Opinion
Civil Action 21-208
11-01-2023
KEITH ROSARIO, Plaintiff, v. WESTMORELAND COUNTY, PA, et al., Defendants.
Robert J. Colville, District Judge
REPORT AND RECOMMENDATION
Re: ECF No. 110
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Keith Rosario (“Plaintiff”), an inmate presently incarcerated at the State Correctional Institution Albion (“SCI-Albion”), brings this pro se action arising out of allegations that he was assaulted by prison officials at the Westmoreland County Prison (“WCP”). ECF No. 104.
Presently before the Court is Defendants' Motion for Summary Judgment. ECF No. 110. For the reasons that follow, it is respectfully recommended that Defendants' Motion for Summary Judgment be granted in part and denied in part, and that certain of Plaintiffs claims be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii).
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
On February 7, 2019, Plaintiff was convicted of multiple crimes, including attempted homicide, before the Court of Common Pleas of Washington County. ECF No. 112 ¶ 2. The same day, he was transferred from the Washington County Correctional Facility (“WCCF”) to WCP to await sentencing. Id. ¶¶ 3-4.
Plaintiff did not file a response to Defendants' Concise Statement of Material Facts, ECF No. 112, pursuant to Local Civil Rule 56(C). Accordingly, the facts set forth in Defendants' Concise Statement of Material Facts are deemed admitted. See, e.g., Gulley v. Haymaker, No. 06-131 J, 2009 WL 763549, at *2 (W.D. Pa. March 23, 2009).
Plaintiff received a disciplinary charge his first morning at WCP after refusing multiple direct orders to enter his cell for lockdown. Id. ¶¶ 6-9. As a result of this misconduct, Plaintiff was transferred to disciplinary custody. Id. ¶ 10. When he was transferred, Plaintiff alleges that Sgt. James A. Keenan (“Keenan”) denied his request for a grievance form and ignored another request for his “legal materials.” ECF No. 104 ¶ 33.
Several hours later, around 10:20 a.m., Lieutenant Brad V. Tomasello (“Tomasello”) visited Plaintiff in disciplinary custody to speak with him about his legal materials. ECF No. 112 ¶ 11. Upon arriving, Tomasello found that Plaintiff had urinated outside of his cell. Id.; ECF No. 113 at 45. Tomasello issued a second disciplinary charge to Plaintiff. ECF No. 112 ¶ 12. Asfor Plaintiffs legal materials, Tomasello told Plaintiff that he would need to demonstrate compliance before his legal materials would be returned. Id. ¶ 13.
Around 12:00 p.m., Plaintiff discharged his lunch tray through the wicket of his cell, causing his tray and its contents to be strewn across the floor. Id. ¶ 14. Asa result, Plaintiff was placed on a food loaf diet beginning at dinner on February 8, 2023, for a period not to exceed five days. Id.
According to Plaintiff, Defendants Walton, Schwartz and Tomasello placed him on the food loaf diet. ECF No. 104 ¶ 95.
About two hours later, Tomasello performed a security check of Plaintiff s cell. Id. ¶ 15. He saw that Plaintiff had thrown feces and urinated outside of his cell. Id. He also reported that Plaintiff screamed obscenities at him, and that Plaintiff tried to damage the cell door by kicking and hitting it with his fist. ECF No. 113 at 48. Based on this misconduct, Plaintiff received a third set of disciplinary charges, and the water to his cell was shut off. Id.; ECF No. 112 ¶ 15.
The next day, Tomasello performed another security check of Plaintiff s cell. ECF No. 112 ¶ 16. He found that Plaintiff had once again urinated and thrown his food loaf and feces all over the floor of his cell, despite being warned not to repeat this behavior. Id. Plaintiff was issued a fourth disciplinary charge. Id.
Around 2:00 p.m., Sergeant Brandon Gelet (“Gelet”) went to Plaintiffs cell, handcuffed him, and discussed Plaintif s complaints and the ongoing conduct issues. Id. ¶ 17. According to Plaintiff, he told Gelet that he wanted his legal materials, and that he had been denied access to the grievance process. Id. ¶ 18. Gelet informed Plaintiff that his legal documents, meal, and water service would not be restored until Plaintiff stopped misbehaving. Id. He also warned Plaintiff that if he did not cooperate, the next disciplinary step would be placing Plaintiff in a restraint chair. Id. ¶ 20.
Around 4:30 p.m., Officer Matthew Molans performed a security check and observed Plaintiff urinating outside of his cell door. Id. ¶ 21. Plaintiff was issued his fifth disciplinary charge in two days. Id.
Gelet informed Lieutenant Dayton Wolfe (“Wolfe”) of Plaintiff s continued misconduct. Id. ¶ 22. Wolfe directed Gelet to remove Plaintiff from his cell, because he was causing an unsafe work environment for staff, and to place him in a restraint chair. IE; ECF No. 113 at 52. Gelet, together with Officers Jeremy Lynn (“Lynn”) and Jeffrey McCreary (“McCreary”), went to Plaintiffs cell to secure him in handcuffs and shackles before being placed in the restraint chair. ECF No. 112 ¶ 23; ECF No. 113 at 52. When they arrived, however, Plaintiff repeatedly refused commands to place his hands out of the cell wicket to be cuffed. ECF No. 112 ¶ 23.
At Wolfe's direction, Gelet assembled a cell extraction team to remove Plaintiff from his cell, which included Lynn, McCreary, Officer Alexander Caruso (“Caruso”), Officer James Bryan (“Bryan”), Officer Eric Schrock (“Schrock”), and Officer Robert Fagan (“Fagan”), as the camera operator. Id. ¶ 24; ECF No. 113 at 52.
Gelet returned to Plaintiffs cell with his extraction team. He gave Plaintiff three direct orders to place his hands through the wicket to be handcuffed. ECF No. 112 ¶ 26. Plaintiff refused to comply. Id.
Gelet warned Plaintiff that oleoresin capsicum (“OC”) spray would be administered, and he then sprayed a three-second burst through the cell door wicket. Id. ¶¶ 27-28. Plaintiff blocked the wicket, so that the spray could not reach him. Id. Gelet then administered OC spray through openings along the side of the cell door, which resulted in Plaintiff being affected by the spray. Id.; ECF No. 113 at 53.
Once Plaintiff was sprayed, the cell extraction team entered the cell and gained tactical and forcible control of Plaintiff ECF No. 112 ¶ 29. As to how this occurred, Plaintiff and Gelet offer different accounts.
According to Plaintiff, there is video of this incident that he was granted access to view during discovery. ECF No. 107 at 5. However, Defendants have not produced this video for the Court's review at summary judgment and do not rely on it in support of their motion.
According to Plaintiff, he was disoriented by the OC spray and did not resist. ECF No. 104 ¶¶ 48-49. Nevertheless, he alleges, he was “ambushed and attacked” by Caruso, Lynn, McCreary, Bryan, and Schrock. Id. ¶ 48. Plaintiff asserts that Caruso entered his cell with a riot shield and rammed into him, knocking him to the ground. Id. ¶ 49. Caruso put his full weight on Plaintiff and slammed Plaintiffs body into the bedframe, causing his head to bounce off the frame, and then Caruso proceeded to punch and kick him in the back. Id. ¶ 50. Lynn punched, kicked, and eye gouged Plaintiff. Id. ¶ 51. McCreary wrapped his fist with handcuffs to fashion “brass knuckles” and hit Plaintiff in the back of the head, causing multiple lacerations. Id. ¶ 52. Bryan stomped and punched Plaintiffs upper right leg, which gave him an “intense deep bruise.” Id. ¶ 53. Shrock twisted Plaintiffs right ankle “as if he wanted to detach it from its socket”-causing Plaintiff to limp for months after. Id. ¶ 54. Caruso, Lynn, and McCreary whispered remarks including “[y]ou like filing grievances?” and “[y]ou won't be filing anything anymore boy!” Id. ¶ 56. Gelet supervised this conduct, while Fagan recorded the incident from an obstructed vantage point. Id. ¶¶ 47-48.
According to Gelet's report of the incident, however, Plaintiff actively resisted the extraction team's efforts. He continued to move and kick his legs and placed his hands underneath his body, making it difficult to apply restraints and gain control. Gelet continuously gave Plaintiff verbal orders to stop resisting. In an attempt to gain control, McCreary threw “multiple closed fist strikes to [Plaintiffs] shoulder area,” and Lynn “threw one knee strikef.]” ECF No. 113 at 53.
Once he was secured in wrist and leg restraints, Plaintiff was taken to the showers to be decontaminated of the OC spray. ECF No. 112 ¶ 30. He was then escorted to the medical unit and treated by two licensed practical nurses, medically cleared, and placed in a restraint chair. Id. ¶¶ 30-31. While in the restraint chair, Plaintiff was monitored by medical staff every fifteen minutes. Id. ¶ 33.
Plaintiff was removed from the restraint chair after several hours, around 1:00 a.m. to 2:00 a.m., on February 10,2019. Id. ¶ 32. He was evaluated and observed to have two small, superficial lacerations on the back and top of his head. Id. ¶ 33.
On February 12, 2019, Plaintiff was transported from WCP back to WCCF. He was medically evaluated and cleared before being transported to the State Correctional Institution at Greene (“SCI-Greene”) on February 22, 2019, and later to SCI-Albion on March 7, 2019. Id. ¶¶ 34-35.
Plaintiff alleges that he wrote Eric Schwartz (“Schwartz”), Deputy Warden at WCP, a letter from SCI-Greene about the assault on February 18, 2019, but he never received a response. ECF No. 104 ¶¶ 87-88. After arriving at SCI-Albion, Plaintiff filed a grievance regarding events at WCP. ECF No. 112 ¶ 35. Officials at SCI-Albion rejected this grievance, noting that it involved matters that occurred at another facility and should be directed by the inmate to the appropriate facility. Id.
2. Relevant Criminal History
In 2011 and 2013, Plaintiff was criminally accused of twice selling drugs to a confidential informant and possession of a firearm not to be carried without a license (the “First Charges”). Commonwealth v. Rosario, Nos. 789 WDA 2019, 799 WDA 2019 and 800 WDA 2019,2020 WL 1889121, at *1 (Pa. Super. Ct. Apr. 16, 2020). On May 4, 2015, Plaintiff entered a global guilty plea at all three criminal docket numbers. Id. The same day, he was sentenced to prison. Id.
Plaintiff was later paroled; however, while on parole, he was charged with attempted homicide, aggravated assault, kidnapping and firearms charges (the “Second Charges”). Id. As a result, the Commonwealth alleged that Plaintiff violated the terms of his parole and probation as to the First Charges. Id. At the end of a hearing on May 7,2018, the trial court found that Plaintiff was in violation of his supervision and revoked his parole and probation. Id. He was resentenced on February 21,2019, to complete the balance of his terms of imprisonment as to the First Charges. Id.
Counsel for Plaintiff moved to reconsider his resentencing as to the First Charges on March 4,2019. Id. at *2. Although the trial court denied the motion for reconsideration, his resentencing was later vacated on appeal. Id.; Commonwealth v. Rosario, 294 A.2d 338 (Pa. 2023).
On February 7, 2019, Plaintiff was convicted on the Second Charges. ECF No. 112 ¶ 2. As discussed, he was transferred from WCCF to WCP the same day to await sentencing. Id. ¶¶ 34. Approximately four months later, he was sentenced as to the Second Charges on June 3, 2019. Ii¶3.
3. Procedural History
Plaintiff began this lawsuit by submitting a Motion for Leave to Proceed in forma pauperis (“IFP”), together with a proposed Complaint. ECF No. 1. IFP status was granted on April 9, 2021, and his original Complaint was filed on the same date. ECF Nos. 3 and 4.
On May 14, 2021, this Court issued a Report and Recommendation (“R&R”) recommending that all of Plaintiffs claims in the initial Complaint be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). ECF No. 10 at 1. The undersigned recommended that Plaintiffs claims against Defendant WCP be dismissed with prejudice, as they were duplicative of Plaintiffs claims against Defendant Westmoreland County, PA (the “County”). Id. It was recommended that Plaintiff be granted leave to amend as to all other claims. Id.
Plaintiff did not file objections to the R&R, and United States District Judge Robert J. Colville issued an order on June 8, 2021, adopting the R&R as the Court's opinion. ECF No. 11. In the Order of June 8, Judge Colville confirmed that Defendant WCP was dismissed with prejudice. Id. at 2.
On July 29, 2021, Plaintiff timely submitted an Amended Complaint. ECF No. 14. Because Plaintiff improperly repleaded claims against WCP, the Court sua sponte dismissed the WCP. ECF Nos. 15 and 16.
Defendants then moved to dismiss Plaintiffs Amended Complaint based on the statute of limitations. ECF No. 37. After the Motion to Dismiss was denied, Defendants answered the Amended Complaint. ECF Nos. 46, 47 and 49.
The Court entered a Case Management Order scheduling fact discovery to be completed by September 12, 2022. ECF No. 48. The deadline to complete discovery was twice extended to January 31, 2023, at Plaintiffs request. ECF Nos. 60, 61, 62, 89 and 90.
The Court then granted Plaintiffs request to amend his Complaint, and the operative Second Amended Complaint was filed on March 8, 2023. ECF Nos. 102 and 104. In his Second Amended Complaint, Plaintiff asserts the following claims: Denial of Eighth Amendment Right to be Free from Cruel and Unusual Punishment (Count I); Bystander Liability/Failure to Intervene (Count II); Denial of Fourteenth Amendment Right to Protection and Due Process (Count III); Denial of Fourteenth Amendment Right to be Free from Retaliation and Conspiracy (Count IV); and Monell Claim, Abuse of Policies or the Use of Unwritten Policies and/or Customs (Count V). ECF No. 104 at 12-16.
Plaintiff asserts claims against these Defendants: the County, Westmoreland County Commissioner Ted Kopas (“Kopas”), Westmoreland County Commissioner Charles W. Anderson (“Anderson”), Warden John R. Walton (“Walton”), Deputy Warden George Lowther (“Lowther”), Schwartz, Tomasello, Wolfe, Gelet, Sergeant Nicholas D. Carmichael (“Carmichael”), Keenan, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan.
On March 21,2023, Defendants filed an Answer to the Second Amended Complaint. ECF No. 106.
4. Motion for Summary Judgment
On May 17, 2023, Defendants filed the instant Motion for Summary Judgment and Brief in Support, together with a Concise Statement of Material Facts and Appendix. ECF Nos. 110, 111, 112 and 113.
Plaintiff filed a Brief in Opposition to the Motion for Summary Judgment on October 3, 2023. ECF No. 121.
The Motion for Summary Judgment is now ripe for consideration.
B. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[t]he 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). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof'). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion ... a 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 of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp, v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
1. Failure to Exhaust Administrative Remedies
Defendants first move for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies. ECF No. 111 at 10-13. The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that a prisoner exhaust available administrative remedies before filing an action challenging prison conditions or experiences. Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner, confined in any jail, prison or correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. Thus, the benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219.
As the United States Court of Appeals for the Third Circuit has explained:
The PLRA requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford v. Ngo, 548 U.S. 81, 88,126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016).
While exhaustion of administrative remedies is mandatory under the PLRA, “[a] prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not ‘available'” to the inmate. Ross v. Blake, 578 U.S. 632, 636 (2016). “The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such remedies as are ‘available.'” Id. at 648 (quoting § 1997e(a)). In other words, “the exhaustion requirement hinges on the ‘availability' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642. “[T]he ordinary meaning of the word ‘available' is ‘capable of use for the accomplishment of a purpose,' and that which ‘is accessible or may be obtained.'” Id. (quoting Booth v. Chumer, 532 U.S. 731,737-38 (2001)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Booth, 532 U.S. at 738).
“The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). “But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” Id. (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 (10th Cir. 2011)).
In support of the Motion for Summary Judgment, Defendants argue that Plaintiff failed to exhaust his administrative remedies because he never directed any grievance about his allegations in this lawsuit to WCP. Although Plaintiff claims to have been denied his request for a grievance form, Defendants argue, he never made this request in writing or repeated his request after it was denied. Defendants also assert that the grievance Plaintiff later submitted at SCI-Albion was not properly directed to WCP. ECF No. 111 at 10-13.
In response, Plaintiff argues that the grievance process was unavailable to him because he was not provided with a grievance form at WCP upon his request. He tried to file grievances after he was transferred out of WCP three days after the incident at issue, Plaintiff argues, but the grievances were not responded to or rejected because he was at a different facility. Given his inability to file a grievance, Plaintiff argues that summary judgment is improper on this basis. ECF No. 121 at 1-2.
Upon review, Defendants do not satisfy their burden to show that Plaintiff failed to exhaust administrative remedies. As discussed, “[i]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. Because Defendants do not show what, if any, grievance process Plaintiff needed to follow at WCP, the Court cannot conclude that Plaintiff failed to comply with that process. Therefore, the Court should deny the Motion for Summary Judgment on this basis.
2. Legal Claims
While Plaintiff frames his claims in five counts, those counts include multiple and redundant claims. Within Plaintiffs five counts, the Court discerns seven potential claims: (1) Use of Excessive Force (Counts I and III); (2) Conditions of Confinement (Count I); Failure to Intervene/Bystander Liability (Count II); (3) Denial of Access to Grievance Process (Count III); (4) Denial of Access to Courts (Count IV); (5) Retaliation (Count IV); (6) Conspiracy (Count IV); and (7) Monell/Unconstitutional Policies (Count V). ECF No. 104 at 12-16. The Court will address each of these seven claims below.
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Because Plaintiff is proceeding pro se, the Court liberally construes his Complaint and employs less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
a. Use of Excessive Force Claims (Counts I and III)
Plaintiff appears to assert a use of excessive force claim under the Eighth and Fourteenth Amendments in Counts I and III against Defendants Kopas, Anderson, Walton, Lowther, Schwartz, Tomasello, Wolfe, Gelet, Caruso, Carmichael, Keenan, Lynn, McCreary, Bryan, Schrock, and Fagan. Id. ¶¶ 92-94, 105.
Plaintiff also includes the County as a Defendant in Count I. However, this claim appears to be duplicative of his “Monell” claim in Count V, which is addressed separately below.
In support of the Motion for Summary Judgment, Defendants assert that the Eighth Amendment “protects convicted prisoners from excessive force that is malicious and sadistic uses of physical force by prison officials.” In this case, Defendants argue, there was no “malicious or sadistic use of force,” noting that Plaintiff admittedly refused to place his hands in the wicket to be cuffed, and he showed non-compliant and increasingly defiant behavior before the cell extraction. Under these circumstances, Defendants argue that Plaintiff s forcible removal was not excessive; rather, the use of force was necessary to restore and maintain discipline in the facility. As for Defendants other than Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan (the “extraction team”), Defendants argue there is no legal basis to hold them liable for any alleged use of excessive force. ECF No. 111 at 14-18 & n. 2.
Defendants refer to Wolfe as part of the extraction team, but his role, if any, in the cell extraction is not clear from the record. Based on documents provided, Wolfe approved the cell extraction, and Plaintiff places him at the scene after he was physically removed from his cell. ECF No. 113 at 52; ECF No. 104 ¶ 60.
In response, Plaintiff argues that he was left injured and bloodied because of the excessive force that prison officials used. Even if he did not place his hands in the wicket, he argues, it was only because he “feared the worst,” and this did not justify beating him. He states that it is evidence of malicious and sadistic intent that prison officials did not clearly document the assault and his injuries. ECF No. 121 at 2-3.
(1) Status of Plaintiff
Plaintiff claims that Defendants violated his constitutional rights under both the Eighth and Fourteenth Amendments based on the alleged use of excessive force. Prison officials are required to “provide humane conditions of confinement,” and must take “reasonable measures to guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). “For prisoners incarcerated following a conviction, the government's obligation arises out of the Eighth Amendment's prohibition on cruel and unusual punishment.” Cameron v. Bouchard, 815 Fed.Appx. 978, 984 (6th Cir. 2020); see also Murray v. Keen, 763 Fed.Appx. 253, 255 (3d Cir. 2019). When a pretrial detainee is challenging the conditions of his confinement, however, the claim arises instead under the Due Process Clause of the Fourteenth Amendment. See E.D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (citing Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008)). To determine which constitutional provision applies, then, it is necessary to consider Plaintiffs detention status at WCP.
As this Court has held, Plaintiff was a pretrial detainee from September 6, 2017 (the date of his arrest on attempted murder charges) until February 21, 2019 (the date of his conviction of the parole violation and resentencing). Rosario v. Strawn, No. 19-1040, 2020 WL 6730975, at *5 & n. 5 (W.D. Pa. July 29, 2020) (addressing this same issue in Plaintiffs prior case), report & recommendation adopted, 2020 WL 5810009 (W.D. Pa. Sep. 30,2020), aff'd, 2022 WL 3151963 (3d Cir. Aug. 8, 2022).
Portions of the R&R were not adopted as moot because of plaintiff's subsequent request to dismiss certain of his claims. Rosario, 2020 WL 5810009, at *9.
Although Plaintiff was found guilty of attempted homicide and other crimes on February 7,2019, he was not sentenced until June 3,2019, with respect to those crimes. Because the Eighth Amendment does not apply until “after sentence and conviction,” his claims about events at WCP from February 7 to 10, 2023, do not arise under the Eighth Amendment. Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (citing Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989) (emphasis added)); see also id. at *5 n. 5. Therefore, Plaintiffs Eighth Amendment claims should be dismissed, and the Court construes Plaintiffs claims arising out of the use of excessive force under the Fourteenth Amendment.
Indeed, the parties agree in the operative pleadings that Plaintiff was a pretrial detainee during relevant time. ECF No. 104 ¶ 23; ECF No. 106 ¶ 23.
(2) Claims against Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan
The Court first considers Plaintiffs use of excessive force claim against Defendants Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan-all of whom Defendants characterize as members of the cell extraction team. ECF No. 111 at 13.
As discussed, Plaintiffs claim is governed by the Due Process Clause of the Fourteenth Amendment, which “protects a pretrial detainee from the use of excessive force that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (quoting Graham, 490 U.S. at 395 n. 10). “To demonstrate a due process violation, a detainee must prove ‘that the force purposely or knowingly used against him was objectively unreasonable,' meaning ‘that the actions [were] not ‘rationally related to a legitimate nonpunitive governmental purpose.'” Robinson v. Danberg, 673 Fed.Appx. 205, 209 (3d Cir. 2016) (quoting Kingsley, 576 U.S. at 397-98).
The following six “Kingsley factors” are considered when evaluating a pretrial detainee's excessive force claim: “[1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiffs injury; [3] any effort made by the officer to temper or limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting?' Id. (quoting Kingsley, 576 U.S. at 397).
Upon review, the Motion for Summary Judgment should be denied as to Plaintiffs Fourteenth Amendment use of excessive force claim against the extraction team: Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan. Despite acknowledging Plaintiffs pretrial detainee status, ECF No. 106 ¶ 23, Defendants' motion incorrectly applies the subjective Eighth Amendment standard and does not apply the Kingsley factors. While Defendants maintain their conduct was not “sadistic and malicious,” the United States Supreme Court has clarified that “pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.'” Kingsley, 576 U.S. at 400 (quoting Ingraham v. Wright, 430 U.S. 651 (1977)).Defendants thus fail to support the entry of summary judgment on this basis.
Defendants also confusingly refer the Court to Grandison v. Cuyler, 774 F.2d 598 (3d Cir. 1985) regarding the relevant standard for whether “significant injury” is required to establish Plaintiffs claim and in support of the conclusion that Plaintiffs forcible removal was not excessive or unwarranted. ECF No. 111 at 16-17. Grandison does not concern any claim for the use of excessive force; instead, it relates to an inmate's claim that he did not receive an opportunity to prepare for and present witness testimony at a misconduct hearing. This case is not arguably relevant to Plaintiffs claims, and it does not support the entry of summary judgment in Defendants' favor.
Considering the lack of video evidence before this Court and the parties' competing narratives as to the extent of force and whether Plaintiff resisted after being OC sprayed, there are also questions of fact as to the force used in the cell extraction that preclude the entry of summary judgment on these grounds. Accordingly, the Motion for Summary Judgment should be denied as to Plaintiff's use of excessive force claim under the Fourteenth Amendment against Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan.
(3) Claims against Kopas, Anderson, Walton, Lowther, Carmichael, Keenan, Tomasello, and Schwartz
As for Plaintiffs use of excessive force claim against Kopas, Anderson, Walton, Lowther, Carmichael, Keenan, Tomasello, and Schwartz, however, summary judgment should be granted based on their lack of personal involvement. In a civil rights claim, as here, individual government defendants must have personal involvement in the alleged wrongdoing and “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds, Taylor v. Barkes, 135 S.Ct. 2042 (2015) (quoting Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)); see also Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014). “Rather, state actors are liable only for their own unconstitutional conduct.” Barkes, 766 F.3d at 316.
Although supervisors cannot be held liable pursuant to a theory of respondeat superior, the United States Court of Appeals for the Third Circuit has identified “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Id. First, a supervisor may be personally liable under § 1983 if he ‘“participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced' in the subordinate's unconstitutional conduct.” Id. (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, a supervisor-defendant is liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting A.M. ex rel. J.M.K. Luzerne Cnty. Juvenile Det. Ctr, 372 F.3d 572, 586 (3d Cir. 2004)).
Based on the record construed in the light most favorable to Plaintiff as the non-moving party, there is no evidence these Defendants participated in violating Plaintiffs rights, directed others to violate them, or as the person in charge had knowledge of and acquiesced in any unconstitutional use of excessive force. Nor is there any evidence they established or maintained any policy or practice that caused Plaintiffs harm. Thus, the Court should grant the Motion for Summary Judgment as to Plaintiffs use of excessive force claims in Counts I and III against Kopas, Anderson, Walton, Lowther, Carmichael, Keenan, Tomasello, and Schwartz.
b. Conditions of Confinement (Count I)
In Count I, Plaintiff claims that Defendants Walton, Schwartz, and Tomasello violated his Eighth Amendment rights because he was fed a “food loaf diet” for several days. ECF No. 104 ¶ 95. For the reasons discussed, the Court construes this claim under the Fourteenth Amendment.
Upon review, the Court should dismiss this claim pursuant to 28 U.S.C. § 1915 because Plaintiff fails to state a claim upon which relief can be granted. “While the Fourteenth Amendment ‘guarantees pretrial detainees a nutritionally adequate diet,' ... it is well-established that inmates have no constitutional right to be served a particular type of meal.” Sledge v. Erie Cnty. Prison, No. 1:20-cv-40, 2021 WL 2073798, at *5 (W.D. Pa. May 24, 2021) (quoting Tapp v. Proto, 718 F.Supp.2d 598, 621 (E.D. Pa. 2010)). “Thus, ‘placing a prisoner on a food loaf diet for a limited period of time' has been found not to support a viable constitutional violation.” Id. (quoting Wilson v. Wetzel, No. 3:cv-12-5, 2013 WL 4812497, at *6 (M.D. Pa. Sept. 9, 2013)). Accordingly, the Court should dismiss Plaintiff s conditions of confinement claim in Count I.
Defendants do not address this apparent claim in their Motion for Summary Judgment. Under 28 U.S.C. § 1915(e)(2)(B)(ii), however, the Court can dismiss at any time if the Court determines that Plaintiff fails to state a claim on which relief may be granted.
c. Bystander Liability/Failure to Intervene (Count II)
Plaintiff also alleges that all Defendants are liable for failing to intervene relative to violations of the use of excessive force; denial of access to courts; and denial of access to the grievance process. ECF No. 104 ¶¶ 99-100.
In support of the Motion for Summary Judgment, Defendants argue that all Defendants except Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan were not involved in the cell extraction and thus cannot be held liable for failure to intervene in the alleged assault. ECF No. Ill. at 14 n. 2. Defendants do not specifically address this claim as to Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, or Fagan, but they generally argue that Plaintiff cannot prove any underlying constitutional violation arising out of the use of force, access to courts, or access to the grievance process. Id. at 14-23.
(1) Failure to intervene as to use of excessive force
To prove a failure to intervene claim, Plaintiff must show: “(1) the defendant failed or refused to intervene when a constitutional violation took place in his or her presence or with his or her knowledge; and (2) there was a ‘realistic and reasonable opportunity to intervene.'” Knight v. Walton, No. 2:12-cv-984, 2014 WL 1316115, at *8 (W.D. Pa. March 28, 2014) (quoting Smithy. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002)).
As for Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan, the Court should deny the Motion for Summary Judgment relative to Plaintiffs claim for failure to intervene in the use of excessive force. Although Defendants argue that Plaintiff cannot prove any underlying constitutional violation based on the use of excessive force, this conclusion is not supported for the reasons discussed.
As for the remaining Defendants, however, Plaintiff does not show they were present, or otherwise had reason to know and an opportunity to intervene, as to the alleged use of excessive force. Accordingly, the Court should only grant the Motion for Summary Judgment as to Plaintiffs failure to intervene claim relative to the use of excessive force against the County, Kopas, Anderson, Walton, Lowther, Schwartz, Tomasello, Carmichael, and Keenan.
(2) Failure to intervene on other grounds
To the extent Plaintiff pleads a claim for failure to intervene as to anything besides the alleged excessive use of force (e.g., access to courts), any such claim should be dismissed against all Defendants. While a duty to intervene has been recognized as to correctional officers that witness the use of excessive force and have an opportunity to intervene, Smith, 293 F.3d at 650, no clear authority extends this duty to intervene in other contexts. See Rosario, 2020 WL 6730975, at *8. Even if such a duty existed, as detailed below, Plaintiff does not establish the existence of any underlying constitutional violation relative to the alleged denial of access to the grievance process or access to courts. Accordingly, the Motion for Summary Judgment should be granted as to Plaintiffs claim for Failure to Intervene, Count II, against all Defendants based on any grounds other than the use of excessive force.
d. Denial of Access to Grievance Process (Count III)
In Count III, Plaintiff asserts that Defendants Tomasello, Wolfe, Gelet, Caruso, Carmichael, Keenan, McCreary, Bryan, Schrock, and Fagan violated his Fourteenth Amendment rights by refusing to comply with their own policies and blocking Plaintiff s attempt to use the grievance procedure at WCP. ECF No. 104 ¶ 106. In support of the Motion for Summary Judgment, Defendants argue that this claim fails because there is no constitutional right to a grievance procedure. ECF No. Ill. at 18-19.
In response, Plaintiff argues that he is protected by the Due Process Clause of the Fourteenth Amendment because he had not been sentenced during the relevant time. He argues that prison officials failed to provide him due process because he was excluded from the grievance process. ECF No. 121 at 3-4.
Upon review, the Court should grant the Motion for Summary Judgment as to this claim. As the United States Court of Appeals for the Third Circuit has explained, “[p]risoners do not have a constitutional right to prison grievance procedures.” Fears v. Beard, 532 Fed.Appx. 78, 81 (3d Cir. 2013) (citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (collecting cases)). “Nor do they have a liberty interest protected by the due process clause in the grievance procedures.” Id. (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause). Because Defendants' alleged failure to provide Plaintiff with an accessible grievance system does not violate his Fourteenth Amendment rights, summary judgment should be granted as to this claim.
e. Denial of Access to Courts (Count IV)
Plaintiff also appears to claim that Defendants violated his right of access to the courts under the Fourteenth Amendment. ECF No. 104 ¶ 109. In support of the Motion for Summary Judgment, Defendants argue that summary judgment should be granted as to this claim because he does not plead that any injury occurred because he was denied his legal materials for a period of a few days. Defendants point out that Plaintiff does not explain what legal materials were missing or why not having those materials arguably frustrated any legal claim. ECF No. 111 at 20-22.
“The right of access to the courts is sourced from both the First and Fourteenth Amendments . . . and is typically framed as a due process right in the inmate context... but in other contexts as an aspect of the First Amendment right to petition the Government for redress of grievances.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280,294 n. 17 (3d Cir. 2018) (internal citations and quotations omitted).
In response, Plaintiff argues that his legal materials were taken from him at a “crucial time in his proceedings” because a motion for reconsideration was due within 10 days, and he was unable to properly prepare a motion for judgment of acquittal. Because he did not have his legal materials, he argues, excessive sentences were entered as to the First Charges that were later overturned on appeal. He also argues that he could not assist his counsel regarding sentencing issues. ECF No. 121 at 4-5.
Upon review, summary judgment should be entered as to Plaintiff s claim for denial of access to courts. To establish a cognizable denial-of-access claim, a prisoner must show that he has suffered an actual injury to his ability to present a nonffivolous, arguable claim. Lewis v. Casey, 518 U.S. 343, 350-53 (1996); see also Christopher v. Harbury, 536 U.S. 403, 415 (2002); Monroe v. Beard, 536 F.3d 198,205-06 (3d Cir. 2008) (noting that the complainant “must describe the underlying arguable claim well enough to show that it is ‘more than mere hope'”). An “actual injury” does not occur without a showing that a claim has been lost or rejected, or that the presentation of such a claim is being prevented. Lewis, 518 U.S. at 354-56. In addition, aprisoner must demonstrate that no other remedy will potentially compensate for the lost claim. Monroe, 536 F.3d at 205.
In this case, Plaintiff fails to show that he lost any nonfrivolous or arguable legal claim, or that the outcome of his criminal proceedings would have changed, if he had access to his legal materials. Plaintiff points to excessive resentencing he received as to the First Charges and his need to file a motion for reconsideration within 10 days. Plaintiffs resentencing on the First Charges occurred after he left WCP, however, and his counsel timely moved for reconsideration. Rosario, 2020 WL 1889121, at *1. There is nothing to suggest his missing legal materials at WCP for a few days affected the outcome of those later events. In any event, as Plaintiff points out, his resentencing on the First Charges was later vacated on appeal, and he remained incarcerated on the Second Charges. Thus, he does not show any injury.
Because Plaintiff had counsel in his underlying criminal case, there is also no basis for a claim arising out of failure to provide access to the court. See Rosario v. Strawn, No. 22-1312, 2022 WL 3151963, at *3 (3d Cir. Aug. 8, 2022) (finding Plaintiffs access-to-courts claim in a prior case was properly dismissed, in part, because he was represented by counsel in his criminal proceedings) (citing Peterkin v. Jeffes, 855 F.2d 1021, 1042 (3d Cir. 1988) (“[T]he provision of lawyers is one means by which a state may provide prisoners with meaningful access to courts”); Degrate v. Godwin, 84 F.3d 768-69 (5th Cir. 1996)). Therefore, the Court should grant the Motion for Summary Judgment as to Plaintiffs Fourteenth Amendment claim for the denial of his access to courts.
If Plaintiff is referring to his criminal proceeding as to the Second Charges, he also had counsel in connection with those proceedings and does not point to any alleged injury. Thus, summary judgment would still be appropriate.
f. Retaliation (Count IV)
Plaintiff also asserts a claim for retaliation against Defendants Walton, Lowther, Schwartz, Tomasello, Wolfe, Gelet, Carmichael, Keenan, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan under the Fourteenth Amendment in Count IV, which is properly construed under the First Amendment. In particular, Plaintiff claims that Defendants retaliated against him for requesting his legal materials and to use the grievance process by shutting off his cell water, forcing him to eat food loafs, using unnecessary force (including OC spray), and placing him in a restraint chair. ECF No. 104 ¶ 110.
In order to state a prima facie claim for retaliation under the First Amendment, Plaintiff must allege (1) that “the conduct which led to the retaliation was constitutionally protected”; (2) “he suffered some ‘adverse action' at the hands of the prison officials” that “was sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights”; and (3) a “causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Hom, 241 F.3d 330, 333 (3d Cir. 2001) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
If Plaintiff makes this showing, “the burden then shifts to the prison official to prove that the same decision would have been made absent the protected conduct for reasons related to a legitimate penological interest.” DeFranco v. Wolfe, 387 Fed.Appx. 147, 154-55 (3d Cir. 2010) (citing Rauser, 241 F.3d at 334).
While Defendants move for summary judgment as to this claim, their argument is difficult to follow and does not apply the relevant standard for a First Amendment retaliation claim.Defendants appear to suggest that Plaintiffs retaliation claim arises out of complaints about his missing legal materials and his efforts to grieve that issue. Because prison officials were justified in withholding his legal materials for a brief period of time based on his repeated misconduct, and he suffered no injury by not having those materials, he cannot prove any claim for retaliation. ECF No. Ill. at 23. But this misapprehends the nature of Plaintiff s claim; he does not point to the loss of his legal materials as the alleged adverse action. Instead, he claims that Defendants retaliated against him for complaining about his missing legal materials and requesting a grievance by, among other things, placing him on a food loaf diet, turning off the water to his cell, and subjecting him to OC spray and the restraint chair. ECF No. 104 ¶ 110. Because Defendants do not substantively address this claim as alleged, the entry of summary judgment is unsupported.
Defendants jointly address Plaintiffs retaliation and conspiracy claims and only refer the Court to authority regarding conspiracy claims. ECF No. 111 at 23 (arguing that Plaintiffs retaliation and conspiracy claims must be dismissed, as in [Humphrey v. Sec'y Pa. Dep't of Corr., 712 Fed.Appx. 122, 125 (3d Cir. 2017)] because ‘a civil conspiracy claim is not actionable without a viable underlying tort claim.'”).
That said, Plaintiffs claim for First Amendment retaliation should be dismissed under 28 U.S.C. § 1915 as to Defendants Lowther and Carmichael because Plaintiff fails to state a claim. Plaintiff does not plead their alleged involvement in any retaliatory acts. There are no specific factual averments regarding Lowther. Carmichael's only alleged involvement occurred after Plaintiff was released from the restraint chair-in particular, he escorted Plaintiff to the shower area after he left the restraint chair and upon his transfer to WCCF on February 12, 2023. ECF No. 104 ¶¶ 72, 80-82. Thus, the Court should deny the Motion for Summary Judgment as to
Plaintiff's First Amendment retaliation claim in Count IV, however, this claim should be dismissed as to Defendants Lowther and Carmichael.
g. Conspiracy (Count IV)
In Count IV, Plaintiff asserts that the “cumulative actions” of Defendants Walton, Lowther, Schwartz, Tomasello, Wolfe, Gelet, Carmichael, Keenan, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan amount to a conspiracy to prevent his access to courts. Id. ¶ 111.
As Defendants correctly note, “a civil conspiracy claim is not actionable without a viable underlying tort claim.” ECF No. Ill. at 23 (quoting Humphrey v. Sec'y Pa. Dep't of Corr., 712 Fed.Appx. 122,125 (3d Cir. 2017)). Because Plaintiff cannot establish his underlying access-to-courts claim for the reasons discussed, summary judgment should also be granted as to Plaintiff s claim for conspiracy to deny his access to courts. See Humphrey, 712 Fed.Appx. at 125 (conspiracy claim properly dismissed where, as here, plaintiff could not establish underlying access-to-courts claim).
h. “Monell ” Claim (Count V)
Finally, in Count V, Plaintiff asserts a claim titled “Monell Claim, Abuse of Policies or the Use of Unwritten Policies or Customs” against all Defendants. This claim should be dismissed pursuant to 28 U.S.C. § 1915 because Plaintiff fails to state a claim. To bring a Monell claim, “a plaintiff must prove the existence of a policy or custom that has resulted in a constitutional violation in order to make a municipality liable under § 1983.” Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (citing Monell, 436 U.S. at 694-95). In his Amended Complaint, Plaintiff does not specifically identify any customs or policies that allegedly caused any deprivation of constitutional rights. Accordingly, this claim should be dismissed.
Defendants do not address this claim in their Motion for Summary Judgment.
The Court also notes that it previously dismissed this claim on the same basis, granting Plaintiff leave to amend only to the extent he filed an “amended complaint including specific allegations of fact regarding the alleged policy or custom underlying his constitutional claims against” the County. ECF No. 10 at 8; ECF No. 11 (adopting R&R). Because he fails to do so, Plaintiffs amended pleading does not comply with this limited leave to amend.
D. CONCLUSION
For these reasons, it is respectfully recommended that Defendants' Motion for Summary Judgment, ECF No. 110, be granted in part and denied in part, and that certain claims should also be dismissed under 28 U.S.C. § 1915.
The following claims should be dismissed:
1. All Eighth Amendment claims (Count I);
2. Claims for use of excessive force under the Fourteenth Amendment (Counts I and III) against Defendants Kopas, Anderson, Walton, Lowther, Carmichael, Schwartz, Tomasello, Keenan, and the County;
3. Conditions of confinement claim under the Fourteenth Amendment (Count I);
4. Bystander liability/failure to intervene claim (Count II) relative to the use of excessive force against Defendants Kopas, the County, Anderson, Walton, Lowther, Schwartz, Tomasello, Keenan, and Carmichael;
5. Bystander liability/failure to intervene Claim (Count II) on any grounds other than the use of excessive force;
6. Claim for denial of access to grievance process (Count III);
7. Claim for denial of access to courts (Count IV);
8. First Amendment retaliation claim (Count IV) against Defendants Lowther and Carmichael;
9. Conspiracy claim (Count IV); and
10. Monell/unconstitutional policies claim (Count V).
Plaintiff brings Count I under the Eighth Amendment. As discussed, the Court construes this claim under the Fourteenth Amendment and recommends the dismissal of any Eighth Amendment claims.
Plaintiff's claim against the County in Count I was construed as duplicative of Plaintiff s claim in Count V.
The following claims should not be dismissed:
1. Use of excessive force claim under the Fourteenth Amendment (Counts I and III) against Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan;
2. Failure to intervene/bystander liability claim (Count II) against Wolfe, Gelet, Caruso, Lynn, McCreary, Bryan, Schrock, and Fagan, but only as it relates to the use of excessive force; and
3. First Amendment retaliation claim (Count IV) against Defendants Walton, Schwartz, Tomasello, Wolfe, Gelet, Keenan, Caruso, Lynn, McCreary, Bryan, and Schrock.
As for the claims that should be dismissed under 28 U.S.C. § 1915, “[i]f a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. Cty of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). For the reasons discussed and the lack of supporting evidence at summary judgment, however, it appears that leave to amend would be futile and would unduly delay the timely resolution of this action. Thus, leave to amend should not be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.