NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 14-3989
___________
DONALD D. PARKELL,
Appellant
v.
JACK A. MARKELL, Governor of Delaware, in his official and individual capacities;
ATTORNEY GENERAL BEAU BIDEN, For Delaware, in his official and individual
capacities; ROBERT COUPE, Commissioner of the Delaware Department of
Corrections, in his official and individual capacities; PHILLIP MORGAN, Warden of the
Howard R. Young Correctional Institution, in his official and individual capacities;
MARY MATTHEWS, Lieutenant at Howard R. Young Correctional Institution, in her
official and individual capacities
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1-14-cv-00601)
District Judge: Honorable Sue L. Robinson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 6, 2015
Before: GREENAWAY, JR., SCIRICA, and RENDELL, Circuit Judges
(Opinion filed: July 27, 2015)
___________
OPINION*
___________

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

PER CURIAM
Appellant Donald Parkell, pro se and in forma pauperis, appeals from an order of
the District Court dismissing his complaint pursuant to 28 U.S.C. 1915(e)(2)(B)(i). For
the following reasons, we will affirm in part and vacate in part the District Courts
judgment and remand this case for further proceedings consistent with this opinion.
Parkell is a Delaware state prisoner. In May 2014, he sued AppelleesDelaware
Governor Jack Markell, former Attorney General Beau Biden, Department of Corrections
Commissioner Robert Coupe, Howard R. Young Correctional Institution (HRYCI)
Warden Phillip Morgan, and Mary Matthews, an HRYCI officer who allegedly
supervised the office of prisoner grievancesfor injunctive, declaratory, and monetary
relief under 42 U.S.C. 1983 for allegedly violating his Eighth and Fourteenth
Amendment rights.
According to Parkells complaint, he was held in west-side housing at HRYCI for
about two years. The west side at HRYCI was overcrowded, housing three men per cell
designed for one. HRYCI allegedly provided the prisoners with: fewer servings of food
and razors than prisoners; insufficient telephones and shower stalls; insufficient
underclothing which the prisoners could not self-launder, leading to its theft when placed
in the single, communal laundry tub; and only a small, indoor concrete enclosure where
all 59 men per unit had to exercise simultaneously if they wished to exercise at all.
According to Parkell, HRYCI punished its most violent and transgressive inmates
by assignment to the west side, which also housed pretrial detainees and nonviolent
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offenders. Inmates there were housed together regardless of status, without any risk
assessment. The more aggressive individuals and gangs used force and intimidation to
seize the limited resources at the expense of weaker and older inmates. Correctional
officers did not personally participate in and could not observe the distribution of
resources. Emergency alerts requiring guard intervention frequently occurred.
Parkell was injured in October 2013 shortly after he allegedly spoke up in defense
of the weaker prisoners to gang members in his unit and also complained of conditions to
some correctional lieutenants. When he attempted to fairly distribute juice portions at
one mealtime, multiple prisoners attacked and beat him for approximately five minutes.
He sustained head wounds, broken ribs, and two collapsed lungs. Parkell was treated at
Christiana Hospital, where medical professionals prescribed oxycodone to combat his
pain during his recuperation. HRYCI, however, refused to provide that medication under
a policy forbidding medicinal use of narcotics. The prison provided Parkell instead with
Tylenol containing codeine at less frequent intervals, and then discontinued that treatment
after a few days in favor of an anti-psychotic/anti-depressant drug. As a result, Parkell
claimed, he suffered intense pain for more than two weeks.
In his complaint, Parkell appeared to advance Eighth and Fourteenth Amendment
claims based on his treatment as a pretrial detainee and then a convicted inmate. The
District Court dismissed Parkells complaint with prejudice upon screening it under
1915(e)(2)(B), holding that some of Parkells claims duplicated those the court had
already dismissed in another of his suits, see Parkell v. Morgan, 917 F. Supp. 2d 328 (D.
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Del. 2013), and that the remainder were frivolous. See 28 U.S.C. 1915(e)(2)(B)(i).
Parkell timely appealed.1
We have jurisdiction under 28 U.S.C. 1291 and exercise plenary review of the
District Courts dismissal of Parkells complaint under 1915(e)(2)(B). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). A court must dismiss an in forma pauperis
action that is frivolous or malicious, or fails to state a claim upon which relief may be
granted. See 28 U.S.C. 1915(e)(2)(B)(i)(ii). A complaint is frivolous where it lacks
an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The standard for failing to state a claim under 1915(e)(2)(B)(ii) is the same as that
under Fed. R. Civ. P. 12(b)(6). See Allah, 229 F.3d at 223. To pass muster under Rule
12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).2 This standard is met
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. Id.

Parkell does not appeal the dismissal of his claims against Matthews and, on appeal,
indicates that he no longer seeks injunctive relief.
2

We acknowledge Parkells argument that his complaint should have been deemed
sufficient unless it appears beyond doubt that [he] can prove no set of facts in support of
his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 4546
(1957). Twombly, however, rejected this standard to require factual allegations showing
a plausible entitlement to relief. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232
33 (3d Cir. 2008).
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A district court must permit a plaintiff to amend claims that are dismissed for
failure to state a claim under 1915(e)(2)(B)(ii) unless amendment would be inequitable
or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 106 (3d Cir. 2002).
Amendment is futile where the complaint as amended would still fail to state a claim for
relief. In re Merck & Co., Inc. Sec., Derivative & ERISA Litig., 493 F.3d 393, 400 (3d
Cir. 2007) (citation omitted). We liberally construe Parkells pro se complaint. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Failure to Protect
As the District Court noted, several of Parkells claims of insufficient amenities
and other deprivationsincluding showers, shaving opportunities and razors, clothes and
laundering, telephones, exercise space, food portions, overcrowded cells, inadequate
guard staffing, and mixed pretrial and post-conviction housingduplicated those already
dismissed in Parkell v. Morgan under the at-least-equally protective standard for pretrial
detainees. See Bell v. Wolfish, 441 U.S. 520, 545 (1979).3 The District Court therefore
properly dismissed these claims under 1915(e)(2)(B)(i). See Deutsch v. United States,
67 F.3d 1080, 108687 (3d Cir. 1995).

While Parkell alleged that pretrial detainees also suffered constitutional deprivations as
a result of these conditions, he clarifies on appeal that he was a convicted inmate, not a
pretrial detainee, during the time relevant to his complaint. Therefore, we need not
consider whether his allegations state such a Fourteenth Amendment claim. See Bell,
441 U.S. at 545.
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However, Parkell argues on appeal that he is not in this case reasserting a

conditions-of-confinement claim.4 Rather, Parkell maintains that he alleged certain
conditions at HYRCI to show the prisons role in causing the injury he suffered. Parkell
acknowledges that some of his allegations duplicated those in Parkell v. Morgan, but
points out the attack and its aftermath, which are the primary focus of this case, did not
occur until after his conditions-of-confinement claims in the first case were dismissed.
Parkell correctly observes that the District Court did not consider whether his allegations
in this case supported a failure-to-protect claim.
While the Eighth Amendment requires prison officials to protect prisoners from
violence at the hands of other prisoners, not every prisoner-inflicted injury amounts to a
constitutional violation. Farmer v. Brennan, 511 U.S. 825, 83334 (1994). To state a
failure-to-protect claim, a prisoner must plead facts that show (1) he was incarcerated
under conditions posing a substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to his health and safety, and (3) the
officials deliberate indifference caused him harm. Bistrian v. Levi, 696 F.3d 352, 367
(3d Cir. 2012) (citing Farmer, 511 U.S. at 834). An official acts with deliberate
indifference when he or she knows of and disregards a substantial risk of serious harm to
inmate health or safety. Farmer, 511 U.S. at 837. It does not matter whether a prisoner

Inconsistently, Parkell at one point states that some of the conditions he described
amounted to constitutional violations on their own. Regardless, the District Court did not
err in holding that the conditions alleged, considered individually, did not rise to the level
of Eighth Amendment violations.
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faces an excessive risk of attack for reasons personal to him or because all prisoners in
his situation face such a risk. Id. at 843.
Assuming the truth of Parkells factual allegations and construing them liberally,
they suggest that overcrowding and insufficient provisions led to violent competition
among inmates, creating a substantial risk that an inmate might be seriously harmed, such
as Parkell eventually was, in a fight over provisions. See id. at 834; Bistrian, 696 F.3d at
367. As for deliberate indifference, Parkell alleged that he complained of the dangerous
conditions to HRYCI lieutenants. He also claimed that the officer on duty the day of
his attack either was absent from his post or otherwise failed to intervene for
approximately five minutes as Parkell was beaten. However, Parkell did not sue these
guards, but only managerial and policy-making officials.
To establish that a supervisor was deliberately indifferent, Parkell must identify a
specific policy or practice that the supervising official failed to employ and show that the
existing policy or procedure created an unreasonable risk of a constitutional violation,
that the official was aware of but indifferent to the risk, and that the policy or procedure
caused constitutional injury. See Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir.
2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). We have held that
these elements are met where the supervisor failed to respond appropriately in the face
of an awareness of a pattern of such injuries or where the risk of constitutionally
cognizable harm is so great and so obvious that the risk and the failure of supervisory

officials to respond will alone support a finding of deliberate indifference. Sample, 885
F.2d at 1118.
We cannot infer from Parkells allegations, even construed liberally, that Markell
or Bideneven if they allegedly failed to build more prison space or pursue institutional
reformeither played a role in determining the prison conditions creating the risk of his
injury, or were aware of that risk. See Beers-Capitol, 256 F.3d at 134. While the case
against Morgan and Coupe is closer, Parkells allegations are too conclusory to support
an inference of deliberate indifference. See Iqbal, 556 U.S. at 678. Parkell does not
indicate, for example, how frequently fights over provisions occurred prior to his, how
many had resulted in serious injury, and what prison guards actual responseoutside of
sounding an emergency alertto such fighting consisted of. His complaint therefore
does not plausibly suggest that the type of violent dispute causing his injury was so
pervasive, injurious, and predictable, and guards typical responses so ineffectual, that
Morgan and Coupe must have been aware of a problem merely by virtue of their
institutional roles. See Sample, 885 F.2d at 1118.5
However, Parkells allegations as to Morgan and Coupe are not so implausible as
to be factually or legally frivolous. See Neitzke, 490 U.S. at 325. He conceivably could

Parkell also claimed that Morgan and Coupe failed to properly train their subordinate
officers, leading to the constitutional deprivations he alleges. See Connick v. Thompson,
131 S. Ct. 1350, 135960 (2011). This theory, typically used to hold municipalities
liable under 1983, see id., does little to assist Parkell. He still must show the prison
officials personal involvement in the unconstitutional conduct to hold them liable for
damages. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
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address their deficiencies so as to nudge his failure-to-protect claim over the line into
plausibility. See In re Merck & Co., 493 F.3d at 400. The District Court erred in
denying Parkell an opportunity to amend his complaint and flesh out his claim against
Morgan and Coupe. See Grayson, 293 F.3d at 106.
Denial of Medical Care
The District Court also dismissed as frivolous Parkells claim that HRYCI
officials unconstitutionally denied him adequate medical care during the period following
his emergency surgery. Denial of medical care violates the Eighth Amendment where a
prison official is deliberately indifferent to a prisoners serious medical need. See Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such deliberate indifference can occur
where a prison official knows of a prisoners need for medical treatment but
intentionally refuses to provide it or prevents a prisoner from receiving needed or
recommended medical treatment. Id. Neither mere allegations of malpractice nor a
prisoners disagreement with prison medical professionals as to the proper method of
treatment rises to the level of an Eighth Amendment violation. See Monmouth Cnty.
Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (citations
omitted).
Parkell alleged that Morgan and Coupe6 enacted or maintained an anti-narcotics
policy that prevented him from receiving medication of the strength, frequency, and

Parkell did not implicate any other Appellees in his denial of medical care claim.
9

duration ordered for his recovery at Christiana Hospital. The District Court reasoned
that Parkells claim failed because he had simply alleged a disagreement with HRYCI
personnel over choice of medication. See id. However, construed liberally, Parkells
complaint did not describe a scenario where HRYCI personnel pursued a course first and
foremost aimed at fully treating Parkells symptoms, and Parkell or another doctor
merely preferred different treatment. Rather, Parkell alleged that his initial medical
source prescribed a certain medication that HRYCI was prevented from providingor
replacing with an alternative of comparable strengthby an administrative policy
potentially grounded in a nonmedical rationale. See Durmer v. OCarroll, 991 F.2d 64,
69 (3d Cir. 1993). Assuming oxycodone was, in fact, necessary, HRYCI may have
provided Parkell with not merely alternative, but qualitatively inferior and inadequate,
medical care. See Rouse, 182 F.3d at 197; West v. Keve, 571 F.2d 158, 161 (3d Cir.
1978) (holding that an unconstitutional denial of medical care occurred where deliberate
indifference by prison officials caused an easier and less efficacious treatment to be
provided).7
However, Parkells complaint does not indicate whether a physician at Christiana
Hospital prescribed oxycodone for an extended period which included his return to
HYCRI. If that were the case, the HRYCI policy might have prevented the receipt of

Whether Appellees can point to a legitimate penological reason for the medication
policy to sufficiently justify its impact on Parkells medical care, see Turner v. Safley,
482 U.S. 78, 89 (1987), is not before us at this juncture, with Appellees having yet to
10

needed or recommended medical treatment. See Rouse, 182 F.3d at 197. Absent such
detail, Parkells allegations are equally consistent with lawful and unconstitutional
behavior, and therefore insufficient to state a plausible claim. See Twombly, 550 U.S. at
56768. Moreover, he has not plausibly alleged deliberate indifference. See Rouse, 182
F.3d at 197. He does not indicate that Morgan or Coupe either knew of prisoner suffering
caused by the anti-narcotics policy, or that such suffering was so pervasive or welldocumented that the officials must have known of it. See Beers-Capitol, 256 F.3d at 134.
While Parkells denial-of-medical-care claim is not so ungrounded as to be
frivolous, see Neitzke, 490 U.S. at 325, it falls short of stating a plausible Eighth
Amendment claim. See Iqbal, 556 U.S. at 678. However, because amendment could
possibly produce a viable claim against Morgan and Coupe, the District Court erred in
dismissing this claim with prejudice. See Grayson, 293 F.3d at 106.
Substantive Due Process
Parkell also claimed that the prison conditions and the denial of his grievances
concerning them constituted Fourteenth Amendment violations. His sparse allegations
on point did not indicate his legal theory, and the District Court appears to have
interpreted them to allege that he was impermissibly subjected to punishment while still a
pretrial detainee. However, on appeal, Parkell argues that he was alleging substantive
due process violations. Because he challenges executive action, his allegations must
indicate that (1) officials have been deliberately indifferent to a liberty interest and (2)

receive and answer the complaint.

11

their behavior in depriving that interest was so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience. See Leamer v. Fauver, 288 F.3d
532, 54647 (3d Cir. 2002) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847
n.8 (1998)).
Parkell had no constitutionally protected liberty interest in receiving a particular
result through the prison grievance process. See Massey v. Helman, 259 F.3d 641, 647
(7th Cir. 2001). As for Parkells allegations concerning prison conditions, his injury, and
his medical treatment, they are properly analyzed under the specific constitutional
protections for convicted prisoners. See Albright v. Oliver, 510 U.S. 266, 273 (1994).
The District Court therefore properly dismissed this claim, albeit for other reasons.
Based on the foregoing, we will vacate the dismissal of Parkells failure-to-protect
and denial-of-medical-care claims against Morgan and Coupe, and affirm the District
Courts judgment as to all remaining claims against all parties. We will remand for
further proceedings consistent with this opinion.

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