Opinion
CIVIL 1:19-CV-1597
08-09-2021
MICHAEL R. PRIMUS, SR., Plaintiff, v. JOHN E. WENTZEL, et al., Defendants.
BRANN, CHIEF JUDGE
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Statement and Facts of the Case
This is a prisoner civil rights case filed by the pro se plaintiff, Michael Primus, Sr., a state inmate incarcerated in the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Mahanoy in Frackville, Pennsylvania. Primus alleges that he was assaulted by another inmate at SCI Mahanoy, and that the correctional defendants failed to protect him from this inmate assault in violation of the Eighth Amendment to the Constitution. Three of the defendants have now filed a motion for summary judgment, arguing that the plaintiff's claims are unexhausted and without merit. For the following reasons, we will recommend that the motion be granted with respect to Defendants Wetzel and Delbalso, but that the motion be denied with respect to Defendant Reichner.
We note that the caption reflects the incorrect spelling of these defendants' names. We shall refer to the defendants by the correct spelling of their names throughout.
The facts of the instant case can be simply stated: Primus has been incarcerated at SCI Mahanoy since 2015. Primus became a Certified Peer Specialist (“CPS”) in the facility, which required him to meet with inmates who wanted to discuss problems they were having. On December 5, 2018, while he was sitting in the dayroom on D-Block, he was attacked by another inmate, Charles Warren, without warning. Defendant Belt was the officer on duty in D-Block, and he ordered Warren to stop hitting the plaintiff, an order which Warren eventually obeyed. According to the complaint, Warren had allegedly assaulted two other inmates just days prior to the assault on Primus but was never disciplined for those incidents. Primus contends that Defendant Reichner, who was the counselor assigned to D-Block, was aware of these two prior assaults. Primus also alleges that Reichner had heard about a “hit” that was put out on Primus and had asked Primus about it days before the assault.
This statement of facts is taken from the parties' submissions to the extent that those submissions are supported by independent evidence.
The attack left Primus unconscious, and when he came to in the dayroom, he was surrounded by several correctional officers, none of whom he could identify. He was taken to the infirmary, where a correctional officer told him that inmate Warren had attacked him. Following the assault, Primus received information from other inmates about what had occurred during the assault, including that Warren had punched, kicked, and stomped on Primus, and that CO Belt did not intervene in the attack. Primus was diagnosed with Post-Concussion Syndrome and suffered severe injuries to his right eye.
Primus filed two grievances pursuant to the DOC's policy DC-ADM 804, alleging that he was attacked by inmate Warren, and that CO Belt and “Unit Staff” did not protect him from the assault. In his first grievance, No. 776004, he additionally asserted that staff knew of the two prior assaults by Warren and failed to discipline him. This first grievance was denied, as it encompassed two separate incidents. Primus did not appeal this grievance for further review. The second grievance, No. 777402, was also denied, and the denial stated that CO Belt did not physically intervene per DOC policy because he did not have assistance, and thus there was no evidence that the DOC was negligent in its response to the assault. The second grievance was appealed to the Facility Manager and to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), but the appeals were ultimately denied.
Thus, Primus filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 16, 2019. (Doc. 1). In his complaint, he alleges that the defendants violated his Eighth Amendment rights when they failed to protect him from this inmate assault. His complaint names Secretary Wetzel, former Superintendent Delbalso, Counselor Reichner, and CO Belt as defendants. Three of these defendants-Wetzel, Delbalso, and Reichner-have now filed a motion for summary judgment. The motion first asserts that the plaintiff has not exhausted his administrative remedies, as these three defendants were not named in the plaintiff's grievances. Additionally, the defendants assert that the plaintiff has not demonstrated the personal involvement of any of these defendants, as is required to show a constitutional violation.
After review of the record, we conclude that the plaintiff has failed to exhaust his administrative remedies as to Defendants Wetzel and Delbalso, and further, that the Eighth Amendment claims against these defendants fail on their merits. However, with respect to Defendant Reichner, we conclude that there are factual disputes that preclude the entry of summary judgment in favor of this defendant at this time. Accordingly, we recommend that summary judgment be granted as to Defendants Wetzel and Delbalso, but that summary judgment be denied as to Defendant Reichner, without prejudice to renewal of the exhaustion claim on a more fulsome record.
II. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. The Defendants' Motion Should Be Granted in Part and Denied in Part.
The defendants' motion asserts that Primus' Eighth Amendment claims against Defendants Wetzel, Delbalso, and Reichner are unexhausted because Primus failed to name any of these individuals in his grievances regarding the assault. Further, they assert that even if the claims were properly exhausted, Primus has failed to show that these defendants violated his Eighth Amendment rights. With respect to Defendants Wetzel and Delbalso, we agree that the claims against them are unexhausted and without merit. However, in our view there is a genuine issue of material fact with respect to the claim against Defendant Reichner, and thus we will recommend that summary judgment be denied as to this defendant.
1. Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must pursue all avenues of relief available within a prison's grievance system before bringing a federal civil rights action concerning prison conditions. 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). This “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.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The exhaustion requirement is mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). Moreover, “it is beyond the power of [any] court . . . to excuse compliance with the exhaustion requirement.” Nyhuis, 204 F.3d at 73 (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies, an inmate must comply with all applicable grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA requires not only technical exhaustion of administrative remedies, but also substantial compliance with procedural requirements. Id. at 227-32; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
An inmate's failure to comply with the exhaustion requirement prescribed by the PLRA is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), and the burden of proving a failure to exhaust rests with the defendants, Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
The Pennsylvania Department of Corrections Inmate Grievance Policy provides for a three-step process that provides inmates with a means of seeking review of problems that may arise during the course of confinement. Pursuant to DC-ADM 804, after an attempt to resolve problems informally, an inmate may submit a written grievance to the institution's Grievance Coordinator for initial review. This must occur within 15 days after the events upon which the claims are based. “The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim. The statement of facts shall include the date, approximate time and location of the event(s) that gave rise to the grievance. The inmate shall identify individuals directly involved in the event(s).” DC-ADM 804, § 1(A)(11). Although the grievance policy contains this identification requirement, the Supreme Court has observed that “nothing in the [PLRA] imposes a ‘name all defendants' requirement, ” because “the primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued.” Jones v. Bock, 549 U.S. at 217, 219 (quoting Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004)).
Within 15 days of an adverse decision by the Grievance Coordinator, an inmate may appeal to the Facility Manager of the institution. Thereafter, within 15 days of an adverse decision by the Facility Manager, the inmate may file a final appeal to the Secretary's Office of Inmate Grievances and Appeals. An appeal to final review cannot be completed unless an inmate complies with all established procedures. Thus, an inmate must exhaust all three levels of review and comply with all procedural requirements of the grievance review process in order to fully exhaust an issue. See Booth, 206 F.3d at 293 n.2 (outlining Pennsylvania's grievance review process); Ingram v. SCI Camp Hill, 448 Fed.Appx. 275, 279 (3d Cir. 2011) (same).
At the outset, we find that Primus has not exhausted his administrative remedies with respect to his claims against Wetzel and Delbalso. These defendants are not named in either of the plaintiff's grievances concerning the assault by inmate Warren. See e.g., Jackson v. Carter, 813 Fed.Appx. 820, 823-24 (3d Cir. 2020) (finding the plaintiff's grievances unexhausted where he failed to name any of the defendants in his grievances). However, with respect to Defendant Reichner, the exhaustion issue is less clear. While the defendants are correct that Primus did not mention Reichner by name in his grievance, Primus did mention “unit staff” in his grievance. On this score, the plaintiff contends, and the defendants do not dispute, that Defendant Reichner was the counselor assigned to D-Block at the time of the assault. (Doc. 37, at 102). However, it is unclear whether this counselor position constitutes part of the “unit staff, ” and whether this description was sufficient to identify Reichner as someone named in the grievance. Recognizing that exhaustion is a question of law that must be decided by the court, and that the court may resolve factual disputes when deciding the question of exhaustion, we conclude that more is needed here to factually develop this affirmative defense raised by the defendants. See Small v. Camden County, 728 F.3d 265, 271 & n.5 (3d Cir. 2013); Drippe v. Tobelinski, 604 F.3d 778. 785-86 (3d Cir. 2010); see also Hardy v. Shaikh, 959 F.3d 578, 581 n. 1 (3d Cir. 2020) (citations omitted) (noting that judges may resolve factual disputes concerning exhaustion so long as the parties are given notice and an opportunity to respond). Therefore, while we conclude that Primus has failed to exhaust his claims as to Defendants Wetzel and Delbalso, as to Defendant Reichner, we recommend that the motion for summary judgment on exhaustion grounds be denied without prejudice to the renewal of this affirmative defense on a more fulsome factual record.
2. Primus' Eighth Amendment Claims
While we have concluded that the plaintiff has failed to exhaust his administrative remedies with respect to Defendants Wetzel and Delbalso, in our view, his Eighth Amendment claims against these defendants also fail as a matter of law. However, we conclude that there are genuine issues of material fact with respect to the claim against Defendant Reichner, and thus we will recommend that summary judgment be denied as to this defendant.
At the outset, it is well-settled that “a defendant in a civil rights action must have personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). In addition, Primus faces an exacting burden in advancing an Eighth Amendment claim against these defendants in their individual capacities. To sustain such a claim, he must plead facts that:
To the extent Primus brings these claims against the defendants in their official capacities, these claims are plainly barred by the Eleventh Amendment and should be dismissed. See e.g., Snider v. Pennsylvania DOC, 505 F.Supp.3d 360, 431 (M.D. Pa. 2020); Cash v. Wetzel, 8 F.Supp.3d 644, 658 (E.D. Pa. 2014); Parker v. Boring, 2016 WL 3381287, at *4 (M.D. Pa. May 19, 2016), report and recommendation adopted, 2016 WL 3227250 (M.D. Pa. June 13, 2016).
[M]eet two requirements: (1) “the deprivation alleged must be objectively, sufficiently serious;” and (2) the “prison official must have a sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotations marks and citations omitted). In prison condition cases, “that state of mind is one of ‘deliberate indifference' to inmate health or safety.” Id. “Deliberate indifference” is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). While the Eighth Amendment “imposes on prison officials ‘a duty to protect prisoners from violence at the hands of other prisoners, '” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (internal citations omitted), the Farmer standard “is a subjective standard . . . the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.” Beers-Capitol, 256 F.3d at 125.
In the instant case, there are no facts from which we could conclude that Defendants Wetzel and Delbalso had any person involvement in the alleged Eighth Amendment violation, nor did were they aware of any excessive risk to Primus' safety. As it pertains to Defendant Wetzel, Primus contends that Wetzel failed to train and supervise his subordinates, which ultimately led to Primus being assaulted by another inmate. However, it is well settled that “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary' to demonstrate deliberate indifference for purpose of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011). Moreover, with a failure to supervise claim, it is equally well settled that liability cannot be premised on a theory of respondeat superior. Rode, 845 F.2d at 1207. Here, Primus has not alleged that Wetzel knew of any prior unconstitutional violations of any staff involved in the alleged Eighth Amendment violation. Nor has he demonstrated that Wetzel was aware of any risk to Primus' safety inside of the prison. Accordingly, we conclude that Primus has not shown that Wetzel was personally involved or knew of the alleged constitutional violation in this case, and summary judgment should be granted in his favor.
In the same vein, we conclude that the claim against Defendant Delbalso fails as a matter of law. Defendant Delbalso was the Superintendent at SCI Mahanoy at the time of the incident, which required her to respond to grievances as part of her job duties. On this score, Primus contends that Delbalso was aware of the risk to the plaintiff because he had filed a grievance about the assault, and she responded to the grievance. However, it is clear that “reviewing a grievance does not suffice to confer knowledge of a constitutional violation.” Mearin v. Swartz, 951 F.Supp.2d 776, 783 (W.D. Pa. 2013). Primus' sole allegation against Delbalso is that she knew of the risk to his safety based on the grievance he filed. However, the record shows that there is no evidence that Delbalso had the requisite knowledge of this inmate-on-inmate assault that would cause her to be held liable for a constitutional violation. Thus, summary judgment should be granted in favor of Defendant Delbalso.
Finally, with respect to Defendant Reichner, we conclude that there are genuine issues of material fact that would make summary judgment in favor of this defendant inappropriate. On this score, Primus contends that Reichner was aware that the assault was going to occur before it actually took place. He has attached an affidavit of an inmate, Bakari Thomas, which states that a few days prior to the assault, Thomas overheard Reichner asked Primus if Primus had heard anything about a “hit” being place on Primus. (Doc. 47-1, at 4). Primus also contends that Reichner knew of two incidents that involved Warren, the assailant, hitting other inmates, which allegedly occurred a few days prior to the assault on Primus and Warren was not disciplined for these incidents. (Id., at 3).
For their part, the defendants simply contend that Warren had not received any misconducts prior to the assault on Primus, and that Primus has no evidence of any other assaults by Warren or that Reichner knew of any such assaults. Thus, the degree of Reichner's knowledge of a risk to Primus' safety is clearly a factual dispute that cannot be resolved at the summary judgment stage. Rather, we are faced with two competing views-one that imputes knowledge of the assault on Primus before it occurred, and one that imputes no knowledge to Primus whatsoever. Viewing the facts in a light most favorable to Primus as the nonmovant, as we must at the summary judgment stage, we cannot conclude as a matter of law that Reichner did not have the requisite knowledge or personal involvement in the alleged constitutional violation under § 1983. Accordingly, we recommend that summary judgment be denied as to Defendant Reichner.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 36) be GRANTED IN PART AND DENIED IN PART as follows: the motion should be GRANTED with respect to the claims against Defendants Wetzel and Delbalso, and the motion should be DENIED with respect to the claim against Defendant Reichner without prejudice to renewal of the affirmative defense of exhaustion on a more fulsome factual record.
The parties are further placed on notice that pursuant to Local Rule 72.3:
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.