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concluding that summary judgment was appropriate because the inmate-plaintiff failed to present evidence "in support of his claim that staff failed to protect him from an assault and knew or should have known that [the assailant] would assault him"
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Civil No. 3:14-cv-319
07-14-2017
WILFREDO RIVERA, Plaintiff v. BART JOSEPHWICZ, et al. Defendants
() MEMORANDUM
I. Background
Plaintiff Wilfredo Rivera ("Rivera"), an inmate housed at the State Correctional Institution, Dallas, Pennsylvania, ("SCI-Dallas"), initiated the above-captioned civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 1). The named Defendants are Bart Josefowicz, Jerome Walsh, Mark Pall, and Gary Gordon. (Id. at p. 3).
Presently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 18). For the following reasons, the motion for summary judgment will be granted.
II. Summary Judgment Standard of Review
Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." FED. R. CIV. P. 56(a). "As to materiality, . . . [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).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." FED. R. CIV. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993).
However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. 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.Id. (internal quotations, citations, and alterations omitted).
III. Allegations of the Complaint
Rivera alleges that his former cellmate, inmate Rodriguez, had a history of assaulting fellow inmates. (Doc. 1, p. 2). Rivera claims that he overheard inmate Rodriguez informing Defendants Josefowicz, Gordon, and Walsh that he would continue assaulting inmates until he was assigned to a single cell. (Id.). Rivera thus asserts that prison staff members knew that inmate Rodriguez was "dangerous [with] mental illness." (Id.). He alleges that inmate Rodriguez should have been housed on a mental health block, but instead was assigned as his cellmate. (Id.). Rivera allegedly requested to be moved to a different cell, however his request was denied. (Id.). On October 22, 2013, inmate Rodriguez allegedly stabbed Rivera while he was sleeping. (Id.). Rivera claims that he did not provoke this attack, and prison staff knew inmate Rodriguez would continue assaulting fellow inmates. (Id. at p. 3). IV. Statement of Undisputed Facts
Local Rule 56.1 requires that a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 be supported "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." LOCAL RULE OF COURT 56.1. A party opposing a motion for summary judgment must file a separate statement of material facts, responding to the numbered paragraphs set forth in the moving party's statement and identifying genuine issues for trial. See id. Unless otherwise noted, the factual background herein derives from Defendants' Rule 56.1 statement of material facts. See (Doc. 20). Rivera did not file a response to Defendants' statement of material facts. The Court accordingly deems the facts set forth by Defendants to be undisputed. See LOCAL RULE OF COURT 56.1; FED. R. CIV. P. 56(e)(2). --------
On October 22, 2013 at 2:50 a.m., the date and time of the alleged assault, none of the Defendants were present in the institution. (Doc. 20, p. 1, Statement of Material Facts ("SMF"), ¶ 2). None of the Defendants observed Rivera being assaulted by another inmate on October 22, 2013. (Id. at p. 1, ¶ 1). Prior to October 22, 2013, no one ever informed any of the Defendants that Rivera was threatened by any other person, including his cellmate at SCI-Dallas. (Id. at p. 1, ¶ 3).
Pursuant to prison policy, if Rivera believed that any inmate threatened him, he could have requested to be placed in protective custody. (Id. at p. 1, ¶ 4). DC-ADM 802 provides, in part, that an inmate may be placed in administrative custody if: "the inmate is in danger by/from some person(s) in the facility and cannot be protected by alternate measures; . . . placement in general population would endanger the inmate's safety or welfare when it is not possible to protect him/her by other means; . . . [or] the inmate has requested and been granted self-confinement." (Id. at p. 2, ¶ 8; Doc. 20, pp. 11, 18, 25, 32, DC-ADM 802, § 1(A)(1)(a), (d), (g)).
Rivera never requested that any of the Defendants place him in protective custody or self-confinement, and no one ever informed any of the Defendants that Rivera requested to be placed in protective custody or self-confinement. (Doc. 20, p. 2, SMF, ¶¶ 5-6, 9).
If any of the Defendants knew that inmate Rodriguez was dangerous to anyone, including Rivera, he would have been placed in administrative custody prior to October 22, 2013. (Id. at p. 2, ¶ 11). None of the Defendants knew that inmate Rodriguez was dangerous to Rivera, and thus never placed inmate Rodriguez in administrative custody. (Id. at p. 2, ¶ 12). On the date of the assault, inmate Rodriguez was not housed in administrative custody. (Id. at p. 2, ¶ 13).
In October 2013, Keith Starzynski was employed at SCI-Dallas as a Lieutenant. (Id. at p. 3, ¶ 14). As part of his job duties, Lieutenant Starzynski investigated allegations of inmate abuse. (Id. at p. 3, ¶ 15). On October 23, 2013, Lieutenant Starzynski interviewed Rivera about the altercation that occurred on October 22, 2013 between Rivera and inmate Rodriguez. (Id. at p. 3, ¶ 16). During the interview, Rivera stated that he had no problems with inmate Rodriguez until approximately three days before the altercation when Rodriguez confronted Rivera about being homosexual and told Rivera that he had to leave the cell. (Id. at p. 3, ¶ 17). Rivera stated that he did not believe this was a threat from Rodriguez because he already talked to prison staff about moving to a different block. (Id. at p. 3, ¶ 18). Rivera further stated that he did not bring this situation to the attention of any staff member because he thought Rodriguez was ok with his explanation and his attempt to move to a different block. (Id. at p. 3, ¶ 19). Later on October 23, 2013, Lieutenant Starzynski again interviewed Rivera and Rivera stated that he was not going to press criminal charges against Rodriguez. (Id. at p. 3, ¶ 20).
On October 29, 2013, Rivera filed Grievance Number 483467. (Id. at p. 4, ¶ 26). In the grievance, Rivera stated:
My grievance is my body and life was placed in imminent life threatening danger and the security of the institution was breached when I was placed in a cell with I/M R. Rodriguez (GF-2937) which constitutes a violation of several amendm[e]nts of the U.S. Constitution, i.e., cruel & unusual punishment, equal protection, also official capacity deriliction [sic] of duty by U.M. B. Josefewicz. I'm also claiming there was intentional deliberate indifference. It is well documented that I/M R. Rodriguez (GF-2937) is a very assaultive person, therefore he should had [sic] never been housed in a cell with another inmate. The relief I'm seeking is monetary damages in the amount of $750,000.00 for official capacity negligence and deriliction [sic] of duty by U.M. B. Josefewicz, as well as deliberate indifference and cruel and unusual punishment. I'm requesting that there be no retaliation forthwith.(Doc. 20, pp. 4-5, SMF, ¶¶ 27-28; Doc. 20, pp. 48-49).
Defendant Gordon denied the initial grievance and stated as follows:
It is clear that inmate Rodriguez seriously assaulted you when you were celled together and SCI-Dallas staff regret your victimization in this matter. While you claim staff should have known Rodriguez was a danger to you, this would require staff having the ability to predict the future. Many inmates have had difficulty with a former cellmate, but that doesn't mean they can never
again cell successfully with another individual. Inmate Rodriguez had no history of this type [of] assault on a cellmate. Staff at this facility certainly would not have knowingly placed you at risk with someone that had a lengthy history of unprovoked assaults on cellmates.(Doc. 20, p. 5, SMF, ¶¶ 29-30; Doc. 20, p. 50).
I have reviewed an extensive Security Office investigation report regarding this assault. It is clear from your admissions to Security staff that you did not anticipate this assault, but you reported Rodriguez wanted you out of the cell. While you asked for cell-reassignment, you never alerted staff to any fears you were feeling or that you were being threatened by Rodriguez. It is unclear how you believe staff would be able to predict this assault, if you did not anticipate any violence, since you were living with Rodriguez. You do not appear to be to blame for Rodriguez's actions. Staff are also not to blame for his actions. By your own admission to the Security Office, it is clear that Rodriguez suspected you of homosexual activity and wanted you out of the shared cell, as a result of these apparent rumors. While staff have not confirmed any such activity by you, your admission to Security that this was the apparent central issue that provoked this attack provides at least some insight. Again, you never alerted staff to this issue as a problem.
It is also unclear why you blame SCI-Dallas staff for this assault, but you have refused to press criminal charges against inmate Rodriguez for something this violent and serious. While this is your choice, it appears you only wish the DOC to pay for your injuries and not the man who inflicted them upon you. I find this hypocritical at best.
Rivera appealed to the Superintendent, Defendant Walsh. Defendant Walsh denied the appeal and explained as follows: "an extensive security office investigation was conducted and it is very clear from that report that you did not anticipate this assault nor did you make staff aware of your fears that you were feeling or that you were being threatened by Rodriguez." (Doc. 20, p. 5, SMF, ¶¶ 31-32; Doc. 20, p. 52).
Rivera then appealed to the Secretary's Office of Inmate Grievances and Appeals ("SOIGA"). (Doc. 20, pp. 5-6, SMF, ¶¶ 33-34; Doc. 20, p. 53). The Chief Grievance Officer upheld the decisions of the Grievance Officer and Facility Manager, stating as follows:
A review of the record found that an [] [extensive] investigation into this assault was conducted. It found that you did not anticipate the attack, nor did staff. It is noted that although you claim that Unit Manager Jusefewicz failed to do his duty and that you experienced deliberate indifference and cruel and unusual punishment, you chose not to press charges against inmate Rodriguez, your attacker. You never notified staff of any incidents between you and inmate Rodriguez or that you felt threatened in any way. You fail to provide any evidence to substantiate your claims that SCI Dallas staff breached the security of the institution or were responsible for the assault.(Id.).
V. Discussion
Defendants seek an entry of summary judgment on the following grounds: (1) Rivera failed to establish a viable failure to protect claim; (2) Rivera failed to properly exhaust the available administrative remedies; and (3) Defendant Pall had no personal involvement in the alleged failure to protect claim. (Doc. 19). The Court will address these claims seriatim.
A. Failure to Protect Claim
"The Eighth Amendment's prohibition against cruel and unusual punishment protects prisoners against the 'unnecessary and wanton infliction of pain" and "impose[s] a duty upon prison officials to take reasonable measures 'to protect prisoners from violence at the hands of other prisoners.'" Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986))).
"In order for a plaintiff to prove a constitutional violation in a faiIure-to-protect case, a claimant must demonstrate that: (1) he is 'incarcerated under conditions posing a substantial risk of serious harm;' and (2) the prison officials acted with 'deliberate indifference to his health and safety.'" Ogden v. Mifflin County, 2 008 U.S. Dist. LEXIS 81681, *9-10 (M.D. Pa. 2008) (citing Farmer, 511 U.S. at 834). A substantial risk of serious harm "may be established by much less than proof of a reign of violence and terror," but requires more than a single incident or isolated incidents. See Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). This does not require that an inmate must suffer an assault before obtaining relief. Id. Deliberate indifference requires that the prison official "knows of and disregards an excessive risk to inmate health or safety; 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." Farmer, 511 U.S. at 837; Heggenmiller v. Edna Mahan Corr Inst., 128 F. App'x 240, 245 (3d Cir. 2005). "The knowledge element of deliberate indifference is subjective, not objective knowledge, meaning that the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware." Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). Finally, the inmate must show that "the official's deliberate indifference caused the harm." Bistrian v. Lew, 696 F.3d 352, 367 (3d Cir. 2012).
Rivera claims that Defendants failed to protect him from an assault by his former cellmate, inmate Rodriguez. Rivera failed to provide any evidence to support his claim that Defendants knew that Rodriguez had a history of assaultive behavior and posed any threat to Rivera.
The evidence reflects that, prior to the assault, no one ever informed any of the Defendants that any inmate ever threatened Rivera. The uncontroverted evidence reveals that Rivera did not anticipate any violence from Rodriguez, Rivera himself did not believe that Rodriguez threatened to assault him, and he never informed any staff members that he was threatened by Rodriguez. During the October 23, 2013 interview with Lieutenant Starzynski, Rivera confirmed that he had no problems with inmate Rodriguez until approximately three days before the altercation when Rodriguez confronted Rivera about being homosexual and told Rivera that he had to leave the cell. Rivera acknowledged that he did not believe this was a threat from Rodriguez and he did not bring this situation to the attention of any staff member.
The evidence further reflects that Defendants never knew that Rivera was in any danger because Rivera never requested to be placed in protective custody or self-confinement. Additionally, Defendants never knew that inmate Rodriguez was dangerous to Rivera and never placed inmate Rodriguez in administrative custody.
The evidence also establishes that Defendants never knew that Rivera faced a substantial risk of serious harm. Rivera alleges that he overheard Rodriguez informing Defendants Josephwicz, Gordon, and Walsh that he would continue assaulting inmates until he was assigned to a single cell. This lone allegation does not establish that Defendants knew Rivera faced a substantial risk of serious harm, such that they could be considered deliberately indifferent. There is simply no evidence to establish that Rivera articulated any threat of serious harm made by Rodriguez, or that he made any complaints about Rodriguez to any of the Defendants. See Jones v. Beard, 145 F. App'x 743 (3d Cir. 2005) (finding no Eighth Amendment violation where the inmate-plaintiff complained about a cellmate who had a history of psychological problems, but where the plaintiff failed to articulate a specific threat of harm during the weeks prior to an attack).
Rivera has not presented any evidence in support of his claim that staff failed to protect him from an assault and knew or should have known that Rodriguez would assault him. Instead, Rivera sets forth hypothesis and accusation, which is insufficient to satisfy his burden. The party adverse to summary judgment must raise "more than a mere scintilla of evidence in its favor" and cannot survive Rule 56 scrutiny by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). See Betts v. New Castle Youth Development Center, 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams, 891 F.2d at 460); Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Rule 56 requires affirmative evidence in support of a claim. See FED. R. CIV. P. 56(e). The record is devoid of any such affirmative evidence. Accordingly, the Court will grant summary judgment to Defendants on the Eighth Amendment failure to protect claim.
B. Exhaustion of Administrative Review
Under the Prison Litigation Reform Act of 1996 (the "PLRA"), a prisoner is required to pursue all avenues of relief available within the prison's grievance system before bringing a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001). The exhaustion requirement is mandatory, see Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. at 741 (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), and "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).
Courts have also imposed a procedural default component on the exhaustion requirement, holding that inmates must fully satisfy the administrative requirements of the inmate grievance process before proceeding into federal court. Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Inmates who fail to fully, or timely, complete the prison grievance process, or who fail to identify the named defendants, are barred from subsequently litigating claims in federal court. See Spruill, 372 F.3d 218. "As for the failure to identify named defendants on the grievance form,...to the extent the identity of a defendant was 'a fact relevant to the claim,' Pennsylvania's prison grievance policy mandated that the identification be included in the inmate's statement of facts on the grievance form. And,...in the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly identify a defendant constituted a failure to properly exhaust his administrative remedies under the PLRA." Williams v. Pennsylvania Dep't of Corr., 146 F. App'x 554, 557 (3d Cir. 2005) (non-precedential). An "untimely or otherwise procedurally defective administrative grievance" does not satisfy the PLRA's exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). Thus, the PLRA mandates that inmates "properly" exhaust administrative remedies before filing suit in federal court. Id. at 92.
The Pennsylvania Department of Corrections has an Inmate Grievance System which permits any inmate to seek review of problems that may arise during the course of confinement. See 37 PA. CODE § 93.9(a); PA. DEP'T OF CORR., No. DC-ADM 804; (see also Doc. 20, pp. 46-47). After an attempt to resolve any problems informally, an inmate may submit a written grievance to the Facility's Grievance Coordinator for initial review. This must occur within fifteen days after the events upon which the claims are based. Within fifteen days of an adverse decision by the Grievance Coordinator, an inmate may then appeal to the Facility Manager of the institution. Thereafter, within fifteen days of an adverse decision by the Facility Manager, an inmate may file a final appeal to the Secretary's Office of Inmate Grievances and Appeals. See Booth v. Churner, 206 F.3d 289, 293 n. 2 (3d Cir. 2000) (outlining Pennsylvania's grievance review process). An appeal to final review cannot be completed unless an inmate complies with all established procedures. 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 F. App'x 275, 279 (3d Cir. 2011) (same).
Defendants contend that, although Rivera completed the grievance process in its entirety for Grievance Number 483467, Rivera failed specifically grieve a failure to protect claim against Defendants, and has thus failed to exhaust his administrative remedies with respect to this claim. (Doc. 19, pp. 8-12).
The evidence reflects that Rivera filed Grievance Number 483467 to final review. In the grievance, Rivera stated:
My grievance is my body and life was placed in imminent life threatening danger and the security of the institution was breached when I was placed in a cell with I/M R. Rodriguez (GF-2937) which constitutes a violation of several amendm[e]nts of the U.S. Constitution, i.e., cruel & unusual punishment, equal protection, also official capacity deriliction [sic] of duty by U.M. B. Josefewicz. I'm also claiming there was intentional deliberate indifference. It is well documented that I/M R. Rodriguez (GF-2937) is a very assaultive person, therefore he should had [sic] never been housed in a cell with another
inmate. The relief I'm seeking is monetary damages in the amount of $750,000.00 for official capacity negligence and deriliction [sic] of duty by U.M. B. Josefewicz, as well as deliberate indifference and cruel and unusual punishment. I'm requesting that there be no retaliation forthwith.(Doc. 20, pp. 48-49).
Defendants contend that the grievance fails to indicate that Rivera informed any prison officials, including Defendants, that he was in danger, fails to indicate that Defendants knew Rivera was in danger and failed to act, and fails to indicate that Rivera or his cellmate requested a different cell assignment. (Doc. 19, pp. 11-12). Defendants acknowledge that Defendant Josefowicz is named in the grievance, but assert that the accusations against him are insufficient to provide notice that he knew of and disregarded an excessive risk of harm to Riviera. (Id. at p. 12). The Court disagrees and finds that the grievance provided sufficient notice to Defendant Josefowicz of the claims against him.
However, the uncontroverted evidence establishes that Rivera failed to name Defendants Walsh, Pall, and Gordon in his grievance. As noted supra, the standard used to determine when a prisoner has exhausted the administrative process is whether he complied with applicable grievance procedures and rules. The relevant policy and the pertinent language states as follows:
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). Notably, "[t]he inmate shall identify individuals directly involved in the event(s)." DC-ADM 804, § 1(A)(11). The purpose of the regulation "is to put the prison officials on notice of the persons claimed to be guilty of wrongdoing." Spruill, 372 F.3d at 234. Based upon the submitted DOC administrative remedy records, the Court finds that Rivera failed to utilize the DOC's Inmate Grievance System with respect to the failure to protect claim against Defendants Walsh, Pall, and Gordon by failing to identify these Defendants in the grievance.
Rivera fails to offer any evidence that he properly utilized the DOC's Inmate Grievance System with respect to his claims against Defendants Walsh, Pall, and Gordon. "[I]t is clear, regardless of the purpose of the requirement, that Spruill requires the prisoner-grievant-plaintiff to name in the grievance those he eventually sues, upon pain of procedural default." Hemingway v. Ellers, 2008 WL 3540526, at *11 (M.D. Pa. 2008) (citing Williams, 146 F. App'x at 557). Moreover, under Spruill, it is the plaintiff's burden to explain why he did not name a defendant in the grievance. See Spruill, 372 F.3d at 234 ("Spruill did not [name Brown in his grievance], and has offered no explanation for his failure to do so"). Rivera offers no explanation as to why he did not name Defendants Walsh, Pall, and Gordon in his grievance, and there is no genuine dispute of fact as to Rivera's failure to grieve any conduct on the part of these Defendants. Moreover, Rivera does not allege, or present any affirmative evidence, that he was he misled by prison officials or that some other extraordinary circumstance prevented him from properly complying with the grievance process. See FED. R. CIV. P. 56(c), (e). Consequently, Defendants Walsh, Pall, and Gordon are entitled to an entry of summary judgment in their favor on this ground.
C. Lack of Personal Involvement
Defendant Pall argues that Rivera fails to state a claim against him because he lacks personal involvement in the alleged wrongs, and because Rivera's allegations against him are based solely on the doctrine of respondeat superior. (Doc. 19, pp. 12-14). Individual liability can be imposed under Section 1983 only if the state actor played an "affirmative part" in the alleged misconduct and "cannot be predicated solely on the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). "A defendant in a civil rights action must have personal involvement in the alleged wrongs. . . . Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations, however, must be made with appropriate particularity in that a complaint must allege the particulars of "conduct, time, place, and persons responsible." Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08. Alleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement. Rode, 845 F.2d at 1208.
A review of the complaint reveals that there are absolutely no allegations against Defendant Pall. See (Doc. 1). Rivera does not allege that Defendant Pall witnessed the assault, was present at SCI-Dallas during the assault, or knew that the incident would occur. There are no allegations that Defendant Pall was personally involved in the alleged assault. Consequently, Defendant Pall is entitled to an entry of judgment in his favor based on lack of personal involvement in the alleged wrongs.
VI. Conclusion
Based on the foregoing, Defendants' motion for summary judgment will be granted. A separate Order shall issue. Date: July 14, 2017
/s/_________
Robert D. Mariani
United States District Judge