# HUNTER v. SCHULLERY

> District Court, D. New Jersey · April 23, 2025

URL: https://www.frixlaw.com/law-library/cases/10849870

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10849870

## How later opinions describe it (automated extraction)

- 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 …
- finding that plaintiff’s “prolonged administrative segregation,” without a deprivation of life’s necessities, did not violate the Eighth Amendment.

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10849870. Public record. Not legal advice.