Opinion
Civil Action No. 15-cv-953
07-21-2017
TIARA SMART, Adminstratix of the Estate of FRANK SMART, JR., Deceased, Plaintiff, v. ALLEGHENY COUNTY d/b/a ALLEGHENY COUNTY JAIL; and ORLANDO HARPER Defendants.
REPORT & RECOMMENDATION Cynthia Reed Eddy, United States Magistrate Judge.
I. RECOMMENDATION
This is a civil rights action brought under 42 U.S.C. § 1983 by Plaintiff Tiara Smart as the adminstratix of the estate of Frank Smart, Jr. ("Mr. Smart"), who died less than two days after he was arrested and committed to the Allegheny County Jail ("the jail"). Mr. Smart died because he was deprived his anti-seizure medication, and when he had a resulting seizure, the officers that responded to the medical emergency held him face down with his hands cuffed behind his back and legs shackled for approximately thirty minutes until he stopped breathing. Allegheny County and Warden Orlando Harper are the only remaining Defendants in this action. Presently pending before Court is their motion for summary judgment. Because the motion for summary judgment is replete with genuine disputes of material fact, it is respectfully recommended that the motion be denied.
II. REPORT
A. Factual Background
On the evening of January 3, 2015, Frank Smart, Jr. ("Smart") was arrested and transported to the Allegheny County Jail. A nurse gave him a medical screening the following morning, June 4, 2015 at approximately 11:00 a.m., during which he informed the nurse that he had a seizure condition requiring daily medication. The nurse did not provide him his medication during the medical screening, however, because the medication cart had already passed through that part of the jail.
Nurses dispense medication to inmates twice a day at the jail, once in the morning and once in the evening. For purposes of resolving the pending motion, it is undisputed that Allegheny County and Warden Harper were aware that the jail's medical contractor, Corizon, had serious deficiencies with respect to dispensing medication on a timely basis to the inmates. Neither Allegheny County nor Corizon had a policy to ensure that an inmate would receive his needed medication at intake, or that if an inmate did not receive medication in the morning, he would later receive it sometime throughout the day before the evening medication distribution.
See Plaintiff's Counter-Statement to Defendants' Statement of Material Facts and Plaintiff's Concise Statement of Material Facts (ECF No. 51 at ¶¶ 64-69). Plaintiff bases these averments, in part, on an audit report conducted by the Allegheny County Comptroller's Office that was sent to Warden Harper in December 2014, a month prior to Mr. Smart's death. The audit report detailed numerous purported deficiencies in Corizon's medical care at the jail, including issues which Plaintiff claims are directly relevant to her claims. Additionally, Plaintiff relies on a March 2014 newspaper article from the Pittsburgh Post-Gazette similarly indicating that Corizon was subject to criticism for failing to timely deliver medication to inmates. Corizon's regional director, Robert Orrick, testified in this action that he discussed the newspaper article and the concerns therein with Warden Harper. Defendants have not disputed any of these factual assertions or the exhibits forming the basis for same. Local Civil Rule 56.E states: "Alleged material facts set forth . . . the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purposes of deciding the motion for summary judgment be admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." Pursuant to the briefing schedule on the pending motion, Defendants had the opportunity to deny these allegations and dispute the attached exhibits but did not. (ECF No. 40). Therefore, these allegations are deemed admitted for purposes of resolving the pending motion.
Sometime shortly after the medical screening, Mr. Smart called his girlfriend, Tiona Bennett, because he was concerned that he had not received his medication. In a written statement, Ms. Bennett claims that she called the jail to ensure that someone would provide Mr. Smart his medication. Nevertheless, Mr. Smart had to wait until the evening medication distribution to receive his first (and only) dose of seizure medication, which was approximately twenty-four hours after he was committed to the jail's custody. Moreover, the autopsy and toxicology reports revealed that the dosage he received was inadequate, as the levels of medication found in his blood were at near sub-therapeutic levels.
Plaintiff's medical expert opined that the jail's failure to timely provide Mr. Smart with his medication directly led to Mr. Smart experiencing a violent grand mal seizure that night. At approximately 11:00 p.m. on June 4, 2015, Officer Fleisner was making his required rounds when he heard a "very loud and abnormal" snoring sound coming from Mr. Smart's cell. When Officer Fleisner looked inside the cell, he noticed that Mr. Smart had blood coming from the corners of his mouth and was spitting saliva. A different corrections officer observed Mr. Smart hit his head on the steps of the bunk bed and then the floor. Officer Fleisner, accordingly, called a medical emergency on Mr. Smart's block.
Four nurses arrived first, followed by Captain Robert Bytner, who was the shift commander, and several other corrections officers. Upon entering Mr. Smart's cell, Captain Bytner, like Officer Fleisner, saw that Mr. Smart had blood and saliva coming from his mouth. Captain Bytner also saw that Mr. Smart had soiled himself. At first, Captain Bytner attempted to communicate with Mr. Smart. After realizing that Mr. Smart was unresponsive, Captain Bytner began taking photographs of the scene.
Following the seizure, Mr. Smart's body began to involuntarily "flail around." Nurse Alisia Hollingsworth recognized that the flailing was due to the fact that he was in a postictal state. Nurse Hollingsworth left to retrieve medical supplies. When she returned, she was "bothered by" what she saw, according to an interview she had with an investigator after the incident. An investigative report details Nurse Hollingsworth's account of the events, in pertinent part, as follows:
Defendants point to ambiguous deposition testimony from Nurse Logan Berger for the proposition that Mr. Smart was thrashing around and attempting to hit officers after his seizure. Nurse Berger's conclusion that Mr. Smart was "attempting" to hit the officers, however, was based on the fact Mr. Smart was in a postictal state coming out of his seizure. When read as a whole and construed in the light most favorable to Mr. Smart, Nurse Berger's testimony here suggests that Mr. Smart's movements were involuntary, despite Nurse Berger's characterization that Mr. Smart was "attempting" to hit the officers. Moreover, even assuming arguendo that Nurse Berger's testimony could be read as a statement that Mr. Smart was intentionally trying to hit the officers when he was flailing, Captain Jeffery Kengerski gave conflicting deposition testimony. Captain Kengerski testified that Mr. Smart was not actively fighting the officers but rather was moving and "scooching his body around." As such, for purposes of resolving the pending motion, the Court must assume that Mr. Smart's flailing movements were involuntary.
See Enders v. Colvin, 2014 WL 2987710, *12 n. 28 (M.D. Pa. 2014) ("The postictal phase is the second period after the seizure. The postictal phase may last from seconds to days, depending on the type of seizure, and during that phase a variety of symptoms can be observed. . . . Those symptoms can include headaches, confusion, drowsiness, muscle soreness, weakness and psychiatric disturbance.") (internal citation omitted).
Four or five corrections officers were lying on top of Smart. The officers were lying perpendicularly to Smart's body. Captain (Robert) Bytner was down on his knees holding Frank Smart in a headlock. Hollingsworth described Bytner holding Smart around the neck, which Hollingsworth could see, was choking Smart. The inmate was struggling to breathe. Hollingsworth observed that Captain Bytner was red of face and sweating.
***
When describing the officers on top of the inmate, Hollingsworth said they were putting all of their weight on the inmate, describing the officers lying on him in a way that the officers' feet were off the floor.
Pl.'s Ex. 18 (ECF No. 51-3 at 49); Def.s' Ex. E (ECF No. 48-2 at 25-26).
Overall, at least fifteen corrections officers - including two captains and a sergeant - responded to the emergency at different times. The collective substance of their deposition testimony was that during Mr. Smart's seizure event, Mr. Smart was handcuffed, shackled, and forcefully held stomach down in a prone position, with four to five corrections officers, rotating in shifts, continuously placing their weight on Mr. Smart's body for twenty to thirty minutes. During this time period, Mr. Smart was yelling "help," according to Corrections Officer Robert Dickson, and gasped several times, "I can't breathe, I can't breathe," according to Captain Kengerski. In addition, Captain Kengerski asked Captain Bytner and Nurse Berger whether something else could be done, but was told by both that it was "fine" and "everything was under control."
At some point, a phone call to 911 was made. Mr. Smart stopped breathing when the paramedics were on the way. Nurses and corrections officers began to perform CPR and attached a defibrillator to Mr. Smart in an effort to resuscitate him. When the paramedics arrived, they took over the care and transported Mr. Smart to UPMC Mercy, where he was pronounced dead at 12:22 a.m. on January 5, 2015. Dr. Luckasevic of the Allegheny County Medical Examiner's Office performed an autopsy, concluding: "Frank J. Smart, a 39 year old African-American male, died as a result of seizure disorder. Physical restraint in a prone position contributed to his death."
There is a specific Department of Corrections ("DOC") policy relating to physical restraint that prohibits officers from restraining and handcuffing inmates in the very manner that contributed to Mr. Smart's death ("the DOC restraint policy"). Although the jail is not a state DOC institution, most of its training policies and procedures are established and approved by the DOC. As a general matter, Warden Harper and his deputy warden were both aware that corrections officers did not attend training sessions as required. Various corrections officers deposed in this case confirmed that they did not receive regular training during their employment at the jail.
Consistent with footnote 1 supra, the allegations in paragraphs 53 to 57 of Plaintiff's Counter-Statement to Defendants' Statement of Material Facts and Plaintiff's Concise Statement of Material Facts are deemed admitted for purposes of resolving the pending motion because Defendants did not deny or otherwise controvert them.
See Plaintiff's Counter-Statement to Defendants' Statement of Material Facts (ECF No. 51 at ¶ 23).
Further, in the particular context of this case, none of the jail employees who responded to Mr. Smart's medical emergency knew about the DOC restraint policy or were aware that restraining an inmate on his stomach with his hands cuffed behind his back can cause sudden death. The DOC restraint policy states, in relevant part, the following:
An inmate shall not be placed on his/her stomach while hands are cuffed behind his/her back. If an inmate is placed on his/her stomach while handcuffed behind the back, all attempts must be made to move the inmate from this position. The officer(s) shall not apply weight or pressure to an inmate in this position.Captain Kengerski and Sergeant Michael Brown were both employed at the jail in a supervisory role and were responsible for training corrections officers; however, neither of them knew about the DOC restraint policy at the time they responded to Mr. Smart's medical emergency. In addition, the director of training for the jail, Stephanie Frank, stated that training on use of restraints may have been covered as "part of the overall defensive plan," but she could not say whether the details of the DOC restraint policy were taught to the jail's corrections officers or adopted as a policy at the jail.
Positional Asphyxia or "Sudden Death" could occur when using restraints. Be aware of breathing difficulties or loss of consciousness by continuing to verbally communicate. If the inmate's speech becomes irrational or stops, evaluate the situation carefully.
Pl.'s Ex. 21 (ECF No. 51-4 at 2) (emphasis in original).
After Mr. Smart's death, Nurse Hollingsworth and Captain Kengerski both had trouble sleeping because of the incident and voiced their concerns about how the situation was handled. They were both told by supervisors, however, to keep their mouths shut about what they saw. According to Captain Kengerski, he was told, "We don't want another situation where the Warden loses his job." Captain Kengerski also stated in his deposition that he was bothered by the fact that employees of the jail were joking about how the corrections officers "killed that guy upstairs."
B. Procedural Background
Plaintiff initiated this action as the administratix of Mr. Smart's estate in the Court of Common Pleas of Allegheny County and Defendants removed it to this Court on July 23, 2015, where it was assigned to the undersigned for pretrial proceedings in accordance with 28 U.S.C. § 636(b) and Local Civil Rule 72. Plaintiff asserted Counts I through V of the amended complaint (ECF No. 19) against Corizon. Those claims are no longer at issue because Plaintiff and Corizon reached a settlement in November 2016. (ECF Nos. 44, 45). The only remaining claims in this action, therefore, are Counts VI and VII against Allegheny County and Warden Harper, respectively, pursuant to 42 U.S.C. § 1983 for violation of the Fourth, Eighth and/or Fourteenth Amendments of the United States Constitution.
At the close of discovery, Allegheny County and Warden Harper (collectively "Defendants") filed a motion for summary judgment, concise statement of material facts, and brief in support thereof. (ECF Nos. 47-49). Plaintiff responded to these documents by filing a brief in opposition, as well as a counter-statement of Defendants' statement of facts and her own concise statement of material facts. (ECF Nos. 50-51). Defendants declined to file replies to Plaintiff's submissions despite having the opportunity to do so. See (ECF No. 40). Accordingly, Defendants' motion is ripe for adjudication.
C. Summary Judgment Standard
Summary judgment is appropriate if, when "view[ing] the facts in the light most favorable to the nonmoving party and draw[ing] all reasonable inferences in that party's favor," 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." Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). "Material facts are those that could affect the outcome of the proceeding, and a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Pearson v. Prison Health Svc., 850 F.3d 526, 534 (3d Cir. 2017) (internal marks and citation omitted). "To assess whether the moving party has satisfied this standard, we do not engage in credibility determinations." Id.
D. Discussion
Plaintiff's claims against Allegheny County and Warden Harper arise under 42 U.S.C. § 1983, which "is not a source of substantive rights but a vehicle for vindicating rights conferred by the U.S. Constitution or by federal statute." DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005) (citation omitted). The parties seek to apply the deliberate indifference standard derived from Estelle v. Gamble to these claims. See 429 U.S. 97, 103-04 (1976) (holding that deliberate indifference to prisoners' serious medical needs violates the Eighth Amendment's proscription against unnecessary and wanton infliction of pain). Mr. Smart, however, was not a convicted prisoner during the relevant time period; he was a detainee. Therefore, the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment, is the source of his constitutional rights in this action. Natale v. Camden Cty. Corr. Fac., 318 F.3d 575, 581 (3d Cir. 2003); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) ("due process rights of [detainees] are at least as great as the Eighth Amendment protections available to a convicted prisoner"); Kingsley v. Hendrickson, 135 S.Ct. 2466, 2475 (2015) ("pretrial detainees (unlike convicted prisoners) cannot be punished at all"). In any event, where, as here, the parties do not seek to apply a different standard to a detainee's claim for inadequate medical care, courts apply the same standard utilized for such Eighth Amendment claims. See Natale, 318 F.3d at 581-82 & n. 5; Estate of Thomas v. Fayette Cty., 194 F.Supp.3d 358, 369 n. 9 (W.D. Pa. 2016).
Section 1983 provides, in pertinent part, the following:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any . . . person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
To hold a municipality like Allegheny County liable under § 1983, Plaintiff must prove it had in place a custom or policy that caused the constitutional violation. Monell v. Dep't of Social Servs., 436 U.S. 658, 694 (1978). A failure to train or supervise claim ordinarily requires a pattern of similar constitutional violations. Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Despite this general rule, however, "a single-incident constitutional violation [is] sufficient to preclude summary judgment on a failure-to-train claim against a municipality" if the "injury [is] a 'highly predictable consequence' of the [jail's] failure to provide . . . training . . . for corrections officers." Thomas v. Cumberland Cty., 749 F.3d 217, 225 (3d Cir. 2014). In addition, summary judgment is not appropriate where "[a] reasonable jury could conclude that the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates' medical needs." Natale, 318 F.3d at 585.
"A course of conduct is considered to be a 'custom' when, though not authorized by law, 'such practices of state officials [are] so permanent and well settled' as to virtually constitute law." Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Monell, 436 U.S. at 690). Custom may also be established by evidence of knowledge and acquiescence. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).
"Policy is made when a 'decisionmaker possess[ing] final authority to establish a municipal policy with respect to the action' issues an official proclamation, policy, or edict." Andrews, 895 F.2d at 1480 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). State law determines whether an individual is a policymaker, i.e., an official who has final, unreviewable discretion to make a decision or take an action. Id. at 1481 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 142 (1988)).
Plaintiff's claim against Warden Harper for failing to train and supervise his subordinate officers and/or implement and enforce necessary policies at the jail is similar to the claim for municipal liability against Allegheny County. See Giles v. Davis, 427 F.3d 197, 207 n. 7 (3d Cir. 2005). In this Circuit, courts recognize two theories for holding supervisors like Warden Harper liable under § 1983: (1) "if they established and maintained a policy, practice or custom which directly caused the constitutional harm," or (2) "if they participated in violating plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in their subordinates' violations." Parkell v. Darnberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n. 5 (3d Cir. 2010)). "'Failure to' claims - failure to train, failure to discipline, or . . . failure to supervise - are generally considered a subcategory of [the first theory,] policy or practice liability." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319-20 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015).
Although the Court of Appeals has repeatedly "expressed uncertainty as to the viability and scope of supervisory liability" with respect to holding a supervisor indirectly liable for deficient policies or practices since the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), see Santiago, 629 F.3d at 130 n. 8; Palakovic v. Wetzel, 854 F.3d 209, 225 n. 17 (3d Cir. 2017); Bistrian v. Levi, 696 F.3d 352, 366 n. 5 (3d Cir. 2012); Argueta v. U.S. I.C.E., 643 F.3d 60, 70 (3d Cir. 2011); Bayer v. Monroe, 577 F.3d 186, 190 n. 5 (3d Cir. 2009), the Court has held that in the specific context of this case - an Eighth Amendment deliberate indifference claim for denial of adequate medical care - its test for supervisory liability has survived and is consistent with Iqbal. Barkes, 766 F.3d at 319-20. The Court notes that Defendants do not challenge whether Warden Harper is subject to this test for policy or practice supervisory liability. See Def.s' Br. (ECF No. 49 at 4) (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001)).
As Plaintiff explains in her brief in opposition to summary judgment, she is claiming that Mr. Smart's constitutional rights were violated in two main respects: (1) he was denied his much needed medication for his seizure condition pursuant to a defective policy and custom at the jail concerning medication distribution and intake screening procedures, and (2) after he had a seizure, he was forcibly held face-down in a prone position by four to five officers for a period of approximately thirty minutes with his hands cuffed behind his back and legs shackled in direct violation of the DOC restraint policy that was never communicated to any of the responding officers. Pl.'s Br. (ECF No. 50 at 1-2). The Court notes that it is undisputed for purposes of this motion that the combination of being denied medication and being held in the prone position caused Mr. Smart's death. After reviewing the parties' submissions in connection with Defendants' motion for summary judgment, it is plainly apparent that the entire motion is premised on genuine disputes of material fact, and, therefore, must be denied.
The most notable factual dispute involves whether the corrections officers received training on the DOC's restraint policy. As explained above, the restraint policy prohibits officers from physically restraining an inmate on his stomach with his hands cuffed behind his back. The policy specifically explains that such restraint is prohibited because it can cause the inmate to experience positional asphyxia, also known as "sudden death." According to Defendants, there is no genuine dispute of material fact on this issue because the DOC restraint policy was in place at the jail and working corrections officers at the jail receive forty hours of training per year. In response, however, Plaintiff has demonstrated that of the fifteen or so jail employees deposed in this case, not a single individual (including a captain and sergeant responsible for training corrections officers) knew about the policy. Additionally, the director of training for the jail, Stephanie Frank, did not know whether the details of this particular policy were taught to officers or if it was even adopted by the jail. Thus, a reasonable jury could conclude that, contrary to what Defendants have asserted in their motion, Warden Harper and Allegheny County did not actually have this policy in place, despite the obvious need and high predictability that inmates' constitutional rights would be violated if the corrections officers did not follow it. See Thomas, 749 F.3d at 225. Moreover, Plaintiff has adduced facts from which a reasonable jury could conclude that corrections officers did not actually receive or consistently attend the required forty hours of training per year and that Warden Harper knew of the attendance issues and deficiencies in the training program at the jail but did nothing.
For example, Captain Kengerski, who was responsible for training corrections officers, testified in his deposition that both Warden Harper and the deputy warden were aware of the attendance issues at training sessions but ignored them.
Plaintiff has also disputed Defendants' assertions that there is nothing in the record that would give Warden Harper or Allegheny County reason to believe that there were deficiencies in Corizon's policies or procedures with respect to medical assessments, evaluations, and procedures in general. Specifically, Plaintiff has pointed to deposition testimony from Robert Orrick, Corizon's regional director, who claims he spoke to Warden Harper about a 2014 newspaper article stating that Corizon has been criticized for failing to timely deliver medication to inmates. In addition, Plaintiff asserts that Defendants were aware of Corizon's deficiencies because about a month prior to Mr. Smart's death, the Allegheny County Comptroller's Officer sent Warden Harper the results of an audit conducted on the County's contract with Corizon, which set forth numerous purported deficiencies relating to Corizon's medical care at the jail, most of which Plaintiff claims are relevant to this case. Because Defendants have not controverted Plaintiff's allegations here or attempted to challenge this evidence, it is all deemed admitted for purposes of deciding the pending motion for summary judgment. See LCvR 56.E; see also Polansky v. Vail Homes, Inc., 2016 WL 2643253, *2, 4 & n. 4 (W.D Pa. 2016) (explaining that LCvR 56.E is "strictly applied" in this Court).
In fact, the top finding in the audit was that the jail's monitoring and enforcement of the contract with Corizon was insufficient. According to the audit, it was Warden Harper's responsibility to personally monitor the contract or to designate an individual to do so. --------
As such, there is a genuine dispute of material fact as to whether Warden Harper and Allegheny County knew of Corizon's deficiencies with respect to dispensing medication on a timely basis to inmates in the jail's custody but "turned a blind eye to [the] obviously inadequate practice." Natale, 318 F.3d at 548; see also Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (a non-medical prison official cannot escape liability if he has "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner"); Farmer v. Brennan, 511 U.S. 825, 843-44 (1994) (if a prison official is aware of an obvious, substantial risk to inmate safety applicable to all prisoners, he cannot escape liability for deliberate indifference merely because he was not aware of the complainant's specific situation). Indeed, the failure to establish a policy to ensure that an inmate receives his needed medication at intake or that an inmate who misses the morning medication distribution will receive it sometime later in the day "is a 'particularly glaring omission' in a program of medical care." Natale, 318 F.3d at 585. Accordingly, summary judgment is inappropriate because there is a genuine dispute of material fact as to whether Defendants were aware of said failure.
Finally, Warden Harper is not entitled to qualified immunity, which provides that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduction does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). In their motion, Defendants do not challenge whether Mr. Smart's rights here were clearly established and instead simply assert that Warden Harper's conduct did not violate his constitutional rights. As set forth above, there are several genuine disputes of fact preventing the Court from reaching this conclusion. Because Defendants' entire argument here is based on disputed facts, Warden Harper is not entitled to qualified immunity. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (when conducting a qualified immunity analysis, a court may not resolve genuine disputes of fact in favor of the party seeking summary judgment); Giles, 571 F.3d at 326 (a genuine issue of material fact will preclude summary judgment on qualified immunity).
E. Conclusion
For all of these reasons, it is respectfully recommended that Defendants' motion for summary judgment be denied. In accordance with 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72(b)(2), and LCvR 72.D.2, objections to this Report & Recommendation are due by August 4, 2017. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: July 21, 2017.
By the Court:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: all registered users of CM-ECF