DOE et al v. QUINONES et al

Filing 137

MEMORANDUM ORDER adopting in part and modifying in part 120 Report and Recommendation, and granting 89 Motion for Summary Judgment and 92 Motion for Summary Judgment. IT IS FURTHER ORDERED that final judgment pursuant to Rule 58 is hereby enter ed in favor of Defendants, Butler County, Corrections Officer Tyler Wingrove, Corrections Officer Randy Russell, Trinity Services Group, Inc. and Pam Jewert, and against Plaintiffs, John M.H. Doe and John B.G. Doe. Signed by Judge David S. Cercone on 3/10/2020. (jmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN M. H. DOE and B. G. DOE,
Plaintiffs,
v.
LUIS QUINONES, PAM JEWERT,
TRINITY SERVICES GROUP, BUTLER
COUNTY, CORRECTIONS OFFICER
WINGROVE, CORRECTIONS OFFICER
RUSSELL,

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2:17cv719
Electronic Filing
Judge David Stewart Cercone
Magistrate Judge Maureen P. Kelly

Defendants.
MEMORANDUM ORDER

After Plaintiffs John M. H. Doe and B. G. Doe filed a complaint in the above-captioned
matter, alleging civil rights violations against Butler County (the “County”), Corrections Officer
Tyler Wingrove (“Wingrove”), and Corrections Officer Randy Russell (“Russell”) (collectively,
the “Butler County Defendants”), and against Trinity Services Group, Inc. (“Trinity”), Trinity
employee Pam Jewert (“Jewert”), and former Trinity employee Luis Quinones (“Quinones”).
Plaintiffs’ claims arise out of sexual harassment and assaults allegedly committed by Quinones, a
while Plaintiffs were incarcerated in Butler County Prison and assigned to work in the kitchen. In
accordance with the Magistrate Judge’s Act, 28 U.S.C. § 636(b)(1), and Rules 72.C and 72.D of
the Local Rules of Court, all pretrial matters were referred to United States Magistrate Judge
Maureen P. Kelly.
On June 27, 2019, Motions for Summary Judgment were filed on behalf of the County
Defendants (ECF No. 89) and on behalf of Trinity and Jewert (ECF No. 92). In a Report and

Recommendation issued on December 3, 2019 (ECF No. 120), the Magistrate Judge
recommended that the Motion for Summary Judgment filed by the Butler County Defendants be
granted and that the Motion for Summary Judgment filed by Trinity and Jewert be granted as to
Trinity but denied as to Jewert. Objections to the Report and Recommendation were filed on
behalf of Plaintiffs (ECF No. 124) and on behalf of Jewert (ECF No. 124).
After a comprehensive de novo review, the Court will adopt the Report and
Recommendation in part and modify the Report and Recommendation with regard to Defendant
Jewert. This Court finds that Jewert’s alleged failure to report Plaintiffs’ contentions that
Quinones was acting “weird” and/or had slapped them on the ass are insufficient to create a
genuine issue of material fact as to Jewert’s deliberate indifference to an excessive risk of sexual
assault. Specifically, Jewert testified that Plaintiffs came to her and stated that Quinones
“smacked them [on the ass] with his hands.” Plaintiff John B.G. Doe testified that the only
complaint that he made to Jewert was that Quinones was being “weird” and “playing the whole
gay card with me and I was not really comfortable with it.” (Depo. of John B.G. Doe at 91).
Plaintiff John M.H. Doe testified that he reported to Jewert that Quinones was “making weird
comments.” (Depo. of John M.H. Doe, Vol. 1, at 47-49).
Plaintiffs must “produce sufficient evidence to support the inference that [Jewert]
‘knowingly and unreasonably disregarded an objectively intolerable risk of harm.’” Jones v.
Day, 2006 U.S. Dist. LEXIS 101667, *9 (W.D. Pa. Jan. 4, 2007) (citing Beers-Capitol v.
Whetzel, 256 F.3d 120, 132 (3d Cir.2001)). It is not enough to assert that a defendant should have
recognized the risk; the evidence must be sufficient to support the inference that “the defendant
must have recognized the excessive risk and ignored it.” Beers-Capitol v. Whetzel, 256 F.3d at
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138.
It is undisputed that Jewert did not report the alleged striking of Plaintiffs on the buttocks
by Quinones. The Court finds, however, that the evidence relating to these alleged incidents are
insufficient to support a separate Eighth Amendment violation and, therefore, it cannot support a
claim against Jewert based upon her failure to intervene and/or report. This Court agrees with
the rationale of the Honorable Richard A. Lanzillo of this Court in Sarvey v. Wetzel, 2019 U.S.
Dist. LEXIS 7595 (W.D. Pa. January 16, 2019), in which the Court dismissed the Eighth
Amendment claim against the employee defendant who did not report a co-worker who
defendant observed smacking the buttocks of an inmate with a ruler.
Whether an incident of misconduct towards an inmate rises to the level of an Eighth
Amendment violation must be determined based upon a two-part analysis. The first element is
objective and is satisfied only if the incident in question is “objectively, sufficiently intolerable
and cruel, capable of causing harm . . ..” Ricks v. Shover, 891 F.3d 468, 475, (3d Cir. 2018).
When evaluating the objective element, the Supreme Court has warned that “not...every
malevolent touch by a prison guard gives rise to a federal action.” Hudson v. McMillian, 503
U.S. 1, 9 (1992). “Rather, in contrast to common tort law, the Eighth Amendment shields
inmates from only those actions repugnant to the conscience of mankind. Ricks v. Shover, 891
F.3d at 475-476.
In Sarvey, the Court cited numerous cases describing more egregious conduct than an
inappropriate smack on the buttocks in which it was held that such conduct did not violate the
Eighth Amendment.
It has been routinely held that isolated incidents of similar severity are
insufficient to support a cognizable Eighth Amendment claim. See, e.g., McIntyre
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v. Kellinger, 741 Fed. Appx. 891, 2018 WL 3429964, at *1 (3d Cir. 2018)
(holding that incident in which defendant dragged his hands down plaintiffs
buttocks, gripped his buttocks, patted his thighs, and “squeezed [his] ass as if [he]
was a woman” while whispering “in a sexual manner” during a pat-search was not
objectively severe or serious to establish an Eighth Amendment violation); Ricks
v. Shover, 891 F.3d at 479 (suggesting that an “isolated, momentary” incident in
which guard “rubbed his erect penis against [plaintiffs] buttocks through both
men’s clothing” was not sufficiently severe, but allowing opportunity to amend);
Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (allegations that a female
correction officer squeezed plaintiff’s penis, said “[Y]ou know [you're] a sexy
black devil, I like you,” bumped into plaintiff with her breasts, and pinned him
against the wall “with her whole body vagina against penis” were not sufficiently
serious to amount to an Eighth Amendment violation); Watson v. Wingard, 2018
U.S. Dist. LEXIS 16659, 2018 WL 2108316 (W.D. Pa. Jan. 31, 2018) (allegations
that defendant gave plaintiff an “upper cut” to the groin with his forearm, “groped
and massaged [his] penis,” and examined plaintiff’s “butt . . . like a doctor” did
not amount to sexual abuse); Washington v. Harris, 186 Fed. Appx. 865, 866
(11th Cir. 2006) (holding that inmate failed to state Eighth Amendment claim
where a prison guard “crept up behind [the prisoner inmate] while he was
working,” grabbed his genitals, kissed him on the mouth, and threatened to
perform oral sex on him); Jackson v. Madery, 158 Fed. Appx. 656, 661 (6th Cir.
2005) (holding that the plaintiff’s allegations that a guard grabbed and rubbed his
buttocks in a degrading manner during a shakedown in the food area was
insufficient to establish an Eighth Amendment violation); Hughes v. Smith, 237
Fed. Appx. 756, 759 (3d Cir. 2007) (no Eighth Amendment violation where
correctional officer allegedly touched the inmate’s testicles through his clothing
during a single pat-down frisk); Pantusco v. Sorrell, 2011 U.S. Dist. LEXIS
58040, 2011 WL 2148392, at *7-8 (D.N.J. May 31, 2011) (defendant did not
violate Eighth Amendment by groping plaintiff’s genitals on a single occasion
during a routine pat-search); Harris v. Zappan, 1999 U.S. Dist. LEXIS 8404,
1999 WL 360203 (E.D. Pa. May 28, 1999) (allegations of one instance of
sexually explicit comments combined with fondling and rubbing on thighs and
breasts not sufficiently serious for an Eighth Amendment violation); Jones v.
Culinary Manager II, 30 F.Supp.2d 491, 497 (E.D. Pa. 1998) (a single incident
alleging that a guard pinned plaintiff and ground his pelvis against plaintiff’s
buttocks while threatening sex not sufficiently serious).

Sarvey v. Wetzel, 2019 U.S. Dist. LEXIS 7595 at *37-39. This Court finds that Quinones alleged
inappropriate behavior does not rise to the level of “cruel and unusual” and under contemporary
standards is not a cognizable constitutional violation. Therefore, Jewert’s failure to report the
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alleged statements of Plaintiffs also fails to amount to deliberate indifference warranting liability
under the Eighth Amendment.
The Court also finds that the Plaintiffs have failed to establish their Negligence and
Negligent Infliction of Emotional Distress claims against Jewert. Therefore, all claims against
Jewert for a violation of the Plaintiffs’ Eighth Amendment rights, Negligence and Negligent
Infliction of Emotional Distress will be dismissed with prejudice.
Accordingly,
AND NOW, this 10th day of March 2020;
IT IS HEREBY ORDERED that the Report and Recommendation of the Magistrate
Judge dated December 3, 2019 (ECF No. 120) is adopted in part and modified in part as set forth
in this Memorandum and together are deemed the Opinion of the Court.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Butler
County, Corrections Officer Tyler Wingrove, and Corrections Officer Randy Russell (ECF No.
89) is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by Trinity
Services Group, Inc. (“Trinity”) and Pam Jewert (ECF No. 92) is GRANTED.
AND IT IS FURTHER ORDERED that final judgment pursuant to Rule 58 is hereby
entered in favor of Defendants, and against Plaintiffs.

s/ David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc:

Honorable Maureen P. Kelly
United States Magistrate Judge
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Nicholas J. Indovina, Esquire
Daniel M. Vugrinovich, Esquire
Marie Milie Jones, Esquire
Michael R. Lettrich, Esquire
(Via CM/ECF Electronic Mail)

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