DICKSON v. SCI GREENSBURG et al
Filing
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MEMORANDUM AND OPINION re 55 MOTION for Summary Judgment filed by PETERSON, NELSON, 74 MOTION for Summary Judgment filed by CHAD B. DICKSON. Signed by Magistrate Judge Maureen P. Kelly on 11/8/2011. [A copy of this Opinion has been sent to Plaintiff via US mail on this day at his current address of record]. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHAD B. DICKSON,
Plaintiff,
v.
SCI-GREENSBURG; SGT. NELSON;
OFFICER PETERSON; and
SUPERINTENDENT WAKEFIELD,
Defendants.
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Case No. 2:08-cv-01102
Magistrate Judge Maureen P. Kelly
[Re: ECF Nos. 55, 74]
OPINION
KELLY, Magistrate Judge
Chad B. Dickson, ("Dickson" or “Plaintiff”), an inmate at the State Correctional
Institution at Retreat ("SCI-Retreat), has brought this civil rights action pursuant to 42 U.S.C. §
1983, alleging that Defendants violated his rights under the Eighth and Fourteenth Amendments
to the Constitution while he was incarcerated at the State Correctional Institution at Greensburg
("SCI-Greensburg"). Specifically, Plaintiff alleges that on August 2, 2006, he was assaulted by
inmate Casey Pelton ("Pelton") in the Restrictive Housing Unit ("RHU") exercise yard at SCIGreensburg and that Defendants Sergeant Nelson ("Nelson") and Officer Peterson ("Peterson")
(collectively, "Defendants"),1 not only failed to protect him but that they conspired with Pelton to
have Plaintiff assaulted. [ECF No. 27, pp. 2-3].
Presently before the Court are Defendants' Motion for Summary Judgment [ECF No. 53],
and Plaintiff's Renewed Motion for Summary Judgment [ECF No. 74]. For the reasons that
follow, Defendants' motion will be granted and Plaintiff's motion will be denied.
1
Although SCI Greensburg and David Wakefield were also named as Defendants, they have been dismissed from
the case pursuant to a Motion to Dismiss filed by Defendants on April 19, 2010. See [ECF Nos. 28, 34].
I.
FACTUAL AND PROCEDURAL BACKGROUND
According to the record, Plaintiff was in the RHU exercise yard on August 2, 2006, with
six other inmates, including Pelton. [ECF 55-2, pp. 11-12]. The yard is two flights of steps
down from the RHU and contains six or seven exercise cages that the inmates are locked into
either individually or in tandem. [ECF No. 55-2, pp. 5-6]. Two corrections officers are normally
in the RHU yard: one sits at the top of the steps and the other monitors the cages down below.
[ECF No. 55-2, p. 6]. On August 2, 2006, it appears that Nelson was at the top of the steps and
Peterson was down by the cages. [ECF No. 55-2, p. 13]. Plaintiff asserts that at some point,
Nelson ordered Peterson to open the cages simultaneously and send the inmates up so that they
could be returned to their cells. [ECF. No. 27, p. 2; ECF No. 71, p. 2]. Plaintiff, Pelton, and the
other inmates were then ordered out of their cage and handcuffed by Peterson. [ECF No. 71, p.
2]. It is undisputed that while they were standing on the walk in front of the cages with only
Peterson present, Pelton slipped out of his handcuffs and assaulted Plaintiff, kicking him and
striking him about his face and head with his fists and the handcuffs, until Nelson and Peterson,
among others, intervened. [ECF No. 27, p. 2; ECF No. 71, p. 2].
Plaintiff submitted a Section 1983 complaint on August 7, 2008 [ECF No. 3], which he
amended on January 30, 2009 [ECF No. 13], alleging that his rights were violated by Defendants
because they failed to protect him from the assault. In particular, Plaintiff alleged that
Defendants' failure to protect him stemmed from their failure to follow Department of
Corrections' policies and procedures for escorting prisoners. Defendants filed a Motion to
Dismiss the Amended Complaint on June 6, 2009, arguing, inter alia, that by failing to plead any
facts from which a fact-finder could infer that Defendants were aware of any danger to Plaintiff
or that any of the Defendants subjectively made a decision to disregard a known risk of harm to
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him, Plaintiff had merely set forth a claim of negligence in the supervision of inmates and not a
constitutional violation. 2 [ECF Nos. 21, 22]. Plaintiff subsequently requested and was granted
leave to amend his complaint a second time. [ECF Nos. 25, 26]. Plaintiff filed a Second
Amended Complaint ("the Complaint") on April 16, 2010, alleging for the first time that the
assault was pre-arranged by Defendants and inmate Pelton. [ECF No. 27, p. 3].
Defendants
filed a Motion to Dismiss Second Amended Complaint on April 19, 2010, which was denied as
to Plaintiff's Eighth and Fourteenth Amendment claims against Nelson and Peterson and granted
in all other respects. [ECF Nos. 28, 29, 34]. Following the close of discovery, the instant
motions for summary judgment were filed and are now ripe for review.
II.
STANDARD OF REVIEW
Summary judgment is warranted where 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). The moving party has the initial burden of demonstrating that a fact cannot be
genuinely disputed by citing to record evidence, "including depositions, documents,
electronically stored information, affidavits or declarations, stipulations ... admissions,
interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant can also support the assertion that a fact cannot
be genuinely disputed by showing that “an adverse party cannot produce admissible evidence to
support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P.
56(c)(2). See Burgos-Cintron v. Nyekan, 2011 WL 4361601 at *5 (D.N.J. Sept. 19, 2011).
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In order to make out a claim under Section 1983, "a plaintiff must demonstrate that the conduct of which he is
complaining has been committed under color of state or territorial law and that it operated to deny him a right or
rights secured by the Constitution and laws of the United States. The plaintiff must also establish that it was the acts
of the defendant which caused the constitutional deprivation." Mosley v. Yaletsko, 275 F. Supp. 2d 608, 613 (E.D.
Pa. 2003) (citations omitted).
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Once the moving party has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Celotex
Corp. v. Catrett, 477 U.S. at 323; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254,
1258 (D.N.J. 1994), aff'd, 67 F.3d 291 (3d Cir. 1995). Thus, to withstand a properly supported
motion for summary judgment, the nonmoving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party. Andersen v. Liberty Lobby, 477
U.S. 242, 248 (1986). See U.S. v. Corry Comm'ns, 2011 WL 4572012 at *2 (W.D. Pa. Sept. 30,
2011) (when a motion for summary judgment is made and supported, “an opposing party may
not rely merely on allegations or denials in its own pleading; rather, its response must -- by
affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue
for trial). Moreover, the mere existence of some evidence favoring the non-moving party will
not defeat the motion. There must be enough evidence with respect to a particular issue to
enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby,
477 U.S. at 248. See McGreevy v. Stroup, 413 F.3d 359, 363-64 (3d Cir. 2005). In evaluating
the evidence at the summary judgment stage, the court must view the facts in the light most
favorable to the non-moving party and draw all reasonable inferences in its favor. Matreale v.
N.J. Dep’t of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007).
III.
DISCUSSION
The only claims remaining before the Court are Plaintiff's Eighth and Fourteenth
Amendment claims against Nelson and Peterson for allegedly conspiring to have Plaintiff
assaulted.3 Defendants do not dispute that the assault occurred. Nor do they dispute that they
3
Plaintiff's Fourteenth Amendment claim is properly evaluated under the same standard as his Eighth Amendment
claim as the Eighth Amendment standard barring the federal government from inflicting cruel and unusual
(footnote continued . . . . )
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would be liable to Plaintiff for violating his Constitutional rights had they conspired to have him
assaulted. Rather, Defendants contend that they are entitled to summary judgment because
Plaintiff is unable to produce any admissible evidence from which a fact-finder could conclude
that Defendants, in fact, engaged in a conspiracy. Plaintiff counters, arguing that he is entitled to
summary judgment because Defendants have failed to demonstrate that they did not conspire to
have him assaulted, and has submitted a series of exhibits that purportedly show the existence of
a conspiracy. See [ECF Nos. 74-1 to 74-25].
“In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that
persons acting under color of state law conspired to deprive him of a federally protected right . . .
.” Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir.1999), superseded by
statute on other grounds as stated in P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585
F.3d 727, 730 (3d Cir. 2009). Establishing the existence of a conspiracy requires concerted
action and the existence of an agreement. Watson v. Sec'y Pa. Dept. of Corr., 2011 WL 2678920
at *5-6 (3d Cir. July 08, 2011), citing Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533
(10th Cir.1998). Because "'the linchpin for conspiracy is agreement' . . . concerted action,
without more, cannot suffice to state a conspiracy claim." Id., quoting Bailey v. Bd. of Cnty.
Comm'rs, 956 F.2d 1112, 1122 (11th Cir. 1992). See Startzell v. City of Phila., 533 F.3d 183 (3d
Cir. 2008), quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970) ("[t]o constitute a
conspiracy, there must be a 'meeting of the minds'").
Here, the record is devoid of any admissible evidence to support a finding that Nelson
and Peterson had an understanding or an agreement to have Plaintiff assaulted. The evidence
punishments is incorporated against the states through the Fourteenth Amendment's substantive due process clause.
See Estelle v. Gamble, 429 U.S. 97, 101-02 (1976). See Sistrunk v. Lyons, 646 F.2d 64, 66-67 (3d Cir. 1981);
Furman v. Ga., 408 U.S. 238, 422 n. 4 (1972) (Blackmun, J., dissenting) (“the tests for applying these two
provisions are fundamentally identical.”).
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proffered by Plaintiff demonstrates only that the assault occurred [ECF Nos. 74-1, 74-7, 74-8,
74-9 to 74-18, 74-21]; that various corrections officers who were assigned to the RHU on the day
of the assault were reprimanded for failing to follow proper procedures for escorting prisoners
[ECF Nos. 74-2 to 74-6]; and that Plaintiff submitted a grievance and an appeal, dated
September 18, 2006, in which he states that the incident would not have occurred if procedures
had been followed [ECF Nos. 74-19, 74-20]. Although Plaintiff has also submitted Nelson's and
Peterson's answers to his Requests for Admissions and their responses to his Interrogatories and
Requests for Production of Documents, nothing contained therein remotely suggests that
Defendants entered into an agreement to have Plaintiff assaulted. See [ECF Nos. 74-22 to 7425].
Further, although Plaintiff testified at his deposition that he received information from
five individuals suggesting that Defendants had conspired to have him assaulted, Defendants
have objected to Plaintiff's testimony in this regard as being vague, speculative and inadmissible
hearsay. Indeed, the record shows that Plaintiff named Corrections Officer ("CO") Guizze; CO
Williams; Inmate Hector Vasquez; Inmate Hutchinson; and Inmate Samson as individuals who
provided him with information that Defendants had engaged in a conspiracy to have him
assaulted. According to Plaintiff's testimony, CO Guizze came to his cell at some point after the
assault and told Plaintiff that “they arranged this.” [ECF No. 55-2, pp. 14-15, 18, 21].
Defendants have objected to this evidence as being vague and amounting to nothing more than
Guizze's speculation about the causes of the assault. Indeed, Plaintiff does not assert that he
knows how Guizze allegedly arrived at the conclusion that they arranged the assault nor does he
offer any evidence that the term “they” actually refers to Defendants. Moreover, as Defendants
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correctly argue, absent Guizze's appearance at trial, his alleged statements are inadmissible as
hearsay. See Fed. R. Evid. 801-804.
With respect to CO Williams, Plaintiff testified that several days after the assault
Williams told him that it was “clearly evident” that the assault was “arranged.” [ECF No. 55-2,
pp. 14-16, 21]. Williams' statement, however, does not indicate that it was Defendants that
arranged the assault nor provide evidence that they entered into an agreement. As such,
Defendants have also objected to this evidence as being vague and speculative and because it
would be inadmissible as hearsay. See Fed. R. Evid. 801-804.
As well, Plaintiff has asserted that on the day after the assault an inmate named
"Hutchinson" told him that the assault was planned and that Hutchinson knew from Pelton that
the assault was going to happen two weeks beforehand. [ECF No. 55-2, pp. 21-25]. Although
Plaintiff claims that Hutchinson prepared two affidavits setting forth these facts, Plaintiff has not
provided them to the Court and apparently no longer has possession of them. [ECF No. 55-2, pp.
21-24]. Moreover, Plaintiff acknowledged at his deposition that he could not recall the source
of Hutchinson's information regarding the existence of a conspiracy. [ECF No. 55-2, pp. 24, 25].
More importantly, however, Plaintiff testified that does not know Hutchinson's first name and
does not know his current whereabouts. [ECF No. 55-2, p. 21]. His unavailability to testify at
trial clearly renders Plaintiff's testimony in this regard hearsay and is inadmissible. See Fed. R.
Evid. 801-804.
Plaintiff also testified that inmate Hector Vasquez told him that Peterson had conveyed to
Vasquez that he "regretted" what he did. [ECF No. 55-2, p. 27]. Defendants object to this
evidence as offering no evidentiary value in light of Plaintiff's acknowledgement that Peterson's
alleged statement to Vasquez could just easily be interpreted as regretting that he did not put the
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handcuffs on Pelton properly as regretting that he planned the assault with Nelson and Pelton.
[ECF No. 55-2, p. 27].
Finally, Plaintiff claims that an inmate named "Samson" told him that the assault was
arranged. [ECF No. 55-2, p. 29]. As argued by Defendants, however, Plaintiff does not know
the source of Samson's purported knowledge, and absent his testimony at trial, Sampson's alleged
statement would be inadmissible. See Fed. R. Evid. 801-804.
Revised Federal Rule of Civil Procedure 56(c)(2) provides that “[a] party may object that
the material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The Advisory Committee Notes further
counsels that "[t]he objection functions much as an objection at trial, adjusted for the pretrial
setting. The burden is on the proponent to show that the material is admissible as presented or to
explain the admissible form that is anticipated." See AtPac, Inc. v. Aptitude Solutions, Inc., 787
F. Supp. 2d 1108, 1111 (E.D. Cal. 2011) ("[e]ven if the non-moving party's evidence is presented
in a form that is currently inadmissible, such evidence may be evaluated on a motion for
summary judgment so long as the moving party's objections could be cured at trial"); In re
Flonase Antitrust Litigation, --- F. Supp. 2d ---, 2011 WL 4464823 at *4 (E.D. Pa. Sept. 26,
2011), quoting Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 329 n.6 (3d Cir. 2005) ("[t]he
Supreme Court and Third Circuit, though, have 'not precluded reliance on unauthenticated
documents to oppose a motion for summary judgment, so long as they are ultimately reduc[ible]
to admissible evidence'").
Because Defendants have objected to Plaintiff's purported evidence as inadmissible, it is
therefore incumbent upon Plaintiff to show either that the statements allegedly made by CO
Guizze, CO Williams, and inmates Vasquez, Hutchinson, and Samson are admissible as
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currently presented or that Defendants' objections can be cured at trial. It is clear that the
evidence at issue is inadmissible as presented, i.e., through Plaintiff's testimony. Thus, Plaintiff
is required to show that he can overcome Defendants' objections at trial. Plaintiff, however, has
not specifically addressed Defendants' objections in his briefs or other submissions but merely
refers generally to unnamed "witnesses" who would testify to "facts." [ECF No. 60, p. 2; ECF
No. 61, pp. 2, 4; ECF No. 61-1, pp. 2, 4; ECF No. 64, p. 5]. Indeed, Plaintiff has failed to
discuss the availability of the witnesses, their willingness to testify, or suggested how he would
overcome the speculative nature of their various statements. Nor has he addressed the apparent
unavailability of Hutchinson and Sampson. As such, Plaintiff has failed to meet his burden.
IV.
CONCLUSION
Because it is Plaintiff's burden to prove that a conspiracy existed, and not Defendants'
burden to prove that one did not, Plaintiff's failure to proffer admissible evidence establishing
that Defendants agreed to have him assaulted or explain how the inadmissibility will be cured at
trial is fatal to his claims. For these reasons, Defendants' Motion for Summary Judgment [ECF
No. 53] is GRANTED, and Plaintiff's Renewed Motion for Summary Judgment [ECF No. 74] is
DENIED.
An appropriate order follows.
/s Maureen P. Kelly
U.S. Magistrate Judge
Dated: 8 November, 2011
cc:
Chad B. Dickson
FF-5942
SCI Retreat
660 State Route 11
Hunlock Creek, PA 18621
Counsel of Record via ECF
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