Opinion
Civil Action 3:20-cv-02023
07-21-2023
ROBERT EDWARD HENGST, JR., Plaintiff, v. PRIMECARE MEDICAL, INC., et al., Defendants.
BRANN, C.J.
REPORT AND RECOMMENDATION
JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
This is a federal civil rights action, brought by a state prisoner, Robert Edward Hengst, Jr., appearing through counsel, against the York County Prison Board, several correctional officers employed there, and a prison healthcare services provider. In 2018 and 2019, Hengst was a pretrial detainee incarcerated at York County Prison. While incarcerated there, he claims that the defendants were deliberately indifferent to his serious medical needs and subjected him to the excessive use of force, in violation of his Fourteenth Amendment due process rights, and that the defendants retaliated against him for voicing grievances against prison correctional and medical staff, in violation of his First Amendment speech and petition rights. For relief, the plaintiff seeks unspecified compensatory and punitive damages.
The complaint also references the plaintiff's rights under the Eighth Amendment, but as a pretrial detainee, his rights arise under the due process clause of the Fourteenth Amendment rather than the cruel and unusual punishment clause of the Eight Amendment. See Bistrian v. Levi 696 F.3d 352, 367 (3d Cir. 2012) ("The Cruel and Unusual Punishments Clause . . . does not apply until an inmate has been both convicted of and sentenced for his crimes." Thus, an inmate awaiting sentencing must look to either the Fifth Amendment's or the Fourteenth Amendment's Due Process Clause for protection."), abrogated on other grounds by Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018). All relevant events giving rise to this action occurred prior to the plaintiff's sentencing on June 19, 2019.
The defendants previously moved for summary judgment on the ground that Hengst had failed to exhaust available administrative remedies. That motion was granted in part and denied in part, and a handful of the plaintiff's claims were permitted to proceed to discovery on the merits. See Hengst v. PrimeCare Med., Inc., No. 3:20-cv-02023, 2021 WL 8084627 (M.D. Pa. Dec. 17, 2021), Doc. 37, report & recommendation adopted by 2022 WL 636725 (M.D. Pa. Mar. 4, 2022), Doc. 40. These claims include: (a) The withholding of Hengst's eyeglasses, as set forth in Grievance No. 021219C; (b) the failure to provide Hengst with medically prescribed protein shakes or an otherwise adequate liquid diet while his jaw was wired shut to immobilize it, as set forth in Greivance No. 050319E; (c) the failure to provide Hengst with adequate dental or medical care when he broke a wire in his jaw while his jaw was immobilized, as set forth in Grievance No. 052119C; (d) the loss or destruction of Hengst's legal papers! (e) the shutting off of all water to Hengst's cell; (f) the alleged use of excessive force by correctional officers on April 21, 2019; and (g) retaliation against Hengst for exercising his First Amendment petition rights. See Hengst, 2022 WL 636725, at *2, Hengst, 2021 WL 8084627, at *15. The remainder of the plaintiff's federal civil rights claims were dismissed on summary judgment.
The parties then attempted mediation. A settlement was reached between Hengst and one defendant, PrimeCare Medical, Inc. (“PrimeCare”), a company contracted to provide healthcare services to inmates at York County Prison. (See Doc. 45.) The parties were unable to compromise on Hengst's claims against the remaining defendants, who now move for summary judgment on the merits with respect to the remaining claims. (Doc. 46.) That motion is fully briefed and ripe for decision. (Doc. 47; Doc. 48 & attachs.; Doc. 51 & attachs.)
I. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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” only if it might affect the outcome of the case. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.
In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 331.
Both parties may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial.” Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).
In compliance with Local Rule 56.1, the defendants' motion for summary judgment is "accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." (Doc. 48.) M.D. Pa. L.R. 56.1. Moreover, each factual statement presented by the defendants in support of their motion for summary judgment "include[s] references to the parts of the record that support the statements." Id.', see also Fed. R. Civ. P. 56(c)(1). The plaintiff's opposition papers also comply with Local Rule 56.1, which requires a party opposing summary judgment is to file "a separate, short and concise statement of the material facts, responding to the numbered paragraphs" in the movant's statement of material facts, which must in turn "include references to the parts of the record that support the statements." M.D. Pa. L.R. 56.1. Many of the facts disputed by the parties concern details of the criminal charges and proceedings against Hengst in connection with which he was incarcerated at the time. Thus, in addition to these counterposed statements of material facts and supporting record citations, we have considered the publicly available docket records of the plaintiff's state court criminal proceedings. Where supplementation is necessary, we have also considered other materials in the record, such as the evidence submitted by the parties in connection with the earlier round of summary judgment on the issue of exhaustion. See Fed. R. Civ. P. 56(c)(3). A district court, of course, may properly take judicial notice of state court records, as well as its own. See Fed. R. Evid. 201; Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child & Youth Servs. of Chester Cnty., 108 F.3d 486, 498-99 (3d Cir. 1997); Pennsylvania v. Brown, 373 F.2d 771, 778 (3d Cir. 1967).
Following his arrest on October 31, 2018, Hengst was incarcerated as a pretrial detainee at York County Prison from November 1, 2018, through June 13, 2019-the date when he pleaded guilty to a felony firearms charge and was sentenced to a term of 31/2 to 8 years in prison, with 229 days of credit for time served in pretrial custody. See Commonwealth v. Hengst, Docket No. CP-67-CR-0007022-2018 (York Cnty. (Pa.) C.C.P.).
Hengst continued to remain in custody at York County Prison as a convicted prisoner until July 11, 2019, when he was transferred to the custody of the state department of corrections to serve his sentence of conviction. But none of the events giving rise to this action occurred after he was convicted and sentenced. In addition, we note that, at the time of his arrest, Hengst was under parole supervision for a prior drug conviction. See Commonwealth v. Hengst, Docket No. CP-67-CR-0002251-2017 (York Cnty. (Pa.) C.C.P.). A parole detainer was issued in that case on November 7, 2018, but the state court terminated parole supervision on June 13, 2019-the date of Hengst's felony conviction and sentence-without conducting a parole revocation hearing. See Id. The parties quibble about facts related to this prior conviction and sentence, but the plaintiff's prior conviction and sentence and the parole detainer are immaterial to his claims because, until parole is actually revoked, "a parole violator is no different than a pretrial detainee who is merely awaiting trial and who, until conviction and sentencing, cannot commence service of a term of imprisonment." United States v. Dobson, 585 F.2d 55, 59 (3d Cir. 1978). Whether held in custody on a felony firearms charge or a parole revocation warrant, Hengst was a pretrial detainee at all relevant times.
Upon his arrival and intake at York County Prison on November 1, 2018, Hengst was given alcohol detoxification medication by medical staff. Shortly after receiving this medication, Hengst lost consciousness and fell to the floor, injuring him and causing his eyeglasses to break.
On November 28, 2018, medical staff took Hengst's eyeglasses away to fix them. On November 29. 2018, while using crutches without the aid of his eyeglasses, Hengst fell on a wet floor. On November 30, 2018, Hengst's eyeglasses were returned to him in the same broken condition as when they were taken from him. Hengst was told that he needed to pay for replacement glasses himself. It was several months before Hengst received new eyeglasses, in May 2019.
On April 18, 2019, while dependent on crutches to ambulate due to an ankle injury, Hengst was assaulted by another inmate, non-party Christopher Scheller. Hengst suffered severely bruised ribs, a fractured jaw, and additional pain to his already injured ankle. On April 20, 2019, Hengst was seen by an outside medical provider for x-rays, and he was diagnosed with a broken jaw consisting of an “open fracture of the left mandibular angle” and a “closed fracture of the right ramus of mandible.”
The defendants contend that Hengst was scheduled for a medical procedure-the wiring of his jaw-at this time. Hengst disputes this, however, stating in his declaration that he was initially told that his jaw fractures were so minor they did not need to be immobilized, and that his jaw was later wired shut because the use-of-force incident on April 21, 2019, exacerbated his injuries.
On April 21, 2019, Hengst was called to the captain's office, where he was charged with misconduct for fighting. From the captain's office, Hengst was placed on suicide watch and taken to a new cell, where he was strip searched. Hengst was placed against a wall and told to take off his boot brace and hand it to correctional officers, which he did. He was then told to take off his socks, which he did, but he dropped a sock to the floor. Hengst was told to pick up his sock and hand it back to the correctional officers without turning around. But when Hengst picked up the sock, he tossed it back to the correctional officers instead of handing it back. He was then pressed face-first against brick wall, and the officer who pressed his face into the wall was aware of his fractured jaw and severely bruised ribs. While being pressed against the wall, Hengst heard the correctional officers say “quit resisting arrest” repeatedly, even though he was not resisting. Hengst was then forced out of the cell and placed in a restraining chair, where his clothing was cut off of his body until he was completely naked. Hengst was then examined by a nurse, who “wrote off' his complaints of injuries as “no new injuries.” Hengst's eyeglasses were also confiscated from him due to his placement on suicide watch.
Hengst disputes this misconduct charge. He claims that he was not fighting, but rather he was the victim of a one-sided assault by Shellers, receiving but not returning blows.
Hengst states repeatedly that his face was "slammed" against the wall, but the video evidence submitted into the record clearly contradicts this characterization of events. While he was forced to press his face against the wall as the officers restrained him, there is no evidence of the sort of force that might be reasonably characterized as being "slammed" against the wall.
On April 23, 2019, Hengst was transported to an oral surgeon to have his jaw wired shut. As a result of his injury and his jaw being wired shut, Hengst was placed on a liquid diet by his medical providers, which included hot chicken broth, hot tea, and liquid protein shakes.
In the wee hours of April 26, 2019, Hengst was transferred to "the hole" based on his "fighting" with Scheller and the "incident" with correctional officers a few days earlier, without a hearing. While in "the hole," medical and correctional staff failed to ensure that Hengst, who remained on a liquid diet, was provided with the prescribed caloric intake. Although a doctor had prescribed six servings of liquid protein diet each day, the prison kitchen routinely served Hengst only two servings per day. In addition, medical staff failed to adequately crush or dissolve his pain medications, causing Hengst to experience difficulty in consuming them.
The defendants claim that the prison kitchen provided whatever the medical staff ordered-six protein shakes per day-but Hengst has disputed this contention, stating in his declaration that he routinely received fewer than the prescribed amount of liquid protein shakes, despite the medical section's order that he receive six. Moreover, copies of email correspondence submitted into the summary judgment record by the defendants themselves indicate that Hengst was provided with fewer than the prescribed number of protein shakes on multiple occasions- especially on weekends-when pharmacy would run out of protein shakes. (See Defs. Ex. A-2, Doc. 48-1.)
On April 29, 2019, Hengst complained to the doctor that he was not receiving his full allotment of six servings of liquid protein diet. On April 30, 2019, Hengst received no protein shakes at all, and his morning pain medications were delayed by hours. Later that day, Hengst got into an argument with a member of the medical staff and correctional officers about his protein shakes, and he was threatened with being moved to segregated suicide watch as punishment. The doctor overheard the commotion and asked Hengst what the problem was. Hengst told him about the lack of protein shakes, and the doctor told Hengst he would correct the matter. One hour later, Hengst was sent to the segregated suicide watch unit as punishment, as he had been threatened earlier.
On May 2, 2019, Hengst attempted to mail a letter to his attorney complaining about the foregoing events, but he was told he would need to buy stamps himself, despite having no canteen service or privileges while in segregation. Hengst also requested a sick call due to his swollen and painful face. That same day, the water was cut off to his cell, and it remained off.
On May 3, 2019, with the water still turned off, Hengst could not rinse his mouth, wash his hands, drink water, or flush the toilet. The toilet was full of waste that caused his cell to smell horribly.
On May 4, 2019, with the water still turned off, Hengst attempted again to mail a letter to his attorney, but he was again told he needed to buy stamps to do so, despite having no canteen service or privileges.
On May 5, 2019, with the water still turned off, Hengst asked a correctional officer to turn the water on briefly so he could flush the toilet. The officer was able to simply turn the water on.
On May 6, 2019, the water in Hengst's cell was turned off again at 8:30 a.m. Sometime that day, Hengst's eyeglasses were returned to him.
On May 7, 2019, Hengst was called into the captain's office and told that his account was frozen because he owed $18 for the jumpsuit correctional officers had cut off him, thus preventing him from buying postage to mail a letter to his lawyer.
On May 8, 2019, water to Hengst's cell was turned off again.
On May 10, 2019, Hengst sneezed, causing a wire in his mouth to break. Medical and dental staff on hand at the prison told him there was nothing they could do, and they gave him a piece of wax for the broken wire. Hengst was taken back to the oral surgeon to fix the broken wire six days later, on May 16, 2019.
On May 13, 2019, Hengst was moved from one cell to another. During the move, some of his legal papers were taken from him, including a note pad, grievance slips, and inmate request slips. Hengst filed an inmate grievance about the loss of his legal papers on May 15, 2019. On May 24, 2019, the investigating grievance officer provided Hengst with an initial review response noting that Hengst had met with his unit manager and the his missing legal papers had been returned to him. She further noted that Hengst had “signed off' on the complaint at that meeting, indicating that the matter had been resolved to his satisfaction.
In his declaration, Hengst states that it was intervention by his attorney that caused the return of his legal papers.
On May 14, 2019, Hengst was moved to another cell, and a correctional officer told him that he had “pissed off a lot of people at the prison” due to his threat of filing a lawsuit and his signing of a retainer agreement with an attorney.
On May 17, 2019, Hengst met with a doctor regarding his ankle. Hengst learned that he had missed two scheduled medical appointments because they had been cancelled by PrimeCare for unknown reasons.
From May 18, 2019, through May 20, 2019, the water to Hengst's cell was turned off again.
On May 21, 2019, Hengst was taken to Wellspan Orthopedic for evaluation and treatment of his ankle injury. He was told that it was sprained during the April 21, 2019, incident with correctional officers.
On June 7, 2019, Hengst was finally able to speak with his attorney by phone. On June 11, 2019, Hengst was able to meet with his attorney in person to discuss his criminal case. At this meeting, the lawyer asked staff about correspondence that he had sent on April 8, 2019, but Hengst had never received. The letter was located and the attorney was advised that Hengst would receive it promptly.
On June 13, 2019, Hengst entered a negotiated plea, and he was sentenced to serve a term of years in prison. He was transferred to a state correctional facility shortly thereafter.
At no time while he was incarcerated at York County Prison did Hengst file a grievance concerning any retaliation he experienced as a result of the exercise of his constitutional rights.
III. DISCUSSION
A. Settled Claims
In May 2022, with the assistance of a court-appointed mediator, Hengst and PrimeCare reached a settlement concerning Hengst's claims against PrimeCare, a company contracted to provide healthcare services to inmates at York County Prison. (See Doc. 45.) The plaintiff and his attorney subsequently signed a release of Hengst's claims against PrimeCare, a copy of which has been submitted into the record by the other defendants. (Doc. 48'7.) Under the terms of this release, Hengst has fully released and discharged PrimeCare from all claims asserted in this litigation. (See id.)
The plaintiff has not filed a stipulation of dismissal or otherwise moved to voluntarily terminate the action as against PrimeCare, and the court has not dismissed the claims against PrimeCare sua sponte. Therefore, in light of the mediator's report and the comprehensive release executed by the plaintiff and his counsel, we recommend that all claims against PrimeCare be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
B. Municipal Liability Claims
The plaintiff seeks to hold the York County Prison Board liable for the allegedly unconstitutional conduct of PrimeCare and the individual correctional defendants. The complaint alleged, in conclusory fashion and based upon the plaintiff's subjective belief only, that the allegedly unconstitutional conduct arose from unspecified policies or customs of the Prison Board. Now, following the completion of discovery, the correctional defendants argue that the plaintiff has failed to adduce any evidence of a policy or custom sufficient to support the imposition of §1983 liability against the Prison Board.
“On its face, § 1983 makes liable ‘every person' who deprives another of civil rights under color of state law.” Burns v. Reid, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In Monell v Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of the United States established that municipalities and other local governmental units are included among those “persons subject to liability under § 1983. Id. at 690. York County is such a municipality subject to liability as a “person” under § 1983. See id. at 694, Mulholland v. Gov't Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013). Moreover, a county prison board is an arm of the municipality it serves, and thus it too is subject to liability as a “person” under § 1983. See Mincy v Deparlos, 497 Fed. App'x 234, 239 n.5 (3d Cir. 2012) (per curiam); Forshey v. Huntingdon Cnty, Civil No. 1:13-CV-0285, 2015 WL 5173717, at *3 (M.D. Pa. Sept. 2, 2015); Meyers v Schuylkill Cnty. Prison, No. 4:CV-04-1123, 2006 WL 559467, at *9 (M.D. Pa. Mar. 7, 2006).
But “[u]nder Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees.” Jiminez V. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Rather, a municipality can be liable under § 1983 only if the conduct alleged to be unconstitutional either “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers” or is “visited pursuant to governmental ‘custom' even though such a custom has not received formal approval through the body's official decision-making channels.” Monell, 436 U.S. at 690-91. “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy, attribute it to the [municipality] itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).
Here, in his opposition brief, the plaintiff has made no effort to identify any municipal policy or custom with respect to his surviving claims concerning the withholding of new eyeglasses to replace his broken ones, the failure to provide him with medically prescribed protein shakes while his jaw was wired shut, the failure to provide him with immediate and adequate dental or medical care when he broke a wire in his jaw when it was immobilized, the temporary loss of his legal papers, the intermittent shutting off of water to his cell, or any allegedly retaliatory conduct. Instead, Hengst's brief is focused solely on a cursory argument that the April 21, 2019, use-of-force incident was caused by a policy or custom of the Prison Board.
But in his complaint, the plaintiff seeks to hold the Prison Board liable only for the administration of detoxification drugs by medical staff after the plaintiff refused them, for the failure of medical and correctional staff to provide him with adequate nutritional sustenance while his jaw was wired shut, and for purportedly retaliatory conduct by medical and correctional staff. The count asserting a § 1983 excessive force claim is expressly limited to the individual correctional defendants only-the plaintiff's counseled complaint does not seek to hold the Prison Board liable for the use-of-force incident on April 21, 2019. (See Compl. ¶¶ 127- 132 (Count III), Doc. 1.) It is well established that a plaintiff “may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.'' Bell v. City of Philadelphia, 275 Fed. App'x 157, 160 (3d Cir. 2008); see also Diodato v Wells Fargo Ins. Servs., USA, Inc., 44 F.Supp. 3d 541, 557 (M.D. Pa. 2014) (quoting Bell).
But even if such a claim were properly articulated in the complaint, the plaintiff has failed to point to any evidence whatsoever to support the imposition of municipal liability. The plaintiff argues that, because the jointly represented Prison Board and individual correctional defendants have contended on summary judgment that the force used during this incident was not unreasonable, the use of force by the individual correctional defendants must have been pursuant to and in compliance with municipal policies, customs, or practices adopted by the Prison Board. But the defendants' legal arguments in support of summary judgment constitute a litigation position advanced by counsel in opposition to the plaintiff's civil rights claims long after the incident at issue, not a municipal policy or custom that caused the conduct of the individual correctional defendants. See, e.g., Teesdale v City of Chicago, 690 F.3d 829, 835-36 (7th Cir. 2012). Otherwise, the plaintiff's theory of municipal liability amounts to nothing more than an argument that the Prison Board's culpability is self-evident from the fact that the allegedly excessive use of force occurred. But “ [r]es ipsa loquitur is no basis for municipal liability.” Howe R Town of N. Andover, 854 F.Supp.2d 131, 146 (D. Mass. 2012); see also Estate of Olivas ex rel. Miranda R City & Cnty. of Denver, 929 F.Supp. 1329, 1338 (D. Colo. 1996) (“Municipal liability cannot be premised on the negligence doctrine of res ipsa loquitur.”)
Accordingly, we recommend that summary judgment be granted in favor of defendant York County Prison Board with respect to the plaintiff's § 1983 municipal liability claims.
C. Excessive Force Claims
The plaintiff asserts a § 1983 claim against the individual correctional defendants for the use of excessive force, based on the April 21, 2019, use-of-force incident. The defendants have moved for summary judgment, arguing that the plaintiff has failed to adduce evidence to establish that the force used was administered maliciously or sadistically to cause harm, in violation of the plaintiff's Eighth Amendment rights.
“But it is the Due Process Clause of the Fourteenth Amendment that protects pretrial detainees like [Hengst].” Jacobs v. Cumberland Cnty, 8 F.4th 187, 193-94 (3d Cir. 2021) (footnote omitted).
Hengst was a pretrial detainee at all relevant times, not a convicted prisoner. See supra notes 1 and 3.
In 2015, the Supreme Court clarified that the subjective Eighth Amendment standard does not apply to pretrial detainees. The language of the two Clauses differs, and the nature of the claims often differs. And, most importantly, pretrial detainees (unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.' The Court thus clarified
that the Fourteenth Amendment, like the Fourth, exclusively employs an objective-reasonableness standard.
... [A] court (judge or jury) cannot apply this standard mechanically. Instead, it requires careful attention to the facts and circumstances of each particular case. Those circumstances include the relationship between the need for the use of force and the amount of force used! the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.
We analyze these circumstances from the perspective of a reasonable officer on the scene. Running a jail is an inordinately difficult undertaking. Safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. Officers facing disturbances are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving. And not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates an inmate's constitutional rights.Id. at 194-95 (citations, footnotes, brackets, and internal quotation marks omitted).
The defendants have proffered several testimonial declarations and documentary exhibits to support their entitlement to summary judgment. The declarations and documentary exhibits indicate that the affiants-three of the four individual correctional officer defendants- assisted in the placement of Hengst on suicide watch at the request of medical staff, whose determination arose out of the misconduct report charging Hengst with fighting another inmate. Hengst reportedly informed correctional officers that he would not cooperate with them during a mandatory strip search to be conducted in connection with his placement on suicide watch. The correctional officers escorted Hengst to his newly assigned segregation cell, where Hengst was ordered to face the back wall. Hengst's hand restraints were removed and he was ordered to place his hands on the window sill. Hengst was heard stating, “tell all staff ‘fuck you.'” Hengst was ordered to remove the medical boot he wore to support his injured ankle and hand it back to the correctional officers. Hengst removed the boot but threw it behind him instead of handing it over. Hengst was ordered to remove his socks and hand them to staff, and he similarly removed his socks and threw them at correctional officers. When Hengst then refused an order to place his hands behind his back, he was “brought to the cell wall” or “plac[ed] . . . against the wall to control him.” Hengst was then handcuffed and placed into an emergency restraint chair, where he was strapped down and his clothing was cut off. After the strip search was completed, Hengst was placed back into the cell without resistance, seated on his cot, and the handcuffs were removed. The declarants observed no injuries to Hengst. (See Defs.' Exs. D, E, F, Docs. 48-4, 48-5, 48-6.)
Although labeled as "affidavits," these are actually declarations under penalty of perjury. See generally 28 U.S.C. § 1746. Because they comply with the statutory requirements of § 1746, the declarations are competent evidence on summary judgment.
In opposition to summary judgment, Hengst relies on his own affidavit to contradict the evidence proffered by the defendants. In his affidavit, Hengst states that he did not refuse to cooperate with the strip search procedure, and that he fully complied with the orders of prison staff. Hengst asserts that he was “tackled” by multiple correctional officers and “slammed face first into the brick wall and injured with excessive pain.” He states that any failure to request medical care for his injuries at the time was because he was unable to talk due to his broken jaw. (See Pl.'s Ex. A, Doc. 51-2.)
See generally Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir. 1985) (discussing material requirements for affidavits to be properly considered on summary judgment).
The record before us also includes a series of digital video recordings, recorded on a handheld camera by a correctional officer, to which both parties cite. “Generally, a court must take the facts in the light most favorable to the non-moving party when disposing of a summary judgment motion. However, a ‘limited exception' to this general rule exists where the nonmovant's version of the events may be disregarded to the extent those facts are blatantly contradicted' by the summary judgment record.” Millbrook v United States, Civil Action No. 3:15-CV-0832, 2016 WL 4734658, at *9 (M.D. Pa. Sept. 12, 2016); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). “While video footage has been found to establish this ‘limited exception,' not all video footage or mechanical depictions will allow a court to disregard the non-movant's version of the events.” Millbrook, 2016 WL 4734658, at *9; see also Scott, 550 U.S. at 380. “[C]ourts have declined to apply the limited exception set forth in Scott v Harris where a videotape or other mechanical depiction does not capture the whole incident or the entire arrest, or where the videotape or mechanical depiction is susceptible to multiple reasonable interpretations.” Patterson v. City of Wildwood, 354 Fed. App'x 695, 698 (3d Cir. 2009); see also Mills v. City of Harrisburg, 589 F.Supp.2d 544, 552 n.5 (M.D. Pa. 2008) (finding audio recording did not qualify for the Scott limited exception because it was susceptible to multiple reasonable interpretations), aff'd, 350 Fed. App'x 770 (3d Cir. 2009).
The video recordings were submitted into the record on a USB flash drive, docketed by the clerk as Doc. 49. The flash drive contains a series of video recordings sequentially labeled: GOPR4557, GOPR4558, GOPR4559, GOPR4560, GOPR4561, GOPR4562, and GOPR4563. The series of videos depicts the entire incident, beginning with the arrival of Hengst and correctional officers at the segregation cell and ending with their departure after the strip search was completed, with Hengst seated on his bunk after the cell door was closed. While the view of Hengst is at times partially obstructed by the bodies of the correctional officers surrounding him, all events are generally visible from the perspective of the videographer, who stood at the doorway of the cell. In the span of a few short seconds, Hengst can be seen unfastening his boot brace and shaking or dropping it off his leg to the floor behind him, despite being ordered to hand the boot to an officer. When ordered to remove his socks and hand them to the officers, he can be seen tossing one to the floor as well. Officers then pulled his arms to place his hands behind his back and leaned him against the cinderblock wall while they placed handcuffs on his wrists. Hengst was then escorted out of the cell to a restraint chair, where he was strapped in and his clothing was cut off to facilitate the strip search. A nurse was then summoned to examine Hengst. As the videographer briefly explained the scenario to her, Hengst can be heard admitting that he threw his socks. When asked by the nurse if he suffered any injuries, Hengst can be heard stating, “Yeah, my face hurts, they smacked my face off the wall.”
The videographer stated that Hengst had been "noncompliant during the strip search," in response to which Hengst commented, "because I threw my socks."
The video footage blatantly contradicts Hengst's version of events. It is clear from the events depicted that Hengst was not fully compliant with the orders of correctional officers when he was directed to hand his boot brace and socks to officers, and Hengst admitted as much when a nurse arrived to question him about any injuries. There is no evidence that he was ever tackled by correctional officers, and while he may have been pressed firmly against the wall while officers secured his hands and placed handcuffs on his wrists, no reasonable jury could agree that he was slammed” into the wall. Moreover, the video recording clearly documents that Hengst was able to speak and did, in fact, respond to a nurse's questions regarding whether he had suffered any injuries-his only complaint was that his face hurt, an injury which the nurse then noted had occurred previously. The facts depicted in this video footage are sufficient for us to conclude that no reasonable jury would credit Hengst's version of events. In other words, we find that, based on the evidence of record (including this video footage), viewed in the light most favorable to the non-moving plaintiff, no reasonable jury could conclude that the degree of force used by the individual correctional defendants against the plaintiff was unreasonable or excessive.
Accordingly, we recommend that summary judgment be granted in favor of defendants Frey, Bolding, Belt, and Fritzkee with respect to the plaintiff's § 1983 excessive force claims based on the April 21, 2019, use-of-force incident.
D. Retaliation Claims
The defendants have moved for summary judgment on the plaintiff's § 1983 retaliation claims on the ground that Hengst failed to exhaust available administrative remedies with respect to such claims- that is, he never filed a grievance of any sort alleging retaliation in response to the exercise of his constitutional rights. The defendants further note that Hengst has failed to adduce any evidence to support a § 1983 retaliation claim on the merits: Hengst has failed to identify any particular exercise of his constitutional rights, he has failed to identify any retaliatory action by the individual correctional defendants- correctional officers Frey, Bolding, Belt, or Fritzkee-sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and he has failed to adduce any evidence of a causal link between the unspecified constitutionally protected conduct and the unspecified retaliatory action. See Thomas v Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Although the complaint does allege facts regarding specific grievances and complaints presented to medical staff and prison officials by Hengst, none of those grievances or complaints were raised within the six-week period preceding the use-of-force incident. See Miller v. Goggin, ___F.Supp. 3d___, 2023 WL 3294832, at *19 (E.D. Pa. May 5, 2023) ("One method of proving a causal link in the First Amendment context is to demonstrate unusually suggestive temporal proximity. . . . Unusually suggestive temporal proximity means within a few days but no longer than a month.") (internal quotation marks omitted); see also Myers v. Mahoning Twp., No. 4:19-CV-01349, 2020 WL 1285330, at *5 (M.D. Pa. Mar. 18, 2020) (six-week gap between constitutionally protected conduct and allegedly retaliatory action insufficient to establish causation).
The complaint identified numerous allegedly retaliatory acts, but the only retaliatory act alleged with respect to these four individual defendants was the use-of-force incident discussed above.
See supra note 13.
The plaintiffs brief in opposition to summary judgment does not address the defendants' arguments on § 1983 retaliation claims whatsoever. It addresses only the defendants' arguments on municipal liability and excessive force. In doing so, the plaintiff has abandoned or waived whatever § 1983 retaliation claims he had asserted against the individual correctional defendants, correctional officers Frey, Bolding, Belt, and Fritzkee. See Carroll v. Lancaster Cnty., 301 F.Supp.3d 486, 499 (E.D. Pa. 2018) (collecting cases); Carroll v. Borough of State Coll., 854 F.Supp. 1184, 1199 (M.D. Pa. 1994) (finding claim waived by plaintiff's failure to address it in opposition brief).
Accordingly, we recommend that summary judgment be granted in favor of defendants Frey, Bolding, Belt, and Fritzkee with respect to the plaintiff's § 1983 retaliation claims.
E. Remaining Claims
The remainder of the plaintiff's claims against individual correctional defendants that survived the initial round of summary judgment on the issue of exhaustion include: (1) a claim that Hengst's eyeglasses were withheld from him by medical staff; (2) a claim that unidentified medical and correctional staff failed to provide Hengst with the appropriate amount of medically prescribed protein shakes or an otherwise adequate liquid diet while his jaw was wired shut to immobilize it; (3) a claim that unidentified medical or correctional staff failed to provide Hengst with adequate dental or medical care over a period of several days when he broke a wire in his jaw while his jaw was immobilized; (4) a claim unidentified correctional staff temporarily deprived Hengst of his legal papers! and (5) a claim that unidentified correctional staff intermittently cut off the water supply to Hengst's cell. The defendants' summary judgment motion does not address these claims to the extent they might be construed as having been asserted against the individual correctional defendants-correctional officers Frey, Bolding, Belt, or Fritzkee-and understandably so, as the complaint does not allege any personal involvement in this allegedly unconstitutional conduct by Frey, Bolding, Belt, or Fritzkee. See Rode v Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988): Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014). Based on the foregoing, we now recommend that, to the extent that they may be construed as having been asserted against the individual correctional defendants, these remaining §1983 claims be dismissed sua sponte for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c).
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless amendment would be inequitable or futile. Grayson v Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, based on the facts alleged in the complaint and the evidence adduced by the parties on summary judgment, it is clear that amendment would be futile. See Jones v. SCO Family of Servs., 202 F.Supp.3d 345, 350 n.4 (S.D.N.Y. 2016) (considering evidence outside of the pleadings for limited purpose of whether to grant leave to amend); Lauter v. Anoufrieva, 642 F.Supp.2d 1060, 1078 (C.D. Cal. 2009) (“A court may consider factual allegations outside the complaint in determining whether to grant leave to amend.”); U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303 F.Supp.2d 432, 445 (S.D.N.Y. 2004). Therefore, we further recommend that these remaining §1983 claims be dismissed without leave to amend.
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. In light of the parties successful mediation, all claims against defendant PrimeCare Medical, Inc., be DISMISSED pursuant to Rule 41(b) of the Federal Rules of Civil Procedure;
2. The defendants' motion for summary judgment (Doc. 46) be GRANTED:
3. The clerk be directed to enter JUDGMENT in favor of defendants York County Prison Board, David Frey, Steve Bolding Ronnie Belt, and Nathan Fitzkee and against the plaintiff with respect to the plaintiff's § 1983 municipal liability, § 1983 excessive force, and § 1983 retaliation claims;
4. All of the plaintiff's remaining § 1983 claims against defendants David Frey, Steve Bolding. Ronnie Belt, and Nathan Fitzkee be DISMISSED for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. § 1997e(c); and
5. The clerk be directed to mark this case as CLOSED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 21, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.