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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL BEENICK, Jr., : (Judge Brann)

:

Plaintiff, : No. 4:14-cv-01562

:

v. :

:

MICHAEL LeFEBVRE, et al., :

:

Defendants. :

MEMORANDUM

May 14, 2015

On August 8, 2014, Plaintiff Michael Beenick, Jr. filed a complaint with this 

Court, alleging violations of the Eighth and Fourteenth Amendments. On 

September 15, 2014, Defendants collectively filed a Motion to Dismiss the 

complaint for failure to state a claim upon which relief may be granted pursuant to 

Federal Rule of Civil Procedure 12(b)(6). On October 14, 2014, Magistrate Judge 

Thomas M. Blewitt considered the case on its merits and filed a Report and 

Recommendation recommending that: (1) Count I for violation of the Eighth and 

Fourteenth amendments through state created danger be dismissed as against 

Defendants Mandichak-McConnell, Weavering, Dittsworth, and Fagan; (2) Count 

II for violations of the Eighth Amendment through deliberate indifference to 

imminent harm and failure to protect be dismissed as against Defendants 

Weavering, Dittsworth, and Fagan; (3) Count IV failure to supervise be dismissed 

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as against all named defendants; and (4) Defendants motion be denied in all other 

respects. Moreover, Magistrate Judge Blewitt, on his own initiative, recommended 

dismissal of Plaintiff’s claim for monetary damages to the extent he is seeking 

them against Defendants acting in their official capacities, and Plaintiff’s request 

for declaratory judgment.

Plaintiff has filed an objection to the Report and Recommendation, albeit 

only objecting to certain findings of the magistrate judge. When objections are 

filed to the report and recommendation of a magistrate judge, the district court 

makes “a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objections are made.” 28 U.S.C. 

§ 636(b)(1)(C); United States v Raddatz, 447 U.S. 667, 674-75; 100 S.Ct. 2406; 65 

L. Ed. 2d 424 (1980). The court may accept, reject or modify, in whole or in part, 

the magistrate judge’s findings or recommendations. Id. Although the standard of 

review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district 

court, in the exercise of sound discretion, chooses to place on a magistrate judge’s 

proposed findings and recommendations. Raddatz, 447 U.S. at 675; see also 

Mathews v Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d 

Cir. 1984). With regard to those portions of the R&R to which neither party 

objects, this Court will review the R&R for abuse of discretion. Cf. Henderson v. 

Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (although the court is not required to 

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review magistrate judge’s report absent objections, “the better practice is for the 

district judge to afford some level of review to dispositive legal issues raised by the 

report”).

In conformity with the following reasoning, Magistrate Judge Blewitt’s 

Report and Recommendation is adopted in part and rejected in part. Defendants’ 

motion to dismiss is denied with respect to Counts I, II, III and IV. Defendants’ 

defense of qualified immunity is denied at this stage of the proceedings, although 

Defendants may reassert the defense at a later stage. Moreover, Plaintiff’s request 

for declaratory relief is dismissed without prejudice, with leave to amend in 

accordance with the following reasoning.

I. BACKGROUND

The Court does adopt the facts as alleged by Plaintiff in his complaint and 

recited by Magistrate Judge Blewitt, and they are as follows. On July 13, 2013, 

while confined at SCI Benner Twp., Plaintiff worked in the kitchen under the 

direction of Defendant LeFebvre, where he was ordered to slice a watermelon 

using an electric meat slicer and meat pusher without protective gear or a blade 

guard. Moreover, Defendant LeFebvre gave Plaintiff no instruction on how to 

operate the meat slicer and he did not attempt to teach Plaintiff how to use it. 

Though Plaintiff initially tried to obey Defendant LeFebvre’s order, he had 

difficulty doing so because the melon was too heavy and slippery. He explained 

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to Defendant LeFebvre that he could not safely cut the watermelon with the meat 

slicer; nevertheless, Defendant LeFebvre ordered him to continue trying to do so. 

Unfortunately, while complying with that order, the watermelon slipped and 

Plaintiff cut off two fingers on his hand. Plaintiff required emergency hospital 

treatment and surgery for this injury, although he ultimately lost part of his hand 

permanently. 

At the time of the incident, Defendant Mandichak-McConnell was present 

and was aware that Defendant LeFebvre had ordered Plaintiff to cut the 

watermelon in a way that was dangerous to his health and safety, but nevertheless 

failed to intervene on Plaintiff’s behalf. Defendants Dittsworth, Weavering and 

Fagan failed to make available protective gear even though they were required to 

do so. Moreover, these Defendants had knowledge that inmates were routinely 

ordered to operate the meat slicer in a dangerous way, but allowed the practice to 

continue in a deliberately indifferent manner. 

II. LEGAL STANDARD

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a court must view all allegations stated in the complaint as true 

and construe all inferences in the light most favorable to plaintiff. See Hishon v. 

King & Spaulding, 467 U.S. 69, 73 (1984); see also Kost v. Kozakiewicz, 1 F.3d 

176, 183 (3d Cir. 1993). However, “the tenet that a court must accept as true all of 

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the [factual] allegations contained in the complaint is inapplicable to legal 

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations 

omitted). In ruling on such a motion, the court primarily considers the allegations 

of the pleading, but is not required to consider legal conclusions alleged in the 

complaint. Kost, 1 F.3d at 183. “Threadbare recitals of the elements of a cause of 

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 

at 678. At the motion to dismiss stage, the court considers whether plaintiff is 

entitled to offer evidence to support the allegations in the complaint. See Maio v. 

Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). 

A complaint should only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face. See Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim 

for relief will . . . be a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. 

May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a 

‘short and plain statement of the claim showing that the pleader is entitled to relief,' 

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in order to 'give the defendant fair notice of what the...claim is and the grounds on 

which it rests.'" Twombly, 550 U.S. at 554 (quoting Conley v. Gibson, 355 U.S. 41, 

47 (1957)). However, even under this lower notice pleading standard, a plaintiff 

must do more than recite the elements of a cause of action, and then make a 

blanket assertion of an entitlement to relief. See Hellmann, 2008 WL 1969311 at 

*3. Instead, a plaintiff must make a factual showing of his entitlement to relief by 

alleging sufficient facts that, when taken as true, suggest the required elements of a 

particular legal theory. See Twombly, 550 U.S. at 561. “[W]here the well-pleaded 

facts do not permit the court to infer more than the mere possibility of misconduct, 

the complaint has alleged - - but it has not “shown” - - “that the pleader is entitled 

to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)). 

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation 

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490 

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where 

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the 

non-moving party can prove no set of facts in support of its allegations, then a 

claim must be dismissed “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.” Id. at 327.

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III. DISCUSSION

A. Count IV Failure to Supervise

Magistrate Judge Blewitt recommended that this Court dismiss Count IV

failure to supervise as against Defendants Weavering, Dittsworth, and Fagan on the 

basis that the allegations in Plaintiff’s complaint failed to sufficiently show that 

they were personally involved in the incident at issue and were deliberately 

indifferent to Plaintiff’s safety. Rather, he elaborates, Plaintiff’s allegations 

against these three defendants amount to nothing more than liability predicated on 

a theory of respondeat superior, which is not an adequate basis of liability in a 

civil rights action. He recommended, however, that Plaintiff be given leave to 

amend to assert some personal involvement on the part of these Defendants.

Plaintiff objects to Magistrate Judge Blewitt’s recommendation of dismissal 

of this claim. He argues a recent decision by the United States Court of Appeals 

for the Third Circuit, Barkes v. Fist Corr. Med., Inc., 766 F.3d 307 (3d Cir. 2014), 

for the proposition that he has met the pleading standard for supervisory liability. 

The supervisory Defendants counter that Plaintiff cannot prove that they were 

deliberately indifferent to Plaintiff’s safety because his single incident is 

insufficient to satisfy the objective substantial risk of harm element and there is no 

basis to believe that they subjectively knew of and disregarded an excessive risk to 

Plaintiff’s safety because they were not working that day.

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As Plaintiff points out, Magistrate Judge Blewitt’s report and 

recommendation failed to address the ways in which Barkes clarified Third Circuit 

law in the aftermath of the United States Supreme Court decision in Ashcroft v. 

Iqbal, 556 U.S. 662 (2009). It is true, as Magistrate Judge Blewitt acknowledged 

and Defendants argue, that government officials may not be held liable for the 

unconstitutional actions of their subordinates on a theory of respondeat superior. 

See Iqbal, 556 U.S. at 676. It was on this principle that Magistrate Judge Blewitt 

founded his analysis. In doing so, Magistrate Judge Blewitt unfortunately failed to 

recognize the myriad of ways in which Plaintiff had alleged that Dittsworth, 

Weavering, and Fagan, through their own individual actions, had violated his 

constitutional rights. 

To that end, Barkes reiterated that there are two general ways in which a 

supervisor-defendant can be held liable for the unconstitutional actions and 

conduct of their subordinates. Barkes, 776 F.3d at 316. The first is a direct 

liability theory, including a theory of knowledge and acquiescence, and the second 

is policy or practice liability, including a theory based on failure to supervise. In 

his complaint, Plaintiff specified only a failure to supervise claim in Count IV. 

However, throughout the complaint he utilizes language of knowledge and 

acquiescence. Consequently, the Court will address both theories as they apply to 

Plaintiff’s allegations.

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1. Knowledge and Acquiescence

First, liability may attach “if [the defendant] participated in violating the 

plaintiff’s rights, directed others to violate them, or, as the person in charge, had 

knowledge of and acquiesced” in the subordinate’s unconstitutional conduct. A.M. 

ex rel. J.M.K., 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-

91 (3d Cir. 1995)); see also Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 

1988) (“Personal involvement can be shown through allegations of personal 

direction or of actual knowledge and acquiescence.”). To establish liability under 

the Eighth Amendment based on this theory, a plaintiff must establish: (1) the 

official had knowledge of the problem and thus the risk that unwarranted 

punishment was being inflicted; (2) the official either failed to act or took only 

ineffectual action under circumstances demonstrating deliberate indifference to the 

plaintiff’s plight; and (3) a causal relationship between the official’s response to 

the problem and the infliction of the constitutional violation. See Sample, 885 F.2d 

at 1110. Moreover, “[t]o establish knowledge and acquiescence of a subordinate’s 

misconduct, a plaintiff must allege the defendant’s (1) contemporaneous 

knowledge of the offending incident or knowledge of similar incidents in the past, 

and (2) actions or inactions which communicated approval of the subordinate’s 

behavior.” Womak v. Moleins, Civ. No. 10-2932, 2014 WL 6895150, at * 3 (D.N.J. 

Dec. 5, 2014).

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Although Iqbal arguably rejected supervisory liability predicated on a theory 

of knowledge and acquiescence, the Third Circuit has clarified through Barkes that 

the holding in Iqbal was dependent on the constitutional violation at issue. Barkes, 

766 F.3d at 318 (“[T]he [Supreme] Court expressly tied the level of intent 

necessary for superintendent liability to the underlying constitutional tort”). 

Because the claim presented in Iqbal – First and Fifth Amendment violations –

required that the plaintiff prove that the perpetrator acted with a discriminatory 

purpose, it necessarily followed that the defendant supervisors need have possessed 

the same mental state. Id. Therefore, the Barkes court concluded, “the level of 

intent necessary to establish supervisory liability will vary with the underlying 

constitutional tort alleged. In this case, the underlying tort is . . . [a] violation of 

the Eighth Amendment’s prohibition on cruel and unusual punishment, and the 

accompanying mental state is subjective deliberate indifference.” Id. at 320.

However, following Iqbal, the Third Circuit has heightened its pleading bar 

for supervisory liability claims predicated on a theory of knowledge and 

acquiescence. See Supervisory Liability in the Fallout of Iqbal, 65 Syracuse L. 

Rev. 103, 142-46 (2014) (“The Third Circuit continues to impose strict pleading 

requirements in the supervisory liability context, but post-Iqbal, its bar has been 

raised even higher. . . . Its fact pleading bar is so high, it is hard to conceive of a 

plaintiff possessing enough pre-discovery information to file a properly pled 

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complaint in most circumstances.”). For example, in Santiago v. Warminster Twp., 

the plaintiff sued police officers and their supervisors for violations of the Fourth 

Amendment when a police raid of her home led her to have a heart attack. 629 

F.3d 121, 129 (3d Cir. 2010). Specifically, the plaintiff in that case alleged that the 

defendant who was in charge of the operation, Lt. Springfield, “permitted the use 

of excessive force,” which the court interpreted to allege that he had acquiesced in 

his subordinates’ violations. Id. Ultimately, the court concluded that the plaintiff 

had not plausibly pled a claim against Lt. Springfield, stating that the complaint 

“does not aver that he knew of the allegedly excessive force, nor does it give rise to 

the reasonable inference that he was aware of the level of force used against one 

individual.” Id. at 134.1

In Argueta v. U.S. Immigration and Customs Enforcement, the plaintiffs 

were victims of raids by Immigration and Customs Enforcement officials, and they 

sued high-ranking federal officials alleging violations of their Fourth and Fifth 

Amendment rights. 643 F.3d 60, 62-63 (3d Cir. 2011). They contended that the 

defendants had carried out a practice of unlawful and abusive raids of immigrant 

homes across the state of New Jersey under a nation-wide program instituted by 

the Department of Homeland Security which increased arrest quotas of illegal 

immigrants. See id. at 62. Specifically, they argued that “the DHS supervisory 

 

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Santiago also dealt with a claim that several other officers directed their subordinates to violate the plaintiff’s 

rights. Because this type of claim is different from both a knowledge and acquiescence claim and a failure to 

supervise claim, the Court does not discuss it here.

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officials named in this Complaint have continued to foster an institutional culture 

of lawlessness” in that they had failed to develop meaningful guidelines or 

oversight mechanisms to ensure that home searches were conducted in a 

constitutional fashion, to adequately train their agents, and to hold the agents 

accountable for their constitutional violations. Id. at 65. They stated, moreover, 

that the supervisory defendants had been repeatedly put on notice of the 

unconstitutional conduct of the agents through lawsuits filed against them and 

through the media, as well as through communications by the mayor. See id. at 66. 

The Court ultimately concluded that the plaintiff’s allegations regarding notice to 

the defendants of their subordinates’ unconstitutional conduct were insufficient 

because they involved “different raids executed across the country over a period of 

years” and they were not specific as to the named subordinates. Id. at 74-75. It 

therefore dismissed the complaint as an implausible allegation of supervisory 

liability. See id. at 75.

In the case at bar, Plaintiff alleges only that Defendants Dittsworth and 

Weavering knew that LeFebvre and Mandichak-McConnell routinely ordered 

prisoners to operate the meat slicer to slice food it was not intended to slice, 

without any safety precautions and without any training. He alleges more 

specifically that Defendant Fagan knew of this practice through her periodic 

inspections, observation, and through verbal and written communications from 

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staff and prisoners. He further alleges that all of the supervisory defendants

“tolerated, condoned, acquiesced in, and encouraged the practice.” These 

allegations are insufficient to state a claim for supervisory liability under the Third 

Circuit’s heightened pleading standards. As relates to Defendants Dittsworth and 

Weavering, the open-ended statement that they had knowledge of their 

subordinates’ conduct is purely conclusory without any facts to support that 

statement. As for Defendant Fagan, the allegations against her are very similar to 

those articulated in Argueta in terms of specificity and abundance. As those 

allegations in Argueta were found to be insufficient, so too do we find them here. 

Consequently, to the extent Plaintiff’s claim in count IV is predicated on a theory 

of knowledge and acquiescence, it is dismissed without prejudice, with leave to 

amend in accordance with this Court’s decision to more explicitly state the 

circumstances and specifics of the Defendants’ knowledge.

2. Failure to Supervise

The second way in which a supervisor-defendant may be liable for the acts 

of its subordinates is if, “with deliberate indifference to the consequences, [he or 

she] established and maintained a policy, practice or custom which directly caused 

[the] constitutional harm.” Barkes, 766 F.3d at 316 (quoting A.M. ex rel. J.M.K. v. 

Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). A 

subcategory of this type of policy or practice liability includes “failure to” claims, 

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including failure to train, failure to discipline, and most importantly for the matter

before this Court, failure to supervise. Id. (citing Rosalie Berger Levinson, Who 

Will Supervise the Supervisors? Establishing Liability for Failure to Train, 

Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World, 47 Harv. 

C.R.-C.L. L. Rev. 273, 280 (2012) (“[C]ausation under § 1983 exists if a 

municipality or one of its policymakers adopts a policy or practice that, although 

not itself unlawful, is the moving force of the constitutional violation. . . . [T]he 

challenged policy is one of failure to act – failure to supervise, failure to train, or 

failure to discipline subordinates. . . . Even if the failure to act does not rise to the 

level of constitutional culpability, the failure may still trigger liability, if it can be 

causally linked to the constitutional rights violation committed by subordinates.”)).

The Barkes court went on to reaffirm the continued viability of its test for 

supervisory liability in the context of a failure to supervise claim under the Eighth 

Amendment, as originally articulated in Sample v. Diecks, 885 F.2d 1099 (3d Cir. 

1989). Barkes, 766 F.3d at 320 (“Accordingly, we hold that the standard we 

announced in Sample for imposing supervisory liability based on an Eighth 

Amendment violation is consistent with Iqbal). In that case, the Third Circuit 

developed a four-part test for establishing a claim based on the failure of a 

government official to supervise his or her subordinates. Specifically, “[t]he 

plaintiff must identify a supervisory policy or practice that the supervisor failed to 

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employ, and then prove that: (1) the policy or procedures in effect at the time of the 

alleged injury created an unreasonable risk of a constitutional violation; (2) the 

defendant-official was aware that the policy created an unreasonable risk; (3) the 

defendant was indifferent to that risk; and (4) the constitutional injury was caused 

by the failure to implement the supervisory practice or procedure.” Barkes, 776 

F.3d at 317 (citing Sample, 885 F.2d at 1118). Moreover, the Barkes court 

explicitly rejected the notion that the defendant must have committed an 

affirmative act in order to be held liable under the Eighth Amendment. Id. at 321.

At this point in the litigation the Court need only consider whether Plaintiff 

has plead a cause of action for failure to supervise, not whether he has proven his 

claim. I find that he has done so. Specifically, Plaintiff has alleged that all three of 

the supervisory Defendants were responsible in their positions of authority to make 

protective gear available and to ensure that the meat-slicer would not be used 

without its blade guard. The failure to make available protective gear with a 

dangerous cutting instrument and the failure to train prisoners in the use of that 

instrument necessarily creates an unreasonable risk of injury, especially in the 

context of a prison environment where prisoners have less liberty to refuse to 

follow the order of a superior. Whether the facts at issue here constitute a 

constitutional violation is inappropriate for the Court to determine at this juncture. 

I find only that Plaintiff has alleged enough information in his complaint to 

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plausibly state that a constitutional violation has occurred because of Defendants’ 

inactions. See Petry v. Beard, Civil No. 3:09-CV-2312, 2011 WL 1398476, * 

(M.D.Pa. Apr. 13, 2011) (Carlson, M.J.) (“[T]he Eighth Amendment is implicated 

in the prison work context . . . when a prisoner employee alleges that a prison 

official [1] compelled him to perform physical labor which was beyond his 

strength, [2] endangered his life or health, or [3] caused undue pain. Moreover, in 

a setting where prison disciplinary rules enable corrections staff to sanction 

inmates who refuse to perform specific tasks, these cases all acknowledge that the 

issue of voluntariness assumes a factual dimension. . . .” (quoting Morgan v. 

Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006))). 

Moreover, Plaintiff does aver that Defendants knew that Defendants 

LeFebvre and Mandichak-McConnell routinely ordered prisoners to operate the 

meat slicer to slice food it was not intended to slice, without any safety precautions 

and without any training. In the absence of a more developed factual record, the 

Court is unaware of the exact contours of the Defendants knowledge of their 

subordinates’ conduct. Furthermore, Plaintiff alleges that Defendants did nothing 

to prevent this practice, instead tolerating, condoning, and encouraging it. See, 

e.g., Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[D]eliberate indifference 

entails something more than mere negligence, [but] the cases are also clear that it is 

satisfied by something less than acts or omissions for the very purpose of causing 

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harm or with knowledge that harm will result.”). Finally, Plaintiff alleges that his 

injury, including the loss of his fingers, was directly caused by the failure of the 

Defendants to take the actions they were required to and their inaction in 

preventing Defendants LeFebvre and Mandichak-McConnell from allowing this 

unsafe practice to persist. These are more than “naked assertions” that 

formulaically recite the elements of the cause of action. Consequently, 

Defendants’ motion to dismiss count IV will be denied to the extent Plaintiff’s 

complaint relies upon a theory of failure to supervise. 

B. Count II Deliberate Indifference and Failure to Protect

Magistrate Judge Blewitt next denied Defendants’ motion to dismiss Count 

II for a violation of the Eighth Amendment through deliberate indifference to 

imminent harm and failure to protect as against Defendants LeFebvre and 

Mandichak-McConnell. He did not, however, discuss the remaining Defendants 

within the context of this claim. From what this Court can discern, because he 

subsequently dismissed those Defendants from the litigation entirely for lack of 

personal involvement, he did not address them within the context of Count II. 

Neither party has filed an objection to Magistrate Judge Blewitt’s recommendation 

that the motion be denied as to Defendants LeFebvre and Mandichak-McConnell. 

Plaintiff notes, however, that due to the Barkes decision and its intervening 

precedent on supervisory liability, which this Court has already discussed, 

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Magistrate Judge Blewitt’s analysis must be revised to incorporate a discussion of 

the three supervisory Defendants.

This Court has given full and independent consideration to Magistrate Judge 

Blewitt’s report and recommendation as it relates to Count II against Defendants 

LeFebvre and Mandichak-McConnell. Because this Court agrees with the 

Magistrate Judge’s recommendation that Defendants’ motion to dismiss must be 

denied on Count II as to these Defendants, the Court will not rehash the reasoning 

of the Magistrate Judge and will adopt the report and recommendation on this 

count. Moreover, the Court agrees with the law as stated in the report and 

recommendation of Magistrate Judge Blewitt; therefore I will not repeat his 

detailed exposition of the law. Nevertheless, because of this Court’s ruling on 

Plaintiff’s failure to supervise claim in Count IV of the complaint, the Court must 

necessarily address Defendants’ motion to dismiss Count II against the three 

supervisory defendants, which Magistrate Judge Blewitt had no occasion to do. 

Based on the law as stated in the report and recommendation, this Court finds that 

Plaintiff has adequately pled a claim for Eighth Amendment violations through 

deliberate indifference and failure to protect against the three supervisory 

defendants, Defendants Weavering, Dittsworth, and Fagan.

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C. Count I State-Created Danger

Magistrate Judge Blewitt further recommended dismissal of Defendants 

Mandichak-McConnell, Weavering, Dittsworth, and Fagan from Count I (statecreated danger) on the basis that none of them took any affirmative action that 

created and placed Plaintiff in danger. He therefore recommended that the claim 

go forward against only Defendant LeFebvre. Plaintiff objects to the dismissal of 

all four Defendants, arguing that a plaintiff need not allege affirmative action on 

the part of the state actor in a prison context, based in part on the Third Circuit’s 

recent decision in Barkes. Defendants responds only that Barkes does not require a 

different result than that which Magistrate Blewitt has recommended and, 

moreover, that Plaintiff’s complaint is filled with conclusory allegations which fail 

to survive a 12(b)(6) analysis.

In order to establish a state-created danger claim, a plaintiff must allege four 

elements: (1) the harm ultimately caused was foreseeable and fairly direct; (2) a 

state actor acted with a degree of culpability that shocks the conscience; (3) a 

relationship between the state and the plaintiff existed such that the plaintiff was a 

foreseeable victim of the defendant’s acts, or a member of a discrete class of 

persons subjected to the potential harm brought about by the state’s actions as 

opposed to a member of the public in general; and (4) a state actor affirmatively 

used his or her authority in a way that created a danger to the citizen or that 

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rendered the citizen more vulnerable to danger than had the state not acted at all. 

See Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006); see also 

Sanford v. Stiles, 456 F.3d 298, 304-5 (3d Cir. 2006). With regard to the first 

element, Plaintiff has adequately pled that the harm of injuring his hand and losing 

his fingers was foreseeable and was a direct result of the Defendants’ conduct.2 

Moreover, Plaintiff has adequately pled that as an inmate, a relationship existed 

between him and the state such that he was a foreseeable victim of the Defendants 

conduct. 

Accordingly, the Court must determine whether Plaintiff has adequately pled 

elements two and four. With regard to the second element, the fault inquiry 

requires the Court to ask whether the defendant acted with a degree of culpability 

that shocks the contemporary conscience. Bright, 443 F.3d at 281; see also 

Sanford, 456 F.3d at 305. However, the Supreme Court has stated that whether 

behavior rises to the level of conscience-shocking will depend upon the facts of 

each individual case. See County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998) 

(“Rules of due process are not . . . subject to mechanical application in unfamiliar 

territory.”). The Third Circuit has therefore articulated three possible standards to 

 

2

In the case of Defendant LeFebvre, that conduct includes ordering Plaintiff to cut the watermelon with the meat 

slicer, despite having been told of its danger. In the case of Defendant Mandichak-McConnell, that conduct 

amounts to a failure to intervene despite her presence in the kitchen and her intimate knowledge of what Defendant 

LeFebvre had told Plaintiff to do. In the case of the other Defendants, that conduct relates not only to their failure to 

purchase safety equipment and adequately train the inmates on the meat slicer’s use, but also in that they were aware 

that inmates were routinely ordered to cut fruit with the meat slicer but nevertheless did nothing to prevent the 

practice from continuing.

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determine whether behavior rose to the level of conscience-shocking: (1) deliberate 

indifference; (2) gross negligence or arbitrariness that shocks the conscience; and 

(3) intent to cause harm. Sandford, 456 F.3d at 306. Importantly, the court held 

that “[t]he level of culpability required to shock the conscience increases as the 

time state actors have to deliberate decreases. In a ‘hyperpressurized 

environment,’ an intent to cause harm is usually required. On the other hand, in 

cases where deliberation is possible and officials have the time to make ‘unhurried 

judgments,’ deliberate indifference is sufficient.”3Id. at 309. Mere negligence is 

never sufficient to rise to conscience-shocking behavior. See Schieber v. City of 

Philadelphia, 310 F.3d 409, 419 (3d Cir. 2003).

The conduct alleged in the instant case is that the Defendants either directed 

Plaintiff to use the meat slicer to cut a watermelon or knew that correctional 

officers routinely ordered such practices and yet failed to stop the practice or 

provide protective gear to the prisoners who were ordered to do so. This is not the 

type of situation in which deliberation would be impossible. Rather, nothing about 

the facts alleged indicate that there was anything about the Defendants’ conduct 

which was done under pressure or in an emergency situation. Consequently, this 

Court finds that the applicable standard of conscience-shocking behavior for the 

 

3

Specifically, the Supreme Court compared a high-speed chase or a prison riot on one hand with decisions regarding 

the medical needs of prisoners on the other hand. In the latter situation, deliberate indifference was the correct 

standard because the state actor would usually have time to engage in “actual deliberation.” However, in the former 

scenarios deliberation would be next to impossible and therefore an intent to harm would be required. See Lewis, 

523 U.S. at 849-54.

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facts alleged is one of deliberate indifference. As previously discussed, plaintiff 

has satisfied the second element of the state-created danger theory by adequately 

pleading that all Defendants were at least deliberately indifferent to the risk of 

harm posed by their actions.

Finally, with regard to the fourth element, typically a plaintiff must prove 

that the state actor took affirmative action to create more danger than would 

otherwise exist had he not acted at all. DeShaney v. Winnebago Cty. Soc. Servs. 

Dept., 489 U.S. 189, 201 (1989) (“While the State may have been aware of the 

dangers that Joshua faced in the free world, it played no part in their creation, nor 

did it do anything to render him more vulnerable to them . . . . [The State] placed 

him in no worse position than that in which he would have been had it not acted at 

all.”) However, “when the state takes custody of a citizen, thereby depriving him 

of his liberty, that it assumes an affirmative duty to protect him or her from harm.” 

Bright, 443 F.3d at 280; see also Brown v. Grabowski, 922 F.2d 1097, 1100-1 (3d 

Cir. 1990) (“[A] state’s failure to take affirmative action to protect a victim from 

the actions of a third party will not, in the absence of a custodial relationship . . . 

support a civil rights claim.” (emphasis added)); DeShaney, 489 U.S. at 199-200 

(“[W]hen the State takes a person into its custody and holds him there against his 

will, the Constitution imposes upon it a corresponding duty to assume some 

responsibility for his safety and general well-being. . . . The affirmative duty to 

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protect arises not from the State’s knowledge of the individual’s predicament or 

from its expressions of intent to help him, but from the limitation which it has 

imposed on his freedom to act on his own behalf.”). Moreover, the Third Circuit 

recently reaffirmed this proposition in its decision in Barkes.

4

In this case, Plaintiff has alleged that each of the Defendants’ actions 

individually operated to create a danger to the Plaintiff while he was working in 

the kitchen. Though Magistrate Judge Blewitt is correct in stating that Plaintiff has 

only alleged affirmative action on the part of Defendant LeFebvre, this Court holds 

that based on the previously cited law, a plaintiff alleging state-created danger in 

the prison context need not allege affirmative action on behalf of the defendants. 

Consequently, the Court holds that Plaintiff has adequately pled all four elements

of a theory of state-created danger as against all Defendants and Defendants’ 

motion to dismiss this claim will be denied.

D. Count III Failure to Intervene

Next, Magistrate Judge Blewitt denied Defendants’ motion to dismiss as it 

related to Count III for failure to intervene, which was only asserted against 

Defendant Mandichak-McConnell. Neither party has objected to this 

 

4

Plaintiff further argues that in Barkes the Third Circuit deleted the requirement of affirmative action from the 

elements of a state-created danger claim because it portrayed the fourth element to state, “the state-actor used his 

authority to create an opportunity for danger that otherwise would not have existed.” The court in that case did not 

discuss whether their decision to remove the word “affirmatively” was a deliberate one. Be that as it may, this Court 

need not at this time decide that issue because this Court bases its decision on the breadth of case law discussed 

above which explicitly does not require the existence of an affirmative act in the prison context. 

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recommendation. Therefore, this Court will review Judge Blewitt’s determination 

for an abuse of discretion and the Court finds that he has not abused his discretion 

in denying Defendants’ motion to dismiss on this basis.

Correctional officers can be held liable under the Eighth Amendment for a 

failure to intervene; however, the officer can only be liable if there is a realistic and 

reasonable opportunity to intervene. See Smith v. Mensinger, 293 F.3d 641, 650-

51 (3d Cir. 2002) (“The approving silence emanating from the officer who stands 

by and watches as others unleash an unjustified assault contributes to the actual use 

of excessive force, and we cannot ignore the tacit support such silence lends to 

those who are actually striking the blows. Such silence is an endorsement of the 

constitutional violation resulting from the illegal use of force. . . . We will not 

immunize such conduct by suggesting that an officer can silently contribute to such 

a constitutional violation and escape responsibility for it.”). 

Plaintiff has alleged that Defendant Mandichak-McConnell was present in 

the kitchen at the time of the incident and knew that Defendant LeFebvre had 

ordered him to slice the watermelon with the meat-slicer in an unsafe manner but 

did nothing to stop him. As Magistrate Judge Blewitt has stated, this is sufficient 

to state a claim for failure to intervene and consequently Defendants’ motion to 

dismiss, to the extent it even argued for dismissal of this count, is denied.

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E. Qualified Immunity

In their motion to dismiss, Defendants assert a defense of qualified 

immunity. Magistrate Judge Blewitt recommended that the Court dismiss 

Defendants’ qualified immunity defense at this stage in the proceeding, but allow 

the Defendants to reassert the defense at a later stage in the litigation. Plaintiff 

objects to this recommendation, arguing that the Court should conclusively 

determine at this juncture that qualified immunity is not available to any Defendant 

in this case. 

The Court has given full and independent consideration to the report and 

recommendation of Magistrate Judge Blewitt on the defense of qualified immunity, 

and has considered Plaintiff’s objection with appropriate scrutiny. Because this 

Court agrees with Magistrate Judge Blewitt’s recommendation on this point, the 

Court will not rehash the reasoning of the Magistrate Judge and will adopt his 

recommendation that the defense be denied at this stage, but that Defendants can 

reassert it at a later stage in the proceeding.

F. Availability of Damages

Towards the conclusion of his report and recommendation, Magistrate Judge 

Blewitt recommends, albeit without request, that this Court dismiss all requests for 

monetary relief against Defendants in their official capacities. Moreover, he 

recommends that Plaintiff’s requests for declaratory relief be dismissed with 

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prejudice because his request pertains only to past constitutional violations by the 

Defendants and therefore is not based on a substantial likelihood of future harm.

Plaintiff chose not to object to the dismissal of any request for monetary damages 

against the Defendants in their official capacities. However, he did argue that if 

this Court should adopt the recommendation regarding declaratory relief, he should 

be given leave to amend to allege an ongoing risk of harm.

With regard to the former, the Eleventh Amendment bars a damages action 

against a state in federal court. See Kentucky v. Graham, 473 U.S. 159, 170 (1985). 

Moreover, a suit against a state official in his or her official capacity is really a suit 

against the official’s office. See Will v. Michigan Dept. of State Police, 491 U.S. 

58, 71 (1989) (citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). “That is so 

because . . . a judgment against a public servant in his official capacity imposes 

liability on the entity that he represents.” Graham, 473 U.S. at 170. Accordingly, 

although Plaintiff’s complaint does not clarify whether he is suing Defendants in 

their personal or official capacities, the law as stated by Magistrate Judge Blewitt 

is correct and this Court will adopt his recommendation on this issue.

As for the request for declaratory relief, “[i]n order to present a justiciable 

controversy in an action seeking a declaratory judgment to protect against a feared 

future event, the plaintiff must demonstrate that the probability of that future event 

occurring is real and substantial, ‘of sufficient immediacy and reality to warrant the 

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issuance of a declaratory judgment.’” Salvation Army v. Dept. of Community 

Affairs of State of N.J., 919 F.3d 183, 192 (3d Cir. 1990) (quoting Steffel v. 

Thompson, 415 U.S. 452, 460 (1974)). The purpose of this requirement is to avoid 

the potentiality that a court would issue an opinion advising what the law would be 

upon a hypothetical state of facts, thereby circumventing the “case or controversy” 

requirement of the Constitution. See Step-Saver Data Systems, Inc. v. Wyse 

Technology, 912 F.2d 643, 649 (3d Cir. 1990). 

Magistrate Judge Blewitt is correct in asserting that Plaintiff has not alleged 

any future event, the probable occurrence of which is real and substantial, for 

which a declaratory judgment would be useful or necessary. He has, rather, 

alleged only past actions on the part of Defendants, with no explicit indications 

that these actions would continue into the future. Consequently, Plaintiff’s request 

for declaratory judgment is dismissed without prejudice with leave to amend to 

allege a real and substantial probability of future constitutional violations. 

IV. CONCLUSION

In accordance with the foregoing reasoning, Magistrate Judge 

Blewitt’s Report and Recommendation is adopted in part and rejected in part. 

Defendants’ motion to dismiss is denied with respect to Counts I, II, III and IV. 

Defendants’ defense of qualified immunity is denied at this stage of the 

proceedings, although Defendants may reassert the defense at a later stage. 

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Finally, Plaintiff’s request for declaratory relief is dismissed without prejudice, 

with leave to amend in accordance with the following reasoning.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

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