Parkell v. Dukes et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 7/8/2013. (fms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DONALD D. PARKELL,
Plaintiff,
v.
SARGEANT DUKES and
G.R. JOHNSON,
Defendants.

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Civ. No. 12-043-SLR

Donald D. Parkell, Wilmington Delaware. Prose.
Devera B. Scott, Deputy Attorney General, State of Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Dukes and Johnson.

MEMORANDUM OPINION

Dated: July $ , 2013
Wilmington, Delaware

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I. INTRODUCTION
Plaintiff Donald D. Parkell ("plaintiff') is a Delaware prison inmate currently
incarcerated at the Howard R. Young Correctional Center in Wilmington, Delaware. On
January 17, 2012, plaintiff filed a complaint and motion to proceed in forma pauperis
pursuant to 42 U.S.C. § 1983 against Sergeant Dukes ("Dukes") and Warden Johnson
("Johnson"), (collectively "defendants") alleging Eighth Amendment violations. (D.I. 1,3)
The court has subject matter jurisdiction over the claims asserted pursuant to 42 U.S.C.
§1983 and 28 U.S.C. § 1331. Currently before the court is plaintiffs motion to compel
(D.I. 22), and defendants' motion for summary judgment. (D.I. 26)

II. BACKGROUND
In March 2011, plaintiff underwent surgery on his right shoulder while
incarcerated at the correctional facility in Smyrna. (D.I. 19 at A000083) After the
surgery, he was issued a bottom bunk memo, which expired on July 23, 2011. (D. I. 19
at A000034) On June 27, 2011, plaintiff was transferred to Sussex Correctional
Institution ("SCI"). (D.I. 28, ex 1, Parkell Dep. 11:5-12, Nov. 19, 2012) While at SCI,
plaintiff had several bunk assignments. (Parkell Dep. 30:5-19) Plaintiff was first placed
in a single cell room while in the Multi-Security Building, a top bunk in tier D (October
12, 2011-0ctober23, 2011), a bottom bunk in tier 8 (October23, 2011-November 11,
2011 ), and finally a top bunk in tier A (starting November 11, 2011 ), where the incident
at hand occurred. (Parkell Dep. 30:3-24; 31:1; D.l. 27, ex. 2, Dukes aff.1J1l2-4 & ex. A)
Plaintiff alleges that, when he was moved from a bottom bunk in tier 8 to a top
bunk in tier A, it was an attempt by Dukes to harass or punish him. (D.I. 3 at 3-4) Duke
disputes this. (Dukes aff. at 1J18) On November 14, 2011, plaintiff was injured when he

fell attempting to reach the top bunk. (D. I. 19 at 00060) A bottom bunk memo, dated
November 16, 2011, was sent out by the medical staff and received by the security
superintendent on November 18, 2011. (D. I. 19 at A000142) Plaintiff alleges that
Dukes was made aware of the need, but ignored it. (D.I. 3 at 4) Dukes disputes this.
(Dukes aft. at 111114-17) On November 24, 2011, plaintiff again fell attempting to reach
his bed. (D.I. 19 at A000058) After visiting the nurse, the bottom bunk memo was sent
out again on November 26, 2011, and approved on November 28, 2011. (D.I. 19 at
A000143) Plaintiff alleges that after his second fall, Dukes was informally reprimanded.
(D. I. 3 at 4) Dukes disputes this. (Dukes aft. at 115)
After learning of the memo on November 26, 2011, Dukes ordered plaintiff and
his cell mate, Guinn, to switch bunks so that plaintiff could have a bottom bunk. (D.I. 3
at 4-5; Dukes aft. at 1117) At 2:30P.M., the inmates were counted. (Dukes aft., ex. Bat
A000168) During the count, plaintiff was in the bottom bunk and his cell mate was in
the top. (Parkell Dep. 65:13-14; Dukes aft. at 119) At 3:30P.M., Dukes went off duty.
(Dukes aft., ex. Bat A000169) At 3:50P.M. there was another count of the inmates and
still no problems were reported. (/d.) At 5:30 P.M., a fight broke out between plaintiff
and his cell mate Guinn. (/d.) Officers responded and cap stunned both men. (/d.)
Plaintiff was then sent to ASDA (holding area for pre-hearing detention), where he
alleges a policy was put in place by Johnson that did not allow inmates in ASDA to
shower for 24 hours, making it impossible for plaintiff to wash the mace from his face
and body. (D.I. 3 at 10) Johnson disputes that such a policy was in place. (D.I. 27, ex.
3, Johnson aft. at 116) When plaintiff was taken to the infirmary, the medical staff noted
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that the plaintiff was not in any distress and plaintiff testified that he rinsed his eyes out.
(D.I. 19 at A000078; D. I. 30, ex 1) Plaintiff claims that he filed grievances, but they
were either deemed nongrievable by Dukes himself or they were intercepted. (D.I. 3 at
4, 6-7) Dukes and Johnson dispute this claim. (Dukes aff. at 1J11; Johnson aff. at 1J7)

Ill. MOTION TO COMPEL
Pursuant to Fed. R. Civ. P. 26, "[p]arties may obtain discovery regarding any
nonprivilged matter that is relevant to any party's claim or defense - including the
existence, description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action. Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).
In his requests for production, plaintiff seeks a full and complete copy of his
prison medical record, including photographs taken of his injuries and copies of the
disciplinary report relating to the incident with Guinn. (D. I. 16) In response to plaintiff's
request for production of documents, defendants produced plaintiff's medical records for
the time period relevant to the complaint and the disposition of plaintiff's disciplinary
hearing. (D. I. 19; D.l. 24) Plaintiff seeks copies of photos of inmate Guinn's injuries,
copies of the disciplinary outcomes of the hearing relating to the incident with Guinn, as
well as any and all investigative reports and/or findings related to the investigation into
the incident. (D.I. 16) Defendants objected to producing these records on the grounds
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that they are privileged DOC records pursuant to 11 Del. C. § 4322 and 29 Del. C. §
10002, which statutes specifically protect prison records from disclosure to an inmate.
(D.I. 18) For example, § 10002 provides that "[a]ny records in the possession of the
Department of Correction where disclosure is sought by an inmate in the Department's
custody" are not public documents. (D. I. 25 at 2)
The court has reviewed plaintiff's production requests and defendants' responses
thereto. 1 Defendants have properly raised privilege objections to some of plaintiff's
discovery requests, and also produced responsive discovery. After reviewing the
record, the court concludes that defendants have produced sufficient records for the
court to evaluate the allegations at bar. Therefore, the court will deny the motion to
compel.

IV. STANDARD OF REVIEW
A court shall grant summary judgment only 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 judgment as a matter of law." Fed. R. Civ. P. 56( c). The moving party bears
the burden of proving that no genuine issue of material fact exists. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10 (1986). "Facts that
could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from
which a rational person could conclude that the position of the person with the burden of
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The court agrees that documents concerning Guinn's injuries or hearing are not
relevant because it is not disputed that there was an altercation with the plaintiff and
that they both received medical attention.
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proof on the disputed issue is correct." Horowitz v. Fed. Kemper Life Assurance Co., 57
F.3d 300, 302 n.1 (3d Cir. 1995) (internal citations omitted). If the moving party has
demonstrated an absence of material fact, the nonmoving party then "must come
forward with 'specific facts showing that there is a genuine issue for trial."' Matsushita,
475 U.S. at 587 (quoting Fed. R. Civ. P. 56( e)). The court will"view the underlying facts
and all reasonable inferences therefrom in the light most favorable to the party opposing
the motion." Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere
existence of some evidence in support of the nonmoving party, however, will not be
sufficient for denial of a motion for summary judgment; there must be enough evidence

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to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a

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sufficient showing on an essential element of its case with respect to which it has the
burden of proof, the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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V. DISCUSSION

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A. Eighth Amendment Violations
Deliberate indifference is a state of mind "more blameworthy than negligence[,]"
and reflecting greater than an "ordinary lack of due care for the prisoner's interests or
safety." Farmer v. Brennan, 511 U.S. 825, 835 (1970) (quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)); Whitley v. Albers, 475 U.S. 312, 319 (1986)). Deliberate
indifference is determined through a subjective test- that is, the "official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Therefore,
the simple presence of a risk is insufficient to establish deliberate indifference where the
official did not actually perceive the risk. /d. at 838, 847.
The record does not demonstrate that Dukes knew of a substantial risk of serious
harm to the plaintiff. Plaintiff filed two sick call slips between October 12 and October
23, 2011, while he was assigned to a top bunk, and he did not request a bottom bunk
memo on either occasion. (D.I. 19 at A000062-A000063) Therefore, there is no
indication of record that Dukes had reason to think plaintiff needed one. Moreover,
plaintiff has produced no evidence to demonstrate that, when he was moved on
November 11, 2011 to a top bunk in tier A, it was an attempt by Dukes to harass or
punish him.
There also is no evidence showing that Dukes was not responsive to the bottom
bunk memos. Even assuming that Dukes received the first such memo, Dukes timely
ordered plaintiff and his cell mate to switch bunks upon receipt of the second memo.
The inmates were counted twice after Dukes gave the order to switch. (Dukes aff., ex.

8 at A000168-A000169) For the first count, plaintiff and his cell mate Guinn had
switched bunks. (Parkell Dep. 65:4-15) There were no problems reported during the
second count, which was twenty minutes after Dukes went off shift. (Dukes aff., ex. 8 at
A000169) The record shows that the fight between plaintiff and Guinn occurred at 5:30
P.M., two hours after Dukes' shift had ended and another guard was on duty. 2 (/d.)
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Plaintiff alleges in his opposition brief that prison officials may be held liable for
inmate violence if they permit it and that the housing conditions posed an excessive
risk. (D. I. 28 at 25-26) As there is no evidence to support these allegations, the court
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B. Eleventh Amendment Immunity
The claims against State defendants in their official capacities are barred by the
Eleventh Amendment. See Callahan v. City of Philadelphia, 207 F.3d 668 (3d Cir.
2000). The State has not waived its immunity from suit in federal court; although
Congress can abrogate a state's sovereign immunity, it did not do so through the
enactment of 42 U.S.C. § 1983. Brooks-McCollum v. Delaware, 213 Fed. Appx. 92, 94
(3d Cir. 2007) (citations omitted). Moreover, the claims against State defendants
cannot be maintained because State defendants, in their official capacities, are not
"persons" within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71, (1989) (neither states nor state officials sued in their official
capacities for money damages are "persons" within the meaning of§ 1983); see
Evancho v. Fisher, 423 F.3d 347, 350 (3d. Cir. 2005). Therefore, the court will grant
defendants' motion for summary judgment on the claims raised against them in their
official capacities. 3

C. Respondeat Superior/Personal Involvement
Johnson contends that the claims against him fail because he was not personally
involved in the alleged wrongs and liability cannot be based upon respondeat superior.
In order to prevail under§ 1983, a plaintiff must establish that each defendant had
personal involvement in the alleged wrongs since liability cannot be predicated solely on

does not address them.
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An exception to the Eleventh Amendment immunity allows for injunctive relief
against State officials for ongoing violations of federal law. The court finds no ongoing
violations and, therefore, injunctive relief is not appropriate.

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the operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 369 (1976); Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Individual liability can be imposed

under § 1983 only if the state actor played an "affirmative part" in the alleged
misconduct. Rizzo, 423 U.S. at 377; Chinchello v. Fenton, 805 F.2d 126, 133 (3d. Cir.
1990). Personal involvement may be shown by either personal direction or actual
knowledge and acquiescence in a subordinate's actions. Rode, 845 F.2d at 1207.
Plaintiff must show: "1) that the supervising official personally participated in the
activity; 2) that the supervising official directed others to violate a person's rights; or 3)
that the supervising official had knowledge of and acquiesced in a subordinate's
violations." Hunter v. Schouppe, Civ. No. 06-1291, 2007 WL4554251 (W.O. Pa. 2007)
(citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997); Bakerv.
Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).

It is apparent from plaintiff's testimony that Johnson had no personal involvement
in plaintiff's alleged constitutional deprivations and is named as a defendant solely
based upon his supervisory position. Plaintiff testified that he did not have any
knowledge that Johnson was notified about the fight, the bottom bunk memo, or the
grievances. (Parkell Dep. 84:14-24, 85:1-5) The record does not indicate that Johnson
was in any way personally involved with any of the plaintiff's complaints or that he was
aware of any unreasonable risk of injury to the plaintiff to which he remained
"deliberately indifferent." There is no evidence in the record supporting plaintiff's claim
that Johnson had a "no showering" policy for inmates in the ASDA holding area.

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Johnson also testified in his affidavit that no such policy was in place. (Johnson aff. at 1J
6) The record does not support plaintiff's claims that Johnson had a policy for or
allowed grievance complaints to be thrown away. Johnson testified that the grievances
are stored in locked boxes and someone with Dukes' rank of sergeant would not have
had access to the box. (Johnson aff. at 1J 7) There is also a copy of the grievance filed
against Dukes by plaintiff in the record, an indication that the complaints were not
thrown away or disposed of. (Dukes aff., ex. C) The grievance form is the only
document that suggests the warden was notified of the grievance against Dukes. 4 (/d.)
Grievances, however, are not enough to impute knowledge to State defendants. See

Rode, 845 F.2d at 1208 (if the filing of a grievance were enough to put a defendant on
notice for personal liability, it would allow for personal liability in almost every case);

Brooks v. Beard, 167 Fed. Appx. 923, 925 (3d Cir. 2006) (allegations that prison officials
and administrators responded inappropriately to inmate's later-filed grievances do not
establish the involvement of those officials and administrators in the underlying
deprivation); cf. Wilson v. Hom, 971 F. Supp. 943, 947 (E.D. Pa. 1997), affd., 142 F.3d
430 (3d Cir. 1998) (prison officials' failure to respond to inmate's grievance does not
state a constitutional claim).

D. Retaliation
Although not specifically pled, plaintiff's complaint alleges "a pattern of

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On the grievance, the box is checked next to "warden notified." (Dukes aff., ex. C)
Plaintiff alleges that the form is forged as his housing location is incorrect. However, the
computer system inputs plaintiff's current housing location when the grievance is
generated, negating this allegation. (D. I. 30, ex. 2)

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harassment" and "retaliatory efforts" by Dukes. (D. I. 3 at 3-4) "Retaliation for the
exercise of constitutionally protected rights is itself a violation of rights secured by the
Constitution actionable under§ 1983." White v. Napoleon, 897 F.2d 103, 111-12 (3d
Cir. 1990). It has long been established that the First Amendment bars retaliation for
protected speech. See Crawford-EI v. Britton, 523 U.S. 574, 592, (1998); Milhouse v.
Carlson, 652 F.2d 371, 373-74 (3d Cir. 1981 ). Proof of a retaliation claim requires that
plaintiff demonstrate: (1) he engaged in protected activity; (2) he was subjected to
adverse actions by a state actor; and (3) the protected activity was a substantial
motivating factor in the state actor's decision to take adverse action. Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001) (quoting Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977)); see also Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000) (a fact finder
could conclude that retaliatory placement in administrative confinement would "deter a
person of ordinary firmness from exercising his First Amendment rights" (citations
omitted)).
There is no evidence to support plaintiffs allegations that his bunk moves were
anything but ordinary. Plaintiffs grievances were also not disposed of as he alleges.
(Dukes aff., ex. C) The record does not support a finding that Dukes' behavior was
retaliatory or harassing.

VI. CONCLUSION
For the foregoing reasons, the court grants defendants' motion for summary

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judgment5 (0.1. 27), and denies plaintiff's motion to compel. (0.1. 22) An appropriate
order shall issue.

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The court will not address the issue of qualified immunity for defendants
inasmuch as there has been no violation of plaintiff's constitutional rights.
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