Opinion
CIVIL NO. 97-4743 (JBS).
September 24, 1999
Joan G. Atlas, Esq., Koral, Kahn Koral, P.C., Philadelphia, PA., Attorney for Plaintiff.
Darryl S. Beckman, Esq., Budd, Larner, Gross, Rosenbaum, Greenberg Sade, Cherry Hill, New Jersey, Attorney for Defendants Gloucester County Prison, Michael McGuinness, and Charles Gill, Jr.
OPINION
The instant litigation arises out of a physical altercation between three prison inmates that occurred on September 28, 1995. On September 26, 1997, plaintiff Robert Kovalak filed this lawsuit alleging that the Gloucester County Prison ("GCP"), the New Jersey Department of Corrections, Michael McGuinness (the Warden of Gloucester County Correctional Facility), Charles Gill, Jr. (the Sheriff of Gloucester County), and John Does I-V (correctional officers at the Gloucester County Correctional Facility) violated his civil rights by failing to protect him from a dangerous situation. Now before the Court is the motion of defendants GCP, McGuinness, and Gill for summary judgment. For the reasons stated herein, while the Complaint is dismissed in part, summary judgment will be denied as to defendant Warden McGuinness on plaintiff's claim pursuant to 42 U.S.C. § 1983. Additionally, this Court construes the plaintiff's briefs as requesting leave to amend the Complaint to substitute Shirleen Firman, Jeffrey Oswald, and Corrections Officer Schmidt for three of the John Doe plaintiffs, and plaintiff will be permitted to file an Amended Complaint consistent with this Opinion.
In Part IV of his brief in opposition to the motion for summary judgment, plaintiff notes that he stipulates to the dismissal of Sheriff Charles Gill, Jr. and GCP, as well as to the dismissal of the counts for conspiracy (both § 1985 conspiracy and Count II for conspiracy under New Jersey law) and infliction of emotional distress (Count III). (Pl.'s Opp'n Br. at Part IV.) The defendants acknowledge this stipulation in their reply brief. (Defs.' Reply Br. at 1.) Accordingly, the Order accompanying this Opinion reflects these dismissals with prejudice.
I. BACKGROUND
In September of 1995, plaintiff Robert J. Kovalak was an inmate at the Gloucester County Correctional Facility, a three-story correctional facility with ten housing units called "pods," each housing a maximum of 26 persons. (McGuinness Dep at 8-10; R. Kovalak Dep. at 23.) He testified that he was never mistreated in any way, but was always treated with respect. (R. Kovalak Dep. at 49-50.) In mid-September of that year, Aaron Sampson, who was known to prison administration both from previous incarcerations and from his youth as someone who was verbally aggressive (McGuinness Dep. at 31; Firman Dep. at 20-21; Oswald Dep. at 14-15; Cream Dep. at 9), was moved into Cell Block 2B, where plaintiff resided. (R. Kovalak Dep. at 24-25.)
When Sampson moved into the pod, he began "walking around . . . kind of turning the TV off when people are watching it, and . . . using racial slurs." (Id. at 25-26.) Plaintiff and other inmates complained to the guards about Sampson, who told Sampson to stop that behavior. (Id. at 28-31.) Plaintiff ignored Sampson for a week, until, on September 13, 1995, Sampson directed racial slurs at him while he was on the telephone, first with his lawyer and then with his mother. (Id. at 26.) Plaintiff hung up the phone and walked to get his mail. (Id. at 38.) As plaintiff walked down the steps with his mail, Sampson took his mail away. (Id.) Plaintiff told Sampson to leave him alone; when Sampson started to reply, plaintiff hit him in the mouth. (Id. at 39-39.) Another inmate, Anthony James, grabbed plaintiff from behind to break up the fight. (Id. at 40.)
Corrections officers came in to see plaintiff. (Id. at 46.) According to plaintiff, they asked him how he pled on the charge of hitting Sampson; plaintiff pled guilty and signed his charge, thereby waiving any hearing (id. at 47), as would normally be conducted for a serious violation such as a fist fight. (McGuinness Dep. at 33-35.) According to the plaintiff, Warden Michael McGuinness was standing and talking with the guard who had plaintiff sign the guilty plea, and so the Warden knew about the altercation. (R. Kovalak Dep. at 87.) Warden McGuinness denies having such knowledge. As a result, plaintiff was placed in an isolation cell, or "the hole," for fifteen days. (Id. at 47.) The defendants do not have any copy of this alleged paperwork, and though notations are normally made in inmates' records indicating that altercations have occurred so that the inmates may be kept away from one another (McGuinness Dep. at 42-43, 45; Firman Dep. at 25-28, 43; Oswald Dep. at 39, 41-42), no notations as to this altercation are listed in plaintiff's records. (Firman Dep. at 18-19, 41-42.)
During the time that plaintiff was in the isolation cell, plaintiff claims that various corrections officers, including Corrections Officer Jeffrey Oswald, warned plaintiff that "[Y]ou better watch your back. They're going to jump you." (R. Kovalak Dep. at 53.) Plaintiff also contends that he overheard Deputy Warden Shirleen Firman tell corrections officers that plaintiff and Sampson were to be kept separated. (Id. at 61, 87.) Additionally, Virginia Kovalak, plaintiff's mother, testified that when she came to the prison to visit her son the day he was released from lock-down, Officer Oswald told her "to tell Rob to watch his back, that word has it that they were going to get him." (V. Kovalak Dep. at 19.) This was allegedly confirmed by Officer Schmidt (Smitty), who was standing at the sign-in desk by Officer Oswald. (Id. at 24.)
According to the defendants and the various corrections officers, they never made any of those comments. Specifically, Deputy Warden Firman testified that she did not know about the incident which allegedly led to plaintiff's isolation, or even that plaintiff was in the lock-down prior to September 28, 1995. (Firman Dep. at 31.) Officer Oswald testified that he was not aware that plaintiff was in the isolation cell because of a fight with Sampson. (Oswald Dep. at 46.)
When plaintiff was released from isolation, he was placed in a separate cell block than Sampson. Within twenty-four hours of his release from isolation, plaintiff went to the gym. (R. Kovalak Dep. at 64.) GCP has a policy of keeping prisoners who have been in a physical altercation apart from each other (Firman Dep. at 48), including while inmates are at the gym (Oswald Dep. at 42), and it would be relatively simple to keep the inmates out of the gym at the same time, merely by rearranging which pods are in the gym at the same time. (Id. at 43-44.) Nonetheless, plaintiff was in the gym, with other inmates but without a corrections officer, when he heard "Yo," turned around, and was hit in the face by Sampson. (R. Kovalak Dep. at 68.) Sampson and plaintiff fought across the gym, with Sampson punching plaintiff several times and Anthony James kicking plaintiff from behind. (Id. at 69-70.) After five or six minutes, other inmates broke up the fight and Corrections Officer William Cream entered the gym. (Id. at 70.)
Officer Cream testified that though the Deputy Warden had told him on previous occasions to keep certain inmates apart from one another, there was no such keep-apart order for Sampson and plaintiff. (Cream Dep. at 23; Oswald Dep. at 38.) Cream entered the gym, learned from plaintiff about the fight, and removed the plaintiff, who filed charges against Sampson, from the gym. (Id. at 25.) Another officer took plaintiff for medical attention when his face blew up when he tried to blow his nose. (R. Kovalak Dep. at 84.) Plaintiff was diagnosed with a broken nasal cavity and a broken eye socket, and he was taken to specialists for treatment. (Id. at 93.) He was given medication, and a steel plate was inserted above his left eye. (Id. at 95.) Though various officials, including Deputy Warden Firman, told plaintiff that they were sorry that this had happened (id. at 85), no one admitted fault for allowing Sampson and plaintiff to be in the gym together, without a guard. (Id.)
On September 26, 1997, plaintiff filed suit in this Court against GCP, Warden McGuinness, Sheriff Charles Gill, Jr., and John Does I through V. The Complaint alleges three Counts: the first for violation of civil rights under 42 U.S.C. § 1981, 1983, and 1985, the second for conspiracy, and the third for infliction of emotional distress. While plaintiff admits that he has no information that the defendants and other corrections officers actually wanted to see him in a fight with Sampson, he alleges that they knew that it would be dangerous for plaintiff and Sampson to be together and yet they failed to segregate them from each other, leading to the harm to plaintiff. By agreement, the Department of Corrections was dismissed from the litigation.
On January 4, 1999, defendants filed the instant motion, seeking summary judgment on the entire Complaint. In response, plaintiff stipulated to dismissal of all claims against Sheriff Gill and GCP, as well as all conspiracy and infliction of emotional distress claims against all defendants in Counts II and III. What remains is plaintiff's § 1983 claim against Warden McGuinness. Additionally, in the midst of his brief, plaintiff informally requests leave to amend the Complaint in order to substitute Deputy Warden Firman, Officer Oswald, and Officer Schmidt for John Does I through III. For the reasons stated herein, the Court will enter dismissal for defendants Gill and GCP, will dismiss Counts II and III and the § 1985 basis of Count I as to defendant McGuinness, and will grant the plaintiff leave to amend the Complaint, ordering the plaintiff to submit an Amended Complaint as to his § 1983 claim only, consistent with this Opinion.
II. DISCUSSION
A. Summary Judgment 42 U.S.C. § 1983 permits a private cause of action against any person who, under color of state law, acts in a manner which deprives a citizen of the United States of rights, privileges, or immunities secured by the United States Constitution. All defendants here were acting, at all relevant times, under color of state law. Plaintiff alleges that defendants here violated his Eighth Amendment right to be free from cruel and unusual punishment.
The Eighth Amendment requires prison officials to take reasonable steps to protect inmates from attacks from other prisoners. Farmer v. Brennan, 511 U.S. 825 (1994); Hamilton v. Leavy, 117 F.3d 742 (3d Cir. 1997). In order to establish an Eighth Amendment claim on the basis of failure to protect, a plaintiff must show:
1. the condition of incarceration posed a serious risk of harm;
2. a prison official knew of the risk and disregarded the substantial risk of harm to the inmate; and
3. the risk and consequential harm are causally related.Leavy, 117 F.3d at 746.
A motion for summary judgment should be granted when the pleadings and supporting materials show that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Kowalski v. L F Products, 82 F.3d 1283, 1288 (3d Cir. 1996). Summary judgment should be granted for the defendants in an Eighth Amendment failure to protect case when the plaintiff cannot show a genuine issue as to whether there was an excessive risk and whether the defendants were "deliberately indifferent" to the risk of harm. Leavy, 117 F.3d at 746. Deliberate indifference can be inferred if the prison official is actually aware of the facts that would support an inference of substantial risk. Leavy, 117 F.3d at 747.
Defendants argue that plaintiff has not met his burden of coming forward with evidence which would allow a reasonable factfinder to find that Warden McGuinness acted with deliberate indifference. According to defendants, when this Court focuses on "what a defendant's mental attitude actually was (or is), rather than what it should have been (or should be)," as the Third Circuit commanded it to do in Leavy, it is clear that there is no evidence that any prison official, including Warden McGuinness, had a sufficient state of mind. (Defs.' Reply Br. at 4.) It is for that same reason that defendants oppose plaintiff's informal request for leave to amend to substitute Firman, Oswald, and Schmidt as defendants.
It is true that plaintiff testified that he had no information to lead him to believe that anyone wanted to see him and Sampson involved in an altercation. (R. Kovalak Dep. at 92.) However, a reasonable juror could still find that McGuinness acted with deliberate indifference transcending mere negligence.
In Leavy, the defendants, who knew of the risk to plaintiff, had not simply done nothing in the face of that knowledge; rather, they had taken the step of recommending to the correctional institute that plaintiff be placed in protective custody. Leavy, 117 F.3d at 748. Though the defendants were without authority to effectuate their own recommendation, id., and though defendants "may be free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted," id. (citing Farmer, 511 U.S. at 844), the Third Circuit held that a jury could find that defendants nonetheless acted unreasonably. Id. Accordingly, the Third Circuit overturned the district court's grant of summary judgment. (Id. at 749.)
Here, it is uncontroverted that there was no notation in defendant's card that he had been in an altercation and should be kept away from Sampson. It is also uncontroverted that the guards at the gym did not know about the risk to plaintiff. However, a reasonable jury could find that McGuinness actually knew about the risk to plaintiff and took no meaningful steps to protect him. Though the defendants deny these allegations, plaintiff has presented evidence by way of his own sworn deposition testimony that Warden McGuinness knew about the altercation because he was standing with the guards as plaintiff filled out his guilty plea sheet. Plaintiff has also presented his own sworn testimony that Firman knew about the altercation and told guards to keep Sampson and plaintiff separate, though she allegedly did not follow through to see that segregation was brought to fruition. Plaintiff additionally presented evidence by way of his mother's sworn deposition testimony that Officers Oswald and Schmidt told her that plaintiff was in danger. Taking all inferences from this evidence in a light most favorable to the plaintiff, combined with the fact that all of these officers agreed that prison policy would call for any altercation to be noted and for the fighters to be segregated from one another, including in the gym, for their own safety as well as for the safety of the officers and prison population, a reasonable jury might well find that McGuinness had actual knowledge of the specific danger posed to Kovalak by Sampson, but nonetheless acted with deliberate indifference to plaintiff's safety, if none of these protective procedures were followed in the face of the known threat.
Though this evidence may be controverted by the testimony of the officers, it is up to the jury to make the credibility determinations necessary to deciding which version of the story is correct. Such credibility issues play no part in deciding a summary judgment motion.
Therefore, summary judgment is inappropriate as to defendant McGuinness.
B. Leave to Amend
Additionally, this Court will grant leave to amend the Complaint to include § 1983 claims against Deputy Warden Firman, Officer Oswald, and Officer Schmidt. Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend his pleading once before a responsive pleading is served, or thereafter upon leave of court or upon consent from his adversary. Id. "[L]eave should be freely given when justice so requires." Id. The trial judge's decision as to the amendment will only be overturned for an abuse of discretion. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (citing Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)). "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178 (1962).
While the grant of leave to amend should not be automatic, see Dover v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (D.N.J. 1993), it should be granted absent a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. The Third Circuit has set a liberal standard for amendment so that "a particular claim will be decided on the merits rather than on technicalities." Dole Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citing 6 C. Wright, A. Miller M. Kane, Federal Practice and Procedure: Civil 2d § 1471 (West 1990)).
Here, the defendants do not oppose amendment on any ground other than futility, arguing that amendment would be futile because summary judgment would in any case be granted for the additional defendants. However, it is not a foregone conclusion that summary judgment would be appropriate for the proposed additional defendants, and thus the amendment is not futile. Plaintiff shall file an Amended Complaint consistent with this Opinion within ten (10) days of today's date.
III. CONCLUSION
For the reasons stated above, defendant's motion for summary judgment will be granted in part and denied in part. Summary judgment will be granted to all defendants on Counts II and III and on the aspect of Count I which was based in 42 U.S.C. § 1985, and summary judgment will also be granted dismissing all claims against defendants GCP and Gill, as per the stipulation of the parties. Summary judgment is denied, however, as to defendant McGuinness on plaintiff's § 1983 claim. Additionally, plaintiff has leave to amend the Complaint to substitute Deputy Warden Firman, Officer Oswald, and Officer Schmidt for John Does I through III on plaintiff's § 1983 claim. Plaintiff shall file an Amended Complaint consistent with this Opinion within ten (10) days of today's date. The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motion of defendants Gloucester County Prison, Michael McGuinness, and Charles Gill, Jr., for summary judgment, and upon the informal motion of plaintiff, Robert Kovalak, to amend the Complaint to substitute Deputy Warden Shirleen Firman, Corrections Officer Jeffrey Oswald, and Corrections Officer Schmidt for John Does I through III; and the Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date;
All claims against defendant Department of Corrections have been dismissed previously.
IT IS this day of September 1999 hereby
ORDERED that defendants' motion for summary judgment shall be GRANTED IN PART AND DENIED IN PART as follows: Summary judgment is GRANTED to all defendants on Counts II and III and on those aspects of Count I based in § 1985; summary judgment is GRANTED to defendants Gloucester County Prison and Charles Gill, Jr.; and summary judgment is DENIED to defendant Michael McGuinness on plaintiff's § 1983 claim; and it is
ORDERED that the plaintiff is GRANTED leave to amend the Complaint consistent with this Order and the accompanying Opinion of today's date, and the plaintiff shall file an Amended Complaint consistent with this Opinion and Order within ten (10) days of today's date.