Opinion
CIVIL 1:21-CV-01944
03-03-2023
TERRANCE TERRELL HOPSON, Plaintiff, v. HARRY ENTZ, et al., Defendants.
(SCHWAB, MAGISTRATE JUDGE)
REPORT AND RECOMMENDATION
(MARIANI, JUDGE)
I. Introduction.
Plaintiff Terrance Terrell Hopson claims that the defendants violated his rights by, among other things, using excessive force against him and denying him prescribed medication while he was a prisoner at the Lycoming County Prison. Currently pending is the defendants' motion to dismiss Hopson's amended complaint. For the reasons set forth below, we recommend that the court grant in part and deny in part that motion. We also recommend that the court grant Hopson leave to file a second amended complaint.
II. Background and Procedural History.
Hopson, proceeding pro se, began this action by filing a complaint and an application to proceed in forma pauperis. See docs. 1, 2. We granted Hopson's application for leave to proceed in forma pauperis, and we ordered the Clerk of Court to serve the complaint on the defendants. See docs. 8,10. After a case management conference and in accordance with the discussion at that conference, Hopson filed an amended complaint. See docs. 25, 29.
A. The Amended Complaint.
Hopson names as defendants five officers or employees of the Lycoming County Prison (“LCP”): (1) Harry Entz, a lieutenant; (2) Joseph DeFrancesco, a sergeant; (3) Sheila Lain, a licensed practical nurse; (4) Tucker Frey, a correctional officer; and (5) Curtis Winner, a correctional officer. Complaining about conditions and events that happened at the LCP, while he was a convicted and sentenced prisoner, Hopson alleges the following in his amended complaint.
Hopson has since been released from the LCP. See doc. 38 (notice of change of address).
In their brief in support of their motion to dismiss, the defendants attempt to draw the statement of facts alleged by Hopson from both his original complaint and his amended complaint. See doc. 35 at 10 n.1. As we are considering whether the amended complaint states a claim upon which relief has been granted, we are limited to the facts alleged in the amended complaint. We are mindful that Hopson is proceeding pro se and we must liberally construe his amended complaint, but “liberal construction of a pro se amended complaint does not mean accumulating allegations from superseded pleadings.” Argentina v. Gillette, 778 Fed.Appx. 173, 175 n.3 (3d Cir. 2019).
1. The October 2, 2021 Assaults.
On October 2, 2021, at about 12:20 p.m., defendant Frey opened Hopson's cell and told him he could use the “phone/kiosk.” Doc. 25 ¶ 1. According to Hopson, this led to him being assaulted by defendant Entz. Id. Defendant Entz “grabbed/choked” Hopson by the neck, cutting off Hopson's air supply, and attempted to slam Hopson by the neck. Id. About ten minutes later, defendant Entz ordered and allowed Corrections Officers George, Kuhns, Marshell, and Sines to assault Hopson while Hopson was in handcuffs. Id. ¶ 2. This occurred while Hopson was on the elevator and in the intake area. Id.
References to paragraphs are to paragraphs as numbered by Hopson on pages 5 through 8 of his amended complaint.
Corrections Officers George, Kuhns, Marshell, and Sines are not named as defendants in the amended complaint.
Hopson characterizes the force used against him as excessive and as causing injuries. Id. ¶ 1, 2.B. And he concludes that defendants Frey and Entz knowingly or recklessly showed disregard for his safety, knowingly disregarded an excessive risk to his health and safety, acted with deliberate indifference, and violated his rights with a culpable state of mind.
It is not entirely clear whether Hopson is asserting this with respect to just defendant Entz or with respect to both defendant Entz and defendant Frey. Construing the amended complaint liberally, we assume Hopson to be asserting this against both Entz and Frey.
2. Hopson's October 2021 Confinement in the MSMU.
From October 2, 2021, to October 14, 2021, Hopson was confined in the MSMU (“Male Special Management Unit”). Doc. 25 ¶ 3.B. While in the MSMU, Hopson did not receive any medical attention even though he had been assaulted three times. Id. Hopson informed all the defendants, verbally and by a request slip, about his injuries and about a chronic medical condition. Id.
We assume that Hopson is referring to the alleged assaults on October 2, 2021-the first by defendant Entz; the second by the corrections officers allegedly based on defendant Entz's order or allowance while Hopson was in the elevator; and the third by the corrections officers allegedly based on defendant Entz's order or allowance while Hopson was in the intake area.
Hopson does not specify what injuries he had sustained as a result of the assaults to this point. Although at the end of his complaint, he lists his injuries as a wound to his right eye, loss of vision of his left eye, scratches on his left hand, right foot, and left ear as well as emotional damages, see doc. 25 at 9, § V, he alleges additional assault after the October 2, 2021 assaults and he does not specify which injuries he sustained as a result of which assaults. Hopson also does not allege about what injuries he spoke to the defendants.
Hopson also does not identify this chronic condition, but from Hopson's later allegations, we assume it is an eye condition.
All ultraviolet light causes severe and chronic inflammation, burning, swelling, and damage to Hopson's eyes. Id. ¶ 3.C. Nevertheless, for a minimum of ten days, Hopson was kept in a cell in the MSMU, where the light does not go off and without the five eye drops prescribed by his doctor. Id. ¶ 3.C. Hopson alleges that he notified all the defendants-on multiple occasions verbally and via request slip-but he did not see a doctor until a month later. Id. When Hopson did see a doctor, the doctor noticed a wound in his right eye, and the doctor later performed surgery to recover lost vision. Id. According to Hopson, he has loss of vision in both eyes. Id.
Hopson's reference to a minimum of ten days is curious as he alleges that he was in the MSMU from October 2, 2021, through October 14, 2021, which is more than 10 days.
Hopson later alleges that this surgery occurred on March 23, 2022. Doc. 25 ¶ 6.B.
Hopson characterizes his time in the MSMU as cruel and unusual punishment. Id. ¶ 3.C. And the contends that from October 2, 2021, to October 14, 2021, the defendants disregarded an excessive risk to his health and safety, acted with deliberate indifference, and violated his rights with a culpable state of mind. Id. ¶ 3.A.
3. The October 18, 2021 Incident in the Gym.
On October 18, 2021, in the gym, an inmate chased Hopson for an extended period of time and assaulted him. Doc. 25 ¶ 5.A. After the assault, staff responded. Id. Upon defendant DeFrancesco's arrival to the area, he told Hopson: “As much as you run your mouth, you shouldn't of ran like a bitch.” Id. Hopson later received a misconduct report, the narrative portion of which included the following statement: “I looked into [the] gym and saw inmate Acosta chasing inmate Hopson around gym so I observed them for a little while longer.” Id.
Hopson contends that defendant DeFrancesco was deliberately indifferent to his safety. Id. He appears to be seeking to hold DeFrancesco liable for failure to intervene: he states, “Failure to intervene under Sgt. DeFrancesco supervision, knowingly acting indifferent to my risk of harm deliberately.” Id.
4. The October 27, 2021 Incident in I-Pod.
On October 27, 2021, while Hopson was returning from the gym, defendant Winner and Correctional Officer Martin “slammed [him] on [the] glass/wall of Ipod by [his] neck & wrist, one choking [him] as C.O. Winner stated [that] ‘he was not Lt. Entz,'” a comment which Hopson interprets as a reference to the October 2, 2021 incident with defendant Entz. Doc. 25 ¶ 4.A.
Correctional Officer Martin is not named as a defendant in the caption of the amended complaint. See doc. 25 at 1. Nor is he listed as a defendant in the section of the amended complaint that lists the defendants. Id. at 2-3. Further, he has not been served, and counsel has not entered an appearance for him. Thus, we do not consider him to be a defendant in this action. As set forth below, we recommend that Hopson be given leave to further amend his complaint. If he does so, he can clarify Officer Martin's status.
Hopson characterizes the force used against him as excessive and cruel and unusual punishment. Id. ¶¶ 4.A, 4.B. And he concludes that defendant Winner and Officer Martin knowingly disregarded an excessive risk to his health and safety with malicious intent to cause him harm, and they violated his rights with a culpable state of mind. Id.
5. The December 2021 Failure to Refill Prescribed Eyedrops.
In December 2021, Hopson visited Dr. Hartzel, who notified him that his eye pressure was in the 40s and anything over 30 can cause glaucoma. Doc. 25 ¶ 6.B. Dr. Hartzel apparently prescribed Hopson eye drops to relive his eye pressure. See id. ¶¶ 6.A, 6.B. But from December 4, 2021, until sometime after December 18, 2021, defendant Lain failed to refill his prescribed eye drops even though Hopson requested her to do so via request slip. Id. ¶ 6.A. This, according to Hopson, “disregarded and delayed Dr. Hartzel's prescriptive plan.” Id. ¶ 6.B. On March 23, 2022, Dr. Hartzel performed surgery on Hopson's eye, due to vision loss. Id.
Here, Hopson refers to Nurse Sheila. Doc. 25 at 8 ¶ 6.A. We construe him to be referring to defendant Lain, whose first name is Sheila.
Hopson claims that defendant Lain knowingly and/or deliberately disregarded an excessive risk to his health by failing to refill the prescribed eye drops. Id. ¶ 6.A.
6. Hopson's March 2022 Confinement in the MSMU.
From March 13, 2022, to March 31, 2022, Hopson was housed in the MSMU again. Doc. 25 ¶ 6.C. This was after a doctor notified a nurse supervisor about the inflammation risk (mentioned earlier by Hopson caused by the lights) after surgery. Id. From March 13, 2022, to March 31, 2022, Hopson was not allowed to use the law library due to his housing assignment. Id. ¶ 6.D.
7. Hopson's Claims.
Hopson contends that the defendants acted under color of state law. Doc. 25 ¶¶ 1, 2, 5.A, 6.A. And he claims that the defendants violated his rights under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Id. at 9, § IV. He claims that he has suffered a wound to his right eye, loss of vision in his left eye, and scratches on his left hand, right foot, and right ear as well as emotional damage. Id. at 9, § V. He seeks monetary damages including reimbursement for all his medical expenses for the rest of his life. Id. at 9, § VI.
B. The Motion to Dismiss.
On May 13, 2022, the defendants filed a motion to dismiss the amended complaint. See doc. 30. Before the defendants filed a brief in support of their motion, Hopson filed a brief in opposition. See doc. 33. After the defendants received an extension of time, they filed their brief in support of their motion to dismiss. See doc. 35. Hopson then filed another brief in opposition. See doc. 37. The defendants have not filed a reply brief.
III. Pleading and Fed.R.Civ.P. 12(b)(6) Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. Discussion.
At the outset, we note that Hopson appears to fundamentally misunderstand the nature and limits of a Fed.R.Civ.P. 12(b)(6) motion. He submitted documents as exhibits to his briefs. See doc. 33 at 6-15; doc. 37 at 10-14. He also includes factual assertions in his briefs that are not contained in his amended complaint. See doc. 33 (passim); doc. 37 (passim). But, as the standards set forth above show, a Rule 12(b)(6) motion is limited to determining whether Hopson has pleaded a claim upon which relief can be granted, and in making that determination we do not consider documents, such as documentary exhibits, outside the operative complaint. Thus, we will not consider the exhibits Hopson attaches to his briefs. Similarly, “[a]lthough a court on a motion to dismiss ordinarily ‘must accept the allegations in the complaint as true,' it is not compelled to accept assertions in a brief without support in the pleadings.” Chavarriaga v. New Jersey Dep t of Corr., 806 F.3d 210, 232 (3d Cir. 2015) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)). “After all, a brief is not a pleading.” Id. Thus, we do not accept the factual assertions in Hopson's briefs that do not appear in his amended complaint.
For the defendants' part, in their brief, they also make factual statements regarding the events that are not found in Hopson's amended complaint. See supra n.2. Again, “a court reviewing a motion to dismiss must examine the plausibility of ‘allegations in the complaint.'” Doe v. Princeton Univ., 30 F.4th 335, 344-45 (3d Cir. 2022) (quoting Twombly, 550 U.S. at 555). “Factual claims and assertions raised by a defendant are not part of that scrutiny.” Id. at 345. Thus, we will not consider the factual contentions raised by the defendants that are not in Hopson's amended complaint.
Hopson brings his claims pursuant to 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 “does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right.” Id. To establish a claim under § 1983, the plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. Thus, respondeat superior cannot form the basis of liability. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 290 (3d Cir. 2018). In other words, “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677. And so, a constitutional deprivation cannot be premised merely on the fact that the defendant was a supervisor when the incidents set forth in the complaint occurred. See Alexander v. Forr, 297 Fed.Appx. 102, 104-05 (3d Cir. 2008). Rather, “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
A. The Eighth Amendment.
Hopson brings claims under the Eighth Amendment. “The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual punishments.'” Glossip v. Gross, 576 U.S. 863, 876 (2015). Hopson presents four types of Eighth Amendment claims: (1) excessive force claims; (2) failure-to-intervene claims; and (3) failure to provide medical-care claims; and (4) a conditions-of-confinement claims. We address each of Hopson's claims in turn.
1. Excessive Force/Failure to Intervene.
The Eighth Amendment prohibits the use of excessive force against convicted prisoners. See Hudson v. McMillian, 503 U.S. 1 (1992). When prison officials are accused of using excessive force in violation of the Eighth Amendment, the inquiry “is whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 7. There are several considerations that a court must examine in determining whether a correctional officer has used excessive force, including: “(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 injury inflicted'; (4) ‘the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them'; and (5) ‘any efforts made to temper the severity of a forceful response.'” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).
Not “every malevolent touch by a prison guard” violates the Constitution. Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of ‘cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.'” Id. (quoting Whitley, 475 U.S. at 327). Thus, “[a]n inmate who complains of a ‘push or shove' that causes no discernible injury almost certainly fails to state a valid excessive force claim.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
The extent of injury suffered is a consideration that may be relevant to determining if the force could have plausibly been thought necessary. Id. at 37. “The extent of injury may also provide some indication of the amount of force applied.” Id. But to establish an excessive force claim, an inmate does not need to show that he suffered a significant, or even a more than de minimis, injury. Id. Rather, the analysis under the Eighth Amendment is “driven by the extent of the force and the circumstances in which it is applied; not by the resulting injuries.” Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002).
Further, an officer may be liable for failing to intervene to stop another officer from using excessive force. An ‘“officer has a duty to take reasonable steps to protect a victim from another officer's use of excessive force,' but only ‘if there is a realistic and reasonable opportunity to intervene.'” El v. City of Pittsburgh, 975 F.3d 327, 335 (3d Cir. 2020) (quoting Smith, 293 F.3d at 650-51).
a. The October 2, 2021 Assaults.
The amended complaint states an excessive force claim upon which relief can be granted against defendant Entz based on the first alleged assault on Hopson on October 2, 2021. As to that assault, Hopson alleges that defendant Frey opened Hopson's cell and told him he could use the “phone/kiosk.” Doc. 25 ¶ 1. According to Hopson, this led to him being assaulted by defendant Entz. Id. Defendant Entz “grabbed/choked” Hopson by the neck, cutting off Hopson's air supply, and attempted to slam Hopson by the neck. Id. Hopson characterizes the force used against him as excessive and as causing injuries. Id. ¶ 1, 2.B. And he concludes that defendants Frey and Entz knowingly or recklessly showed disregard for his safety, knowingly disregarded an excessive risk to his health and safety, acted with deliberate indifference, and violated his rights with a culpable state of mind.
Hopson's allegations regarding this alleged assault by defendant Entz are sparse. But construing the complaint liberally and in the light most favorable to Hopson, as we must at this stage of the proceedings, Hopson has alleged enough to state a claim upon which relief can be granted. He alleges that defendant Entz choked him cutting off his air supply. And there are no allegations in the amended complaint that suggest that Hopson was violent or otherwise a threat to security such that there was a need for the use of force at all. Thus, the amended complaint states a claim upon which relief can be granted against defendant Entz based on this alleged assault.
Although the amended complaint states a claim upon which relief can be granted against defendant Entz based on first alleged assault on October 2, 2021, it does not state a claim upon which relief can be granted against defendant Frey based on that assault. All that Hopson alleges regarding defendant Frey is that Frey opened his cell and told him he could use the “phone/kiosk.” Id. ¶ 1. Hopson does not allege any facts that would support an inference that Frey was acting in concert with defendant Entz; that he directed Entz to assault Hopson; that he knew defendant Entz was going to assault Hopson; or that he witnessed the assault, had a reasonable opportunity to intervene, but failed to intervene. Thus, Hopson has not alleged any facts to support an inference that defendant Frey was personally involved in the assault or had the requisite state of mind to be held liable. Accordingly, the amended complaint fails to state a claim upon which relief can be granted against defendant Frey based on the first alleged assault on October 2, 2021.
The amended complaint also fails to state a claim upon which relief can be granted against either defendant Frey or defendant Entz based on the alleged assaults by the non-defendant corrections officers on October 2, 2021. As to these assaults, Hopson alleges that about ten minutes after defendant Entz's initial assault, Entz ordered and allowed Corrections Officers George, Kuhns, Marshell, and Sines to assault Hopson while Hopson was in handcuffs. Id. ¶ 2. This allegedly occurred while Hopson was on the elevator and in the intake area. Id.
As set forth earlier, liability under Section 1983 “‘cannot be predicated solely on the operation of respondeat superior.'” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). Thus, a constitutional deprivation cannot be premised merely on the fact that the defendant was a supervisor when the incidents set forth in the complaint occurred. See Alexander, 297 Fed.Appx. at 104-05. But there are two viable theories of supervisory liability. Santiago, 629 F.3d at 129 n.5. Under the first theory, a supervisor can be liable if he or she established and maintained a policy, practice, or custom that directly caused the constitutional harm. Id. Under the second theory, a supervisor can be liable if he or she participated in violating the plaintiff's rights, directed others to violate the plaintiff's rights, or as the person in charge had knowledge of and acquiesced in his or her subordinates' violations of the plaintiff's rights. Id.
Here, there are no allegations suggesting that either defendant Frey or defendant Entz established or maintained a policy, practice, or custom that directly caused the assaults. There are also no allegations that defendant Frey was in any way connected to these later assaults. And Hopson's allegation that defendant Entz ordered and allowed these assaults is conclusory. Hopson does not allege what Entz is alleged to have done or to have said to the officers to make Hopson conclude that he ordered the assaults. And as to allowing the assaults, Hopson does not allege that defendant Entz witnessed the assaults, had a reasonable opportunity to intervene, but failed to intervene. Moreover, Hopson does not allege what the non-defendant corrections officers did to him. Because “the Eighth Amendment does not protect an inmate against an objectively de minimis use of force[,]” Smith, 293 F.3d at 648, without any allegations about what was done to him, Hopson has not alleged facts from which it can plausibly be concluded that the alleged use of force was more than de minimis. For these reasons, the amended complaint fails to state a claim upon which relief can be granted against either defendant Frey or defendant Entz based on the assaults on October 2, 2021, by the non-defendant corrections officers.
In sum, the amended complaint states an excessive force claim upon which relief can be granted against defendant Entz based on the first alleged assault on Hopson on October 2, 2021, but it fails to state a claim upon which relief can be granted against defendant Frey for that assault, and it fails to state a claim upon which relief can be granted against either defendant Frey or defendant Entz based on the alleged later assaults by the non-defendant corrections officers on October 2, 2021.
b. The October 18, 2021 Incident in the Gym.
The amended complaint fails to state a claim upon which relief can be granted against defendant DeFrancesco based in the October 18, 2021 incident in the gym. As to that incident, Hopson alleges that an inmate chased him in the gym for an extended period of time and assaulted him. Doc. 25 ¶ 5.A. Hopson contends that defendant DeFrancesco was deliberately indifferent to his safety in connection with this assault. Id.
Hopson cannot state a claim upon which relief can be granted against defendant DeFrancesco merely based on DeFrancesco being a supervisor. And, although Hopson appears to be seeking to hold DeFrancesco liable for failure to intervene, he does not allege facts to support a reasonable inference that defendant DeFrancesco had a realistic and reasonable opportunity to intervene to stop the assault. In fact, his allegations suggest that defendant DeFrancesco did not arrive on the scene until after the assault occurred. See id. ¶5.A (alleging that after the assault, staff responded and that upon defendant DeFrancesco's arrival to the area, he made a comment to Hopson). Hopson does allege that he later received a misconduct report, the narrative portion of which included the following statement: “I looked into [the] gym and saw inmate Acosta chasing inmate Hopson around gym so I observed them for a little while longer.” Id. But he does not allege that it was defendant DeFrancesco who wrote that statement or that the statement was in any way connected with defendant DeFrancesco.
Because Hopson has not alleged facts from which it can reasonably be inferred that the assault took place in defendant DeFrancesco's presence or that he had a realistic and reasonable opportunity to intervene to stop the assault, the amended complaint fails to state an excessive force claim or a failure-to-intervene claim upon which relief can be granted against defendant DeFrancesco based on the incident in the gym.
Further, to the extent that Hopson is seeking to present a claim against defendant DeFrancesco based on DeFrancesco' statement to Hopson after the assault, he fails to state a claim upon which relief can be granted. “Verbal abuse is not a civil rights violation.” Balliet v. Whitmire, 626 F.Supp. 219, 228-29 (M.D. Pa. 1986) (footnote omitted), affd, 800 F.2d 1130 (3d Cir. 1986); see also Sears v. McCoy, No. 19-2673, 2020 WL 3830921, at *2 (3d Cir. July 8, 2020) (“A prisoner's allegations of verbal harassment, unaccompanied by another injury, are not cognizable under § 1983.”); Gandy v. Reeder, 778 Fed.Appx. 149, 151 (3d Cir. 2019) (“We agree with those courts that have held that mere insults, without more, cannot constitute as an Eighth Amendment violation.”); Washington v. Rozich, 734 Fed.Appx. 798, 801 (3d Cir. 2018) (“Verbal harassment of a prisoner, although distasteful, does not violate the Eighth Amendment.”); Robinson v. Taylor, 204 Fed.Appx. 155, 156 (3d Cir. 2006) (“It is well settled that verbal harassment of a prisoner, although deplorable, does not violate the Eighth Amendment.”). This is so whether the claim “is asserted under the Eighth Amendment's cruel and unusual punishment clause,” or as a substantive due process claim. Chestnut v. Smith, No. CV 3:18-2373, 2019 WL 265775, at *2 (M.D. Pa. Jan. 18, 2019) (internal citation omitted). And this is so even if the verbal harassment is severe. Fanti v. Weinstock, 629 Fed.Appx. 325, (3d Cir. 2015) (“Even severe verbal harassment typically does not rise to the level of a constitutional violation.”).
c. The October 27, 2021 Incident in I-Pod.
The amended complaint states an excessive force claim upon which relief can be granted against defendant Winner based on the October 27, 2021 incident in I-pod. As to that incident, Hopson alleges that while he was returning from the gym, defendant Winner and Correctional Officer Martin “slammed [him] on [the] glass/wall of I-pod by [his] neck & wrist, one choking [him] as C.O. Winner stated [that] ‘he was not Lt. Entz,'” a comment which Hopson interprets as a reference to the October 2, 2021 incident with defendant Entz. Doc. 25 ¶ 4.A. Hopson characterizes the force used against him as excessive and cruel and unusual punishment. Id. ¶¶ 4.A, 4.B. And he concludes that defendant Winner and Officer Martin knowingly disregarded an excessive risk to his health and safety with malicious intent to cause him harm, and they violated his rights with a culpable state of mind. Id.
Here again, Hopson's allegations regarding this alleged assault are sparse. But construing the complaint liberally and in the light most favorable to Hopson, as we must at this stage of the proceedings, we conclude that Hopson has alleged enough to state a claim upon which relief can be granted. He alleges that defendant Winner along with Officer Martin choked him and slammed him against the wall, and there are no allegations that Hopson was a threat or was violent such that there was a need for the use of force at all. Thus, the amended complaint states a claim upon which relief can be granted against defendant Winner based on this alleged assault.
2. Medical Treatment.
Hopson also presents Eighth Amendment medical claims. He contends that he was denied medical care for the injuries resulting from the assaults and that he was denied his prescribed eye drops.
“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). In order for a plaintiff to allege a viable Eighth Amendment medical claim, he must allege facts from which it can reasonably be inferred that the defendant acted with deliberate indifference to his serious medical needs. Id. at 104; see also Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (“Failure to provide medical care to a person in custody can rise to the level of a constitutional violation under § 1983 only if that failure rises to the level of deliberate indifference to that person's serious medical needs.”). This is a two-part inquiry: “a plaintiff must make (1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that ‘those needs were serious.'” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
A medical need is serious if it “has been diagnosed by a physician as requiring treatment” or if it “is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981) (table)). Additionally, “if ‘unnecessary and wanton infliction of pain' results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment.” Id. (quoting Estelle, 429 U.S. at 103). Further, “where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious.” Id.
Deliberate indifference is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). The prison official must have known of the substantial risk of serious harm and must have disregarded that risk by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
The mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as a constitutional claim because medical malpractice is not a constitutional violation. See Farmer, 511 U.S. at 835 (holding that “deliberate indifference describes a state of mind more blameworthy than negligence”); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“Allegations of medical malpractice are not sufficient to establish a Constitutional violation.”); Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2002) (claims of medical malpractice, absent evidence of a culpable state of mind, do not constitute deliberate indifference under the Eighth Amendment). Instead, deliberate indifference represents a much higher standard, one that requires “obduracy and wantonness, which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk.” Rouse, 182 F.3d at 197 (quoting Whitley, 475 U.S. at 319).
“Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners.” Durmerv. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993) (citations omitted). And courts will “disavow any attempt to second guess the propriety or adequacy of a particular course of treatment . . . [which] remains a question of sound professional judgment.” Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017) (quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). “Mere disagreement as to the proper medical treatment does not support an Eighth Amendment claim.” Caldwell v. Luzerne Cnty. Corr. Facility Mgmt. Employees, 732 F.Supp.2d 458, 472 (M.D. Pa. 2010).
The Third Circuit has found deliberate indifference where a prison official: “(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse, 182 F.3d at 197. The Third Circuit has also held that “[n]eedless suffering resulting from the denial of simple medical care, which does not serve any penological purpose, . . . violates the Eighth Amendment.” Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). “For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for ‘an easier and less efficacious treatment' of the inmate's condition.” Palakovic, 854 F.3d at 228 (quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978). “Nor may ‘prison authorities deny reasonable requests for medical treatment . . . [when] such denial exposes the inmate to undue suffering or the threat of tangible residual injury.'” Id. (quoting Lanzaro, 834 F.2d at 346). Thus, “[a] ‘failure to provide adequate care . . . [that] was deliberate, and motivated by non-medical factors' is actionable under the Eighth Amendment, but ‘inadequate care [that] was a result of an error in medical judgment' is not.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Durmer, 991 F.2d at 69).
Further, a nonmedical prison official is not deliberately indifferent simply because he or she failed to respond to a prisoner's medical complaints when the prisoner was already being treated by a prison doctor. Durmer, 991 F.2d at 69. “Absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Spruill, 372 F.3d at 236. “[T]he same division of labor concerns that underlie that rule apply when a nurse knows that a prisoner is under a physician's care and has no reason to believe that the doctor is mistreating the prisoner.” Pearson, 850 F.3d at 540 n.4. “Given that it is the physician with the ultimate authority to diagnose and prescribe treatment for the prisoner, a nurse who knows that the prisoner is under a physician's care is certainly ‘justified in believing that the prisoner is in capable hands,' id. so long as the nurse has no discernable basis to question the physician's medical judgment.” Id. (quoting Spruill, 372 F.3d at 236).
a. Denial of Medical Care in October 2021.
Hopson claims that he was denied medical care in October 2021. He alleges that from October 2, 2021, to October 14, 2021, while he was confined in the MSMU, he did not receive any medical attention even though he had been assaulted three times. Doc. 25 ¶ 3.B. He alleges that he informed all the defendants, verbally and by a request slip, about his injuries and about a chronic medical condition. Id. He also alleges that while in the MSMU he was not given the five eye drops prescribed by his doctor. Id. ¶ 3.C. And he alleges that he notified all the defendants-on multiple occasions verbally and via request slip- but he did not see a doctor until a month later. Id. When Hopson did see a doctor, the doctor noticed a wound in his right eye, and the doctor later performed surgery to recover lost vision. Id. According to Hopson, he has loss of vision in both eyes. Id.
As noted above, see supra nn. 7, 8, Hopson does not specify about what injuries he spoke to the defendants, and he does not clearly identify his chronic condition, although from all his allegations, we assume it is an eye condition. Nevertheless, the defendants do not argue that Hopson fails to plead that he had a serious medical condition. Rather, they assert that “to the extent that [Hopson] claims that he suffered loss of vision in his left eye due to the alleged actions of any named-defendant, he has alleged a sufficiently serious medical condition to satisfy the objective component of the Estelle standard.” Doc. 35 at 25. And they make no other argument that Hopson fails to adequately plead the objective element of an Eighth Amendment claim. Thus, as the defendants do, we focus not on the objective element, but on the subjective element, of such a claim.
The defendants contend that Hopson fails to adequately plead the subjective element of an Eighth Amendment medical claim based on the care he received in October 2021 while in the MSMU because he fails to allege the personal involvement of any of the defendants in a denial of medical care. In this regard, the defendants acknowledge that Hopson “alleges that he notified ‘all defendants' of his complaints,” but they contend that “this is insufficient to establish the personal and affirmative involvement of any defendant.” Doc. 35 at 26. They suggest that by lumping all the defendants together, Hopson has failed to allege how each defendant was personally involved in the alleged violation of his rights. It is not always inappropriate to plead allegations against numerous defendants, but when the court cannot reasonably determine from the allegations what conduct each defendant was personally involved in, the complaint fails to comply with Twombly and Iqbal. See Dolan v. PHL Variable Ins. Co., No. CV 3:15-CV-01987, 2016 WL 6879622, at *8 (M.D. Pa. Nov. 22, 2016) (“As numerous courts have held in the context of Rule 8, concluding mass and mutual liability without pleading the supporting facts does not show ‘that the pleader is entitled to relief' and does not give any of the Defendants ‘a fair notice of what the . . . claim is and the grounds upon which it rests.'”) (quoting Fed.R.Civ.P. 8(a)(2) and citing cases).
Here, contrary to the defendant's suggestion otherwise, Hopson's allegations do not amount to vague group pleading. Rather, Hopson alleges that he informed all the defendants, verbally and by a request slip, about his injuries and about a chronic medical condition. Hopson also alleges that he was not given his prescribed-eye drops, and he alleges that he notified all the defendants-on multiple occasions verbally and via request slip-but he did not see a doctor until a month later. Construing Hopson's allegations liberally and in the light most favorable to Hopson, as we must at this stage of the proceedings, Hopson has sufficiently alleged that he complained to each defendant.
Nevertheless, given that Hopson does not specifically allege what injuries he sustained as a result of the assaults up until that time, see supra n.7, what his chronic medical condition was, for what condition he was prescribed eye drops, or what he told the defendants when he complained to them, we conclude that the amended complaint fails to allege facts from which it can reasonably be inferred that the defendants were deliberately indifferent, i.e., that they knew he faced a substantial risk of serious harm and a disregarded that risk by failing to take reasonable measures to abate it during the brief time that he was in the MSMU in October of 2021. Accordingly, we conclude that the amended complaint fails to state an Eighth Amendment medical claim upon which relief can be granted against the defendants based on the time Hopson was confined in the MSMU in October 2021.
The defendants have not moved to dismiss this claim on this basis. But the court has the authority “on its own motion” to dismiss a claim brought by a prisoner with respect to prison conditions under federal law for failure to state a claim upon which relief can be granted. See 42 U.S.C. § 1997e(c)(1) (providing that “[t]he court shall on its own motion or on the motion of a party dismiss any action brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action . . . fails to state a claim upon which relief can be granted”); see also 28 U.S.C.A. § 1915(e)(2)(B)(ii) (providing that where a plaintiff is proceeding in forma pauperis, “[notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted”); 28 U.S.C. § 1915A(b)(1) (providing that in a case brought by a prisoner seeking redress from a governmental entity, officer, or employee, the court shall “dismiss the complaint, or any portion of the complaint, if the complaint . . . fails to state a claim upon which relief may be granted”). Pursuant to that authority, we will recommend that the court dismiss this claim.
b. The December 2021 Failure to Refill Prescribed Eyedrops.
Hopson claims that defendant Lain failed to refill his prescription eye drops in December 2021. According to Hopson, in December 2021, he visited Dr. Hartzel, who notified him that his eye pressure was in the 40s and anything over 30 can cause glaucoma. Doc. 25 ¶ 6.B. Dr. Hartzel apparently prescribed Hopson eye drops to relive his eye pressure. See id. ¶¶ 6.A, 6.B. But from December 4, 2021, until sometime after December 18, 2021, defendant Lain failed to refill his prescribed eye drops even though Hopson requested her to do so via request slip. Id. ¶ 6.A. This, according to Hopson, “disregarded and delayed Dr. Hartzel's prescriptive plan.” Id. ¶ 6.B. On March 23, 2022, Dr. Hartzel performed surgery on Hopson's eye, due to vision loss. Id. Hopson claims that defendant Lain knowingly and/or deliberately disregarded an excessive risk to his health by failing to refill the prescribed eye drops. Id. ¶ 6.A.
Although it is a close question, we conclude that Hopson has alleged enough to state an Eighth Amendment medical claim upon which relief can be granted again defendant Lain. Defendant Lain does not argue that Hopson has not alleged that he had a serious medical need. Rather, she argues that Hopson has not alleged facts from which it can reasonably be inferred that she was deliberately indifferent. But, unlike with respect to the October 2021 period, here with respect to the December 2021 period, Hopson more clearly alleges what he told defendant Lain. Construing the amended complaint liberally and in the light most favorable to Hopson, it alleges that Hopson requested that Lain provide him the eye drops prescribed by Dr. Hartzel for the dangerous pressure in his eyes, that she failed to do so, and that this disregarded and delayed Dr. Hartzel's prescriptive plan. Given these allegations, the amended complaint states an Eighth Amendment medical claim upon which relief can be granted against defendant Lain.
Hopson alleges that defendant Lain failed to refill his prescribed eye drops. Defendant Lain notes in her brief that as a practical nurse she cannot prescribe medication. See doc. 35 at 28 n.2. And she asserts that “to the extent [Hopson] claims that an LPN failed to prescribe or refill medication, [Hobson] expects defendant Lain to unlawfully provide care beyond her scope of practice.” Id. Although Hopson uses that the term refill, we do not construe the amended complaint to be alleging that defendant Lain should have prescribed any medication. Rather, we construe the amended complaint to allege that Hopson asked defendant Lain to provide the eye drops that had already been prescribed by Dr. Hartzel.
3. Conditions in the MSMU.
We construe the amended complaint as asserting Eighth Amendment conditions-of-confinement claims based on the conditions in the MSMU. Hopson alleges that he was confined in the MSMU from October 2, 2014, to October 14, 2021, and again from March 13, 2022, to March 31, 2022. Doc. 25 ¶¶ 3.B, 6.C. He alleges that all ultraviolet light causes severe and chronic inflammation, burning, swelling, and damage to his eyes. Id. ¶ 3.C. Nevertheless, in the MSMU, the lights do not go off. Id.
The Eighth Amendment prohibits inhumane conditions of confinement. Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2022). “To sufficiently allege prison officials violated his Eighth Amendment rights by imposing inhumane conditions, [the plaintiff's] complaint [must] allege facts showing (1) the deprivation he endured was ‘sufficiently serious,' and (2) the prison officials had a ‘sufficiently culpable state of mind.'” Id. (quoting Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020). Thus, “[a] claim of inhumane prison conditions may rise to the level of an Eighth Amendment violation where the prison official ‘deprived the prisoner of the minimal civilized measure of life's necessities' and ‘acted with deliberate indifference in doing so, thereby exposing the inmate to a substantial risk of serious damage to [his] future health.'” Palakovic, 854 F.3d at 225 (quoting Parkell, 833 F.3d at 335).
“[B]right, constant illumination that causes ‘grave sleeping problems and other mental and psychological problems' can establish an Eighth Amendment deprivation.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 374 (3d Cir. 2019) (quoting Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996)); see also Brown v. Martinez, 3:CV-03-2392, 2007 WL 2225842 at *8 (M.D. Pa. July 31, 2007) (“Requiring inmates to live in constant illumination, under certain circumstances, may rise to the level of an Eighth Amendment violation.”). “Courts have held that causing inmates to suffer physical and psychological harm by living in constant illumination is without penological justification.” Sims v. Piazza, 462 Fed.Appx. 228, 232 (3d Cir. 2012). But “courts also have concluded that security lights that are similar to night lights and that provide only enough light for officers to conduct nighttime security checks do not impinge on a prisoner's constitutional rights.” Id.; see also Mohamad v. Mooney, No. 1:15-CV-00287, 2018 WL 3770050, at *4 (M.D. Pa. Aug. 9, 2018) (observing that “courts-including the Third Circuit-have explained that ‘constant low intensity lighting does not violate the Eighth Amendment” and citing cases).
Assuming for the sake of argument that Hopson could meet the objective element of a conditions-of-confinement claim, he nevertheless fails to state a claim upon which relief can be granted because he has not alleged facts from which it can reasonably be inferred that the named defendants were deliberately indifferent to substantial risk of harm. There are no allegations that the defendants had any control over Hopson's housing assignment or the lighting therein. Moreover, as to his October 2021 stay in the MSMU, although Hopson alleges that he complained to the defendants during that time, it is not clear exactly what he complained about. And as to his March 2022 stay in the MSMU he makes no allegations that the named defendants were aware of the conditions to which he was subject. Thus, the amended complaint fails to allege facts raising an inference that the defendants were deliberately indifferent to a substantial risk to Hopson. Accordingly, the amended complaint fails to state an Eighth Amendment conditions-of-confinement claim upon which relief can be granted.
The defendants apparently did not construe the amended complaint as raising conditions-of-confinement claims. Thus, they have not moved to dismiss those claims. Nevertheless, the court may sua sponte dismiss those claims. See supra n.13.
4. Summary as to the Eighth Amendment.
As set forth above, the amended complaint states some Eighth Amendment claims upon which relief can be granted. It states an excessive force claim upon which relief can be granted against defendant Entz based on the first alleged assault on Hopson on October 2, 2021. And it states an excessive force claim upon which relief can be granted against defendant Winner based on the October 27, 2021 incident in I-pod. It also states a medical claim upon which relief can be granted against defendant Lain based Hopson not receiving his prescribed eye drops in December 2021.
As also set forth above, the amended complaint fails to state some Eighth Amendment claims upon which relief can be granted. It fails to state a claim upon which relief can be granted against defendant Frey for any of the assaults on October 2, 2021. It fails to state a claim upon which relief can be granted against defendant Entz based on the alleged later assaults on October 2, 2021, by the nondefendant corrections officers. And it fails to state a claim upon which relief can be granted against defendant DeFrancesco based in the October 18, 2021 incident in the gym. Further, the amended complaint fails to state a medical claim upon which relief can be granted against the defendants based on the time Hopson was confined in the MSMU in October 2021. It also fails to state an Eighth Amendment conditions-of-confinement claim upon which relief can be granted
B. The Fourteenth Amendment.
In his amended complaint, Hopson mentions the Fourteenth Amendment and due process. The defendants construe the amended complaint as asserting substantive due process claims, and they contend that such claims should be dismissed under the more-specific-provision rule.
The substantive component of the Fourteenth Amendment Due Process Clause limits what the government may do regardless of the fairness of the procedures that it employs. Nekrilov v. City of Jersey City, 45 F.4th 662, 680 (3d Cir. 2022). “The Supreme Court ‘has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.'” Porter v. Pennsylvania Dep t of Corr., 974 F.3d 431, 447 (3d Cir. 2020) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 125 (1992)). “Under the more-specific-provision rule, ‘if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.'” Id. (quoting United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)).
Here, as discussed above, Hopson's claims fall under the Eighth Amendment. Thus, to the extent Hopson is attempting to bring substantive due process claims, those claims are barred by the more-specific-provision rule. See id. at 448 (affirming district court's grant of summary judgment as to substantive due process claim based on the more-specific-provision rule given that the Eighth Amendment applied to the claim). Thus, we will recommend that any Fourteenth Amendment substantive due process claims be dismissed.
The Supreme Court “has held that the Due Process Clause of the Fourteenth Amendment ‘incorporates' the great majority of [the] rights [guaranteed by the Bill of Rights] and thus makes them equally applicable to the States.” Dobbs v. Jackson Women s Health Org., 142 S.Ct. 2228, 2246 (2022). “Incorporated Bill of Rights guarantees are ‘enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.'” Timbs v. Indiana, 139 S.Ct. 682, 687 (2019) (quoting McDonaldv. Chicago, 561 U.S. 742, 767 (2010)). As mentioned earlier, the Eighth Amendment applies to the States through the Fourteenth Amendment. Glossip, 576 U.S. at 876. Thus, while we recommend that to the extent Hopson is attempting to bring substantive due process claims, the court dismiss such claims because they are barred by the more-specific-provision rule, we recognize that to the extent Hopson refers to the Due Process Clause of the Fourteenth Amendment in connection with his Eighth Amendment claims, such reference is proper.
C. The First Amendment.
Hopson mentions the First Amendment in his amended complaint. The First Amendment states that “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. The basis for Hopson raising the First Amendment is not clear. But because the amended complaint alleges that Hopson was not allowed to use the law library during his stay in the MSMU in March 2022, it may be that Hopson intended to assert an access-to-the courts claim.
“The right of access to the courts is sourced from both ‘the First and Fourteenth Amendments,' and is typically framed as a due process right in the inmate context, but in other contexts as ‘an aspect of the First Amendment right to petition the Government for redress of grievances[.]'” Jutrowski, 904 F.3d at 295 n.17 (citations omitted).
“It is now established beyond doubt that prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). There are two general categories of actionable federal claims based upon an alleged denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 413 (2002). The first category is forward-looking claims. Id. The essence of such a claim is that official action is frustrating the plaintiff in preparing or filing a legal action at the present time. Id. The opportunity to litigate “has not been lost for all time, however, but only in the short term; the object of the denial-of-access suit, and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a separate claim for relief once the frustrating condition has been removed.” Id.
The second category is backward-looking claims. Id. at 413-14. Such a claim does not look forward to future litigation, “but backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently unobtainable.” Id. at 414 (footnotes omitted). “The ultimate object of these sorts of access claims, then, is not the judgment in a further lawsuit, but simply the judgment in the access claim itself, in providing relief obtainable in no other suit in the future.” Id.
The ultimate justification for recognizing each kind of access claim is the same. Id. “Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Id. at 414-15. The right of access to the courts “is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” Id. at 415. Therefore, a plaintiff must establish an actual injury by identifying a nonfrivolous, arguable underlying claim blocked or lost by the alleged denial of access to the courts. Id. The underlying cause of action, whether anticipated or lost, is an element of the access claim. Id.
In the prison setting, “the injury requirement is not satisfied by just any type of frustrated legal claim.” Lewis v. Casey, 518 U.S. 343, 354 (1996). Rather, in the prison setting, actual injury is the loss of, or inability to pursue, a nonfrivolous claim that relates to a challenge, direct or collateral, to an inmate's conviction or relates to a challenge to the conditions of confinement. Id. at 354-55. “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. at 355 (italics in original).
Here, Hopson has not alleged that he suffered an actual injury to his right of access to the courts. He does not allege that by not being allowed to use the law library, he was blocked from presenting or lost a nonfrivolous, arguable underlying claim. Moreover, Hopson does not allege facts from which it can reasonably be inferred that any of the named defendants were personally involved in denying him access to the law library. Accordingly, the amended complaint fails to state an access-to-the-courts claim upon which relief can be granted.
D. The Fourth Amendment.
Hopson mentions the Fourth Amendment in his amended complaint. The Fourth Amendment, which applies to the States through the Fourteenth Amendment, Bailey v. United States, 568 U.S. 186, 192 (2013), provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. None of Hopson's allegations even arguably fall within the ambit of the Fourth Amendment. Thus, the amended complaint fails to state a Fourth Amendment claim upon which relief can be granted.
E. The Fifth Amendment.
Hopson mentions the Fifth Amendment in his amended complaint. The Fifth Amendment provides, in part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Due Process Clause of the Fifth Amendment, however, applies only to the federal government and federal officials. Shoemaker v. City of Lock Haven, 906 F.Supp. 230, 237 (M.D. Pa. 1995). “It does not apply to the acts or conduct of the states, their agencies, subdivisions, or employees.” Id.
The Fifth Amendment contains several clauses, and Hopson does explain why he cites the Fifth Amendment. But because Hopson does mention due process, we construe the amended complaint to be attempting to raise a Fifth Amendment due process claim.
Because the defendants here are not federal actors, the Fifth Amendment is not applicable in this case. Moreover, as discussed above, since Hopson's claims fall under the Eighth Amendment, he may not rely on substantive due process. Thus, the complaint fails to state a Fifth Amendment claim upon which relief can be granted.
F. The Sixth Amendment.
Hopson mentions the Sixth Amendment in his amended complaint. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI. The Sixth Amendment is implicated in the criminal context, but it “does not govern civil cases.” Turner v. Rogers, 564 U.S. 431, 441 (2011). Here, because Hopson has not alleged facts that implicate the Sixth Amendment, the amended complaint fails to state a Sixth Amendment claim upon which relief can be granted.
Given that Hopson asserts that he is a convicted and sentenced prisoner, see doc. 25 at 2, and he does not allege that his conviction has been overturned, any Sixth Amendment claim would likely be barred by the favorable-termination rule of Heckv. Humphrey, 512 U.S. 477, 486-87 (1994) (holding that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such [a] determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254” (footnote omitted)); see also Coello v. DiLeo, 43 F.4th 346, 350, 352-55(3d Cir. 2022) (concluding that Coello's federal claims, including Sixth Amendment claims, did not accrue under Heck until the underlying criminal case was favorably terminated, i.e., until Coello's conviction was overturned).
V. Leave to Amend.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Because Hopson is proceeding pro se, and given the liberal-amendment standard, we will recommend that the court provide Hopson one final opportunity to amend his complaint.
If this recommendation is granted and Hopson is given leave to file a second amended complaint, we note that any second amended complaint must be titled as a second amended complaint and must contain the docket number of this case. Fed.R.Civ.P. 10(a). “The plaintiff is advised that any amended complaint must be complete in all respects.” Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992). “It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.” Id. “In general, an amended pleading supersedes the original pleading and renders the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019). “Thus, the most recently filed amended complaint becomes the operative pleading.” Id. In other words, if a second amended complaint is filed, the original and amended complaints will have no role in the future litigation of this case. Any second amended complaint must also comply with the pleading requirements of the Federal Rules of Civil Procedure, including the requirements that the complaint contain “a short and plain statement of the grounds for the court's jurisdiction,” “a short and plain statement of the claim,” and “a demand for the relief sought.” Fed.R.Civ.P. 8(a)(1)-(3). Further, “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). And to the extent it would promote clarity to do so, “each claim founded on a separate transaction or occurrence . . . must be stated in a separate count.” Id. Further, we note that unrelated claims and defendants cannot be joined in one action. Rather, the requirements of Rule 20(a)(2) regarding joinder of defendants must be satisfied, and that Rule provides that persons may be joined in one action as defendants only if “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and . . . any question of law or fact common to all defendants will arise in the action.” Fed.R.Civ.P. 20(a)(2).
VI. Recommendations.
For the foregoing reasons, we recommend that the court grant in part and deny in part the defendants' motion (doc. 30) to dismiss the amended complaint.
More specifically, we recommend that the court dismiss the following claims:
• All Eighth Amendment claims against defendant Frey;
• The Eighth Amendment claims against defendant Entz based on the alleged later assaults on October 2, 2021, by the non-defendant corrections officers;
• All Eighth Amendment claims against defendant DeFrancesco;
• All Eighth Amendment medical claims based on the time Hopson was confined in the MSMU in October 2021;
• All Eighth Amendment conditions-of-confinement claims;
• All Fourteenth Amendment substantive due process claims;
• All First Amendment claims;
• All Fourth Amendment claims;
• All Fifth Amendment claims; and
• All Sixth Amendment claims.
We further recommend that the court not dismiss the following claims:
• The Eighth Amendment excessive force claim against defendant Entz based on the first alleged assault on Hopson on October 2, 2021;
• The Eighth Amendment excessive force claim against defendant Winner based on the October 27, 2021 incident in Ipod; and
• The Eighth Amendment medical claim against defendant Lain based Hopson not receiving his prescribed eye drops in December 2021.
We also recommend that the court grant Hopson leave to file a second amended complaint. And finally, we recommend that the court remand the case to the undersigned for further proceedings.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 48 The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.