MERTZ v. HARMON et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 03/09/2017. 03/09/2017 ENTERED AND COPIES MAILED TO PRO SE LITIGANT AND E-MAILED.(nds)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DONALD RICHARD MERTZ,
JOHN HARMON, et al.,
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
March 9, 2017
Plaintiff Donald Richard Mertz (“Plaintiff”), an
inmate at a Pennsylvania state correctional facility, was
stabbed by another inmate on November 17, 2015, resulting in
injuries to his head.
Plaintiff, who is proceeding pro se,
brings this action pursuant to 42 U.S.C. § 1983 against three
prison officials, alleging that they failed to protect him from
the assault in violation of Plaintiff’s Eighth Amendment rights.
After answering the complaint, the defendants deposed Plaintiff
and filed a motion for summary judgment on all claims against
Plaintiff has not responded to the motion.1
Although Plaintiff has not responded to the motion for
summary judgment, the Court has an independent obligation to
ensure that Defendants have met their burden to show that there
is no genuine dispute as to any material fact and that they are
reasons discussed below, the Court will grant Defendants’
On or around November 5, 2015, Plaintiff began his
incarceration at Northampton County Prison (“the Facility”),
where he had stayed during several earlier periods of
See Mertz Dep. at 6:19-23, May 18, 2016, Def.’s
Mot. Summ. J. Ex. B, ECF No. 17.
According to Plaintiff, on
November 17, 2015, at around 11:15 a.m., fellow inmate Eshaun
Martin (“Martin”) attacked him.
See Compl. 2-3, ECF No. 3.
Martin allegedly stabbed Plaintiff in the back of his head and
used his fingernails to cut Plaintiff’s face.
Id. at 3.
Plaintiff was taken to Easton Hospital, where he received eight
staples in his head.
At his deposition, Plaintiff explained that he and
Martin were acquaintances prior to their incarceration.
Mertz Dep. at 19:15-18.
A few years ago, Martin and his
girlfriend stayed with Plaintiff for about a month, when they
did not have anywhere else to stay.
See id. at 19:19-25, 20:1-
entitled to judgment as a matter of law. See E.D. Pa. R. Civ.
P. 7.1(c); Fed. R. Civ. P. 56(e); Watkins v. Leonard, No. 030109, 2005 WL 1367409, at *2 (E.D. Pa. June 7, 2005).
The facts are presented in the light most favorable to
Plaintiff, the nonmoving party.
During one of Plaintiff’s prior periods of incarceration,
he signed a form requesting not to be housed with Martin.
id. at 19:2-12.
According to Plaintiff, he was placed in
administrative segregation upon his arrival at the Facility in
early November 2015.
Id. at 17:13-19.
While in administrative
segregation, Plaintiff was permitted to have visitors only in
See id. at 22:8-15.
Plaintiff wanted to move out
of administrative segregation so that his mother, who was
undergoing cancer treatment at the time and could not visit in
the morning, would be able to visit him.
See id. at 21:15-22,
Plaintiff claims that when he requested to move out of
administrative segregation, Defendant John Harmon (“Harmon”)
told Plaintiff that he could not move unless he signed a form
stating that he revoked his prior request not to be housed with
Id. at 34:18-22, 35:13-23.
As a result, Plaintiff
signed the form permitting him to be housed on the same cell
block as Martin.
Plaintiff alleges that about a month prior to his
incident with Martin, prison officials caught Martin with a
weapon in his cell – a piece of steel that could be used to stab
Id. at 36:9-17.
Plaintiff claims that this
information was in Martin’s prison record, id. at 36:18-25, and
that if Plaintiff had known about it, he would never have signed
the form agreeing to be housed with Martin, id. at 35:24-25,
After Plaintiff signed the form agreeing to be housed
on the same cell block as Martin, Plaintiff was moved to his new
cell, which he occupied alone.
Id. at 39:18-25.
Plaintiff, the assault happened approximately two hours after he
Id. at 40:11-13.
Plaintiff claims that the
correctional officer assigned to Plaintiff’s cell block was not
on the cell block during the assault.
Id. at 40:16-25.
According to Plaintiff, he and Martin were both in the hallway,
where they had a brief verbal exchange.
Id. at 41:3-6.
Martin said he did not have any problem with Plaintiff, Martin
waited until Plaintiff’s back was turned, and then stabbed him
with a piece of a light bulb.
Id. at 41:3-9.
that the incident was captured on camera, although he is not
sure whether the camera was working.
Id. at 42:11-15.
Plaintiff filed this action on December 14, 2015,
bringing claims under 42 U.S.C. § 1983 against Harmon, Deputy
Warden Joseph Kospiah, and Deputy Warden David Penchishen
ECF No. 1.
forma pauperis status on December 18, 2015.
The Court granted in
ECF No. 2.
Plaintiff’s complaint appears to bring an Eighth Amendment claim
based on Defendants’ failure to protect him from Martin’s
See Compl. at 3.
Defendants answered the complaint on March 2, 2016.
ECF No. 11.
Plaintiff moved for the appointment of counsel on
March 14, 2016.
ECF No. 12.
The Court held a pretrial status
conference on April 18, 2016.
See ECF No. 13.
On April 19, 2016, the Court issued an order (1)
granting Defendants leave to depose Plaintiff by June 17, 2016;
(2) ordering Defendants to file a motion for summary judgment by
July 18, 2016; and (3) scheduling a status conference for August
1, 2016, to determine whether Plaintiff would need any discovery
in order to respond to Defendants’ motion for summary judgment.
ECF No. 16.
The Court also denied Plaintiff’s motion for
appointment of counsel without prejudice.
Defendants deposed Plaintiff on May 18, 2016, see ECF
No. 18, and subsequently filed a motion for summary judgment on
July 11, 2016, ECF No. 17.
The Court held a status conference
on August 1, 2016, during which the Court reviewed with
Plaintiff the materials Defendants produced and found that
Defendants had given Plaintiff sufficient discovery.
The Court ordered Plaintiff to respond to any motion
for summary judgment by August 31, 2016.
noted that if Plaintiff did not file a response, the Court would
proceed to consider Defendants’ motion for summary judgment on
the basis of Defendants’ submission alone.
As of today, Plaintiff has not filed a response to
Defendants’ motion for summary judgment.
The Court is now ready
to rule on the motion.
III. LEGAL STANDARD
Summary judgment is awarded under Federal Rule of
Civil Procedure 56 when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
Fed. R. Civ. P. 56(a); Liberty Mut. Ins. Co. v.
Sweeney, 689 F.3d 288, 292 (3d Cir. 2012).
“A motion for
summary judgment will not be defeated by ‘the mere existence’ of
some disputed facts, but will be denied when there is a genuine
issue of material fact.”
Am. Eagle Outfitters v. Lyle & Scott
Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
A fact is
“material” if proof of its existence or non-existence might
affect the outcome of the litigation, and a dispute is “genuine”
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
In undertaking this analysis, the Court views all
facts in the light most favorable to the non-moving party.
“After making all reasonable inferences in the nonmoving party’s
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.”
Pignataro v. Port
Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party, who
must “set forth specific facts showing there is a genuine issue
Anderson, 477 U.S. at 250.
A document filed pro se is to be “liberally construed”
and “a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
addition, when considering a motion in a pro se plaintiff’s
proceedings, a court must “apply the applicable law,
irrespective of whether a pro se litigant has mentioned it by
Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48
(3d Cir. 1999).
However, on a motion for summary judgment, “a
pro se plaintiff is not relieved of his obligation under Rule 56
to point to competent evidence in the record that is capable of
refuting a defendant’s motion for summary judgment.”
Fed. Ins. Co., No. 05-2507, 2007 WL 1377645, *3 (E.D. Pa. May
10, 2007) (Robreno, J.).
“[M]erely because a non-moving party
is proceeding pro se does not relieve him of the obligation
under Rule 56(e) to produce evidence that raises a genuine issue
of material fact.”
Boykins v. Lucent Techs., Inc., 78 F. Supp.
2d 402, 408 (E.D. Pa. 2000) (Robreno, J.).
Defendants argue that Plaintiff’s Eighth Amendment
claim fails as a matter of law because (1) there is no evidence
in the record establishing that Plaintiff was at substantial
risk of bodily injury or that Defendants were deliberately
indifferent to that risk, as required for Plaintiff to prevail
on his Eighth Amendment claim; and (2) Defendants are entitled
to qualified immunity.
See Defs.’ Mem. Law Supp. Mot. Summ. J.,
ECF No. 17 [hereinafter Defs.’ Mem.].
For the reasons discussed below, the Court agrees that
Plaintiff has failed to establish that Defendants were aware of
a substantial risk of serious harm, and therefore Plaintiff
cannot establish that Defendants acted with deliberate
As a result, the Court will not reach Defendants’
argument that they are entitled to qualified immunity.
“The Eighth Amendment’s prohibition against cruel and
unusual punishment . . . has been interpreted to impose a duty
upon prison officials to take reasonable measures ‘to protect
prisoners from violence at the hands of other prisoners.’”
Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting
Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)).
“It is not,
however, every injury suffered by one prisoner at the hands of
another that translates into constitutional liability for prison
officials responsible for the victim’s safety.”
U.S. at 834.
A prisoner seeking to establish a “failure to
protect” claim against a prison official must demonstrate that
(1) the prisoner was “incarcerated under conditions posing a
substantial risk of serious harm,” and (2) the prison official
acted with “‘deliberate indifference’ to inmate health or
Id. (quoting Wilson v. Seiter, 501 U.S. 294, 302-03
To survive summary judgment on an Eighth Amendment
claim, “a plaintiff is required to produce sufficient evidence
of (1) a substantial risk of serious harm; (2) the defendants’
deliberate indifference to that risk; and (3) causation.”
Hamilton, 117 F.3d at 746.
Here, Defendants argue that (1)
Plaintiff cannot prove deliberate indifference because there is
no evidence in the record establishing that Defendants were
aware of a substantial risk of serious bodily injury to
Plaintiff; and (2) Plaintiff cannot establish an affirmative
link between Defendants’ actions and Martin’s attack.
Defs.’ Mem. at 6-8.
As Defendants are correct that there is no
evidence in the record of deliberate indifference, the Court
need not reach Defendants’ argument that Plaintiff cannot
Deliberate indifference requires that “the official
must actually be aware of the existence of the excessive risk;
it is not sufficient that the official should have been aware.”
Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001).
However, a plaintiff may establish actual knowledge through
“inference from circumstantial evidence,” such as an inference
“that a prison official knew of a substantial risk from the very
fact that the risk was obvious.”
Farmer, 511 U.S. at 842.
example, actual knowledge exists where “a substantial risk of
inmate attacks was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past,” and where
“circumstances suggest that the defendant-official being sued
had been exposed to information concerning the risk and thus
‘must have known’ about it.”
Id. at 842-83 (internal quotation
“A pervasive risk of harm may not ordinarily be
shown by pointing to a single incident or isolated incidents,
but it may be established by much less than proof of a reign of
violence and terror.”
Riley v. Jeffes, 777 F.2d 143, 147 (3d
Cir. 1985) (quoting Shrader v. White, 761 F.2d 975, 978 (4th
While a plaintiff bringing a failure-to-protect claim
must show a substantial risk of serious harm, the plaintiff need
not show that prison officials have “advance notification of a
substantial risk of assault posed by a particular fellow
Farmer, 511 U.S. at 849 n.10 (emphasis added).
does a plaintiff need to establish that prison officials were
aware of a risk to the plaintiff, in particular.
Capitol, 256 F.3d at 131 (“[A] plaintiff could make out a
deliberate indifference case by showing that prison officials
simply were aware of a general risk to inmates in the
Prison officials may escape liability for deliberate
indifference claims by showing “that they did not know of the
underlying facts indicating a sufficiently substantial danger
and that they were therefore unaware of a danger, or that they
knew the underlying facts but believed (albeit unsoundly) that
the risk to which the facts gave rise was insubstantial or
Farmer, 511 U.S. at 844.
Even where prison
officials knew of a substantial risk of harm, they “may be found
free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.”
Here, Plaintiff has not provided any evidence of prior
assaults at the Facility.
Instead, Plaintiff testified that
Defendants were aware of the risk of assault because (1) Martin
had a motivation to attack Plaintiff because Martin believed
Plaintiff had provided information leading to Martin’s
conviction, see Mertz Dep. at 33:2-6; and (2) prison officials
found homemade knives in Martin’s cell, see id. at 36:3-25.
However, neither of these assertions are supported by the
First, Plaintiff has not provided any evidence that
Defendants were aware of any animus Martin had towards Plaintiff
at the time of the assault.
During a previous stay at the
Facility, Plaintiff signed a form stating that he did not want
to be housed with Martin.
However, prior to the assault,
Plaintiff requested to move out of his protective custody,
administrative segregation, and signed another form specifically
stating that he agreed to be housed with Martin.3
See Mertz Dep.
at 34:18-22, 35:13-23; see also Defs.’ Mot. Ex. F, ECF No. 17.
At his deposition, Plaintiff testified that he and Martin had
lived together in the past and did not have a history of
See Mertz Dep. at 19:13-25, 20:1-16.
There is simply
no evidence in the record suggesting that Defendants were aware
of any risk that Martin would assault Plaintiff.
Plaintiff claims that he would not have signed the
form if he had known that Martin had a history of making
homemade knives. See Mertz Dep. at 35:22-25, 36:1-17. However,
the relevant inquiry is whether Defendants were aware of any
risk of harm to Plaintiff. Plaintiff’s signed statement to
prison officials that he agreed to be housed with Martin
indicated that he did not have any reason to believe Martin
would attack him. Even if prison officials knew that Martin had
access to weapons – which is not supported by the record in this
case, as discussed below – that would not itself indicate that
Martin was a threat to Plaintiff, in particular.
Second, Plaintiff’s assertions that Martin had a
history of violence and was previously found possessing weapons
are directly contradicted by evidence Defendants submitted in
support of their motion for summary judgment.
submitted internal prison reports showing that Martin’s first
recorded incident of possession of a weapon was on December 14,
2015, almost a month after the incident at issue.
Mot. Exs. G, H, ECF No. 17.
Prison officials’ later discovery
of weapons in Martin’s possession does not establish that
Defendants knew of the risk of an attack prior to the attack
itself, as required to establish deliberate indifference for
purposes of a failure-to-protect claim.
See Beers-Capitol, 256
F.3d at 137 (“[A] successful deliberate indifference claim
requires showing that the defendant knew of the risk to the
plaintiff before the plaintiff’s injury occurred.” (emphasis
Further, even if Martin had been found with weapons
prior to the incident, that would not be sufficient, on its own,
to establish a substantial risk of injury to Plaintiff.
Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (holding that
the plaintiff’s allegations of the “speculative risk” that “an
inmate with a history of violence might attack another inmate
for an unknown reason” were insufficient to state a failure-toprotect claim).
As Plaintiff himself agreed to be housed with Martin,
there is no evidence in the record from which Defendants could
have inferred that Plaintiff was at risk of harm from Martin.
Nor has Plaintiff provided any evidence contradicting the
documents Defendants submitted regarding Martin’s disciplinary
Although Plaintiff is proceeding pro se, that does not
eliminate his obligation to comply with Rule 56.
78 F. Supp. 2d at 408.
As the non-moving party, Plaintiff “must
point to some evidence in the record that creates a genuine
issue of material fact.”
Berckeley Inv. Grp., Ltd. v. Colkitt,
455 F.3d 195, 201 (3d Cir. 2006).
He cannot avoid summary
judgment with speculation, see Ridgewood Bd. of Educ. v. N.E. ex
rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999), and he “cannot rest
solely on assertions made in the pleadings, legal memoranda, or
oral argument,” Berckeley Inv. Grp., 455 F.2d at 201.
Here, Plaintiff has provided no evidence that
Defendants were aware of, let alone deliberately indifferent to,
a substantial risk of serious harm to him.
indifference is an essential element of Plaintiff’s Eighth
Amendment claim, Defendants have met their burden to show that
there is no genuine dispute as to any material fact and that
they are entitled to judgment as a matter of law.
For the reasons stated above, the Court will grant
Defendants’ motion for summary judgment.
An appropriate order follows.
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