Poindexter v. Kauffman et al

Filing 51

MEMORANDUM (Order to follow as separate docket entry) re 38 MOTION for Summary Judgment / 48 MOTION for Reconsideration Signed by Honorable Malachy E Mannion on 3/31/21. (sm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DEWELL POINDEXTER,

:

Plaintiff

:

CIVIL ACTION NO. 3:19-0770

:

(JUDGE MANNION)

v.
SUPT. KEVIN KAUFFMAN, et al.,
Defendants

:
:

MEMORANDUM
I. Background
Plaintiff, an inmate formerly confined 1 in the State Correctional
Institution, Huntingdon, (“SCI-Huntingdon”) Pennsylvania, filed this civil
rights action pursuant to 42 U.S.C. §1983. (Doc. 1). Plaintiff names as
Defendants Superintendent Kevin Kauffman and Correctional Officer Rush
Stigers. Id.
Plaintiff alleges that Officer Stigers has “been harass[ing] [him] for over
a year” and that he has “file[d] many grievances on Officer Stigers for over
pat search of [him] and pat search in the crotch area touch [Plaintiff’s] penis
many times and makes sexual advances to [Plaintiff] and threat[en]

Plaintiff is currently housed in the Forest State Correctional Institution,
Marienville, Pennsylvania.
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[Plaintiff].” (Doc. 1). Plaintiff claims that Superintendent Kauffman failed to
protect Plaintiff from the actions of Officer Stigers Id.
Plaintiff files the instant action seeking to “remove Officer Stigers and
charge[s] filed against him for sexual harassment and charge[s] against
Supt. Kevin Kauffman for cover up criminal act by this officer involving
criminal conspiracy.” Id. For relief, Plaintiff seeks damages for “the mental
[and] physical abuse” because “now [he is] very depress[ed]” and “paranoid.”
Id.
Presently before the Court is Defendants’ motion for summary
judgment. (Doc. 69). The motion is fully briefed and is ripe for disposition.
For the reasons that follow, the Court will grant Defendants’ motion for
summary judgment.

II. 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
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is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
A disputed fact is “material” if proof of its existence or nonexistence
would affect the outcome of the case under applicable substantive law. Id. 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 Bhd. of Carpenters and Joiners of Am.,
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.
Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse
Electric Co., 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 his pleadings with
affidavits, depositions, answers to interrogatories or the like in order to
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demonstrate specific material facts which give rise to a genuine issue.
Celotex Corp. 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 Indus. Co. v. Zenith Radio,
475 U.S. 574, 586 (1986). When Rule 56 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. See Harter v. G.A.F. Corp., 967 F.2d
846, 851 (3d Cir. 1992).
In determining whether an issue of material fact exists, the court must
consider the evidence in the light most favorable to the nonmoving party.
White, 826 F.2d at 59. In doing so, the Court must accept the nonmovant’s
allegations as true and resolve any conflicts in his favor. Id. (citations
omitted). However, a party opposing a summary judgment motion must
comply with Local Rule 56.1, which specifically directs the oppositional party
to submit a “statement of the material facts, responding to the numbered
paragraphs set forth in the statement required [to be filed by the movant], as
to which it is contended that there exists a genuine issue to be tried”; if the
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nonmovant fails to do so, “[a]ll material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted.”
L.R. 56.1. A party cannot evade these litigation responsibilities in this regard
simply by citing the fact that he is a pro se litigant. These rules apply with
equal force to all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL
2853261, at *5 (M.D. Pa. July 20, 2010) (pro se parties “are not excused
from complying with court orders and the local rules of court”); Thomas v.
Norris, No. 02-CV-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006)
(pro se parties must follow the Federal Rules of Civil Procedure).

III.

Statement of Undisputed Facts2

The Local Rules of Court provide that in addition to filing a brief in
opposition to the moving party’s brief in support of its motion, “[t]he papers
opposing a motion for summary judgment shall include a separate, short and
concise statement of material facts responding to the numbered paragraphs
set forth in the statement [of material facts filed by the moving party]...as to
which it is contended that there exists a genuine issue to be tried.” M.D. Pa.
L.R. 56. 1. The Rule further requires the inclusion of references to the parts
of the record that support the statements. Id. Finally, the Rule states that the
statement of material facts required to be served by the moving party will be
deemed to be admitted unless controverted by the statement required to be
served by the opposing party. See id. Unless otherwise noted, the factual
background herein is taken from Defendants’ Rule 56.1 statement of material
facts. (Doc. 39). Plaintiff did not file a response to Defendants’ statement of
facts in compliance with M.D. Pa. L.R. 56.1. Thus, the Court deems the facts
set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R.
Civ. P. 56(e)(2).
2

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Within the Department’s facilities, for obvious security reasons, every
inmate is subject to search at any time. (Doc. 39, Statement of Material
Facts). A pat search is a hands-on search conducted over the inmate’s
clothing. Id. A proper pat search of an inmate includes searching the groin
area, which means moving hands up into this area and gently, but firmly,
manipulating the area to feel for contraband. Id. Poindexter was an inmate
at SCI-Huntingdon, where Stigers was a corrections officer and Kauffman
was the Facility Manager. Id. Poindexter was pat searched by Stigers a total
of three times, with the first one occurring because Poindexter had
magazines that did not have his name on them. Id. The pat search consisted
of Stigers moving his hands up Poindexter’s inner thighs and manipulating
his genital area. Id. Poindexter was fully clothed the entire time. Id. The
second and third searches were conducted in the same manner. Id.
Poindexter filed grievances about the first two searches. Id. He did not
grieve the third search. Id. After the second grievance, Poindexter’s
complaint was forwarded to the Prison Rape Elimination Act (“PREA”)
section to conduct an inquiry. Id. Poindexter was interviewed, and video of
the pat search was reviewed. Id. The pat search was found to be conducted
within policy. (Doc. 39-6 at 4, Report of Incident). After the third search,

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Poindexter then wrote to Kauffman to complain about Stigers. (Doc. 39). This
was the first and only time he wrote to Kauffman. Id.

IV. Discussion
A. Sexual Assault/Harassment
Defendants seek summary judgment on the ground that the alleged
incidents in which Defendant Stigers allegedly grabbed Plaintiff’s testicle is
insufficient to establish an Eighth Amendment violation. To survive summary
judgment, Plaintiff must produce sufficient evidence establishing that: (1) he
was incarcerated under conditions posing a substantial risk of serious harm
(an objective inquiry), which “ ‘may be established by much less than proof
of a reign of violence and terror,’ but requires more than a single incident or
isolated incidents”; (2) the prison official acted with deliberate indifference to
a substantial risk to Plaintiff’s health and safety (a subjective inquiry); and (3)
the prison official’s deliberate indifference caused Plaintiff harm. Bristrian v.
Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citing Farmer v. Brennan, 511 U.S.
825, 834 (1994)).
Punishment is cruel and unusual under the Eighth Amendment when
it inflicts unnecessary and wanton pain, and it includes punishment lacking
any penological justification. Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
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“A corrections officer’s intentional contact with an inmate’s genitalia or other
intimate area, which serves no penological purpose and is undertaken with
the intent to gratify the officer’s sexual desire or humiliate the inmate, violates
the Eighth Amendment.” Banks v. Rozum, 639 Fed.Appx. 778, 782 (3d Cir.
2016) (quoting Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015)).
However, where the search does not extend beyond the scope needed to
support a legitimate penological purpose of prison security, there is no
constitutional violation. Id.; see also Banks v. Rozum, Civ. No. 14-27J, 2015
WL 1186224, at *12 (W.D. Pa. March 13, 2015) (citing Grummett v. Rushen,
779 F.2d 491, 495 (9th Cir. 1985) (“[R]outine pat-down searches, which
include the groin area, and which are otherwise justified by security needs,
do not violate the [F]ourteenth [A]mendment....”)), aff’d, 639 Fed.Appx. 778
(3d Cir. 2016). As one court has explained:
[a]ny manual search of an individual’s body will require some
amount of manipulation of the genitals in order to accomplish the
purpose of the search. Although “grabbing” and “tugging” could
cause some discomfort and embarrassment, it does not rise to
the level of “unnecessary and wanton infliction of [pain]” so long
as it occurs as part of an otherwise justified search.
Banks, 2015 WL 1186224, at *13 (alternations in original) (quoting Cherry v.
Frank, Civ. No. 03-129, 2003 WL 23205817, at *12 (W.D. Wis. Dec. 4,
2003)); see also Wolfe v. Beard, Civ. No. 10-2566, 2013 WL 2370572, at *12
(E.D. Pa. May 31, 2013) (citing Hughes v. Smith, 237 Fed.Appx. 756, 759
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(3d Cir. 2007); Kiser v. Kramer, Civ. No. 10-609, 2010 WL 4513421, at *3
(D. Del. Nov. 2, 2010)) (concluding that “[t]he [c]ourt’s legal conclusion that
[defendant’s] search did not violate the Eighth Amendment is bolstered by
the fact that other courts within this circuit have determined that a frisking
officer’s contact with an inmate’s genitals or private areas during a single patdown search is insufficient to constitute an Eighth Amendment violation”);
Harris v. Zappan, No. 97-4957, 1999 WL 391490, at *1, 3 (E.D. Pa. May 29,
1999) (reasoning that sexually explicit comments, fondling, and rubbing
prisoner’s thigh and breasts did not rise to the level of an Eighth Amendment
violation); see also Sharpe v. Costello, Civ. No. 06-1493, 2007 WL 1098964,
at *4 (M.D. Pa. Apr. 11, 2007) (describing applicable case law).
To constitute an Eighth Amendment claim, the incidents complained of
must be “sufficiently serious” or “cumulatively egregious in the harm they
inflicted.” Chavis v. U.S., 597 Fed.Appx. 38, 41 (3d Cir. 2014) (quoting
Boddie v. Schneider, 105 F.3d 857, 861 (2d Cir. 1997)). “[I]solated episodes
of harassment and touching ... are despicable and, if true, they may
potentially be the basis of state tort actions. But they do not involve a harm
of federal constitutional proportions as defined by the Supreme Court.”
Boddie, 105 F.3d at 861; Chavis, 597 Fed.Appx. at 41; see also Williams v.
Silverman, Civ. No. 12-0974, 2013 WL 6578980, at *4 (E.D. Pa. Dec. 16,
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2013) (dismissing with prejudice claim alleging one instance of inappropriate
touching during pat-down search); Hughes, 237 Fed.Appx. at 759 (affirming
dismissal of Eighth Amendment claim alleging officer touched plaintiff’s
testicles through his clothing during single pat-down frisk).
“Instead, only severe or repetitive sexual abuse has been found to rise
to the level of an Eighth Amendment violation.” Banks, 2015 WL 1186224,
at *14. Compare United States v. Walsh, 194 F.3d 37 (2d Cir. 1999) (stating
that corrections officer who repeatedly steps on inmate’s penis to wantonly
inflict pain violates inmate’s right to be free of cruel and unusual punishment),
with Hughes v. Smith, 237 Fed.Appx. 756, 759 (3d Cir. 2007) (affirming
dismissal of Eighth Amendment claim alleging an officer touched plaintiff’s
testicles through his clothing during a single pat-down frisk), Banks, 639
Fed.Appx. at 782 (affirming dismissal of Eighth Amendment claim for failure
to state a constitutional violation where inmate alleged a correctional officer
roughly groped prisoner’s groin through his pants with an aggressive tight
squeeze on two occasions), Bradley v. United States, 299 F.3d 197 (3d Cir.
2002) (upholding pat-down search by female customs inspector of female
passenger at customs checkpoint where passenger alleged that inspector
inappropriately touched her genitals through her dress), Chavis, 597
Fed.Appx. at 41 (affirming district court’s dismissal of Eighth Amendment
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claim where officer allegedly groped prisoner’s testicles and brushed his
penis while performing a pat-down search because the isolated incident did
not rise to the level of an Eighth Amendment violation), and Watson v. Beard,
Civ. No. 09-087J, 2013 WL 4648323, *9-10 (W.D. Pa. Aug. 28, 2013)
(upholding pat-down search through clothing that included the groin area),
aff’d on other grounds, 448 Fed.Appx. 141 (3d Cir. 2014).
Stigers searched Poindexter a total of three times. Outside of these
searches, there are no other allegations regarding Stigers touching, rubbing,
or fondling. Three occurrences can hardly be considered pervasive,
particularly when Stigers was well within his job duties to search Poindexter
for contraband. While Poindexter may have found these searches offensive,
nothing about the circumstances as detailed in the record before this Court
suggests that Defendant Stigers failed to comport with applicable
constitutional standards, as the Plaintiff’s complaint consists of isolated,
random, painless pat-down searches unaccompanied by any sexual
commentary or other inappropriate behavior by Defendant Stigers during the
frisks at issue. See Davis v. Castleberry, 364 F. Supp. 2d 319, 321–22
(W.D.N.Y. 2005) (finding allegation that officer grabbed inmate’s penis
during routine pat-down insufficient to state constitutional claim and noting
that a legitimate pat-down may require touching inmate’s genital area for the
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search to be effective). Moreover, Plaintiff has failed to raise “more than a
mere scintilla of evidence in [his] favor” in order to overcome Defendants’
summary judgment motion and cannot survive summary judgment by relying
on unsupported assertions or conclusory allegations. See Williams v.
Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). Accordingly,
Stigers is entitled to an entry of summary judgment.
B. Failure to Protect
Plaintiff claims that Defendant Kauffman failed to protect him from the
actions of Officer Stigers. (Doc. 1 at 3).
The Court of Appeals has specifically concluded that “a corrections
officer’s failure to intervene in [an assault] can be the basis of liability for an
Eighth Amendment violation under §1983 if the corrections officer had a
reasonable opportunity to intervene and simply refused to do so.” Smith v.
Messinger, 293 F.3d 641, 650 (3d Cir. 2002); Ricks v. Shover, 891 F.3d 468,
479 (3d Cir. 2018). In order to impose liability under this theory, Poindexter
must produce evidence to show that Defendant Kauffman “ignored a realistic
opportunity to intervene” in an assault. Smith, 293 F.3d at 652; Ricks, 891
F.3d at 479. The evidence in this case, however, cannot support a finding
that Defendant Kauffman was in a position to observe, let alone intervene in
Stigers’ alleged assault upon Poindexter. Moreover, the Court finds,
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however, that the evidence relating to the three pat searches is insufficient
to support a separate Eighth Amendment violation and, therefore, it cannot
support a claim against Defendant Kauffman based upon his failure to
intervene, and Defendant Kauffman is entitled to summary judgment.
C. §1983 Conspiracy
Plaintiff seeks to bring “charge[s] against Supt. Kevin Kauffman for
cover up criminal act by this officer involving criminal conspiracy.” (Doc. 1 at
3).
The United Sates Supreme Court has outlined the required elements
of a §1983 conspiracy claim. To succeed, the plaintiff must prove (1) that
defendants deprived him of a right secured by the Constitution and laws of
the United States and (2) that defendants deprived plaintiffs of this
constitutional right under color of law. Adickes v. S.H. Kress & Co., 398 U.S.
144, 150 (1970). To sustain a claim of conspiracy under §1983, there must
be a finding of an actual violation of a constitutional right. Dykes v.
Southeastern Pennsylvania Transp. Authority, 68 F.3d 1564, 1570 (3d Cir.
1995).
In this case, the Court has found that the record fails to reveal an
underlying §1983 violation and thus a §1983 conspiracy claim cannot stand.

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Therefore, Defendants’ are entitled to summary judgment on Plaintiff’s
conspiracy claim.

VI. Conclusion
Based upon the undisputed facts of record, Defendants’ motion for
summary judgment will be granted.
An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
Dated: March 31, 2021

19-0770-01

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