Opinion
Civil Action 2:19-cv-1237
05-11-2022
CHARLES WHITNEY, Plaintiff, v. LT. POSIKA, LT. PARKER, C/O 1 BOSEGERNO, LT. BURTON, CPT. HAWKINBURRY, UNIT MANAGER KNEEPER, C/O 1 ROBBERTS, C/O ERRET, CO1 JOHN DOE, AND JOHN DOE 2, Defendants.
Joy Flowers Conti Senior United States District Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy Chief United States Magistrate Judge
I. Recommendation
Before the Court is a motion for summary judgment filed by Defendants Posika, Parker, Bosegerno, Burton, Hawkinburry, Kneeper, Robberts, and Erret (collectively, the “Corrections Defendants”). (ECF 66). This motion has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation. For the reasons below, it is respectfully recommended that the motion be denied.
II. Report
A. Procedural History
This is a civil rights action brought by Charles Whitney (“Whitney”), a prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”). The alleged incidents giving rise to this case occurred in 2019 while Whitney was housed at SCI-Fayette. In the original complaint, Whitney named eight defendants, all officials or employees of SCI-Fayette: C/O Bosegerno, Lt. Burton, Superintendent Mark Capozza, Cpt. Hawkinburry, Unit Manager
Kneeper, Lt. Parker, Lot. Posika, and CO1 John Doe. (ECF 10). Prior to service, Whitney filed an amended complaint adding C/O Erret, C/O1 Robberts, and John Doe 2, all officials or employees of SCI-Fayette. (ECF 12). All defendants are sued in their individual and official capacities. The amended complaint remains Whitney's operative pleading.
Despite the passage of more than thirty months since the case was initiated, Whitney has not identified or served the Doe defendants. Any attempt to name or serve them now would be untimely under Federal Rule of Civil Procedure 4(m). Moreover, discovery has closed and the dispositive motion deadline has passed. “John Doe defendants who are never identified or served are never made parties to the action.” 59 Am. Jur. 2d Parties § 20. Thus, it is recommended that the John Doe defendants be dismissed. This Report and Recommendation provides notice to Plaintiff as required by Rule 4(m).
“In general, an amended pleading supersedes the original pleading and renders the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019), cert. denied, 140 S.Ct. 1611 (2020). “Thus, the most recently filed amended complaint becomes the operative pleading.” Id.
Whitney first asserted a potpourri of claims and allegations against the Corrections Defendants. But after the Court's rulings on the Corrections Defendants' motion to dismiss, Defendant Capozza was dismissed from the case and the only claims remaining are those brought under 42 U.S.C. § 1983 for alleged violations of Whitney's rights under the First and Eighth Amendments. (ECF 39 and 40).
Following the close of discovery, the Corrections Defendants filed this motion seeking summary judgment on all claims arguing that all of Whitney's claims lack merit. Alternatively, they argue that Whitney has failed to administratively exhaust two of his claims and as a result, entry of summary judgment is appropriate as to those claims. The Corrections Defendants in support of their motion filed a brief, a concise statement of material facts, and an appendix. (ECF 67, 68, and 69). No affidavits were filed in support of the motion. Whitney in response filed a brief in opposition, with three exhibits, and a response to the Corrections Defendants' statement of material facts. (ECF 71 and 72). The Corrections Defendants filed a Reply Brief. (ECF 75).
The matter is fully briefed and ripe for disposition.
B. Factual Background
The relevant factual background is taken from the summary judgment record and is viewed in the light most favorable to Whitney, as he is the non-movant. The factual allegations also set forth in Whitney's verified Amended Complaint (ECF 12), to the extent that they are based upon his personal knowledge, will also be considered as evidence on summary judgment. Jackson v. Armel, No. 17-1237, 2020 WL 2104748, at *5 (W.D. Pa. May 1, 2020) (citing Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion)). See also Brooks v. Kyler, 204 F.3d 102, 108 n. 7 (3d Cir. 2000) (noting that an affidavit is “about the best that can be expected from a [pro se prisoner] at the summary judgment phase of the proceedings”); Boomer v. Lewis, 2009 WL 2900778, at *2 n.4 (M.D. Pa. Sept. 9, 2009) (“A verified complaint may be treated as an affidavit in support of or in opposition to a motion for summary judgment if the allegations are specific and based on personal knowledge.”).
The genesis of this lawsuit arises from events which occurred on February 5, 2019. Whitney alleges that on that date, while he was in the library, Defendant Erret entered his cell, stole his t-shirts, digital antenna, remote control, and a piece of his ear buds, and vandalized his television. Whitney filed Grievance #785439 two days later. He contends that Defendant Kneeper told him to “sign off on the grievance because all he was going to do was call C/O1 Erret have him deny the grievance and it would be over.” Amended Complaint, ¶ 31. Whitney did not withdraw the grievance and, as a result, Defendant Kneeper filed a false grievance response. Id. ¶ 32.
Next, according to the Amended Complaint, on April 9, 2019, Defendants C/O1 John
Doe and John Doe 2 came in to his cell and “stole” all his documents relating to the grievance he had filed against Defendant Erret. On that same day, Defendants C/O John Doe and Bosegerno performed a cell search of Whitney's cell and Defendant Bosegerno confiscated a box with twenty books in it. Defendant Bosegerno did not provide Whitney a confiscation slip, although he asked for one. Id. ¶¶ 34-39. Additionally, Defendants Bosegerno, Parker, and Posika subjected Whitney to unwarranted excessive force and sexually assaulted him. Whitney described the incident during a post-sexual assault interview as follows:
[Defendants Bosegerno, Parker, and Posika] were doing a cell search on my cell and took stuff out of my cell that they shouldn't have. I told them that I was allowed to have it, but they kept telling me I couldn't. So they ended up taking me out of my cell on JA and were going to move me to JD but were going to take me to the strip cage first. When we were walking there they told me that they were going to 'fuck me up' if I don't face forward. I kept asking them why they were threatening me but then they started banging my head against the wall. I kept saying I didn't do anything wrong, but they shackled me and put a mask on me even though I didn't spit on anyone. Then one of them thought that it was okay to feel on my ass. They put me in the strip cage and I was yelling 'cause I was upset. They were yelling at me to 'get on my knees 'cause I was used to being in that position' and called me a 'fag'....ECF 69-1 at p. 104. According to Whitney, Defendant Posika twisted his arm until it “popped out of place.” He also alleges that during the incident Defendants destroyed his prescription eyeglasses and stole his false front tooth. He alleges that Defendant Lt. Burton could see what was occurring and failed to stop the unwarranted excessive force. Id. ¶¶ 43-53. Whitney contends all these actions were taken in retaliation for him filing lawsuits and for filing Grievance #785439 about the February 5, 2019.
Whitney also contends that Defendants falsified a misconduct report about the April 9, 2019 incident in which Defendants reported that he “became disruptive during the search of his cell” and during the escort to the J Unit Intake, Whitney refused orders, used profanity, and “began to push back on the escort.” (See D 355109, at ECF 69-1 at p. 70). Whitney pleaded not guilty to the charges. The Hearing Examiner found, however, that a preponderance of the evidence existed to support the charges and found Whitney guilty of all the charges. The hearing examiner charged Whitney with 120 days of disciplinary custody. (Id. at p. 71).
As a result of the April 9, 2019, incident, Defendants Burton and Hawkinburry placed Whitney on extended restrictions, which included restricted access to exercise, shower, shaving, cell cleaning, secure food pass, radio, and the mini law library. He contends the restrictions were excessive because according to DOC policy such restrictions should only be for seven days. See Restrictive Form, ECF 69-1 at p. 32 (“No restriction may exceed 7 days unless approved by the Facility manager/designee.”). The summary judgment record reflects that the restrictions were lifted on April 26, 2019. (Id.). On April 10, 2019, Whitney filed Grievance #797810 complaining that Defendants Burton and Hawkinburry had placed him on extended restrictions in retaliation for Whitney filing five lawsuits. See Grievance #797180, id. at p. 37. In the Amended Complaint, Whitney asserts that the “long and extended periods of time” were a retaliatory act because of “his seeking to follow Court orders and file grievances.” Amended Complaint, ¶ 42. Additionally, according to Whitney, Defendant Hawkinburry further extended the restrictions each time Whitney filed a grievance.
Whitney also alleges that on several occasions Defendant Posika used excessive O.C. spray on an inmate housed below Whitney's cell and then opened the cell vents knowing that the O.C. spray would be pulled into Whitney's cell. According to Whitney, his cell “was one house above the other inmate,” and the O.C. spray came through the vents and into Whitney's cell, causing his eyes to burn and him to begin to choke, cough, and sneeze. According to Whitney, Defendant Posika directed the officers to turn the vent on so that the O.C. spray was pulled into Whitney's cell. Whitney contends that this occurred “day after day.” He filed complaints and administrative grievances which were denied, although the officers admitted “they use[d] OC spray and excessive force on the days plaintiff complained of.” Id. ¶ 68.
Having identified the claims at issue and the factual basis for those claims, the undersigned now turns to the threshold question of whether Whitney has exhausted the administrative remedies available to him on the claims he raised in Grievance #785439 and Grievance #801308.
C. Exhaustion Under the Prison Litigation Reform Act (“PLRA”)
The Corrections Defendants argue, in the alternative, that summary judgment is proper on Whitney's claims that Defendant Erret stole and vandalized his property (Grievance #785439) and that his documents later were stolen to prevent Whitney from appealing the grievance against Defendant Erret. (Grievance #801308).
The PLRA provides that “no action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The 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'.” McKinney v. Guthrie, 309 Fed.Appx. 586, 588 (3d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). That said, § 1997e(a) only requires that prisoners exhaust such administrative remedies ‘as are available'.” Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (quoting Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)). For example, an administrative remedy may be “unavailable” if prison authorities prevent a prisoner from pursuing the prison grievance process. See Camp, 219 F.3d at 280-81. If no administrative remedy is available, the exhaustion requirement need not be met. See Davis v. Warman, 49 Fed.Appx. 365, 368 (3d Cir. 2002) (explaining that an inmate can defeat a claim of failure to exhaust only by showing “he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate”).
No analysis of exhaustion may be made absent an understanding of the DOC Inmate Grievance System Policy, DC-ADM 804, which provides inmates an avenue to seek review of issues involving prison conditions. DC-ADM 804 is built around a multi-tier process. First, the prisoner must timely submit a written grievance to the Facility Grievance Coordinator/ designee. DC-ADM 804, Section 1(C). Next, the prisoner must timely submit a written appeal for intermediate review to the Facility Manager. DC-ADM 804, Section 2(A). Finally, the prisoner must submit a timely appeal to the Central Office Review Committee, also known as the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), for final review. DC-ADM 804, Section 2(B).
The Corrections Defendants did not include the DOC Grievance System Policy, DC-ADM 804, or an affidavit from a DOC official explaining the grievance policy in effect during the relevant time. However, the policy, effective May 1, 2015, can be found on the DOC's web page, https://www.cor.pa.gov/.pdf (last accessed 5/10/2022).
The undisputed summary judgment record reflects that on February 5, 2019, Whitney filed Grievance #785439 claiming that on that date, while he was in the library, Defendant Erret entered his cell, vandalized his television, and stole his t-shirts, books, digital antenna, remote control, and a piece for his ear buds. (ECF 69-1 at p. 22). After an extension was approved to investigate the grievance (id. at p. 23), the grievance was denied on initial review by Defendant Kneeper, the Unit Manager, on March 13, 2019. Defendant Kneeper reported that Defendant Erret confirmed that he had been in Whitney's cell on February 5, 2019, to complete a required weekly fire and safety cell inspection, but denied vandalizing or stealing any of Whitney's property. (Id. at p. 20). Whitney timely appealed to the Superintendent, (id. at p. 19), who denied the appeal on April 9, 2019. (Id. at p. 18). The final step in the administrative review process was for Whitney to file an appeal with SOIGA.
However, on May 10, 2019, Whitney filed Grievance #801308 in which he states that his documents relating to Grievance #785439 had been stolen in retaliation for filing Grievance #785439 and, as a result, he could not file an appeal to SOIGA. (Id. at p. 25). According to Paragraph 33 of the Amended Complaint, “Lt. Dailey . . . went and obtain[ed] all grievance papers for plaintiff months later.” (ECF 12). The summary judgment record, however, does not reflect when these grievance papers were returned to Whitney by Lt. Dailey.
The summary judgment record contains a Grievance Withdrawal dated and signed by Whitney on May 28, 2019, reflecting that “Inmate Whitney (DM396) withdrew Grievance #801308.” (ECF 69-1 at p. 24). See also Corrections Defendants' Statement of Material Facts ¶ 6. (ECF 68). The summary judgment record contains no explanation of why the grievance was withdrawn.
Under these circumstances, the undersigned is reluctant to find that Whitney failed to perfect his appeal of these claims to final review. Thus, the undersigned finds that the administrative process was not available to Whitney and recommends that the Corrections Defendants' request for summary judgment based on failure to exhaust administrative remedies be denied. The undersigned now turns to the merits of the summary judgment motion.
D. Standard of Review
The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only 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). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn from them should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor on that issue. See id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial'.” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
This standard is somewhat relaxed with pro se litigants. Where a party is representing himself pro se, the complaint is to be construed liberally. A pro se plaintiff may not, however, rely solely on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made with no any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment.”).
With these standards in mind, the undersigned will now address each of Whitney's claims.
E. Discussion and Analysis
The Corrections Defendants argue that they are entitled to summary judgment because all of Whitney's claims lack merit. Plaintiff argues in response that summary judgment should not be granted as genuine issues of material fact are in dispute.
1. First Amendment Retaliation Claim
The First Amendment provides as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.U.S. Const. Amend. I. To prevail on a retaliation claim, a prisoner-plaintiff must first prove that “the conduct which led to the alleged retaliation was constitutionally protected.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Next, the plaintiff must show that he suffered some “adverse action” at the hands of prison officials. Id. A prisoner-plaintiff satisfies this requirement by demonstrating that the action “was sufficient to deter a person of ordinary firmness from exercising his rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000).
Once a prisoner-plaintiff has met these first two threshold tests, he or she must prove “a causal link between the exercise of his constitutional rights and the adverse action taken against him.” Rauser, 241 F.3d at 333. If a prisoner-plaintiff has shown that his exercise of a constitutional right was a “substantial and motivating factor” in the challenged decision, the burden then shifts to defendant prison officials who may still prevail by proving by a preponderance of the evidence that they would have made the same decision absent the protected conduct for reasons reasonably related to penological interest. Id. at 334. At the summary judgment stage, the plaintiff need only meet his burden of producing evidence from which a reasonable jury could conclude that the adverse action was taken in retaliation for the exercise of his protected rights. If the plaintiff produces evidence from which a reasonable jury could conclude that the exercise of his right was a “substantial and motivating factor” in defendants' actions, the ultimate question of causation must be decided by the fact-finder.
Whitney alleges that the Corrections Defendants retaliated against him because he filed lawsuits and administrative grievances against DOC employees. The Court of Appeals for the Third Circuit has held that the filing of lawsuits and grievances is protected activity under the First Amendment right of prisoners to petition the Court. Rauser, 241 F.3d at 333; Millhouse v. Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981). The Corrections Defendants do not dispute that Whitney meets the first requirement of a retaliation claim. Thus, Whitney's conduct was constitutionally protected.
Whitney alleges that the Corrections Defendants engaged in a pattern of adverse actions to retaliate against him for filing lawsuits and administrative grievances. The verified Amended Complaint catalogs many allegedly retaliatory actions taken against Whitney. For example, Whitney contends that the Corrections Defendants, individually and sometimes concertedly, took the following adverse actions against him: his property was stolen or destroyed; he was physically and sexually assaulted and harassed, a false response to his grievance was filed, a false misconduct report was filed against him, he was improperly placed him on extended restrictions, his attempts to fully exhaust his administrative remedies were often thwarted, he was exposed to unsafe conditions of confinement, and he was denied medical care. The Corrections Defendants, for the most part, deny that these actions occurred or, if such actions did occur, argue that the actions would not have deterred a person of ordinary firmness from exercising his constitutional rights. Because a fact-finder could conclude that these actions were “sufficient to deter a person of ordinary firmness from exercising his rights,” Allah, 229 F.3d at 225, the undersigned finds that Whitney has presented sufficient evidence of adversity to meet the adverse action requirement at the summary judgment stage.
While it is true that some of the actions Whitney alleges may be de minimis as a matter of law, given that they would not conceivably deter a prisoner of ordinary firmness from exercising his constitutional rights (e.g., temporary discomfort from being exposed to O.C. spray used on another prisoner), not all of Whitney's allegations are clearly so trivial. (e.g., physical assault). Our court of appeals has held that these actions were sufficiently adverse to sustain a retaliation claim: “several months in disciplinary confinement, denial of parole, financial penalties, and transfer to an institution whose distance made regular family visits impossible, and placement in administrative segregation that severely limited access to the commissary, library, recreation, and rehabilitative programs. Dunbar v. Barone, 487 Fed.Appx. 721, 723 (3d Cir. 2012) (citations omitted).
For his retaliation claims to survive summary judgment, Whitney must provide evidence of a causal link between his constitutionally protected activity and the adverse action he allegedly suffered at the hands of the Corrections Defendants, in other words, that his protected conduct was “a substantial or motivating factor” for the adverse action. Rauser, 241 F.3d at 334. “To establish the requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267-68 (3d Cir. 2007). “In the absence of that proof the plaintiff must show that from the ‘evidence gleaned from the record as a whole' the trier of the fact should infer causation.” Id. (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)).
Whitney expressly alleges that the adverse actions were taken because he filed lawsuits and administrative grievances. Whitney is systematic in his allegations linking the Corrections Defendants' adverse actions to his involvement in protected activity. See, e.g., Paragraphs 40, 41, 42, and 48 of the Amended Complaint. He alleges that the April 9, 2019, incident “took place after the Attorney General filed a 36 page brief to have the plaintiff case separated into several different complaint on 4/5/2019 while plaintiff was already seeking to have several complaints filed with the court of the Middle district court.” Amended Complaint ¶ 49. He also states that he had filed administrative grievances against the correctional officers at SCI Fayette. He notes that his grievance about his cell being vandalized and items stolen on February 5, 2019, was pending when the April 9, 2019, incident occurred, that Defendant Posika was involved in both the April 9, 2019, and August 15, 2019 incidents, and that Defendant Posika knew that Whitney had filed a grievance about the April 9, 2019 incident.
The Corrections Defendants argue, without evidentiary support, that they did not know about Whitney's protected activity. Because Whitney has provided unrebutted evidence of causation in the form of suggestive temporal proximity, the undersigned finds that Whitney has met his burden to show the causation requirement at the summary judgment stage.
Rule 56(c)(1) of the Federal Rules of Civil Procedure, states that “[a] party asserting that a fact cannot be . . .genuinely disputed must support the assertion by (a) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Even if the Corrections Defendants had supported their version with affidavits or declarations, it could not be said that their version of events is undisputed.
The question before the Court is whether Whitney has established a genuine issue of material fact as to whether his protected activity was a substantial or motivating factor in the Corrections Defendants' actions. This is not the simple case in which the plaintiff can point to an “unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action.” See Rauser, 241 F.3d at 334. Rather, the question here is if the record as a whole supports an inference of causation. In the undersigned's estimation, there are simply too many disputed issues of material fact to grant summary judgment on Whitney's retaliation claims.
2. Eighth Amendment Claims
The Eighth Amendment provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend. VIII. In the most general sense, a prison official violates the Eighth Amendment when two elements are established: (1) the inmate alleges an objectively serious deprivation by a prison official of food, clothing, shelter, medical care, or safety; and (2) the prison official acted with a sufficiently culpable state of mind to deprive the inmate of his right to food, clothing, shelter, medical care, or safety.
a. Excessive Force / Sexual Assault - April 9, 2019
The Eighth Amendment's protection against cruel and unusual punishment is the “primary source of substantive protection in cases where an inmate challenges a prison official's use of force as excessive and unjustified.” Brooks v. Kyler, 204 F.3d 102, 105 (3d Cir. 2000). The core inquiry of an excessive force claim is “'whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm'.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson v. McMillan, 503 U.S. 1, 7 (1992)). In making this determination, the Court must examine the need for the application of force, the relationship between the need and the amount of force used, the extent of injury inflicted, the extent of threat to the safety of staff and inmates, and any efforts to temper the severity of a forceful response. Whitley v. Albers, 475 U.S. 312, 319 (1986). Applying the Whitley factors to any given case is necessarily fact specific. Not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9.
Whitney claims that on April 9, 2019, Defendants Posika, Parker, and Bosegerno subjected him to unwarranted excessive force and sexual assault and harassment. According to the verified Amended Complaint (ECF 12) and Grievance #795877 (ECF 69-1 at p. 159), Defendants Posika, Parker, and Bosegerno removed Whitney from his cell and began to make threats to harm him and throw him down the stairs. Whitney alleges that the Defendants tried to slam him to the floor, they banged his head against the wall five to six times, Defendant Posika twisted his arm until it “popped out of place,” and Defendants stole his prescription eyeglasses and his false front tooth. Whitney further alleges that during this encounter, he was sexually assaulted and sexually harassed by Defendants Posika, Parker, and Bosegerno.
In Defendants Posika, Parker, and Bosegerno, version of the events, Whitney was,
extremely resistant to the orders from Defendants, . . . threatened the Defendants with physical injury and profane insults, as well as physically pushing back on the corrections officers while being escorted to the RHU. This led to an unplanned use of force, during which the Plaintiff kicked Defendant Posika. SMF ¶20. Because of Plaintiff's aggressive demeanor while being escorted to and completing intake into the RHU, Corrections Defendants were forced to resort to practices that would ensure their safety and the security of the facility. The unplanned use of force was utilized in good faith and proportional to the force exerted by the Plaintiff during the incident.Defs's Br. at p. 10. The Corrections Defendants support their account, by reliance on the results of DOC's Bureau of Investigations and Intelligence investigation which found no evidence to substantiate Whitney's claims of improper force or sexual abuse. (ECF 69-1 at pp. 138 - 189).
The account of events offered by Defendants differs dramatically from the account offered by Whitney, the non-movant. In short, the fundamental questions of whether Whitney was subjected to an unwarranted excessive amount of force, during which he was sexually harassed and sexually assaulted, is a hotly disputed factual matter, requiring credibility determinations. The Court, however, may not weigh evidence, determine credibility, or resolve factual disputes at the summary judgment stage. See Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.”) Construing the evidence in the light most favorable to Whitney, a reasonable jury crediting his account of the facts could conclude that he was subjected to unwarranted excessive force and sexual assault and harassment by Defendants Posika, Parker, and Bosegerno. Thus, it is recommended that the Court deny summary judgment on Whitney's excessive force claim against Defendants Posika, Parker, and Bosegerno.
b. Failure to Intervene - April 9, 2019
Whitney contends that during the April 9, 2019 incident, Defendant Burton failed to intervene and protect him from the actions of Defendants Posika, Parker, and Bosegerno.
The Eighth Amendment requires prison officials to take reasonable measures to protect prisoners from violence at the hands of other prisoners, as well as at the hands of guards or other state actors. Farmer v. Brennan, 511 U.S. 825, 833 (1994). Thus, a corrections officer's failure to intervene in a beating can be the basis for liability for an Eighth Amendment violation under § 1983 if the corrections officer had a reasonable opportunity to intervene and refused to do so. Smith, 293 F.3d at 650. For liability to attach under § 1983 for the failure to intervene in another's use of excessive force, a plaintiff must show that: (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. Id. at 651.
Whitney in his verified Amended Complaint contends that Defendant Lt. Burton was sitting inside the Lieutenant's office and could see what was occurring and failed to protect him from the actions of Defendants Posika, Parker, and Bosegerno. Amended Complaint, ¶¶43, 51. The Corrections Defendants, without evidentiary support, argue that there is no proof that Defendant Burton was in the vicinity of the incident to witness the alleged abuse. Again, even if the Corrections Defendants had supported their argument with affidavits or declarations, it could not be said that their version of events is undisputed.
These contrasting accounts show that summary judgment should not be granted. Construing the evidence in the light most favorable to Whitney, the non-movant, a reasonable jury crediting his account of the facts could conclude that Defendant Burton failed or refused to intervene when a constitutional violation was taking place in his presence and there was a realistic and reasonable opportunity for him to intervene. Thus, it is recommended that the Court deny summary judgment on Whitney's failure to protect claim against Defendant Burton.
c. Excessive Force / Conditions of Confinement - August 15, 2019
Whitney claims that on August 15, 2019, he was subjected to unwarranted excessive force and a dangerous condition of confinement, when Defendant Poskika used excessive amounts of oleoresin capsaicin (“O.C.”) spray on another inmate and opened the cell vents so that the vapors would go into Whitney's cell. See Amended Complaint ¶¶64-67; Grievance #819656 at ECF 69-1 at p. 196.
In Grievance #819656, dated 8/22/2014, Whitney complains that Lt. Posika used excess OC spray on 8/15/2019. He also states that Lt. Posika used the same practice on 8/11/2019, and that while Whitney wrote to staff re the 8/11/2019 incident, his request was never answered. (ECF 69-1 at p. 198).
In his verified Amended Complaint, Whitney states, “The defendants Lt. Posika and his officers use so much OC spray that there was a [rivulet] of OC spray coming out of the Cell 1009 on to the bottom tier.” Amended Complaint ¶66. In his brief in opposition, Whitney states the OC “was running out of the cell like a small river or creek. . .” Br. at p. 11 (ECF 71). “The Corrections Defendants argue that the use of OC spray was not intended for Plaintiff and Plaintiff failed to set forth facts to show that he was an intended target for the spray.” Ds' Br. at 11. Defendants provide no evidentiary support for this argument, other than producing the denials of Whitney's grievance about this incident. ECF 69-1 at pp. 193-199. Whitney responds that “defendant Lt. Posika used excessive force when he sprayed more than three cans of deadly OC spray cans into a cell under the plaintiff then had the vents turn on to force said spray into the plaintiff cell.” P's resp. at p. 10 (ECF 71).
The Corrections Defendants also argue that Whitney suffered no injury beyond temporary discomfort, and as such, the claim does not rise to the level of a cognizable constitutional claim.
Whether Defendant Posika intended for Whitney to be harmed by the OC spray is a determination better left to the jury. It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. The undersigned finds that the contrasting accounts indicate that summary judgment should not be granted.
d. Failure to Provide Medical Treatment
Whitney's final allegation is that the Corrections Defendants failed to provide him with medical and dental treatment. Whitney alleges that his prescription eyeglasses were taken from him during the April 9, 2019 incident. He contends that he requested and filed grievances to have his eyeglasses returned, and complained that the sight in his right eye was worsening because he did not have his eyeglasses. Even still, according to Whitney, the Corrections Defendants ignored his requests and grievances, and did not send him for medical treatment. He also alleges that the Corrections Defendants did not send him to the dental department to have his stolen false front tooth replaced.
Whitney claims that in June and July 2021, he saw medical and it was found that “plaintiff eye sight had become worse because defendants withheld plaintiff glasses [and] some time later plaintiff was prescribe new medical glasses because he eye sight was bad and worse than before.” P's Resp. to Ds' Stmt of Mat. Facts ¶¶ 33-36 (ECF 72).
The Corrections Defendants acknowledge that Whitney filed Grievance #797180 on April 10, 2019, alleging that his eyeglasses were taken, but argue that “he filed no additional grievances regarding his eyeglasses or worsening eyesight.” Ds' Stmt. of Mat. Facts ¶ 37 (ECF 68). They also argue that Whitney's medical records reveal that no consultations were needed, that an October 3, 2019, Dental Progress Note states that no follow-up was required, and that the medical records do not indicate that Whitney complained that his eyesight was worsening. (Id. ¶¶ 32 - 36). The undersigned notes that the Corrections Defendants have simply submitted Whitney's medical records, but there was no affidavit attesting to the authenticity or completeness of the records, nor was there any affidavits, declarations, or deposition testimony explaining to the Court the meaning of the medical records or explaining why Whitney's allegations are not supported by the medical records. In other words, the medical records produced by the Corrections Defendants in support of summary judgment are, essentially, an unauthenticated accumulation of progress notes, reports, and other medical documents. Yet even if the Corrections Defendants had supported their version of what the medical records contain with affidavits from medical providers, it could not be said that their version of events is undisputed. For that reason, it is recommended that summary judgment be denied on Whitney's claim of failure to provide medical treatment.
III. Conclusion
For these reasons, it is respectfully recommended that the Motion for Summary Judgment filed by the Corrections Defendants be denied. It is further recommended that, pursuant to Federal Rule of Civil Procedure 4(m), the John Doe defendants be dismissed.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by May 31, 2022 and Defendants, because they are electronically registered parties, must file written objections, if any, by May 25, 2022. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).