GARRETT v. WAGNER et al

Filing 96

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 8/4/15. 8/5/15 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KAREEM GARRETT
v.
GEORGE WAGNER, et al.

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CIVIL ACTION

NO. 11-CV-1888

MEMORANDUM AND ORDER
Ditter, J.

August 4, 2015

Defendants, Warden George Wagner, Sergeant Dwight Rescorla, Lieutenant
Miguel Castro, and Officer Christopher Vollmer have filed a motion for summary
judgment on all counts raised against them in this civil rights complaint. For the reasons
that follow, the motion is being granted.
I. Factual and procedural history 1
Kareem Garrett brings this action under 42 U.S.C. § 1983 for violation of his First
and Eighth Amendment rights stemming from his incarceration at the Berks County Jail
in 2010 and 2011. Garrett claims that while he was held in the jail’s quarantine intake
unit, he was “forced to endure deplorable, inhumane, and unsanitary conditions.” Plt’s
Mem. at 1. He claims further that his attempts to be moved, to get cleaning products, and
to get medical care for a rash resulting from being housed in this cell were rebuffed and
that he was disciplined for his complaints.

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For purposes of this motion, the facts are viewed in the light most favorable to the plaintiff as the nonmoving party.

A. Conditions of confinement
From November 9 to November 11, 2010, Garrett was confined in the intake block
of the Berks County Jail after being transferred from a state correctional facility.2
According to his deposition testimony, Garrett likened the condition of his cell to a gas
station restroom. Plt.’s Exh. D, Garrett Dep., at 22. He saw “human feces,” “dirt caked,
all types of stuff on the floor.” Id. There was urine on the toilet and “[t]he smell was
awful.” Id. at 23.
At the time Garrett was housed on the intake block, Officer Vollmer was the unit
officer on duty and was responsible for supervising the cleaning of the cells. Garrett
complained to Vollmer about the condition of the cell and asked to be moved. When his
request was denied by Vollmer, Garrett asked for cleaning supplies. Vollmer said he
would try to get the supplies. Id. at 23-24.
A few hours later, Garrett was given a meal tray but he couldn’t eat it because of
the smell of his cell. When the meal trays were picked up, he again asked for cleaning
supplies but they were still unavailable. Id. at 25. Garrett was willing to give Volmer
“some grace days, two or three days” to obtain the supplies. Id. Although it is not clear
how long Garrett and his cell mate, Sean Lopp, waited, at some point they used their

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The state correctional facilities sometimes house prisoners in this county facility because of overcrowding
or for medical purposes. See. Def.’s Exh. A, W agner Dep., at 19. There is nothing in the record to indicate Garrett
was transferred for medical reasons.

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shirts to clean the cell with hand soap.3
The next day, after cleaning the cell, Garrett again asked to be moved to another
cell. Vollmer refused the request and Garrett asked to see a sergeant. Id. at 27. Vollmer
contacted Sergeant Rescorla by phone. Garrett was present for the call but did not speak
to the sergeant. He testified that he heard Vollmer “explaining the conditions of the cell,”
and asking for cleaning supplies, but Vollmer did not ask if Garrett could be moved to
another cell. Id. at 29. Continued requests to be moved to another cell were refused by
Vollmer, so on day three Garrett asked to speak to a lieutenant. Id. at 30. When that
request was denied, he asked for a grievance form. Vollmer then told Garrett to go inside
his cell, called him a racist name, and suggested he should be used to living in these
conditions because he was from the ghetto. Id. at 31-32. Garrett received and completed
a grievance form. Id. at 32.
The defendants deny Garrett’s claim that his cell was uninhabitable, and that he
requested and was denied cleaning supplies. According to Officer Vollmer, his duties
included making sure cells were inspected and clean when new prisoners were assigned.
See Plt.’s Exh. G, Vollmer Dep., at 11-12. This inspection included checking mattresses,
making sure the water was working, and checking for smells. Id. He agreed that Garrett

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Garrett testified that he did not know if they cleaned the cell on the second or third day. However,
consistent with other exhibits concerning Lopp’s disciplinary action, Lopp’s declaration indicates that he was placed
inthe cell the same day as Garrett, was in the cell for “about one day,” and was moved out of the cell into the
restrictive housing unit on the second day he was at the facility. Plt’s Exh. E., Lopp Decl., ¶¶ 3, 8. Thus, this cleanup had to have occurred on day one or two (although Lopp states that they were never able to clean the cell). Id.
at ¶ 7.

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asked for cleaning supplies and testified that the supplies were provided “almost
immediately.” Id. at 27. Vollmer also testified that the condition of Garrett’s cell was
“decent” and “clean.” Id. at 28.
Sergeant Rescorla, Vollmer’s supervisor, testified that the officer assigned to the
block was responsible for inspecting the condition of the cells – to make sure the toilet
was working, water was running, light was working, and cell was cleaned. See Def.’s
Exh. D, Rescorla Dep., at 33. If a cell did not pass inspection, it would not be used. Id.
The defendants also deny Garrett suffered any harm as the result of his three-day
confinement in this cell. Instead, they contend Garrett’s repeated complaints were an
effort to be removed from the county facility and returned to the state prison system
where inmates enjoy more freedom and amenities.
B. Retaliation for filing grievances and inmate correspondence
1. November 2010
After the above-described incident, Vollmer issued Garrett a misconduct for
threatening an officer. The misconduct indicated that Garrett had repeatedly asked to be
moved to another cell. When told he could not speak to a lieutenant, Vollmer wrote that
Garrett threatened him by saying “there would be a problem if he didn’t get to talk to a
Lieutenant.” See Plt’s Exh. L, Nov. 11, 2010 Misconduct Report. Garrett responded that
he had said “I guess it’s a problem aski[n]g to talk to a Lt.” Id. A hearing officer
credited Vollmer’s version of the incident and concluded that the statement was an not a

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direct threat, but was an indirect and implied threat. Rescorla agreed with the decision to
discipline Garrett and had him sent to the restrictive housing unit (solitary confinement)
that same day. Warden George Wagner reviewed this misconduct when Garrett appealed
his punishment. Wagner agreed that the statement was an indirect threat, but reduced the
sentence to eleven days in solitary confinement.4 Garrett believes this disciplinary action
was initiated by Vollmer and approved by Wagner in retaliation for his complaints about
the cell.
2. March 2011
On January 29, 2011, while in the restricted housing unit, Garrett claims he ate a
foreign substance that was in his food. Plt.’s Exh. D, at 136. As a result he became ill.
Throughout the next few months he had stomach pain and vomited. Some of the vomit
contained blood. This resulted in his filing numerous grievances and requests for medical
attention.
Defendant Castro was the grievance coordinator at the facility and was responsible
for answering inmate grievances. On March 14, 2011, Castro issued Garrett a misconduct
for harassment by communication. Castro reported that Garrett had filed “a large quantity
of frivolous, unfounded, and/or repetitive grievances, despite the numerous warnings to
stop doing so.” See Plt.’s Exh. X, Mar. 14, 2011 Misconduct Report. Garrett was again
placed in the restricted housing unit, this time for ten days. Garrett’s appeal to Wagner

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The record before me does not indicate the original length of confinement imposed by the hearing officer.

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was denied.
II. Standard of review
The standard for summary judgment is well-established. I must consider the
evidence in the light most favorable to the non-moving party. Summary judgment may be
granted where there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
However, the non-moving party cannot rely on unsupported assertions, conclusory
allegations, or mere suspicions to defeat a summary judgment motion. Here, Garrett must
“do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
He “must present affirmative evidence in order to defeat a properly supported motion”
and cannot “simply reassert factually unsupported allegations.” Williams v. Borough of
West Chester, 891 F.2d 458, 460 (3d Cir. 1992). He cannot “merely rely upon conclusory
allegations in [his] pleadings or in memoranda and briefs.” Harter v. GAF Corp., 967
F.2d 846, 852 (3d Cir. 1992).
III. Discussion
A. Conditions of Confinement claim
This case involves two claims against several defendants. First, is Garrett’s Eighth
Amendment claim, under 28 U.S.C. §1983, against Vollmer and Rescorla. To prevail,
Garrett must establish that: (1) his conditions of confinement are sufficiently serious

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under an objective standard; and (2) prison officials acted with deliberate, subjective
indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994).
Prison officials must provide inmates with humane conditions of confinement;
including adequate food, clothing, shelter, and medical care, and must take reasonable
steps to ensure their safety. Id. at 832. Applying a totality of the circumstances test,
“[r]elevant conditions include the length of confinement, the amount of time prisoners
must spend in their cells each day, sanitation, lighting, bedding, ventilation, noise,
education and rehabilitation programs, opportunities for activities outside the cells, and
the repair and functioning of basic facilities such as plumbing, ventilation, and showers.”
Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996). Thus, Garrett must offer evidence from
which a jury could objectively conclude that the unsanitary conditions reach an
unconstitutional level and subjectively conclude that the prison official was deliberately
indifferent to the substantial risk of harm to the prisoner.
The evidence establishes that Garrett spent only two nights in this cell because of
the misconduct filed by Vollmer. That misconduct was upheld and it was only in
response to the misconduct charge that Garrett filed a communication form on November
12, 2010. There is nothing in this communication that would put anyone on notice that he
was complaining that his cell was uninhabitable. There is no mention of feces, smells or
problems with the toilet and sink. He only says he “need[ed] to clean my cell to keep

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maintaining my personal hygiene and my living.” See Plt.’s Exh. C; Def.’s Exh. P, at 2.
A grievance filed the same day is a complaint about Vollmer, not about the condition of
his cell. Garrett states “All I ask was to clean my cell to maintain my personal hygiene
and now I’m being charge[d] with threats and harassment.” Def.’s Exh. P, at 3. There is
no mention of problems with the sink, toilet, feces, dirt or smells.
In a second communication form, dated November 13, 2010, and filed after he was
moved to the restrictive housing unit, Garrett complained that an inspection was not
conducted when he was assigned his cell (as required by prison regulations). In this
communication, Garrett describes the condition of his cell: “There were racial remarks
writing [sic] on the fixtures and living area, urine spots, urine smell, food in the desk,
bugs flying around, spit around the sink, the place was filthy.” Id. at 4. However, there is
no mention of human feces, his inability to eat, use the bathroom facilities or practice his
religion. In his grievance filed the same day, Garrett challenges his misconduct but does
not complain about the condition of his cell. Id. at 5. Grievances filed on November 15
and November 19 also do not raise any complaints about the condition of his cell.
At no time does he indicate that he suffered any injuries as the result of being
housed in the intake unit cell. His first request for a sick call appears in his November 15
grievance, but he complains of a recurrence of back, hip and knee pain from injuries he
sustained in a car accident and attributes his present pain to sleeping on a metal bed while
in the restrictive housing unit. No mention of a rash, trouble eating, inability to use the

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toilet or practice his religion, or any emotional difficulties.
A November 22 communication form requests that he be taken to Muslim services.
A second communication filed the same day asks to receive his Commissary orders. A
third asks for his property that had been transferred from “SCI Hill Camp.” On
November 26, he asks for a Koran, prayer rug and Kufi. These are his only
communications concerning his ability to practice his religion, they make no mention of
the conditions of the intake unit and were filed weeks after he had been moved from that
cell.
Although the record evidence is inconsistent with Garrett’s current claims,
particularly as described in his affidavit submitted in defense of the motion, for purposes
of summary judgment, I must and shall accept his version of events. Even still, viewing
the totality of the allegations, I find they are insufficient to establish cruel and unusual
punishment.
Fully crediting Garrett’s description of the condition of his cell, there is not
sufficient evidence in the record from which a jury could conclude that the condition of
the cell reached a constitutional violation for the following reasons. A survey of other
cases in this circuit reveals that such claims were denied when cell conditions were much
more severe and where the prisoner was subjected to those conditions for a greater period
of time. See Burkholder v. Newton, 116 F. App’x 358, 363 (3d Cir. 2004) (confinement
in a cell for up to thirty days with a toilet that “often” backs up is insufficient to state an

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Eighth Amendment claim); Ridgeway v. Guyton, 2015 U.S. Dist. LEXIS 24754 (W.D.
Pa., March 5, 2015) (broken toilet overflowing with fecal matter, urine and a black
substance not repaired for one month despite continuous complaints).
First, although the conditions described were not pleasant, Garrett testified that he
and his cell mate were able to clean the cell with shirts and hand soap and that they were
willing to give Vollmer two or three days to get the requested cleaning supplies. This
testimony is supported by the fact that he never filed a grievance complaining about the
condition of his cell – only one in response to Vollmer’s issuance of a misconduct citation
for threatening an officer. In fact, Garrett was moved from the cell before his “grace
period” had expired. It is wholly inconsistent to claim a cell was so uninhabitable that the
condition constituted cruel and unusual punishment but still be willing to wait several
days for cleaning supplies. One suffering to the extent claimed by Garrett would not be
so gracious.
Next, given the conditions of the cell, Garrett does not meet the duration
requirement. When evaluating whether a prisoner has been deprived of his rights, I may
consider the length of time the alleged deprivation lasted. Courts have rejected claims of
greater severity and longer duration. See Dumas v. Pennsylvania Dep’t of Corr., 2001
U.S. Dist. LEXIS (W.D. Pa. Apr. 30, 2007) (no constitutional violation where plaintiff
alleges he was in filthy conditions for only three weeks). Again, by his own testimony,
the conditions were such that he was willing to wait two to three days for cleaning

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supplies and he was out of the cell before that time had expired.
Finally, there is no evidence that Garrett suffered any significant physical injury as
the result of his confinement in this cell. Although Garrett contends that as the result of
his time in this cell he developed anxiety and insomnia, felt degraded, humiliated,
discouraged, depressed, and was unable to pray; the only physical injury alleged as the
result of being in this cell was a rash that “spread like poison ivy.” Plt’s. Exh. D, at 27,
39-40. There is nothing in the record to link these complaints to his time in the intake
unit. Certainly any prisoner might have the same complaints simply because he is
imprisoned. The only medical treatment received was for his skin rash. The nurse who
treated him diagnosed his condition as dry skin common to African Americans and she
provided him with hydrocortisone cream that would “hold him over” until he could
purchase a cream at the commissary. Def.’s Exh. N, at 33-36. There is no claim that this
treatment was unsuccessful. This is not the type of “physical injury” that would support a
claim of cruel and unusual punishment.
Having concluded that Garrett has not met the objective requirements to establish
extreme deprivation for an Eighth Amendment claim, it is not necessary to determine if
he has provided evidence of deliberate indifference on the part of the prison officials.
Without evidence to show Garrett “faced a substantial risk of serious harm,” neither
Vollmer nor Rescorla could be found to have “disregard[ed] that risk by failing to take
reasonable measures to abate it.” Farmer, 511 U.S. at 847.

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There is also nothing in the record to show Garrett had complained to any prison
official about the conditions of his cell other than Vollmer. Garrett has failed to elicit
evidence from which a fact-finder could conclude that Sergeant Rescorla was deliberately
indifferent to a risk of harm to Garrett. Rescorla’s only information concerning the
conditions of Garrett’s cell was a telephone call from Vollmer. Garrett testified at his
deposition that he heard Vollner make the call to Rescorla. When asked what Vollmer
said, Garrett testified that Vollner explained the condition of the cell and “[h]e just asked
for cleaning supplies.” See Plt’s Exh. I, Garrett Dep. at 29. He does not say what he
heard Vollmer say those conditions were; Vollmer describes the cell as clean and decent,
and Rescorla denies any knowledge of the conditions of Garrett’s cell. Further, none of
the communications or grievances filed by Garrett concerned the condition of his cell
until after he was removed from the cell and no longer exposed to any alleged harm.
Thus, even if Garrett could establish that the conditions of his cell reached a
constitutional level, the evidence is not sufficient to show Rescorla had adequate
knowledge from which to form an “actual, subjective appreciation of a substantial risk.”
Farmer, 511 U.S. at 837-38.
B. Retaliation claims
Second, Garrett raises retaliation claims against Sergeant Rescorla and Warden
Wagner based on the misconduct he received in November 2010. He asserts retaliation
claims against Lieutenant Castro and Warden Wagner for the March 2011 misconduct.

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Each misconduct resulted in his being sent to restrictive housing.
A prisoner alleging retaliation must demonstrate “(1) constitutionally protected
conduct, (2) an adverse action by prison officials ‘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.’” Mitchell v.
Horn, 318 F.3d 523, 530 (2d Cir. 2003) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001)). The filing of grievances can be constitutionally protected. Id.
Once a prisoner has made out a prima facie case of retaliation, the burden shifts to
the prison officials to prove by a preponderance of the evidence that they “would have
made the same decision absent the protected conduct for reasons reasonably related to
legitimate penological interests.” Carter v. McGrady, 292 F.3d 152, 154 (3d Cir. 2002)
(citing Rauser, 241 F.3d at 334). Further, it is well-established “that decisions of prison
administrators are entitled to great deference.” Id. In such a case, “[t]he relevant
question is whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board. Bullock v. Buck, 2015 U.S. App. Lexis 7260, *8
(quoting Superintendent v. Hill, 472 U.S. 445, 455-56 (1985)). In other words, “if the
discipline which the prisoner claims to have been retaliatory was in fact imposed for an
actual violation of prisoner rules or regulations, then the prisoner’s claim that the
discipline was retaliatory must fail.” See Henderson v. Baird, 29 F.3d 464 (8 th Cir. 1994).
Here, Garrett’s first misconduct was not for any complaints he made and he had

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not yet filed any grievances. Officer Vollmer filed the misconduct because Garrett had
threatened him and the punishment was imposed after a hearing by an impartial hearing
officer. Rescorla’s role in the proceedings was limited approving the filing of the
misconduct and there is no indication that he had any contact with Garrett at that time.
He simply reviewed the misconduct filed by Vollmer, agreed that the officer had been
threatened, and referred the matter for a disciplinary hearing. Following the hearing,
Garrett appealed and Wagner affirmed the decision of the hearing officer but reduced the
time in restrictive housing. There is nothing in the record that supports a claim that
Rescorla or Wagner were retaliating against Garrett for complaining about the condition
of his cell because he hadn’t complained to either of them about it until after the
misconduct had been filed. Moreover, it was the hearing officer, who is not a defendant
in this lawsuit, who found the misconduct was warranted after hearing testimony from
both Garrett and Vollmer. Rescorla simply approved the initiation of the misconduct by
Vollmer based on his report of the incident. Wagner approved the decision of the hearing
officer but reduced Garrett’s time in restrictive housing.
Because there is evidence to support the finding that Garrett had threatened
Vollmer, and that the disciplinary action was imposed for a violation of the prison’s rules,
the decision of the prison administrators is entitled to deference. Thus, this claim of
retaliation must fail.
Garrett’s claims against Castro and Wagner for the March 2011 misconduct fail for

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the same reasons. While Garrett argues that some may have been invited by Castro or
were not repetitive, it is clear from the record that Garrett filed numerous grievances and
communications. It is also clear that he was repeatedly warned to stop filing multiple
communications on the same complaints that had already been decided and it was only
after he continued to ignore these warnings that he was disciplined. Garrett argument that
Castro used his discretion not to punish Garrett sooner does not establish animus, rather it
shows patience. Clearly, that patience was tested and ultimately Garrett had to answer for
his continued refusal to comply with prison rules.
Again, because there is sufficient evidence that the disciplinary action was
imposed for a violation of the rules, the decision of the prison authorities is entitled to
deference and this claim must also fail.
IV. Conclusion
For the reasons set forth above, I find Garrett has failed to offer evidence from
which a fact-finder could conclude that his constitutional rights were violated. I shall
grant the motion for summary judgment filed by defendants Wagner, Rescorla, Castro and
Vollmer, and enter judgment in their favor on all claims raised in the complaint.
An appropriate order follows.

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