which caused bruises, swelling, loosened teeth, and a cracked dental plate, was not de minimis for purposes of the Eighth Amendment.
A. The Claim Against Sergeant Popson
Plaintiff claims that Sergeant Popson pushed him against a wall in the RHU stripsearch room and beat him. The corrections officers who were present at the time state in their declarations that no force was used against Plaintiff in the RHU, that nothing unusual occurred, and that there was no change in his appearance between the time that he entered the RHU and the time that he left the RHU. The medical records also negate Plaintiff's assertion that Defendant Popson beat him. The records confirm that the only injuries received by Plaintiff were the minor injuries from the fight with inmate Santiago, and from the officers' restraining and handcuffing him on 8-Block. Inmate Santiago was punching Plaintiff in the head with upward strokes. The cuts received by Plaintiff near each eye were the result of the inmate fight. Plaintiff also had abrasions on his wrist. These were the result of the tight application of the handcuffs by Officer Procopio and Plaintiff's resistance. These injuries preceded Plaintiff's escort to the RHU. His medical examination after his reception in the RHU showed no other injuries.
Plaintiff alleges that as a result of the beating by Defendant Popson he needed bifocal eyeglasses. Plaintiff's claim is pure speculation. Medical records show that Plaintiff received prescription eyeglasses in 1989 and received another stronger prescription in April 1991. Plaintiff needed the stronger prescription and bifocals because of his age.
Medical records show that a dentist extracted one of Plaintiff's front teeth in March 1991. The extraction, however, was unrelated to the events of January 1991. The records show that Plaintiff originally needed a front tooth removed in April 1990, refused the extraction, later requested extraction in December 1990, and finally had the tooth extracted in March 1991.
The records show that all of Plaintiff's injuries found after his RHU admission existed on 8-Block, after the officers subdued him. The records also show that no force was used on Plaintiff from the time he left 8-Block to the time he entered the RHU. Finally, the doctor who examined Plaintiff the day after his admission to the RHU noted that plaintiff had no problems.
Defendant Popson, therefore, has met his burden of presenting a factual scenario with no unexplained gaps. The record shows that Sergeant Popson did not beat Plaintiff in the RHU. Moreover, even assuming, for the sake of argument, that Sergeant Popson did use force against Plaintiff, the medical evidence in the record indicates that such force was de minimis as a matter of law under the Eighth Amendment, see, e.g., Candelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1992) (alleged force de minimis where medical evidence showed no redness, bruising, swelling, or other indication of physical injury); Brown v. Vaughn, 1992 U.S. Dist. LEXIS 4221 (E.D. Pa. Mar. 30, 1992) (allegation that guard struck inmate in chest and spit on him found de minimis), or was applied in a good faith effort to maintain or restore discipline. Plaintiff cannot rest on the allegations in his complaint to defeat a motion for summary judgment. By failing to respond, Plaintiff has not presented the Court with evidence on which a jury could return a verdict in Plaintiff's favor under the governing law. Because there are no genuine issues of material fact and Defendant Popson is entitled to judgment as a matter of law, the Court will grant his motion for summary judgment.
B. The Claim Against Officer Witowski
Plaintiff claims that Officer Witowski falsely stated that plaintiff tried to hit and kick him. Based upon the events of January 7, 1991, Plaintiff was charged with assault or fighting, and refusing to obey an oral or written order. A hearing examiner found him guilty. Plaintiff does not challenge this finding. Even assuming that plaintiff were challenging this finding, an allegation by an inmate that a corrections officer falsely accused the inmate of misconduct does not state a claim under section 1983 where the procedural due process protections set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) have been provided at the inmate's disciplinary hearing. Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984); Flanagan v. Shively, 783 F. Supp. 922, 931 (M.D. Pa. 1992); Vines v. Howard, 658 F. Supp. 34, 37 (E.D. Pa. 1987). Under Wolff, prison officials must provide advance written notice of the violation, provide a written statement of fact-finding, and afford the inmate the opportunity to present witnesses and present evidence in his behalf. Wolff, 418 U.S. at 563-66. In this case, the disciplinary hearing report shows that the prison complied with the due process requirements of Wolff.
Although Plaintiff does not state this in his complaint, the Court assumes that the inference that he wishes to draw against Witowski is that because Witowski stated that Plaintiff tried to hit and kick him, Sergeant Popson beat Plaintiff in the RHU. According to 42 U.S.C. § 1983 a civil rights defendant can be liable only if he "subjects, or causes to be subjected" the plaintiff to the challenged constitutional deprivation. 42 U.S.C. § 1983. This means that a plaintiff must allege in his complaint "direct, personal involvement by the defendant in the alleged unconstitutional conduct, or active knowledge and acquiescence on the defendant's part to such conduct." District Council 47 v. Bradley, 619 F. Supp. 381, 384 (E.D. Pa. 1985). In addition to direct participation, a plaintiff may also show that the defendant acted or failed to act with deliberate or reckless disregard of the plaintiff's constitutional rights or that the conduct causing the constitutional deprivation occurred at the defendant's direction or with his knowledge and consent." Jackson v. Elrod, 655 F. Supp. 1130, 1135 (N.D. Ill. 1987).
Generally, the issue of a defendant's liability arises in the context of the liability of superior officers for the acts of their inferior officers. Here, Plaintiff is seeking to have the Court hold Corrections Officer I Witowski liable for the alleged beating of Plaintiff by a superior officer, Corrections Officer II (Sergeant) Popson. In any event, the evidence supplied by Defendants along with their motion for summary judgment shows that Defendant Witowski was not in the RHU area where the alleged beating occurred. Thus, Defendant Witowski did not have any direct, personal involvement in the alleged beating. Furthermore, there is a lack of evidence to indicate that Defendant Witowski ordered anyone to beat Plaintiff or that Defendant Popson allegedly beat Plaintiff in response to Plaintiff's actions against Witowski. Thus, Defendant Witowski is entitled to summary judgment because there is a lack of evidence to establish a causative link between Witowski's words on 8-Block and the alleged beating in the RHU.
C. Plaintiff's Claim Against Sergeant Wetzel
Plaintiff alleges that Sergeant Wetzel and another sergeant stood over him with their night sticks after the beating. Sergeant Wetzel's alleged action of holding a baton to discourage Plaintiff from defending himself against the alleged beating or to discourage Plaintiff from assaulting the corrections officers fails to state a claim because "mere threatening . . . gestures of a custodial officer do not, even if true, amount to constitutional violations." McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 78 L. Ed. 2d 691, 104 S. Ct. 499 (1983). In addition, there is a lack of evidence to establish a causative link between Sergeant Wetzel's action of holding a baton and the alleged beating of Plaintiff by Sergeant Popson. Defendant Wetzel, then, is entitled to summary judgment because there is a lack of a genuine issue of material fact and he is entitled to judgment as a matter of law.
IV. The State Law Claims
Plaintiff alleges that Defendants violated state and local laws when they committed the actions stated in the complaint. Defendants respond that they are statutorily immune from suit with regard to Plaintiff's pendant state law claims.
It is well established that sovereign immunity is the law in Pennsylvania. See, e.g., Shoop v. Dauphin County, 766 F. Supp. 1327, 1333-34 (M.D. Pa. 1991); Faust v. Commonwealth Dept. of Revenue, 140 Pa. Commw. 389, 592 A.2d 835 (Pa. Commw. 1991); E-Z Parks, Inc. v. Philadelphia Parking Authority, 110 Pa. Commw. 629, 532 A.2d 1272 (Pa. Commw. 1987). Commonwealth parties are immune from suit for those actions taken within the scope of their duties, except in those instances in which that immunity has been specifically waived. 1 Pa. Cons. Stat. Ann. § 2310;
Yakowicz v. McDermott, 120 Pa. Commw. 479, 548 A.2d 1330 (Pa. Commw. 1988) appeal denied 565 A.2d 1168 (Pa. 1989).
At 42 Pa. Cons. Stat. Ann. § 8522, the General Assembly specifically waived sovereign immunity in nine areas.
Under Pennsylvania law, however, governmental and sovereign immunity waivers which are exceptions to the rule of immunity are to be strictly construed. Majestic by Majestic v. Commonwealth Dep't of Transp., 144 Pa. Commw. 109, 601 A.2d 386 (Pa.Commw. 1991); Martz v. Southeastern Pennsylvania Transp. Auth., 143 Pa. Commw. 25, 598 A.2d 580 (Pa. Commw. 1991).
Defendants enjoy the immunity provided by 1 Pa. Cons. Stat. Ann. § 2310. Defendant corrections officers were acting within the scope of their duties. See Shoop v. Dauphin County, 766 F. Supp. 1327, 1334 (M.D. Pa. 1992). Further, the state law claims are not within the narrow exceptions set forth in 42 Pa. Cons. Stat. Ann. § 8522(b). Defendants are immune even if the state violations Plaintiff has vaguely pled required a level of intent. Id.; Yakowicz, 548 A.2d at 1334 (Commonwealth agency employee immune from intentional tort claim for defamation).
Defendants have met their burden of showing that there is a lack of evidence to support Plaintiff's claims under section 1983 and Plaintiff has failed to respond to Defendants' motion. The Court concludes that it is appropriate to enter summary judgment in favor of Defendants and against Plaintiff. Because Defendants are statutorily immune from Plaintiff's state claims, the Court will grant summary judgment in favor of Defendants and against Plaintiff on Plaintiff's state law claims. An appropriate order follows.
Daniel H. Huyett, 3rd, Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 816 F. Supp. 335.
ORDER - February 17, 1993, Filed
February 10, 1993
Upon consideration of Defendants' motion for summary judgment, the lack of response from Plaintiff, and for the reasons stated in the foregoing memorandum, Defendants' motion is GRANTED. Judgment is ENTERED in favor of Defendants Sergeant Popson, Corrections Officer Witowski, and Sergeant Wetzel and against Plaintiff Richard Collins on all of Plaintiff's claims.
The counterclaim of Defendant Witowski is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge