DELKER v. CORRECTIONS OFFICER ("CO") BLAKER et al
ORDER denying 60 Motion for Summary Judgment filed by Defendant Grainey, as more fully stated in the Order. Signed by Judge Cathy Bissoon on 08/22/2011. (dad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CORRECTIONS OFFICER BLAKER,
Civil Action No. 09-710
Magistrate Judge Bissoon
MEMORANDUM OPINION AND ORDER
For the reasons that follow, the motion for summary judgment filed by Defendant
Grainey (Doc. 60) will be denied.
Daniel Delker (“Plaintiff”) is a state prisoner currently incarcerated at the State
Correctional Institution at Fayette (“SCI-Fayette”), located in LaBelle, Pennsylvania. Plaintiff
brings this suit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging deprivations
of his rights under the Eighth Amendment to the Constitution of the United States stemming
from events that took place during his transfer from the State Correctional Institution at Somerset
(“SCI-Somerset”) to the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg,
Pennsylvania. Second Am. Compl. (Doc. 35) ¶¶ 1, 10. This suit commenced with this Court’s
receipt of the initial complaint on June 3, 2009. (Doc. 1). Plaintiff consented to the jurisdiction
of a magistrate judge on May 4, 2010. (Doc. 36). Defendants consented to the same on
September 10, 2009 (Doc. 11), and June 16, 2010 (Doc. 41).
Defendant Grainey filed a motion for summary judgment (Doc. 54) on November 26,
2010. Plaintiff filed a response to this motion on January 14, 2011 (Doc. 64). Defendant
Grainey replied thereto on January 28, 2011 (Doc. 69). This motion is ripe for disposition.
A. Relevant Factual History
On June 28, 2008, Plaintiff was being transported from SCI-Somerset to SCI-Greene on a
prison bus with other inmates and corrections staff. (Doc. 65) ¶ I.7. During the course of this
transportation, Plaintiff was acting in an unruly manner – verbally insulting other inmates and
guards on the bus, using racial epithets, and threatening to urinate and spit on his fellow
passengers. Id. ¶ I.10. Plaintiff was held in a cage on the bus that separated him from its other
passengers, and was restrained with handcuffs, a waist belt, leg shackles, a black box, and a spit
hood. Id. ¶¶ I.11, III.1. During the roughly two-hour drive from SCI-Somerset to SCI-Greene,
Defendant King was seated behind Plaintiff’s cage. Id. ¶ II.11.
As a result of Plaintiff’s behavior, Lieutenant Daryl Eperjesi1 (“Eperjesi”) was instructed
by the shift commander at SCI-Greene to assemble a crew of corrections officers to remove
Plaintiff from the bus when it arrived, and process him into the Restricted Housing Unit
(“RHU”). Id. ¶¶ I.8 – I.9.
When the transport arrived at SCI-Greene, all inmates save Plaintiff were removed from
the bus and placed in a holding cell in the prison’s intake area. Id. ¶ I.13. At some point prior to
attempts being made to remove Plaintiff from the bus, Defendant King encountered Defendant
Grainey, who is the highest-ranking uniformed corrections officer at the institution, outside of
Eperjesi, while initially named as a Defendant to this suit, was dismissed on May 3, 2010, when
Plaintiff filed the second amended complaint. (Doc. 35).
the intake area. Id. ¶¶ I.6, I.12. Both Defendant Grainey and Plaintiff agree that Defendant
Grainey “was on a walk through the facility, [and] had gone outside briefly . . . to smoke a
cigarette.” Id. ¶ II.5. It is undisputed that Defendant King informed Defendant Grainey of the
problems that he had experienced regarding Plaintiff’s disruptive behavior during the trip. Id.
¶¶ I.12, III.8; (Doc. 65-1) at 108. Defendants King, Blaker, and Pluck, as well as Plaintiff, assert
that during the conversation, Defendant Grainey ordered Defendant King “to do his job” and, if
Plaintiff got out of hand, to give him “a good SCI-Greene welcome.” (Doc. 65) ¶¶ I.12, III.8,
(Doc. 65-1) at 31. Defendant Grainey denies that any such statement was made, or that any such
order was given by him. (Doc. 65) ¶¶ II.7 – II.8. It is undisputed that Defendant Grainey left the
area prior to Plaintiff’s removal from the bus. Id. ¶ III.10.
Defendants King, Blaker, and Pluck were chosen as the team to remove Plaintiff from the
bus. Id. ¶ I.13. Adrian Fauvie (“Fauvie”), a non-party corrections officer who was directed to
assist in removing Plaintiff from the bus, followed these individuals with a video camera, under
orders from Eperjesi to record the encounter. Id. ¶ I.14. Eperjesi was present for the removal,
and was outside the back of the bus. Id.
Defendant King stood directly outside of the cage door, which was located on the
“passenger side” of the bus.2 Id. ¶ 16. Defendant Pluck positioned himself behind Defendant
King, on the “driver’s side” of the bus. Id. Defendant Blaker stood in the walkway at the back
of the bus, facing Defendant King. Id. Defendant King asserts that, after opening the cage door,
he reached in to take Plaintiff’s arms and move him out of the cage. Id. ¶ I.17. Plaintiff then
lunged forward, and Defendant King grabbed Plaintiff’s jumpsuit and pushed him against the
The “passenger side” refers to the right half of the bus when viewed from the frame of
reference of anyone entering the bus from its rear door.
side of the cage in order to reassert control. Id. Before control could be regained, however,
Plaintiff lunged again. Id. Defendants King, Blaker, and Pluck then recount how it appeared to
Fauvie that Plaintiff was going to head-butt Defendant King – although Plaintiff did not actually
do so. Id. ¶ I.18. These Defendants claim that “Plaintiff’s weight, momentum and position of
balance, combined with [Defendant] King’s and [Defendant] Blaker’s weight, caused Plaintiff to
go to the ground. [Defendant] King and [Defendant] Blaker then regained physical control of
him.” Id. ¶ I.19. Defendant King admits that, during the course of the altercation, he struck
Plaintiff with his hand three times – once in the face while restraining him against the cage, once
in the chest before Plaintiff fell to the floor of the bus, and once more while Plaintiff was on the
floor. Id. ¶ I.20. However, Defendant King argues that this was done only in self-defense, or in
the defense of other corrections officers. Id.
Plaintiff’s recollection of these events differs significantly. Plaintiff asserts that, as he
was being removed from the cage, he was not being physically aggressive, and underscores the
fact that he was in full restraints. Id. ¶ I.18. Plaintiff also points to Fauvie’s deposition
testimony, in which Fauvie states that prior statements regarding Plaintiff’s alleged attempts to
head-butt Defendant King were made under duress. Id.; (Doc. 65-1) at 68 – 70. Indeed, Fauvie
testified at his deposition that he did not believe that Plaintiff had attempted to head-butt
Defendant King, and characterized the use of force that took place that day in the following
manner: “[t]hat was not unplanned use of force. That was [Defendant King’s] use of force.”
(Doc. 65) ¶ I.18; (Doc. 65-1) at 75 – 76.
Plaintiff further asserts that, during the use of force, he turned to try to “fend off the
blows” that he was receiving, and was pushed to the floor by Defendant King. (Doc. 65) ¶ I.19.
While he was on the floor, Defendant King punched Plaintiff in or around his face with a closed
fist, and both Defendants King and Blaker continued to punch him while he was down. Id.
Plaintiff further alleges that Eperjesi saw Defendant King take Plaintiff to the ground and punch
him in his face with a closed fist. Id. ¶ I.22. Plaintiff does not allege that Pluck was involved in
the use of force directly, but instead claims that he failed to intervene and stop Defendants King
and Blaker’s alleged misuse of force. Id. ¶ I.27.
After the use of force, Defendants King and Blacker lifted Plaintiff to his feet and
escorted him off the bus and into the prison’s intake area. Id. ¶ I.23.
The parties agree that filming of the removal began at 19:14:36 hours.3 Id. ¶ 24.
Recording suddenly stops at 19:15:10, and starts again at 19:15:55, as Plaintiff is walking down
the steps leading out of the bus. The portion of the incident that Fauvie did film begins as
Defendants King, Blaker, and Pluck are moving into position to remove Plaintiff from the cage.
Plaintiff begins asking a question about a lieutenant (presumably Eperjesi), but the majority of
his query is inaudible, and he is not answered by the corrections officers. As the door to the cage
is unlocked, Plaintiff rises from his seat. Once the door is opened, Plaintiff slowly shuffles out
of the cage. Two corrections officers grasp Plaintiffs upper arms. At 19:14:57 Plaintiff utters
“ahh, okay,” and is roughly shoved into the open cage door. Plaintiff and the door both loudly
The timestamp on the video is not in military time. However, in order to remain consistent
with the parties’ filings, this Court will report all times in military time.
The recording filed with this Court under seal begins at 19:14:42. The video was filed under seal
pursuant to a confidentiality agreement between Plaintiff and the Department of Corrections
(“DOC”). (Doc. 63-1). The rationale for the agreement was based on the DOC’s policy “not to
disseminate video records which reveal the inside/layout of its state correctional
institutions . . . .” Id. at 2. Given that this Court’s description of the contents of the video does
not extend to the portions of the video that show the inside of SCI-Greene, and the subject matter
is discussed in great detail in filings in this case that are available to the public, this Court will
not file this opinion, or any portion thereof, under seal.
collide with the outer wall of the cage. The view of the incident is partially obscured by the
bodies of the guards and the angle at which the camera is held. However, the recording does
show that both Defendants King and Blaker had their hands on Plaintiff. It also does not show
any apparent aggressive behavior on the part of Plaintiff that would justify his initial rough
treatment, nor does it show that Plaintiff was given any orders by the officers, either prior to the
use of force, or after its initiation.
At this point on the video, a brief verbal exchange takes place between Plaintiff and
Defendants Blaker and King. Plaintiff, in a soft voice, makes a partially inaudible statement
ending in “. . . what you’re supposed to do.” One of the officers responds, “Exactly . . .
[inaudible] . . . exactly what the fuck I’m supposed to do.” As this verbal exchange occurs, the
camera angle lowers, and Plaintiff is almost entirely obscured by the body of one of the
Defendants. The dialogue continues regarding Plaintiff’s glasses,4 and lasts until 19:15:10,
when the video abruptly cuts to 19:15:55, at which point Plaintiff is being taken off of the bus.
Plaintiff was examined by medical personal on the day of the incident. It is undisputed
that Plaintiff suffered abrasions on his upper forehead and left side of his nose, as well as a threecentimeter long laceration inside his lip. (Doc. 65) ¶ 30. Plaintiff notes that the medical records
also show that he suffered a contusion to the posterior left occipital area of his head, and injuries
to his shin and right ribcage. Id. Plaintiff suffered no fractures to his skull or facial bones. Id. ¶
It is undisputed that Plaintiff’s glasses were broken while he was on the bus. However,
SCI-Greene paid to replace them. (Doc. 65) ¶ 26.
1. Section 1983 Conspiracy
Plaintiff asserts that Defendants King and Grainey entered into a conspiracy to use
excessive force against him. (Doc. 35) ¶ 29. Section 1983 does not create a cause of action for
conspiracy in and of itself. Instead, on order to prevail, a plaintiff also must show some
underlying deprivation of a constitutional right. Davis v. Wilson, No. 08-589, 2009 WL 688912,
at *12 (W.D.Pa. Mar 12, 2009) (Hay, Mag.J.) (quoting Holt Cargo Systems, Inc. v. Delaware
River Port Auth., 20 F.Supp.2d 803, 843 (E.D.Pa. 1998)); see also Hickson v. Marina Assoc.s,
743 F.Supp.2d 362, 377 n.22 (D.N.J. 2010) (“[t]he theory of conspiracy does not yield an
independent cause of action under Section 1983, but instead presents merely a means to impute
liability to other wrongdoers for violations of federal rights” (citing Revak v. Leiberum, No. 08691, 2009 WL 1099187, at *2 (W.D.Pa. Apr. 23, 2009) (Ambrose, C.J.)).
Based on this Court’s prior analysis regarding Defendant King’s alleged assault of
Plaintiff, it is clear that a triable issue of fact exists as to whether Defendant King violated
Plaintiff’s rights under the Eighth Amendment by means of the use of excessive force. See (Doc.
71) at 8 – 9. It is thus necessary for this Court to determine whether Plaintiff has adduced
sufficient evidence that a reasonable trier of fact could conclude that an agreement between
Defendants King and Grainey existed with respect to that alleged use of excessive force. Celotex
Corp. v. Catrett, 477 U.S. 317 (1986).
In support of his assertion that such an agreement existed, Plaintiff adduces two
statements made by Defendant King. The first was made by Defendant King at his deposition,
during which he testified that he was instructed by Defendant Grainey that, “[i]f [Plaintiff] gets
out of hand, give him a good SCI-Greene welcome.” (Doc. 65) ¶ II.7; see also (Doc. 58) at 30.
Defendant Grainey denies making such a statement. The second piece of evidence adduced by
Plaintiff is Eperjesi’s testimony at his deposition. (Doc. 65) ¶ II.10. This testimony relates how
Defendant King purportedly told Eperjesi and another corrections officer at SCI-Greene –
Lieutenant Grego – that he had been told by Defendant Grainey to “take care of business” and
that he “knew what he was told to do.” See (Doc. 65-1) at 7 – 8, 18, 20 – 22; see also (Doc. 58)
at 67, 70.
Defendant Grainey objects to the admissibility of the above statements as hearsay. (Doc.
69). Plaintiff has failed to respond to those objections.
The Federal Rules of Evidence generally prohibit the admission of hearsay statements at
trial. Fed.R.Evid 802. However, there are certain specifically defined exceptions to this general
rule. For example, under certain circumstances, statements that would otherwise be defined as
hearsay are excluded from its definition, such as when “a statement [is made] by a coconspirator
of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E).
While this particular rule would seem, intuitively, to provide a vehicle for the admission of
Defendant King’s statements with respect to Defendant Grainey, these statements were made
well after any alleged conspiracy to assault Plaintiff had run its course – and thus not “during the
course and in furtherance of” the alleged conspiracy. As such, they are clearly not excluded
from the definition of hearsay by Rule 802(d)(2)(E) .
Instead, for the reasons stated below, Rule 801(d)(2)(A) – which excludes from the
definition of hearsay “[a] statement [that] is offered against a party and is . . . the party’s own
statement” – appears to offer a proper basis for admitting Defendant King’s communication,
during his deposition testimony, of Defendant Grainey’s alleged statement. Fed.R.Evid.
Defendant Grainey does not appear to contend that Defendant King’s deposition
testimony would be contrary to his position that no conspiracy to violate Plaintiff’s constitutional
rights existed. Instead, he argues that the above statement cannot be admitted against him
because he and Defendant King are both on the same side of this litigation.5 (Doc. 69) at 5-6. In
support of this, he relies on Stalbosky v. Belew, 205 F.3d 890 (6th Cir. 2000). The sad facts of
that case involved William Belew, a truck driver and employee of Three Rivers Trucking
Company, who, while driving for Three Rivers, raped and murdered Myra Stalbosky in his truck.
The victim’s estate brought suit against Belew and Three Rivers, alleging, inter alia, that Three
Rivers had negligently hired and retained Belew. As evidence in support of this claim, that
plaintiff submitted the affidavit of a private investigator, in which it was communicated that
Belew had stated that the owners of Three Rivers knew of his prior criminal record, but told him
not to worry about it. The district court refused to admit the private investigator’s affidavit as
evidence against Three Rivers, finding it to be hearsay.
In affirming the holding of the district court, the Court of Appeals for the Sixth Circuit
On appeal, [the plaintiff] argues that [the private investigator’s]
statement was admissible under Rule 801(d)(2) of the Federal
Rules of Evidence as an admission by Belew, a party-opponent.
Belew is a party to this action, but the statements that are at issue
here were not offered against Belew, but rather against Three
Rivers to establish its knowledge of Belew’s prior criminal history.
Under Rule 801(d)(2)(A), a party’s statement is admissible as nonhearsay only if it is offered against that party. The district court
therefore properly refused to consider [the private investigator’s]
This argument is somewhat at odds with those made later in the same paragraph, in which
Defendant Grainey asserts that “[a]dverse interests the [sic] manifestly exist between
[Defendants King and Grainey]” preclude admissibility of Defendant King’s statements under
the agency exception to the hearsay rule. (Doc. 69) at 6; see also Fed.R.Evid. 801(d)(2)(D).
295 F.3d at 894.
This logic appears to preclude the admittance, under Rule 802(d)(2), of Eperjesi’s
deposition testimony and report regarding what Defendant King said with respect to Defendant
Grainey’s alleged statements.6 However, Defendant King’s testimony at his deposition
concerning Defendant Grainey’s alleged direction to “give [Plaintiff] a good SCI-Greene
welcome” is not precluded by such an analysis.7 To the contrary, Defendant King was merely
the witness to these alleged statements. See United States v. Palow, 777 F.2d 52, 56 (1st Cir.
1985) (testimony from one defendant regarding the statements of another during a conspiracy
were properly admitted; admission must only be adverse to defendants’ position at trial, and need
not be elicited through government witnesses). This Court recognizes that some conflicting
authority exists between the circuits on this issue. See 5 Jack B. Weinstein & Margaret A.
Berber, Weinstein’s Federal Evidence, §801.30 (Joseph M. McLaughlin, ed., Matthew Bender
2d ed. 2011). Nevertheless, as it is apparent that (1) this admission was allegedly made by
Defendant Grainey; (2) it is being offered by the Plaintiff against Defendant Grainey; and (3)
Defendant King merely was a witness to it, the undersigned is persuaded that Defendant King’s
Plaintiff has not made any argument regarding why Eperjesi’s deposition testimony and
underlying report may or may not be admissible against Defendant Grainey – despite his burden
to do so once Defendant Grainey objected to their admissibility. Be that as it may, given our
finding that Defendant King’s deposition testimony is admissible against Defendant Grainey, and
that enough evidence exists without Eperjesi’s testimony and report to survive summary
judgment, it is unnecessary to resolve the issue of Eperjesi’s testimony and report in this opinion.
This conclusion is supported by the holding of the court of appeals in Stalbosky itself. That
court determined that the private investigator’s affidavit relating Belew’s statement would have
been admissible against Belew, but not against Three Rivers, as it was not, ultimately, their
statement that was being related in the affidavit. 205 F.3d at 894. Here, Defendant King’s
deposition testimony clearly relates a statement allegedly made by Defendant Grainey.
direct relation of Defendant Grainey’s alleged statement during his deposition would be
admissible at trial under Rule 801(d)(2)(A).
Defendant Grainey further argues that Defendant King’s communication of his alleged
statement alone is insufficient to prove the existence of a conspiracy. (Doc. 69) at 3. In support
of this, Defendant Grainey relies on a provision of Federal Rules of Evidence, in which it is
explicitly stated that “[t]he contents of the statement shall be considered but are not alone
sufficient to establish . . . the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered under subdivision (E).”
Plaintiff contends that a reasonable jury may conclude that a conspiracy between these
two Defendants existed based not only on Defendant Graney’s alleged statement, but also on the
context of the conversation, Defendant Graney’s superior rank, the fact that Defendant Grainey
left the scene prior to the use of force, and Defendant King’s subsequent actions.8 (Doc. 64) at
12-13. The Court of Appeals for the Third Circuit has recognized that “[t]he timing and
circumstances of a meeting or a series of meetings may be sufficiently suspicious to permit a
reasonable inference of complicity in the . . . enterprise.” United States v. Ammar, 714 F.2d
238, 250 (3d Cir. 1983). Given this standard, and viewing all evidence in the light most
favorable to the Plaintiff, this Court finds Defendant Grainey’s argument to be unpersuasive.
Finally, Defendant Grainey argues that his alleged statement, on its merits, is not
sufficient evidence of the existence of a conspiracy between him and Defendant King to allow
the claim to survive summary judgment. First, he contends that the alleged statement, which he
The undersigned notes that the utterance of “[e]xactly . . . [inaudible] . . . exactly what the fuck
I’m supposed to do.” during the course of the use of force, if attributable to Defendant King,
would further support the conclusion that a conspiracy existed.
denies having made, is so ambiguous that it could support either side of this litigation, and thus
cannot qualify as proper evidence of the existence of an agreement between the two men to
violate Plaintiff’s constitutional rights. (Doc. 68) at 7, 9-10. He also asserts that, at worst, his
alleged statement was a threat conditioned upon Plaintiff’s “get[ting] out of line,” which, under
the principles of tort law, does not support a claim for relief. Id. at 10-11. However, when
viewed in the light most favorable to Plaintiff, and in connection with the other evidence
adduced by Plaintiff and mentioned above, a statement such as “[i]f [Plaintiff] gets out of hand,
give him a good SCI-Greene welcome” is hardly as ambiguous as Defendant Grainey contends.
This is especially true in light of the fact that Plaintiff has adduced strong evidence, in the form
of a video recording, supporting his allegation that he was the victim of excessive force at the
hands of Defendants, and that someone on the video was doing “exactly what . . . [he was]
supposed to do.” At the very least, triable issues of fact exist with respect to whether the
statement was actually made by Defendant Grainey and, if so, whether he intended it to indicate
his willingness to enter into an agreement with Defendant King to violate Plaintiff’s rights under
the Eighth Amendment.
Accordingly, Defendant Grainey’s motion for summary judgment will be denied.
AND NOW, this 22nd day of August, 2011,
IT IS HEREBY ORDERED that the motion for summary judgment filed by Defendant
Grainey (Doc. 60) is DENIED.
UNITED STATES MAGISTRATE JUDGE
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