Donald Parkell v. Carl Danberg

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1667

_____________

DONALD D. PARKELL,

Appellant

v.

CARL DANBERG, Commissioner of Prisons, in his

individual and official capacities; WARDEN PERRY

PHELPS, in his individual and official capacities; DEPUTY

WARDEN DAVID PIERCE, in his individual and official

capacities; MAYOR MICHAEL COSTELLO, in his

individual and official capacities; CAPTAIN M. RISPOLI, in

his official and individual capacities; LIEUTENANT JOHN

DOE, in his individual capacity; BRIAN KUHNER, in his

individual capacity; MS. WEST, in her individual capacity;

MAINTENENCE SUPERVISOR JOHN DOE, in his official

and individual capacities; CORRECTIONAL MEDICAL

SERVICES; BETTY BRYANT, in her individual capacity;

DR. BAEDER, in his individual capacity; DEPUTY

WARDEN CHRISTOPHER KLEIN, in his individual and

official capacities; CAPTAIN JOHN DOE, in his official and

individual capacities; CHRIS DAMRON, in her individual

capacity; CORRECT CARE SERVICE LLC; MENTAL

HEALTH MANAGEMENT; ALLEN HARRIS; JOHN DOE,

Medical Director for C.M.S.; JOHN DOE, Medical Director

for C.C.S.

______________

On Appeal from the United States District Court for the

District of Delaware

(D.C. Civil No. 10-cv-00412)

District Judge: Hon. Sue L. Robinson

______________

Argued January 20, 2016

Before: FISHER, CHAGARES, and COWEN, Circuit

Judges

(Filed: August 17, 2016)

Suzanne M. Bradley (Argued)

Brendan M. Walsh (Argued)

Pashman Stein

21 Main Street

Court Plaza South, Suite 200

Hackensack, NJ 07601

Attorneys for Appellant

Joseph C. Handlon

Devera B. Scott (Argued)

Office of Attorney General of Delaware

820 North French Street, 6th Floor

Wilmington, DE 19801

Attorneys for Appellees Danberg, Phelps, Pierce,

Costello, Rispoli, and Klein

Chad J. Toms (Argued)

Whiteford, Taylor & Preston

405 North King Street

The Renaissance Centre, Suite 500

Wilmington, DE 19801

Attorney for Appellees Correctional Medical Services,

Bryant, and Damron

Daniel A. Griffith (Argued)

Scott G. Wilcox

Whiteford, Taylor & Preston

405 North King Street

The Renaissance Centre, Suite 500

Wilmington, DE 19801

Attorneys for Appellee Correct Care Service LLC

_______________

OPINION

_______________

2

CHAGARES, Circuit Judge.

Plaintiff Donald Parkell is a Delaware state prisoner

who claims that state officials deprived him of his rights

under the Fourth, Eighth, and Fourteenth Amendments by

subjecting him to unreasonable thrice-daily visual body-

cavity searches and harsh conditions and by depriving him of

adequate medical care. He seeks damages and injunctive

relief under 42 U.S.C. § 1983. The United States District

Court for the District of Delaware granted summary judgment

to the defendants, and Parkell timely appealed. For the

reasons that follow, we will affirm in part and reverse in part.

We will reverse only as to Parkell’s claim under the Fourth

Amendment for prospective injunctive relief. 1

I. 2

Parkell was an inmate at James T. Vaughn

Correctional Center (“VCC”) in Smyrna, Delaware, during

the relevant time period, which began on January 1, 2009,

when Parkell slipped and fell at VCC and was injured. He

was transported to Kent General Hospital in Dover,

Delaware, and examined. His chest, spine, head, and right

hand and wrist were x-rayed with normal results, except for

loss of normal lumbar lordosis possibly due to muscular

strain. He was then discharged to the prison infirmary, where

he was housed for approximately a week. Parkell was placed

under 24-hour supervision and prescribed pain medication

and exercises. He received this treatment through a small slot

1

Parkell’s attorneys are appearing pro bono. We

express our gratitude to those attorneys for accepting this

matter pro bono and for the quality of their representation of

their client. Lawyers who act pro bono fulfill the highest

service that members of the bar can offer to indigent parties

and to the legal profession.

2

Much of Parkell’s version of events is supported

solely by his own statements in verified complaints and other

court filings. Because those documents were signed under

penalty of perjury in accordance with 28 U.S.C. § 1746, we

consider them as equivalent to statements in an affidavit. See

United States v. 225 Cartons, More or Less of an Article or

Drug, 871 F.2d 409, 414 n.4 (3d Cir. 1989).

3

in the cell door, approximately three feet off the ground, and

was told that medical staff were not permitted to enter his cell

because of his high-security status as a resident of the

Secured Housing Unit (“SHU”). He complained of intense

pain, but medical staff refused to treat his elbow because his

chart did not mention an elbow injury. Staff refused to give

him ice for his injury, again citing his high-security status.

His room was unheated, and he complained. But prison

officials told him that he would not be moved and had to

endure the cold because of his SHU status; they did not

provide any extra linens or clothing.

After his week in the infirmary, Parkell was returned

to the SHU. He submitted a request for “sick call” for his

elbow, which was swollen, discolored, and painful. On or

about January 12, he was brought to Betty Bryant, a nurse

employed at VCC. According to Parkell, Bryant never truly

examined the elbow and “would not allow [Parkell] to talk

while in her presence” or to “describe his injury and

symptoms.” Appendix (“App.”) 96, 178. She characterized

his condition as mere “edema” (i.e., swelling) even though it

was a “massive infection,” and accused Parkell of “run[ning]

game” to get Vicodin, adding that she would not bother the

doctor because he would not “fall for it” either. Id. She said

that she would order an x-ray herself and that if Parkell

needed aspirin he could buy it from the commissary. She

then told officers to “get him out of here.” App. 96. Bryant,

on the other hand, claims in her affidavit that she examined

his elbow, saw no sign of infection, advised him to avoid

sleeping on his arm, and ordered follow-up x-rays. She

argues that that is corroborated by a January 12, 2009

physician order implementing her own x-ray order, along

with the x-ray reports, dated January 16, showing normal

results. Parkell’s elbow got worse “[o]ver the next few days,”

and the wound ultimately opened and “squirted” pus. App.

96. A doctor arrived to perform emergency surgery and

prescribe antibiotics and pain medication. Testing revealed

that Parkell had had a staph infection. When Parkell later

complained about tingling and numbness, a doctor performed

nerve testing and told Parkell that there might be “branching

damage.” App. 97.

4

Several months later, on November 4, 2009, Parkell

was moved to an isolation cell in a unit known as “C-

Building” because of disciplinary misconduct, where he

remained for twelve days. Parkell, like other inmates in

isolation in C-Building, was locked in a stripped-down cell,

was given only a t-shirt, boxer briefs, and socks to wear, was

not permitted to keep rags, towels, or rolls of toilet paper in

his cell, and was provided with soap and other hygienic items

only during thrice-weekly showers. Parkell was also denied

exercise, never permitted to leave the cell except during the

five-minute thrice-weekly showers, and required to eat meals

in his cell without any opportunity to wash his hands first.

Three times per day officers “strip searche[d]” him, visually

inspecting his anus and genitals while he “was forced to squat

naked and cough loudly.” App. 99. Parkell attests that he

had “no contact with any other human beings” while in

isolation, though he says that “[n]urses would arrive daily to

pass out medication.” App. 98-99. When nurses arrived to

pass out medication, Parkell showed them the infection, but

they said it was against policy for medical staff to visit

inmates in isolation. His elbow again deteriorated and

released pus.

There is some question as to precisely how long it took

for Parkell to receive treatment for his elbow injury while in

C-Building. Parkell’s account provides little detail. He

claims that his elbow was not evaluated until “[a] few days”

into his isolation period, when a mental health worker who

visited him finally advocated for him. App. 98, 180. He was

then taken to the infirmary and given antibiotics and pain

medication, and nurses were ordered to clean the wound. But

“Interdisciplinary Progress Notes” dated November 5, 2009

(Parkell’s second day in C-Building), which appear to be

prepared by a nurse (although it is unclear who prepared

them), note the swollen elbow and pus drainage and suggest

that the nurse took a culture, cleaned and dressed the wound,

and called the on-call doctor, who ordered medication. App.

959-60. Records of physician orders suggest that the

medication was to begin on November 5, 2009, although the

order was not actually signed by the doctor until November

10. Further progress notes dated November 9 note that

Parkell was “referred . . . to a provider” on November 6 but

“[w]as never seen” and that “[t]he lab report[ed] never

5

receiving specimen.” App. 962. The preparer of those notes

describes cleaning and dressing the wound, “reculturing” it,

and “refer[ring] to provider again — tomorrow.” Id. The

report of the culture result lists the collection date as

November 9. Records suggest that further treatment was

ordered on November 10 and Parkell’s elbow was x-rayed on

November 13. Parkell agrees that his elbow was operated on

a second time on December 4, 2009.

The final series of events concerns Parkell’s physical

therapy for his elbow, which was ordered (presumably by his

treating doctor, but the complaint is unclear) to begin in

August 2009. By March 2010, Parkell had received only

three physical therapy sessions. His therapist informed him

that he had ligament damage, most likely requiring an MRI,

and that the long delay between his injury and the start of

therapy had caused him to heal incorrectly. He was taken for

an MRI around June 1, 2010, and then referred to an

orthopedic specialist who recommended surgery. Two

months later, there had been no “progression in treatment,” so

Parkell filed a grievance. App. 196. He was initially told in

response to the grievance that there was no record of the

surgery recommendation, but the recommendation was later

uncovered. The surgery was performed on March 9, 2011.

He then spent two weeks in the infirmary, where he was

denied any time outside his cell, even to shower, and required

to receive medication and therapy through the small slot in

the door, which caused Parkell pain.

On March 21, 2011, his orthopedic surgeon, Dr.

DuShuttle, prescribed four Vicodin per day for pain, but upon

his return to VCC, Parkell was given only two per day. One

day Parkell received only one pill, and on two occasions he

received no pills for the day; he was told that there was a

supply shortage. During a follow-up visit on April 13, 2011,

Dr. DuShuttle ordered more pain medication and physical

therapy three times per week. But Parkell received therapy

only once per week, and even then only about two-thirds of

the weeks.

Proceeding pro se, Parkell filed a lawsuit against

Correctional Medical Services, Inc. (“CMS”) and Correct

Care Services, LLC (“CCS”), which were contractors

6

providing medical care to the Delaware Department of

Correction (“DOC”); 3 Nurse Bryant in her individual

capacity; Chris Damron (another nurse employed by CMS at

VCC) in her individual capacity — these four will be referred

to collectively as the “Medical Defendants” — DOC

Commissioner Carl Danberg in his individual and official

capacities; Warden Perry Phelps in his individual and official

capacities; Deputy Warden David Pierce (a supervisor of

security matters) in his individual and official capacities;

Deputy Warden Christopher Klein (a supervisor of medical

issues) in his individual and official capacities; Captain M.

Rispoli (a shift commander) in his individual and official

capacities; and Major Michael Costello (a supervisor of

security matters) in his individual and official capacities —

these defendants will be referred to collectively as the “State

Defendants.” 4

Parkell alleged that his Eighth Amendment rights were

violated because he was provided inadequate healthcare and

subjected to cruel conditions of confinement. Commissioner

Danberg was accused of renewing CMS’s contract with the

DOC despite knowing of the inadequate care being provided,

signing a contract with CCS without doing due diligence, and

implementing policies and practices that denied adequate

care. The remaining DOC officials (Phelps, Pieces, Klein,

Rispoli, and Costello), as well as CMS and CCS, were

accused of implementing policies or practices that deprived

Parkell of adequate healthcare and exposed him to cruel

conditions. Bryant allegedly violated Parkell’s Eighth

Amendment rights by refusing to examine his infected arm

and provide needed treatment, and Damron allegedly violated

his rights by maliciously twisting and yanking his arm

through a door slot, causing immense pain and exacerbating

his injury.

3

CMS provided medical services to the DOC from

July 1, 2005, through June 30, 2010, at which point CCS

replaced CMS.

4

The complaints named additional defendants who

were dismissed by the District Court before the summary

judgment ruling, but those dismissals are not being appealed.

7

Parkell also alleged that Danberg, Phelps, Pierce,

Costello, Rispoli, Klein, CMS, and CCS violated his due

process rights under the Fourteenth Amendment by refusing

to treat him and subjecting him to conditions significantly

worse than other inmates with similar circumstances had to

endure.

The District Court granted summary judgment to the

defendants on all claims, concluding that: (1) Parkell could

not pursue damages from DOC officials in their official

capacities because of the Eleventh Amendment, and any

claim for prospective relief was rendered moot when Parkell

was moved to a different correctional facility; (2) his medical-

needs Eighth Amendment claim failed because any

deficiencies in his medical care did not rise to the level of

deliberate indifference to his needs; (3) his conditions-of-

confinement Eighth Amendment claim failed because the

conditions did not constitute a denial of basic human needs,

and the defendants were not personally involved in creating

the conditions; and (4) his due process clam failed because

the conditions of his confinement did not constitute atypical

and significant hardship in comparison to general prison

conditions. Parkell timely appealed.

II.

The District Court exercised jurisdiction under 28

U.S.C. § 1331. We have appellate jurisdiction under 28

U.S.C. § 1291.

We apply a plenary standard of review to a district

court order granting summary judgment. Willis v. UPMC

Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir.

2015). “Summary judgment is appropriate when ‘the movant

shows that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter

of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). An issue of fact

is material and genuine if it “affects the outcome of the suit

under the governing law and could lead a reasonable jury to

return a verdict in favor of the nonmoving party.” Id.

(quotation and alteration marks omitted). The party seeking

summary judgment “has the burden of demonstrating that the

evidentiary record presents no genuine issue of material fact.”

8

Id. In order to avoid summary judgment, “the nonmoving

party must identify facts in the record that would enable them

to make a sufficient showing on essential elements of their

case for which they have the burden of proof.” Id.

“Reviewing the record as a whole, we will draw all

reasonable inferences in favor of the non-moving party and

will not weigh the evidence or make credibility

determinations.” Armour v. Cty. of Beaver, PA, 271 F.3d

417, 420 (3d Cir. 2001) (quotation marks omitted).

III.

On appeal, with the aid of pro bono counsel, Parkell

has clarified and narrowed his claims somewhat. He argues

that: (1) the State Defendants violated his Fourth

Amendment and procedural due process rights by subjecting

him to thrice-daily visual body-cavity searches while he was

in isolation in C-Building; (2) his demand for prospective

injunctive relief is not moot because he has returned to VCC;

(3) the State Defendants violated his Eighth Amendment

rights by subjecting him to harsh conditions in both C-

Building and the infirmary; (4) Nurse Bryant violated his

Eighth Amendment rights through her deliberate indifference

to his serious elbow injury; 5 (5) CMS and CCS violated his

Eighth Amendment rights by turning a blind eye to practices

that deprived him of the full amount of pain medication and

physical therapy that had been prescribed; and (6) the District

Court abused its discretion in declining to appoint pro bono

counsel.

As set forth in detail below, we conclude that all of

Parkell’s claims lack sufficient evidence to submit to a fact-

finder, except for his claim that the thrice-daily visual body-

cavity searches in C-Building were unreasonable and violated

the Fourth Amendment, for which Parkell could potentially

receive prospective injunctive relief. We will therefore

reverse summary judgment as to Parkell’s claim against the

State Defendants for prospective injunctive relief under the

Fourth Amendment and remand it to the District Court for

5

Although Nurse Damron is also named in the appeal,

Parkell makes no argument as to why the District Court erred

in granting summary judgment in favor of Damron.

9

further proceedings consistent with this opinion. In all other

respects, we will affirm the District Court’s grant of summary

judgment in favor of the defendants.

A.

Parkell’s claim under the Fourth Amendment pertains

to the thrice-daily visual body-cavity searches conducted in

C-Building. 6 We agree with Parkell that the State Defendants

were not entitled to summary judgment on the question of

whether the searches violated the Fourth Amendment. The

record before us could support a finding in Parkell’s favor on

that issue. The same record could not, however, support a

finding that any of the State Defendants were personally

involved in the Fourth Amendment violation and liable for

money damages. As to injunctive relief to prevent future

Fourth Amendment violations, we are unable to determine

from the record whether the issue is still live and justiciable;

that question must be answered by the District Court on

remand.

1.

a.

As an initial matter, we must address the applicability

of the Fourth Amendment to Parkell’s claim. Following the

6

The Fourteenth Amendment extends Fourth

Amendment protections to searches and seizures by state

officials. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist.,

422 F.3d 141, 147 (3d Cir. 2005).

Parkell’s Fourth Amendment claim was not clearly

pled or argued while he was pro se. Although courts liberally

construe pro se pleadings, unrepresented litigants are not

relieved from the rules of procedure and the requirements of

substantive law. McNeil v. United States, 508 U.S. 106, 113

(1993); Faretta v. California, 422 U.S. 806, 834 n.46 (1975).

Pro bono counsel now representing Parkell have focused his

Fourth Amendment claim considerably, noting this legal

precept. The State Defendants have raised no objection to our

consideration of this refocused claim, and, accordingly, we

will consider counsel’s Fourth Amendment arguments as well

as the State Defendants’ opposition to those arguments.

10

approach taken by the Supreme Court in Bell v. Wolfish, 441

U.S. 520, 558 (1979), we have previously assumed that the

Fourth Amendment applies to strip searches of inmates

without so holding. See Florence v. Bd. of Chosen

Freeholders of Cty. of Burlington, 621 F.3d 296, 306 (3d Cir.

2010) (“Florence I”), aff’d, 132 S. Ct. 1510 (2012). 7 In Bell,

the Court analyzed a Fourth Amendment claim under the

“assum[ption] for present purposes that inmates, both

convicted prisoners and pretrial detainees, retain some Fourth

Amendment rights upon commitment to a corrections

facility.” Bell, 441 U.S. at 545, 558 (emphasis added).

The Court subsequently held in Hudson v. Palmer, 468

U.S. 517 (1984), that “the Fourth Amendment proscription

against unreasonable searches does not apply within the

confines of the prison cell.” Id. at 526. But we do not read

Hudson to foreclose a Fourth Amendment claim arising from

an unreasonable search of an inmate’s body. Hudson

involved a “shakedown” search of a prisoner’s locker and

cell, during which his property was destroyed, and the Court

considered whether “[t]he recognition of privacy rights for

prisoners in their individual cells” could “be reconciled with

the concept of incarceration and the needs and objectives of

penal institutions.” Id. (emphasis added); see also id. at 538

(O’Connor, J., concurring) (“The fact of arrest and

incarceration abates all legitimate Fourth Amendment privacy

and possessory interests in personal effects, and therefore all

searches and seizures of the contents of an inmate’s cell are

reasonable.” (citations omitted)). The “shakedown” searches

at issue in Hudson were categorically different from the

bodily searches described by Parkell. Despite some of the

broad language in the opinion, Hudson does not directly

address the issue before us.

7

Although Florence I involved strip searches of

pretrial detainees, we noted that “[t]he Bell analysis applies

equally to all individuals [properly assigned to the facility’s

general population] — whether they be convicted inmates,

indicted pretrial detainees, contemnors, material witnesses, or

arrestees awaiting preliminary hearings before a magistrate.”

621 F.3d at 308 n.7.

11

The Court’s opinion in Hudson does, however, provide

the framework for our analysis. “The applicability of the

Fourth Amendment turns on whether the person invoking its

protection can claim a justifiable, a reasonable, or a legitimate

expectation of privacy that has been invaded by government

action.” Id. at 525 (quotation marks omitted). In other

words, we must decide whether an inmate’s expectation of

bodily privacy “is the kind of expectation that society is

prepared to recognize as reasonable.” Id. (same). We hold

that it is and that the Fourth Amendment therefore grants

inmates a limited right of bodily privacy, subject to

reasonable intrusions necessitated by the prison setting.

We conclude that a right to privacy in one’s own body,

unlike a right to maintain private spaces for possessions, is

not fundamentally inconsistent with imprisonment and is so

fundamental that society would recognize it as reasonable

even in the prison context. Our conclusion “necessarily

entails a balancing of interests.” Id. at 527. Like the Court in

Hudson, we recognize that “[t]he curtailment of certain rights

is necessary, as a practical matter, to accommodate a myriad

of institutional needs and objectives of prison facilities, chief

among which is internal security,” but also that prisoners

must be “accorded those rights not fundamentally inconsistent

with imprisonment itself or incompatible with the objectives

of incarceration.” Id. at 523, 524 (quotation marks and

citation omitted).

We also note that most of our sister Courts of Appeals

have concluded that the Fourth Amendment has some

applicability to bodily searches in prison. 8 And,

8

See, e.g., Sanchez v. Pereira-Castillo, 590 F.3d 31, 42

n.5 (1st Cir. 2009) (listing cases) (“Although the Supreme

Court in Hudson ‘foreclosed any [F]ourth [A]mendment

challenge to the search of a prison cell,’ this court, like those

in most other circuits, ‘has recognized a qualitative difference

between property searches and searches of a prisoner’s

person.’”) (quoting Dunn v. White, 880 F.2d 1188, 1191

(10th Cir. 1989)); Stoudemire v. Mich. Dep’t of Corr., 705

F.3d 560, 572 n.2 (6th Cir. 2013); Bull v. City & Cty. of S.F.,

595 F.3d 964, 974-75 (9th Cir. 2010) (en banc); Levine v.

Roebuck, 550 F.3d 684, 687 (8th Cir. 2008); Boxer X v.

12

notwithstanding Hudson, the Supreme Court has recently

applied the Fourth Amendment reasonableness framework

from Bell in upholding the constitutionality of strip searches

of pretrial detainees. Florence v. Bd. of Chosen Freeholders

of Cty. of Burlington, 132 S. Ct. 1510, 1516 (2012)

(“Florence II”).

b.

Our conclusion that the Fourth Amendment applies to

bodily searches in prison does not, however, speak to the

contours of prisoners’ Fourth Amendment rights. They are

very narrow. The application of the Fourth Amendment once

again requires us to balance interests. “The test of

reasonableness under the Fourth Amendment . . . requires a

balancing of the need for the particular search against the

invasion of personal rights that the search entails.” Bell, 441

U.S. at 559. “Courts must consider the scope of the particular

intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is

conducted.” Id. Inmate search policies are constitutional if

they “str[ike] a reasonable balance between inmate privacy

and the needs of the institutions.” Florence II, 132 S. Ct. at

1523.

In balancing those interests in the prison context, we

must give considerable weight to the “place in which [the

search] is conducted” — prisons being “places of involuntary

confinement of persons who have a demonstrated proclivity

for antisocial criminal, and often violent, conduct,” Hudson,

468 U.S. at 526 — and considerable deference to “the

justification for initiating it.” Bell, 441 U.S. at 559.

“[C]orrectional officials must be permitted to devise

reasonable search policies to detect and deter the possession

of contraband in their facilities.” Florence II, 132 S. Ct. at

1517. A regulation “impinging on an inmate’s constitutional

rights must be upheld if it is reasonably related to legitimate

penological interests.” Id. at 1515 (quotation marks omitted).

We recognize that “[t]he task of determining whether a policy

Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Nicholas v.

Goord, 430 F.3d 652, 658 (2d Cir. 2005); Elliott v. Lynn, 38

F.3d 188, 191 n.3 (5th Cir. 1994).

13

is reasonably related to legitimate security interests is

peculiarly within the province and professional expertise of

corrections officials.” Id. at 1517 (quotation marks omitted).

Unless there is “substantial evidence in the record to indicate

that the officials have exaggerated their response to these

considerations courts should ordinarily defer to their expert

judgment in such matters.” Id. (quotation marks omitted).

In Bell, the Supreme Court upheld a program under

which inmates were “required to expose their body cavities

for visual inspection as a part of a strip search conducted after

every contact visit with a person from outside the institution.”

441 U.S. at 558. After “[b]alancing the significant and

legitimate security interests of the institution against the

privacy interests of the inmates,” the Court concluded that

“visual body-cavity inspections . . . [could] be conducted on

less than probable cause.” Id. at 560. Specifically, the Court

cited possible “[s]muggling of money, drugs, weapons, and

other contraband . . . by concealing them in body cavities.”

Id. at 559.

But Bell does not categorically uphold all bodily

searches in prisons. The facts of our case differ materially

from those of Bell. In Bell, the searches occurred after

visitation sessions involving in-person contact with outsiders.

In our case, the searches occur thrice daily, regardless of how

much contact, if any, an isolated inmate has had with other

people. We therefore must conduct our own balancing of the

interests in this case, taking into account “the scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is

conducted.” Id. at 559.

The “particular intrusion” at issue here is a

requirement that three times every day inmates remove their

clothing and submit their anal and genital regions to visual

inspection while they squat and cough, whether or not they

have had any contact with others. The State Defendants do

not dispute that this is the policy in C-Building. The parties

use the term “strip search” — as do many courts — but “strip

search,” although an “umbrella term” in some contexts,

“generally refers to an inspection of a naked individual,

without any scrutiny of the subject’s body cavities,” whereas

14

“[a] ‘visual body cavity search’ extends to visual inspection

of the anal and genital areas” and “[a] ‘manual body cavity

search’ includes some degree of touching or probing of body

cavities.” Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir.

1985). Our analysis concerns only the specific type of “strip”

search at issue in this case — that is, visual body-cavity

searches, like those in Bell — and not other more intrusive or

less intrusive types of bodily searches, which entail a

different balancing of interests.

Turning to the balancing of interests, we do not

understand the State Defendants to be disputing that the

searches are a significant intrusion into bodily privacy. The

Court in Bell expressed no doubt that visual body-cavity

searches constituted a significant intrusion. 441 U.S. at 558,

560 (“Admittedly, this practice instinctively gives us the most

pause. . . . We do not underestimate the degree to which

these searches may invade the personal privacy of inmates.”).

And we have recognized that even strip searches “less

intrusive than . . . visual body-cavity searches” are an

“extreme intrusion on privacy.” Florence I, 621 F.3d at 307.

Regarding the countervailing security interests, we

again emphasize that our review is deferential and that the

State Defendants’ burden is light, for the reasons already

given. Nonetheless, on the record before us, we conclude that

the particular search policy enforced in C-Building is not

reasonably related to VCC’s legitimate interests in detecting

and deterring contraband, particularly given the significant

intrusiveness of the thrice-daily visual body-cavity searches.

The State Defendants are unable to articulate a single

plausible theory as to how inmates in isolation in C-Building

would have thrice-daily opportunities to smuggle in

contraband from outside their cells or use unsupervised time

in their locked cells to transform a harmless object into

something dangerous. And we cannot imagine a plausible

scenario ourselves. It is undisputed that inmates in isolation

in C-Building live in stripped-down cells in which they wear

only t-shirts, boxer briefs, and socks, are not permitted to

keep rags, towels, or rolls of toilet paper, and are provided

with soap and other hygienic items only during their thrice-

weekly showers. And according to Parkell’s version of

15

events, the credibility of which we do not doubt in the context

of summary judgment, he left his isolation cell only three

times per week for brief showers and had no human contact

while in isolation, except for daily visits from nurses for the

limited purpose of dispensing medication (along with, of

course, the thrice-daily visual body-cavity searches

themselves). He therefore had few, if any, opportunities to

obtain contraband — and certainly not three opportunities per

day — which distinguishes this case from the searches in Bell

that took place after visitations involving in-person contact.

Parkell’s daily visits from nurses and thrice-weekly

visits to the showers cannot justify the quantity of searches.

It may well be reasonable for VCC to conduct visual body-

cavity searches of C-Building inmates after each such visit. 9

But at most, that would justify ten searches per week, not

twenty-one. And although the State Defendants have

suggested that Parkell’s contact with medical personnel while

in isolation was more extensive, they conceded at oral

argument that the record does not evidence thrice-daily

interactions. In any event, in the context of summary

judgment, we construe the record in Parkell’s favor, crediting

the portions that describe only once-daily visits from nurses

dispensing medication.

The fact that Parkell, like others in C-Building, was

being punished for disciplinary violations does not alter our

conclusion. Arguably, it does magnify the State Defendants’

security interest, insofar as inmates who have already broken

prison rules may be more likely to seek and utilize dangerous

contraband. But the reasonable relationship to the search

policy is still missing. When dangerous inmates are

completely isolated in C-Building, it is the isolation that

prevents the smuggling of contraband. Thrice-daily bodily

searches have little, if any, value in that context unless the

period of complete isolation has somehow been interrupted.

9

The record is unclear as to whether those visits

actually presented any opportunity for contraband to be

smuggled. Indeed, Parkell describes his interactions with

nurses as taking place through the narrow pass-through slot in

his cell door, under the supervision of prison officials.

16

We emphasize the narrowness of our holding. We do

not underestimate inmates’ potential zeal and creativity for

finding ways to smuggle or create dangerous contraband if

given any opportunity to do so. In Bell, the probability that

an inmate would obtain contraband during a visitation was

low but still sufficient to justify the search policy. But here,

the probability is vanishingly small that an inmate locked in a

stripped-down isolation cell in C-Building, once searched,

could then obtain contraband during a subsequent eight-hour

period involving no human contact. As such, the intrusive

thrice-daily searches are not a reasonable means of advancing

VCC’s legitimate interest in detecting and deterring

contraband.

We do not mean to suggest that VCC must point to a

history of C-Building inmates who successfully smuggled

contraband into their isolation cells. As in Bell, the lack of

history may be “a testament to the effectiveness of this search

technique as a deterrent.” Bell, 441 U.S. at 559. It is the

virtual impossibility of smuggling contraband into C-

Building, rather than the absence of a history of smuggling,

that is relevant here. Deterrence is a legitimate concern but a

far less weighty concern when the conduct to be deterred is

already virtually impossible.

Nor does our holding concern individualized

suspicion. Individualized suspicion that a C-Building inmate

had somehow obtained contraband would, of course, still

justify a search of that particular inmate. This case concerns

the implementation of general, routine search policies, for

which individualized suspicion is not required. As we have

previously noted, “Bell did not require individualized

suspicion for each inmate searched; it assessed the facial

constitutionality of the policy as a whole, as applied to all

inmates.” Florence I, 621 F.3d at 308. “The absence of an

individualized suspicion requirement in Bell is consistent

with the Fourth Amendment doctrine of special needs

searches.” Id. at 308 n.8; see also Skinner v. Ry. Labor

Execs.’ Ass’n, 489 U.S. 602, 619-20 (1989) (categorizing

Bell as a “special needs” search case); Hudson, 468 U.S. at

538 (O’Connor, J., concurring) (noting that in certain

contexts, such as the one considered in Bell, “the Court has

rejected the case-by-case approach to the ‘reasonableness’

17

inquiry in favor of an approach that determines the

reasonableness of contested practices in a categorical

fashion”). “Under the ‘special needs’ analysis, the

government need not show probable cause or even

individualized suspicion for its search” and instead “must

prove that its search meets a general test of ‘reasonableness.’”

Wilcher v. City of Wilmington, 139 F.3d 366, 373-74 (3d Cir.

1998).

Routine, suspicionless inmate search policies may

sweep quite broadly and still be reasonable. In Florence II,

the Supreme Court declined to require jails to adopt a policy

of exempting new detainees “who ha[d] not been arrested for

a serious crime or for any offense involving a weapon or

drugs” from the blanket strip searches conducted before

detainees were committed to the general population. Florence

II, 132 S. Ct. at 1520. The Court held that it was reasonable

for jails to conclude that such an exemption was

“unworkable” because “the seriousness of an offense is a poor

predictor of who has contraband” and “it would be difficult in

practice to determine whether individual detainees fall within

the proposed exemption.” Id. The Court in Florence II

recognized that narrowly targeted search policies are

generally not required in prisons and jails because they tend

to be incompatible with the setting. They are often difficult,

if not impossible, to implement without an unacceptable risk

of false negatives (instances in which dangerous contraband

is missed because an inmate is incorrectly classified as low-

risk and subjected to less thorough searches). Thus, it is

usually reasonable for prisons to favor more broadly drawn

search policies.

But VCC’s search policy sweeps too broadly with

insufficient justification. VCC’s security interests are not

reasonably advanced by a blanket policy of frequently and

intrusively searching inmates who have previously been

thoroughly searched and held in a stripped-down isolation

cell without human contact ever since. 10 Unlike the search

10

In similar cases, our sister Courts of Appeals have

allowed inmates to pursue Fourth Amendment claims after

being subjected to bodily searches when they had had no

opportunity to obtain contraband. See Turkmen v. Hasty, 789

18

policy in Florence II, VCC’s search policy in C-Building is

not a blanket policy that has been reasonably selected over a

more targeted policy that would be unworkable. In Florence

F.3d 218, 261 n.44 (2d Cir. 2015) (“[C]onsistent with

Hodges, Plaintiffs have plausibly alleged that they were strip

searched when there was no opportunity to acquire

contraband, including in instances where they were shackled

and under escort, or were never permitted to leave their

cells.”); Franklin v. Lockhart, 769 F.2d 509, 510-11 (8th Cir.

1985) (“[T]he evidence shows that Franklin was strip

searched twice a day while he was confined to his cell with

access to only staff-issued meals and tissue. We cannot say

that defendants’ mere declaration that these searches occurred

‘according to policy’ to maintain security and prevent the

flow of contraband clearly establishes defendants’ right to

judgment on this claim. Though defendants’ objectives may

indeed have been legitimate, . . . [t]he search must be

reasonable in its scope and its manner of execution.”);

Hodges v. Stanley, 712 F.2d 34, 35-36 (2d Cir. 1983) (“The

second search took place shortly after the first, and Hodges

had been under continuous escort. Under these circumstances

it seems clear that there was no possibility that Hodges could

have obtained and concealed contraband. Thus the second

search appears to have been unnecessary. We therefore

cannot say that Hodges has failed to state a constitutional

claim.”); Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir. 1980)

(“Guards handcuff the inmates before they leave the Control

Unit and escort them to the visitation area. The inmates are

separated from the visitors by plexiglass, and guards observe

these visits. We do not believe that the rationale announced

in Bell v. Wolfish, supra, justifies these strip searches. Thus,

the Supreme Court in Wolfish relied on the possibility of

contraband being brought into the prison during contact visits

to justify the use of strip searches. Those contact visits were

not closely supervised by guards. Wolfish should not be

extended to the facts of this case without a showing that there

is some risk that contraband will be smuggled into Marion

during non-contact, supervised visits, or that some other risk

within the prison will be presented. Since defendants do not

discuss the searches in their brief, we are not in a position to

dispose of the issue and, therefore, the district court should

consider it on remand.”).

19

II, it was plausible that any new detainee might be carrying

contraband from the outside world into the institution, and

distinguishing between high-risk detainees and low-risk

detainees would have been costly and error-prone. 11 But in

our case, the only generalized risk that C-Building inmates

will obtain contraband arises from their limited contact with

the world outside their stripped-down cells. Tying routine

visual body-cavity searches to instances of outside contact,

rather than an unyielding thrice-daily schedule, would seem

to be a simple and categorical policy to implement, especially

given that prison officials have the ability to closely regulate

isolated inmates’ limited contact with the world outside their

cells; the State Defendants have given us no reason to

conclude otherwise. And, of course, those officials are free to

search C-Building inmates individually suspected of

possessing contraband.

Thus, construing the record in Parkell’s favor, we

conclude that the search policy in its present form is an

“exaggerated . . . response to [security] considerations” and

thus violates the Fourth Amendment. Florence II, 132 S. Ct.

at 1517. The State Defendants were therefore not entitled to

summary judgment on Parkell’s Fourth Amendment claim.

2.

Having determined that Parkell presents a triable

Fourth Amendment claim, we next consider whether Parkell

may pursue money damages from the State Defendants, who

did not themselves conduct the visual body-cavity searches

but may have had supervisory involvement. A plaintiff

“cannot predicate liability on her § 1983 claims on a

respondeat superior basis.” Chavarriaga v. N.J. Dep’t of

Corr., 806 F.3d 210, 227 (3d Cir. 2015). We have recognized

that “there are two theories of supervisory liability, one under

which supervisors can be liable if they established and

maintained a policy, practice or custom which directly caused

the constitutional harm, and another under which they can be

11

In their concurring opinions in Florence II, Chief

Justice Roberts and Justice Alito (members of the five-person

majority) both emphasized the narrowness of the Court’s

holding. See 132 S. Ct. at 1523-25.

20

liable if they participated in violating plaintiff’s rights,

directed others to violate them, or, as the persons in charge,

had knowledge of and acquiesced in their subordinates’

violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129

n.5 (3d Cir. 2010) (quotation and alteration marks omitted).

Parkell argues that both theories apply here but has not

supported his argument with evidence. Although it is

certainly plausible that some of the named defendants had

supervisory involvement in the searches, Parkell has not come

forward with enough evidence for a reasonable fact-finder to

conclude that they did.

As to Commissioner Danberg, Parkell points only to

Danberg’s generalized admission that he “is familiar with the

policies of the Department of Correction” and “approved the

DOC policies.” App. 775. “[T]o 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.” Chavarriaga,

806 F.3d at 223. The problem with Parkell’s attempt to hold

Danberg liable is that he has not pointed to any evidence of

where the search policy, practice, or custom came from.

Danberg does not acknowledge any involvement in

establishing or enforcing any specific policies (much less

specific search policies in C-Building or at VCC), or even any

awareness that the searches were occurring. And although

the defendants concede that inmates in isolation were

routinely subjected to thrice-daily visual body-cavity

searches, it is unclear whether this was in accordance with

official DOC policy endorsed by Danberg, a policy limited to

VCC, or even just an informal practice or custom. To

presume that the search practices arose from Danberg’s

policies merely because of his position as commissioner is to

rely on respondeat superior.

Likewise, there is no evidence linking Warden Phelps

to the establishment of the search policy, practice, or custom

in C-Building. Unlike Danberg, however, Phelps has

admitted knowledge that C-Building inmates were strip

searched three times per day. If Phelps knew about the search

practices in C-Building and had authority to change them but

chose not to, that might constitute supervisory involvement in

violating Parkell’s rights. Santiago, 629 F.3d at 129 n.5

21

(supervisors liable if, “as the persons in charge, [they] had

knowledge of and acquiesced in their subordinates’

violations”). But there is no evidence that Phelps had such

authority. Parkell has merely asserted in a brief that “Phelps,

as Warden, w[as] responsible for ensuring . . . compli[ance]

with the acknowledged strip search policy,” without pointing

us to any facts or legal authorities to support the assertion.

Reply Br. 21. We have no evidence addressing whether C-

Building had dominion over its own search practices,

followed orders from the warden on the matter, or was held to

policies delivered directly from the DOC. And we do not

believe that an official is “enforcing,” “maintaining,” or

“acquiescing in” a policy merely because the official

passively permits his subordinates to implement a policy that

was set by someone else and is beyond the official’s authority

to change. Knowing nothing more than Phelps’s title as

warden, a factfinder could not reasonably conclude that

Phelps was a “person[ ] in charge” of search practices in C-

Building and thereby “acquiesced” in the practice of thrice-

daily visual body-cavity searches. See Santiago, 629 F.3d at

129 n.5.

Like Phelps, Captain Rispoli admits awareness of the

search practices in C-Building, but there is no evidence of

Rispoli’s role in establishing or enforcing the practices, and it

is unclear whether Rispoli had any authority to intercede.

Rispoli admits to being the “unit commander for the

maximum security units, including the Secured Housing Unit

(“SHU”), which consists of Buildings 17, 18, and 19.” App.

414. He then describes Building 18 and C-Building as

separate “units” and says, “The shift commander for the

maximum security housing units is responsible for assigning

inmates to an isolation unit. When I am the shift commander,

I make those assignments. . . . I am responsible for the

inmates assigned to Building 18 isolation. But I am familiar

with both the Building 18 isolation unit and the C-Building

isolation unit.” App. 415. The most natural reading of those

statements is that Rispoli commanded isolation units other

than C-Building. But even if there were ambiguity to be

resolved in Parkell’s favor, there would still be insufficient

evidence that Rispoli’s position gave him control over search

policies such that he could be charged with “acquiescence” in

their enforcement.

22

The evidence of the remaining State Defendants’

involvement is even weaker. Parkell points only to Deputy

Warden Pierce’s admission that he is “familiar with DOC

policies” and Major Costello’s admission that he is “aware of

security matters in the areas of the institution in which he [is]

assigned.” Reply Br. 22 (citing App. 781-82). There is no

evidence of Deputy Warden Klein’s knowledge of the

searches.

We therefore affirm the District Court insofar as it

granted summary judgment in favor of the State Defendants

in relation to any Fourth Amendment claim for money

damages.

3.

Our conclusion that the State Defendants lacked

personal involvement in past constitutional violations does

not preclude Parkell from obtaining prospective injunctive

relief for ongoing violations. Hartmann v. Cal. Dep’t of Corr.

& Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013); Gonzalez v.

Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (per curiam);

see also Argueta v. U.S. Immigration & Customs

Enforcement, 643 F.3d 60, 70, 77 (3d Cir. 2011) (“Plaintiffs

failed to allege a plausible claim to relief on the basis of the

supervisors’ ‘knowledge and acquiescence’ or any other

similar theory of liability . . . [but] are still free to pursue their

official capacity claims for injunctive relief against any

further intimidation or unlawful entry into their home.”);

Koehl v. Dalsheim, 85 F.3d 86, 88-89 (2d Cir. 1996)

(similar). In seeking a prospective injunction against the

implementation of an unconstitutional state policy, Parkell is

required to name an official or officials “who can

appropriately respond to injunctive relief.” Hartmann, 707

F.3d at 1127; see also Gonzalez, 663 F.3d at 315 (proper

defendant is one “responsible for ensuring that any injunctive

relief is carried out”). He has done so. Although we leave it

to the District Court to determine which defendants would

appropriately be named in an injunction should Parkell

prevail on his claim, at the very least Commissioner Danberg

or his successor could appropriately respond to injunctive

relief.

23

The State Defendants, however, argue that the issue of

injunctive relief is moot. They do not deny that Parkell is

currently incarcerated at VCC, nor do they contend that the

search practices in the isolation units have changed. 12 Rather,

they argue that the issue is moot because Parkell’s Fourth

Amendment claim arose from his temporary confinement in

C-Building and he is no longer confined there. We agree

with the State Defendants but also believe that an exception

to the mootness doctrine could potentially apply. Parkell

argues that, in light of his current incarceration at VCC and

the likelihood of a return to isolation units in the future, a

Fourth Amendment violation is “capable of repetition yet

evading review,” which makes injunctive relief appropriate.

Reply Br. 26. He requests that we at least remand the issue to

the District Court to consider in the first instance with the aid

of further factual development.

The “capable of repetition yet evading review”

doctrine is an exception to mootness that applies when “(1)

the challenged action is, in its duration, too short to be fully

litigated prior to cessation or expiration, and (2) there is a

reasonable expectation that the same complaining party will

be subject to the same action again.” United Indus., Serv.,

Transp., Prof’l & Gov’t Workers of N. Am. Seafarers Int’l

Union ex rel. Bason v. Gov’t of V.I., 767 F.3d 193, 212 (3d

Cir. 2014) (quotation marks omitted). The exception is

“narrow and available only in exceptional situations.”

Rendell v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007)

(quotation marks omitted).

The capable-of-repetition exception is inapplicable

when a previously incarcerated plaintiff has been completely

released from the system through expiration of a sentence or

12

We note that, even if VCC had voluntarily changed

its search practices since the lawsuit was filed, that alone

would not necessarily moot Parkell’s claim for injunctive

relief. DeJohn v. Temple Univ., 537 F.3d 301, 310 (3d Cir.

2008) (“[V]oluntary cessation does not moot a case or

controversy unless subsequent events make it absolutely clear

that the allegedly wrongful behavior could not reasonably be

expected to recur.” (quotation and alteration marks omitted)).

24

acquittal upon retrial, because it would be mere “conjecture”

to conclude that the plaintiff might be reincarcerated and

subjected to the same conditions again. See, e.g., Doe v.

Delie, 257 F.3d 309, 313-14 (3d Cir. 2001) (plaintiff

acquitted upon retrial). A more difficult and fact-intensive

question is raised, however, when the plaintiff is still

connected to the system. In Micklus v. Carlson, 632 F.2d 227

(3d Cir. 1980), we held that there was a “realistic possibility

of reincarceration” for a parolee “because of the low standard

for reincarceration.” Id. at 232-33 (noting that the parole

commission “cannot be totally arbitrary, [but] may

nevertheless revoke [his] parole status if at any time . . . [it] is

of the opinion that [he] will be benefited by further treatment

in an institution or other facility” (quotation marks omitted)).

But in Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir. 1993), a

prisoner had been released from a maximum security unit

three-and-a-half years into his eight-year sentence, and the

District Court applied the capable-of-repetition exception,

citing “the procedures through which inmates may be

classified into and out of maximum security.” Abdul-Akbar

v. Watson, 775 F. Supp. 735, 755 (D. Del. 1991). When the

case was appealed, we rejected the capable-of-repetition

theory and held that the District Court had improperly

“speculat[ed]” that the prisoner could be returned to a

maximum security unit. 4 F.3d at 197, 206-07.

Parkell’s point is well-taken that, as a general matter,

confinement of inmates in isolation units is hardly unusual,

which we have acknowledged in other contexts. Cf. Torres v.

Fauver, 292 F.3d 141, 150 (3d Cir. 2002) (“[D]isciplinary

detention and administrative segregation [are] the sort[s] of

confinement that inmates should reasonably anticipate

receiving at some point in their incarceration . . . .”). But

Parkell must present more than generalities; he must establish

a reasonable expectation that he, specifically, will again be

subjected to the unconstitutional search practices carried out

in VCC’s isolation units. See OSHA Data/CIH, Inc. v. U.S.

Dep’t of Labor, 220 F.3d 153, 168 (3d Cir. 2000) (placing the

burden on the plaintiff to show that the capable-of-repetition

exception applied). We reject Parkell’s last-minute effort to

meet that burden by claiming to have returned to isolation for

five days in June 2015, which is not reflected in the record

and is merely asserted in his reply brief.

25

We are also mindful, however, that the issue was

understandably never explored in the District Court, 13 where

discovery could have occurred and factual findings could

have been made regarding crucial issues, such as Parkell’s

history of confinement in isolation units, the frequency with

which and conditions under which VCC officials send

inmates to isolation units, and exactly how much discretion

officials have to do so. We will therefore leave it for the

District Court to determine on remand whether Parkell’s

request for injunctive relief in relation to the visual body-

cavity searches remains a live issue under the capable-of-

repetition exception to mootness. See, e.g., Williams v.

Anderson, 959 F.2d 1411, 1417 (7th Cir. 1992) (capable-of-

repetition finding was “fact-intensive” and not well-

developed on the record and therefore “best left to the district

court”).

B.

Parkell also challenges the visual body-cavity searches

as violating his right to procedural due process. He concedes

that he was given notice and a hearing concerning his

placement in isolation. His claim is that, in addition to that

process, he was also owed notice about the visual body-cavity

searches specifically and a hearing on the matter. We

disagree and will therefore affirm the District Court’s grant of

summary judgment on this claim.

A prisoner holds a liberty interest triggering due

process if either (1) “state statutes and regulations create a

liberty interest in freedom from restraint that imposes an

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life,” or (2) “severe changes

in conditions of confinement amount to a grievous loss that

should not be imposed without the opportunity for notice and

an adequate hearing.” Evans v. Sec’y Pa. Dep’t of Corr., 645

13

The District Court was under the impression that

Parkell was no longer at VCC, but Parkell had in fact been

returned to VCC three weeks before the District Court’s

summary judgment ruling. The District Court was not

informed of Parkell’s return.

26

F.3d 650, 663 (3d Cir. 2011) (quotation marks omitted).

Parkell argues only the “severe changes” theory.

Examples of “severe changes in in conditions of

confinement” include “forced administration of antipsychotic

medication, or involuntary transfer to a mental hospital, or,

for a prisoner not convicted of a sex offense, forced

participation in sex-offender therapy.” Id. at 665 (citations

omitted). Such changes result in punishment that is

“qualitatively different from the punishment characteristically

suffered by a person convicted of crime, and ha[s]

stigmatizing consequences.” Renchenski v. Williams, 622

F.3d 315, 326 (3d Cir. 2010) (quotation marks omitted).

We cannot say that routine visual body-cavity searches

are “qualitatively different from the punishment

characteristically suffered by a person convicted of a crime,”

that they impose “stigmatizing consequences” akin to being

labeled psychotic or a sex offender, id., or that they otherwise

constitute “severe changes in conditions of confinement

amount[ing] to a grievous loss,” Evans, 645 F.3d at 663.

Parkell therefore lacks a constitutionally protected liberty

interest under a “severe changes” theory, and his procedural

due process claim fails.

C.

Parkell raises two Eighth Amendment claims: (1) that

the State Defendants subjected him to harsh conditions of

confinement and (2) that the Medical Defendants ignored his

medical needs. Because there is insufficient evidence of

deliberate indifference as to either claim, we will affirm the

District Court’s grant of summary judgment on these claims.

1.

A claim regarding prison conditions “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.” Chavarriaga, 806 F.3d at 226. We need not

27

determine whether Parkell was deprived of “the minimal

civilized measure of life’s necessities” because the record

would not permit a reasonable factfinder to conclude that the

State Defendants were deliberately indifferent. See id. We

will therefore affirm the District Court’s grant of summary

judgment in the State Defendants’ favor as to Parkell’s Eighth

Amendment conditions-of-confinement claim.

In the Eighth Amendment context, “deliberate

indifference” is “a subjective standard of liability consistent

with recklessness as that term is defined in criminal law.”

Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000) (en banc).

A prison official is deliberately indifferent if the official

“knows that inmates face a substantial risk of serious harm

and disregards that risk by failing to take reasonable measures

to abate it.” Chavarriaga, 806 F.3d at 229 (quotation marks

omitted). A plaintiff “may demonstrate deliberate

indifference by showing that the risk of harm was

longstanding, pervasive, well-documented, or expressly noted

by prison officials in the past such that the defendants must

have known about the risk.” Betts v. New Castle Youth Dev.

Ctr., 621 F.3d 249, 259 (3d Cir. 2010) (quotation marks

omitted). But the plaintiff must show that the officials were

“aware of facts from which the inference could be drawn that

a substantial risk of harm exists, and that they also drew the

inference.” Id. (quotation and alteration marks omitted). “It

is not enough merely to find that a reasonable person would

have known, or that the defendant should have known . . . .”

Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994).

Parkell attests that during his first stay in the infirmary

in January 2009, he was held in a cell without working heat,

and during his second stay in March 2011, he was permitted

no exercise and no showers for over two weeks. He also

attests that during his time in C-Building isolation in

November 2009, he was subjected to thrice-daily visual body-

cavity searches and denied exercise and access to basic

hygienic materials. And he claims to have been denied access

to medical personnel during his time in both the infirmary and

C-Building, insofar as the nurses who visited refused to

examine him, citing a policy against entering the cells.

28

As evidence of the State Defendants’ deliberate

indifference, Parkell points to little more than their

“admissions” of awareness of certain DOC policies. That

evidence fails because most of the policies of which the

defendants admit to have knowledge differ in subtle but

important ways from the conditions that Parkell claims to

have experienced. Thus, although the defendants admit

knowledge of restrictive policies, those policies do not

amount to cruel and unusual punishment. And to the extent

that Parkell may have experienced even harsher conditions

beyond what those policies call for, there is no evidence that

the defendants were aware of that.

In his affidavit, Pierce claims that there are no VCC

policies preventing medical staff from entering the cells of

maximum-security inmates housed in the infirmary, as long

as the staffer is accompanied by two other officers; no

policies preventing maximum-security inmates housed in the

infirmary from showering; and no policies preventing an

inmate from receiving extra blankets or clothing if the heat is

malfunctioning. He admits that ice and recreation time are

not ordinarily provided to maximum-security inmates housed

in the infirmary but says that both would be provided if

directed by a doctor. He also admits that the infirmary had

intermittent heating problems in 2009, but never for extended

periods. He adds that it was practice to provide extra blankets

when heating problems arose, and certainly not practice to

deny extra blankets to an inmate who requested them. In his

affidavit, Rispoli claims that inmates in isolation in C-

Building are taken out of their cells for one hour three times

per week, during which time they can shower and recreate.

According to him, inmates in C-Building are permitted

medical treatment, which they can request, and are checked at

every shift for medical needs. In his discovery responses,

Phelps claims that inmates in isolation are seen by medical

staff every eight hours and can be taken out of isolation for

treatment if needed. He says that soap and hygienic items are

provided during shower and recreation time, and while

inmates may not store toilet paper in their cells, it is provided

upon request.

The defendants do concede that thrice-daily visual-

body cavity searches occurred for inmates in isolation, but

29

such searches do not constitute cruel and unusual punishment

unless they are “undertaken maliciously or for the purposes of

sexually abusing an inmate.” Crawford v. Cuomo, 796 F.3d

252, 258 (2d Cir. 2015); see also King v. McCarty, 781 F.3d

889, 897 (7th Cir. 2015) (per curiam) (“A prisoner states a

claim under the Eighth Amendment when he plausibly alleges

that the strip-search in question was motivated by a desire to

harass or humiliate . . . .”); Harris v. Ostrout, 65 F.3d 912,

916 (11th Cir. 1995) (per curiam). As Parkell does not point

to any evidence of maliciousness, the search policy cannot

serve as a basis for imposing Eighth Amendment liability on

the defendants.

The only other evidence of the State Defendants’

knowledge of the conditions that Parkell experienced are two

letters signed by Phelps, informing Parkell of the results of

his grievance appeals. But those particular letters refer to

grievances (nos. 191813 and 192952) that deal only with

Parkell’s requests for further medical services, not relief from

harsh conditions. Although the letters from Phelps could

demonstrate Phelps’s awareness of Parkell’s medical

complaints, 14 they do not demonstrate deliberate indifference,

as Phelps is not medical staff. See Durmer v. O’Carroll, 991

F.2d 64, 69 (3d Cir. 1993) (non-medical defendants not

deliberately indifferent “simply because they failed to

respond directly to the medical complaints of a prisoner who

was already being treated by the prison doctor”); Spruill v.

Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“[A]bsent a reason

to believe (or actual knowledge) that prison doctors or their

assistants are mistreating (or not treating) a prisoner, a non-

medical prison official . . . will not be chargeable with the

Eighth Amendment scienter requirement of deliberate

indifference.”).

14

Our oft-cited holding in Rode v. Dellarciprete, 845

F.2d 1195, 1208 (3d Cir. 1988) that the mere filing of a

grievance does not show actual knowledge by a supervisor is

not applicable, as Phelps’s letters show that he actually had

reviewed the grievances. Cf. Sutton v. Rasheed, 323 F.3d

236, 249-50 (3d Cir. 2003) (holding that an official who

wrote back in response to a grievance had “played an active

role” in a constitutional violation).

30

A grievance expressly challenging a practice of

prohibiting medical personnel from interacting with an inmate

might require intervention by non-medical staff, in that it

would suggest that the inmate was not receiving care at all.

But Parkell’s grievances were different. Parkell wrote that he

“complain[ed] often and mostly [was] ignored,” described his

symptoms, and asked for further treatments beyond what he

was already receiving. App. 492. The written responses to

those grievance show that the prison officials ensured that

Parkell was under the care of medical personnel and being

treated, and therefore that the officials were not deliberately

indifferent. See Greeno v. Daley, 414 F.3d 645, 655-56 (7th

Cir. 2005) (“Miller reviewed Greeno’s complaints and

verified with the medical officials that Greeno was receiving

treatment. We do not think Miller’s failure to take further

action . . . can be viewed as deliberate indifference.”).

Because there is insufficient evidence to find

deliberate indifference on the part of any of the State

Defendants, we will affirm the District Court’s grant of

summary judgment in the State Defendants’ favor as to

Parkell’s Eighth Amendment conditions-of-confinement

claim.

2.

We now turn to Parkell’s Eighth Amendment medical-

needs claim. To prove this claim, “evidence must show (i) a

serious medical need, and (ii) acts or omissions by prison

officials that indicate deliberate indifference to that need.”

Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d

Cir. 2003). The parties dispute only the issue of deliberate

indifference, not whether Parkell had a serious medical need.

The record would not permit a reasonable factfinder to

conclude that the Medical Defendants were deliberately

indifferent to Parkell’s medical needs, and therefore we will

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

Medical Defendants’ favor as to this claim.

We have acknowledged that “prison authorities are

accorded considerable latitude in the diagnosis and treatment

of prisoners.” Durmer, 991 F.2d at 67. A prisoner bringing a

medical-needs claim “must show more than negligence; he

31

must show ‘deliberate indifference’ to a serious medical

need.” Id. “Allegations of medical malpractice are not

sufficient to establish a Constitutional violation,” nor is

“[m]ere disagreement as to the proper medical treatment.”

Spruill, 372 F.3d at 235. A “failure to provide adequate care .

. . [that] was deliberate, and motivated by non-medical

factors” is actionable under the Eighth Amendment, but

“inadequate care [that] was a result of an error in medical

judgment” is not. Durmer, 991 F.2d at 69. “We have found

‘deliberate indifference’ in a variety of circumstances,

including where the prison official (1) knows of a prisoner’s

need for medical treatment but intentionally refuses to

provide it; (2) delays necessary medical treatment based on a

non-medical reason; or (3) prevents a prisoner from receiving

needed or recommended medical treatment.” Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

First, Parkell argues that Nurse Bryant violated his

Eighth Amendment right to medical treatment during her

encounter with him in January 2009. Parkell attests that

Bryant refused to let him speak to describe his symptoms,

accused him of “run[ning] game” to obtain Vicodin, declared

that she was not “fall[ing] for it,” told him he could purchase

aspirin himself, and instructed prison officers to “get him out

of here.” App. 96, 178. If Bryant had ignored Parkell’s

medical needs, her brusqueness might suggest that she did so

deliberately and for non-medical reasons. But Bryant did not

ignore his needs. Parkell claims that Bryant never properly

examined his injury in person even though he had a “massive

infection” and that she should have given him medication for

pain. App. 96, 178. But there is no dispute that the most

serious complications of Parkell’s injury (including the

visible releasing of pus) had not yet appeared when he saw

Bryant. There is also no dispute that Bryant ordered an x-ray

that showed normal results. And there is nothing in the

record suggesting that, at the time that Parkell saw Bryant, it

was improper to recommend over-the-counter pain

medication rather than to seek a prescription from a doctor.

Particularly in light of the normal x-ray results, a factfinder

could not reasonably conclude that Bryant deliberately

ignored risks to Parkell’s health.

32

Second, Parkell argues that CMS and CCS deprived

him of needed medical care, in violation of the Eighth

Amendment, in two respects: (1) Parkell was twice (first in

August 2009 on CMS’s watch, then again in March 2011 on

CCS’s watch) prescribed regular physical therapy but was

only provided with limited, sporadic therapy, and his injury

was exacerbated as a result; (2) Parkell was prescribed pain

medication in March 2011, but CCS provided only half the

prescribed dosage and, on some occasions, even less. Again,

the contested issue is deliberate indifference — that is,

whether “inadequate care was a result of an error in medical

judgment” or “deliberate, and motivated by non-medical

factors,” Durmer, 991 F.2d at 69 — and Parkell fails to make

a sufficient showing.

The deliberate indifference inquiry is complicated by

the fact that CMS and CCS are institutional defendants. It is

not enough for Parkell to show that a medical staffer was

deliberately indifferent to his needs, because CMS and CCS

“cannot be held responsible for the acts of [their] employees

under a theory of respondeat superior or vicarious liability.”

Natale, 318 F.3d at 583. Parkell must impute that deliberate

indifference to CMS and CCS by showing that they “turned a

blind eye to an obviously inadequate practice that was likely

to result in the violation of constitutional rights” such that

they, as “policymaker[s,] can reasonably be said to have been

deliberately indifferent to the need.” Id. at 584 (quotation

marks omitted). Parkell has not brought claims against

specific CMS or CCS employees other than Bryant. But in

order to succeed in his claim against CMS and CCS for

violating the Eighth Amendment, Parkell need not name

particular CMS or CCS employees who were deliberately

indifferent, as long as a factfinder could conclude that some

CMS or CCS employee was deliberately indifferent and the

deliberate indifference can be attributed to CMS or CCS. See

id. at 583 n.8.

As to the failure to provide prescribed physical

therapy, Parkell argues that there was no medical reason to

deny him therapy and the true reason was that, as a general

practice, therapy for SHU inmates was often skipped because

the prison lacked enough staff to transport them from the

SHU or were unable to transport them when certain security

33

events occurred. 15 CMS and CCS do not deny this but rather

argue that they are not liable because the alleged logistical

difficulties that undermined Parkell’s therapy were

indisputably caused by the DOC, which is the relevant

“policymaker” in that arena, not CMS and CCS. See Natale,

318 F.3d at 584.

We agree with CMS and CCS. Systemic logistical

constraints such as understaffing, which are unrelated to

medical judgment, will typically not excuse failure to provide

adequate medical care. See Inmates of Allegheny Cty. Jail v.

Pierce, 612 F.2d 754, 763 (3d Cir. 1979) (holding that

deliberate indifference is shown “where the size of the

medical staff at a prison in relation to the number of inmates

having serious health problems constitutes an effective denial

of access to diagnosis and treatment”). But there is a

difference between actors who are actually responsible for

those logistical constraints (or capable of remedying them)

and actors who are not. In Pierce, it was the jail

administration, not the individual medical providers, that was

responsible for the understaffing and deliberately indifferent

to its effects. See id. at 762-63; see also Byrd v. Shannon,

715 F.3d 117, 127-28 (3d Cir. 2013) (“[Byrd] has not shown

that the delays in supplying his eye drops were due to

deliberate indifference. . . . Under Byrd’s self-medication

program, he is responsible for the renewal of his

prescriptions, and thus, he was responsible for this delay.

Other delays were caused by the pharmacy that provided the

eye drops. Therefore, the District Court properly granted

summary judgment to [prison healthcare officials].”). That

the DOC’s transportation practices caused SHU inmates to

miss needed physical therapy does not mean that CMS or

CCS was indifferent to the problem. And even if they were

indifferent, their indifference could not have been the cause

of Parkell’s inadequate therapy, as there is no evidence that

CMS or CCS had control over inmate transportation. While

15

Parkell reportedly learned this from a conversation

with his physical therapist, and it is unclear whether his

statements would be admissible at a trial. But CMS and CCS

do not dispute Parkell’s claims about the transportation

difficulties; indeed, their defense relies on it.

34

Parkell could conceivably sue DOC officials in relation to the

transportation practices, he has not done so.

Parkell’s medical-needs claim also fails in relation to

his pain medication prescription (which implicates only

CCS). According to Parkell’s version of events, which CCS

disputes, he was initially prescribed four Vicodin per day by

Dr. DuShuttle, an amount that he never received once he

returned to VCC. He typically received only two Vicodin per

day, and on three occasions (March 23, 2011, March 29,

2011, and April 6, 2011) doses were missed. Nurses told

Parkell that CCS’s medical director could modify prescription

recommendations made by outside consulting doctors and

that the missed doses were caused by a short-term shortage.

With regard to the halving of the dosage, there is

insufficient evidence that it was done for non-medical

reasons, as Parkell alleges. The record is essentially silent as

to why CCS’s medical director would have reduced Parkell’s

pain medication below the level recommended by an outside

consulting doctor (assuming, of course, that this actually

happened). There could be several legitimate medical reasons

for doing so, including generalized professional disagreement

about the appropriate level of prescription pain medication for

most patients. And a fact-finder could not reasonably reject

those explanations in favor of an illegitimate explanation

merely because Parkell claims to have heard other inmates

say that “[the medical director] slash[es] in half everybody’s

order when you go out” to see a specialist, and to have heard

Dr. DuShuttle say that “[t]hey cut my orders every time I

make an order,” App. 328 — even if those statements were

admissible as evidence at trial.

As to the three missed doses, there is insufficient

evidence that CCS turned a blind eye to an inadequate

practice happening on its watch. There is no evidence that

shortages were a common or systemic problem. And there is

no evidence that CCS leadership would have known about

isolated shortages in time to intervene. Parkell filed a

grievance on April 16, 2011, alluding vaguely to “lapses in

medication occur[ring] randomly,” App. 234, but even if that

35

was sufficient to put CCS on notice, all three of the alleged

shortages predated the grievance. 16

We will therefore affirm the District Court’s grant of

summary judgment in favor of the Medical Defendants in

relation to Parkell’s Eighth Amendment medical-needs

claims. 17

IV.

Finally, we reject Parkell’s argument that the District

Court abused its discretion by denying him appointed

counsel.

“Indigent civil litigants possess neither a constitutional

nor a statutory right to appointed counsel.” Montgomery v.

Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). Appointing

counsel for an indigent civil litigant is “usually only granted

upon a showing of special circumstances indicating the

likelihood of substantial prejudice to him resulting, for

example, from his probable inability without such assistance

to present the facts and legal issues to the court in a complex

16

Parkell also cites a “Memorandum of Agreement

between the United States Department of Justice and the State

of Delaware that resulted from a DOJ investigation of

Delaware prison facilities, including [VCC],” but Parkell only

seeks to use this as evidence that “CMS and the DOC” — not

CCS, which entered the picture later — “were on notice

regarding deficiencies in the medical care afforded to

inmates.” Parkell Br. 49-50. Parkell also fails to explain

what “deficiencies” were actually noted in the Memorandum

and how they would have put CMS “on notice” with regard to

the specific issues in this lawsuit.

17

We do not address CCS’s argument that Parkell’s

claim is barred by his failure to exhaust administrative

remedies. Aside from being unnecessary to our disposition of

the case, the issue was forfeited because CCS did not raise

this issue in its summary judgment motion in the District

Court, and thus Parkell never had an opportunity to respond

with evidence of exhaustion. Ray v. Kertes, 285 F.3d 287,

295 (3d Cir. 2002) (“[F]ailure to exhaust is an affirmative

defense to be pleaded by the defendant.”).

36

but arguably meritorious case.” Smith-Bey v. Petsock, 741

F.2d 22, 26 (3d Cir. 1984) (emphasis added).

District courts have “broad discretion to determine

whether appointment of counsel in a civil case would be

appropriate.” Montgomery, 294 F.3d at 498 (quotation marks

omitted). First, the court “must assess whether the claimant’s

case has some arguable merit.” Id. at 498-99. If there is

arguable merit, then the court should consider a range of

factors, including:

1. the plaintiff’s ability to present his or her

own case; 2. the difficulty of the particular

legal issues; 3. the degree to which factual

investigation will be necessary and the ability

of the plaintiff to pursue investigation; 4. the

plaintiff’s capacity to retain counsel on his or

her own behalf; 5. the extent to which a case is

likely to turn on credibility determinations, and;

6. whether the case will require testimony from

expert witnesses.

Id. at 499. These factors are “not exhaustive, but should

serve as a guidepost for the district courts.” Id. (quotation

marks omitted). The plaintiff’s ability to present a case is

“[p]erhaps the most significant” consideration and depends on

factors such as “the plaintiff’s education, literacy, prior work

experience, and prior litigation experience.” Id. at 501. We

have noted that prisoners have the ability to “proceed with an

investigation through interrogatories, document requests, and

requests for admissions” but are unable to conduct

depositions, which are sometimes necessary to building a

case. Id. at 502-04.

Parkell’s chief complaint is that appointed counsel

could have more aggressively pursued documents when the

defendants resisted his requests for DOC policies and prison

log books. But Parkell did file motions to compel, along with

copious discovery requests, which demonstrated a

considerable ability to pursue discovery. His discovery

efforts were at times unsuccessful, and an appointed attorney

may well have done better. But that could be said of nearly

37

any pro se case and does not, on its own, lead us to believe

that the District Court abused its discretion.

Parkell also cites the complexity of the case and the

centrality of credibility determinations as grounds to appoint

counsel. But the core legal issues in this case — deliberate

indifference and the reasonableness of searches — are not so

complex that a pro se litigant would be altogether unable to

grasp them. Further, Parkell had significant litigation

experience, and his filings (including significant motion

practice) in the District Court were coherent and

demonstrative of both literacy and basic knowledge of the

mechanics of litigation. Witness credibility is indeed central

to the case, but that suggests a need for appointed counsel

during trial, not at the summary judgment phase, where

credibility determinations are not made.

The District Court, therefore, acted within the bounds

of its broad discretion to deny Parkell appointed counsel.

V.

For the foregoing reasons, the judgment of the District

Court will be affirmed in part and reversed in part. The

judgment will be reversed as to Parkell’s claim against the

State Defendants for prospective injunctive relief under the

Fourth Amendment, which will be remanded to the District

Court for further proceedings consistent with this opinion. In

all other respects, the judgment will be affirmed.

38