Bacon v. Luzerne County

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA DWANE BACON, Civil No. 3:23-cv-1699

Plaintiff (Judge Mariani)

V. FILED

SCRANTON

LUZERNE COUNTY, et al.,

JUN 30 2025

Defendants PER □

DEPUTY CLERK

MEMORANDUM

Plaintiff Joshua Bacon (“Bacon”), an inmate in the custody of the Pennsylvania

Department of Corrections (“DOC”), commenced this civil rights action in the Court of

Common Pleas of Luzerne County. (Doc. 1-1). Defendants subsequently removed the

action to the United States District Court for the Middle District of Pennsylvania. (Doc. ‘1).

The matter is proceeding via a second amended complaint! (Doc. 78) against

Luzerne County, the Luzerne County.Correctional Facility (“LCCF”), Correctional Officer

Kaitlynn Romiski, Treatment Coordinator and Grievance Coordinator Christina Oprishko-

Beyer, Correctional Officer David Witkowsky, Correctional Officer David Steever,

Correctional Officer William Hall, Correctional Officer Paul Richards, Correctional Officer

Randal Williams, Correctional Officer James Wilbur, Deputy Warden Samuel Hyder,

1 matter of law, an amended complaint takes the place of any prior complaint, effectively

invalidating the prior complaint. See Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017) ("in general, an

amended pleading...supersedes the earlier pleading and renders the original pleading a nullity”). As stated

in the Court's October 30, 2024 Order, the second amended complaint is the governing pleading in this

action. (Doc. 76).

Warden Mark Rockovich, Correctional Officer Patrick Kane, Correctional Officer Hrivnak,

Correctional Officer Sweet, Correctional Office Skipalis, Hearing Examiner Sean Mulhorn,

Classifications Specialist Jamie Aquilla, former Luzerne County Manager C. David Pedri,

Luzerne County Manager Romilda Crocamo, and Prison Rape Elimination Act (“PREA’)

Coordinator Deborah Schloss.

Presently pending before the Court is Defendants’ motion (Doc. 82) to partially

dismiss the second amended complaint 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.

l. Allegations of the Second Amended Complaint

At all relevant times, Bacon was housed as a pretrial detainee at the Luzerne County

Correctional Facility. (Doc. 78, at 2). Bacon states that he was diagnosed with autism

spectrum disorder and attention deficit hyperactive disorder. (/d. at 5).

Bacon first alleges that Defendants failed to protect him from assaults by other

inmates. (/d. at 8-10). Bacon asserts that he was assaulted on two separate occasions at

LCCF. (Id. at 8). On April 6, 2021, Bacon alleges that inmate Kyle Pennington assaulted

him. (Id.). He alleges that Defendants Hall, Richards, Williams, Witkosky, and Steever had

personal experiences with Pennington and knew of the risk to Bacon by placing him in a cell

with Pennington. (/d. at 8-10). Bacon asserts that Defendants Hall and Richards conspired

to put him in a cell with Pennington which caused Bacon to “be incarcerated under

conditions posing a substantial risk of harm.” (/d. at p. 9).

On July 2, 2021, Bacon alleges that he was assaulted by inmate Joshua Keziah. (/d.

at 8). Bacon alleges that he informed Defendants Witkosky, Steever, Skipalis, and Williams

that Keziah threatened him and that he requested a separation from Keziah. (/d. at 9-10).

Bacon alleges that his separation request was ignored. (/d.).

Bacon next sets forth a municipal liability claim against Luzerne County. (/d. at 11-

12). He alleges that Luzerne County has “several unofficial ‘customs’ and ‘practices’ that □

caused his injuries.” (/d. at 11). Bacon avers that his procedural due process rights were

violated because Luzerne County has a policy to place inmates accused of PREA violations

in the Restricted Housing Unit (“RHU”) while the investigation is pending. (/d. at 11). Bacon

alleges that his due process rights were violated by Luzerne County in the following ways:

(1) LCCF was reckless and negligent in failing to have “a process to identify those inmates

and pre-trial detainees who might disproportionately suffer or decompensate in solitary

confinement” (id.); (2) LCCF uses the Administrative Segregation block to house “both

individuals who are in fear for their lives as well as individuals who are a threat to the

security of the institution” (id.); (3) LCCF does not have separate housing for individuals with

mental health issues needing additional care and support (id. at 12); and (4) LCCF does not

have a policy requiring a specialized mental health unit for individuals with severe mental

illness (id.; see also Doc. 107, at 7).

Bacon next alleges that his placement in the RHU, while suffering a mental

impairment, violated his procedural due process rights and constituted an unconstitutional

condition of confinement. (Doc. 78, at 12-17). Bacon was placed in the RHU on three

separate occasions. (/d.). First, on March 31, 2021, Bacon was accused of PREA

violations. (/d. at 14). Defendants Romiski, Aquilla, and Schloss allegedly ordered Bacon

to be placed in the RHU on March 31, 2021. (Id.). He alleges that Defendants Romiski,

Aquilla, and Schloss did not provide an explanation for his transfer to the RHU and did not

provide him an opportunity to respond to the accusations. (/d.). On April 23, 2021, Bacon

was released from the RHU after the charges were determined to be unsubstantiated. (/d.).

Second, on May 14, 2021, Defendants Aquilla and Schloss ordered Bacon to be

placed in the RHU, again due to allegations of PREA violations. (/d. at 13-15). He alleges

that Defendants Romiski, Kane, Aquilla, Skipalis, Oprishko-Beyer, and Schloss did not

provide an explanation for his transfer to the RHU and did not provide him an opportunity to

respond until May 27, 2021. (/d.). Defendant Aquilla did inform Bacon that he “was under

investigation again” but did not explain the nature of the investigation. (/d. at 13). Bacon

remained in the RHU until May 28, 2021. (/d.).

Third, on July 2, 2021, Bacon alleges that he was assaulted by inmate Keziah. (Id.

at 13-15). Also on July 2, 2021, Defendants Witkosky and Steever ordered Bacon to be

placed in the RHU under alleged misconduct and PREA violations, despite their purported

acknowledgment that “Bacon did not throw any punches” during altercation with inmate

Keziah. (/d.). Bacon “does not dispute that written notice of the charges was presented

more than 24 hours prior, nor does he dispute that an explanation was provided.” (/d. at

14). He further asserts that “[a] written statement of the reasons for disciplinary action taken

was not necessary,” because he was found not guilty. (/d.). Bacon alleges that he was not

provided a hearing on these charges “within a reasonable amount of time.” (/d.). He

asserts that Defendant Hearing Examiner Mulhorn met with him on July 5, 2021 regarding

the misconduct for fighting, but Mulhorn did not issue a decision until July 13, 2021. (Id.).

Bacon further alleges that he was not provided official notice of the PREA violation until July

6, 2021. (Id.). Bacon was released from the RHU on July 9, 2021. (/d.). With respect to

this third placement in the RHU, Bacon alleges that Defendants Williams, Witkosky,

Steever, Sweet, Hrivnak, Wilbur, Kane, Schloss, Mulhorn, and Oprishko-Beyer violated his

procedural due process rights. (/d. at 14).

Bacon asserts that his placements in the RHU amounted to solitary confinement and

violated his “substantial liberty interest” because of his “serious mental illness.” (/d. at 14-

15).

During these three periods of time in the RHU, Bacon spent a total of 46 days in

solitary confinement. (/d. at 15). Bacon alleges as follows:

While Bacon acknowledges that the placements in solitary confinement may

appear relatively brief on the surface, the amount of time placed in solitary

_ confinement is irrelevant, because even one day of solitary confinement

. under these conditions inherently violated Bacon’s Fourteenth Amendment

rights in light of his [severe mental illness].

(Id. at 15-16, ] 19). He alleges that the “above named” Defendants acted “recklessly,

negligently, and with deliberate indifference to his qualified [severe mental illness]’ by

placing him in solitary confinement despite allegedly being aware of his mental health

diagnoses. (/d. at 15).

Bacon alleges that when he was housed in the RHU, he was confined in a small cell

without a window, he was not allowed in-person or video visits, he was allowed limited

phone calls and limited recreation time, and he was not allowed to use a television, radio,

tablet, personal books, or magazines. (/d. at 16).

Defendants now move to partially dismiss the second amended complaint pursuant

to Rule 12(b)(6). (Doc. 82). The motion is fully briefed and ripe for resolution.

Il. 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).

“[Wyhere 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.” /gbal, 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.” Id.

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).

[E]ven 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.

lll. Discussion

A. Luzerne County Correctional Facility

With respect to Bacon’s purported constitutional claims against the Luzerne County

Correctional Facility as an institution, it is well-settled that inmate civil rights actions under §

1983 may be brought against:

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 [of the United States].

42 U.S.C. § 1983 (emphasis added). Thus, by its terms § 1983 limits the scope of liability

to specific persons or entities who violate constitutional rights, and it has been held that a

prison or correctional facility is not a “person” within the meaning of § 1983. Fischer v.

Cahill, 474 F.2d 991, 992 (3d Cir. 1973). The Luzerne County Correctional Facility is not a

proper Defendant in this case and will be dismissed.?

B. Monell Liability

Defendants first seek to dismiss the MonelF claim against Luzerne County. (Doc.

90, at 24-37).

Municipalities and other local governmental entities or officials may not be held liable

under federal civil rights laws for the acts of their employees under a theory of respondeat

superior or vicarious liability. Ashcroft, 556 U.S. 662; see also Colburn v. Upper Darby

Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). However, they may be held liable “when

execution of a government's policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978). To sustain a Monel! municipal liability claim, a plaintiff must “identify

a municipal ‘policy’ or ‘custom’ that caused the plaintiff's injury” to prevail. Ba. of Cnty.

Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997). This custom must be “so

widespread as to have the force of law.” Brown, 520 U.S. at 404; see also Beck v. City of

2 Defendants’ motion does not address the claims against the Luzerne County Correctional

Facility. Nonetheless, because the Court finds that the Luzerne County Correctional Facility is not a

properly named Defendant and is not amenable to suit under § 1983, it will be dismissed sua sponte. See

Kaetz v. TransUnion, No. 3:05-CV-1545, 2006 WL 8451343, at *3 (M.D. Pa. Apr. 26, 2006) (collecting

cases discussing sua sponte authority to dismiss claims).

3 Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).

Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or edict of a

municipality, while a custom is a practice that is “so permanent and well settled as to

virtually constitute law”) (quoting Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir.

1990)) (citations omitted). A plaintiff must further “allege that a ‘policy or custom’ of [the

defendants] was the ‘moving force’ behind the [constitutional] violation.” Grayson v.

Mayview State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown, 520 U.S. at 404). A

municipality can be held liable on the basis of failure to train when “that failure amounts to

‘deliberate indifference...[of the constitutional] rights of persons....”” Woloszyn v. Cnty. of

Lawrence, 396 F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a

causal nexus, in that the “identified deficiency in [the] training program must be closely

related to the ultimate [constitutional] injury.” Woloszyn, 396 F.3d at 325 (citations omitted).

Any analysis of a claim under Monell requires separate consideration of two distinct

issues: “(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so

whether the [municipality] is responsible for that violation.” Collins v. City of Harker Heights,

Texas, 503 U.S. 115, 120 (1992). Thus, a municipality or other local government may be

liable under this section only if the governmental body itself “subjects” a person to a

deprivation of rights or “causes” a person “to be subjected” to such deprivation. Connick v.

Thompson, 563 U.S. 51 (2011); Monell, 436 U.S. at 692. However, under § 1983, local

governments are responsible only for “their own illegal acts,” and “are not vicariously liable

under § 1983 for their employees’ actions.” Connick, 563 U.S. at 60. Accordingly, plaintiffs

10

who seek to impose liability on local governments for federal civil rights violations must

prove that “action pursuant to official municipal policy” caused the injury complained of.

Connick, 563 U.S. at 60.

In Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003), the Third

Circuit Court of Appeals further explained that there are “three situations where acts of a

government employee may be deemed to be the result of a policy or custom of the

governmental entity for whom the employee works, thereby rendering the entity liable under

§ 1983[:]"

The first is where the appropriate officer or entity promulgates a generally

applicable statement of policy and the subsequent act complained of is simply

an implementation of that policy. The second occurs where no rule has been

announced as policy but federal law has been violated by an act of the

policymaker itself. Finally, a policy or custom may also exist where the

policymaker has failed to act affirmatively at all, [though] the need to take

some action to control the agents of the government is so obvious, and the

inadequacy of existing practice so likely to result in the violation of

constitutional rights, that the policymaker can reasonably be said to have

been deliberately indifferent to the need.

Natale, 318 F.3d at 584 (internal quotation marks and citations omitted).

Here, Bacon identifies four alleged policies or customs which he maintains are

unconstitutional: (1) a policy that requires individuals accused of PREA violations to be

housed in the RHU pending investigation; (2) a policy that does not offer a process to

identify pretrial detainees who may “decompensate’ in solitary confinement; (3) the lack of a

policy that sufficiently protected Bacon from assault by other inmates; and (4) the lack of a

11

policy requiring a specialized mental health unit for individuals with severe mental illness.

(Doc. 78, at 11; Doc. 107, at 7).

1. Alleged Placement in Disciplinary Segregation without Due

Process

Bacon alleges that Luzerne County has a policy that “requires inmates accused of

PREA violations to be held in the RHU pending investigation, even if the claim has no merit

and the staff is aware that the claim has no merit.” (Doc. 78, at 11). According to the

County, because there was no underlying constitutional violation—placement in disciplinary

segregation without due process—Monell liability cannot lie. (Doc. 90, at 26). The Court

construes this claim as a procedural due process claim against Luzerne County with respect

to his placement in the RHU from March 31, 2021 through April 23, 2021, and May 14, 2021

through May 28, 2021. (Doc. 78, at 13; Doc. 107, at 8).

Pretrial detainees are protected from “punishment” by the Due Process Clause of the

Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Generally, prison

officials’ “restrictions on pretrial detainees will constitute punishment prohibited by the Due

Process Clause when: (1) ‘there is a showing of express intent to punish on the part of

[those] [ ] officials’; (2) ‘the restriction or condition is not rationally related to a legitimate non-

punitive government purpose,’ i.e., ‘if it is arbitrary or purposeless’; or (3) ‘the restriction is

excessive in light of that purpose.” Steele v. Cicchi, 855 F.3d 494, 504 (3d Cir. 2017)

(quoting Stevenson v. Carroll, 495 F.3d 62, 67-68 (3d Cir. 2007) (alterations in original).

12

“Punishment” in this context refers to “punishment of a pretrial detainee for his

alleged criminal conduct, committed prior to his detention, for which he has not yet been

committed.” Id. (emphasis in original). It does not refer to punishment of a pretrial detainee

“for his in-facility conduct.” /d. at 505. In other words, “prisons may sanction a pretrial

detainee for misconduct that he commits while awaiting trial, as long as it is not a

punishment for the ‘underlying crime of which he stands accused.” Kanu v. Lindsey, 739 F.

App’x 111, 116 (3d Cir. 2018) (quoting Rapier v. Harris, 172 F.3d 999, 1003-06 (7th Cir.

1999)). However, while “pretrial detainees do not have a liberty interest in being confined in

the general prison population, they do have a liberty interest in not being detained

indefinitely in [disciplinary segregation] without explanation or review of their confinement.”

Singleton v. Superintendent Camp Hill SCI, 747 F. App’x 89, 92 (3d Cir. 2018) (per curiam)

(quoting Bistrian v. Levy, 696 F.3d 352, 375 (3d Cir. 2012)).

With respect to pretrial detainees, “the imposition of disciplinary segregation for

violation of prison rules and regulations cannot be imposed without providing the due

process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d

935 (1974).” Kanu, 739 F. App’x at 116. Such protections “include the right to receive

written notice of the charges at least 24 hours before the hearing, the opportunity to present

witnesses and documentary evidence, and a written statement of the reasons for the

disciplinary action taken and the supporting evidence.” /d. (citing Wolff, 418 U.S. at 563-

66).

13

Fewer due process protections are required for placement in administrative

segregation. Stevenson, 495 F.3d at 70 (explaining that “greater process [is] accorded to

prisoners who are confined for disciplinary infractions than those moved for purely

administrative reasons” (alteration added)). This is because “maintaining internal security

and order in jails and prisons are ‘legitimate governmental objectives” that may justify

placement of a detainee in administrative segregation, and “courts must give prison officials

considerable discretion to manage internal security in their institutions.” Steele, 855 F.3d at

505. In other words, if officials can articulate a legitimate managerial concern for placement

of the detainee in restricted housing, a substantive due process claim is foreclosed.

Stevenson, 495 F.3d at 69 (“Although the substantive and procedural due process

evaluations are distinct, a showing by the prison officials that a restrictive housing

assignment is predicated on a legitimate managerial concern and is therefore not arbitrary

or purposeless, will typically foreclose the substantive due process inquiry”). When a

detainee’s placement is for administrative purposes, “the minimal procedures outlined in

Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) are all that is

required.” Lewis v. Williams, No. 05-013, 2011 WL 2441377, at *17 (D. Del. June 13, 2011)

(citing Stevenson, 495 F.3d at 70). Hewitt requires that, within a reasonable time, a

detainee be explained the reason for the administrative placement as well as an opportunity

to respond. Steele, 855 F.3d at 507; Stevenson, 495 F.3d at 70 (citations omitted). “[T]he

opportunity to respond can be satisfied by written grievances.” Kanu, 739 F. App’x at 117.

14

In relation to his claims against Luzerne County, Bacon alleges that he was placed in

administration segregation for a total of 38 days. (Doc. 78, at 13-14; Doc. 107, at 8). Bacon

alleges that he was first placed in the RHU from March 31, 2021 through April 23, 2021,

amounting to 24 days, during a PREA investigation. (Doc. 78, at 13; Doc. 107, at 8). He

alleges that Defendants Romiski, Aquilla, and Schloss did not provide an explanation for his

transfer to the RHU and did not provide him an opportunity to respond to the accusations.

(Doc. 78, at 13). On April 23, 2021, Bacon was released after the charges were determined

to be unsubstantiated. (/d.).

Bacon was again placed in the RHU from May 14, 2021 through May 28, 2021,

amounting to 14 days, during a PREA investigation. (/d.). He alleges that Defendants

Romiski, Kane, Aquilla, Skipalis, Oprishko-Beyer, and Schloss did not provide an

explanation for his transfer to the RHU and did not provide him an opportunity to respond

until May 27, 2021. (/d.). Bacon acknowledges that Defendant Aquilla informed him that he

“was under investigation again” but did not explain the nature of the investigation. (/d. at

13). On this occasion, Bacon remained in the RHU until May 28, 2021.4 (Id.).

The second amended complaint sufficiently pleads facts that there were no

procedural protections to protect Bacon’s liberty interests. Specifically, Bacon alleges that

4 As stated, Bacon also alleges that he was placed in the RHU for a third time from July 2, 2021

through July 9, 2021, under alleged misconduct and PREA investigations. (Doc. 78, at 13; Doc. 107, at 8).

Bacon clarifies that he does not bring a procedural due process violation against Luzerne County with

at this third placement in the RHU; this claim is only set forth against Defendant Mulhorn. (Doc.

15

he was placed in the RHU without being provided a reason for the placement or an

opportunity to respond to the accusations. Because the Court finds that, at this stage of the

proceedings, Bacon has plausibly alleged a procedural due process claim with respect to

his placements in the RHU from March 31, 2021 through April 23, 2021, and May 14, 2021

through May 28, 2021, the Court cannot dismiss the derivative Monell claim. See, e.g., City

of L.A. v. Heller, 475 U.S. 796, 799 (1986) (plaintiff must establish an underlying

constitutional violation to attribute liability to the county); Mulholland v. Gov't Cnty. of Berks,

Pa., 706 F.3d 227, 238 n. 15 (3d Cir.2013) (“It is well-settled that, if there is no violation in

the first place, there can be no derivative municipal claim.”)

2. Alleged Failure to Screen Pretrial Detainees with Mental Iliness

Prior to Placement in Disciplinary Confinement

Bacon next brings a Fourteenth Amendment substantive due process claim against

Luzerne County. (Doc. 78, at 11). In support of this claim, he alleges that “it was both

reckless and negligent” for the prison “to not have a process to identify those inmates and

pre-trial detainees who might disproportionately suffer or decompensate in solitary

confinement and offer alternatives to solitary confinement.” (Id.).

Defendants argue there is “no jurisprudential authority in this Circuit that a pretrial

detainee with a diagnosed mental condition has a constitutional right to a mental screening

prior to being placed in disciplinary confinement, even when that confinement may include

periods of isolation.” (Doc. 90, at 30). They argue further that any claim for the distress

associated with Bacon’s placement in disciplinary confinement must be dismissed because

16

he failed to articulate any injury beyond emotional distress, a necessary showing to recover

damages under the Prison Litigation Reform Act ("PLRA’), 42 U.S.C. § 1997e(e). (Id. at 29-

30).

As stated, institutional security and effective facility management are valid

governmental objectives that can justify restrictions on pretrial detainees. See Bell, 441

U.S. at 540. Such measures are “peculiarly within the province and professional expertise

of corrections officials, and, in the absence of substantial evidence. ..to indicate that the

officials have exaggerated their response to these considerations, courts should ordinarily

defer to their expert judgment in such matters.” Bell, 441 U.S. at 540 n.23; see also Sandin

v. Conner, 515 U.S. 472, 482-83 (1995) (“[Flederal courts ought to afford appropriate

deference and flexibility to state officials trying to manage a volatile environment.’).

Further, “the Due Process Clause does not mandate that...officials use the /east

restrictive means available to accomplish their non-punitive objective.” Steele, 855 F.3d at

506 (citing Bell, 441 U.S. at 542 n.25; emphasis in original). “Indeed... ‘[glovernmental

action does not have to be the only alternative or even the best alternative for it to be

reasonable, to say nothing of constitutional.” Steele, 855 F.3d 494, 506 (quoting Bell, 441

U.S. at 542 n.25). “The central question,” therefore, is whether the inmate has “sufficiently

alleged that the conditions of his pretrial confinement constituted ‘punishment.”

Southerland v. Cnty of Hudson, 523 F. App’x 919, 921-22 (3d Cir. 2013) (per curiam).

17

Bacon alleges that Defendants placed him in administrative segregation pending

misconduct and PREA investigations. He further alleges that the prison should have a

policy to screen pretrial detainees suffering from a mental illness prior to placement in

segregation. However, Bacon does not have a protected liberty interest in his security

classification or housing preference. See, e.g., Stevenson, 495 F.3d at 69 (“pretrial

detainees do not have a liberty interest in being confined in the general population”); Muslim

v. Frame, 854 F. Supp. 1215, 1227 (E.D. Pa. 1994) (“The United States Constitution does

not give the [pretrial detainee] plaintiff a liberty interest in remaining in the general prison

population.”).

“[T]he ultimate question under Bell is whether a particular condition or restriction of

pretrial detention is reasonably related to a legitimate governmental objective.” Hubbard v.

Taylor, 538 F.3d 229, 236 (3d Cir. 2008) (quotations omitted). A detainee’s security

classification and resulting housing placement is related to the valid government objective of

maintaining institutional security, and a detainee’s criminal history is relevant to his security

classification. Bacon alleges that Defendants failed to screen pretrial detainees for mental

health problems prior to placement in disciplinary segregation. However, he acknowledges

that he was placed in segregation during misconduct and PREA investigations and that he

was Classified as a maximum-security inmate due to the amount of his bail and history of

violent offenses. (Doc. 78, at 14-15; see also Doc. 78, at 12 (alleging that he was not

qualified for placement on the “psychiatric block” due to his classification as a “maximum

18

security inmate”). In short, Bacon has not plausibly alleged his placements in segregation

were arbitrary or purposeless restrictions on his liberty, or so excessive as to result in

unconstitutional punishment.

With respect to compensatory damages, the PLRA bars such claims for purely

emotional distress damages in the absence of any physical injury. The PLRA states that

“Injo Federal civil action may be brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered while in custody without a prior

showing of physical injury.” 42 U.S.C. § 1997e(e).

Bacon has not alleged that he suffered compensable physical harm. To the extent

that Bacon is attempting to set forth a claim for compensatory damages based upon

emotional distress alone, his failure to establish any compensable physical injury resulting

from this alleged constitutional infraction precludes any recovery for these damages under

the PLRA.5 As such, Bacon cannot maintain a Monell claim against Luzerne County based

on his “decompensation” in disciplinary confinement.

5 Further, punitive damages are not available against a local government defendant. It is well-

settled that a plaintiff may not seek punitive damages against a municipality. See Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271 (1981) (“[Wle hold that a municipality is immune from punitive damages

under 42 U.S.C. § 1983.”); City of Phila. Office of Hous. & Cmty. Dev. v. Am. Fed’n of State Cty & Mun.

Emps, Local Union No. 1971, 583 Pa. 121, 876 A.2d 375, 378 (Pa. 2005) (“[G]overnment agencies have

long been exempt from the imposition of punitive damages.’).

19

3. Alleged Lack of Policy to Protect Inmates from Assault by Other

Inmates

As a pretrial detainee, Bacon’s interests are grounded in either the Fifth Amendment

or the Due Process Clause of the Fourteenth Amendment. Fuentes v. Wagner, 206 F.3d

335, 367 (3d Cir. 2000). However, the Third Circuit has indicated that the deliberate

indifference standard set forth in Eighth Amendment jurisprudence is the appropriate

standard in the context of a Fourteenth Amendment failure-to-protect claim. See A.M. ex

rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 587 (3d Cir. 2004). “[T]he

Eighth Amendment’s Cruel and Unusual Punishments Clause imposes on prison officials ‘a

duty to protect prisoners from violence at the hands of other prisoners.” Bistrian, 696 F.3d

at 366-67 (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994); see also Beers-Capitol v.

Whetzel, 256 F.3d 120, 130-33 (3d Cir. 2001)). “[A]n unsentenced inmate “is entitled[,] at a

minimum, to no less protection than a sentenced inmate is entitled to under the Eighth

Amendment.” Bistrian, 696 F.3d at 352 (citation omitted).

The elements of a failure to protect claim are: (1) the inmate was incarcerated under

conditions posing a substantial risk of serious harm; (2) the prison official acted with

deliberate indifference to the inmate’s health and safety; and (3) the official's deliberate

indifference caused the inmate harm. Bistrian, 696 F.3d at 367. “Deliberate indifference’ in

this context is a subjective standard: the prison official-defendant must actually have known

or been aware of the excessive risk to inmate safety.” /d. (citing Beers-Capitol, 256 F.3d at

20

125). “Itis not sufficient that the official should have known of the risk.” Bistrian, 696 F.3d

at 367.

Consequently, prison officials can avoid liability by showing they were unaware of

the danger, or they believed the risk was insubstantial or nonexistent. Bistrian, 696 F.3d at

367. “In addition, prison officials who actually knew of a substantial risk to inmate health or

safety may be found free from liability if they responded reasonably to the risk, even if the

harm ultimately was not averted.” /d. (quoting Farmer, 511 U.S. at 844) (internal quotation

marks omitted)). Mere negligent conduct that leads to serious injury of a prisoner by a

prisoner does not expose a prison official to civil rights liability. Davidson v. Cannon, 474

U.S. 344, 347-48 (1986).

Moreover, liability may not be imposed under § 1983 on the traditional standards of

respondeat superior. Capone v. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989) (citing Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)). In Capone, the court

noted “that supervisory personnel are only liable for the § 1983 violations of their

subordinates if they knew of, participated in or acquiesced in such conduct.” 868 F.2d at

106 n.7. The plaintiff must allege that the defendant was personally involved in the events

or occurrences that underlie the claim. See Atkinson v. Taylor, 316 F.3d 257, 270-71 (3d

Cir. 2003); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) ("[a] defendant in a

civil rights action must have personal involvement in the alleged wrongs.... [PJersonal

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

21

and acquiescence. Allegations of participation or actual knowledge and acquiescence,

however, must be made with appropriate particularity.”).

Bacon alleges that prison officials failed to protect him from inmate Pennington and

inmate Keziah, who allegedly assaulted him on two separate occasions. With respect to

inmate Pennington, Bacon alleges that Defendants Hall, Richards, Williams, Witkosky, and

Steever were “aware of Pennington’s severe mental illness which caused him to act

violently, often without warning” and knew of the risk to Bacon by placing him in a cell with

Pennington. (Doc. 78, at 8-10). With respect to inmate Keziah, Bacon alleges that he

informed Defendants Witkosky, Steever, Skipalis, and Williams that Keziah threatened him

and that he requested a separation from Keziah. (/d. at 9-10). Bacon alleges that his

separation request was ignored. (/d.).

Although Bacon alleges that certain Defendants were aware of specific threats by

inmate Keziah and inmate Pennington’s violent propensities, he offers no facts to suggest

that Luzerne County was aware of any risk to his safety or that it was deliberately indifferent

to such a risk. Where a plaintiff seeks to raise a § 1983 claim against a municipality, such

as Luzerne County, the plaintiff must establish that the municipality itself was responsible

for the constitutional violation in question, rather than merely asserting that the municipality

is responsible for the acts of its employees. Los Angeles Cnty. v. Humphries, 562 U.S. 29,

35-36 (2010) (citing Monell, 436 U.S. at 690-91). A plaintiff will therefore make out a claim

against a municipality where he pleads facts showing that the action which violated his

22

rights “implements or executes a policy statement, ordinance, regulation, or decision

officially adopted and promulgated” by the municipality, or was the result of an unofficial

custom put into place by the municipality, although that custom may not have been formally

adopted by the official decision makers of the municipality. /d. at 36 (quoting Monell, 436

U.S. at 690-91).

Bacon tries to tie Luzerne County to the individual Defendants’ alleged failure to

protect him by asserting that the prison’s administrative segregation block houses “both

individuals who are in fear for their lives as well as individuals who are a threat to the

security of the institution.” (Doc. 78, at 11). Bacon does not assert that there is a history of

incidents involving both types of inmates being housed in administrative segregation, nor a

history of attacks such as the one he suffered because of the absence of any policy.

Instead, he generally alleges that the mere “presence” of an inmate that poses a threat

(such as inmates Pennington and Keziah), “inherently posed a risk to everyone who was in

Administrative Segregation.” (/d. at 11-12). Given these shortcomings, Bacon has not pled

facts that would suggest that the need for the vague policy he desires was entirely obvious,

nor has he pled facts which would show that the existing practices and policies were

obviously inadequate, such that a failure to act on the part of Luzerne County amounted to

23

deliberate indifference. Therefore, this Monell claim against Luzerne County will be

dismissed.§

4, Alleged Lack of Policy Requiring a Specialized Mental Health Unit

for Individuals with Severe Mental Illness

Next, Bacon alleges that Luzerne County lacks a specific policy requiring a

specialized mental health unit for individuals with a severe mental illness. (Doc. 78, at 12;

Doc. 107, at 7). Bacon acknowledges that there was a “psychiatric block,” but that he was

not qualified to be housed on the block because he was classified as a “maximum security

inmate.” (Doc. 78, at 12).

First, Bacon admits that the Luzerne County Prison does, in fact, have a “psychiatric

block” to house inmates with a mental illness. (/d.).

Second, Bacon does not assert that there is a history of inmates with a mental illness

housed in administrative segregation being subjected to heightened distress or increased

risk of attack by other inmates. Nor does he allege a history of distress or attacks because

of the absence of any policy. Thus, Bacon has failed to plead a Monell claim with respect to

an alleged lack of a policy requiring a specialized mental health unit for individuals with

severe mental illness.

6 Bacon alleges that Defendants Hall, Richards, Witkowsky, Steever, Skipalis, Williams, Sweet,

Hrivnak, and Kane were aware of the risk of harm by inmates Pennington and Keziah. (Doc. 78, at 8-10).

These Defendants are not currently moving for dismissal of this claim.

24

C. Fourteenth Amendment Procedural Due Process Claim

Bacon alleges that Defendants violated the Fourteenth Amendment by placing him in

the RHU without procedural due process. (Doc. 78, at 12-14). The Fourteenth Amendment

prohibits the states from depriving “any person of life, liberty, or property, without due

process of law.” U.S. ConsT. amend. XIV, § 1. To assess procedural due process claims,

courts analyze (1) whether the state has interfered with a protected iberty or property

interest and (2) “whether the procedures attendant upon that deprivation were

constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).

As stated supra, pretrial detainees do not have a liberty interest in being confined in

general population, however, “they do have a liberty interest in not being detained

indefinitely in [disciplinary segregation] without explanation or review of their confinement.”

Singleton, 747 F. App’x at 92 (citation omitted). Within a reasonable time, a pretrial

detainee must be provided the reason for the administrative placement and an opportunity

to respond. Steele, 855 F.3d at 507; Stevenson, 495 F.3d at 70 (citations omitted).

Bacon alleges that he was first placed in the RHU from March 31, 2021 through April

23, 2021, during a PREA investigation. (Doc. 78, at 13; Doc. 107, at 8).

He was again placed in the RHU from May 14, 2021 through May 28, 2021, during a

PREA investigation, at which time Defendants allegedly did not provide him with a reason

for the transfer, or an opportunity to respond. (I/d.).

25

Bacon alleges that he was placed in the RHU a third time from July 2, 2021 through

July 9, 2021, under alleged misconduct and PREA investigations. (/d.). With respect to this

third RHU placement, Bacon states as follows:

Plaintiff does not dispute that written notice of the charges was presented

more than 24 hours prior, nor does he dispute that an explanation was

provided. A written statement of the reasons for disciplinary action taken was

not necessary, because Bacon was not found guilty.

(Doc. 78, at 14). However, he alleges that he was not provided a hearing within a

reasonable time, and he was not allowed to present any defense to the charges. (Id.).

Bacon has set forth sufficient facts to allege a procedural due process violation, as

he demonstrates that his placement in the RHU implicated a constitutionally protected

liberty interest, and alleges that he was given no procedural protections before and during

his placement in the RHU. See, e.g., Stuart v. Pierce, 587 F.Supp.3d 127, 139 (D. Del.

2022) (finding that plaintiff with pre-existing mental health issues was entitled to some

amount of process prior to continued detention in solitary confinement). The Court will deny

the motion to dismiss the procedural due process claim.

D. Fourteenth Amendment Substantive Due Process Claim Arising out of the

Conditions of Confinement

Bacon also alleges a Fourteenth Amendment due process claim based on the

conditions of his confinement in segregation. (Doc. 78, at 14-17). Bacon “tends to agree

with the Defendants” that “the conditions alleged do not suffice as Constitutional violations

26 .

on their own.” (Doc. 107, at 9). Rather, Bacon argues that the conditions amount to a

constitutional violation when considered in conjunction with his mental health illness. (/d.).

When a pretrial detainee claims that the conditions of his confinement violate his due

process rights, “the proper inquiry is whether those conditions [at issue] amount to

punishment of the detainee.” Bell, 441 U.S. at 535; Carson v. Mulvihill, 488 F. App’x 554,

559 (3d Cir. 2012). A pretrial detainee may not be punished prior to an adjudication of guilt

in accordance with due process of law. Bell, 441 U.S. at 538-39. However, a pretrial

detainee may be subject to “the restrictions and conditions of the detention facility so long

as those conditions and restrictions do not amount to punishment, or otherwise violate the

Constitution.” /d. at 536-37. Thus, if a particular condition or restriction of pretrial detention

is reasonably related to a legitimate governmental objective, it does not, without more,

amount to “punishment.” /d. at 539.

Accordingly, the standard for determining whether conditions of confinement violate

due process is: whether the questioned “restrictions and practices” (1) “are rationally related

to a legitimate nonpunitive governmental purpose[,]” and (2) “whether they appear

excessive in relation to that purpose.” Carson, 488 F. App’x at 560 (citing Bell, 441 U.S. at

561).

The deliberate indifference standard applies both in cases involving prisoners and

pretrial detainees. Edwards v. Northampton Cnty., 663 F. App’x 132, 135 (3d Cir. 2016).

“(Deliberate indifference’ is ‘the equivalent of recklessly disregarding [a] risk’ of serious

27

harm to the prisoner.” Gause v. Diguglielmo, 339 F. App’x 132, 134 (3d Cir. 2009) (quoting

Farmer, 511 U.S. at 836). Further, in Clark v. Coupe, 55 F.4th 167 (3d Cir. 2022), the Third

Circuit reasoned that a “pre-existing condition of serious mental illness heightened the

impact of solitary confinement, rendering it capable of inflicting severe mental trauma.” □□□

at 185. In other words, the more fragile the inmate’s mental health, the more susceptible he

is to harm posed by isolation.

Bacon does not demonstrate how the temporary deprivation of liberty in solitary

confinement amounts to punishment. Bacon alleges that when he was housed in the RHU,

he was denied commissary privileges, he was not allowed in-person or video visits, he was

allowed limited phone calls, he was placed in a cell with no natural light or outside window,

he was only permitted limited recreation time, he was only permitted to shower a few days

per week, and he was not allowed to use a television, radio, tablet, books, or magazines.

(Doc. 78, at 14-17; Doc. 107, at 8-10). Bacon’s claims about the conditions of his

confinement in the RHU fail.

Bacon has not provided any details surrounding the alleged denial of commissary

privileges, including when they were denied, for how long, whether the deprivation was

sporadic or continuous, whether there was a reason given for the denial, and if he was able

to purchase some items from the commissary but not others. Based on the allegations of

the second amended complaint, Bacon has failed to establish that the denial of commissary

privileges amounted to punishment under the Fourteenth Amendment.

28

With respect to limitations on his ability to shower and engage in out-of-cell

recreation time, and limited interaction with family members, the facts alleged do not state

plausible due process claims. Bacon alleges that at most, he was deprived shower and

recreation time only a few days at a time, and he was provided limited interaction with family

members and his attorney. (Doc. 78, at 16; Doc. 107, at 8-10). He does not allege an

outright denial of these activities. This does not constitute the type of hardship that amounts

to constitutional punishment. See, e.g., Fortune v. Hamberger, 379 F. App’x 116, 122 (3d

Cir. 2010) (“Fortune complained of his inability to adequately shower and exercise for a

period of fifteen days. Although it is not clear how many times Fortune believes that he

should have been permitted to engage in those activities in addition to the time he was

already given to do so, he does not allege that he suffered any harm as a result of the

denial of additional showers and exercise.”). Likewise, Bacon’s allegation that he was

denied leisure activities, such as television, radio, tablet, books, or magazines, does amount

to “recklessly disregarding [a] risk’ of serious harm to the prisoner.” Gause, 339 F. App’x at

134.

The Fourteenth Amendment substantive due process claim will be dismissed.

E. Claims Against Rockovich, Hyder, Pedri, Crocamo, Mulhorn & Schloss

In the second amended complaint, Bacon sets forth the following allegations against

Rockovich, Hyder, Pedri, Crocamo, Mulhorn, and Schloss.

29

Bacon alleges that Rockovich was the Warden of LCCF and was “in charge of the

day-to-day operations at LCCF” and created and enforced policies allowing mentally ill

inmates to be placed in solitary confinement. (Doc. 78, at 5). He alleges that Rockovich

was aware of Bacon’s autism, was aware that Bacon was placed in solitary confinement,

and had the authority to remove him from solitary confinement. (/d. at 5-6). Rockovich is

also alleged to have permitted “predators” like Keziah to be placed in Administrative

Segregation with “vulnerable” inmates. (/d.).

Bacon alleges that Hyder was the Deputy Warden of LCCF and was “in charge of

the day-to-day operations at LCCF” and allowed mentally ill persons to be placed in solitary

confinement. (Doc. 78, at 5). He alleges that Hyder was aware of Bacon’s autism, was

aware that Bacon was placed in solitary confinement, and had the authority to remove him

from solitary confinement. (/d.). Bacon also alleges that Hyder allowed “predators” like

Keziah to be placed in Administrative Segregation with “vulnerable” inmates. (/d.).

Bacon alleges that Pedri was the former Luzerne County Manager. (Doc. 78, at 7;

Doc. 107, at 17). He asserts that “it is plausible at this stage to presume that Pedri enforced

or allowed others to enforce policies that harmed Bacon.” (Doc. 78, at 7).

Bacon alleges that Crocamo is the current Luzerne County Manager and was

directly in charge of policy decisions at LCCF. (Doc. 78, at 7-8; Doc. 107, at 17). He

alleges that “it is plausible at this stage to presume that Crocamo enforced or allowed others

to enforce policies that harmed Bacon.” (Doc. 78, at 7-8).

30

Bacon alleges that Mulhorn is the Hearing Examiner at LCCF and “was aware of

Bacon's Autism and had the authority to remove Bacon from solitary confinement on July 6,

2021.” (Doc. 78, at 7). He alleges that Mulhorn “impeded Bacon’s right to procedural due

process, albeit briefly.” (/d.).

Bacon alleges that Schloss was the PREA Coordinator and was responsible for □

Bacon’s placement in the RHU on March 31, 2021 and May 14, 2021. (Doc. 78, at 8).

Bacon also alleges that Schloss was “indirectly involved in violating Bacon's due process in

the July 2, 2021 placement” and allowed Defendant Aquilla to house Bacon in a cell with

Pennington. (/d.).

In general, “a defendant in a civil rights action must have personal involvement in the

alleged wrongs’ to be liable. Rode, 845 F.2d at 1207. To the extent that Bacon attempts to

hold Defendants Rockovich, Hyder, Pedri, Crocamo, Mulhorn, and Schloss liable simply

based on their supervisory roles, he cannot do so because liability under § 1983 cannot be

predicated on respondeat superior. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210,

227 (3d Cir. 2015) (“[Plaintiff] cannot predicate liability on her § 1983 claims on a

respondeat superior basis.” (citing Rode, 845 F.2d at 1207) (emphasis omitted)); Robinson

v. Delbalso, No. 22-2378, 2022 WL 17248100, at *2 (3d Cir. Nov. 28, 2022) (unpublished)

(‘We agree with the District Court that Robinson’s second amended complaint did not state

a plausible claim for relief. First, he failed to allege the defendants’ personal involvement,

and he cannot predicate liability on his § 1983 claims on a respondeat superior basis.”

31

(internal citations omitted)). Instead, if Bacon is seeking to hold these individuals liable for

unconstitutional acts by their subordinates, Bacon’s allegations must satisfy one of two

theories of supervisory liability: first, “[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{;]’ and second, “a supervisor may be personally liable

under § 1983 if [they] participated in violating the plaintiff's rights, directed others to violate

them, or, as the person in charge, had knowledge of and acquiesced in [their] subordinates’

violations.” A.M. ex rel. J.M.K., 372 F.3d at 586 (citation omitted); Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (explaining requirements for supervisory

liability in section 1983 claim and describing “two general ways in which a supervisor-

defendant may be liable for unconstitutional acts undertaken by subordinates”), rev'd on

other grounds sub nom., Taylor v. Barkes, 575 U.S. 822 (2015).

To allege a plausible claim for supervisory liability under the first theory—the policy-

and-practice strand of supervisory liability—a plaintiff must:

(1) identify the specific supervisory practice or procedure that the supervisor

failed to employ, and show that (2) the existing custom and practice without

the identified, absent custom or procedure created an unreasonable risk of

the ultimate injury, (3) the supervisor was aware that this unreasonable risk

existed, (4) the supervisor was indifferent to the risk; and (5) the underling’s

violation resulted from the supervisor's failure to employ that supervisory

practice or procedure. Put another way, the inmate must identify the

supervisor's specific acts or omissions demonstrating the supervisor's

deliberate indifference to the inmate’s risk of injury and must establish a link

between the supervisor, the act, and the injury.

32

Chavarriaga, 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d

Cir. 2001)). For the second theory of supervisory liability—participating in, directing others

to, or knowledge and acquiescence of constitutional violation—generalized allegations that

a supervisory defendant is “in charge of” or “responsible for” an office or facility are

insufficient to allege personal involvement in an underlying constitutional violation. See

Saisi v. Murray, 822 F. App’x 47, 48 (3d Cir. 2020) (“Saisi asserted that some defendants

were in charge of agencies that allowed this to happen, and that liability stemmed merely

from defendants’ ‘belief that their conduct would be ‘tolerated.’ However, a director cannot

be held liable ‘simply because of [their] position as the head of the [agency].” (quoting

Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005))); Zigler v. Warren, No. 21-cv-19474,

2022 WL 903383, at *2 (D.N.J. Mar. 28, 2022) (“In simpler terms, a supervisor is not liable

for the unconstitutional conduct of his employees solely because he is a supervisor.’).

Additionally, “[a]lthough a court can infer that a defendant had contemporaneous knowledge

of wrongful conduct from the circumstances surrounding a case, the knowledge must be

actual, not constructive.” Chavarriaga, 806 F.3d at 222 (citing Baker v. Monroe Twp., 50

F.3d 1186, 1194 (3d Cir. 1995); Rode, 845 F.2d at 1201 n.6).

A. Rockovich, Hyder, Pedri, and Crocamo

Bacon's allegations in the second amended complaint do not state a plausible

supervisory liability claim against Rockovich, Hyder, Pedri, and Crocamo. It appears that

Bacon wishes to impute lability upon Rockovich and Hyder for creating a policy that allowed

33

mentally ill individuals to be placed in solitary confinement and for being “aware” that

Administrative Segregation was used to house both “predators” and “vulnerable” inmates.

(Doc. 78, at 5-6). Bacon failed to allege what specific actions Rockovich and Hyder took or

how they assisted in or acquiesced in the violation of his rights.

The second amendment complaint also does not contain sufficient allegations to

show that the former and current Luzerne County Managers, Pedri and Crocamo, were

personally involved in the alleged violations of Bacon’s rights. The pleadings do not allege

what specific actions Pedri and Crocamo took or how they assisted in or acquiesced in the

violation of his rights.

Thus, the second amended complaint does not allege personal involvement on the

part of Rockovich, Hyder, Pedri, and Crocamo that would subject them to liability under §

1983.

B. | Mulhorn and Schloss

With respect to Defendants Mulhorn and Schloss, Bacon has sufficiently alleged that

they were personally involved in the incidents he describes. As outlined above, Bacon

alleges that Mulhorn “had the authority to remove Bacon from solitary confinement on July

6, 2021.” (Doc. 78, at 7). He alleges that Mulhorn “impeded Bacon’s right to procedural

due process, albeit briefly.” (/d.). Bacon then alleges that Schloss was responsible for

Bacon's placement in the RHU on March 31, 2021 and May 14, 2021, and allowed

Defendant Aquilla to house Bacon in a cell with Pennington. (/d. at 8). These allegations

34

are sufficient to show, at this stage, that Defendants Mulhorn and Schloss played a role in

his initial placement in solitary confinement or his ongoing confinement in solitary. The

motion to dismiss the claims against Mulhorn and Shioss will be denied.

F. Claims for Declaratory and Injunctive Relief

The case or controversy requirement of Article Ill, § 2 of the United States

Constitution subsists through all stages of federal judicial proceedings. Parties must

continue to have a “personal stake in the outcome of the lawsuit.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 477-78 (1990); Preiser v. Newkirk, 422 U.S. 395, 401 (1975).

The mootness doctrine recognizes that “[i]f developments occur during the course of

adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a

court from being able to grant the requested relief, the case must be dismissed as moot.”

Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). An inmate’s

transfer from the facility complained of generally moots the equitable and declaratory

claims. Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993); see Griffin v. Beard, 401

F, App’x 715 (3d Cir. 2010) (transfer from SCl-Huntingdon renders inmate injunctive relief

claim moot).

Bacon is no longer housed at the Luzerne County Correctional Facility, and he

agrees that any claims for declaratory relief should be dismissed. (Doc. 107, at 17). In light

of Bacon’s transfer from Luzerne County Correctional Facility, the institution wherein the

35

allegations related to his claims stem, his requests for injunctive and declaratory relief are

now moot and will be dismissed.

IV. Leave to Amend

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for

failure to state a claim, the district court must permit a curative amendment, unless an

amendment would be inequitable or futile. Grayson, 293 F.3d at 108. Further, “[a] district

court has ‘substantial leeway in deciding whether to grant leave to amend.” In re Avandia

Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App’x 672, 673 (3d Cir. 2014) (quoting

Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). As set forth above, the Court finds that

the following claims are factually and legally flawed, and thus incurable—the claims against

LCCF; three of the four Monell claims against Luzerne County; the Fourteenth Amendment

substantive due process claim; the claims against Rockovich, Hyder, Pedri, and Crocamo;

and the claims for declaratory and injunctive relief. The Court concludes that granting

Bacon leave to file a third amended complaint would be both futile and inequitable. See

Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019)

(where inmate plaintiff “has already had two chances to tell his story...giving him further

leave to amend would be futile.”).

V. Conclusion

Consistent with the foregoing, Defendants’ motion (Doc. 82) to partially dismiss the

second amended complaint will be granted in part and denied in part. The Court will

36

dismiss the following claims—the claims against LCCF; three of the four Monell claims

against Luzerne County; the Fourteenth Amendment substantive due process claim; the

claims against Rockovich, Hyder, Pedri, and Crocamo; and the claims for declaratory and

injunctive relief. The Court will deny the motion to dismiss with respect to the following

claims—one of the Monell claims against Luzerne County; the Fourteenth Amendment

procedural due process claim; and the claims against Mulhorn and Schloss.

A separate Order shall issue.

\

GIN

Robert D>Mariarti

United States District Judge

Dated: June 20 2025

37