Opinion
3:18-cv-10-KRG-KAP
02-16-2022
JEFFREY SCOTT MILLER, Plaintiff v. BEDFORD COUNTY, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Plaintiff Jeffrey Miller filed a complaint on January 12, 2018, subsequently amended, alleging federal claims against Bedford County, the Bedford County Correctional Facility (Prison), its warden (Troy Nelson), and a corrections officer working in the RHU (Gary Habinyak), as a result of serious injuries plaintiff sustained from an attack by his cellmate on January 15, 2016, when plaintiff was a pretrial detainee in the RHU. Defendants have filed a motion for summary judgment and supporting documents. See ECF nos. 32, 41-44, to which plaintiff has responded. See ECF nos. 32, 41-44.
I recommend the motion for summary judgment be granted in part and denied in part.
Report
On January 10, 2016, Miller was placed in Cell Six in the RHU at the Bedford County Prison with one cellmate, James Dively. On January 15, 2016, Dively attacked Miller. Miller had been in the Bedford County Prison as a pretrial detainee for about four months, since September 4, 2015. Dively, also a pretrial detainee, had been in the RHU since about March 2015. Both had been inmates at the Bedford County Prison before. Miller, who had been detained in 2001 and 2004, asserts that he was not liked by prison staff as a result of these prior detentions. Amended Complaint at ¶30. Miller's prior offenses triggered sex-offender registration requirements; that was why he was in jail. There is no record evidence of any animosity toward Miller personally but there also does not seem to be any dispute that inmates who were sex offenders and particularly pedophiles were not popular with either corrections personnel or other inmates. Under a previous warden those inmates had been housed on a separate unit, and although there was no similar segregation in 2016, corrections personnel received and generally were open to moving inmates who objected to being housed near sex offenders. See Weyant depo. at 14-15, King depo. at 14, Stevey depo. at 12. According to the description of one corrections officer, Dively, who was about 20 years younger than Miller, was not big but was “stocky, ” while Miller was described as little and thin. Riegel depo. 29, 43. 1
Dively was so seriously mentally ill that several months earlier (in August 2015), Judge Livengood had -at the request of Dively's retained criminal defense attorney, who had been called by Dively's mother and told that Dively was refusing medication - found Dively to be incompetent to stand trial and issued an order that Dively be transported to Torrance State Hospital for evaluation and treatment if he was able to be made competent to stand trial. Cohen depo. at 9. Defense counsel for Dively and personnel at the Prison gave conflicting opinions about who bore responsibility for the failure to carry out Judge Livengood's order, but it is not in dispute that no one had attempted to carry it out by January 2016.
Miller had previously been celled with Dively for a day and a night in September 2015 when Miller was first detained at the Bedford County Prison and had been placed in the RHU on suicide watch. On that occasion Dively had threatened to beat Miller up in the presence of a lieutenant named McKenzie, and she had moved Miller. Miller depo. 19, 33. It is not clear why Miller was put back in the RHU on January 10, 2016 (it appears that the term used, “failure to adjust” or “failure to adapt, ” could be used to describe both risk of suicide and disciplinary problems, see Nelson depo. at 29) and Miller did not know why he had again been celled with Dively. Miller depo. 34-35. Miller believes that Dively assaulted him on January 15, 2016 with a sharpened toothbrush as well as fists and feet, which is consistent with defendants' internal investigation, see Warden's Report in Defendants' Exhibit 2, Habinyak depo. 42, but Miller has little recollection of the events of the attack or of the days preceding the attack because of the head trauma he suffered. Miller depo. 35, 47. Miller was life-flighted to Pittsburgh for medical care and remained there until he returned to the prison in August 2016. In 2017, Miller was sentenced on the charges pending against him. In 2019, Dively entered a counseled negotiated guilty plea to aggravated assault on Miller and was sentenced.
Warden Nelson testified that he was never aware of any behavioral issues with Dively before the assault. Nelson depo. at 36. Prison records indicate that during Dively's stay in the RHU a corrections officer (Weyant, see report in Defendants' Exhibit 2) needed to spray Dively with oleoresin capsicum on June 13, 2015 because Dively would not return his lunch tray, refused to comply with orders, and cursed and spat at the officer. Similar behavior had taken place on April 13, 2015 (McKenzie report). On May 28, 2015, Dively had been found with his sheets ripped into sections. And see King depo. The report did not need to comment on the obvious that strips of cloth could be used as weapons or for self-harm. On March 24, 2015, Dively was involved in a fight with another inmate. (McKenzie report). This event is what led to Dively being housed in the RHU. Weyant depo. at 10.
Dively's mental illness and its effect on his behavior were not secrets. Habinyak knew Dively was in the RHU because he “was on mental health.” Habinyak depo. at 10. A 2 former employee at the Bedford County Prison, Riegel, testified that all the RHU officers, in fact the whole prison staff, knew that Dively was unstable and mentally aberrant: he neglected his cell's cleanliness and his personal hygiene, masturbated constantly, claimed to be feeding “trolls” living under his bed, and spoke in gibberish. Riegel depo. 23 et seq. According to Riegel, the reason that Dively had been in the RHU for approximately nine months by January 2016 was that whenever Dively would be in the general population he would masturbate in the middle of the housing and the only way other inmates had to control the hygiene problem was to attack Dively. Former corrections officer King's account is consistent with this. King depo. at 11. Dively refused medications, Riegel depo. at 41, refused to stand up for count (May 2 and 9, 2019, Riegel report; November 4, 2015, Van Iveren report). He destroyed items in his cell. (October 14, 2015, Weyant report). He talked to his excrement and declared that he was Satan. Miller depo. at 46. He told corrections officers that they were Satan. McKenzie depo. There is a record of one occasion in October 2015 when Dively had another inmate in an ankle lock, Dively offering the explanation that the other inmate was trying to hurt Dively. (October 17, 2015, Conklin report). According to the shift commander, the other inmate admitted hitting Dively and putting him in a head lock (Bridges report). Apparently Dively received some administrative sanction for his role in the fight, but it is not clear what.
Dively's criminal defense attorney gave the lay opinion that Dively had the worst mental health of any client he has ever represented. Cohen depo. 33. He believed Dively had been removed from the prison to Torrance because in the fall of 2015 he stopped being called to Bedford County for the call of the list for Dively. Cohen depo. 20-21.
In the warden's supplemental investigative report dated January 19, 2016, Lieutenant Weyant reported to the warden that he had been in the RHU on January 13, 2016 and had asked Miller how things were going between him and Dively. According to Weyant, Miller made no complaints about Dively, and said that Dively “was comical.” A jury believing this supplement could take this as evidence that Miller made no complaints about Dively, but a jury could also take Weyant's question as evidence that he was aware of some potential problems. Miller's alleged response that Dively's behavior was “comical” also cuts both ways. In colloquial English, “funny” can mean “funny hah hah” as well as “funny strange.” Weyant does not appear to have followed up on Miller's comment, and if so a jury could conclude this is because he knew very well the odd behaviors Miller meant by “comical.”
The parties do not address the size of the Prison directly, but it is not a large place and that is context in which to evaluate the record. See Weyant depo. at 8, indicating that there was only one supervisory officer (lieutenant) per shift. The prison's daily census is therefore on the order of 100 inmates, not 1000 inmates. Because of speedy trial requirements it is certain that only some pretrial detainees would be at the prison for 3 almost a year. An RHU, generally speaking, loses its effectiveness as an inmate management tool if it is used indiscriminately, so the RHU population is a small percentage of the prison population. Looking at the few relevant records that the parties attach to their submissions, at the most the Prison's RHU probably held on the order of dozens of inmates, not hundreds of inmates, in the whole nine months Dively was there. Dively undoubtedly stood out.
The percentage of inmates found incompetent to stand trial and in need of removal to Torrance is certainly in the low single digits. Warden Nelson believed that during his tenure this event occurred less than ten times. Nelson depo. at 71. In fact, the occurrence is so rare that even after 2016 no one could agree on who had responsibility for following through on an order to move an incompetent inmate to a medical facility. Even if the Prison never received Judge Livengood's order, the finding of incompetency itself signifies that Dively's behavior was so extremely aberrant -and it had continued through such a lengthy stretch of pretrial incarceration in a small RHU in a small prison-that every corrections officer at the prison, Nelson and Habinyak included, must have known of it. The defendants' evidence offered to the contrary, Nelson depo. at 36 (never made aware of “any” behavioral issues with Dively) could easily be taken by a jury to be not credible.
As for most of the nondefendant personnel at the Prison, a jury could easily regard their testimony as a closing of the ranks. As an example, one supervisory officer, Weyant, grew up with Dively's father and had known Dively since he was a child. Weyant depo. at 9. Despite behavior sufficiently aberrant for Judge Livengood to have found Dively incompetent, Weyant said that he was not “really aware” aware of “any” mental health issues with Dively, then immediately conceded that he had heard - but only from other corrections personnel- that Dively made “weird comments” about Satan and religion.
Transporting an inmate to state or federal court is ordinarily a big deal, usually involving the cooperation and coordination of two separate law enforcement organizations, prison personnel (BOP, DOC, county prison personnel) and the agency responsible for court security (USMS, the county Sheriff). It is perhaps not a big deal for the Bedford County Prison, but it is almost beyond belief that supervisory officers would have no knowledge about why any inmate would be ordered to court, and especially in the case of a pretrial detainee. To the extent that any defendant claims that personnel at the Prison were unaware that Dively had severe mental health issues affecting his behavior, a jury could reject that based solely on the events of August 2015.
According to the depositions and the warden's investigative report and supporting documents, Dively's assault on Miller took place at midday on January 15, 2016. At 12:22, corrections officers Habinyak and King were the only two corrections officers on duty to 4 cover the RHU (including active suicide watch) and 13 new inmates in booking, see King depo. at 27-29. Riegel claimed that short staffing in the RHU was a known chronic problem. Riegel depo. at 10. At this time, Habinyak and King provided Miller a cot because Miller had reported medical problems that caused Miller to fall out of his top bunk. According to defendants' own record (the warden's report at Bates stamp 566), video footage from one minute after Habinyak and King left “shows Inmate Dively showing signs of acting out toward Inmate Miller.” Defendants' records indicate that inspection of the RHU was to take place every thirty minutes on the hour and half hour, but there was no 12:30 patrol. According to the warden's supplemental report, this was because two other matters were taking place in the booking area, one involving an inmate participating in a videoconference, and one an inmate being moved from Medical to Booking. By the warden's calculation, counting the 12:22 event as a patrol, the next time inspection of the RHU was due was 12:52. At least two inmates in the RHU were on suicide watch and required visual inspection every fifteen minutes. The prison records indicate this took place, but even so those inmates were in cells on the first tier of the RHU, not on the second tier where Cell #6 was.
The next patrol of Cell #6 took place at 13:00, when Miller was found beaten and stabbed through the left eye with a sharpened toothbrush, his bloody head lying on the cell toilet. Dively told the responding officers that Miller was “fighting him, ” but refused to give any statement when questioned in connection with criminal charges. According to the warden's more contemporaneous report, Habinyak noted that Dively also was “mouthing off” to Miller's unconscious and bleeding body until responding officers removed him from the cell. At his deposition, Habinyak recalled it differently, and said that Dively was standing quietly at the back of the cell. Habinyak depo. at 30. Defendants point out there is no evidence that other inmates in the RHU attempted to get the attention of corrections officers, but there is no dispute that the attack occurred, and since inmates turning a blind eye to fights between inmates is not unknown this lacuna is hardly material.
Because significant episodes of Dively's behavior before and during his placement in the RHU were directed at harming others or provoking others to harm him and were not just “ordinary” behavior threatening the orderly running of the prison, a reasonable jury could find that Dively's behavior posed a more than ordinary threat to any cellmate. A jury could find that this was known to all corrections personnel, including defendants. The best evidence that the prison staff subjectively knew that celling Dively with anyone created an excessive risk of harm is defendants' own behavior. The prison policy in general was to single cell inmates. Weyant depo. at 12-13. Because Dively was so offensive to other inmates he was celled in the RHU, where he was generally celled by himself, and only assigned a cellmate when the RHU was crowded. Prison officials are not liable for erroneous judgments, but a jury could find that Miller was celled with Dively in January 5 2016 not because someone made an erroneous judgment that it was now safe to place Miller with Dively again, but because they made no judgment at all.
The serious injuries to Miller were the result of a perfect storm: on January 15, 2016 Miller was in a short staffed and overcrowded RHU, and the officers on duty were also responsible for a busy booking area. Miller was in a cell with Dively, an inmate who should not have been in the Prison in the first place, an inmate who had been placed in RHU because it was recognized that he was mentally ill, and who it was recognized should be in a single cell because his behavior resulted in conflicts with other inmates. It may be that corrections personnel believed that Dively was the one more in danger from inmates who objected to his behavior, and on this score Dively's comment that Miller was “fighting him” (that is, that Miller was the aggressor) may have been true. Even if that is true, however, Dively's behavior presented a clear danger of altercations. Dively needed to be in a cell by himself. That the injury from the preventable altercation was to Miller and that the assault happened without an explicit threat by Dively does not mean a jury could not find that the fact that allowing Dively and Miller to be housed together demonstrated a deliberate indifference to an excessive risk of serious injury. That can be laid at the feet of defendant Nelson.
A finding of liability against Habinyak is possible, but the path is much narrower. If permitting Miller to be celled with Dively was deliberately indifferent under Farmer v. Brennan, that does not cover like a blanket every decision made by every defendant on the day of the assault. Even a gross judgment error is not deliberate indifference. A reasonable person might disagree that Habinyak and King were only eight minutes late with rounds of the RHU at the time they discovered the assault, or that the policy of patrolling the RHU on predictable intervals of thirty minutes on the hour and half hour was a sound one, or that the diverting the attention of officers on the day of the assault to handle nonemergency booking matters was wise. But those are not deliberate indifference under Farmer v. Brennan, 511 U.S. 825, 837 (1994). Habinyak could be found liable if a jury heard from the witnesses and viewed the available video and found Dively's behavior that is described as “acting out” caused Habinyak to subjectively conclude that Dively was an immediate threat. Habinyak could also be found liable if a jury found that Habinyak and King never inspected the RHU at all (relative to the suicide watch) and such an inspection would have prevented or reduced the injury to Miller. Such a jury verdict would be supportable on this record, which means the jury and not the Court must decide what Habinyak knew on January 15, 2016.
The Eighth Amendment prohibits corrections personnel from being deliberately indifferent to the danger to an inmate of being assaulted by another inmate. In Farmer v. Brennan, the Court explained what deliberate indifference means: 6
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless 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.511 U.S. at 837. The deliberate indifference standard does not make corrections personnel the insurers of inmates nor allow Monday morning quarterbacking. See Day v. Federal Bureau of Prisons, 233 Fed.Appx. 132, 133 (3d Cir.2007); Woloszyn v. County of Lawrence, 396 F.3d 314, 321 (3d Cir.2005). Even a gross error of judgment is not deliberate indifference. Farmer v. Brennan, supra, 511 U.S. at 843 n.8. But this is not a laissez faire legal regime either. See Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.1997). Circuit precedents applying Farmer v. Brennan describe two general types of claims. The first is where corrections personnel disregard a specific threat from a specific inmate. See Day v. Federal Bureau of Prisons, supra, 233 Fed.Appx. at 134. No. one could find that situation to be present here. Although a jury could be skeptical of the biases of corrections personnel at the prison, there appears to be no evidence of any complaint by Miller of danger from Dively before the assault, except for the complaint Miller made at his initial assignment to the RHU that resulted in McKenzie immediately moving Miller. No. jury could find liability on this theory.
The second, circumstantial Farmer v. Brennan claim is presented here: the facts that a jury could find on this record made the excessive risk of serious harm from putting someone with Dively so obvious that the corrections personnel can be inferred to have known of it. See Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.2001). The quintessential case of this type is Haley v. Gross, 86 F.3d 630, 642 (7th Cir.1996), in which the inmate plaintiff was burned to death in his cell because it had been taken off the general locking system because of his cellmate's actions and his cellmate, who was acting “like he was crazy” and who had openly threatened to set the cell on fire, did so.
What is an “excessive risk” is a context-specific task that requires a court to use its experience and common sense. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). That is because in the end the conclusion of deliberate indifference is a legal judgment. See Beers-Capitol v. Whetzel, supra, 256 F.3d at 137 (considering an expert opinion that deliberate indifference existed: “[I]t is our province to determine whether the factual conclusions in Cocoros's report support the legal conclusion of deliberate indifference.”)
A party moving for summary judgment bears the initial burden of pointing the district court to the basis in the record for its argument that there is no genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so, Fed.R.Civ.P. 56 then obliges the party opposing summary judgment to show by 7 competent evidence that there is a genuine factual dispute, that is, that sufficient evidence exists so that a reasonable jury applying the relevant law could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). Where there is a factual dispute, all reasonable inferences must be drawn in favor of the nonmoving party, in this case the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A jury that believed plaintiff's version of the historical facts described above could make a supportable finding of liability under the Farmer v. Brennan standard against Nelson or Habinyak, or both.
Defendants seek summary judgment on purely legal grounds. Under the Prison Litigation Reform Act of 1995 (PLRA), “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C.§ 1997e(a). “Available” means able to be used for a remedial purpose, even if the relief is not synonymous with that sought in a lawsuit, and “accessible.” See Ross v. Blake, 578 U.S. 632, 642 (2016). In Ross v. Blake, the Court offered a nonexhaustive list of examples in which a remedial process existed but was not available: (1) prison officials are unwilling to provide any relief to aggrieved inmates regardless of the merit of the grievance; (2) the procedural process is “so opaque that it becomes, practically speaking, incapable of use”; or (3) personnel take affirmative action to thwart use of the grievance process. A remedy is also unavailable to a prisoner when it is disclosed to an inmate in a language prison personnel know he cannot understand. Ramirez v. Young, 906 F.3d 530, 533 (7th Cir. 2018)(Inmate handbook in English did not make grievance system available to inmate who spoke no English). A grievance procedure is an important part of prison management, and there is no doubt that is why Congress mandates exhaustion, even when the grievance procedure cannot offer a meaningful remedy to the inmate. Booth v. Churner, 532 U.S. 731, 740.
Bedford County Prison has a grievance procedure. Its scope and its use are described at pages 14-15 of the inmate handbook. There are no time limits described for submitting a grievance or any requirement that the grievant be a current inmate, although such is clearly implied by the advice that an inmate with a grievance should first informally present the problem to a staff member. A grievance can cover “any issue” except for seven listed items which are “ not grievable matters” (emphasis in original), the fourth of which is “Department/Facility Policies and Procedures” and the seventh of which is “Other matters beyond the control of the BCCF.” These terms are not explained. An inmate handbook is to be given to inmates when they are oriented at the time of admission to the Prison. Defendants' records contain the remark that LPN Amanda Gardner gave Miller “a full explanation of the facility grievance mechanism” on the afternoon of September 4, 2015, when Miller arrived at the prison, and that RN Llana Altemus gave Miller “a full explanation of the facility grievance mechanism” on the afternoon of August 23, 2016, when Miller returned to the prison after medical care for 8 his assault. Defendants' Exhibit 2. Miller testified that orientation consisted of someone talking about “write-ups and stuff, ” Miller depo. at 21, but that he never received a copy of the inmate handbook or any explanation of the grievance process. Miller depo. at 22. Miller did not file any grievances while at the Bedford County Prison or before filing the complaint in court.
Precedent requires the Court to decide the issue of exhaustion, including the duty of deciding disputed facts. See Spada v. Martinez, 663 Fed.Appx. 112, 114 (3d Cir. 2016). If the Court were to hold a hearing and find Miller credible, then Miller had an intake interview at which he got a cursory oral explanation of write-ups and stuff but no information about the grievance process. But I recommend that the Court need not make findings of fact. That is because even if the Court concluded that Miller was given a copy of the grievance handbook, and even assuming that an LPN or RN read verbatim the grievance process contained therein, I would be hard-pressed to find an attorney who could in less than an afternoon explain whether “my cellmate is a danger to me, ” much less “you failed to protect me from my cellmate attacking me” are subjects that can be grieved under the Prison's policy. Since the grievance policy expressly counsels the inmate to attempt to resolve matters by informally bringing them to the attention of a staff member, a reasonable inmate could conclude that the grievance policy did not even apply to a retrospective grievance like “you failed to protect me from my cellmate attacking me.” The grievance procedure gives no hint on this score.
As the Supreme Court advises, when in doubt an inmate must err on the side of exhaustion. But -assuming Miller to have received a handbook- Miller could not have determined at all whether grievances about cell assignments or safety checks are excluded from the grievance procedure because they are matters of “Department/Facility Policies and Procedures” or because injuries caused by a third-party assailant is one of those “Other matters beyond the control of the BCCF.” As the Supreme Court stated in Ross v. Blake, when a remedy is essentially unknowable “so that no ordinary prisoner can make sense of what it demands” then it is unavailable. 578 U.S. at 644. While judges in this Court have stopped short of requiring the inmate handbook be in plain English, they do make it clear that language that “no ordinary prisoner could make sense of” cannot be interposed as a barrier to a lawsuit. Sarvey v. Wetzel, No. CV 16-157, 2018 WL 1519072, at *5 (W.D. Pa. Mar. 28, 2018)(Baxter, J.).
Bedford County's backup argument -that Miller should be out of court because there was no time limit specified in the grievance procedure and Miller (if Miller received the inmate handbook) did not file a grievance in August 2016- when he returned to the Prison after medical treatment is a “heads we win tails you lose” position that allows it to construe the scope of its grievance procedure after the fact. Whether Miller received a handbook in September 2015 is a question of fact. But even if Miller had received a 9 handbook in August 2016, read it, and understood it to apply to the events of January 2016, it would not bar his suit because that would allow a prison to play hide and seek with its administrative remedies.
Further, the Prison's grievance policy is written in plain English on one matter: it advises inmates that the sole result of the grievance process will be a “decision” on the grievance. That is equivalent to stating that the grievance will be responded to, but it is the content of the response that is a remedy: the response is not the remedy. A remedial program need not provide the relief sought in a lawsuit to be a remedy that the inmate must exhaust, but merely explaining the actions the prison will take in investigating and responding to an incident is not a “remedy.” Landau v. Lamas, 2019 WL 3502627 at *6 (M.D. Pa. Aug. 1, 2019)(finding that DC-ADM 008, which merely outlines the actions the DOC will take when investigating and responding to incidents related to sexual abuse, does not constitute a remedy). Allowing a government to give a retrospective interpretation of ambiguous language to defeat a lawsuit contravenes due process. Even in common law contracts, ambiguous language is construed against the drafter. Because as a matter of law the language of the inmate grievance process fails to give fair notice of its scope, the exhaustion defense would have to be rejected as a matter of law even if the Court as a finder of fact believed Miller did receive the inmate handbook.
Defendants Bedford County and the Bedford County Correctional Facility argue the additional defense that plaintiff has not produced evidence of a custom or policy necessary to allow a jury to find them liable. They are correct. After Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978), municipal defendants are liable for injuries caused by their illegal customs and policies but are not vicariously liable for their employees' actions. Plaintiff argues that Bedford County should be liable through Warden Nelson's actions and inactions. ECF no. 27 at 13. This is precisely the respondeat superior liability forbidden by Monell. To show that there is a jury question as to the liability of Bedford County and the Bedford County Correctional Facility, plaintiff would at least have to identify the custom or policy that allegedly caused injury to Miller. A policy is an official proclamation or edict, and plaintiff does not even claim that some formal edict caused corrections officers to leave Miller celled with Dively on January 15, 2016. Plaintiff would like a jury to conclude that the events of that day were pursuant to a custom, that is, a practice “so persistent and widespread as to practically have the force of law.” See Connick v. Thompson, 563 U.S. 51, 61 (2011). But plaintiff points to no evidence that the actions or inactions that permitted or caused the events of January 15, 2016 were pursuant to some recognized pattern of decisionmaking (much less decisionmaking by Nelson) that was either persistent or widespread. In fact, the odds are that this event was unique. Although at a high level of generality, a jury could find that the prison was persistently chaotic and short-staffed, the decision to permit Dively and Miller to be celled together is a single decision, not stemming from a custom or policy. 10
One more item. The Prison itself is named as a defendant, and defense counsel argues that as a department of Bedford County the Prison cannot be sued as a separate legal entity. ECF no. 25 at 32-33. In opposition, plaintiff baldly asserts that the Prison not a department of Bedford County. ECF no. 27 at 14. Generally, a county prison is not a separate legal entity from the county that operates it and is not a “person” that can be sued under § 1983. See Lenhart v. Pennsylvania, 528 Fed.Appx. 111, 114 (3d Cir.2013) (concluding that district court properly dismissed claims against county prison because even though “[a] local governmental agency may be a ‘person' for purposes of § 1983 liability [, the county prison] is not a person capable of being sued within the meaning of § 1983") (internal citations omitted). The Prison is entitled to summary judgment regardless of any fault of the employees working there.
Summary judgment should be granted as to Bedford County and the Bedford County Correctional Facility and denied as to Nelson and Habinyak. The matter should proceed to trial as to those two defendants.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error). 11