Donald Parkell v. Carl Danberg

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1667
_____________
DONALD D. PARKELL,
Appellant
v.
CARL DANBERG, Commissioner of Prisons, in his
individual and official capacities; WARDEN PERRY
PHELPS, in his individual and official capacities; DEPUTY
WARDEN DAVID PIERCE, in his individual and official
capacities; MAYOR MICHAEL COSTELLO, in his
individual and official capacities; CAPTAIN M. RISPOLI, in
his official and individual capacities; LIEUTENANT JOHN
DOE, in his individual capacity; BRIAN KUHNER, in his
individual capacity; MS. WEST, in her individual capacity;
MAINTENENCE SUPERVISOR JOHN DOE, in his official
and individual capacities; CORRECTIONAL MEDICAL
SERVICES; BETTY BRYANT, in her individual capacity;
DR. BAEDER, in his individual capacity; DEPUTY
WARDEN CHRISTOPHER KLEIN, in his individual and
official capacities; CAPTAIN JOHN DOE, in his official and
individual capacities; CHRIS DAMRON, in her individual
capacity; CORRECT CARE SERVICE LLC; MENTAL
HEALTH MANAGEMENT; ALLEN HARRIS; JOHN DOE,
Medical Director for C.M.S.; JOHN DOE, Medical Director
for C.C.S.
______________
On Appeal from the United States District Court for the
District of Delaware
(D.C. Civil No. 10-cv-00412)
District Judge: Hon. Sue L. Robinson
______________
Argued January 20, 2016
Before: FISHER, CHAGARES, and COWEN, Circuit
Judges
(Filed: August 17, 2016)
Suzanne M. Bradley (Argued)
Brendan M. Walsh (Argued)
Pashman Stein
21 Main Street
Court Plaza South, Suite 200
Hackensack, NJ 07601
Attorneys for Appellant
Joseph C. Handlon
Devera B. Scott (Argued)
Office of Attorney General of Delaware
820 North French Street, 6th Floor
Wilmington, DE 19801
Attorneys for Appellees Danberg, Phelps, Pierce,
Costello, Rispoli, and Klein
Chad J. Toms (Argued)
Whiteford, Taylor & Preston
405 North King Street
The Renaissance Centre, Suite 500
Wilmington, DE 19801
Attorney for Appellees Correctional Medical Services,
Bryant, and Damron
Daniel A. Griffith (Argued)
Scott G. Wilcox
Whiteford, Taylor & Preston
405 North King Street
The Renaissance Centre, Suite 500
Wilmington, DE 19801
Attorneys for Appellee Correct Care Service LLC
_______________
OPINION
_______________
2
CHAGARES, Circuit Judge.
Plaintiff Donald Parkell is a Delaware state prisoner
who claims that state officials deprived him of his rights
under the Fourth, Eighth, and Fourteenth Amendments by
subjecting him to unreasonable thrice-daily visual body-
cavity searches and harsh conditions and by depriving him of
adequate medical care. He seeks damages and injunctive
relief under 42 U.S.C. § 1983. The United States District
Court for the District of Delaware granted summary judgment
to the defendants, and Parkell timely appealed. For the
reasons that follow, we will affirm in part and reverse in part.
We will reverse only as to Parkell’s claim under the Fourth
Amendment for prospective injunctive relief. 1
I. 2
Parkell was an inmate at James T. Vaughn
Correctional Center (“VCC”) in Smyrna, Delaware, during
the relevant time period, which began on January 1, 2009,
when Parkell slipped and fell at VCC and was injured. He
was transported to Kent General Hospital in Dover,
Delaware, and examined. His chest, spine, head, and right
hand and wrist were x-rayed with normal results, except for
loss of normal lumbar lordosis possibly due to muscular
strain. He was then discharged to the prison infirmary, where
he was housed for approximately a week. Parkell was placed
under 24-hour supervision and prescribed pain medication
and exercises. He received this treatment through a small slot
1
Parkell’s attorneys are appearing pro bono. We
express our gratitude to those attorneys for accepting this
matter pro bono and for the quality of their representation of
their client. Lawyers who act pro bono fulfill the highest
service that members of the bar can offer to indigent parties
and to the legal profession.
2
Much of Parkell’s version of events is supported
solely by his own statements in verified complaints and other
court filings. Because those documents were signed under
penalty of perjury in accordance with 28 U.S.C. § 1746, we
consider them as equivalent to statements in an affidavit. See
United States v. 225 Cartons, More or Less of an Article or
Drug, 871 F.2d 409, 414 n.4 (3d Cir. 1989).
3
in the cell door, approximately three feet off the ground, and
was told that medical staff were not permitted to enter his cell
because of his high-security status as a resident of the
Secured Housing Unit (“SHU”). He complained of intense
pain, but medical staff refused to treat his elbow because his
chart did not mention an elbow injury. Staff refused to give
him ice for his injury, again citing his high-security status.
His room was unheated, and he complained. But prison
officials told him that he would not be moved and had to
endure the cold because of his SHU status; they did not
provide any extra linens or clothing.
After his week in the infirmary, Parkell was returned
to the SHU. He submitted a request for “sick call” for his
elbow, which was swollen, discolored, and painful. On or
about January 12, he was brought to Betty Bryant, a nurse
employed at VCC. According to Parkell, Bryant never truly
examined the elbow and “would not allow [Parkell] to talk
while in her presence” or to “describe his injury and
symptoms.” Appendix (“App.”) 96, 178. She characterized
his condition as mere “edema” (i.e., swelling) even though it
was a “massive infection,” and accused Parkell of “run[ning]
game” to get Vicodin, adding that she would not bother the
doctor because he would not “fall for it” either. Id. She said
that she would order an x-ray herself and that if Parkell
needed aspirin he could buy it from the commissary. She
then told officers to “get him out of here.” App. 96. Bryant,
on the other hand, claims in her affidavit that she examined
his elbow, saw no sign of infection, advised him to avoid
sleeping on his arm, and ordered follow-up x-rays. She
argues that that is corroborated by a January 12, 2009
physician order implementing her own x-ray order, along
with the x-ray reports, dated January 16, showing normal
results. Parkell’s elbow got worse “[o]ver the next few days,”
and the wound ultimately opened and “squirted” pus. App.
96. A doctor arrived to perform emergency surgery and
prescribe antibiotics and pain medication. Testing revealed
that Parkell had had a staph infection. When Parkell later
complained about tingling and numbness, a doctor performed
nerve testing and told Parkell that there might be “branching
damage.” App. 97.
4
Several months later, on November 4, 2009, Parkell
was moved to an isolation cell in a unit known as “C-
Building” because of disciplinary misconduct, where he
remained for twelve days. Parkell, like other inmates in
isolation in C-Building, was locked in a stripped-down cell,
was given only a t-shirt, boxer briefs, and socks to wear, was
not permitted to keep rags, towels, or rolls of toilet paper in
his cell, and was provided with soap and other hygienic items
only during thrice-weekly showers. Parkell was also denied
exercise, never permitted to leave the cell except during the
five-minute thrice-weekly showers, and required to eat meals
in his cell without any opportunity to wash his hands first.
Three times per day officers “strip searche[d]” him, visually
inspecting his anus and genitals while he “was forced to squat
naked and cough loudly.” App. 99. Parkell attests that he
had “no contact with any other human beings” while in
isolation, though he says that “[n]urses would arrive daily to
pass out medication.” App. 98-99. When nurses arrived to
pass out medication, Parkell showed them the infection, but
they said it was against policy for medical staff to visit
inmates in isolation. His elbow again deteriorated and
released pus.
There is some question as to precisely how long it took
for Parkell to receive treatment for his elbow injury while in
C-Building. Parkell’s account provides little detail. He
claims that his elbow was not evaluated until “[a] few days”
into his isolation period, when a mental health worker who
visited him finally advocated for him. App. 98, 180. He was
then taken to the infirmary and given antibiotics and pain
medication, and nurses were ordered to clean the wound. But
“Interdisciplinary Progress Notes” dated November 5, 2009
(Parkell’s second day in C-Building), which appear to be
prepared by a nurse (although it is unclear who prepared
them), note the swollen elbow and pus drainage and suggest
that the nurse took a culture, cleaned and dressed the wound,
and called the on-call doctor, who ordered medication. App.
959-60. Records of physician orders suggest that the
medication was to begin on November 5, 2009, although the
order was not actually signed by the doctor until November
10. Further progress notes dated November 9 note that
Parkell was “referred . . . to a provider” on November 6 but
“[w]as never seen” and that “[t]he lab report[ed] never
5
receiving specimen.” App. 962. The preparer of those notes
describes cleaning and dressing the wound, “reculturing” it,
and “refer[ring] to provider again — tomorrow.” Id. The
report of the culture result lists the collection date as
November 9. Records suggest that further treatment was
ordered on November 10 and Parkell’s elbow was x-rayed on
November 13. Parkell agrees that his elbow was operated on
a second time on December 4, 2009.
The final series of events concerns Parkell’s physical
therapy for his elbow, which was ordered (presumably by his
treating doctor, but the complaint is unclear) to begin in
August 2009. By March 2010, Parkell had received only
three physical therapy sessions. His therapist informed him
that he had ligament damage, most likely requiring an MRI,
and that the long delay between his injury and the start of
therapy had caused him to heal incorrectly. He was taken for
an MRI around June 1, 2010, and then referred to an
orthopedic specialist who recommended surgery. Two
months later, there had been no “progression in treatment,” so
Parkell filed a grievance. App. 196. He was initially told in
response to the grievance that there was no record of the
surgery recommendation, but the recommendation was later
uncovered. The surgery was performed on March 9, 2011.
He then spent two weeks in the infirmary, where he was
denied any time outside his cell, even to shower, and required
to receive medication and therapy through the small slot in
the door, which caused Parkell pain.
On March 21, 2011, his orthopedic surgeon, Dr.
DuShuttle, prescribed four Vicodin per day for pain, but upon
his return to VCC, Parkell was given only two per day. One
day Parkell received only one pill, and on two occasions he
received no pills for the day; he was told that there was a
supply shortage. During a follow-up visit on April 13, 2011,
Dr. DuShuttle ordered more pain medication and physical
therapy three times per week. But Parkell received therapy
only once per week, and even then only about two-thirds of
the weeks.
Proceeding pro se, Parkell filed a lawsuit against
Correctional Medical Services, Inc. (“CMS”) and Correct
Care Services, LLC (“CCS”), which were contractors
6
providing medical care to the Delaware Department of
Correction (“DOC”); 3 Nurse Bryant in her individual
capacity; Chris Damron (another nurse employed by CMS at
VCC) in her individual capacity — these four will be referred
to collectively as the “Medical Defendants” — DOC
Commissioner Carl Danberg in his individual and official
capacities; Warden Perry Phelps in his individual and official
capacities; Deputy Warden David Pierce (a supervisor of
security matters) in his individual and official capacities;
Deputy Warden Christopher Klein (a supervisor of medical
issues) in his individual and official capacities; Captain M.
Rispoli (a shift commander) in his individual and official
capacities; and Major Michael Costello (a supervisor of
security matters) in his individual and official capacities —
these defendants will be referred to collectively as the “State
Defendants.” 4
Parkell alleged that his Eighth Amendment rights were
violated because he was provided inadequate healthcare and
subjected to cruel conditions of confinement. Commissioner
Danberg was accused of renewing CMS’s contract with the
DOC despite knowing of the inadequate care being provided,
signing a contract with CCS without doing due diligence, and
implementing policies and practices that denied adequate
care. The remaining DOC officials (Phelps, Pieces, Klein,
Rispoli, and Costello), as well as CMS and CCS, were
accused of implementing policies or practices that deprived
Parkell of adequate healthcare and exposed him to cruel
conditions. Bryant allegedly violated Parkell’s Eighth
Amendment rights by refusing to examine his infected arm
and provide needed treatment, and Damron allegedly violated
his rights by maliciously twisting and yanking his arm
through a door slot, causing immense pain and exacerbating
his injury.
3
CMS provided medical services to the DOC from
July 1, 2005, through June 30, 2010, at which point CCS
replaced CMS.
4
The complaints named additional defendants who
were dismissed by the District Court before the summary
judgment ruling, but those dismissals are not being appealed.
7
Parkell also alleged that Danberg, Phelps, Pierce,
Costello, Rispoli, Klein, CMS, and CCS violated his due
process rights under the Fourteenth Amendment by refusing
to treat him and subjecting him to conditions significantly
worse than other inmates with similar circumstances had to
endure.
The District Court granted summary judgment to the
defendants on all claims, concluding that: (1) Parkell could
not pursue damages from DOC officials in their official
capacities because of the Eleventh Amendment, and any
claim for prospective relief was rendered moot when Parkell
was moved to a different correctional facility; (2) his medical-
needs Eighth Amendment claim failed because any
deficiencies in his medical care did not rise to the level of
deliberate indifference to his needs; (3) his conditions-of-
confinement Eighth Amendment claim failed because the
conditions did not constitute a denial of basic human needs,
and the defendants were not personally involved in creating
the conditions; and (4) his due process clam failed because
the conditions of his confinement did not constitute atypical
and significant hardship in comparison to general prison
conditions. Parkell timely appealed.
II.
The District Court exercised jurisdiction under 28
U.S.C. § 1331. We have appellate jurisdiction under 28
U.S.C. § 1291.
We apply a plenary standard of review to a district
court order granting summary judgment. Willis v. UPMC
Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir.
2015). “Summary judgment is appropriate when ‘the movant
shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter
of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). An issue of fact
is material and genuine if it “affects the outcome of the suit
under the governing law and could lead a reasonable jury to
return a verdict in favor of the nonmoving party.” Id.(quotation and alteration marks omitted). The party seeking
summary judgment “has the burden of demonstrating that the
evidentiary record presents no genuine issue of material fact.”
8
Id. In order to avoid summary judgment, “the nonmoving
party must identify facts in the record that would enable them
to make a sufficient showing on essential elements of their
case for which they have the burden of proof.” Id.“Reviewing the record as a whole, we will draw all
reasonable inferences in favor of the non-moving party and
will not weigh the evidence or make credibility
determinations.” Armour v. Cty. of Beaver, PA, 271 F.3d
417, 420 (3d Cir. 2001) (quotation marks omitted).
III.
On appeal, with the aid of pro bono counsel, Parkell
has clarified and narrowed his claims somewhat. He argues
that: (1) the State Defendants violated his Fourth
Amendment and procedural due process rights by subjecting
him to thrice-daily visual body-cavity searches while he was
in isolation in C-Building; (2) his demand for prospective
injunctive relief is not moot because he has returned to VCC;
(3) the State Defendants violated his Eighth Amendment
rights by subjecting him to harsh conditions in both C-
Building and the infirmary; (4) Nurse Bryant violated his
Eighth Amendment rights through her deliberate indifference
to his serious elbow injury; 5 (5) CMS and CCS violated his
Eighth Amendment rights by turning a blind eye to practices
that deprived him of the full amount of pain medication and
physical therapy that had been prescribed; and (6) the District
Court abused its discretion in declining to appoint pro bono
counsel.
As set forth in detail below, we conclude that all of
Parkell’s claims lack sufficient evidence to submit to a fact-
finder, except for his claim that the thrice-daily visual body-
cavity searches in C-Building were unreasonable and violated
the Fourth Amendment, for which Parkell could potentially
receive prospective injunctive relief. We will therefore
reverse summary judgment as to Parkell’s claim against the
State Defendants for prospective injunctive relief under the
Fourth Amendment and remand it to the District Court for
5
Although Nurse Damron is also named in the appeal,
Parkell makes no argument as to why the District Court erred
in granting summary judgment in favor of Damron.
9
further proceedings consistent with this opinion. In all other
respects, we will affirm the District Court’s grant of summary
judgment in favor of the defendants.
A.
Parkell’s claim under the Fourth Amendment pertains
to the thrice-daily visual body-cavity searches conducted in
C-Building. 6 We agree with Parkell that the State Defendants
were not entitled to summary judgment on the question of
whether the searches violated the Fourth Amendment. The
record before us could support a finding in Parkell’s favor on
that issue. The same record could not, however, support a
finding that any of the State Defendants were personally
involved in the Fourth Amendment violation and liable for
money damages. As to injunctive relief to prevent future
Fourth Amendment violations, we are unable to determine
from the record whether the issue is still live and justiciable;
that question must be answered by the District Court on
remand.
1.
a.
As an initial matter, we must address the applicability
of the Fourth Amendment to Parkell’s claim. Following the
6
The Fourteenth Amendment extends Fourth
Amendment protections to searches and seizures by state
officials. Shuman ex rel. Shertzer v. Penn Manor Sch. Dist.,
422 F.3d 141, 147 (3d Cir. 2005).
Parkell’s Fourth Amendment claim was not clearly
pled or argued while he was pro se. Although courts liberally
construe pro se pleadings, unrepresented litigants are not
relieved from the rules of procedure and the requirements of
substantive law. McNeil v. United States, 508 U.S. 106, 113
(1993); Faretta v. California, 422 U.S. 806, 834 n.46 (1975).
Pro bono counsel now representing Parkell have focused his
Fourth Amendment claim considerably, noting this legal
precept. The State Defendants have raised no objection to our
consideration of this refocused claim, and, accordingly, we
will consider counsel’s Fourth Amendment arguments as well
as the State Defendants’ opposition to those arguments.
10
approach taken by the Supreme Court in Bell v. Wolfish, 441
U.S. 520, 558 (1979), we have previously assumed that the
Fourth Amendment applies to strip searches of inmates
without so holding. See Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 621 F.3d 296, 306 (3d Cir.
2010) (“Florence I”), aff’d, 132 S. Ct. 1510 (2012). 7 In Bell,
the Court analyzed a Fourth Amendment claim under the
“assum[ption] for present purposes that inmates, both
convicted prisoners and pretrial detainees, retain some Fourth
Amendment rights upon commitment to a corrections
facility.” Bell, 441 U.S. at 545, 558 (emphasis added).
The Court subsequently held in Hudson v. Palmer, 468
U.S. 517 (1984), that “the Fourth Amendment proscription
against unreasonable searches does not apply within the
confines of the prison cell.” Id. at 526. But we do not read
Hudson to foreclose a Fourth Amendment claim arising from
an unreasonable search of an inmate’s body. Hudson
involved a “shakedown” search of a prisoner’s locker and
cell, during which his property was destroyed, and the Court
considered whether “[t]he recognition of privacy rights for
prisoners in their individual cells” could “be reconciled with
the concept of incarceration and the needs and objectives of
penal institutions.” Id. (emphasis added); see also id. at 538(O’Connor, J., concurring) (“The fact of arrest and
incarceration abates all legitimate Fourth Amendment privacy
and possessory interests in personal effects, and therefore all
searches and seizures of the contents of an inmate’s cell are
reasonable.” (citations omitted)). The “shakedown” searches
at issue in Hudson were categorically different from the
bodily searches described by Parkell. Despite some of the
broad language in the opinion, Hudson does not directly
address the issue before us.
7
Although Florence I involved strip searches of
pretrial detainees, we noted that “[t]he Bell analysis applies
equally to all individuals [properly assigned to the facility’s
general population] — whether they be convicted inmates,
indicted pretrial detainees, contemnors, material witnesses, or
arrestees awaiting preliminary hearings before a magistrate.”
621 F.3d at 308 n.7.
11
The Court’s opinion in Hudson does, however, provide
the framework for our analysis. “The applicability of the
Fourth Amendment turns on whether the person invoking its
protection can claim a justifiable, a reasonable, or a legitimate
expectation of privacy that has been invaded by government
action.” Id. at 525 (quotation marks omitted). In other
words, we must decide whether an inmate’s expectation of
bodily privacy “is the kind of expectation that society is
prepared to recognize as reasonable.” Id. (same). We hold
that it is and that the Fourth Amendment therefore grants
inmates a limited right of bodily privacy, subject to
reasonable intrusions necessitated by the prison setting.
We conclude that a right to privacy in one’s own body,
unlike a right to maintain private spaces for possessions, is
not fundamentally inconsistent with imprisonment and is so
fundamental that society would recognize it as reasonable
even in the prison context. Our conclusion “necessarily
entails a balancing of interests.” Id. at 527. Like the Court in
Hudson, we recognize that “[t]he curtailment of certain rights
is necessary, as a practical matter, to accommodate a myriad
of institutional needs and objectives of prison facilities, chief
among which is internal security,” but also that prisoners
must be “accorded those rights not fundamentally inconsistent
with imprisonment itself or incompatible with the objectives
of incarceration.” Id. at 523, 524 (quotation marks and
citation omitted).
We also note that most of our sister Courts of Appeals
have concluded that the Fourth Amendment has some
applicability to bodily searches in prison. 8 And,
8
See, e.g., Sanchez v. Pereira-Castillo, 590 F.3d 31, 42
n.5 (1st Cir. 2009) (listing cases) (“Although the Supreme
Court in Hudson ‘foreclosed any [F]ourth [A]mendment
challenge to the search of a prison cell,’ this court, like those
in most other circuits, ‘has recognized a qualitative difference
between property searches and searches of a prisoner’s
person.’”) (quoting Dunn v. White, 880 F.2d 1188, 1191
(10th Cir. 1989)); Stoudemire v. Mich. Dep’t of Corr., 705
F.3d 560, 572 n.2 (6th Cir. 2013); Bull v. City & Cty. of S.F.,
595 F.3d 964, 974-75 (9th Cir. 2010) (en banc); Levine v.
Roebuck, 550 F.3d 684, 687 (8th Cir. 2008); Boxer X v.
12
notwithstanding Hudson, the Supreme Court has recently
applied the Fourth Amendment reasonableness framework
from Bell in upholding the constitutionality of strip searches
of pretrial detainees. Florence v. Bd. of Chosen Freeholders
of Cty. of Burlington, 132 S. Ct. 1510, 1516 (2012)
(“Florence II”).
b.
Our conclusion that the Fourth Amendment applies to
bodily searches in prison does not, however, speak to the
contours of prisoners’ Fourth Amendment rights. They 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 II, 132 S. Ct. at
1523.
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,
468 U.S. at 526 — 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 II, 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
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Nicholas v.
Goord, 430 F.3d 652, 658 (2d Cir. 2005); Elliott v. Lynn, 38
F.3d 188, 191 n.3 (5th Cir. 1994).
13
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).
In Bell, the Supreme Court upheld a program under
which inmates were “required to expose their body cavities
for visual inspection as a part of a strip search conducted after
every contact visit with a person from outside the institution.”
441 U.S. at 558. After “[b]alancing the significant and
legitimate security interests of the institution against the
privacy interests of the inmates,” the Court concluded that
“visual body-cavity inspections . . . [could] be conducted on
less than probable cause.” Id. at 560. Specifically, the Court
cited possible “[s]muggling of money, drugs, weapons, and
other contraband . . . by concealing them in body cavities.”
Id. at 559.
But Bell does not categorically uphold all bodily
searches in prisons. The facts of our case differ materially
from those of Bell. In Bell, the searches occurred after
visitation sessions involving in-person contact with outsiders.
In our case, the searches occur thrice daily, regardless of how
much contact, if any, an isolated inmate has had with other
people. We therefore must conduct our own balancing of the
interests in this case, taking into account “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. at 559.
The “particular intrusion” at issue here is a
requirement that three times every day inmates remove their
clothing and submit their anal and genital regions to visual
inspection while they squat and cough, whether or not they
have had any contact with others. The State Defendants do
not dispute that this is the policy in C-Building. The parties
use the term “strip search” — as do many courts — but “strip
search,” although an “umbrella term” in some contexts,
“generally refers to an inspection of a naked individual,
without any scrutiny of the subject’s body cavities,” whereas
14
“[a] ‘visual body cavity search’ extends to visual inspection
of the anal and genital areas” and “[a] ‘manual body cavity
search’ includes some degree of touching or probing of body
cavities.” Blackburn v. Snow, 771 F.2d 556, 561 n.3 (1st Cir.
1985). Our analysis concerns only the specific type of “strip”
search at issue in this case — that is, visual body-cavity
searches, like those in Bell — and not other more intrusive or
less intrusive types of bodily searches, which entail a
different balancing of interests.
Turning to the balancing of interests, we do not
understand the State Defendants to be disputing that the
searches are a significant intrusion into bodily privacy. The
Court in Bell expressed no doubt that visual body-cavity
searches constituted a significant intrusion. 441 U.S. at 558,
560 (“Admittedly, this practice instinctively gives us the most
pause. . . . We do not underestimate the degree to which
these searches may invade the personal privacy of inmates.”).
And we have recognized that even strip searches “less
intrusive than . . . visual body-cavity searches” are an
“extreme intrusion on privacy.” Florence I, 621 F.3d at 307.
Regarding the countervailing security interests, we
again emphasize that our review is deferential and that the
State Defendants’ burden is light, for the reasons already
given. Nonetheless, on the record before us, we conclude that
the particular search policy enforced in C-Building is not
reasonably related to VCC’s legitimate interests in detecting
and deterring contraband, particularly given the significant
intrusiveness of the thrice-daily visual body-cavity searches.
The State Defendants are unable to articulate a single
plausible theory as to how inmates in isolation in C-Building
would have thrice-daily opportunities to smuggle in
contraband from outside their cells or use unsupervised time
in their locked cells to transform a harmless object into
something dangerous. And we cannot imagine a plausible
scenario ourselves. It is undisputed that inmates in isolation
in C-Building live in stripped-down cells in which they wear
only t-shirts, boxer briefs, and socks, are not permitted to
keep rags, towels, or rolls of toilet paper, and are provided
with soap and other hygienic items only during their thrice-
weekly showers. And according to Parkell’s version of
15
events, the credibility of which we do not doubt in the context
of summary judgment, he left his isolation cell only three
times per week for brief showers and had no human contact
while in isolation, except for daily visits from nurses for the
limited purpose of dispensing medication (along with, of
course, the thrice-daily visual body-cavity searches
themselves). He therefore had few, if any, opportunities to
obtain contraband — and certainly not three opportunities per
day — which distinguishes this case from the searches in Bell
that took place after visitations involving in-person contact.
Parkell’s daily visits from nurses and thrice-weekly
visits to the showers cannot justify the quantity of searches.
It may well be reasonable for VCC to conduct visual body-
cavity searches of C-Building inmates after each such visit. 9
But at most, that would justify ten searches per week, not
twenty-one. And although the State Defendants have
suggested that Parkell’s contact with medical personnel while
in isolation was more extensive, they conceded at oral
argument that the record does not evidence thrice-daily
interactions. In any event, in the context of summary
judgment, we construe the record in Parkell’s favor, crediting
the portions that describe only once-daily visits from nurses
dispensing medication.
The fact that Parkell, like others in C-Building, was
being punished for disciplinary violations does not alter our
conclusion. Arguably, it does magnify the State Defendants’
security interest, insofar as inmates who have already broken
prison rules may be more likely to seek and utilize dangerous
contraband. But the reasonable relationship to the search
policy is still missing. When dangerous inmates are
completely isolated in C-Building, it is the isolation that
prevents the smuggling of contraband. Thrice-daily bodily
searches have little, if any, value in that context unless the
period of complete isolation has somehow been interrupted.
9
The record is unclear as to whether those visits
actually presented any opportunity for contraband to be
smuggled. Indeed, Parkell describes his interactions with
nurses as taking place through the narrow pass-through slot in
his cell door, under the supervision of prison officials.
16
We emphasize the narrowness of our holding. We do
not underestimate inmates’ potential zeal and creativity for
finding ways to smuggle or create dangerous contraband if
given any opportunity to do so. In Bell, the probability that
an inmate would obtain contraband during a visitation was
low but still sufficient to justify the search policy. But here,
the probability is vanishingly small that an inmate locked in a
stripped-down isolation cell in C-Building, once searched,
could then obtain contraband during a subsequent eight-hour
period involving no human contact. As such, the intrusive
thrice-daily searches are not a reasonable means of advancing
VCC’s legitimate interest in detecting and deterring
contraband.
We do not mean to suggest that VCC must point to a
history of C-Building inmates who successfully smuggled
contraband into their isolation cells. As in Bell, the lack of
history may be “a testament to the effectiveness of this search
technique as a deterrent.” Bell, 441 U.S. at 559. It is the
virtual impossibility of smuggling contraband into C-
Building, rather than the absence of a history of smuggling,
that is relevant here. Deterrence is a legitimate concern but a
far less weighty concern when the conduct to be deterred is
already virtually impossible.
Nor does our holding concern individualized
suspicion. Individualized suspicion that a C-Building inmate
had somehow obtained contraband would, of course, still
justify a search of that particular inmate. This case concerns
the implementation of general, routine search policies, for
which individualized suspicion is not required. As we have
previously noted, “Bell did not require individualized
suspicion for each inmate searched; it assessed the facial
constitutionality of the policy as a whole, as applied to all
inmates.” Florence I, 621 F.3d at 308. “The absence of an
individualized suspicion requirement in Bell is consistent
with the Fourth Amendment doctrine of special needs
searches.” Id. at 308 n.8; see also Skinner v. Ry. Labor
Execs.’ Ass’n, 489 U.S. 602, 619-20 (1989) (categorizing
Bell as a “special needs” search case); Hudson, 468 U.S. at
538 (O’Connor, J., concurring) (noting that in certain
contexts, such as the one considered in Bell, “the Court has
rejected the case-by-case approach to the ‘reasonableness’
17
inquiry in favor of an approach that determines the
reasonableness of contested practices in a categorical
fashion”). “Under the ‘special needs’ analysis, the
government need not show probable cause or even
individualized suspicion for its search” and instead “must
prove that its search meets a general test of ‘reasonableness.’”
Wilcher v. City of Wilmington, 139 F.3d 366, 373-74 (3d Cir.
1998).
Routine, suspicionless inmate search policies may
sweep quite broadly and still be reasonable. In Florence II,
the Supreme Court declined to require jails to adopt a policy
of exempting new detainees “who ha[d] not been arrested for
a serious crime or for any offense involving a weapon or
drugs” from the blanket strip searches conducted before
detainees were committed to the general population. Florence
II, 132 S. Ct. at 1520. The Court held that it was reasonable
for jails to conclude that such an exemption was
“unworkable” because “the seriousness of an offense is a poor
predictor of who has contraband” and “it would be difficult in
practice to determine whether individual detainees fall within
the proposed exemption.” Id. The Court in Florence II
recognized that narrowly targeted search policies are
generally not required in prisons and jails because they tend
to be incompatible with the setting. They are often difficult,
if not impossible, to implement without an unacceptable risk
of false negatives (instances in which dangerous contraband
is missed because an inmate is incorrectly classified as low-
risk and subjected to less thorough searches). Thus, it is
usually reasonable for prisons to favor more broadly drawn
search policies.
But VCC’s search policy sweeps too broadly with
insufficient justification. VCC’s security interests are not
reasonably advanced by a blanket policy of frequently and
intrusively searching inmates who have previously been
thoroughly searched and held in a stripped-down isolation
cell without human contact ever since. 10 Unlike the search
10
In similar cases, our sister Courts of Appeals have
allowed inmates to pursue Fourth Amendment claims after
being subjected to bodily searches when they had had no
opportunity to obtain contraband. See Turkmen v. Hasty, 789
18
policy in Florence II, VCC’s search policy in C-Building is
not a blanket policy that has been reasonably selected over a
more targeted policy that would be unworkable. In Florence
F.3d 218, 261 n.44 (2d Cir. 2015) (“[C]onsistent with
Hodges, Plaintiffs have plausibly alleged that they were strip
searched when there was no opportunity to acquire
contraband, including in instances where they were shackled
and under escort, or were never permitted to leave their
cells.”); Franklin v. Lockhart, 769 F.2d 509, 510-11 (8th Cir.
1985) (“[T]he evidence shows that Franklin was strip
searched twice a day while he was confined to his cell with
access to only staff-issued meals and tissue. We cannot say
that defendants’ mere declaration that these searches occurred
‘according to policy’ to maintain security and prevent the
flow of contraband clearly establishes defendants’ right to
judgment on this claim. Though defendants’ objectives may
indeed have been legitimate, . . . [t]he search must be
reasonable in its scope and its manner of execution.”);
Hodges v. Stanley, 712 F.2d 34, 35-36 (2d Cir. 1983) (“The
second search took place shortly after the first, and Hodges
had been under continuous escort. Under these circumstances
it seems clear that there was no possibility that Hodges could
have obtained and concealed contraband. Thus the second
search appears to have been unnecessary. We therefore
cannot say that Hodges has failed to state a constitutional
claim.”); Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir. 1980)
(“Guards handcuff the inmates before they leave the Control
Unit and escort them to the visitation area. The inmates are
separated from the visitors by plexiglass, and guards observe
these visits. We do not believe that the rationale announced
in Bell v. Wolfish, supra, justifies these strip searches. Thus,
the Supreme Court in Wolfish relied on the possibility of
contraband being brought into the prison during contact visits
to justify the use of strip searches. Those contact visits were
not closely supervised by guards. Wolfish should not be
extended to the facts of this case without a showing that there
is some risk that contraband will be smuggled into Marion
during non-contact, supervised visits, or that some other risk
within the prison will be presented. Since defendants do not
discuss the searches in their brief, we are not in a position to
dispose of the issue and, therefore, the district court should
consider it on remand.”).
19
II, it was plausible that any new detainee might be carrying
contraband from the outside world into the institution, and
distinguishing between high-risk detainees and low-risk
detainees would have been costly and error-prone. 11 But in
our case, the only generalized risk that C-Building inmates
will obtain contraband arises from their limited contact with
the world outside their stripped-down cells. Tying routine
visual body-cavity searches to instances of outside contact,
rather than an unyielding thrice-daily schedule, would seem
to be a simple and categorical policy to implement, especially
given that prison officials have the ability to closely regulate
isolated inmates’ limited contact with the world outside their
cells; the State Defendants have given us no reason to
conclude otherwise. And, of course, those officials are free to
search C-Building inmates individually suspected of
possessing contraband.
Thus, construing the record in Parkell’s favor, we
conclude that the search policy in its present form is an
“exaggerated . . . response to [security] considerations” and
thus violates the Fourth Amendment. Florence II, 132 S. Ct.
at 1517. The State Defendants were therefore not entitled to
summary judgment on Parkell’s Fourth Amendment claim.
2.
Having determined that Parkell presents a triable
Fourth Amendment claim, we next consider whether Parkell
may pursue money damages from the State Defendants, who
did not themselves conduct the visual body-cavity searches
but may have had supervisory involvement. A plaintiff
“cannot predicate liability on her § 1983 claims on a
respondeat superior basis.” Chavarriaga v. N.J. Dep’t of
Corr., 806 F.3d 210, 227 (3d Cir. 2015). We have recognized
that “there are two theories of supervisory liability, one under
which supervisors can be liable if they established and
maintained a policy, practice or custom which directly caused
the constitutional harm, and another under which they can be
11
In their concurring opinions in Florence II, Chief
Justice Roberts and Justice Alito (members of the five-person
majority) both emphasized the narrowness of the Court’s
holding. See 132 S. Ct. at 1523-25.
20
liable if they participated in violating plaintiff’s rights,
directed others to violate them, or, as the persons in charge,
had knowledge of and acquiesced in their subordinates’
violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129
n.5 (3d Cir. 2010) (quotation and alteration marks omitted).
Parkell argues that both theories apply here but has not
supported his argument with evidence. Although it is
certainly plausible that some of the named defendants had
supervisory involvement in the searches, Parkell has not come
forward with enough evidence for a reasonable fact-finder to
conclude that they did.
As to Commissioner Danberg, Parkell points only to
Danberg’s generalized admission that he “is familiar with the
policies of the Department of Correction” and “approved the
DOC policies.” App. 775. “[T]o establish a claim against a
policymaker under § 1983 a plaintiff must allege and prove
that the official established or enforced policies and practices
directly causing the constitutional violation.” Chavarriaga,
806 F.3d at 223. The problem with Parkell’s attempt to hold
Danberg liable is that he has not pointed to any evidence of
where the search policy, practice, or custom came from.
Danberg does not acknowledge any involvement in
establishing or enforcing any specific policies (much less
specific search policies in C-Building or at VCC), or even any
awareness that the searches were occurring. And although
the defendants concede that inmates in isolation were
routinely subjected to thrice-daily visual body-cavity
searches, it is unclear whether this was in accordance with
official DOC policy endorsed by Danberg, a policy limited to
VCC, or even just an informal practice or custom. To
presume that the search practices arose from Danberg’s
policies merely because of his position as commissioner is to
rely on respondeat superior.
Likewise, there is no evidence linking Warden Phelps
to the establishment of the search policy, practice, or custom
in C-Building. Unlike Danberg, however, Phelps has
admitted knowledge that C-Building inmates were strip
searched three times per day. If Phelps knew about the search
practices in C-Building and had authority to change them but
chose not to, that might constitute supervisory involvement in
violating Parkell’s rights. Santiago, 629 F.3d at 129 n.5
21
(supervisors liable if, “as the persons in charge, [they] had
knowledge of and acquiesced in their subordinates’
violations”). But there is no evidence that Phelps had such
authority. Parkell has merely asserted in a brief that “Phelps,
as Warden, w[as] responsible for ensuring . . . compli[ance]
with the acknowledged strip search policy,” without pointing
us to any facts or legal authorities to support the assertion.
Reply Br. 21. We have no evidence addressing whether C-
Building had dominion over its own search practices,
followed orders from the warden on the matter, or was held to
policies delivered directly from the DOC. And we do not
believe that an official is “enforcing,” “maintaining,” or
“acquiescing in” a policy merely because the official
passively permits his subordinates to implement a policy that
was set by someone else and is beyond the official’s authority
to change. Knowing nothing more than Phelps’s title as
warden, a factfinder could not reasonably conclude that
Phelps was a “person[ ] in charge” of search practices in C-
Building and thereby “acquiesced” in the practice of thrice-
daily visual body-cavity searches. See Santiago, 629 F.3d at129 n.5.
Like Phelps, Captain Rispoli admits awareness of the
search practices in C-Building, but there is no evidence of
Rispoli’s role in establishing or enforcing the practices, and it
is unclear whether Rispoli had any authority to intercede.
Rispoli admits to being the “unit commander for the
maximum security units, including the Secured Housing Unit
(“SHU”), which consists of Buildings 17, 18, and 19.” App.
414. He then describes Building 18 and C-Building as
separate “units” and says, “The shift commander for the
maximum security housing units is responsible for assigning
inmates to an isolation unit. When I am the shift commander,
I make those assignments. . . . I am responsible for the
inmates assigned to Building 18 isolation. But I am familiar
with both the Building 18 isolation unit and the C-Building
isolation unit.” App. 415. The most natural reading of those
statements is that Rispoli commanded isolation units other
than C-Building. But even if there were ambiguity to be
resolved in Parkell’s favor, there would still be insufficient
evidence that Rispoli’s position gave him control over search
policies such that he could be charged with “acquiescence” in
their enforcement.
22
The evidence of the remaining State Defendants’
involvement is even weaker. Parkell points only to Deputy
Warden Pierce’s admission that he is “familiar with DOC
policies” and Major Costello’s admission that he is “aware of
security matters in the areas of the institution in which he [is]
assigned.” Reply Br. 22 (citing App. 781-82). There is no
evidence of Deputy Warden Klein’s knowledge of the
searches.
We therefore affirm the District Court insofar as it
granted summary judgment in favor of the State Defendants
in relation to any Fourth Amendment claim for money
damages.
3.
Our conclusion that the State Defendants lacked
personal involvement in past constitutional violations does
not preclude Parkell from obtaining prospective injunctive
relief for ongoing violations. Hartmann v. Cal. Dep’t of Corr.
& Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013); Gonzalez v.
Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (per curiam);
see also Argueta v. U.S. Immigration & Customs
Enforcement, 643 F.3d 60, 70, 77 (3d Cir. 2011) (“Plaintiffs
failed to allege a plausible claim to relief on the basis of the
supervisors’ ‘knowledge and acquiescence’ or any other
similar theory of liability . . . [but] are still free to pursue their
official capacity claims for injunctive relief against any
further intimidation or unlawful entry into their home.”);
Koehl v. Dalsheim, 85 F.3d 86, 88-89 (2d Cir. 1996)
(similar). In seeking a prospective injunction against the
implementation of an unconstitutional state policy, Parkell is
required to name an official or officials “who can
appropriately respond to injunctive relief.” Hartmann, 707
F.3d at 1127; see also Gonzalez, 663 F.3d at 315 (proper
defendant is one “responsible for ensuring that any injunctive
relief is carried out”). He has done so. Although we leave it
to the District Court to determine which defendants would
appropriately be named in an injunction should Parkell
prevail on his claim, at the very least Commissioner Danberg
or his successor could appropriately respond to injunctive
relief.
23
The State Defendants, however, argue that the issue of
injunctive relief is moot. They do not deny that Parkell is
currently incarcerated at VCC, nor do they contend that the
search practices in the isolation units have changed. 12 Rather,
they argue that the issue is moot because Parkell’s Fourth
Amendment claim arose from his temporary confinement in
C-Building and he is no longer confined there. We agree
with the State Defendants but also believe that an exception
to the mootness doctrine could potentially apply. Parkell
argues that, in light of his current incarceration at VCC and
the likelihood of a return to isolation units in the future, a
Fourth Amendment violation is “capable of repetition yet
evading review,” which makes injunctive relief appropriate.
Reply Br. 26. He requests that we at least remand the issue to
the District Court to consider in the first instance with the aid
of further factual development.
The “capable of repetition yet evading review”
doctrine is an exception to mootness that applies when “(1)
the challenged action is, in its duration, too short to be fully
litigated prior to cessation or expiration, and (2) there is a
reasonable expectation that the same complaining party will
be subject to the same action again.” United Indus., Serv.,
Transp., Prof’l & Gov’t Workers of N. Am. Seafarers Int’l
Union ex rel. Bason v. Gov’t of V.I., 767 F.3d 193, 212 (3d
Cir. 2014) (quotation marks omitted). The exception is
“narrow and available only in exceptional situations.”
Rendell v. Rumsfeld, 484 F.3d 236, 241 (3d Cir. 2007)
(quotation marks omitted).
The capable-of-repetition exception is inapplicable
when a previously incarcerated plaintiff has been completely
released from the system through expiration of a sentence or
12
We note that, even if VCC had voluntarily changed
its search practices since the lawsuit was filed, that alone
would not necessarily moot Parkell’s claim for injunctive
relief. DeJohn v. Temple Univ., 537 F.3d 301, 310 (3d Cir.
2008) (“[V]oluntary cessation does not moot a case or
controversy unless subsequent events make it absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur.” (quotation and alteration marks omitted)).
24
acquittal upon retrial, because it would be mere “conjecture”
to conclude that the plaintiff might be reincarcerated and
subjected to the same conditions again. See, e.g., Doe v.
Delie, 257 F.3d 309, 313-14 (3d Cir. 2001) (plaintiff
acquitted upon retrial). A more difficult and fact-intensive
question is raised, however, when the plaintiff is still
connected to the system. In Micklus v. Carlson, 632 F.2d 227(3d Cir. 1980), we held that there was a “realistic possibility
of reincarceration” for a parolee “because of the low standard
for reincarceration.” Id. at 232-33 (noting that the parole
commission “cannot be totally arbitrary, [but] may
nevertheless revoke [his] parole status if at any time . . . [it] is
of the opinion that [he] will be benefited by further treatment
in an institution or other facility” (quotation marks omitted)).
But in Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir. 1993), a
prisoner had been released from a maximum security unit
three-and-a-half years into his eight-year sentence, and the
District Court applied the capable-of-repetition exception,
citing “the procedures through which inmates may be
classified into and out of maximum security.” Abdul-Akbar
v. Watson, 775 F. Supp. 735, 755 (D. Del. 1991). When the
case was appealed, we rejected the capable-of-repetition
theory and held that the District Court had improperly
“speculat[ed]” that the prisoner could be returned to a
maximum security unit. 4 F.3d at 197, 206-07.
Parkell’s point is well-taken that, as a general matter,
confinement of inmates in isolation units is hardly unusual,
which we have acknowledged in other contexts. Cf. Torres v.
Fauver, 292 F.3d 141, 150 (3d Cir. 2002) (“[D]isciplinary
detention and administrative segregation [are] the sort[s] of
confinement that inmates should reasonably anticipate
receiving at some point in their incarceration . . . .”). But
Parkell must present more than generalities; he must establish
a reasonable expectation that he, specifically, will again be
subjected to the unconstitutional search practices carried out
in VCC’s isolation units. See OSHA Data/CIH, Inc. v. U.S.
Dep’t of Labor, 220 F.3d 153, 168 (3d Cir. 2000) (placing the
burden on the plaintiff to show that the capable-of-repetition
exception applied). We reject Parkell’s last-minute effort to
meet that burden by claiming to have returned to isolation for
five days in June 2015, which is not reflected in the record
and is merely asserted in his reply brief.
25
We are also mindful, however, that the issue was
understandably never explored in the District Court, 13 where
discovery could have occurred and factual findings could
have been made regarding crucial issues, such as Parkell’s
history of confinement in isolation units, the frequency with
which and conditions under which VCC officials send
inmates to isolation units, and exactly how much discretion
officials have to do so. We will therefore leave it for the
District Court to determine on remand whether Parkell’s
request for injunctive relief in relation to the visual body-
cavity searches remains a live issue under the capable-of-
repetition exception to mootness. See, e.g., Williams v.
Anderson, 959 F.2d 1411, 1417 (7th Cir. 1992) (capable-of-
repetition finding was “fact-intensive” and not well-
developed on the record and therefore “best left to the district
court”).
B.
Parkell also challenges the visual body-cavity searches
as violating his right to procedural due process. He concedes
that he was given notice and a hearing concerning his
placement in isolation. His claim is that, in addition to that
process, he was also owed notice about the visual body-cavity
searches specifically and a hearing on the matter. We
disagree and will therefore affirm the District Court’s grant of
summary judgment on this claim.
A prisoner holds a liberty interest triggering due
process if either (1) “state statutes and regulations create a
liberty interest in freedom from restraint that imposes an
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life,” or (2) “severe changes
in conditions of confinement amount to a grievous loss that
should not be imposed without the opportunity for notice and
an adequate hearing.” Evans v. Sec’y Pa. Dep’t of Corr., 645
13
The District Court was under the impression that
Parkell was no longer at VCC, but Parkell had in fact been
returned to VCC three weeks before the District Court’s
summary judgment ruling. The District Court was not
informed of Parkell’s return.
26
F.3d 650, 663 (3d Cir. 2011) (quotation marks omitted).
Parkell argues only the “severe changes” theory.
Examples of “severe changes in in conditions of
confinement” include “forced administration of antipsychotic
medication, or involuntary transfer to a mental hospital, or,
for a prisoner not convicted of a sex offense, forced
participation in sex-offender therapy.” Id. at 665 (citations
omitted). Such changes result in punishment that is
“qualitatively different from the punishment characteristically
suffered by a person convicted of crime, and ha[s]
stigmatizing consequences.” Renchenski v. Williams, 622
F.3d 315, 326 (3d Cir. 2010) (quotation marks omitted).
We cannot say that routine visual body-cavity searches
are “qualitatively different from the punishment
characteristically suffered by a person convicted of a crime,”
that they impose “stigmatizing consequences” akin to being
labeled psychotic or a sex offender, id., or that they otherwise
constitute “severe changes in conditions of confinement
amount[ing] to a grievous loss,” Evans, 645 F.3d at 663.
Parkell therefore lacks a constitutionally protected liberty
interest under a “severe changes” theory, and his procedural
due process claim fails.
C.
Parkell raises two Eighth Amendment claims: (1) that
the State Defendants subjected him to harsh conditions of
confinement and (2) that the Medical Defendants ignored his
medical needs. Because there is insufficient evidence of
deliberate indifference as to either claim, we will affirm the
District Court’s grant of summary judgment on these claims.
1.
A claim regarding prison conditions “does not rise to
the level of an Eighth Amendment violation unless: (1) the
prison official deprived the prisoner of the minimal civilized
measure of life’s necessities; and (2) the prison official acted
with deliberate indifference in doing so, thereby exposing the
inmate to a substantial risk of serious damage to her future
health.” Chavarriaga, 806 F.3d at 226. We need not
27
determine whether Parkell was deprived of “the minimal
civilized measure of life’s necessities” because the record
would not permit a reasonable factfinder to conclude that the
State Defendants were deliberately indifferent. See id. We
will therefore affirm the District Court’s grant of summary
judgment in the State Defendants’ favor as to Parkell’s Eighth
Amendment conditions-of-confinement claim.
In the Eighth Amendment context, “deliberate
indifference” is “a subjective standard of liability consistent
with recklessness as that term is defined in criminal law.”
Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000) (en banc).
A prison official is deliberately indifferent if the official
“knows that inmates face a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures
to abate it.” Chavarriaga, 806 F.3d at 229 (quotation marks
omitted). A plaintiff “may demonstrate deliberate
indifference by showing that the risk of harm was
longstanding, pervasive, well-documented, or expressly noted
by prison officials in the past such that the defendants must
have known about the risk.” Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 259 (3d Cir. 2010) (quotation marks
omitted). But the plaintiff must show that the officials were
“aware of facts from which the inference could be drawn that
a substantial risk of harm exists, and that they also drew the
inference.” Id. (quotation and alteration marks omitted). “It
is not enough merely to find that a reasonable person would
have known, or that the defendant should have known . . . .”
Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994).
Parkell attests that during his first stay in the infirmary
in January 2009, he was held in a cell without working heat,
and during his second stay in March 2011, he was permitted
no exercise and no showers for over two weeks. He also
attests that during his time in C-Building isolation in
November 2009, he was subjected to thrice-daily visual body-
cavity searches and denied exercise and access to basic
hygienic materials. And he claims to have been denied access
to medical personnel during his time in both the infirmary and
C-Building, insofar as the nurses who visited refused to
examine him, citing a policy against entering the cells.
28
As evidence of the State Defendants’ deliberate
indifference, Parkell points to little more than their
“admissions” of awareness of certain DOC policies. That
evidence fails because most of the policies of which the
defendants admit to have knowledge differ in subtle but
important ways from the conditions that Parkell claims to
have experienced. Thus, although the defendants admit
knowledge of restrictive policies, those policies do not
amount to cruel and unusual punishment. And to the extent
that Parkell may have experienced even harsher conditions
beyond what those policies call for, there is no evidence that
the defendants were aware of that.
In his affidavit, Pierce claims that there are no VCC
policies preventing medical staff from entering the cells of
maximum-security inmates housed in the infirmary, as long
as the staffer is accompanied by two other officers; no
policies preventing maximum-security inmates housed in the
infirmary from showering; and no policies preventing an
inmate from receiving extra blankets or clothing if the heat is
malfunctioning. He admits that ice and recreation time are
not ordinarily provided to maximum-security inmates housed
in the infirmary but says that both would be provided if
directed by a doctor. He also admits that the infirmary had
intermittent heating problems in 2009, but never for extended
periods. He adds that it was practice to provide extra blankets
when heating problems arose, and certainly not practice to
deny extra blankets to an inmate who requested them. In his
affidavit, Rispoli claims that inmates in isolation in C-
Building are taken out of their cells for one hour three times
per week, during which time they can shower and recreate.
According to him, inmates in C-Building are permitted
medical treatment, which they can request, and are checked at
every shift for medical needs. In his discovery responses,
Phelps claims that inmates in isolation are seen by medical
staff every eight hours and can be taken out of isolation for
treatment if needed. He says that soap and hygienic items are
provided during shower and recreation time, and while
inmates may not store toilet paper in their cells, it is provided
upon request.
The defendants do concede that thrice-daily visual-
body cavity searches occurred for inmates in isolation, but
29
such searches do not constitute cruel and unusual punishment
unless they are “undertaken maliciously or for the purposes of
sexually abusing an inmate.” Crawford v. Cuomo, 796 F.3d
252, 258 (2d Cir. 2015); see also King v. McCarty, 781 F.3d
889, 897 (7th Cir. 2015) (per curiam) (“A prisoner states a
claim under the Eighth Amendment when he plausibly alleges
that the strip-search in question was motivated by a desire to
harass or humiliate . . . .”); Harris v. Ostrout, 65 F.3d 912,
916 (11th Cir. 1995) (per curiam). As Parkell does not point
to any evidence of maliciousness, the search policy cannot
serve as a basis for imposing Eighth Amendment liability on
the defendants.
The only other evidence of the State Defendants’
knowledge of the conditions that Parkell experienced are two
letters signed by Phelps, informing Parkell of the results of
his grievance appeals. But those particular letters refer to
grievances (nos. 191813 and 192952) that deal only with
Parkell’s requests for further medical services, not relief from
harsh conditions. Although the letters from Phelps could
demonstrate Phelps’s awareness of Parkell’s medical
complaints, 14 they do not demonstrate deliberate indifference,
as Phelps is not medical staff. See Durmer v. O’Carroll, 991
F.2d 64, 69 (3d Cir. 1993) (non-medical defendants not
deliberately indifferent “simply because they failed to
respond directly to the medical complaints of a prisoner who
was already being treated by the prison doctor”); Spruill v.
Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (“[A]bsent a reason
to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner, a non-
medical prison official . . . will not be chargeable with the
Eighth Amendment scienter requirement of deliberate
indifference.”).
14
Our oft-cited holding in Rode v. Dellarciprete, 845
F.2d 1195, 1208 (3d Cir. 1988) that the mere filing of a
grievance does not show actual knowledge by a supervisor is
not applicable, as Phelps’s letters show that he actually had
reviewed the grievances. Cf. Sutton v. Rasheed, 323 F.3d
236, 249-50 (3d Cir. 2003) (holding that an official who
wrote back in response to a grievance had “played an active
role” in a constitutional violation).
30
A grievance expressly challenging a practice of
prohibiting medical personnel from interacting with an inmate
might require intervention by non-medical staff, in that it
would suggest that the inmate was not receiving care at all.
But Parkell’s grievances were different. Parkell wrote that he
“complain[ed] often and mostly [was] ignored,” described his
symptoms, and asked for further treatments beyond what he
was already receiving. App. 492. The written responses to
those grievance show that the prison officials ensured that
Parkell was under the care of medical personnel and being
treated, and therefore that the officials were not deliberately
indifferent. See Greeno v. Daley, 414 F.3d 645, 655-56 (7th
Cir. 2005) (“Miller reviewed Greeno’s complaints and
verified with the medical officials that Greeno was receiving
treatment. We do not think Miller’s failure to take further
action . . . can be viewed as deliberate indifference.”).
Because there is insufficient evidence to find
deliberate indifference on the part of any of the State
Defendants, we will affirm the District Court’s grant of
summary judgment in the State Defendants’ favor as to
Parkell’s Eighth Amendment conditions-of-confinement
claim.
2.
We now turn to Parkell’s Eighth Amendment medical-
needs claim. To prove this claim, “evidence must show (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). The parties dispute only the issue of deliberate
indifference, not whether Parkell had a serious medical need.
The record would not permit a reasonable factfinder to
conclude that the Medical Defendants were deliberately
indifferent to Parkell’s medical needs, and therefore we will
affirm the District Court’s grant of summary judgment in the
Medical Defendants’ favor as to this claim.
We have acknowledged that “prison authorities are
accorded considerable latitude in the diagnosis and treatment
of prisoners.” Durmer, 991 F.2d at 67. A prisoner bringing a
medical-needs claim “must show more than negligence; he
31
must show ‘deliberate indifference’ to a serious medical
need.” Id. “Allegations of medical malpractice are not
sufficient to establish a Constitutional violation,” nor is
“[m]ere disagreement as to the proper medical treatment.”
Spruill, 372 F.3d at 235. A “failure to provide adequate care .
. . [that] was deliberate, and motivated by non-medical
factors” is actionable under the Eighth Amendment, but
“inadequate care [that] was a result of an error in medical
judgment” is not. Durmer, 991 F.2d at 69. “We have found
‘deliberate indifference’ in a variety of circumstances,
including where the prison official (1) knows of a prisoner’s
need for medical treatment but intentionally refuses to
provide it; (2) delays necessary medical treatment based on a
non-medical reason; or (3) prevents a prisoner from receiving
needed or recommended medical treatment.” Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
First, Parkell argues that Nurse Bryant violated his
Eighth Amendment right to medical treatment during her
encounter with him in January 2009. Parkell attests that
Bryant refused to let him speak to describe his symptoms,
accused him of “run[ning] game” to obtain Vicodin, declared
that she was not “fall[ing] for it,” told him he could purchase
aspirin himself, and instructed prison officers to “get him out
of here.” App. 96, 178. If Bryant had ignored Parkell’s
medical needs, her brusqueness might suggest that she did so
deliberately and for non-medical reasons. But Bryant did not
ignore his needs. Parkell claims that Bryant never properly
examined his injury in person even though he had a “massive
infection” and that she should have given him medication for
pain. App. 96, 178. But there is no dispute that the most
serious complications of Parkell’s injury (including the
visible releasing of pus) had not yet appeared when he saw
Bryant. There is also no dispute that Bryant ordered an x-ray
that showed normal results. And there is nothing in the
record suggesting that, at the time that Parkell saw Bryant, it
was improper to recommend over-the-counter pain
medication rather than to seek a prescription from a doctor.
Particularly in light of the normal x-ray results, a factfinder
could not reasonably conclude that Bryant deliberately
ignored risks to Parkell’s health.
32
Second, Parkell argues that CMS and CCS deprived
him of needed medical care, in violation of the Eighth
Amendment, in two respects: (1) Parkell was twice (first in
August 2009 on CMS’s watch, then again in March 2011 on
CCS’s watch) prescribed regular physical therapy but was
only provided with limited, sporadic therapy, and his injury
was exacerbated as a result; (2) Parkell was prescribed pain
medication in March 2011, but CCS provided only half the
prescribed dosage and, on some occasions, even less. Again,
the contested issue is deliberate indifference — that is,
whether “inadequate care was a result of an error in medical
judgment” or “deliberate, and motivated by non-medical
factors,” Durmer, 991 F.2d at 69 — and Parkell fails to make
a sufficient showing.
The deliberate indifference inquiry is complicated by
the fact that CMS and CCS are institutional defendants. It is
not enough for Parkell to show that a medical staffer was
deliberately indifferent to his needs, because CMS and CCS
“cannot be held responsible for the acts of [their] employees
under a theory of respondeat superior or vicarious liability.”
Natale, 318 F.3d at 583. Parkell must impute that deliberate
indifference to CMS and CCS by showing that they “turned a
blind eye to an obviously inadequate practice that was likely
to result in the violation of constitutional rights” such that
they, as “policymaker[s,] can reasonably be said to have been
deliberately indifferent to the need.” Id. at 584 (quotation
marks omitted). Parkell has not brought claims against
specific CMS or CCS employees other than Bryant. But in
order to succeed in his claim against CMS and CCS for
violating the Eighth Amendment, Parkell need not name
particular CMS or CCS employees who were deliberately
indifferent, as long as a factfinder could conclude that some
CMS or CCS employee was deliberately indifferent and the
deliberate indifference can be attributed to CMS or CCS. See
id. at 583 n.8.
As to the failure to provide prescribed physical
therapy, Parkell argues that there was no medical reason to
deny him therapy and the true reason was that, as a general
practice, therapy for SHU inmates was often skipped because
the prison lacked enough staff to transport them from the
SHU or were unable to transport them when certain security
33
events occurred. 15 CMS and CCS do not deny this but rather
argue that they are not liable because the alleged logistical
difficulties that undermined Parkell’s therapy were
indisputably caused by the DOC, which is the relevant
“policymaker” in that arena, not CMS and CCS. See Natale,
318 F.3d at 584.
We agree with CMS and CCS. Systemic logistical
constraints such as understaffing, which are unrelated to
medical judgment, will typically not excuse failure to provide
adequate medical care. See Inmates of Allegheny Cty. Jail v.
Pierce, 612 F.2d 754, 763 (3d Cir. 1979) (holding that
deliberate indifference is shown “where the size of the
medical staff at a prison in relation to the number of inmates
having serious health problems constitutes an effective denial
of access to diagnosis and treatment”). But there is a
difference between actors who are actually responsible for
those logistical constraints (or capable of remedying them)
and actors who are not. In Pierce, it was the jail
administration, not the individual medical providers, that was
responsible for the understaffing and deliberately indifferent
to its effects. See id. at 762-63; see also Byrd v. Shannon,
715 F.3d 117, 127-28 (3d Cir. 2013) (“[Byrd] has not shown
that the delays in supplying his eye drops were due to
deliberate indifference. . . . Under Byrd’s self-medication
program, he is responsible for the renewal of his
prescriptions, and thus, he was responsible for this delay.
Other delays were caused by the pharmacy that provided the
eye drops. Therefore, the District Court properly granted
summary judgment to [prison healthcare officials].”). That
the DOC’s transportation practices caused SHU inmates to
miss needed physical therapy does not mean that CMS or
CCS was indifferent to the problem. And even if they were
indifferent, their indifference could not have been the cause
of Parkell’s inadequate therapy, as there is no evidence that
CMS or CCS had control over inmate transportation. While
15
Parkell reportedly learned this from a conversation
with his physical therapist, and it is unclear whether his
statements would be admissible at a trial. But CMS and CCS
do not dispute Parkell’s claims about the transportation
difficulties; indeed, their defense relies on it.
34
Parkell could conceivably sue DOC officials in relation to the
transportation practices, he has not done so.
Parkell’s medical-needs claim also fails in relation to
his pain medication prescription (which implicates only
CCS). According to Parkell’s version of events, which CCS
disputes, he was initially prescribed four Vicodin per day by
Dr. DuShuttle, an amount that he never received once he
returned to VCC. He typically received only two Vicodin per
day, and on three occasions (March 23, 2011, March 29,
2011, and April 6, 2011) doses were missed. Nurses told
Parkell that CCS’s medical director could modify prescription
recommendations made by outside consulting doctors and
that the missed doses were caused by a short-term shortage.
With regard to the halving of the dosage, there is
insufficient evidence that it was done for non-medical
reasons, as Parkell alleges. The record is essentially silent as
to why CCS’s medical director would have reduced Parkell’s
pain medication below the level recommended by an outside
consulting doctor (assuming, of course, that this actually
happened). There could be several legitimate medical reasons
for doing so, including generalized professional disagreement
about the appropriate level of prescription pain medication for
most patients. And a fact-finder could not reasonably reject
those explanations in favor of an illegitimate explanation
merely because Parkell claims to have heard other inmates
say that “[the medical director] slash[es] in half everybody’s
order when you go out” to see a specialist, and to have heard
Dr. DuShuttle say that “[t]hey cut my orders every time I
make an order,” App. 328 — even if those statements were
admissible as evidence at trial.
As to the three missed doses, there is insufficient
evidence that CCS turned a blind eye to an inadequate
practice happening on its watch. There is no evidence that
shortages were a common or systemic problem. And there is
no evidence that CCS leadership would have known about
isolated shortages in time to intervene. Parkell filed a
grievance on April 16, 2011, alluding vaguely to “lapses in
medication occur[ring] randomly,” App. 234, but even if that
35
was sufficient to put CCS on notice, all three of the alleged
shortages predated the grievance. 16
We will therefore affirm the District Court’s grant of
summary judgment in favor of the Medical Defendants in
relation to Parkell’s Eighth Amendment medical-needs
claims. 17
IV.
Finally, we reject Parkell’s argument that the District
Court abused its discretion by denying him appointed
counsel.
“Indigent civil litigants possess neither a constitutional
nor a statutory right to appointed counsel.” Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). Appointing
counsel for an indigent civil litigant is “usually only granted
upon a showing of special circumstances indicating the
likelihood of substantial prejudice to him resulting, for
example, from his probable inability without such assistance
to present the facts and legal issues to the court in a complex
16
Parkell also cites a “Memorandum of Agreement
between the United States Department of Justice and the State
of Delaware that resulted from a DOJ investigation of
Delaware prison facilities, including [VCC],” but Parkell only
seeks to use this as evidence that “CMS and the DOC” — not
CCS, which entered the picture later — “were on notice
regarding deficiencies in the medical care afforded to
inmates.” Parkell Br. 49-50. Parkell also fails to explain
what “deficiencies” were actually noted in the Memorandum
and how they would have put CMS “on notice” with regard to
the specific issues in this lawsuit.
17
We do not address CCS’s argument that Parkell’s
claim is barred by his failure to exhaust administrative
remedies. Aside from being unnecessary to our disposition of
the case, the issue was forfeited because CCS did not raise
this issue in its summary judgment motion in the District
Court, and thus Parkell never had an opportunity to respond
with evidence of exhaustion. Ray v. Kertes, 285 F.3d 287,
295 (3d Cir. 2002) (“[F]ailure to exhaust is an affirmative
defense to be pleaded by the defendant.”).
36
but arguably meritorious case.” Smith-Bey v. Petsock, 741
F.2d 22, 26 (3d Cir. 1984) (emphasis added).
District courts have “broad discretion to determine
whether appointment of counsel in a civil case would be
appropriate.” Montgomery, 294 F.3d at 498 (quotation marks
omitted). First, the court “must assess whether the claimant’s
case has some arguable merit.” Id. at 498-99. If there is
arguable merit, then the court should consider a range of
factors, including:
1. the plaintiff’s ability to present his or her
own case; 2. the difficulty of the particular
legal issues; 3. the degree to which factual
investigation will be necessary and the ability
of the plaintiff to pursue investigation; 4. the
plaintiff’s capacity to retain counsel on his or
her own behalf; 5. the extent to which a case is
likely to turn on credibility determinations, and;
6. whether the case will require testimony from
expert witnesses.
Id. at 499. These factors are “not exhaustive, but should
serve as a guidepost for the district courts.” Id. (quotation
marks omitted). The plaintiff’s ability to present a case is
“[p]erhaps the most significant” consideration and depends on
factors such as “the plaintiff’s education, literacy, prior work
experience, and prior litigation experience.” Id. at 501. We
have noted that prisoners have the ability to “proceed with an
investigation through interrogatories, document requests, and
requests for admissions” but are unable to conduct
depositions, which are sometimes necessary to building a
case. Id. at 502-04.
Parkell’s chief complaint is that appointed counsel
could have more aggressively pursued documents when the
defendants resisted his requests for DOC policies and prison
log books. But Parkell did file motions to compel, along with
copious discovery requests, which demonstrated a
considerable ability to pursue discovery. His discovery
efforts were at times unsuccessful, and an appointed attorney
may well have done better. But that could be said of nearly
37
any pro se case and does not, on its own, lead us to believe
that the District Court abused its discretion.
Parkell also cites the complexity of the case and the
centrality of credibility determinations as grounds to appoint
counsel. But the core legal issues in this case — deliberate
indifference and the reasonableness of searches — are not so
complex that a pro se litigant would be altogether unable to
grasp them. Further, Parkell had significant litigation
experience, and his filings (including significant motion
practice) in the District Court were coherent and
demonstrative of both literacy and basic knowledge of the
mechanics of litigation. Witness credibility is indeed central
to the case, but that suggests a need for appointed counsel
during trial, not at the summary judgment phase, where
credibility determinations are not made.
The District Court, therefore, acted within the bounds
of its broad discretion to deny Parkell appointed counsel.
V.
For the foregoing reasons, the judgment of the District
Court will be affirmed in part and reversed in part. The
judgment will be reversed as to Parkell’s claim against the
State Defendants for prospective injunctive relief under the
Fourth Amendment, which will be remanded to the District
Court for further proceedings consistent with this opinion. In
all other respects, the judgment will be affirmed.
38