Stoltie v. Cerilli

Full title: BRIAN JOSEPH STOLTIE, Plaintiff, v. GINA CERILLI et al., Defendants.

Court: United States District Court, W.D. Pennsylvania

Date published: Oct 2, 2023

Civil Action 2:21-cv-267 (W.D. Pa. Oct. 2, 2023)

Opinion

Civil Action 2:21-cv-267

10-02-2023

BRIAN JOSEPH STOLTIE, Plaintiff, v. GINA CERILLI et al., Defendants.

PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

ARTHUR J. SCHWAB JUDGE

REPORT AND RECOMMENDATION

PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

I. Recommendation

It is respectfully recommended that the Motion for Summary Judgment filed by Defendants, ECF No. 118, be granted in part and denied in part.

II. Report

A. Relevant Procedural History

Plaintiff Brian Joseph Stoltie, an inmate presently housed at the State Correctional Institution at Greene, brings this pro se civil rights action under 42 U.S.C. § 1983, concerning events that occurred when he was a pretrial detainee housed in the Westmoreland County Prison (“WCP”).

In response to Stoltie's original Complaint, ECF No. 12, some Defendants filed an Answer, ECF No. 21, while others filed a motion to dismiss, ECF No. 19. The Report and Recommendation that addressed the motion to dismiss, ECF No. 35, was adopted as the Opinion of the Court, ECF No. 52. The Court dismissed some claims with prejudice, including claims against Gina Cerilli in her official capacity, and dismissed other claims without prejudice and with leave to amend, including claims against Cerilli in her individual capacity. Id.

Stoltie subsequently filed the operative Amended Complaint in which he raises 21 claims against Westmoreland County and 22 individual WCP employees, asserting violations of his rights under the First, Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments to the United States Constitution as well as violations of the Americans with Disabilities Act, the Protection and Advocacy for Individuals with Mental Illness Act, and Pennsylvania state tort law. ECF No. 58. The individual parties are sued in their individual and official capacities. Id. ¶¶ 5-26. Stoltie seeks compensatory and punitive damages.¹ Id. ¶¶ 80-82.

1 Stoltie also sought injunctive relief. That request for relief is moot because he is now in state custody and housed at SCI Greene. See, e.g., Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (“An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims.”)

After Defendants filed their answer to the Amended Complaint, ECF No. 61, the parties engaged in significant and active discovery over which this Court and the District Judge issued multiple rulings and three extensions of the discovery period.²

2 ECF Nos. 73, 74, 76, 79, 80, 90, 91, 92, 94, 101, 115, 116, 117, 123, 128, 129, 132, 141, 144, 155, 158, 163, 165, 173, 174, and 182.

Defendants have moved for summary judgment as to all claims and all defendants. ECF No. 118. Defendants have supported their Motion for Summary Judgment with a Brief in Support, ECF No. 119, an Appendix of exhibits, ECF No. 120, and a Concise Statement of Material Facts, ECF No. 121. Stoltie has filed a Response in Opposition to the Motion for Summary Judgment, ECF No. 148, a verified Memorandum in Support of the Response, ECF No. 149, a Responsive Concise Statement, ECF No. 150, a Statement of Disputed Facts, ECF No. 151, a Supplemental Response in Opposition to the Motion for Summary Judgment, ECF No. 184, and a verified Memorandum in Support of the Supplemental Response, ECF No. 186. Defendants did not reply to Stoltie's supplemental filings. ECF No. 187.

Defendants' motion for summary judgment is ripe for consideration.

B. Legal Standards

Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of showing the absence of a genuine, material dispute and an entitlement to judgment. Id. at 323. This showing does not necessarily require the moving party to disprove the opponent's claims. Instead, this burden may often be discharged simply by pointing out for the court an absence of evidence in support of the non-moving party's claims. Id.

Once the moving party has met their initial burden, then the burden shifts to the nonmoving party to demonstrate, by affidavit or other evidence, “specific facts showing that there is a genuine issue for trial” or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A non-moving party must “go beyond the pleadings” and show probative evidence creating a triable controversy. Celotex, 477 U.S. at 324. An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court must take the facts in the light most favorable to the non-moving party and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler Cty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

A verified pleading may be treated as an affidavit or declaration. See, e.g., Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit at summary judgment stage); Ziegler v. Eby, 77 Fed.Appx. 117, 120 (3d Cir. 2003) (refusing to treat complaint as affidavit equivalent because it was not verified). Thus, facts set forth in a verified pleading that are based upon personal knowledge may be used to oppose a motion for summary judgment. Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”)

Although courts must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still “required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories . . . sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.”); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (pro se plaintiffs “cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.”)

C. Analysis ³

3 Given the number of claims and the number of defendants against whom these claims are asserted, the relevant facts as to each claim will be described in the context of that claim.

1. Defendant Gina Cerilli

Defendant Gina Cerilli is a Westmoreland County Commissioner and a member of the Westmoreland County Prison Board. ECF No. 121 ¶ 2; ECF No. 150 ¶ 2. In ruling on Defendants' motion to dismiss, this Court dismissed the claims against Cerilli in her official capacity with prejudice. ECF No. 52. The claims against her in an individual capacity were dismissed without prejudice. Id. Stoltie was permitted to amend these claims but as the Court noted, “[a]ny amendment must plead specific facts that establish the personal involvement of Defendant Cerilli in the alleged constitutional violations.” Id.

As noted in the Report and Recommendation that was adopted as the opinion of the Court, a plaintiff must plead a defendant's personal involvement in the alleged deprivation of his constitutional right. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Each defendant is liable only her own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Correctional Medical, 766 F.3d 307, 316 (3d Cir. 2014) (rev'd sub. nom. on other grounds 575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005). Further, the doctrine of respondeat superior, which makes an employer or supervisor automatically responsible for the wrongdoing of its employees, does not apply under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because 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.”); see, e.g., Rode, 845 F.2d at 1207. For that reason, supervisor-defendants cannot be held liable for every illegal act that takes place in a correctional facility. They are only liable for their own conduct.

There are two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190 (3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Rode, 845 F.2d at 1208.

In the original Complaint, Stoltie alleged that although he sent Cerilli two letters and a third to the Commissioner's office complaining of his lack of access to a grievance procedure at WCP, he received no response. He also claimed that she was responsible for ensuring his safety at WCP. As discussed in the Report and Recommendation that was adopted by the Court, these allegations were insufficient to state a claim against Cerilli due to the absence of any factual allegations about her personal involvement in any wrongdoing.

In the Amended Complaint, Stoltie alleges that Cerilli, as a “final policymaker” for the Westmoreland County Prison, is responsible for oversight of WCP, enforcement of its policies, training and ensuring Stoltie's safety. ECF 58 ¶ 5. He does not make any factual allegations concerning Cerilli's specific involvement in the alleged violations of his rights. Instead, he baldly asserts that Cerilli, among other defendants, failed or refused to investigate claims of his rights being violated. See, e.g., id. ¶ 29.

In support of their motion for summary judgment, Defendants assert that Stoltie has failed to identify any evidence of Cerilli's personal involvement in the violation of his constitutional rights. ECF No. 119 at 4-5. In his opposition, Stoltie merely asserts that Cerilli “was made aware of ongoing violations of [his] rights,” and that her “inaction led to the continued and prolonged violation of [his] constitutionally protected rights.” ECF No. 149 at 1-2. The only evidence on which he relies are his letters to Cerilli that were referenced in and attached to the original Complaint. Id. (citing ECF Nos. 12-1 at 4, 12-3 at 2, and 12-4 at 2).

Stoltie's claims against Cerilli in the original Complaint were dismissed because they were based solely on her receipt of correspondence and her alleged inaction related to the grievance process. Despite amending his complaint, Stoltie has failed to present any evidence of Cerilli's personal involvement in any alleged wrongdoing other than again citing the same letters. As previously determined, the fact that Stoltie sent letters to Cerilli to which she did not respond is insufficient to establish her personal involvement in any wrongdoing and fails to create a genuine issue of material fact.

For these reasons, Defendants' motion for summary judgment should be granted with respect to all claims against Cerilli.

2. Count 1: Food allergy

In Count 1, Stoltie asserts a claim against Defendants Westmoreland County, Kline, Lowther, Schwartz, Brad Tomasello, Pelesky, Wolfe, and Cheryl Tomasello.⁴ ECF No. 58 ¶ 59. Stoltie asserts that these defendants “acted with deliberate indifference to the consequence of their acts and omissions by allowing the continued violation of [his] rights,” that is, serving foods to Stoltie to which he is allergic. Id. ¶ 30.

4 Stoltie also brings this claim against Gina Cerilli. ECF No. 58 ¶ 59. For the reasons set forth supra, no further discussion of Cerilli or reference to her inclusion in other claims is necessary.

As Defendants correctly assert, while Stoltie brought this claim under the Eighth Amendment, ECF No. 119 at 5, he was a pretrial detainee at the relevant time and as a result, the Eighth Amendment is not applicable to this claim.⁵ Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (explaining that “the Eighth Amendment's Cruel and Unusual Punishments Clause does not apply until after sentence and conviction.”) (citation and quotation marks omitted). Instead, Stoltie's claim must be evaluated under the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535-36 (1979) (“under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”) (citations omitted); see also Mala., 704 F.3d at 244 (explaining that courts may apply the relevant legal principle even when pro se litigant has failed to name it).

5 In his responses in opposition to the motion for summary judgment, Stoltie does not challenge Defendants' argument that the Eighth Amendment does not apply to this claim. ECF No. 149 at 2-4; ECF No. 186 at 2.

Substantive due process affords pretrial detainees “at least as robust as Eighth Amendment protections afforded prisoners.” Hope v. Warden York Cty. Prison, 972 F.3d 310, 325 (3d Cir. 2020). For Stoltie to pursue such a claim, he must identify facts that would demonstrate: “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citation omitted).

Defendants argue that they are entitled to summary judgment on this claim for two reasons: (1) Stoltie has failed to show the personal involvement of any of the named defendants in the alleged violation of his rights; and (2) Stoltie has failed to show that he had a serious medical need to which these defendants were deliberately indifferent. ECF No. 119 at 5-6. Defendants are correct on both points.

While Stoltie generally claims that each of these defendants was personally involved in serving him food to which he was allergic, he fails to identify any of them by name or the actions in which they allegedly were engaged. See, e.g., ECF No. 151 at 2 (“Defendants continuously denied plaintiff his nutritionally balanced meal and placed plaintiff at risk of serious injury or death, by placing food items that he is allergic to, on his food tray and cross contaminating the entire meal, this occurring at times daily, even bidaily.”) In fact, of the defendants named in this count, only Cheryl Tomasello (identified by Stoltie as a “C/o at WCP, responsible for enforcing rules and regulations, the supervision of WCP meal distribution and special/medical diets [and] plaintiff's safety ....” id. ¶ 26), appears to have any actual connection to the service of food.⁶However, Stoltie fails to proffer any evidence that Cheryl Tomasello was in any way involved with serving him food to which he was allergic or acquiesced in or directed that this be done.

6 Westmoreland County could not have been involved in actually serving food to Stoltie. Of the remaining named defendants, Bryan Kline is identified by Stoltie as the warden, ECF No. 58 ¶ 6; George Lowther as the deputy warden of security, id. ¶ 7; Eric Schwartz as the deputy warden of treatment, id. ¶ 8; and Brad Tomasello, Steven Pelesky and Dayton Wolfe as lieutenants, id. ¶¶ 9-11.

In support of this claim, Stoltie cites to request slips he submitted about this issue which were reviewed by an unidentified person or persons. Each time, the person or persons responding to the request indicated that steps were taken to make the kitchen aware of Stoltie's allergies. ECF No. 149 at 2-4 (citing ECF No. 149-1 at 1-7). However, this evidence fails to show that any defendant named in Count 1 participated in placing or serving any of the offending foods to Stoltie. Further, to the extent that Stoltie intended this claim to be based on supervisory liability, he has produced no evidence that any of these defendants directed or acquiesced to the complained-of conduct. Indeed, the cited evidence does not concern any named defendant.

Moreover, the sole support offered by Stoltie for his claim that his allergies to pineapple and mustard constitute a serious medical need is his bald assertions that he is “severely allergic” to these items and that serving them to him risked his “serious injury or death.” ECF No. 149 at 2. In support of these statements, Stoltie cites only to prison documents that note the existence of his food allergies. Id. (citing ECF No. 149-1). Notably, however, these documents do not characterize Stoltie's allergies as “severe” or provide any information as to the effect that exposure to these foods could have. In short, while it is uncontroverted that Stoltie has food allergies, he has not shown that his allergies constitute a serious medical need. Cf. Kokinda v. Pa. Dep't of Corr., 2017 WL 11461508, at *5 (W.D. Pa. July 28, 2017) (noting that plaintiff vividly detailed “the deleterious effects of [his] physical and mental health that he allegedly experienced as a result of being forced to eat foods containing soy.”)

Stoltie has provided evidence that he was allergic to mustard and pineapple and that although these allergies were known to the prison, he was served these foods. While orders concerning Stoltie's documented food allergies should have been followed, he has failed to offer any evidence that any of the named defendants served foods to him to which he was allergic or directed others to do so. The lack of any such evidence is fatal to his claim against the defendants named in Count I.

Therefore, Defendants' motion should be granted as to Count 1.

3. Count 2: Grievances

In Count 2, Stoltie asserts that Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, and Cheryl Tomasello violated his rights under the First and Fourteenth Amendments when they denied him the opportunity to redress his grievances by disregarding the procedures for handling grievances in the prison. ECF No. 58 ¶ 60.

Defendants argue that no constitutional violation can stem from failure to abide by the prison grievance procedure where prisoners do not have a constitutional right to such a procedure. ECF No. 119 at 6-7. In response, Stoltie baldly asserts that, while “[p]risoners do not have a right to a grievance, [] when a grievance procedure is in place, defendants have a duty to uphold and enforce said procedure.” ECF No. 149 at 4.

Stoltie's unsupported conclusion is not the law. The United States Court of Appeals for the Third Circuit has held: “Access to prison grievance procedures is not a constitutionally-mandated right, and allegations of improprieties in the handling of grievances do not state a cognizable claim under § 1983.” Glenn v. Delbalso, 599 Fed.Appx. 457, 459 (3d Cir. 2015) (citations omitted); see also Wyland v. Brownfield, 2011 WL 5445305, *11 (W.D. Pa. Nov. 9, 2011) (finding no relief available for claim under First and Fourteenth Amendments arising out of grievance process and explaining that a prisoner's right to redress grievances is the right of access to courts which is not compromised by the failure of a prison to properly address grievances) (citations omitted).

Because Stoltie's claim is without merit, Defendants' motion for summary judgment should be granted as to Count 2.

4. Count 3: Mental health care

Stoltie alleges in Count 3 that Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, Wolfe, and Brad Tomasello violated his rights under the Fourteenth Amendment⁷ and the Americans with Disabilities Act (“ADA”) by failing to provide him with adequate mental health care and discriminating against him based on his disability. ECF No. 58 ¶ 61.

7 Stoltie also brings this claim under the Eighth Amendment. ECF No. 58 ¶ 61. For the reasons set forth supra, the Eighth Amendment is not applicable to his claims.

As to the Fourteenth Amendment claim, Defendants argue that Stoltie has not identified a serious mental health need that was not met. ECF No. 119 at 8. In turn, Stoltie points to a twomonth period during which, he alleges, he was not provided with medications for his mental illnesses, followed by a time when these medications were provided but not properly monitored. ECF No. 149 at 4-6.

Other than Defendant Schwartz, whose job duties include “being in charge of the medical department including doctor, nurses, dentist, and psych doctor” ECF No. 149-3 at 1, none of the remaining named defendants is alleged to be health care personnel at WCP. ECF No. 149 at 5. There are no other facts in the record that support Stoltie's contention that any of the other named defendants had any role in his health care. Thus, Stoltie's claim against the named defendants other than Schwartz is without any factual support, and they are entitled to judgment as a matter of law with respect to the civil rights portion of this claim.

Further, as set forth above, supervisor-defendants may be liable for unconstitutional acts undertaken by subordinates only where the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm,” A.M. ex rel. J.M.K., 372 F.3d at 586, or “if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. Other than demonstrating that Schwartz was in charge of the medical department, Stoltie offered no evidence that Schwartz even knew about, let alone was involved in, the medication issues he asserts. Thus, Schwartz is also entitled to summary judgment on the civil rights portion of this claim.

As to the ADA portion of this claim, Stoltie asserts that the named defendants denied him access to programs, services, and qualified mental health staff for his serious mental health needs. ECF No. 58 ¶ 61. In support of their motion for summary judgment, Defendants argue that Stoltie fails to identify which programs and services he was excluded from and provides no evidence that he was excluded from any such services and programs by reason of a disability, therefore failing to establish an ADA claim. ECF No. 119 at 8-9 (citing 42 U.S.C. § 12132 (“no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”))

Stoltie has offered no response to Defendants' arguments. ECF No. 149 at 4-6; ECF No. 186 at 3. Thus, he has abandoned this ADA claim. See Reeves v. Travelers Companies, 296 F.Supp.3d 687, 692 (E.D. Pa. 2017) (“[w]hen a party opposing summary judgment responds to a summary judgment motion but fails to address the substance of any challenge to particular claims, that failure constitutes an abandonment of those causes of action and essentially acts as a waiver of these issues.”) (citations and quotation marks omitted).

For these reasons, Defendants are entitled to judgment in their favor as to Count 3.

5. Count 4: Protection and Advocacy for Individuals with Mental Illness Act

In Count 4, Stoltie seeks relief for multiple defendants' alleged failure to comply with policies set forth in the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. §§ 10801-10851 (the “PAIMI Act”). ECF No. 58 ¶ 62. Defendants argue that they are entitled to summary judgment with respect to this claim because the PAIMI Act does not create a private right of action or impose a duty upon the named defendants. ECF No. 119 at 9. Stoltie offers no legal authority to the contrary and only cites to a portion of the WCP handbook referencing restrictions on inmates in the prison's medical housing unit. ECF No. 149 at 6 (citing ECF No. 149-8 at 7); ECF No. 186 at 3.

Defendants are correct. The PAIMI Act does not afford rights that may be enforced through a private cause of action. Brooks v. Johnson & Johnson, Inc., 685 F.Supp. 107, 110 (E.D. Pa. 1988).

Therefore, Defendants' motion should be granted with respect to Count 4.

6. Count 5: Excessive force

Count 5 of the Amended Complaint alleges that during a cell extraction that occurred on October 10, 2020, Defendants Springer, Demorest, Long, and Jack used excessive force against him in violation of the Fourteenth Amendment.⁸ECF No. 58 ¶ 63. Stoltie further asserts that the force was ordered by Wolfe and Springer and that this order was permitted by Kline, Lowther, Schwartz, and Pelesky. Id. Additionally, Stoltie claims, Defendants Cramer, Giaquinto, and Black failed to protect Stoltie from the use of force. Id. Finally, Stoltie alleges that Kline, Lowther, Schwartz, Pelesky, and Wolfe failed to respond in a reasonable manner to Stoltie's reports of ongoing instances of excessive force. Id.

8 Stoltie also brings this claim under the Eighth Amendment. ECF No. 58 ¶ 62. For the reasons set forth supra, the Eighth Amendment is not applicable to his claims.

In his Supplemental Response in Opposition to the Motion for Summary Judgment, however, it appears that Stoltie has narrowed his claim to the following facts because he identifies no other facts in support of his claim:

With the facts view in the light most favorable to the plaintiff, a reasonable jury could find that, defendants used objectively unreasonable force. Jurors could conclude that Defendant Springer and his fellow officers, were not faced with a disturbance or any threat to jail security. A reasonable fact finder could also conclude that, plaintiff posed no threat throughout the encounter. In viewing the security footage, a reasonable fact finder could find that, Defendant Springer[']s instructions were not clear and that the plaintiff indicated he could not hear or understand such, on Four (4) separate occasions, that the use of O.C.,⁹ E.B.I.D.¹⁰, and physical force against the plaintiff was unnecessary, devoid of any penological need, making the entire encounter gratuitous and objectively unreasonable. A reasonable jury could further find that defendants also violated plaintiffs' rights when they attacked and smashed his head off the shower walls, while plaintiff remained handcuffed, subdued, and defenseless, and that the rights violated were clearly established at the time of the incident. Genuine issues of material fact do exist and summary judgment must be denied on this count.

ECF No. 186 at 5-6. The only defendants who effected the cell extraction were Springer, Demorest, Giaquinto, Long, Jack, and Black. ECF No. 120-1. Cramer only operated the camera. Id.

9 O.C. stands for oleoresin capsicum. O.C. spray is commonly known as pepper spray.

10 E.B.I.D. stands for electric body immobilizer device.

The facts relevant to the cell extraction at issue are as follows.¹¹On October 10, 2020, Stoltie was in disciplinary housing for assaulting another inmate. ECF No. 121 ¶ 13; ECF No. 150 ¶ 13; ECF No. 151 ¶ 6. Stoltie had covered his cell window and wicket and did not comply with multiple requests to come to the wicket and cuff up. ECF No. 121 ¶ 11; ECF No. 150 ¶ 11. When Stoltie was ordered to come to the window and cuff up, he stated that he could not hear Springer's order; however, he took no action to put himself in a position to hear the order nor did he uncover the window or wicket. ECF No. 120-1; ECF No. 121 ¶ 11; ECF No. 150 ¶ 11. O.C. gas was sprayed into Stoltie's cell and Stoltie was again ordered to come to the wicket and cuff up, but he did not. ECF No. 120-1; ECF No. 121 ¶ 16; ECF No. 150 ¶ 16. When the cell door was opened, Stoltie, who was 6'2” and 326 pounds, pushed his way out of the cell, where the six correctional officers seized him with the aid of the deployment of an E.B.I.D., and handcuffed him. ECF No. 120-1; ECF No. 121 ¶¶ 17, 28, ECF No. 150 ¶¶ 17, 28. The officers stood Stoltie up and walked him to a shower where they placed him under the water to rinse his eyes. ECF No. 120-1; ECF No. 121 ¶ 20; ECF No. 150 ¶ 20. The officers subsequently brought Stoltie to a gymnasium where his vital signs were assessed by a nurse and found to be good. ECF No. 120-1; ECF No. 121 ¶ 23; ECF No. 150 ¶ 23. Stoltie was then placed in cell E2054. ECF No. 120-1; ECF No. 121 ¶ 24; ECF No. 150 ¶ 24.

11 These facts are derived from Defendants' Concise Statement of Material Facts, ECF No. 121; Stoltie's Responsive Concise Statement, ECF No. 150; Stoltie's Statement of Disputed Facts, ECF No. 151; and a review of the video of the cell extraction provided by Defendants. ECF No. 120-1. When the events at issue have been captured on video, the Court must consider the video evidence in determining whether there is any genuine dispute as to material facts. Scott v. Harris, 550 U.S. 372, 380-81 (2007). The Court must view the facts in the light depicted by the video. Id. (relying on a video in assessing summary judgment evidence and admonishing that the lower court “should have viewed the facts in the light depicted by the video[].”).

To state a Fourteenth Amendment violation for excessive force, a pretrial detainee must show “that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015). When evaluating a Fourteenth Amendment excessive force claim, courts must pay “careful attention to the facts and circumstances of each particular case,” and use these six “Kingsley factors”: “[1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiff's injury; [3] any effort made by the officer to temper or to limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting.” Jacobs v. Cumberland Cty., 8 F.4th 187, 194-95 (3d Cir. 2021) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989), and Kingsley, 576 U.S. at 397).

Defendants argue:

Stoltie's non-compliance with blocking his window and wicket and failure to unblock the same when approached by the extraction team revealed Stoltie desired to be noncompliant. The use of OC gas in this situation was approved by Defendant

Wolfe and Nurse Lardin. Additionally, you will notice when he emerges from his cell, Stoltie had a rag wrapped around his mouth and nose in anticipation of being sprayed with OC gas. The use of force he[re] was not for punishment, but objectively reasonable to control a noncompliant inmate, who had just the day before had another disciplinary issue in assaulting a fellow inmate. Considering the noncompliance and Stoltie's size, along with the assault he engaged in the day prior, the tactics used by the extraction team were objectively []reasonable.

ECF No. 119 at 12-13 (citations omitted).

In opposition to the motion for summary judgment on this issue, Stoltie primarily focuses on the officers' violations of prison policies in executing the cell extraction, not on the use of force. ECF No. 186 at 3-6 (arguing, inter alia, failure to determine whether Stoltie had to be moved to another location, the eye flushing should have been performed by medical personnel, lack of documentation that Jack was certified to use the E.B.I.D.). Even assuming arguendo that such policy violations occurred, it is well established that a prison policy manual does not have the force of law and cannot be the basis for a constitutional violation. See Atwell v. Lavan, 557 F.Supp.2d 532, 556 n.24 (M.D. Pa. 2008). (“The Third Circuit has clearly stated that agency interpretive guidelines do not rise to the level of a regulation and do not have the effect of law” (citing Mercy Cath. Med. Ctr. v. Thompson, 380 F.3d 142, 155 (3d Cir. 2004)). Furthermore, “a one-time violation of an internal policy does not automatically rise to the level of a constitutional violation.” Fatir v. Phelps, 2019 WL 2162720, at *7 (D. Del. May 17, 2019).

Additionally, some of Stoltie's assertions are belied by the record. For instance, he asserts that Springer violated policy when he failed to give Stoltie an order on what he was to do before administration of the O.C. spray. ECF No. 186 at 4. The video footage reflects that Springer specifically ordered Stoltie to come to the wicket and cuff up or he would be sprayed. ECF No. 120-1. Although Stoltie claimed then, as he does now, that he was unable to hear this order, it is noted that Stoltie's voice may be heard clearly through the cell door, that Stoltie responded to each order after it was made, and that Stoltie prepared to be sprayed, as evidenced by his use of a facial covering. Id.

In any event, the undisputed facts show that the corrections officers needed to use force to accomplish the cell extraction. Stoltie, who had assaulted another inmate the day before, was noncompliant with orders and exhibited force when the cell door was opened. He is a large man and resisted being handcuffed. Stoltie sustained no injury during the extraction, which took less than two minutes from the first spray of O.C. to the walk to the showers. In short, no reasonable jury could view the video of the cell extraction and conclude that the amount of force used was objectively unreasonable.

Accordingly, Defendants' motion as to Count 5 should be granted.

7. Count 6: Cell conditions

In Count 6, Stoltie asserts that Defendants Kline, Lowther, Schwartz, Wolfe, Pelesky, Brad Tomasello, Springer, and Kemerer violated his Eighth Amendment right to be free from cruel and unusual punishment by subjecting him to “subhuman and deplorable” cell conditions in cell E2054,¹²which was not cleaned before Stoltie's placement there. ECF No. 58 ¶ 64; ECF No. 151 ¶ 18. Stoltie further asserts that he was not provided with a new hygiene packet once he was housed in E2054. ECF No. 151 ¶ 18.

12 In his Amended Complaint, Stoltie mislabeled the cell number as E2053. ECF No. 58 ¶ 35.

Again, because Stoltie is a pretrial detainee, this claim must be evaluated pursuant to the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment. Under the Fourteenth Amendment, when a pretrial detainee complains about the conditions of his confinement, courts are to consider whether the conditions “amount to punishment prior to an adjudication of guilt in accordance with law.” Hubbard, 399 F.3d at 158. However, pretrial detainees retain at least those constitutional rights enjoyed by convicted prisoners, Bell, 441 U.S. at 545, and unsanitary conditions due to a prisoner's proximity to human waste can be a violation of the Eighth Amendment, see Pressley v. Miller, 2022 WL 17414866, at * (3d Cir. Dec. 5, 2022) (citing McBride v. Deer, 240 F.3d 1287, 1292 (10th Cir. 2001) (stating that, because “human waste [is] considered particularly offensive . . . courts have been especially cautious about condoning conditions that include an inmate's proximity to [it].”)).

In his verified responses to the motion for summary judgment, Stoltie identifies only one defendant in connection with this claim: Springer. ECF No. 149 at 12-13; ECF No. 186 at 6. He asserts that Springer placed Stoltie in Cell E2054 in order to “fuck with” Stoltie because he knew that the prior inhabitant had urinated all over the cell and mattress. ECF No. 186 at 6.

Defendants argue that “there is no evidence the conditions of punishment exist here,” pointing out that the video of the cell extraction shows that Stoltie does not complain about the condition of the cell when he enters it. ECF No. 119 at 13 (citing ECF No. 120-1). While the video does reflect that in the period of more than three minutes after Stoltie arrives in the cell, he makes no comment or complaint about its condition, that evidence is not dispositive of the cell conditions at that time. In his verified responses, Stoltie describes his personal knowledge of the unsanitary condition of the cell where he was held for three days. ECF No. 149 at 12-13; ECF No. 186 at 6. This evidence is sufficient to establish a question of fact as to the whether the conditions of the cell constituted an objectively serious deprivation of Stoltie's basic human need for sanitation.

Defendants also argues that “[p]ursuant to policy, Stoltie was to be issued a new hygiene packet.” ECF No. 119 at 13 (citing ECF No. 121 ¶ 27). This evidence is not dispositive of the issue of whether a hygiene packet was actually issued to Stoltie upon his relocation. In his verified responses to the Motion for Summary Judgment, Stoltie stated that he did not receive such a packet. ECF No. 149 at 12-13; ECF No. 186 at 6. There is thus sufficient evidence to establish a question of fact.

Accordingly, the Motion for Summary Judgment should be denied as to Count 6 against Defendant Springer and granted as to all other defendants named in this count.

8. Count 7: Legal mail

In Count 7, Stoltie asserts that Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, Brad Tomasello, Martin, and Cramer violated his rights under the First, Fourth,¹³and Fourteenth Amendments by opening his legal mail outside of his presence and censoring his mail without due process. ECF No. 58 ¶ 65.¹⁴He alleges that his legal mail was opened outside of his presence on two occasions, id. ¶ 38, and that these actions “strip those protected communications of their confidentiality, inhibiting [his] ability to speak, protest, and complain openly, directly, and without reservation with the court,” id. ¶ 65.

13 Defendants argue that this claim does not implicate the Fourth Amendment. ECF No. 119 at 14. Stoltie presents no argument in response ECF No. 149 at 13; ECF No. 186 at 6, thus abandoning this portion of the claim. See Reeves, 296 F.Supp.3d at 692.

14 As part of this claim, Stoltie incorporates his access-to-courts claim, which is fully addressed in Count 12 and will not be addressed here.

Defendants argue that there is no evidence that these defendants violated Stoltie's constitutional rights either by virtue of an unconstitutional policy or by any personal involvement on the part of the named defendants. ECF No. 119 at 15. Although Stoltie challenged the prison's policies in the Amended Complaint, id. ¶ 65, he has evidently abandoned that portion of the claim, as he concedes that the prison's policies do, in fact, require that privileged mail is to be opened in the presence of the inmate. ECF No. 186 at 6. Rather, Stoltie appears to contend that the defendants violated these policies.

The only defendants Stoltie asserts to have been personally involved in opening his legal mail are Martin and Cramer, ECF No. 151 ¶ 23, who are identified in the Amended Complaint as corrections officers, ECF No 58 ¶¶ 16, 25. Stoltie offers no admissible evidence of their involvement, however, naming them only in his unverified Statement of Disputed Facts, ECF No. 151 ¶ 23, and otherwise failing to provide any record support for his allegation. Indeed, as Defendants point out, ECF No. 119 at 14, Stoltie provides details as to only one of the alleged instances where his legal mail was opened outside of his presence (this instance will be addressed further in Count 12), ECF No. 58 ¶ 38, and even then, fails to identify who was responsible for opening his mail on that occasion or the motive for doing so.

A pattern and practice of opening prisoners' legal mail outside of their presence impinges upon a prisoner's First Amendment rights. Taylor v. Oney, 196 Fed.Appx. 126, 128 (3d Cir. 2006). At best, however, Stoltie has provided evidence of one incident in which his legal mail was opened outside of his presence by an unidentified person for an unknown reason. Because isolated incidents of the opening legal mail outside of a prisoner's presence without evidence of an improper motive are insufficient to establish a First Amendment violation, Folk v. Bureau of Prisons, 2020 WL 3304132, at *1-2 (M.D. Pa. June 18, 2020) (collecting cases), and because Stoltie has failed to provide evidence of a pattern or practice of such conduct, he has failed to show that there is a genuine issue of material fact regarding this claim. Coupled with his failure to proffer any facts that support his claim that any of the named defendants opened his legal mail outside his presence, there is simply no basis for liability.

As a result, Defendants' motion should be granted as to Count 7.

9. Count 8: Strip searches

In Count 8, Stoltie asserts violations of the Fourth and Eighth Amendments¹⁵on the part of Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, Wolfe, and Brad Tomasello for “permitting, ordering, or conducting” weekly strip searches of detainees in disciplinary housing. ECF No. 58 ¶ 66.

15 As set forth above, the Eighth Amendment is not applicable to Stoltie because he was a pretrial detainee at the relevant time. Further, even if he was not a pretrial detainee, the Eighth Amendment would only be applicable if the challenged search was undertaken maliciously or for the purposes of abuse. Parkell v. Danberg, 833 F.3d 313, 336 (3d Cir. 2016) (citations omitted).

Defendants contend that the United States Supreme Court has found that similar searches of pretrial detainees do not violate the Constitution, ECF No. 119 at 16 (citing Bell, 441 U.S. at 558), and that the searches serve a legitimate purpose of institutional security, id. (citing ECF No. 121 ¶ 41). In opposing Defendants' motion, Stoltie asserts that WCP possesses a body scanning machine that can and should be used instead of strip searches and cites to two vulgar comments from unidentified staff at WCP that alleged to have been made during such searches of other inmates. As a result, he contends, this renders the searches impermissibly invasive. ECF No. 186 at 7.

The Third Circuit has explained the relevant legal considerations regarding this issue as follows:¹⁶

16 This legal analysis applies to all individuals assigned to general population in a correctional facility, including pretrial detainees. Parkell, 833 f.3d at 324 n.7.

[T]he contours of prisoners' Fourth Amendment rights ... are very narrow. The application of the Fourth Amendment once again requires us to balance interests. “The test of reasonableness under the Fourth Amendment . . . requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell, 441 U.S. at 559. “Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. Inmate search policies are constitutional if they “str[ike] a reasonable balance between inmate privacy and the

needs of the institutions.” [Florence v. Bd. of Chosen Freeholders,] 132 S.Ct. [1510] at 1523 [(2012)].

In balancing those interests in the prison context, we must give considerable weight to the “place in which [the search] is conducted” - prisons being “places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct,” Hudson [v. Palmer], 468 U.S. [517] at 526 [(1984)]- and considerable deference to “the justification for initiating it.” Bell, 441 U.S. at 559. “[C]orrectional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities.” Florence [], 132 S.Ct. at 1517. A regulation “impinging on an inmate's constitutional rights must be upheld if it is reasonably related to legitimate penological interests.” Id. at 1515 (quotation marks omitted). We recognize that “[t]he task of determining whether a policy is reasonably related to legitimate security interests is peculiarly within the province and professional expertise of corrections officials.” Id. at 1517 (quotation marks omitted). Unless there is “substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters.” Id. (quotation marks omitted).

Parkell v. Danberg, 833 F.3d 313, 326 (3d Cir. 2016).

Thus, in order to succeed on this claim, Stoltie is required to provide “substantial” evidence that the weekly strip searches are an exaggerated response to the prison's legitimate security interests. He has failed to do so. Instead, Stoltie's claim is based solely on the mere existence of the searches. He baldly asserts that the practice of weekly searches “violates the rights of plaintiff.” ECF No. 186 at 7. As the case law demonstrates, however, such searches are not per se unconstitutional. Stoltie further argues that “[a] reasonable jury could find that, W.C.P.'s blanket policy, custom, or practice, of weekly strip searches, lacks a legitimate governmental objective, that said searches were unreasonable, arbitrary, purposeless, and conducted to degrade and humiliate inmates ...” Id. In fact, no reasonable jury could make such a finding, because Stoltie advances no evidence that would support such a finding.

Thus, Defendants are entitled to summary judgment with respect to Count 8.

10. Count 9: Personal property

In Count 9, Stoltie asserts that Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, and Brad Tomasello violated his Fifth¹⁷and Fourteenth Amendment rights by taking his personal property without due process and converting such property for facility use. ECF No. 58 ¶ 67. In support of this claim, Stoltie cites only to an exhibit listing amounts he spent on unidentified items at the commissary. ECF No. 186 at 7 (citing ECF No. 186-7). Stoltie provides no facts as to when, how, or by whom any of these purchased items were allegedly confiscated.

17 To the extent that Stoltie seeks to invoke the Fifth Amendment's due process clause, it is inapplicable because the named defendants are not federal government actors. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without ‘due process of law.'”) To the extent Stoltie seeks to invoke the protections of the Fifth Amendment “takings clause,” which prohibits the taking of private property for public use without just compensation, as incorporated against the states via the Fourteenth Amendment's substantive due process clause, he fails to state a claim for the reasons set forth herein.

In any event, as Defendants argue, ECF No. 119 at 16-17, even an intentional destruction of a prisoner's property does not violate due process if the prison provides a meaningful postdeprivation remedy, like that available through the prison grievance system or a tort lawsuit in state court. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Spencer v. Bush, 543 Fed.Appx. 209, 213 (3d Cir. 2013); Thompson v. Ferguson, 859 Fed.Appx. 33, 36 n.1 (3d Cir. 2021). It is undisputed that Stoltie availed himself of the grievance process and obtained compensation for his lost property. ECF No. 121 ¶ 50; ECF No. 150 ¶ 50. As such, his claim fails as a matter of law.

Thus, the motion for summary judgment should be granted as to Count 9.

11. Count 10: Exercise conditions

In Count 10, Stoltie asserts that Defendants Kline, Lowther, Schwartz, Pelesky, Wolfe, and Brad Tomasello prevented him from any “meaningful exercise opportunity” for three months by refusing to provide him with adequate clothing for cold weather conditions. ECF No. 58 ¶ 68.¹⁸

18 Stoltie brings this claim under the Eighth Amendment, id.; however, because he was a pretrial detainee at the relevant time, this claim must be considered under the Fourteenth Amendment. See Hubbard, 399 F.3d at 157-60.

In support of their Motion for Summary Judgment, Defendants argue that there is no evidence that any of the defendants named in this claim either personally acted to deprive him of adequate clothing and/or make him exercise in cold weather conditions. Further, there is no evidence that a policy existed that forced him to exercise without sufficient clothing for weather conditions. ECF No. 119 at 18.

In opposition, Stoltie cites a request form in which he sought either to be provided with warm clothing or to be granted permission to purchase thermal underwear. ECF No. 186 at 7-8 (citing ECF No. 120-19 at 1-2). On the form, Defendant Schwartz indicates that Stoltie is approved to purchase thermal underwear. ECF No. 120-19 at 2. In different handwriting, an unknown individual indicates that Stoltie “must submit a request for this item to Deputy Warden Louder [sic].” Id. Stoltie asserts that he was “ultimately denied warmer clothing for the duration of his Three (3) months in disciplinary housing ....” ECF No. 186 at 8. He does not identify any defendant as the responsible party for this denial.

The facts of record show establish that Schwartz was aware of Stoltie's request and approved Stoltie's request to purchase thermal underwear. Stoltie has failed to proffer any evidence, nor does it otherwise exist in the record, that he submitted a request to Defendant Lowther or who advised him to do so. Thus, there is insufficient evidence to support a claim that Schwartz personally acted to deprive Stoltie of adequately warm clothing. Moreover, there is no record evidence that any of the other named defendants engaged in conduct to deprive Stoltie of adequate clothing.

For these reasons, Defendants' motion should be granted as to Count 10.

12. Count 11: Mail and newspapers

In Count 11, Stoltie asserts that Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, Martin, and Cramer violated his First, Fifth, and Fourteenth Amendment rights by confiscating and discarding his mail. ECF No. 58 ¶ 69. This claim concerns: (1) a litigation manual Stoltie ordered; (2) issues of USA Today; and (3) other mail that was discarded. ECF No. 186 at 8-9.

As to the litigation manual, Stoltie asserts that Defendant Lowther denied him possession in retaliation for filing a civil complaint against WCP officials. Id. To succeed on a claim of retaliation under the First Amendment, a plaintiff must show “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).

Defendants assert that the because the book exceeded the size permitted by prison policy, Stoltie was not permitted to possess it in his cell, but Defendant Kline had Stoltie's copy placed into Stoltie's property bag and purchased another copy for the prison law library. ECF No. 119 at 20 (citing ECF No. 121 ¶ 57). Stoltie admits these facts. ECF No. 150 ¶ 57. Defendants argue that because Stoltie was not deprived of ownership or use of the manual, no constitutional violation occurred. ECF No. 119 at 20. Defendants are correct. The retaliation claim fails because there is no evidence of a retaliatory action. Rather, while Stoltie was not permitted to have the book in his cell pursuant to prison policy, he did have access to a copy and retained ownership of the copy he ordered. Therefore, the actions taken by any of the Defendants were not retaliatory, but done pursuit to policy, and further, Stoltie has failed to demonstrate any harm as a result of these actions.

With respect to copies of USA Today, Stoltie asserts that 126 issues of his newspapers were discarded while he was in disciplinary housing. ECF No. 186 at 8-9. He does not identify the responsible party. It is undisputed that WCP policy permits only two newspapers per cell in general housing cell and that any amount in excess will be confiscated and discarded. ECF No. 121 ¶ 35; ECF No. 150 ¶ 35. Further, personal items such as newspapers are limited while an inmate is in disciplinary housing. ECF No. 121 ¶ 33; ECF No. 150 ¶ 33. Finally, it is undisputed that the mail room held three newspapers for Stoltie when he came out of disciplinary housing. ECF No. 121 ¶ 54; ECF No. 150 ¶ 54. According to Defendants, Stoltie instructed the mail room to donate his other newspapers to the library, and Stoltie's denial based upon his assertion that he “lacks knowledge and information sufficient to form a belief” as to the truth of Defendants' statement is insufficient to create a genuine issue of material fact. Id.

Stoltie asserts that a reasonable jury could find that the unidentified party who discarded his newspapers did so “with malicious intent.” ECF No. 186 at 9. Even viewing the facts in the light most favorable to him as the non-moving party and drawing all reasonable inferences in his favor, there is simply no basis upon which a reasonable jury could return a verdict for Stoltie on this claim against any of the named defendants. As Defendants argue, ECF No. 119 at 19-20, the undisputed evidence shows that the newspapers were discarded as a matter of prison policy of which Stoltie had notice. Stoltie presents no evidence of malicious intent or any comparable evidence that would bring this issue within the realm of a constitutional violation. He does not offer any evidence as to who may have done so. Further, as discussed earlier, even an intentional destruction of a prisoner's property does not violate due process if the prisoner has a meaningful post-deprivation remedy, which is available through the prison grievance system or a tort lawsuit in state court. See Hudson, 468 U.S. at 533; Thompson, 859 Fed.Appx. at 36 n.1. Simply put, Stoltie has failed to show any violation of his civil rights by the discarding of newspapers pursuant to WCP policy.

As to the discarded mail, Defendants argue that there is no evidence of censorship of Stoltie's mail and that he has meaningful post-deprivation remedies for any negligence or conversion of his property. ECF No. 119 at 20-21. Stoltie presents no argument in response, ECF No. 149 at 18-20; ECF No. 186 at 8-9, thus abandoning this portion of the claim. See Reeves, 296 F.Supp.3d at 692.

As a result, Defendants' motion should be granted as to Count 11.

13. Count 12: Access to courts

In Count 12, Stoltie asserts that Defendants Westmoreland County, Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, Martin, and Cramer violated his rights under the First, Fifth, and Fourteenth Amendments “by and through policies, procedures, practices, or custom[s]” which obstructed his access to the courts. ECF No. 58 ¶ 70.¹⁹Stoltie further asserts that these policies, procedures, practices and/or customs prevented him from litigating a civil action he filed by censoring his legal mail and denying him adequate access to the law library and/or legal assistance, resulting in the dismissal of his civil action. Id. Defendants argue that Stoltie has failed to provide evidence that any policy of these defendants caused this injury. ECF No. 119 at 14-15, 21-22.

19 Stoltie's basis for invoking the Fifth Amendment is unclear. At any rate, the Fifth Amendment's due process clause is inapplicable because the named defendants are not federal government actors. See Dusenbery, 534 U.S. at 167.

As the Third Circuit has explained:

Under the First and Fourteenth Amendments, prisoners retain a right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 346, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). However, prisoners may only proceed on access-to-courts claims in two types of cases, challenges (direct or collateral) to their sentences and conditions of confinement. See id. at 354-55. Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an “actual injury” -- that they lost a chance to pursue a “nonfrivolous” or “arguable” underlying claim; and (2) that they have no other “remedy that may be awarded as recompense” for the lost claim other than in the present denial of access suit. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). To that end, prisoners must satisfy certain pleading requirements: The complaint must describe the underlying arguable claim well enough to show that it is “more than mere hope, and it must describe the “lost remedy.” See id. at 416-17.

Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (footnote omitted).

Stoltie identifies the dismissed civil action that is the basis for his access to the courts claim as a Section 1983 lawsuit that was filed in the United States District Court for the District of South Carolina. ECF No. 58 ¶ 38. Stoltie claims that the contents of the District Court's denial of his motion for reconsideration were missing, other than a cover sheet, and as a result, he failed to meet the deadline to appeal the denial of the motion for reconsideration.²⁰ Id.

20 The motion sought reconsideration of the District Court's order dismissing the case for failure to prosecute and for failure to comply with court orders. Stoltie v. County of Anderson, Case No. 6:20-cv-00193-TMC (D. S.C.), ECF No. 24.

It is uncontroverted that the order denying his motion for reconsideration was entered on August 4, 2020. Stoltie v. County of Anderson, Case No. 6:20-cv-00193-TMC (D. S.C.), ECF No. 25. Stoltie advised the South Carolina District Court that he received the cover sheet on August 12, 2020, but without the contents. Id., ECF No. 29. He did not ask for a copy of the August 4, 2020, order until November 27, 2020. Id., ECF No. 27. The Court sent it to him on December 1, 2020, id., ECF No. 28, and then permitted him to appeal out of time, id., ECF No. 32, which he did on December 17, 2020, id., ECF No. 31.

The published decision of the United States Court of Appeals for the Fourth Circuit of which the Court takes judicial notice reveals that while Stoltie's appeal of the underlying order dismissing his action was untimely,²¹the Court of Appeals addressed his appeal of the District Court's denial of the motion for reconsideration. As stated by the Fourth Circuit:

21 In his Amended Complaint, Stoltie alleges that he was unable to avoid that dismissal, “[d]ue to a combination of events.” ECF No. 58 ¶ 38.

Brian Joseph Stoltie appeals the district court's orders dismissing his 42 U.S.C. § 1983 complaint without prejudice for failure to prosecute and denying relief on his motion to reconsider pursuant to Fed.R.Civ.P. 60(b). We dismiss in part and affirm in part.

Regarding the dismissal of his complaint, Stoltie's notice of appeal was due no more than 30 days after the entry of the district court's final judgment or order, Fed. R. App. P. 4(a)(1)(A), unless the district court extended the appeal period under Fed. R. App. P. 4(a)(5), or reopened the appeal period under Fed. R. App. P. 4(a)(6). “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). The district court's order dismissing Stoltie's complaint was entered on May 21, 2020, and, according to his own assertion, Stoltie first received notice of the entry of that order on July 24, 2020. Thus, in order for the district court to have the authority to reopen the appeal period as to that order, Stoltie was required to file a motion requesting that the court do so by August 7. See Fed. R. App. P. 4(a)(6)(B).^{[fn 1]} However, Stoltie did not move for an extension of the appeal period until December 8. See Houston v. Lack, 487 U.S. 266, 267, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (establishing prison mailbox rule). Thus, the district court did not have the authority to grant an extension of the appeal period as to this order. See Fed. R. App. P. 26(b)(1) (prohibiting extension of time to file notice of appeal except as authorized by Fed. R. App. P. 4). Accordingly, to the extent that Stoltie seeks to appeal the district court's order dismissing his complaint, we dismiss the appeal for lack of jurisdiction.

Stoltie also appeals the district court's order denying his motion for reconsideration.^{[fn 2]} We review the denial of motions for reconsideration filed pursuant to Rule 60(b) for abuse of discretion. Aikens, 652 F.3d at 501. Having

reviewed the record, we conclude that the district court did not abuse its discretion in denying Stoltie's motion. Accordingly, we affirm the district court's order denying that motion. ...

[footnote 1] Although Stoltie filed a motion to reconsider the district court's order within that period, that filing did not toll the applicable periods because the motion was filed more than 28 days after the entry of the court's order. See Fed. R. App. P. 4(a)(4)(A)(vi).

[footnote 2] Because Stoltie moved for the district court to reopen the appeal period as to this order within 14 days of receiving notice of the order and the district court granted the motion, we have jurisdiction over this portion of the appeal. However, because “an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review,” Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (en banc) (internal quotation marks omitted), the limited reopening of the appeal period does not confer on this court jurisdiction to review the underlying order dismissing Stoltie's complaint.

Stoltie v. County of Anderson, 860 Fed.Appx. 44 (4^th Cir. 2021).

Thus, the uncontroverted evidence is that Stoltie filed a motion for reconsideration that was denied by the District Court and his appeal of this denial was heard and decided on the merits by the Fourth Circuit. Thus, even if some of the contents of the District Court's order were missing, Stoltie was, in fact, able to appeal this order. As such, his claim has no merit.

Accordingly, Defendants are entitled to summary judgment with respect to Count 12.

14. Counts 13 and 14: Work assignment

In Count 13, Stoltie asserts a violation of the Fourteenth Amendment by Defendants Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, Fagan, and Kemerer for placing him in a work assignment that was medically inappropriate for him due to an injury to his left knee, and as a result, caused him severe pain to which they were deliberately indifferent. ECF No. 58 ¶ 71. In Count 14, Stoltie asserts that Defendants Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, Fagan, and Kemerer violated his rights under the Thirteenth Amendment by subjecting him to a work assignment after he requested to be relieved of such assignment because it was medically inappropriate for him. Id. ¶ 72.

Counts 13 and 14 have essentially the same basis: Stoltie being assigned to work that resulted in pain due to his medical condition. A claim that a pretrial detainee is forced to work despite medical limitations is properly asserted under the Fourteenth Amendment. It is not a claim of involuntary servitude under the Thirteenth Amendment as pleaded in Count 14. See Lymon v. Aramark Corp., 488 Fed.Appx. 771, 778 (10^th Cir. 2012) (explaining that the constitutional prohibition concerning disregard of medical limitations is the Eighth Amendment's prohibition on cruel and unusual punishment, not the Thirteenth Amendment's provision against involuntary servitude); see also Hubbard, 399 F.3d at 157-60 (explaining claims of pretrial detainees must be considered under the Fourteenth Amendment rather than the Eighth Amendment). Thus, Defendants are entitled to judgment as a matter of law with respect to Count 14.

With respect to Count 13, Defendants argue that because Stoltie volunteered to work despite knowing of his knee injury, no constitutional violation occurred.²²ECF No. 119 at 22-23. Stoltie asserts that he was diagnosed with an ACL tear in May 2021; he supports this assertion with an MRI report from May 21, 2021, which indicated that his ACL appeared to be ruptured. Id.; ECF No. 150 ¶ 44 (citing ECF No. 186-4 at 11-12). He was assigned to a janitorial position from August 16, 2021, to October 29, 2021, and as a maintenance worker from September 6, 2021, to September 12, 2021. ECF No. 121 ¶¶ 47, 48 (citing ECF No. 120-13); ECF No. 150 ¶¶ 47, 48.

22 Stoltie does not specifically deny that he volunteered but notes that Defendants failed to produce any documents that confirm this. ECF No. 186 at 10.

It is undisputed that Stoltie submitted requests in September of 2021 to be removed from his assigned position, citing his torn ACL, the pain caused by performing his duties, and his desire to avoid discipline by quitting. ECF No. 121 ¶ 49 (citing ECF No. 120-14); ECF No. 150 ¶ 49. Stoltie sent a request to an unnamed lieutenant/sergeant on September 6, 2021, to Deputy Warden Schwartz on September 9, 2021, to Deputy Warden Lowther on September 16, 2021, and to Warden Kline on September 20, 2021. ECF No. 120-14. The requests do not include a response from the recipients.²³Stoltie did not include in his requests any medical directives or restrictions that would prevent him from working.

23 Stoltie fails to reference any conduct on the part of Defendants Pelesky, Wolfe, Tomasello, Fagan, or Kemerer in connection with this claim.

Defendants do not dispute that Defendants Schwartz, Lowther, and Kline received these requests. Thus, they were on notice that Stoltie claimed to be in extreme pain from a torn ACL and sought to be relieved of his position but did not wish to refuse work because he feared he would be subject to disciplinary action. Id. Generally, notification of a problem via letter, request, or grievance is insufficient to constitute personal involvement of the recipient. However, where a plaintiff can show that the recipient has been informed of an ongoing situation they can remedy directly, they may be personally involved. See Harris v. McClenahan_2020 WL 8839718, at *5-6 (W.D. Pa. Oct, 15, 2020) (collecting cases).

Stoltie has not presented any evidence that Schwartz, Lowther, or Kline could directly remedy Stoltie's complaint. Assuming for the sake of argument that they could do so, their personal involvement could be sufficient to satisfy this element of a constitutional claim. However, as Defendants argue, Stoltie has not brought forth any evidence that he was actually medically or physically restricted from work at this time. ECF No. 119 at 23. Moreover, in order to succeed this type of claim, Stoltie must show that each of these defendants were deliberately indifferent to his medical needs. See Natale, 318 F.3d at 582. Defendants contend that continuing to work was “a choice Stoltie made, not any of the Defendants.” ECF No. 119 at 24.

At best, Stoltie has shown that Schwartz, Lowther, and Kline were aware that Stoltie wanted to be released from his job assignment because of pain he was experiencing from a torn ACL. They were also aware that he did not want to resign, although he knew he could do so, due to his conclusion that he would be subject to disciplinary action. However, there is no evidence that Stoltie's speculation about the consequences of resigning has any factual basis. Thus, as Stoltie had the ability to voluntarily resign if his pain was inhibiting his work, these Defendants were not deliberately indifferent to his needs if he elected not to do so.

Thus, all of the named Defendants are entitled to judgment in their favor as to Counts 13 and 14.

15. Count 15: Retaliation

In Count 15, Stoltie asserts that Defendants Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, Springer, Kemerer, Fagan, Martin, Palmer, Cramer, and Cheryl Tomasello, violated his rights under the First and Fourteenth Amendments by retaliating against him for filing grievances and a lawsuit. ECF No. 58 ¶ 73. Stoltie's Amended Complaint does not specify the specific nature of the retaliation that occurred as a result, however, or link specific defendants to any alleged act of retaliation. In his Brief in Opposition to the instant motion, he explains:

Plaintiff was subjected to retaliation for his participation in protected conduct on numerous occasions. Plaintiff attempted to obtain grievances to complain about ongoing issues within W.C.P. and plaintiff filed a civil suit against W.C.P. officials, which are acts that are constitutionally protected and an inmate may not be retaliated against for his participation in such conduct. Defendants, in an attempt to deter plaintiff from participating in such conduct, subjected plaintiff to adverse action which includes, but is not limited to; losing plaintiff[']s personal property, including legal materials and books, falsifying disciplinary reports against plaintiff,

charging plaintiff with non-existing rule violations ..., refusing to let plaintiff attend the law library, “because he was housed on the medical unit” and much more.

ECF No. 186 at 11 (citation omitted).

As set forth above, to succeed on a claim for retaliation under the First Amendment, a plaintiff must show “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas, 463 F.3d at 296 (citation omitted).

Although Stoltie's retaliation claims are broadly and generally asserted against many defendants, they move for judgment in their favor on these claims only on two limited bases. First, Defendants argue that the filing of grievances is not a constitutionally protected action. Defendants are incorrect. Real v. Grenevich, 2023 WL 33338, at *1 (3d Cir. Jan. 4, 2023) (“Grievance-filing is constitutionally protected activity”).

Second, Defendants argue that they were served with the original Complaint in this case in late May, 2021, and that there is no evidence of a causal link between the filing of the Complaint and the alleged retaliatory actions that took place after that date. ECF No. 119 at 25-26. In support of their argument, Defendants assert:

Stoltie complained he was forced to maintain his prisoner job as a night cleaner despite it being a voluntary position of employment. There is no evidence that he suffered further injury or discipline for requesting to leave this job. Stoltie complained of loss of personal property and was given a grievance on November 12, 2021, and eventually on appeal was awarded monetary compensation and replacement of four books. Stoltie was disciplined for arranging to have his girlfriend meet him at physician appointments for him outside of WCP creating a security risk. The discipline here was appropriate to the security risk Stoltie created by his own doing. On January 13, 2022, Stoltie was charged later with a violation of insolence or disrespect and a charge of making false reports or accusations but was found not guilty on both. However subsequent to that, he had seven disciplinary write-ups resulting in findings of guilt or pleas of guilt. The discipline meted out to

Stoltie after his civil suit became known to the Defendants had been appropriate and proper in response to Stoltie's violations of rule and regulations of WCP and was never retaliatory.

Id. (citations omitted).

This argument is internally inconsistent, as it purports to show valid reasons for actions taken against Stoltie, but reveals that Stoltie prevailed in his protests against some of those actions (i.e., the loss of property and two disciplinary charges). Moreover, Defendants fail to meet their burden to establish the lack of personal involvement by the named defendants or the absence of any genuine issues of material fact.

In short, Defendants' argument in support of their Motion for Summary Judgment as to this claim is in part inaccurate, in part inconsistent, and wholly unpersuasive.

The Motion for Summary Judgment should be denied as to Count 15.

16. Count 16: ADA violation

In Count 16, Stoltie asserts that Defendants Kline, Lowther, Schwartz, Pelesky, Wolfe, Brad Tomasello, Springer, Kemerer, Fagan, and Martin violated the ADA by depriving him of privileges, programs, activities, and services based on his medical disability. ECF No. 58 ¶ 74. This claim is based on Stoltie's placement, in April 2021 and again in December 2021, in the medical unit at WCP where, he asserts, he was unable to take part in activities available in general housing such as video visits, “tablets, gym/recreation/fresh-air, law library, and access to means to properly cook food items ordered on commissary.” ECF No. 186 at 11 (citing ECF No. 58 ¶ 47).

As set forth above, pursuant to the relevant provision of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

In support of their Motion for Summary Judgment, Defendants do not dispute that Stoltie had a qualifying disability or that the activities from which he was excluded from constitute a “service, program, or activity” under the ADA. Instead, they argue that there is no evidence that the limitations on Stoltie's participation “in privilege[s], programs, activities and services [was] based off Stoltie's alleged status of being a qualified individual with a disability.” ECF No. 119 at 26. Defendants cite an affidavit from Lowther explaining that when inmates have a medical condition, like Stoltie did due to his knee brace, they are housed in the medical unit “so that their condition can be monitored by medical staff and for security reasons ... as they are unable to defend themselves from potential attacks by other inmates.” Id. (citing ECF No. 120-9 ¶ 5).

Defendants fail to support this argument with any legal authority to show the significance of their cited evidence, which appears on its face to support Stoltie's assertion that his disability is a cause of his exclusion from services, programs and activities. To the extent that Defendants are implying that Stoltie's housing assignment, not his disability, was the cause of his exclusion, the Court notes that the Third Circuit has held that “[a] prison's obligation to comply with the ADA ... does not disappear when inmates are placed in a segregated housing unit, regardless of the reason for which they are housed there.” Furgess v. Pa. Dep t of Corr., 933 F.3d 285, 291 (2019). Further, “the ADA covers discrimination on the basis of disability, even if there is another cause as well.” CG v. Pennsylvania Dep't of Educ., 734 F.3d 229, 236 (3d Cir. 2013).

Because Defendants have failed to show that they are entitled to summary judgment on this claim, their motion for summary judgment should be denied as to Count 16.

17. Count 17: Negligence - loss of personal property

Count 17 asserts a claim of negligence. Stoltie claims that “Defendants” violated Pennsylvania law “when they lost, misplaced, confiscated [his] personal property.” ECF No. 58 ¶ 75.

“Pennsylvania law requires the standard four elements of duty, breach, causation, and damages to establish negligence.” Pyle v. Otis Elevator Co., 855 Fed.Appx. 107, 108-09 (3d Cir. 2021) (citing Krentz v. Consol. Rail Corp., 910 A.2d 20, 27 (Pa. 2006)). Defendants argue that, in his blanket assertion of liability against all defendants, Stoltie has failed to establish a breach of duty by any defendant. ECF No. 119 at 27. They further argue that Stoltie has not identified any harm he sustained as a result of this alleged negligence, citing the reimbursement Stoltie received for lost property. Id. (citing ECF No. 121 ¶ 50).

In response, Stoltie baldly asserts that “in his complaint, [he] demonstrated that defendants owed him a duty to properly pack his personal property . . .” and that the breach of that duty caused him “the injury of lost personal property and financial losses in excess of $600.00.” ECF No. 186 at 12. Stoltie does not identify any allegedly responsible defendant by name or offer any facts to establish that any defendant breached a duty to him in this regard, however. His failure to do so is fatal to his claim. Moreover, his bald assertion of a $600.00 loss without accounting for the reimbursement Defendants identify, which he admitted to receiving, ECF No. 150 ¶ 50, does not provide sufficient evidence of any damages. See Reeves, 296 F.Supp.3d at 692.

Therefore, all defendants are entitled to summary judgment on Count 17.

18. Counts 18, 19, and 20: Negligence - non-personal property

In Counts 18, 19 and 20, Stoltie asserts common law negligence claims against “Defendants” for assigning him a medically inappropriate work assignment (Count 18), mishandling his incoming mail (Count 19), and depriving him of a nutritionally balanced meal without including items to which he is allergic (Count 20). ECF No. 58 ¶¶ 76-78. He also claims that this conduct represents a violation of his civil rights, but for the reasons previously discussed, he has failed to support his claims.

In support of their motion, Defendants first argue that Westmoreland County and the other defendants in their official capacities are immune from suit with respect to these claims under the Pennsylvania Political Subdivision Tort Claims Act (“Tort Claims Act”), 42 Pa. Cons. Stat. § 8541 et seq. This statute “immunizes municipalities from liability for all state-law tort claims,” Milbourne v. Baker, 2012 WL 1889148, at *4 (E.D. Pa. May 23, 2012), subject to nine enumerated negligence claim exceptions, see 42 Pa. Cons. Stat. § 8542, none of which apply to these claims. ECF No. 119 at 27-28. Stoltie does not respond to this argument, ECF No. 186 at 12; thus, he has abandoned these claims. See Reeves, 296 F.Supp.3d at 692.

As to the claims against Defendants in their individual capacities, Defendants argue that Stoltie has failed to produce any evidence that identifies which defendants violated a duty to him and caused his damages. ECF No. 119 at 28. In his response, Stoltie does not name any defendant or establish that any defendant breached a duty to him in these regards. Because he has failed to establish essential elements of his negligence claims and connect any conduct to a specific defendant or defendants, his claims fail as a matter of law.

Thus, Defendants' motion for summary judgment should be granted as to Count 18, Count 19, and Count 20.

19. Count 21: Assault

Finally, Stoltie raises a claim of assault against Defendant Caruso, asserting that Caruso violated Pennsylvania law by threatening Stoltie with great bodily harm. ECF No. 58 ¶ 79. Defendants argue that the Tort Claims Act bars this claim against Caruso in his official capacity and because of a lack of any evidence to support this claim, summary judgment should be entered in favor of Caruso in his individual capacity. ECF No. 119 at 29-30.

Stoltie does not respond to Defendants' arguments or address Count 21. ECF No. 149 at 29; ECF No. 186 at 12. Accordingly, he has abandoned this claim. See Reeves, 296 F.Supp.3d at 692.

The Motion for Summary Judgment should be granted as to Count 21.

D. Conclusion

For these reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment, ECF No. 118, be granted in part and denied in part as follows:

1. The motion should be granted with respect to all claims against Defendant Gina Cerilli;

2. The motion should be denied as to Count 6 against Defendant Matthew Springer and granted with respect to Defendants Bryan Kline, George Lowther, Eric Schwartz, Dayton Wolfe, Steven Pelesky, Brad Tomasello and Thomas Kemerer;

3. The motion should be denied as to Counts 15 and 16; and

4. The motion should be granted in all other respects.

Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties may, within fourteen (14) days, file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).