COOPER v. MARTUCCHI et al

Filing 91

MEMORANDUM OPINION that the Defendants Motion for Summary Judgment (ECF No. 68 ) will be granted in part and denied in part. Signed by Magistrate Judge Lisa Pupo Lenihan on 02/26/2016. (jmb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH
HOWARD COOPER,
Plaintiff,
vs.
SGT. MARTUCCHI, OFFICER WALTER,
OFFICER BURNHART, DR. JIN,

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2:15-CV-00267-LPL
ECF NO. 68

Defendants.
MEMORANDUM OPINION
This case is before the Court on Defendants Martucci, Walters, and Barnhart’s Motion
for Summary Judgment filed on November 23, 2015. (ECF No. 68.) Defendants have filed a
Motion for Summary Judgment, Concise Statement of Material Facts, and a Brief in Support
thereof. (ECF Nos. 68, 70, 69.) Plaintiff has filed a Brief in Opposition to the Motion for
Summary Judgment (ECF No. 78).
I.

FACTUAL BACKGROUND
On or around February 23, 2015, pro se Plaintiff, Howard Cooper, initiated a civil action

against various defendants regarding an assault by another inmate and the medical care provided
to him while he was an inmate incarcerated within the Pennsylvania Department of Corrections
at S.C.I.-Greene. According to his Complaint, on December 1, 2014, Plaintiff overheard Inmate
Mayo advise the Defendant Corrections Officers that he was a Z-Code (single cell housing
restriction) and that he would kill anyone who was placed in a cell with him. (ECF No. 7, ¶ 7).
Plaintiff alleges that, as the cell door opened, Inmate Mayo reaffirmed that, if the Defendants put
him in a cell with another inmate, he would try to kill the cellmate. (ECF No. 7, ¶ 8).

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Notwithstanding these threats, the Corrections Officers purportedly ordered Inmate Mayo
into a cell with Plaintiff. (ECF No. 7, ¶ 8). Once in the cell, Inmate Mayo pulled a sock filled
with batteries from his personal belongings and began to assault Plaintiff, hitting him with the
battery-filled sock approximately 12 to 15 times on his head, hands, ribs, stomach, and legs.
(ECF No. 7, ¶ 9-10). Plaintiff alleges that Defendants were deliberately indifferent to his safety
by housing him in a cell with a Z-code inmate after the inmate threatened to “kill” any potential
cellmates. (ECF No. 7, ¶ 15).
Undisputed evidence shows that Sgt. Martucci checked three different sources to
determine if Inmate Mayo was a Z-code before placing him in the cell with Plaintiff. (Exh. B, ¶
4; ECF No. 78, ¶ 41). A later investigation revealed that Inmate Mayo was a Z-code, but the code
was omitted by a clerical error made by a counselor and that Defendants had no way of knowing
this information. (Exh. C, p. 49).
Defendants dispute that Inmate Mayo told them that he would kill a cellmate if forced to
house with one. (ECF No. 69, pg. 5). Defendants admit that Inmate Mayo argued with them over
the Z-code status, but deny that Inmate Mayo made any threats to harm or kill a cellmate. (ECF
No. 69, pg. 5).

II.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving

party, “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). Summary judgment may be
granted against a party who fails to adduce facts sufficient to establish the existence of any
element essential to that party’s case, and for which that party will bear the burden of proof at

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trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of identifying evidence, or the lack thereof, which demonstrates the absence of a genuine
issue of material fact. Nat’l State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1581-82
(3d Cir. 1992) (citing Celotex, 477 U.S. at 323-25). Once that burden has been met, the nonmoving party may not rest on the allegations in the complaint, but must “go beyond the
pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Celotex, 477 U.S. at 324 (quoting FED. R. CIV. P. 56(e) (1963)). See also Orsatti v. N.J. State
Police, 71 F.3d 480, 484 (3d Cir. 1995) (“plaintiff cannot resist a properly supported motion for
summary judgment merely by restating the allegations of his complaint, but must point to
concrete evidence in the record that supports each and every essential element of his case.”)
(citing Celotex, 477 U.S. 317).
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, 248 (1986).
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)(2); Celotex, 477 U.S.
at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).
Where the non-moving party fails to respond to a summary judgment motion, that failure
does not automatically result in the entry of summary judgment for the movant.

Douglas v.

Brookville Area Sch. Dist., 836 F.Supp. 2d 329, 351 (W.D. Pa. 2011) (citing Anchorage Assocs.
v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 171 (3d Cir. 1990)). Instead, where the nonmoving party fails to properly address the moving party’s assertions of fact as required by Rule
56(c), the court may give the non-moving party yet another opportunity to properly address the

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asserted facts or may consider the asserted facts undisputed, or the court may “grant summary
judgment only if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to [judgment as a matter of law].” FED. R. CIV. P.
56(e)(1) - (3). See Accord Cortez v. Ford, No. 1:07-CV-1466, 2008 WL 4186906, at *1 (M.D.
Pa. Sept. 5, 2008) (court deemed summary judgment motion unopposed where plaintiff failed to
file an appropriate response despite being afforded the opportunity to respond and being advised
that his failure to do so in a timely manner would result in the motion being deemed unopposed);
Robinson v. Velasquez, No. 07-CV-3645 (KAM)(LB), 2010 WL 1010733, at *4 (E.D.N.Y. Mar.
15, 2010) (granting defendant’s motion for summary judgment in §1983 action where pro se
plaintiff failed to oppose it, despite receiving notice of the motion and supporting documents,
including a notice identifying his obligations and repeated opportunity, through extensions of
time, to respond, and court determined defendant was entitled to judgment as a matter of law).
III. ANALYSIS
A. Deliberate Indifference to Plaintiff’s Safety by Housing Him with a Z-Code
Inmate
It is undisputed that Inmate Mayo had Z-code status and was not supposed to be housed
with a cellmate; the issue is whether or not the Corrections Officers can be held liable for
housing Inmate Mayo with Plaintiff despite this fact. The parties agree that Inmate Mayo told the
Defendants, as they were leading him to Plaintiff’s cell, that he was Z-code status and was not
supposed to be housed with anyone else. (ECF No. 71-1, Exh. B, ¶ 4; Exh. C, p. 38; ECF No. 78,
¶ 41). After hearing this, Sgt. Martucci double-checked the information that he had received that
afternoon from the Unit Manager, but there was no Z-code status listed. (ECF No. 71-1, Exh. B,
¶ 4). Then he checked with the “Bubble Officer” and his records were the same. Id. Finally, Sgt.

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Martucci called to the Restricted Housing Unit Lieutenant, who also confirmed that Inmate
Mayo did not have a Z-code status. Id.
Defendants assert that “no amount of investigation could have confirmed Mayo’s claim
because the record was incorrect.” (ECF No. 69 p. 10). A later investigation revealed that
Counselor Congelio, who was assigned to Inmate Mayo, had made a mistake in his record that
caused Inmate Mayo’s Z-code to drop from the system. (ECF No. 71-1, Exh. C, pp. 20, 48-49).
Plaintiff, in his Response, states that the error in Inmate Mayo’s record was not a material
fact because Plaintiff’s claims are based on Defendants’ failure to respond to “the serious risk of
harm posed to Plaintiff, not because of the incorrect record.” (ECF No. 78, ¶ 41).
The Eighth Amendment protects individuals against the infliction of “cruel and unusual
punishments.” U.S. CONST. amend. VIII. This protection, enforced against the states through the
Fourteenth Amendment, guarantees incarcerated persons humane conditions of confinement.
Prison officials must ensure that inmates receive adequate food, clothing, shelter and medical
care, and must “take reasonable measures to guarantee the safety of inmates.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
A prison official is only liable under a deliberate indifference claim if an inmate can
prove two elements: (1) prison officials knew of “an excessive risk to inmate health or safety”
and (2) that the officials “disregarded” this risk. Farmer, 511 U.S. at 837; Beers-Capitol v.
Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). The official must actually be aware of the risk; an
allegation that the official should have been aware of the risk is insufficient. Farmer, 511 U.S. at
837.
Furthermore, if an official is actually aware of the risk, and the harm is not avoided, he is
not liable if he can show that he responded reasonably to the risk. Farmer, 511 U.S. at 844.

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Prison officials cannot be found liable on a failure-to-protect claim if they act reasonably. Id. at
845.
Here, Defendants were informed of a potential risk to Plaintiff’s safety when Inmate
Mayo told them he was supposed to have Z-code status. However, they did not “disregard” this
risk and they reasonably responded to it. Sgt. Martucci triple-checked Inmate Mayo’s alleged Zcode status three times before moving him into Plaintiff’s cell. All three sources failed to show
that Inmate Mayo had a Z-code status because of a clerical error made by a counselor, not any of
the Defendants. Under the circumstances, Defendants did not disregard a potential risk, took
reasonable steps to investigate it, and, after this investigation, were not even aware that a risk
existed.
Therefore, Plaintiff has failed to state a claim for deliberate indifference to his safety for
the Defendants housing Z-code status Inmate Mayo with Plaintiff.
B. Deliberate Indifference to Plaintiff’s Safety by Ignoring Threats from Fellow
Inmate
The Parties disagree as to whether there is a disputed, material fact regarding whether or
not Inmate Mayo made threats on Plaintiff’s life in front of, and within hearing distance of, the
Defendants. Plaintiff asserts that he heard Inmate Mayo and the Defendants arguing outside of
his cell; specifically, Inmate Mayo purportedly said that if he was put into a cell with someone he
would try to kill him. (ECF No. 7, ¶ 7). Plaintiff alleges that Inmate Mayo repeated this threat as
Plaintiff’s cell door was opened. (ECF No. 7, ¶ 8). Plaintiff claims that, since Defendants
disregarded these threats and ordered Inmate Mayo into his cell regardless, Defendants were
deliberately indifferent towards Plaintiff’s safety. (ECF No. 7, ¶ 15).
Defendants admit that Inmate Mayo argued with them over the Z-code status, but deny
that Inmate Mayo told them that he would kill a cellmate if he was forced to be housed with one.
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Defendant Sgt. Martucci asserted in an affidavit that Inmate Mayo “never threatened anyone or
said anything about harming a cellie if put in with someone.” (ECF No. 71-1, Exh. B, ¶ 5-9).
Similarly, in his written statement following an interview concerning the incident, Officer
Walters claimed that at no time prior to Inmate Mayo going into Plaintiff’s cell did Inmate Mayo
state that “he was going to harm, assault, or try to kill his cell mate or Inmate Cooper.” (ECF No.
71-1, Exh. C., pp. 40-41). Officer Hollowood, who was later determined to be one of the officers
leading Inmate Mayo to Plaintiff’s cell, also made a similar statement that at no time prior to
Inmate Mayo being moved to the cell did Inmate Mayo “state he was going to harm or assault or
try to kill his cellmate or Inmate Cooper.” Id. at 42-43.
Defendants further allege that Inmate Mayo, in an interview after the incident, stated he
did not make any threats that he would harm or kill any cellmate while being led to his cell, and
merely informed the Defendants of his Z-code status. Id. at 38. Finally, Defendants refer to a
later interview with Plaintiff after the incident where Plaintiff allegedly contradicted his prior
statements by admitting that he had not actually heard Inmate Mayo inform Defendants prior to
the assault that he was going to try to “harm or kill a cellmate.” Id. at 35.1
Plaintiff responded by disputing the allegations made by the Defendants that Inmate
Mayo never threatened to kill Plaintiff as the Defendants were leading Inmate Mayo to Plaintiff’s
cell. (ECF No. 78, ¶ 39). In support of his assertion, Plaintiff refers to the original grievance he
filed with the prison which stated Inmate Mayo “told [the Defendants] that if they put him with
me in 2 cell he was going to try and kill his celly.” (ECF No. 71-1, Exh. C, p. 32). After his
grievance was denied, Plaintiff filed an appeal which reiterated that the Defendants were to

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The report from the interview states that Plaintiff said he knew staff were aware of the threats
prior to the assault because of what he heard Inmate Mayo saying while he was attacking him.
Also, he said “he just knows” and other people had told him. (ECF No. 71-1, Exh. C, p. 35).
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blame for Inmate Mayo’s assault on Plaintiff because “they heard the threat and they disregarded
it.” Id.at 29-30.
Finally, Plaintiff also relies on the report he made to the Inmate Abuse Hotline, in which
he told the investigator that Inmate Mayo had informed the Defendants that he would assault
Plaintiff if Inmate Mayo was placed in the cell with him. Id. at 14. Plaintiff relies on these
records and reports to support his allegation that Inmate Mayo did make threats to harm, or kill,
Plaintiff and that Defendants heard these threats but disregarded them, demonstrating deliberate
indifference.
As stated above, a prison official is only liable under a deliberate indifference claim if an
inmate can prove two elements: (1) prison officials knew of “an excessive risk to inmate health
or safety,” and (2) that the officials “disregarded” this risk. Farmer, 511 U.S. at 837 (1994);
Beers-Capitol, 256 F.3d at 125 (3d Cir. 2001). Furthermore, not every injury suffered by an
inmate at the hands of another automatically means that the prison officials are liable. Farmer,
511 U.S. at 834. Therefore, to defeat a Motion for Summary Judgment, the Plaintiff must present
enough evidence “to support an inference that the defendants ‘knowingly and unreasonably
disregarded an objectively intolerable risk of harm.’” Beers-Capitol, 256 F.3d at 132.
Plaintiff avers that Inmate Mayo threatened to harm him. If the Defendants had heard
Inmate Mayo threaten that he was going to harm his potential cellmate (Plaintiff), they would
have been aware of “an excessive risk to inmate health or safety.” If they proceeded to place
Inmate Mayo in Plaintiff’s cell after hearing the threats, they would have “disregarded” this risk.
However, the Defendants have alleged, and supported these allegations with an affidavit and
written statements, that Inmate Mayo never made any threats. This presents a material issue of
fact for the jury to determine. Therefore, Defendants’ Motion for Summary Judgment on this

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deliberate indifference issue, concerning the disregard of threats on Plaintiff’s life by a fellow
inmate, will be denied.
C. Officer Barnhart’s Personal Involvement in the Alleged Claims
Defendants assert that Plaintiff confused Defendant Barnhart, one of the officers who
responded to the fight call, with Officer Hollowood, who was present in transporting Inmate
Mayo to Plaintiff’s cell and watched him unpack his belongings. (ECF. 70, ¶ 46).
In his affidavit, Defendant Martucci asserts that when Inmate Mayo arrived from RHU he
was escorted by Officer Hollowood and Officer Walters. (ECF No. 71-1, Exh. B, ¶ 4). This is
supported by Defendant Barnhart’s own incident report where he states he arrived after the
assault took place in order to assist with an escort to medical. (ECF No. 71-1, Exh. D, pp. 30-31).
Furthermore, the Defendants have provided video evidence that shows CO Hollowood with
Inmate Mayo as he is unpacking his belongings, but Officer Barnhart does not appear until after
the assault has actually taken place. (ECF No. 71-1, Exh. A; Exh. B-1). In his response, Plaintiff
does not dispute this assertion2 (ECF 78, ¶ 46).
If Officer Barnhart was not present when Inmate Mayo was being led to Plaintiff’s cell or
during the assault, he could not have known of an “excessive risk” to Plaintiff’s safety and then
chosen to “disregard” it. Therefore, Defendants’ Motion for Summary Judgment on the issue of
Officer Barnhart’s personal involvement will be granted.

IV. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 68)
will be granted in part and denied in part.

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However, Plaintiff does qualify this by saying he wants to review the video footage. (ECF 78, ¶ 46).

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An appropriate Order will follow.

DATED this 26th day of February, 2016.

BY THE COURT:

____________________________________
LISA PUPO LENIHAN
United States Magistrate Judge

CC: HOWARD COOPER
JT-3733
SCI Greene
175 Progress Drive
Waynesburg, PA 15370

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