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May 11, 2001


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 Officers".*fn2

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 ...

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