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Conklin v. Todd

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Nov 8, 2019
Case No. 2:16-cv-1722 Pittsburgh (W.D. Pa. Nov. 8, 2019)

Opinion

Case No. 2:16-cv-1722 Pittsburgh

11-08-2019

TRAVIS CONKLIN, Plaintiff v. MARK TODD, Defendant


SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 61] MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. Recommendation

It is respectfully recommended that Defendant's Motion for Summary Judgment [ECF No. 61] be DENIED. II. Report

A. Background

Plaintiff Travis Conklin initiated this action on November 15, 2016, while incarcerated at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh). ECF No. 1. In his amended complaint, filed on March 9, 2018, Conklin alleges that corrections officer Mark Todd violated his constitutional rights as secured by the Eighth Amendment to the United States Constitution. ECF No. 39. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983.

Conklin's amended complaint also named corrections officer Jeffrey Clem as a defendant. However, the Court dismissed Clem from this action on September 7, 2018, due to Conklin's failure to prosecute. ECF Nos. 42, 43.

The Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331. This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).

Conklin's claims stem from an incident on August 29, 2016, in which Todd allegedly utilized excessive force against Conklin while escorting him to the prison's "roof yard" for recreational time. During his deposition, Conklin testified to the following sequence of events:

I signed up for yard. Officer Mark Todd and CO Clem escorted me or stripped me out of my door, did the strip search and stuff like that, to proceed to escort me to yard.

At that time I was having problems with various inmates and stuff ... And I got handcuffed behind, which is normal procedures. And they put a tether on me and stuff so that they could secure me. But they do that with every inmate, not just me.

But I'm escorted off the pod with Officer Todd and CO Clem. And I get out of the yard. They tried to [put] me in the second cage on the left-hand side. The third cage on the left had an inmate ... who on prior occasions has spit on me, thrown urine and stuff like that on me.

So being that me and him were having issues, to save those issues when they went to put me in that second cage, I asked Officer Todd - I said, I don't want to be in this cage. I said, to save problems and confrontations, that you guys might have to deal with, I would rather not be in this cage. ... I said, can I go in that first cage that's open to save problems?

And CO Clem proceeded to stand there at the cage area, where I wanted to go. So it was my understanding, okay, well, Clem's letting me go. So [per] policy would have followed the last order given.

So when I stood and turned around and looked at Clem and I seen Clem was standing there by the cage and no longer by the door, that was my - my notion that he's letting me go to that first cage.

So as I proceeded towards the first cage, I remember the tether being pulled on and stuff. And after that my memory goes, I don't know
where. Shortly after I get pulled and tethered on -. All I remember is the tether being pulled on, what I was assumed my shirt being held.

And next thing I realized I'm in the second cage on the left with my head hitting off of the door of the cage. And at that time my glasses started to fall off my face.

And when I notified CO Todd that my glasses were falling off of my face, he said, here, let me put them back - push them up on your face for you.

I said, don't worry about it, I'll get them when I'm done, when I get in the cage. And pretty much after that I was secure in the cage.
ECF No. 64-4 at 12-14. Conklin testified that he did not notice any pain immediately following the incident, but that he later experienced pain in both shoulders "[a]nd it's been an ongoing continuous issue since." Id. at 15-16. Conklin's medical records corroborate that he did not seek treatment for any shoulder issues until October 12, 2016, at which point medical staff observed no visible injury. ECF No. 64-5 at 2. On October 18, 2016, a physician's assistant prescribed Motrin for his shoulder pain while noting that Conklin had "been seen many times by this provider" since the alleged incident "and has never mentioned this injury." Id. at 3. Conklin continued to pursue treatment for his shoulder pain during medical visits on November 15, 2016, and November 29, 2016. Id.

In a sworn declaration, Todd denies that he "use[d] excessive force or assault[ed] inmate Conklin in any way." ECF No. 64-6 ¶ 12. According to Todd, when Conklin "abruptly" turned to head towards the first empty yard cage, Todd "did not know what [Conklin's] intentions were so [Todd] pulled his tether and redirected him into the cage he was originally assigned to enter." Id. ¶ 4. Todd maintains that he "simply redirected him for the safety of inmate Conklin, the surrounding inmates, staff and myself." Id. Todd characterized the incident as "so minor" that he did not believe that he had even used force, let alone excessive force. Id. ¶ 10.

Conklin filed a grievance over the incident, prompting an investigation. ECF No. 64-3. After reviewing security footage of the incident and interviewing several witnesses, the investigator, Security Lieutenant Jayson Lickenfelt, credited Conklin's claim "that he was thrown into the A300 yard cage by CO1 Mark Todd" and that Todd "aggressively forced Inmate Conklin into the yard cage." Id. The investigator rejected Todd's statement that "there [was] no use of force other than redirecting [Conklin] to another cage" as "untrue." Id. Based on his findings, the investigator upheld Conklin's grievance, substantiated Conklin's allegation of abuse, and recommended administrative action against Todd for failing to inform his supervisor that an unplanned use of force had occurred. ECF No. 71-1; ECF No. 64-3.

The record also contains security footage of the incident. ECF No. 64-1. After carefully reviewing a video of that footage, the Court finds that the following description of the incident is accurate in all respects:

0721.32 - Video starts

0721.48 - CO1 Todd and CO1 Clem are escorting Inmate Conklin to the A300 Yard

0721.57 - Inmate Conklin walks away from CO1 Todd and towards CO1 Clem. CO1 Todd pulls Inmate Conklin backwards utilizing the tether. Inmate Conklin appears to be walking towards CO1 Clem.

0721.59 - CO1 Todd then aggressively redirects Inmate Conklin by shoving him into the A300 cage.

0722.05 - Inmate Conklin turns towards CO1 Todd, then appears to try and exit the A300 yard cage. CO1 Todd takes a firm stance and Inmate Conklin moves back into the A300 yard cage.

0722.09 - CO1 Todd then places the tether through the A300 yard cage slot and secures the yard cage door.

0722.13 - Inmate Conklin places his hands through the A300 yard cage slot and CO1 Clem removes the handcuffs from Inmate Conklin.
0722.44 - Both CO1's exit the A300 yard cage.
ECF No. 64-3 at 2 (emphasis in original).

B. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) requires a court to render summary judgment "if the movant shows 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). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

In determining whether a genuine issue of material fact remains for trial, the court must consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). To defeat a properly supported motion for summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings but must identify evidence that demonstrates the existence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Furthermore, the party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The moving party may also rely upon the absence of evidence to support an essential element of the opposing party's claim as a basis for the entry of summary judgment because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

C. Analysis

Conklin's lone claim is that Todd violated his right to be free of cruel and unusual punishment by utilizing excessive force during the incident on August 29, 2016. In an excessive force claim, the "core judicial inquiry" is whether "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). There are several factors that a court examines in determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, including: "(1) 'the need for the application of force'; (2) 'the relationship between the need and the amount of force that was used'; (3) 'the extent of 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 made to temper the severity of a forceful response.'" Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. 312 (1986)).

Where the events at issue have been captured on videotape, the court must consider the videotaped evidence in determining whether there is any genuine dispute as to material facts. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). The court must view the facts in the light depicted by the videotape. See id. (relying on a videotape in assessing summary judgment evidence and admonishing that the lower court "should have viewed the facts in the light depicted by the videotape."). If a review of the 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, 2019 WL 4194211, at *8 (M.D. Pa. Sep. 4, 2019) (citing Tindell v. Beard, 351 Fed. Appx. 591 (3d Cir. 2009)). See also McCullon v. Saylor, 20134 WL 1192778, at *14 (M.D. Pa. Mar. 4, 2013) ("[I]n assessing . . . claims in a case where an encounter is captured on videotape we are 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' . . . we 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 the excessive force claim.") (quoting Tindell, 351 Fed. Appx. at 596).

In this instance, there is no dispute that Todd used force against Conklin. The video substantiates Conklin's testimony that Todd pulled on a tether attached to his arms (which, in turn, were handcuffed behind his back) to force Conklin to change direction. Conklin also testified that Todd caused his head to strike the door of the yard cage when he shoved him through the door. Given the undisputed evidence that some level of force was utilized, the Court must consider each of the Whitley factors to determine whether that force "was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7.

The videotape does not appear to either corroborate or refute Conklin's testimony in this regard. --------

Regarding the first factor, Todd stated that he believed the use of force was necessary because Conklin moved "abruptly" in the wrong direction while being escorted to the cage. Todd indicated that this movement raised concerns as to Conklin's intentions and the safety of other individuals in the area. The video, however, partially refutes this declaration. Although the incident unfolds rapidly, Conklin's movements do not appear to be abrupt, aggressive, or threatening. Rather, it simply appears that he is confused as to where he should go. Conklin also testified that he had verbally requested permission from Todd to enter the first cage and that he believed Clem had non-verbally granted that request. If credited by a jury, Conklin's testimony would refute the implication that Conklin's movements caught Todd off guard and compelled him to respond with force. For each of these reasons, this factor weighs against summary judgment.

The second factor to consider is the relationship between the need for force and the amount of force used. The reasonableness of a particular use of force must be assessed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham v. Connor, 490 U.S. 386, 396-97 (1989). Here, the relatively innocuous nature of Conklin's movements could lead a reasonable factfinder to conclude that the application of any significant force to Conklin's arms and shoulders exceeded that which was necessary to maintain control and discipline. This is particularly true because an individual's arms and shoulders are uniquely vulnerable while handcuffed behind his or her back; the human arm is simply not designed to extend forcefully in that direction. While the Court is sensitive to the difficult task corrections officers face when confronting a perceived threat, a reasonable jury could readily conclude that no such threat existed here, rendering any application of force unreasonable.

The third Whitley factor considers the extent of the injury inflicted. While the lack of significant injury weighs against an excessive force claim, it is not dispositive. Aruanno v. Maurice, 2019 WL 5597653, at *2 (3d Cir. Oct. 30, 2019); Wilkins v. Gaddy, 559 U.S. 34, 38) (2010) ("An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury."). On the one hand, Conklin's failure to seek medical attention for several weeks following the incident suggests that his injuries, if any, were minimal. However, the record also contains evidence that Conklin later sought treatment for his shoulder pain on several occasions. Conklin also supplied testimony that the pain made it difficult for him to sleep. Given this conflicting evidence, Conklin's allegations of serious and ongoing injury present a credibility determination that must be made by a jury. Aruanno, 2019 WL 5597653, at *2 (criticizing the district court for, inter alia, relying on an inmate's failure to seek immediate medical attention in rejecting his claim of excessive force).

The fourth factor the Court must consider is the extent of the threat and the safety of staff and inmates, as reasonably perceived by the responsible officials based on the facts known to them. Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009). As noted above, Conklin did not appear to be acting in a threatening or aggressive manner on the security video. Moreover, Conklin testified that he had verbally requested permission from Todd to enter the first security cage, mitigating the threatening nature of his subsequent movements in that direction. On this record, a reasonable factfinder could conclude that Conklin posed a minimal safety threat at the time that force was applied. Aruanno, 2019 WL 5597653, at *2 ("It is not clear that any force was necessary here, as it is not clear that Aruanno was making any type of physical threat . . .") (emphasis in original).

Finally, the Court considers whether Todd made any efforts to temper the severity of the forceful response. Because the incident unfolded quickly, it is unclear whether Todd made any other attempt - perhaps by way of verbal command - to prevent Conklin from heading for the wrong yard cage. However, Conklin's averment that he asked Todd for permission to move towards the first cage suggests that Todd may have had an opportunity to verbally direct or reason with Conklin before resorting to physical force. This factor, like each of the others, weighs against summary judgment.

In summary, the Court concludes that there is ample evidence to support a finding in Conklin's favor as to each of the Whitley factors. Viewing that evidence in the light most favorable to Conklin, a reasonable jury could conclude that Todd utilized excessive force on August 29, 2016. As such, it is respectfully recommended that Todd's motion for summary judgment be denied. III. Conclusion

For the reasons set forth herein, it is respectfully recommended that Defendants' Motion for Summary Judgment [ECF No. 61] be DENIED. IV. Notice

In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).

/s/_________

RICHARD A. LANZILLO

United States Magistrate Judge Dated: November 8, 2019


Summaries of

Conklin v. Todd

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Nov 8, 2019
Case No. 2:16-cv-1722 Pittsburgh (W.D. Pa. Nov. 8, 2019)
Case details for

Conklin v. Todd

Case Details

Full title:TRAVIS CONKLIN, Plaintiff v. MARK TODD, Defendant

Court:UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date published: Nov 8, 2019

Citations

Case No. 2:16-cv-1722 Pittsburgh (W.D. Pa. Nov. 8, 2019)