Opinion
Civil Action 3:19-cv-01573
07-14-2021
CARL HODGE, #70853-019, Plaintiff, v. WARDEN OF DAUPHIN COUNTY PRISON, et al., Defendants.
BRANN, J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. United States Magistrate Judge.
This a prisoner civil rights action, which commenced on September 11, 2019, when the clerk received and lodged the pro se complaint, signed and dated by the plaintiff, Carl Hodge, on September 3, 2019. (Doc. 1.) The complaint was accompanied by a motion for leave to proceed in forma pauperis, which we granted on October 4, 2019. (Doc. 3; Doc. 10.) At the time of filing, Hodge was federal prisoner, incarcerated at FCI Allenwood, which is located in Union County, Pennsylvania.
The lone named defendant, Brian Clark, Warden of Dauphin County Prison, has appeared and answered the complaint. (Doc. 26.) Now before the court is a motion by Clark for summary judgment. (Doc. 31.) Clark has filed a brief in support of the motion and a statement of material facts. (Doc. 35; Doc. 36.) Despite multiple sua sponte extensions of time, the plaintiff has failed to file any response to Clark's motion for summary judgment. (Doc. 37; Doc. 39; Doc. 42.) The motion is now ripe for decision.
I. BACKGROUND
Hodge is a convicted and sentenced federal prisoner. The events giving lise to this lawsuit, however, predate his conviction and sentence.
Between June 12, 2017, and September 11, 2017, Hodge was a federal pretrial detainee housed at Dauphin County Prison under a contract between the United States Marshals Service and the county. In his complaint, Hodge alleges that, on September 9, 2017, he was physically attacked by six unidentified inmates while in a prison shower room on B-Block of the prison. Hodge alleges that an unidentified correctional officer who was assigned to monitor the shower room had abandoned his post after being approached by several unidentified inmates. Hodge was punched, kicked, and stabbed three times by his inmate-assailants. Hodge was sent to an outside hospital for medical treatment.
It is not clear from the pleadings whether these are the same inmates who attacked him.
Hodge further alleges that previously, on September 7, 2017, when meeting with “Mrs. Jill, ” an otherwise unidentified correctional counselor, to discuss his release from the prison's restricted housing unit (RHU) into general population, he had warned her that his life would be in danger if he was placed on any block other than C-Block. She assured him that he would be placed on C-Block, but when he was released from the RHU on September 8, 2017, he was escorted by an unidentified correctional officer to B-Block instead. Hodge notified the escorting officer that he would be in danger, and that he had been told by Mis. Jill that he would be assigned to C-Block. The escorting officer disiegaided Hodge s warning and gave him a direct order to report to B-Block, and Hodge complied.
Hodge alleges that, on September 10, 2017, after returning from the hospital, he was placed in administrative custody. While in administrative custody, he met with Mrs. Jill, who apologized for what had happened. She allegedly admitted to Hodge that “several inmates [had] requested that she put him on B-Block[, making] it seem as if they were all friends.” (Doc. 1 ¶ 4.)
On September 11, 2017, Hodge was transferred away from Dauphin County Prison to another county prison. On or about January 16, 2018, while at Columbia County Prison, he filed a grievance regarding the September 9, 2017, incident that occurred at Dauphin County Prison. In response, Columbia County Prison officials informed Hodge that they could do nothing for him because the incident did not occur there. Hodge never filed a grievance with Dauphin County Prison officials.
The complaint alleges that he was transferred to Adams County Prison. The defendants' statement of material facts states that he was tiansferred directly to Columbia County Prison. Hodge's immediate destination when transferred away from Dauphin County Prison is not material to disposition of this motion.
The complaint alleges that he filed his grievance on December 18, 2017, but the plaintiff included a copy of the grievance as an attached exhibit in support of his complaint. (Doc. 2.) On its face, the grievance indicates that Hodge submitted it on January 16, 2018, and it is marked as having been received on January 17, 2018. The precise date when it was submitted is not material to disposition of this motion.
Ultimately, Hodge pleaded guilty to the federal charges against him, and he was sentenced in May 2019 to serve 92 months of imprisonment. He is currently incarcerated at FCI Fairton, a federal prison located in Cumberland County, New Jersey.
II. LEGAL STANDARD
Under Rule 56 of the federal Rules of Civil Procedure, summary judgment should be granted only if “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 fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, ” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial.” Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
Here, the lone named defendant, Warden Clark, has moved for summary judgment for failure to exhaust available administrative remedies or, in the alternative, on the merits of the plaintiffs claims against him, but the plaintiff has failed to submit a brief in opposition or any other papers contesting the defendant's motion. The plaintiffs failure to actively oppose the defendants' motion for summary judgment implicates two local rules, which provide that a party who fails to file a brief in opposition to a motion “shall be deemed not to oppose such motion, ” L.R. 7.6, and that all material facts set forth in the movant's statement of material facts “will be deemed to be admitted unless controverted” by a counter-statement of material facts by the nonmovant, L.R. 56.1.
However, the plaintiffs failure to respond to the motion does not mean that the defendant is automatically entitled to summary judgment. See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). These local rules must be construed and applied in a manner consistent with Rule 56 of the Federal Rules of Civil Procedure. See id. at 174. Thus, in the context of a motion for summary judgment, a non-movant's failure to file an opposition brief and counter-statement of material facts is “construed as effecting a waiver of [the non-movant's] right to controvert the facts asserted by the moving party in the motion for summary judgment or the supporting material accompanying it.” Id. at 175-76. The moving party must nevertheless establish that, based on the facts set forth in support of its motion, he is entitled to judgment as a matter of law. See id.; see also Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993); Miller v. Ashcroft, 76 Fed.Appx. 457, 462 (3d Cir. 2003) (“Even though the applicable [Middle District of Pennsylvania] local rules provide that a summary judgment motion is to be considered unopposed and its statement of material facts admitted where a responsive brief is not timely filed, the Magistrate Judge was still required to find that the undisputed facts warranted judgment as a matter of law.”) (citations omitted).
In other words, in the absence of active opposition by the nonmovant, the two-step, burden-shifting analysis that normally applies on summary judgment is abbreviated to just the first step, requiring the moving party to make a prima facie showing that it is entitled to summary judgment, based on the undisputed facts of record. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331.
III. UNDISPUTED MATERIAL FACTS
Pursuant to Local Rule 56.1, the following facts are undisputed:
This recitation of undisputed material facts is derived from Warden Clark's statement of material facts, the substance of which is deemed to have been admitted because Hodge has failed to respond to it.
1. The plaintiff was charged with offenses involving insurance fraud and was committed to Dauphin County Prison on June 12, 2017, at the behest of the United States Marshals Service. (Doc. 36-2.)
2. The plaintiff was incarcerated at Dauphin County Prison until September 11, 2017. (Id.)
3. The inmate grievance procedure at Dauphin County Prison has four stages. (Doc. 36-3.)
4. First, an inmate must submit his grievance to the Warden, Deputy Warden, or Security Major. This is the “First Level.” (Id.)
5. The Warden rules on grievances at the First Level. (Id.)
6. If an inmate's grievance is denied by the Warden, he may appeal to the Chairman of the Dauphin County Prison Board. This is the “Second Level.” (Id.)
7. If the Chairman affirms the denial of a grievance, the inmate may appeal to the full Prison Board. This is the “Third Level.” (Id.)
8. If the full Prison Board affirms the denial of a grievance, the inmate may appeal to the Dauphin County Solicitor. This is the “Fourth Level.” (Id.)
9. There is no further appeal from the Solicitor's decision, which is considered final under the grievance procedure. (Id.)
10. The plaintiff alleges in his complaint that, while incarcerated at Dauphin County Prison, he was physically attacked by other inmates on or about September 9, 2017. (Doc. 1, at 16-17.) The plaintiff alleges that Dauphin County Prison officials failed to protect him from the physical assault. (Id.)
11. The plaintiff never filed a grievance with Dauphin County Prison regarding this incident. (Doc. 36-4 ¶¶ 5-7.)
12. The only attempt at filing a grievance made by the plaintiff was a grievance filed at Columbia County Prison on January 16, 2018, more than four months after the September 9, 2017, incident. (Doc. 2.)
The defendant's statement of material facts states that the grievance was filed on January 17, 2018, but see supra note 2.
13. The plaintiff admits in his complaint that he never filed a grievance with Dauphin County Prison or attempted to follow any of the other Dauphin County Prison grievance procedures. (Doc. 1; see also Doc. 36-4 ¶¶ 5-7.)
14. The plaintiff filed the instant complaint on or about September 11, 2019, without pursuing any further efforts to utilize Dauphin County Prison's grievance procedure with respect to the incident described in his complaint. (Doc. 1; see also Doc. 36-4 ¶¶ 5-7.)
15. It is common practice for inmates at Dauphin County Prison that are subsequently transferred to another prison to participate in the Dauphin County Prison grievance procedure via mail. (Doc. 36-4 ¶ 10.)
16. Dauphin County Prison did/does not require a specific form for filing a grievance. (Id.; Doc. 36-3.)
17. The court issued a scheduling order for discovery in this matter to be completed by September 3, 2020.
18. As of November 9, 2020, the plaintiff had not completed any discovery in support of his claims.
19. The complaint does not plead any allegations showing the personal involvement of defendant Warden Clark. (Doc. 1.)
In his statement of material facts, the defendant here references “considering the Complaint as a sworn affidavit” (Doc. 36 ¶ 19), but under the circumstances presented in this case, we are not permitted to consider the complaint itself as evidence on summary judgment. The federal rules permit the parties to rely on affidavits or declarations to support or oppose a motion for summary judgment. Fed. R Civ P 56(c)(1)(A), (c)(4). But “unsworn declarations are insufficient if not phrased in a manner that subjects the declarant to the penalty of perjury.” Steward v. Abbott, 189 F.Supp.3d 620, 628 (W.D. Tex. 2016); see also United States ex rel. Doe v. Heart Solution, PC, 923 F.3d 308, 315 (3d Cir. 2019) (unsworn statement not given under penalty of perjury is insufficient to create an issue of fact on summary judgment). Although a verified complaint may be considered as an affidavit on summary judgment, see Porter v. Pa. Dep't of Corr., 974 F.3d 431, 443 (3d Cir. 2020), Hodge s pro se complaint is not signed under penalty of perjury, and thus it is not a verified complaint. See generally El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (noting that a “verified complaint” is one that is signed under the penalty of perjury pursuant to 28 U.S.C. § 1746).
20. The only reference to defendant Warden Clark in the complaint is a statement that: “John Doe 1, John Doe 2, John Doe 3, and John Doe 8 are the supervisory staff of these officers. They are also in charge of the safety and security of inmates and the institution[.J [T]hey have neglected their duty and oath of office by condoning the negligence of their staff.” (Id. at 17.)
21. Defendant Brian Clark, Warden of Dauphin County Prison, was subsequently substituted in place of “John Doe 1, Warden of Dauphin County Prison.” (Doc. 10.)
22. There is no other evidence of record showing the personal involvement of Warden Clark.
IV. DISCUSSION
Hodge has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, egulation, 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 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. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
Here, the plaintiff has asserted § 1983 failure-to-protect claims. In his complaint, Hodge alleged that he was attacked and seriously injured by other inmates, and that various prison officials failed to intervene or protect him from this attack despite his repeated warnings to them that his life would not be safe if he was placed in general population anywhere other than C-Block.
The only named defendant is Brian Clark, the warden of Dauphin County Prison. Hodge seeks to hold Clark liable for the conduct of other, unidentified John Doe prison officials based on his supervisory role as warden of the institution.
A. John/Jane Doe Defendants
Although we have passed the close of discovery and reached the summary judgment stage in this action, the plaintiff has failed to amend his pleadings to identify other John/Jane Doe' prison officials named in the pleadings as defendants, or to effectuate proper service of original process upon them. The defendant has moved for their dismissal.
The plaintiff commenced this action on or about September 11, 2019, by filing the original complaint in this matter. (Doc. 1.) In addition to the Dauphin County Prison warden,' the complaint purported to sue eight “John Doe” or “Jane Doe” prison officials and six “John Doe” inmates.
The parties have had the opportunity to exchange discovery, although Hodge does not appear to have taken advantage of this opportunity. Fact discovery was completed on September 3, 2020. (See Doc. 30.) On October 5, 2020, Warden Clark filed his motion for summary judgment. (Doc. 31.)
Now, ten months after the close of fact discovery in this case, and nine months after the defendant moved for summary judgment, the plaintiff has still failed to amend his complaint to identify any of the unnamed “John/Jane Doe” defendants and join them to this action. The use of John Doe defendants is permissible “until reasonable discovery permits the true defendants to be identified.” Blakeslee v. Clinton Cty., 336 Fed. App' 248, 250 (3d Cir. 2009) (emphasis added) (affirming dismissal of John Doe defendants where plaintiff failed to amend her complaint to identify true defendants after ten months of discovery). “[I]n the adversarial system of litigation the plaintiff is responsible for determining who is liable for her injury . . . .” Arthur v. Maersk, Inc., 434 F.3d 196, 212 (3d Cir. 2006). Thus, if a plaintiff fails to amend a complaint to identify unnamed John Doe defendants, a court may dismiss those defendants prior to ruling on a summary judgment motion. King v. Mansfield Univ, of Pa., No. 1:11-CV-1112, 2014 WL 4546524, at *10 (M.D. Pa. Sept. 12, 2014); Guyton v. Bacher, No. 3:12-27, 2014 WL 3942813, at *5 (W.D. Pa. Aug. 12, 2014); see also Fed.R.Civ.P. 21 (“On motion or on its own, the court may at any time, on just terms, add or drop a party.”).
The original complaint named “John Doe 1, warden of Dauphin County Prison, ” as a defendant. We substituted Brian Clark, Warden of Dauphin County prison in place of the fictitious defendant, “John Doe 1, ” prior to issuance and service of the summons. (Doc. 10.)
Accordingly, it is recommended that all “John Doe” or “Jane Doe” fictitious defendants be dismissed from this action pursuant to Rule 21 of the Federal Rules of Civil Procedure.
B. Warden Clark's Personal Involvement
Hodge seeks to hold Warden Clark vicariously liable for the allegedly unconstitutional conduct of unidentified “John Doe” and “Jane Doe” prison officials based on their failure to protect him from a physical attack by other inmates. The defendant has moved for summary judgment on the merits of this claim, arguing that the plaintiff has failed to adduce any evidence of the warden's personal involvement in the allegedly unconstitutional conduct of his subordinates.
We note that the defendant also seeks summary judgment on the ground that Hodge failed to exhaust available administrative remedies. While it is clear that Hodge never submitted a grievance to Dauphin County Prison officials concerning the September 9, 2017, incident, his complaint suggests that he was unable to do so because of his transfer away from Dauphin County Prison to another county jail on September 11, 2017. The defendant relies on a line of cases in which courts within the Third Circuit have concluded that transfer to another facility does not excuse the PLRA's exhaustion requirement. See Williamson v. Wexford Health Sources, Inc., 131 Fed.Appx. 888, 890 (3d Cir. 2005) (per curiam); Haviland v. Schuylkill Cty. Prison, Civil No. 3:CV-13-101, 2016 WL 4803194, at *5 (M.D. Pa. Sept. 14, 2016); Hontz v. Berks Cty. Prison, Civil Action No. 12-cv-2663, 2014 WL 1123376, at *7 (E.D. Pa. Mar. 21, 2014); Ball v. Bower, Civl No. 1:10-CV-2561, 2011 WL 6782621, at *5 (M.D. Pa. Oct. 13, 2011); In re Bayside Prison Litig., No. 97-5127 (RBK), 2008 WL 2387324, at *4 (D.N.J. May 19, 2008). But in a more recent decision, this court has acknowledged the existence of some question whether Williamson, which concerned an inmate who had transferred between facilities within the same state prison system, might apply with equal force to an inmate who has been transferred between local facilities in different counties, each with its own distinct grievance policy and apparatus. See Murphy v. Grochowski, Civil No. 3:18-CV-01404, 2020 WL 806584, at *13-*14 (M.D. Pa. Jan. 7, 2020) (citing Caiby v. Haidle, 785 Fed. App x 66, 66 n.2 (3d Cir. 2019) (per curiam)), report & recommendation adopted by 2020 WL 815773 (M.D. Pa. Feb. 18, 2020). We need not grapple with the question here, however, as Hodge has clearly failed to adduce any evidence whatsoever of Warden Clark's personal involvement in the conduct giving rise to his § 1983 claims.
Based on the allegations of the complaint, Hodge seeks to hold Warden Clark liable for the conduct of his subordinates based solely on his supervisory role as warden of the prison. But it is well established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal involvement in the alleged wrongs .... [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Although a supervisor cannot encourage constitutional violations, a supervisor has no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986).
The complaint fails to allege any personal involvement whatsoever by Clark, and Hodge has further failed to adduce any evidence whatsoever in opposition to summary judgment on this claim. Indeed, he has failed to respond to the defendant s motion for summary judgment and statement of material facts at all, effectively admitting that there is no evidence to show the personal involvement of Warden Clark.
As we have noted, Hodge's unverified complaint is not competent evidence on summary judgment, nor has he adduced any other evidence.
The moving defendant has made a prima facie showing that he is entitled to summary judgment, based on the undisputed facts of record. The non-moving plaintiff has failed to respond to the defendant's motion or statement of material facts. Accordingly, it is recommended that summary judgment be granted to Warden Clark with respect to the plaintiffs § 1983 claims against him.
V. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The defendant's motion for summary judgment (Doc. 31) be GRANTED;
2. All “John Doe” and “Jane Doe” defendants be DISMISSED from this action pursuant to Rule 21 of the Federal Rules of Civil Procedure;
3. The Clerk be directed to enter JUDGMENT in favor of defendant Brian Clark, Warden of Dauphin County Prison, and against the plaintiff with respect to the plaintiffs § 1983 claims against him; and
4. The Clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated JulyI, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and
Recommendation may constitute a waiver of any appellate rights.