WOLOWSKI v. FLETCHER et al

Filing 71

MEMORANDUM OPINION AND ORDER denying 56 Motion for Summary Judgment. IT IS HEREBY ORDERED that summary judgment on Plaintiff's claims for excessive force is DENIED. Plaintiff's claims for deliberate indifference to his serious medical needs have been voluntarily dismissed. Signed by Magistrate Judge Cynthia Reed Eddy on 5/10/2018. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRANDON WOLOWSKI,
Plaintiff,
v.
ADRIAN FLETCHER, et al,
Defendants.

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Civil Action No. 2: 16-cv-1538
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION AND ORDER1
Presently pending before the Court for disposition is Defendants’ Motion for Summary
Judgment, with brief in support (ECF Nos. 41 and 42). Plaintiff has filed a Memorandum of
Law in opposition (ECF No. 62). The issues have been fully briefed and the factual record has
been thoroughly developed. (ECF Nos. 43, 44, 63, 64, and 70). For the reasons that follow, the
motion will be denied.
I.

Background

Plaintiff, Brandon Wolowski (“Plaintiff” or “Wolowski”) is a pro se inmate who has
been granted leave to proceed in forma pauperis. Wolowski is a pre-trial detainee being held on
a number of state charges which were filed in the Court of Common Pleas of Washington
County at Criminal No. CP-63-CR-0000151-2013.2 The alleged incidents giving rise to this
lawsuit occurred while Wolowski was housed at the Washington County Correctional Facility

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
trial and the entry of a final judgment. See ECF Nos. 38 and 46.
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A review of the public docket reflects that Wolowski has been charged with criminal
homicide, aggravated assault, criminal attempt - criminal homicide, and robbery - inflict serious
bodily injury. Jury selection in his criminal trial is scheduled to commence on September 24,
2018, with trial scheduled to commence on October 29, 2018.
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(“WCCF”). Defendant movants herein are Captain Adrian Fletcher, Officer Keith Watson,
Officer David Thorne, Officer Francisco Seciti, and Officer Adam Smith, all of whom are
current or former officials and correction officers at WCCF.
For purposes of this Memorandum Opinion, the facts are quite simple. Wolowski
alleges that he was seriously injured on October 13, 2014, when Defendants assaulted him (i)
during a cell extraction, (ii) while being escorted after the cell extraction, in an elevator as he
was being taken to the shower room for decontamination, (iii) in the shower area; and (iv) when
he was being escorted back to a cell in the Special Housing Unit. As a result of the assaults, he
suffered a broken nose, fractured right orbital-socket, several bruised ribs, a busted lip, “and a
variety of bumps” across his forehead and face.
After a period of discovery, Defendants filed the instant motion for summary judgment
in which they argue that they are entitled to summary judgment because “[o]n the date of the
incident at issue, Plaintiff created a situation which required WCCF personnel to respond with
force; however, the record of evidence clearly establishes that any force used was reasonable
and appropriate under the circumstances as known to the Defendants at the time.” Defs’ Mot. at
¶ 4.
Plaintiff argues in response that summary judgment should not be granted to Defendants
on Plaintiff’s Fourteenth Amendment excessive force claim because genuine issues of material
fact are in dispute.3 The motion is fully briefed and ripe for disposition by the Court.

Plaintiff concedes that he received appropriate and necessary medical care by WCCF’s
personal on October 13, 2014 and, thus, has voluntarily dismissed this claim. See Br. at 10.
(ECF No. 62).
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II.

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).
III.

Discussion
A.

Exhaustion

Before turning to the merits, the Court must first decide whether Wolowski has
exhausted his administrative remedies in accordance with the mandate of the Prison Litigation
Reform Act of 1996 (the “PLRA”). Defendants contend that they are entitled to the entry of
judgment in their favor as a matter of law because Wolowski did not comply with all
requirements of WCCF’s grievance system and thereby failed to exhaust all administrative
remedies available to him. Plaintiff responds that the prison officials interfered with his ability
to utilize the grievance system, thereby resulting in administrative remedies not being available
to him.

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The exhaustion requirement is mandatory and a prisoner is required to pursue all
avenues of relief available to him within the prison’s grievance system before bringing a federal
civil rights action. 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000),
aff’d, 532 U.S. 731 (2001).

Prisoners who fail to fully exhaust administrative remedies may

not subsequently litigate those claims in federal court. Ghana v. Holland, 226 F.3d 175, 184
(3d Cir. 2000).
Moreover, the PLRA also requires “proper exhaustion” meaning that a prisoner must
complete the administrative review process in accordance with the applicable procedural rules
of that grievance / appeal system and a procedurally defective administrative grievance or
appeal precludes action in federal court. Fennell v. Cambria County Prison, 607 F. App’x 145,
149 (3d Cir. 2015) (citing Woodford v. Ngo, 548 U.S. 81, 84, 90-91 (2006) and Spruill v. Gillis,
372 F.3d 218, 230 (3d Cir. 2008)).
The exhaustion requirement is a “bright-line rule” and “it is beyond the power of this
court – or any other - to excuse compliance with the exhaustion requirement, whether on the
ground of futility, inadequacy, or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.
2000). Likewise, as previously stated, our appellate court has been very clear that all available
remedies must be exhausted prior to filing suit. Oriakhi v. United States, 165 F. App’x 991, 993
(3d Cir. 2006).
The broad rule favoring full exhaustion allows for a narrowly defined exception, an
exception with potential application here.

If the actions of prison officials in some fashion

contributed to an inmate’s procedural default on a grievance, the inmate will not be held to strict
compliance with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir.
2000). However, courts have recognized a clear “reluctance to invoke equitable reasons to

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excuse [an inmate's] failure to exhaust as the statute requires.” Davis v. Warman, 49 F. App’x
365, 368 (3d Cir. 2002).
Thus, an inmate's failure to exhaust will only be excused “under certain limited
circumstances,” Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005), and an inmate can
defeat a claim of failure to exhaust only by showing “he was misled or that there was some
extraordinary reason he was prevented from complying with the statutory mandate.” Harris v.
Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005); Warman, 49 F. App’x at 368.
In this case, Wolowski’s claims are governed by WCCF’s Inmate Handbook. The
inmate handbook sets forth the prison’s grievance procedure, including the appeal process. See
Inmate Handbook, Version 5.6, Defs’ Exh. 44-13 and Pl’s Exh. 64-15. To initiate a claim, a
prisoner must file a formal grievance
within five working days of the circumstances or incident having taken place.
The Housing Unit Officer and or the Shift Commander that receives the written
grievance will sign off on it and forward it to the Deputy Warden for disposition.
If the decision of the Deputy Warden does not resolve the grievance, [the inmate]
may file an appeal to the Warden within two working days of receiving the
Deputy Wardens (sic) decision. The Warden will review your appeal and return
a written response to you within five working days of receiving your appeal.
ALL DECISIONS OF THE WARDEN ARE FINAL.

Id. at 12.
In support of their motion, Defendants provide, inter alia, Affidavits from Warden
Edward Strawn. (ECF Nos. 44-1 and 70-1). Warden Strawn explains that he has reviewed
Wolowski’s documentation as maintained by WCCF and has confirmed that Wolowski filed no
grievances relating to the assaults which occurred on October 13, 2014.
In response, Wolowski has submitted his own Affidavits (Exh. 64-1 and 64-2), in which
he states that he filed his first formal grievance to the Deputy Warden (which at the time was

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Defendant Strawn) upon his return from the hospital and when the Deputy Warden failed to
respond within a week’s time, he filed another grievance. See Exhibit 64-1, at ¶¶ 46 and 47.
When Wolowski did not receive a response from the Deputy Warden, he filed his first Appeal
to the Warden in November 2014. Id. at ¶ 49. He states that because he received no response,
he filed additional appeals to the Warden in November and December of 2014 and January and
February of 2015 “to absolutely no avail. . . .” Id. at ¶ 53.
Defendants rely on the lack of any record indicating that Wolowski failed to file any
grievances or appeals. Wolowski responds as follows:
54. And because WCCF does not provide their inmates with carbon-copy paper
attached to the back of formal Grievances or Appeal Forms, or provide their
inmates with any other way to authenticate that they had in fact filed both
Grievance and Appeals, I made my own personal-documentation of Everything I
filed after the October 13, 2014 incident.
55. Such legal documentation consisted of copies of all Grievances, Appeals and
Request Slips I filed regarding my excessive force claim in October. I also had
specific notes that consist of what date, time I filed said materials and
particularly which officer received them.
56. Two years later, Apprx. 3 weeks after I filed this 1983 lawsuit, above legalDocumentation was “lost” from my property: On October 28, 2016.
57. I filed multiple Grievances and Appeals regarding the “lost” or “stolen”
documentation, principally because I was brutally assaulted again while I was in
handcuffs and shackles, and because said legal-documentation was Never
returned to me, still to this day.
58. WCCF’s Grievance Procedure became a problem to me at that time because
even though I was receiving responses from Administration, I was not receiving
responses for every Grievance I filed. And, more importantly, the new founded
problems [arose] because Deputy Warden Waul or Cain or Warden Strawn was
not even following their own Procedural Requirements clearly established in
WCCF’s Inmate Handbook pertaining to Grievance procedure.
(Amended) Affidavit of Brandon Wolowski, Exh. A (ECF No. 64-1).

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Under these circumstances, the Court is reluctant to find that Plaintiff has failed to
exhaust the administrative remedies available to him. It does not appear that WCCF utilizes
carbon-copy forms or has a tracking procedure in place to record when grievances are
submitted. Wolowski claims to have made his own copies of his submitted grievances and
appeals, but that such were taken from his cell and have not been returned to him. Thus, the
Court deems the absence of any record indicating receipt of any grievances or appeals filed by
Wolowski pertaining to the incidents of October 13, 2014 to be of minimal probative value and
is outweighed by Wolowski’s own evidentiary submissions.
The Court will now turn to the merits of the summary judgment motion.
B.

Merits

As stated supra, Wolowski was a pretrial detainee on October 13, 2014. To establish a
prima facie case under § 1983, he must demonstrate that a person acting under color of law
deprived him of a federal right. See Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.
1995). He must also show that the person acting under color of law “intentionally” violated his
constitutional rights or acted “deliberately indifferent” in violation of those rights. See, e.g.,
County of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998); Brower v. County of Inyo, 489
U.S. 593, 596 (1989) (citing Hill v. California, 401 U.S. 797, 802–05 (1971)); see also Berg v.
County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000).
Moreover, “[i]n order to sustain a § 1983 claim against an individual acting under the
color of state law, a plaintiff must demonstrate that the defendant was personally involved in the
alleged violations of his or her federal rights.” Andrews v. Kenney, No. 16-1872, 2017 WL
2591931, at *2 (E.D. Pa. June 14, 2017) (citing Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988)).

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Excessive force
A pretrial detainee excessive force claim is governed by the Due Process Clause of the
Fourteenth Amendment, which “protects a pretrial detainee from the use of excessive force that
amounts to punishment.” Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 2473 (2015)
(quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). Under the Due Process Clause,
pretrial detainees, those charged with, but not yet convicted of, a crime, must prove that law
enforcement had an express intent to punish the detainee and must not have had an “alternative
purpose” for the force or restriction or that the force or restriction “feels excessive in relation to
the alternative purpose assigned to it.” Bell v. Wolfish, 441 U.S. 520, 523 (1979).
Under the Fourteenth Amendment, liability for excessive force attaches when law
enforcement is found to be “deliberately indifferent” to the pretrial detainee’s health or safety.
Deliberate indifference occurs when law enforcement “knows of and disregards an excessive
risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The version of events offered by Defendants differs dramatically from the version
offered by Wolowski, the non-movant. These contrasting facts indicate that summary judgment
should not be granted at this stage. A jury could find that Defendants have misrepresented the
necessity for the amount of force used to restrain Wolowski and, thus, subjected Wolowski to
deliberate and excessive force in an effort to punish him in violation of his Fourteenth
Amendment rights. For this reason, summary judgment will be denied.
Qualified Immunity
Defendants also argue that they are entitled to summary judgment based upon a defense
of qualified immunity as the evidence demonstrates that “there is no violation of a clearly
established constitutional right.”

The doctrine of qualified immunity protects government

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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.
Pearson v. Callahan, 555 U.S. 223 (2009).
Based upon the facts presented here and the analysis set forth above, a jury could find
that Wolowski’s constitutional rights were violated. Assuming that Wolowski’s constitutional
rights were violated, a jury could also find that Defendants could not reasonably have believed
that their conduct was lawful. Therefore, summary judgment based upon a defense of qualified
immunity will be denied.
III.

Conclusion

For the reasons stated herein, the Motion for Summary Judgment will be denied as to
Plaintiff’s excessive force claims. Insofar as Plaintiff has voluntarily withdrawn his claims for
deliberate indifference to his serious medical needs, those claims will be dismissed.
An appropriate order follows.
ORDER OF COURT
AND NOW this 10th day of May, 2018, upon consideration of Defendants’ motion for
summary judgment, and Plaintiff’s response thereto, for the reasons stated in the accompanying
memorandum opinion, IT IS HEREBY ORDERED that summary judgment on Plaintiff’s
claims for excessive force is DENIED.
Plaintiff’s claims for deliberate indifference to his serious medical needs have been
voluntarily dismissed.
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

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cc:

BRANDON WOLOWSKI
187246
Allegheny County Jail
Pod 8E 950 Second Avenue
Pittsburgh, PA 15219
(via U.S. First Class Mail)
All counsel of record
(via ECF electronic notification)

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