GRIFFIN v. OVERMYER et al

Filing 89

MEMORANDUM ORDER re 69 Defendants' Objections to Draft Final Jury Instructions 70 Defendants' Objections to Draft Verdict Form, and 74 Defendants' Objections to Plaintiff's Witnesses. Signed by Judge Arthur J. Schwab on 1/17/2018. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIAN E. GRIFFIN,
Plaintiff,

16cv0021 Erie
ELECTRONICALLY FILED

v.
LT. SETTNEK, OFFICER WOODS, and
OFFICER MOORE,
Defendants.

MEMORANDUM ORDER RELATED TO DEFENDANTS’ OBJECTIONS
DOC. NOS. 69, 70, AND 74
Before the Court are three sets of Objections raised by Defendants. Defendants’ first set
of Objections (doc. no. 69) is to the Court’s Draft Final Jury Instructions. See doc. no. 66.
Defendants’ second set of Objections (doc. no. 70) is the Court’s Draft Verdict Form. See doc.
no. 67. Defendants’ third set of Objections (doc. no. 74) is to Plaintiff’s Witnesses. See doc. no.
42. Plaintiff filed a Response to Defendants’ Objections to his Witnesses. Doc. no. 88.
These matters are now ripe for disposition.
I. Defendants’ Objections to the Court’s Draft Final Jury Instructions – doc. no. 69
A. Defendants’ Objection to the Failure to Protect/Supervise Instruction
Defendants argue that the Model Jury Instruction on “Failure to Protect and Supervise”
should not be read to the jury in tis totality. Defendants suggest that the only evidence
referenced by Plaintiff in his pretrial filings (and presumably the only evidence that will be
presented at time of trial) will relate to the second prong of the Model Jury Instruction relating to
an officer’s failure to protect/supervise.

The Model Jury Instruction found in the Court’s Draft reads as follows:
Failure to Protect/Supervise
Plaintiff contends that Defendant Settnek’s subordinate, either
Defendant Woods or Defendant Moore, violated Plaintiff’s federal rights,
and that Defendant Settnek should be liable for the conduct. If you find
that Defendant Woods or Defendant Moore violated Plaintiff’s federal
rights, then you must consider whether Defendant Settnek caused his
subordinate’s conduct.
A supervisor is not liable for such a violation simply because he is
the supervisor. To show that Defendant Settnek caused his subordinate’s
conduct, Plaintiff must show one of three things:
First: Defendant Settnek directed the subordinate to take the action
in question;
Second: Defendant Settnek had actual knowledge of his
subordinate’s violation of Plaintiff’s rights and he acquiesced in that
violation; or
Third: Defendant Settnek, with deliberate indifference to the
consequences, established and maintained a policy, practice or custom
which directly caused the violation.
As I mentioned, the first way for Plaintiff to show that Defendant
Settnek is liable for his suordinate’s conduct is to show that Defendant
Settnek directed his subordinate to engage in the conduct. Plaintiff need
not show that Defendant Settnek directly, with his own hands, deprived
Plaintiff of his rights. The law recognizes that a supervisor can act through
others, setting in motion a series of acts by subordinates that the
supervisor knows, or reasonably should know, would cause the
subordinates to violate the plaintiff’s rights. Thus, Plaintiff can show that
Defendant Settnek caused the conduct if Plaintiff shows that either
Defendant Woods or Defendant Moore violated Plaintiff’s rights at
Defendant Settnek’s direction.
Alternatively, the second way for Plaintiff to show that Defendant
Settnek is liable for his subordinate’s conduct is to show that Defendant
Settnek had actual knowledge of his subordinate’s violation of Plaintiff’s
rights and that Defendant Settnek acquiesced in that violation. To
“acquiesce” in a violation means to give assent to the violation.
Acquiescence does not require a statement of assent, out loud:
acquiescence can occur through silent acceptance. If you find that
Defendant Settnek had authority over Defendant Moore or Defendant
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Woods and that Defendant Settnek actually knew that one of the other
Defendants was violating Plaintiff’s rights but failed to stop him from
doing so, you may infer that Defendant Settnek acquiesced in the
subordinate’s conduct.
Finally, the third way for Plaintiff to show that Defendant Settnek
is liable for his subordinate’s conduct is to show that Defendant Settnek,
with deliberate indifference to the consequences, established and
maintained a policy, practice or custom which directly caused the conduct.
Plaintiff alleges that Defendant Settnek should have followed the prison’s
Use of Force and Inmate Abuse policies to prevent Defendant Woods or
Defendant Moore from using excessive force against him.
To prove that Defendant Settnek is liable for his subordinate’s
conduct based on a failure to follow the established prison policies,
Plaintiff must prove all of the following four things by a preponderance of
the evidence:
First: Defendant Settnek’s conduct in supervising his subordinates
created an unreasonable risk that one of the subordinates would use
excessive for against Plaintiff;
Second: that Defendant Settnek was aware that this unreasonable
risk existed;
Third: that Defendant Settnek was deliberately indifferent to that
risk;
Fourth: that the use of excessive force against Plaintiff resulted
from Defendant Settnek’s failure to follow the prison’s established Use of
Force and/or Inmate Abuse policies.
Defendants contend that based on Plaintiff’s deposition and his submissions to date, the
Court abbreviate and modify this instruction so that only the second prong (“[s]econd:
Defendant Settnek had actual knowledge of his subordinate’s violation of Plaintiff’s rights and
he acquiesced in that violation”), is presented to the jury. Defendants suggest the failure to
protect/supervise instruction read as follows:
In this case, the Plaintiff is invoking the Second prong or way to
show that Defendant Settnek is liable for his subordinate’s conduct.

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The second way for Plaintiff to show that Defendant Settnek is
liable for his subordinate’s conduct is to show that Defendant Settnek had
actual knowledge of his subordinate’s violation of Plaintiff’s rights and
that Defendant Settnek acquiesced in that violation. To “acquiesce” in a
violation means to give assent to the violation. Acquiescence does not
require a statement of assent, out loud: acquiescence can occur through
silent acceptance. If you find that Defendant Settnek had authority over
Defendant Moore or Defendant Woods and that Defendant Settnek
actually knew that one of the other Defendants was violating Plaintiff’s
rights but failed to stop him from doing so, you may infer that Defendant
Settnek acquiesced in the subordinate’s conduct.
Doc. no. 69, p. 3.
Although Defendants’ proffered jury instruction is more succinct, at this juncture, the
Court OVERRULES this Objection to the complete model jury instruction. The Court finds that
the complete model jury instruction relating to the failure to protect and supervise should be read
to the jury, which will be instructed to apply the facts as they find them to the law the Court
provides. It is up to the jury what, if any, evidence supports the facts necessary to find that
Defendant Settnek either: (1) directed the other Defendant(s) to take action, (2) had actual
knowledge of the other Defendant(s) alleged violation of Plaintiff’s rights and acquiesced in that
violation, or (3) with deliberate indifference to the consequences, established and maintained a
policy, practice or custom which directly caused the violation.
B. A. Defendants’ Objection to the Punitive Damage Instruction
Next Defendants object to the Court’s inclusion of a punitive damage charge in the Draft
instruction. Specifically, Defendants note that “punitive damages are only available when a
defendant acts maliciously or wantonly in violating the plaintiff’s rights.” Doc. no. 69, p. 3.
Defendant suggests that there will be no such evidence of malicious or wanton behavior
presented at time of trial. Although such evidence seems unlikely to surface, Plaintiff is still

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entitled to present any evidence he may possess to persuade the jury that Defendant(s)’ alleged
actions or inactions constitute malicious and/or wanton behavior.
The Court OVERRULES this Objection, without prejudice, to Defendants’ raising this
issue at the close of Plaintiff’s evidence and/or after all evidence is presented at the trial.

II. Defendants’ Objections to the Court’s Draft Verdict Form – doc. no. 70
The Defendants’ raised two objections to the Draft Verdict Form. The First Objection is
that the punitive damages inclusion on the Draft Verdict Form should be excluded. The Court
OVERRULES this Objection, without prejudice, to Defendants’ raising this issue at the close of
Plaintiff’s evidence and/or after all evidence is presented at the trial, for the same reason set forth
immediately above.
The second objection is that the compensatory damages inclusion on the Draft Verdict
Form be excluded. The Court OVERRULES the Defendants’ objection. The Court finds that its
Draft Verdict Form adequately indicates that if the Jury finds that Plaintiff proved, by a
preponderance of the evidence, that Defendant Woods or Defendant Moore used excessive force
against him, only then are the Jury members to consider a compensatory damage award which
must be at least one dollar ($1.00). Similarly, the Court finds that its Draft Verdict Form Form
adequately indicates that if the Jury finds that Plaintiff proved prove, by a preponderance of the
evidence, that Defendant Settnek showed a deliberate indifference to a substantial risk of serious
harm to Plaintiff, only then are the Jury members to consider a compensatory damage award
which must be at least one dollar ($1.00).

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III. Defendants’ Objections to Plaintiff’s Witnesses – doc. no. 74
Defendants raised Objections to three of Plaintiff’s witnesses providing testimony at time
of trial. Those three witnesses were inmate John Passamore, Captain Carter, and Lieutenant
Dickey. See doc. no. 74. Plaintiff filed a Response to these Objections. See doc. no. 88.
With respect to Inmate John Passamore, Defendants contend that he should not be
permitted to testify because he was not present at the time of the incident – the punch Plaintiff
allegedly sustained by a correctional officer while in the medical unit on August 29, 2015. In
sum, Defendants argue that inmate John Passamore has no first-hand knowledge of the incident
being tried.
In response, Plaintiff counters that inmate John Passamore will testify that there is “a
pattern of abuse” at this Correctional Facility and will offer testimony about his own experiences
where he was wrongly attacked by correctional officer(s). Plaintiff suggests that John
Passamore’s testimony is evidence of the officers’ lack of training and discipline.
The question for the Court is one of relevance. The Court finds that Mr. Passamore does
not have any first-hand knowledge of the incident which took place on August 29, 2015 – and
this alleged incident is what gives rise to Plaintiff’s claim and upcoming jury trial. Although Mr.
Passamore did not witness the event in question, he may have encountered these same
Defendants through his own alleged incidents at the facility.
In light of the uncertainty as to the particular details of Mr. Passamore’s testimony, the
Court will allow Mr. Passamore to be questioned outside the presence of the Jury, so that the
Court may ascertain if any of his testimony is relevant to this proceeding. If the Court
determines his testimony is completely irrelevant to this proceeding, he will not be permitted to

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testify in the Jury’s presence. Conversely, if the Court finds that any portion of his testimony is
indeed relevant to this proceeding, he will be permitted to testify, but his testimony will be
limited to those matter(s) which the Court deems relevant. Therefore, the Court DEFERS
RULING on this Objection until Mr. Passamore can be questioned outside the Jury’s presence.
With respect to Captain Carter and Lieutenant Dickey, Defendants argue that this
testimony constitutes inadmissible hearsay. Plaintiff’s Response indicates that he wants these
officers to testify as to what they told Plaintiff after they reviewed the video of the incident.
Given Plaintiff’s response to Defendants’ objection, the Defendants’ objection is OVERRULED.

SO ORDERED, this 17th day of January, 2018.

s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:

All counsel of record and
Brian Griffin (AS2054)
SCI Mahanoy
301 Morea Road
Frackville, PA 17932

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