Davis v. Mooney et al
MEMORANDUM re REPORT AND RECOMMENDATIONS 84 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 4/10/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL NO. 1:CV-14-01423
(Chief Magistrate Judge Schwab)
Before the court is a Report and Recommendation filed by Chief Magistrate
Judge Schwab in which she recommends granting in part and denying in part the
Defendants’ motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. (Doc. 84.) Defendants have filed objections to the
Report and Recommendation. (Doc. 88.) For the reasons that follow, the
Magistrate Judge’s Report and Recommendation will be adopted in part, and this
case will be listed for trial.
The relevant facts and procedural history can be summarized as follows:
In or about December 2011, Plaintiff Rafiyq Davis sent a letter to Timothy
Riskus in the Central Security Office, seeking separations from a fellow inmate,
Jesse Wade (“Inmate Wade”), and other inmates at the State Correctional
Institution at Coal Township, Pennsylvania (“SCI-Coal Township”). (Doc. 73 ¶
36.) As Plaintiff was housed at SCI-Graterford at the time, he was instructed to
raise the issue with the Superintendent upon his return to SCI-Coal Township.
(Id.) On December 29, 2011, Plaintiff was transferred back to SCI-Coal
Township. (Id. ¶ 37.) He had a meeting with Lt. Richard Shipe, after which
Plaintiff authored an Inmate Statement on January 26, 2012, asserting that his
issues with other inmates at SCI-Coal Township had been resolved and that he did
not anticipate any problems. (Id. ¶ 38.) Plaintiff subsequently raised issues about
his safety at SCI-Coal Township again but did not specifically mention Inmate
Wade. (Id. ¶¶ 39-41.)
On January 5, 2014, while housed at SCI-Coal Township, Plaintiff was
assaulted and stabbed by Inmate Wade as he was returning from afternoon
activities in the yard. (Id. ¶ 18.) Immediately following the incident, Plaintiff was
seen by the prison’s medical department. (Id. ¶ 19.) During his evaluation,
Plaintiff exclaimed, “I don’t know why that dude hit me!” (Id. ¶ 20.) Upon
examination, it was noted that Plaintiff had a 1/8-inch puncture wound in his right
cheek located 1-inch from his right eye, as well as ecchymosis and abrasions to the
left side of his nose and corner of his left eye. (Id. ¶ 21.) He denied having any
pain or other injury. (Id.) Steri-strips were applied to Plaintiff’s cheek and he was
given instructions regarding hygiene to prevent infection. (Id. ¶ 22.) Over the
following two months, Plaintiff was seen by the medical department on several
occasions for complaints of pain, and decreased or blurred vision in his right eye.
(Id. ¶¶ 23-26.) However, no doctor has opined that the blurred vision is related to
the January 5, 2014 incident. (Id. ¶ 26.)
Following the altercation with Inmate Wade, Correctional Officer Hopwood
issued Misconduct #A543277 to Plaintiff for fighting and refusing to obey an
order. (Id. ¶ 48.) The misconduct was ultimately dismissed by the hearing officer.
(Id.) On March 25, 2014, a correctional officer trainee issued Misconduct
#B428705 to Plaintiff for refusing to obey an order and for failing to stand count,
or for otherwise interfering with count. (Id. ¶ 49.) This misconduct was also
dismissed, without prejudice, by the hearing officer. (Id. ¶ 50.) Further, Plaintiff
was granted parole on April 7, 2014. (Id. ¶ 52.)
On July 24, 2014, Plaintiff initiated this action against several officials from
the Pennsylvania Department of Corrections (“DOC”) with a complaint filed
pursuant to the provisions of 42 U.S.C. § 1983, alleging violations of the First and
Eighth Amendments to the United States Constitution.1 (Doc. 1.) Specifically,
Plaintiff raises the following claims related to the January 5, 2014 incident: (1) a
failure to protect claim under the Eighth Amendment; (2) a failure to intervene
claim under the Eighth Amendment; (3) a cruel and unusual punishment claim
under the Eighth Amendment; and (4) a retaliation claim under the First
Amendment. Defendants filed an answer to the complaint (Doc. 24), the parties
exchanged written discovery, and Defendants took the depositions of Plaintiff and
another witness. On April 15, 2016, Defendants collectively filed a motion for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Doc. 72.) On January 6, 2017, Chief Magistrate Judge Schwab filed a Report and
Recommendation, recommending that Defendants’ motion for summary judgment
Named as Defendants are Wayne Benson, Lt. Brian Carpentier, Richard Cory, Renee
Foulds, Farren Hopwood, Sgt. Todd Kimbrel, and Lt. Richard Shipe, all corrections officers who,
at all relevant times, were employed by SCI-Coal Township. In addition, Plaintiff names as
Defendants Charles Stetler, Intelligence Captain at SCI-Coal Township; Thomas Williams, Unit
Manager at SCI-Coal Township; Megan Fetterman, corrections counselor; Anthony Luscavage,
Deputy Corrections Superintendent at SCI-Coal Township and member of the Program Review
Committee; Michael Miller, Deputy Superintendent and member of the Program Review
Committee; and Vincent Mooney, Superintendent of SCI-Coal Township.
Also named as a Defendant is Correctional Officer Trainee John Doe, whose identity is
unknown. By order dated January 6, 2017, the Magistrate Judge recognized that this Defendant
had neither been properly served, nor has an attorney enter an appearance on his behalf. (Doc.
82.) Thus, in that order, the Magistrate Judge directed Plaintiff to show cause within twenty-one
(21) days why this Defendant should not be dismissed pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure. (Id.) The Magistrate Judge also warned Plaintiff that failure to show good
cause may result in dismissal of his claims against this Defendant. (Id.) To date, Plaintiff has
failed to respond to this court order.
be granted in part and denied in part. (Doc. 84.) Specifically, the Magistrate
Judge recommended that the following claims and Defendants survive: (1) a
failure to protect claim against Defendant Williams; (2) a failure to intervene
claim against Defendants Benson and Kimbrel; and (3) a retaliation claim against
Defendant Hopwood. In addition, she recommended that the claims asserted
against Defendant Trainee Doe be dismissed.
On January 27, 2017, Defendants submitted objections to the Magistrate
Judge’s Report and Recommendation. (Doc. 88.) In their filing, Defendants argue
that the surviving claims determined by the Magistrate Judge should be dismissed.
Plaintiff has not filed a response. Thus, the Report and Recommendation and the
objections thereto are ripe for review.
Pursuant to the Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil
Procedure 72(b), any party may file written objections to a magistrate judge’s
proposed findings and recommendations. Where timely and specific objections
are filed, the reviewing court must conduct a de novo review of those contested
portions of the report and recommendation to which objections are made. 28
U.S.C. § 636(b)(1). In making its de novo review, the district court may accept,
reject, or modify, in whole or in part, the factual findings or recommendations
made by the magistrate judge. 28 U.S.C. § 636(b)(1); see Owens v. Beard, 829 F.
Supp. 736, 738 (M.D. Pa. 1993). Uncontested portions of the report are reviewed
for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375,
376-77 (M.D. Pa. 1998). Guided by this standard of review, the court will now
review the Magistrate Judge’s Report and Recommendation and the objections
Failure to Protect Claim against Defendant Williams
Defendants first object to the Magistrate Judge’s recommendation that
summary judgment be denied with respect to Plaintiff’s claim for failure to protect
against Defendant Williams. In the Report and Recommendation, the Magistrate
Judge concluded that Plaintiff “met his burden of proof in showing a genuine
dispute of material fact that he was incarcerated under conditions posing a
substantial risk of harm and that Williams was aware of this harm, yet disregarded
it.” (Doc. 84 at 23.) In support of this finding, the Magistrate Judge noted that
Plaintiff told Defendant Williams that Inmate Wade was going to kill him, on two
separate occasions, just days before the January 5, 2014 incident. (Id.) In
addition, Defendant Williams disregarded this risk because Plaintiff had filed
numerous grievances and complaints in the past. (Id.)
An inmate making a failure to protect claim has the burden of proof to
establish that a prison official both knew of and chose to disregard an “excessive
risk to inmate health or safety.” Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d
Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The United
States Court of Appeals for the Third Circuit has further held that the knowledge
requirement is subjective, “meaning that the official must actually be aware of the
existence of the excessive risk; it is not sufficient that the official should have
been aware.” Id.; see Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).
Actual knowledge can be proven circumstantially where the general danger was
obvious. Farmer, 511 U.S. at 842. For example, if the prisoner-plaintiff
presents evidence showing that a substantial risk of inmate attacks
was “longstanding, pervasive, well-documented, or expressly noted
by prison officials in the past, and the circumstances suggest that the
defendant-official being sued had been exposed to information
concerning the risk and thus ‘must have known’ about it, then such
evidence could be sufficient to permit a trier of fact to find that the
defendant-official had actual knowledge of the risk.”
Id. at 842-43.
Here, Defendants argue that not only has Plaintiff not presented evidence of
deliberate indifference, but also that Plaintiff did not suffer an injury that rises to
the level of “serious harm” for purposes of an Eighth Amendment violation. The
court does not agree. First, the Magistrate Judge held that, inter alia, because
Plaintiff made “express, specific complaints to Williams just days before the
incident,” (Doc. 84 at 24), he has shown that Defendant Williams was actually
aware of the existence of the excessive risk of harm to Plaintiff. The court notes
that, to the contrary, the Magistrate Judge found that Plaintiff’s complaints to
Defendants Foulds and Stetler were too attenuated from the January 5, 2014
incident to permit a reasonable finder of fact to infer that either Defendant knew of
and intentionally disregarded a substantial risk of harm to Plaintiff, as Plaintiff’s
complaints to Foulds and Stetler occurred years prior to the incident. (See id. at
20-22.) The Magistrate Judge’s finding on the timing of Plaintiff’s complaints to
Defendant Williams supports her conclusion as to this claim.
Second, Defendants take issue with Plaintiff’s injury being described as a
“stabbing” rather than a “puncture wound,” arguing that rather than being
“stabbed” by Inmate Wade, Plaintiff suffered a “flesh wound” which required
nothing more than a bandage. (Doc. 89 at 11.) According to Defendants,
Plaintiff’s “flesh wound” cannot be classified as a serious injury for purposes of an
Eighth Amendment violation. Again, the court does not agree. The numerous
cases cited by the Magistrate Judge, as well as her review of the parties’ respective
arguments and the underlying record upon which those arguments rest, support the
finding that Plaintiff has met his burden of proof in showing a genuine dispute of
material fact with regard to the claim against Defendant Williams. Simply put, it
is a jury who must now decide this dispute over “stabbing” versus “puncture
Failure to Intervene Claim against Defendants Benson and
Defendants also object to the Magistrate Judge’s recommendation that
summary judgment be denied with respect to Plaintiff’s claim of failure to
intervene against Defendants Benson and Kimbrel. In her Report and
Recommendation, the Magistrate Judge asserted that, through Plaintiff’s own
deposition, he showed that Defendants Benson and Kimbrel were present when the
incident was happening; that they “came on the side;” that they just stood by,
“looking” and “watching;” that they “didn’t intervene;” that they “could have
stopped” Inmate Wade and “got him off” Plaintiff, but that they “just didn’t do
nothing.” (Doc. 84 at 28) (citing Doc. 73-1 at 48-49). The Magistrate Judge held
that, viewing this evidence in the light most favorable to Plaintiff, he met his
burden of proof in showing a factual dispute as to whether or not Defendants
Benson and Kimbrel had a reasonable opportunity to intervene, but failed or
refused to do so. (Doc. 84 at 28.)
In order to prevail on a failure to intervene claim, the plaintiff must show:
“(1) that the defendant failed or refused to intervene when a constitutional
violation took place in his or her presence or with his or her knowledge; and (2)
there was a ‘realistic and reasonable opportunity to intervene.’” Knight v. Walton,
No. 2:12-CV-984, 2014 WL 1316115, at *8 (W.D. Pa. Mar. 28, 2014) (quoting
Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002)) (citation omitted).
Here, Defendants argue that Plaintiff’s reliance on his uncorroborated
deposition testimony is not enough to carry his burden of establishing this claim.
Further, Defendants claim the Magistrate Judge overlooked the fact that Plaintiff
did not know the names of Defendants Benson and Kimbrel. Neither of these
arguments is of consequence with respect to the Magistrate Judge’s holding here.
What is clear is that Plaintiff’s account, absent production of video footage
depicting the January 5, 2014 incident,2 establishes a factual dispute regarding
whether Defendants Benson and Kimbrel failed to intervene in the incident.
Retaliation Claim against Defendant Hopwood
Finally, Defendants object to the Magistrate Judge’s recommendation that
summary judgment be denied as to Plaintiff’s retaliation claim against Defendant
Hopwood. In her Report and Recommendation, the Magistrate Judge found
In her Report and Recommendation, the Magistrate Judge noted that neither party has
produced the video footage of the January 5, 2014 incident for purposes of the present motion for
summary judgment. (See Doc. 84 at 8, n. 4.)
Plaintiff had established a retaliation claim against Defendant Hopwood because
“a reasonable finder of fact could determine that [Plaintiff]’s constitutionally
protected activity [of filing grievances] was a motivating factor in Hopwood’s
decision to issue an allegedly false misconduct report against him.” (Doc. 84 at
To prevail on a retaliation claim under 42 U.S.C. § 1983, a plaintiff must
demonstrate (1) that he was engaged in protected activity; (2) that he suffered an
“adverse action” by government officials; and (3) that there is “a causal link
between the exercise of his constitutional rights and the adverse action taken
against him.” Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001) (quoting Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
In the instant case, Defendants argue that the Magistrate Judge failed to
consider the fact that the misconduct issued against Plaintiff by Defendant
Hopwood was ultimately dismissed by the hearing officer. Under Third Circuit
precedent, a false misconduct that was ultimately dismissed is not sufficient to
meet the adverse-action element of a retaliation case. Horan v. Wetzel, Civ. No.
1:13-CV-00140, 2016 WL 55072, at *1 n.2 (M.D. Pa. Jan. 5, 2016) (Caldwell, J.)
(citing Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011)). See also Marten
v. Hunt, No. 08-77, 2011 WL 767815, at *1-2 (W.D. Pa. Feb. 28, 2011) (citing
Brightwell and dismissing plaintiff’s retaliation claim involving the issuance of a
fabricated misconduct that was ultimately dismissed). In light of this case law, the
court finds that Plaintiff has failed to meet his burden and the retaliation claim
against Defendant Hopwood should be dismissed.
For the reasons stated herein, the Magistrate Judge’s Report and
Recommendation will be adopted in part and rejected in part. The court will adopt
the Magistrate Judge’s recommendation that Defendants’ motion for summary
judgment with respect to Plaintiff’s Eighth Amendment claims for failure to
protect against Defendant Williams and failure to intervene against Defendants
Benson and Kimbrel be denied. The court will reject the Magistrate Judge’s
recommendation that Defendants’ motion for summary judgment with respect to
Plaintiff’s First Amendment retaliation claim against Defendant Hopwood be
denied. For portions of the Report and Recommendation to which no objection is
made, upon review the court finds no clear error on the face of the record. As a
result, judgment will be entered in favor of the appropriate Defendants and against
Further, as Plaintiff has failed to show cause for why Defendant
Correctional Officer Trainee John Doe should not be dismissed from this action
pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (see Doc. 82), the
court will dismiss the claims against Defendant Correctional Officer Trainee John
Doe and terminate him as a party in this action.
This case shall be listed for trial.
An appropriate order will issue.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: April 10, 2017.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?