Opinion
Civil 1:21-CV-1694
08-28-2023
ALFONSO PERCY PEW, Plaintiff, v. CORRECTIONAL OFFICER ACE, et al., Defendants.
Brann Chief Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge.
I. Introduction
This case comes before us on a motion for summary judgment filed by the defendants. (Doc. 35). The pro se plaintiff, Alfonso Pew, is a state inmate in the Pennsylvania Department of Corrections (“DOC”). Pew is a frequent litigant in this court, having filed numerous civil rights cases, many deemed frivolous, regarding his incarceration. In the instant case, Pew sues five individuals-correctional staff at the State Correctional Institution at Rockview (“SCI Rockview”) where Pew was previously housed-for a violation of his civil rights. Pew brings an Eighth Amendment claim, but a claim of a curious sort. Pew does not allege that the defendants directly inured him. Instead, he claims that the defendants failed to protect him when correctional staff used OC spray on another inmate in another cell, and the chemical allegedly spread and injured the plaintiff. (Doc. 1). He also appears to assert that the defendants' failure to deescalate the situation which led to the other inmates being sprayed with OC spray violated his constitutional rights. (Id.) Pew seeks declaratory and injunctive relief, as well as compensatory and punitive damages. (Id.)
As we noted in an earlier Report and Recommendation regarding the defendants' motion to revoke Pew's in forma pauperis status, Pew concedes that he falls under the PLRA's “three strikes” provision due to his prior frivolous lawsuits. (See Doc. 26, at 5).
The defendants have now filed a motion for summary judgment. (Doc. 35). In their motion, the defendants first argue that Pew has not exhausted his administrative remedies as to his claims. They further contend that Pew has not shown that the five individual defendants violated his Eighth Amendment rights or his rights under the Pennsylvania Constitution by using OC spray on another inmate. After consideration, and for the reasons set forth below, we will recommend that the motion for summary judgment be granted.
II. Statement of Facts and of the Case
Alfonso Pew was incarcerated in the DOC at SCI Rockview in September of 2021, when the events alleged in the complaint took place. Pew alleges that on September 16, 2021, unidentified correctional staff used OC spray on another prisoner, inmate Lyons, who was housed in GB Block, B1 range. (Doc. 1, at 7). Pew contends that the amount of OC spray used on this inmate was so excessive that it travelled to GB Block, B2 range, where Pew was housed and injured him. (Id.) After the use of OC spray on this occasion, the complaint asserts that correctional staff turned off the inmate cell vents, brought in a mobile exhaust fan, and opened the back door as safety precautions. (Id.) Thus, Pew acknowledges that on this occasion staff took steps to mitigate incidental contact with this chemical agent. However, according to Pew no medical staff were brought in to assess the other inmates. (Id.)
The docket reflects that Pew is currently housed at SCI Phoenix.
On September 19, 2021, Pew allegedly asked Defendants Ace and Winn if they could shut off the inmate cell vents prior to deploying OC spray on another inmate. (Id.) The complaint then asserts that the defendants intentionally left the cell vents on and deployed an excessive amount of OC spray into the cell of another inmate, which Pew again alleges travelled to his cell and injured him. (Id.) Pew alleges that while the named defendants were the ones who deployed the OC spray, they were not part of an official CERT team and did not have a camera. (Id., at 8). He further asserts that on the September 19 occasion, the officers failed to turn the cell vents off. (Id.)
Thus, Pew alleges that these actions or inactions by the named correctional defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Specifically, Pew asserts that these defendants caused him harm by failing to negotiate with the inmate who was sprayed with this chemical agent and deescalate the situation. (Id., at 8-9). He further claims that the defendants failed to protect him by failing to take the safety precautions necessary after the OC spray was deployed, i.e., turn off the inmate cell vents, plug in the mobile exhaust fan, and open the back door. (Id., at 9). He brings his claims under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment, the Fourteenth Amendment, the Pennsylvania Constitution, and the Pennsylvania Code regarding inmate complaints. (Id., at 5).
For their part, the defendants argue that Pew has not exhausted his administrative remedies with respect to these claims involving the use of OC spray on September 16 and 19, 2021. Moreover, they assert that Pew has not shown that the named defendants have violated his constitutional rights.
The motion for summary judgment is fully briefed and is ripe for resolution. For the reasons that follow, we will recommend that the motion be granted.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its
opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. The Defendants' Motion for Summary Judgment Should be Granted.
As we have noted, Pew brings his claims pursuant to § 1983, alleging that the defendants violated his Eighth and Fourteenth Amendment rights. He also appears to assert claims under the Pennsylvania Constitution and the Pennsylvania Code. However, after consideration, we conclude that Pew's claims fail as a matter of law, and this motion for summary judgment should be granted.
1. Pew's Fourteenth Amendment Claim Fails under the More Specific Provision Rule.
At the outset, Pew's complaint appears to assert a general Fourteenth Amendment substantive due process claim arising out of the same factual scenario which supports his more specific Eighth Amendment claims. This he cannot do since Pew's broad due process claim is barred by the “more specific provision” rule.
The Fourteenth Amendment guarantees that no state shall deprive any person of life, liberty, and property without due process of law. U.S. Const. amend. XIV. However, the more specific provision rule informs us that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (quoting United States v. Lanier, 520 U.S. 259, 272 n.7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).
In this case the plaintiff's Fourteenth Amendment claim arises from the very same conduct upon which he bases his failure to protect claims, which fall under the Eighth Amendment's protections. In such instances, the more specific Eighth Amendment claims control, and the general due process claim should be dismissed. See Hitner v. Alshefski, 2020 WL 3288157, at *2 (M.D. Pa. 2020) (denying Fourteenth Amendment Due Process claim based on allegations of First Amendment access-to-courts and retaliation).
2. Pew's Eighth Amendment Claims are Unexhausted.
The record also reveals that Pew has not exhausted his Eighth Amendment claims as he is required to do under the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997. The PLRA requires prisoners to present their claims through an administrative grievance process prior to seeking redress in federal court. Specifically, the Act provides that: “No action shall be brought with respect to prison conditions under [§ 1983], or any other federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). In accordance with the PLRA, prisoners must comply with exhaustion requirements with respect to any claim that arises in the prison setting, regardless of the relief sought. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong”); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues”).
By its terms this exhaustion requirement only applies to “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). However, as the statute's language makes clear, if remedies are available, the exhaustion of these available administrative remedies prior to filing suit is mandatory. See Ross v. Blake, 136 S.Ct. 1850, 1853 (2016) (“That mandatory language means a court may not excuse a failure to exhaust”); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y. 1998)) (“[I]t is beyond the power of this court - or any other - to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis”). An inmate who fails to exhaust available administrative remedies is subsequently barred from litigating that claim in federal court. See Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000).
Moreover, the exhaustion requirement of the PLRA is one of “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to comply with the procedural requirements of the available grievance system will result in a claim being deemed procedurally defaulted. Id. at 90; Spruill v. Gillis, 372 F.3d 218, 22732 (3d Cir. 2004). An inmate cannot circumvent the PLRA's exhaustion requirement by failing to properly exhaust the prison's administrative review process, or by waiting until such remedies are no longer available to him. Woodford, 548 U.S. at 95. However, the Supreme Court has recently recognized a narrow exception to the exhaustion requirement built into the statutory language of the PLRA; a prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not available to the inmate. See Ross, 136 S.Ct. at 1853; see also Berry v. Klem, 283 Fed.Appx. 1, 4-5 (3d Cir. 2008) (“[W]e made clear ... that the PLRA requires exhaustion of all available remedies, not all remedies.”). Likewise, where an inmate “fail[s] to receive even a response to the grievances addressing ... incidents, much less a decision as to those grievances, the [administrative remedy] process [i]s unavailable to him.” Small, 728 F.3d at 273.
In this regard, case law recognizes a clear “reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires.” Davis v. Warman, 49 Fed.Appx. 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust will only be excused “under certain limited circumstances.” Harris v. Armstrong, 149 Fed.Appx. 58, 59 (3d Cir. 2005). In Ross, the Supreme Court of the United States articulated three circumstances where a prison's administrative procedures are “unavailable” to inmates. Specifically, the Supreme Court noted that administrative remedies are not available where: 1) the administrative procedure operates “as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; 2) the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; and 3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60 (citing Booth, 532 U.S. at 741 n.6). As to the second circumstance, the Supreme Court instructed that “[w]hen rules are so confusing that no reasonable prisoner can use them, then they are no longer available.” Ross, 136 S.Ct. at 1860 (quotation omitted). The Supreme Court further noted that “Congress has determined that the inmate should err on the side of exhaustion” where “an administrative process is susceptible of multiple reasonable interpretations,” however, where a remedy becomes “essentially ‘unknowable'-so that no ordinary prisoner can make sense of what it demands - then it is also unavailable.” Id.; see also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (holding that prisoner with failure to protect claim was entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (holding that exhaustion requirement was met where Office of Professional Responsibility fully examined merits of excessive force claim and correctional officers impeded filing of grievance).
Further, proper exhaustion is a prerequisite to litigation. A prisoner may not satisfy the PLRA's exhaustion requirement by exhausting administrative remedies after initiating suit in federal court. See Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (“If exhaustion was not completed at the time of filing, dismissal is mandatory”); Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (“Whatever the parameters of ‘substantial compliance' [with a prison's grievance procedures], it does not encompass ... the filing of a suit before administrative exhaustion, however late, has been completed”) (citations omitted).
Pennsylvania inmates ordinarily must exhaust administrative remedies in accordance with a three-tiered grievance system set forth by the DOC in DC-ADM 804. See Spruill, 372 F.3d at 232. Pursuant to DC-ADM 804, inmates must first file grievances with the Facility Grievance Coordinator at the facility where the events that give rise to the complaint occurred. If the inmate is dissatisfied with the initial review of his grievance, he may appeal the decision to the Facility Manager (i.e., the Superintendent). Upon receiving a decision from the Superintendent, the inmate may file an appeal with the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”) within 15 working days of the Superintendent's decision. DC-ADM 804. “Proper exhaustion in Pennsylvania requires completion of a three-part procedure; initial review, appeal, and final review.” Garcia v. Kimmell, 381 Fed.Appx. 211, 213 n.1 (3d Cir. 2010) (citing Spruill, 372 F.3d at 232). Again, compliance with the DOC's administrative grievance process is mandatory prior to bringing suit in federal court, and the failure to do so will result in that suit being subject to dismissal pursuant to the clear terms of the PLRA. Nyhuis, 204 F.3d at 73.
In the instant case, the record indicates that Pew did not submit a grievance regarding the issue of OC spray in September of 2021. Rather, Pew points to grievances he filed on other occasions, specifically in March, April, and November of 2020, which appear to relate to other incidents in which Pew alleged that he was injured by OC spray that was deployed on another inmate. (See e.g., Doc. 44-12). While it appears that he attempted to file a grievance dated September 23, 2021, at SCI Phoenix after he was transferred, nothing about the appeal response from SOIGA indicates what the substance of that grievance was. (See Doc. 44-11). Rather, the grievance chart produced by the defendants indicates that Pew filed one grievance at SCI Rockview after the September 2021 incidents, but this grievance related to “Property.” (Doc. 36-3, Attach. B., at 62).
Pew references these other incidents in his complaint in a curious fashion. He appears to describe these events which are similar to events that occurred in September of 2021 but alleges involvement by correctional staff who are not named as defendants in this action. (Doc. 1, at 10-14). Indeed, these instances occurred in the year prior to the instances that lie at the heart of the complaint in this case and are alleged to have been committed by parties who are not defendants to this litigation. Accordingly, to the extent Pew attempts to assert claims based on these instances in this case, these claims should be dismissed.
Accordingly, because Pew did not exhaust his administrative remedies with respect to these claims, he is now barred from asserting them in federal court. Moreover, even if we were to conclude somehow that Pew's claims were properly exhausted, for the reasons set forth below, Pew's Eighth Amendment claims fail as a matter of law.
3. Pew's Eighth Amendment Claims Fail as a Matter of Law.
At its core, Pew's complaint asserts that the named correctional defendants violated his constitutional rights because they failed to deescalate a situation with another inmate which led to that other inmate being sprayed with OC spray, which Pew alleges travelled into his cell causing him injuries. Thus, Pew's claims appear to assume that there is some transitive quality to the Eighth Amendment's protections against cruel and unusual punishment in the prison setting where an alleged use of excessive force against one inmate can give rise to collateral Eighth Amendment claims by inmates who were not involved in the original affray. Indeed, Pew is asserting a violation of his constitutional rights based upon what he characterizes is the excessive use of force against another inmate. Framed in this fashion, we conclude that Pew has failed to establish a violation of his constitutional rights. Additionally, even if Pew's allegations could state a colorable Eighth Amendment claim, we conclude that the correctional defendants would be entitled to qualified immunity.
Several overarching and animating constitutional considerations govern analysis of any Eighth Amendment claim. As the Court of Appeals has observed:
The Eighth Amendment protects against infliction of “cruel and unusual punishment.” However, “not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). “After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Id. (citation and internal quotations omitted). “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Id.
Resolution of an Eighth Amendment claim therefore “mandate[s] an inquiry into a prison official's state of mind.” Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Two considerations define that inquiry. We must first determine if the deprivation was sufficiently serious to fall within the Eighth Amendment's zone of protections. Id. at 298, 111 S.Ct. 2321. If not, our inquiry is at an end. However, if the deprivation is sufficiently serious, we must determine if the officials acted with a sufficiently culpable state of mind. Id. In other words, we must determine if they were motivated by a desire to inflict unnecessary and wanton pain. “What is necessary to establish an ‘unnecessary and wanton infliction of pain ...' varies according to the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).Fuentes v. Wagner, 206 F.3d 335, 344-45 (3d Cir. 2000).
Thus, while prison officials may violate an inmate's rights under the Eighth Amendment to the United States Constitution by displaying deliberate indifference to a substantial risk of serious harm to an inmate, an inmate asserting a failure to protect claim must make a precise showing to prove that claim. To sustain such a claim an inmate must:
[M]eet two requirements: (1) “the deprivation alleged must be, objectively, sufficiently serious;” and (2) the “prison official must have a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, “that state of mind is one of ‘deliberate indifference' to inmate health or safety.” Id. “Deliberate indifference” is a subjective standard under Farmer-the prison official defendant must actually have known or been aware of the excessive risk to inmate safety.Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
Thus, the Eighth Amendment deliberate indifference standard, at a minimum, calls for knowledge of some substantial risk to the health and safety of inmates, and a failure to act in the face of that known danger. There is a necessary corollary to this deliberate indifference standard. Specifically, it is clear that the concept of “deliberate indifference entails something more than mere negligence.” Farmer, 511 U.S. at 835, 114 S.Ct. 1970. Therefore, a mere accident or inadvertence on the part of corrections officials does not violate the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Even where a plaintiff has presented sufficient evidence to allow a factfinder to reach the inference that a prison official had knowledge of the risk on the basis that risk was obvious, it is clear that an inference may not be compelled, and that the prison official must be permitted to show that he was actually unaware of the risk in question. Beers-Capitol, 256 F.3d at 132. Lastly, a prison official who is shown to have been actually aware of a risk to a prisoner-plaintiff can avoid liability if he shows that he responded reasonably to the risk, even if the response did not avoid the ultimate harm. Id.
Finally, when considering an Eighth Amendment claim premised on the use of OC spray by prison staff, it is clear that
“[I]t is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary or for the sole purpose of punishment or the infliction of pain.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984); see also Thomas v. Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010) (noting that it is a violation of the Eighth Amendment “where chemical agents are used unnecessarily, without penological justification, or for the very purpose of punishment or harm”); Thomas v. Comstock, 222 Fed.Appx. 439, 442 (5th Cir. 2007) (noting that the use of chemical agents can violate the Eighth Amendment when done so as a “malicious or sadistic application of force”); Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (citing Soto for the same conclusion); cf. Jones v. Shields, 207 F.3d 491, 496 (8th Cir. 2000) (noting that “a limited application of [pepper spray] ... constitutes a ‘tempered response by prison officials' when compared to other forms of force”).Roberts v. Luther, No. 1:21-CV-00958, 2021 WL 5233318, at *7 (M.D. Pa. Nov. 10, 2021).
In the instant case, Pew has alleged that the defendants failed to protect him from a serious risk of harm when they used an excessive amount of OC spray on another inmate. For their part, the defendants attach a declaration of the Facility Grievance Coordinator at SCI Rockview, which indicates that on September 16, 2021, one application of OC spray was administered in cell 1007 due to the inmate's noncompliance with orders from staff. (Doc. 49-5, at 3). Similarly, the declaration states that one application of OC spray was administered in cell 1016 on September 19, 2021, due to the inmate's noncompliance with orders from staff. (Id.) Accordingly, Pew's allegation that the amount of OC spray used was so excessive as to pose a serious risk of harm to him, who was housed in a different cell, is belied by the record. Thus, in our view, Pew has not shown that the OC spray was used in a greater quantity than necessary on these other inmates who were noncompliant with staff orders. Nor has he shown that the use of OC spray on other inmates housed in different cells posed a serious risk of harm to him, and that the defendants were subjectively aware of such a risk. Accordingly, Pew's Eighth Amendment claim, whether couched in terms of excessive force or deliberate indifference, fails as a matter of law. See Gibson v. Flemming, 837 Fed.Appx. 860, 862 (3d Cir. 2020) (single unplanned use of OC spray did not violate the Eighth Amendment).
However, even if Pew could state a colorable Eighth Amendment claim on these facts, we believe that the correctional defendants would be entitled to qualified immunity. The doctrine of qualified immunity protects government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id. Qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Thus, so long as an official reasonably believes that his conduct complies with the law, qualified immunity will shield that official from liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555 U.S. at 244). Although qualified immunity is generally a question of law that should be considered at the earliest possible stage of proceedings, a genuine dispute of material fact may preclude summary judgment on qualified immunity. Giles v. Kearney, 571 F.3d 318, 325-26 (3d Cir. 2009).
Qualified immunity shields officials from liability for civil damages brought pursuant to section 1983 “so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). The official seeking qualified immunity has the burden of establishing their entitlement to the affirmative defense. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014) (citing Reedy v. Evanson, 615 F.3d 197, 223 (3d Cir. 2010)). To determine whether an official is entitled to the affirmative defense of qualified immunity for a section 1983 claim, a court must determine (1) whether the official violated a constitutional right and, if so, (2) whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion in deciding which of the two Saucier prongs should be addressed first).
A right is clearly established if “every reasonable official would have understood that what he is doing violates that right.” Mullenix, 577 U.S. at 11. To be clearly established, there does not have to be a case that is directly on point, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731,741 (2011)). In determining whether a right is clearly established, courts must not define the right “at a high level of generality.” Id. (quoting Al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074.) Rather, the analysis should focus on “whether the violative nature of particular conduct is clearly established.” Id. (quoting Al-Kidd, 563 U.S. at 742). On this score, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. It is the plaintiff who bears the initial burden of demonstrating that the constitutional right at issue was clearly established at the time of the claimed violation. See Davis v. Scherer, 468 U.S. 183, 197 (1984) (“A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”); Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (“Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right.”).
To determine whether a right is clearly established, the court may look to cases from the Supreme Court, controlling circuit precedent, or “a robust consensus of cases of persuasive authority” from other circuit courts. Porter v. Pa. Dep't of Corrs., 974 F.3d 431, 449 (3d Cir. 2020) (quoting Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017)). Unpublished cases cannot establish a right because they do not constitute binding authority. El v. City of Pittsburgh, 975 F.3d 327, 340 (3d Cir. 2020). In rare cases, the unlawfulness of a government official's conduct may be established from the obviously unlawful nature of the defendant's conduct “even though existing precedent does not address similar circumstances.” Wesby, 138 S.Ct. at 590 (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004)).
In the instant case, we cannot conclude that it was clearly established that inadvertent exposure to OC spray used against another inmate would violate an individual's Eighth Amendment rights. Indeed, several courts in this district have granted qualified immunity in this setting. See e.g., Rivera v. Redfern, 2023 WL 2139827, at *9 (M.D. Pa. Feb. 21, 2023) (Schwab, M.J.) (collecting cases and granting qualified immunity because “it is not clearly established that secondhand exposure to OC spray in response to another inmate's actions across the block, would violate an individual's rights”) (internal quotations and citations omitted); Stroman v. Wetzel, 2020 WL 1531325, at *6 (M.D. Pa. Mar. 31, 2020) (Conner, J) (“Defendants simply could not have recognized that their use of OC spray in response to another inmate's actions across the block would violate a ‘clearly established statutory or constitutional right[ ] of which a reasonable person would have known'”) (citations omitted); but see Roberts, 2021 WL 5233318, at *7 (M.D. Pa. Nov. 10, 2021) (Kane, J) (declining to grant qualified immunity where correctional staff sprayed OC spray within close proximity to the plaintiff's cell and directly into the RHU's ventilation system).
Given that Pew has failed to show that the defendants violated a clearly established right in this setting, the defendants are entitled to qualified immunity on these Eighth Amendment claims.
4. Pew's Claims under the Pennsylvania Constitution and Code Should be Dismissed.
Finally, Pew asserts claims under the Pennsylvania Code relating to inmate complaints. However, these claims appear to be asserted against individuals who are not named as defendants in this action. (See Doc. 1, at 12). Accordingly, to the extent Pew asserts claims under the Pennsylvania Code against unnamed defendants, these claims must be dismissed. See Baker v. United States, 642 Fed.Appx. 147, 151 (3d Cir. 2016) (citing Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998) (affirming the district court's decision granting summary judgment on the plaintiff's claims against unnamed defendants).
Likewise, Pew may not maintain a claim for damages based upon alleged violations of the Pennsylvania constitution. In this regard the law is clear. As we have observed:
The prevailing view in this circuit is that “Pennsylvania does not recognize a private right of action for damages in a suit alleging violation of the Pennsylvania Constitution.” Gary v. Braddock Cemetery, 517 F.3d 195, 207 n. 4 (3d Cir.2008); see also Farrell v. County of Montgomery, No. 05-3593, 2006 WL 166519, at *3 (E.D.Pa. Jan. 18, 2006); Kaucher v. County of Bucks, No. 03-1212, 2005 WL 283628, at *11 (E.D.Pa. Feb. 7, 2005).Hamilton v. Spriggle, 965 F.Supp.2d 550, 577 (M.D. Pa. 2013). Therefore, any Pennsylvania constitutional claims also fail as a matter of law and should be dismissed.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 35) be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.