Ball v. Struthers et al
Filing
111
MEMORANDUM OPINION - re 87 MOTION for Summary Judgment filed by C.O. Struthers, Trudy Temple, Lt. Sweally, Sgt. Johnson, Lt. Hummel, Lt. Moser, C.O. Bowers, Sgt. Kennedy -....the defendants' motion for summary judgment is GRANTED, this case is DISMISSED and the clerk is directed to CLOSE this file. (Please see original order for further details).Signed by Magistrate Judge Martin C. Carlson on 07/19/12. (pjr)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN BALL,
Plaintiff,
v.
C.O. STRUTHERS, et al.,
Defendants.
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Civil No. 1:11-CV-1265
(Magistrate Judge Carlson)
MEMORANDUM OPINION
I.
Statement of Facts and of the Case
A.
Dawn Marie Ball’s Litigation History
In many ways, Dawn Ball’s current circumstances inspire continuing sorrow
and concern. Dawn Ball is an inmate housed in the Restricted Housing Unit at the
State Correctional Institution (SCI) Muncy, who by her own account suffers from a
cascading array of severe mental illnesses, and who has candidly acknowledged that
she is profoundly disturbed. Ball v. Beard, No. 1:09-CV-845 (Doc. 42, pp.6-7.)
Furthermore, Ball is also an inmate who has reported to the court that she engages in
multiple episodes of destructive, self-defeating and senseless behavior.
Much of this institutional misconduct is marked by disturbing, excretory
behavior. Indeed, a constant refrain throughout many of Ball’s lawsuits is her
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fascination with her own bodily wastes. For example, recurring themes in Ball’s
lawsuits include Ball’s penchant for smearing feces on herself, her clothes, her
property, and her cell, as well as her destruction of her own clothing, and her use of
her clothing to plug her toilet and flood her cell with water and human waste. Ball
is also, by her own admission, an inmate with a propensity for sudden, explosive
rages, as illustrated by the civil complaint which she has filed Ball v. Barr, No.1:11CV-2240 (M.D.Pa.). In this complaint, Ball describes an episode in which a
discussion regarding the aesthetic qualities of a piece of cornbread escalated in a
matter of moments into a profanity-laced wrestling match over a food tray.
Ball is a prodigious federal court litigant, bringing numerous lawsuits based
upon her perception of the events that take place around her in prison. Indeed, at
present Ball currently has more than 25 lawsuits pending before this court.1 Ball is
See, e.g., Ball v. SCI Muncy, No.1:08-CV-700 (M.D.Pa.); Ball v. SCIMuncy, No. 1:08-CV-701 (M.D.Pa.); Ball v. Hill, No.1:09-CV-773 (M.D.Pa.);
Ball v. Beard, No. 1:09-CV-845 (M.D.Pa.); Ball v. Lamas, No. 1:09-CV-846,
(M.D. Pa.); Ball v. Oden , No 1:09-CV-847 (M.D.Pa.); Ball v. Bower, No. 1:10CV-2561 (M.D.Pa.); Ball v. Sisley, No. 1:11-CV-877 (M.D.Pa.); Ball v. Struther,
No. 1:11-CV-1265 (M.D.Pa.); Ball v. Hummel, No. 1:11-CV-1422 (M.D.Pa.); Ball
v. Beckley, No. 1:11-CV-1829 (M.D.Pa.); Ball v. Sipe, No. 1:11-CV-1830
(M.D.Pa.); Ball v. Craver, No. 1:11-CV-1831 (M.D.Pa.); Ball v. Powley, No. 1:11CV-1832 (M..D.Pa.); Ball v. Cooper, No. 1:11-CV-1833 (M.D.Pa.); Ball v.
Famiglio, No. 1:11-CV-1834 (M.D.Pa.); Ball v. Eckroth, No. 1:11-CV-2238
(M.D.Pa.); Ball v. Campbell, No. 1:11-CV-2239 (M.D.Pa.); Ball v Barr, No. 1:11CV-2240 (M.D.Pa.); Ball v Giroux, No. 1:12-CV-10 (M.D.Pa.); Ball v Giroux,
No. 1:12-CV-11 (M.D.Pa.); Ball v Curham, No. 1:12-CV-12 (M.D.Pa.); Ball v.
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also a prodigiously unsuccessful litigant, who has had at least three prior lawsuits
dismissed either as frivolous or on the grounds that the lawsuit failed to state a claim
upon which relief could be granted.
The history of repeated, frivolous and meritless litigation in federal court by
this plaintiff began in March of 2008, when Ball filed a complaint in the case of Ball
v. SCI Muncy, No. 1:08-CV-391 (M.D. Pa.). On December 10, 2008, the district
court dismissed this civil action, citing Ball’s failure to exhaust her administrative
remedies, and stating that Ball:
does not dispute that she failed to exhaust her administrative remedies
with regard to the issues raised in the complaint. Plaintiff’s failure to
oppose the remaining Defendants’ motion, which also seeks dismissal
for failure to exhaust administrative remedies, renders the motion
unopposed. See L.R. 7.6. It is clear that Plaintiff’s claims are not
properly before this Court and must be dismissed.
(Doc. 36, p.5.)
While, fairly construed, the district court’s dismissal decision rested on exhaustion
grounds, and did not entail an analysis of the merits of Ball’s claims, the dismissal
Giroux, No. 1:12-CV-812 (M.D.Pa.); Ball v. Giroux, No. 1:12-CV-813 (M.D.Pa.);
Ball v. Hummel, No. 1:12-CV-814 (M.D.Pa.); Ball v. D’Addio, No. 1:12-CV-815
(M.D.Pa.) .
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order itself went on to state that any appeal of this dismissal would be “deemed
frivolous and not in good faith.” Ball v. SCI Muncy/, No. 1:08-CV-391 (M.D. Pa.)
(Doc. 36, p.6.)
Nonetheless, Ball appealed this ruling. (Doc. 37.) On July 22, 2010, the
United States Court of Appeals for the Third Circuit affirmed the dismissal of this
action, noting that:
The District Court granted the Defendants’ motions to dismiss, pursuant
to Federal Rule of Civil Procedure 12(b)(6), on the grounds of failure to
exhaust administrative remedies. We agree with the District Court’s
decision and accordingly affirm the dismissal of Ball’s claims.
Ball v. SCI Muncy, No. 1:08-CV-391 (M.D. Pa.)(Doc. 44, p. 2-3.). Thus, the court
of appeals’ ruling, like the district court’s decision, was expressly based upon Ball’s
failure to exhaust her administrative remedies.
On May 5, 2009, Ball filed a second civil action in the case of Ball v. Hartman,
No. 1:09-CV-844 (M.D. Pa.). This action was also dismissed by the district court,
which on this occasion considered the merits of Ball’s claims and explicitly
concluded that Ball had failed to state a claim upon which relief could be granted.
Ball v. Hartman, No. 1:09-CV-844 (M.D. Pa.) (Docs 32, 33, and 36.). Therefore, this
second dismissal involved a merits analysis of Ball’s claims, and a determination that
Ball’s complaint “fail[ed] to state a claim upon which relief may be granted.” 28
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U.S.C. § 1915(g). Ball appealed this dismissal order, Ball v. Hartman, No. 1:09-CV844 (M.D. Pa.) (Doc 34.), but her appeal of this case was summarily denied by the
court of appeals, Ball v. Hartman, No. 1:09-CV-844 (M.D. Pa.) (Docs 48.), and, on
October29, 2010, this case was closed by the appellate court with the issuance of its
mandate dismissing this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).2 Ball v.
Hartman, No. 1:09-CV-844 (M.D. Pa.) (Doc. 48.).
Ball then filed yet another lawsuit in the case of Ball v. Butts, No. 1:11-CV1068, (M.D.Pa.) on June 3, 2011. Ball v. Butts, No. 1:11-CV-1068 (M.D.Pa.)(Doc.
1.) On June 15, 2011, upon a screening review of this complaint, the district court
dismissed this action for failure to state a claim upon which relief could be granted.
Ball v. Butts, No. 1:11-CV-1068 (M.D.Pa.)(Doc. 8.). Ball appealed this dismissal.
Ball v. Butts, No. 1:11-CV-1068 (M.D.Pa.)(Doc. 10.). On September 21, 2011, the
court of appeals entered an opinion and order dismissing Ball’s appeal as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). That appellate court opinion and order spoke
28 U.S.C. § 1915(e)(2)(B)(i) provides that: “Notwithstanding any filing fee,
or any portion thereof, that may have been paid, the court shall dismiss the case at
any time if the court determines that . . . the action or appeal, . . . is frivolous or
malicious.” Thus the appellate court’s October 29, 2010, ruling was tantamount to
a declaration that this action was also frivolous.
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unambiguously regarding the frivolous nature of this particular lawsuit filed by Ball,
stating in clear and precise terms that:
Because we too have granted Ball leave to proceed IFP, we must screen
this appeal to determine whether it is frivolous. See 28 U.S.C. §
1915(e)(2)(B)(I). An appeal is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
This appeal lacks any such basis. As the District Court adequately
explained, immunity extends even to judicial acts that are “done
maliciously,” and Ball has alleged nothing suggesting that Judge Butts
acted in the “clear absence of all jurisdiction.” Gallas v. Supreme Court
of Pa., 211 F.3d 760, 769 (3d Cir.2000) (citation and internal quotation
marks omitted). To the extent that Ball's request for injunctive relief
might not have been subject to dismissal under § 1915(e)(2)(B)(iii), it
was subject to dismissal under § 1915(e)(2)(B)(ii) because such relief is
not available against “a judicial officer for an act ... taken in such
officer's judicial capacity” under these circumstances. 42 U.S.C. § 1983.
Finally, we are satisfied that any amendment of Ball's complaint would
be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d
Cir.2002). Thus, we will dismiss this appeal.
Ball v. Butts, No. 11-2862, 2011 WL 4375782, 1 (3d Cir. Sept 21, 2011).
In addition to these dismissals, Ball currently has at least ten other cases3
pending before this court where there have been reports and recommendations issued,
or adopted, calling for dismissal of claims.
Ball v. Beard, No. 1:09-CV-845 (M.D.Pa.); Ball v. Lamas, No. 1:09-CV846, (M.D. Pa.); Ball v. Sisley, No. 1:11-CV-877 (M.D.Pa.); Ball v. Campbell, No.
1:11-CV-2239 (M.D.Pa.); Ball v Barr, No. 1:11-CV-2240 (M.D.Pa.); Ball v
Giroux, No. 1:12-CV-10 (M.D.Pa.); Ball v Giroux, No. 1:12-CV-11 (M.D.Pa.);
Ball v. Giroux, No. 1:12-CV-812 (M.D.Pa.); Ball v. Giroux, No. 1:12-CV-813
(M.D.Pa.); Ball v. D’Addio, No. 1:12-CV-815 (M.D.Pa.).
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B.
Ball’s Current Lawsuit
1.
Factual Background
It is against the backdrop of this history of unsuccessful, unexhausted and
meritless filings that Ball instituted the current lawsuit. Ball’s present lawsuit relates
to the conditions of her confinement at SCI-Muncy during a one week period in June
and July of 2011. (Doc. 1.) According to Ball’s complaint, on four days–June 26,
2011 through June 29, 2011–she did not receive personal hygiene supplies. Ball also
asserts that she did not receive breakfast on one occasion, on June 28, 2011, and was
denied lunch on another date, June 29, 2011. (Id.) Furthermore, Ball alleges that
medical staff were deliberately indifferent to her needs on June 29, 2011, when she
experienced a single incident in which she vomited what she thought was blood. (Id.)
Like all inmates, Ball has a legal obligation to exhaust available administrative
remedies before proceeding to federal court. In this case, Ball alleged in her
complaint that she had not exhausted her administrative grievances because she had
been placed on grievance restrictions at the time of these events. (Id.)
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With respect to these allegations, the undisputed facts can be simply stated:4
A.
Exhaustion of Grievances
The plaintiff, Dawn Ball is an inmate currently serving a sentence for forgery.
(Doc. 89, ¶1.) With respect to the matters set forth in this lawsuit, Ball has filed no
administrative grievances regarding any of the allegations in her complaint. (Id., ¶2.)
Ball was, however, fully familiar with Department of Corrections grievance
procedures in July 2011, which required inmates to grieve dispute with prison
officials, having filed numerous grievances in the past.
Specifically, pursuant to 37 Pa. C.S. § 93.9, the Department of Corrections
maintains a grievance system, which is conducted in accordance with Administrative
Directive DC-ADM 804, entitled “Inmate Grievance System.” DC-ADM 804
establishes procedures for review of inmate grievances and consists of a three-step
process. See Booth v. Churner, 206 F.3d 289, 293, n. 2 (3d Cir. 2000). This threestep process requires an inmate to file an initial grievance (Step One), an appeal to the
The defendants moved for summary judgment in this case in April of 2012
and submitted a thoroughly documented statement of material facts in support of
this motion. (Docs. 87-90.) Despite receiving an extension of time in which to
respond to this motion, (Doc. 98.), Ball has not responded to the motion, or its
factual recital, and the time for responding to this motion has now lapsed.
Accordingly, pursuant to Local Rule 56.1 we will deem those factual statements
which are supported by the evidentiary record and are undisputed by Ball to be
undisputed for purposes of determining this motion.
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Superintendent (Step Two), and a final appeal (Step Three) to the Secretary’s Office
of Inmate Grievances and Appeals (“SOIGA”). To file an initial grievance, an inmate
must submit to the Facility Grievance Coordinator a completed grievance form. Id.
The inmate must specifically state any claims he or she wishes to make concerning
violations of Department directives, regulations, court orders, or other law and state
the relief sought. The grievance must be submitted within fifteen working days after
the event in question. If the grievance is denied, the inmate may appeal within ten
days to the Facility Manager. If the inmate is dissatisfied with the decision of the
Facility Manager, she may then appeal to SOIGA within fifteen days of the Facility
Manager’s decision.
These prison rules also recognize that inmates may, on occasion, abuse this
process, and provide a mechanism for curtailing frivolous grievance filings by
prisoners. Specifically, pursuant to DC-ADM-804 Section 1, C, an inmate who files
five or more frivolous grievances may be placed on grievance restriction for up to 90
days. (Doc. 89, ¶3.) In this case, on April 12, 2011, Ball was placed on a ninety day
grievance restriction for having filed six frivolous grievances between March 24,
2011, and April 11, 2011. (Id., ¶ 4.) Under the terms of this restriction, Ball was
limited to filing one grievance every fifteen working days. (Id., ¶5.) Ball’s grievance
restriction expired July 10, 2012. (Id., ¶6.) Because DC-ADM-804 provides inmates
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with fifteen working days to file a grievance, Ball had until July 18, 2011, (fifteen
working days from the June 26, 2011, which is the date of the first incident in the
complaint) to grieve the issues she complains about in the complaint. (Id., ¶ 7.)
Thus, Ball could have waited until her grievance restriction expired on July 10, 2011,
and still have timely grieved all of the matters she complained about in this lawsuit.
(Id., ¶ 8.)
In this case, Ball signed and dated her civil complaint on June 30, 2011, at a
time when she still had ample opportunity to secure a grievance form and timely
grieve the matters described in the complaint. (Id., ¶9.) Moreover, prison records
affirmatively reveal that Ball did lodge grievances during the time period embraced
by this lawsuit, contradicting her claim that she was unable to file grievances.
Specifically, on July 1, 2011, Ball signed an unrelated administrative grievance, a
grievance which was submitted by Ball the day after she signed her complaint in this
lawsuit. (Id., ¶10.) In fact, Ball admitted at her deposition that she had a grievance
form available to her on July 1, 2011. (Id., ¶11.)
B.
Conditions of Confinement
As to the conditions of Ball’s confinement over the four-day span that is the
subject of this lawsuit, the undisputed evidence further shows that, with respect to
Ball’s complaints concerning a lack of hygienic supplies, Ball had a towel, wash rag,
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running water and linens in her cell, and possessed all of the personal supplies she
required except soap, toothpaste, pads, and toilet paper. (Id., ¶12.) Ball further
acknowledged that she received all of the supplies that she requested within four
days, and that she had all of her personal hygiene supplies by June 30, 2011. (Id.,
¶13.)
Furthermore, regarding Ball’s complaints concerning her meal service,
although Ball alleged she was refused breakfast on June 28, 2011, she conceded she
had lunch and dinner that day. (Id., ¶14.) In addition, while Ball alleged that she was
refused lunch on June 29, 2011, she conceded she had breakfast and dinner that day.
(Id., ¶15.)
C.
Medical Treatment
Finally, as to Ball’s complaints regarding her medical care, Ball alleged that,
on June 29, 2011, after being denied a meal, she vomited blood. (Id., ¶16.). While
Ball claimed that she showed the blood to Nurse Eskew, who is not a defendant in
this lawsuit, Ball acknowledged that she never had any direct communication with
the medical staff member she has sued, Nurse Temple. (Id., ¶17.) Instead, Ball has
sued Nurse Temple because Ball believes that Temple was the head nurse who made
the decision not to treat her. (Id.)
At her deposition, Ball defined this incident in a very narrow and specific way,
testifying that this medical episode lasted a single day and that she stopped throwing
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up blood later on June 29, 2011, after she ate a meal. (Id., ¶19.) Nurse Eskew, the
only medical professional who had contact or communication with Ball on June 29,
2011, has also described a discrete, and minor, medical encounter, stating that on
June 29 Ball showed her a tissue paper with a scant amount of dried, pink coloring
on it. (Id., ¶ 20.) Although Ball claimed that the matter was blood, Eskew did not
perceive it to be blood, but instead thought it looking like markings from a pink
marker. (Id., ¶ 21.) Moreover, Ball did not appear to Eskew to be in any need of
immediate or urgent medical care. (Id.,22.) Nonetheless, Eskew relayed her
observations to the head nurse, Nurse Temple, and a decision was made that Ball did
not need any emergency medical care. Instead, it was the judgment of medical staff
that any medical issues Ball was experiencing could adequately be addressed by Ball
signing up for sick call. (Id., ¶ 23.) Nurse Eskew advised Ball that if she had a
similar problem, to let Eskew know immediately, and Ball never raised any further
concerns with the nurse. (Id., ¶ 24.)
The prison, however, followed up on these concerns. Ball’s medical records
reflect that on July 5, 2011, Ball was seen by a physician at sick call due to a
complaint about a cough. (Id., ¶ 26.) Ball also complained that day that she noticed
some blood in her phlegm. (Id., ¶27.) Ball was diagnosed with pharyngitis
(inflammation of the throat) and possible bronchitis. The physician ordered a chest
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x-ray and sputum collection. (Id., ¶28.) The medical records reflect that Ball was
then seen by a physician for the same complaint on July 7, 2011. At that time, there
was no blood noted in her sputum. (Id., ¶29.) A sputum sample was collected from
Ball on July 11, 2011 and sent for testing. The lab results showed moderate growth
of a bacterium called Entrobacter Aerogenes. (Id., ¶30.) Ball’s x-ray was taken on
July 8, 2011. The radiologist’s report indicates that the x-ray results were normal.
(Id., ¶31.) Finally, the records reveal that Ball was prescribed antibiotics on July 26,
2011, and that Ball voiced show no further complaints regarding blood in sputum.
(Id., ¶¶32-33.)
2.
Procedural History
On the basis of these uncontested facts, the defendants moved for summary
judgment in their favor on April 16, 2012. (Doc. 87.) We initially directed Ball to
respond to this motion by May 9, 2012, (Doc. 92.), but when Ball sought an extension
of time in which to respond, (Doc. 96.), we extended Ball’s respond deadline to June
18, 2012, some two months after the filing of this summary judgment motion. (Doc.
98.)
Ball has not complied with this motion response deadline. Instead, on May 15,
2012, Ball sought to stay all of her multi-faceted federal court litigation, in an
apparent effort to delay or avoid rulings in these cases on many ripe defense motions.
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(Doc. 99.) On May 15, 2012, we denied this request made by Ball, noting that there
was something profoundly inconsistent in these pleadings, since Ball’s motions began
with factual averments which detailed a series of allegedly improper actions by prison
officials, allegations which if true required immediate attention by the courts. (Doc.
100.) Yet, while Ball recited facts which cried out for action by the courts, she
sought relief which would not be in her interests, or in the interests of justice: a
complete cessation of this litigation. (Id.) Because we believed that we owed it to
Ball, and to all of the many defendants she has sued, to promptly address the merits
of her claims, on May 15, 2012 we denied Ball’s first motions to generally stay all of
Ball’s litigation to some future date of her choosing. Instead, we instructed Ball in
clear and precise terms as follows:
In the meanwhile Ball is directed to continue to comply with the filing
deadlines previously set by this court and IT IS ORDERED that any
future requests for continuance or stay must be made individually by
Ball in each of her cases along with factual averments specific to each
particular case explaining why a stay or continuance is necessary.
(Id.)
Presented with this clear instruction from the court, Ball then chose to ignore
this guidance and filed another global stay request in all of her cases. (Doc. 105.)
Indeed, in this second stay motion Ball endeavored not only to ignore the court’s
prior order, but to try to ignore the court altogether by instructing the clerk’s office
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to present these latest stay motions to another judge. (Id.) Furthermore, Ball’s
motion sought more than a stay of future litigation, she also demanded that all orders
in all of her cases entered since April 2012, be “revoked.” (Id.) We denied this
second stay motion as well, (Doc. 107), and Ball allowed her filing response deadline
on the instant summary judgment motion to lapse. Thus, the motion is now ripe for
resolution. For the reasons set forth below, we recommend that the defendant’s
summary judgment motion be granted.
II.
Discussion
A.
Rule 56–The Legal Standard.
The defendants have moved for judgment pursuant to Rule 56(a) of the Federal
Rules of Civil Procedure, which provides that “[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.” Fed. R. Civ. P. 56(c).
Through summary adjudication a court is empowered to dispose of those claims that
do not present a “genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and
for which a trial would be “an empty and unnecessary formality.” Univac Dental Co.
v. Dentsply Int’l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa.
Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law
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will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if
there is a sufficient evidentiary basis that would allow a reasonable fact finder to
return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes
shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown
that there is an absence of evidence to support the nonmoving party’s claims, “the
non-moving party must rebut the motion with facts in the record and cannot rest
solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party “fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden at trial,” summary judgment
is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if
the non-moving party provides merely colorable, conclusory, or speculative evidence.
Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence
supporting the nonmoving party and more than some metaphysical doubt as to the
material facts. Id. at 252; see also, Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 586 (1986). In making this determination, the court must “consider all
evidence in the light most favorable to the party opposing the motion.” A.W. v.
Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing
to disputed material issues of fact must show by competent evidence that such factual
disputes exist. Moreover, a party who seeks to resist a summary judgment motion by
citing to disputed material issues of fact must show by competent evidence that such
factual disputes exist. Further, “only evidence which is admissible at trial may be
considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc.
v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). This rule applies with
particular force to parties who attempt to rely upon hearsay statements to establish
material issues of fact which would preclude summary judgment. With respect to
such claims, it is well-settled that: “In this circuit, hearsay statements can be
considered on a motion for summary judgment [only] if they are capable of admission
at trial.” Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220, 223,
n.2 (3d Cir. 2000), citing Stelwagon Mfg. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267,
1275, n.17 (3d Cir. 1995). In this regard it has been aptly observed that:
It is clear that when considering a motion for summary judgement, a
court may only consider evidence which is admissible at trial, and that
a party can not rely on hearsay evidence when opposing a motion for
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summary judgment. See Buttice v. G.D. Searle & Co., 938 F.Supp. 561
(E.D.Mo.1996). Additionally, a party must respond to a hearsay
objection by demonstrating that the material would be admissible at trial
under an exception to hearsay rule, or that the material is not hearsay.
See Burgess v. Allstate Ins. Co., 334 F.Supp.2d 1351 (N.D.Ga.2003).
The mere possibility that a hearsay statement will be admissible at trial,
does not permit its consideration at the summary judgment stage. Henry
v. Colonial Baking Co. of Dothan, 952 F.Supp. 744 (M.D.Ala.1996).
Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582,* 9 (W.D.Pa.
Aug. 26, 2005). Thus, a party may not rely upon inadmissible hearsay assertions to
avoid summary judgment. Therefore, where a party simply presents inadmissible
hearsay declarations in an attempt to establish a disputed material issue of fact, courts
have typically rebuffed these efforts and held instead that summary judgment is
appropriate. See, e.g., Synthes v. Globus Medical, Inc., No. 04-1235, 2007 WL
2043184 (E.D.Pa. July 12, 2007); Bouriez v. Carnegie Mellon Univ., No. 02-2104,
2005 WL 2106582,* 9 (W.D.Pa. Aug. 26, 2005); Carpet Group Int’l v. Oriental Rug
Importers Assoc., Inc., 256 F.Supp.2d 249 (D.N.J. 2003).
Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely
by . . . denying averments . . . without producing any supporting evidence of the
denials.” Thimons v. PNC Bank, NA, 254 F. App’x 896, 899 (3d Cir. 2007)(citation
omitted). Thus, “[w]hen a motion for summary judgment is made and supported . .
., an adverse party may not rest upon mere allegations or denial.” Fireman’s Ins. Co.
Of Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982), see Sunshine Books,
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Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982).” [A] mere denial is
insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the
veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411
F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion
cannot expect to rely merely upon bare assertions, conclusory allegations or
suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v.
Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, a party who seeks to resist a summary judgment motion must also
comply with Local Rule 56.1, which specifically directs a party opposing a motion
for summary judgment to submit a “statement of the material facts, responding to the
numbered paragraphs set forth in the statement required [to be filed by the movant],
as to which it is contended that there exists a genuine issue to be tried”; if the
nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be
served by the moving party will be deemed to be admitted.” L.R. 56.1. Under the
Local Rules, the failure to follow these instructions and appropriately challenge the
material facts tendered by the defendant means that those facts must be deemed,
since:
A failure to file a counter-statement equates to an admission of all the
facts set forth in the movant’s statement. This Local Rule serves several
purposes. First, it is designed to aid the Court in its determination of
whether any genuine issue of material fact is in dispute. Second, it
19
affixes the burden imposed by Federal Rule of Civil Procedure 56(e), as
recognized in Celotex Corp. v. Catrett, on the nonmoving party ‘to go
beyond the pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designated specific
facts showing that there is a genuine issue for trial.’ 477 U.S. 317, 324
(1986) (internal quotations omitted) (emphasis added).
Doe v. Winter, No. 04-CV-2170, 2007 U.S. Dist. LEXIS 25517, *2 n.2 (M.D. Pa.
Apr. 5, 2007) (parallel citations omitted; court’s emphasis).
A party cannot evade these litigation responsibilities in this regard simply by
citing the fact that she is a pro se litigant. These rules apply with equal force to all
parties. See Sanders v. Beard, No. 09-CV-1384, 2010 U.S. Dist. LEXIS, *15 (M.D.
Pa. July 20, 2010) (pro se parties “are not excused from complying with court orders
and the local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 U.S. Dist.
LEXIS 64347, *11 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal
Rules of Civil Procedure). Therefore, Ball’s failure to comply with Local Rule 56.1
compels us to treat the failure to file a counter-statement as an admission of all the
facts set forth in the movant’s statement.
B.
The Prison Litigation Reform Act’s Exhaustion
Requirement
The defendants first urge the court to grant summary judgment on the
plaintiff’s claims because Ball failed to fully exhaust the administrative remedies
available to her under Department of Corrections procedures. In this case Ball’s
20
alleged failure to timely pursue these administrative remedies may have substantive
significance for the plaintiff since the Prison Litigation Reform Act provides that
“[n]o action shall be brought with respect to prison conditions under . . . [42 U.S.C.
§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Section 1997e’s exhaustion requirement applies
to a wide-range of inmate complaints, including damages complaints like those made
by Ball grounded in alleged violations of the Eighth Amendment. See Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000).
While this exhaustion requirement is not a jurisdictional bar to litigation, this
requirement is strictly enforced by the courts. This rigorous enforcement is mandated
by a fundamental recognition that § 1997e’s exhaustion requirement promotes
important public policies. As the United States Court of Appeals for the Third Circuit
has noted:
Courts have recognized myriad policy considerations in favor of
exhaustion requirements. They include (1) avoiding premature
interruption of the administrative process and giving the agency a
chance to discover and correct its own errors; (2) conserving scarce
judicial resources, since the complaining party may be successful in
vindicating his rights in the administrative process and the courts may
never have to intervene; and (3) improving the efficacy of the
administrative process. Each of these policies, which Congress seems
to have had in mind in enacting the PLRA, is advanced by the acrossthe-board, mandatory exhaustion requirement in § 1997e(a). ... [A] a
21
comprehensive exhaustion requirement better serves the policy of
granting an agency the “opportunity to correct its own mistakes with
respect to the programs it administers before it is haled into federal
court.” Moreover, “even if the complaining prisoner seeks only money
damages, the prisoner may be successful in having the [prison] halt the
infringing practice” or fashion some other remedy, such as returning
personal property, reforming personal property policies, firing an
abusive prison guard, or creating a better screening process for hiring
such guards. And when a prisoner obtains some measure of affirmative
relief, he may elect not to pursue his claim for damages. In either case,
local actors are given the chance to address local problems, and at the
very least, the time frame for the prisoner's damages is frozen or the
isolated acts of abuse are prevented from recurring. An across-the-board
exhaustion requirement also promotes judicial efficiency. . . . Moreover,
even if only a small percentage of cases settle, the federal courts are
saved the time normally spent hearing such actions and multiple appeals
thereto. . . . In cases in which inmate-plaintiffs exhaust their remedies
in the administrative process and continue to pursue their claims in
federal court, there is still much to be gained. The administrative
process can serve to create a record for subsequent proceedings, it can
be used to help focus and clarify poorly pled or confusing claims, and
it forces the prison to justify or explain its internal procedures. All of
these functions help courts navigate the sea of prisoner litigation in a
manner that affords a fair hearing to all claims.
Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000)(citations omitted).
Because of the important policies fostered by this exhaustion requirement, it has been
held that there is no futility exception to § 1997e’s exhaustion requirement. Id.
Instead, courts have typically required across-the-board administrative exhaustion by
inmate plaintiffs who seek to pursue claims in federal court.
22
Moreover, courts have also imposed a procedural default component on this
exhaustion requirement, holding that inmates must fully satisfy the administrative
requirements of the inmate grievance process before proceeding into federal court.
Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Applying this procedural default
standard to § 1997e’s exhaustion requirement, courts have concluded that inmates
who fail to fully, or timely, complete the prison grievance process are barred from
subsequently litigating claims in federal court. See, e.g., Booth v. Churner, 206 F.3d
289 (3d Cir. 2000); Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008); Jetter v.
Beard, 183 F. App’x 178 (3d Cir. 2006).
Furthermore, applying this procedural default component to the exhaustion
requirement, Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), it has been held that:
As for the failure to the identify named defendants on the grievance
form, . . . to the extent the identity of a defendant was “a fact relevant to
the claim,” Pennsylvania's prison grievance policy mandated that the
identification be included in the inmate's statement of facts on the
grievance form. And, . . . in the absence of any justifiable excuse, a
Pennsylvania inmate's failure to properly identify a defendant
constituted a failure to properly exhaust his administrative remedies
under the PLRA.
Williams v. Pennsylvania Dep’t. of Corrections, 146 F. App’x 554, 557(3d Cir.
2005).5 Thus, “it is clear, regardless of the purpose of the requirement, that Spruill
While the Williams decision is not precedential, it is highly persuasive as a
“paradigm of the legal analysis [this Court] should . . . follow.” Drinker v.
5
23
requires the prisoner-grievant-plaintiff to name in the grievance those he eventually
sues, upon pain of procedural default.” Hemingway v. Ellers, No. 07-1764, 2008
WL 3540526, *11 (M.D.Pa. Aug.12, 2008).
This broad rule favoring full exhaustion admits of one, narrowly defined
exception. If the actions of prison officials directly caused the inmate’s procedural
default on a grievance, the inmate will not be held to strict compliance with this
exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
However, case law recognizes a clear “reluctance to invoke equitable reasons to
excuse [an inmate’s] failure to exhaust as the statute requires.” Davis v. Warman, 49
F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will only be
excused “under certain limited circumstances”, Harris v. Armstrong, 149 F. App’x 58,
59 (3d Cir. 2005), and 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.” Davis v. Warman, supra, 49
F. App’x at 368. See also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002)
(assuming that prisoner with failure to protect claim is entitled to rely on instruction
by prison officials to wait for outcome of internal security investigation before filing
Colonial Sch. Dist., 78 F.3d 859, 864 n.12 (3d Cir. 1996). We find the reasoning
in Williams compelling, and recommend that this reasoning be extended to the
instant case.
24
grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (exhaustion
requirement met where Office of Professional Responsibility fully examined merits
of excessive force claim and uncontradicted correctional officers impeded filing of
grievance).
Furthermore, it is entirely clear that the fact that Ball was under a grievance
restriction pursuant to DC-ADM 804, does not, by itself, excuse her failure to grieve
this matter prior to filing suit in federal court, since those Corrections policies plainly
allow inmates to file a limited number of grievances. Indeed, the United States Court
of Appeals for the Third Circuit has rejected this precise argument in Cummings v.
Crumb, 347 F. App'x 725, 727 (3d Cir. 2009), stating in that case that:
[The inmate] also argued that he was denied the grievance process
because he was on grievance restriction. According to the Pennsylvania
Department of Corrections Grievance Policy DC-ADM 804 Part IV.L,
an inmate on grievance restriction is restricted to filing no more than one
grievance every 15 days. Thus, being on grievance restriction would
not have prevented [an inmate] from exhausting his remedies.
Cummings v. Crumb, 347 F. App'x 725, 727 (3d Cir. 2009)(emphasis added).
In the absence of competent proof that an inmate was misled by corrections
officials, or some other extraordinary circumstances, inmate requests to excuse a
failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot
excuse a failure to timely comply with these grievance procedures by simply claiming
that his efforts constituted “substantial compliance” with this statutory exhaustion
25
requirement. Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005). Nor can an
inmate avoid this exhaustion requirement by merely alleging that the Department of
Corrections policies were not clearly explained to him. Davis v. Warman, 49 F.
App’x 365, 368 (3d Cir. 2002). Furthermore, an inmate’s confusion regarding these
grievances procedures does not, standing alone, excuse a failure to exhaust. Casey
v. Smith, 71 F. App’x 916 (3d Cir. 2003). Moreover, an inmate cannot cite to alleged
staff impediments to grieving a matter as grounds for excusing a failure to exhaust,
if it also appears that the prisoner did not pursue a proper grievance once those
impediments were removed.
Oliver v. Moore, 145 F. App’x 731 (3d Cir.
2005)(failure to exhaust not excused if, after staff allegedly ceased efforts to impede
grievance, prisoner failed to follow through on grievance).
Thus, in this setting, the Prison Litigation Reform Act requires that an inmate
fully exhaust her administrative remedies before proceeding into federal court, an
administrative exhaustion requirement which entails full compliance with state
grievance procedures and timelines, as well as the basic requisite that the inmate
identify those against whom she has a grievance during the administrative process
before she may name these individuals as defendants in a federal lawsuit.
26
C.
Ball Has Failed to Properly Exhaust Her Administrative
Remedies
Judged against these guideposts, we find that the defendants are entitled to
summary judgment in their favor on the grounds that Ball has failed to satisfy the
PLRA’s administrative exhaustion requirement. In this case, with respect to the
matters set forth in her complaint, it is entirely undisputed that Ball has never
exhausted her administrative remedies. Ball cannot claim she was unaware of this
exhaustion requirement since it is clear that Ball was fully familiar with Department
of Corrections grievance procedures in July 2011, having filed numerous grievances
in the past, and Ball has previously had cases dismissed due to her failure to exhaust
her administrative remedies.
Furthermore, we find that Ball has failed to carry her burden of proving “that
there was some extraordinary reason [s]he was prevented from complying with the
statutory mandate.” Davis v. Warman, supra, 49 F. App’x at 368. Ball’s bald
assertion in her complaint that she was subject to a grievance restriction in June of
2011, standing alone, plainly does not carry this burden of proof since inmates on
grievance restrictions are still entitled to file one grievance every fifteen days.
Cummings v. Crumb, 347 F. App'x 725, 727 (3d Cir. 2009). In fact, Ball’s ability to
file such grievances is not simply a regulatory hypothetical; in this case Ball actually
filed a grievance on July 1, 2011, while under this grievance restriction, a fact which
27
demonstrates Ball’s actual subjective knowledge concerning her ability to pursue and
exhaust grievances at the time of the events set forth in this complaint.
Moreover, it is completely undisputed that Ball’s grievance restrictions had
been lifted by prison officials in sufficient time for her to fully grieve the matters set
forth in this complaint. Specifically, it appears that on April 12, 2011, Ball was
placed on a ninety-day grievance restriction for having filed six frivolous grievances
between March 24, 2011, and April 11, 2011. (Doc. 89, ¶ 4.) Under the terms of this
restriction, Ball was limited to filing one grievance every fifteen working days. (Id.,
¶5.) Ball’s grievance restriction expired July 10, 2012. (Id., ¶6.) Because DC-ADM804 provides inmates with fifteen working days to file a grievance, Ball had until July
18, 2011, fifteen working days from the June 26, 2011, which is the date of the first
incident in the complaint, to grieve the issues she raised in her complaint (Id., ¶ 7.)
Thus, Ball could have waited until her grievance restriction expired on July 10, 2011,
and still have timely grieved all of the matters she complained about in this lawsuit.
(Id., ¶ 8.) Yet, despite these tools and resources at her disposal, Ball elected not to
file the administrative grievances that are required by law.
On these facts, which are entirely undisputed, it is clear that Ball had ample
opportunity to comply with the requirements of the PLRA by fully grieving these
28
matters. Her failure to do so, therefore, is both unexcused, and inexcusable, and
compels dismissal of this case.
C.
Ball’s Conditions of Confinement Claims Fail
Ball has also advanced a series of claims that can best be characterized as
conditions of confinement claims, asserting that she did not receive two meals, and
further protesting a three-day delay in obtaining personal hygiene products. With
respect to these claims, the guiding legal standards are clearly defined:
The Eighth Amendment prohibits punishments inconsistent with
“evolving standards of decency that mark the progress of a maturing
society.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2
L.Ed.2d 630 (1958)). Conditions of prison confinement violate the
Eighth Amendment only if they “deprive inmates of the minimal
civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S.
337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).
Atkinson v. Taylor, 316 F.3d 257, 272 (3d Cir. 2003).
Applying this exacting standard which calls for the denial of the minimal civilized
measure of life's necessities in a prison setting in order to state a claim, courts
frequently rebuff inmate complaints like those made here relating to isolated instances
of momentary discomfort for inmates, the denial of an occasional meal, or brief
delays regarding provision of hygiene supplies, finding that those isolated claims do
not state an infraction of a constitutional dimension.
29
Thus, with respect to prison diet complaints “while prisoners are guaranteed
a nutritionally adequate diet under the Eighth Amendment, see Ramos v. Lamm, 639
F.2d 559, 571 (10th Cir.1980), there is no constitutional right to hot meals. See
Brown-El v. Delo, 969 F.2d 644, 648 (8th Cir.1992) (finding frivolous prisoner's
claim that his constitutional rights were violated when he was served cold food).”
Laufgas v. Speziale, 263 F. App’x. 192, 198 (3d Cir. 2008).
Nor does the
presentation of food in an unappetizing fashion, by itself, violate the Eighth
Amendment. Quite the contrary, with respect to this prison diets it is well-settled
that: “[U]nappetizing food served in prison is not constitutionally actionable.
Maldonado v. McFaden, No. 94–1477, 1994 U.S. Dist. LEXIS 16837, at *11 (E.D.Pa.
Nov. 23, 1994) (‘[T]he Eighth Amendment requires only that inmates be provided
food that is adequate to maintain health, and served in a sanitary manner.’).” Jones
v. Beard, No. 10-5544, 2011 WL 3611470, *8 (E.D.Pa. August 16, 2011). Similarly,
it is entirely clear that the conduct alleged here by Ball, the “purported deprivation
of a single meal is not of such magnitude as to rise to the level of a constitutional
violation. See Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (only a substantial
deprivation of food to a prisoner sets forth a viable Eighth Amendment claim).”
Lindsey v. O'Connor, 327 F. App’x. 319, 321 (3d Cir. 2009). Therefore, Ball’s
complaints regarding the presentation of her meals, and an alleged failure to provide
two meals, simply do not rise to the level of a constitutional infraction.
30
Furthermore, courts have repeatedly rejected inmate Eighth Amendment
claims, like those made here, which rest upon an isolated, and brief, alleged failure
to provide personal hygiene supplies to a prisoner. See e.g., Banks v. Mozingo, 423
F. App’x 123 (3d Cir. 2011)(denying inmate hygiene complaint as ironic where
inmate engaged in un-hygienic behavior, including smearing feces on cell); Adderly
v. Ferrier, 419 F. App’x 135 (3d Cir. 2011)(denying inmate claim involving 7-day
alleged denial of hygienic material); Fortune v. Hamberger, 379 F. App’x 116 (3d
Cir. 2010)( denying inmate claim involving 15 day alleged denial of hygienic
material); Benjamin v. Fraser, 161 F.Supp.2d 151, 177 (S.D.N.Y.2001) (two days
without feminine hygiene products and toilet paper did not establish a constitutional
violation); Stead v. Skinner, 10-4526, 2011 WL 3882809, *4 (N.D.Ill. Sept. 2, 2011).
As the court of appeals has observed, such claims cannot rest upon “a mere isolated
episode of inadvertence, but [instead require proof of] persistent conduct in the face
of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103,
109 (3d Cir. 1990).
In this case, given the uncontested facts, Ball’s complaints relating to these
specific conditions of her confinement do not amount to matters of constitutional
dimension. Instead, these complaints amount to a brief delay in receiving some
hygiene supplies, coupled with two instances in which Ball allegedly missed a meal.
As a matter of law, such assertions do not state an Eighth Amendment claim, see e.g.,
31
Banks v. Mozingo, 423 F. App’x 123 (3d Cir. 2011)(denying inmate hygiene
complaint as ironic where inmate engaged in un-hygienic behavior, including
smearing feces on cell); Adderly v. Ferrier, 419 F. App’x 135 (3d Cir. 2011)(denying
inmate claim involving 7 day alleged denial of hygienic material); Fortune v.
Hamberger, 379 F. App’x 116 (3d Cir. 2010)( denying inmate claim involving 15 day
alleged denial of hygienic material); Lindsey v. O'Connor, 327 F. App’x. 319, 321
(3d Cir. 2009) (“purported deprivation of a single meal is not of such magnitude as
to rise to the level of a constitutional violation.”), and these claims should also be
dismissed.
E.
Ball Has Failed To State an Eighth Amendment Deliberate
Indifference Claim
Finally, Ball has alleged that an individual prison care-giver, Nurse Temple,
displayed deliberate indifference to her medical needs in a fashion which constituted
cruel and unusual punishment in violation of the Eighth Amendment to the United
States Constitution.
Ball faces an exacting burden in advancing this Eighth
Amendment claim against prison medical staff in their individual capacities. To
sustain such a claim, Ball must:
[M]eet two requirements: (1) “the deprivation alleged must be,
objectively, sufficiently serious;” and (2) the “prison official must have
a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825,
834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and
citations omitted). In prison conditions cases, “that state of mind is one
of ‘deliberate indifference’ to inmate health or safety.” Id. “Deliberate
32
indifference” is a subjective standard under Farmer-the prison officialdefendant must actually have known or been aware of the excessive risk
to inmate safety.
Beers-Capitol v. Whetzel,256 F.3d 120, 125 (3d Cir. 2001).
By including a subjective intent component in this Eighth Amendment benchmark,
the courts have held that a mere generalized knowledge that prisons are dangerous
places does not give rise to an Eighth Amendment claim. See Jones v. Beard, 145 F.
App’x 743 (3d Cir. 2005)(finding no Eighth Amendment violation where inmateplaintiff complained about cellmate who had a history of psychological problems, but
where plaintiff failed to articulate a specific threat of harm during the weeks prior to
an attack.) In short, when “analyzing deliberate indifference, a court must determine
whether the prison official ‘acted or failed to act despite his knowledge of a
substantial risk of serious harm.’ Farmer v. Brennan, 511 U.S. 825, 841 (1994). A
prisoner plaintiff must prove that the prison official ‘knows of and disregards an
excessive risk to inmate health or safety.’ Id. at 837.” Garvey v. Martinez, 08-2217,
2010 WL 569852, at *6 (M.D.Pa. Feb. 11, 2010).
These principles apply with particular force to Eighth Amendment claims
premised upon inadequate medical care. In the medical context, a constitutional
violation under the Eighth Amendment occurs only when state officials are
deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429
33
U.S. 97, 105 (1976). To establish a violation of his constitutional right to adequate
medical care in accordance with this standard, Ball is required to allege facts that
demonstrates (1) a serious medical need, and (2) acts or omissions by prison officials
that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999).
Deliberate indifference to a serious medical need involves the “unnecessary
and wanton infliction of pain.” Estelle, 429 U.S. at 104. Such indifference may be
evidenced by an intentional refusal to provide care, delayed provision of medical
treatment for non-medical reasons, denial of prescribed medical treatment, denial of
reasonable requests for treatment that results in suffering or risk of injury, Durmer v.
O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of
resultant pain and risk of permanent injury,” White v. Napoleon, 897 F.2d 103, 109
(3d Cir. 1990).
However, it is also clear that the mere misdiagnosis of a condition or medical
need, or negligent treatment provided for a condition, is not actionable as an Eighth
Amendment claim because medical malpractice standing alone is not a constitutional
violation. Estelle, 429 U.S. at 106. “Indeed, prison authorities are accorded
considerable latitude in the diagnosis and treatment of prisoners.” Durmer, 991 F.2d
at 67 (citations omitted). Furthermore, in a prison medical context, deliberate
indifference is generally not found when some significant level of medical care has
34
been offered to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 2000 WL
1522855, at *2 (E.D.Pa. Oct. 13, 2000)(“courts have consistently rejected Eighth
Amendment claims where an inmate has received some level of medical care”). Thus,
such complaints fail as constitutional claims under § 1983 since “the exercise by a
doctor of his professional judgment is never deliberate indifference. See e.g. Brown
v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) (‘[A]s long as a
physician exercises professional judgment his behavior will not violate a prisoner's
constitutional rights.’)”. Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997).
Applying this exacting standard, courts have frequently rejected Eighth
Amendment claims that are based upon the level of professional care that an inmate
received; see, e.g., Ham v. Greer, 269 F. App’x 149 (3d Cir. 2008); James v. Dep’t
of Corrections, 230 F. App’x 195 (3d. Cir. 2007); Gillespie v. Hogan, 182 F. App’x
103 (3d Cir. 2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D. Pa.
Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D. Pa. 1997), particularly
where it can be shown that significant medical services were provided to the inmate
but the prisoner is dissatisfied with the outcome of these services. Instead, courts
have defined the precise burden which an inmate must sustain in order to advance an
Eighth Amendment claim against a healthcare professional premised on allegedly
inadequate care, stating that:
35
The district court [may] properly dis[miss an] Eighth Amendment claim,
as it concerned [a care giver], because [the] allegations merely amounted
to a disagreement over the proper course of his treatment and thus failed
to allege a reckless disregard with respect to his . . . care. The standard
for cruel and unusual punishment under the Eighth Amendment,
established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104
(1976), and its progeny, has two prongs: 1) deliberate indifference by
prison officials and 2) serious medical needs. “It is well-settled that
claims of negligence or medical malpractice, without some more
culpable state of mind, do not constitute ‘deliberate indifference.’ ”
“Nor does mere disagreement as to the proper medical treatment support
a claim of an eighth amendment violation.” . . . . [The inmate] alleged no
undue delay in receiving treatment and, as the district court noted, the
evidence he presented established that he received timely care . . . .
Although [an inmate plaintiff] may have preferred a different course of
treatment, [t]his preference alone cannot establish deliberate
indifference as such second-guessing is not the province of the courts.
James, 230 F. App’x. at 197-198.(citations omitted).
Furthermore, it is well-settled that an inmate’s dissatisfaction with a course of
medical treatment, standing alone, does not give rise to a viable Eighth Amendment
claim. See Taylor v. Norris, 36 F. App’x 228, 229 (8th Cir. 2002) (deliberate
indifference claim failed when it boiled down to a disagreement over recommended
treatment for hernias and decision not to schedule a doctor's appointment); AbdulWadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir.1996) (inmate's disagreement
with selection of medicine and therapy for sickle cell anemia falls well short of
demonstrating deliberate indifference); Sherrer v. Stephen, 50 F.3d 496, 497 (8th
Cir.1994) (inmate's “desire for a replacement joint instead of fusion surgery is merely
36
a disagreement with the course of medical treatment and does not state a
constitutional claim”); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990)
(inmate failed to prove deliberate indifference where his complaints represented
nothing more than mere disagreement with course of his medical treatment).
Therefore, where a dispute in essence entails nothing more than a disagreement
between an inmate and care-givers over alternate treatment plans, the inmate’s
complaint will fail as a constitutional claim; see e.g., Gause v. Diguglielmo, 339 F.
App’x 132 (3d Cir. 2009)(dispute over choice of medication does not rise to the level
of an Eighth Amendment violation); Innis v. Wilson, 334 F. App’x 454 (3d Cir.
2009)(same); Rozzelle v. Rossi, 307 F. App’x 640 (3d Cir. 2008)(same); Whooten
v. Bussanich, 248 F. App’x 324 (3d Cir. 2007)(same); Ascenzi v. Diaz, 247 F. App’x
390 (3d Cir. 2007)(same), since “the exercise . . . of . . . professional judgment is
never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa.
1997)(citations omitted).
Judged against these standards, Ball cannot sustain an Eighth Amendment
deliberate indifference claim against Nurse Temple, one of her prison health care
providers. Indeed, in this case it is entirely undisputed that the plaintiff received care
for the one June 29, 2011, episode of vomiting which forms the basis of this
particular claim. That care was provided to Ball in several ways over time. First,
Nurse Eskew, the only medical professional who had contact or communication with
37
Ball on June 29, 2011, has declared that on June 29 Ball showed her a tissue paper
with a scant amount of dried, pink coloring on it. Although Ball claimed that the
matter was blood, Eskew did not perceive it to be blood, but instead thought it looked
like markings from a pink marker. Moreover, Ball did not appear to Eskew to be in
any need of immediate or urgent medical care. Nonetheless, Eskew relayed her
observations to the head nurse, Nurse Temple, and a decision was made that Ball did
not need any emergency medical care, since any medical issues Ball was experiencing
could adequately be addressed by Ball signing up for sick call. However, Nurse
Eskew advised Ball that if she had a similar problem, to let Eskew know immediately,
and Ball never raised any further concerns with the nurse. The prison then followed
up on Ball’s concerns over the next 30 days. Thus, on July 5, 2011, Ball was seen by
a physician at sick call due to a complaint about a cough. Ball also complained that
day that she noticed some blood in her phlegm, and was diagnosed with an
inflammation of the throat and possible bronchitis. The physician ordered a chest xray and sputum collection for Ball, who was then seen by a physician for the same
complaint on July 7, 2011. At that time, there was no blood noted in her sputum. A
sputum sample was collected from Ball on July 11, 2011, and sent for testing, a test
which showed moderate growth of a bacterium called Entrobacter Aerogenes. In
addition, Ball’s x-ray was taken on July 8, 2011, and the radiologist’s report indicated
38
that the x-ray results were normal. Finally, Ball was prescribed antibiotics on July
26, 2011, and voiced no further complaints regarding blood in her sputum.
All of this on-going care is undisputed in the factual record, and is fatal to
Ball’s claim that Nurse Temple was deliberately indifferent to her medical needs.
Thus, in its present posture, Ball’s Eighth Amendment claims should be dismissed
since those:
[A]llegations merely amounted to a disagreement over the proper course
of his treatment and thus failed to allege a reckless disregard with
respect to his . . . care. The standard for cruel and unusual punishment
under the Eighth Amendment, established by the Supreme Court in
Estelle v. Gamble, 429 U.S. 97, 104 (1976), and its progeny, has two
prongs: 1) deliberate indifference by prison officials and 2) serious
medical needs. “It is well-settled that claims of negligence or medical
malpractice, without some more culpable state of mind, do not constitute
‘deliberate indifference.’ ” “Nor does mere disagreement as to the
proper medical treatment support a claim of an eighth amendment
violation.” . . . . [The inmate] alleged no undue delay in receiving
treatment and, as the district court noted, the evidence he presented
established that he received timely care . . . . Although [an inmate
plaintiff] may have preferred a different course of treatment, [t]his
preference alone cannot establish deliberate indifference as such secondguessing is not the province of the courts.
James, 230 F.App’x. at 197-198.(citations omitted).6
We also note that Ball’s curious choice of Nurse Temple as the named
defendant in this matter reveals another flaw in this case. Ball apparently bases
her claim against this defendant, in part, upon Ball’s perception of a hearsay
statement which she alleges Nurse Eskew made, and attributed to Nurse Temple.
Ball may not rely upon rank hearsay to create a factual issue for trial at this stage
of this litigation. Quite the contrary, it is well-settled that: “In this circuit, hearsay
statements can be considered on a motion for summary judgment [only] if they are
6
39
F.
The Defendants Are Entitled to Qualified Immunity
Finally, we find that, even if Ball had stated a colorable claim for any actions
relating to her conditions of confinement or medical care, the defendants would
nevertheless be entitled to qualified immunity from these claims for damages. In
order to establish a civil rights claim Ball must show the deprivation of a right
capable of admission at trial.” Shelton v. University of Medicine & Dentistry of
N.J., 223 F.3d 220, 223, n.2 (3d Cir. 2000), citing Stelwagon Mfg. v. Tarmac
Roofing Sys., Inc., 63 F.3d 1267, 1275, n.17 (3d Cir. 1995). In this regard it has
been aptly observed that:
It is clear that when considering a motion for summary judgement, a
court may only consider evidence which is admissible at trial, and
that a party can not rely on hearsay evidence when opposing a motion
for summary judgment. See Buttice v. G.D. Searle & Co., 938
F.Supp. 561 (E.D.Mo.1996). Additionally, a party must respond to a
hearsay objection by demonstrating that the material would be
admissible at trial under an exception to hearsay rule, or that the
material is not hearsay. See Burgess v. Allstate Ins. Co., 334
F.Supp.2d 1351 (N.D.Ga.2003). The mere possibility that a hearsay
statement will be admissible at trial, does not permit its consideration
at the summary judgment stage. Henry v. Colonial Baking Co. of
Dothan, 952 F.Supp. 744 (M.D.Ala.1996).
Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582,* 9 (W.D.Pa.
Aug. 26, 2005). Thus, a party may not rely upon inadmissible hearsay assertions
to avoid summary judgment. Therefore, where a party simply presents
inadmissible hearsay declarations in an attempt to establish a disputed material
issue of fact, courts have typically rebuffed these efforts and held instead that
summary judgment is appropriate. See, e.g., Synthes v. Globus Medical, Inc., No.
04-1235, 2007 WL 2043184 (E.D.Pa. July 12, 2007); Bouriez v. Carnegie Mellon
Univ., No. 02-2104, 2005 WL 2106582,* 9 (W.D.Pa. Aug. 26, 2005); Carpet
Group Int’l v. Oriental Rug Importers Assoc., Inc., 256 F.Supp.2d 249 (D.N.J.
2003).
40
secured by the United States Constitution or the laws of the United States. Satisfying
these elements alone, however, does not guarantee that Ball is entitled to recover
damages from these public officials. Government officials performing “discretionary
functions,” are insulated from suit if their conduct did not violate a “clearly
established statutory or constitutional right[] of which a reasonable person would
have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999); see also Pearson v.
Callahan, 555 U.S. 223 (2009). This doctrine, known as qualified immunity, provides
officials performing discretionary functions not only defense to liability, but also
“immunity from suit.” Crouse v. S. Lebanon Twp., 668 F. Supp. 2d 664, 671 (M.D.
Pa. 2009) (Conner, J.) (citations omitted). Qualified immunity:
balances two important interests – the need to hold public officials
accountable when they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and liability when they
perform their duties reasonably. The protection of qualified immunity
applies regardless of whether the government official’s error is “a
mistake of law, a mistake of fact, or a mistake based on mixed questions
of law and fact.”
Pearson, 555 U.S. at 231.
Determinations regarding qualified immunity, and its application in a given
case, require a court to undertake two distinct inquiries. First, the court must evaluate
whether the defendant violated a constitutional right. Saucier v. Katz, 533 U.S. 194,
201-02 (2001), abrogated in part by Pearson,555 U.S. 223; Curley v. Klem, 499 F.3d
41
199, 206 (3d Cir. 2007); Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006). If the
defendant did not actually commit a constitutional violation, then the court must find
in the defendant’s favor. Saucier, 533 U.S. at 201. If the defendant is found to have
committed a constitutional violation, the court must undertake a second, related
inquiry to assess whether the constitutional right in question was “clearly established”
at the time the defendant acted. Pearson, 555 U.S. 231-32; Saucier, 533 U.S. at 20102. The Supreme Court has instructed that a right is clearly established for purposes
of qualified immunity if a reasonable state actor under the circumstances would
understand that his conduct violates that right. Williams, 455 F.3d at 191 (citing
Saucier, 533 U.S. at 202).
In order to find that a right is clearly established, “the right allegedly violated
must be defined at the appropriate level of specificity.” Wilson, 526 U.S. at 615. The
Supreme Court has explained that, at least in some cases, “a general constitutional
rule already identified in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in question has [not]
previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting
United States v. Lanier, 520 U.S. 259, 271 (1997) (internal quotation marks and
citation omitted)). In some cases, “officials can still be on notice that their conduct
violates established law even in novel factual circumstances.” Wilson, 455 F.3d at
191 (quoting Hope, 536 U.S. at 741).
42
The court is no longer required to conduct these two inquiries sequentially,
Pearson, 555 U.S. at 236, and it may forego difficult constitutional issues and award
qualified immunity to a defendant if it is apparent that the defendant did not violate
rights that were clearly established at the time the defendant acted. Id. Where a court
elects to address the alleged constitutional violations, however, the court’s analysis
of the merits for purposes of summary judgment merges with analysis of the
deprivation of federal rights for purposes of qualified immunity. Gruenke v. Seip,
225 F.3d 290, 299-300 (3d Cir. 2000); Crouse, 668 F. Supp. 2d at 671; see also Grant
v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (“[C]rucial to the resolution of
[the] assertion of qualified immunity is a careful examination of the record . . . to
establish . . . a detailed factual description of the actions of each individual defendant
(viewed in a light most favorable to the plaintiff).”) Because qualified immunity
entails a consideration of whether the law was clearly established at the time of a
defendant’s conduct, this defense, which focuses on the state of the law, presents a
question of law for the court, and one which can often be resolved on summary
judgment. See Montanez v. Thompson, 603 F.3d 243 (3d Cir. 2010).
In this case, case law has repeatedly rejected inmate Eighth Amendment
challenges to medical care, finding no deliberate indifference to serious medical
needs where it is shown that the prisoner received on-going care and treatment. See,
e.g., Lasko v. Watts, 373 F. App’x 196, 203 (3d Cir. 2010); Hodge v. U.S.
43
Department of Justice, 2010 WL 1141387 (3d Cir. Aug. 2, 2010); Palmer v. Carroll,
640 F.Supp 2d. 542 (D.Del. 2009); Moshier v. United States, No. 05-180, 2007 WL
1703536 (W.D. Pa. June 11, 2007); Jordan v. Delaware, 433 F.Supp.2d. 433 (D.Del.
2006); Christy v. Robinson, 216 F.Supp.2d 398, 413 (D.N.J. 2002). Federal courts
have also routinely held that medical disputes between physicians and prisoners over
alternate treatment plans do not state an Eighth Amendment claim. See, e.g.,
Rodriguez v. Secretary Pennsylvania Dep’t of Corrections, No. 10-3134, 2011 WL
3555424 (3d Cir. Aug. 12, 2011); Winslow v. Prison Heath Service, 406 F. App’x
671 (3d Cir. 2011);Guiddy v. Terhune, 90 F. App’x 592 (3d Cir. 2004). Finally,
courts have consistently found that a brief delay in receiving some hygiene supplies,
coupled with occasional missed meals, do not state an Eighth Amendment claim. See
e.g.,Banks v. Mozingo, 423 F. App’x 123 (3d Cir. 2011)(denying inmate hygiene
complaint as ironic where inmate engaged in un-hygienic behavior, including
smearing feces on cell); Adderly v. Ferrier, 419 F. App’x 135 (3d Cir. 2011)(denying
inmate claim involving 7 day alleged denial of hygienic material); Fortune v.
Hamberger, 379 F. App’x 116 (3d Cir. 2010)( denying inmate claim involving 15 day
alleged denial of hygienic material); Lindsey v. O'Connor, 327 F. App’x. 319, 321
(3d Cir. 2009) (“purported deprivation of a single meal is not of such magnitude as
to rise to the level of a constitutional violation.”)
44
Given the state of the law in this field, which has consistently rebuffed inmate
Eighth Amendment challenges like those presented here by Ball, the defendants
simply could not have recognized that their actions would violate “clearly established
statutory or constitutional right[] of which a reasonable person would have known.”
Wilson v. Layne, 526 U.S. 603, 609 (1999). Therefore, the defendants are entitled
to qualified immunity on these claims.
III.
Conclusion
Accordingly, for the forgoing reasons, the defendants’ motion for summary
judgment is GRANTED, this case is DISMISSED and the clerk is directed to CLOSE
this file.
So ordered, this 19th day of July 2012.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
45
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