Smith v. Donate et al

Filing 161

MEMORANDUM AND ORDER: 1) The court adopts the r and r of MJ Carlson 150 .2) Summary judgment 102 is granted in favor of Dfts Donate, Maloney, Hebron, Kearney, and Chiarelli and against Pltf.3) Summary judgment is granted in favor of Mallick and ag ainst Pltf on the issue of conditions of confinement.4) Summary judgment is granted in favor of all Dfts, except Blume, Mallick and Talutto, and against Pltf, on Pltfs medical deliberate neglect claims. Summary judgment is denied as to Blume, Mallick , and Talutto on Pltfs claim that a caustic cleaning substance was sprayed in his eyes on 11/20/08, and dfts Blume, Mallick, and Talutto ignored his request for help, and denied him water to rinse out his eyes, for a period of time before transportin g Smith to be seen by medical personnel.5) Summary judgment is denied as to Dfts Carrol and Zemantauski on Pltfs failure to protect or intervene claim.6) Summary judgment is denied on Pltfs excessive force claim on the cell extraction of 11/21/08 as to Dfts Shanley, Blume and Mallick.7) Summary judgment is denied as to Dfts Moskwa and Talutto on the excessive force claim on the use of handcuffs.8) Summary judgment is denied as to Dfts Capone, Baum, Talutto and Mallick on the excessive force clai m arising out of the cell extraction.9) Summary judgment is denied as to the failure to protect claim againstCapone, Blume, Talutto, and Mallick on the verbal and deliberate disclosure toinmates of information relating to why Plaintiff was present at the prison (intent to incite inmates to assault Smith). Summary judgment is GRANTED as to the remaining Dfts on Pltfs claims which relate solely to alleged verbalharassment.10) The entry of the grants of summary judgment above shall be deferred until the conclusion of the case.11) A separate case management order setting forth a trial date and thedeadlines for the balance of this case will issue separately.Signed by Honorable Sylvia H. Rambo on 08/15/12 (ma, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALAN SMITH,
Plaintiff
v.
JANINE DONATE, et al.,
Defendants

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CIVIL NO. 4:10-CV-2133
(Judge Rambo)
(Magistrate Judge Carlson)

MEMORANDUM
I.

Background
The captioned action was filed pursuant to 42 U.S.C. § 1983 by a pro se

Plaintiff, Alan Smith, who is a state prisoner. Presently before the court is a report
and recommendation filed by Magistrate Judge Carlson, recommending disposition
of Defendants’ motion for summary judgment. Plaintiff has filed objections to the
report and recommendation and the matter is ripe for disposition.
II.

The Magistrate Judge’s Recommendations
Smith’s complaint is composed of 224 paragraphs. The magistrate

judge has carefully parsed through the complaint and has discerned that the claims
presented in the complaint are Eighth Amendment claims and a Due Process claim.
The Eighth Amendment claims are (1) use of excessive force by others;
(2) failing to intervene in use of excessive force by others; (3) failing to protect
Smith from inmate assaultive violence and promoting such violence by labeling
Smith as a child molester and a cooperating witness; (4) deliberate indifference to
Smith’s medical needs; and (5) failing to provide Smith with conditions of
confinement which met the minimal civilized measure of life’s necessities. The

magistrate judge has accurately stated the law applicable to Eighth Amendment
claims and has accurately applied the law to the facts of this case.
A. Use of Excessive Force and Failure to Intervene Claims
On the issue of excessive force in the cell extraction, the magistrate
judge recommended that summary judgment be denied as to Defendants Stanley,
Blume and Mallick. On the issue of failure to protect during the cell extraction, the
magistrate judge recommended that summary judgment be denied as to Defendants
Carrol and Zemantauski. On the other excessive force claims – use of handcuffs
while being transported within the prison, the magistrate judge recommended that
summary judgment be denied as to Defendants Talutto and Moskwa.
B. Failure to Protect Smith From Inmate Assaultive Violence as a
Result of Labeling Smith as a Child Molester and Cooperating
Witness
The magistrate judge distinguished this claim as being different from
mere verbal harassment. The magistrate judge opined that a jury could find that if
staff were found to have intentionally created disclosures that openly identified
Smith as a child molester and a cooperating witness, such could create and foster
inmate violence toward Smith; thus, a failure to protect claim might be sustained.
The magistrate judge recommended that summary judgment, as to this claim, be
denied as to Defendants Capone, Blume, Mallick and Talutto.
C. Medical Care Claims
The magistrate judge noted these claims were general and vague and
often the complaints were leveled against unnamed health care providers. No
personal involvement was alleged specifically against any of the correctional officers
named in the complaint. The magistrate judge recommended that summary
judgment be granted to the Defendants on this claim with the exception of Smith’s
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claim against Defendants Blume, Mallick and Talluto for allegedly waiting four and
one-half to seven hours after Smith requested immediate help after he had a caustic
cleaning substance sprayed in his eyes.
D. Conditions of Confinement
The magistrate judge cited to the specific claims as to the conditions of
confinement alleged in the complaint and cited applicable case law where the
instances cited by Plaintiff have not been considered worthy of relief. The
magistrate judge recommended that Defendants Chiarelli and Kearney be granted
summary judgment on these claims.
E. Due Process Violations
Plaintiff’s claim of Due Process violations stems from a disciplinary
proceeding against Plaintiff which resulted in Plaintiff receiving 100 days of
disciplinary custody. The disciplinary action involved Defendants Maloney and
Hebron. Citing to Sandin v. Conner, 515 U.S. 472 (1995), the magistrate judge
found that regardless of the factual dispute surrounding the disciplinary hearing, the
penalty imposed did not implicate a liberty interest triggering due process protection
under the Fourteenth Amendment.
F. Claims Against Warden Donate
Throughout the complaint, Plaintiff makes claims against Warden
Donate, couched in such terms as:
Defendant Jaime Donate is the Warden of Lackawanna
County Prison. She is legally responsible for the daily
operation of the Lackawanna County Prison and for the
welfare of all the inmates at that prison.
(Doc. 1 at p. 207.) The magistrate judge relied on Rode v. Dellariciprete, 845 F.2d
1195, 1207 (3d Cir. 1988), and subsequent cases, which held that “liability cannot
be predicated solely the operation of respondeat superior.” Furthermore,
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participation in the after-the fact review of a grievance or appeal is not enough to
establish the personal involvement requirement. Id. at 1208. In Brooks v. Beard,
167 Fed. Appx. 923, 925 (3d Cir. 2006) (nonprecedential), the court held that a
state prisoner’s allegation that prison officials and administrators responded
inappropriately, or failed to respond to a prison grievance, did not establish that the
officials and administrators were involved in the underlying allegedly
unconstitutional conduct.
G. Summary of Recommendations
Based on the foregoing, the magistrate judge has made the following
recommendations:
1. The District Court should GRANT summary judgment
in favor of defendants Donate, Maloney, Hebron, Kearney,
and Chiarelli.
2. The District Court Should GRANT summary judgment
in favor of the remaining defendants on Smith’s conditions
of confinement claims.
3. The District Court Should GRANT summary judgment
in favor of the remaining defendants on Smith’s medical
deliberate neglect claims, with the exception of Smith’s
claim that a caustic cleaning substance was sprayed in his
eyes on November 20, 2008, and defendants Blume,
Mallick and Talutto ignored his request for help, and
denied him water to rinse out his eyes, for approximately
four and one half hours before transporting Smith to be
seen by medical personnel.
4. The District Court Should GRANT summary judgment
in favor of the remaining defendants on Smith’s claims
which relate solely to alleged verbal harassment.
5. The District Court should DENY summary judgment on
the remaining excessive force, medical deliberate
indifference, and failure to protect claims lodged by Smith
against defendants Carrol, Shanley, Blume, Mallick,
Zemantauski, Moskwa, Talutto and Capone.
(Report and Recommendation (doc. 150) at pp. 47-48.)
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III.

Plaintiff’s Objections to the Report and Recommendation
Smith has filed objections to the report and recommendation.

Defendants have not filed objections.
A. Objection I
Plaintiff claims that the narrative by the magistrate judge is different
from that presented in the complaint but fails to specify or identify the alleged errors
of the magistrate judge. This court has read the complaint and the Plaintiff’s brief in
opposition; however, the court is not going on its own hunting expedition in an
attempt to discern inconsistencies.
B. Objection II
Plaintiff points to a discrepancy in the report and recommendation as to
the time lapse between when Smith had a substance thrown in his eyes and when he
obtained medical treatment. This issue is not material at this point because the
recommendation is for summary judgment to be denied as to the Defendants on that
claim.
C. Objection III
Plaintiff claims that the magistrate judge erred in failing to present the
alleged facts that workers were throwing cups of urine and feces into his cell. He
claims these incidents would support a conditions of confinement claim. Plaintiff
refers to paragraphs 34, 35 and 36 of the complaint. However, paragraphs 34 and 36
do not identify which Defendants this claim is against. Paragraph 35 alleges
Defendant Talutto of failing to obtain medical treatment for Plaintiff for a fist injury
and for the burning in his eyes when disinfectant was sprayed in them. The report
and recommendation, however, recommends that summary judgment be denied as to
Defendants Blume, Mallick and Talutto on the claim of failure to obtain medical
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treatment for the burning in Plaintiff’s eyes. Thus, this objection is without
foundation.
D. Objection IV
Smith claims that the magistrate judge failed to present numerous
claims regarding violations of his conditions of confinement and invites this court to
thoroughly read the complaint and his brief in opposition to the Defendants’ motion
for summary judgment. Middle District Local Rule 72.3 requires that objections to
the report and recommendation specifically identify the portions to which objection
is made and the basis for that objection. He has not done so.
In the report and recommendation, the magistrate judge addressed
Plaintiff’s allegations on the following conditions of confinement: (1) interruption of
water service; (2) inadequate bedding, meals, and hygiene products; (3) deprivation
of meals; (4) being without clothes. Each of these claims were addressed citing to
case law supporting why these claims did not rise to a constitutional violation.
Plaintiff does not counter the case law cited by the magistrate judge. This objection
is without merit.
E. Objection V
Plaintiff claims that the magistrate judge overlooked the conditions of
confinement claim alleged against Defendants Donate, Blume, Hebron, Maloney,
Talutto, and Moskwa. This is a general assertion not supported by specific incidents.
Instead, once again, Plaintiff directs the court’s attention to the complaint as a whole
and to page 4 of document 124 (Plaintiff’s brief in opposition to Defendants’ motion
for summary judgment). Plaintiff’s has not supplied specific allegations and this
court is not required to make specific objections on his behalf. Therefore, this
objection is without merit and fails to comply with Local Rule 72.3.
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F. Objection VI
Plaintiff objects to the magistrate judge’s finding that no due process
claim is viable in this case. Smith totally ignores the case law cited by the magistrate
judge that governs due process in a prison setting. The objection is without merit.
G. Objection VII
Plaintiff objects to the finding that Warden Donatge be dismissed from
this action but does not address the case law applicable to this issue. Instead, he once
again invites this court to read certain documents. Plaintiff has failed to cite to any
case law in support of his objection to refute the magistrate judge’s conclusion and
recommendation. This objection is without merit.
H. Objection VIII
Plaintiff objects to the recommendation that summary judgment be
granted to Defendant Kearney. In the complaint, Plaintiff asserts that when he
complained to Defendant Kearney about his living conditions, Kearney made a
statement, “I was told to make sure that you get nothing while you are at this prison.”
(Doc. 1, ¶ 140.) Verbal threats or harassment does not constitute cruel and unusual
punishment. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000). Kearney’s
statement, without more, does not rise to a constitutional violation. This objection is
without merit.
I. Objection IX
Smith objects to the recommendation that Chiarelli be dismissed from
this action. The only allegation against this defendant is in paragraph 52 of the
complaint in which Plaintiff alleges that Chiarelli shut off the water in his cell for
several hours. The magistrate judge addressed this issue, cited cases relative to this
issue and proposed that the facts of this case regarding the shutting off of the water
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did not rise to a violation of conditions of confinement. Plaintiff does not cite to
opposing case law. The objection is without merit.
J. Objection X
Plaintiff objects to the recommendation that summary judgment be
granted to Maloney and Hebron on the due process claim. This is the same objection
raised in Objection VI above and the same holding applies. The objection is without
merit.
K. Objection XI
This objection is a repetition of Plaintiff’s objection to the magistrate
judge’s findings on the conditions of confinement. This objection has been
addressed above and will not be repeated.
L. Objection XII
Plaintiff claims that Defendant Moskwa should be added to Blume,
Mallick and Talutto for failure to seek medical aid for Plaintiff’s eye injury and cites
to paragraphs 53 to 55 of the complaint. Nowhere in these paragraphs does
Moskwa’s name appear. This objection is without merit.
M. Objection XIII
Plaintiff objects to the magistrate judge’s recommendation to grant
summary judgment in favor of defendants on Plaintiff’s claims which relate solely to
alleged verbal harassment. For the reasons stated under Objection VIII above, this
objection is without merit.

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N. Objection XIV
Smith objects to the dismissal of Warden Donate. This issue has been
addressed above under Objection VII and will not be rehashed here. Again, the
objection is without merit.
O. Objection XV
Plaintiff states he believes all named defendants involved in this cell
extraction should be included in his failure to intervene claim. Once again, Plaintiff
refers to various pages and paragraphs of the complaint and his brief in opposition to
the motion for summary judgment without specificity. The magistrate judge has
recommended to maintain the failure to intervene claim against Defendants Carrol
and Zemantauski. This objection has no merit.
P. Objection XVI
In this objection, Plaintiff reargues his lack of medical care claims.
These issues have been discussed above and will not be repeated here.
IV. Conclusion
This court has read the complaint (doc. 1), Plaintiff’s brief in
opposition to the motion for summary judgment (doc. 124), the report and
recommendation of the magistrate judge (doc. 150), and the law applicable to the
claims in this case. The court will adopt the report and recommendation. An
appropriate order will be issued.
s/Sylvia H. Rambo
United States District Judge
Dated: August 15, 2012.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALAN SMITH,
Plaintiff
v.
JANINE DONATE, et al.,
Defendants

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CIVIL NO. 4:10-CV-2133
(Judge Rambo)
(Magistrate Judge Carlson)

ORDER
For the reasons set forth in the accompanying memorandum, IT IS
HEREBY ORDERED THAT:
1) The court adopts the report and recommendation of Magistrate Judge
Carlson (doc. 150).
2) Summary judgment is granted in favor of Defendants Donate,
Maloney, Hebron, Kearney, and Chiarelli and against Plaintiff.
3) Summary judgment is granted in favor of Mallick and against
Plaintiff on the issue of conditions of confinement.
4) Summary judgment is granted in favor of all Defendants, except
Blume, Mallick and Talutto, and against Plaintiff, on Plaintiff’s medical deliberate
neglect claims. Summary judgment is denied as to Blume, Mallick, and Talutto on
Plaintiff’s claim that a caustic cleaning substance was sprayed in his eyes on
November 20, 2008, and defendants Blume, Mallick, and Talutto ignored his request
for help, and denied him water to rinse out his eyes, for a period of time before
transporting Smith to be seen by medical personnel.
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5) Summary judgment is denied as to Defendants Carrol and
Zemantauski on Plaintiff’s failure to protect or intervene claim.
6) Summary judgment is denied on Plaintiff’s excessive force claim on
the cell extraction of November 21, 2008 as to Defendants Shanley, Blume and
Mallick.
7) Summary judgment is denied as to Defendants Moskwa and Talutto
on the excessive force claim on the use of handcuffs.
8) Summary judgment is denied as to Defendants Capone, Baum,
Talutto and Mallick on the excessive force claim arising out of the cell extraction.
9) Summary judgment is denied as to the failure to protect claim against
Capone, Blume, Talutto, and Mallick on the verbal and deliberate disclosure to
inmates of information relating to why Plaintiff was present at the prison (intent to
incite inmates to assault Smith). Summary judgment is GRANTED as to the
remaining Defendants on Plaintiff’s claims which relate solely to alleged verbal
harassment.
10) The entry of the grants of summary judgment above shall be
deferred until the conclusion of the case.
11) A separate case management order setting forth a trial date and the
deadlines for the balance of this case will issue separately.
s/Sylvia H. Rambo
United States District Judge
Dated: August 15, 2012.

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