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On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-08-cv-03010)
District Judge: Honorable Cynthia M. Rufe
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Argued March 7, 2012
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Before: McKEE, Chief Judge, SCIRICA,
and AMBRO, Circuit Judges
(Opinion filed: September 24, 2012)
John P. Kahn, Esq. (Argued)
Archer & Greiner
One Centennial Square
P.O. Box 3000
Haddonfield, NJ 08033
Carlton L. Johnson, Esq.
Richard G. Tuttle, Esq.
Archer & Greiner
1650 Market Street
One Liberty Place, 32nd Floor
Philadelphia, PA 19103-7393
Counsel for Appellants
Jonathan S. Abady, Esq.
Adam R. Pulver, Esq.
Factual Background1
A.
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him if they were placed in the recreation yard with him at the
same time. App. 92 87. Despite these warnings, FDC
officials took no preventive action.
2.
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Procedural Background
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Discussion
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misconduct
alleged.
The
plausibility standard is not akin to
a probability requirement, but it
asks for more than a sheer
possibility that a defendant has
acted unlawfully.
Where a
complaint pleads facts that are
merely
consistent
with
a
defendants liability, it stops short
of the line between possibility and
plausibility of entitlement to
relief.
556 U.S. at 678 (citations and quotation marks
omitted).
To determine whether a complaint meets the pleading
standard, our analysis unfolds in three steps. First, we outline
the elements a plaintiff must plead to a state a claim for relief.
See id. at 675; Argueta, 643 F.3d at 73. Next, we peel away
those allegations that are no more than conclusions and thus
not entitled to the assumption of truth. See Iqbal, 556 U.S. at
679; Argueta, 643 F.3d at 73. Finally, we look for well-pled
factual allegations, assume their veracity, and then determine
whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 679; Argueta, 643 F.3d at 73. This last step
is a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. Iqbal,
556 U.S. at 679.
In Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, the Supreme Court recognized an
implied private right of action for damages against federal
officials who have violated a persons Fourth Amendment
rights. 403 U.S. 388 (1971). The Court has extended the
Bivens implied right of action to suits for damages brought
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The
Officials
Alleged
Deliberate
Indifference to the Risk Posed by
Bistrians Continued Detention in the SHU
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The
Officials
Alleged
Deliberate
Indifference to the Risk Posed by
Bistrians Placement in a Locked
Recreation Pen with Northington, et al.
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Prison Management
meetings.
Defendants
during
their
weekly
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The
Officials
Alleged
Deliberate
Indifference to the Risk Posed by
Bistrians Placement in a Locked
Recreation Pen with Taylor
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4.
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F.3d 703 (3d Cir. 1997), and Fuentes v. Wagner, 206 F.3d
335 (3d Cir. 2000). See Appellants Br. 48-49. In Griffin we
held that the conditions experienced by a sentenced inmate
while in the SHU did not impose on him an atypical and
significant hardship such that he was deprived of a statecreated liberty interest in violation of the Fourteenth
Amendments Due Process Clause. 112 F.3d at 706 (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)). But as Griffin
itself makes clear and as we have explained at least twice
before, Sandins atypical and significant hardship test
applies only to sentenced inmates, while the Bell test applies
to pretrial detainees. See Stevenson, 495 F.3d at 69 n.4
(Sandin does not apply [to pretrial detainees]. Sandin
concerned punishment of a sentenced prisoner, and therefore
required a completely different analysis.) (quoting Fuentes,
206 F.3d at 342 n.9).
Fuentes also offers Appellants no help. They point to
our statement in that case that it is impractical to draw a line
between convicted prisoners and pretrial detainees for the
purpose of maintaining jail security. Appellants Br. 49
(quoting Fuentes, 206 F.3d at 347). This selective quotation
is, at best, misguided and closer to misleading. As we
explained in Fuentes, claims based on excessive force and
claims based on conditions of confinement are different in
kind. 206 F.3d at 347 (quoting Valencia v. Wiggins, 981
F.2d 1440, 1446 (5th Cir. 1993)). Because of this difference,
we did not apply the Bell due process standard concerning
confinement to a pretrial detainees excessive force claim.
Instead, we held that the more demanding Eighth
Amendment cruel and unusual punishments standards found
in Whitley v. Albers, 475 U.S. 312 (1986) and Hudson v.
McMillian, 503 U.S. 1 (1992) apply to a pretrial detainees
excessive force claim arising in the context of a prison
disturbance. Id. (emphasis in original). Not surpisingly, in
that context we could draw no logical or practical distinction
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Conclusion
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