v. Halligan, No. 1:21-CV-00068, 2021 WL 6283944, at *10 (W.D. Pa. Nov. 17, 2021).

Here, McIntosh alleges that for fourteen days, he had to sleep with the lights on, was denied

a mattress, bedding, footwear, toilet paper, a shower, a functioning toilet, cleaning supplies, and

trips to the yard. He also alleges that he was forced to live in a cell for seventy-two days in the

dead of winter with a broken window that allowed a sizable amount of ice to come in. During this

period, he states that he complained to Captain Lewis, Deputy Superintendent Salamon,

Lt. Detwiler, and Sgt. Rieg to no avail. As a result, McIntosh claims, he sustained specified

physical and mental injuries.

These allegations are sufficient to state an Eighth Amendment conditions of confinement

claim against Captain Lewis, Deputy Superintendent Salamon, Lt. Detwiler, and Sgt. Rieg. See

Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (finding an Eighth Amendment violation where an

inmate was forced to live in a cell for six days that was “frigidly cold cell, which was equipped

with only a clogged drain in the floor to dispose of bodily wastes”); Mammana v. Fed. Bureau of

Prisons, 934 F.3d 368, 374 (3d Cir. 2019) (finding an Eighth Amendment violation where

“Mammana allege[d] that he was deprived of his clothing, provided only “paper like” coverings

instead, denied bedding, and exposed to low cell temperatures and constant bright lighting for four

days”). See also Whitney v. Wetzel, Civ. A. No. 3:CV-14-357, 2015 WL 632493, at *4 (M.D. Pa.

Feb. 13, 2015) (defendants’ personal observation of plaintiff being housed in an excessively cold

cell and their subsequent failure to take any appropriate action in response to the inmate’s

complaint could allege defendants’ personal involvement defendant in deliberate indifference to

an apparent safety).

Thus, the motion to dismiss the Eighth Amendment conditions of confinement claim

against Captain Lewis, Deputy Superintendent Salamon, Lt. Detwiler, and Sgt. Rieg will be

denied.

I. Personal Involvement

The Corrections Defendants contend that former Secretary Wetzel, Deputy Superintendent

Close, Superintendent Barry Smith, Captain Acey, Security Captain Sheeder, and Superintendent

Estock must be dismissed because McIntosh has failed to adequately allege their personal

involvement.

“The first step in evaluating a section 1983 claim is to identify the exact contours of the

underlying right said to have been violated and to determine whether the plaintiff has alleged a

deprivation of a constitutional right at all.” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222

(3d Cir. 2015) (internal quotations and citations omitted). “Next, a plaintiff must demonstrate a

defendant’s ‘personal involvement in the alleged wrongs.’” Id. (quoting Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988)). That is because only a person who “subjects, or causes to

be subjected” another person to a civil rights violation can be held liable under § 1983.

To establish individual liability under section 1983, “[a] defendant must have personal

involvement in the alleged wrongs; liability cannot be predicated solely on the operation of

respondeat superior.” Rode, 845 F.2d at 1207. There are “two general ways in which a supervisor-

defendant may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First

Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2017), rev’d on other grounds, Taylor v. Barkes, 575

U.S. 822 (2015). First, a supervisor may be held liable if he “participated in violating the plaintiff’s

rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced

in his subordinates’ violations.” Santiago, 629 F.3d at 129 & n. 5 (citing A.M. ex rel. J.M.K.

Luzerne Cnty., 372 F.3d 572, 586 (3d Cir. 2004)). Second, a supervisor may be liable if he “with

deliberate indifference to the consequences, established and maintained a policy, practice or

custom which directly caused [the] constitutional harm.” A.M., 372 F.3d at 586.

However, the alleged failure of a grievance officer to remedy the actions of another

defendant does not demonstrate sufficient personal involvement to state a claim for relief. Nor

can a prisoner hold a prison official liable merely on the basis of a response to a grievance or

request. See Alexander v. Fritch, Civ. A. No. 07-1732, 2010 WL 1257709, at *16 (W.D. Pa. Mar.

26, 2010) (“[p]laintiff ca[nn]ot impose liability against any of the [d]efendants based solely on his

or her involvement with his correspondence, grievances and misconducts as such conduct is

insufficient to establish personal involvement as required under 42 U.S.C. § 1983”), aff’d, 396 F.

App’x 867 (3d Cir. 2010); Rogers v. United States, 696 F. Supp. 2d 472, 488 (W.D. Pa. 2010) (“If

a grievance official’s only involvement is investigating and/or ruling on an inmate’s grievance

after the incident giving rise to the grievance has already occurred, there is no personal

involvement on the part of that official”).

In addition, since inmates do not have a constitutional right to a prison grievance system,

Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 137-38 (1977), an inmate’s

dissatisfaction with a response to a grievance does not support a constitutional claim. See

Alexander v. Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005) (involvement in post-incident

grievance process not a basis for § 1983 liability). See also Williams v. Armstrong, 566 F. App’x

106, 109 (3d Cir. 2014) (“Access to prison grievance procedures is not a constitutionally-mandated

right”).

1. Claims against Former Secretary Wetzel and Deputy Superintendent Close

The Corrections Defendants contend McIntosh’s factual allegations that former Secretary

Wetzel and Deputy Superintendent Close failed to accommodate individuals at SCI-Houtzdale

with respiratory disabilities and did not properly train staff members, and that these actions and

inactions resulted in McIntosh being sprayed with mace, are insufficient to plead their personal

involvement. (ECF No. 43 at 6.) McIntosh responds that former Secretary Wetzel and Deputy

Close implemented policies, procedures, and training that authorized officers to use mace against

all inmates including those who suffer from severe respiratory illness and inmates with respiratory

illnesses have died as a result. (ECF No. 45(3)(a)(1).)

The Court of Appeals has held that “[i]ndividual defendants who are policymakers may be

liable under § 1983 if it is shown that such defendants, with deliberate indifference to the

consequences, established and maintained a policy, practice or custom which directly caused the

constitutional harm.” A.M. ex rel. J.M.K., 372 F.3d at 586 (internal citation and quotation omitted).

“Policy is made when a decisionmaker possessing final authority to establish municipal policy

with respect to the action issues an official proclamation, policy, or edict.” Kniepp v. Tedder, 95

F.3d 1199, 1212 (3d Cir. 1996) (citation omitted). Customs are “practices of state officials . . . so

permanent and well settled as to virtually constitute law.” Id. (quoting Beck v. City of Pittsburgh,

89 F.3d 966, 971 (3d Cir.1996)). In other words, a custom is “an act ‘that has not been formally

approved by an appropriate decisionmaker’ but that is so widespread as to have the force of law.”

Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Bd. of Cty.

Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)).

McIntosh has alleged that former Secretary Wetzel and Deputy Superintendent Close are

responsible for the safety and security of individuals housed in their facility, and that they

authorized the use of mace against individuals with respiratory disabilities despite the serious

health risk it posed, leading to the death of some inmates. At this juncture, these allegations are

sufficient to plausibly plead their personal involvement. Therefore, the motion to dismiss will be

denied with respect to these defendants.

2. Captain Acey

The Corrections Defendants further argue the factual allegations against Captain Acey, i.e.,

that he responded to Grievance No. 795404, are likewise insufficient to impose liability. (ECF

No. 43 at 7.) McIntosh responds that the claims against Captain Acey stem from him implementing

a cover-up scheme and this scheme constituted an ongoing violation because he was confronted

with a situation he could directly rectify and opted not to do so. (ECF No. 45(3)(c).)

Here, McIntosh has pleaded that Captain Acey assisted in a cover-up scheme with respect

to Grievance No. 795404 and denied McIntosh the video footage he needed to pursue his claims

against certain officers. (ECF No. 38(6)(d)(1).) As already stated, if a grievance official’s only

involvement is investigating and/or ruling on an inmate’s grievance after the incident giving rise

to the grievance has already occurred, there is no personal involvement on the part of that official.

Rogers v. United States, 696 F. Supp. 2d 472, 488 (W.D. Pa. 2010). This is true even where a

reviewing officer is accused of fabricating or destroying evidence. See Ashford v. Hawkinberry,

Civ. A. No. 14-1718, 2017 WL 4269493, at *12 (W.D. Pa. Sept. 26, 2017).

Here, the grievance was submitted on March 19, 2019, which is the same day McIntosh

was moved out of the cell at issue. Thus, the violation was no longer ongoing at the time of Captain

Acey’s review. For these reasons, McIntosh’s claim against Captain Acey will be dismissed with

prejudice as McIntosh has not and cannot plausibly plead Captain Acey’s personal involvement.

3. Security Captain Sheeder and Superintendent Estock

The Corrections Defendants raise similar arguments as to Security Captain Sheeder and

Superintendent Estock. Specifically, they argue Security Captain Sheeder lacks personal

involvement because it was limited to denying McIntosh camera footage. (ECF No. 43 at 7.) With

respect to Superintendent Estock, they argue that McIntosh’s allegations that Superintendent

Estock reviewed Grievance No. 898642 and implemented a cover-up scheme are insufficient as a

matter of law to impose liability. (Id.) McIntosh reiterates in his response that Captain Sheeder

and Superintendent Estock unjustifiably denied his request for the audio and video recordings in

Grievance No. 898642 and did so to “cover[-]up the defendants[’] wrong doings.” (ECF No. 45

¶¶ 3(d), 3(e).) Furthermore, because their conduct has impaired his ability to pursue the instant

action, he argues that the violation is “ongoing.” (Id.)

McIntosh’s claims against Security Captain Sheeder and Superintendent Estock fail

because like Captain Acey, the allegations against them are limited to the post-violation grievance

process. Accordingly, the Corrections Defendant’s motion will be granted insofar as it relates to

the personal involvement of Security Captain Sheeder and Superintendent Estock and the claims

against them will be dismissed with prejudice.

4. Superintendent Barry Smith

Lastly, the Corrections Defendants argue McIntosh’s allegations that Superintendent Barry

Smith failed to accommodate individuals at SCI-Houtzdale with respiratory disabilities and did

not properly train staff members, and that these actions and inactions resulted in McIntosh being

sprayed with mace, are insufficient to state a claim of personal involvement. (ECF No. 43 at 6.)

Additionally, they contend that McIntosh has not adequately alleged personal involvement because

McIntosh has not provided the specific dates that he complained to Superintendent Barry Smith.

Lastly, with respect to the allegations pertaining to the grievances, the Corrections Defendants

argue that there was no ongoing violation at the time that McIntosh filed his grievance. (Id.)

McIntosh responds that all of his claims against Superintendent Barry Smith stem from his

failure to accommodate the individuals housed in SCI-Houtzdale with respiratory disabilities by

failing to implement appropriate use of force training for inmates with respiratory issues. (ECF

No. 45 ¶ 3(b)(1).) He further responds that he complained to Superintendent Barry Smith

numerous times about the “hazardous unsanitary cell conditions” he was housed in and

Superintendent Barry Smith, nevertheless, denied his grievances as part of a cover-up scheme. (Id.

¶ 3(b)(2).)

Here, McIntosh has alleged that former Superintendent Barry Smith implemented policies

and/or procedures with respect to use of force that did not take into account the danger mace can

impose with respect to prisoners with a respiratory disability. He further alleges that he was injured

as a result of this policy as were other inmates. He also pleads that he complained to Superintendent

Barry Smith on numerous occasions that his cell was cold due to the crack in the window, that he

was forced to walk barefoot in freezing cold contaminated water, that he was having issues as a

result with his feet, and that he continued to have issues with his asthma due to mace having been

sprayed in his cell. Accordingly, the Corrections Defendants’ motion to dismiss Superintendent

Barry Smith for lack of personal involvement will be denied as McIntosh has pleaded a plausible

claim against him.

J. Fourteenth Amendment Claims5

Lastly, the Corrections Defendants argue that McIntosh’s Fourteenth Amendment claims

must be dismissed because they are based on the same factual allegations underlying his Eighth

Amendment claims and the Fourteenth Amendment offers him no greater protection than the

Eighth Amendment. (ECF No. 43 at 16-17.) McIntosh again responds by asserting that the

Corrections Defendants’ motion with respect to these claims is “frivolous.” (ECF No. 45 ¶ 9.)

The Supreme Court of the United States has made clear that “[w]here a particular

Amendment ‘provides an explicit textual source of constitutional protection’ against a particular

sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive

due process,’ must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266,

274 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). Here, the Corrections

Defendants correctly note that the Eighth Amendment provides the explicit source of constitutional

protection with respect to the claims challenging his conditions of confinement, the alleged use of

5 Although McIntosh appears to be arguing he had a Fourteenth Amendment right to privacy with

respect to his legal documents, other courts have found no such right exists under similar facts.

See Ivy v. Wetzal, Case No. 1:20-cv-00265-RAL, 2021 WL 4479721, at *12 (W.D. Pa. Sept. 30,

2021) (finding there is no per se reasonable expectation of privacy in legal papers sent to a librarian

for copying and that the librarian had not violated the plaintiff’s Fourteenth Amendment rights by

showing his papers to an unlicensed inmate law clerk).

excessive force, and the failure to intervene. Thus, the Eighth Amendment, rather than the

Fourteenth Amendment, is applicable to these claims. See, e.g., Sadelmyer v. Peltzer, No. 2:12-

cv-1785, 2013 WL 4766517, at *6 (W.D. Pa. Sept. 4, 2013) (because the Eighth Amendment

provided an explicit source of protection, [p]laintiff’s claim was preempted by the Eighth

Amendment and should not be analyzed as a substantive due process claim under the Fourteenth

Amendment).

As such, McIntosh’s Fourteenth Amendment claim fails as a matter of law and must be

dismissed with prejudice.

V. Leave to Amend

When dismissing a civil rights case for failure to state a claim, a court must give a plaintiff

a chance to amend a deficient complaint, irrespective of whether it is requested, unless doing so

would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482

F.3d 247, 251 (3d Cir. 2007). “An amendment is futile if the amended complaint would not survive

a motion to dismiss for failure to state a claim upon which relief could be granted.” Alston

v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).

For the reasons discussed, amendment would be futile as to McIntosh’s official capacity,

IIED, breach of contract, and Fourteenth Amendment claims, and they will be dismissed. Also

futile are his claims against Captain Acey, Security Captain Sheeder, and Superintendent Estock,

as well as his First Amendment claim against C.O. Stivison, his failure to intervene claims except

those against Lt. Veihdeffer, Nurse, and the Jane and John Doe members of the CERT Team, and

his negligence claims against all Corrections Defendants but Librarian Weaver and C.O. Rietscha.

Therefore, McIntosh will not be given leave to further amend his complaint.

VI. Conclusion

For these reasons, the Corrections Defendants’ partial motion to dismiss (ECF No. 42),

will be granted in part and denied in part. An appropriate order will follow.

BY THE COURT:

Dated: August 11, 2022 s/Patricia L. Dodge

PATRICIA L. DODGE

United States Magistrate Judge

cc: Keenan Mcintosh

Mv-9011

SCI Phoenix

P.O. Box 244

1200 Mokychic Drive

Collegeville, Pa 19426