Opinion
3:19-cv-104-SLH-KAP
11-30-2022
ANDRE MARIE NGONO, Plaintiff v. GEO GROUP, INC., et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
RECOMMENDATION
Plaintiff Ngono's motion for summary judgment, ECF no. 78, should be denied. Defendant Geo Group, Inc.'s motion for summary judgment, ECF no. 81, should be granted. That (and see footnote 5 below) will terminate this matter.
Report
In 2019, Ngono, a Cameroon national serving a federal sentence imposed in the Southern District of New York after a jury convicted Ngono of theft of government funds, aggravated identity theft, wire fraud, student financial aid fraud, and immigration fraud, see United States v. Ngono, 801 Fed.Appx. 19, 20 (2d Cir. 2020), filed a pro se complaint subject to the Prison Litigation Reform Act at ECF no. 6, with a brief in support at ECF no. 7.
I use Ngono throughout. In his criminal trial, Ngono, proceeding pro se with standby counsel, testified that his real name was “Luc Ndi,” and that he was given the name “Andre Ngono” by an international criminal slave trade organization which brought him to the United States and provided him with free housing and education in exchange for five years of his salary. The evidence in support of Ngono's claim that his fraudulent actions were coerced by this organization was too insubstantial to warrant a jury instruction. In the removal proceedings against Ngono, he appears to have abandoned the claim that his name is Luc Ndi or Luc Ndi Owono, but in order to fight removal and in an attempt to obtain a T visa or a U visa, Ngono continues to argue that he was the victim of human trafficking and that he should remain in the United States until a civil lawsuit against his alleged traffickers was concluded. Ngono v. U.S. Attorney General, No. 21-10400, 2022 WL 853603, at *2 (11th Cir. Mar. 23, 2022).
Ngono's complaint alleged that when he was an inmate at the Moshannon Valley Correctional Center (a private prison then being operated by Geo Group, Inc. under a contract with the Bureau of Prisons mostly to house aliens convicted of federal crimes) he was placed in the RHU on December 12, 2017, with a cellmate named Richardo Balestero. (I continue to use Balestero throughout, although Ngono now contends the inmate's name was Ricardo Garcia Ballesteros, ECF no. 80 ¶7, and who may be Ricardo Amador Ballesteros Garcia, see United States v. Ricardo Ballesteros Garcia, 2022 WL 1080710 (C.A.11)(Brief for the United States)). Ngono alleged that Balestero identified himself as a former Cuban military officer, and acted strangely. Ngono did not “give much [thought]” about Balestero's behavior (much less say anything to anyone about it) because he was preparing his pro se direct appeal in his criminal case.
Ngono alleged that from December 23, 2017 to December 27, 2017, Balestero sexually assaulted him every day. Balestero allegedly threatened Ngono that he would kill Ngono if he reported the rapes and that because of his military experience it would take him less than three minutes to kill Ngono.
On December 28, 2017, corrections officers sprayed the cell in which Ngono and Balestero were held with “toxic gases.” This was described in the complaint only as “an unrelated incident” to the alleged rapes, but the record indicates that Balestero had and refused to surrender several razor blades. Corrections officers “let the gas [sit] on us for about five minutes,” which was “as terrifying as the five nights of rape and sexual assault.”
After Ngono was removed from the cell with Balestero, he alleged that corrections officers were going to put him back in the cell with Balestero and to prevent this, at this point he told a Lieutenant about the alleged assaults. The record indicates that Ngono thereafter also refused any cellmate despite being cited for his refusals. A short time later at a cell inspection, Ngono allegedly told the BOP's on-site representative, R. Hendrix, about the assaults. The staff at MVCC and Hendrix did not take the two actions Ngono sought: 1) “to investigate the rape;” and 2) “provide me with the psychological support I needed.” Ngono was transferred from MVCC in April 2018 to the Metropolitan Detention Center in New York City, where he reported the alleged assaults to BOP personnel. Ngono filed his complaint a little more than a year later from another Geo Group facility.
Contemporaneously with this complaint, Ngono was also litigating a prison conditions complaint in the Southern District of New York, alleging employees of the Bureau of Prisons assaulted him in 2016 and denied him medical care while he was in federal pretrial detention at the Metropolitan Correction Center in New York City. See Ngono v. United States, No. 19-cv-06854 (VEC) (DF), 2020 WL 8669737, at *2 (S.D.N.Y. Nov. 18, 2020), and 2022 WL 336963, at *3 (S.D.N.Y. Feb. 4, 2022). Discovery disputes in that case have spilled over into this matter.
I screened Ngono's original complaint, and rather than object to my Report and Recommendation Ngono filed an amended complaint at ECF no. 9 that named as defendants the Geo Group Inc., the United States, and five John Doe corrections officers allegedly involved in the cell extraction incident on December 28, 2017. The material allegations of fact were substantially unchanged from those in the original complaint. I then withdrew my Report and Recommendation at ECF no. 5 as moot and ordered service on the named defendants.
The United States successfully moved to dismiss the amended complaint. See ECF no. 53. Ngono's amended complaint proceeded on two state law claims against the Geo Group and the John Doe officers: (1) that the negligence or deliberate indifference of Geo Group employees caused the alleged assaults on Ngono by Balestero; and (2) the John Doe employees used excessive force (first in using toxic gas, second in handcuffing Ngono too tightly) on December 28, 2017.
The Court has specified the relevant claims against Geo Group several times. ECF no. 5 at 3-4, ECF no. 10 at 1; ECF no. 34 at 1-2. Nonetheless, in his motion for summary judgment and brief in support, plaintiff refers to numerous other claims including racism, promotion of racism, conspiracy, intentional infliction of emotional distress, and retaliation. ECF nos. 78-79. Ngono appears to be working from the draft of his proposed second amended complaint at ECF no. 44, a complaint he was not given leave to file, and which has already been explained to Ngono is a legal nullity. See ECF no. 53 at 1, n.1.
Plaintiff and Geo have filed cross motions for summary judgment. ECF nos. 78 and 81. 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 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 factual dispute, all reasonable inferences must be drawn in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986).
Negligence
Under Pennsylvania law, a successful negligence claim requires the plaintiff to prove: (1) a legal duty, requiring the defendant to conform to a standard of conduct; (2) the defendant's failure to conform to that duty, or breach; (3) a causal connection between the defendant's breach of duty and the plaintiff's injuries; and (4) damages. Martinez v. United States, 682 Fed.Appx. 139, 141 (3d Cir. 2017); Telespectrum, Inc. v. PSC, 227 F.3d 414, 422 n.9 (3d Cir. 2002) (citing Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998)).
As the Supreme Court of Pennsylvania has explained:
The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000). In Pennsylvania, “at common law a negligent act includes permitting real property to fall into disrepair, thereby creating an unreasonable risk to others outside the land, and that generally speaking, such a risk can include the predictable criminal acts of third parties.” Mascaro v. Youth Study Center, 523 A.2d 1118 (Pa. 1987). In this case, this concept translates to a duty on the part of Geo Group to maintain MVCC in a manner that did not create an unreasonable risk to Ngono from Balestero's alleged criminal acts.
The first and most striking this about the record in this matter is not the complete lack of evidence that Balestero presented any unreasonable risk to Ngono, it is that Ngono has made no attempt even to develop any evidence that Balestero presented any unreasonable risk to Ngono. As late as February of this year Ngono had made no effort even to ascertain Balestero's name. ECF no. 84-1 (Ngono Depo.) at 17. Geo Group argues that Ngono has not identified a duty on Geo's part to prevent rapes of which it was not aware and had no reason to be aware. ECF no. 82 at 4, 8. There is no dispute that Ngono did not inform anyone including any Geo Group employee about the alleged rapes before they ended. ECF no. 80 ¶18 (Ngono's assertion that he reported the sexual assault on December 28, 2017); ECF no. 83 ¶¶ 4-5; ECF no. 84-1 (Depo.) at 42-43, 4546. Ngono makes no effort to present any extrinsic evidence about Balestero that would have alerted any Geo Group employee before December 28, 2017, that Balestero presented an unreasonable risk to Ngono. Ngono asserts that Balestero's alleged actions were foreseeable to Geo Group “[b]ecause the malicious act of inmates raping other inmates is as old as the creation of the institution of prison itself.” ECF no. 88 at 2. Showing that an event has a nonzero probability is not what the third Althaus v. Cohen factor requires, nor does it allow a jury to find a risk to be unreasonable under Mascaro. Negligence differs from strict liability precisely in its requirement of evidence in a particular case that there was some heightened risk of harm. Because Ngono has not produced any evidence that there was any unreasonable risk of Balestero's alleged assaults, Ngono shows no genuine dispute of fact that would allow a jury to find Geo breached any duty to prevent him from being assaulted by Balestero. Summary judgment must therefore be granted to Geo Group on the claim of negligence.
Excessive force
Under Pennsylvania law, “officials charged with the custody of prisoners are privileged to use force which is reasonable under the circumstances to maintain control of their charges.” Picariello v. Fenton, 491 F.Supp. 1026, 1038 (M.D.Pa. 1980). “While corrections officers have the authority to use necessary force under appropriate circumstances, the reasonableness of this force in relation to their employment duties determines whether particular conduct is considered an assault and battery.” Bakhtiari v. Spaulding, 2017 WL 2778524, at *6 (M.D.Pa. June 27, 2017).
It is undisputed that on December 28, 2017, Ngono and Balestero were in their cell when Balestero refused to hand over to corrections officers four razor blades in his possession. ECF no. 80 ¶¶ 58-59; ECF no. 83 ¶¶ 14-15. It is further undisputed that the officers then sprayed oleoresin capsicum into the cell. ECF no. 80 ¶ 9; ECF no. 83 ¶¶ 17, 19. Both Ngono and Balestero were removed from the cell and handcuffed. ECF no. 80 ¶9; ECF no. 83 ¶18. Contemporaneous medical assessment during the decontamination process indicated to Geo Group personnel that Ngono had only the mucous membrane irritations normal to use of OC spray. Although Ngono began submitting administrative remedy requests seeking compensation for the alleged excessive use of force as early as January 2018, Ngono did not put in a sick call request until February 10, 2018, at which time he complained of a headache. ECF no. 80-1 at 78. Ngono offers no evidence relating that or any other injury to the use of OC spray or handcuffs.
The spray used is identified as OC spray, see e.g., ECF no. 80-1 at 10, also known as oleoresin capsicum or pepper spray. It is sometimes incorrectly lumped together with other riot control agents such as chloroacetophenone or o-chlorobenzylidene malononitrile that are commonly referred to as mace or tear gas. See Major v. Halligan, 2021 WL 6283944, at *7 n.6 (W.D. Pa. Nov. 17, 2021). OC spray has been in use for 50 years and its chemical properties are well known. Ngono's description of it as “toxic gas” creates no issue of material fact.
Ngono argues that any use of force against him was unreasonable because he did nothing that warranted the use of force. See ECF no. 79 at 15. Geo argues that the use of force was justified by the fact that Balestero was armed with four razors and therefore presented a serious risk to Ngono's safety as well as to the safety of corrections officers and Balestero himself. ECF no. 82 at 13-14. There is no little irony in the juxtaposition of Ngono's claims that Geo Group is liable both for allegedly not taking action to protect him from Balestero when there was no evidence of danger and for taking action to protect him from Balestero when there was obvious evidence of danger.
Since there can be no dispute that Balestero's conduct justified the use of force, the fact that Ngono was secondarily affected only creates a question of liability if the use of force would be considered so excessive as to Balestero that its spillover to bystanders like Ngono was excessive. There can be no doubt that an inmate in possession of actual, not just potential, weapons who is refusing orders to surrender them presents a threat to those around him justifying the use of force. The force used on Balestero was nonlethal agent specifically designed to incapacitate that threat by causing immediate pain but not bodily injury to Balestero. As a matter of law, Balestero could not establish that the force used against him was excessive.
Having cellmates create a disturbance or feign an altercation in order to lure a corrections officer into a position of danger is such an old trope that it tends to be played for laughs in modern entertainment, from Gilligan's Island to Galaxy Quest. But it is no laughing matter to corrections officers, who cannot be expected to leave one inmate uncontrolled at close quarters while focusing on the other, even if there were evidence in the record that they had had knowledge that Ngono was not a threat. Ngono's handcuffing after he and Balestero were sprayed cannot therefore be considered an excessive use of force in and of itself. Ngono presents no evidence in support of his claim that he was injured by the manner of the handcuffing or any other evidence that in his particular case his handcuffing was an excessive use of force. In his deposition, ECF no. 84-1, the reading in full of which I commend to any court reviewing this matter, Ngono disavows any memory of the handcuffing or any other events alleged in the complaint, Depo. at 24, or of any injury, Depo. at 25-26, or of any complaints to anyone outside the written grievances and complaints in the record. Depo. at 30. Ngono remembers suffering pain at the time he was handcuffed but nothing about the way he was handcuffed that would have caused any injury, Depo. at 54-55, and he does not claim and has never claimed that he made any complaint at the time to anyone that would have alerted them that his handcuffs were too tight. Depo. at 56, 63-64. It is worth noting that Ngono also has no lay evidence (including his personal opinion) or expert evidence that relates his current complaints of pain in his wrists to his brief handcuffing in December 2017, ECF no. 84-2 at 10 (Answer to Interrogatory 10); Depo. at 85-86, as opposed to some other event in the last five years, including an occurrence at one of the other prisons Ngono has sued. Depo. at 59-60.
The exchange on this topic is worth setting out because it is representative of the entire deposition:
Q. So what problems are you having today with your wrists?
Ngono: Pain.
Q. Just pain? Nothing else?
Ngono: I can't tell you anything else because I'm not a medical professional, but I don't know what pain means. I don't know what cause pain. So that's why they have to evaluate with radiology so they can tell me what is there.
Because there is no evidence that any Geo Group employee used excessive force, Geo Group has no vicarious liability for any employee, and is entitled to summary judgment on the excessive force claim as well.
Ngono has made no effort to identify the John Doe defendants identified as “Five Unknown Prison Guards” and as was explained to Ngono in January 2020, the time limit to identify these defendants and add them to the complaint expired at the end of the discovery period. ECF no. 5 at 4-5.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. Plaintiff is advised that 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).
Notice by ECF to counsel and by U.S. Mail to:
Andre Marie Ngono 132-10 South Conduit Avenue Jamaica, NY 11430