IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

JAMEY McKEE, 

 Plaintiff, 

 v. 

B. SALAMAN, et al., 

 Defendants. 

 No. 4:22-CV-01240 

 (Chief Judge Brann) 

 

MEMORANDUM OPINION 

JULY 25, 2023 

 Plaintiff Jamey McKee was previously confined at the State Correctional 

Institution Rockview (SCI Rockview), in Bellefonte, Pennsylvania. He filed the 

instant pro se Section 19831

 action, claiming that numerous SCI Rockview 

officials violated his constitutional rights. Presently pending is Defendants’ 

motion for partial dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). 

The Court will grant in part and deny in part Defendants’ motion. 

I. BACKGROUND 

McKee is currently incarcerated in SCI Frackville.2

 His lawsuit concerns 

alleged incidents at SCI Rockview during the summer months of 2022.3

 In early 

1

 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional 

wrongs committed by state officials. The statute is not a source of substantive rights; it serves 

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ. 

v. Doe, 536 U.S. 273, 284-85 (2002). 

2

 See Doc. 56. 

3

 See generally Doc. 49. 

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2 

August 2022, McKee filed the instant Section 1983 lawsuit asserting violations of 

his constitutional rights by SCI Rockview officials.4

 McKee then filed an amended 

complaint on August 29, 2022.5

 Defendants moved to dismiss his amended 

complaint,6

 and in response McKee filed a second amended complaint in January 

2023.7

 His sprawling second amended complaint spans 41 pages and contains 221 

paragraphs.8

 

The gravamen of his lawsuit is that he was allegedly subjected to a campaign 

of retaliation by SCI Rockview officials because he filed a report under the Prison 

Rape Elimination Act (PREA) on May 11, 2022, alleging that his unit manager—

defendant Michael Knapp—had sexually assaulted him the previous day.9

 McKee 

claims that the retaliation included being improperly demoted in his BMU phase 

levels from a Level 3 to a Level 4,10 being placed in a “recovery/hard” cell (with 

constant lighting and a “cement bed” and lacking a desk, shelf space, and an 

electrical outlet) for approximately a month,11 being denied lunch and toilet paper 

4

 See generally Doc. 1. 

5

 See generally Doc. 6. 

6

 See Doc. 32. 

7

 See generally Doc. 49. 

8

 See generally id.

9

 See id. ¶¶ 21, 28. 

10 Id. ¶¶ 30-31, 34-37, 195. According to McKee, “The BMU is a minimum 4[-]month program. 

Inmates designated to the BMU are expected to advance through the program by phases. It 

commences at phase 5 and ends at phase 1[,] which is held [sic] in general population. 

Movement to a lower treatment phase is based on the inmate’s behavior and compliance with 

the inmate’s Individual Recovery Plan (I.R.P.).” Id. ¶ 20. 

11 Id. ¶¶ 43-51, 196. 

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on a single day,12 being issued false misconducts,13 being denied access to 

grievances,14 and being intentionally placed in harm’s way so that he could be 

assaulted by another inmate.15

McKee also claims that multiple prison officials failed to protect him in 

violation of the Eighth Amendment,16 exposed him to unconstitutional conditions 

of confinement (also in violation of the Eighth Amendment),17 and infringed his 

Fourteenth Amendment substantive and procedural due process rights.18 

McKee asserts 18 counts and names nine different prison officials: 

Superintendent Bobbi Jo Salamon, Deputy Superintendent Michael Rowe, BMU 

Unit Manager Michael Knapp, Hearing Examiner Christian Collins, and 

Corrections Officers Willis Holden, John Hayles, Dylan Steberger, Richard Burns, 

and Nathan Anna.19 Defendants now move for partial dismissal of McKee’s 

second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).20

II. STANDARD OF REVIEW 

In deciding a motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), courts should not inquire “whether a plaintiff will ultimately prevail but 

12 Id. ¶¶ 53, 62-63, 65, 66, 194. 

13 Id. ¶¶ 53, 56, 68, 132, 142, 153, 198. 

14 Id. ¶¶ 183-88, 200. 

15 Id. ¶¶ 97-126, 197. 

16 Id. ¶¶ 190-93. 

17 Id. ¶¶ 202-03. 

18 Id. ¶¶ 204-08. 

19 Id. ¶¶ 7-15; Doc. 38 at 2 (providing full names of Defendants). 

20 See generally Doc. 58. 

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4 

whether the claimant is entitled to offer evidence to support the claims.”21 The 

court must accept as true the factual allegations in the complaint and draw all 

reasonable inferences from them in the light most favorable to the plaintiff.22 In 

addition to the facts alleged on the face of the complaint, the court may also 

consider “exhibits attached to the complaint, matters of public record, as well as 

undisputedly authentic documents” attached to a defendant’s motion to dismiss if 

the plaintiff’s claims are based upon these documents.23

When the sufficiency of a complaint is challenged, the court must conduct a 

three-step inquiry.24 At step one, the court must “tak[e] note of the elements [the] 

plaintiff must plead to state a claim.”25 Second, the court should distinguish wellpleaded factual allegations—which must be taken as true—from mere legal 

conclusions, which “are not entitled to the assumption of truth” and may be 

disregarded.26 Finally, the court must review the presumed-truthful allegations 

“and then determine whether they plausibly give rise to an entitlement to relief.”27 

21 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 

1996). 

22 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). 

23 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. 

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). 

24 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and 

quotation marks omitted) (footnote omitted). 

25 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)). 

26 Id. (quoting Iqbal, 556 U.S. at 679). 

27 Id. (quoting Iqbal, 556 U.S. at 679). 

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Deciding plausibility is a “context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.”28

 Because McKee proceeds pro se, his pleadings are to be liberally construed 

and his second amended complaint, “however inartfully pleaded, must be held to 

less stringent standards than formal pleadings drafted by lawyers[.]”29 This is 

particularly true when the pro se litigant, like McKee, is incarcerated.30 

III. DISCUSSION 

Before addressing Defendants’ Rule 12 arguments, the sheer magnitude of 

McKee’s second amended complaint requires an overview of the claims he is 

raising. 

Under the First Amendment, McKee asserts eight counts of retaliation: 

 Against Holden, for refusing a meal and toilet paper and for filing a false 

misconduct (Count 5); 

 Against Rowe, for demoting McKee’s BMU phase (Count 6); 

 Against Knapp, for relocating McKee to a “recovery/hard” cell with 

difficult conditions of confinement (Count 7)31; 

 Against Steberger, Hayles, and Anna, for condoning and “stag[ing]” an 

assault on McKee by another inmate on June 2, 2022 (Count 8); 

 Against Anna, for issuing a false misconduct (Count 9); 

 Against Anna, for refusing to sign a witness form and not permitting 

access to the law library before a misconduct hearing (Count 10); 

 Against Salamon, for limiting McKee’s grievances (Count 11); 

 Against Collins, for finding McKee guilty of a misconduct and not 

providing adequate due process protections (Count 12). 

28 Iqbal, 556 U.S. at 681. 

29 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). 

30 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted). 

31 Defendants do not challenge the sufficiency of Count 7. 

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Under the Eighth Amendment, McKee asserts four counts of failure to 

protect and two counts of unconstitutional conditions of confinement: 

 Against Steberger, Hayles, and Anna, for failing to protect McKee from 

assault by another inmate on June 2, 2022 (Count 1); 

 Against Burns, for failing to protect McKee from assault by another 

inmate on August 1, 2022 (Count 2); 

 Against Salamon, for failing to protect McKee from assault by another 

inmate on August 1, 2022 (Count 3); 

 Against Knapp, for failing to protect McKee from assault by another 

inmate on August 1, 2022 (Count 4); 

 Against Holden, for unconstitutional conditions of confinement for 

denying a meal and denying toilet paper for a day (Count 13); 

 Against Collins, for unconstitutional conditions of confinement for 

ignoring a “serious medical emergency” and sanctioning McKee to 

disciplinary segregation (Count 14). 

Under the Fourteenth Amendment, McKee asserts two counts for 

violations of substantive due process and two counts for violations 

of procedural due process: 

 Against Collins, alleging a substantive due process violation for 

“forc[ing]” McKee to a hearing for misconduct 601647 and failing to 

provide procedural protections (Count 15); 

 Against Collins, alleging a substantive due process violation with regard 

to misconduct 601647 by sanctioning McKee to disciplinary confinement 

“for exhibiting a serious medical emergency” (Count 16); 

 Against Collins, alleging a procedural due process violation regarding 

misconduct 601647 for failing to provide certain procedural protections 

(Count 17); 

 Against Collins, alleging a procedural due process violation regarding 

misconduct 601665 for sanctioning McKee to disciplinary confinement 

“with no evidence to support the charge” and for not allowing McKee to 

present evidence for the misconduct (Count 18). 

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Many of McKee’s claims fail to plausibly state a claim for relief. The Court will 

review each of his 18 counts in turn, grouped according to the constitutional 

amendment allegedly infringed. 

A. First Amendment Retaliation 

 Although a prisoner’s constitutional rights are necessarily circumscribed, an 

inmate still retains First Amendment protections when they are “not inconsistent” 

with prisoner status or with the “legitimate penological objectives of the 

corrections system.”32 To state a First Amendment retaliation claim, a plaintiff 

must plausibly plead that (1) “he was engaged in constitutionally protected 

conduct,” (2) he suffered an “adverse action” by prison officials sufficient to deter 

a person of ordinary firmness from exercising his First Amendment rights, and 

(3) the plaintiff’s protected conduct was a “substantial or motivating factor” in the 

prison officials’ decision to take the adverse action.33

 There are a variety of ways to establish causation for a First Amendment 

retaliation claim. One method is to show “unusually suggestive” timing between 

the protected conduct and the adverse action.34 When a plaintiff relies solely on 

circumstantial evidence of temporal proximity, the time between the protected 

32 Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d 

775, 781 (3d Cir. 2010)). 

33 Id. (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)); Mitchell v. Horn, 318 F.3d 

523, 530 (3d Cir. 2003) (quoting Rauser, 241 F.3d at 333). 

34 See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). 

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conduct and the adverse action is often measured in days rather than weeks or 

months.35 However, there is no “bright line rule limiting the length of time that 

may pass between a plaintiff’s protected speech and an actionable retaliatory act by 

a defendant.”36 Another approach is to demonstrate “a pattern of antagonism 

coupled with timing.”37 Finally, causation can be inferred “from the evidence 

gleaned from the record as a whole.”38

Defendants do not challenge the first element of McKee’s retaliation claims, 

conceding that filing a PREA report is protected conduct under the First 

Amendment. They also do not question whether McKee has plausibly pled 

adverse actions. They instead point to deficiencies with McKee’s claims as to the 

third element—causation. 

The Court begins with Count 5, where McKee claims that Holden retaliated 

against him by refusing to give him toilet paper and a meal and by issuing him a 

false misconduct (# 601647) on or about May 19, 2022.39 Defendants assert that 

McKee has failed to plead causation as to his claim against Holden. The Court 

disagrees. Misconduct 601647 was ostensibly issued eight days after McKee 

35 See Conard v. Pa. State Police, 902 F.3d 178, 184 (3d Cir. 2018). 

36 Id. 37 DeFlaminis, 480 F.3d at 267. 

38 Watson v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016) (citing Farrell v. Planters Lifesavers Co., 

206 F.3d 271, 281 (3d Cir. 2000)). 

39 The Court notes that it is not clear whether McKee is claiming that Holden issued misconduct 

601647. Defendants interpret the second amended complaint as alleging as much. See Doc. 

60 at 8. 

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submitted the PREA report.40 Moreover, McKee alleges that, immediately after 

reporting the alleged sexual assault, Holden came to his cell and told him, “f[rom] 

now on, you get nothing, you will be tortured and possibly die in this prison for 

trying to lie on Knapp!”41 McKee also alleges that, in an attempt to report the 

assault to senior prison officials, he hung a handwritten sign outside his cell 

stating, “I was SEXUALLY ASSAULTED please get lieutenant,” and that Holden 

inspected the sign and then “ripped it off” the cell door.42 These allegations are 

sufficient to establish knowledge of the PREA complaint and causation for the 

purported adverse actions by Holden. 

In Count 6, McKee alleges that Rowe retaliated against him by demoting his 

BMU phase one day after McKee submitted the PREA report. Again, the temporal 

proximity of the adverse action is unusually suggestive. McKee further avers that, 

when he asked Rowe why his phase had been demoted, Rowe responded, “because 

you put a false PREA report on [Knapp].”43 Together, these allegations suffice to 

plead causation. 

In Count 8, McKee asserts that Steberger, Hayles, and Anna retaliated 

against him when they “condoned and staged” an assault by inmate Henry Barber 

40 It is also unclear exactly when misconduct 601647 was issued, and McKee did not include a 

copy of this misconduct with any iteration of his pleadings. He avers that he received a copy 

of the misconduct on May 19, 2022. See Doc. 49 ¶¶ 53, 56, 68. 

41 Doc. 49 ¶ 23 (alteration omitted). 

42 Id. ¶¶ 24-26. 

43 Id. ¶ 36. 

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on McKee on June 2, 2022. McKee claims that, on May 25, 2022, Barber 

threatened to physically assault him, so he reported Barber’s threat “via request 

slip” to Salamon, Steberger, and Hayles on either May 25, 26, or 27.44 McKee 

avers that on June 1, 2022, Barber threatened him again, this time promising to 

throw feces on him the next day during recreation, so McKee immediately reported 

the threat to Hayles and asked not to be placed in a cage next to Barber.45 McKee 

claims that Hayles responded by saying, “I’m not preventing nothing, Barber will 

be placed next to you, these are the type of things that happen when you submit 

PREA reports against staff.”46 As to Steberger, McKee provides no allegations 

that could indicate that Steberger had knowledge of the PREA report or that he 

placed McKee next to Barber to retaliate for McKee’s protected conduct.47 

Additionally, there are no allegations that Anna knew of Barber’s threats against 

McKee such that Anna could play a deliberate role in the purported “condoning 

and staging” of an assault. Accordingly, Count 8 must be dismissed as to 

Steberger and Anna. 

In Count 9, McKee asserts that Anna retaliated against him by issuing a false 

misconduct (# 601665) for refusing to obey an order. McKee claims that, after 

44 Id. ¶¶ 101-02. 

45 Id. ¶¶ 106, 108. 

46 Id. ¶ 109. 

47 A plaintiff asserting retaliation “will have to show . . . that the decision maker had knowledge 

of the protected activity[.]” Moore v. City of Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006) 

(citation omitted). 

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being found guilty of the misconduct, Anna approached his cell and said, “[H]a ha 

we got your ass, you won’t be making false P.R.E.A. reports now or this is what 

will happen.”48 Again, alleged statements like this suffice to establish causation at 

the pleading stage. 

In Count 10, McKee claims that Anna retaliated against him by refusing to 

sign a witness form and refusing to allow McKee to attend law library to review 

the misconduct policy before the hearing for misconduct 601647.49 This count will 

be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim, 

as the alleged adverse actions—whether considered alone or collectively—are de 

minimis.

50 That is, they are insufficient to deter a person of ordinary firmness from 

exercising his First Amendment rights.51

In Count 11, McKee alleges that Salamon retaliated against him by refusing 

to allow him to file additional prison grievances. He claims that on July 1, 2022, 

48 Doc. 49 ¶ 90. 

49 McKee claims that he was without his own copy of the prison misconduct policy because of 

cell “restrictions.” Id. ¶ 87. 

50 See Watson, 834 F.3d at 423 (explaining that adverse action “need not be great,” but it does 

need to be “more than de minimis.” (quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)). 

51 See, e.g., Turner v. Johnson, No. 17-cv-541, 2020 WL 6323698, at *6 (D.N.J. Oct. 28, 2020) 

(dismissing claim that plaintiff was prevented from visiting law library one afternoon in 

retaliation for filing grievances and lawsuit); Meeks v. Schofield, 625 F. App’x 697, 701-02 

(6th Cir. 2015) (denial of access to law library on one occasion was de minimis conduct that 

did not constitute an adverse action); see also Miller v. Sanchez, No. 20-cv-06-GW, 2020 WL 

528010, at *6 (C.D. Cal. Feb. 3, 2020) (finding that assignment to a job that conflicted with 

law library access for a single day is de minimis and does not rise to the level of an adverse 

action that would deter a prisoner of “ordinary firmness” from further First Amendment 

activities); Springfield v. Khalit, No. 2:17-cv-2675, 2019 WL 1745872, at *2 (E.D. Cal. Apr. 

18, 2019) (finding “the denial of law library access on one occasion, without more, does not 

constitute an adverse action”). 

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Salamon rhetorically asked him, “Did you learn your lesson yet about filing false 

PREA reports?” and noted that she had cut off his ability to file grievances.52 

These allegations are sufficient to plead causation. 

Finally, in Count 12, McKee avers that Collins—the hearing examiner—

retaliated against him by finding him guilty of misconduct 601647 and “tacitly 

participat[ing]” in the retaliatory actions of Anna. This claim fails because McKee 

has not plausibly alleged that Collins had knowledge of the PREA report such that 

he could retaliate against McKee for filing it (nor does he allege that Collins would 

have any reason to retaliate), and therefore causation is lacking.53 Accordingly, 

this claim will be dismissed as well. 

B. Eighth Amendment Failure to Protect 

To state an Eighth Amendment claim against a prison official for deliberate 

indifference to inmate health or safety—sometimes referred to as a failure-toprotect claim—the inmate must plausibly plead that “(1) he was incarcerated under 

conditions posing a substantial risk of serious harm, (2) the official was 

deliberately indifferent to that substantial risk to [the prisoner’s] health and safety, 

and (3) the official’s deliberate indifference caused [the prisoner] harm.”54 In this 

context, deliberate indifference is a subjective standard; that is, “the prison official52 Id. ¶¶ 185-87. 

53 See Moore, 461 F.3d at 351. 

54 Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack 

v. Yost, 968 F.3d 311 (3d Cir. 2020). 

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defendant must actually have known or been aware of the excessive risk to inmate 

safety.”55 Actual knowledge or awareness of a substantial risk to an inmate’s 

safety can be proven “in the usual ways, including inference from circumstantial 

evidence.”56

McKee’s failure-to-protect claims involve two incidents where Barber either 

threw urine on him or spit on him (or both). McKee claims that, on June 2, 2022, 

he was placed in an outdoor recreation cage next to Barber’s cage and Barber made 

good on previous threats by throwing urine on McKee and spitting on him.57 

McKee additionally alleges that on August 1, 2022, while in the BMU group 

activities room (and following additional threats of violence from Barber), Barber 

spit on him.58 

Defendants challenge the objective prong of McKee’s claims, contending 

that being attacked with bodily fluids (like urine and saliva) does not pose a 

substantial risk of serious harm. They also dispute whether McKee has satisfied 

the subjective prong, arguing that Defendants took appropriate measures to keep 

McKee safe from physical violence at the hands of Barber. The Court does not 

agree that inmate-on-inmate assaults with bodily fluids are categorically exempt 

from Eighth Amendment failure-to-protect claims, and additionally notes that 

55 Id. (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001)). 

56 Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)). 

57 See Doc. 49 ¶¶ 119. 

58 See id. ¶¶ 171, 176. 

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Barber also allegedly threatened other types of physical violence. The Court will, 

however, analyze whether McKee has plausibly alleged deliberate indifference by 

the named Defendants. 

As to McKee’s first failure-to-protect claim in Count 1, that claim survives 

as to Steberger and Hayles. McKee’s allegations are sufficient to establish a 

substantial risk to his safety following Barber’s threats of physical violence, that 

Steberger and Hayles had knowledge of those threats, and that they were 

deliberately indifferent to the risk of assault.59 Count 1 will be dismissed against 

Anna, as there are no allegations that Anna was on notice regarding Barber’s 

threats against McKee. 

Counts 3 and 4 are sufficient to state failure-to-protect claims against 

Salamon and Knapp. McKee avers (and submits evidence) that he repeatedly 

contacted Salamon about Barber’s threats and no action was taken. For example, 

McKee alleges that he submitted a request slip to Salamon shortly after Barber’s 

May 25 threat of violence60 and sent a letter to Salamon on June 23, 2022,61

reiterating Barber’s threats and McKee’s fear for his own safety. McKee 

additionally alleges that on June 21, after Barber made his third threat of physical 

59 See Doc. 49 ¶¶ 101, 102, 106, 108, 109, 111, 113. 

60 See id. ¶ 102. 

61 See id. ¶ 169; Doc. 6-6 at 2. 

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violence, McKee immediately informed Knapp about the threat and Knapp 

responded that he “does not care.”62 

Count 2, however, must be dismissed. McKee claims that Burns failed to 

protect him from the August 1 assault, but there are no factual allegations that 

Burns was aware of Barber’s previous assaultive conduct or threats. Moreover, 

McKee repeatedly describes Burns’ actions as negligent for failing to properly 

monitor the inmates in the activities room,63 but negligent behavior is not the same 

as deliberate indifference. 

C. Eighth Amendment Conditions of Confinement 

“[T]he Constitution does not mandate comfortable prisons, and prisons . . . 

which house persons convicted of serious crimes[] cannot be free of discomfort.”64 

Nevertheless, the state cannot subject an inmate to cruel and unusual punishment 

or “inhumane treatment,” such as deprivation of “identifiable human need[s]” like 

“food, clothing, shelter, medical care, and reasonable safety[.]”65 To prevail on an 

Eighth Amendment conditions-of-confinement claim, a plaintiff must show both 

objective and subjective elements.66 Objectively, the prisoner must demonstrate 

that “the prison official deprived the prisoner of the minimal civilized measure of 

62 Doc. 49 ¶¶ 165-68. 

63 See id. ¶¶ 173, 175, 191. 

64 Thomas v. Tice, 948 F.3d 133, 139 (3d Cir. 2020) (second alteration in original) (quoting 

Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). 

65 See Helling v. McKinney, 509 U.S. 25, 32 (1993) (citation omitted).

66 See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 226 (3d Cir. 2015) 

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life’s necessities,” often referred to as a “sufficiently serious” deprivation.67 “The 

benchmark for alleging such deprivation is not that the inmate was merely 

uncomfortable; he or she must show they are ‘incarcerated under conditions posing 

a substantial risk of serious harm.’”68 Subjectively, the prisoner must show that 

“the prison official acted with deliberate indifference” to the prisoner’s “health or 

safety.”69 Deliberate indifference means that the defendant “acted or failed to act 

despite having knowledge that her actions or inaction, as the case may be, would 

subject the inmate to a substantial risk of serious harm.”70

Neither of McKee’s conditions-of-confinement claims satisfy the objective 

requirement of stating a deprivation of life’s necessities. In Count 13, McKee 

claims that Holden refused a single meal and denied him toilet paper for a day. 

These allegations plainly do not rise to the level of an Eighth Amendment 

violation.71 

67 Id. (citing Farmer v. Brennan, 511 U.S. 825, 843 (1994); Wilson, 501 U.S. at 297). 

68 Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2023) (quoting Farmer, 511 U.S. at 834). 

69 Chavarriaga, 806 F.3d at 226 (citing Farmer, 511 U.S. at 834). 

70 Id. at 227 (citing Farmer, 511 U.S. at 842). 

71 See, e.g., Zanders v. Ferko, 439 F. App’x 158, 160 (3d Cir. 2011) (nonprecedential) 

(deprivation of 3 meals over 2 days not a constitutional violation, but denial of 16 meals over 

23 days may implicate Eighth Amendment); Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 

2002) (nutritionally inadequate restricted diet for 14 consecutive days may violate 

constitution); Reed v. McBride, 178 F.3d 849, 853-54 (7th Cir. 1999) (denial of food “on many 

occasions for three to five days at a time” sufficient to state Eighth Amendment claim); Talib 

v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (denial of one out of every nine meals for fivemonth span likely not a constitutional violation); Robles v. Coughlin, 725 F.2d 12, 13, 15-16 

(2d Cir. 1983) (denial of all meals for 12 days, 3 of which were consecutive, over 53-day span 

implicated Eighth Amendment); Smith v. Wilson, No. 3:13-cv-771, 2014 WL 4626664, at *1, 

5-6 (M.D. Pa. June 26, 2014) (denial of 15 meals over 27 days sufficient to state an Eighth 

Amendment claim), report and recommendation rejected in part on different grounds, No. 

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In Count 14, McKee claims that Collins, by sanctioning him to 30 days’ 

disciplinary segregation for “exhibiting a serious medical emergency,” violated the 

Eighth Amendment.72 Not so. The United States Court of Appeals for the Third 

Circuit has repeatedly held that placement in administrative or disciplinary 

segregation for periods much longer than those alleged by McKee, without more, 

does not implicate an Eighth Amendment violation.73 Moreover, Collins 

sanctioned McKee to disciplinary segregation following a finding of guilt on 

misconduct 601665 for refusing to obey an order, not for having a medical 

emergency.74 Counts 13 and 14 will therefore be dismissed. 

3:13-cv-771, 2014 WL 4630713 (M.D. Pa. Sept. 15, 2014); see also Freeman v. Miller, 615 F. 

App’x 72, 77-78 (3d Cir. 2015) (nonprecedential) (seven days without mattress, shower, soap, 

recreation, or toilet paper due to suicide risk not unconstitutional); Adderly v. Ferrier, 419 F. 

App’x 135, 139 (3d Cir. 2011) (nonprecedential) (seven days without clothing, toiletries, 

mattress, and shower was harsh but not a deprivation of life’s necessities); Stephens v. Cottey, 

145 F. App’x 179, 181 (7th Cir. 2005) (nonprecedential) (three days without a mattress and 

having to sleep on a metal bedframe did not violate Eighth Amendment); Williams v. Delo, 49 

F.3d 442, 444 (8th Cir. 1995) (four days without clothing, mattress, or bedding not Eighth 

Amendment violation). 

72 Doc. 49 ¶ 203. 

73 See Griffin v. Vaughn, 112 F.3d 703, 705, 709 (3d Cir. 1997) (finding no Eighth Amendment 

violation for inmate’s placement in administrative segregation for 15 months during pendency 

of disciplinary proceedings); Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (“Segregated 

detention is not cruel and unusual punishment per se, as long as the conditions of confinement 

are not foul, inhuman[,] or totally without penological justification.”), superseded by statute 

on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000); Johnson v. 

Burris, 339 F. App’x 129, 131 (3d Cir. 2009) (nonprecedential) (holding that administrative 

segregation and loss of minor privileges did not state a conditions-of-confinement claim); 

Wilson v. Hogsten, 269 F. App’x 193, 195 (3d Cir. 2008) (nonprecedential) (finding that 12-

month placement in the SHU—without alleging facts showing a sufficiently serious 

deprivation of “life’s necessities”—was insufficient to state an Eighth Amendment claim). 

74 See Doc. 6-5 at 2. 

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D. Fourteenth Amendment Substantive Due Process 

The Due Process Clause of the Fourteenth Amendment to the United States 

Constitution contains both procedural and substantive protections.75 The 

substantive component of the Due Process Clause safeguards against certain 

deprivations of individuals’ “life, liberty, and property” by state actors “regardless 

of the fairness of the procedures used to implement them.”76 In a substantive due 

process challenge to governmental conduct, “the threshold question is whether the 

behavior of the governmental officer is so egregious, so outrageous, that it may 

fairly be said to shock the contemporary conscience.”77

A substantive due process claim, however, cannot be maintained when the 

alleged constitutional violation is “covered by a specific constitutional provision, 

such as the Fourth or Eighth Amendment.”78 In such situations, the claim must be 

analyzed under the rubric of the more specific constitutional provision rather than 

substantive due process,79 an “unchartered area” with “scarce and open-ended” 

guideposts.80 The “more-specific-provision rule” will often apply when the 

challenged conduct underlying the substantive due process claim is the same 

75 See generally U.S. Const. amend. XIV, § 1. 

76 L.R. v. Sch. Dist. Of Phila., 836 F.3d 235, 241 (3d Cir. 2016) (quoting Collins v. City of Harker 

Heights, 503 U.S. 115, 125 (1992)). 

77 Benn v. Univ. Health Sys., Inc., 371 F.3d 165, 174 (3d Cir. 2004) (quoting County of 

Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). 

78 Porter v. Pa. Dep’t of Corr., 974 F.3d 431, 447 (3d Cir. 2020) (quoting United States v. Lanier, 

520 U.S. 259, 272 n.7 (1997)). 

79 Id.

80 Collins, 503 U.S. at 125. 

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conduct that implicates a more explicit constitutional provision.81

McKee claims that Collins violated his substantive due process rights by (1) 

forcing McKee to a hearing for misconduct 601647 without a misconduct report, 

without allowing McKee to read a waiver before signing it, and without allowing 

McKee to properly prepare for the hearing (Count 15); and (2) sanctioning McKee 

to disciplinary confinement for “exhibiting a serious medical emergency” in 

relation to misconduct 601665 (Count 16).82 Neither assertion plausibly states a 

substantive due process claim. 

McKee’s allegations in Count 15 fail for two reasons. First, the conduct he 

describes—even if true—does not come close to implicating “egregious” or 

“conscience-shocking” behavior by a government official. Second, McKee is 

simply repackaging his procedural due process claim from Count 17 into a 

substantive due process claim, a tactic that is barred by the more-specific-provision 

rule. 

His allegations in Count 16 fail for multiple reasons as well. Again, the 

conduct McKee describes—sanctioning a prisoner accused of a misconduct to 30 

days’ disciplinary segregation—simply does not shock the conscience. 

Additionally, McKee’s allegations that he was sanctioned for having a medical 

emergency are plainly contradicted by the misconduct documents he attached to an 

81 See Porter, 974 F.3d at 448. 

82 Doc. 49 ¶¶ 204-05. 

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earlier iteration of his pleadings. As shown in those documents, and as described 

above, Collins sanctioned McKee to disciplinary segregation following a finding of 

guilt on misconduct 601665 for refusing to obey an order, not for having a medical 

emergency.83 Consequently, both of McKee’s substantive due process claims are 

legally deficient and must be dismissed. 

E. Fourteenth Amendment Procedural Due Process 

To plausibly state a Section 1983 claim for infringement of procedural due 

process rights, “a plaintiff must allege that (1) he was deprived of an individual 

interest that is encompassed within the Fourteenth Amendment’s protection of 

‘life, liberty, or property,’ and (2) the procedures available to him did not provide 

‘due process of law.’”84 If a plaintiff cannot identify a protected interest that is “at 

stake,” the analysis is at an end.85

In Counts 17 and 18, McKee claims that the procedures he was afforded in 

his misconduct hearings did not provide due process of law, but he ignores the first 

step in the procedural due process analysis. Nowhere in his second amended 

83 See Doc. 6-5 at 2. While McKee disputes the findings and conclusions of the hearing examiner, 

the misconduct documents speak for themselves and were submitted as part of McKee’s 

pleadings. 

84 Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 

227 F.3d 107, 116 (3d Cir. 2000)). 

85 See Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 

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complaint has he identified a protected liberty interest that was infringed. McKee 

points only to being sanctioned to disciplinary segregation for 90 days.86

The Supreme Court of the United States, however, has held that disciplinary 

segregation alone—under conditions that mirror those “imposed upon inmates in 

administrative segregation and protective custody”—generally does not reflect an 

“atypical and significant hardship on the inmate in relation to the ordinary 

incidents of prison life” such that it implicates a protected liberty interest under the 

Fourteenth Amendment.87 And the Third Circuit has repeatedly held that 

disciplinary segregation for much longer than that which McKee experienced does 

not rise to the level of an atypical and significant hardship.88 McKee has therefore 

failed to identify a protected liberty interest, so his Fourteenth Amendment 

procedural due process claims must be dismissed. 

F. Official Capacity Claims 

McKee sued all Defendants in their individual and official capacities.89 

However, any official capacity claim seeking monetary damages from state 

86 In his opposition brief, McKee claims that he has been in some form of restricted housing for 

“5 years,” which he argues is an atypical and significant hardship. See Doc. 62 at 37. But his 

procedural due process claims in the instant case have nothing to do with his years of placement 

in restricted housing—they concern hearings and adjudications regarding two misconducts, for 

which McKee was subjected to disciplinary segregation for 90 days. 

87 Sandin v. Conner, 515 U.S. 472, 484, 486 (1995). 

88 See Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (seven months); Torres v. Fauver, 

292 F.3d 141, 151 (3d Cir. 2002) (135 days); Griffin v. Vaughn, 112 F.3d 703, 705-07 (3d Cir. 

1997) (fifteen months); Dunbar v. Barone, 487 F. App’x 721, 725 (540 days). 

89 See Doc. 49 ¶ 16. 

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officials is barred by Eleventh Amendment sovereign immunity. Furthermore, as 

to McKee’s requests for prospective injunctive relief, those claims are moot. 

The Eleventh Amendment to the United States Constitution prevents federal 

courts from entertaining lawsuits—by United States citizens or citizens of foreign 

states—brought against a state.90 This immunity from private suit extends to state 

agencies as well as state officials acting in their official capacity, because such 

lawsuits are essentially civil actions “against the State itself.”91 States may waive 

this immunity if they choose, but Pennsylvania has explicitly not waived its 

immunity with respect to claims brought under Section 1983.92 There are two 

exceptions to the Eleventh Amendment’s bar to private suits against nonconsenting 

states: (1) “Congress may abrogate a state’s immunity” and (2) “parties may sue 

state officers for prospective injunctive and declaratory relief.”93

McKee seeks compensatory and punitive damages.94 To the extent those 

damages are sought against Defendants in their official capacities, such claims are 

barred by Eleventh Amendment sovereign immunity. McKee also seeks various 

forms of injunctive relief against SCI Rockview officials, such as ending the 

90 U.S. CONST. amend. XI; Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); 

Hans v. Louisiana, 134 U.S. 1, 10 (1890). 

91 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). 

92 See 42 PA. CONS. STAT. § 8521(b); Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d Cir. 

2020); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 & n.5 (3d Cir. 2010) (citing 42 

PA. CONS. STAT. § 8521(b)). 

93 Wheeling & Lake Erie Ry. Co. v. Pub. Util. Comm’n of Pa., 141 F.3d 88, 91 (3d Cir. 1998) 

(emphasis added) (citing, inter alia, Ex parte Young, 209 U.S. 123 (1908)). 

94 Doc. 49 ¶¶ 217, 218. 

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alleged retaliation and transferring him out of SCI Rockview.95 Those claims for 

relief must be dismissed as moot because McKee has already been transferred to a 

different state correctional institution.96 Finally, McKee’s single claim for 

declaratory relief that his constitutional rights were violated is retrospective, rather 

than prospective, in nature.97 Thus, all official capacity claims must be dismissed 

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii). 

IV. LEAVE TO AMEND

 Generally, “in forma pauperis plaintiffs who file complaints subject to 

dismissal under Rule 12(b)(6) should receive leave to amend unless amendment 

would be inequitable or futile.”98 McKee has already amended his pleadings twice, 

and thus has had three opportunities to “tell his story.”99 Further leave to amend 

will be denied as futile because McKee has failed to cure numerous deficiencies 

even after “amendments previously allowed.”100

 To summarize, the following Section 1983 claims will be dismissed: Count 

1 as to Anna, Count 2, Count 8 as to Steberger and Anna, Count 10, and Counts 12 

95 See id. ¶¶ 210-16. 

96 See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (“An inmate’s transfer from the 

facility complained of generally moots the equitable and declaratory claims.”); see also AbdulAkbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993). 

97 See Doc. 49 ¶ 209. 

98 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). 

99 Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019). 

100 See Foman v. Davis, 371 U.S. 178, 182 (1962); Jones, 944 F.3d at 483 (concluding that, where 

inmate plaintiff “has already had two chances to tell his story,” providing “further leave to 

amend would be futile”). 

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through 18. This case will proceed on the following claims: Count 1 as to 

Steberger and Hayles, Counts 3 through 7, Count 8 as to Hayles, Count 9, and 

Count 11. 

V. CONCLUSION 

 Based on the foregoing, the Court will grant in part and deny in part 

Defendants’ motion for partial dismissal pursuant to Federal Rule of Civil 

Procedure 12(b)(6). An appropriate Order follows. 

 BY THE COURT: 

s/ Matthew W. Brann 

 Matthew W. Brann 

 Chief United States District Judge 

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