HUNTER v. SCHULLERY

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

VAN HUNTER,

Plaintiff,

v. Civil No. 24-2139 (KMW)(EAP)

MATTHEW SCHULLERY, et al.,

Defendants.

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff Van Hunter’s Motion for Leave to File a

Third Amended Complaint, see ECF No. 30, which attempts to re-plead his previously dismissed

Eighth Amendment deliberate indifference claim, filed pursuant to 42 U.S.C. § 1983, against

Defendant Fathom Borg. Defendant Borg has opposed the Motion, see ECF No. 33, and Plaintiff

filed a reply brief, see ECF No. 34. The Court has considered the parties’ submissions and decides

this matter without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and L. Civ. R.

78.1. For the following reasons, the Motion is DENIED WITHOUT PREJUDICE.

I. FACTUAL BACKGROUND

A. Procedural History

On January 29, 2024, Plaintiff filed a complaint in the New Jersey Superior Court setting

forth claims, pursuant to 42 U.S.C. § 1983, against Defendants Matthew Schullery, Fathom Borg,

Stephanie Bailey, Susan Garrett, Tiffany Fairweather, Kyle Yaindl, Linda Linen, State of New

Jersey Department of Corrections, and John/Jane Does 1-20, arising out of events during his state

incarceration. See ECF No. 1-1, Complaint. Defendant Fathom Borg—the only Defendant

served—removed the case to federal court pursuant to 28 U.S.C. § 1331. See ECF No. 1, Notice

of Removal, ¶¶ 4, 6.

On May 2, 2024, after Defendant Borg moved to dismiss, see ECF No. 6, Plaintiff filed an

amended complaint against the same Defendants, except for the State of New Jersey Department

of Corrections and the Doe Defendants, see ECF No. 9. Borg withdrew her motion to dismiss the

complaint and filed a motion to dismiss the amended complaint. See ECF Nos. 12, 13.

On June 21, 2024, Plaintiff filed a second amended complaint against the same Defendants.

See ECF No. 18. Borg’s pending motion to dismiss the amended complaint was dismissed as

moot, see ECF No. 21, and on July 26, 2024, Borg filed a motion to dismiss the second amended

complaint, see ECF No. 24. The Court granted that motion and dismissed all claims against Borg

without prejudice. See ECF No. 28, Memorandum Order.

On September 27, 2024, Plaintiff filed the current Motion for Leave to File Third Amended

Complaint, see ECF No. 30 (Pl.’s Mot.). Borg filed opposition on October 21, 2024, see ECF No.

33 (Def.’s Br.), and Plaintiff filed a reply on October 24, 2024, ECF No. 24 (Pl.’s Reply). This

matter is now ripe for disposition.

B. Facts Alleged in the Proposed Third Amended Complaint

According to the proposed Third Amended Complaint (“Proposed TAC”), in 2021,

Plaintiff was incarcerated at the Northern State Prison in Newark, New Jersey. ECF No. 30-3,

Proposed TAC ¶ 18. On August 26, 2021, Plaintiff was transferred from Northern State Prison’s

general population to its restricted housing unit (“RHU”), for an alleged prison infraction. Id. ¶

21. Plaintiff complained that prison administration had failed to transfer his property—consisting

of a television, fan, storage bin, food, and other things—to the RHU. Id. ¶ 22. In late December

2021, Plaintiff alleges that Lieutenant Hassan told him that a “committee” would be meeting in

January to decide Plaintiff’s missing property claim. Id. ¶ 24. On January 19, 2022, Plaintiff

received the committee’s written, adverse decision on his claim. Id. ¶ 25. Plaintiff disagreed with

the decision and believed many of the committee’s stated reasons were “blatant lies.” Id. ¶¶ 26-

27. Plaintiff allegedly spoke with Lieutenant Hassan about the decision, and Lieutenant Hassan

told Plaintiff that there was no appeal procedure. Id. ¶¶ 28-29. Plaintiff then filed an additional

grievance on Northern State Prison administration. Id. ¶ 31. That grievance was “met with an

unsympathetic response.” Id. ¶ 32.

The Proposed TAC asserts that, on February 2, 2022, Defendant Fathom Borg, an assistant

commissioner of the State of New Jersey Department of Corrections, “appeared at Plaintiff’s cell

door.” Id. ¶¶ 3, 33, 34. According to Plaintiff, Borg directed Plaintiff to “not to drop threatening

messages on the JPAY.”1 Id. ¶ 36. Plaintiff contested Borg’s characterization of his JPay

messages and stated that he was simply advocating his position on the committee’s unfair

treatment of his missing property claim. Id. ¶¶ 38-39. After Plaintiff explained the basis for his

belief that the committee’s decision was wrong, Borg purportedly told Plaintiff that if he had put

his claim in the right way, she would have approved the return of his property. Id. ¶¶ 40-41.

Plaintiff further alleges that Borg told him that he had put in his claim “too late.” Id. ¶ 43.

According to the Proposed TAC, when Plaintiff disputed Borg’s statements, “Borg’s demeanor

changed to one of anger,” and she walked away from Plaintiff’s cell. Id. ¶¶ 42, 44–47. As Borg

was walking away, Plaintiff alleges that he “spoke certain profane words” to her and “cursed her

out[.]” Id. ¶¶ 49-51.

1 “JPay is a self-help kiosk system where incarcerated individuals can access their funds,

download digital books, programming, music, access stamps, send and receive electronic

correspondence . . . .” https://www.nj.gov/corrections/pages/StayingConnected.html, available at

https://perma.cc/7NMQ-23QV (last visited Apr. 22, 2025).

Subsequently, Plaintiff alleges that “[a] charge was directed” at him for threatening Borg.

Id. ¶ 56. On February 4, 2022, an officer conducted a hearing on the charge—at which Plaintiff

was not present—and found Plaintiff innocent of threatening Borg but guilty of using abusive

language. Id. ¶¶ 59-61. Plaintiff received a thirty-day loss of recreational privileges (“LORP”)

but was not penalized with additional time in the RHU. Id. ¶¶ 62-65.

On February 3, 2022, Plaintiff was transferred to South Woods State Prison in Bridgeton,

New Jersey. Id. ¶ 57. Upon his arrival, Plaintiff was housed in general population. Id. ¶ 66-67.2

On February 7, 2022, Borg allegedly learned that Plaintiff was in general population rather than

the restricted housing unit (“RHU”). Id. ¶ 68. Plaintiff asserts that Borg was familiar with the

conditions in the RHU, which included daily out-of-cell recreation limited to a steel cage, showers

every other day, inmates being shackled whenever they left their cells, meals and medication being

provided through a slot in the cell door, a sliver of glass as a window, fifteen minutes daily of

phone usage, no books and only $40 worth of commissary access each month, freezing cold

conditions without appropriate protective gear, broken JPay kiosks, and no law library access. Id.

¶¶ 14-15, 70-83. Plaintiff claims that Borg ordered Plaintiff transferred from general population

to the RHU at South Woods State Prison. Id. ¶¶ 84, 86.

Plaintiff contends that he remained in the RHU for approximately two months, during

which he served time in isolation. Id. ¶¶ 11-13, 87-88. He believes that his transfer to RHU was

“retaliation” by Borg for his protected speech on February 2, 2022. Id. ¶ 90.

2 Plaintiff’s Proposed TAC is somewhat contradictory on this point. In paragraph 58,

Plaintiff suggests that, upon arrival at South Woods, he was housed in the restricted housing unit.

In paragraphs 66 to 68, however, he asserts that he was originally housed in general population

and then transferred to the restricted housing unit. It appears that paragraph 58 is inadvertently

incorrect, but for purposes of this motion, the discrepancy does not bear on the ultimate resolution.

The Proposed TAC asserts that, on February 11, 2022, Defendant Matthew Schullery, a

prison employee, became aware of the freezing cold conditions in the RHU but ignored them. Id.

¶¶ 2, 16-17. Plaintiff continues that on March 8, 2022, Defendants Stephanie Bailey and Susan

Garrett, both employees of the State of New Jersey Department of Corrections, became aware of

and ignored the circumstances under which Plaintiff was being held in the RHU. Id. ¶¶ 4-5, 93-

96. Finally, the Proposed TAC states that on various dates from the middle of March 2022 to the

end of April 2022, Defendants Tiffany Fairweather, Kyle Yaindl, and Linda Linen, also employees

of the State of New Jersey Department of Corrections, became aware of the circumstances under

which Plaintiff was held in the RHU but ignored Plaintiff’s complaints. Id. ¶¶ 6-8, 97-102.

Plaintiff’s Proposed TAC sets forth the following claims: (1) cruel and unusual punishment

for conditions of confinement, pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act

(“NJCRA”), against Defendant Matthew Schullery (Count I), id. ¶¶ 104-107; (2) deliberate

indifference to health or safety constituting cruel and unusual punishment, pursuant to 42 U.S.C.

§ 1983 and the NJCRA, against Defendant Fathom Borg (Count III), id. ¶ 108-109; and (3)

deliberate indifference to health or safety constituting cruel and unusual punishment, pursuant to

42 U.S.C. § 1983 and the NJCRA, against Defendants Bailey, Garrett, Fairweather, Yaindl, and

Linen (Count IV), id. ¶¶ 110-111.3 For purposes of this Motion, the only claim at issue is Count

III against Borg.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 15(a) governs amendments to pleadings before trial. A

party may amend its pleading once as a matter of course within either twenty-one days after serving

it; or if the pleading is one to which a responsive pleading is required, the earlier of twenty-one

3 The Proposed TAC contains no Count II.

days after service of a responsive pleading or twenty-one days after a motion under Rule 12(b),

(e), or (f). Fed. R. Civ. P. 15(a)(1). If those deadlines have expired, a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. Fed. R. Civ. 15(a)(2). “The

court should freely give leave when justice so requires.” Id.

The Third Circuit has adopted a liberal approach to the amendment of pleadings. Spartan

Concrete Prods., LLC v. Argos USVI, Corp., 929 F.3d 107, 115 (3d Cir. 2019); see also Donovan

v. W. R. Berkley Corp., 566 F. Supp. 3d 224, 229 (D.N.J. 2021) (“Generally, there is a presumption

in allowing the moving party to amend its pleadings.”). However, the Court may deny a motion

for leave to amend in one of four instances: (1) the amendment would be futile; (2) the moving

party has demonstrated undue delay, bad faith, or dilatory motives; (3) the amendment would

prejudice the non-moving party; or (4) the moving party was put on notice of deficiencies in its

pleading but chose not to resolve them. U.S. ex rel. Schumann v. AstraZeneca Pharms. L.P., 769

F.3d 837, 849 (3d Cir. 2014). Ultimately, the decision of whether to grant leave to amend lies

within the sound discretion of the Court. Arab Afr. Int’l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir.

1993).

Here, Defendant Borg opposes the filing of Plaintiff’s Proposed Third Amended Complaint

on grounds of futility. “Futility” means that the complaint, as amended, would fail to state a claim

upon which relief could be granted. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

Accordingly, the futility of an amended complaint is governed by the same standards of legal

sufficiency as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Travelers

Indem. Co. v. Dammann & Co., 594 F.3d 238, 243 (3d Cir. 2010). Under these standards, a court

must accept all factual allegations in a proposed amended complaint as true and view them in the

light most favorable to the plaintiff. Doe v. Princeton Univ., 30 F.4th 335, 340 (3d Cir. 2022).

Although a complaint need not contain detailed factual allegations, “a plaintiff’s obligation to

provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (internal quotations omitted). Moreover, a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “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.” Id.

III. DISCUSSION

In his Second Amended Complaint, Plaintiff asserted claims against Defendant Borg for

both First Amendment retaliation and violation of the Eighth Amendment prohibition against cruel

and unusual punishment. ECF No. 18, Second Amended Complaint ¶¶ 93-103. The Eighth

Amendment claim specifically alleged that Defendant Borg’s detention of Plaintiff in the RHU

constituted cruel and unusual punishment. Id. ¶¶ 102-03.

On September 9, 2024, the Court dismissed all claims against Defendant Borg without

prejudice. ECF No. 28, September 9, 2024 Memorandum Order. As to the Eighth Amendment

claim, the Court reasoned:

Plaintiff’s claim is essentially that he was held for two months in

punitive housing without a disciplinary finding and that he believes

this violates the Eighth Amendment. The Supreme Court has

rejected similar claims, finding that a placement in punitive

detention, up to and including solitary confinement, for a month

without a disciplinary hearing did not even impugn Due Process

protections, let alone the Eighth Amendment’s prohibition on cruel

and unusual punishment. See Sandin v. Connor, 515 U.S. 472, 486

(1995). While the Third Circuit has found a liberty interest for [a]

prisoner[] who spent extended periods in punitive confinement

without a hearing, see Shoats v. Horn, 213 F.3d 140, 144-45 (3d Cir.

2000) (eight years in solitary without hearings impugns liberty

interest), the Third Circuit has never held that a stay as short as two

months, only thirty days longer than that at issue in Sandin is

sufficient to trigger a liberty interest requiring a hearing, let alone

that it would violate the Eighth Amendment. See, e.g., Porter v. Pa.

Dep’t of Corr., 974 F.3d 431, 444 (3d Cir. 2020) (noting that the 3d

Circuit had previously found even a four-year period of solitary

confinement did not violate the Eighth Amendment). As Plaintiff

does not attempt to actually plead a Due Process claim, and as he

has not shown that he was held in prison beyond the time permitted

by his supporting conviction, and because a two month stay in

punitive housing is insufficient to state a claim for a violation of the

Eighth Amendment, Plaintiff’s over detention claim must be

dismissed without prejudice for failure to state a claim upon which

relief may be granted.

Id. at 4.

Plaintiff’s Proposed TAC now attempts to replead his Eighth Amendment claim against

Defendant Borg by supplementing it with additional allegations. The Proposed TAC asserts that

Plaintiff’s two-month stay in the RHU constituted cruel and unusual punishment because RHU

inmates were subjected to additional restrictions, including limited out-of-cell recreation in a steel

cage, showers only every other day, shackling whenever the inmates left their cells, meals and

medication provided through a slot in the cell door, slivers of glass for windows, a fifteen-minute

limitation on daily phone time, no books, only $40 worth of monthly commissary access, freezing

cold conditions, no working JPay kiosks, and no law library access. Proposed TAC ¶¶ 70-83. The

Proposed TAC further argues that Borg was familiar with the conditions in the RHU, gave the

order for Plaintiff to be transferred to the RHU without penological basis, and was motivated by

retaliation. Id. ¶ 69, 84, 89-90.

Opposing Plaintiff’s requested leave to amend, Defendant Borg argues that these

allegations are insufficient to allege an Eighth Amendment deliberate indifference claim. Def.’s

Br. at 6-10. Defendant also asserts that, even if the claim were properly pled, she is entitled to

qualified immunity, rendering any amendment futile. Id. at 10-14. As Plaintiff has failed to

adequately plead an Eighth Amendment deliberate indifference claim, the Court focuses on that

argument and declines to address qualified immunity.

“The Eighth Amendment ‘prohibits any punishment which violates civilized standards and

concepts of humanity and decency.’” Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting

Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992)). This Amendment “impose[s] affirmative

duties on prison officials ‘to provide humane conditions of confinement.’” Young v. Martin, 801

F.3d 172, 177 (3d Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

In Farmer v. Brennan, 511 U.S. 825 (1994), the United States Supreme Court added a

subjective component to the Eighth Amendment analysis. The Court recognized that “a prison

official cannot be found liable under the Eighth Amendment for denying an inmate humane

conditions of confinement unless the official knows of and disregards an excessive risk to inmate

health or safety[.]” Id. at 837. It reasoned that “an official’s failure to alleviate a significant risk

that he should have perceived but did not, while no cause for commendation, cannot under our

cases be condemned as the infliction of punishment.” Id. at 838. Thus, “[t]o sufficiently allege

prison officials violated [a prisoner’s] Eighth Amendment rights by imposing inhumane

conditions, [a] complaint ha[s] to allege facts showing (1) the deprivation [the prisoner] endured

was ‘sufficiently serious,’ and (2) the prison officials had ‘a sufficiently culpable state of mind.’”

Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2022) (quoting Thomas, 948 F.3d at 138). Both

elements are in dispute here.

A. Sufficiently Serious Deprivation

The first element of an Eighth Amendment deliberate indifference claim “is adequately

pled when the allegations depict conditions where the inmate is denied ‘the minimal civilized

measure of life’s necessities.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991)). “The

benchmark for alleging such deprivation is not that the inmate was merely uncomfortable; he or

she must show they are ‘incarcerated under conditions posing a substantial risk of serious harm.’”

Id. (quoting Farmer, 511 U.S. at 834). This standard is less demanding than alleging conditions

posing “‘a probable risk of harm.’” Id. (quoting Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d

210, 227 (3d Cir. 2015)).

“‘Conditions . . . alone or in combination [] may deprive inmates of the minimal civilized

measure of life’s necessities.’” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 373 (3d Cir.

2019) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Some conditions of confinement

may violate the Constitution “‘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.” Id. at 373-74 (quoting Wilson v. Seiter, 501 U.S. 294,

304 (1991)). For example, where inmates face a low cell temperature at night along with a failure

to issue blankets, they may be deprived of the human need for sleep. Wilson, 501 U.S. at 304.

Nonetheless, it remains well established that prison conditions may be harsh and

uncomfortable without violating the constitutional minimums. Farmer, 511 U.S. at 833-34. “[B]y

virtue of their convictions, inmates must expect significant restrictions, inherent in prison life, on

rights and privileges free citizens take for granted.” McKune v. Lile, 536 U.S. 24, 40 (2002). Thus,

the prisoner plaintiff bears the burden of proving that the challenged condition is “extreme” and

“pose[s] an unreasonable risk of serious damage to [the prisoner’s] future health’ or safety.”

Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quotation marks and citations omitted).

Stated differently, “‘[a] plaintiff must show that the conditions to which he is exposed pose a risk

of serious harm to the prisoner; a risk so serious that society is unwilling to tolerate it.’” Williams

v. Russell, No. 20-3511, 2024 WL 2188914, at *12 (E.D. Pa. May 15, 2024) (quoting Rambert v.

Horn, No. 96-2875, 1996 WL 583155, at *2 (E.D. Pa. Oct. 11, 1996)).

The conditions alleged by Plaintiff in his Proposed TAC do not rise to the level of a

constitutional violation. To the extent Plaintiff generally challenges his incarceration in the RHU,

it is well established an inmate’s incarceration in solitary confinement or restrictive housing does

not, in and of itself, violate the Eighth Amendment “where his basic needs for nutrition and shelter

were being met.” Williams v. Armstrong, 566 F. App’x 106, 109 (3d Cir. 2014) (citing Gibson v.

Lynch, 652 F.2d 348, 350, 352 (3d Cir. 1981)); see also Griffin v. Vaughn, 112 F.3d 703, 709 (3d

Cir. 1997) (finding that plaintiff’s “prolonged administrative segregation,” without a deprivation

of life’s necessities, did not violate the Eighth Amendment.); Talbert v. Shapiro, No. 23-2262,

2023 WL 4564778, at *6 (E.D. Pa. July 14, 2023) (“Detention in a restrictive housing unit, without

more, generally is insufficient to establish an Eighth Amendment violation.” (cleaned up)).

To the extent Plaintiff challenges specific conditions of confinement within the RHU, none

of them rise to the level of an Eighth Amendment violation:

• Plaintiff’s allegations that he was fed meals and medication through a slot in the

door does not allege a deprivation of the “minimal civilized measure of life’s

necessities.” Farmer, 511 U.S. at 834. Whether the deprivation of food violations

constitutional protections “depends on the amount and duration of the deprivation.”

Duran v. Merline, 923 F. Supp. 2d 702, 720 (D.N.J. 2013) (quotation omitted).

“While a total deprivation of meals raises an Eighth Amendment claim,” Glenn v.

McLain, No. 23-209, 2024 WL 4350272, at *10 (W.D. Pa. Sept. 30, 2024), Plaintiff

admits that he received meals, albeit in his cell.

• As to Plaintiff’s claims of infrequent showers in restrictive custody, the Eighth

Amendment does not require that prisoners be afforded frequent or comfortable

showers. DiFilippo v. Vaughn, No. 95-909, 1996 WL 355336, at *5 (E.D. Pa. June

24, 1996); see also Devon v. Warden SCI-Mahanoy, No. 08-1448, 2008 WL

3890161, at *4 (M.D. Pa. Aug. 19, 2008) (holding that thirteen and a half days

without shower, shave, or recreation did not violate the Eighth Amendment).

• As to Plaintiff’s claim that he was given out-of-cell recreation only in a steel cage,

instead of the general yard, courts have found that although the near-total

deprivation of the opportunity to exercise may violate the Eighth Amendment,

temporary denial of out-of-cell exercise does not violate the Constitution. Barndt

v. Wenerowicz, 698 F. App’x 673, 677 (3d Cir. 2017) (deprivation of out-of-cell

exercise for twenty-eight days was not a deprivation). Courts should consider “the

length of the deprivation, the availability of recreation within the cell, and whether

the inmate suffered any ill health effects as a result of the deprivation.” Id.

(citations omitted). Here, Plaintiff admits that he was given out-of-cell recreation,

albeit in a steel cage. This condition does not violate the Eighth Amendment.

• With respect to his claim of limited phone access, “prisoners ‘ha[ve] no right to

unlimited telephone use,’ and reasonable restrictions on telephone privileges do not

violate their [constitutional] rights.” Almahdi v. Ashcroft, 310 F. App’x 519, 521-

22 (3d Cir. 2009) (quotations omitted).

• As to any deprivation of access to the law library, a claim that prison officials have

denied an inmate access to the law library does not constitute an Eighth Amendment

claim, but rather a First or Fourteenth Amendment access to courts claim. Frazier

v. Daniels, 2010 WL 2040763, at *12 & n.12 (E.D. Pa. May 20, 2010) (citations

omitted). Moreover, any claim based on denial of access to a prison law library

must be accompanied by “some actual injury.” Id. Plaintiff has alleged no such

injury.

• Plaintiff’s claim that he was shackled whenever out of cell while in the RHU also

does not violate the Eighth Amendment. See Conklin v. Doe, No. 24-189, 2024

WL 4544776, at *3-4 (M.D. Pa. Oct. 22, 2024) (finding that policy of keeping RHU

inmates restrained is not a per se constitutional violation); Platt v. Brockenborough,

476 F. Supp. 2d 467, 471 (E.D. Pa. 2007) (noting that the use of shackles per se

does not violate the Eighth Amendment).

• With respect to the allegedly cold conditions in the RHU, the Third Circuit has held,

in several unpublished opinions, that an inmate’s exposure to cold conditions does

not, absent more, violate the Eighth Amendment. See Burkholder v. Newton, 116

F. App’x 358, 363 (3d Cir. 2004) (denying a conditions of confinement claim based

on exposure to cold temperatures and an unsanitary toilet for thirty days); Bracey

v. Sec’y Pa. Dept. of Corrs., 686 F. App’x 130, 136 (3d Cir. 2017) (holding that

allegedly cold conditions in cell did not violate the Eighth Amendment, absent

showing that conditions were extreme).

• Finally, as to Plaintiff’s claim that he was not provided with books, was allowed

only $40 worth of monthly commissary access, did not have working JPay kiosks,

and had only a sliver of glass for a window, “[t]he loss of such minor privileges

simply does not rise to the level of a sufficiently serious deprivation of life’s

necessities.” Bacon v. Luzerne Cnty., No. 23-1699, 2024 WL 1837217, at *4 (M.D.

Pa. 2024) (citing Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (no Eighth

Amendment violation where plaintiff’s confinement in administrative custody did

not involve “a deprivation of any basic human need.”)).

Indeed, courts considering similar allegations collectively have declined to find an Eighth

Amendment violation. See, e.g., Glenn v. McLain, No. 23-209, 2024 WL 4350272, at *10 (W.D.

Pa. Sept. 30, 2024) (denying Eighth Amendment claim based on conditions in RHU, including

temporary loss of outdoor exercise time, temporary denial of a mattress, temporary denial of a

shower, restricted meal items, and lack of access to personal property); Smith v. McGinley, No.

22-1382, 2024 WL 275041, at *6 (M.D. Pa. May 28, 2024) (finding placement in RHU resulting

in inability to use the telephone, denial of mailing envelopes, temporary placement in a cell with

no hot water for three days, inability to use cleaning products, and inability to purchase items from

the commissary did not violate Eighth Amendment).

While Plaintiff’s conditions in the RHU may have been uncomfortable, Plaintiff has not

alleged any facts that would suggest that those conditions rose to the level of “extreme.” More

pointedly, he has not plausibly alleged that the conditions to which he was exposed posed a risk

of serious harm.4 Accordingly, Plaintiff’s allegations in his Proposed TAC fail to meet the first

requirement of an Eighth Amendment claim against Defendant Borg.

B. Knowledge

The second, actual knowledge requirement of an Eighth Amendment claim means that “the

official must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. A

4 In support of his claim, Plaintiff cites Ingalls v. Florio, 968 F. Supp. 193 (D.N.J. 1997).

Pl.’s Reply at 4. In that case, however, the plaintiffs alleged routine housing of five or six inmates

in cells designed for only one or two people, continuous sleeping on the floor, lack of toilet paper,

food storage and preparation areas infested with vermin causing bacterial contamination of meals,

and absence of any outdoor recreation whatsoever for time periods in excess of a year. Id. at 198.

The court found that the general conditions were “severe enough to constitute possible deprivations

of the minimal civilized measure of life’s necessities.” Id. Such conditions are far more extreme

than those alleged by Plaintiff here.

prison official, however, cannot avoid liability by ignoring “obvious dangers to inmates.” Id. at

842. Rather, “it is enough that the official acted or failed to act despite his knowledge of a

substantial risk of serious harm.” Id. Stated differently, “[d]eliberate indifference is effectively

alleged where an inmate shows officials knew of, but disregarded, that the prison conditions posed

‘an excessive risk to inmate health and safety.’” Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2022)

(quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001)).

Here, the Proposed TAC simply alleges that Defendant Borg was familiar with conditions

in the RHU; yet, based on retaliatory motives, she gave the order for Plaintiff to be transferred

from general population to the RHU at South Woods State Prison. Proposed TAC ¶¶ 69, 84, 90.

Nothing in the Proposed TAC, however, allows the inference that Borg knew that Plaintiff faced

a substantial risk of serious harm while in the RHU.5 Nor does the Proposed TAC suggest that

5 Plaintiff cites several cases for the proposition that when a prison official intentionally

and without penological basis places a prisoner in a situation where he will suffer harm, the

deliberate indifference element is satisfied. Pl.’s Reply at 1-4. Plaintiff’s cases, however, are

distinguishable on their facts, as the defendants there either were responsible for or knew of a

specific risk to the inmate-plaintiffs’ safety. See Clarke, 55 F.4th at 183 (finding that officials’

imposition of solitary confinement for months, despite knowing that the isolation carried a

substantial risk of exacerbating plaintiff’s mental illness, violated the Eighth Amendment where

they kept him in solitary confinement until he suffered serious harm); Chavarriaga, 806 F.3d at

229-30 (finding that officer’s intentional denial of potable water for three days to inmate evidenced

deliberate indifference); see also Luna v. Davis, 59 F.4th 713, 717-18 (5th Cir. 2023) (finding

potential deliberate indifference where officer transferred plaintiff to certain housing knowing that

he faced a substantial risk of being assaulted by inmates who he had previously reported to prison

officials); Thomas v. Tice, 948 F.3d 133, 138-40 (3d Cir. 2020) (finding genuine issue of material

fact as to deliberate indifference where prison officials continued inmate’s administrative

confinement in “dry cell”—which had no running or standing water—after four days passed and

examination of inmate’s feces following twelve bowel movements revealed no signs of

contraband); Williams v. Jackson, 600 F.3d 1007, 1013-14 (8th Cir. 2010) (finding that correction

officers were not entitled to qualified immunity from Eighth Amendment claim when officers

deliberately removed protective shield from germicidal ultraviolet radiation lamp, thereby

exposing plaintiff to ultraviolet radiation, in retaliation for a comment by another inmate, and

where officers ignored demands to replace the shield or deactivate the light); Gulett v. Haines, 229

F. Supp. 2d 806, 823-24 (S.D. Ohio 2002) (finding genuine issue of material fact as to deliberate

indifference where inmate alleged that officer knew that inmate’s attacker harbored animus against

inmate and was ready to physically assault him, yet officer failed to prevent attacker from

Plaintiff faced any actual excessive risk to his safety. Such bare-boned allegations are insufficient

to establish the second element of an Eighth Amendment claim.

IV. CONCLUSION

For the foregoing reasons and taking all allegations in the light most favorable to Plaintiff,

Plaintiff’s Proposed TAC against Defendant Borg fails to allege a plausible Eighth Amendment

claim. As such, permitting the requested amendment would be futile. Accordingly, Plaintiff’s

Motion for Leave to Amend is DENIED WITHOUT PREJUDICE.

s/Elizabeth A. Pascal

ELIZABETH A. PASCAL

United States Magistrate Judge

cc: Karen M. Williams, U.S.D.J.

accessing inmate’s cell during solitary free time).