Sepulveda et al v. Ebbert et al

Filing 74

MEMORANDUM (Order to follow as separate docket entry) (eo)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
GEORGE SEPULVEDA, et al.,
Plaintiffs
vs.
WARDEN DAVID EBBERT, et al.,
Defendants

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No. 1:14-cv-00789
(Judge Kane)

MEMORANDUM
I.

Background
On April 24, 2014, Plaintiffs George Sepulveda, Eddie Wright,

Matthew A. Turner, Sony Sanchez, and Stephen McCall, inmates at
the United States Penitentiary at Canaan, Waymart, Pennsylvania
(“USP-Canaan”), filed a Bivens-styled unverified complaint
pursuant to 28 U.S.C. § 13311 relating to strip searches which
they allegedly were subjected to on March 22 and August 23, 2013,
while housed in Unit E2 of the penitentiary. (Doc. No. 1.)

Named

as defendants in the complaint were the following individuals
employed at USP-Canaan: (1) David Ebbert, Warden; (2) Leonard
Oddo, Associate Warden; (3) Gary Miller, Associate Warden; (4)
Robert Kaszuba, Captain; (5) William Rosler, Lieutenant; (6) Ryan
Rosencrance, Lieutenant; (7) Christopher Ficken, Senior Officer
1. 28 U.S.C. § 1331 states as follows: “The district court shall
have original jurisdiction of all actions arising under the
Constitution, laws, or treaties of the United States.”
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1977), stands for the proposition that
"a citizen suffering a compensable injury to a constitutionally
protected interest could invoke the general federal question
jurisdiction of the district court to obtain an award of monetary
damages against the responsible federal official." Butz v.
Economou, 438 U.S. 478, 504 (1978).

Specialist (“SOS”); (8) Andrew Burgh, Correctional Officer; (9)
Brian Alvaro, SOS; and (10) Kyle Lindsay, Unit Manager.
Plaintiffs also named 12 “John Does” as defendants.

Id.

The

Id.

Plaintiffs alleged that their rights under the Fourth and Eighth
Amendments to the United States Constitution were violated by
defendants when they were subjected to the visual strip searches
on March 22 and August 23, 2013.

Id.

As relief Plaintiffs requested (1) that the Court issue a
declaratory judgment finding that their rights were violated by
the Defendants; (2) award compensatory damages in the amount of
$100,00.00 against each Defendant; (3) award punitive damages in
the amount of $100,000 against each Defendant; and (4) issue a
preliminary and permanent injunction directing Defendants to
terminate the practice of conducting strip searches with two
inmates “in a dirty one man shower.”

Id. at 15.

Defendants Ebbert, Oddo, Miller, Kaszuba, Rosler,
Rosencrance, Ficken, Burgh, Alvaro, and Lindsay were served with
the complaint on October 28, 2014, and after being granted two
extensions of time, they appropriately filed on March 27, 2015, a
motion to dismiss and/or for summary judgement in lieu of an
answer to the complaint.2
In the motion to dismiss and/or for summary judgment and the
supporting brief, Defendants made the following arguments: (1)

2. The “John Does” were not identified or served by the
Plaintiffs.
2

sovereign immunity prevents the Court from entertaining
Plaintiffs’ official capacity claims; (2) Plaintiffs failed to
state a claim upon which relief could be granted because (a)
Plaintiffs failed to allege in the complaint the personal
involvement of Defendants Ebbert, Oddo, Miller, Kaszuba, Alvaro
and Lindsay in the searches, (b) Defendants Ebbert, Oddo, Miller
and Kaszuba could not be held liable based on respondeat superior,
(c) there was no liability under the Eighth Amendment because the
facts alleged did not reveal that Defendants were deliberately
indifferent or used excessive force, and (d) Plaintiffs could not
recover compensatory damages for emotional or mental injuries
because they failed to allege any physical injury; and (3) summary
judgment should be granted in favor of Defendants Rosler,
Rosencrance, Ficken, Burgh and Alvaro because the undisputed facts
demonstrated they had no personal involvement in the alleged
searches and, in the alternative, Defendants were entitled to
qualified immunity because the undisputed record reveals their
conduct was objectively reasonable and lawful.
On April 10, 2015, Defendants filed a brief in support of
their motion and a statement of material facts3 in accordance with

3. The statement of material facts revealed, inter alia, that
following a homicide of a staff member at USP-Canaan in February,
2013, the institution was placed in lock down status and that the
mass search performed in housing unit E2 on March 22, 2013, was
the result of USP-Canaan coming off lockdown status.
Furthermore, several items of contraband were recovered from E2
housing unit on March 22, 2013, including three sharpened
(continued...)
3

Local Rule 56.1.

M.D. Pa. L.R. 56.1.

On May 12, 2015, Plaintiffs

filed (1) a brief in opposition (Doc. 41) to Defendants’ motion
and (2) a document entitled “Plaintiffs Counterstatement of
Material Facts” attached to which were unsworn declarations under
penalty of perjury pursuant to 28 U.S.C. § 1746 from Plaintiffs
McCall, Wright, Turner, and Sanchez.

(Doc. 40.)

On May 26, 2015,

Plaintiff Sepulveda filed an unsworn declaration under penalty of
perjury.

(Doc. 44.)

filed a reply brief.

Thereafter, on June 9, 2015, Defendants
In the reply brief, Defendants with respect

to Plaintiffs’ Fourth Amendment claims conceded that those claims
should proceed pending further discovery.
On March 3, 2016, the Court issued a decision which granted
in part and denied in part Defendants’ motion to dismiss and/or
for summary judgment.

(Doc. Nos. 52, 53.)

The Court

dismissed

Plaintiffs’ (1) official capacity claims for damages against the
Defendants, including the “John Doe” Defendants, without leave to
file an amended complaint; (2) the Eighth Amendment claims
asserted against Defendants, including the “John Doe” Defendants,
without leave to file an amended complaint; (3) the Fourth
Amendment claims for compensatory damages asserted against
Defendants without leave to file an amended complaint; and (4) the
Fourth Amendment claims both for nominal and punitive damages and

3. (...continued)
instruments and no mass search was performed at USP-Canaan on
August 23, 2013.
4

injunctive relief asserted against Defendants Ebbert, Oddo,
Miller, Lindsay, Alvaro and Kaszuba with leave to file an amended
complaint within 21-days.

Furthermore, the court denied the

motion for summary judgment of Defendants Ficken, Rosencrance,
Rosler and Burgh with respect to Plaintiff’s Fourth Amendment
claims.
In the order disposing of Defendants’ motion to dismiss
and/or for summary judgment, the Court also provided that (1)
Plaintiffs were to identify the “John Doe” defendants by June 1,
2016; (2) discovery was to be completed by June 1, 2016;(3) any
further dispositive motions were to be filed by July 1, 2016; and
(4) failure of Plaintiffs to identify the “John Doe” defendants
would result in the dismissal of the claims asserted against those
defendants.

Plaintiffs did not file an amended complaint and

because Plaintiffs failed to identify the “John Doe” defendants,
and the Court, on July 15, 2016, dismissed the claims asserted
against them.

(Doc. No. 67.)

On July 1, 2016, the remaining Defendants Ficken,
Rosencrance, Rosler and Burgh filed a motion for summary judgment.
(Doc. No. 65.) After being granted an extension of time, those
Defendants on August 12, 2016, filed a supporting brief and a
statement of material facts in accordance with Local Rule 56.1.
The Defendants also filed 88 pages of evidentiary materials in
support of their motion. (Doc. No. 71-1.)

On August 26, 2016,

Plaintiffs filed a 3-page document entitled “Objection to Summary
5

Judgment” which was docketed by the Clerk of Court as a brief in
opposition.

(Doc. No. 72.)

Plaintiffs did not file any

evidentiary materials4 or a response to the Defendants’ statement
of material facts.

Consequently, the facts set forth in

Defendants’ statement of material facts and evidentiary materials
are deemed admitted.5

Defendants’ motion for summary judgment

became ripe for disposition on September 9, 2016, when they filed

4. None of the Plaintiffs filed affidavits or unsworn
declarations under penalty of perjury in opposition to
Defendants’ motion for summary judgment.
5.

Local Rule 56.1 states in toto as follows:
A motion for summary judgment filed pursuant to
Fed.R.Civ.P. 56, shall be accompanied by a separate,
short and concise statement of the material facts,
in numbered paragraphs, as to which the moving party
contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment
shall include a separate, short and concise statement
of the material facts, responding to the numbered
paragraph set forth in the statement required in the
foregoing paragraph; as to which it is contended that
there exists a genuine issue to be tried.
Statement of material facts in support of, or in
opposition to, a motion shall include references to
the parts of the record that support the statements.
All material facts
required to be served
deemed to be admitted
statement required to

set forth in the statement
by the moving party will be
unless controverted by the
be served by the opposing party.

M.D. Pa. LR 56.1 (emphasis added). A standard practice order was
issued on April 24, 2014, which advised Plaintiffs of the
requirements of several Local Rules of Court, including Local
Rule 56.1. (Doc. No. 7.)
6

a reply brief. (Doc. No. 73.)

For the reasons set forth below,

Defendants’ motion for summary judgment will be granted.
II.

Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the court to

render 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(a).

"[T]his

standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact."

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or
nonexistence would affect the outcome of the case under applicable
substantive law.

Anderson, 477 U.S. at 248; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).

An issue of

material fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner v. Local 514, United
Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material
fact, the court must view the facts and all reasonable inferences
in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682
(3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d
7

599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company,
862 F.2d 56, 59 (3d Cir. 1988).

In order to avoid summary

judgment, however, the nonmoving party may not rest on the
unsubstantiated allegations of his or her pleadings.

When the

party seeking summary judgment satisfies its burden under Rule 56
of identifying evidence which demonstrates the absence of a
genuine issue of material fact, the nonmoving party is required by
Rule 56 to go beyond the pleadings with affidavits, depositions,
answers to interrogatories or the like in order to demonstrate
specific material facts which give rise to a genuine issue.
Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986).

The

party opposing the motion "must do more than simply show that
there is some metaphysical doubt as to the material facts."

Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S.
574, 586 (1986).

When Rule 56(e) shifts the burden of

production to the nonmoving party, that party must produce
evidence to show the existence of every element essential to
its case which it bears the burden of proving at trial, for
"a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all other
facts immaterial."

Celotex, 477 U.S. at 323.

G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
III.

Statement of Material Facts

8

See Harter v.

The statement of material facts and the evidentiary
materials (Doc. Nos. 47, 47-1), to which Plaintiffs failed to
respond, reveal:
(1) the security of any Bureau of Prisons facility
will be affected by the presence of contraband within
its secure perimeter;
(2) contraband such as prison made weapons,
commonly referred to as “shanks,” create an extremely
dangerous situation for both the inmates
as well as the staff members at the facility;
(3) as a direct result of this threat, a significant
effort is made by staff members to discover as well as
remove such items from the facility;
(4) the presence of such items in the prison is the
result of the inmates fashioning weapons out of readily
available materials used by inmates and the lengths
the inmates will go to conceal the items from staff;
(5) 28 C.F.R. § 552.11 provides in relevant part that
staff of the Bureau of Prisons may conduct “a visual
inspection of all body surfaces and body cavities . . .
where there is a reasonable belief that contraband
may be concealed on the person, or a good opportunity
for concealment has occurred” and “visual search[es]
shall be made in a manner designed to assure as much
privacy to the inmate as practicable;”
9

(6)

on February 25, 2013, an inmate using multiple

homemade weapons killed a correctional officer at USPCanaan;
(7) following the killing the entire institution was
placed on lockdown status;
(8) while the institution is on lockdown status, inmates
are confined to their cells;
(9) to come off lockdown status, besides maintaining
the daily operations of the institution, security
measures had to be taken to ensure that any remaining
weapons present in USP-Canaan were discovered;
(10) to securely come off lockdown status a mass,
targeted search of each inmate as well as their
housing units had to be performed;
(11) such searches are essential following the
murder of a correctional officer prior to resuming
the normal and daily operation of the prison;
(12) on March 23, 2013, the five plaintiffs, George
Sepulveda, Eddie Wright, Sony Sanchez, Matthew A.
Turner, and Stephen McCall, were housed on unit
E2 at USP-Canaan;
(13) on March 22, 2013, there was a mass shakedown of
unit E2;
(14) the mass shakedown included searches of each
inmate’s assigned cell as well as an additional visual
10

search of each inmate housed in unit E2;
(15) the inmates on unit E2 were removed from their
cells while the cells were searched and taken to the
shower cells so that the inmates could be searched;
(16) the housing units at USP-Canaan each contain ten
shower cells available to inmates;
(17) each shower cell is designed, constructed and
functions in the same manner except for one
shower cell that is slightly larger to accommodate
a handicapped inmate;
(18) there are shower cells on both the top as well as
the lower level of each housing unit at USP-Canaan;
(19) other than the handicapped shower cells, the shower
cells on each housing unit measure approximately 7 feet
long from the front of the shower cell door to the rear
wall of the cell where the shower head is located, 3
feet wide, and 7 ½ feet from the floor to the ceiling;
(20) each shower cell has a single light measuring ten
inches by ten inches mounted at the center of the
ceiling of the shower cell;6
(21) each shower cell at USP-Canaan is enclosed by
a cell door composed partly of expanded steel to
permit visibility into the shower cell when in use
as well as a solid steel portion covering the middle
6.

See Doc. No. 71-1, at 33, Attach. B, p. 2.
11

of the door to provide as much privacy as possible
to an inmate using the shower cell in a correctional
environment;
(22) the shower cells present on each housing unit
provided an adequate location to perform the visual
searches in an efficient manner;7
(23) the shower cells provided a secure location
ensuring the safety of the staff member performing
the visual search while considering and taking steps
to safeguard as a much as possible the privacy of the
inmates being searched;8
(24) conducting visual searches of inmates in the shower
cells provided the inmates with more privacy than
searching them on the range;9
(25) conducting the visual search in the shower cells
accomplished the goals of the mass search in the most
efficient and effective manner allowing the institution
to return to normal operations following the staff
homicide at that facility and provided the inmates with
as much privacy as possible;10

7. See Doc. No. 71-1, at 2-8, Declaration of Captain Richard
Hollingsworth.
8.

Id.

9.

Id.

10.

Id.
12

(26) the mass searches conducted on March 22, 2013,
were conducted in accordance with 28 C.F.R. § 552.11;11
(27) several items of contraband were recovered from
E2 housing unit on March 22, 2013, including three
sharpened instruments and nuisance contraband;12
(28) in August of 2013, there were a series of mass
searches performed at USP-Canaan in response to
information received from an outside agency validating
a threat of harm against a staff member at USP-Canaan13
(29) the August 2013 searches were to identify, locate,
and remove any items of contraband from selected housing
units with the facility;14
(30) on August 11, 2013, there was a mass shakedown of
USP-Canaan housing unit E2, where plaintiffs were
housed;
(31) the mass shakedown was performed in the same manner
as the one performed on March 22, 2013 and conducted in
accordance with 28 C.F.R. § 552.11;15
(32) several items of contraband were recovered from
E2 housing unit on August 11, 2013, including one
11.

Id.

12.

Id.

13.

Id.

14.

Id.

15.

Id.
13

sharpened instrument and nuisance contraband;16 and
(33) none of the inmates were physically touched by
Bureau of Prisons employees during the visual strip
searches performed on March 22 and August 11, 2013.17
As stated above, Plaintiffs did not respond to Defendants’
statement of material facts or present any evidentiary materials
which contravene the evidentiary materials submitted by
Defendants.
IV.

Discussion
Maintaining security and order in a penal institution is a

legitimate concern and an inmate’s rights under the Fourth
Amendment, while not totally eliminated by that concern, are
significantly reduced. Bell v. Wolfish, 441 U.S. 520, 558-560
(1979); Lyon v. Farrier, 727 F.2d 766, 769 (8th Cir. 1984).

An

inmate may have a claim under the Fourth Amendment if he or she is
subjected to an unreasonable search.
App'x 202, 206-07 (3d Cir. 2013).

Small v. Wetzel, 528 F.

However, it is not unreasonable

to conduct a non-invasive and non-abusive, strip search of inmates
in groups in the context of a prison lockdown or when faced with a
security threat to a correctional officer.

Id.

For example, in

Florence v. Board of Chosen Freeholders, the United States Supreme
Court emphasized that “correctional officials must be permitted to

16.

Id.

17.

See Doc. 71, Defendants’ Statement of Material Facts, ¶¶ 20,
29.
14

devise reasonable search policies to detect and deter the
possession of contraband in their facilities. . . . The task of
determining whether a policy is reasonably related to legitimate
security interests is peculiarly within the province and
professional expertise of corrections officials” and “in the
absence of substantial evidence in the record to indicate that the
officials have exaggerated their response to these considerations
courts should ordinarily defer to their expert judgment in such
matters.”

Florence v. Bd. of Chosen Freeholders of Cty. of

Burlington, 566 U.S. 318 (2012)(citations and quotations marks
omitted).
Plaintiffs’ in their brief in opposition, which was
unverified, for the first time claimed they were treated
differently from all other inmates during the shakedown.

Such a

claim was not raised in the complaint and it is not supported by
the evidence in the record or prior assertions made by them.

A

review of the complaint reveals no indication or allegation that
Plaintiffs were ever treated differently from any other inmate
being searched in March and August 2013.

In fact, it reveals

quite the opposite as the complaint makes reference to at least
five other inmates not parties to the lawsuit who were also placed
in a one-man shower with another inmate to be visually searched.
It is well-settled that plaintiffs cannot amend their
complaint in a brief in opposition.

Pennsylvania ex rel.

Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
15

Furthermore, Plaintiffs were given an opportunity to amend their
complaint and they declined to do so.

Moreover, as noted the

record does not support a claim of a denial of equal protection.
The Fourteenth Amendment of the Constitution provides in pertinent
part: "No State shall . . . deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."

The

Court of Appeals for the Third Circuit has observed that the equal
protection clause "is not a command that all persons be treated
alike but, rather, 'a direction that all persons similarly
situated should be treated alike.'"

Artway v. Attorney General,

81 F.3d 1235, 1267 (3d Cir. 1996)(quoting Cty. of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)); see also Kuhar v.
Greensburg-Salem Sch. Dist., 616 F.2d 676, 677 n.1 (3d Cir.
1980)("An equal protection claim arises when an individual
contends that he or she is receiving different treatment from that
received by other individuals similarly situated.").18
A litigant in order to establish a viable equal protection
violation must show an intentional or purposeful discrimination.
Snowden v. Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger,
761 F.2d 921, 929 (3d Cir. 1985), cert denied, 475 U.S. 1096
(1986); E & T Realty v. Strickland, 830 F.2d 1107, 1113-14 (11th

18. In Bolling v. Sharpe, 347 U.S. 497 (1954) the Supreme Court
applied the Fourteenth Amendment’s concepts of equal protection
to the federal government through the Due Process Clause of the
Fifth Amendment.
16

Cir. 1987), cert. denied, 485 U.S. 961 (1988).

This "state of

mind" requirement applies equally to claims involving (1)
discrimination on the basis of race, religion, gender, alienage or
national origin, (2) the violation of fundamental rights and (3)
classifications based on social or economic factors.

See, e.g.,

Britton v. City of Erie, 933 F. Supp. 1261, 1266 (W.D. Pa. 1995),
aff'd, 100 F.3d 946 (3d Cir. 1996); Adams v. McAllister, 798 F.
Supp. 242, 245 (M.D. Pa.), aff'd, 972 F2d 1330 (3d Cir. 1992).
Plaintiffs have failed to allege facts from which it can be
concluded that Defendants engaged in intentional or purposeful
discrimination or that they were treated differently than
similarly situated individuals on the basis of their race or some
other impermissible reason.

This case has been pending since 2014

and it would be inequitable to allow an amendment sua sponte at
this time.

See Fletcher-Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
As stated previously, the only remaining claims in this case
are Plaintiffs’ claims under the Fourth Amendment.

Based on

Defendants’ statements of material facts and the evidentiary
materials and the lack of opposing evidentiary materials, the
Court concludes that there are no triable issues of material fact
regarding Plaintiffs’ claims under the Fourth Amendment and,
consequently, Defendants Ficken, Rosencrance, Rosler and Burgh are
entitled to judgment as a matter of law.

17

An appropriate order will be entered.

18