Opinion
Civil Action No. 03-4695.
November 12, 2004
ORDER
AND NOW, this 12th day of November, 2004, upon consideration of Defendant Clifton S. Mitchell's Motion for Summary Judgment, and the response thereto, it is hereby ORDERED that the said Motion is GRANTED.
In order to make out an Eighth Amendment claim against a prison official, a plaintiff must show that the official acted with deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 837 (1994). This showing can be made in one of two ways — either on a theory of direct liability or supervisory liability. Beers-Capitol v. Whetzel, 256 F.3d 120, 135 (3d Cir. 2001). In cases involving deliberate indifference based on direct liability, a plaintiff must show that the defendant knew or was aware of and disregarded an excessive risk to the plaintiff's health or safety. A plaintiff can meet this burden by showing that the risk was obvious. Id. On the other hand, in cases involving deliberate indifference based on supervisory liability, a plaintiff must first identify a specific policy or practice that the supervisor failed to employ and show that: (1) the policy created an unreasonable risk of injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) there was a causal link between the injury and the policy. Id. at 134. Because the plaintiff has failed to raise a genuine issue of fact as to whether the defendant acted with deliberate indifference, either based on a theory of direct or supervisory liability, this court must grant the defendant's motion for summary judgment.
As a matter of law, the plaintiff cannot make a showing of deliberate indifference based on direct liability on the part of Defendant Deputy Warden Mitchell because she has not raised a genuine issue of fact as to whether Mitchell knew or was aware of and disregarded an excessive risk to her health or safety. The only direct evidence that Mitchell had knowledge of the specific risk posed by Defendant Rosser is that Mitchell was told by a prison investigator that there were rumors of an improper sexual relationship between Rosser and the plaintiff. This, however, is insufficient for plaintiff to withstand defendant's motion for summary judgment.
In Beers-Capitol, the Third Circuitaffirmed the granting of summary judgment on behalf of Joseph Flecher, a unit manager at a juvenile detention center, who became aware of rumors that a guard was having sex with one of the female residents. Id. at 139-41. Because the defendant was generally skeptical of the accusations — a mindset bolstered by the alleged victim's denying that an improper relationship existed — and because the court found that the defendant was not aware of such overwhelming evidence that he had to have known of the risk, the court found that the plaintiff could not establish deliberate indifference.Id. at 140. Here, Mitchell became aware of rumors that Rosser and the plaintiff were engaged in an inappropriate relationship, asked Rosser about the rumors, and was satisfied with Rosser's answer that he had spoken with plaintiff but never spent any extra time with her. Although he was satisfied with Rosser's denial, he still warned Rosser about the danger of appearances. Thus, Mitchell is just like Flecher fromBeers-Capitol. He became aware of rumors, looked into them, and was satisfied that they were untrue. The fact that he warned Rosser that even though he was doing nothing wrong, people might perceive the situation differently does nothing to alter the analysis.
Plaintiff argues that Mitchell is unlike Rosser but instead is similarly situated to another defendant in Beers-Capitol, counselor Nora Burley, who was not entitled to summary judgment. Such reliance, however, is misplaced. The Third Circuit found that the plaintiffs had raised a genuine issue of fact as to Burley's deliberate indifference based on her statement that she "kind of knew" that the alleged offender was "messing" with the residents. Id. at 141. Here, unlike with Burley, there is no evidence that Mitchell had a subjective belief that Rosser was involved with the plaintiff. He became aware of a rumor, looked into, and satisfied himself that it was untrue. Thus, the facts in the instant case are akin to Flecher, not Burley, and Mitchell is entitled to summary judgment.
Plaintiff argues that Mitchell is not entitled to summary judgment because, even if he did not know about her relationship with Rosser in particular, he did have actual knowledge of a substantial risk to her health or safety. She contends that Mitchell's file memo, in which he wrote, "I met with Lt. Rosser regarding his interaction with inmate Donna Horak. Lt. Rosser denied any inappropriate action with inmate. He was forewarned." provides evidence of Mitchell's knowledge of this risk. Again, the plaintiff's argument must fail, and again, the Third Circuit's opinion in Beers-Capitol with respect to Flecher is controlling. Based on the facts surrounding Flecher recounted above, the Third Circuit held that the plaintiffs failed to present evidence that the defendant was "aware of such overwhelming evidence that he had to have known of such an [excessive] risk [to the plaintiff's health or safety]." Id. at 140 (emphasis in original). The plaintiff's claim fails here for the same reason. The facts that Mitchell was aware of rumors and looked into them are insufficient to create a genuine issue as to whether he had to have known of such an excessive risk. Again, Mitchell and Flecher are similarly situated; neither had enough evidence of the risk at his disposal to create a genuine issue as to deliberate indifference.
The plaintiff's attempt to raise a genuine issue of fact as to deliberate indifference based on supervisory liability also must fail. She contends that Mitchell failed to employ the policy of reporting allegations of ethical violations to supervisors, that he was aware that there was an unreasonable risk to inmate health or safety, that he acted with indifference towards that risk, and that his behavior caused the injury to plaintiff. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). This court has already explained above, however, that there is no genuine issue as to whether Mitchell was aware of an unreasonable risk to inmate health or safety. Thus, the plaintiff cannot meet the second prong of the four-part Sample test. Furthermore, this is not a situation in which the potential harm is so great and the risk so obvious that Mitchell's failure to act alone is sufficient to meet the test and withstand summary judgment. Beers-Capitol, 256 F.3d at 134. As explained above, the evidence is not such that Mitchell had to have known of the risk. Even if it had been, however, Mitchell's reaction in forewarning Rosser instead of reporting to his supervisors, although possibly negligent, likely does not rise to the level of deliberate indifference.
Having granted summary judgment on the federal claim, this court exercises its discretion to dismiss without prejudice plaintiff's state law claims against defendant Mitchell, contained in Counts II and III of the Amended Complaint, pursuant to 28 U.S.C. § 1367(c)(3).