Opinion
Civil Action 22-1431 Re: ECF 30
01-11-2024
PAUL KENDRICK, Plaintiff, v. CORRECTIONAL OFFICER GUSKIEWICZ and SERGEANT BURRIE, Defendants.
Honorable William S. Stickman United States District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Pending before the Court is a Motion for Summary Judgment filed on behalf of pro se Plaintiff Paul Kendrick, an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”). ECF No. 30. For the following reasons, it is respectfully recommended that the Motion for Summary Judgment be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Kendrick asserts First Amendment, Eighth Amendment, and state law negligence claims against two SCI - Fayette Correctional Officers for two incidents that occurred in July 2022. ECF No. 47. Through the Amended Complaint and a declaration filed by Plaintiff in support of his Motion for Summary Judgment, Plaintiff alleges that on July 5, 2022, Defendant Correctional Officer Guskiewicz (“Guskiewicz “) taunted him, told him to kill himself, and threatened him with bodily harm. Id.; see also ECF No. 33. Plaintiff filed a grievance related to this conduct that same day. Plaintiff asserts that two weeks later, Guskiewicz loudly announced in front of other inmates that Plaintiff “snitched” on him. Guskiewicz encouraged other inmates to “bang ... out” Plaintiff to drive him crazy, and “make him kill his self.” In return, Guskiewicz offered an extra tray of food. Several inmates began taunting Plaintiff while banging on cell doors and tables and attempted to throw feces at Plaintiff s cell door and at him through the ventilation system. ECF No. 47 ¶¶ 10-12. Guskiewicz left the unit and did not intervene to protect Plaintiff from any potential harm. Id. ¶ 12.
Plaintiff alleges that because of Guskiewicz's conduct, he was “feeling suicidal” and began banging his head and pressing his emergency call button to report suicidal ideation. Id. ¶¶ 14-16. Defendant Sergeant Burrie (“Burrie”) was in the control booth for Plaintiffs cell block. Id. ¶ 17. Despite hearing Plaintiff s requests for mental and medical assistance to treat his swollen forehead, Burrie failed to respond or assist Plaintiff. Instead, Burrie instructed Plaintiff to “write a request slip.” Id., ¶ 18. Thus, Plaintiff alleges Burrie was deliberately indifferent to his serious mental health needs, exposed him to unconstitutional conditions of confinement, and was otherwise negligent for failing to report Plaintiffs expressions of suicidal ideation “through the proper channels.”
Guskiewicz and Burrie filed an Answer to the Amended Complaint and deny Plaintiffs allegations. ECF No. 48.
Discovery is complete and Plaintiff has filed a Motion for Summary Judgment, Brief in Support of Motion for Summary Judgment, Statement of Undisputed Facts, and a Declaration. ECF Nos. 30-33. Defendants have filed a Response to Plaintiffs Motion for Summary Judgment, ECF No. 50, and a cross-motion for summary judgment with supporting briefs and exhibits. Plaintiff s response to Defendants' cross-motion for summary judgment remains outstanding.
Thus, this Report and Recommendation addresses only Plaintiffs pending Motion for Summary Judgment, ECF No. 30.
B. STANDARD OF REVIEW
Summary judgment is properly entered “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); see, e.g., Celotex Corp, v. Catrett, 477 U.S. 317, 322 (1986). Under this standard “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] fact is ‘material' where its existence or nonexistence might impact the outcome of the suit under the applicable substantive law.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (citations omitted). Further, “[a] dispute is ‘genuine' if ‘a reasonable jury could return a verdict for the nonmoving party.'” Clews v. Cnty. of Schuylkill, 12 F.4th 353, 358 (3d Cir. 2021) (quoting Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating to the court that the undisputed evidence is insufficient to support one or more essential elements of the non-moving party's claim. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004).
“[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotations omitted). In making this assessment, the court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Mil. & Veterans Affs., 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial,” Rule 56 requires the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23; Jakimas v. Hoffman La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).
Plaintiff is proceeding pro se, thus he is entitled to liberal reading of his pleadings and documents filed in opposition to the pending motion. Porter v. Pa. Dep't of Corr., 974 F.3d 431, 440 (3d Cir. 2020) (quoting Higgs v. Att'y Gen, of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (“[t]he obligation to liberally construe a pro se litigant's pleadings is well-established.”)). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Dep't. of Corr., 949 F.2d 360 (10th Cir. 1991).
Even so, at the summary judgment stage of the proceedings, the Court need not credit bald assertions or legal conclusions unaccompanied by evidentiary support. Jones v. United Parcel Serv., 214 F.3d 402,407 (3d Cir. 2000). “[A] pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record...” Dawson v. Cook, 238 F.Supp.3d 712, 717 (E.D. Pa. 2017) (citation omitted). In consideration of Plaintiff s pro se status, the Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Plaintiff asserts an apparent First Amendment claim and an Eighth Amendment claim under 42 U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “The first step in evaluating a section 1983 claim is to identify the exact contours of the underlying right said to have been violated and to determine whether the plaintiff has alleged a deprivation of a constitutional right at all.” Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (internal quotations and citations omitted). As to each claim asserted, the court examines the nature of the violation alleged to determine whether a claim may be sustained. The court then must determine whether the undisputed evidence is sufficient as to each element of Plaintiff s claim to support the entry of summary judgment in his favor.
1. Eighth Amendment Claim - Verbal Harassment
Plaintiff states that on July 5, 2022, Guskiewicz told Plaintiff to kill himself. ECF No. 32 ¶ 1. Guskiewicz denies that he ever told Plaintiff to kill himself. ECF No. 50-1 ¶ 3. Given the parties' conflicting statements, there is a clear issue fact. As such, Plaintiff is not entitled to the entry of summary judgment in his favor as to this portion of his Eighth Amendment claim. See Pearson v. Prison Health Serv., 850 F.3d 526, 541 (3d Cir. 2017) (“when deciding a motion for summary judgment, ‘the evidence of the non-movant is to be believed,' and credibility determinations must be left to the jury”).
The Court also notes that it is well established that verbal harassment on its own is not actionable under Section 1983. See, e.g., Mimms v. U.N.I.C.O.R., 386 Fed.Appx. 32, 35 (3d Cir. 2010) (“[T]he District Court correctly concluded that [Plaintiff's] claim regarding the defendants' alleged verbal abuse and harassment of him was not viable under 42 U.S.C. § 1983. Verbal harassment of a prisoner, without more, does not violate the Eighth Amendment.”); Smith v. Municipality of Lycoming Cnty., 335 Fed.Appx. 147,150 (3d Cir. 2009) (“Mere verbal harassment or abuse ... is not a civil rights violation.” (citation omitted)); Sears v. McCoy, 815 Fed.Appx. 668, 670 (3d Cir. 2020) (holding that dismissal at screening of Plaintiff s verbal harassment claim was proper and noting that “[a] prisoner's allegations of verbal harassment, unaccompanied by another . injury, are not cognizable under § 1983”). Thus, even if Plaintiffs allegations are true, these comments do not violate the constitution and are not actionable under Section 1983.
If true, the Court does not countenance this unprofessional and demeaning conduct.
2. Eight Amendment Claim - Failure to Protect
Plaintiff claims that two weeks after their initial encounter, Guskiewicz entered Plaintiffs housing unit and again told Plaintiff to kill himself. ECF No. 33 ¶ 4. Plaintiff asserts that Guskiewicz also shouted that Plaintiff “snitched on me in a grievance” and encouraged other inmates to “bang inmate Kendrick out all night and throw shit on him.” Id. ¶¶ 4-5. Plaintiff contends that these allegations are enough to establish the violation of his Eighth Amendment rights for failing to protect him from imminent harm, and for being deliberately indifferent to the risk of harm created by labeling him a snitch and offering a reward to inmates who “threw shit on him.” ECF No. 31 at 2.
“The Eighth Amendment protects prisoners from violence at the hands of others, as “[b]eing violently assaulted in prison is simply not ‘part of the penalty that criminal offenders pay for their offenses.'” Moore v. Mann, 823 Fed.Appx. 92, 95 (3d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994), and in turn, quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
This constitutional limitation on punishment has been interpreted to impose a duty upon prison officials to take reasonable measures to protect prisoners from violence at the hands of other prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quotation marks and citations omitted). To succeed on a failure-to-protect claim, a plaintiff must show: (1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation. See id. at 747. A prison official is deliberately indifferent to a substantial risk of serious harm if the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 834, 114 S'.Ct. 1970.Moore, 823 Fed.Appx. at 95-96.
The United States Court of Appeals for the Third Circuit has recognized that being identified as a snitch or complicit with prison authorities can expose an inmate to a substantial risk of harm. Bistrian v. Levi, 696 F.3d 352, 368-70 (3d Cir. 2012), abrogated on other grounds as recognized in Mack v. Yost, 968 F.3d 311 (3d Cir. 2020). Indeed, “other circuits have held that prison officials' failure to protect an inmate labeled a ‘snitch' constitutes deliberate indifference.” Moore, 823 Fed.Appx. at 96 (citing Irving v. Dormire, 519 F.3d 441, 451 (8th Cir. 2008) (“After all, who better knows the opprobrium and consequent effect thereof that attaches to the label of snitch than those who work daily within the inmate population.”); Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001); Northington v, Marin, 102 F.3d 1564, 1567 (10th Cir. 1996)). Thus, Guskiewicz's alleged conduct, if proven, may be sufficient to permit a reasonable jury to conclude that he was deliberately indifferent to the substantial risk of harm of telling other inmates that Plaintiff was a snitch.
However, in making this assessment, there is authority for the proposition that being labeled a snitch for filing a grievance against a corrections officer “does not, without more, create a substantial risk of serious harm to the inmate.” Jackson v. O'Brien, No. 18-0032, 2021 WL 3174687, at *4 (W.D. Pa. Jul. 27, 2021) (“While prisoners may be motivated to harm a fellow inmate who is or could be informing on them, that motivation for preserving inmate anonymity and solidarity does not exist when the inmate is accused of “snitching” to prison officials about a corrections officer or other prison official-DOC staff who the inmates so often view as opposed to their interests.”). Here, in a statement signed under penalty of perjury, Plaintiff alleges that the label of snitch was paired with a reward to inmates who caused him to engage in self-harm. ECF No. 33 at 1. Thus, Plaintiff alleges “more” than merely being identified as a snitch for complaining about a corrections officer.
In support of his allegations, Plaintiff presents the declaration of inmate Sampson Brinkley. Id., at 3. The declaration was prepared by Plaintiff and was signed by Brinkley under penalty of perjury. Brinkley asserts that on May 17, 2023, he was housed in a cell next Plaintiff. Brinkley claims he was approached by Guskiewicz and offered another tray of food if he threw feces on Plaintiff. Id. Brinkley adds that Guskiewicz threatened him with being labeled a “rat and a child molester” if Brinkley failed to comply. Id. Brinkley acquiesced and banged on his cell door and table and threw feces and urine at Plaintiff through the ventilation system. Brinkley also asserts that he heard Plaintiff press his emergency call button “and ask to see Psychology,” but Plaintiffs request “was denied by the control officer.” Id., Guskiewicz flatly denies each of Plaintiff s allegations. He states that, “[o]n July 20,2022, I never called Mr. Kendrick a snitch”; “[o]n July 20, 2022,1 never offered an extra tray to any inmate that banks on the desk, bangs or assaults Mr. Kendrick or throws anything at Mr. Kendrick.” ECF No. 50-1 at 2-3
The date identified in Brinkley's statement coincides with the date the statement was signed. Defendants do not challenge the statement on this basis and the Court construes the identified date as a scrivener's error.
Upon review, the opposing declarations are the only evidence of record that directly address the alleged interaction. Thus, there are genuine issues of material fact related to whether the incident occurred and, if it did, whether the label of “snitch” was applied to Plaintiff to cause him harm or could cause harm. Under these circumstances, Plaintiffs request for summary judgment should be denied as to his Eighth Amendment failure to protect claim.
3. Eighth Amendment Claim - Deliberate Indifference/Negligence
Plaintiff alleges claims against Defendant Burrie for failing to obtain medical and mental health treatment despite Plaintiffs complaints of suicidal ideation and self-harm that resulted in a swollen forehead and mental anguish. ECF No. 47 at 3.
The Eighth Amendment prohibits prison officials from being deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To succeed on an Eighth Amendment medical needs claim, “a plaintiff must make (1) a subjective showing that ‘the defendants were deliberately indifferent to [his or her] medical needs' and (2) an objective showing that ‘those needs were serious.'” Pearson, 850 F.3d at 534 (alteration in original) (quoting Rouse v. Plantier, 182 F.3d 192,197 (3d Cir. 1999)). Moreover, to the extent that Plaintiff alleges a claim of deliberate indifference to risk of self-harm or suicide, the plaintiff must establish facts suggesting that (1) he “had a ‘particular vulnerability to suicide,' (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers ‘acted with reckless indifference' to [his] particular vulnerability.” Hinton v. Mark, 544 F. App'x. 75, 77 (3d Cir. 2013) (quoting Colburn v. Upper Darby Twp, 946 F.2d 1017, 1023 (3d Cir. 1991)).
The declaration proffered by Plaintiff is evidence that he used the emergency call button to report feeling suicidal and that Burrie took no action other than to tell Plaintiff to “write a request slip.” ECF No. 33 at 2. This account is supported by Brinkley, who states that he heard Plaintiff use his call button to ask to see “Psychology” for suicide ideation but “was denied by the control officer.” Id. at 3. Defendants argue that Plaintiff fails to present evidence that Burrie was the officer who heard Plaintiff s alleged requests for medical or mental health assistance or that he received a report of psychological distress for an event that did not happen. ECF No. 50 at 2. The record contains the Declaration of a Psychological Services Specialist who was assigned to Plaintiff s housing unit on July 20,2022. ECF No. 54-4. She states that she was present in the unit that day but did not receive a request to assist Plaintiff. Furthermore, his medical records establish “that there were no mental health contacts made by anyone in the Psychology department between the dates of July 14, 2022 and August 7. 2022.” Id. .
Based on the evidence presented, there are genuine issues of material fact as to whether Plaintiff requested mental health assistance or medical treatment from Burrie for self-harm and mental distress, and whether Burrie was deliberately indifferent to any such requests. Thus, Plaintiff s request for summary judgment should be denied as to his deliberate indifference claim.
4. First Amendment Retaliation
Plaintiff also asserts an apparent First Amendment retaliation claim against Guskiewicz. To establish a claim for First Amendment retaliation, a prisoner must prove that: (1) he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights; and (3) there exists “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Mitchell v. Hom, 318 F.3d 523, 530 (3d Cir. 2003). Plaintiff satisfies the first factor because he alleges that he submitted a grievance related to Guskiewicz's conduct on July 5,2022. The filing of a grievance by a prisoner is constitutionally protected conduct. Id. (filing grievances against an officer “implicates conduct protected by the First Amendment”); Burgos v, Canino, 358 Fed.Appx. 302, 306 (3d Cir. 2009) (plaintiff “engaged in constitutionally protected activity when he filed his grievances”). As to the second element, through his Declaration and Brinkley's affidavit, Plaintiff presents evidence that because of his grievance, Guskiewicz told inmates on Plaintiffs cell block that Plaintiff was a snitch and then promised to reward any inmate that caused Plaintiff mental or physical harm. And, as to the third element, Plaintiff alleges that other inmates threw feces at him through the cell ventilation and at his cell door. Thus, there is sufficient evidence for a reasonable jury to conclude that Guskiewicz retaliated against Plaintiff for submitting a grievance. However, based on Guskiewicz's Declaration denying that any of these events took place, there also is sufficient evidence for a reasonable jury to conclude that the incident never occurred. The parties conflicting statements indicate that summary judgment is not warranted.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion for Summary Judgment filed by Plaintiff Paul Kendrick, ECF No. 30, be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections within fourteen days, or seventeen days for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v, Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.