                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                  08-3649
                               _____________

                             ASHLEY PAITH;
                            RON PATTERSON,
                                    Appellants

                                      v.

                    COUNTY OF WASHINGTON;
              WASHINGTON COUNTY CORRECTIONAL
         FACILITY; WARDEN JOSEPH PELZER; CAPTAIN KING


               On Appeal from the United States District Court
                  for the Western District of Pennsylvania
                      District Court No. 2-06-cv-00806
               District Judge: The Honorable Nora B. Fischer


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                            September 16, 2010

          Before: SLOVITER, BARRY, and SMITH, Circuit Judges

                        (Filed: September 20, 2010 )


                                  OPINION


SMITH, Circuit Judge.


                                      1
      Ashley Paith and her father, Ron Patterson, were incarcerated in the

Washington County Correctional Facility for varying periods of time from 2003 to

2006. In January of 2006, they initiated this civil action in state court against the

County of Washington, its correctional facility, Warden Pelzer, and Captain King

(collectively referred to as the County). Paith and Patterson, both of whom had

been released from the Washington County Correctional Facility, alleged in their

complaint that the County was liable for various civil rights violations that

occurred during their incarceration, as well as several state law tort claims. The

County timely removed the action to the United States District Court for the

Western District of Pennsylvania. After discovery concluded, the parties filed

cross-motions for summary judgment. On July 25, 2008, the District Court

granted the County’s motion for summary judgment. This timely appeal

followed.1

      Although Patterson raised several claims against the County, on appeal he

challenges only the District Court dismissal of his claim that he received a

retaliatory and arbitrary denial of his right to work release during Paith’s initial

incarceration in 2003. Patterson contends that the District Court failed to address

      1
        The District Court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1367. Appellate jurisdiction exists under 28 U.S.C. § 1291. We conduct de
novo review of an order granting a motion for summary judgment. Stratechuk v.
Bd. of Educ., South Orange-Maplewood Sch. Dist., 587 F.3d 597, 603 (3d Cir.
2009).
                                           2
this claim. Putting aside whether there is such a thing as a right to work release,

there is no merit to Patterson’s assertion. The record establishes that Patterson

filed a petition seeking work release in November 2003, and that the District Court

explicitly identified Patterson’s claim as one of several which was time barred.

      Paith asserts that the District Court erred by granting summary judgment on

her claims alleging: (1) deliberate indifference to her medical needs; (2)

confinement in unconstitutional conditions; and (3) an “intentional infliction of

emotional distress and/or [a] state[-]created danger growing out of the conditions

of her confinement.” We find no error by the District Court.2

      At the heart of Paith’s deliberate indifference claim is her contention that

during her incarceration in 2005 and 2006 “she was forced to take medication

without food which resulted in stomach problems and rendered the medication

ineffective.” In Boring v. Kozakiewicz, 833 F.2d 468, 473–74 (3d Cir. 1987), we

declared that a prisoner’s claim of deliberate indifference to a serious medical


      2
         The District Court analyzed Paith’s deliberate indifference and
unconstitutional conditions of confinement claims under the Eighth Amendment.
These claims arose in 2005 when Paith was incarcerated pursuant to a parole
violation detainer after a domestic incident. As a result, Paith’s status is like that
of a pretrial detainee, Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987),
and she is entitled to the protections of the Fourteenth Amendment’s Due Process
Clause. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (noting that
Eighth Amendment’s protections apply to prisoners confined as a result of a
formal adjudication of their guilt, and that the Fourteenth Amendment’s Due
Process Clause governs the rights of pretrial detainees).
                                          3
need requires expert testimony when the seriousness of injury or illness would not

be apparent to a lay person. Whether a medication is ineffective if it is given

without food is not readily apparent to a lay person. Paith offered no expert

testimony to support her claim. As a consequence, she cannot establish an

essential element of her deliberate indifference claim. For that reason, we

conclude that the District Court properly granted summary judgment in favor of

the County on this claim.

      Paith also alleged that she was subjected to unconstitutional conditions of

confinement when she was transferred to the correctional facility’s “green room.”3

The green room is not equipped with a standard toilet facility; it contains only a

floor grate over an eight inch drain pipe. The District Court recognized that in

LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972), the Second Circuit held

that the conditions of a strip cell that had a similar toilet facility “f[e]ll below the

irreducible minimum of decency required by the Eighth Amendment.”

Nonetheless, the District Court granted the County’s motion for summary

judgment because the “absence of a traditional toilet . . . is not, by itself, cruel and


      3
         Paith’s complaint alleged claims of unconstitutional conditions of
confinement as a result of her placement in the green room in 2003 and 2005. In
the District Court, Paith filed a motion to withdraw her claim based on the events
that occurred in 2003. The District Court granted the motion and dismissed that
claim with prejudice. Accordingly, we address only Paith’s claim challenging her
confinement in the green room in December of 2005.
                                            4
unusual punishment” and because prisoners confined to the green room had access

to a traditional toilet upon request.

      Relying on LaReau, and the fact that she was deprived of access to a

traditional toilet, Paith contends that the District Court erred in granting summary

judgment for the County. LaReau, however, is not controlling as it concerned the

Eighth Amendment and preceded the Supreme Court’s decision in Bell v. Wolfish,

441 U.S. 520 (1979), which set forth the standard applicable under the Fourteenth

Amendment. In that case, the Supreme Court explained that “[i]n evaluating the

constitutionality of conditions or restrictions of pretrial detention that implicate

only the protection against deprivation of liberty without due process of law, we

think that the proper inquiry is whether those conditions amount to punishment of

the detainee.” Id. at 535. In Union County Jail Inmates v. DiBuono, 713 F.2d

984, 992 (3d Cir. 1983), we determined that Bell requires application of a two part

test. “[W]e must ask, first, whether any legitimate purposes are served by these

conditions, and second, whether these conditions are rationally related to these

purposes.” Id. at 992.

      The record before us confirms that the green room, which had green tile on

three of the walls and a fourth wall made of glass, lacked any furnishings or

stationary objects, including a traditional toilet. It did have an eight inch drain in

the middle of the floor covered by a grate. At least some of the room’s walls were

                                           5
padded. Correction Officer Hank affirmed that the room is utilized to observe

“people coming down from drugs, violent people or people on suicide watch.”

Deputy Warden Hammett confirmed that the green room is a “cell designated for

prisoners exhibiting violent and self-destructive behavior,” which allows an

inmate to be observed constantly. In short, the room is designed to provide a

protective environment for an inmate who may be a danger to himself/herself or

others.

      We do not ignore the fact that the absence of a traditional toilet may deprive

an inmate of access to the usual sanitation measures afforded other inmates who

are not at risk of hurting themselves. Deputy Warden Hammet explained,

however, that two other cells adjacent to the green room are equipped with

traditional toilet facilities, and that inmates confined in the green room are given

access to these traditional toilet facilities upon request. In addition, Deputy

Warden Hammett pointed out that in the event an inmate utilizes the drain to

relieve himself/herself, prison staff must clean the room as soon as it is safe to do

so.

      Furthermore, the record demonstrates that Paith was placed in the green

room as a protective measure after she exhibited self-destructive behavior.

Although the record fails to establish with certainty the duration of her

confinement in the green room, it appears to be less than a day as she was placed

                                          6
in the room after 9 p.m. and was returned to general housing the next day

following evaluation by the prison psychiatrist who prescribed medications to

address her mental impairments. In light of all these circumstances, we conclude

that Paith did not establish that this condition constituted punishment in violation

of her due process rights under the Fourteenth Amendment.

      Paith also contends that the District Court erred by granting summary

judgment in favor of the County on her claim of intentional infliction of emotional

distress. Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987),

requires that the alleged emotional distress be supported by competent medical

evidence. Paith did not adduce any medical evidence in support of her claim.

Accordingly, the District Court did not err in dismissing this claim.

      Finally, we consider whether the District Court erred in dismissing Paith’s

state-created danger claim. “[T]he Due Process Clause does not impose an

affirmative obligation on the state to protect its citizens.” Phillips v. County of

Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (citing DeShaney v. Winnebago

County Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989)).

      The state-created danger theory operates as an exception to that
      general rule and requires plaintiffs to meet a four-part test: (1) the
      harm ultimately caused to the plaintiff was foreseeable and fairly
      direct; (2) the state-actor acted in willful disregard for the plaintiff's
      safety; (3) there was some relationship between the state and the
      plaintiff; and (4) the state-actor used his authority to create an
      opportunity for danger that otherwise would not have existed.

                                           7
Id. (citing Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006)).

The District Court correctly set out this test. After considering the evidence, the

Court concluded that Paith had adduced evidence of only the third element, i.e.,

the existence of a special relationship by virtue of her imprisonment. We agree.

      For the reasons set forth above, we will affirm the District Court.




                                          8
