Hill v. Rivello

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE HILL, Civil No. 3:24-cv-22

Plaintiff (Judge Mariani)

v. .

JOHN RIVELLO, et al, .

Defendants

MEMORANDUM

Plaintiff Tyrone Hill (“Hill”), an inmate housed at the State Correctional Institution,

Huntingdon, Pennsylvania (“SCl-Huntingdon’), initiated this civil rights action pursuant to 42

U.S.C. § 1983. (Doc. 1). Named as Defendants are Superintendent John Rivello, Captain

Long, Lieutenant Yonkers, (collectively, the “moving Defendants”), and five John Doe

individuals. Hill alleges that Defendants violated his constitutional rights under the Eighth

Amendment when oleoresin capsicum (“OC”) spray was released against another inmate,

three stories below his cell, which caused him to fall on two occasions.

Presently ripe for disposition is the moving Defendants’ motion (Doc. 20) to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the

motion will be granted in part and denied in part. (Doc. 20). The Court will also direct

service of the complaint on the newly identified Defendants.

I. Allegations of the Complaint

The allegations of Hill’s complaint stem from three separate incidents at SCI-

Huntingdon—the use of OC spray against a fellow inmate on June 27, 2023; Hill’s fall down

the stairs on July 31, 2023; and Hill's fall in the shower on November 11, 2023. (Doc. 1).

On the morning of June 27, 2023, Hill was confined in his cell (CA-437) when he

Defendant Yonkers and several other correctional officers approached a cell three floors

below him (CA-142). (/d. Jf] !II(C)(1-8)). Hill alleges that these prison officials had riot gear,

breathing respirators, a stun shield, and two large canisters of OC spray. (/d.). Hill avers

that Defendant Rivello gave the orders to prison officials to perform the cell extraction of

another inmate. (/d. § Ill(C)(7)). He then alleges that Defendant Yonkers and the other

correctional officers discharged OC spray into cell CA-142. (/d. { III(C)(10)). There was no

ventilation and the OC spray rose to the fourth floor and “stayed there like fog.” (/d.

III(C)(11)). Hill alleges that the OC spray burned his eyes, made him choke, caused him to

urinate on himself, and caused back spasms. (Id. § Ill(C)(12)). The back spasms allegedly

caused him to fall. (/d.). During this incident, Hill was able to use his inhaler to help him

breathe. (/d.). “A long while later,” when the housing tier was opened for all inmates, Hill

was sent to medical and received medication for his back spasms. (/d. {[ Ill(C)(13)). When

Hill inquired as to why he was not evacuated to a safe area prior to the use of OC spray, the

Block Sergeant and Unit Manager allegedly informed him that Defendant Long ordered that

Hill remain in his cell during the incident. (Id. ¥ III(C)(15)).

Hill next alleges that the “residual consequences of this cruel and unusual corporal

punishment” caused him to fall down steps on July 31, 2023. (/d. { III(C)(14)). Hill claims

the fall caused injury to his right knee and ankle. (/d.).

Further, Hill alleges that, as a result of the OC spray incident in June of 2023, he had

back spasms in the shower on November 11, 2023. (/d.). He asserts that the back spasms

made his right knee buckle, causing him to collapse in the shower in front of forty other

inmates. (/d. J V).

For relief, Hill seeks compensatory and punitive damages. (/d. { VI).

ll. Legal Standard

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6), if it

does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The

plaintiff must aver “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129

S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

“Though a complaint ‘does not need detailed factual allegations,...a formulaic

recitation of the elements of a cause of action will not do.” DelRio-Mocci v. Connolly Prop.

Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,

“[flactual allegations must be enough to raise a right to relief above the speculative level.”

Covington v. Int'l Ass’n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)

(internal citations and quotation marks omitted). A court “take[s] as true all the factual

allegations in the Complaint and the reasonable inferences that can be drawn from those

facts, but. . . disregard[s] legal conclusions and threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v.

Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation

marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to

determine the sufficiency of a complaint: First, the court must take 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.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“(Where the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged - but it has not show(n] - that the

pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citations and quotation marks

omitted). This “plausibility” determination will be a “context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” /d.

However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court

must permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[Elven when plaintiff does not seek leave to amend his complaint after a

defendant moves to dismiss it, unless the district court finds that amendment

would be inequitable or futile, the court must inform the plaintiff that he or she

has leave to amend the complaint within a set period of time.

Id.

ll. Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a cause of

action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute

provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress. ...

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege “the

violation of a right secured by the Constitution and laws of the United States, and must

show that the alleged deprivation was committed by a person acting under color of state

law.” West v. Atkins, 487 U.S. 42, 48 (1988).

A. Personal Involvement

Defendants Long and Rivello seek to dismiss the claims against them based on □□□□□□

failure to set forth sufficient allegations of their personal involvement in the alleged wrongful

conduct. (Doc. 21, pp. 8-11). Individual liability can be imposed under section 1983 only if

the state actor played an “affirmative part” in the alleged misconduct and “cannot be

predicated solely on the operation of respondeat superior.” Evancho, 423 F.3d at 353

(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). “A defendant in a civil

rights action must have personal involvement in the alleged wrongs. . . . Personal

involvement can be shown through allegations of personal direction or of actual knowledge

and acquiescence.” Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362

(1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations, however, must

be made with appropriate particularity in that a complaint must allege the particulars of

conduct, time, place, and person responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at

1207-08. Alleging a mere hypothesis that an individual defendant had personal knowledge

or involvement in depriving the plaintiff of his rights is insufficient to establish personal

involvement. Rode, 845 F.2d at 1208.

The Court does not agree that Hill failed to set forth the requisite personal

involvement against Defendant Long. The complaint specifically alleges that Defendant

Long ordered that Hill remain in his cell during the use of OC spray incident. (Doc. 1 {

I1I(C)(15)). Accordingly, the Court declines to grant the motion to dismiss on this basis.

Hill also alleges that Defendant Rivello gave orders to his subordinates to perform

the cell extraction of another inmate. (Doc. 1 Ill(C)(7)). Supervisors “may not be held

liable for the unconstitutional conduct of their subordinates under a theory of respondeat

superior.” Iqbal, 556 U.S. at 676. The Third Circuit has noted that there are two theories of

supervisory liability applicable to claims brought pursuant to § 1983: (1) “a supervisor may

be personally liable under § 1983 if he or she participated in violating the plaintiffs rights,

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

acquiesced in his subordinates’ violations”; and (2) 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. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572,

586 (3d Cir. 2004). With respect to the second theory of liability, the plaintiff must allege

that: “(1) the existing policy or practice created an unreasonable risk of [constitutional]

injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the

supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice.”

Beers-Capitol v. Wheizel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample v. Diecks, 885

F.2d 1099, 1118 (3d Cir. 1989)). At a minimum, supervisory liability can be imposed “only

where there are both (1) contemporaneous knowledge of the offending incident or

knowledge of a prior pattern of similar incidents, and (2) circumstances under which the

supervisor's inaction could be found to have communicated a message of approval to the

offending subordinate.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986).

The Court finds that Hill has not set forth a plausible claim against Defendant Rivello.

The complaint only alleges that Defendant Rivello ordered his subordinates to perform the

cell extraction of another inmate. Hill does not allege that Defendant Rivello ordered the

correctional officers to use an excessive amount of OC spray, that he was aware of the

alleged excessive use of OC spray and took no action to curb it, that he ordered the

correctional officers to target Hill with OC spray, or that he was aware Hill was susceptible

to OC spray. Hill’s attempt to hold Defendant Rivello responsible for the actions of others

(the cell extraction) based on his supervisory position, is not a proper basis to establish

liability for the alleged constitutional wrongdoing at issue. The Court will grant the motion to

dismiss the claims against Defendant Rivello.

B. Qualified Immunity

Hill alleges that his exposure to secondhand OC spray constituted cruel and unusual

punishment in violation of his Eighth Amendment rights. Defendants argue that they are

entitled to qualified immunity “because it is not clearly established that the secondhand

exposure to OC spray, in response to another inmate’s actions on the housing block, would

violate an individual's rights.” (Doc. 21, p. 11).

“The doctrine of qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). A qualified immunity

determination involves a two-pronged inquiry: (1) whether a constitutional or federal right

has been violated; and (2) whether that right was “clearly established.” Saucier v. Katz, 533

U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal

courts to exercise discretion in deciding which of the two Saucier prongs should be

addressed first). “Qualified immunity balances two important interests—the need to hold

public officials accountable when they exercise power irresponsibly and the need to shield

Officials from harassment, distraction, and liability when they perform their duties

reasonably.” Pearson, 555 U.S. at 231. It “provides ample protection to all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

(1986). Accordingly, “there must be sufficient precedent at the time of action, factually

similar to the plaintiffs allegations, to put [the] defendant on notice that his or her conduct is

constitutionally prohibited.” Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d

164, 169 (3d Cir. 2016) (quoting McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)).

To make this determination, the Court “look[s] first for applicable Supreme Court precedent.”

ld. “Even if none exists, it may be possible that a ‘robust consensus of cases of persuasive

authority’ in the Court of Appeals could clearly establish a right for purposes of qualified

immunity.” /d. (quoting Taylor v. Barkes, 575 U.S. 822, 826 (2015)).

“{I]t is a violation of the Eighth Amendment for prison officials to use mace or other

chemical agents in quantities greater than necessary or for the sole purpose of punishment

or the infliction of pain.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984); see also

Thomas v. Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010) (noting that it is a violation of the

Eighth Amendment “where chemical agents are used unnecessarily, without penological

justification, or for the very purpose of punishment or harm”); Thomas v. Comstock, 222 F.

App’x 439, 442 (5th Cir. 2007) (noting that the use of chemical agents can violate the Eighth

Amendment when done so as a “malicious or sadistic application of force”); Williams v.

Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (citing Soto for the same conclusion).

Accordingly, in light of the above “robust consensus of cases of persuasive authority,”

Taylor, 575 U.S. at 826, the Court concludes that inmates have a clearly established right,

protected by the Eighth Amendment, to be free from the unnecessary use of chemical

agents without penological justification.

Here, Hill alleges that Defendants used “excessive” amounts of OC spray on a fellow

inmate, that Hill was intentionally left in his cell during this incident, and that he suffered

unnecessary pain as a result of his exposure to OC spray. Therefore, at this juncture, Hill

has pled facts alleging misuse of excessive amounts of OC spray to inflict unnecessary

pain. In light of the body of case law set forth above, the Court concludes that Hill had a

clearly established right, protected by the Eighth Amendment, to be free from the use of

excessive amounts of OC spray. The Court declines to grant Defendants’ motion to dismiss

on this ground.

IV. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts must

generally grant leave to amend before dismissing the complaint. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d

Cir. 2000). Specifically, the Third Circuit Court of Appeals has admonished that when a

complaint is subject to dismissal for failure to state a claim, courts should liberally grant

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leave to amend “unless such an amendment would be inequitable or futile.” Phillips, 515

F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). For the reasons set

forth above, the Court concludes that it would be futile to grant Hill leave to file an amended

complaint with respect to his claims against Defendant Rivello.

Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has 90 days from the

date he filed his complaint to serve the complaint on the defendants. FED. R. Civ. P. 4(m).

Upon a showing of good cause for the failure to serve, the court must extend the time for

service; the court can, at its discretion, extend the time for service even if plaintiff has not

shown good cause for the delay. FED. R. Civ. P.4(m). The factors a court should consider

in evaluating whether good cause exists are: (1) the reasonableness of the plaintiff's efforts

to effect service; (2) prejudice to the defendant because of untimely service; (3) whether the

plaintiff has moved for an enlargement of time; and (4) whether the statute of limitations will

bar the plaintiff's claims if the action is dismissed. See MC/ Telecomms. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1097-98 (3d Cir. 1995).

The John Doe Defendants were named in the complaint that was filed on January 4,

2024. (Doc. 1). The Court granted Hill leave to conduct limited discovery to identify the

John Doe Defendants. (Doc. 18). In response, Hill has identified the John Doe Correctional

Officers as follows: CO A. Tress, CO Kirsh, CO Ainsworth, CO J. Myers, CO Cothard, and

CO K. Deihl. (Doc. 25). Accordingly, the Court will direct service on these individuals.

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Vi. Conclusion

Based on the foregoing, the Court will grant in part and deny in part Defendants’

motion to dismiss the complaint. (Doc. 20). The Court will also direct service on the newly

identified Defendants. A separate Order shall issue.

os the fied

MAC]

obert D. Mariani

United States District Judge

Dated: October □□ 2024

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