United States District Court, Middle District of Pennsylvania
May 11, 2001
KURT OSTRANDER, PLAINTIFF
MARTIN F. HORN, ET AL., DEFENDANTS
The opinion of the court was delivered by: Malachy E. Mannion, United States Magistrate Judge
Presently pending before the court is the defendants' motion to dismiss
the plaintiff's complaint. (Doc. No. 6).
Plaintiff, a former inmate at the State Correctional Institution at
Frackville, ("SCI-Frackville"), Pennsylvania,*fn1 filed this civil
rights action pursuant to 42 U.S.C. § 1983, in which he alleges a
violation of his constitutional rights. (Doc. No. 1).
The plaintiff has named the following as defendants to this action:
Martin F. Horn, Secretary of the Department of Corrections; Joseph
Chesney, Warden, SCI-Frackville; and thirty (30) "Unknown CERT
The proper filing fee having been paid, it was directed that process
issue in an order dated September 27, 2000. (Doc. No. 3).
On October 20, 2000, the defendants filed a motion to dismiss the
plaintiff's complaint, along with a brief in support thereof. (Doc. Nos. 6
& 7). The plaintiff filed his brief in opposition to the defendants'
motion on November 8, 2000. (Doc. No. 9). On January 24, 2001, the
parties consented to proceed before a United States magistrate judge.
(Doc. No. 11).
In his complaint, the plaintiff alleges the following:
On May 17, 2000, defendants Horn and Chesney authorized thirty (30)
CERT officers to conduct "a live exhibition/exercise"*fn3 at
SCI-Frackville within the Restricted Housing Unit, ("RHU"). With "invited
civilians" looking on, the CERT officers forcefully extracted him from
his cell and "carried/dragged" him to the RHU exercise area, where he was
placed in a "cage" and left there with his hands cuffed behind his back.
Approximately twenty (20) CERT officers, fully equipped with assorted
weapons, were lined up against the wall in the exercise area, causing him
to become fearful and emotionally distressed.
Approximately thirty (30) to forty-five (45) minutes later, he was
again "carried/dragged" back to the RHU, uncuffed, strip-searched,
re-cuffed and put back into his cell. As he was being taken from the
exercise area the CERT officers "abruptly shoved [him] into a secluded
doorway, and with their hands on the back of his head, mashed his face
into its corner while screaming at [him] not to turn around . . ."
During this time, the CERT officers were waiting for two (2) other
inmates who were being strip-searched ahead of him.
In addition, the plaintiff alleges that he was repeatedly cuffed and
uncuffed and that his arms were repeatedly twisted behind his back by
CERT officers, causing him "severe pain" which constituted excessive
force in violation of the Eighth Amendment. He suffered "humiliation and
emotional distress" as a result of the strip search and the CERT officers
violated his Fourth Amendment right to privacy by conducting the
procedure in front of others. Finally, he alleges that defendants Horn and
Chesney are liable for failing to adequately supervise and/or train the
CERT officers. (Doc. No. 1, Attached Statement of Claims).
The plaintiff is seeking injunctive relief, as well as compensatory and
punitive damages. (Id.).
Generally speaking, federal court jurisdiction is limited to actual
cases and controversies in which a plaintiff has a personal stake in the
outcome. U.S. Parole Commission v. Geraghty, 445 U.S. 388 (1980).
Further, the case or controversy must be a continuing one and must be
live at all stages of the proceedings. Weaver v. Wilcox, 650 F.2d 22, 27
(3d Cir. 1981). Since the plaintiff has been transferred from
SCI-Frackville to SCI-Greene, he is no longer subject to forced
participation in the RHU's emergency preparedness and fire evacuation
drills. As a result of his transfer, plaintiff no longer has standing to
seek injunctive relief. That claim is moot. Preiser v. Newkirk,
422 U.S. 395, 401 (1975); Abdul-Akbar v. Watson, 4 F.3d 195, 206-207 (3d
Cir. 1993); Gibbs v. Wadsworth, 919 F.2d 731 (3d Cir. 1990) (Table);
and, Weaver v. Wilcox, 650 F.2d 22, 26-27 (3d Cir. 1981).
To the extent that the plaintiff is alleging an Eighth Amendment
excessive force claim, in Hudson v. McMillian, 503 U.S. 1 (1992), the
Supreme Court held that "whenever prison officials stand accused of using
excessive physical force . . . the core judicial 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 pp.
6-7. In reaching this conclusion, the Court specifically rejected a
"deliberate indifference" standard for judging claims of excessive use of
force, finding that standard inappropriate when corrections officials
must make decisions "in haste, under pressure, and frequently without the
luxury of a second chance." Id. at p. 6 (quoting Whitley v. Albers,
475 U.S. 312, 320 (1986)).
Consistent with this standard, not all tortious conduct which occurs in
prison rises to the level of an Eighth Amendment violation. See Howell v.
Cataldi, 464 F.2d 272, 277 (3d Cir. 1972) (Not all tortious conduct
redressable under state law constitutes cruel and unusual punishment).
"Not every push or shove, even if it may later seem unnecessary in the
peace of the judge's chambers, violates a prisoner's constitutional
rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert denied,
414 U.S. 1033 (1983). Indeed, "[t]he Eighth Amendment's prohibition of
`cruel and unusual' punishment necessarily excludes from constitutional
recognition de minimus uses of physical force, provided that the use of
force is not of a sort `repugnant to the conscience of mankind.'"
Hudson, 503 U.S. at pp. 9-10 (quoting Whitley v. Albers, 475 U.S. at
While an inmate need not suffer serious injuries to set forth a claim
of excessive force, the extent of an injury suffered is a factor that may
be considered in determining whether the use of force is excessive.
Hudson, 503 U.S. at 9. In addition, courts considering claims of
excessive force have generally held that a single, isolated incident does
not rise to the level of a constitutional violation. See e.g., Norman v.
Taylor, 25 F.3d 1259
, 1262-64 (4th Cir. 1994); White v. Holmes,
21 F.3d 277
, 280-81 (8th Cir. 1994); Black Spotted Horse v. Else,
767 F.2d 516
(8th Cir. 1985); Ricketts v. Derello, 574 F. Supp. 645
With respect to the instant action, it cannot be said that the actions
taken by the CERT officers rise to the level of a constitutional
violation. The fact that the plaintiff was handcuffed, removed from his
cell, forcefully taken to a temporary holding cell for a short period of
time, returned to the RHU, strip-searched and returned to his cell, all
in conjunction with the execution of "an emergency preparedness drill
involving an RHU fire-drill evacuation", are not the types of conditions
which rise to the level of an Eighth Amendment violation. Moreover,
despite the fact that the plaintiff alleges that he suffered "severe
pain" as a result of the actions of the CERT officers, there is no
indication that he suffered any actual injuries during this emergency
preparedness and evacuation fire drill.
Taking all plaintiff's allegations as true, it cannot be said that the
actions of the CERT officers rose to the level of a constitutional
violation. Instead, at best, the plaintiff has shown only a de minimus
use of force by the CERT officers. As a result, the defendants' motion to
dismiss will be granted with respect to this claim. See Hudson, supra.
Next, the plaintiff claims he is entitled to damages because he
suffered "humiliation and emotional distress" as a result of this
emergency preparedness and evacuation fire drill. Section 803(e) of the
Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321
(April 26, 1996), codified at 42 U.S.C. § 1997e (e), provides that
"no federal civil action may be brought by a prisoner confined in a
jail, prison or other correctional facility for mental or emotional
injury suffered while in custody, without a prior showing of physical
While we are unable to locate a Third Circuit decision on point, that
court has addressed the application of § 1997e(e) to an analogous
First Amendment claim. In Allah v. Al-Hafeez, 226 F.3d 247 (3d Cir.
2000), the Third Circuit distinguished between claims for compensatory
and nominal damages, noting compensatory damages are governed by general
tort-law. In a § 1983 action damages "may include not only
out-of-pocket loss and other monetary harms, but also such injuries as
`impairment to reputation . . ., personal humiliation, and mental anguish
and suffering.'" Allah at 250 (quoting Memphis Community Sch. Dist. v.
Stachura, 477 U.S. 299, 307 (1986) (citations omitted)).
However, the court noted in Allah that the Supreme Court has held that
substantial damages may only be awarded to compensate for actual injury
suffered as a result of the violation of a constitutional right. The
Third Circuit found in Allah that § 1997e(e) barred any claim by the
plaintiff for compensatory damages because no physical injury was
alleged, based upon a violation of his constitutional rights, Id. at
Allah, however, did not bar all claims for damages. Certain absolute
constitutional rights may be vindicated by an award of nominal damages,
even in the absence of any showing of injury justifying compensatory
damages. Allah at 251. See Carey v. Piphus, 435 U.S. 247 (1978)
(approving recovery of nominal damages without proof of actual injury);
See also Stachura, 477 U.S. at 308 n. 11. As such, the Third Circuit
found that a claim for nominal damages is not be barred by §
1997e(e). The instant action, however, is distinguishable from Allah, in
that the court finds that the plaintiff has failed to sufficiently allege
any violation of his constitutional rights. As such, the plaintiff cannot
recover damages, nominal or otherwise, for his alleged "emotional
Moving on to the plaintiff's Fourth Amendment claim, it is well-settled
that inmates do not have a reasonable expectation of privacy in their
cells enabling them to invoke Fourth Amendment protections. Hudson v.
Palmer, 468 U.S. 517 (1984). Inmates also do not have a Fourth Amendment
right to be free from strip searches, which can be conducted by prison
officials without probable cause provided that the search is conducted
in a reasonable manner. Bell v. Wolfish, 441 U.S. 520 (1979); Wilson v.
Shannon, 982 F. Supp. 337 (E.D.Pa. 1997). The reasonableness of inmate
searches is determined by balancing "the need for the particular search
against the invasion of the personal rights that the search entails."
Bell, supra. Several courts have found that strip searches of inmates
upon leaving and returning to a segregated unit is constitutionally
permissible. Goff v. Nix, 803 F.2d 358 (8th Cir. 1986); Arruda v. Fair,
710 F.2d 886 (1st Cir. 1983); Campbell v. Miller, 787 F.2d 217 (7th Cir.
With respect to the instant action, any inconvenience caused to the
plaintiff by the emergency preparedness and fire evacuation drill is
offset by the need of prison officials and CERT officers to secure the
safety and security of the institution. As such, the defendants' motion
to dismiss the plaintiff's complaint will be granted with respect to the
plaintiff's Fourth Amendment claim.
In addition, relief cannot be granted against a defendant in a civil
rights action based solely on a theory of respondeat superior or the fact
that the defendant was the supervisor or superior of the person whose
conduct actually deprived the plaintiff of one of his federally protected
rights under color of state law. Hampton v. Holmesburg Prison Officials,
546 F.2d 1077 (3d Cir. 1976); Goode v. Rizzo, 506 F.2d 542, 550 (3d Cir.
1974), rev'd on other grounds, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598
(1976). Thus, to the extent that the plaintiff is attempting to hold
either defendant Martin F. Horn, Secretary of the Department of
Corrections, or Joseph Chesney, Warden of the State Correctional
Institute at Frackville, liable on a theory of respondeat superior, the
defendants' motion to dismiss will be granted.
Finally, to the extent that the plaintiff is alleging that these
defendants failed to protect him from a risk of harm, prison officials
may only be liable for failing to protect an inmate if the plaintiff
shows some pervasive risk of serious harm, and that prison officials
displayed deliberate indifference to the danger. See Riley v. Jeffes,
777 F.2d 143 (3d Cir. 1985). In order to show deliberate indifference the
plaintiff would need to establish that the prison official acted or failed
to act despite his knowledge of a substantial risk of serious harm to the
inmate. See Farmer v. Brennan, 511 U.S. 825 (1994). Prison officials can
only be found liable for such violations where that "official knows of
and disregards an excessive risk of harm to inmate . . . safety . . .
[and] the official [is] both . . . aware of facts from which the
inference could be drawn that a substantial risk of harm exists, and . .
. also draw[s] the inference." Id. at 837. The requirement that the
prison official must have had actual knowledge of the harm ensures that
"only the unnecessary and wanton infliction of pain implicates the Eighth
Amendment." Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996) (citing
Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
In this case, the plaintiff alleges that defendants Horn and Chesney
were aware of and, in fact, authorized the emergency preparedness and
fire evacuation drill. Even assuming this to be true, however, there is
no indication from the pleadings that the plaintiff was subject to a
"pervasive risk of serious harm" with respect to the above mentioned
drill. To the contrary, common sense tells us that these activities are
appropriately devised to protect this and other inmates in time of actual
Thus, the plaintiff has failed to establish that defendants Horn and
Chesney were deliberately indifferent to a "pervasive risk of serious
harm." The defendants' motion to dismiss will be granted with respect
to this claim.
On the basis of the foregoing, an appropriate order shall issue.
O R D E R
In accordance with the memorandum submitted this same day,
IT IS HEREBY ORDERED THAT:
(1) the defendants' motion to dismiss the plaintiff's
complaint, (Doc. No. 6), is GRANTED in its entirety; and
(2) the Clerk of Court is directed to close this case.