Drumgo v. Kuschel et al

Filing 59

MEMORANDUM. Signed by Judge Gregory M. Sleet on 7/22/2016. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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DESHAWN DRUMGO,
Plaintiff,

v.
SGT. WILLIAM KUSCHEL, et al.,
Defendants.

Civil Action No. 14-1135-GMS

MEMORANDUM
I.

INTRODUCTION
Plaintiff De Shawn Drumgo

("Drumgo~')

is an inmate at James T. Vaughn Correctional

Center ("JTVCC"). On September 8, 2014, he filed this prose action against a number of JTVCC
and Delaware Department of Corrections officers and employees (collectively, "Defendants"). 1
(D .I. 3.)

Drumgo' s remaining claims against the Defendants are allegations of sexual

harassment/assault, a failure to protect or intervene, and retaliation, in violation the First, Eighth,
and Fourteenth Amendments to the United States Constitution. (D.I. 9 at 1.) Presently before the
court is the Defendants' Motion for Summary Judgment. (D.I. 45.) For the reasons that follow,
. the court will grant the Defendants' motion.

II.

BACKGROUND
On May 29, 2014, Drumgo was leaving the chow hall of his housing unit when Kuschel

subjected him to a pat-down frisk. (D.I. 46 at ,-r 4.) JTVCC uses these frisks to prevent inmates

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The remaining defendants are Officers William Kuschel ("Kuschel"), Cheryl Vangorder, Daniel Hutchins,
Terrell Ingram, (collectively, "the officers") and Delaware Department of Corrections employees David Alston
("Alston") and Stanley Baynard ("Baynard").

from smuggling contraband from the chow hall to. their cells or other inmates. ·(Id.) Drumgo
alleges that in this pat-down, Kroschel patted and groped his legs in an inappropriate sexual manner
before grabbing and squeezing his penis until its skin ruptured. (Id. at if 5.) Drumgo asserts that
at this point, the officers present laughed and failed to either intervene or later file any incident
reports. (fd. at if 6.)
Following this incident; Drumgo claims he filed a sick call slip for medical treatment for
his injury, as well as a separate sick call slip for mental health assistance due to nightmares and
sleeplessness resulting from the incident. (Id. at if 7 .) He also alleges he filed a grievance through
JTVCC' s Inmate Grievance Procedure (D .I. 3), and filed a Prison Rape Elimination Act ("PREA'')
complaint with Baynard. (Id.) Baynard investigated, concluded that Drumgo' s complaint lacked
evidence, and closed the case. (D.I. 45, Ex. F afif 4.) Roughly a week after the chow hall incident,,
Drumgo was transferred to another facility. (D.I. 45, Ex.Hat if 7.) Drumgo further alleges that
the electrical service for his new location was inoperative, and that when he asked Alston about it,
Alston claimed it was "retaliation" for Drumgo' s allegations and grievance against Kuschel. (D .I ..
46atif11.)
On September 8, 2014, Drumgo filed this complaint under 42 U.S.C. § 1983 alleging that
the above events violated his First, Eighth, and Fourteenth Amendment rights. (D .I. 3.) In support,
he attached affidavits of two fellow prisoners who claim to have witnessed the May 29, 2014
groping pat-down as well as a copy of an Inmate Grievance Form. (D.I. 3.) In his subsequent
filings before the court he has also produced a copy of his mental health sick call slip dated July
21, 2014 (D.I. 40, Ex. A) and more prisoner affidavits to the incident in question. (Id., Ex. B.)

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III.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), "[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." A fact is material if it "could affect the outcome" of the
proceeding. Lamontv. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). There isa genuine issue "if
the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party."
Id. When determining whether a genuine issue of material fact exists, the district court must view
the evidence in a light most favorable to the nonmoving party and draw inferences in that party's
favor.

Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). If the moving party is able to

demonstrate an absence of disputed material facts, the nonmoving party must then "come forward
with 'specific facts showing that there is a genuine issue for trial."' _Matsushita, 475 U.S. at 587
(citing Fed. R. Civ. P. 56(e)).
The pleadings ofpro se plaintiffs are generally held to "less stringent standards" than those
of represented parties. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404
U.S. 519, 520 (1972). A pro se plaintiff still has "the formidable· task of avoiding summary
judgment by producing evidence 'such that a reasonable jury could return a verdict for [him].'"
See Zilich v. Lucht, 981F.2d694, 696 (3d Cir. 1992) (alteration in original) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court will not recognize a genuine dispute of
material fact solely on unsubstantiated allegations in the complaint. See Harp v. Rahme, 984 F.
Supp. 2d 398, 409 (E.D. Pa. 2013) ("Plaintiffs prose status does not eliminate her obligation to
allege specific facts, substantiated by evidence on the record.").

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IV.

DISCUSSION
Among other things, the Defendants argue that the court should dismiss Drumgo's case

because Drumgo failed to exhaust all available administrative remedies prior to filing this suit.
"No action shall be brought with respect to prison conditions under section 1983 of this title, or
any other federal law, by a prisoner ... until such administrative remedies as are available are
exhausted." 42 U.S.C. § 1997(e)(a). The "inmate must follow the procedural requirements of the
prison grievance system." Smith v. Vidonish, 210 F. App'x 152, 155 (3d Cir. 2006). JTVCC
maintains an Inmate Grievance Procedure that requires that inmates file their grievance within
seven days of the incident. (D.I. 46, Ex. J.) If the grievance is against a staff member, then the
grievance will_ be rejected and forwarded to the accused staffer's immediate supervisor instead.
(Id.) Grievances thusly rejected are mar~ed "non-grievable" and include a note indicating referral

to Internal Affairs. (D.I. 51 at 30.) These grievances are nevertheless logged in the Delaware
Automated Corrections S_ystem ("DACS") computer database. (D.I. 55

at~

18.)

The Defendants claim that Drumgo failed to file a grievance against Kuschel after the May
29, 2014 incident. Michael Little ("Little"), the Legal Services Administrator at JTVCC, searched
DACS logs for the year prec'eding and two weeks following the alleged incident and found no filed
grievances by Drumgo against Kuschel. (D.I. 46, Ex. H.) Little did find, however, over 150
unrelated grievances filed by Drumgo. The absence of any relevant grievance in the DACS record
raises an inference that Drumgo failed to file a formal grievance following the incident at hand.
Drumgo acknowledges that he is aware of the JTVCC grievance procedure. (D.l.51at30.)
He fails to produce credible evidence to corroborate his claim that he submitted a grievance form.
Although Drumgo produced a grievance form describing the May 29, 2014 incident with Kuschel,
the form bears no markings or indications that JTVCC received or reviewed it. (D.I. 51, Ex. E.)

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Despite Drumgo' s assertion to the contrary (see D .I. 56 at 6), the medical grievance invoice makes
no mention of any earlier grievance reports filed. (D .I. 51, Ex. A.) The court notes that Drumgo
also produced several grievance forms he filed regarding different incidents on November 30 .and
December 8, 2015. (D.I. 43, Ex. A.) In contrast to the May 29, 2014 grievance form, these later
forms include timestamps indicating the date of their receipt by JTVCC, and the November 30
grievance also includes a coversheet generated by JTVCC. (Id.) An unmarked grievance report
cannot create a genuine issue of fact when a database search confirms no such report was ever
actually submitted.
There also is no evidence that Drumgo followed the Inmate Grievance Procedure regarding
this grievance against any of the Defendants. In the absence of corroboration.for his claim that he
filed a grievance report, Drumgo cannot defeat the Defendants' motion for summary judgment.
Accordingly, the court will grant the Defendants' motion.

V.

CONCLUSION
For the foregoing reasons, the court will grant the Defendants' Motion for Summary

Judgment.

Dated: July'). i.., 2016

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