McDougall v. Tyson et al

Filing 64

MEMORANDUM ORDER granting 54 Motion for Summary Judgment by Geo Group; denying 57 Motion to Compel Discovery Findings; denying 58 Motion for Summary Judgment by Marlon McDougall; and dismissing as moot 63 Motion for Ruling on Motions. The Clerk shall enter judgment for the remaining defendant and mark this matter closed. Signed by Magistrate Judge Keith A. Pesto on 9/24/2024. Copy mailed to non-ECF user. (bgs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARLON McDOUGALL,
Plaintiff
v.
LIEUTENANT TYSON, et al.,
Defendants

:
:
: Case No. 3:23-cv-91-KAP
:
:
Memorandum Order

As explained below, defendant Geo Group Inc.’s motion for summary judgment at
ECF no. 54 is granted. Plaintiff Marlon McDougall’s motion to compel at ECF no. 57 is
denied. Plaintiff’s motion for summary judgment at ECF no. 58 is denied. Plaintiff’s
motion styled “Petition ... for Motions to be Presided Over” at ECF no. 63 is dismissed as
moot. The Clerk shall enter judgment for the remaining defendant and mark this matter
closed.
Plaintiff Marlon McDougall is a national of Guyana admitted to the United States
as a lawful permanent resident in 1982. Between 2006 and 2022 McDougall was in
custody for criminal offenses in the state of Virginia. Since 2022, McDougall has been in
the custody of the Department of Homeland Security pending removal proceedings.
McDougall has been housed in a number of facilities operated by Geo Group, and was at
the Moshannon Valley Processing Center from around August 5, 2022, until April 2 or 3,
2023. In May 2023, McDougall filed a complaint dated April 20, 2023, ECF no. 1,
supplemented by two declarations filed in February 2024 (one by plaintiff, one by an
alleged eyewitness) at ECF no. 39, alleging that when McDougall was being transferred
from the Moshannon Valley Processing Center to the Pike County Correctional Facility
(on April 2, 2023 in the complaint, on April 3, 2023 in the declarations) he was injured
as a result of the negligence of Geo Group employees. McDougall was using a wheelchair
at the time for an alleged pre-existing injury. The wheelchair belonged at the Moshannon
Valley Processing Center, and the wheelchair McDougall came with to the Moshannon
Valley Processing Center was somewhere “in the facility.” The van, with other inmates
inside, was awaiting departure for the three hour trip to Pike County. Rather than
delaying the van to find plaintiff’s wheelchair or transporting plaintiff using a wheelchairaccessible van, plaintiff alleges that a Lieutenant Tyson stated that “he did not care where
the wheelchair was,” and with two other officers attempted a lift and transfer of plaintiff
to a seat in the waiting passenger van. In the process, according to plaintiff’s declaration,
“they dropped me on the ground and I cried out in pain.” According to McDougall,
corrections personnel then picked him up and took him back into the Moshannon Valley
Processing Center, and several hours later transported him in a wheelchair-accessible van
to Pike County. McDougall filed his complaint from Pike County, originally naming Geo
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Group, Lieutenant Tyson, and a nurse named Freeland as defendants. Freeland’s only
alleged involvement was as the nurse who took McDougall’s original wheelchair in August
2022. As injury, McDougall alleged in his complaint that his pre-existing injury for which
he was using the wheelchair, described as a meniscus tear, “was overstressed and therefor
setback [sic];” in his declaration McDougall alleged that at some point after his transfer
“I seen a doctor at an emergency room where they say I have four bulging disk in my back
and reinjured an ACL tier. I had to do eleven visits to a physical therapist just to get back
on track [sic].”
As the record reflects, McDougall dropped Tyson and Freeland, and the matter
became a consent case. GEO Group filed a motion for summary judgment in June at ECF
no. 54, supported by a brief and concise statement of facts. GEO Group sought summary
judgment for three reasons: 1) plaintiff Marlon McDougall failed to exhaust his
administrative remedies; 2) “GEO Group, Inc.” had no employees involved in the alleged
injury to McDougall; 3) McDougall cannot prove any injuries were caused to him because,
having retained no expert and not having responded to discovery, he literally has no
evidence.
McDougall filed a motion to compel that was dated before Geo Group’s motion for
summary judgment, but received after it, which Geo Group replied to by explaining that
the motion to compel was premature, that it had sent the discovery in timely fashion, and
would send the discovery again if plaintiff should not receive it. Nothing further indicating
that plaintiff did not receive the discovery, the motion to compel at ECF no. 57 is denied.
McDougall did not respond to Geo Group’s motion for summary judgment. He sent
in his own motion for summary judgment, ECF no. 58, which may have been intended as
a response. Either way, it is only two paragraphs long. As McDougall’s evidence,
McDougall refers to the two declarations at ECF no. 39 and asserts that the video of the
events that McDougall requested in discovery “will show” how his injuries were caused.
The Geo Group responded to this motion at ECF no. 60 and ECF no. 61, repeating the
themes of its original motion for summary judgment.
Geo Group’s defense that McDougall failed to exhaust administrative remedies is
meritless. Under the Civil Rights of Institutionalized Persons Act as amended by the
Prison Litigation Reform Act, a prisoner must complete, not just begin, any available
administrative remedy process in accordance with the prison's grievance policies before
filing suit in federal court. See e.g. Talley v. Clark, No. 19-3797, 2024 WL 3611794 at *3
(3d Cir. Aug. 1, 2024), in which a panel of the circuit observed that:
The PLRA, 42 U.S.C. § 1997e(a), provides: “No action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until
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such administrative remedies as are available are exhausted.” The exhaustion
mandate is a “centerpiece” of the statute, see Woodford v. Ngo, 548 U.S. 81, 84, 126
S.Ct. 2378, 165 L.Ed.2d 368 (2006), that serves three important statutory goals: “(1)
to return control of the inmate grievance process to prison administrators; (2) to
encourage development of an administrative record, and perhaps settlements,
within the inmate grievance process; and (3) to reduce the burden on the federal
courts by erecting barriers to frivolous prisoner lawsuits,” Spruill, 372 F.3d at 230.
The PLRA requires “proper exhaustion,” Woodford, 548 U.S. at 93, 126 S.Ct. 2378,
which means “complet[ing] the administrative review process in accordance with
the applicable procedural rules,” Downey v. Pa. Dep't of Corr., 968 F.3d 299, 305
(3d Cir. 2020) (quoting Woodford, 548 U.S. at 88, 126 S.Ct. 2378). The only limit
on§ 1997e(a)’s mandate is that “administrative remedies must be available to the
prisoner” as both a formal and practical matter. Id. (citing Ross v. Blake, 578 U.S.
632, 641–42, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016)).
Talley v. Clark, No. 19-3797, 2024 WL 3611794, at *2 (3d Cir. Aug. 1, 2024)(my emphasis).
As robust a barrier as this is, it applies only to prisoners, defined in 42 U.S.C. § 1997e(h)
as persons “incarcerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and
conditions of parole, probation, pretrial release, or diversionary program.” Geo Group
appends the immigration detainer as if that showing of McDougall’s past criminal
confinement proves that he is currently a prisoner. It does not: it shows that McDougall
is an immigration detainee (see also McDougall v. Crawford, case no. 1:24-cv-124-CMHWEF (E.D.Va., Alexandria Division) McDougall’s habeas corpus proceeding that
concluded last Friday in the Eastern District of Virginia), and an immigration detainee is
not a “prisoner” within the definition given in either CRIPA or the PLRA.
Geo Group’s defense that it is not vicariously liable to McDougall is based on an
affidavit by an employee of Geo Group that states in relevant part that “At no time did the
Geo Group have any employees at Moshannon.” Geo Group does not explain its defense,
but apparently the defense is that Geo Group is insulated because, due to the way it
structures its divisions, subsidiaries, or holdings, it was an employee of some other entity
that allegedly injured McDougall, and not an employee of Geo Group, Inc.. This is
meritless.
I note that the inmate handbook Geo Group relies on in support of its exhaustion
defense is clearly marked “The Geo Group, Inc.” From the fine print on some of the
documents in the record it seems that Geo Group has a subsidiary called Geo Secure
Services. It is possible that entity may have employed the personnel at the Moshannon
Valley Processing Center. The Geo Group, Inc. website (which describes the role of Geo
Secure Services and which describes the Moshannon Valley Processing Center as “a
privately owned and operated secure immigration processing center … provid[ing]
support services to the Department of Homeland Security, Immigration and Customs
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Enforcement on behalf of Clearfield County”) also refers to its “in-house transportation
division, Geo Transport Inc.” Maybe that division of Geo Group, Inc. employed the
personnel responsible for McDougall’s transport to Pike County. I do not need to delve
deeply into the question, however, because it is irrelevant. Pennsylvania tort law accepts
the concept of ostensible agency as described in Section 429 of the Restatement (2d) of
Torts:
One who employs an independent contractor to perform services for another which
are accepted in the reasonable belief that the services are being rendered by the
employer or by his servants, is subject to liability for physical harm caused by the
negligence of the contractor in supplying such services, to the same extent as though
the employer were supplying them himself or by his servants.
See Green v. Pennsylvania Hospital, 633 Pa. 18, 29, 123 A.3d 310, 317 (2015). Even if a
prison’s duty to take care in transporting inmates is not nondelegable, Geo Group
certainly cannot shield itself from liability by claiming plaintiffs have failed to name its
division correctly when that issue could have been and can be cured by a simple
amendment to the pleading. See Fed.R.Civ.P. 15(c)(1)(C).
However, Geo Group’s third basis for summary judgment is meritorious.
McDougall has not responded to the motion for summary judgment. He does not dispute
Geo Group’s assertion that he did not respond to discovery. He offers nothing in his own
motion for summary judgment but a reference to the declarations at ECF no. 39. In
McDougall’s declaration, he asserts that when he was at an emergency an unknown “they”
said he has “four bulging disks in my back and reinjured an ACL tear.” As I said at the
earlier stage of this matter, whether dropping a shackled person is negligence is within
the common knowledge and experience of a lay juror, but it “may be that plaintiff will
need an expert to prove causation of some of his injuries.” Plaintiff cannot present the
hearsay diagnosis of bulging vertebral disks by an unknown “they” and is not competent
to testify to the causal relationship of being dropped to those alleged bulging vertebral
disks or to any reinjury of his knee.
A party is entitled to summary judgment when that party can show that there is no
genuine issue as to any material fact. Fed. R. Civ. P. 56(a). A fact is material if it “might
affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Once a movant shoulders the initial burden of demonstrating
the absence of a genuine issue of material fact the burden shifts to the non-moving party
who bears the burden of proof at trial to demonstrate that there is indeed a material issue
of fact that precludes summary judgment. In doing so, Rule 56 requires the nonmoving
party to go beyond the pleadings and by her 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 Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmoving
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party may not rest upon the allegations in the pleadings and is required to set forth
“specific facts showing that there is a genuine issue for trial.’ ” Id., citing Rule 56(e). As
the Supreme Court made clear, summary judgment is not a disfavored shortcut, but
rather plays an indispensable role in sorting out appropriate uses of scarce judicial
resources, most particularly trial time: “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually unsupported claims or defenses, and
we think it should be interpreted in a way that allows it to accomplish this purpose.”
Celotex, 477 U.S. at 323–24. Plaintiff has done nothing to assist the Court in that task.
McDougall’s evidence of record, in full is the portion of his declaration stating that
“they dropped me on the ground.” His eyewitness states “they dropped him to the floor.”
That gets McDougall to trial (for nominal damages only since he has no competent
evidence of any injury caused by being dropped) only if being dropped is res ipsa loquitur
proof of negligence under Pennsylvania law. It is not. Pennsylvania has adopted the
evidentiary rule of res ipsa loquitur as articulated in the Restatement (Second) of Torts.
Cox v. Wal-Mart Stores E., L.P., 350 Fed.Appx. 741, 744 (3d Cir. 2009), citing D'Ardenne
v. Strawbridge & Clothier, Inc., 712 A.2d 318, 321 (Pa.Super.Ct.1998). The rule is that that
a plaintiff's injury may be inferred to have been caused by the defendant's negligence
when “(a) the event is of a kind which ordinarily does not occur in the absence of
negligence; (b) other responsible causes, including the conduct of the plaintiff and third
persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is
within the scope of the defendant's duty to the plaintiff.” Restatement (Second) of Torts §
328D(1). Cox v. Wal-Mart Stores E., L.P., 350 Fed.Appx. at 744.
In Pennsylvania, the mere happening of an accident or an injury does not establish
negligence nor raise an inference or a presumption of negligence nor make out a prima
facie case of negligence. Chapman v. Chaon, 619 Fed.Appx. 185, 188 (3d Cir. 2015),
quoting Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238, 239 (1965). Therefore,
the plaintiff “must produce evidence which would permit the conclusion that it was more
probable than not the injuries were caused by [the defendant's] negligence.” Chapman v.
Chaon, 619 Fed.Appx. at 187, quoting Micciche v. E. Elevator Co., 435 Pa.Super. 219, 645
A.2d 278, 281 (1994). He has not done so. He says there is a video of events, but he has
neither produced it nor bothered to describe its contents. Because McDougall has not
come forward with evidence that would permit a jury to find in his favor on the issue of
negligence, and because a jury would not be permitted to make such a finding on the basis
of res ipsa loquitur, summary judgment is granted to Geo Group.
DATE: September 24, 2024

Keith A. Pesto,
United States Magistrate Judge
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Notice by ECF to counsel and by U.S. Mail to:
Marlon McDougall, A# 036-708-257
CAROLINE DETENTION FACILITY
P.O. Box 1460
Bowling Green, VA 22427

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