Alexandra Chavarriaga v. State of NJ Department of Corr

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 14-2044

______________

ALEXANDRA CHAVARRIAGA,

Appellant

v.

STATE OF NEW JERSEY DEPARTMENT OF

CORRECTIONS; ATTORNEY GENERAL NEW JERSEY;

NEW JERSEY COMMISSIONER OF CORRECTIONS;

CORRECTIONS SERGEANT BROWN; JOHN DOE #1;

JOHN DOE #2; JANE DOE; MARCUS WAIR; PHILIP

SHEPPARD; JOHN DOE #3; JOHN DOE #4; VARIOUS

UNKNOWN CORRECTIONS EMPLOYEES ASSIGNED

TO THE SPECIAL INVESTIGATIONS DIVISION OF THE

DEPARTMENT OF CORRECTIONS

______________

On Appeal from the United States District Court for the

District of New Jersey

(D.C. Civ. No. 3-12-cv-04313)

Honorable Michael A. Shipp, District Judge

______________

Argued June 18, 2015

BEFORE: AMBRO, FUENTES, and GREENBERG,

Circuit Judges

(Filed: November 16, 2015)

______________

Fredric J. Gross, Esq.

7 East Kings Highway

Mt. Ephraim, NJ 08059

Noel C. Crowley, Esq. [Argued]

Crowley & Crowley

20 Park Place, Suite 206

Morristown, NJ 07960

Attorneys for Appellant

Dianne M. Moratti, Esq.

Daniel M. Vannella, Esq. [Argued]

Lisa A. Puglisi, Esq.

Office of Attorney General of New Jersey

Department of Law & Public Safety

Division of Law

Richard J. Hughes Justice Complex

25 Market Street, P.O. Box 112

Trenton, NJ 08625

Attorneys for Appellees

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OPINION

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2

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal in a

case in which a former inmate in the custody of the New Jersey

Department of Corrections (“NJDOC”), now the appellant,

Alexandra Chavarriaga, claims that correctional officers

violated her constitutional rights when, without proper

authorization, they took her from one place of confinement to

another where they denied her potable water, clothing, and

sanitary napkins and related medications and subjected her to an

unlawful body cavity search. The District Court on March 27,

2014, granted three defendants’ motion for summary judgment

and dismissed appellant’s remaining claims against the other

defendants, as it held that she did not demonstrate that there

were issues of material fact requiring the Court to deny the

summary judgment motion and appellant’s complaint did not

allege facts constituting a cause of action. Chavarriaga v. New

Jersey, Civ. No. 12-4313, 2014 WL 1276345 (D.N.J. Mar. 27,

2014) (“Chavarriaga”).

We will affirm the District Court’s March 27, 2014 order

granting summary judgment under Fed. R. Civ. P. 56 to

defendants former New Jersey Attorney General Jeffery S.

Chiesa, New Jersey Commissioner of Corrections Gary M.

Lanigan, and Correctional Sergeant Janice Brown, and, with the

significant exceptions that we discuss below, we will affirm the

order dismissing the action pursuant to Fed. R. Civ. P. 12(b)(6)

as to the remaining defendants, the NJDOC, John Doe #1, John

Doe #2, John Doe #3, John Doe #4, Jane Doe, Marcus Wair,

Philip Sheppard, and Various Unknown Corrections Employees.

Appellant sued Chiesa in his official and individual capacity but

3

she sued the other defendants only in their individual capacities.1

The defendants other than the NJDOC, Chiesa, and Lanigan are

NJDOC correctional officers. We reach our result even though

only Chiesa, Lanigan, and Brown were served with process and

have been the only defendants participating in this case.2 We

also will affirm the Court’s denial of appellant’s cross-motion

for partial summary judgment against Lanigan, Brown, and the

NJDOC and its denial of appellant’s motion for sanctions

against the participating defendants’ counsel arising from what

appellant considers was their obstruction of the discovery

process. In addition, we will affirm the Court’s denial of

appellant’s motion for class action certification as moot, but do

so without prejudice to appellant renewing the motion on the

remand for which we are providing. Finally, we will remand the

case to the District Court for further proceedings that can go

forward only if appellant is able to amend her complaint to name

real persons as defendants.

II. STATEMENT OF JURISDICTION

1

Appellant recites in her brief that she sued the other defendants

in both their individual and official capacities but her complaint

recites that she was suing only Chiesa in both capacities. This

discrepancy has no bearing on our outcome because if she had

indicated in her complaint that she was suing all of the

defendants in both capacities our result would not be different.

2

We review the matter with respect to the other defendants even

if fictional or unknown because the District Court decided the

case on the merits with respect to all the defendants and

appellant’s appeal is from an order including that disposition.

4

The District Court had jurisdiction under 28 U.S.C. §§

1331, 1343, and 1367, and we have jurisdiction under 28 U.S.C.

§ 1291.

III. STANDARD OF REVIEW

We exercise plenary review over a district court’s grant

of summary judgment. Blackhawk v. Pennsylvania, 381 F.3d

202, 206 (3d Cir. 2004). A court may grant a motion for

summary judgment if, after it considers all probative materials

of record, with inferences drawn in favor of the non-moving

party, the court is satisfied that there are no genuine issues of

material fact and the movant is entitled to judgment as a matter

of law. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct.

2548, 2556 (1986); Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d

Cir. 2000). A dispute over an issue is “genuine” only if a

reasonable jury could find in the non-movant’s favor on that

issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,

106 S.Ct. 2505, 2510 (1986). But the party opposing a motion

for summary judgment “must do more than simply show that

there is some metaphysical doubt as to the material facts.” Big

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,

1363 (3d Cir. 1992) (citation and internal quotation marks

omitted). Rather, that party must point to specific factual

evidence showing that there is a genuine dispute on a material

issue requiring resolution at trial. See Celotex, 477 U.S. at 323-

24, 106 S.Ct. at 2551.

We also exercise plenary review over a district court’s

dismissal of a complaint under Rule 12(b)(6) for failure to state

a claim. Pension Trust Fund for Operating Eng’rs v. Mortg.

5

Asset Securitization Transactions, Inc., 730 F.3d 263, 268 (3d

Cir. 2013); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000). When considering a motion to dismiss a complaint under

Rule 12(b)(6) for failure to state a claim, “[f]irst, the court must

take note of the elements a plaintiff must plead to state a claim.”

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (citation

and internal quotation marks omitted). Then the court must

determine if a claim has facial plausibility, a threshold that can

be reached only when a plaintiff pleads factual content—as

opposed to mere conclusions—allowing the court to “draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S.Ct. 1937, 1949 (2009). Although the court “must accept the

allegations in the [c]omplaint as true, [it is] not compelled to

accept unsupported conclusions and unwarranted inferences, or

a legal conclusion couched as a factual allegation.” Morrow v.

Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)) (internal

quotation marks omitted).

IV. BACKGROUND

A. Factual Allegations

Appellant alleged in her final amended complaint, which

we usually simply call “the complaint,” that defendants

subjected her to cruel and unusual punishment and denied her

equal protection and due process of law in violation of 42

U.S.C. §§ 1983, 1985, and 1986, the United States Constitution,

6

and parallel New Jersey state law.3 In addition, appellant

claimed that defendants did not follow mandated state-law

procedures in making the body cavity search of her. When we

consider these allegations, we view them in a light most

favorable to appellant. Appellant alleged that in 2010 and 2011,

while she was in NJDOC custody, custodial personnel placed

her at different times in the Garrett House, a residential

community release program, the New Jersey State Prison

(“NJSP”), and the Edna Mahan Correctional Facility (“EMCF”),

and that they unlawfully transferred her three times from the

Garrett House to the other facilities. Appellant remained in

NJDOC custody until March 25, 2013, when she completed her

sentence.

Appellant alleged in her complaint that she was subjected

to constitutional violations on three separate occasions in 2010

and 2011, during the times that she was being transferred to the

EMCF from the Garrett House and, while en route, the custodial

personnel temporarily housed her in a cell at the NJSP. Indeed,

she alleged that certain of the transfers in themselves denied her

due process and equal protection of the law. Beyond the

transfers, she alleged that the first violation occurred on April 7,

2010, when custodial personnel first removed her from the

Garrett House for two alleged infractions of NJDOC rules and

she was held unclothed at the NJSP overnight in cell South-l-

GG-12, a cell that she characterizes as a “Psychiatric Unit.”

(J.A. 23, 24, 75.) But that allegation is somewhat tangential to

3

In her complaint, appellant alleged a cause of action against

Chiesa and Lanigan based on 42 U.S.C. § 1343(a)(2), a statute

that does not exist. (J.A. 71.) It is possible that she intended to

cite 28 U.S.C. § 1343(a), which is a jurisdictional statute, but, if

so, it would add nothing to her case.

7

her case as she does not focus on the events surrounding her first

removal from the Garrett House.

Rather, the case centers on appellant’s allegations

concerning constitutional violations from which she claims to

have suffered after having been transferred from the Garrett

House during her second confinement at the NJSP from May 31,

2011, to June 2, 2011. She asserted in her complaint that on this

occasion the correctional personnel transferred her from the

Garrett House in retaliation for a suit she had brought against

detectives in the Somerset County prosecutor’s office arising

from her claim that they used excessive force in arresting her.

(J.A. 77.) She claimed that defendants John Doe #1 and John

Doe #2 made the second transfer on May 31, 2011, when they

drove her from the Garrett House to the NJSP without lawful

authority and that when they arrived at the NJSP, Sergeant

Brown, a NJDOC supervisor, “ordered all of [her] clothing

removed, whereupon [her] clothing was taken from her.” (J.A.

79.) She asserted that Brown assigned her to cell South-l-GG-

12, where she remained unclothed and was allegedly visible

from time to time to “male staff and prisoners” for the next three

days. (J.A. 81.) Appellant alleged that defendant Jane Doe

entered her cell during that three-day period and made a painful

and unjustified manual body cavity search of her rectum and

vagina. (J.A. 79-80.) Appellant also alleged that the plumbing

in her cell was not working and, as a result, she was not

provided with potable water during this three-day period, and

that when she asked for drinking water the correctional officers

told her to drink from the cell’s toilet bowl. (J.A. 80.) Further,

she contends that she was not permitted to shower until the last

day she was at NJSP, on June 2, 2011. Although there was a

shower in the South-1-GG unit, appellant alleged that she was

8

forced to “walk down a spiral staircase to another unit and then

down a hallway, naked and shackled, in plain view of male

prisoners and staff, to reach a shower.” (J.A. 81.) She also

alleged that the officers denied her sanitary napkins and

medications for migraine headaches and menstrual cramps.

(J.A. 80-81.)

Appellant alleged that during a third transfer from the

Garrett House, the NJDOC housed her again at the NJSP in cell

South-l-GG-12, from December 22, 2011, to December 23,

2011. (J.A. 82.) She alleged that the correctional personnel

made this third transfer and determined her cell placement in the

NJSP because of what she claimed was a meritless disciplinary

complaint that had been filed against her in retaliation for her

suit against the Somerset County detectives. Appellant alleged

that the custodial personnel again deprived her of potable water

during this third confinement in cell South-l-GG-12. (J.A. 87.)4

4

Appellant’s complaint only briefly touched on her first and

third confinements at the NJSP. As we have indicated, her

allegations largely focused on her transfers among the three

facilities that we have identified and on due process, equal

protection, and cruel and unusual punishment claims based on

the denial of clothing, potable water, and sanitary napkins and

related medications, as well as the manual body cavity search,

during her second NJSP confinement. For this reason, and

because she did not allege that the participating defendants were

involved directly with her treatment during either her first or

third NJSP confinements, we largely focus our discussion on her

allegations regarding her transfers and her treatment during her

second confinement at the NJSP from May 31, 2011, to June 2,

2011.

9

Appellant alleged that Chiesa and Lanigan were “well

aware of some or all of the wrongdoing described [in the

complaint], [but] did nothing to punish the wrongdoers and did

nothing to prevent recurrences, thereby approving of the

outrageous conduct inflicted upon [her] and making themselves

co-conspirators, aiders and abettors of the other individual

defendants.” (J.A. 92.) For that reason, she claims that Chiesa

and Lanigan violated her federal and state constitutional rights

and are liable to her under 42 U.S.C. §§ 1983, 1985, and 1986

and N.J. Stat. Ann. § 10:6-2c. (J.A. 69, 71.) Though appellant

alleged that Chiesa and Lanigan had at least some knowledge of

the wrongdoings that she described in her complaint, she did not

identify their source of this knowledge. Appellant also alleged

that the NJSP personnel did not repair the faucet and plumbing

in cell South-l-GG-12 because the NJSP’s Special Investigations

Division (“SID”) wanted to reserve that cell as a torture cell for

disfavored inmates like herself. (J.A. 85.) Appellant also

alleged that certain defendants conspired to issue false

disciplinary charges against her and that the NJDOC wrongfully

withheld sentence credits from her after the dismissal of the

disciplinary charges, thereby extending her time in custody.

(J.A. 86-88.)5

5

In addition to her claim that defendants violated federal and

state constitutional provisions and civil rights laws, appellant

alleged in her complaint that defendants violated the New Jersey

common law (J.A. 73-74), a contention on which she expanded

in her brief to include the New Jersey Torts Claim Act, which to

a degree embraces common law principles. Appellant’s br. at

36. We, however, do not address these New Jersey law

contentions because she did not specify in her brief the Tort

Claims Act sections that she claims defendants violated and she

10

B. Procedural History

Appellant initiated this action by filing a complaint

seeking class action status in the Superior Court of New Jersey

against the NJDOC, Chiesa, Lanigan, Greg Bartkowski, an

administrator at the NJSP, Brown, John Doe #1, John Doe #2,

and Jane Doe. On July 12, 2012, Chiesa, Lanigan, and Brown,

the only defendants served with process and thus the only

defendants participating in this case, removed the action to the

District Court. Appellant filed her final amended complaint on

August 15, 2013, adding Marcus Wair and Philip Sheppard,

employees in the NJDOC’s SID, and John Doe #3 and John Doe

#4 as defendants. Inasmuch as neither Wair nor Sheppard has

been served with process neither has participated in this case.

cites only one New Jersey state court case in her opening brief

and one New Jersey state court case in her reply brief so she did

not develop the claims adequately. In the circumstances, she has

abandoned her Tort Claims Act and common law claims. See

United States v. Irizarry, 341 F.3d 273, 286 n.3 (3d Cir. 2003)

(defendant waived for review on appeal claim that district court

abused its discretion in denying his severance motion, where he

did not raise claim in his statement of issues presented on

appeal, and he did not pursue claim in argument section of his

brief); McClintock v. Eichelberger, 169 F.3d 812, 817 (3d Cir.

1999) (declining to entertain a First Amendment retaliation

argument because “appellants did not plead it as the basis for

relief in their complaint”); Krouse v. Am. Sterilizer Co., 126

F.3d 494, 499 n.1 (3d Cir. 1997) (noting that “we will not read

causes of action into a complaint when they are not present”

because to do otherwise would deprive defendants of the notice

required by Fed. R. Civ. P. 8).

11

Appellant did not include Bartkowski as a defendant in this

complaint. (J.A. 70-74.)

On August 29, 2013, Chiesa, Lanigan, and Brown moved

to dismiss the complaint pursuant to Rule 12(b)(6) and,

alternatively, moved for summary judgment under Rule 56. On

September 19, 2013, appellant, in reliance on Rule 56(d), filed a

motion requesting the opportunity to take the depositions of: (1)

Lanigan; (2) individuals who provided certifications in support

of the participating defendants’ motion for summary judgment;

and (3) an individual who she claimed provided her with therapy

during her confinement at the Garrett House, but these

depositions never were taken and, according to appellant, the

District Court never passed on the motion. (J.A. 117-21.) Then,

on December 9, 2013, appellant filed a cross-motion seeking an

order certifying the matter as a class action, granting her a

partial summary judgment, and imposing sanctions against the

participating defendants’ attorneys on the ground that they had

obstructed the discovery process. On March 27, 2014, the

District Court entered an order making the disposition of this

case that we set forth at the outset of this opinion. On April 24,

2014, appellant filed a timely notice of appeal from the Court’s

March 27, 2014 order.

V. DISCUSSION

A. The District Court Properly Granted Summary

Judgment to Chiesa and Lanigan.

1. Appellant failed to allege adequately a §

1983 claim against Chiesa and Lanigan.

12

Appellant appeals from the District Court’s March 27,

2014 order granting summary judgment to Chiesa and Lanigan

on her claims against them pursuant to 42 U.S.C. §§ 1983, 1985,

and 1986 and N.J. Stat. Ann. § 10:6-2c.6 Appellant alleged in

her complaint that Chiesa and Lanigan, by their failure to protect

her, made “themselves co-conspirators, aiders and abettors of

the other individual defendants.” (J.A. 92.) Therefore, she

claims that they violated her federal and state constitutional

rights.

“The first step in evaluating a section 1983 claim is to

‘identify the exact contours of the underlying right said to have

been violated’ and to determine ‘whether the plaintiff has

alleged a deprivation of a constitutional right at all.’” Nicini v.

Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5, 118 S.Ct. 1708,

1714 n.5 (1998)). Next, a plaintiff must demonstrate a

defendant’s “personal involvement in the alleged wrongs.”

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). A

plaintiff makes sufficient allegations of a defendant’s personal

involvement by describing the defendant’s participation in or

actual knowledge of and acquiescence in the wrongful conduct.

6

Appellant also appeals from that order to the extent that it

granted summary judgment in favor of Brown but we discuss

that aspect of her appeal separately, as it raises issues distinct

from those relating to Chiesa and Lanigan. Appellant contends

that the District Court granted summary judgment to Chiesa and

Lanigan before she had an adequate opportunity for discovery.

But we are satisfied that further discovery could not have

revealed facts that would have altered our result on their

summary judgment motion.

13

Id. Although 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. Baker v. Monroe Twp., 50 F.3d 1186,

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

“must portray specific conduct by state officials which violates

some constitutional right.” Gittlemacker v. Prasse, 428 F.2d 1, 3

(3d Cir. 1970).7

The District Court correctly granted Chiesa and Lanigan

summary judgment on appellant’s § 1983 complaint because her

allegations did not describe their conduct in sufficient detail to

support her conclusory allegations that they had either actual

contemporaneous knowledge of or any personal involvement in

any violation of her constitutional rights. See Rode, 845 F.2d at

1207. Furthermore, inasmuch as the imposition of liability in an

action under § 1983 and the other civil rights statutes she cites

depends on the plaintiff showing that the defendant had personal

involvement in the alleged wrongs, appellant cannot predicate

defendants’ liability on a respondeat superior theory. See Parratt

v. Taylor, 451 U.S. 527, 537 n.3, 101 S.Ct. 1908, 1913 n.3

(1981). The District Court granted Chiesa and Lanigan

summary judgment because it believed, although appellant

contended otherwise, that she was attempting to establish that

they were liable based on their subordinates’ alleged acts, and

therefore appellant impermissibly predicated her complaint

7

The defenses and immunities applicable to federal

constitutional claims apply with equal force to parallel New

Jersey state constitutional claims. See generally N.J. Stat. Ann.

§§ 10:6-1 et seq. Consequently, we do not make a separate

analysis of the state-law constitutional claims.

14

against them on a respondeat superior theory of liability.8

We realize that appellant argues that, rather than relying

on a respondeat superior basis for liability, she alleged that

Chiesa and Lanigan were liable as policymakers. Courts

recognize that liability under § 1983 may be imposed on an

official with final policymaking authority if that official

establishes an unconstitutional policy that, when implemented,

injures a plaintiff. Sample v. Diecks, 885 F.2d 1099, 1118 (3d

Cir. 1989). However, to establish a claim against a policymaker

under § 1983 a plaintiff must allege and prove that the official

established or enforced policies and practices directly causing

the constitutional violation. Id. at 1114 (“Thus, when a

policymaking official establishes a constitutionally inadequate

state procedure for depriving people of a protected interest and

someone is thereafter deprived of such an interest, the official

has ‘subjected’ that person to a due process violation.”); see also

Berlanti v. Bodman, 780 F.2d 296, 300-01 (3d Cir. 1985).

Appellant’s arguments regarding policymaking liability

8

We also point out that a court can affirm a judgment for any

reason supported by the record and therefore a court may affirm

an order for summary judgment for a defendant if the complaint

does not state a claim on which relief may be granted. See In re

Enron Corp. Sec., Derivative & ERISA Litig., 610 F. Supp. 2d

600, 607 (S.D. Tex. 2009) (“While ‘failure to state a claim’ is

usually challenged by a motion to dismiss under Rule 12(b)(6),

it also may serve as a basis for summary judgment. In a

summary judgment context, the failure to state a claim is the

‘functional equivalent’ of the failure to raise a genuine issue of

material fact.” (citing Whalen v. Carter, 954 F.2d 1087, 1098

(5th Cir. 1992))).

15

are insufficient. Appellant’s principal allegations were that the

prison personnel deprived her of potable water at the NJSP for

several days on two separate occasions, subjected her to an

impermissible manual body cavity search during her second

confinement at the NJSP, denied her clothing on two separate

occasions at the NJSP, and denied her sanitary napkins and

medications during her second confinement at the NJSP. But

she did not allege in her complaint that the persons directly

involved in this treatment or the other treatment of which she

complains were implementing policies that Chiesa or Lanigan

had promulgated or were following existing practices that they

countenanced likely to result in the violation of inmates’

constitutional rights. Thus, she did not allege that Chiesa or

Lanigan established policies to deny potable water to inmates, to

subject inmates to excessively intrusive body cavity searches, or

to subject inmates to the other treatment of which she

complains. Therefore, neither Chiesa nor Lanigan can be held

responsible on a policymaker theory of liability for the alleged

violations of appellant’s constitutional rights with respect to the

denial of water, the body cavity search, or other treatment of

which she complains. See Bd. of Cnty. Comm’rs v. Brown, 520

U.S. 397, 404, 417, 117 S.Ct. 1382, 1388, 1394 (1997).

Inasmuch as appellant did not allege facts supporting any of her

claims that could justify imposing liability on Chiesa or Lanigan

on the basis of any theory of liability under § 1983, we will

affirm the order for summary judgment on the aspects of the

claims in the complaint against them under that section and

parallel New Jersey law.

2. Appellant’s §§ 1985 and 1986 claims

against Chiesa and Lanigan fail for the

same reasons as her § 1983 claims

16

against them.

Appellant advanced conspiracy claims in her complaint

pursuant to 42 U.S.C. §§ 1985 and 1986 against Chiesa and

Lanigan, but, like her § 1983 claims, they also fail as a matter of

law. Under 42 U.S.C. § 1985, a plaintiff may bring a claim for

conspiracy to violate an individual’s civil rights in violation of §

1983, and under 42 U.S.C. § 1986 a plaintiff may bring a claim

based on the allegations made in support of a § 1983 claim

against a responsible official who does not prevent the

conspiratorial acts enumerated in § 1985. But a defendant

cannot be liable under § 1985 or § 1986 unless the defendant

had some awareness of the underlying violation. See Clark v.

Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994) (“[A] § 1986

plaintiff must show that . . . the defendant had actual knowledge

of a § 1985 conspiracy . . . .”); Rode, 845 F.2d at 1207-08

(rejecting plaintiff’s § 1985 conspiracy claim because she did

not show defendant’s knowledge of alleged civil rights

violation). Inasmuch as appellant did not plead a valid § 1983

claim against either Chiesa or Lanigan because she did not make

an adequate allegation that they had knowledge of any

deprivation of her constitutional rights, her §§ 1985 and 1986

claims against them fail as well.9 We accordingly will affirm

9

The District Court believed that a claim appellant made

regarding deprivation of sentence credits was moot because she

had served her maximum sentence and had been released from

custody. Chavarriaga, 2014 WL 1276345, at *14. We,

however, disagree because appellant is seeking damages on the

claim, not an order for her release from custody. Therefore, we

have considered her deprivation of sentence credits claim on the

merits but have concluded that it is not meritorious.

Accordingly, we will affirm the Court’s dismissal of this claim.

17

In this regard, we point out that the complaint alleged that the

disciplinary proceedings against appellant were dismissed, but

afterwards “the Department of Corrections arbitrarily and

capriciously refused to restore any of the lost remission credits”

and the failure to do so “wrongly delayed [appellant from]

obtaining freedom.” (J.A. 88.) Furthermore, in her brief she

listed as a related case a habeas corpus action in which she

asserted that the NJDOC did not restore the lost good time

credits following the dismissal of the disciplinary charges that

led to her loss of the credits. Appellant’s br. at 4. But the Court

correctly dismissed the NJDOC from this case on Eleventh

Amendment grounds. We are aware that even though appellant

does not contend that the NJDOC lacks Eleventh Amendment

immunity, she does contend that the participating defendants

waived an Eleventh Amendment immunity defense by removing

the case to the District Court. We are perplexed by this

contention because the NJDOC did not remove the case and it is

the only defendant to whom the Court granted Eleventh

Amendment immunity. Surely it cannot be argued seriously that

the participating defendants could waive the NJDOC’s

immunity when it had not been served with process in the case

and thus did not have the opportunity to decline to consent to the

remand. See 28 U.S.C. § 1446(b)(2)(A). Though appellant did

allege that corrections personnel conspired to deny her good

time credits, she did not explain how they were involved in

awarding or restoring the credits. (J.A. 92.) Moreover,

appellant did not adequately plead a restoration of credits claim

against the participating defendants in her complaint or, indeed,

plead such a claim against any defendant except perhaps the

NJDOC. However, as we have indicated, the Court properly

dismissed the NJDOC on immunity grounds. Regardless of

18

the District Court’s grant of summary judgment to Chiesa and

Lanigan on the counts of the complaint based on appellant’s §§

1985 and 1986 claims and her claims under parallel state law.10

B. The District Court Properly Dismissed

Appellant’s Due Process and Equal Protection

Claims Against Brown, John Doe #1, John Doe

#2, and Unnamed Defendants Based on Her

Transfers Among Facilities.

The District Court held that appellant’s complaint that

her transfers among the three facilities violated her federal and

state constitutional rights to due process and equal protection of

the law did not state a claim on which relief could be granted.11

Eleventh Amendment immunity, however, § 1983 does not

create a cause of action against states or state officials acting in

their official capacities. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 66, 71, 109 S.Ct. 2304, 2307, 2309 (1989).

Finally, on the sentence credits issue we point out that a claim

that credits due an inmate were not restored is distinct from a

claim that the disciplinary proceedings leading to the loss of the

credits were initiated wrongfully.

10

Chiesa and Lanigan cannot be liable for appellant’s transfers

because, as we explain below, the transfers did not violate her

constitutional rights.

11

Appellant contends that the District Court should not have

granted summary judgment to Brown as she did not have an

adequate opportunity to conduct discovery on her claims against

Brown. Yet she did not include Brown in her September 19,

2013 Rule 56(d) motion requesting an opportunity to take

19

In particular, appellant alleged that Brown, a NJDOC

supervisor, violated her due process and equal protection rights

when she conspired with unidentified prison personnel to

remove appellant from the Garrett House and confine her in

NJSP cell South-l-GG-12.

Due process of law protects “persons against deprivations

of life, liberty, or property; and those who seek to invoke its

procedural protection must establish that one of these interests is

at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct.

2384, 2389 (2005). But an inmate does not have the right to “be

placed in any particular prison,” including halfway homes and

community release programs. Meachum v. Fano, 427 U.S. 215,

224, 96 S.Ct. 2532, 2538 (1976); Asquith v. Dep’t of Corr., 186

F.3d 407, 411-12 (3d Cir. 1999). A state has broad authority to

confine an inmate in any of its institutions. Meachum, 427 U.S.

depositions so she could oppose the participating defendants’

motion for summary judgment even though she had not deposed

Brown already. In any event, we are satisfied that Brown was

entitled to a judgment under Rule 12(b)(6) and therefore

appellant’s loss of opportunity for discovery, if she had such a

loss, did not prejudice her as a court adjudicates a Rule 12(b)(6)

motion on the basis of the complaint and not on the basis of a

record developed for consideration on a summary judgment

motion. Once again, we note that a court may affirm a judgment

for any reason supported by the record and thus we may affirm

an order for summary judgment for a defendant if the complaint

does not state a claim on which relief may be granted. See In re

Enron Corp. Sec., Derivative & ERISA Litig., 610 F. Supp. 2d

600, 607 (S.D. Tex. 2009). This principle is particularly

applicable here, as Brown, a prevailing defendant, sought a

dismissal on that basis in the District Court.

20

at 224, 96 S.Ct. at 2538. Thus, courts recognize that a state’s

authority to place inmates anywhere within the prison system is

among “a wide spectrum of discretionary actions that

traditionally have been the business of prison administrators

rather than of the federal courts.” Id. at 225, 96 S.Ct. at 2538.

Consequently, custodial personnel do not infringe an inmate’s

liberty interests by placing her in one custodial facility rather

than another. Id.

Our analysis leads us to affirm the District Court’s grant

of summary judgment to Brown on appellant’s complaint arising

from her movement to, and placement in, various facilities, and,

by extension, the dismissal of the complaint making those

claims against all the other defendants. Although the NJDOC

does have policies regarding custodial placements, these policies

and the Due Process Clause do not give an inmate a liberty

interest in being housed in a particular institution or at a

particular custody level. See, e.g., Olim v. Wakinekona, 461

U.S. 238, 244-45, 103 S.Ct. 1741, 1745 (1983); Montanye v.

Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547 (1976).

Furthermore, appellant did not plead facts, as distinguished from

conclusions, explaining how her transfers among custodial

facilities deprived her of equal protection of the law or violated

her due process rights. Therefore, even assuming arguendo that

Brown participated in the decisions to transfer appellant among

facilities and personally determined her cell assignment at the

NJSP, appellant did not make legally justified allegations that

could establish that Brown violated her equal protection or due

process rights in doing so. Of course, for the reasons we have

set forth, appellant’s due process and equal protection claims

fail against all the other defendants as well.

C. The District Court Erred in Part in

21

Analyzing Appellant’s Eighth

Amendment Allegations.

Pursuant to § 1983, appellant brought Eighth and

Fourteenth Amendment claims against Brown and unnamed

defendants predicated on their denying her potable water during

her second and third confinements in the NJSP and clothing

during her first and second confinements. She also asserts that

she was forced to appear without clothing before male prison

personnel and inmates and was denied sanitary napkins and

related medications for migraine headaches and menstrual

cramps while she was menstruating. Our first step in analyzing

these claims is to “identify the exact contours of the underlying

right said to have been violated” and to determine whether

appellant has “alleged a deprivation of a constitutional right at

all.” Nicini, 212 F.3d at 806. Consequently, we begin our

discussion of this point by noting that the Constitution “does not

mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S.

337, 349, 101 S.Ct. 2392, 2400 (1981).

Notwithstanding a state’s broad powers to determine

where to place inmates, the Constitution does not permit their

inhumane treatment because “the treatment a prisoner receives

in prison and the conditions under which [the prisoner] is

confined are subject to scrutiny under the Eighth Amendment.”

Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2476, 2480

(1993).12 Thus, prison officials violate an inmate’s Eighth

12

The Eighth Amendment has been made applicable to the

states through the Due Process Clause of the Fourteenth

Amendment. Furman v. Georgia, 408 U.S. 238, 400, 92 S.Ct.

2726, 2809 (1972). Accordingly, we only need discuss the

alleged violations of those amendments under the Eighth

22

Amendment rights when they deprive her of “a single

identifiable human need such as food, warmth, or exercise.”

Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 2327

(1991). But an inmate’s claim that she was subjected to such a

deprivation does not rise to the level of an Eighth Amendment

violation unless: (1) the prison official deprived the prisoner of

the minimal civilized measure of life’s necessities; and (2) the

prison official acted with deliberate indifference in doing so,

thereby exposing the inmate to a substantial risk of serious

damage to her future health. Farmer v. Brennan, 511 U.S. 825,

843, 114 S.Ct. 1970, 1977 (1994).

An inmate seeking to prove that she has been subjected to

an Eighth Amendment violation therefore must make both an

objective and a subjective showing to impose liability on a

defendant. Objectively, an inmate must show that the

deprivation was “sufficiently serious” so that it reached the level

of an Eighth Amendment violation. Wilson, 501 U.S. at 297,

111 S.Ct. at 2324. Subjectively, an inmate must show that the

defendant acted with “deliberate indifference” to her health or

safety. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977. But to

demonstrate a defendant’s deliberate indifference an inmate

need not show that the defendant intentionally sought to cause

the inmate harm or acted with knowledge that harm to the

inmate probably would result from the defendant’s act or failure

to act. Id. at 835-36, 114 S.Ct. at 1978. Though purposeful

conduct would show at least deliberate indifference, an inmate

satisfies her burden to make that showing if she demonstrates

that the defendant acted or failed to act despite having

Amendment.

23

knowledge that her actions or inaction, as the case may be,

would subject the inmate to a substantial risk of serious harm.

Id. at 842, 114 S.Ct. at 1981. The proof necessary to show that

there was a substantial risk of harm is less demanding than the

proof needed to show that there was a probable risk of harm.

As we noted above, however, in our discussion of

appellant’s complaint against Chiesa and Lanigan, she cannot

predicate liability on her § 1983 claims on a respondeat superior

basis. See Rode, 845 F.2d at 1207. To set forth a claim for

supervisory liability under § 1983, an inmate 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.

Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)

(citing Sample, 885 F.2d at 1118). 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. Id.

Appellant alleged that Brown was responsible for

depriving her of potable water and clothing during her

confinement in cell South-l-GG-12 at the NJSP from May 31,

24

2011, through June 2, 2011, and thereby violated her Eighth

Amendment right against cruel and unusual punishment.

Appellant claims that Brown ordered the removal of her clothing

at the beginning of this three-day confinement at the NJSP and

did not provide her with clothes or other covering until the end

of the stay. Appellant also claims in her brief that Brown, as a

supervisor, knew that she was being denied potable water for the

three-day period, and that Brown knew that correctional officers

told her to drink from the toilet bowl when she requested

drinking water. Appellant’s br. at 18. She also alleged that she

was forced to walk to a shower unclothed in the view of male

prison personnel and inmates and was denied sanitary napkins

and medications for migraine headaches and menstrual cramps

when she was menstruating. In addition, appellant alleged that

she was denied potable water during her third confinement at the

NJSP from December 22, 2011, to December 23, 2011, though

she does not charge that Brown was responsible for this second

potable water deprivation.

On this appeal, we determine whether appellant

sufficiently pleaded a cognizable Eighth Amendment

constitutional injury so that her complaint could survive a

motion to dismiss pursuant to Rule 12(b)(6), for, unless she did,

the District Court did not err in granting Brown summary

judgment. The Court reviewed appellant’s allegations and held

that her “Eighth Amendment claims fail to state a cognizable

claim of a constitutional deprivation that would entitle [her] to

relief, and the claims are dismissed with prejudice against

Defendant Brown and all named and unidentified Defendants in

this action.” Chavarriaga, 2014 WL 1276345, at *10. But when

we accept the factual allegations in appellant’s complaint, we

conclude that the Court partially erred in its analysis of her

25

Eighth Amendment claims.

1. Objective prong of Eighth Amendment

analysis

We assess first whether appellant’s allegations were

sufficiently serious so that, if proven, they set forth facts

constituting a violation of her Eighth Amendment rights. We

are satisfied that appellant’s allegation that she was deprived of

potable water for three consecutive days during her second

confinement at the NJSP did set forth such a claim because she

alleged facts in sufficient detail that, if proven, would show that

she was deprived of the “minimal civilized measure of life’s

necessities.” Farmer, 511 U.S. at 834, 114 S.Ct at 1977 (citation

and internal quotation marks omitted). We reach the same

conclusion with respect to the denial of potable water during her

third confinement in the NJSP even though the duration of the

deprivation was for a shorter period than during her second

confinement. We also conclude that appellant’s claims that she

was forced to walk or otherwise be naked in the presence of

male prison personnel and inmates enroute to the shower and

denied sanitary napkins and medications for migraine headaches

and menstrual cramps set forth facts that, if proven, would

constitute Eight Amendment violations.13 We are not dissuaded

from reaching these conclusions by our recognition that, as the

District Court observed, “[f]ederal courts have consistently held

that isolated denials of necessities in prison for a short duration .

. . do not rise to the level of cruel and unusual punishment in

13

We are combining the denial of sanitary napkins and

mediations for migraine headaches and menstrual cramps as

they are related, and therefore when we refer to the denial of

sanitary napkins we are including the denial of the medications.

26

violation of the Eighth Amendment.” Chavarriaga, 2014 WL

1276345, at *9.

We are of the view that appellant’s allegations that prison

personnel intentionally denied her access to potable water for

three days on one occasion and two days on another raised her

allegations to a level so that rather than charging a tolerable,

though uncomfortable, set of conditions, she had been subjected

to a prohibited inhumane deprivation. See Farmer, 511 U.S. at

832, 114 S.Ct. at 1976. A complete denial of water for three

days other than the water in a toilet bowl lends gravity to

appellant’s allegations because a denial of water for that length

of time—especially when a prisoner is menstruating as appellant

asserts that she was on one occasion—poses a clear “substantial

risk of serious harm” to an inmate. See id. at 833-34, 114 S.Ct.

at 1977. We reach the same conclusion with respect to

appellant’s two-day NJSP confinement from December 22,

2011, to December 23, 2011. Thus, we hold that appellant

pleaded facts with respect to the denial of water that, if true,

could lead to a conclusion that she was subjected to cruel and

unusual punishment. See id.; Young v. Quinlan, 960 F.3d 351,

365 (3d Cir. 1992).

A denial of clothing in itself, however, though troubling,

in the circumstances of this case is not a deprivation that rises to

the level of the deprivation of water and consequently we are

satisfied that the denial of clothing claim, except to the extent

that it related to her being naked in the presence of male prison

personnel and inmates, requires little discussion. It is sufficient

to point out that the court in Williams v. Delo found that there

had not been an Eighth Amendment violation where the prisoner

was placed in a strip cell without clothes but was sheltered from

the elements. 49 F.3d 442, 443-47 (8th Cir. 1995).

27

Consequently, inasmuch as appellant did not make an objective

showing that she suffered an Eighth Amendment violation

merely by reason of the denial of clothing, we largely focus our

analysis of her Eighth Amendment claim against Brown to the

denial of potable water.

Our opinion, with respect to the denial of clothing,

however, should not be overread. In this regard we point out

that the Supreme Court in Farmer, 511 U.S. at 832, 114 S.Ct. at

1976, indicated that prison officials “must ensure that inmates

receive adequate food, clothing, shelter, and medical care . . . .”

Thus, we are limiting our holding with respect to the denial of

clothing to the facts of this case. Moreover, we exclude from

our holding appellant’s claim that she was forced to walk down

a staircase and a hallway naked in plain view of male prison

personnel and inmates to reach a shower or otherwise was

exposed while naked to male prison personnel and inmates. In

our view this allegation asserts an Eighth Amendment claim

because forcing her to be naked in these circumstances would be

a malicious act intended to humiliate her for no legitimate

penological reason. See King v. McCary 781 F.3d 889, 896,

898 (7th Cir. 2015); Lee v. Down, 641 F.2d 1117, 1119 (4th Cir.

1981).

We also hold that appellant alleged facts that constituted

a cause of action when she claimed that officers denied her

sanitary napkins and medications while she was menstruating.

Clearly, that was an allegation sufficient to constitute an Eighth

Amendment violation. See Adkins v. Cnty. of Orange, 372 F.

Supp. 2d 377, 406 (S.D.N.Y. 2005).

2. Subjective prong of Eighth Amendment

analysis

28

When we address the subjective prong of appellant’s

Eighth Amendment claim we are concerned with Brown as a

named and participating defendant and we consider first whether

the deprivation of water can be tied to what appellant contends

was Brown’s intentional act or deliberate indifference to her

health or safety during her May 31, 2011, to June 2, 2011

confinement at the NJSP. See Farmer, 511 U.S. at 834, 114

S.Ct. at 1977; Labatad v. Corr. Corp. of Am., 714 F.3d 1155,

1160 (9th Cir. 2013). “A prison official must ‘be aware of facts

from which the inference could be drawn that a substantial risk

of serious harm exists, and . . . must also draw the inference.’”

Id. (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1977).

“Liability may follow only if a prison official ‘knows that

inmates face a substantial risk of serious harm and disregards

that risk by failing to take reasonable measures to abate it.’” Id.

(quoting Farmer, 511 U.S. at 847, 114 S.Ct. at 1984).

We are satisfied that appellant’s allegations that Brown

intentionally denied her potable water for three days or was

deliberately indifferent to the denial were insufficient to impose

liability on Brown because appellant did not adequately allege

facts attributing the denial to Brown. Although the complaint

pleaded that Brown was one of an unspecified number of

supervisors of the correctional officers who interacted with

appellant, appellant did not make specific allegations concerning

Brown’s duties as a supervisor, or her interactions or

communications with correctional officers in general, let alone

with the officers directly involved with appellant’s custody. The

complaint did allege that Brown forced appellant to drink water

“from a dirty toilet bowl,” but this allegation was conclusory

because appellant did not plead that Brown gave a direction for

appellant to drink in this way.

29

It is clear that appellant based her complaint against

Brown for the denial of water on the actions of subordinate

personnel, and thus appellant was seeking to place liability on

Brown on a respondeat superior theory or was alleging that

Brown was liable on some other theory merely because of her

position as a supervisor. But Brown’s position as a supervisor

without more did not make her responsible for her subordinates’

conduct. Accordingly, we cannot infer from the factual

allegations in the complaint that Brown should have been alerted

to a history of mistreatment of inmates in general or of appellant

in particular. And, although appellant alleged in her complaint

that she was placed in a known “condemned” cell that frequently

was without water, that allegation does not support a claim that

Brown knew or should have known that appellant was deprived

of water, subjecting her to a substantial risk of harm during her

three-day confinement at the NJSP from May 31, 2011, until

June 2, 2011. See Wood v. Beauclair, 692 F.3d 1041, 1051 (9th

Cir. 2012) (prison supervisors lacked knowledge of risk to

inmate when supervisor had no reason to suspect mistreatment

and inmate did not complain of actions to prison officials until

long after the incidents occurred).

We also are satisfied that appellant did not adequately

plead that Brown was instrumental in requiring her to go to the

shower or otherwise be naked while in the presence of male

prison personnel and inmates and in not supplying her with

sanitary napkins and medications. Rather, though she did plead

that Brown directed that her clothing be taken from her, her

allegations with respect to the walk to the shower or otherwise

be naked in the presence of male prison personnel and inmates

and the denial of sanitary napkins and medications are

generalized with respect to the individuals responsible for these

30

actions.

Although appellant did not adequately plead that Brown

should have known that she was deprived of water for three

days, we reiterate our rejection of the District Court’s

conclusion that the deprivations of potable water in this case

could not be cruel and unusual punishment under the Eighth

Amendment. See Chavarriaga, 2014 WL 1276345, at *9. Thus,

while we uphold the grant of summary judgment on the denial

of potable water as well as on the naked shower walk and other

naked exposures and the denial of sanitary napkin and

medications claims in Brown’s favor, we will reverse the

District Court’s dismissal of the Eighth Amendment claims

against the unknown defendants that appellant alleged were

responsible for these deprivations and will remand the case for

further proceedings on these claims.

D. The District Court Partly Erred In

Analyzing Appellant’s Eighth

Amendment Allegations and Related

State-Law Claims Relating to her Body

Cavity Search.

Appellant’s next claim of unconstitutional punishment

challenges the legality of a cavity search in which a prison guard

inserted her fingers into appellant’s vagina and rectum. In

advancing this claim, appellant did not assert that she was

deprived of any of life’s necessities but rather that she was

subjected to a painful and unwarranted use of force. “In the

excessive force context, society’s expectations are different[]”

than in the context of prison conditions, and accordingly the test

for an Eighth Amendment violation is different as well. Hudson

v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000 (1992).

31

“When prison officials maliciously and sadistically use force to

cause harm, contemporary standards of decency always are

violated. This is true whether or not significant injury is

evident.” Id. (citation omitted).

The District Court held that the cavity search was

justifiable as a “routine security measure,” noting that the

Supreme Court has “held that it is constitutional to conduct a

full strip search of an individual detained in the general

population of a jail.” Chavarriaga, 2014 WL 127634, at *12-13.

But in that Supreme Court case, Florence v. Board of Chosen

Freeholders, the Court was concerned with whether a uniform

policy of “strip searching” detainees held in a general jail

population violated the detainees’ rights under the Fourth

Amendment—not the Eighth Amendment on which appellant

relies.14 132 S.Ct. 1510, 1515-16 (2012). More importantly, the

strip searches in Florence involved only the visual inspection of

detainees’ body cavities, and there “[we]re no allegations that

the detainees . . . were touched in any way as part of the

searches.” Id. at 1515. Indeed, in response to an amici’s

“concerns about instances of officers engaging in intentional

14

The District Court treated the body cavity search claim under

the Fourth Amendment as it held that appellant “does not allege

any facts to show that the strip search was so outside the scope

of a reasonable search policy that it would rise to the level of a

Fourth Amendment violation.” Chavarriaga, 2014 WL 127634,

at *13 (internal quotation marks omitted). But our result on the

body cavity search issue would not be different even if we

considered that appellant made the claim under the Fourth

Amendment. In any event, appellant pled the claim under the

Eighth Amendment. (J.A. 92.)

32

humiliation and other abusive practices,” the Court recognized

that there may “be legitimate concerns about the invasiveness of

searches that involve the touching of detainees.” Id. at 1523.

Thus, Florence does not govern here.

Florence does stand for the proposition that “a regulation

impinging on an inmate’s constitutional rights must be upheld

‘if it is reasonably related to legitimate penological interests.’”

132 S.Ct. at 1515 (quoting Turner v. Safley, 482 U.S. 78, 89,

107 S.Ct. 2254, 2261 (1987)).15 But appellant does not

challenge a prison regulation—in fact, she alleged that Jane Doe

searched her body cavities in violation of the applicable

regulations. The factors our Court considers in applying the

“legitimate penological interest” test further demonstrate that the

test is ill-suited for assessing unauthorized and malicious

conduct on the part of prison guards. See Sharp v. Johnson, 669

F.3d 144, 156 (3d Cir. 2012).

The District Court also determined that it should defer to

the judgment of corrections officials on the question of whether

15

In J.B. v. Fassnacht, 801 F.3d 336 (3d Cir. 2015), we held,

contrary to the district court in that case, that the holding in

Florence applies to juvenile offenders admitted to the general

population of a juvenile detention center. Consequently, we

reversed an order denying summary judgment to police and

public official defendants in an action brought against them by a

juvenile subjected to a strip search upon his detention in a

juvenile facility. The significance of the case here is its focus

on the importance of security in custodial facilities. However,

the search in Fassnacht was not nearly as intrusive as appellant’s

body cavity search and thus the case adds little support to Jane

Doe’s position on this appeal.

33

the cavity search was permissible, and it concluded that the

search was permissible as “a routine security measure.”

Chavarriaga, 2014 WL 127634, at *13. Appellant plainly

alleged facts that demonstrate that the cavity search was not

routine for, as we already have explained, she asserted that the

prison personnel made such a search on only one of the three

occasions she was held at the NJSP. In addition, she alleged

that the search was conducted in a manner that violated

applicable New Jersey regulations. In this regard, the

regulations provide that before such a search is made, a

supervisor must have reasonable suspicion to believe that

contraband will be found in the inmate’s body cavity. Then, if

there is to be a search, the prison personnel must take the inmate

to the infirmary and offer the inmate the assistance of a medical

provider in removing the contraband. The regulations further

provide that prison personnel cannot remove contraband

involuntarily unless they follow a detailed set of procedures and

that the supervisor authorizing the search must prepare a written

report of the basis for, conduct of, and results of the search. See

N.J. Admin. Code § 10A:3-5.8. According to the complaint the

prison personnel disregarded these procedures in their entirety.

But the constitutional question that we face is not whether

New Jersey’s policies on cavity searches are reasonable or even

whether the prison personnel followed them. Rather, the

constitutional question is whether appellant plausibly has

alleged that Jane Doe maliciously searched her body cavities.

See Hudson, 503 U.S. at 9, 112 S.Ct. at 1000. To that end, the

allegation that the prison personnel did not follow the

regulations gives some support to an inference that the search

was malicious. We find additional support for drawing that

inference because appellant alleged that the cavity search was so

34

painful that during the search she cracked a molar in two while

clenching her teeth. (J.A. 80.) Nevertheless, neither the District

Court nor the participating defendants have addressed the

question of whether the cavity search violated the Eighth

Amendment. After our consideration of the body cavity search

issue, we will reverse the District Court’s order dismissing

appellant’s Eighth Amendment claims against Jane Doe and will

remand the case for further proceedings on these claims.

Notwithstanding our foregoing discussion, we hold that

the District Court correctly granted Brown summary judgment

on appellant’s Eighth Amendment body cavity search claim. In

her brief, appellant attempts to implicate Brown in her manual

body cavity search by claiming that “Jane Doe’s simultaneous

digital penetration of plaintiff’s vagina and rectum was

committed in the presence of her direct supervisor, Sgt. Brown.”

Appellant’s br. at 31. Yet this statement, though quite specific,

was in appellant’s brief and not her complaint, and is of

questionable significance as she goes on in her brief to indicate

that Brown “evidently authorized and supervised” the search, a

comment that suggests that she only is surmising that Brown

was involved in the search. Id. at 33 (emphasis added). In any

event, appellant by making these allegations in her brief cannot

overcome the lack of an adequate pleading in her complaint

alleging with specificity that Brown was involved in the search.

In fact, although appellant did allege in her complaint that

Brown “supervised various DOC personnel,” she did not allege

that Brown supervised Jane Doe. (J.A. 72.) Although a court

on a motion to dismiss ordinarily “must accept the allegations in

the complaint as true,” it is not compelled to accept assertions in

a brief without support in the pleadings. Morrow, 719 F.3d at

165. After all, a brief is not a pleading. We therefore will

35

affirm the District Court’s grant of summary judgment on the

body cavity claim in favor of Brown.

E. Equal Protection Claims with Respect to Denial

of Potable Water, the Body Cavity Search, and

Contentions of Other Constitutional Violations.

Appellant asserts that she was denied potable water,

subjected to the body cavity search, and forced to endure the

other violations to which we have referred for discriminatory

reasons that violated the Equal Protection Clause of the

Fourteenth Amendment. But she does not assert that defendants

discriminated against her because of her race or any other

protected classification; rather, she claims that defendants

treated her inhumanely because they were retaliating against her

because of the lawsuit she filed against Somerset County

detectives who she claims used excessive force in arresting her.

Appellant’s assertions are most easily understood as being

a First Amendment retaliation claim. “Retaliating against a

prisoner for the exercise of [her] constitutional rights is

unconstitutional.” Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir.

2012). If defendants punished appellant for exercising her right

to petition the courts, they are liable for violating the First

Amendment. See id. But even though appellant raised the First

Amendment in her brief, she did not plead a First Amendment

claim in her complaint. Therefore, there is not a First

Amendment claim properly before us. See McClintock v.

Eichelberger, 169 F.3d 812, 817 (3d Cir. 1999); Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 499 (3d Cir. 1997).

Instead of pleading her claim under the First Amendment,

as we have indicated appellant asserted in her complaint that

36

defendants’ acts of retaliation violated the Equal Protection

Clause. But inasmuch as appellant did not allege that her

membership in a protected group was the motivation for

unfavorable treatment, the only claim available to her is that she

was arbitrarily singled out for this treatment as a “class of one.”

In order “to state a claim for [a] ‘class of one’ [denial of] equal

protection, a plaintiff must at a minimum allege that [s]he was

intentionally treated differently from others similarly situated by

the defendant and that there was no rational basis for such

treatment.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243

(3d Cir. 2008); see also Renchenski v. Williams, 622 F.3d 315,

337-38 (3d Cir. 2010) (analyzing such a claim in the prison

context).

The District Court dismissed appellant’s equal protection

claim solely on the ground that her disciplinary infractions

prompted her transfers to the NJSP and therefore there was a

rational basis for the transfers. (J.A. 24.) Appellant disputes

this conclusion, noting that the second transfer was not

authorized and the prison has admitted that it was made in error.

Moreover, appellant claims that a false accusation engineered

by corrections personnel led to the third transfer.

We are satisfied that the District Court mischaracterized

appellant’s equal protection claim. Though, as we held above,

appellant’s transfers did not violate the equal protection clause,

and even if there was a rational basis for transferring appellant

to the NJSP, she contends there was no rational basis for her

treatment once she arrived there. Indeed, appellant hit the

“perverse jackpot” of being assigned to the same cell without

potable water on all three occasions that she was confined in the

NJSP. Appellant alleges that the adverse treatment to which she

was subjected did not comply with official prison policies,

37

including those relating to body cavity searches, and she

contends that they rose to the level of a constitutional violation.

We find support for this allegation for, as noted above, the

cavity search was plainly not a routine security measure because

the prison personnel made such a search only during appellant’s

second confinement in the NJSP and, so far as we are aware, not

because appellant committed a disciplinary infraction or in some

way led the prison personnel to believe that she was concealing

contraband in her body. When considered in light of the fact

that appellant had filed the suit against the detectives that we

described above, her treatment may support a retaliation claim

and, if so, the search was not made for a legitimate penological

reason. Accordingly, we believe that it reasonably could be

inferred that prison personnel targeted her intentionally without

a legitimate penological basis.16 The District Court erred in

concluding otherwise and thus, on remand, appellant should be

able to proceed on her body cavity search, denial of potable

water, being forced to walk to the shower or otherwise exposed

while naked in the presence of male prison personnel and

inmates, and denial of sanitary napkins and medications claims

on an equal protection as well as an Eighth Amendment basis.

F. Appellant’s State-Law Claims

As described above, appellant asserts in her brief, though

not in her complaint, that her body cavity search violated the

criteria in N.J. Admin. Code § 10A:3-5.8, a regulation

governing inmates’ body cavity searches and requiring that

correctional personnel conduct body cavity searches at a

16

A jury might decline to draw that inference if it believed that

the prison personnel would not have been concerned with

appellant’s suit against other individuals.

38

facility’s infirmary. But in her complaint appellant made this

allegation without citation to the specific regulation that she

claims was violated. We nevertheless conclude that the

pleading is adequate to survive a motion to dismiss, and

therefore we will reverse the District Court’s Rule 12(b)(6)

dismissal of this state-law claim as to Jane Doe. We, however,

will not preclude a defendant substituted for Jane Doe from

arguing that a violation of N.J. Admin. Code § 10A:3-5.8(b)

cannot give rise to civil liability as a definitive resolution on this

issue should not be made in the absence of the actual defendant

charged with the violation.

We have not overlooked appellant’s attempt in her brief

to implicate Brown in a N.J. Admin. Code § 10A:3-5.8 violation

on the basis of a different provision than subsection 5.8(b). On

appeal, appellant asserts in her brief that Brown, as a supervisor,

violated N.J. Admin. Code § 10A:3-5.8(g), which provides:

[T]he custody staff member in charge shall

prepare a written report of the results of a body

cavity search that shall be made part of the

inmate’s record and shall include, but is not

limited to, the following information: 1. A

statement of facts indicating reasonable suspicion

for the search; 2. The name of the custody staff

member in charge who authorized the search.

But the complaint did not make an adequate allegation against

Brown under N.J. Admin. Code § 10A:3-5.8(g) even if a

violation of that provision could be actionable, as it did not

allege that Brown was Jane Doe’s supervisor or provide any

other allegations sufficient to link Brown to appellant’s manual

body cavity search. After all, even if at some times Brown

39

supervised Jane Doe, Brown surely was not on duty around the

clock, so we cannot draw an inference from the complaint that

Brown gave an instruction to Jane Doe to make the search.

Thus, the complaint did not adequately plead that Brown was

the individual who should have made a timely record of the

grounds for reasonable suspicion that the search would lead to

the discovery of contraband.

Considering all the circumstances of the case, we are

satisfied that there is no basis to hold Brown liable for any

violation of state-law regulations governing searches. Appellant

did not make sufficient allegations in her complaint that Brown

was or should have been involved in the oversight of her search,

or, in fact, was involved in the search. Though we accept the

allegation that appellant was subject to a manual body cavity

search in a cell contrary to a regulation requiring that all body

cavity searches of inmates be conducted in an institution’s

infirmary on the basis of a supervisor’s finding of reasonable

suspicion, appellant has not tied Brown to any violation of this

regulation. We accordingly will affirm the grant of summary

judgment on appellant’s state-law body cavity search claim in

favor of Brown.17

17

Appellant filed a cross-motion for summary judgment against

Lanigan, Brown, and the NJDOC and she appeals the District

Court’s denial of that motion. “Although an order denying [a]

motion for summary judgment is not ordinarily final and

appealable, it becomes appealable when accompanied by an

order granting a cross-motion for summary judgment.” Gardner

v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 n.1 (3d Cir.

2008) (citing Nazay v. Miller, 949 F.2d 1323, 1328 (3d Cir.

1991)). That scenario is the procedural posture here because

40

G. Putative Class Claims

Inasmuch as the District Court dismissed all of

appellant’s claims under Rule 12(b)(6), except to the extent that

it granted the participating defendants summary judgment which

had the same consequence as a Rule 12(b)(6) dismissal, the

Court understandably denied as moot her motion for class action

certification. But to the extent that our disposition of this appeal

includes a remand of this case to the District Court for further

proceedings on certain of appellant’s claims, we cannot say that

a motion for class action certification will continue to be moot.

In the circumstances, we will affirm the order denying

appellant’s motion for class action certification but do so

without prejudice to appellant seeking class action certification

on the remand.

VI. CONCLUSION

We will affirm the District Court’s order for summary

judgment in favor of Chiesa, Lanigan, and Brown. We will

reverse the Court’s order of dismissal of appellant’s cruel and

unusual punishment Eighth Amendment and Fourteenth

Amendment and parallel state-law claims against the unnamed

defendants with respect to the alleged denial of potable water

Lanigan and Brown obtained summary judgment and the Court

granted equivalent relief to the NJDOC. In view of those

dispositions, we have jurisdiction over appellant’s appeal from

the denial of her motion for summary judgment. It is clear that

in light of our other holdings, the Court correctly denied that

motion.

41

and sanitary napkins and related medications to appellant and

with respect to appellant being required to go to the shower or

otherwise be exposed while naked in the presence of male

prison personnel and inmates. We will reverse the order of

dismissal of appellant’s cruel and unusual punishment body

cavity search claims under the Eighth and Fourteenth

Amendments and parallel state-law constitutional claims as to

Jane Doe. We will reverse the order of dismissal of appellant’s

Fourteenth Amendment equal protection claims and parallel

state-law denial of potable water and sanitary napkins and

medications and being forced to walk or otherwise be exposed

while naked in the presence of male prison personnel and

inmates and body cavity search claims. We will reverse the

dismissal of the body cavity search claim in violation of New

Jersey regulations against unknown defendants. We will affirm

the order denying appellant’s motion for class action

certification without prejudice to its renewal on remand. We

will affirm the order denying appellant’s cross-motions for

partial summary judgment against Lanigan, Brown, and the

DOC and for sanctions against participating defendants’

counsel. We will remand the case to the District Court for

further proceedings on the claims the dismissal of which we are

reversing and, if presented, for further proceedings on a renewed

motion for class action certification. We emphasize that the

only substantive claims that may go forward on the remand are

those related to the denial of water, the body cavity search, the

denial of sanitary napkins and related medications, and the

forcing of appellant to appear naked in the presence of male

prison personnel and inmates.18

18

We have not determined whether, if appellant attempts to

proceed in this action on remand, she should be permitted to

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We express no opinion on the conclusiveness of our

findings on any newly added defendants on the remand as that

matter will be for the District Court to decide. We note that

there are two named defendants, Sheppard and Wair, other than

the participating defendants who already are in the case, but we

will not allow appellant on the remand to proceed against them

at this late date, as they have been parties since the filing of the

final amended complaint in this case and appellant has not been

prosecuting the case against them. See Fed. R. Civ. P. 15(c). In

the circumstances, we regard the case against them as

abandoned. The parties will bear their own costs on this appeal.

amend her complaint to name actual defendants because the

parties have not briefed the point. Therefore, the right to

challenge such potential amendments is preserved.

43