John PASSMORE, Appellant v. Joseph IANELLO, Corporal at Erie County Prison; James S. Veshecco, Director of Corrections/Warden at Erie County Prison; Michael Holman, Deputy Warden at Erie County Prison, Individually and in their Official Capacities.
No. 13-1599
United States Court of Appeals, Third Circuit
June 14, 2013
529 Fed. Appx. 144
Similarly, under Pennsylvania law a communication is not intentional interference of an existing contractual claim if there is a “privilege or justification on the part of the defendant” who shared the information. Foster v. UPMC S. Side Hosp., 2 A.3d 655, 665-66 (Pa.Super.Ct.2010); Restatement (Second) of Torts § 766 (1979). The plaintiff must рrove “that the defendant‘s actions were improper under the circumstances presented.” Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 98 (Pa.Super.Ct.2009) (emphasis omitted). “One who intentionally causes a third person not to perform a contract ... does not interfere improperly with the other‘s contractual relation ... by giving the third person (a) truthful information ... or (b) honest advice within the scope of a request for the advice.” Restatement (Second) of Torts § 772; Walnut St., 982 A.2d at 99. We agree with the District Court that Manning has not raised a dispute that Flannery and Holland acted improperly when they communicated with Gundlach about the VP search. Manning again relies on his claim that the “don‘t tell Tom” statemеnt was not made, and therefore the Defendants provided untruthful information to Gundlach. As with the defamation claim, even assuming the communication was untrue, there is no evidence that would allow a reasonable jury to find that Flannery and Holland acted in a way that was improper.
Finally, for a claim of tortious interference with prospective contractual relationship “the Pennsylvania Supreme Court requires that there be an objectively reasonable probability that a contract will come into existence, ... something more than a mere hope.” Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 184 (3d Cir.1997) (quoting Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979)). Manning cannot demonstrate a reasonable probability of future employment at Ardex or in the positions he has applied since his termination from Ardex.
The reasons above essentially parrot the District Court‘s thoughtful and thorough opinion. Thus we affirm.2
John Passmore, Marienville, PA, pro se.
Patrick M. Carey, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, Erie, PA, Defendant-Appellee.
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges.
PER CURIAM.
John Passmore, a Pennsylvania state prisoner proceeding pro se, appeals an ordеr of the United States District Court for the Western District of Pennsylvania granting summary judgment for the defendants in his civil rights action. For the
I.
Because we primarily write for the parties, we will only recite the facts necessary for our discussion. On April 2, 2012, Passmore filed a civil rights complaint against Warden James S. Veshecco, Deputy Warden Michael Holman and Corporal Joseph Ianello. According to Passmore, on February 23, 2011, while he was housed in the restricted housing unit (“RHU“)1 at the Erie County Prison (“ECP“), Corrections Officer Robert Tome ordered Passmore to present himself to take a mandatory shower, as required by ECP Policy 200-20. The policy states: “Inmates in speсial management units have the opportunity to shave and shower at least three times per week. (Inmates must shower on Monday, Wednesday, and Friday.)” (Dkt. No. 16-3, p. 4.) Passmore refused the officer‘s order, explaining that he was sick and that he had taken a shower the previous day.
Tome stated in his incident report that he оrdered Passmore twice to step up to be cuffed for the shower, but Passmore refused. (Dkt. 16-4, pp. 1.) Tome notified Defendant Ianello of the situation, at which point he and Corporal William Niebling went to Passmore‘s cell. (Id.) According to Niebling, he ordered Passmore four times to come to the cell gate to be hаndcuffed, but again Passmore refused. (Dkt. 16-4, pp. 2.) Defendant Ianello then gave Passmore three separate orders to step up to the gate for a shower, but again, Passmore refused. (Id.) Ianello stated that he informed Passmore that if he did not comply with his orders, he would be sprayed with pepper spray. (Dkt. 16-4, pp. 4.) Passmore stated that he was refusing to follow the orders, at which point Ianello sprayed Passmore with pepper spray. (Id.)
Immediately thereafter, Passmore experienced severe burning on his body parts that were exposed to the pepper spray, and he claims that it felt like he was suffocаting. He started banging on the cell door, but no one came to his aide. He tried to use the sink in his cell, but the water had been shut off, allegedly pursuant to a prison policy requiring that water in the RHU be turned off whenever an extraction team is called. According to Passmore, the extraction team arrived at his cell “20 minutes or more” after he had been sprayed, at which point he was removed from his cell and placed in a shower and a nurse put solution in his eyes.
As a result of the incident, Passmore claims that he sustained injuries including blurry vision, burning and red skin, breathing difficulty, and severe pain. He alleges that he suffered from painful urination and that he could not see well for several days after the incident. He claims that he put in three sick calls for his injuries. In the complaint, Passmore acknowledges that he was treated on two subsequent occasions by the prison nurse, who flushed out his eyes with saline and told him to take showers to wash off any remaining pepper spray.
Passmore alleges violations of the Eighth, Fourth, and Fourteenth Amendments, and he seeks declaratory and injunctive relief, as well as monetary damages. Defendants filed a motion to dismiss, which the District Court treated as a motion for summary judgment.2
II.
We have jurisdiction under
III.
Passmore claims that the Defendants’ use of tear gas constituted excessive force in violation of the Eighth Amendment.3 When considering an excessive use of force claim, a district court must consider whether force was applied in a “good-faith effort to maintain or restоre discipline, or maliciously and sadistically” to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Courts look to several factors when making this determination, including (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of the injury inflicted; (4) the extent of the threat tо the safety of staff and inmates, as reasonably perceived by prison officials; and (5) any efforts made to temper the severity of a forceful response. Id. See also Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.2000).
As a result, use of tear gas is not “a per se violation of the Eighth Amendment....” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.1984). Rather, “[t]he use of mace, tear gas or other chemical agent of the like nature when reasonably necessary to prevent riots or escape or to subdue recalcitrant prisoners does not constitute cruel and inhuman punishment.” Id. See also Michenfelder v. Sumner, 860 F.2d 328, 336 (9th Cir.1988) (policy allowing use of taser guns on inmate who refused to submit to a strip search does not constitute cruel and unusual punishment);
Here, Passmore admits in his complaint that he refused to follow Corrections Officer Tome‘s and Defendant Ianello‘s directives to take a shower pursuant to prison policy. In fact, the record shows that Passmore refused to present himself for a mandatory shower at least nine times before Defendant Ianello used pepper spray. Moreover, before Defendant Ianello resorted to using the pepper spray, he warned Passmore, giving him one more chance to comply.4 In light of these undisputed facts, the use of pepper spray was reasоnable in these circumstances and the District Court properly granted the Defendants’ motion.5 6
IV.
Passmore claims that the Defendants violated his Eighth Amendment rights when they left him in his cell for at least twenty minutes without running water or medical attention after spraying him with pepper spray. To prevail, he must demonstrate deliberate indiffеrence to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). “To act with deliberate indifference to serious medical needs is to recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir.2009). For instance, a plaintiff may make this showing by establishing that the defendants “intentionally den[ied] or delay[ed] medical care.” Id. (quotation marks omitted). However, “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second
V.
We also agree with the District Court‘s dismissal of Passmore‘s Fourth Amendment claim. Passmore argues that taking a shоwer is a personal, private choice, which is infringed by the mandatory shower policy. While courts have acknowledged a prisoner‘s limited right to bodily privacy under the Fourth Amendment, see, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir.1993), no such right is indicated here and Passmore does not have a constitutional right to choose when to shower.8 Furthermore, courts will generally not interfere with prison administrative matters and will afford significant deference to judgments of prison officials regarding prison regulation and administration. See, e.g., Jones v. N. Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 126, 97 S.Ct. 2532, 53 L.Ed.2d 629, (1977) (“Because the realities of running a penal institution are complex and difficult, we have also recognized the wide-ranging deference to be accorded the decisions of prison administrators.“). Thus, Passmore‘s Fourth Amendment claim also fails.
Finally, the District Court properly dismissed Passmore‘s due process claim. “Conduct can violate substantive due process if it shocks the conscience, which encompasses only the most egregious officiаl conduct.” Newman v. Beard, 617 F.3d 775, 782 (3d Cir.2010). Here, Passmore‘s allegations are based upon the same allegations as his Eighth Amendment claims of excessive force and deliberate indifference. Because spraying Passmore with pepper spray and the ensuing delay were reasonable we cannot conclude that the Defendants’ conduct “shock[ed] the conscience.” Id.
VI.
For the foregoing reasons, no substantial question is presented and we will affirm the judgment of the District Court. See