Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHAKOUR A. BROWN, Civil No. 1:25-cv-458

Plaintiff (Judge Mariani)

v .

C.0. SWARTZ, et al. .

Defendants

MEMORANDUM

Plaintiff Shakour Brown (“Brown”), an inmate housed, at all relevant times, at the

State Correctional Institution, Benner Township, Pennsylvania (“SCl-Benner Township’),

initiated this pro se civil rights action pursuant to 42 U.S.C. § 1983, in the Centre County

Court of Common Pleas. (Doc. 1-1). Defendants subsequently removed the action to this

Court. (Doc. 1). The matter is proceeding via an amended complaint. (Doc. 33). Named

as Defendants are Correctional Officer Swartz, Lieutenant Boal, current Secretary of the

Department of Corrections (“DOC”) Laurel Harry, former DOC Secretary George Little,

Medical Director of the Central Office Erica Benning, Deputy Superintendent Grice, and

Corrections Health Care Administrator (“CHCA”) Kim Ardery, (collectively, the “moving

Defendants”), and Correctional Officer Conklin, Dr. J. Howard, Physician’s Assistant T.

Talasky, Correctional Officer John Doe, and Superintendent John Doe.’ (/d. at 3-7).

' To date, Defendants Conklin, Howard, Talasky, and the John Does have not been properly

identified or served in this case, nor has an attorney entered an appearance on their behalf.

Presently before the Court is the moving Defendants’ motion to dismiss the amended

complaint in part pursuant to Federal Rule of Civil Procedure 12(b)(6).2 (Doc. 62). The

motion is fully briefed and ripe for resolution.’ For the reasons set forth below, the Court will

grant the motion in part and deny it in part.

I. Allegations of the Amended Complaint

The allegations of the amended complaint stem from an alleged use of force incident

on June 8, 2023. (Doc. 33).

Brown was housed in a psychiatric observation cell ("POC") because he had begun

a hunger strike. (/d. at 8). On June 8, 2023, Defendants Boal, Swartz, Conklin, and an

unknown officer, arrived at the cell to escort Brown to a videoconference court hearing.

(/d.). Brown alleges that Defendant Swartz “conducted a standard strip search [and]

properly placed [him] in wrist restraints without incident.” (/d.). Brown alleges that

“Defendants” escorted him to and from the videoconference hearing “without incident.” (/d.

at 9). When they arrived back to his cell, Brown alleges that Defendant Swartz secured the

cell door and “both officers” began to “excessively yank on the te[]ther to the wrist restraints”

Causing pain and two large lacerations to Brown's left wrist. (/d. at 9-10). Brown asserts

2 The moving Defendants are not moving to dismiss the Eighth Amendment excessive force

claim asserted against Defendant Swartz. (See Doc. 62, at 1; Doc. 70, at 2).

3 Brown's brief in opposition to the moving Defendants’ motion to dismiss contains facts that are

not expressly set forth in the amended complaint. (See Doc. 67). The Court may not consider such

allegations because a complaint cannot be amended by way of an opposition brief. See Pennsylvania ex

rel, Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (‘[I]t is axiomatic that the complaint may

not be amended by the briefs in opposition to a motion to dismiss.”).

that the restraints were removed and that he verbally complained to Defendant Boal about

the assault. (/d. at 9).

Brown alleges that he waited in his cell for medical treatment. (/d.). While he was

waiting, Brown asserts that the “same officers who caused the assault” returned to remove

him from the cell. (/d.). However, Brown refused to be placed back in restraints. (/d.).

Physician’s Assistant Talasky then arrived at Brown's cell to treat his injury and

allegedly stated that he needed stitches. (/d. at 10). Brown alleges that Talasky did not

return to treat the injury. (/d.).

Brown avers that Defendants Benning, Grice, Ardery, Howard, Talasky, and John

Doe failed to provide adequate medical care. (/d. at 10-13). He alleges that these

Defendants had to approve his placement in the POC, thus “giving them requisite

knowledge of substantial excessive risk.” (/d. at 12-13).

Brown next alleges that Defendants Little and Harry “failed to establish rules,

regulations, policies and/or guidelines to prevent DOC employee[s] from creating [a]

substantial risk of harm.” (/d. at 15). He alleges that Defendants Little and Harry “failed to

respond to the substantial ‘risk of constitutionally cognizable harm’ to plaintiff's health [ ] risk

that is so great and obvious that their failure to respond constitutes deliberate indifference.”

(Id. at 16). Brown also alleges that Defendants Little and Harry “failed to properly suservise

and discipline guards in the Department for the pattern of abuse of plaintiff.” (/d. at 17).

Brown asserts that he has “filed several lawsuits on the Department of Corrections for

violations of plaintiff['s] rights.” (/d. at 17).

Based on these allegations, Brown alleges that Defendants violated his rights under

the Eighth and Fourteenth Amendments to the United States Constitution. (/d. at 20). He

also sets forth state law claims of intentional infliction of emotional distress (“IIED”), and

assault and battery. (/d. at 18, 20).

For relief, Brown seeks compensatory and punitive damages. (/d. at 21).

ll. Legal Standard

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

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

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

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

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

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

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

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

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

“fflactual 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 /qbal 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).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere

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

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

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

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

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

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

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

[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. Official Capacity Claims

The moving Defendants first argue that the claims against them in their official

Capacities must be dismissed. (Doc. 63, at 13).

The moving Defendants (DOC employees) acting in their official capacities, are not

“persons” as that term is used in Section 1983. See Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989) (“[Nleither a State nor its officials acting in their official capacities are

‘persons’ under [Section] 1983.”). Consequently, Brown cannot maintain a Section 1983

claim for money damages against any DOC Defendant in his or her official capacity.

Furthermore, Brown’s Section 1983 official capacity claims are barred by the

Eleventh Amendment, which provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. This Amendment

has been interpreted to render states—and, by extension, state agencies and

departments and officials when the state is the real party in interest—

generally immune from suit by private parties in federal court. Indeed, it has

been recognized for over two hundred years that a state’s immunity from suit

in federal court is a fundamental principle of our constitutional structure that

preserves, as intended by the Framers, the respect and dignity of the states

and protects the ability of the states “to govern in accordance with the will of

their citizens.”

Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (quoting

Alden v. Maine, 527 U.S. 706, 751 (1999)).

Eleventh Amendment immunity extends to all state agencies, departments, and

entities “having no existence apart from the state.” Laskaris v. Thornburgh, 661 F.2d 23, 25

(3d Cir. 1981) (citation omitted). The DOC, as an agency of the Commonwealth of

Pennsylvania, is entitled to the Commonwealth’s Eleventh Amendment immunity. See 71

P.S. § 61(a) (“The executive and administrative work of this Commonwealth shall be

performed by the...Department of Corrections...”); Lavia v. Pa., Dep't of Corr., 224 F.3d

190, 195 (3d Cir. 2000) (stating that “[b]jecause the Commonwealth of Pennsylvania’s

Department of Corrections is a part of the executive department of the Commonwealth, it

shares in the Commonwealth’s Eleventh Amendment immunity”); see also Downey v. Pa.

Dep't of Corr., 968 F.3d 299, 310 (3d Cir. 2020) (explaining that “state sovereign immunity

prohibit[ed]” plaintiffs Section 1983 claims against the DOC).

The moving DOC Defendants are state officials for purposes of Section 1983. A suit

for monetary damages against a state official in his or her official capacity “is not a suit

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

from a suit against the State itself.” Wil, 491 U.S. at 71 (internal citation omitted); see also

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity suits...‘generally

represent only another way of pleading an action against an entity of which an officer is an

agent.” (quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S 658, 690 n.55

(1978))). Therefore, Brown’s official capacity claims for monetary damages against the

moving DOC Defendants are the equivalent of claims against the Commonwealth and will

be dismissed with prejudice. See Will, 491 U.S. at 66, 70-71.4

B. Personal Involvement of Defendants Little, Harry, Benning, Grice, Ardery,

and Boal

To state a claim for a civil rights violation under 42 U.S.C. § 1983, a plaintiff must

allege facts to support that each defendant, acting under color of state law, deprived the

plaintiff of a right secured by the Constitution or laws of the United States. Groman v.

Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S.

635, 640 (1980)). The plaintiff “must show that each and every defendant was ‘personallly]

involve[d]’ in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa.

2006) (alterations in original) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir.

2005)). This means that each defendant must have played an affirmative part in the

4 There are two circumstances where Eleventh Amendment immunity is waived or abrogated:

where (1) the state waives its immunity or (2) Congress exercised its power under Section 5 of the

Fourteenth Amendment to override that immunity. See Graham, 473 U.S. at 169 (“[A]bsent waiver by the

State or valid congressional override, the Eleventh Amendment bars a damages action against a State in

federal court.”). Neither circumstance exists here. The Commonwealth of Pennsylvania has not waived its

Eleventh Amendment immunity. See 42 Pa. C.S. § 8521(b) (“Nothing contained in this subchapter shall be

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

Eleventh Amendment to the Constitution of the United States.”). And Congress did not intend to abrogate a

state’s Eleventh’s Amendment immunity by enacting Section 1983. See Quern v. Jordan, 440 U.S. 332,

344-45 (1979). In addition, the Eleventh Amendment does not bar a “suit[ } against state officers for

prospective relief to end an ongoing violation of federal law.” MC/ Telecomm. Corp. v. Bell Atl. Pa., 271

F.3d 491, 503 (3d Cir. 2001). Brown’s amended complaint does not request injunctive or prospective relief.

(See Doc. 33, at 21).

complained-of misconduct. Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (“A

defendant in a civil rights action ‘must have personal involvement in the alleged wrongs to

be liable,’ and ‘cannot be held responsible for a constitutional violation which he or she

neither participated in nor approved.”) (citations omitted); Iqbal, 556 U.S. at 677 (“each

Government official, his or her title notwithstanding, is only liable for his or her own

misconduct’).

The requirement of personal involvement applies with equal force to supervisory

defendants. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (liability for

supervisory officials must still be based on “personal involvement in the alleged wrongs’);

Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (liability must be demonstrated by

showing that the defendant personally directed or, with actual knowledge, acquiesced in the

conduct). “Personal involvement can be shown through allegations of personal direction or

of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207-08. Such allegations,

however, must be made with appropriate particularity, including identification of each

defendant's actions upon which the claim is based, the factual basis for the defendant's

knowledge of the wrongdoing of another if such knowledge is an element of the claim, and,

to the extent possible, the time and place of relevant events. See Evancho, 423 F.3d at

354; Rode, 845 F.2d at 1207-08.

The moving Defendants move to dismiss certain claims against Defendants Little,

Harry, Benning, Grice, Ardery, and Boal based on Brown’s failure to allege their personal

involvement. (Doc. 63, at 13-19).

1. Eighth Amendment Excessive Use of Force, IIED, and Assault &

Battery Claims against Boal, Harry, Little, Benning, and Grice

The moving Defendants move to dismiss the excessive force, IIED, and assault and

battery claims against Boal. (Doc. 63, at 16). In the amended complaint, Brown alleges

that when the escorting officers (Defendants Boal, Swartz, and Conklin) brought him back to

his cell on June 8, 2023, Defendant Swartz secured the cell door and “both officers” began

to “excessively yank on the te[]ther to the wrist restraints” causing pain and two large

lacerations to Brown’s left wrist. (Doc. 33, at 8-10). Brown alleges that he “made several

verbal complaints to Lt. Boal about the assault.” (Id. at 9). He contends that “Defendants

Lt. Boal, C.O. Swartz, C.O. Conklin used excessive force against him” and that “Defendants

Lt. Boal, Swartz, Conklin together acted with a common purpose to commit assault and

battery and IIED.” (/d. at 11, 18). The amended complaint is not entirely clear as to

Defendant Boal’s actions, or lack of actions, during the June 8, 2023 incident. However,

Brown does allege that Defendant Boal was an escorting officer on June 8, 2023 and was

present during the alleged incident. When viewed in the light of the liberal pleading

standards, the Court finds that the allegations in the amended complaint plausibly state that

Defendant Boal was somehow involved in the excessive force event on June 8, 2023. The

Court expects Defendant Boal’s role to become clear during discovery. The Court will deny

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the motion to dismiss the excessive force claim against Defendant Boal. However, as set

forth below, the Court finds that the state tort claims of ITED and assault and battery are

barred by sovereign immunity; therefore, these state tort claims against Defendant Boal will

be dismissed with prejudice and without leave to amend.

The moving Defendants also seek to dismiss the excessive force, IIED, and assault

and battery claims against Little, Harry, Benning, Grice, and Ardery. (Doc. 63, at 16). The

amended complaint does not contain sufficient factual allegations that Defendants Little,

Harry, Benning, Grice, and Ardery were involved in the excessive use of force incident on

June 8, 2023. (See Doc. 33). Nor does the amended complaint sufficiently allege that

Defendants Little, Harry, Benning, Grice, and Ardery committed assault and battery or

caused intentional infliction of emotional distress. (See id.).

The Court will grant the motion to dismiss the excessive force, IIED, and assault and

battery claims against Defendants Little, Harry, Benning, Grice, and Ardery. The excessive

force claim against Defendants Little, Harry, Benning, Grice, and Ardery will be dismissed

without prejudice and with leave to amend. Again, because the Court finds below that the

state tort claims of IIED and assault and battery are barred by sovereign immunity, these

claims against Defendants Little, Harry, Benning, Grice, and Ardery will be dismissed with

prejudice and without leave to amend.

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2. Eighth Amendment Failure to Train Claim against Harry and Little

In order to state a failure to train claim, a plaintiff must allege that the failure to train

amounts to “deliberate indifference” to the rights of those with whom employees come into

contact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). The failure to train employees

ordinarily rises to deliberate indifference only when the failure has caused a pattern of

violations. Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). It is possible,

however, to state a failure to train claim in the absence of a pattern of violations, where the

need for training is “so obvious” that the failure to do so could be characterized as deliberate

indifference. Connick v. Thompson, 563 U.S. 51, 62-63 (2011). In addition, the “identified

deficiency in training must be closely related to the ultimate injury.” Thomas v. Cumberland

Cnty., 749 F.3d 217, 222 (3d Cir. 2014) (quoting City of Canton, 489 U.S. at 391).

Brown alleges that Defendants Harry and Little “failed to properly supervise and

discipline guards in the Department for the pattern of abuse of plaintiff.” (Doc. 33, at 17).

As former and current Secretary for the DOC, Defendants Harry and Little are allegedly

“responsible for the overall operation of the Department.” (/d. at 3-4). Brown alleges that

Defendants Harry and Little “failed to establish rules, regulations, policies and/or guidelines

to prevent DOC employee|s] from creating [a] substantial risk of harm.” (/d. at 15). He also

alleges that Defendants Little and Harry “failed to respo1d to the substantial ‘risk of

constitutionally cognizable harm’ to plaintiff's health [ ] risk that is so great and obvious that

their failure to respond constitutes deliberate indifference.” (/d. at 16). The amended

12

complaint suggests that Defendants Harry and Little were aware of the pattern of abuse that

Brown encountered at the hands of correctional officers because he has “filed several

lawsuits on the Department of Corrections for violations of plaintiff[’s] rights.” (/d. at 17).

Liberally construing the amended complaint, Brown suggests that based upon the

abuse he sustained at the hands of correctional officers, Defendants Harry and Little have

failed to implement training for correctional officers as to how avoid substantial risks of harm

to inmates. Although a close call, Brown has alleged enough facts to allow this claim to

move into discovery. The motion to dismiss the failure to train claim against Defendants

Harry and Little will be denied.

3. Additional Claims against Defendants Harry and Little

The moving Defendants also seek to dismiss the following “miscellaneous

statements” against Harry and Little:

e that Harry and Little “failed to establish rules, regulations, policies and/or guidelines

to prevent DOC employee{s] from creating [a] substantial risk of harm”

e that Harry and Little “failed to respond to the substantial ‘risk of constitutionally

cognizable harm’ to plaintiffs health | ] risk that is so great and obvious that their

failure to respond constitutes deliberate indifference”

e that Harry and Little “were aware that unreasonable risk existed and they were

deliberately indifferen{t} to that risk being legally responsible for plaintiff [and} failed

to properly supervise and discipline guards in the Department for the pattern of

abuse of plaintiff”

(Doc. 63, at 17-19) (citing Doc. 33, at 14-17, 19).

13

The moving Defendants argue that: (1) the supervisory statuses of Harry and Little

are insufficient to establish their personal involvement; (2) there are no factual averments

showing how Harry and Little were “aware” that unreasonable risks existed; (3) there are no

facts showing how Harry and Little “failed to respond”, and participation after-the-fact does

not establish that they participated in, directed, or acquiesced in the events of June 8, 2023;

and (4) there are no allegations that Brown was subjected to a pattern of abuse, and

allegations that a superior failed to train or supervise are insufficient to establish their

involvement. (Doc. 63, at 18-19).

A claim of a constitutional deprivation cannot be premised merely on the fact that the

named defendant was the prison warden, or a prison supervisor, when the incidents set

forth in the complaint occurred. See Rode, 845 F.2d at 1207. If Brown is attempting to set

forth respondeat superior liability against Defendants Harry and Little (seeking to hold them

liable based on their supervisory roles), this ground of constitutional liability has been

squarely rejected by the courts. See Rode, 845 F.2d at 1207.

Instead, if Brown seeks to hold Defendants Harry and Little liable as supervisors for

unconstitutional acts by their subordinates, his 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

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under § 1983 if he or she participated in violating the plaintiff's rights, directed others to

violate them, or, as the person in charge, had knowledge of and acquiesced in his

subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572,

586 (3d Cir. 2004) (citation omitted); see 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.

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 227 (3d Cir. 2015) (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

15

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, 423 F.3d

at 354). 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).

Brown alleges that Defendants Harry and Little, acting with deliberate indifference to

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

caused Brown to suffer harm. (Doc. 33, at 15-17). Brown also suggests that Defendants

Harry and Little had actual knowledge of the wrongful conduct because he has “filed several

lawsuits on the Department of Corrections for violations of plaintiff['s] rights.” (Id. at 17).

Although another close question, the Court finds that Brown has pled a supervisory

liability claim against Defendant Harry and Mason, and the claims against them will

proceed. The Court will deny the motion to dismiss Harry and Little from this action.

C. Eighth Amendment Deliberate Indifference to Medical Care Claim

To establish an Eighth Amendment claim arising from deprivation of medical care, a

plaintiff “must show (i) a serious medical need, and (ii) acts or omissions by prison officials

16

that indicate deliberate indifference to that need.” Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575, 582 (3d Cir. 2003) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999)). A serious medical need is “one that has been diagnosed by a physician as requiring

treatment or one that is so obvious that a lay person would recognize the necessity for a

doctor's attention.” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326,

347 (3d Cir. 1987). Additionally, “if unnecessary and wanton infliction of pain results as a

consequence of denial or delay in the provision of adequate medical care, the medical need

is of the serious nature contemplated by the Eighth Amendment.” /d. (citation omitted).

A prison official acts with deliberate indifference to an inmate's serious medical needs when

he “knows of and disregards an excessive risk to inmate health or safety; the official must

be both 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.” See Farmer v. Brennan, 511

U.S. 825, 837 (1994). Mere differences of opinion between the prison’s medical staff and

the inmate regarding diagnosis or treatment rendered does not support a constitutional

violation. See Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D. Pa. 1988) (citing Bowring

v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)); see also McCracken v. Jones, 552 F.2d 22, □□□

(10th Cir. 1977): Smart v. Villar, 547 F.2d 112, 113 (10th Cir. 1976), cert. denied, 450 U.S.

1041 (1981). Courts are “reluctant to second guesis meciical judgments arid to

constitutionalize claims which sound in state tort law.” Palakovic v. Wetzel, 854 F.3d 209,

228 (3d Cir. 2017) (quoting United States ex rel. Walker v. Fayette County, 599 F.2d 573,

17

575 (3d Cir. 1979)). Federal courts generally defer to prison medical staff with respect to

diagnosing and treating prisoners, and “disavow any attempt to second-guess the propriety

or adequacy of a particular course of treatment ... [which] remains a question of sound

professional judgment.” Id. (quoting Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d

754, 762 (3d Cir. 1979)).

The moving Defendants move to dismiss the inadequate medical care claim against

Harry, Little, Benning, Grice, Ardery, Boal, and Swartz for lack of personal involvement and

for failure to state a claim. (Doc. 63, at 16-17, 19-21).

Brown alleges that Physician's Assistant Talasky treated him at his cell on June 8,

2023. (Doc. 33, at 10). He does not allege that Defendants Harry, Little, Benning, Grice,

Ardery, Boal, and Swartz were involved in his medical care. By Brown's averments,

Defendants Harry, Little, Benning, Grice, Ardery, Boal, and Swartz are not medical

providers and have not treated him. Third Circuit precedent makes clear that “a non-

medical prison official’ cannot “be charge[d] with the Eighth Amendment scienter

requirement of deliberate indifference” when the “prisoner is under the care of medical

experts” and the official does not have “a reason to believe (or actual knowledge) that prison

doctors or their assistants are mistreating (or not treating) a prisoner.” Spruill v. Gillis, 372

F.3d 218, 236 (3d Cir. 2004); see also Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993)

(holding that non-physicians cannot be considered deliberately indifferent simply because

they failed to respond directly to the medical complaints of a prisoner who was already

18

being treated by the prison doctor). Additionally, Superintendents and CHCAs are

“undisputably administrators, [and] not doctors.” Thomas v. Dragovich, 142 F. App’x 33, 39

(3d Cir. 2005). Here, Defendants Harry, Little, Benning, Grice, Ardery, Boal, and Swartz are

non-medical personnel.5 As pled, the amended complaint does not allege that these non-

medical Defendants acted with deliberate indifference to Brown's medical needs. The Court

will grant the motion to dismiss the Eighth Amendment inadequate medical care claim

against Defendants Harry, Little, Benning, Grice, Ardery, Boal, and Swartz without prejudice

and with leave to amend.

D. Fourteenth Amendment Due Process Claim

In a conclusory fashion, Brown sets forth a Fourteenth Amendment due procesis

claim; however, there are no allegations in support of this claim. (Doc. 33, at 20). The

conduct in support of this Fourteenth Amendment claim is presumably based on the same

conduct that Brown alleges in support of his Eighth Amendment claim. Brown does not

indicate if he is asserting a Fourteenth Amendment procedural due process claim or a

substantive due process claim. (See id., stating that Brown alleges a violation of the “14th

Amendment due process clause”). The Court interprets Brown’s amended complaint as

raising a Fourteenth Amendment substantive due process claim concerni7g the June 8,

ss See Doc. 33, at 3-6 (identifying the Defendants as follows: George Little, former Secretary of

Corrections; Laure! Harry, current Secretary of Corrections; Erica Benning, Medical Director of the Central

Office; Grice, Deputy Superintendent of SCI-Benner Township; Kim Ardery, Corrections Health Care

Administrator at SCl-Benner Township; Boal, Lieutenant at SC|-Benner Township; and Swartz, Correctional

Officer at SCl-Benner Township).

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2023 incident. To the extent that Brown is attempting to assert a substantive due process

claim regarding June 8, 2023 incident, such a claim is barred by the more-specific-provision

rule.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution contains both procedural and substantive protections. See U.S. Const. amend.

XIV, § 1. The substantive component of the Due Process Clause safeguards against

certain deprivations of individuals’ ‘life, liberty, and property” by state actors “regardless of

the fairness of the procedures used to implement them.” L.R. v. Sch. Dist. Of Phila., 836

F.3d 235, 241 (3d Cir. 2016) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992)). A substantive due process claim, however, cannot be maintained when the alleged

constitutional violation is “covered by a specific constitutional provision, such as the Fourth

or Eighth Amendment.” Porter v. Pa. Dep't of Corr., 974 F.3d 431, 447 (3d Cir. 2020)

(quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)). In such situations, the

claim must be analyzed under the rubric of the more specific constitutional provision rather

than substantive due process, see id., as substantive due process is an “unchartered area”

with “scarce and open-ended” guideposts, Collins, 503 U.S. at 125. The “more-specific-

provision rule” will often apply when the challenged conduct underlying the substantive due

process claim is the same conduct that implicates a more explicit constitutioria’ provision.

See Porter, 974 F.3d at 448.

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Insofar as Brown is asserting a substantive due process claim related to the June 8,

2023 incident, that claim is barred by the more-specific-provision rule. The Court will grant

the motion to dismiss the Fourteenth Amendment substantive due process claim.

E. Conspiracy Claim

In order to demonstrate a conspiracy, “a plaintiff must show that two or more

conspirators reached an agreement to deprive him or her of a constitutional right ‘under

color of law.” Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993)

(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)), abrogated on other

grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 400

(3d Cir. 2003). “Bare conclusory allegations of ‘conspiracy’ or ‘concerted action’ will not

suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make

averments of communication, consultation, cooperation, or command from which such an

agreement can be inferred.” Flanagan v. Shively, 783 F.Supp. 922, 928 (M.D. Pa. 1992).

The plaintiffs allegations of a conspiracy “must be supported by facts bearing out the

existence of the conspiracy and indicating its broad objectives and the role each Defendant

allegedly played in carrying out those objectives.” /d.

Brown concluded that unidentified Defendants have conspired to violate his rights,

yet he has failed to allege an agreement or plan formulated and executed by the moving

Defendants to achieve this conspiracy. (Doc. 33, at 20). The amended complaint contains

a single statement that Defendants engaged in a “conspiracy” but alleges no facts to bolster

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this claim. (/d.). Brown does not identify the individuals who allegedly engaged in this

conspiracy, and his claim amounts to nothing more than mere conjecture and bare

speculation. The only potential reference to a conspiracy is Brown’s allegation that

“Defendants Lt. Boal, Swartz, [and] Conklin together acted with a common purpose to

commit assault and battery and IIED.” (/d. at 11, 18). This allegation only speculates that

Defendants Boal, Swartz, and Conklin engaged in a conspiracy to violate his rights. No

agreement to do an unlawful act nor to commit any overt acts in furtherance of a conspiracy

are alleged. The law is clear that bare allegations of wrongdoing by a defendant, without

any substantiating proof of an unlawful agreement, are insufficient to sustain a conspiracy

claim. See Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (holding that

conspiracy claims which are based upon a pro se plaintiffs subjective suspicions and

unsupported speculation are properly dismissed under § 1915(d)). The amended complaint

fails to allege a conspiracy claim, and this claim will be dismissed without prejudice and with

leave to amend.

F. The Moving Defendants are Entitled to Sovereign immunity on the State Tort

Claims of Intentional Infliction of Emotional Distress and Assault & Battery

The moving Defendants argue that the state tort claims of intentional infliction of

emotional distress and assault and battery must be dismissed because they are entitled to

sovereign immunity on these claims. (Doc. 62, at 25-27).

In Pennsylvania, sovereign immunity applies to intentional torts committed by

Cormmonwealth defendants acting in their individual capacities. See Sears v. Mooney, No.

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1:17-cv-50, 2019 WL 6726839, at *17 (M.D. Pa. Dec. 11, 2019) (citation omitted).

Sovereign immunity “applies to Commonwealth employees in both their official and

individual capacities, so long as the employees are ‘acting within the scope of their duties.”

Larsen v. State Emps’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008). As a general

matter, subject only to ten specific statutory exceptions not applicable here, this sovereign

immunity bars state law tort claims like the one alleged here, since Commonwealth

employees are immune from liability for either negligence or intentional torts.6 McGrath v.

Johnson, 67 F.Supp.2d 499, 511 (E.D. Pa. 1999), affd, 35 F. App’x 357 (3d Cir. 2092).

Here, the allegations of the amended complaint imply that the moving Defendants were

acting within the scope of their employment. Accordingly, they are entitled to sovereign

immunity. Thus, the Court will grant the moving Defendants’ motion to dismiss the state tort

claims of intentional infliction of emotional distress and assault and battery. These claims

will be dismissed with prejudice and without leave to amend.

6 The ten categories for which sovereign immunity will not apply are: (1) vehicles in the

possession or control of a Commonwealth party; (2) acts of health care employees of Commonwealth

agency medical facilities or institutions; (3) the care, custody, or control of personal property; (4) a

dangerous condition of Commonwealth agency real estate and sidewalks; (5) dangerous conditions of

highways created by potholes or sinkholes; (6) the care, custody, or control of animals; (7) liquor store

sales; (8) National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse. See 42 Pa. CONS.

STAT. ANN. § 8522(b).

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G. — Motion to Strike Under Federai Ruie of Civil Procedure 12(7)

The moving Defendants request that the Court strike, as irrelevant or immaterial, the

references to and summarization of case law in the amended complaint. (Doc. 62, at 27-28

(moving to strike portions of pages 2, 12, 14, and 18 of the amended complaint)).

Rule 12(f) of the Federal Rules of Civil Procedure allows a court to “strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous

matter.” FED. R. Civ. P. 12(f). “Immaterial’ matter is that which has no essential or

important relationship to the claim for relief.”. Del. Health Care Inc. v. MCD Holding Co., 893

F. Supp. 1279, 1292 (D. Del. 1995). “Impertinent’ matter consists of statements that do not

pertain, and are not necessary, to the issues in question.” /n re Shannopin Mining Co., No.

96-cv-02185, 2002 WL 31002883, at *28 (W.D. Pa. July 15, 2002). “A ‘scandalous’ matter

or pleading is one that casts a derogatory light on someone, uses repulsive language, or

detracts from the dignity of the court.” Carone v. Whalen, 121 F.R.D. 231, 232 (M.D. Pa.

1988).

“The purpose of a motion to strike is to clean up the pleadings, streamline litigation,

and avoid unnecessary forays into immaterial matters.” Simmons v. Simpson House, Inc.,

224 F. Supp. 3d 406, 421 (E.D. Pa. 2016) (quotation and citation omitted). “Relief under

Rule 12(f} is generally disfavored and will be deniec! unless the allegations nave ino possible

relation to the controversy and may cause prejudice to one of the parties, or if the

allegations confuse the issues in the case.” /d. (quotation and citation omitted). “Motions to

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strike are decided on the pleadings alone[ ] and should not be granted unless the relevant

insufficiency is ‘clearly apparent.” Thomas v. Keystone Real Est. Grp., No. 14-cv-00543,

2015 WL 1471273, at *6 (M.D. Pa. Mar. 31, 2015) (quoting Cipollone v. Liggett Grp., Inc.,

789 F.2d 181, 188 (3d Cir. 1986)).

The Court will not strike pages 2, 12, 14, and 18 of the amended complaint. As

stated, Rule 12(f) relief will be denied unless the allegations have no possible relation to the

matter at hand. See Simmons, 224 F. Supp. 3d at 421. Brown’s summarization of case law

is not so immaterial or irrelevant that it has no relationship to the claim for relief. See

Mifflinburg Tel., Inc. v. Criswell, 80 F. Supp. 3d 566, 572 (M.D. Pa. 2015) (citations omitted)

(as a general rule, motions to strike are disfavored, and “should be denied unless the

challenged allegations have no possible relation or logical connection to the subject matter

of the controversy and may cause some significant form of prejudice to one of the parties to

the action”). The Court will deny Defendants’ motion to strike.

H. Federal Rule of Civil Procedure 10(b)

The moving Defendants argue that Brown’s amended complaint should be stricken

in its entirety, or he should be ordered to file another amended complaint, due to his

violation of Federal Rule of Civil Procedure 10(b), which requires plaintiffs to state claims “in

numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

FED. R. Civ. P. 10(b); (see also Doc. 63, at 28-29).

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In reviewing Brown’s amended complaint, he fails to adhere to Rule 10(b)—he does

not present his claims in separately numbered paragraphs, or even paragraphs at all; his

amended complaint is more of a narrative. However, in light of Brown's pro se status, see

Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and the fact that the moving Defendants

have successfully read through the amended complaint and filed the pending motion

seeking to dismiss the claims in part, the Court will not strike the amended complaint or

direct Brown to file another amended complaint on the basis of a Rule 10(b) violation. The

Court will deny the moving Defendants’ motion to dismiss on this ground.

IV. Leave to Amend

Before dismissing a complaint for failure to state a claim upon which relief may be

granted, the Court must grant leave to amend unless amendment would be inequitable or

futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d Cir. 2002). The

Court finds that amendment of the following claims would be both futile and inequitable

because they are factually and/or legally flawed—(1) the official capacity claims for

monetary damages against the moving DOC Defendants; (2) the Fourteenth Amendment

substantive due process claim; and (3) the state tort claims of intentional infliction of

emotional distress and assault and battery based on sovereign immunity.

However, the Court will grant Brown leave to amend the following claims: (1) the

excessive force claim against Defendants Little, Harry, Benning, Grice, and Ardery; (2) the

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Eighth Amendment inadequate medical care claim against Defendants Harry, Little,

Benning, Grice, Ardery, Boal, and Swartz; and (3) the conspiracy claim.

V. Conclusion

Consistent with the foregoing, the moving Defendants’ partial motion to dismiss will

be granted in part and denied in part. (Doc. 62). A separate Order shall issue.

GM

Robert D. Mariani

United States District Judge

Dated: August 2026

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