Opinion
Case No. 1: 16-cv-00276 (Erie)
02-01-2019
BRYAN ANGLE, II, Plaintiff, v. CAPT. CARTER, LT. DAVIS, LT. STEED, C.O. JOHN DOE, U.M. PERRY, Defendants.
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION I. Recommendation
It is respectfully recommended that Defendants' Motion for Summary Judgment [ECF No. 45] be GRANTED in part and DENIED in part. II. Report
A. Introduction
Plaintiff Bryan Angle is an inmate currently incarcerated at the State Correctional Institution at Forest (SCI-Forest). He initiated this action, pro se, with the filing of a Complaint and a motion to proceed in forma pauperis on November 16, 2018. ECF No. 1, ECF No. 4. In his Complaint, Angle alleges that he was sexually assaulted by an unidentified inmate after being moved from his cell on F-block to a new cell on B-block. ECF No. 4 at ¶¶ 8-9. Angle's Complaint named six individuals as Defendants: Capt. Carter, Lt. Davis, Lt. Steed, U.M. Perry, Counselor Snyder, and C.O. John Doe. Id. at ¶¶ 2-6. By prior orders of this Court, his claims against Defendants Carter, Perry, Snyder, and Doe were dismissed. ECF No. 35. There are two claims remaining: An Eighth Amendment failure to protect claim against Defendant Steed and a First Amendment retaliation claim brought against Defendant Davis.
It is respectfully recommended that summary judgment be GRANTED on the Plaintiff's claim against Defendant Davis and DENIED as to the claim against Defendant Steed. II. Relevant Background
At the outset the Court observes that Plaintiff Angle has not complied with the Local Rules of this Court regarding summary judgment practice. Local Rule 56 requires that a motion for summary judgment be supported by
A separately filed concise statement setting forth the facts essential for the Court to decide the motion for summary judgment, which the moving party contends are undisputed and material, including any facts which for purposes of the summary judgment motion only are assumed to be true. The facts set forth in any party's Concise Statement shall be stated in separately numbered paragraphs. A party must cite to a particular pleading, deposition, answer to interrogatory, admission on file or other part of the record supporting the party's statement, acceptance, or denial of the material fact.LCvR 56(B)(1). The party opposing a motion for summary judgment, here Plaintiff Angle, must then file
A separately filed concise statement, which responds to each numbered paragraph in the moving Party's Concise Statement of Material Facts by:
a. admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is undisputed and/or material;
b. setting forth the basis for the denial if any fact contained in the moving party's Concise Statement of Material Facts is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record (See
LCvR 56.B.1 for instructions regarding format and annotation); andLCvR 56(C)(1)(a)-(c). Defendants filed their Motion for Summary Judgment on August 22, 2018, along with a brief in support of their motion, an appendix, and a Concise Statement of Material Facts. See ECF No. 45; ECF No. 46; ECF No. 47; and ECF No. 48. Angle filed a response to the Defendants' Motion for Summary Judgment entitled "Objections to Defendants [sic] Motion for Summary Judgment," and a sworn declaration. ECF No. 50; ECF No. 50-1. But he did not file a separate, specific response disputing the facts set out in the Defendants' Concise Statement.
c. setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that the opposing party asserts are necessary for the Court to determine the motion for summary judgment.
According to the Local Rules of this Court, undisputed facts "will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." L.Cv.R. 56(E). Typically, this Local Rule is strictly enforced. See, e.g., Janokowski v. Demand, 2008 WL 1901347, at *1 (W.D. Pa. Apr. 25, 2008); GNC Franchising LLC v. Kahn, 2008 WL 612749, at *1 (W.D. Pa. March 3, 2008). Although Angle had already filed his "Objections," out of an abundance of caution the Court further explained Federal Rule of Civil Procedure 56 to him; outlined the proper ways to aver and object to factual allegations of the Defendants; and gave Angle additional time to file a response to the Defendants' motion and Concise Statement. ECF No. 52; see also Renchenski v. Williams, 622 F.3d 315, 340-341 (3d Cir. 2010). Angle filed nothing further. The Court, however, is mindful that Angle is proceeding in this civil rights action pro se, and acknowledges that pro se submissions are to be construed liberally. Lynn v. Sec'y, Dep't of Def., 431 Fed. Appx. 147, 150 (3d Cir. 2011). In recognition of this duty, and despite Angle's lack of a specific refutation of the Defendants' Concise Statement, the Court will consider the entire record, construing Angle's filing of "Objections" to the motion for summary judgment [ECF No. 50] as disputing the Defendants' Concise Statement of Material Facts. See Pondexter v. Allegheny Cty. Housing Auth., 2012 WL 3611225, at *1 n.2 (W.D. Pa. Aug. 21, 2012). Thus, Defendants' Concise Statement of fact will not be deemed undisputed.
Angle alleges that while being moved from F-Unit to B-Unit, he told Defendant Steed that "he just doesn't feel safe." ECF No. 4, at ¶ 15. He further alleges that, several days after the move, he was sexually assaulted by another inmate. Id. at ¶ 9. Angle could not identify the alleged assailant, aside from noting that "he was a black guy." Id. at 7. Angle filed a grievance alleging sexual assault on September 10, 2016. In Grievance No. 643388, Angle stated as follows: "On 9/2/16 I informed the officers that I don't feel safe on B Block and I was ignored and then on 9/6/16 I was sexually assaulted by another inmate. The officers deliberatly (sic) put me at risk and failed to protect me. I want relief to be determined at a arbitration conference. Please hold cam corder/hand held camera from 9/2/16." ECF No. 47-5 at 1. Angle further indicated that "Lt. Steed video taped me saying I don't feel safe." Id. In their Concise Statement, the Defendants deny that Angle ever told Defendant Steed that he felt unsafe on B-Block. ECF No. 48, at 2, ¶ 11; ECF No. 47-2, at 2, ¶ 7.
A PREA investigation was initiated by Defendant Davis and dismissed because Davis concluded that Angle was not sexually assaulted. ECF No. 48, ¶ 1. According to Davis, Plaintiff Angle denied being sexually assaulted. Davis closed the PREA investigation and filed a misconduct charge against Angle on October 3, 2016, for lying to a staff member. Id. at 2, ¶ 7; ECF No. 47-4. On October 11, 2016, a hearing on the misconduct charges was held and Angle was found guilty. ECF No. 47-4 at 2. III. Discussion
The Prison Rape Elimination Act (PREA) is a federal law enacted to address the problem of sexual assault of prisoners. See 34 U.S.C. §§ 30301-30309 (2012).
A. Summary Judgment Standard and Pro Se Litigants
Summary judgment is appropriate where the Court is satisfied 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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor." Monione v. City of Jersey City, 709 F.3d 181, 191 (3d Cir. 2013) (quoting Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)); Anderson, 477 U.S. at 255; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The burden of establishing that no "genuine dispute" exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. "A nonmoving party has created a genuine [dispute] of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). The non-moving party must present "more than a scintilla of evidence showing that there is a genuine [dispute] for trial." Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). To do so, the non-moving party 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 [dispute] for trial." Celotex, 477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at 586; Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013). In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine dispute for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Vento v. Dir. of V.I. Bureau of Internal Revenue, 715 F.3d 455, 477 (3d Cir. 2013).
While courts must hold pro se pleadings to "less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007), at summary judgment, a pro se plaintiff is not exempt from his burden of providing some affirmative evidence, i.e. not just mere allegations, to establish a prima facie case, and to show that there is a genuine dispute for trial. See Barnett v. N.J. Transit Corp., 573 Fed. Appx. 239, 243 (3d Cir. 2014) (holding that the pro se plaintiff was still "required to designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories ... sufficient to convince a reasonable fact finder to find all the elements of her prima facie case") (citation and quotation omitted); Mitchell v. Gershen, 466 Fed. Appx. 84, 87 (3d Cir. 2011) (upholding a district court's grant of summary judgment against a pro se plaintiff for his failure to submit expert testimony in a denial of medical services suit); Siluk v. Beard, 395 Fed. Appx 817, 820 (3d Cir. 2010) ("[T]he right of self-representation does not exempt a party from compliance with relevant rules of procedural law.").
B. Failure to Protect Claim against Defendant Steed
To state an Eighth Amendment failure to protect claim, a plaintiff must plead facts sufficient to show: (1) that a substantial risk of serious harm exists, and (2) that the prison officials have a "sufficiently culpable state of mind." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer, 511 U.S. at 838). "The inmate must show that the official 'knows of and disregards an excessive risk to inmate health or safety.'" Id. That is, "'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.'" Id.
This claim survived the Defendants' Motion to Dismiss because Angle pleaded that "due to his youthful appearance, he was classified as high risk for rape victimization, and was required to be housed in a cell in the direct line of sight." ECF No. 34, at 7 (citing ECF No. 4, at ¶¶ 9-10, 20). He further alleged that, when transferred to B-Unit, his cell was located "on the opposite side of the unit," the implication being that he was not in the "direct line of sight" of prison authorities. Id. (citing ECF No. 4 at ¶¶ 10, 13). The Court found those allegations were sufficient to state a failure to protect claim. Id.
In their Answer, the Defendants admit that Angle has both an "O" and "H" classification code. ECF No. 40, at ¶¶ 9-10.
However, on summary judgment, Angle has the burden of citing to relevant portions of the record to establish a genuine issue of material fact. See Waskiewicz v. PPL Services, Inc., 2012 WL 170693 at *4 (E.D. Pa. Jan. 19, 2012). To meet his burden, Angle filed a sworn Declaration. ECF No. 50-1. Relevant to the failure to protect claim, Angle first declares that he "informed CO1 Winger that I do not feel safe on B-unit." Id. at ¶ 3. Winger then "called Defendant Lieutenant Steed and informed him that I was refusing to move because I felt unsafe on B-unit." Id. at ¶ 4. Next, Angle states that "CO1 Costanzo" came to his cell, along with "another unknown officer holding a hand-held cam-corder." Id. at ¶ 5. Angle then states that Defendant Steed "approached my cell door and ordered the camera officer to start filming," detailed to the camera what was happening, and ordered Angle to "cuff-up." Id. at ¶¶ 6-7. According to Angle, he refused to be cuffed and told Steed "I'm not refusing to be moved, I just don't feel safe going to B-unit." Id. at ¶ 8. Angle declares that Defendant Steed then stated into the camera that "Inmate has complied with the last order given" and then instructed the camera operator to turn the camera off. Id. at ¶ 9. Angle "then packed my property and moved to B-unit and was sexually assaulted." Id. at ¶ 10. Independent of Angle's Declaration, there is a reference in Angle's Grievance No. 64388, that "Lt. Steed video taped me saying I don't feel safe" and "CO1 Sager wrote it down in the block log." ECF No. 47-5. Angle also asked the DOC to "Please hold cam corder/handheld camera from 9/2/16." Id.
Defendant Steed has also provided a declaration in which he states that "at no time did Plaintiff tell me that he felt unsafe on B-Block," and that if Angle had told him, Steed would have made alternative housing arrangements; that a hand-held camera was not used during Angle's transfer from one cell block to another; and that all cells are within view of the officers "regardless of what block an inmate is on." ECF No. 47-2, at 2, ¶ 7-11. No other evidence was proffered on this point. The record is silent, for example, as to what CO1 Costanzo witnessed. Further, there is no declaration or other evidence in the record from CO1 Winger relating to what Angle may or may not have said to him.
These contradictory accounts present a disputed issue of fact. However, "[a] motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson, 477 U.S. at 247-248). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Clearly, whether Angle told Defendant Steed that he felt unsafe impacts the outcome of the litigation as it is central to his failure to protect claim. Further, if proven true, it is reasonable that a jury could return a verdict in Angle's favor on this claim. Thus, there is a genuine issue of material fact as to whether Angle told Defendant Steed that he felt unsafe on B-Unit.
Defendant Steed also argues that he should be granted summary judgment because Angle denied being sexually assaulted. As support, he points to the declaration of Defendant Justin Davis. Davis's declaration states that "I interviewed Plaintiff as part of the PREA investigation, during which Plaintiff, while grinning, denied that he was ever sexually assaulted." ECF No. 47-1, ¶ 5. Davis goes on to declare that "He [Angle] specifically stated that he was never sexually assaulted by another inmate housed on B-Unit." Id. at ¶ 6. Angle disputes this in his Declaration. Angle states that he never spoke with Defendant Davis "about any PREA Complaint or any other concerns at all, ever!" ECF No. 50-1 at ¶ 15. Further, Angle declares that "I received a misconduct stating that 'I told Lieutenant Davis that nothing happened to me, which is a total lie' on the part of staff handling this matter. I filed this suit because I was actually raped and I would not file a false claim." Id. at ¶ 16. He also declares that he "was sexually assaulted," and that he "attempted to report this sexual assault via the Hot-line and was subsequently ordered off of the phone" by corrections officers. ECF No. 50-1 at ¶¶ 10-12. Angle refused to get off of the phone, and that this "resulted in a fight between me and several officers." Id. at ¶ 13.
The Court assumes that Justin Davis and Defendant "Lt. Davis" are the same person.
The disputes caused by these competing declarations cannot be resolved without credibility determinations, which are the function of the jury, not of a judge on a motion for summary judgment. "In ruling on a motion for summary judgment, the Court's function is not to weigh the evidence, make credibility determinations or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Davison Design & Development, Inc. v. Frison, 2018 WL 6324996, *3 (W.D. Pa. Dec. 4, 2018) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citing decisions); Anderson, 477 U.S. at 248-49; Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998). Both Angle and Steed's versions of events are supported by declarations signed under penalty of perjury, and the contents of the declarations are such that the declarants would have personal knowledge of them. Thus, the Court finds that a genuine dispute of material fact regarding whether Angle told Steed that he feared for his safety in the new cell block and whether Angle was sexually assaulted after being transferred to that location. Defendant Steed, therefore, is not entitled to summary judgment on Angle's failure to protect claim.
C. Retaliation Claim Against Defendant Davis
The record establishes that Angle received a misconduct alleging a Class 1, Cat. B # 42 violation: lying to an employee. ECF No. 47-4 at 1. Angle argues that this misconduct was issued against him in retaliation for his filing of a PREA Complaint. ECF No. 4, ¶ 19. Defendant Davis claims that Angle admitted that he had not been sexually assaulted by another inmate and, therefore, had lied when he filed his PREA Complaint with prison authorities. Because of this, Davis maintains that Angle has failed to establish the necessary elements of a retaliation claim and that, in any event, Angle failed to exhaust his administrative remedies for his retaliation claim against Davis. ECF No. 46, at 4-5. The Court agrees that Angle failed to exhaust his administrative remedies and recommends that summary judgment be granted to Defendant Davis on that basis.
The Prison Litigation Reform Act ("PLRA") provides that "[n]o 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 such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The U.S. Supreme Court has emphasized that § 1997e(a) is a bright-line rule, such that district court judges do not have discretion to hear a case if a prisoner has failed to exhaust. Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court."). See also Porter v. Nussle, 534 U.S 516, 532 (2002) ("the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong"); Booth v. Churner, 532 U.S. 731, 741 & n.6 (2001) ("an inmate must exhaust irrespective of the forms of relief sought and offered through administrative remedies").
Whether or not a prisoner has exhausted "is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts." Small v. Camden County, 728 F.3d 265, 269 (3d Cir. 2013). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). If a prisoner fails to follow administrative procedures precisely at any stage in the prison's grievance system process, he cannot bring suit in federal court. Id. at 222.
The Pennsylvania Department of Corrections has a three-tiered system to appeal misconducts (pursuant to DC-ADM 801), which serves as an inmate's administrative remedy to appeal misconducts. The misconduct appeal system consists of: (1) an appeal from the Hearing Examiner to the Program Review Committee ("PRC"); (2) an appeal to the Facility Manager; and (3) an appeal to the Chief Hearing Examiner's Office, Office of Chief Counsel. Failure to appeal a finding of misconduct to final review constitutes a failure to exhaust administrative remedies regarding that misconduct. Hagan v. Chambers, 2010 WL 4812973, at *6, *18 (M.D. Pa. Nov. 19, 2010).
Although Angle made the bald allegation in his Complaint that he exhausted his administrative remedies, the summary judgment record reveals otherwise. ECF No. 4, at 1, ¶7. Defendant Davis points to the declaration of Chief Hearing Officer Zachary Moslak in which, after setting out in detail the grievance and appeal process available to inmates, Moslak states that he reviewed the appeal records relating to the Angle and notes that Angle "has not appealed Misconduct BOH to final level of appeal." ECF No. 47-3, at 3, ¶18. Further, Moslak states that "Inmate Angle has never appealed a misconduct decision to the Chief Hearing Examiner." Id. at ¶ 19. Plaintiff has provided no evidence to the contrary as he must in order to defeat a motion for summary judgment. See, e.g., Marshall v. Sobina, 2013 WL 5366258 at *6 (W.D. Pa. Aug. 30, 2013). Consequently, because the undisputed record reflects that Angle has failed to properly exhaust his administrative remedies regarding the misconduct, and has not "come forth with 'affirmative evidence, beyond the allegations of the pleadings,'" that refutes the defense that he has failed to properly exhaust this claim, see U.S. Bank, Nat. Ass'n v. Greenfield, 2014 WL 3908127, at *2 (M.D. Pa. Aug. 11, 2014), summary judgment should be entered in favor of Defendant Davis as to the retaliation claim stemming from Angle's misconduct charge. IV. Conclusion
For the foregoing reasons, it is respectfully recommended that the motion for summary judgment filed by Defendants [ECF No. 45] be DENIED as to Defendant Steed and GRANTED as to Defendant Davis. The Clerk should be directed to enter judgment in favor of Defendant Davis and against Plaintiff Angle.
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may seek review of this Report and Recommendation by filing Objections to the Report and Recommendation with the District Court within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). No extensions of time will be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/_________
Richard A. Lanzilio
United States Magistrate Judge Filed this 1st day of February, 2019 C: The Hon. Susan Paradise Baxter