Francis v. Fuller et al

Filing 47

MEMORANDUM (Order to follow as separate docket entry) re Defendants' motion to Dismiss 17 Signed by Honorable James M. Munley on 8/8/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDDIE FRANCIS, JR.,

:
CIVIL NO. 3:14-cv-1248
:
Plaintiff
:
:
(Judge Munley)
v.
:
:
B. FULLER, et al.,
:
:
Defendants :
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Freddie Francis, Jr. (“Francis” or “Plaintiff”), at all times relevant a
federal inmate incarcerated at the United States Penitentiary at Canaan (“USP-Canaan”),
Waymart, Pennsylvania, commenced this Bivens1 action action on June 30, 2014. (Doc.
1). Named as defendants are the following individuals: Correctional Officer B. Fuller
(“Fuller”), Correctional Officer M. Kubicki (“Kubicki”), SIS Officer E. Hayden
(“Hayden”), Warden D. Ebbert (“Ebbert”), Physician’s Assistant R. Carey
(“Carey”)(improperly identified as Caley); Physician’s Assistant E. DiMicco,
(“DiMicco”)(improperly named as “Dimmico”), Health Service Assistant J. Potope
(“Potope”), Doctor B. Buschman (“Buschman”), Psychologist C. Heigel (“Heigel”),
Doctor E. Santos (“Santos”), Nurse Waldman (“Waldman”) (incorrectly named as
1

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Bivens
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 courts to obtain an award of
monetary damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478, 504
(1978).

“Walman”), Registered Nurse S. Sholder (“Shoulder”)( improperly identified as
“Should”), Health Services Administrator K. Dewald (“Dewald”), and Health Services
Assistant R. Parkyn (“Parkyn”)( incorrectly identified as “Parkin”).
Presently pending is Defendants’ motion (Doc. 17) to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(1) and (6), and for summary judgment pursuant to Federal
Rule of Civil Procedure 56. For the reasons that follow, the motions will be granted in
part and denied in part.
I.

Motion to Dismiss
A.

Standards of Review

A motion to dismiss pursuant to Rule 12(b)(1) contests the court’s authority to
hear and decide the case. Federal courts are courts of limited jurisdiction; accordingly,
every case begins with the presumption that the court lacks jurisdiction to hear it. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The party
invoking jurisdiction has the burden of demonstrating that subject matter jurisdiction
exists. See Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of
complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P.
12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must
“accept as true all [factual] allegations in the complaint and all reasonable inferences that
can be drawn therefrom, and view them in the light most favorable to the plaintiff.”
Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d
2

347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts
contained in the complaint, it “may also consider matters of public record, orders,
exhibits attached to the complaint and items appearing in the record of the case.” Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the defendant
notice of what the . . . claim is and the grounds upon which it rests.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the face of a Rule
12(b)(6) motion, the court must conduct a three-step inquiry. See Santiago v. Warminster
Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, “the court must ‘tak[e] note
of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim should be
separated; well-pleaded facts must be accepted as true, while mere legal conclusions may
be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.
2009). Once the well-pleaded factual allegations have been isolated, the court must
determine whether they are sufficient to show a “plausible claim for relief.” Iqbal,
556U.S. at 679 (citing Twombly, 550 U.S. at 555, 556) (requiring plaintiffs to allege facts
sufficient to “raise a right to relief above the speculative level”). A claim “has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the

3

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
B.

Allegations of the Complaint

Francis states the facts of his claim as follows: “Defendants, as each is addressed
on the previous pages, was responsible for the neglect of the medical and phsychiatric
[sic] care of the traumatized Petitioner, who, handcuffed and beaten correctional officers
at USP Canaan [on November 5, 2015], the information of the assault was covered up by
these individuals, as explained, the medical care to the Petitioner denied him. The
supervisors are named as direct-knowledge individuals, not respondeat superior claims.”
(Doc. 1, p. 6).
With respect to his claim that certain defendants used excessive force, Francis
alleges that Defendants Fuller and Kubicki “participated in the assault upon the Petition
on [November 5, 2012], while Petitioner was handcuffed,” and that Defendants Hayden
and Ebbert were “aware of the incident took no actions to either insure the safety of the
Petition from further attacks by the Defendants, nor did [they] discipline the Defendants
for their acts.” (Id. at 3).
As concerns the denial of medical treatment, he alleges that Defendants
Buschman, Heigel, Santos, Waldman, and Sholder denied or failed to render proper
medical care. (Id. at 3, 4). Defendants Carey and DiMicco allegedly ignored his injuries
and perjured medical reports to cover up the source of his injuries. (Id. at 3, 4).
Defendant Potope refused to record the source of his injuries on medical forms,
4

Defendant Parkyn failed to correct errors made by staff and did not attend to his medical
needs, and Defendant Dewald failed to correct her “wrongful medical staff” and denied
him medical care and treatment. (Id. at 4, 5).
C.

Discussion

A Bivens action is “the federal equivalent of the § 1983 cause of action against
state actors.” Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001); see also
Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (per curiam) (noting that “federal
courts have typically incorporated § 1983 law into Bivens actions” because “the two
actions share the same practicalities of litigation.”). Section 1983 of Title 42 of the
United States Code offers private citizens a cause of action for violations of federal law
by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as
follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To establish a claim for relief under Bivens, a plaintiff
must demonstrate: (1) that the conduct was committed by a federal actor, and (2) that
conduct resulted in the deprivation of a right secured by the Constitution or federal laws
of the United States. See Brown, 250 F.3d at 801.
5

1.

Official Capacity

Defendants initially move pursuant to Federal Rule of Civil Procedure 12(b)(1) to
dismiss Francis’s official capacity claims for lack of subject matter jurisdiction. (Doc.
20, p. 10). The United States is generally immune from suit absent an explicit waiver of
sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). This
“immunity is jurisdictional in nature,” FDIC v. Meyer, 510 U.S. 471, 475 (1994), and
extends to government agencies and employees sued in their official capacities. Antol v.
Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). A plaintiff cannot proceed in a Bivens action
for damages against the United States or an agency of the federal government for alleged
deprivation of a constitutional right, see FDIC v. Meyer, 510 U.S. 471, 484–85 (1994), or
against any of the individual defendants in their official capacities because an official
capacity suit is simply another method of pleading an action against an entity of which an
officer is an agent. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (finding that a
suit against a government officer in his or her official capacity is a suit against the
government). Based on the above, the Court is compelled to dismiss Francis’s official
capacity claim against all Defendants for lack of subject matter jurisdiction.
2.

Personal Involvement

Defendants seek dismissal of the Bivens claims lodged against Defendant Ebbert
based on Francis’s failure to allege sufficient personal involvement. (Doc. 20, p. 12-14).
Individual liability will be imposed under Section 1983 only if the state actor played an
“affirmative part” in the alleged misconduct. See Evancho v. Fisher, 423 F.3d 347, 353
6

(3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). In
other words, defendants in Section 1983 civil rights actions “must have personal
involvement in the alleged wrongs . . . shown through allegations of personal direction or
of actual knowledge and acquiescence.” Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir.
2003); Rode, 845 F.2d at 1207-08. When a plaintiff merely hypothesizes that an
individual defendant may have had knowledge of or personal involvement in the
deprivation of his or her rights, individual liability will not follow. Atkinson, 316 F.3d at
271; Rode, 845 F.2d at 1207-08.
Francis alleges in his complaint that Ebbert “took no actions to either insure the
safety of the Petitioner from further attacks by the Defendants, nor did he discipline the
Defendants for their acts.” (Doc. 1, p. p. 3). In his accompanying memorandum, he
argues that “Defendant Ebbert’s mindset should have been to oversee that his subordinate
Officers did their duties correctly, and when he was personally informed, to have
corrected and disciplined them for their acts.” (Doc. 2, p. 2). Clearly, Francis seeks to
impose liability on Ebbert based solely on his supervisory role as the Warden at USPCanaan, and not based on his personal involvement in the underlying alleged
unconstitutional conduct. Inasmuch as Francis’s displeasure with Ebbert’s failure to
“discipline the Defendants for their acts,” arose out of Ebbert’s role in the grievance
procedure, allegations that a prison official responded inappropriately to a complaint or
official grievance, does not establish that the official was involved in the underlying
allegedly unconstitutional conduct. See Rode, 845 F.2d at 1207-08 (concluding that
7

after-the-fact review of a grievance is insufficient to demonstrate the actual knowledge
necessary to establish personal involvement); Brooks v. Beard, 167 F. App’x 923, 925
(3d Cir. 2006); see also Croom v. Wagner, No. 06-1431, 2006 WL 2619794, at *4 (E.D.
Pa. Sept. 11, 2006) (finding that neither the filing of a grievance nor an appeal of a
grievance is sufficient to impose knowledge of any wrongdoing); Ramos v. Pennsylvania
Dept. of Corr, No. 06-1444, 2006 WL 2129148, at *2 (M.D. Pa. July 27, 2006) (holding
that the review and denial of the grievances and subsequent administrative appeal does
not establish personal involvement). Hence, the claims against Defendant Ebbert will be
dismissed.
D.

Conclusion

Based on the foregoing, Defendants’ motion to dismiss Francis’s official capacity
claims for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), will be granted. Defendants’ motion to dismiss the claims lodged against
Defendant Ebbert for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6) will be granted.
II.

Motion for Summary Judgment
A.

Standard of Review

Summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
8

“[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); Brown v.
Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). A disputed fact is “material” if proof of
its existence or nonexistence would affect the outcome of the case under applicable
substantive law. Id.; 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).
The party moving for summary judgment bears the burden of showing the absence
of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Once
such a showing has been made, the non-moving party must 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. FED. R. CIV. P. 56; Celotex,
477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)
(stating that the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts”); Wooler v. Citizens Bank, 274 F. App’x
177, 179 (3d Cir. 2008). The party opposing the motion must produce evidence to show
9

the existence of every element essential to its case, which it bears the burden of proving
at trial, because “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; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he nonmoving party ‘may not rely merely on allegations or denials in its own pleadings; rather,
its response must . . . set out specific facts showing a genuine issue for trial.’” Picozzi v.
Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011) (quoting FED. R. CIV. P. 56(e)(2)).
“Inferences should be drawn in the light most favorable to the non-moving party, and
where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s
must be taken as true.” Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
B.

Statement of Material Facts
1.

Exhaustion of Administrative Remedies

The Federal Bureau of Prisons (“BOP”) Administrative Remedy Program is a
multi-tier process that is available to inmates confined in institutions operated by the
BOP for review of an issue which relates to any aspect of their confinement. (Doc. 19 ,
¶1, citing 28 C.F.R. §542.10-542.19; Doc. 31, p. 9, #1). An inmate must initially attempt
to informally resolve the issue with institutional staff before submitting a Request for
Administrative Remedy. (Id. at 2, citing 28 C.F.R. §542.13(a); Id. at 2). If informal
resolution fails an inmate may submit a formal written Administrative Request via a BP-9
form to the Warden within 20 days of the date on which the basis for the request
10

occurred. (Id. at 3, citing 28 C.F.R. §542.14(a); Id. at 3). The Warden has twenty days to
respond. (Id. at 4, citing 28 C.F.R. §542.18; Id. at 4). An inmate who is dissatisfied with
the Warden’s response may submit an appeal using a BP-10 form to the Regional
Director of the BOP within 20 days of the date the Warden signed the response. (Id. at 5,
citing 28 C.F.R. §542.15(a); Id. at 5). The Regional Director has 30 calendar days to
respond to the appeal. (Id. at 7, citing 28 C.F.R. §542.18; Id. at 7). If the Regional
Director denies the appeal, the inmate may then appeal to the BOP’s General Counsel
within 30 days of the denial. (Id. at 6, citing 28 C.F.R. §542.15(a); Id. at 6). General
Counsel has forty days to respond. (Id. at 7, citing 28 C.F.R. §542.18; Id. at 7).
Francis successfully exhausted the administrative review process concerning the
November 5, 2012 excessive use of force claim against Fuller, Kubicki, and Hayden. (Id.
at 8-11; Id. at 8-11). Defendants contend that Francis failed to exhaust the administrative
review process with respect to his claims that he was denied medical treatment after the
November 5, 2012 incident. (Doc. 19, p. 3, ¶12). Francis disputes this statement offering
that “there were several administrative remedies the Plaintiff had filed after the Nov. 5,
2012 incident,” “one for Hepatitus C, one for the constant Headaches…suffered due to
the excessive force used on Plaintiff by Defendants.” (Doc. 31, p. 10, #12, 13).
2.

Excessive Use of Force Claim

Defendants offer the following version of the November 5, 2012 incident. On
November 5, 2015, Defendants Fuller, Kubicki and Hayden were conducting cell
consolidations in the Special Housing Unit (SHU). (Doc. 19, ¶¶ 14, 21, 28). Defendant
11

Francis submitted to hand restraints to allow placement of inmate Lighting in his cell.
(Id. at 14, 21, 29) Francis became combative, began to threaten staff members, and
refused to accept a cellmate. (Id. at 15, 23, 30). As Lighting was placed in the cell,
Francis attempted to kick Lighting. (Id. at 16; 24, 31). Defendant Fuller immediately
intervened for the protection of Lighting and placed himself between the two inmates.
(Id. at 17, 32). Defendant Kubicki removed Lighting from the cell for his protection and
placed him against the wall. (Id. at 25). Francis began kicking Fuller in the upper right
leg. (Id. at 18, 33). Assistance was requested. (Id. at 19). Once additional staff
members arrived, Kubicki secured Lighting in a nearby cell and then assisted Fuller in
restraining Francis, who continued to be combative with staff. (Id. at 26). Fuller placed
Francis on the floor of the cell. (Id. at 19). During the course of the incident Francis
struck his head on the edge of the bed. (Id. at 20; 27). Once restrained, Defendant
Kubicki escorted Francis to the medical department so that the head injury could be
evaluated. (Id. at 27).
BOP Program Statement 5566.06, Use of Force and Application of Restraints,
authorizes BOP staff to apply physical restraints to an inmate when necessary to gain
control of an inmate, to protect and ensure the safety of inmates, staff and others, or to
prevent serious property damage. (Id. at 36, 37). On November 6, 2012, an “After
Action Review Report” determined that “[t]he actions taken with respect to the use of
force and/or restraints were reasonable and have been reviewed with staff involved.” (Id.
at 35; Doc. 19-1, p. 100).
12

Francis largely disputes Defendants’ version. He declares that prior to the
November 5, 2012 incident, he filed a sexual harassment complaint against Counselor
Compton, and that he was warned that “there was threat made on [his] life that if [he]
ever went to that SHU that [he] would be ‘dealt with’ according to Counselor Compton.”
(Doc. 31, p. 27, ¶ 5).
He states that “on November 5th, 2012, Officer Fuller, Hayden and Kubicki, in
Special Housing Unit, [SHU], at USP Canaan in Waymart, Pennsylvania, approached
[his] cell on B Range with an inmate named Lighter. Once this inmate saw who [Francis]
was, he told CO Fuller that [he] was not from the Midwest. He stated, ‘that Dude is from
the South.’ Lighter refused to come into the cell with [him].” (Doc. 31, p. 27, ¶ 5).
Lighter was struggling with Fuller, Kubicki and Hayden not to come in the cell. (Id.)
Fuller hollered, “Oh, you kick me?” and then chased Francis into the cell and kicked him
in the back. (Id.) He then “grabbed Petitioner by the back of his jumpsuit and slung [his]
head into the bed post with a force so powerful [Francis] fell on [his] knees in a prayer
position.” (Id.) Kubicik and Hayden entered the cell and, rather than stop the assault,
they “joined in with Fuller” in stomping, kicking and beating up Francis. (Id.) He states
that during the incident “I was fully restrained on the ground (floor) with my hands
behind cuffed in my back this is truth.” (Doc. 31, p. 31).
3.

Denial of Adequate Medical Care Claim

Francis was evaluated once he was removed from his cell by Defendant
physician’s assistant Carey. (Doc. 19, ¶ 38; Doc. 31, #38). Defendant Carey noted that
13

Francis had sustained an eight inch laceration to his right superior scalp during the
incident. (Id. at 39, 40; Id. at 39). Defendant applied butterfly wound closures to the
edges of the laceration and a compression dressing was applied before Francis was
transferred to a local hospital for further additional treatment. (Doc. 19, ¶ 41).
Defendant Carey documented that Francis was “unsure of cause of injury” and that he
“was alone at time of trauma.” (Id. at ¶¶ 42, 43; Doc. 31, #43). PA Kaiser examined
Francis on November 6, 2012 after his return from the local hospital and noted that . ion,
it was noted that Francis had sutures placed in the laceration on his scalp and was also
found free of any erythema, drainage, or ecchymosis. (Id. at 44, 45; Id. at 44, 45). PA
Kaiser removed the sutures on November 15, 2012. (Doc. 19, ¶ 46). No issues were
noted during that examination. (Id. at 47).
C.

Discussion
1.

Excessive Use of Force

The use of force against an inmate, that involves the “unnecessary and wanton
infliction of pain,” violates the Eighth Amendment right to be free from cruel and
unusual punishment. Graham v. Connor, 490 U.S. 386, 393–94 (1989); Whitley v.
Albers, 475 U.S. 312, 319 (1986). “[T]he core judicial inquiry is ... whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)), citing
Whitley,475 U.S. 312. Plaintiff does not have to demonstrate serious injury, although the
extent of injuries suffered is a factor in determining whether the use of force was
14

necessary or not. Hudson, 503 U.S. at 7; see also Brooks v. Kyler, 204 F.3d 102, 104 (3d
Cir. 2000) (holding that there is no fixed minimum quantum of injury that a prisoner must
prove he suffered through either objective or independent evidence in order to state a
claim for excessive force). Other factors considered in determining whether the use of
force was wanton and unnecessary include “the need for application of force, the
relationship between that need and the amount of force used, the threat ‘reasonably
perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a
forceful response.” ’ Hudson, 503 U.S. at 7 (quoting Whitley v. Albers, 475 U.S. 312,
320–21 (1986)). Summary judgment is not appropriate if “ ‘it appears that the evidence,
viewed in the light most favorable to the plaintiff, will support a reliable inference of
wantonness in the infliction of pain.’ ” Brooks, 204 F.3d at 106 (quoting Whitley, 475
U.S. at 322). Moreover, the law in this Circuit is also clear that a correctional officer who
ignores a realistic opportunity to intervene in another officer’s use of force violates a
prisoner’s constitutional rights. Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir.
2002).
As is evident from the statement of material facts, supra, the parties advance
vastly different versions of the events of November 5, 2012. Undisputed is that the
incident began with Francis obeying Defendant Fuller’s instructions to submit to behind
the back hand restraints for the purpose of placement of a cellmate in his cell, and ended
with Francis suffering a serious injury to his head that required transport to an outside
hospitable. What transpired in the interim is largely in dispute. In a nutshell, Defendants
15

contend that Francis, who was single-celled at the time, became combative and
threatened staff when they attempted to place Inmate Lighting in his cell. He attempted
to kick Lighting, and succeeded in kicking Defendant Fuller in the upper right leg,
thereby necessitating the use of force to protect both inmates and staff. Francis asserts
that Inmate Lighting resisted entering his cell, and Defendant Fuller falsely claimed that
Francis kicked him, and then gratuitously assaulted him while his hands were restrained
behind his back. He also asserts that Kubicik and Hayden entered the cell and, rather
than offering assistance, they “joined in with Fuller” in stomping, kicking and beating
him. The differing versions go to the very heart of the use of force analysis. Defendants
argue that the force was applied in a good faith effort to protect the inmates and staff
involved and to restore order. Francis contends that the force was malicious and for the
sole purpose of causing harm. There are clearly genuine issues of material fact in dispute
and, when it appears that the evidence, viewed in the light most favorable to the plaintiff,
will support a reliable inference of wantonness in the infliction of pain, as is the case
here, the entry of summary judgment is inappropriate. Hudson , 503 U.S. at 7. The
Eighth Amendment excessive use of force claim against Defendants Fuller, Kubicki and
Hayden will proceed to trial.
Alternatively, Defendants invoke the defense of qualified immunity. “The
doctrine of qualified immunity protects government officials 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.” Pearson v.
16

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks 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.” Pearson, 555 U.S.
at 231. It “provides ample protection to all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Thus, so long
as an official reasonably believes that his conduct complies with the law, qualified
immunity will shield that official from liability.” Sharp v. Johnson, 669 F.3d 144, 159
(2012) (citing Pearson, 555 U.S. at 244). Although qualified immunity is generally a
question of law that should be considered at the earliest possible stage of proceedings, a
genuine dispute of material fact may preclude summary judgment on qualified immunity.
Giles v. Kearney, 571 F.3d 318, 325–26 (3d Cir. 2009).
The qualified immunity claim is traditionally, not mandatorily, analyzed in two
steps. Pearson, 555 U.S. 223; Saucier v. Katz, 533 U.S. 194, (2001). First, the court
must decide whether the facts alleged, taken in a light most favorable to the plaintiff,
makes out the violation of a constitutional right. Saucier, 533 U.S. 194. Next, the court
must examine whether the right at issue was “clearly established” such that a reasonable
official would have known that his conduct was unlawful. Id. It has already been
determined that Francis proffered sufficient evidence to defeat summary judgment on the
excessive force claim. The only issue is the certainty of the constitutional right at the
time the violations occurred. At the time of the incident in the matter sub judice, it was
17

clearly established that prisoners were protected from excessive force and wanton
beatings that exceed correctional officers’ good-faith efforts to maintain discipline and
order. See Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321. It was also clear that a
correctional officer who ignores a realistic opportunity to intervene in another officer’s
use of force violates a prisoner’s constitutional rights. Smith, 293 F.3d at 650–51. When
considering reasonable inferences from the facts favorable to Francis, no reasonable
officer could have believed that this use of force and failure to prevent unwarranted
injury by others using excessive force was constitutional. The Eighth Amendment case
law relating to the excessive use of force was sufficiently clear at the time of the events in
question such that a reasonable officer in the position of individual Defendants would
have understood that their conduct violated the Eighth Amendment. Consequently, they
are not entitled to qualified immunity.
2.

Inadequate medical care

Defendants seek an entry of summary judgment on the grounds that Francis failed
to fully exhaust his administrative remedies as required by 42 U.S. C. § 1997e(a) with
regard to his claim that Defendants Carey, DiMicco, Potope, Buschman, Heigel, Santos,
Waldman, Sholder, Dewald, and Parkyn denied him adequate medical care. The Prison
Litigation Reform Act of 1996 (the “PLRA”) “mandates that an inmate exhaust ‘such
administrative remedies as are available’ before bringing suit to challenge prison
conditions.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016); see Nyhuis v. Reno, 204 F.3d
65, 73 (3d Cir. 2000) (“[I]t is beyond the power of this court—or any other—to excuse
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compliance with the exhaustion requirement, whether on the ground of futility,
inadequacy or any other basis.”). The text “suggests no limits on an inmate’s obligation
to exhaust– irrespective of ‘special circumstances.’” Id. “And that mandatory language
means a court may not excuse a failure to exhaust, even to take such circumstances into
account. See Miller v. French, 530 U.S. 327, 337, 120 S.Ct. 2246, 147 L.Ed.2d 326
(2000) (explaining that “[t]he mandatory ‘shall’ ... normally creates an obligation
impervious to judicial discretion”).” Id. at 1856-57.
Significantly, “the PLRA contains its own, textual exception to mandatory
exhaustion,” i.e. the PLRA requires exhaustion of “available” administrative remedies.
Id. at 1858. “Available” is defined as “capable of use for the accomplishment of a
purpose” and that which “is accessible or may be obtained.” Id. at 1858-59, quoting
Booth v. Churner, 532 U.S. 731, 737-38 (2001). There are three instances in which
administrative remedies are unavailable. “First, as Booth made clear, an administrative
procedure is unavailable when (despite what regulations or guidance materials may
promise) it operates as a simple dead end–with officers unable or consistently unwilling
to provide relief to aggrieved inmates.” Id. at 1859. “Next an administrative scheme
might be so opaque that it becomes, practically speaking, incapable of use.” Id. Finally,
administrative remedies are unavailable “when prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id.

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The PLRA also mandates that inmates “properly” exhaust administrative remedies
before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper
exhaustion demands compliance with an agency’s deadlines and other critical procedural
rules because no adjunctive system can function effectively without imposing some
orderly structure on the course of its proceedings.” Id. at 90–91. Such requirements
“eliminate unwarranted federal-court interference with the administration of prisons, and
thus seek[ ] to ‘affor[d] corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case.’ ” Id. at 93 (quoting Porter v.
Nussle, 534 U.S. 516, 525 (2002).). The requirement may not be satisfied “by filing an
untimely or otherwise procedurally defective . . . appeal.” Woodford, 548 U.S. at 83;
see also Spruill v. Gillis, 372 F.3d 218, 228–29 (3d Cir. 2004) (utilizing a procedural
default analysis to reach the same conclusion). “The level of detail necessary in a
grievance to comply with the grievance procedures will vary from system to system and
claim to claim, but it is the prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 211–212 (2007).
Finally, whether an inmate has exhausted administrative remedies is a question of
law that is to be determined by the court, even if that determination requires the
resolution of disputed facts. See Small v. Camden County, 728 F.3d. 265, 268 (3d Cir.
2013); see also Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010).
The PLRA requires Francis to pursue administrative relief prior to filing suit in
federal court. Francis failed to file any administrative remedies regarding his alleged lack
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of medical care. In an attempt to excuse exhaustion, Francis argues that death threats
allegedly made by Fuller and Kubicki during the assault “would deter a reasonable
prisoner of ordinary firmness from pursuing the grievance process.” (Doc. 31, p. 24).
This argument is completely undermined and rendered meritless by the undisputed fact
that Francis fully exhausted his excessive use of force claim against Fuller and Kubicki.
See Milbrook v. United States, 8 F. Supp.3d 601, 612 (3d Cir. 2014). Defendants are
therefore entitled to an entry of summary judgment on this claim.
D.

Conclusion

Based on the foregoing, Defendants’ motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 will be granted in part and denied in part. The motion
will be granted with respect to the Eighth Amendment denial of medical care claim and
denied as to the Eighth Amendment excessive use of force claim against Defendants
Fuller, Kubicki, and Hayden.
IV.

Conclusion
For the reasons set forth above, Defendants’ motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(1) will be granted. Defendants’ motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) will be granted. And, Defendants’
motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 will be
granted in part and denied in part.
An appropriate Order will enter.

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BY THE COURT:
s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
Dated:

August 8, 2017

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