MOHAMAD vs. SMITH ET AL
OPINION re 45 MOTION for Summary Judgment filed by STEPHEN BEST, THOMAS BOGARDUS, ROBERT DICK, BARRY SMITH. Signed by Magistrate Judge Maureen P. Kelly on 3/12/2012. (dgg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
YASSIN HAYTHAME MOHAMAD,
BARRY SMITH, (Lieutenant) in his own
Capacity; STEPHEN BEST, (Correctional
Officer) in his own Capacity; ROBERT
DICK, (Correctional Officer 1) in his own
capacity; THOMAS BOGARDUS,
(Sergeant) in his own capacity,
) Civil Action No. 09-943
) U.S. Magistrate Judge Maureen P. Kelly
) ECF No. 45
KELLY, Magistrate Judge
Plaintiff, Yassin Haythame Mohamad, (“Plaintiff" or "Mohamad”), is a prisoner in the
custody of the Pennsylvania Department of Corrections (“DOC”), and is currently incarcerated at
the State Correctional Institution (“SCI”) at Graterford. Mohamad has brought this civil rights
suit against Lieutenant Barry Smith ("Smith"), Corrections Officer Stephen Best ("Best"),
Corrections Officer Robert Dick ("Dick") and Sergeant Thomas Bogardus ("Bogardus")
(collectively, "Defendants"), alleging that Defendants used excessive force against him during an
altercation that occurred on December 17, 2007, while Mohamad was housed at SCI-Forest.
Presently before the Court is a Motion for Summary Judgment submitted by Defendants. ECF
No. 45. For the reasons that follow, the Motion will be granted.
FACTUAL AND PROCEDURAL BACKGROUND
It is undisputed that as of December 17, 2007, Mohamad was on a variety of security-
related movement restrictions due to his history of assaultive behavior.1 The restrictions, which
The record demonstrates that since 1997, Mohamad has incurred 425 institutional misconducts, including over 100
misconducts for threatening staff members and over 40 misconducts for assault. See ECF No. 46-2.
were to be used whenever Mohamad was out of his cell, required that Mohamad be handcuffed
at all times; that the handcuffs were to be attached to a waist belt and a tether; that he was to be
shackled; that all movement was to be videotaped; that a Commissioned Officer was required to
be present at all times; and that Mohamad was to wear a spit shield.2 ECF No. 46-1: pp. 4-5 at
¶ 4; p. 11 at ¶ 4; pp. 16-17 at ¶ 4.
It is also undisputed that Defendants were aware not only
generally of Mohamad's history of assaultive behavior but of the movement restrictions imposed
on him. ECF No. 46-1, p. 5 at ¶ 5. See ECF No. 46 ¶¶ 6, 7; ECF No. 55 ¶¶ 6, 7.
On December 17, 2007, Defendant Smith, as a Commissioned Officer, was supervising
Defendants Best and Bogardus as they escorted Mohamad from the Receiving and Discharge
("R&D") area at SCI-Forest to the Restricted Housing Unit (“RHU”). Defendant Dick was
assigned to operate the hand held video camera.3 ECF No. 46-1: p. 4 at ¶¶ 2, 18; p. 9; p. 11 at ¶
2; p. 16 at ¶ 2. See ECF No. 46, ¶ 4; ECF No. 55 ¶ 4. Defendants have attested to the fact that
as they were preparing to escort Mohamad from R&D to the RHU, they were informed that his
inmate ID photo was outdated and that they were to escorted Mohamad to the photo room. ECF
No. 46-1: p. 5 at ¶ 6; p. 12 at ¶ 6; p. 17 at ¶ 5. See ECF No. 46-3, pp. 1-11.
The evidence shows that, at the time, it was the policy of the DOC that inmates were to
remove all head gear, including religious head gear, when having inmate ID photos taken. ECF
No. 46-3, pp. 13-14. See ECF No. 46-1: p. 5 at ¶ 8; p. 12 at ¶ 8. Accordingly, upon arriving in
the photo room, Smith removed Mohamad’s kufi4 since Mohamad was restrained and could not
A spit shield is designed to prevent inmates from spitting on officers and is utilized only on inmates with a history
of spitting or threatening to spit on officers. Id.
Indeed, Defendants have submitted the DVD recording of the incident taken by Defendant Dick which largely
corroborates the facts as set forth herein. See ECF No. 46-1, p. 2.
A kufi is "a close-fitting brimless cylindrical or round hat." Merriam-Webster Dictionary Online. Although
Defendants have spelled it "kuffee" the Court has found only the spelling used by Mohamad in the dictionary.
remove it himself. ECF No. 46-1: p. 5 at ¶ 8; p. 12 at ¶ 8; p. 17 at ¶ 6. See ECF No. 143-3, pp.
1-11. When Smith removed the kufi, Mohamad became non-compliant and repeatedly stated
that “I’m not taking no picture.” ECF No. 46-1: p. 5 at ¶ 9; p. 12 at ¶ 9; p. 17 at ¶ 6. In an effort
to prevent the staff from taking his photo, Mohamad bowed and turned his head numerous times.
According to Smith and Best, they consequently became concerned that Mohamad, who
obviously was not wearing his spit shield, might spit on them. ECF No. 46-1: p. 5 at ¶ 10; p. 12
at ¶ 10; p. 17 at ¶ 7. Best therefore attempted to restrain Mohamad’s head in an effort to protect
himself and to permit the photograph to be taken. Mohamad, however, continued to be noncompliant, turning his head so that the picture could not be taken. Defendants have attested to
the fact that Mohamad then pushed back into Defendant Best, who was standing behind
Mohamad, knocking him off balance. ECF No. 46-1: p. 12-13 at ¶¶ 10, 11; p. 17 at ¶ 7.
Moreover, although not clear from the DVD recording, Best has also attested to the fact that he
felt Mohamad’s hands, which were cuffed behind his back, attempting to grab hold of him. ECF
No. 46-1, p. 13 at ¶ 11.
At that point, Smith and Best determined that the situation was "getting out of control"
and that steps needed to be taken to ensure their safety and the safety of the other officers in the
area. Consequently, Defendants took Mohamad to the floor. ECF No. 46-1: p. 6 at ¶¶ 12, 15; p.
13 at ¶ 12; p. 17 at ¶¶ 8, 9. After regaining control, Mohamad was brought to his feet and the
spit shield was placed on him. He was then escorted to the RHU without further incident. ECF
No. 46-1: p. 6 at ¶ 15; p. 13 at ¶ 15; p. 17 at ¶ 10. It is undisputed that Defendant Dick had no
role in the incident other than to record it on the hand held camera. ECF No. 46 ¶ 30; ECF No.
55 ¶ 30. See ECF No. 46-1: p. 7 at ¶ 18.
The Defendants have also submitted evidence that a medical assessment of Mohamad
was conducted immediately after the incident in accordance with DOC policy when there has
been a use of force. ECF No. 46-3, pp. 15-18. The medical reports show that Mohamad did not
suffer any injury and that no treatment was necessary. Id.
Mohamad nevertheless initiated this action on July 20, 2009, bringing claims against
Defendants for use of excessive force under the Eighth Amendment to the United States
Constitution. Mohamad also cites to the First and Fourteenth Amendments in his Complaint, as
well as to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§
2000cc et seq. ECF Nos. 1, 3.
Defendants filed an answer to the Complaint on November 10, 2010, and discovery
closed on April 20, 2011. ECF Nos. 22, 34. Defendants filed the instant Motion for Summary
Judgment on June 17, 2011, ECF No. 45, which is now ripe for review.
STANDARD OF REVIEW
Summary judgment is warranted only where Athe pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). The
moving party bears the initial burden of demonstrating to the court that there is an absence of
evidence to support the non-moving party=s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). See Conoshenti v. Public Service Electric & Gas Company, 364 F.3d 135, 140 (3d Cir.
2004). When the moving party has met this burden, the burden then shifts to the nonmoving
party to Aset forth specific facts showing that there is a genuine issue for trial.@ Fed. R. Civ. P.
56(e) (2). The mere existence of some evidence favoring the non-moving party, however, 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. 242, 248 (1986). 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. New Jersey Dep’t of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007).
Eighth Amendment Use of Excessive Force Claims
Under the Eighth Amendment, “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted . . .” U.S. Const. amend. VIII. See
Ingraham v. Wright, 430 U.S. 651, 664 (1977). The cruel and unusual punishments clause “was
designed to protect those convicted of crimes” and, thus, prohibits the “unnecessary and wanton
infliction of pain” on prisoners in the custody of the state. An Eighth Amendment violation will
therefore be found where the punishment at issue serves “no legitimate penological interest.” Id.
Rhodes v. Chapman, 452 U.S. 337, 345-346 (1981). See Giron v. Corrections Corp. of Am.,
191 F.3d 1281, 1290 (10th Cir. 1999), quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)
(Where no legitimate penological purpose can be inferred from a prison employee’s alleged
conduct …. the conduct itself constitutes sufficient evidence that force was used "maliciously
and sadistically for the very purpose of causing harm”).
Courts, however, generally defer to the judgment and policies of prison officials who are
charged with maintaining internal order and discipline in the prisons and often must make snap
decisions in volatile and dangerous situations. Hudson v. McMillian, 503 U.S. 1, 6 (1992).
Officials must balance the threats presented by prison unrest to prison workers, inmates and
administrators “against the harm inmates may suffer if guards use force.” Id. Because of these
competing concerns, the standard to measure the propriety of the use of force by prison
authorities is “whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.” Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.
2000), citing Hudson, 503 U.S. at 7. To resolve the inquiry, Courts are to consider:
(1) the need for the application of force; (2) the relationship between the
need and the amount of force that was used; (3) the extent of injury
inflicted; (4) the extent of the threat to the safety of staff and inmates, as
reasonably perceived by responsible officials on the basis of the facts
known to them; and (5) any efforts made to temper the severity of a forceful
Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009).
With respect to the first factor -- the need for the application of force -- Mohamad has
admitted to the fact that he was resisting the officers and otherwise acting in such a manner to
prevent his picture from being taken. ECF No. 46, ¶¶ 15, 17; ECF No. 55, ¶¶ 15, 17. He has
also admitted that the situation was getting out of control and that Defendants Smith and Best
determined that they needed to take action for their safety and that of the other officers in the
area. ECF No. 46, ¶ 18; ECF 55, ¶ 18. It therefore appears clear that the application of at least
some force was necessary for the officers to regain control of the situation.
As to the second factor, it also appears that Defendants used no more force than was
necessary to gain control of Mohamad and maintain their safety. Indeed, Mohamad does not
dispute that officers are trained to utilize certain control techniques to regain control of unruly
and/or combative inmates and that one such technique is to place the inmate on the floor. ECF
No. 46, ¶¶ 20, 21; ECF 55, ¶¶ 20, 21. In addition, Defendants have asserted that they used no
more force than necessary to gain control over Mohamad and defuse the situation -- assertions
that are amply supported by the DVD recording. ECF No. 46-1: p. 7 at ¶ 19; p. 13 at ¶18; p. 17
at ¶ 13. See ECF No. 46-1, p. 2. Mohamad has not pointed to any evidence to the contrary. As
such, consideration of the second factor -- the relationship between the need and the amount of
force that was used -- suggests that no excessive force was used.
As to the third factor -- the extent of injury inflicted -- the record shows that a medical
assessment of Mohamad was conducted immediately after the incident and that the resulting
reports shows that Mohamad did not suffer any injury and that no treatment was necessary.
ECF No. 46-3, pp. 15-18. In fact, not only does the DVD recording corroborate that assessment
but the medical report states that Mohamad denied any injury, stating "I'm okay." Id.; ECF No.
46-1, p. 2. Although Mohamad now contends that he was never seen by the medical staff and
that the medical staff conspired with Defendants to falsify the medical reports as evidenced by
the fact that Smith's wife, Linda Smith, was a senior nurse working on the date and time in
question, he has submitted no evidence to support his assertions. Indeed, the record is not only
completely devoid of any mention of Linda Smith but the Medical Injury Report indicates that
Mohamad was seen by Gary Prinkey, RN, and not Mrs. Smith. Id. Thus, while not dispositive
standing alone, the fact that Mohamad did not suffer any discernible injuries suggests that the
force utilized by Defendants was not excessive.
Nor does consideration of the fourth factor suggest that excessive force was used by
Defendants as it was more than reasonable for Defendants to perceive a threat to their safety
under the circumstances. Defendants have not only presented evidence of Mohamad's extensive
history of assaultive behavior and threats to staff members, which Defendants were well aware
of, but it is undisputed that Mohamad was being non-compliant and that the situation was getting
out of control. ECF No. 46-1: p. 5 at ¶ 5; p. 13 at ¶ 13. See ECF No. 46 ¶¶ 6, 7, 8, 17, 18; ECF
No. 55 ¶¶ 6, 7, 8, 17, 18; ECF No. 46-2.
As to the fifth and final factor, Defendants appear to have made reasonable efforts to
temper the severity of force in responding to Mohamad's unruly behavior. The record
demonstrates that Defendants' repeated attempts to prevent Mohamad from turning his head so
that his photograph could be taken were neither aggressive nor provoking and that it was
Mohamad's failure to comply with their orders, coupled with him backing into Best, that
necessitated further action by Defendants. ECF No. 46-1, p. 6 at ¶ 15.
This evidence clearly demonstrates that Defendants' actions in taking Mohamad to the
ground was designed to defuse an escalating situation that, given Mohamad's remarkable history
of assaultive behavior, could have impacted the safety of Defendants as well as other officers in
the area. It follows that the force used in order to take a resisting Mohamad to the ground was
applied in a good-faith effort to restore and maintain discipline and, thus, designed to serve a
legitimate penological interest. Moreover, Mohamad has not offered any evidence which would
suggest that Defendants applied any more force than necessary or that the force used was applied
maliciously and sadistically to cause harm. Indeed, review of the DVD recording, which shows
that the incident occurred in a matter of seconds, belies any such assertion. As such, no
reasonable juror could find that Defendants' use of force was excessive or in violation of the
Eighth Amendment's prohibition against cruel and unusual punishment. Defendants, therefore,
are entitled to summary judgment on Mohamad's Eighth Amendment claim.
First Amendment Free Exercise Claims
Mohamad also purports to bring a claim under the First Amendment. Although not set
forth in his Complaint, the facts of this case suggest that any First Amendment claim would
necessarily revolve around the free exercise of religion clause.5 Defendants argue that this claim
is also subject to summary judgment because they are entitled to qualified immunity.
"The qualified immunity doctrine 'protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.'" Sharp v. Johnson, ___ F.3d ___, ___,
2012 WL 400667 at *12 (3d Cir. Feb. 9, 2012), quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009). See Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010).
“[C]learly established rights” are those with contours sufficiently clear that
a reasonable official would understand that what he is doing violates that
right. A plaintiff need not show that the very action in question has
previously been held unlawful, but needs to show that in light of preexisting
law the unlawfulness was apparent.
McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001), citing Shea v. Smith, 966 F.2d 127,
130 (3d Cir.1992). Because "[q]ualified immunity protects 'all but the plainly incompetent or
those who knowingly violate the law,' so long as an official reasonably believes that his conduct
complies with the law, qualified immunity will shield that official from liability." Sharp v.
Johnson, ___ F.3d at ___, 2012 WL 400667 at *12, quoting Malley v. Briggs, 475 U.S. 335, 341,
(1986). See Pearson, 555 U.S. at 244; Ray, 626 F.3d at 173–74.
Here, Mohamad has not presented any evidence that Defendants violated any religious
protocol much less a clearly established right by removing his kufi while attempting to take his
inmate ID photograph. To the contrary, the record shows that Defendants were acting pursuant
to DOC policy requiring that all head gear, including religious head gear, be removed when
inmate ID photos are taken. ECF No. 46-3, pp. 13-14. See ECF No. 46-1: p. 5 at ¶ 8; p. 12 at ¶
The First Amendment provides that: "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridgment of freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I.
8. Indeed, Defendant Smith has attested to the fact that he removed Mohamad's kufi because of
the DOC policy and because Mohamad was unable to remove it himself because he was
restrained. ECF No. 46-1, p. 5at ¶ 8. This evidence established that Defendant Smith reasonably
believed that his conduct complied with the law. Absent evidence to the contrary, Defendants
are entitled to qualified immunity as to Mohamad's First Amendment claim.
Defendants argue that they are entitled to summary judgment on Mohamad's claims
brought under the RLUIPA claims because he is unable to maintain a RLUIPA action for money
damages against them in either their individual or official capacities and because injunctive relief
is no longer available to him.
As the United States Court of Appeals for the Third Circuits has recently observed:
Congress enacted RLUIPA pursuant to its spending power under Article I
of the Constitution. When Congress enacts legislation pursuant to its
spending power, it may attach conditions on the receipt of federal funds and
essentially create a contract between the federal government and the State
recipient. . . . As a result, the statute may, as a condition of the funding,
“subject the grant recipient to liability in a private cause of action, but the
spending power cannot be used to subject individual defendants, such as
state employees, to individual liability in a private cause of action.”
Thus, non-recipients of the funds, including individuals who are state
officials, generally cannot be subject to private liability for monetary
Sharp v. Johnson, ___ F.3d ___, ___, 2012 WL 400667 at *7 (3d Cir. Feb. 9, 2012). Finding
that the defendants were not parties to the contract between Pennsylvania and the federal
government and that Pennsylvania, and not the defendants, would have been the recipient of any
federal funds, the Court held that the defendants could not be held liable under RLUIPA and that
the statute simply does not permit actions against State officials in their individual capacities. Id.
at *8. Thus, to the extent that Mohamad brings his RLUIPA claims against Defendants in their
individual capacities, they are entitled to summary judgment.
Further, it is well established that the Eleventh Amendment bars money damages sought
against a State or state official acting in his or her official capacity absent the consent of the State
or a valid abrogation by Congress. Kentucky v, Graham, 473 U.S. 159, 169 (1985). Although a
State may choose to waive its immunity in Federal Court, its consent to suit "must be
'unequivocally expressed' in the text of the relevant statute." Sossamon v. Texas, ___ U.S. ___,
___, 131 S. Ct. 1651, 1658 (2011), quoting Pennhurst State School and Hospital v. Halderman,
465 U.S. 89, 99 (1984). The Supreme Court of the United States has recently found that
RLUIPA's authorization of “appropriate relief against a government,” § 2000cc–2(a), is not the
unequivocal expression of state consent that is required. Id. at 1658-59. Consequently, the
Court held that "States, in accepting federal funding, do not consent to waive their sovereign
immunity to private suits for money damages under RLUIPA." Id. at 1663. Thus, Mohamad's
monetary claims against Defendants, to the extent he has sued them in their official capacities,
are barred by sovereign immunity.
Finally, the Court notes that to the extent that Mohamad seeks injunctive relief for
Defendants alleged violations of RLUIPA, his claims are moot. As previously discussed, the
incident that provides the basis for Mohamad's claims occurred at SCI-Forest. Mohamad,
however, has been transferred and is currently incarcerated at SCI-Graterford. As such,
injunctive relief is no longer available to him. See Sutton v. Rasheed, 323 F.3d 236, 248-49 (3d
Cir. 2003) (finding that because "an inmate's transfer from the facility complained of generally
moots the equitable and declaratory claims," the plaintiffs' claims for declaratory and injunctive
relief were moot because they had all either been released from prison or provided with the
specific relief requested); Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981) (“the courts have
held that a prisoner lacks standing to seek injunctive relief if he is no longer subject to the
alleged conditions he attempts to challenge”) (citation omitted); Fortes v. Harding, 19 F. Supp.
2d 323, 326 (M.D. Pa. 1998) (where prisoner plaintiff had been transferred to another facility
with no indication of a reasonable likelihood that he will be returned to the original facility in the
foreseeable future, his requests to enjoin the defendants from interfering with his access to the
courts was “academic”). Because Mohamad's RLUIPA claims are barred or otherwise afford
him no relief, Defendants are entitled to summary judgment.
Fourteenth Amendment Equal protection Claims
Finally, Mohamad has alleged in the Complaint that Defendants violated the Fourteenth
Amendment. ECF No. 3, ¶ III. Mohamad, however, has not expounded upon his claim in either
the Complaint or in his subsequent submissions to the Court, leaving the Court to surmise that
Mohamad has invoked the Fourteenth Amendment merely as a vehicle by which the First and
Eighth Amendment are applied to the states. This notwithstanding, to the extent that Mohamad
intended to raise a claim under the Equal Protection Clause of the Fourteenth Amendment,
Defendants are entitled to summary judgment.
The Equal Protection Clause provides that no state shall "deny to any person within its
jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. “[T]he purpose of
the equal protection clause of the Fourteenth Amendment is to secure every person within the
State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by
express terms of a statute or by its improper execution through duly constituted agents.” Village
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (internal quotations and citations omitted).
Thus, the Supreme Court has held that the equal protection clause is "essentially a direction that
all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living
Ctr. Inc., 473 U.S. 432, 439 (1985).
Insofar as Mohamad contends that he was treated differently than other similarly situated
inmates when Smith removed his kufi for his photo ID, he has not provided any evidence
whatsoever to support his claim. Rather, as previously discussed, the evidence shows that it was
DOC policy that all head gear, including religious head gear, be removed when inmate ID photos
were being taken. ECF No. 46-3, pp. 13-14. See ECF No. 46-1: p. 5 at ¶ 8; p. 12 at ¶ 8. The
absence of any evidence that others were permitted to wear head gear while having their pictures
taken is fatal to Mohamad's claim. As such, Defendants are entitled to summary judgment on
Mohamad's Fourteenth Amendment claim as well.
For the foregoing reasons, Defendants' Motion for Summary Judgment [ECF No. 45] is
GRANTED. An appropriate Order will be entered.
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
Dated: 12 March, 2012
Yassin Haythame Mohamad
P.O. Box 244
Graterford, PA 19426
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