EVERETT v. PIERCE et al
MEMORANDUM OPINION granting 125 MOTION for Summary Judgment filed by LOUIS BOZELLI, C/O RODGER, C/O HANN. See Memorandum Opinion for details. Signed by Magistrate Judge Cynthia Reed Eddy on 6/20/2017. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEVON A. EVERETT,
C/O HANN, C/O ROGERS, and LOUIS
Civil Action No. 2: 15-cv-1383
United States Magistrate Judge
Cynthia Reed Eddy
Presently before the Court is Defendants’ Motion for Summary Judgment, with brief in
support. (ECF Nos. 125 and 126). Plaintiff, Jevon A. Everett, has filed a Brief in opposition
(ECF No. 135), to which Defendants have filed a Reply Brief. (ECF No. 136). The issues have
been fully briefed and the factual record has been thoroughly developed. (ECF Nos. 126 and
128). For the reasons set forth below, the motion for summary judgment will be granted and the
Clerk of Court will be directed to close this case.
Plaintiff, Jevon A. Everett (“Plaintiff” or “Everett”) is a state prisoner in the custody of
the Pennsylvania Department of Corrections (“DOC”) currently confined at SCI-Greene. The
events giving rise to this lawsuit occurred while Plaintiff was incarcerated at SCI-Fayette.
Plaintiff brings suit pursuant to 42 U.S.C. § 1983 against three DOC employees: C/O Hann,
On January 13, 2017, United States District Judge Arthur J. Schwab held an initial case
management conference in this case, at which time all parties verbally consented to having the
undersigned exercise jurisdiction over the matter. See Hearing Memo, ECF No. 115.
Thereafter, Judge Schwab referred the matter back to the undersigned for all future proceedings,
C/O Rogers, and Unit Manager Louis Bozelli. After prescreening and the granting in part of
Defendants’ motion to dismiss, two claims remain: (i) First Amendment retaliation and (ii)
Eighth Amendment failure to protect.
Plaintiff alleges that he has been the subject of retaliation due to his filing a lawsuit and
grievances and that Defendants failed to protect him from his cellmate and issued him a false
misconduct. Specifically, Plaintiff contends that on June 5, 2016, Michael Jones, Plaintiff’s
former cellmate, was placed back in Plaintiff’s cell in retaliation for Plaintiff’s filing of a
lawsuit and grievances. According to Plaintiff, Jones was originally placed with Plaintiff for
four days in December 2015, but “was removed due to incompatibility and conflict of cases.”2
(ECF No. 135-2 at 64). Jones was returned to Plaintiff’s cell on June 5, 2016 because,
according to Plaintiff, Defendants “wanted to get [Everett] . . . and that they were putting this
rapist in my cell and wanted me to respond so that could write me up.” (ECF No. 135-2 at 23).
Plaintiff further contends that as soon as Jones walked into the cell, he stated that “CO Hann,
wants us to fight, that is why he told your celly Ryan to move out, so we could fight and you
can go to the hole (RHU).” Pl’s Br. at 11.
It is not disputed that on July 31, 2016, there was an altercation between Plaintiff and
Jones while in their cell. The parties dispute whether Plaintiff was the aggressor or the victim.
Jones sustained injuries to his face and head which required hospitalization. At the time, the
medical staff noted only superficial injuries to Plaintiff’s right knuckles. Plaintiff now claims
that he also suffered a hernia in his pelvic area from the altercation with Jones.
In Grievance No. 635667, filed by Plaintiff on 7/22/2016, he described the conflict as
follows: “my case conflicts with the celly housed with me do (sic) to he has a rape case and I’m
charged with allegedly killing a rapist who allegedly raped my four year old daughter.” (ECF
No. 135-2 at 65). This grievance was denied as frivolous on 8/3/2016, three days after the
incident between Jones and Plaintiff occurred.
Following the close of discovery, Defendants filed the pending motion for summary
judgment. In response to the instant motion, Plaintiff submitted 68 pages of documents, which
include his own Statements and Affidavits; the Affidavits / Declarations of fellow inmates
Ronald G. Gilmore, Jr., Steven S. Wilson, Milton Johnson, Rondell Ellis, Khareem Little, and
Abdul Murray; the Cell History for Plaintiff and Michael Jones; various documents regarding
his grievances and misconduct; a newspaper article; and employee locator search results, with
job descriptions, for Defendants Hann, Bozelli, and Rogers.
Standard of Review
Summary judgment may be granted “if 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). “A fact is material if it might affect the outcome of the suit under the
governing law.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (citation omitted). In
deciding a motion for summary judgment, the Court’s function is not to weigh the evidence, to
determine the truth of the matter, or to evaluate credibility. See Montone v. City of Jersey City,
709 F.3d 181 (3d Cir. 2013). Rather, the Court is only to determine whether the evidence of
record is such that a reasonable jury could return a verdict for the non-moving party. Id. In
evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, and draw all reasonable inferences in favor of the non-movant. Watson v.
Abington Twp., 478 F. 3d 144,147 (3d Cir. 2007).
Discussion and Analysis
Plaintiff’s claims for First Amendment retaliation and Eighth Amendment failure to
protect are based on the incident with his cellmate Michael Jones on July 31, 2016. Defendants
move for summary judgment as to each claim arguing that (1) Plaintiff has failed to exhaust his
administrative remedies, (2) Plaintiff has not established that Defendants were personally
involved in the decision to place Jones in Plaintiff’s cell; (3) there is insufficient evidence to
establish a failure to protect claim; and (4) there is insufficient evidence to support a retaliation
claim regarding the issuance of the misconduct report. These arguments will be addressed
The Administrative Exhaustion Requirement
Defendants’ first argument is that summary judgment should be entered in their favor
because Plaintiff has not exhausted his administrative remedies.
Under the Prison Litigation Reform Act of 1995 (“PLRA”), a prisoner is required to
pursue all avenues of relief available within the prison’s grievance system before bringing a
federal civil rights action concerning prison conditions. 42 U.S.C. § 1997e(a);
Churner, 206 F.3d 289, 291 (3d Cir. 2000), aff’d, 532 U.S. 731 (2001).
In order to fully
exhaust remedies, a plaintiff must pursue a grievance through final administrative review.
Salley v. PA Dept. of Corr., 181 F. App’x 258, 264 (3d Cir. 2006).
Plaintiff argues that the administrative process was not available to him because prison
officials prevented him from exhausting his administrative remedies. Specifically, Plaintiff
alleges that the “staff refuse[d] to address” his grievances. The summary judgment record
evidence contains a Request to Staff Member, dated 7/8/16 in which Plaintiff voices his concern
to Unit Manager Hawk about Jones being placed back in his cell, to which she responds on July
15, 2016, that while his concerns are noted, at this time he is appropriately housed. (ECF No.
135-2 at 23, 39). The summary judgment record evidence also contains Grievance No. 635667,
dated 7/22/16, in which Plaintiff again expresses his concern about Jones being placed in his
cell. On 8/3/2016, his grievance was denied and it was explained to Plaintiff that “housing
inmates is an institutional decision and up to the discretion of the staff and the needs of the
institution. There are no “separations” available from all rapists, as this grievant is requesting.”
During his deposition, Plaintiff testified that he didn’t believe he had appealed this
decision because he was in RHU at the time of the decision and staff interfered with his ability
to appeal. Such interference, if true, would render the administrative remedies “unavailable” to
Plaintiff for purposes of the PLRA. See Robinson v. Superintendent Rockview SCI, 831 F.3d
148, 154 (3d Cir. 2016).3
Although concededly a close call, for purposes of this opinion only, the Court finds that
Plaintiff has presented sufficient evidence that he was prevented from complying with the
grievance process and will be excused from the PLRA’s exhaustion requirement as the process
was unavailable to him. Accordingly, the Court will proceed to review Plaintiff’s claims on the
Plaintiff claims that Defendants violated his First Amendment rights by retaliating
against him for filing a lawsuit and grievances. He asserts two instances of retaliation: (1)
Defendants placed Jones, his former cellmate, back in his cell who then attacked him; and (2)
Defendant Rogers issued a falsified misconduct report against him. Retaliation claims are
judged against exacting legal standards. Merely alleging the fact of retaliation is insufficient; in
order to prevail on a retaliation claim, a plaintiff must show three things: (1) the conduct in
which he was engaged was constitutionally protected; (2) he suffered adverse action at the
hands of prison officials; and (3) his constitutionally protected conduct was a substantial or
He also contends that he filed grievances on June 5, 2016, after Jones was placed in his
cell; according to Defendants, however, there is no record in the Department’s grievance
records of any grievances filed by Plaintiff on that date.
motivating factor in the decisions to take adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001). If the plaintiff proves these three elements, the burden shifts to the defendant to
prove by a preponderance of the evidence that it “would have made the same decision absent
the protected conduct for reasons reasonably related to penological interest.”
McGrady, 292 F.3d 152, 158 (3d Cir. 2002).
Placement of Jones in Plaintiff’s cell
Plaintiff makes various allegations against Defendants regarding the placement of Jones
in his cell. In response, Defendants argue that they did not take any adverse action him as they
were not involved in the decision to place Jones in Plaintiff’s cell. This argument is well taken.
Assuming that Plaintiff established that he engaged in constitutionally protected conduct
(filing a lawsuit and grievances could constitute protected activity), Milhouse v. Carlson, 652
F.2d 371, 373-74 (3d Cir. 1981), there is no evidence that any of these Defendants were
responsible for placing Jones in Plaintiff’s cell in June of 2016.
As Plaintiff acknowledges, normally it is the Unit Managers who approve cell moves
and Carey Hawk was the Unit Manager in June of 2016. See P’s Br. at 17. (ECF No. 135).
Plaintiff raised his concerns about Jones being celled with him to Unit Manager Hauk on July 8,
2016. (ECF 138-2). On July 15, 2016, Hauk replied, “Your concerns have been noted. At this
time you are appropriately housed. When space becomes available you may be considered for a
move then.” Id.
The summary judgment record evidence reflects that while Defendant Bozelli was the
Unit Manager of B block in December 2015 (when Jones was first placed in Plaintiff’s cell),4 he
voluntarily left B block on March 21, 2016. He is currently the Unit Manager of E Block. As
In his Declaration, Bozelli states that he does not recall being involved in the decision to
cell Jones and Plaintiff together the first time, between December 4 and 8, 2015. (ECF No. 128,
at 128, ¶ 6).
such, he was not involved in celling Plaintiff and Jones together the second time as he was not
the Unit Manager of B block at that time. Plaintiff, however, responds
Lou Bozelli is a Unit Manager for SCI-Fayette and holds many other titles such
as a member of PRC (Program Review Committee) these two titles are
prominent position for which they stand out. These two positions have held a
superior influence on prisoners and facility as they are known to control the daily
activities and the running of the facility both in Population and custody whether
Administrative, Disciplinary or other, these position are easily abused. . . .
P’s Br. at 13. (ECF No. 135).
Aside from Plaintiff’s own suspicions and suppositions, which are not enough to survive
summary judgment, there is no evidence in the record that would suggest that Bozelli had any
personal involvement in the decision to place Jones in Plaintiff’s cell in June of 2016.
Similarly, Officer Hann states in his Declaration that in June of 2016, he was a
Corrections Officer 1 assigned to B Block on the 6 – 12 shift. He avers that the placement of
inmates is usually a decision made by the Unit Manager, who was Carey Hawk at the time of
the incident which gives rise to this lawsuit. Officer Hann does not recall having any input in
placing Plaintiff and Jones together in the same cell. Hann last worked on B Block on June 14,
2016, when he suffered a work injury. He was not working at the institution on the date of the
altercation between Plaintiff and Jones. Declaration of Kevin Hann (ECF No. 128, at 130 –
In response, Plaintiff states that his former cell mate, Ryan Brown, told him that
Defendant Hann told Brown that he was being moved to another cell, because “I’m after your
celly Everett, he’s filing grievances and lawsuits and I need you out of the way so I can get
him.” P’s Br. at 10. (ECF No. 135). Plaintiff further states that Brown told him that Hann was
going to “put that same inmate back into your cell so he (Michael Jones) could fuck you up!”
Id. Plaintiff, however, has provided no support for his statements. He states that Brown would
not write an affidavit because “he was scared to write the affidavit because he wanted parole
and that Hann, could hurt his chances of Parole. Ryan also stated that he feared the same
retaliation Plaintiff had experienced and said I don’t need that while I’m here.” Id.
Unfortunately for Plaintiff, Brown’s alleged statements are not sufficient to withstand
summary judgment scrutiny. Only evidence which is admissible at trial may be considered in
ruling on a motion for summary judgment. Plaintiff, as the non-moving party, may defeat a
summary judgment motion by demonstrating, through submissions of evidentiary quality (i.e.,
depositions, answers to interrogatories and admissions), that a trial worthy issue exists. Celotex
v. Catrett, 477 U.S. 317, 322-24 (1986).
Plaintiff has not come forward with evidence
sufficient to convince a reasonable factfinder to find all of the elements of his prima facie case;
rather he relies on mere allegations, which is insufficient. See Blunt v, Lower Merion School
Dist., 767 F.3d 247, 265 (3d Cir. 2014). Accordingly, there is no summary judgment evidence
that would be admissible at trial that suggests that Defendant Hann had any personal
involvement in the decision to place Jones in Plaintiff’s cell in June of 2016.
The same is true with Defendant Rogers. During the relevant time period, he was
assigned to B Block on the 10 p.m. -6 a.m. or night shift. In his Declaration, he avers that he
had no role in placing Plaintiff and Jones in the same cell as that decision would be made by
other staff on other shifts.
Plaintiff responds that Defendant Rogers is a “subordinate officer underneath Bozelli.
They are working together on a daily basis in order to maintain RHU and Administrative
custody inmates in and out of the Hole.” Pl’s Br. at 14. However, in his Declaration, Rogers
states that he worked on a different shift than Bozelli, that he had very little interaction with
Bozelli, and that he did not report to him. Declaration of Rogers, ¶ 4 (ECF No. 125 at 134).
There is no evidence in the record that would suggest that Rogers had any personal involvement
in the decision to place Jones in Plaintiff’s cell in June of 2016.
Accordingly, even if Plaintiff could establish an underlying violation of his
constitutional rights, these Defendants would nonetheless be entitled to summary judgment.
Plaintiff contends that Defendant Rogers further retaliated against him by filing a false
misconduct report for assault following the altercation between Plaintiff and Jones.
misconduct report is legitimate so long as it is issued for “reasons reasonably related to a
legitimate penological interest.” Rauser, 241 F.3d at 334. According to Rogers, the altercation
between Everett and Jones
occurred at the start of my shift. I was doing rounds on B block and at BB 1028
cell, when I saw inmate Everett striking Jones, while Jones was lying on the
ground in front of the cell door. Everett was standing over top of Jones. I never
saw Jones strike Everett and Everett was the aggressor. Jones is an older inmate.
Declaration of Rogers, ¶ 5, 7. Further, Rogers states in his Declaration that
There is no truth to inmate Everett’s assertions that the misconduct that I issued
was false or that Unit Manager Bozelli or anyone else directed me to issue the
misconduct to Everett. I issued the misconduct, because I saw Everett assault
inmate Jones. I never told Everett that the misconduct was false or apologized to
him. I did not retaliate against Everett in any way.
Id. at ¶ 10. Plaintiff was found guilty of the misconduct and placed in the restrictive housing
unit for 90 days.
Defendants cite unpublished Third Circuit opinions, Nifas v. Beard, 374 F. App’x 241
(3d Cir. 2010), cert. denied, 563 U.S. 941 (2011), and Romansky v. Stickman, 147 F. App’x 310
(3d Cir. 2005), for the proposition that retaliatory-disciplinary claims fail when there is “some
evidence” supporting a guilty finding on the misconduct charge. Defs’ Br. at 15. However, in
evaluating the legitimacy of a misconduct report, this Court must consider “the quantum of
evidence of the misconduct to determine whether the prison officials’ decision to discipline an
inmate for his violations of prison policy was within the broad discretion we must afford them.”
(emphasis added). Watson v. Rozum, 834 F.3d 417 (3d Cir. 2016), petition for cert. filed (U.S.
Mar. 7, 2017)(No. 16-1075). A finding of misconduct must include “a meaningful written
statement of the evidence relied on and the reasons for the action taken.” Dyson v. Kocik, 689
F.2d 466, 467 (3d Cir. 1982).
Here, the summary judgment record reflects that Rogers charged Plaintiff with assault
based on his own personal observations of Plaintiff striking Jones, while Jones was lying on the
ground. The misconduct conviction is supported by a written statement of the evidence relied
on by the hearing examiner in concluding that Plaintiff was guilty of assault. See Disciplinary
Hearing Report (ECF No. 128 at 137 (“The examiner finds the c/o’s report and eye witness
account to be clear and credible.”).
Given the force of the evidence that Plaintiff was guilty of
assault, the Court finds that the misconduct was legitimate and not retaliatory, and summary
judgment will be granted as to this claim.
Failure to Protect
Plaintiff alleges that Defendants violated the Eighth Amendment by failing to protect
him from an attack by his cellmate. As the Court has already determined, Plaintiff has not
brought forward sufficient evidence of personal involvement on the part of any of these
Defendants, so any claim against them for failure to protect must fail. Even if there was
evidence of personal involvement, Plaintiff’s attempt to impose liability on these Defendants
under the Eighth Amendment also fails.
The Eighth Amendment requires a prison official to “take reasonable measures to
protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.
825, 833 (1994). The United States Supreme Court has held that it is “not, however, every
injury suffered by one prisoner at the hands of another than translates into constitutional liability
for prison officials responsible for the victim’s safety.” Farmer, 511 U.S. at 834. To survive
summary judgment, Plaintiff needs to point to evidence in the record that Defendants both knew
of and were deliberately indifferent to an excessive risk to his safety. See Beers-Capitol v.
Whetzel, 256 F.3d 120, 131 (3d Cir. 2001) (citing Farmer, 511 U.S. at 837). The test for
deliberate indifference is twofold: To act with deliberate indifference, “the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. The Court finds that
Plaintiff has failed to adduce evidence to show that Defendants operated with the requisite
Here, there is no indication in the record that Defendants made the inference that an
excessive risk was present. Plaintiff and Jones had been celled together in December of 2015
without incident. Defendants each indicated that Jones was older and not known to be
aggressive. There were no longstanding, pervasive, well-documented or previously noted
tensions between Plaintiff and Jones. Farmer, 511 U.S. at 842. Nor is there any indication in
the record that Plaintiff communicated to these Defendants his concern or a specific fear about
being celled with Jones again.
The Court acknowledges that the factual assertions of the parties differ as to who
instigated the altercation between Jones and Plaintiff. That dispute, however, is not material to
Plaintiff’s claims. See Fed.R.Civ.P. 56(a). Even assuming that Plaintiff was attacked by Jones,
Plaintiff has not pointed to evidence of deliberate indifference.
Thus, the Court concludes that summary judgment is warranted as the record is void of
evidence to permit a reasonable finder of fact to infer that Defendants both knew and
intentionally disregarded an excessive risk to Plaintiff’s safety.
For the reasons stated above, the Motion for Summary Judgment will be granted. A
separate order follows.
DATED: June 20, 2017
BY THE COURT:
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
JEVON A. EVERETT
175 Progress Drive
Waynesburg, PA 15370
Raymond W. Dorian
Pennsylvania Department of Corrections
(via ECF electronic notification)
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