Hill v. Fisher et al

Filing 101

MEMORANDUM (Order to follow as separate docket entry)In conclusion, the Remaining Defendant's motion (Doc. 87) seeking summary judgment will be granted in part. Summary judgment will be granted with respect to the failure to intervene claim but denied in regards to the failure to protect allegation. An appropriate Order will enter. re 87 MOTION for Summary Judgment filed by John Rivello Signed by Honorable Richard P. Conaboy on 3/7/16. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE HILL,

Plaintiff
CIVIL NO. 3:CV-11-1034

v.

(Judge Conaboy)

JON D. FISHER, ET AL.,

FILEO

Ri

Defendants

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2016

MEMORANDUM

Background

Tyrone Hill (Plaintiff), an inmate presently confined at the
Smithfield State Correctional Institution, Huntingdon, Pennsylvania
(SCI-Smithfield) initiated this pro se civil rights action.
subsequently submitted an Amended Complaint (Doc. 6).

Hill

The

Remaining Defendant is Lieutenant John Rivello of SCI-Smithfield.
By Memorandum and Order dated September 27, 2013,
Defendants' motion for summary judgment was partially granted.
Doc. 68.

See

Specifically, the request for summary judgment was

granted in favor of the Defendants on the basis of non-exhaustion
of administrative remedies with respect to the following claims:
(1)

the purported taking of Plaintiff's l e gal materia l s during

April, 2010;

(2) alleged confiscation of pens during a September 1,

2010 cell search;

(3) the loss of two copies of a legal publication

belonging to Hill from the prison's property room on March 13 ,
2011; and (4) an alleged loss of mail on May 17, 2011.

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Summary judgment was also granted in favor of Defendants
with respect to:

(1) all claims against Superintendent Fisher and

Deputy Superintendent Hannah;

(2) the denial of due process

allegations against Hearing Examiner Kuhn; and (3) Hill's factually
unsupported assertions of conspiracy.

Furthermore, Defendants'

request for qualified immunity was granted in regards to Hill's
claim that Defendant Eichenlaub improperly placed him
administrative custody on April 9, 2010.
However, the motion for summary judgment was denied with
respect to the claims that:

(1) Defendant Rivello failed to protect

Plaintiff's safety by deliberately placing him in an recreation
cage adjoining one occupied by by Inmate Smith a prisoner with a
propensity for attacking other inmates who was on single yard and
spit hood restrictions, and by refusing to personally intervene or
permit other correctional staff to do so during an assau

on Hill

by Inmate Smith; and (2) a November 5, 2010 cell search resulted in
confiscation of some of Plaintiff's personal legal materials by
Correctional Officer Kauffman and that a grievance filed by
Plaintiff regarding that seizure was inadequately investigated by
Defendant Booher.
By Order dated September 19, 2014,

Defendants' motion

seeking partial reconsideration of the September 27, 2013
Memorandum and Order was granted.

Doc.

82.

Summary judgment

was granted in favor of Defendants Kaufmann and Booher with respect
to the claims that:

(1) a November 5, 2010 cell search resulted in

confiscation of some of Plaintiff's personal legal materials by
Correctional Officer Kauffman and (2) a grievance filed by
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Plaintiff regarding that seizure was inadequately investigated by
Defendant Booher .
However , the motion for reconsideration was denied with
respect the above described claims that Defendant Rivello failed to
protect Plaintiff ' s safety.

Presently pendin g is the Remaining

Defendant ' s motion f o r summary judgment.

See Doc . 87 .

The opposed

motion is ripe for consideration .
Discussion

The Remaining Defendant claims entitlement to entry of
summary judgment on the grounds that : (1 ) the undisputed facts show
that Rivello had no actual knowledge that Smith posed a substantial
threat of throwing urine and feces at the Plaintiff ;

( 2 ) he acted

reasonabl y in responding to Smith ' s assault on Hill ; and (3)
Rivello is entitled to qualified immun i ty .

See Doc . 94 , p . 3 .

Standard of Review

Summary judgment is proper if "the pleadin gs , the discover y
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant i s entitled to a judgme nt as a matter of law . "

Fed . R. Civ .

P . 56(c) ; See also Saldana v . Kmart Corp ., 260 F . 3d 228, 231 - 32 (3d
Ci r . 200 1 ) .

A factual dispute is "mat e rial"

if it might affect t he

outcome of the suit under the applicable law .
Lobby , Inc. , 477 u . s . 242 , 248 ( 1986).

Anderson v . Liberty

A factual dispute is

"genuine" only if there is a suf ficient evidentiary basis that
would allow a reasonable fact - finder to return a verdict for the
non - moving party .

rd . at 248 .

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
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the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the non­
moving party may not simply s
its complaint.
(1986).

back and rest on the allegations in

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must "go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial."

.

(internal quotations omitted); see

alsQ Saldana, 260 F.3d at 232 (citations omitted).
judgment should be granted where a party "f
sufficient to establ

Is to make a showing

h the existence of an element essential to

that party's case, and on wh
trial."

Summary

that pa

Celotex, 477 U.S. at 322-23.

will bear the burden at
"'Such affirmative evidence

- regardless of whether it is direct or circumstantial

must

amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.'

II

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d eire 1989».
Failure to Protect

According to the Amended Complaint, on July 12, 2010

Plaintiff was housed

the prison's Restricted Housing Unit

(RHU).

The RHU is described by Hill as being under the direct supervision

4

of Defendant Rivello.

See id. at

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13.

On said date, Plaintiff

states that after signing up for morning exercise he watched
Rivello and another correctional officer escort Inmate Devon Smith,
a prisoner with a known history of assaultive behavior, to a
recreation cage.

During this escort, Smith was purportedly wearing

a spit hood and was tethered.

See id.

Inmate Smith is also

described as having past history of placement on single yard
restriction 1 and having been sanctioned to wear a spit hood. 2

After

Smith was placed in the outdoor recreation, the spit hood and
tether were removed.
Rivello then allegedly directed a correctional officer to
put Plaintiff in the recreation cage next to the one occupied by
Inmate Smith.

See id. at

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18.

Although Plaintiff told the

escorting officer that he did not wish to be placed in a recreation
cage next to Smith, his request was ignored.

Smith proceeded to

defecate in the cage and strike the Plaintiff with globs of urine,
saliva, and feces.

Inmate Smith also attempted to spit on another

prisoner in a separate adjoining recreation cage.
Rivello's initial sumnary judgment argument generally
maintains that "Plaintiff cannot show theat Rivello possessed
actual knowledge that Smith had a propensity of violence towards
Plaintiff, or towards other inmates while in yard."

Doc.

94, p. 7.

The Remaining Defendant adds that Inmate Smith had no history of

1. Single yard restriction means that the inmate goes to the
exercise yard alone.
2. The wearing of a spit hood prevents an inmate from spitting on
prison staff and other inmates.
5

throwing or threatening to throw bodily waste at other prisoners.
Furthermore, since Smith was not subject to any exercise
restrictions when Hill was assaulted the decision by Rivello to
place Plaintiff in a recreation cage next to Hill does not support
a failure to protect claim.
The Eighth Amenament's prohibition of cruel and unusual
punishment imposes duties on prison officials to provide prisoners
with the basic necessities of life, such as food, clothing,
shelter, sanitation, medical care and personal safety.

See Farmer

v. Brennan, 511 U.S. 825, 832 (1994); Helling v. MCKinney, 509 U.S.
25, 31 (1993). Under Farmer, an inmate must surmount the high
hurdle of showing that a prison official actually knew or was aware
of a substantial risk to inmate safety and deliberately disregarded
that risk.
2001).

Beers-Capitol v. Whetzel, 256 F. 3d 120, 125 (3d Cir.

This requirement of actual knowledge means that "the

official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
must also draw the inference."

Farmer, 511 U.S. at 837.

According to the Amended Complaint and Plaintiff's
deposition testimony, it was well known and documented that Inmate
Smith had a history of spitting and throwing feces/urine on other
prisoners.

The Relnaining Defendant acknowledges that Inmate Smith

previously received three misconducts while housed at the
Montgomery County, Pennsylvania Correctional Facility for throwing
fecal matter on the walls of his cell;

throwing feces from his

cell into the day room; and for defecating and urinating in a cup
and shaking it at staff in a menacing manner.
6

See Doc. 94, p. 8.

In addition, the Remaining Defendant admits that while
confined at SCI-Smithfield Smith received two misconducts for
spitting and threatening to spit at staff members as well as
covering his cell camera with feces.

Rivello assert that although

those actions could support a determination that Smith had a
propensity to smear feces in his cell and assault staff "they in no
way indicate that Smith would treat his fellow inmates in the same
manner."

Id. at p. 9.

It is undisputed that Plaintiff was given a misconduct for
throwing feces from his cell into the dayroom which would contain
other prisoners at a former place of confinement.
days leading up to the assault on the Plaintiff,

Second, in the
Smith received

earlier misconducts for: covering cell camera with feces (July I,
2010); threatening to spit on an officer (July 3, 2010); flooding
his housing unit (July 3, 2010); covering up h

cell camera (July

6, 2010); and attempting to spit on an officer (July 6, 2010);
See Doc. 89-3, Attachment C.
Although the Remaining Defendant has come forward with
supporting evidence showing that Inmate Smith had no restrictions
on exercise as of July 12, 2010.

The undisputed record supports

Plaintiff's assertion that it was well known that Smith had a
propensity for spitting and throwing feces/urine and was arguably
in the midst of a period of disturbing behavior.

The Remaining

Defendant also does not dispute that on the date of assault, Smith
was escorted to the recreation cage in a spit hood while tethered.
Based upon those considerations, there are clearly facts in
dispute as to whether Rivello possessed actual knowledge that Smith
7

posed a threat to Plaintiff or any other prisoner who would be
placed in an adjoining recreation cage.]

This Court does not agree

with the Remaining Defendant's assessment that Smith's prior
actions could not support a determination that Smith could attack
his fellow inmates with feces.

Accordingly, Lieutnenat Rivello's

request for summary judgment will be denied with respect to the
claim that the Remaining Defendant failed to protect Plaintiff's
safety by deliberately placing him at

sk for an attack by Inmate

Smith.
Failure to Intervene

The Amended Complaint also asserts that Lieutenant Rivello,
despite having a sufficient number of correctional staff in the
vicinity as well as access to appropriate security equipment,
failed to timely intervene when Smith began assaulting Plaintiff.
Rivello seeks entry of summary judgment with respect to this
claim on the grounds he followed Department of Corrections (DOC)
policy in responding to the incident.

The Remaining Defendant

states in a supporting declaration under penalty of perjury that he
f

attempted to control the situation by issuing Smith a verbal

order to cease.
When that effort proved unsuccessful, the Remaining
Defendant briefed his shift commander Captain Sunderland, as
required under DOC pOlicy.
a compliance team.

Sunderland ordered Rivello to assemble

While the compliance team was being briefed by

3.
For instance while Smith mnay not have been on a spit hood
restriction, Rivello does not dispute that the inmate was brought
to the recreation cage in a spit hood.
8

Rivello, he was notified that Smith was now attempting suicide by
hanging himself with his jumpsuit from the fence of the recreation
cage.

Rivello promptly ended the briefing and the compliance team

immediately responded to the suicide attempt and secured Smith.
Once Inmate Smith was controlled, Plaintiff was taken from the
yard, examined by a nurse, given clean clothes and a shower.
Rivello estimates that from the time Inmate Smith began throwing
feces to the point that the compliance team responded, a period of
ten to fifteen minutes elapsed.
A prison official who witnesses a prisoner being physically
assaulted by another corrections officer but who fails to take any
steps to protect the prisoner violates the Eighth Amendment.
Smith, 2002 WL_1283688 at *7-8; Estate of Davis v. Delo, 115 F.3d
1388, 1395-96 (8 th Cir. 1997); Gaudreault v. Salem, 923 F.2d 203,
207 n. 3 (pt Cir.), cert. denied,

500 U.S. 956 (1990)

("an officer

who is present at the scene and who fails to take reasonable steps
to protect the victim of another officer's use of excessive force
can be held liable
(2d Cir. 1988)

.. ") ;

=-~==~~~~~~~=:,

839 F.2d 9, 11

("a law enforcement officer has an affirmative duty

to intercede on the behalf of a c

zen whose constitutional rights

are being violated in his presence by other of

rs.");

Greenfield, 87 F. Supp.2d 1210, 1216 (D. Kan. 2000); Ruble v. King,
911 F. Supp. 1544, 1555-56 (N.D. Ga. 1995).
Based upon undisputed evidence submitted by the Remaining
Defendant, this was not a case where Lieutenant Rivello just stood
by and watched an assault and refused to personally intervene or
permit other correctional staff to do so.
9

On the contrary, when

Pia

iff was being attacked by Inmate Smith undisputed evidence

shows that Rivello timely responded in the manner required under
controlling DOC regulations.

Accordingly, the request for entry of

summary judgment will be granted in favor Lieutenant Rivello with
respect to the failure to intervene claim.
Oualified Immunity

The Remaining Defendant also argues that he is entitled to
qualified immunity because there was no violation of Plaintiff's
constitutional rights and even in the event that this Court found a
violation "

is not clear that a reasonable corrections officer

would understand that his actions violated any constitutional
rights."

Doc. 94, p. 14.

Qualified immunity

lS

an affirmative defense which must be

pleaded by the defendant official.

Verney v. Pennsylvania Turnpike

Comm'n, 881 F. Supp. 145, 149 (M.D. Pa. 1995).
fitzgerald,

In Harlow v.

457 U.S. 800 (1982), the United States Supreme Court

held "that government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known."

Id. at 818; Sherwood v. Mulvihill, 113 F.3d 396, 398-99

(3d Cir. 1997); Showers v. Spangler, 957 F. Supp. 584, 589 (M.D. Pa.
1997).

It has also been held that "qualified immunity is

coextensive for suits brought against state officials under 42
U.S.C. § 1983 (1982), and for suits brought directly under the
Constitution against federal officials."

People of Three Mile

Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 144 n.9
10

(3d Cir. 1984) (citing Butz v. Economou, 438 U.S. 478, 504 (1978)).
The united States Supreme Court in Saucier v. Katz, 533 U.S.
194 (2001), subsequently established a two part test for analyzing
qualified immunity claims.

See also Curley v. Klem, 298 F.3d 271

(3d Cir. 2002); Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002).
The initial inquiry in a qualified immunity examination is whether
"the facts taken in the light most favorable to the plaintiff show
a constitutional violation.

u

Bennett, 274 F.3d at 136.

The second

prong requires a determination as to whether the constitutional
right at issue was clearly established.

If so, then a court must

inquire as to "whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.
Saucier, 533 U.S. at 201.

u

A determination that the conduct

violated a clearly established constitutional right precludes the
granting of qualified immunity.

Courts have the discretion in

deciding which of the two prongs should be addressed first.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
With respect to the first prong of Saucier this Court has
already concluded that viewing the facts in a light most favorable
to the Plaintiff, it could be determined that the failure to
intervene claim does not allege a constitutional violation which

lS

sufficient to survive the pending summary judgment motion.
Accordingly, Remaining Defendant's pending argument that there was
clearly no violation of Hill's constitutional rights is
meritiorious with respect to that allegation.

However, since this

Court has also decided that the failure to protect claim should

11

proceed, the argument that said claim does not adequately allege a
constitutional violation lacks merit.
In regards to the second prong of Saucier, "a right is
clearly established if it would be clear to a reasonable officer
that the conduct was unlawful in the situation he confronted."
Jones v. City of Jersey City, 2002 WL 1877036 *1 (3d Cir. 2002).
Courts considering a request for qualified immunity must ask if a
reasonable officer would have understood that his actions were
prohibited.

Bennett, 274 F.3d at 136.

Under the standards

developed in Jones and Bennett, it must be shown that the
correctional official knew the constitutional right existed,
ignored the right, and deliberately acted in violation of that
right.
First, assuming that the failure to intervene claim did
adequately raise a claim of constitutional misconduct, since
Rivello's actions were timely taken and in accordance with DOC
policy, this Court agrees that any reasonable correctional official
\vould not have understood that his actions were unlawful.

Thus,

assuming arguendo that the failure to intervene was
unconstitutional, the Remaining Defendant would be entitled to
qualified immunity
Second, any reasonable correctional staff member would have
understood that the failure to protect Plaintiff's safety all
by the Amended Complaint, if proven, could constitute a violation
of the

soner's clearly established constitutional rights.

Furthermore, as discussed earlier the undisputed facts presented to
this court could support a finding that such a constitutional
12

violation occurred.

For the same reasons outlined, a finding of

qualified immunity in regards to the claim that Plaintiff was
placed in harm's way due to deliberate indifference by

enant

Rivello is not warranted.
In conclusion, the Remaining Defendant's motion (Doc. 87)
seeking summary judgment will be granted in part.

Summary judgment

will be granted with respect to the failure to intervene claim but
denied in regards to the failure to protect allegation.
appropriate Order will enter.

I!::::!.c~~y tfc::ec

united States District Judg

DATED: MARCH

1, 417
2016

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An