LY v. VARNER et al

Filing 55

ORDER granting in part and denying in part 43 Motion for Summary Judgment. The motion is granted as to Plaintiff's negligence claims. The motion is denied as to Plaintiff's Eighth Amendment failure to protect claims. Signed by Magistrate Judge Cynthia Reed Eddy on 8/31/2015. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WEI LY,
Plaintiff,
v.
AMY VARNER, JANE HEIDE, AND LEO
GLASS,
Defendants.

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Civil Action No. 2: 13-cv-01102
United States District Magistrate
Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER
Presently pending is the Motion for Summary Judgment filed by Defendants, Amy
Varner, Jane Heide,1 and Leo Glass, with brief in support (ECF Nos. 43 and 44), and the brief in
opposition filed by Plaintiff, Wei Ly (ECF No. 52). The issues have been fully briefed and the
factual record has been developed. See ECF Nos. 45, 46, 49, 50, 51, 53, and 54.
After careful consideration of the motion, the filings in support and opposition thereto,
the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds
that the motion should be granted in part and denied in part.2
Procedural Background
Plaintiff, Wei Ly (“Plaintiff” or “Ly”), is a state prisoner currently incarcerated at the
State Correctional Institution (“SCI”) at Somerset. Ly brings this action seeking compensatory
and punitive damages arising from an incident that took place while he was incarcerated at his
Although identified in the caption and complaint as “Jane Heide,” Billie Heide was the
Deputy Superintendent for Centralized Services of SCI-Greensburg. See ECF No. 46-3.
1

All parties have consented to jurisdiction by the undersigned Magistrate Judge. See 28
U.S.C. § 636 et seq.; Consent to Trial / Jurisdiction by United States Magistrate Judge (ECF Nos.
9, 14, and 16).
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former place of confinement, SCI-Greensburg.3

Specifically, Ly’s complaint alleges that

Defendants failed to protect him from the attack of his cell mate, Inmate John Abrams
(“Abrams”). As a result of the assault, Ly contends that he has trouble sleeping, has anxiety
problems, and suffers from headaches. Ly brings his claims under 42 U.S.C. §1983 and state
law negligence.
Defendants argue that they are entitled to summary judgment as the record does not
establish that they were aware of any issues between Ly and Abrams that would require their
intervention. Ly argues that there are material facts in dispute that warrant the denial of summary
judgment. While the Court agrees with Plaintiff, Defendants’ arguments warrant a brief analysis.
Standard of Review
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving
party, the record indicates 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). Summary judgment may
be granted against a party who fails to adduce facts sufficient to establish the existence of any
element to that party's case and for which that party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying
evidence or the lack thereof that demonstrates the absence of a genuine issue of material fact.
National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992).
Once that burden has been met, the non-moving party must set forth “specific facts showing that
there is a genuine issue for trial” or the factual record will be taken as presented by the moving
party and judgment will be entered as a matter of law. Matsushita Elec. Ind. Co. v. Zenith Radio

SCI-Greensburg, closed since June 2013, was a medium-security level male correctional
institution. Several of the housing units, including the unit Ly was housed in, consisted of
dormitory-style housing rather than traditional prison cells.
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Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986). The inquiry, then, involves determining “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990)
(quoting Anderson, 477 U.S. at 251–52). If a court, having reviewed the evidence with this
standard in mind, concludes that “the evidence is merely colorable . . . or is not significantly
probative,” then summary judgment may be granted. Anderson, 477 U.S. at 249–50. Finally,
while any evidence used to support a motion for summary judgment must be admissible, it is not
necessary for it to be in admissible form. See Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324.
Discussion
A.

Eighth Amendment – Failure to Protect Claims4
The Eighth Amendment requires prison officials “to protect prisoners from violence at

the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1944) (internal quotation
omitted).

To establish a failure-to-protect claim, a prisoner must show that: (i) he is

“incarcerated under conditions posing a substantial risk of serious harm” and (ii) prison officials
acted with “deliberate indifference” – “that is, they knew of and disregarded an excessive risk to
his safety.” Freeman v. Miller, No. 14-1680, 2015 WL 3794657 at *2 (3d Cir. June 18, 2015)
(citing Farmer, 511 U.S. at 833)). “[I]n determining whether a prison official has shown
deliberate indifference to inmate health or safety, [a court] must look to what a prison official
actually knew rather than to what a reasonable official in his or her position should have known.”
In his complaint, Plaintiff sued Defendants in their individual and official capacities. By
Memorandum Opinion and Order of June 30, 2014 (ECF No. 28), the Court dismissed all official
capacity claims against Defendants. To the extent that Plaintiff brought claims against the
Defendants in their individual capacities, however, those claims remained viable.
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Serafin v. City of Johnstown, 53 F. App’x 211, 214 (3d Cir. 2002). Not only must a prison
official be “aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists,” but the official “must also draw the inference.” Farmer, 511 U.S. at 837.
A prison “official who knows of a risk to a prisoner can avert liability if he shows that he acted
reasonably, even if injury still occurred.” Freeman, 2015 WL 3794657 at *2 (citing BeersCapitol v. Whetzel, 256 F.3d 120, 132 (3d Cir. 2001)). “Not every prisoner-inflicted injury,
however, amounts to a constitutional violation.” Id. See also Bistrian v. Levi, 696 F.3d 35, 367
(3d Cir. 2012) (noting failure-to-protect § 1983 claim also requires showing that the official’s
deliberate indifference caused the prisoner harm).
The following facts are undisputed. On May 8, 2012, at approximately 9:00 AM, Abrams
tried to touch Ly’s genital area while Ly was naked in the shower. Abrams had on a T- shirt and
shorts. See ECF 46-3, Report of John A. Beers. Ly fended off the sexual assault by pushing
Abrams away and both men fell to the floor. Another inmate told them to break it up as “the
officer was looking around.” Id. Both Ly and Abrams then left the shower area and returned to
the cubicle which they shared. While Ly was trying to get dressed, Abrams approached him
from behind and began punching him.
Both Ly and Abrams were examined by the medical department. It was noted that Ly
had numerous scratches to his back and right side5 and that Abrams had no injuries.
Ly was placed in Administrative Custody (“AC”) pending completion of the
investigation of the incident. On May 8 and 9, 2012, an investigation into the incident was
conducted by Security Lieutenant John A. Beers (“Beers”), who interviewed Varner, Ly,
Abrams, and four (4) unnamed additional inmates. Beers concluded, inter alia, that
5

In his deposition Ly states he also injured his foot.
4

Inmate LY was preyed upon by inmate [Abrams]. Inmate LY was
attacked by inmate [Abrams] while in the shower room of JB unit.
Inmate LY protected himself. Inmate [Abrams] was the aggressor
in this reported assault. He tried to pressure inmate LY into
performing sexual acts.
...
I recommend that inmate [Abrams] receive an (sic) misconduct for
assault and that a separation be filed on both inmate LY and inmate
[Abrams] to prevent any retaliation or further incidence.
ECF No. 46-3 at 48.
On May 9, 2012, the day after the attack, Ly was released from AC and returned to
general population, where he was placed on Unit 3, JB 56. See ECF No. 46-1. On June 22,
2012, Ly’s request for “self-confinement” was granted and he was returned to AC. It was
reported Ly stated that he feared for his safety and that staff would not be able to protect him
should another incident happen.

Id.

On August 3, 2012, Ly was transferred from SCI-

Greensburg to SCI-Somerset, where he was returned to general population.6 See ECF No. 46-1.
The evidence is disputed whether Ly made any complaints to Defendants which
conveyed to them a specific threat of harm. In his investigative report, Lieutenant Beers wrote,
in pertinent part, that Defendant Varner stated that Ly
came to her a couple of times a couple of weeks ago requesting to
be moved . . . Miss Varner asked Inmate LY if he was having any
problems. LY responded that he was having issues with a cell
mate, but never reported that he was being sexually pressured by
inmate Abrams.
See ECF No. 46-3, Report of Beers. In a written statement prepared at the time of her interview
on May 8, 2012, Varner stated that she
The summary judgment record reflects that while at SCI-Somerset, Ly continually has
been housed in general population with the exception of the limited time period from September
27, 2012, through July 13, 2013, when he was housed in the Special Needs Unit at SCISomerset. See ECF No. 46-1.
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told Lt. Beers that Inmate Ly had requested to move out of his
cube and [she] had offered to move him twice. [She] had asked
him why he wanted to move from his premium bed / cube to a
much less preferred bed / cube and he never implicated Abrams as
a sexual predator against him.
Id. Defendants Heide and Glass argue that there is no indication in the record that they were
aware of any issues between Ly and Abrams that would have required their intervention as Ly
never conveyed to them a specific threat of harm.
Plaintiff counters these arguments by alleging that he submitted Inmate’s Request to Staff
Member Forms, dated May 2, 2012, directed to each of the Defendants. The Inmate’s Request to
Varner stated: “Say that I have a problem with a inmate (Mr. Abrams). I am living with him I am
being pressured in his homosexual ways. I like to switch from 45 JB to 42 JA. Thank you.” See
ECF Nos. 46-3, at 8; 54-1 at 2. The Inmate’s Requests to Heide and Glass contained identical
messages: “I have a problem with a inmate (Mr. Abrams) I am living with him I am being
pressured in his homosexual ways. I need to move as soon as possible. I like to switch from 45
JB to 42 JA. Thank you.” See ECF Nos. 46-3 at 16, 22; 54-2 at 2; 54-3 at 2.7 Ly also argues
that he verbally told Varner on May 7, 2012, that he had a problem with Abrams and requested
to move.
Defendants respond that they never saw the Inmate’s Request to Staff Member Forms
because these Inmate’s Requests were never received in the Superintendent’s office. Had they
been received, according to Defendants, the Inmate’s Requests would have been time stamped
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The summary judgment record also has a copy of an Inmate’s Request form to Staff
Member, dated May 12, 2012, addressed to Defendant Heide, in which Ly states as follows: “On
March (sic) 8, 2012, I was sexually assaulted in the shower. I had to defend myself. I was sent
to the R.H.U. I was released on the 9th of May. Before the incident occured I wrote Ms. Varner
a request slip dated the 2nd of May. Requesting to move from this homosexual. I needed to
move from JB to JA. . . . I am stating that I did not recieve the request slips back saying that I
needed to move. Thank you.” ECF No. 27-1.
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indicating receipt, and then reviewed and assigned for response. None of the Inmate’s Request
forms produced by Ly have a time stamp. Further, Defendant Varner contends that had she
received the Inmate’s Request, she would have reported it to the Security Office and taken
immediate steps to separate the inmates. See ECF No. 46-3 at 5. Defendant Heide contends that
had she received the Inmate’s Request, she would have contacted Ly’s Counselor and Unit
Manager to inquire about the situation and then, if appropriate, would have reported it to the
Security Office and taken immediately steps to separate the inmates. See ECF No. 46-3 at 14.
Likewise, Defendant Glass contends that had he received the Inmate’s Request, he would have
reported it to the Security Office and taken immediate steps to separate the inmates. See ECF
No. 46-3 at 19-20.
The Court finds that Ly has met his burden of showing that there is a genuine issue for
trial. It is not beyond reason for a fact-finder to find that Ly submitted these Inmate’s Request
Forms to the Superintendent’s office. It is also not beyond reason to conclude the opposite.
This, however, is a factual dispute and it is not for the Court to usurp the role of the jury and
decide this issue.
There is also disputed evidence surrounding whether Ly’s written statement prepared on
May 9, 2012, was coerced and whether Ly’s withdrawal of Grievance No. 412581 was also
coerced. Ly’s written statement, prepared on May 9, 2012, states in pertinent part, “I went to my
unit manager to be moved because I had a problem but didn’t tell her the reason why, I didn’t
report the incident to her.” According to Ly, both Intelligence Captain Sean L. Nose and
Lieutenant Beers were present during his interview, and Captain Nose told him that he could not
leave the interview room until Ly stated that he did not tell Varner the reason why he wanted to
move. Beers has provided a Declaration wherein he asserts that the statements he took from Ly

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were made voluntarily and without threat or coercion and that Beers was the only person that
conducted interviews during this investigation. See ECF No. 46-3 at 25.
Ly filed Grievance No. 412581 on May 16, 2012, in which he stated that he was “the
victim of an attempted rape case which was the consequence of the lack of proper security on
behalf of S.C.I. Greensburg.” On May 22, 2012, Ly withdrew this grievance. See ECF No. 46-1
at 10. The summary judgment record reflects that the next day, May 23, 2012, Ly submitted an
Inmate’s Request to Staff Member addressed to Toni M. Colland in which he stated, “I wrote a
grievance on May 16th and I felt pressured into signing the withdrawal form on the 22nd of this
month. I want to take back the withdrawal. The officer who told me to sign it was Captain
Nose. Thank you.” The same day, Ly received the following response: “Your withdrawal was
processed on 5-22-12 and the withdrawal cannot be ‘taken back’ once processed. Please refer to
DC-ADM 804, Section 1.A.19. Toni M. Colland.” These again are factual disputes and it is not
for the Court to usurp the role of the jury and decide these issues.
Defendants also argue that Ly is not credible because he has provided a number of
inconsistent statements and his allegations “appear to present a bit of a moving target.” Defs’ Br.
at 4 n. 3. (ECF No. 44). Any alleged inconsistencies, however, weigh on Plaintiff’s credibility
that only a jury may consider.
Because it is clear that there are material facts in dispute, Defendants’ motion for
summary judgment on Plaintiff’s Eighth Amendment failure-to-protect claims will be denied.
B.

Negligence claims
Plaintiff also raises his Eighth Amendment claims addressed above as allegations of

negligence under Pennsylvania law. Defendants argue that Ly’s state law tort claims against
them for negligence are barred by sovereign immunity.

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The doctrine of sovereign immunity, which is codified at 1 Pa. Cons. Stat. Ann. § 2310,
protects a state official from suit unless the cause of action falls within one of several statutory
exceptions, which are set forth in 42 Pa. Cons. Stat. Ann. § 8522, or the individual's conduct falls
outside the scope of the employee's employment. See Johnson v. Townsend, 314 F. App’x 436,
439 (3d Cir. 2008). Section 2310 provides, in pertinent part, as follows:
Pursuant to section 11 of Article 1 of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the General
Assembly that the Commonwealth, and its officials and employees
acting within the scope of their duties, shall continue to enjoy
sovereign immunity and official immunity and remain immune
from suit except as the General Assembly shall specifically waive
the immunity.
1 Pa. Cons. Stat. Ann. § 2310. This grant of immunity “applies to Commonwealth employees in
both their official and individual capacities, so long as the employees are acting within the scope
of their duties ” Thomas v. Shutika, 2014 WL 2514817 (M.D.Pa. 20140). Immunity only has
been waived in nine narrow areas involving negligence, which are defined in 42 Pa. Cons. Stat.
Ann. § 8522(b),8 none of which are applicable here. Therefore, Ly’s state law claims against
Defendants are barred unless any of the Defendants were acting outside the scope of their
employment during the events alleged in Ly’s complaint.
Under Pennsylvania law, an action falls within the scope of employment if it: (1) is the
kind that the employee is employed to perform; (2) occurs substantially within the job's
authorized time and space limits; (3) is motivated at least in part by a desire to serve the
employer; and (4) if force was used by the employee against another, the use of force is not

Section 8522 waives immunity in the following limited negligence categories: (1)
Vehicle liability; (2) Medical-professional liability; (3) Care, custody or control of personal
property; (4) Commonwealth real estate, highways and sidewalks; (5) Potholes and other
dangerous conditions; (6) Care, custody or control of animals; (7) Liquor store sales; (8)
National Guard activities; (9) Toxoids and vaccines. 42 Pa. Cons. Stat. Ann. § 8522(b).
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unexpectable by the employer. Restatement (Second) of Agency § 228; Brumfield v. Sanders,
232 F.3d 376, 380 (3d Cir. 2000) (stating that Pennsylvania Supreme Court has adopted the
Restatement's definition of “within the scope of employment”). Ly does not allege that the acts
of Defendants were committed outside the course and scope of employment, nor does anything
in the summary judgment record support such an allegation. Accordingly, Plaintiff's state law
claims that Defendants were negligent when they failed to protect him is barred by
Pennsylvania's sovereign immunity statute.
Conclusion
For all the foregoing reasons, the Motion for Summary Judgment will be granted in part
and denied in part. An appropriate Order follows.

ORDER
AND NOW, this 31st day of August, 2015,
It is hereby ORDERED that the Motion for Summary Judgment filed by Defendants is
GRANTED IN PART AND DENIED IN PART as follows:
1.

The motion is GRANTED as to Plaintiff’s negligence claims against Defendants;

2.

The motion is DENIED as to Plaintiff’s Eighth Amendment failure to protect

and

claims against Defendants.

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

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cc:

WEI LY
JL-4217
1600 Walters Mill Road
Somerset, PA 15510
(via U.S. First Class Mail)
Scott A. Bradley
Office of the Attorney General
(via ECF electronic notification)

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