Opinion
Civil Action 2:21-cv-332
08-21-2023
PERCY PEREZ, Plaintiff, v. SCI-FAYETTE SUPERINTENDENT M. CAPOZZA, et al., Defendants.
Schwab, District Judge
REPORT AND RECOMMENDATION ECF NO. 107
LISA PUPO LENIHAN, United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that Defendants' Motion for Summary Judgment (ECF No. 107) be granted in part and denied in part. It is respectfully recommended that summary judgment be denied as to Plaintiff's Eighth Amendment claims for excessive force and cruel and unusual punishment against Defendants McIntyre, Meese, Newman, Gray, Sheetz, Pletcher, Weekly, Barkley, Halkias, Walters, and Shanaberger. It is further recommended that summary judgment be granted in favor of all Defendants on any deliberate indifference claim Plaintiff may now be arguing. It is further recommended that summary judgment be denied on Plaintiff's supervisory liability claim against Defendants Rhodes and Newman and granted on that claim in favor of Defendants House, Allen, and Barnacle. It is further recommended that summary judgment be granted as to Plaintiff's concealment claim against Defendants Rhodes, Newman, House, Allen, and Barnacle. It is further recommended that Defendants' motion for summary judgment as to Defendant M. Capozza be denied as moot.
II. REPORT
The Plaintiff essentially disputes all of Defendants' Statements of Material Fact (“DSMF”), some of which are disputed based on relevancy and materiality. See Pl.'s Concise Counterstatement of Material Facts (“Pl.'s CCMF”), ECF No. 119. The Court agrees with Plaintiff that DSMF nos. 3 & 4 are irrelevant and immaterial. Whether Defendants McIntyre and Meese had a valid reason to stop and question Plaintiff on the track is immaterial to Plaintiff's Eighth Amendment claims of excessive force, deliberate indifference, and cruel and unusual punishment. In addition, the Court will treat any statements in Pl.'s CCMF which are first hand factual descriptions of the relevant events as though they were set forth in an affidavit as Plaintiff as sworn to their truth under penalty of perjury. ECF No. 119 at 26. As to the events that occurred in the yard, the Court will also refer to the video of the events which is attached to the record as Defs.' Ex. B, ECF No. 110, and Pl.'s Ex. C, ECF No. 119-3. For the most part, the video raises issues of material fact in dispute. The Court also notes that Defendants fail to provide pinpoint cites to where in Exhibit A, a 90-page exhibit, support can be found for their statements of material fact in paragraphs 3 through 24. It is not the Court's responsibility to parse through a party's multipage exhibit to find support for their statements of fact. They also cite generally to the Video (Exhibit B).
The underlying events in this case took place at the State Correctional Institution at Fayette (“SCI-Fayette”), a prison maintained and operated by the Pennsylvania Department of Corrections (“DOC”). DSMF, ¶ 1 (ECF No. 109). Plaintiff, Percy Perez, is currently in the custody of the DOC at SCI-Greene. Id. at ¶ 2.
On April 6, 2019, Plaintiff approached two inmates in the yard at SCI Fayette. Video at 19:30:16, Defs.' Ex. B. & Pl.'s Ex. C. It appears that one of the inmates handed a clear plastic pouch with a green label to Plaintiff, which he contends contained menthol tobacco and was sold in the commissary. Id. at 19:30:18; Pl.'s CCMF at ¶¶ 5 & 6 (ECF No. 119 at 4-5). Plaintiff then rolled a cigarette and handed the pouch back to the inmate. Video at 19:30:20-19:31:40. Afterwards Plaintiff can be seen talking with the two inmates and waving his hands around, and then walks away. Id. at 19:31:42-53. Defendants maintain that Plaintiff was handed an unknown object by another inmate and then walked away, but the CCTV security camera video contradicts this statement as it does not show Plaintiff being handed an object after he rolled a cigarette. DMSF at ¶6; Pl.'s CCMF at ¶6; Video at 19:31:42-53. Plaintiff submits that the Video unequivocally shows that he was not handed any unknown object from anyone. Pl.'s CCMF at ¶ 20. See also Video at 19:30:16-19:31:53.
Plaintiff then started walking on the track with the cigarette in his mouth and pulled out his tablet to listen to music. Video at 19:31:53-19:33:32; Pl.'s CCMF at ¶ 8. Shortly thereafter, he was approached by Defendants McIntyre and Meese who stepped in front of him to block his path. DSMF at ¶ 8; Pl.'s CCMF at ¶ 8; Video at 19:33:30. Defendant McIntyre had received a call from CO Helman who was assigned to the CCTV post informing him that Plaintiff had been observed appearing to obtain an unknown object from an inmate at the weight bench area who had been involved in a seizure of contraband earlier that day. ECF No. 110-1 at 16, 62.
Believing that Plaintiff may have possessed contraband, Defendants McIntyre and Meese contend that they ordered Plaintiff to remove his hands from his pockets so they could conduct a search of his person. DSMF at ¶ 9. Plaintiff disputes this statement and submits that neither of these Defendants ordered him to remove his hands from his pockets to conduct a search, as his right hand was holding his tablet and he had removed his ear buds and placed them in this left (shirt) pocket with his left hand, as seen on the CCTV security camera video. Pl.'s CCMF at ¶ 9; Video at 19:33:30-40. Defendants contend that Plaintiff initially complied with their order but put his hand back in his left pocket; they then ordered Plaintiff to remove his hand from his pocket and he did not comply. DSMF at ¶¶ 10-11. Plaintiff disputes this and counters that he proceeded to remove any and all content from his pockets; starting with his left pocket since that hand was free because he was holding his tablet in his right hand. Pl.'s CSMF at ¶¶ 10-11; Video at 19:33:40. Plaintiff further contends that at no time did he resist, become disobedient or attempt to flee when Defendant McIntyre twisted his arm for no reason. Pl.'s CSMF at ¶ 12; Video at 19:33:30-19:33:41.
Defendant McIntyre contends that he reached for Plaintiff's hand but Plaintiff ripped it away and turned away aggressively appearing as though he was attempting to flee. DSMF at ¶ 12. On the video, Plaintiff appears to move his left arm away from Defendant McIntyre and turn sideways while Defendant Meese steps up behind Plaintiff. Video at 19:33:43. Immediately thereafter, Defendants McIntyre and Meese took Plaintiff down to the ground. DSMF at ¶13; Video at 19:33:44-47. Defendants McIntyre and Meese contend this action was necessary to prevent Plaintiff from running away and to gain compliance; Plaintiff disputes that he attempted to flee, was combative or provoked these Defendants. DSMF at ¶ 13; Pl.'s CSMF at ¶ 13.
Once on the ground, Defendants McIntyre and Meese contend Plaintiff continued to be noncompliant keeping his hand in a fist and straight out from his body to avoid being handcuffed. DSMF at ¶ 14 (citing Ex. A). They further contend that Plaintiff was physically resisting and wrestling with them while on the ground. Id. at ¶ 15 (citing Exs. A & B). Plaintiff disputes that he was resisting or threatening the Defendants, and counters that he was trying to protect his face from the Defendants' repeated punches to his face, head, mouth, nose, ears, neck and back. Pl.'s CSMF at ¶ 14. Plaintiff further contends that Defendant McIntyre attempted to break his fingers and Defendant Meese had him in a martial arts/military style combat choke hold which obstructed his ability to breathe. Id. at ¶¶ 14-15.
Although both Plaintiff and Defendants cite to the Video in support of their statements, the Video is subject to interpretation on these points, which falls within a jury's province and thus is not for the Court to decide.
During the struggle with Plaintiff, Defendant Meese contends that Plaintiff bit him on his left arm. DSMF ¶ 16 (citing Ex. A) (Pl.'s Ex. D, ECF No. 119-4 at 2). Plaintiff denies biting or assaulting any officer, contending he could not have gained access to Defendant Meese's arm given Plaintiff's position on the ground and being choked, punched and his left arm broken. Pl.'s CSMF at ¶16; ECF No. 119-4 at 4. Plaintiff also maintains that when Nurse Heisler first evaluated Defendant Meese, he only had a scratch on his hand. Id.; see also ECF No. 110-1 at 70. However, Nurse Heisler further noted that when Defendant Meese looked later in the evening, he showed her bite marks consisting of an imprint of upper and lower teeth on his forearm. ECF No. 110-1 at 70. Due to unavailability of medical staff at that time, Defendant Meese was reassessed and photographs of his injury were taken the following day. ECF No. 1194 at 7 & 9; see also ECF No. 110-1 at 24, 69-70. On 4/7/19, Nurse Heisler observed a faint red mark on the skin of Defendant Meese' left forearm but no breaks in the skin, bleeding or bruising were observed. ECF No. 110-1 at 25, 69-70. Plaintiff also points out that the date on the Medical Incident/Injury Report on Defendant Meese was originally dated 4/7/19 but the number “7” was written over with the number “6.” Id. at 7.
The Video is inconclusive as to whether Plaintiff bit Defendant Meese.
Thereafter the Video shows that the struggle between Defendants McIntyre and Meese and Plaintiff continued and that several officers arrived at the scene to assist in restraining and handcuffing the Plaintiff. Video at 19:33:47-19:34:05. Defendant Gray arrived first and appears to grab Plaintiff's left leg and bend it towards his buttocks. Id. at 19:34:05-08. Defendant Gray then assisted in placing Plaintiff's right hand in handcuffs but was unable to cuff Plaintiff's left hand due to his refusal to place his left hand behind his back. Defs. Ex. A, ECF No. 110-1 at 20. Defendant Gray maintains that he then deployed Oleoresin Capsicum (“O.C.”) spray to Plaintiff's face area, id., although Defendant Gray's deployment of the O.C. spray is not visible on the Video.
Additional corrections officers then began arriving to assist with restraining Plaintiff. Video at 19:34:05-19:35:10. Those officers included Defendants Shanaberger, Weekly, Starchok, Barkley, Halkias, Pletcher, and Sheetz. ECF No. 110-1 at 18, 26, 28, 32, 42, 48, 52. The corrections officers continued to struggle and wrestle with Plaintiff while several more corrections officers arrived. Video at 19:35:00-19:35:47. Defendant Lt. Rhodes arrived at approximately 19:35 and observed several corrections officers on the ground struggling with Plaintiff and trying to get him in handcuffs. ECF No. 110-1 at 50.
During the struggle with Plaintiff, Defendants contend that an object was retrieved from him which was tested and yielded positive results for Suboxone. Id. at 19:34:48-19:35:10. There is some conflicting evidence, however, as to whom retrieved the object from Plaintiff and where on Plaintiff's person it was retrieved from. For example, in his interview with BII agents, Defendant McIntyre stated that Plaintiff had his hand inside his left front pocket when they went to the ground, and Defendant McIntyre was able to get Plaintiff's hand out of his pocket but Plaintiff's fist was closed. ECF No. 110-1 at 78. After Plaintiff was finally handcuffed, Defendant McIntyre stated that he removed the suspected contraband from Plaintiff's hand, which was a small piece of paper that was field tested and tested positive for Suboxone. DSMF at ¶ 10; ECF No. 110-1 at 78. On the other hand, CO1 Hernley stated in his Employee Report of Incident that he searched Plaintiff and found a white folded piece of paper in his right pocket which appeared to contain a 1/8 piece of Suboxone. ECF No. 110-1 at 53. CO1 Hernley tested the suspected Suboxone which yielded a positive result. Id. Moreover, Plaintiff contests the validity of the test results claiming that he was never provided with any documents, lab reports, or other evidence to prove that he possessed contraband which tested positive for Suboxone. Pl.'s CCMF at ¶ 20. He also denies any infraction for drugs since March 14, 1998. Id. (citing ECF No. 119-5 at 18-24).
At some point Defendant Lt. Rhodes gave verbal commands to Plaintiff to cuff up. ECF No. 110-1 at 50. Together the corrections officers were able to place Plaintiff's left hand behind his back, handcuff him, and pull Plaintiff to his feet. ECF No. 110-1 at 20; Video at 19:35:4719:37:00. Plaintiff was then escorted out of the exercise yard by four corrections officers. DSMF at ¶ 21; Video at 19:37:15-19:38:03. As the corrections officers got Plaintiff by the backstop/yard gate, Lt. Rhodes directed the officers to place Plaintiff by the fence so a spit hood could be placed over his head as there was blood visible by his mouth and Plaintiff complied. ECF No. 110-1 at 50; Video at 19:38:38-19:39:32. Plaintiff claims that the spit hood obstructed his breathing and became saturated with blood, mucus, and pepper spray causing him to become disoriented. Pl.'s CCMF at ¶ 21. Plaintiff contends that he begged for air, the hood was ripped off his head, and then another hood was placed over his head. Id. Plaintiff was then escorted to medical by Defendants Pletcher and Walters. ECF No. 110-1 at 50.
Plaintiff contends that upon arriving at medical, Shift Commander Newman was waiting outside of medical and he, along with Defendants Pletcher and Walters took Plaintiff to an isolated eye examination room where there was no camera and he was physically and verbally assaulted by these three Defendants while handcuffed even though he was not resisting. Pl.'s CCMF at ¶ 22. Plaintiff further contends that the physical and verbal abuse only stopped when RN Heisler came and requested that Plaintiff be moved to the main triage room so she could examine him. Id. Plaintiff was examined by RN Heisler who decontaminated his eyes and cleaned the blood from his face. ECF No. 110-1 at 22, 68. During the examination, RN Heisler noticed a potentially serious injury to Plaintiff's left shoulder and elbow and PA Cowden was notified. Id. It was determined his injuries required further evaluation at Uniontown Hospital and the EMTs were called. Id.
The Court notes that Defendants have not filed a reply to Pl.'s CCMF and therefore have not disputed these statements for purposes of summary judgment.
Plaintiff was initially transported to Uniontown Hospital but was later transferred to UPMC Mercy in Pittsburgh because his injuries were too severe to treat at Uniontown Hospital. Pl.'s CCMF at ¶ 23. At some point during the encounter between Plaintiff and the Defendants McIntyre, Meese, Shanaberger, Weekly, Starchok, Barkley, Halkias, Pletcher, and Sheetz, Plaintiff sustained a broken left humerous, a dislocated left elbow, and radial nerve damage to his left arm and shoulder. ECF No. 110-1 at 4; see also Pl.'s med. records, ECF No. 119-8 at 1030. The doctors at UPMC Mercy determined that Plaintiff required emergency surgery to insert plates and screws into his arm. Pl.'s CCMF at ¶ 23; ECF No. 119-8 at 22-23. Plaintiff remained in the hospital for 13 days in recovery during which time he was treated with pain medication which affected his ability to think clearly. Pl.'s CCMF at ¶ 23; ECF No. 119-8 at 6-7, 28-29. Plaintiff was discharged from UPMC Mercy on April 18, 2019 on pain medication and transferred to SCI Greene. ECF No. 119-8 at 4-9.
As a result of the incident with Plaintiff, four staff members were treated for minor injuries. ECF No. 110-1 at 7. In addition, Plaintiff received two misconducts-one for assault and refusing to obey an order and another for possession or use of a dangerous controlled substance. ECF No. 110-3 at 4; ECF No. 110-4 at 4. On April 24, 2019, Plaintiff was found guilty of the charges in both misconducts and sanctioned to 120 days and 45 days of disciplinary confinement to be served consecutively. DSMF at ¶¶ 27, 29; ECF No. 110-3 at 2-3; ECF No. 110-4 at 2-3; Pl.'s CCMF at ¶ at 27, 29.
Plaintiff disputes the guilty findings but does not dispute that he was found guilty or sanctioned to disciplinary confinement.
While at SCI-Greene, Plaintiff enlisted the help of his family and another inmate to prepare a grievance on his behalf as he was unable to do so because of his medical condition and placement in a Prisoner Observation Cell (“P.O.C.”) and later in the RHU, where he had no access to grievance forms, pens, or other property. ECF No. 110-5 at 6. On May 6, 2019, with the help of family, Plaintiff filed Grievance No. 801342, in which he alleges that he was assaulted by Sgt. McIntyre and other officers on April 6, 2019, where he was beaten in the head, face, body and his left arm was severely broken. ECF No. 110-5 at 12-13. Plaintiff also mentioned in the grievance that Lt. Rhodes was present during this incident. Id. at 13. Plaintiff also indicates in the grievance that he was sent to UPMC Mercy Hospital where his arm was surgically repaired and then to SCI-Greene. Id. at 12-13. Plaintiff does not specifically request monetary relief in his grievance. Id. On May 16, 2019, Defendant Allen rejected the grievance as untimely because it was not filed within fifteen (15) working days after the events upon which the grievance was based. ECF No. 110-5 at 11. However, Defendant Allen noted that the grievance was being forwarded to the Security Office for investigation in accordance with Department Policy DC-ADM 001. Id.
That grievance was dated May 6, 2019, mailed on May 9, 2019, and date-stamped as received by Superintendent Assistant at SCI-Fayette on May 16, 2019. ECF No. 119-1 at 4; ECF No. 110-5 at 12-13.
The Court takes judicial notice of DC-ADM 804-Inmate Grievance System Policy which provides that grievances dealing with allegations of inmate abuse are to be handled in accordance with Department Policy DC-ADM 001, “Inmate Abuse.” See DC-ADM 804, Sec. 1, Part D.2, available at https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievances.pdf.
On June 6, 2019, after not receiving his pink copy of Grievance No. 801342 or any decision, Plaintiff filed a second grievance along with a follow up letter to Defendant House explaining that he was still recovering from his injuries and had been denied basic writing materials until then and requesting a copy of his grievance and any decisions rendered. ECF No. 110-5 at 9-10; ECF No. 82-1 at 15. Defendant House assigned the same grievance number to the second grievance and on June 21, 2019, rejected it as untimely. ECF No. 110-5 at 8. Defendant House also indicated that she was forwarding the grievance to the Security Office for investigation in accordance with Department policy DC-ADM 001. Id.
On July 10, 2019, Plaintiff appealed the rejection of his grievances to the Facility Manager. ECF No. 110-5 at 6-7. In his appeal, Plaintiff again mentions that he was delayed in filing his grievance due to his 13-day hospitalization immediately following the incident and subsequent transfer to SCI Greene where he was denied basic writing materials. Id. On August 6, 2019, the Facility Manager issued his response dismissing the appeal and upholding the rejection of his grievance as untimely. ECF No. 110-5 at 5. The Facility Manager further noted that his grievance was forwarded to the Security Office for investigation and he would receive a response from BII. Id.
On August 16, 2019, Plaintiff appealed to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), again raising, among other things, his inability to file a timely grievance and the reasons therefor. ECF No. 110-5 at 3-4. On September 27, 2019, SOIGA issued a Final Appeal Decision Dismissal upholding the rejection of his grievance as untimely and noting that his allegations were investigated by BII in accordance with DC ADM 001. ECF No. 110-5 at 2.
Defendant James Barnacle was the Director of the BII when Plaintiff's allegations of assault were referred to the BII for investigation. ECF No. 110-1 at 90. Agent Darren Fisher at the BII was assigned to conduct the investigation and prepared a report dated May 20, 2019. ECF No. 110-1. As part of his investigation, Agent Fisher obtained the Extraordinary Occurrence Report (id. at 5-7), SCI Fayette Employee Reports of Incident and Medical Reports (id. at 14-29, 32-33, 35-58), and photographs (id.at 11-12), as well as conducted interviews with all involved parties, including Plaintiff (id. at 59-89). On July 23, 2019, Defendant Barnacle issued a letter to Plaintiff informing him that the allegations of abuse by staff had been thoroughly investigated and were found to be unsubstantiated and the investigation was now closed. Id. at 90. Subsequently, Plaintiff filed this civil rights action alleging violations of his rights under the Eighth Amendment.
Discovery was conducted in this matter and Defendants' Motion for Summary Judgment (ECF No. 107) is now pending before the Court. Defendants filed a brief, a concise statement of material facts, and appendix with exhibits in support of their motion. Plaintiff has responded with a concise counterstatement of material facts, appendix with exhibits, and brief in opposition to summary judgment. Thus, the motion has been fully briefed and is now ripe for disposition.
B. LEGAL STANDARD
Summary judgment is appropriate when the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue of material fact that precludes summary judgment. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties' arguments, the court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the non-moving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
Although courts must hold pro se pleadings to “less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g., Barnett v. N.J. Transit Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still “required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories.. .sufficient to convince a reasonable fact finder to find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard, 395 Fed.Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.”); see also Zilich v. Lucht, 981 F.2d 694, 696 (3d Cir. 1992) (noting that despite liberal construction of the complaint, the pro se plaintiff “still has before him the formidable task of avoiding summary judgment by producing evidence ‘such that a reasonable jury could return a verdict for [him].'”) (quoting Anderson, 477 U.S. 242)).
C. ANALYSIS
Plaintiff seeks relief in this civil action pursuant to 42 U.S.C. § 1983 for alleged violations of his rights under the Eighth Amendment. Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commw. of Pa., 36 F.3d 1250, 125556 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Both of these requirements have been met here as it is uncontested that the Defendants were acting under color of state law. Thus, the Court turns to the parties' arguments as to each of Plaintiff's constitutional claims.
1. Superintendent M. Capozza
As a preliminary matter, the Court notes that when Plaintiff filed his Amended Complaint (ECF No. 82) on August 11, 2022, he dropped SCI-Fayette Superintendent M. Capozza as a named defendant in this case, most likely because the undersigned previously recommended that the supervisory liability claim against M. Capozza in his official and individual capacity be dismissed, which the District Court adopted. See ECF Nos. 45 & 54. Thus, Capozza is no longer a party to this lawsuit. Accordingly, Defendants' motion for summary judgment as to M. Capozza is denied as moot.
2. Exhaustion of Administrative Remedies
Defendants argue that Plaintiff failed to exhaust his administrative remedies for all claims and therefore they are entitled to summary judgment as a matter of law. In support, they submit that Plaintiff's grievance was not filed within fifteen (15) working days after the incident on April 6, 2019 in violation of DC-ADM 804 and thus was rejected as untimely. As such, Defendants submit that Plaintiff failed to follow proper grievance requirements in DC-ADM 804 and therefore did not properly exhaust his claims. ECF No. 108 at 6. Defendants also submit that other than Defendants McIntyre, Meese, and Rhodes, Plaintiff failed to identify the individuals directly involved in the events alleged in Grievance No. 801342 contrary to DC-ADM 804 and therefore he failed to exhaust his administrative remedies as to those Defendants not identified in the grievance. Lastly, Defendants argue that Plaintiff procedurally defaulted his claims for monetary damages because he failed to request compensatory relief in his grievance.
In response, Plaintiff argues that the grievance process was unavailable to him because of his immediate transport after the event to Uniontown Hospital and then to UPMC Mercy Hospital, where he underwent surgery the next day and remained hospitalized for 13 days. Upon discharge he was transferred to SCI-Greene where he was denied access to writing materials and grievance forms while housed initially in the POC and then the RHU. As such, Plaintiff contends his grievance was improperly rejected as untimely and therefore he has fully discharged the PLRA's exhaustion requirement.
The Prison Litigation Reform Act (“PLRA”) mandates that an inmate exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). Exhaustion is a “non-jurisdictional prerequisite to an inmate bringing suit” and when raised by a defendant it constitutes a threshold issue to be addressed by the court. See, e.g., Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018).
The Supreme Court has repeatedly observed that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 578 U.S. 632, 638-39 (2016) (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006) and Jones v. Bock, 549 U.S. 199, 211 (2007)). Courts are not given discretion to decide whether exhaustion should be excused, Ross, 578 U.S. at 641, and there is no exception to the exhaustion requirement based on “futility.” Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) (citations omitted). Importantly, the prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill v. Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004)(the “prison grievance procedures supply the yardstick for measuring procedural default.”). Therefore, the procedural requirements for exhaustion in a given case “are drawn from the polices of the prison in question rather than from any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill, 372 F.3d at 231).
The Court of Appeals has explained that if the defendant demonstrates that the inmate failed to exhaust his administrative remedies, then “the inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact unavailable to him or her.” West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019) (citing Rinaldi, 904 F.3d at 268). “If there is no genuine dispute of material fact, then the exhaustion defense may be evaluated as a matter of law at summary judgment.” Id.
The Supreme Court explained in Ross that the term “available” means those “grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” 578 U.S. at 642 (quoting Booth, 532 U.S. at 738). Absent a situation where administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross, 578 U.S. at 639.
The Pennsylvania Department of Corrections (“DOC”) has an official Inmate Grievance System that governs the grievance and appeals process in Pennsylvania correctional institutions. See 37 Pa. Code § 93.9. The Inmate Grievance System Policy is set forth in DC-ADM 804 and the portions of the DC-ADM 804 that are relevant here are found in Section 1.A.8 & 9 and Section 1.C.2. Section 1.A.8 provides: “The inmate must submit a grievance to the Facility Grievance Coordinator/designee . . . within 15 working days after the event upon which the claim is based.” Section 1.A.9 states that the “grievance must be filed with the Facility Grievance Coordinator/designee at the facility where the grievance event occurred.”
See DC-ADM 804 Inmate Grievance System Policy, available at https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievances.pdf.
Here it is undisputed that Plaintiff did not file grievance no. 801342 within fifteen (15) working days after the event upon which his claim is based. The event occurred on April 6, 2019 and Plaintiff's grievance is dated May 6, 2019, was sent via priority express mail on May 9, 2019 to Defendant House at SCI-Fayette, and delivered on May 10, 2019. Pl.'s Ex. A, ECF No. 119-1 at 2-4. Thus, twenty-four (24) working days elapsed after April 6, 2019 through May 9, 2019, the date Plaintiff submitted his grievance. Based on these facts alone, Plaintiff's grievance appears to be untimely.
However, Section 1.C.2 of DC-ADM 804 provides in relevant part:
A time extension for filing a grievance will be considered on a case-by-case basis. The inmate must notify the Facility Grievance Coordinator/designee of the reason for the delay. The Facility Grievance Coordinator/designee will consider the reason given and also consider if the delay was caused by:
a. a temporary transfer from the facility where the grievance should have been filed;
b. a permanent transfer to another facility from the facility where the grievance should have been filed; ...
e. any other reason the Facility Grievance Coordinator/designee deems appropriate.
NOTE: If it is determined that a delay was caused by a circumstance listed above, a reasonable extension of time for filing shall be permitted.DC-ADM 804, § 1.C.2.a, b, & e. Here, it is undisputed that immediately after the event Plaintiff was transferred via ambulance to Uniontown Hospital, and then to UPMC Mercy Hospital in Pittsburgh where he underwent surgery the next day for the injuries suffered to his left arm. Plaintiff remained in UMPC Mercy until April 18, 2019 when he was discharged and transferred to SCI Greene. Pl.'s Ex. A, ECF No. 119-1 at 2; Pl.'s Ex. H, ECF No. 119-8 at 6. Upon arrival at SCI Greene, Plaintiff was initially placed in a POC cell and then the RHU, where he was denied access to writing materials until May 31, 2019. ECF No. 119-1 at 9. Plaintiff was only able to submit his initial grievance on May 9, 2019 with the assistance of a fellow inmate and family members. Id.
The record shows that the grievance coordinators at SCI Fayette, Defendants Allen and House, should have been aware that Plaintiff was unable to file a timely grievance. Plaintiff indicates in his initial grievance dated May 6, 2019 that he was “sent to the hospital and then SCI Greene.” ECF No. 119-1 at 2. From this alone Defendants Allen and House should have been alerted that an extension of time for filing the initial grievance was warranted based on Section 1.C.2.a & b. Moreover, in his second grievance dated June 6, 2019, Plaintiff states that his transfer to SCI Greene for retaliation purposes was the reason his grievance was delayed. ECF No. 119-1 at 6. In his appeal to the facility manager on July 10, 2019, Plaintiff states that when he was transferred to SCI Greene upon his discharge from the hospital, he was denied access to any writing materials until May 31, 2019 due to his placement in the POC and then RHU. ECF No. 119-1 at 9. An adequate investigation of the grievance would have revealed these extenuating circumstances which prevented the timely filing of the initial grievance and therefore a reasonable extension of time for filing should have been permitted. See DC-ADM 804, § 1.C.2 Note. At no stage of the grievance process did the grievance coordinators, the facility manager, or the SOIGA consider the reason for the delay in Plaintiff filing his grievance, despite having knowledge of his hospitalization following the event and being informed by Plaintiff of the reason for the delay. Rejecting the grievance without even considering the circumstances for Plaintiff's delay in filing the grievance, in essence, made the grievance process unavailable to Plaintiff. As such, the Court finds that Plaintiff has fully discharged the exhaustion requirements under the PLRA. Moreover, by making the grievance process unavailable to Plaintiff, the other requirements of Section 1.A.11 of DC-ADM 804 have been excused.
In the alternative, Defendants submit that even if Plaintiff would have filed his grievance in a timely fashion and properly appealed to Final Review, his grievance still lacks the identities of most of the named Defendants in this matter and any request for monetary compensation, and these defects would have remained even if the grievance was timely filed. The Court rejects this argument as it assumes that Plaintiff would have been physically and mentally able to file a timely grievance which is belied by the record. Moreover, the Court notes that although DC-ADM 804, § 1.A.11.b requires the inmate to identify the individuals directly involved in the event in the grievance, Plaintiff's statement in the initial grievance adequately identifies the corrections officers, both named and unnamed, directly involved in the alleged assault. He describes the involvement of the unnamed corrections officers which was adequate to put those corrections officers who responded to the event on notice of Plaintiff's complaint. Their identities although unknown to Plaintiff at the time he filed his initial grievance were easily ascertainable by the grievance coordinator or her designee from the video of the event and the statements of the named corrections officers and other staff members present at the event. Therefore, the Court rejects Defendants' argument that Plaintiff failed to exhaust his administrative remedies as to the unnamed corrections officers in grievance no. 801342. As to the requirement in DC-ADM 804 § 1.A.11.d that the inmate request the specific relief sought in his initial grievance, the Court notes that Plaintiff was severely handicapped in his ability to file a grievance due to his hospitalization (where his right dominant hand was handcuffed to the bedrail the entire time) and lack of access to writing materials and grievance forms after his discharge and transfer to SCI Greene. The Court will not speculate as to whether Plaintiff would have included a request for monetary relief in a timely filed grievance since Plaintiff was prevented by DOC staff from filing a grievance and had to rely on others outside the prison to draft it for him. The Court notes that the handwriting on the grievance form appears to be different than the handwriting on Plaintiff's court submissions and page two of his grievance is actually typewritten. Plaintiff would not have access to a typewriter or computer in the RHU. Thus, the Court does not find any merit to Defendants' alternate argument.
Accordingly, the Court recommends that Defendants' motion for summary judgment based on a failure to exhaust administrative remedies be denied.
In his brief in opposition Plaintiff argues in the alternative that some authority exists, although not controlling, which suggests that an investigation by BII pursuant to DC-ADM 001 is sufficient to exhaust administrative remedies under the PLRA in certain circumstances. However, in a precedential opinion issued on August 2, 2023, the Court of Appeals ruled that “ADM 804 is the exclusive means of exhaustion” and that “[w]hile ADM 001 produces investigative reports that may help the ADM 804 process along, among other purposes, it does not replace ADM 804.” Prater v. Dep't of Corrs., Nos. 19-1732, 20-2254, & 20-2897,___ F.4th___, 2023 WL 4921855, at *13 (3d Cir. Aug. 2, 2023). Accordingly, Plaintiff's alternative argument lacks merit.
3. Plaintiff's Eight Amendment Claims
Plaintiff is pursing claims against Defendants McIntyre, Meese, Newman, Gray, Sheetz, Pletcher, Weekly, Barkley, Halkias, Walters, and Shanaberger for a violation of his rights under the Eighth Amendment on two grounds: excessive force and cruel and unusual punishment. Defendants in their brief argue that Plaintiff ‘s claim for deliberate indifference should also be dismissed; however, the Court does not see that Plaintiff has alleged such a claim. It's analysis relative to this is set forth below.
As Defendants admit in their brief, it is not clear from Plaintiff's Amended Complaint what specific facts amount to a cruel and unusual punishment claim. ECF No. 108 p.15. It is not clear to the Court that Plaintiff even alleged a claim for cruel and unusual punishment. See Count One where he only states a claim for excessive force. ECF No. 82 at 23. Even if Plaintiff had not waived this claim, it is merely duplicative of his use of excessive force claim under the Eighth Amendment as use of excessive force is actually one of the bases for establishing a violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment. Indeed, the same test used to establish excessive force is applied to determine whether the infliction of pain was cruel and unusual. See, e.g., Whitley, 475 U.S. at 319 (under the Cruel and Unusual Punishments Clause, inmates are protected against “unnecessary and wanton infliction of pain.”) And Plaintiff has not asserted any new facts to support a separate claim. Thus, Plaintiff's cruel and unusual punishment claim is adequately addressed under his excessive force claim
As a preliminary matter, Plaintiff has advanced the argument that Defendants McIntyre and Meese have not previously moved to dismiss the Eighth Amendment claims of excessive force, cruel and unusual punishment, and deliberate indifference and therefore they have waived their defense to these claims at the summary judgment stage. ECF No. 117 at 43. Plaintiff's argument lacks merit. Defendants McIntyre and Meese are not required to file a motion to dismiss in order to be able to file a motion for summary judgment on those claims. Moreover, Defendants filed an Answer to Plaintiff's Amended Complaint denying Plaintiff's allegations set forth in support of his claim in Count I for assault, severe mental anguish and Eighth Amendment (Excessive Force). ECF No. 84 at 10. Therefore, Defendants have not waived their defense to his Eighth Amendment claims.
a. Excessive Force/Cruel and Unusual Punishment
Plaintiff alleges that on April 6, 2019, he was assaulted and subjected to use of excessive force by Defendants McIntyre, Meese, Newman, Gray, Sheetz, Pletcher, Weekly, Barkley, Halkias, Walters, and Shanaberger for no apparent reason while walking the outside track at SCI Fayette in violation of the Eighth Amendment. Under the Cruel and Unusual Punishments Clause of the Eighth Amendment, inmates are protected against the “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). In the context of an excessive force claim, the core judicial inquiry of whether the measure taken inflicted unnecessary and wanton pain and suffering “is that set out in Whitley: whether force was applied in a good-faith effort to maintain and restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992); Whitley, 475 U.S. at 320-21. Although the Eighth Amendment protects inmates against cruel and unusual punishment, it “does not protect an inmate against an objectively de minimis use of force.” Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002). Not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. However, “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated ... whether or not significant injury is evident.” Id.
In determining whether a defendant has used excessive force in violation of the Eighth Amendment, courts look to several factors including: “(1) the need for the application of force; (2) the relationship between the need and the amount of force used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts to temper the severity of the forceful response.” Brooks v. Kyler, 204 F.3d 102,106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321)(internal quotations omitted).
In the situation where the events at issue have been captured on videotape, and there are no allegations or indications that the videotape was doctored or altered in any way, and no contention that what it depicts differs from what actually happened, the court must view the facts in the light depicted by the videotape. Scott v.Harris, 550 U.S. 372, 380-81 (2007)(finding that in assessing the summary judgment evidence the non-movant's version of the events was so utterly discredited by the videotape that no reasonable juror could have believed him). In McDowell v. Sheerer, the U.S. Court of Appeals for the Third Circuit similarly held that “where there are video recordings of the incident in question, we need not adopt the non-movant's version of the facts if the recording ‘blatantly contradict[s]' the non-movant's version ‘so that no reasonable jury could believe it.'” 374 Fed.Appx. 288, 291-92 (3d Cir. 2010) (quoting Scott, 550 U.S. at 380). Moreover, where a videotape “refutes an inmate's claims that excessive force was used against him, and the video evidence does not permit an inference that prison officials acted maliciously and sadistically, summary judgment is entirely appropriate. Smalls v. Sassaman, Civ. A. No. 1:17-CV-2237, 2019 WL 4194211, at *8 (M.D. Pa. Sept. 4, 2019) (citing Tindell v. Beard, 351 F. App'x. 591 (3d Cir. 2009)); see also McCullon v. Saylor, Civ. A. No. 3:12-CV-445, 2013 WL 1192778, at *14 (M.D. Pa. Mar. 4, 2013) (quoting Tindell, 351 Fed.Appx. at 596) (holding that “in assessing [excessive force] claims in a case where an encounter is captured on videotape [the court is] mindful of the fact that when ‘videotape refutes [an inmate's] assertion that defendant[s] used excessive force,' or when the ‘video shows that [an inmate] did not suffer any physical distress, and a medical report indicates that he had no visible swelling or injuries,' [the court] should conclude ‘viewing the evidence in the light most favorable to [the inmate that], no reasonable finder of fact could view the video of the incident and determine that [defendants] acted maliciously and sadistically,' and may enter summary judgment on an excessive force claim.”)
Here Defendants submit that the evidentiary record does not comport with Plaintiff's assertions that he was assaulted and subjected to the use of excessive force by several corrections officers for no apparent reason while walking the outside track. Defendants rely on the Video of the incident, as well as the BII investigation which included interviews of the staff involved in the incident and medical treatment of Plaintiff, Employee Reports of Incident, medical records, and Plaintiff's misconducts. On this evidence, Defendants submit that they are entitled to summary judgment. While some of this evidence supports Defendants' position and might well lead to a verdict in their favor at trial, Defendants' version of the events is controverted by the Video and facts adduced by Plaintiff.
While the Defendants assert a reason for stopping Plaintiff on the track, the Video raises questions of fact as to whether Plaintiff actually received an unknown object (i.e., the suspected contraband) from the two inmates in the yard. As to the need for force, Plaintiff disputes that he was not cooperating with Defendants McIntyre and Meese. The Video shows that Plaintiff is taken down to the ground almost immediately after they confronted him. Also, the Video raises questions as to whether Plaintiff was trying to flee from Defendants McIntyre and Meese as he appears to turn sideways not run away, while Defendant Meese steps up directly behind Plaintiff.
As to the relationship between the need and amount of force necessary, the Video creates questions of fact as to whether the amount of force used was necessary under the circumstances. Although Plaintiff is observed struggling on the ground with Defendants McIntyre and Meese, it cannot be determined from the Video if he is struggling because he is resisting being handcuffed or because he is having difficulty breathing due to the alleged choke hold that Defendant Meese is accused of using on Plaintiff. Defendant McIntyre admits striking and punching Plaintiff several times to get him to stop biting Defendant Meese which Plaintiff denies as impossible due to the choke hold. Plaintiff's alleged biting of Defendant Meese is not visible on the Video. At one point, there are six or seven corrections officers surrounding or piled on top of Plaintiff, some of whom are allegedly beating him and twisting his left arm (which eventually snaps and breaks), although the beating and twisting is not visible on the Video.
In analyzing the relationship between the need for force and the force used, the Whitley Court emphasized that simple overreaction by an officer is not enough to establish an Eighth Amendment violation:
[I]t is obduracy and wantonness, not inadvertence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.475 U.S. at 319. Thus, it is “malicious and sadistic force,” not merely “objectively unreasonable force,” that is needed to establish a violation. Here, a reasonable jury could conclude that at some point Defendants crossed the line from using objectively unreasonable force to maintain discipline to maliciously and sadistically using force to inflict pain.
As to the extent of the injuries inflicted on Plaintiff, it is undisputed that he suffered severe injuries to his left arm requiring transport to a hospital in Pittsburgh where he underwent surgery to repair his elbow including the insertion of plates and screws, and sustained radial nerve palsy, and remained hospitalized for 13 days. Thus, Plaintiff's injuries were not de minimus and as such raise a question of fact as to whether the amount of force used was necessary to maintain discipline or done maliciously and sadistically to inflict harm.
Unlike Whitley, the situation here did not involve an application of force to restore prison unrest. Thus, there was not an urgent need to restore normal prison operations or make hasty decisions about the amount of force needed if any. The record does not establish that very real threats of unrest were present to any inmates or that Plaintiff was threatening the safety of Defendants McIntyre and Meese when they first encountered Plaintiff. Although Defendants may have been justified in using some amount of force to ensure their safety while struggling to get Plaintiff handcuffed, the sheer number of corrections officers present and aiding in this endeavor, along with the use of O.C. spray on Plaintiff, substantially reduced the threat to the safety of the responding corrections officers.
Finally, as to the Defendants' efforts to temper the severity of the forceful response, a reasonable jury could find that the actions of Defendants McIntyre and Meese caused the situation to quickly escalate and therefore had to prematurely resort to force. They claim that they ordered Plaintiff to remove his hands from his pockets, that he initially complied, but then put his left hand back in his pocket and refused to remove it. Plaintiff denies that they ordered him to remove his hand. Up to this point Defendants and Plaintiff appear to be conversing peacefully. Defendant McIntyre then reaches for Plaintiff's left wrist and Plaintiff turns sideways. Immediately thereafter Defendants tackled Plaintiff to the ground. Plaintiff does not appear to be attempting to flee on the Video. Under these circumstances, a question of fact exists as to whether Defendants were justified in resorting to force as quickly as they did.
As to Defendants Gray, Sheetz, Pletcher, Weekly, Barkley, Halkias, Walters, and Shanaberger, the record shows that they each assisted in restraining and/or handcuffing Plaintiff in the yard and used force to do so. ECF No. 110-1 at 18, 71 (Shanaberger); at 20, 74-74 (Gray & applied O.C. spray); at 26, 81 (Weekly); at 32, 84 (Barkley); at 42 (Halkias); at 48 (Pletcher); at 52, 65-66 (Sheetz). The record also shows that Defendants Pletcher and Walters escorted Plaintiff to medical. ECF No. 110-1 at 48; ECF No. 82 at 15, ¶ 27. Plaintiff contends that upon arriving at medical, Shift Commander Newman was waiting outside of medical and he, along with Defendants Pletcher and Walters, took Plaintiff to an isolated eye examination room where there was no camera and he was physically and verbally assaulted by these three Defendants while handcuffed even though he was not resisting. Pl.'s CCMF at ¶ 22. Plaintiff further contends that the physical and verbal abuse only stopped when RN Heisler came and requested that Plaintiff be moved to the main triage room so she could examine him. Id. Thus, the Court finds that based on this evidence, a question of fact exists as to whether Defendants Pletcher, Walters and Newman used excessive force on Plaintiff while in medical in violation of the Eighth Amendment Cruel and Unusual Punishments Clause.
Plaintiff references security camera footage showing Defendant Newman, Disk #3 or #4 of the discovery videos, but these videos are not part of the record before the Court.
Accordingly, the Court finds that a reasonable jury could find that the record evidence, when viewed in the light most favorable to the Plaintiff, supports a reasonable inference of wantonness in the infliction of pain by the above Defendants. Accordingly, the Court recommends that summary judgment be denied as to Plaintiff's Eighth Amendment claim of excessive force against Defendants McIntyre, Meese, Newman, Gray, Sheetz, Pletcher, Weekly, Barkley, Halkias, Walters, and Shanaberger.
b. Deliberate Indifference
Defendants request summary judgment on Plaintiff's deliberate indifference claim based on allegations in his Amended Complaint, and Plaintiff raises a claim of deliberate indifference to serious medical needs for the first time in his brief in opposition to summary judgment, likely in response to Defendants' arguments. See ECF No. 117 at 32. In his opposition brief, Plaintiff submits that Defendants Newman, Walters, and Pletcher escorted Plaintiff past triage, denying him medical treatment, and took him to a secluded eye exam room where they physically and verbally assaulted him. ECF No. 117 at 42. Still wearing a hood and handcuffed, Plaintiff contends that he asked for help, gasped for air, and begged them to stop beating him. Id. Plaintiff argues that under Estelle, deliberate indifference to a prisoner's serious medical needs is cruel and unusual punishment and violates the Eighth Amendment. Id. at 45, 47. He also cites Piralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) for the proposition that prison officials can be liable for deliberate indifference to a prisoner's medical needs if they knowingly fail to respond to an inmate's request for help. Id. at 47-48. By not taking him directly to triage, Plaintiff maintains that Defendants Rhodes and Newman denied, delayed, and obstructed him from receiving medical treatment. Id. at 68.
Defendants move for summary judgment on Plaintiff's deliberate indifference claim arguing that it is unclear against which Defendants he asserts this claim, nor does the Amended Complaint set forth any facts in support of this claim. As such, Defendants submit they are entitled to summary judgment in their favor on this claim. However, Defendants' position is not supported by the parties' submissions.
Plaintiff does identify Defendants Newman, Walters, Pletcher, and Rhodes in his opposition brief as the Defendants who denied him immediate medical treatment. Id. at 42, 6768. In paragraph 27 of his Amended Complaint, Plaintiff sets forth that Defendants Newman, Walters, and Pletcher escorted him past triage and into an isolated eye exam room to assault him. ECF No. 82 at 15. Nonetheless, the Amended Complaint does not assert a claim for deliberate indifference to serious medical needs. Therefore, the Court finds that Plaintiff has waived his claim for deliberate indifference to serious medical needs as he is raising it for the first time at the summary judgment stage. See Shingara v. Skiles, Civ. A. No. 1:94-CV-0621, 2007 WL 210800, at *9 (M.D.Pa. Jan. 24, 2007)(citing Protocol Electronics, Inc. v. Transolutions, Inc., No. Civ. 03-4162, 2005 WL 1106132, at *5 (D.N.J. Apr. 29, 2005)(“[I]t is impermissible, without leave of court, to raise new claims for the first time on summary judgment.”)). Accordingly, the Court recommends that Defendants' motion for summary judgment be granted in favor of Defendants as to Plaintiff's deliberate indifference claim.
4. Supervisory Liability & Concealment Claims
In Count II of the Amended Complaint, Plaintiff has sued Defendants Allen, House, Rhodes, Newman, and Barnacle for supervisory liability and concealment in violation of his rights under the Eighth Amendment. ECF No. 82 at § IV, ¶¶ 49-56. In the Amended Complaint, Plaintiff alleges that they were all in supervisor positions and failed to “stop, intervene, instruct, supervise, control, or discipline on an ongoing basis [the correctional officer defendants] to refrain from the assault and inflicted severe injury and mental anguish upon Plaintiff ....” Id. at ¶ 53. Defendants seek summary judgment on these claims arguing that Plaintiff has failed to establish that any of these Defendants were liable in any supervisory capacity or that they either individually or in concert concealed violations of his rights.
a. Supervisory Liability
To establish personal liability against a defendant in a § 1983 action, a defendant “must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). “In a § 1983 suit or a Bivens action - where masters do not answer for the torts of their servants - the term ‘supervisory liability' is a misnomer.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Instead, each Government official, regardless of his or her title, is only liable for his or her own misconduct. Id. Moreover, “it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
The Third Circuit Court of Appeals has identified two general instances in which the conduct of a supervisor-defendant or the policies/procedures of a supervisor-defendant may constitute personal involvement, thus warranting a finding of individual supervisory liability for a constitutional tort. First, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
Here there is no evidence in the record from which a reasonable jury could find that that Defendants Allen, House and Barnacle have supervisory liability for any constitutional torts committed by the corrections officers Defendants under this theory. The record is devoid of any evidence that Defendants Allen, House and Barnacle either personally participated in the incident in the yard, directed the corrections officers to use excessive force during their encounter with Plaintiff, or, as the person in charge, had knowledge of and acquiesced in the corrections officers' alleged unconstitutional conduct. Indeed, the record shows that neither Allen, House nor Barnacle were “persons in charge” of the subordinate corrections officer Defendants such that they would have contemporaneous knowledge of and would have acquiesced in the alleged unconstitutional conduct. Moreover, the record shows that Defendants Allen, House, and Barnacle only became aware of the alleged assault of Plaintiff after it occurred. Specifically, the record shows that Defendant Barnacle supervised the investigation of Plaintiff's allegations after the incident occurred.
As to Defendants House and Allen, the record shows that they were personally involved in the review and rejection of Plaintiff's grievance related to the incident. Thus, Plaintiff need not prove supervisory liability to establish personal involvement by Defendants Allen and House at least as to the review and rejection of Plaintiff's grievance. However, these actions alone do not give rise to a constitutional tort. As a matter of law, Plaintiff has no private right of action against Defendants Allen and House for the alleged violation of the grievance procedures set forth in DC-ADM Policy 804. See Glenn v. DelBalso, 599 Fed.Appx. 457, 459 (3d Cir. 2015)(“Access to prison grievance procedures is not a constitutionally-mandated right, and allegations of improprieties in the handling of grievances do not state a cognizable claim under [section] 1983); Booth v. King, 346 F.Supp.2d 751, 761 (E.D.Pa. 2004)(“[A]lthough prisoners have a constitutional right to seek redress of grievances as part of their right of access to courts, this right is not compromised by [prison officials' failure] to address these grievances. Prisoners are not constitutionally entitled to a grievance procedure and the state creation of such a procedure does not create a liberty interest requiring procedural protections under the Fourteenth Amendment.”).
To the extent Plaintiff is attempting to argue that Defendants Allen and House had supervision over any of the corrections officers Defendants, there is no evidence in the record to support this argument. Moreover, Defendant Allen's and Defendant House's mere participation in the grievance process is insufficient to confer knowledge of, and acquiescence to, a constitutional violation. Mearin v. Swartz, 951 F.Supp.2d 776, 782 (W.D.Pa. 2013); see also Sears v. McCoy, No. 1:17-cv-00869, 2017 WL 4012658, at *3 (M.D. Pa. Sept.12, 2017) (“the filing of a grievance, participation in ‘after-the-fact' review of a grievance, or dissatisfaction with the response to an inmate's grievance does not establish the involvement of officials and administrators in any underlying constitutional deprivation.”).
Thus, no reasonable jury could find Defendants Allen, House and Barnacle are liable for the constitutional torts of the corrections officer Defendants under the first supervisory liability theory.
On the other hand, Plaintiff submits that the Video shows that Defendant Rhodes arrived on scene at the point where he has been handcuffed, not moving and remains pinned down by Defendants Pletcher, Halkias, Shanaberger, and Barkley while Defendant McIntyre is punching Plaintiff in the face, head, ears, neck, nose, mouth and back, while Defendant Meese still has him in a military style choke hold, and Defendants Weekly and Sheetz are kneeled down and striking Plaintiff, while Defendant Rhodes looks on. ECF No. 117 at 61-62; see also Video at 19:35:33-19:37:00. Defendant Rhodes appears to be giving orders to the corrections officers Defendants at various points during their encounter with Plaintiff. Video, id. and ECF No. 110-1 at 50. Plaintiff contends that he informed Defendant Rhodes that he was in a lot of pain due to the injury to his left arm and requested help but Rhodes ignored his pleas. ECF No. 117 at 62-63. Plaintiff further contends that Defendant Rhodes allowed Plaintiff to be placed in a military style shoulder lock with his neck pushed down and his arms jerked up to inflict unnecessary pain. Id. at 63. In addition, Plaintiff contends that Defendant Rhodes allowed Plaintiff to be taken into a secluded exam room were he was physically and verbally assaulted and did not resist. Id. at 65, 67. In so doing, Defendant Rhodes denied, delayed and obstructed Plaintiff's receipt of medical care. Id. at 68. Thus, sufficient evidence exists from which a jury could infer that Defendant Rhodes participated in the incident and/or had knowledge of the amount of force being used and acquiesced to it. Therefore, the Court recommends that summary judgment be denied as to Defendant Rhodes on Plaintiff's supervisory liability claim.
Plaintiff also contends that Defendant Rhodes allowed Defendant Sheetz to ram his head into the fence but the Video footage does not appear to support this contention. Video at 19:38:03-26.
As to Defendant Newman, Plaintiff contends that he was assaulted a second time while in handcuffs in an isolated eye exam room when he first arrived at medical and that shift commander Newman and Lt. Rhodes allowed this to happen. Id. at 67. Plaintiff claims he was escorted to medical by Defendants Pletcher and Walters where Defendant Newman was waiting for him. Plaintiff further contends that Defendants Newman, Pletcher and Walters physically and verbally assaulted him in the isolated exam room and they only stopped when the nurse arrived to exam him. In so doing, Defendant Newman and Rhodes denied, delayed and obstructed Plaintiff's receipt of medical care. Id. at 68. As such, Plaintiff contends that he has shown that Defendant Newman personally participated in the alleged violation of his constitutional rights and therefore summary judgment in favor of Defendant Newman should be denied. The Court agrees. Plaintiff has adduced sufficient evidence from which a reasonable jury could find that Defendant Newman participated in the incident and/or had knowledge of the amount of force being used and acquiesced to it. Therefore, the Court recommends that summary judgment be denied as to Defendant Newman on Plaintiff's supervisory liability claim.
Plaintiff contends that the CCTV security camera in the medical department would have captured his placement in the isolated exam room and the appearance of a nurse sometime after that, and he requested this footage but Defendants failed to provide it to him. ECF No. 117 at 67.
Plaintiff may also prove supervisory liability under a second theory-supervisory liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). In order to establish a claim for supervisory liability pursuant to this theory, Plaintiff must point to evidence that shows the supervisors had notice that their policy or practice created an unreasonable risk of a constitutional violation by a subordinate and “the supervisor's failure to change the policy or employ corrective practices is a cause of the unconstitutional conduct.” See Argueta v. U.S. Immigr. & Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011). Typically, that notice would involve a prior incident or incidents of misconduct by those working under the supervisor and notice of that misconduct to the supervisor. See id. at 74.
In order to establish supervisory liability, the plaintiff must identify a specific supervisory practice or procedure that the defendant failed to employ, and show that “(1) the existing custom and practice without that specific practice or procedure created an unreasonable risk of [harm], (2) [defendant] was aware that this unreasonable risk existed, (3) [defendant] was indifferent to that risk, and (4) [plaintiff's] harm] resulted from [defendant's] failure to employ that supervisory practice or procedure.” Id. The Sample court emphasized that “it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Id. Rather, a plaintiff must point to specific acts or omissions of the supervisor in the record that evidence deliberate indifference. Id.
As to Defendants Allen and House, Plaintiff submits that with clear knowledge of the misconduct, they “actively concealed the misconduct by obstructing his right to grieve the misconduct or, in other words, by rejecting the grievance as untimely,” and therefore “acquiesced in the subordinate officers' unconstitutional conduct in order to send a message that this degree of force and abuse would be tolerated, that is a practice, custom and behavior at SCI-Fayette.” ECF No. 117 at 57, 60-61. Plaintiff's argument misses the mark. First, in order to prove supervisory liability under the second theory, Plaintiff must point to evidence that shows that (1) the corrections officer Defendants were subordinates of Defendants House and Allen, (2) that there were prior incidents of inmate abuse of a similar nature committed by the corrections officer Defendants, and (3) that Defendants House and Allen had knowledge of the past incidents of inmate abuse and were indifferent to this risk of harm to inmates. Plaintiff has failed to prove any of these elements. Rather, Plaintiff merely points to what happened to him as a practice and custom at SCI-Fayette, which may have relevance to future supervisory liability claims based on a pattern and practice of inmate abuse. However, a current claim of inmate abuse cannot establish a past pattern or practice of inmate abuse sufficient to support a finding of deliberate indifference to a known risk of harm, and thus, supervisory liability. As such, the Court finds that a reasonable jury could not find that Defendants Allen and House are liable for the constitutional torts of the corrections officer Defendants under a supervisory liability theory.
As to Defendant Barnacle, Plaintiff contends that in his capacity as Director of the BII he was charged with personally investigating allegations of inmate abuse by corrections officers or assigning the investigation to an investigator, and with disciplining the officers for any misconduct. ECF No. 117 at 69. However, Plaintiff contends that Defendant Barnacle “knowingly, recklessly, negligently, and/or with callous disregard and/or deliberate indifference to [his] rights, failed to stop, intervene, instruct, supervise, control, or discipline the corrections officers on an ongoing basis to refrain from the assault . . . in deprivation of [his] constitutional rights under the Eighth Amendment.” Id. at 70. In addition, Plaintiff contends that Defendant Barnacle “was privy to, had knowledge of, or had he exercised his duties to instruct, supervise, control and discipline on an ongoing basis he would have known that wrongs were done.” Id.
Plaintiff's argument at its core is that the unconstitutional assault on him by the corrections officer Defendants would not have occurred if Defendant Barnacle would have conducted a proper investigation and disciplined the responsible corrections officers. Plaintiff contends that by not disciplining the corrections officers, Defendant Barnacle acquiesced in the subordinate officers' conduct and sent a clear message that this degree of force in DOC facilities will be tolerated. Id. at 71-72. However, as noted by the Sample court, this argument is insufficient to prove deliberate indifference. Rather, the focus of supervisory liability is on knowledge of past incidents of misconduct that create a risk of harm and the supervisor's failure to take corrective action to prevent future risks of harm. Here Plaintiff has failed to point to any evidence that would show that numerous prior incidents of inmate abuse occurred, that Barnacle knew about these prior incidents and was indifferent to those risks of harm, and that Plaintiff's abuse resulted from Barnacle's failure to discipline subordinate officers for misconduct that occurred in the past. As such, the Court finds that a reasonable jury could not find that Defendant Barnacle is liable for the constitutional torts of his subordinates under a supervisory liability theory.
Accordingly, the Court recommends that summary judgment be granted in favor of Defendants Allen, House and Barnacle as to Plaintiff's claim of supervisory liability but denied as to Defendants Rhodes and Newman.
b. Concealment
In his Amended Complaint, Plaintiff has asserted a concealment claim against Defendants Allen, House, Newman, Rhodes and Barnacle. In support of their motion for summary judgment, Defendants treat Plaintiff's concealment claim as one for civil conspiracy. Plaintiff does not address this argument, but rather, sets forth mostly conclusory, unsupported statements of concealment.
Although the Court is uncertain that Plaintiff is advancing a conspiracy claim, the Court agrees with Defendants that Plaintiff has failed to produce any evidence of the elements of a conspiracy claim. See Capogrosso v. The Supreme Court of the State of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009)(“[T]he rule is clear that allegations of a conspiracy must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action.”). To demonstrate agreement, the plaintiff must establish that “the state actors named as defendants in the[ ] complaint somehow reached an understanding to deny [the plaintiff] his rights.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018)(quoting Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993)). In the absence of direct proof of an agreement:
[a] “meeting of the minds” or “understanding or agreement to conspire” can be “infer[red]” from circumstantial evidence, Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir. 2008). Such circumstantial evidence may include that the alleged conspirators “did or said something ... to create an understanding,” “the approximate time when the agreement was made, the specific parties to the agreement[,] the period of the conspiracy, or the object of the conspiracy.” Great W. Mining [& Mineral Co. v. Fox Rothschild LLP], 615 F.3d [159,] 178-79 [(3d Cir. 2010)](citations omitted).Id. at 295. The Court finds that no reasonable jury could infer any “meeting of the minds” from the record evidence here.
Concealment of “a constitutional violation, including use of excessive force, does not amount to a separate constitutional violation unless the victim of the concealment was deprived of his right of access to the courts.” Swiggett v. Upper Marion Twp., Civ. A. No. 08-2604, 2008 WL 4916039, *4 (E.D. Pa. Nov. 17, 2008)(citing Ingram v. Jones, 1997 WL 323538, at *2 (N.D.Ill. June 9, 1997), citing Vasquez v. Hernandez, 60 F.3d 325, 329 (7th Cir.1995)); see also Jutrowski, 904 F.3d at 294-95 (citing Vasquez and Swiggett, supra). Here Plaintiff does not assert that the alleged concealment impeded his right of access to the courts. Moreover, as noted above, the Court found that Plaintiff satisfied the exhaustion requirements of the PLRA and therefore Defendants' rejections of his grievance did not impede his right to have his claims redressed in this Court. As such, Plaintiff's concealment claims fail as a matter of law.
Notwithstanding the fact that Plaintiff has failed to establish a cognizable concealment claim, the record is devoid of any evidence to show that Defendants Allen, House, Newman, Barnacle, or Rhodes attempted to conceal the assault alleged by Plaintiff in his grievance. Even though his grievance was rejected as untimely, the record shows that Defendants House and Allen forwarded it to the BII for investigation. And there is no evidence in the record that BII buried the investigation, in fact, the evidence shows otherwise. Thus, although Plaintiff is dissatisfied with the outcome, there is simply no basis in the record for finding that any of the Defendants actively concealed the incident.
Improperly rejecting a grievance is not, in itself, a constitutional violation, see Glenn, 599 Fed.Appx. at 459.
Accordingly, the Court recommends that summary judgment be granted in favor of Defendants Allen, House, Barnacle, Rhodes and Newman on Plaintiff's concealment claim.
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that Defendants' Motion for Summary Judgment be granted in part and denied in part. It is respectfully recommended that summary judgment be denied as to Plaintiff's Eighth Amendment claims for excessive force and cruel and unusual punishment against Defendants McIntyre, Meese, Newman, Gray, Sheetz, Pletcher, Weekly, Barkley, Halkias, Walters, and Shanaberger. It is further recommended that summary judgment be granted in favor of all Defendants on any deliberate indifference claim Plaintiff may now be arguing. It is further recommended that summary judgment be denied on Plaintiff's supervisory liability claim against Defendants Rhodes and Newman and granted on that claim in favor of Defendants House, Allen, and Barnacle. It is further recommended that summary judgment be granted in favor of Defendants Allen, House, Barnacle, Newman, and Rhodes as to Plaintiff's concealment claim. Finally, it is recommended that Defendants' summary judgment motion as to Defendant M. Capozza be denied as moot.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.