R. Vasquez v. Berks County

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez, :

Appellant :

:

v. : No. 1011 C.D. 2020

: Submitted: March 25, 2022

Berks County, Janine Quigley, :

Jeffrey Smith, Jay Phillips, :

Miguel Castro, Stephen Dew, :

Michael Johnson, Charles Fisher, :

Dustin Remp, Sgt. Tassone and :

CO Matta :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE LORI DUMAS, Judge

OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: June 29, 2022

Ramon Vasquez (Vasquez), pro se, appeals from the Court of Common Pleas

of Berks County’s (trial court) March 23, 2018 Order that sustained the Preliminary

Objections (POs) filed by Berks County, Janine Quigley (Quigley), Jeffrey Smith

(Smith), Jay Phillips (Phillips), Miguel Castro (Castro), Stephen Dew (Dew),

Michael Johnson (Johnson), Charles Fisher (Fisher), Dustin Remp (Remp), Sgt.

Tassone (Tassone), and CO Matta (Matta) (collectively, Appellees1) and dismissed

Vasquez’s Amended Complaint with prejudice. In the Amended Complaint,

Vasquez sought damages under 42 U.S.C § 19832 (Section 1983), alleging violations

1

Vasquez also included claims against Fernando Torres, who was not a listed defendant to

this action. It is not clear from the record whether service on Torres was ever effectuated.

2

Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

(Footnote continued on next page…)

of Vasquez’s constitutional rights and state law tort claims based on Appellees’

actions during Vasquez’s incarceration in the Disciplinary Segregation Unit (Delta

Unit) at the Berks County Jail from 2014 to 2015. On appeal,3 Vasquez argues that

he successfully stated claims for: (1) First Amendment retaliation4 against Dew and

Johnson; (2) excessive force against Johnson; (3) failure to intervene against Dew;

(4) Monell5 liability against Berks County and Quigley; and (4) his conditions of

confinement claim concerning inadequate exercise against Berks County and

Quigley. Vasquez also argues that, because Appellees’ POs failed to challenge: (1)

his retaliation claims against the remaining Appellees; (2) his failure to protect claim

against Quigley, Smith, Phillips, and Castro; (3) his due process claims; and (4) his

tort claims, the trial court erred in dismissing those unobjected-to claims.

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

42 U.S.C. § 1983.

3

We have reorganized the issues raised by the parties for ease of discussion.

4

Vasquez brought his retaliation claims under both the First Amendment to the United

States Constitution, U.S. CONST. amend. I, and article I, section 7 of the Pennsylvania Constitution,

PA. CONST. art. I, § 7. For purposes of this opinion, “First Amendment retaliation” refers to both

constitutional provisions.

5

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

2

I. BACKGROUND

A. Amended Complaint

Vasquez filed his original complaint with the trial court in January 2017

against some of the named Appellees.6 After the then-named Appellees filed an

Answer and New Matter, Vasquez filed the operative Amended Complaint, adding

the remaining Appellees.

1. Delta Unit and Conditions of Confinement

In the Amended Complaint, Vasquez alleged that he was confined at the Berks

County Jail and placed on Disciplinary Segregation status in the Delta Unit, which

is “a secured unit where[] Vasquez was confined to his cell 23 hours a day.”

(Amended (Am.) Complaint (Compl.) ¶ 6, Original Record (O.R.) Item 9.) Vasquez

explained that, “per [the] [I]mate [H]andbook[,] there were [sic] a set list of

restrictions as part of the conditions of confinement for [Disciplinary] Segregation[7]

[] status.” (Id. (citing Original (Orig.) Compl. Exhibit (Ex.) 1, O.R. Item 12).)8 The

6

Vasquez’s initial complaint named Berks County, Quigley, Smith, Phillips, Castro, Dew,

Johnson, Fisher, and Remp. The Amended Complaint added Tassone and Matta.

7

While Vasquez points to the list of restrictions for Administrative Segregation, the Inmate

Handbook also contains a list of restrictions for Disciplinary Segregation, which is the designation

of Vasquez’s alleged restrictions. (Original Complaint Exhibit (Ex.) 1 at 22-23.)

8

Vasquez attempts to incorporate by reference to the Original Petition the following

exhibits attached thereto: Exhibits 1 (Inmate Handbook); 2 (Clothing List Available to Inmates);

3 (Administrative Grievances concerning Dew from 2014); 4 (Unit Action from Dew,

Administrative Grievances concerning the January 8, 2015 incident, and Witness Statements

concerning same); 5 (Berks County Jail Rules and Regulations); 6 (Delta Unit Inmate Orientation

Acknowledgement form); 7 (Unit Action concerning the January 27, 2015 incident with Dew and

resulting Administrative Grievances); 9 (Administrative Grievances concerning laundry and

kosher meals); 10 (Witness Statements concerning kosher meals); 11 (Administrative Grievances

concerning exercise); 12 (Institutional Classification Committee (ICC) Report concerning the

April 2, 2015 Hearing); 13 (Administrative Grievance and Appeal concerning conditions of

confinement); 14 (Witness Statements concerning harassment from Johnson and Dew and the food

(Footnote continued on next page…)

3

Inmate Handbook, attached to the Original Complaint as Exhibit 1, indicates that

these restrictions include: one hour of out-of-cell exercise, which may be further

restricted; restrictions on showers, clothing, mattress, blankets, and pillows; food

loaf for each meal Monday through Friday; restrictions on privileges and

participation in programs and services; no use of the inmate telephone system; and

limitations on books, restricting those in the Delta Unit to one generic book, one

religious book, and one law book. (Orig. Compl. Ex. 1 at 22-23.) Vasquez further

alleged that he was restricted to one inch of legal material. Vasquez asserted that

this was a “silent policy” not contained in any of the handbooks or rules provided to

him, that served “no legitimate penological interest,” “was excessive in light of

managing and maintaining order and security,” and “was designed as a form of

loaf incident with Fisher and Remp); 15 (Administrative Grievance and Appeal concerning the

food loaf incident with Fisher and Remp); 16 (Administrative Grievance concerning Dew’s

confiscation of legal materials); 17 (ICC Report from July 25, 2015 Hearing concerning the rule

restricting Vasquez to one inch of legal material); 18 (Administrative Grievance concerning Dew’s

confiscation of legal materials); 19 (Unit Action from Johnson indicating that Vasquez had two

mattresses); 20 (Administrative Grievance concerning the Unit Action from Johnson); 21 (Appeal

from Administrative Grievance concerning the Unit Action from Johnson); 22 (ICC Report from

July 23, 2015 hearing); 23 (Administrative Grievance concerning July 28, 2015 incident with

Dew); 24 (Administrative Grievance concerning Dew’s confiscation of legal materials); 25

(Appeal from denial of Administrative Grievance concerning Dew’s confiscation of legal materials

and ICC Report from August 20, 2015 hearing concerning kosher meals and legal materials); 26

(Unit Action from Johnson); 27 (Witness Statements concerning the August 17, 2015 incident with

Dew and Johnson); 28 (Administrative Grievance concerning the August 17, 2015 incident with

Dew and Johnson); 29 (Appeal from denial of Administrative Grievance concerning the August

17, 2015 incident with Dew and Johnson); 33 (Administrative Grievances concerning Fisher and

kitchen staff); 35 (Unit Action from Dew and ICC Report from November 12, 2015 hearing); and

36 (Administrative Grievance concerning November 2015 incident where Due confiscated legal

materials) (See Am. Compl. ¶¶ 6, 10, 13-14, 17-18, 23-24, 26, 27-35, 37-39, 42-44.) Some of the

Original Complaint exhibits to which Vasquez cites in the Amended Complaint are duplicative

and have not been listed.

Recognizing that pro se litigants are held to more lenient standards and not the stringent

standards expected of pleadings drafted by lawyers, Madden v. Jeffes, 482 A.2d 1162, 1165 (Pa.

Cmwlth. 1984), these exhibits were adequately incorporated in the Amended Complaint.

4

punishment and a way to withhold Vasquez from reasonably accessing the courts to

litigate his cases.” (Am. Compl. ¶¶ 9, 32, 35.)

Vasquez asserted numerous allegations surrounding his conditions of

confinement. Relevantly, Vasquez alleged claims surrounding his access to

exercise. Vasquez averred that, pursuant to a policy adopted and imposed by

Quigley and Berks County, he “would be placed outside for his hour of recreation

with his standard uniform[,] a sweater and hospital [shoes] to face the harsh wintery

weather.” (Id. ¶¶ 10, 57.) On days that it snowed, Vasquez asserted, he “would be

afforded indoor recreation but would be shackled in handcuffs to a belt for [the]

exercise time.” (Id. ¶ 10.) Vasquez submitted a grievance for this issue but received

no relief. (Id.; see also Orig. Compl. Ex. 11 at 3.) Vasquez maintained that “[t]his

was another policy or custom designed to punish and deter Vasquez from taking

recreation” and that the refusal “to provide adequate clothing for these conditions”

and restrictions on Delta Unit prisoners purchasing warmer clothing were other

“form[s] of punishment within the conditions of confinement.” (Am. Compl. ¶ 10

(citing Orig. Compl. Ex. 2).) Because of these alleged restrictions, Vasquez suffered

an aggravation of a preexisting injury to his right arm, “reoccurring nightmares, and

mental/emotional problems,” which resulted in him being placed on suicide watch.

(Am. Compl. ¶¶ 21, 25 (citing Orig. Compl. Ex. 11).)

2. First Amendment Retaliation Claim Against Dew

Vasquez alleged numerous instances of retaliatory abuse from Dew. Vasquez

contended that, while there were “three officers assigned to Delta Unit at [a] time

who were responsible for the daily operations of managing the unit,” including

Fisher and Remp, “Dew was not even a formal correctional officer” but a “special

operations group[ (S.O.G.)] member” who was responsible for “emergency response

5

situations for increased safety.” (Id. ¶ 12.) Vasquez averred that “Dew had an

adverse history of retaliating and harassing Vasquez for utilizing the grievance

system against Dew for official misconducts,” “would regularly confiscate and

destroy Vasquez’s legal materials, and [would] issue trumped up misconducts to

justify [Dew’s] harassment.” (Id. ¶ 13.) Vasquez submitted a grievance about

Dew’s conduct to Quigley and Castro but received no relief. (Id. (citing Orig.

Compl. Ex. 3).) The documents attached as Exhibit 3 show that Vasquez first

complained that Dew confiscated his legal materials on July 9, 2014, and his appeal

from the denial of that grievance, and also include a purported affidavit describing

the same conduct by Dew. (Orig. Compl. Ex. 3.)

Vasquez asserted that on the morning of January 8, 2015, Vasquez “was

removed from his cell for his hour of recreation. Upon return[,] he witnessed [] Dew

emerge from his cell alone with a bundle of papers and a Styrofoam tray.” (Am.

Compl. ¶ 11.) During that incident, Dew “confiscated and destroyed Vasquez’s

affidavit [for] his pending criminal case” that morning. (Id. ¶ 14.) When Vasquez

noticed the document was missing the subsequent morning while preparing for court,

Vasquez “requested to speak to a supervisor.” (Id.) Vasquez asserted that a S.O.G.

sergeant came to speak with Vasquez, and Vasquez informed the sergeant about the

incident and “that it was a continuous problem with Dew taking and destroying his

legal material.” (Id.) The S.O.G. sergeant told Vasquez that there was nothing he

could do and advised submitting a grievance, which Vasquez did on January 9, 2015,

including verified statements from two witnesses. (Id. (citing Orig. Compl. Ex. 4).)

Phillips, a lieutenant at the Berks County Jail, denied the grievance on the basis that

Dew denied the events, and Quigley dismissed the appeal due to a lack of evidence.

(Id. ¶ 15.)

6

After submitting the grievance, Vasquez alleged that Dew “came by [his] cell

and began to antagonize him,” stating, “‘[y]ou’re wasting your time with those

grievances, this isn’t Philadelphia[.] [W]e do things a little different in Berks

County.’” (Id.) Vasquez asserted that Dew said so “as an intimidating statement to

deter Vasquez of ordinary firmness from utilizing the grievance system.” (Id.)

Next, Vasquez alleged that on January 27, 2015, Vasquez “noticed Dew alone

again searching inmates[’] cells while they were out for their hour of recreation.”

(Id. ¶ 16.) Accordingly, Vasquez declined recreation due to his fear that Dew would

confiscate and destroy his legal materials. Vasquez averred that Dew then returned,

searched Vasquez’s cell, and Vasquez told Dew not to touch his legal work.

Thereafter, Dew cited only Vasquez with a unit action and placed only Vasquez “on

[a] seven[-]day mattress restriction[9] for the same nuisance items found in every

other inmate[’s] cell.” (Id.) Vasquez maintained that the rules and regulations only

provided for unit sanctions from unit officers and mattress restrictions were not

among the unit sanctions nor was Dew a unit officer. (Id. ¶ 17 (citing Orig. Compl.

Ex. 5).) Vasquez filed another grievance for this issue but received no relief. (Id.

¶¶ 18-19 (citing Orig. Compl. Exs. 4, 7).)

Vasquez next alleged a similar incident in early June 2015, after he had just

received a final appeal decision concerning grievances against Fisher and Remp on

June 5, 2015. (Orig. Compl. Ex. 15.) After Dew ordered Vasquez out of his cell

stating, “‘Let’s see what I can get today,’ he then confiscated Vasquez’s legal

material” for being over the allowable amount, one inch. (Am. Compl. ¶ 31 (citing

Orig. Compl. Ex. 16).) Vasquez alleges that there is no “one-inch rule” in any of the

rules or handbooks provided to him and that he raised this with Berks County Jail’s

9

It is unclear from the Amended Complaint exactly what a “mattress restriction” entails.

7

Institutional Classification Committee (ICC). (Id. ¶ 32.) The ICC holds hearings

every 30 days at which inmates may bring complaints and forwards the records

thereof to Quigley. (Id. ¶ 20.) The ICC informed him he was only allowed one inch

of legal material and to ask to exchange materials when needed. Vasquez alleged

that “he would not get the correct paperwork” when requested and that “this would

be another form of punishment . . . in excess [of] prison interest designed to retaliate

for filing grievances and withhold him from access to the courts.” (Id. ¶ 32 (citing

Orig. Compl. Exs. 17-18).)

Finally, Vasquez asserted that on July 28, 2015, after he asked for a new meal

because the one provided to him was wrong, Dew came by his cell and, again,

confiscated his legal work and issued him a misconduct, which was subsequently

dismissed. (Id. ¶ 35 (citing Orig. Compl. Ex. 23).) Vasquez alleged that he

eventually received the correct meal after speaking with a sergeant, but his legal

materials were never returned. Based on these allegations, Vasquez claimed that

Dew’s conduct in confiscating and destroying his legal materials constituted

unconstitutional retaliation, violating his rights under both the United States and

Pennsylvania Constitutions.10 (Id. ¶ 46.) Vasquez further alleged that this conduct

violated his due process rights under the Fourteenth Amendment to the United States

Constitution.11 (Id. ¶ 58.)

10

The First Amendment to the United States Constitution provides: “Congress shall make

no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging

the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.” U.S. CONST. amend. I. Section 7 of article

I to the Pennsylvania Constitution states, in pertinent part: “The free communication of thoughts

and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and

print on any subject, being responsible for the abuse of that liberty.” PA. CONST. art. I, § 7.

11

Section 1 of the Fourteenth Amendment to the United States Constitution provides, in

relevant part, that “[n]o State shall . . . deprive any person of life, liberty, or property, without due

process of law.” U.S. CONST. amend. XIV, § 1.

8

3. First Amendment Retaliation and Due Process Claims against Johnson

Vasquez next asserted a First Amendment retaliation claim against Johnson

concerning allegedly arbitrary unit actions in the form mattress restrictions. On July

18, 2015, just after finishing seven days of mattress restriction, Vasquez alleged

Johnson came to his cell and ordered him to surrender his mattress. (Id. ¶ 33.) After

informing Johnson that he finished a seven-day restriction, “Johnson told Vasquez

that he didn’t care what the paper said[ and] that if he tells [Vasquez] he wanted the

mattress[, then Vasquez should] just shut up and do as he’s told.” (Id.) Johnson

then cited Vasquez with a unit action that stated he had two mattresses. (Id. (citing

Orig. Compl. Ex. 19).) Vasquez filed a grievance, which Castro denied, finding that

Vasquez did have two mattresses. (Id. (citing Orig. Compl. Ex. 20).) Vasquez

appealed, arguing that the mattress restriction was an arbitrary punishment not

within the rules and regulation of the Inmate Handbook, but Smith denied the appeal.

(Id. (citing Orig. Compl. Ex. 21).) Vasquez asserted that Johnson’s conduct

constituted unconstitutional First Amendment retaliation against his ongoing use of

the grievance system, and a Fourteenth Amendment due process violation. (Id.

¶¶ 47, 59.)

4. Excessive Force and Tort Claims against Johnson and Failure to Intervene

and Tort Claims against Dew

Vasquez next asserted excessive force and tort claims against Johnson and

Dew in regard to an alleged incident on August 17, 2015. Vasquez asserted that

while “Dew and Johnson were conducting cell searches, Dew ordered Vasquez to

cuff up,” and he complied. (Id. ¶ 37.) When a fellow inmate asked Vasquez what

was happening, he said “‘these guys are on their b.s. again.’” (Id.) In response,

Johnson stated “‘you know what[,] I’m tired of your shit’ and then placed a black

bag over Vasquez’s head filled with pepper spray and yelled at Vasquez to get on

9

his knees.” (Id.) Vasquez complied with the order to get on his knees, “began

coughing[,] and stated his eyes were burning,” and, after Vasquez asked why he was

being treated like this, Dew stated, “don’t cry now[,] you wan[t to] play games[,] we

know how to play games too.” (Id.) Vasquez “remained in that position for several

minutes coughing and gasping for air.” (Id.) After a sergeant appeared and Vasquez

inquired as to Dew and Johnson’s presence, the sergeant noted that “neither Dew

nor Johnson were the unit officers that evening” and ordered that Vasquez be

returned to his cell and that the spit hood be taken off of Vasquez’s head. (Id.)

Vasquez then washed his eyes and face to remove the remnants of pepper spray, did

not receive any medical attention, was cited for a unit action by Johnson, and placed

on a seven-day mattress restriction. (Id. (citing Orig. Compl. Ex. 26).) Vasquez

alleged that six witnesses provided witness statements verifying this incident and

that the incident was captured by video surveillance. (Id. (citing Orig. Compl. Ex.

27).) Vasquez filed a grievance on this issue, which Phillips denied on the basis that

Dew and Johnson’s actions were justified where Vasquez was verbally abusive, and

his actions could have escalated into combative behavior threatening officer safety.

(Id. (citing Orig. Compl. Ex. 28).) Based on these allegations, Vasquez asserted an

excessive force claim in violation of the Eighth Amendment12 and assault and battery

tort claims against Johnson for placing the spit hood containing pepper spray over

his head, and he asserted Eighth Amendment failure to act/intervene and negligence

claims against Dew for his compliance and participation in the conduct. (Id. ¶¶ 52-

53.)

12

The Eighth Amendment to the United States Constitution provides: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

CONST. amend. VIII.

10

5. First Amendment Retaliation Claims against Tassone and Matta

Vasquez also alleged First Amendment retaliation claims against Tassone and

Matta concerning grievances he filed regarding the kosher meals provided to him.

Vasquez explained that Tassone and Matta “were the kitchen officers who overs[aw]

the kosher meals” and that Vasquez “initially [] receive[d] whole fruits and

vegetables along with a T.V.[-]styled dinner as a main course.” (Id. ¶ 23.)

Vasquez alleged that, on February 13, 2015, Vasquez “submitted a

communication request form to the kitchen requesting a copy of the menu”;

however, Matta allegedly responded that Vasquez “did not need to know what was

on the menu.” (Id. (citing Am. Compl. Ex. C).) After attempting to reach out to

other departments of the facility regarding the kosher menu without success,

Vasquez alleged that the meals became half the size and “changed from the above

mentioned to outdated canned food products.” (Id. ¶¶ 23-24 (citing Am. Compl. Ex

D; Orig. Compl. Ex. 9 at 4).) Vasquez maintained that this was in retaliation to

requesting a kosher menu and he filed a grievance, but again he received no relief

because, per Tassone and Smith, the portions were approved by the chaplain, though

Smith did admit that a mistake was made as to one of the meals, which was corrected.

(Id. ¶ 24 (citing Am. Compl. Ex. E).) Afterwards, Vasquez alleged that the size of

the meals became smaller. Vasquez filed another grievance, including statements

from other inmates indicating that “Tassone, Matta, and other officers made final

decisions on the meals,” that “the kosher microwavable dinners and fresh fruits [that]

were for inmates were instead given to officers,” that “both Tassone and Matta were

overheard making adverse remarks about the kosher meals and inmates on Delta

Unit,” and that “there was a constant change in the [k]osher meals for no reason.”

(Id. ¶ 26 (citing Orig. Compl. Ex. 10).) After raising his concerns about the kosher

11

meals to the ICC, Vasquez alleges that the ICC “conceded the institution’s use of

food as a punishment by stating that the kosher protein may be different” for those

on disciplinary watch. (Id. ¶ 27 (citing Orig. Compl. Ex. 12).) Based on these

allegations, Vasquez maintained that Tassone and Matta engaged in unconstitutional

First Amendment retaliation for utilizing the grievance system by continuously

depriving him of the full kosher meals. (Id. ¶¶ 36, 48.)

6. First Amendment Retaliation, Excessive Force, and Tort Claims against

Fisher and Remp

Vasquez next alleged Fisher and Remp were two of the three regular officers

assigned to the Delta Unit who retaliated against him for his use of the grievance

system in regard to his legal materials and began to antagonize him about the issue.

(Id. ¶¶ 12, 32.) Vasquez asserted that on May 11, 2015, he asked Fisher and Remp

for any breakfast leftovers if available, and Fisher responded in the negative and said

to Remp, “‘this guy has this thing mistaken with these kosher meals, he wants extras

too.’” (Id. ¶ 29.) Remp responded, “‘what does he [think] this is[,] the Holiday

Inn[?]’” (Id.) A few minutes later, Fisher returned to Vasquez’s cell and gave him

a food loaf. “After Vasquez began to eat the food[ ]loaf[,] he noticed a yellowish

film on the wax bag it came in[.] He then inspected i[t] by smelling it[,] and it

smelled like urine.” (Id.) After spitting out the food loaf and yelling at Fisher and

Remp, the two “began to laugh, then Remp stated, ‘put a piss slip on that one.’” (Id.)

Vasquez asserted that two witnesses provided verified statements as to this incident.

(Id. (citing Orig. Compl. Ex. 14).) Vasquez filed a grievance for this incident,

alleging that this conduct was retaliation for his earlier grievances concerning kosher

meals, which Phillips denied, and Quigley upheld based on Fisher and Remp

denying that the incident took place. (Id. ¶ 30 (citing Orig. Compl. Ex. 15).) Based

on these averments, Vasquez asserted First Amendment retaliation, Eighth

12

Amendment cruel and unusual punishment, and battery and assault tort claims

against Fisher and Remp. (Id. ¶¶ 51, 54.)

7. First Amendment Retaliation, Failure to Protect, Supervisory Liability,

Due Process, and Tort Claims against Quigley, Smith, Castro, and Phillips

For their participation in denying grievances and appeals and participating in

ICC hearings where Vasquez brought his concerns regarding his conditions of

confinement relating to the adequacy of the exercise provided, the denial of kosher

meals, and the continual confiscation and destruction of his legal materials, Vasquez

alleged that Quigley, Smith, Castro, and Phillips all exercised deliberate indifference

to their subordinates’ conduct. Vasquez asserted that the record “demonstrated

personal involvement after being aware of a chronology of events” showing “a

substantial risk of subordinates[’] adverse action” in response to “his protected right”

of filing grievances. (Id. ¶ 49.) Vasquez also contended that their deliberate

indifference permitted the subordinate Appellees to violate his First Amendment

rights and violated the prohibition against the imposition of cruel and unusual

punishment by not protecting Vasquez from the use of excessive force or from the

imposition of unconstitutional conditions of confinement. (Id. ¶ 55.) Vasquez

alleged that this conduct violated his due process rights under the Fourteenth

Amendment and his right to be free from cruel and unusual punishment under the

Eighth Amendment and also constituted the torts of negligence, supervisory liability,

intentional infliction of emotional distress,13 and a civil conspiracy. (Id. ¶¶ 49, 55,

61, 63.)

13

Vasquez brought his intentional infliction of emotional distress claim against all

Appellees.

13

8. First Amendment, Monell, Eighth Amendment, and Due Process, and Tort

Claims against Berks County

Finally, Vasquez asserted First Amendment, Monell, Eighth Amendment, due

process, and tort claims against Berks County for allegedly adopting policies that

condoned or overlooked the conduct of subordinate Appellees, focusing again on his

conditions of confinement relating to exercise, the denial of kosher meals, and the

continual confiscation and destruction of his legal materials. Vasquez alleged that

Berks County “adopted a custom or policy with deliberate indifference [that] failed

to take necessary reasonable standards to provide care or safeguard Vasquez’s right

to free[ ]speech without retaliation from malicious[,] ill-trained prison officials” and

that its “acqui[e]scence was the moving force [that] caused the breach of duty.” (Id.

¶ 50.) Accordingly, Vasquez asserted that Berks County violated the First

Amendment and the Pennsylvania Constitution and was indirectly liable under

Monell v. Department of Social Services, 436 U.S. 658 (1978).14 Vasquez further

alleged claims against Berks County based on negligence under the theory of

respondeat superior, an Eighth Amendment violation, and a due process violation.

(Am. Compl. ¶¶ 50, 56, 62.)15

B. POs and the Trial Court’s 1925(a) Opinion

Appellees filed POs to the Amended Complaint in the nature of demurrers,

asserting that certain of Vasquez’s claims failed as a matter of law. (Preliminary

14

While the Amended Complaint did not cite to Monell, paragraph 50 employs the Monell

standard for municipal liability, and Vasquez argues this claim under Monell on appeal. (See Am.

Compl. ¶ 50.) Given the lenient pleading rules for pro se inmates and that Appellees addressed

the claim as being pleaded under Monell, we accept this claim as being brought under the same.

Madden, 482 A.2d at 1165.

15

With respect to damages, Vasquez requested compensatory damages against all

Appellees in the amount of $240,000, compensatory damages against Berks County, Quigley,

Smith, Phillips, and Castro for $95,000, and any other damages the Court deems just. (Am. Compl.

at 29-30.)

14

Objections (POs), O.R. Item 16.) First, Appellees demurred to the First Amendment

claims, arguing that Vasquez failed to plead sufficient facts to support a claim that

any of the Appellees serving as staff of Berks County Jail engaged in retaliatory

conduct towards him or that such conduct deterred him from filing grievances. (POs

¶¶ 120-29.) Second, they demurred to the excessive force claim under the Eighth

Amendment, asserting that Vasquez’s allegations surrounding the use of the spit

hood did not shock the conscience. (Id. ¶¶ 130-50.) Third, Appellees demurred to

the conditions of confinement claim under the Eighth Amendment concerning

Vasquez’s mattress restrictions, limitations on personal belongings, exercise

conditions, and food quality, arguing that the conditions described were reasonable

measurements to ensure the security and safety of the institution in light of

Vasquez’s security designation in the Delta Unit and that the food loaf provided did

not constitute the denial of minimal necessities. (Id. ¶¶ 151-77.) Fourth, they

demurred to the failure to intervene claim, contending that Vasquez failed to plead

a constitutional violation giving rise to any officers’ duty to intervene. (Id. ¶¶ 178-

88.) Finally, Appellees demurred to the Monell liability claims, arguing that

Vasquez failed to prove an underlying constitutional violation, any deficient custom,

practice, or policy that caused a violation, or that there was any pattern of similar

incidents and circumstances of the same. (Id. ¶¶ 189-210.)

After Vasquez filed an Answer to the POs and briefing, the trial court

sustained the POs and dismissed Vasquez’s Amended Complaint in its entirety with

prejudice. Vasquez appealed16 and filed a Concise Statement of Errors Complained

16

Vasquez filed a Petition for Reconsideration/Or Direct Appeal Rights Nunc Pro Tunc

(First Petition), contesting the trial court’s decision and asserting entitlement to nunc pro tunc

relief. After the First Petition was denied, Vasquez filed a second Petition for Leave to Appeal

Nunc Pro Tunc (Second Petition), which the trial court also denied. On appeal from that denial,

(Footnote continued on next page…)

15

of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b),

Pa.R.A.P. 1925(b).17 (O.R. Item 85.) The trial court then filed its opinion pursuant

to Pennsylvania Rule of Appellate Procedure 1925(a) (1925(a) Opinion), Pa.R.A.P.

1925(a). (O.R. Item 87; Vasquez’s Brief (Br.) Appendix A.)

The trial court issued its 1925(a) Opinion on January 22, 2021. Regarding

Vasquez’s contention that the POs focused only on the retaliation claims against

Dew and Johnson, the trial court determined that this issue was meritless. As for the

First Amendment retaliation claims, the trial court held that Vasquez “failed to plead

facts sufficient to support a finding that any jail staff engaged in retaliatory conduct

towards him” and that he “never engaged in any protected conduct or speech.”

(1925(a) Opinion (Op.) at 3.) Concerning the excessive force claims regarding the

spit hood filled with pepper spray, the trial court explained that “[t]here was no

evidence of pepper spray sprinkled inside the hood” and that Vasquez “admit[ted]

that he was verbally combative with the officers who were conducting the cell

search.” (Id.) The trial court next determined that Vasquez’s Monell/supervisor

liability claim against Berks County failed because Vasquez “ha[d] not pled any

facts that demonstrate[d] that Berks County was on notice of any deficiency and

we vacated and remanded, determining that there was a factual dispute warranting resolution

before the trial court as to his entitlement to nunc pro tunc relief. Vasquez v. Berks Cnty. (Pa.

Cmwlth., No. 1011 C.D. 2020, filed July 30, 2020), slip op. at 16. On remand, the trial court

granted the Second Petition, and the present appeal followed.

17

Vasquez’s 1925(b) Statement asserted the trial court erred in dismissing the Amended

Complaint because: (1) the POs did not address Vasquez’s retaliation claims against the Appellees

beyond Dew and Johnson; (2) there were disputed issues of fact surrounding Vasquez’s retaliation

claims against Dew and Johnson; (3) there were disputed issues of fact surrounding Dew and

Johnson’s alleged use of excessive force against Vasquez; (4) the POs did not address Vasquez’s

failure to intervene claims against Appellees Quigley, Smith, Phillips, and Castro; (5) there were

disputed issues of fact regarding Vasquez’s Monell/supervisor liability claims; (6) the POs did not

address Vasquez’s claim regarding inadequate exercise policies; and (7) the POs did not address

Vasquez’s due process or tort claims. (O.R. Item 85.)

16

failed to act” and, “absent a constitutional violation[,] the derivative issue of a

deficient custom, practice[,] or policy is irrelevant,” especially as Vasquez “ha[d]

not shown any deficient policies.” (Id. at 4.)

Next, the trial court found frivolous Vasquez’s claim that the POs failed to

address his condition of confinement claim concerning inadequate exercise policies

rendered any such challenge waived, especially given Vasquez’s “history of serious

disciplinary infractions” and his placement “in the section of the jail that has

heightened safety and security measures.” (Id. at 5.) Finally, the trial court rejected,

as without merit, Vasquez’s position that any challenges to the due process or tort

claims were waived based on the POs failure to address or object to those claims

because the Amended Complaint was procedurally deficient due to its failure to set

forth separate counts for Vasquez’s claims for relief. Nevertheless, even if the

Amended Complaint was procedurally sufficient, the trial court concluded that those

additional claims “rel[ied] on the validity of the constitutional claims to have merit,”

there were no due process violations, and “[t]here cannot be any torts if [no] duty is

owed.” (Id.) For these reasons, the trial court submitted that it properly sustained

the POs and dismissed the Amended Complaint.

II. DISCUSSION

“[T]he question presented in a demurrer is whether, on the facts averred, the

law indicates with certainty that no recovery is possible. In reviewing a [trial] court’s

decision to grant a demurrer, our Court’s standard of review is de novo.” Stilp v.

Gen. Assembly, 974 A.2d 491, 494 (Pa. 2009) (citations omitted). Thus, we will

affirm a trial court’s order sustaining preliminary objections and dismissal of a

complaint “only in cases that are clear and free from doubt that the law will not

permit recovery” by the appellant. Cap. City Lodge No. 12, Fraternal Ord. of Police

17

v. City of Harrisburg, 588 A.2d 584, 586-87 (Pa. Cmwlth. 1991). In ruling on

preliminary objections in the nature of a demurrer, this Court accepts as true all well-

pleaded facts in the complaint and draws all inferences reasonably deducible

therefrom in favor of the nonmoving party. Stone & Edwards Ins. Agency, Inc. v.

Dep’t of Ins., 616 A.2d 1060, 1063 (Pa. Cmwlth 1992). However, we “need not

accept as true conclusions of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion.” Id. (citing Dep’t of Pub. Welfare v. Portnoy,

566 A.2d 336 (Pa. Cmwlth. 1992)). And, in the face of doubt, our resolution should

be in favor of reversing the grant of the demurrer. City of Philadelphia v. Rendell,

888 A.2d 922, 928 n.17 (Pa. Cmwlth. 2005). With these standards in mind, we turn

to the issues Vasquez raises on appeal.

A. First Amendment Retaliation Claims against Dew and Johnson

1. Parties’ Arguments

Vasquez first argues18 that the trial court erred in sustaining Appellees’

demurrer to his First Amendment retaliation claim against Dew and Johnson.

Vasquez asserts that the Amended Complaint sufficiently stated a claim under the

four-prong test for First Amendment retaliation. (Vasquez’s Br. at 24 (citing Yount

v. Pa. Dep’t of Corr., 966 A.2d 1115 (Pa. 2009)).) Citing Bush v. Veach, 1 A.3d 981

(Pa. Cmwlth. 2010), Vasquez submits that the allegations that Dew constantly

confiscated and destroyed his legal materials pursuant to an allegedly nonwritten or

18

On appeal, Vasquez does not assert any argument regarding the trial court’s dismissal of

his First Amendment retaliation claim against Tassone and Matta. An appellant must develop

claims with citation to the record and relevant case law, and a failure to do so will result in waiver.

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). See Pennsylvania Rule of Appellate

Procedure 2101, 2111, and 2119, Pa.R.A.P. 2101 (explaining that substantial briefing defects may

result in dismissal of appeal), 2111, & 2119 (listing requirements for appellate briefs).

Accordingly, Vasquez has waived any appeal of the dismissal of that claim.

18

nonexistent policy and that Johnson imposed arbitrary seven-day mattress

restrictions establish sufficient adverse actions to state a claim. (Id.) While Vasquez

recognizes that Johnson and Dew’s conduct “did not deter Vasquez from utilizing

the grievance system” he “highlight[s] that had [he] not grieved those incidents or

built a documented history[, t]here would be no record showing Dew and

Johnson[’s] behavioral patterns.” (Id. at 25.) Further, Vasquez argues that “a

ca[u]sal relationship may be appropriately established by evidence of a ‘temporal

proximity’ between the [inmate’s] and [] [the d]efendant’s adverse action only when

the ‘timing of the alleged retaliatory action [was] unusually suggestive of retaliatory

motive.’” (Id. at 27 (quoting Yount, 966 A.2d at 1122).)

Vasquez also asserts that, under Farrell v. Planters Lifesavers Co., 206 F.3d

271, 280-81 (3d Cir. 2000),19 there are other factors relevant to this inquiry, such as

“evidence of ‘intervening antagonism’ between the exercise of the protected speech

and the adverse action” and “evidence of ‘inconsistent reasons’ for the motivation.”

Id. Vasquez argues that these factors are satisfied in the present case because the

Amended Complaint: (1) established a timeline of events showing that Dew and

Johnson’s retaliatory conduct occurred relatively close to his filing of grievances and

appeals therefrom; (2) contained allegations of intervening antagonism, such as

Dew’s statements to Vasquez that he was wasting his time with grievances, and Dew

and Johnson’s alleged assault with the spit hood filled with pepper spray, including

Dew’s statement during that alleged incident; and (3) alleged that Dew’s unit actions

against Vasquez were arbitrary because they were based on items found in every

inmate’s cell during the search and that Dew’s unit action against Vasquez for having

19

While the decisions of federal circuit and district courts are not binding on this Court,

they may be cited for their persuasive value. Kutnyak v. Dep’t of Corr., 923 A.2d 1248, 1250 (Pa.

Cmwlth. 2007).

19

two mattresses was false. Finally, as for serving a penological interest, Vasquez

argues that a prison rule or policy must be “reasonably related to a legitimate

penological interest [] and may not represent an exaggerated response to those

concerns.” (Id. at 31 (quoting Turner v. Safley, 482 U.S. 78, 96 (1987)) (internal

quotations omitted).) Vasquez asserts that “[t]he legal material posed no security

threat to the jail,” the restriction “was merely a means toward him learning the legal

system and participating with his attorney in his pending criminal case,” and, given

that the one-inch rule for legal material was not in any policy provided to Vasquez,

this arbitrary conduct was not reasonably related to serving any penological interest

and did not justify treating inmates on Delta Unit different than others. (Id. at 32-

34.)

Appellees respond that the trial court properly dismissed Vasquez’s First

Amendment retaliation claim because Vasquez failed to state a claim. (Appellees’

Br. at 19.) Appellees argue that Vasquez failed to plead sufficient facts to show that

there was any retaliation or adverse action or that there was any causal connection

between the alleged retaliation and the protected activity, the use of the grievance

system, as Vasquez’s “Amended Complaint only includes conclusory allegations

that the unit citations he received were in retaliation for his filing grievances.” (Id.

at 21.) Moreover, because the record shows that Vasquez continued to file

grievances and appeals from the decisions to those grievances, and Vasquez

conceded that the alleged conduct “‘did not deter [him] from utilizing the grievance

system,’” Appellees argue that Vasquez cannot show that adverse action occurred.

(Id. at 20-21 (quoting Vasquez’s Br. at 25).) Further, Appellees submit that Vasquez

failed to demonstrate that the “retaliatory action d[id] not advance legitimate

penological goals,” as required for First Amendment retaliation claims. (Id. at 20

20

(citing Yount, 966 A.2d at 1121) (internal quotations omitted).) Accordingly,

Appellees maintain that the trial court properly dismissed Vasquez’s First

Amendment retaliation claims against Dew and Johnson.

In Vasquez’s reply brief, Vasquez responds that, although the retaliatory

conduct did not completely deter Vasquez from filing grievances, the retaliatory

conduct nonetheless constituted adverse action. Vasquez maintains that he

sufficiently pleaded a causal connection by showing that he “repeatedly alerted

supervisors that he was being retaliated against for using the grievance system,”

including by identifying the grievance incidents by number. (Vasquez’s Reply Br.

at 1-2.)

2. Analysis

The Pennsylvania Supreme Court has explained:

Retaliation claims are guided by the United States Supreme Court’s

decision in Turner[,] 482 U.S. [at] 78[,] which held “courts are ill

equipped to deal with the increasingly urgent problems of prison

administration . . . ,” and great deference must be accorded to the

administrative determinations of prison officials.

Yount, 966 A.2d at 1119. In Yount, our Supreme Court held that to state a First

Amendment retaliation claim, a plaintiff must aver sufficient facts to show: (1) the

inmate engaged in constitutionally protected conduct; (2) the prison officials’

retaliation against that conduct resulted in an adverse action against the inmate; (3)

the constitutionally protected conduct was a substantial or motivating factor for the

retaliation; and (4) the retaliatory action did not further a legitimate penological goal.

Id. at 1120; see also Richardson v. Wetzel, 74 A.3d 353, 357 (Pa. Cmwlth. 2013).

Accordingly, we apply the four prongs of the Yount test to Vasquez’s allegations in

21

the Amended Complaint to determine if the trial court erred in sustaining the PO and

dismissing these claims.

As for the first prong, in stating a claim for First Amendment retaliation

against prison officials under Section 1983, an inmate need not prove that he was

denied an independent liberty interest; rather, the inmate must make the threshold

showing that he engaged in constitutionally protected conduct that then led to

retaliation by prison officials. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). It

is well settled that the filing of administrative grievances by an inmate concerning

actions by prison officials or conditions of confinement invokes the First

Amendment right of access to the courts. Yount, 966 A.2d at 1121; Bush, 1 A.3d at

985. Accordingly, as Vasquez has alleged that his filing grievances against Dew,

Johnson, and some of the other Appellees led to the retaliatory conduct of Dew and

Johnson, Vasquez has sufficiently pleaded facts to satisfy the first prong of the Yount

test, and the trial court erred in determining that Vasquez “never engaged in any

protected conduct or speech.” (1925(a) Op. at 3.)

The second prong requires a showing that the retaliation against

constitutionally protected conduct resulted in adverse action. For purposes of a

retaliation claim, an adverse action is “one which is ‘sufficient to deter a person of

ordinary firmness from exercising his [constitutional rights.]’” Yount, 966 A.2d at

1121 (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)) (alteration in

original). “Where a plaintiff advances a colorable, but not necessarily

incontrovertible, argument he was subjected to adverse action, the issue is best

resolved by the fact-finder.” Id. In Yount, an inmate averred retaliation in the form

of a prison transfer after he brought a lawsuit against the Pennsylvania Department

of Correction’s (DOC) telecommunication provider for overcharging inmates, which

22

the inmate alleged had “interfered with and denied his right of access to the courts.”

Id. at 1117. In considering whether such an alleged transfer rose to an adverse action

for the purpose of First Amendment retaliation, our Supreme Court held: “Although

it is possible that in some cases [a transfer] would not deter a prisoner of ordinary

firmness from exercising his or her [constitutional right to access the courts], we

cannot say that such action can never amount to adverse action.’” Id. at 1121

(quoting Seiverling, 229 F.3d at 225) (internal quotations omitted; alterations in

original).

Focusing first on Vasquez’s retaliation claim against Dew for confiscating and

destroying his legal materials, Appellees argue that the record demonstrates that

Vasquez was not deterred from filing grievances and, moreover, that Vasquez

conceded the same. Vasquez acknowledges that Dew and Johnson’s conduct “did

not deter [him] from utilizing the grievance system.” (Vasquez’s Br. at 25.) While

Vasquez conceded he has not been deterred, dismissing an inmate’s claims of

unconstitutional retaliation on that concession alone would be inconsistent with

Yount, which requires only that the adverse action be “sufficient to deter a person

of ordinary firmness from exercising his [constitutional rights.]” 966 A.2d at 1121

(emphasis added; internal marks omitted). Under this objective standard, “[t]he

relevant question is whether the defendant[’s] actions are capable of deterring a

person of ordinary firmness; there is no requirement that the plaintiff show actual

deterrence.” Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (citations and

quotations omitted; emphasis added). Accordingly, that Vasquez himself was not

23

actually deterred does not mean that he has not sufficiently pleaded that there was

adverse action.20

Appellees maintain that Vasquez cannot establish adverse action because he

“was limited to one inch of legal materials in his cell and was able to exchange these

materials for additional legal paperwork kept in his separately stored kickbox.”

(Appellees’ Br. at 41 (citing Orig. Compl. Ex. 17; Am. Compl. Ex. B).) Thus, any

“adverse” action was the result, Appellees argue, of the violation of this policy and

not because of Vasquez’s engagement in constitutionally protected activity.

However, the cited exhibits simply contain Smith’s responses to Vasquez’s

grievances, explaining that Vasquez was limited to one inch of legal material and

could ask to exchange materials as needed. (See id.) Smith pointed to no policy in

those responses that authorize this restriction. (See Orig. Compl. Ex. 17; Am.

Compl. Ex. B.) Vasquez avers there is no such policy and, if there is, it is not a

written one provided to the inmates, citing Exhibits 1 (Inmate Handbook) and 17 (an

ICC Report) of the Original Complaint, which do not include or point to any such

20

While this Court has held, in two unreported opinions, that an inmate did not establish

an adverse action under Yount based on the confiscation and destruction of legal materials because

the inmate continued to file lawsuits and grievances and the challenged conduct was authorized

by DOC’s policy, those cases are distinguishable. See Jordan v. Overmyer (Pa. Cmwlth., No. 1863

C.D. 2017, filed June 29, 2018) (Jordan II), slip op. at 6-8; Jordan v. Pa Dep’t of Corr. (Pa.

Cmwlth., No. 416 M.D. 2016, filed July 21, 2017) (Jordan I), slip op. at 5-6. In Jordan I and

Jordan II, an inmate alleged that prison officials had unconstitutionally confiscated boxes of his

legal material in retaliation for filing numerous civil lawsuits and grievances. Recognizing that

the inmate had invoked the constitutional right of access to the courts, this Court nevertheless

determined that the inmate failed to meet the second prong of the Yount test because the inmate

was especially litigious, including filing numerous civil actions, and because the officials had

confiscated the legal materials pursuant to DOC’s established policies, which gave facility

managers the discretion to allow, or not, inmates to have extra boxes of legal materials in their

cell. Jordan I, slip op. at 5; Jordan II, slip op. at 6 n.4. Here, in contrast, the “litigation” in which

Vasquez concedes he is continuing are grievances related to the ongoing retaliation, and the

one-inch rule used as justification is alleged to be either nonexistent or unwritten.

24

policy. (See Orig. Compl. Exs. 1, 17.) Accepting as true Vasquez’s averment that

there was no established policy restricting inmates in Delta Unit to one inch of legal

material, Stone & Edwards, 616 A.2d at 1063, the alleged rule violation cannot be a

basis for the dismissal of Vasquez’s retaliation claim based on a lack of adverse

action.

This is consistent with decisions of numerous federal courts, which have

found adverse action based on the retaliatory seizure of legal documents. See Bell,

308 F.3d at 604 (collecting cases). The United States Circuit Court of Appeals for

the Sixth Circuit (Sixth Circuit), has determined that

[t]he fact that [the] defendants repeatedly stole plaintiff’s legal papers

certainly had the potential to directly impede his pursuit of his claim,

and may have caused others to believe that any efforts they may expend

in preparing legal claims would be wasted since any materials they

prepared could be easily destroyed or confiscated.

Id. at 605. The Sixth Circuit found “no basis for concluding that inmates should be

required to tolerate the theft of their property, including legal documents . . . , as the

price of petitioning the courts.” Id.

Here, Vasquez alleged that “Dew had a history of retaliating and harassing

[him] for utilizing the grievance system against Dew,” who “would regularly

confiscate and destroy Vasquez’s legal materials,” and attached grievances, appeals,

and affidavits as a means of corroborating that averment. (Am. Compl. ¶¶ 13-14,

Ex. 3.) Like the inmate in Bell, Vasquez consistently alleged throughout the

Amended Complaint that Dew “repeatedly stole [his] legal papers.” 308 F.3d at 604.

Similar to the Sixth Circuit, we discern “no basis for concluding that [Vasquez]

should be required to tolerate the theft of [his] property . . . , as the price of petitioning

the courts” and filing grievances for the same conduct, especially given that Vasquez

25

here alleges that same repeated conduct from Dew. Id. Accordingly, accepting as

true the allegations that Dew repeatedly confiscated and destroyed Vasquez’s legal

materials in response to Vasquez filing grievances, Stone & Edwards, 616 A.2d at

1063, and there was no established prison policy limiting legal materials to one inch,

Vasquez has “advance[d] a colorable, but not necessarily incontrovertible, argument

he was subjected to adverse action.” Yount, 966 A.2d at 1121. Therefore, Vasquez

has sufficiently alleged a prima facie showing of an adverse action as to his

retaliation claim against Dew.

Turning to the third prong of the Yount test, an appellant must demonstrate a

causal relationship between the constitutionally protected conduct and the alleged

adverse action, showing that the conduct was a substantial or motivating factor for

the retaliation. This showing may be accomplished by establishing evidence of a

temporal proximity between the protected activity and the adverse action such that

the “timing of the alleged retaliatory action [is] unusually suggestive of retaliatory

motive.” Yount, 966 A.2d at 1122 (alteration in original; quotation omitted). In

Yount, our Supreme Court determined that an eight-month delay between the

inmate’s protected activity, which was commencement of litigation, and the adverse

action, which was his transfer to a different prison, did not show a sufficient causal

relationship. Id. at 1121. In Farrell, upon which Vasquez relies, the United States

Court of Appeals for the Third Circuit (Third Circuit) explained that, “[a]lthough

timing and ongoing antagonism have often been the basis for the causal link, our

case law clearly has allowed a plaintiff to substantiate a causal connection for

purposes of the prima facie case through other types of circumstantial evidence

that support the inference.” 206 F.3d at 280-81 (emphasis added). The Third

26

Circuit held that the other types of circumstantial evidence that support such an

inference includes intervening antagonism. Id. at 281.

While Farrell focused on retaliation in the employment setting, Justice Todd

recognized in her concurring Opinion in Yount, which was joined by then-Chief

Justice Castille and now-Chief Justice Baer, that the law on employment retaliation

has been applied in the inmate setting by numerous federal circuit courts. Yount,

966 A.2d at 1124 (Todd, J., concurring). Justice Todd noted that “[w]here temporal

proximity alone does not support an inference of causation, courts considering

employment cases have traditionally looked to whether the period between the

protected conduct and the adverse action was marked by ongoing antagonism.” Id.

at 1128 n.7 (citing Farrell, 206 F.3d at 279). Additionally, in Watson v. Rozum, 834

F.3d 417, 424 (3d Cir. 2016), the Third Circuit applied the Farrell approach for

causal relationship to a retaliation claim by an inmate. The Third Circuit clarified

that “[w]here the temporal proximity is not so close as to be unduly suggestive, the

appropriate test is timing plus other evidence.” Id. (internal quotations omitted).

There, the inmate alleged to have been issued a false misconduct after requesting a

grievance form, where there was a six-hour gap between the two incidents.

However, the Third Circuit also considered the inmate’s allegation that the officer

who issued the misconduct was writing the inmate up for giving him a “hard time”

and not being “polite.” Id. Focusing on the officer’s statements to the inmate rather

than the temporal proximity, the court held that the inmate had “established a prima

facie case against [the officer], because there is a genuine issue of material fact as to

whether [the inmate’s] decision to file a grievance motivated [the officer] to charge

him with misconduct.” Id. Accordingly, under this approach, ongoing and

27

intervening antagonism may establish causal connection where temporal proximity

alone is insufficient.

Given the nature of pro se inmate litigation and the difficulty of establishing

a close temporal proximity in the case-specific circumstances where the inmate

alleges repeated conduct in retaliation to grievances and appeals over a long period

of their incarceration, the Third Circuit’s approach is persuasive. Applying that

approach to these facts, Vasquez has sufficiently averred facts, which we accept as

true at this stage, that could establish a causal relationship between his filing of

grievances and Dew’s confiscation and destruction of his legal materials. First,

looking to the temporal proximity between Vasquez’s initial July 9, 2014 grievance

against Dew for confiscating and destroying his legal materials and the repeated

conduct on January 8, 2015, there is an approximate six-month gap between the

initial grievances and that adverse action. While this temporal proximity is not by

itself indicative of a causal relationship under our precedent, Yount, 966 A.2d at

1121, Vasquez also alleged that, after he filed a grievance on January 9, 2015,

concerning that conduct, Dew came by his cell and stated, “‘[y]ou’re wasting your

time with those grievances, this isn’t Philadelphia[.] [W]e do things a little different

in Berks County.’” (Am. Compl. ¶ 15.) Vasquez further alleged that on January 27,

2015, Dew returned and issued him a baseless unit action and placed him on a seven-

day mattress restriction. Vasquez also points to the incidents in June and July 2015,

where Dew confiscated legal materials after the culmination of Vasquez’s appeal of

the denied grievance against Fisher and Remp and after he had requested the correct

meal, respectively.

While the temporal proximity presented by this timeline, alone, may be

insufficient to establish that the “timing of the alleged retaliatory action [wa]s

28

unusually suggestive of retaliatory motive,” Yount, 966 A.2d 1122, the allegations

of Dew’s ongoing and intervening antagonism during the time period sufficiently

suggests a causal relationship. Dew’s alleged statement to Vasquez that Vasquez

was “wasting his time with those grievances” is the clearest indication of Dew’s

motivation for his conduct, (Am. Compl. ¶ 15), especially given that Vasquez

alleged that Dew would continuously confiscate and destroy Vasquez’s legal

materials shortly after he filed a grievance or when the appeal process from a

previous grievance had terminated. Similar to how the officer’s statements in

Watson, 834 F.3d at 424, that the inmate had been giving the officer a “hard time”

and was not being “polite” raised a question of fact as to whether the officer’s

motivation in issuing the misconduct stemmed from the inmate’s use of the

grievance system, Dew’s alleged statement to Vasquez and Vasquez’s allegations

that Dew’s conduct repeatedly followed grievances are sufficient to establish a prima

facie showing that Vasquez’s filing of grievances “was a substantial or motivating

factor for the” retaliation, Yount, 966 A.2d at 1120.

Finally, the fourth prong of the Yount test requires the appellant to

affirmatively disprove a legitimate penological goal. This final prong is designed to

prevent any “‘potential for abuse’ inherent in retaliation claims and also [to promote

the] policy of judicial deference to the prison officials’ ‘legitimate interest in

effective management of a detention facility.’” Richardson v. Wetzel, 74 A.3d 353,

357 (Pa. Cmwlth. 2013) (quoting Yount, 966 A.2d at 1120-21). “‘Claims of

retaliation fail if the alleged retaliatory conduct violations were issued for the actual

violation of a prison rule.’” Horan v. Newingham (Pa. Cmwlth., No. 2622 C.D. 2015,

filed Oct. 24, 2016), slip op. at 9 (quoting Hartsfield v. Nichols, 511 F.3d 826, 829

29

(8th Cir. 2008)).21 “‘Thus, a defendant may successfully defend a retaliatory

discipline claim by showing some evidence the inmate actually committed a rule

violation.’” Id.

In Hackett v. Horn, 751 A.2d 272, 275 (Pa. Cmwlth. 2000), this Court

considered a similar issue when determining whether a DOC rule limiting the

amount of legal materials that may be kept in a cell to 1 box and 10 law books was

challenged on due process grounds. Considering whether the rule was reasonably

related to legitimate penological interests, such as safety or security, the Court found

that the limitations on legal materials authorized by an official policy were

reasonably related to those penological goals because “[i]f the inmates were allowed

to keep as much material as desired, an obvious fire hazard would be created. This

is especially true where inmates are locked in their cells.” Id. “Moreover, an

excessive amount of material in the cell provides an opportunity to hide contraband.”

Id. Thus, some restrictions on the legal material that inmates may keep in their cells

authorized by established prison rules and policies further the penological goals of

safety and security.

Here, Appellees argue that Vasquez failed to plead that the conduct did not

serve a penological goal and that his Brief did not sufficiently expand on the

argument. As to the Amended Complaint, we disagree that Vasquez failed to plead

or to address the issue in his Brief sufficiently. Vasquez pleaded that the one-inch

rule was not an actual policy but an “unwritten,” “silent policy” not provided in any

of the handbooks or rules provided to him, which served “no legitimate penological

interest,” “was excessive in light of managing and maintaining order and security,”

21

Pursuant to Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and

Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), an

unreported opinion of this Court, while not binding, may be cited as persuasive.

30

and was “designed as a form of punishment and a way to withhold Vasquez from

reasonably accessing the courts to litigate his cases.” (Am. Compl. ¶¶ 9, 35.)

Further, in his Brief, Vasquez argues that “[t]he legal material posed no security

threat to the jail,” “was merely a means toward him learning the legal system and

participating with his attorney in his pending criminal case,” and, given that the one-

inch rule for legal material was not in any policy provided to Vasquez, the

confiscation of “excess” legal material was arbitrary conduct not reasonably related

to serving any penological interest and did not justify treating inmates on Delta Unit

different than others. (Vasquez’s Br. at 32-34.) Thus, while not especially

developed, Vasquez’s allegations did not completely fail to address this prong of the

Yount test.

Accepting his averments as true, Vasquez has sufficiently pleaded that the

one-inch rule here was not pursuant to any policy and that there is no reasonable

penological goal served by restricting legal materials in inmates’ cells to one inch.

Unlike Hackett and Horan, Appellees have pointed to no official rule or policy in

the record that authorized Dew to confiscate Vasquez’s legal materials for being

over one inch. Moreover, unlike the entire box of legal material that was permitted

to inmates pursuant to the policy in Hackett, the restriction here allows inmates one

inch of legal material. While limiting inmates to a single box of legal materials may

serve the penological interest of safety where multiple boxes could create a safety

issue in the event of a fire or other emergency or as a means of hiding contraband, it

is not as clear that limiting inmates to a single inch of legal materials accomplishes

the same. In the face of doubt, at this stage, we must resolve this question in favor

of reversing the grant of demurrer. City of Philadelphia, 888 A.2d at 922 n.17.

31

Accordingly, Vasquez has sufficiently pleaded facts that satisfy the fourth prong of

the Yount test as to Dew.

However, applying the Yount prongs to Vasquez’s allegations against

Johnson, we agree with the trial court that Vasquez did not state a claim for

retaliation. Unlike the confiscation and destruction of legal materials, it is not as

clear whether a temporary removal of a mattress constitutes adverse action.

Compare Anderson v. Warden of Berks Cnty. Prison, 602 F. App’x 892, 894-95 (3d

Cir. 2015) (reinstating a retaliation claim that involved the removal of a mattress),

with Branch v. Bauman, No. 2:12-CV-16, 2014 WL 413512 (W.D. Mich. Feb. 4,

2014) (temporary removal of mattress was not an adverse action because it would

not deter a person of ordinary firmness). As it is not clear that such a claim could or

could not constitute an adverse action, the lack of adverse action may not support

the sustaining of the demurrer on this basis. However, reviewing the allegations

against the remaining prongs of the Yount test, Vasquez failed to allege sufficient

facts to show a causal connection between this alleged adverse action and his filing

of grievances so as to sufficiently plead that his filing of grievances motivated

Johnson’s conduct. Absent from those allegations are claims of temporal proximity

or ongoing and intervening antagonism associated with Vasquez’s engaging in a

constitutionally protected right and Johnson’s actions. Finally, Vasquez did not

allege that the mattress restriction, which is a restriction set forth in the Inmate

Handbook, (Orig. Compl. Ex. 1 at 2-3), for inmates in Disciplinary Segregation on

Delta Unit, did not further any penological goal. Thus, Vasquez has not sufficiently

pleaded facts that would support a finding that two of the Yount prongs were met

against Johnson.

32

For the foregoing reasons, because Vasquez sufficiently stated a prima facie

case under Yount for a First Amendment retaliation claim against Dew for the

repeated confiscation and destruction of Vasquez’s legal materials, the trial court

erred in sustaining the PO and dismissing that claim. However, because Vasquez

failed to do the same for Johnson based on the issuance of the mattress restrictions,

the trial court did not err in dismissing this claim.

B. Excessive Force Claim against Johnson and Failure to Intervene Claim

against Dew

1. Parties’ Arguments

Vasquez next argues22 that the trial court erred in dismissing his claim that

Johnson’s conduct constituted excessive force in violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment and that Dew failed

to protect him. Vasquez asserts that “[t]he core judicial inquiry is not whether a

certain quantum of injury was sustained, but rather whether[] force was applied in

[a] good faith effort to maintain or restore discipline, or malicious and sadistic to

cause harm.” (Vasquez’s Br. at 35 (citing Wilkins v. Gaddy, 559 U.S. 34 (2010)).)

Vasquez maintains that Johnson’s conduct in “unprovokingly [sic] plac[ing] a spit[

]hood over Vasquez[’s] head filled with pepper[ ]spray,” ordering him to his knees,

and forcing him to “remain[] in that position suffocating for several minutes”

constituted excessive force. (Id. at 36.) Vasquez argues that the trial court’s denial

of this claim on the basis that “there was no evidence that pepper[]spray was

sprinkled inside the spit[ ]hood” was contrary to the allegations, as “seven witnesses

issued statements that Vasquez was coughing and repeated that his eyes were

22

Vasquez does not assert any argument in his appeal regarding the trial court’s dismissal

of his Eighth Amendment excessive force claim against Fisher and Remp. As such, Vasquez has

waived any appeal of the dismissal of that claim. Johnson, 985 A.2d at 924; Pa.R.A.P. 2101, 2111,

& 2119.

33

burning.” (Id. (citing Orig. Compl. Ex. 27).) Vasquez contends that whether the

spit hood contained pepper spray constitutes a disputed fact that should have been

decided by a jury. As for Dew’s failure to intervene with regard to Johnson’s use of

excessive force through the spit hood containing pepper spray, Vasquez argues that

officers are liable under Section 1983 for failing to intervene when an

unconstitutional use of force occurs in their presence and the officers had a realistic

and reasonable opportunity to intervene. (Id. at 37 (citing Byrd v. Clark, 783 F.2d

1002, 1007 (11th Cir. 1986); Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002)).)

Vasquez maintains that Dew “had every opportunity to intervene [into] Johnson[’]s

use of excessive force[,] but he did not.” (Id.)

Appellees respond that, in order to state a claim for excessive force, it must

be shown that: (1) the force was not “applied in a good faith effort to maintain or

restore discipline [but] maliciously and sadistically to cause harm,” Whitley v.

Albers, 475 U.S. 312, 320-21 (1986); and (2) “the prison official’s conduct was

sufficiently serious to violate ‘contemporary standards of decency,’” Hudson v.

McMillian, 503 U.S. 1, 8 (1992). (Appellees’ Br. at 24-25.) Appellees maintain that

the trial court did not err in dismissing this claim because “the use of the spit hood

by [Johnson] was a good faith effort to maintain discipline and does not shock the

conscience.” (Id. at 26.) Moreover, Appellees assert that “[t]he Exhibits referenced

in the Amended Complaint demonstrate that no such excessive force was levied

against” Vasquez. Instead, these Exhibits allegedly show that Vasquez was

“verbally abusive towards” Dew and Johnson, which justified the use of the spit

hood, even though this conduct was not necessarily combative, because it could have

escalated to a threatening situation. (Id. at 26-27 (citing Orig. Compl. Exs. 28, 29).)

34

In his reply brief, Vasquez asserts that “Appellees are attempting to minimize

Dew and Johnson’s actions,” that Johnson’s response to a comment Vasquez made

to another inmate was an exaggerated response, and that Vasquez “did not display

any exigent or aggressive behavior toward Johnson [or] Dew[] [that] would justify

a use of force.” (Vasquez’s Reply Br. at 3.) Further, Vasquez contends that Dew’s

statement to not “cry now” shows Dew’s culpable state of mind. (Id. at 4.) Vasquez

argues that Appellees ask this Court to solely focus on the response from supervisors

who responded to Vasquez’s grievance as to this issue while ignoring the numerous

witness statements describing the incident. Vasquez maintains that there “are

disputable facts that should be left for a jury to decide.” (Id. at 4.)

2. Analysis

a. Excessive Force Claim against Johnson

The Eighth Amendment to the United States Constitution protects against the

infliction of “cruel and unusual punishments.” U.S. CONST. amend. VIII. The

United States Supreme Court has interpreted the Eighth Amendment to protect

inmates against “the unnecessary and wonton infliction of pain.” Whitley, 475 U.S.

at 320. However, “[n]ot every governmental action affecting the interests or well-

being of a[n] [inmate] is subject to Eighth Amendment scrutiny.” Id. at 319.

Nonetheless, prison guards who maliciously and sadistically use force against an

inmate violate contemporary standards of decency even if the resulting injuries are

not significant. Hudson, 503 U.S. at 9.

Two requirements must be met to establish that a prison official has violated

the Eighth Amendment by inflicting excessive force against an inmate. Farmer v.

Brennan, 511 U.S. 825, 834 (1994). First, the objective component requires that the

“deprivation alleged [] be, objectively, sufficiently serious” to constitute a denial of

35

the “minimal civilized measure of life’s necessities.” Id. (internal quotations

omitted). The Supreme Court has made clear that an injury is sufficiently serious

for purposes of the objective component as long as it rises above the level of de

minimis harm. See Hudson, 503 U.S. at 9-10 (rejecting that minor injuries are not

actionable under the Eighth Amendment). Second, there is a subjective component,

as “only the unnecessary and wanton infliction of pain implicates the Eighth

Amendment”; it must be shown that a prison official acted with a “sufficiently

culpable state of mind.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S.

294, 303 (1991)). Excessive force claims under the Eighth Amendment require a

heightened mental state, that the prison official applied force “maliciously and

sadistically for the very purpose of causing harm.” Id. at 835.

“[I]t is well[ ]established that the use of chemical agents[, such as pepper

spray,] on recalcitrant prisoners is not per se unconstitutional.” Thomas v. Bryant,

614 F.3d 1288, 1310 (11th Cir. 2010). However, federal circuit courts have held

“that where chemical agents are used unnecessarily, without penological

justification, or for the very purpose of punishment or harm, that use satisfies the

Eighth Amendment’s objective harm requirement.” Id.

For instance, in Iko v. Shreve, 535 F.3d 225, 239-40 (4th Cir. 2008), the United

States Court of Appeals for the Fourth Circuit (Fourth Circuit) held that an inmate

had sufficiently stated a claim that a prison official used excessive force in violation

of the Eighth Amendment by applying pepper spray while removing an inmate from

his cell because the official continued to spray even after the inmate attempted to

comply and then did not change the inmate’s clothing, remove the spit mask, or

secure any medical treatment. The Fourth Circuit “easily conclude[d]” that the

objective component of the excessive force claim was established by such an

36

application of pepper spray to a compliant inmate. Id. at 239. The Iko Court then

applied the following “four non-exclusive factors to assist courts in assessing

whether an officer has acted with ‘wantonness’”:

(1) “the need for the application of force”; (2) “the relationship between

the need and the amount of force that was used”; (3) the extent of any

reasonably perceived threat that the application of force was intended

to quell; and (4) “any efforts made to temper the severity of a forceful

response.”

Id. (quoting Whitley, 475 U.S. at 321).

Looking to the first factor, the Iko court held that there was “no question that

some dispersal of pepper spray was [initially] warranted in carrying out the cell

extraction” where the inmate was noncompliant with directives to exit the cell. Id.

As for the second factor, however, the court determined that there was a question as

to whether the inmate was complying with the official’s orders when the official

chose to continue applying bursts of pepper spray. In applying the third factor, the

court held that the fact that the inmate was complying when the official continued

to use pepper spray was also relevant, as after the inmate began complying, the need

for force was no longer reasonable to any perceived threat to the official. Id. at 239-

40. Finally, considering the fourth factor, the court held that the fact that the official

did not change the inmate’s clothing, remove the spit mask, or secure any medical

treatment showed that there were not sufficient efforts to temper the forceful

conduct. Id. at 240. Accordingly, the court determined that three of the four factors

supported a determination that the subjective component of the excessive force claim

was satisfied. Id.

In Thompson v. Virginia, 878 F.3d 89, 100 (4th Cir. 2017), the Fourth Circuit

applied the factors where the inmate allegedly complied from the beginning of the

37

interaction. In that case, the facts alleged showed that the defendant prison officials

never had any need to use force against an inmate because the inmate had complied

with all instructions leading up to the use of force. Under those circumstances, the

Fourth Circuit held that there was no basis for the use of force and that the first factor

was met. Id. at 99-100. The court determined that the second factor weighed in the

inmate’s favor “because there was no need to use force [due to the inmate’s

compliance], the force used was necessarily excessive in relation to the need.” Id.

at 100. The court likewise concluded that the third factor favored the inmate because

the officials had not asserted that the inmate was a threat to anyone, and the facts

presented showed that he posed no threat given that he was restrained. Id. The court

held the fourth factor was a draw, as the officials obtained medical assistance for the

inmate after the incident. Id. Balancing the factors, the court concluded that the

inmate had sufficiently alleged an Eighth Amendment excessive force claim. Id. at

101-02.

We now apply these factors to the facts alleged in the present case. Looking

first to the objective component, Vasquez alleged that Dew and Johnson came to his

cell, directed him to cuff up, Vasquez complied, and his hands were cuffed behind

his back, and he exited the cell. (Am. Compl. ¶ 37.) After a fellow inmate inquired

what was going on, Vasquez responded to the other inmate that “these guys are on

their b.s. again.” (Id.) Notwithstanding that Vasquez had complied, Vasquez

alleged that Johnson replied, “you know what[,] I’m tired of your shit,” and then

placed a bag filled with pepper spray over Vasquez’s head. (Id.) Vasquez further

alleged that Johnson then ordered him to get on his knees, his eyes began burning,

he was gasping for air, and he was left in that position for several minutes having

trouble breathing. (Id.) The trial court dismissed this claim on the basis that there

38

was no evidence that there was pepper spray inside the spit hood; however, this

disregarded Vasquez’s well-pleaded averments, which must be accepted as true.

Stone & Edwards, 616 A.2d at 1063. Further, while Appellees assert that the use of

the spit hood does not rise to a sufficiently serious deprivation and that its use was

justified, neither the POs nor Appellees’ Brief refer to the spit hood as having been

filled with pepper spray. Unlike the trial court and Appellees, and similar to the

Fourth Circuit in Iko, 535 F.3d at 239, we “easily conclude” that the facts Vasquez

averred could support a finding that the use of the spit hood filled with pepper spray

after he complied rises above the de minimis injury and is a sufficiently serious

deprivation to satisfy the objective component of the inquiry, Farmer, 511 U.S. at

834.

Turning to the subjective component, we apply the Whitley factors to

Vasquez’s allegations. First, the facts as alleged, and accepted as true at this stage

of the proceedings, raise the question of whether there was any need for the

application of force. Accepted for their truth, the facts alleged reflect that Vasquez

complied with the direction that he cuff up and exit his cell, and it was only after

Vasquez responded to a comment from a fellow inmate that Johnson utilized the spit

hood filled with pepper spray and forced Vasquez to his knees. (Am. Compl. ¶ 37.)

Appellees contend that the comment Vasquez made to the fellow inmate, “these guys

are on their b.s. again,” was verbally abusive toward Dew and Johnson and could

have escalated to assaultive or combative behavior thereby rendering the

precautionary use of the spit hood appropriate. (Appellees’ Br. at 26 & n.8, 27.)

They further maintain that the use of the spit hood was a good faith effort to maintain

discipline. Unlike in Iko, where the inmate initially refused to follow the directives

from the prison officials thereby justifying the initial use of pepper spray, Vasquez

39

allegedly complied with the directive and then made a comment to another inmate.

Such compliance is like the actions of the inmate in Thompson, in which the Fourth

Circuit held that no force was needed. While Appellees argue that the force used

was justified because Vasquez was “verbally abusive towards” Dew and Johnson

and, potentially, Vasquez’s behavior could have escalated to become assaultive or

combative, (Appellees’ Br. at 26-27 (quoting Orig. Compl. Ex. 28)), accepting

Vasquez’s allegations as true, there are questions as to how a statement made to a

fellow inmate constituted verbal abuse directed at Dew and Johnson, so as to require

discipline, and how this statement, made while Vasquez’s hands were cuffed behind

his back, could have led to combative or assaultive behavior by Vasquez that would

justify the force used. Such questions of fact are for the jury. Thus, accepting

Vasquez’s allegations as true, we disagree that it is clear and free from doubt that

Vasquez’s statement, made while he was otherwise compliant and his hands were

cuffed, justified the need for the force used in this instance.

Second, Vasquez alleged that he complied with the directive to cuff up and,

in response to Appellees’ arguments that he was verbally abusive and this could have

led to assaultive behavior, denied that he engaged in any exigent or aggressive

conduct that would justify the need for the use of force. Vasquez’s alleged

compliance with the directive, like that of the inmate in Thompson, may establish

that “there was no need to use force, [and that] the force used was necessarily

excessive in relation to the need” as to that behavior. 828 F.3d at 100. Even the Iko

court determined that the use of force became disproportionate once the inmate

began making an effort to comply. To the extent Appellees focus on the statement

made to the other inmate as requiring discipline and the potential that Vasquez’s

behavior could escalate to become combative as justifying the level of force used,

40

we believe these are questions of fact to be resolved by the jury. Accordingly,

accepting the facts alleged as true, we disagree that it is clear and free from doubt

that level of force used was proportionate to the need to combat Vasquez’s behavior.

Third, similar to the officials in Thompson, Appellees do not argue that

Vasquez posed a threat to anyone, but assert that the situation could have escalated

to become threatening. (Appellees’ Br. at 26-27.) However, accepting the

allegations as true, it is unclear what “reasonably perceived threat,” Iko, 535 F.3d at

239, to Dew and Johnson the use of force was intended to quell because Vasquez

had complied, his hands were cuffed behind his back, and no threats had been made.

Thus, Vasquez has adequately pleaded that there was no reasonably perceived threat

that would justify the application of force.

Finally, the fourth factor, concerning efforts used to temper the use of force,

leans in favor of concluding that Vasquez sufficiently stated a constitutional

violation. Here, Vasquez alleged that after the spit hood was placed over his head,

he was ordered on to his knees, his eyes began burning while he struggled to breathe,

he “remained in that position for several minutes gasping for air,” that the bag was

only taken off of his head because a sergeant came to the scene and directed its

removal, and that no medical attention was provided to him. (Am. Compl. ¶ 37.)

Similar to Iko, the allegations that Johnson forced Vasquez to remain on his knees

while he was having trouble breathing for several minutes, that Johnson did not

attempt to provide Vasquez with any medical attention once the spit hood was

ordered to be removed, and that Vasquez had to wash it out of his eyes on his own,

when accepted as true, are sufficient to establish that there was insufficient effort to

temper the severity of the force.

41

In sum, accepting the facts alleged as true, Vasquez has sufficiently pleaded

facts from which a factfinder could infer that Johnson wantonly inflicted pain upon

Vasquez by employing an excessive use of force by placing a spit hood filled with

pepper spray over Vasquez’s head for several minutes where Vasquez complied with

the directive to cuff up and it is not clear and free from doubt that Vasquez’s

statement to the other inmate justified the force used, and by not providing medical

assistance afterward. Accordingly, because Vasquez has sufficiently alleged facts

that could establish the objective and subjective components for stating a prima facie

claim for excessive force against Johnson, the trial court erred in granting Appellees’

demurrer and dismissing this claim.

b. Dew’s Failure to Intervene

We turn now to Vasquez’s failure to intervene claim against Dew for this same

incident involving Johnson’s use of excessive force. “If a police officer, whether

supervisory or not, fails or refuses to intervene when a constitutional violation such

as an unprovoked beating takes place in his presence, the officer is directly liable

under Section 1983.” Byrd, 783 F.2d at 1007. With regard to prison officials, in

Smith, 293 F.3d at 650-52, the Third Circuit extended this rule to prison officials.

The Smith court held “that a corrections officer’s failure to intervene in a beating can

be the basis of liability for an Eighth Amendment violation under [Section] 1983 if

the corrections officer had a reasonable opportunity to intervene and simply refused

to do so.” Id. at 650.

Here, Vasquez argues that he sufficiently pleaded facts showing that Dew

“had every opportunity to intervene [into] Johnson[’]s use of excessive force[,] but

he did not.” (Vasquez’s Br. at 37.) We agree. Having already determined that

Vasquez has sufficiently stated a claim against Johnson for the unconstitutional use

42

of excessive force, the well-pleaded facts against Dew likewise state a claim for

failure to intervene. Vasquez alleged that Dew was present during the incident,

initially ordered Vasquez to cuff up for the cell inspection, and when Vasquez “asked

Johnson why he was being treated like that if he was not combative, Dew . . . stated[,]

‘Don’t cry now[,] you wanna play games we know how to play games too.’” (Am.

Compl. ¶ 37.) Nothing in the allegations or record suggests any reason that Dew

lacked the opportunity to stop Johnson from using the spit hood filled with pepper

spray, to intervene and require the removal of the spit hood, or to provide medical

assistance to Vasquez. From these allegations, which are accepted as true, Stone

& Edwards, 616 A.2d at 1063, a factfinder could conclude that Dew “simply refused

to do so,” Smith, 293 F.3d at 650. Therefore, the trial court erred in granting

Appellees’ demurrer to Vasquez’s failure to intervene claim against Dew.

C. Monell Liability Claims against Berks County and Quigley

1. Parties’ Arguments

Vasquez argues that, under Monell, Appellee Berks County is liable under

Section 1983 for constitutional deprivations resulting from a governmental

“custom” even though such custom has not been officially authorized or formally

approved through the body’s decision-making procedures. In this matter, Vasquez

asserts that Berks County adopted the following policies or customs that deprived

him of his rights: (1) inadequate exercise opportunities; (2) restriction of legal

materials; and (3) arbitrary unit actions in the form of seven-day mattress

restrictions.

First, Vasquez argues that he was forced to exercise in the cold with

inadequate clothing and was shackled during the indoor exercise time, thus depriving

him of adequate exercise opportunities claiming “that it was policy.” (Vasquez’s

43

Br. at 39-40 (citing Orig. Compl., Ex.8; Am. Compl., Ex. H).) When Vasquez raised

this issue to the ICC, he asserts he was informed that the exercise policies were

approved by Quigley or otherwise pursuant to county and state policies. Second,

Vasquez maintains that he had a due process interest in his legal materials, that he

was not provided notice or an opportunity to be heard regarding the restrictions on

his legal materials, and that there was no official or actual policy authorizing the

restrictions. When Vasquez raised the policy before the ICC, he was again informed

that there was a one-inch rule for inmates in the Delta Unit. (Id. at 44-45 (citing

Orig. Compl., Ex. 17).) Finally, Vasquez likewise asserts that the mattress

restrictions violated due process because he was not on notice that any misconduct

would result in a mattress restriction without the ability to be heard. While Vasquez

concedes that mattress restrictions were a listed sanction in the Inmate Handbook,

as he was told when he brought the issue before the ICC, Vasquez maintains that the

handbook does not indicate that S.O.G. members could issue a unit action, including

a mattress restriction. As such, Vasquez argues that this custom of allowing S.O.G.

members to impose mattress restrictions was approved by Quigley. Moreover,

Vasquez asserts that Quigley had a statutory obligation to promulgate rules and

regulations, and, accordingly, that authority is sufficient to establish liability against

Berks County under Monell. Therefore, Vasquez maintains that Berks County is

liable under Section 1983 for the alleged constitutional deprivations.

Appellees respond that the trial court properly dismissed Vasquez’s

Monell/supervisory liability claims. Appellees maintain that Vasquez’s claim was

properly dismissed because Vasquez failed to “demonstrate that a deficient

municipal policy or practice resulted in a constitutional violation,” as required under

Monell. (Appellees’ Br. at 30.) While recognizing that a custom that is not officially

44

authorized or adopted may serve as the basis for such a claim, Appellees argue that

Vasquez failed to show that there existed a pattern of similar violations such that

Berks County was on notice of the issue but failed to act, given “a single incident of

unconstitutional activity is not sufficient to impose liability under Monell.” (Id. at

31 (quoting Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995))

(internal quotations omitted).)

In his Reply Brief, Vasquez retorts that “Berks County manifested assent to

[] Quigley on its behalf” through promulgated policies, Quigley’s statutory duty to

report to Berks County thereon, and its awareness of the practices via Quigley’s duty

to report and the ICC reports. (Vasquez’s Reply Br. at 4.)

2. Analysis

“[T]he touchstone of the Section 1983 action against a governmental body is

an allegation that an official policy, custom[,] or usage is responsible for a

deprivation of rights protected by the [United States] Constitution. Davis v. City of

Philadelphia, 650 A.2d 1127, 1130 (Pa. Cmwlth. 1994) (quoting Monell, 436 U.S.

at 690). In Monell, the United States Supreme Court determined that local

governments may be held liable for civil rights violations under Section 1983 based

on action taken pursuant to acts or edicts of those who may fairly be said to represent

public policy.

In Hennessy v. Santiago, 708 A.2d 1269, 1275-76 (Pa. Super. 1998),23 our

sister court, the Superior Court, applied the standard for Monell claims enunciated

by the Third Circuit in Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.

23

Superior Court decisions are not binding on this Court but may be cited for their

persuasive value. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth.

2018).

45

1998), superseded in part on other grounds by statute, Civil Rights Act of 1991,

Pub. L. No. 102-166, 105 Stat. 1071. In Andrews, the Third Circuit explained:

A government entity may not be held liable under [S]ection 1983 under

the respondeat superior doctrine. To obtain a judgment against a

municipality, a plaintiff must prove that the municipality itself

supported the violation of rights alleged. Thus, [S]ection 1983 liability

attaches to a municipality only when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose

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

injury.

A government policy or custom can be established in two ways. Policy

is made when a decisionmaker possessing final authority to establish

municipal policy with respect to the action issues an official

proclamation, policy, or edict. A course of conduct is considered to be

a “custom” when, though not authorized by law, such practices of state

officials are so permanent and well settled as to virtually constitute law.

In either of these cases, it is incumbent upon a plaintiff to show that a

policymaker is responsible either for the policy or, through

acquiescence, for the custom.

Id. at 1480 (quotations, citations, and alterations omitted) (alterations added).

“The question of who is a ‘policymaker’ is one of state law,” asking whether

that authority is one to make final, unreviewable policy. Id. at 1481. The Third

Circuit stated:

When an official’s discretionary decisions are constrained by policies

not of that official’s making, those policies, rather than the

subordinate’s departures from them, are the act of the municipality.

Similarly[,] when a subordinate’s decision is subject to review by the

municipality’s authorized policymakers, they have retained the

authority to measure the official's conduct for conformance with their

policies.

46

Id. (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (emphasis in

original)).

In Hennessy, the Superior Court reviewed the grant of a demurrer and

dismissal of a Monell claim, alleging that Mercer County and the county’s assistant

administrator made the decision to adopt a policy that led to the appellant’s

termination, and that this violated the appellant’s constitutional rights. The Superior

Court held that, at the early procedural stage, the appellant had sufficiently alleged

that the assistant administrator was a policymaker whose decision to adopt the policy

that led to the appellant’s termination was a final policy. Hennessy, 708 A.2d at

1275. As such, the Superior Court held that the appellant had not failed to state a

claim.

In the present case, examining the allegations, which we accept as true,

Vasquez has failed to state a claim against Berks County under Monell and the trial

court did not err in dismissing that claim. While Vasquez appears to argue that both

Quigley and Berks County are indirectly liable under Monell, our review of the

Amended Complaint shows that he only alleged this claim against Berks County.24

(See Am. Compl. ¶ 50.) Reviewing the Amended Complaint, Vasquez failed to

plead that any Berks County policymaker was involved in or aware of any of the

alleged unconstitutional policies or customs or that Quigley constituted a

policymaker for Berks County. Unlike in Hennessy, where there was a specific

averment that the assistant administrator was a policymaker with the authority to

issue a final policy on behalf of the county, Vasquez did not allege that any Berks

County policymaker adopted or made the final decisions regarding the policies or

24

Moreover, Monell contemplates claims of liability against a governmental body, not an

individual, such as Quigley.

47

customs at issue or that Quigley had such authority. As such, the trial court did not

err in sustaining the PO as to Vasquez’s Monell claims against Berks County.

D. Conditions of Confinement Claim Concerning Inadequate Exercise

Against Quigley

1. Parties’ Arguments

Vasquez argues that the trial court erred in dismissing his conditions of

confinement claim concerning inadequate exercise under the Eighth Amendment.

Vasquez asserts that exercise deprivation violates the Eighth Amendment “where

movement is denied and muscles are allowed to atrophy, the health of the individual

is threatened[,] and the state[’]s constitutional obligation is compromised.”

(Vasquez’s Br. at 49-50 (citing Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.

1996); Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988); French v. Owens, 777 F.2d

1250, 1255 (7th Cir. 1985)).) Vasquez alleged that, based on a policy adopted and

imposed by Quigley,25 he was forced to take exercise in the early morning hours

during winter, with only the standard uniform, a sweater, and crocs to wear, as he

was restricted from purchasing thermals. If they were allowed to exercise inside,

Vasquez alleged that they would remain shackled and therefore unable to move

sufficiently. Vasquez asserts that these conditions effectively rendered exercise to

be unavailable. As a result, Vasquez suffered an aggravation to a preexisting injury

and had to be put on suicide watch. Accordingly, Vasquez argues that he sufficiently

25

We note that while Vasquez avers that Berks County adopted this policy, (Am. Compl.

¶ 47), as set forth in our Monell discussion, there were no allegations as to what Berks County

policymaker was involved in that decision.

48

stated a claim that the conditions of confinement regarding exercise violated the

Eighth Amendment.26

Appellees retort that, while Vasquez may have alleged a lack of recreation

options, he admitted to having a chance to exercise but refused to partake. Moreover,

Appellees assert that the restrictions on exercise were reasonable limitations due to

his Disciplinary Segregation designation on Delta Unit. Appellees maintain that

there is a legitimate penological purpose in security and that limiting outdoor

exercise and keeping Delta Unit inmates restrained during indoor exercise

opportunities were reasonable and furthered that penological purpose.

2. Analysis

It is well-settled law that “meaningful recreation ‘is extremely important to

the psychological and physical well-being of [] inmates” and that the failure to

provide such recreation may violate the Eighth Amendment. Peterkin, 855 F.2d at

1031 (quoting Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979)) (emphasis

added). “Lack of exercise may amount to a constitutional violation where it poses a

significant threat to an inmate’s physical and mental well-being. For example, lack

of exercise may constitute cruel and unusual punishment where movement is denied

and muscles are allowed to atrophy.” Platt v. Brockenborough, 476 F. Supp. 2d 467,

471 (E.D. Pa. 2007) (quotation omitted). Thus, “[a]lthough the constitution does

not require out-of-cell exercise, the near-total deprivation of the opportunity to

26

Vasquez also argues that Appellees’ POs did not address his inadequate exercise claim.

However, Appellees’ POs specifically stated that “[n]one of the conditions complained of by

Vasquez, including, inter alia, the mattress restrictions, the limitation on the personal belongings

that he was allowed to keep in his cell, the type of recreation offered to him, or the food offered

to him, amount to an unconstitutional condition of confinement.” (POs ¶ 161 (emphasis added).)

The Court is satisfied that this statement encompassed a challenge to the legal sufficiency of

Vasquez’s conditions of confinement claim based on his alleged inadequate exercise.

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exercise may violate the Eighth Amendment unless the restriction relates to a

legitimate penological purpose.” Id. at 472 (citing Mitchell v. Rice, 954 F.2d 187,

191-92 (4th Cir. 1992)) (emphasis added).

In the present case, Vasquez argues that he sufficiently stated a claim for

inadequate exercise in violation of the Eighth Amendment. We agree in part.

Vasquez asserted two bases for his claim – that he was required to wear restraints

while engaging in indoor, but outside of his cell, exercise, and that he was not

provided with adequate clothing to exercise outside in the winter months and was

not allowed to purchase such clothing. On the first basis, Vasquez averred that if he

was offered indoor exercise that took place outside of his cell, he was required to be

in restraints, which hindered his ability to exercise. Appellees argue, and the trial

court agreed, that given the disciplinary status of Vasquez, requiring restraints was

rationally connected to a legitimate penological purpose, ensuring safety and

security. On this claim, we agree with Appellees and the trial court that a reasonable

factfinder would conclude that requiring inmates, like Vasquez, who are assigned to

the disciplinary segregation unit, to be restrained while exercising indoors “relates

to a legitimate penological purpose.” Platt, 476 F. Supp. 2d at 472. Thus, Vasquez

did not state a claim for a violation of the Eighth Amendment on this ground.

As to the second basis, Vasquez alleged that due to not being provided with

adequate clothing for the winter months and not being allowed to purchase adequate

clothing, such as thermals, he was unable to exercise during the winter. Vasquez

averred that this lack of exercise resulted in physical harm in the form of an

aggravation to a preexisting injury and psychological harm that caused him to be

placed on suicide watch. At this early stage of the proceedings and accepting

Vasquez’s allegations as true, Stone & Edwards, 616 A.2d at 1063, this Court

50

concludes Vasquez has sufficiently stated an Eighth Amendment violation claim on

this basis.

This Court has acknowledged that “a prisoner [] is not entitled to the clothing

of his choice in prison[,] . . . [but i]f . . . the clothing provided to a prisoner is

insufficient to protect him from the elements, a constitutional violation could occur.”

Bullock v. Horn, 720 A.2d 1079, 1082 (Pa. Cmwlth. 1998). While this Court, in

Bullock, sustained a demurrer because the inmate did “not dispute that he receive[d]

a coat, hat, footwear, and gloves when he [went] outside during the winter months,”

id., the clothing provided to Vasquez for the winter months, as pleaded, differ greatly

from that provided to the inmate in Bullock. Further, although there is no

constitutional violation where an inmate is provided the choice to remain in the

inmate’s cell when the weather is too cold for the clothing provided, see Smith v.

United States, 432 F. App’x 113, 116 (3d Cir. 2011), Vasquez’s allegations do not

reflect that he is given the choice to remain inside during the “harsh wintery

weather,” other than when they are “snowed in” or on “rainy days,” which is when

the indoor exercise is offered, (Am. Compl. ¶ 10). Finally, unlike Vasquez’s claim

based on the use of restraints during indoor recreation, it is not clear that a factfinder

would conclude that providing inmates with inadequate clothing for winter weather

and restricting them from purchasing the same is “relate[d] to a legitimate

penological purpose.” Platt, 476 F. Supp. 2d at 472. But see Bullock, 720 A.2d at

1082 (noting, in a case where adequate clothing was provided, that “there is a

legitimate interest in withholding clothing from an inmate for security reasons,”

particularly where the inmate was housed within a restricted housing unit). Thus, if

Vasquez is “able to demonstrate sufficiently serious harm as a result of his lack of

exercise, and that [Quigley] imposed this harm out of wanton disregard for his health

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and well-being, [he] could conceivably prevail on his Eighth Amendment claim.”

Platt, 476 F. Supp. 2d at 472. Accordingly, because Vasquez sufficiently stated a

claim for an Eighth Amendment violation based on a lack of exercise opportunities

due to inadequate clothing, the trial court erred in sustaining the demurrer on that

claim.

E. Remaining Claims Not Challenged by POs

1. Parties’ Arguments

Vasquez argues that Appellees’ POs failed to address the following claims:

(1) his First Amendment retaliation claims against the remaining Appellees; (2) his

failure to protect claims against Quigley, Smith, Phillips, and Castro; (3) his due

process claims; and (4) his tort claims. Because Pennsylvania Rule of Civil

Procedure 1028, Pa.R.Civ.P. 1028, requires all preliminary objections to be raised

at one time, Vasquez asserts that Appellees failure to object to these claims at this

time meant they were unchallenged and that the trial court erred in dismissing his

entire Amended Complaint.

Appellees do not directly address whether the POs addressed all of the claims

but maintain that Vasquez failed to establish a retaliation claim against all Appellees.

Further, Appellees do not address Vasquez’s contention that the POs do not address

his failure to protect claims against Quigley, Smith, Phillips, and Castro. Finally,

Appellees assert that Vasquez’s due process and related tort claims were derivative

claims that could not stand on their own, and, alternatively, Vasquez did not provide

separate factual allegations sufficient to establish the elements of those torts.

However, Appellees do not assert whether these claims were addressed in the POs.

In his Reply Brief, Vasquez retorts that because “Appellees failed to provide

any legal authority to support an argument as to why they chose not to object to” his

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retaliation claims against the Appellees beyond Dew and Johnson, failure to protect

claims, due process claims, and related tort claims, this Court must consider them

waived and that the trial court’s dismissal thereof was in error. (Vasquez’s Reply

Br. at 5.)

2. Analysis

Pennsylvania Rule of Civil Procedure 1028(b) provides that “[a]ll preliminary

objections shall be raised at one time.” Pa.R.Civ.P. 1028(b). Further, Pennsylvania

Rule of Civil Procedure 1032(a) provides that “[a] party waives all defenses and

objections which are not presented . . . by preliminary objection.” Pa.R.Civ.P.

1032(a). Accordingly, an argument or defense that was not raised in the POs before

the trial court is not properly before this Court on appeal.

Our review of the relevant POs shows that Appellees demurred to the

following. First, Appellees objected to Vasquez’s First Amendment retaliation

claims, stating that “Vasquez has failed to plead facts sufficient to support a finding

that any [Berks County Jail] staff members engaged in retaliatory conduct toward

him.” (POs ¶ 122 (emphasis added).) While Appellees did not individually list the

Appellees against whom Vasquez failed to state a claim, this statement is sufficient

to show that the demurrer was objecting to all Appellees who were staff at the Berks

County Jail and against whom Vasquez lodged First Amendment retaliation claims.

Accordingly, the POs sufficiently stated a demurrer to Vasquez’s First Amendment

claims against all the individual Appellees, not just Dew and Johnson. Accordingly,

Appellees sufficiently stated a demurrer to all of Vasquez’s First Amendment

retaliation claims, which was sustained by the trial court as to all Appellees.

However, because Vasquez only challenged on appeal the dismissal of his First

Amendment retaliation claims against Dew and Johnson, Vasquez has waived any

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argument that the trial court erred in dismissing these other retaliation claims.

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (explaining that under

Pennsylvania Rules of Appellate Procedure 2101, 2111, and 2119, Pa.R.A.P. 2101,

2111, & 2119, an appellant must develop claims with citation to the record and

relevant case law, and a failure to do so will result in waiver.)

Next, the POs addressed Vasquez’s failure to intervene/failure to protect

claims. The POs stated that Vasquez “failed to show that any of the named

[Appellees] had a duty to intervene” or that “any of the [Appellees] had a reasonable

opportunity to intervene.” (POs ¶¶ 186-87.) While this demurrer appears to focus

on Vasquez’s claim concerning Dew’s failure to intervene in the alleged spit hood

incident, it nonetheless referenced all of the Appellees and is sufficient to cover

Vasquez’s failure to protect claims against Quigley, Smith, Phillips, and Castro. The

trial court sustained this PO as to all Appellees, but, because Vasquez only

developed his argument as to why the trial court erred in dismissing the claim against

Dew, he has waived any arguments as to the other claims. Johnson, 985 A.2d at

924.

Finally, a review of the POs reflects no mention of, let alone objection to,

Vasquez’s due process or tort claims based on a failure to plead sufficient facts.

While Appellees now argue that the related tort claims were derivative, and thus

could not stand on their own, and that Vasquez did not provide separate factual

allegations to support them, these are arguments that were not asserted in their POs

and cannot be argued now before this Court on appeal. Pa.R.Civ.P. 1032(a).

Accordingly, given our review of the POs, we agree with Vasquez that

Appellees did not assert demurrers, or otherwise object, to his due process and tort

claims. Because Appellees failed to raise these issues in their POs, Appellees waived

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objection to these claims, id., and the trial court erred in dismissing the Amended

Complaint as to the unchallenged claims.

III. CONCLUSION

In sum, the trial court erred in sustaining Appellees’ POs to and dismissing

the following of Vasquez’s claims: (1) First Amendment retaliation and failure to

intervene against Dew; (2) excessive force against Johnson; (3) conditions of

confinement claim concerning inadequate exercise against Quigley; (4) due process

claims against all individual Appellees; and (5) tort claims against all individual

Appellees. Accordingly, for the foregoing reasons, the trial court’s Order is reversed

in part as to these claims and is affirmed in part as to all remaining claims.

_____________________________________

RENÉE COHN JUBELIRER, President Judge

55

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ramon Vasquez, :

Appellant :

:

v. : No. 1011 C.D. 2020

:

Berks County, Janine Quigley, :

Jeffrey Smith, Jay Phillips, :

Miguel Castro, Stephen Dew, :

Michael Johnson, Charles Fisher, :

Dustin Remp, Sgt. Tassone and :

CO Matta :

ORDER

NOW, June 29, 2022, the March 23, 2018 Order of the Court of Common

Pleas of Berks County dismissing Ramon Vasquez’s Amended Complaint with

prejudice is REVERSED IN PART and AFFIRMED IN PART in accordance

with the foregoing opinion.

_____________________________________

RENÉE COHN JUBELIRER, President Judge