The opinion of the court was delivered by: LISA LENIHAN, Magistrate Judge
Randolph Muse (Plaintiff), was incarcerated in SCI-Greensburg.
While there, he alleges that the two Defendants, who were guards,
used excessive force against him. The Defendants have filed a
motion for summary judgment, asserting three grounds: 1) there is
no genuine issue of fact about whether they utilized excessive
force; 2) Plaintiff procedurally defaulted his claims because he
failed to exhaust his administrative remedies and; 3) they are
entitled to qualified immunity. As none of the grounds merit the
grant of summary judgment, the motion will be denied.
A. Relevant Procedural History
The parties have consented to have this case adjudicated by a
magistrate judge. Doc. 32. This case was the subject of previous
proceedings, including two reports and recommendations. Doc. Nos.
15 & 24. Familiarity with those reports is presumed. Plaintiff brings this action against two corrections officers,
John Zuzo and Charles Rosco who were guards at SCI-Greensburg
where Plaintiff was incarcerated. Plaintiff alleges that on
August 1, 2000, during a disciplinary hearing, the two Defendants
assaulted him when he refused to sit down because of a bad back.
Doc. 9 at ¶¶ 10-21. As a result of the assault, he was weakened
with pain and when released from the grasp of the Defendants, he
fell into his cell, hitting his head, which caused a wound that
required 25 stitches to close. See id., ¶ 21.
Previously, Defendants filed a motion for summary judgment
(Doc. 19) based upon Plaintiff's alleged failure to exhaust
administrative remedies and a brief in support. Doc. 20.
Plaintiff filed a response, Doc. 22, and a brief in support, Doc.
23, in which he claimed that at the time he filed this suit, he
was no longer a prisoner and, therefore, the exhaustion
requirement of the PLRA no longer applied to him. The Court
agreed with Plaintiff that the PLRA exhaustion requirement did
not apply to him insofar as at the time of filing the instant
civil action, Plaintiff was no longer a prisoner. Doc. Nos. 24 &
Until February 2004, Plaintiff had been proceeding pro se, but
in February, Attorney Angus Love, of the Pennsylvania
Institutional Law Project, entered his appearance on behalf of
Plaintiff. Doc. 25. After conducting discovery, Defendants, represented by the
Pennsylvania Attorney General's office, filed a motion for
summary judgment, Doc. 46, and a brief in support. Doc. 47.
Plaintiff, through counsel, filed a brief in opposition to the
Defendants' motion for summary judgment. Doc. 53.
B. Applicable Legal Principles
Summary judgment may not be entered unless, drawing all
inferences in favor of the non-moving party, "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.Proc. 56(c). Summary
judgment may be granted against a party who fails to adduce
evidence of facts sufficient to establish the existence of any
element essential to that party's case, and for which that party
will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). The moving party bears the initial
burden of identifying evidence that demonstrates the absence of a
genuine issue of material fact. Walters ex rel. Walters v.
General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002).
Only after that burden has been met, must the non-moving party
set forth "specific facts showing that there is a genuine issue
for trial . . ." or the factual record will be taken as
presented by the moving party and judgment will be entered as a
matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The non-moving party may not rest upon mere
denials of the facts identified by the movant, nor upon the vague
and amorphous argument that the record somewhere contains facts
sufficient to support its claims. Childers v. Joseph,
842 F.2d 689 (3d Cir. 1987). Instead, the non-moving party must point to
where in the summary judgment record there is evidence that
creates a genuine issue of material fact concerning the elements
for which he bears the burden. See Celotex Corp. v. Catrett.
For purposes of summary judgment, an issue is genuine only if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986). "Where the record taken as a whole could not
lead a reasonable trier of fact to find for the non-moving party,
there is no genuine issue for trial." Matsushita,
475 U.S. at 587. The inquiry involves determining whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as
a matter of law. Brown v. Grabowski, 922 F.2d 1097, 1111 (3d
Cir. 1990), cert. denied, 501 U.S. 1218 (1991) (quoting
Anderson, 477 U.S. at 251-52).
1. Eighth Amendment Excessive force The landmark Supreme Court case in the Eighth Amendment
excessive force area is Hudson v. McMillian, 503 U.S. 1 (1992).
The Court held that "whenever prison officials stand accused of
using excessive physical force in violation of the Cruel and
Unusual Punishments Clause, the core judicial inquiry is that set
out in Whitley: whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Id. at 6-7. In doing so, the Court
jettisoned the traditional objective prong inquiry for
establishing an Eighth Amendment claim. See id. at 22-23
(Thomas, J., dissenting) ("In the context of claims alleging the
excessive use of physical force, the Court then asserts, the
serious deprivation requirement is satisfied by no serious
deprivation at all. `When prison officials maliciously and
sadistically use force to cause harm, contemporary standards of
decency always are violated.' Ibid. Ascertaining prison
officials' state of mind, in other words, is the only relevant
inquiry in deciding whether such cases involve cruel and unusual
punishment. . . . The sum and substance of an Eighth Amendment
violation, the Court asserts, is `the unnecessary and wanton
infliction of pain.' This formulation has the advantage, from the
Court's perspective, of eliminating the objective component.")
(some citations omitted and quotation marks modified); Brooks v.
Kyler, 204 F.3d 102, 108 (3d Cir. 2000) ("In Hudson, the Court
distinguished between prisoner conditions-of-confinement and medical-deprivation claims, on the one hand, and wanton use
of unnecessary force claims on the other. Although the former
kind of claim cannot survive without evidence that a deprivation
was `harmful enough' . . ., the latter kind of claim has no such
requirement"). Accordingly, to establish an Eighth Amendment
excessive force claim, the plaintiff must only adduce evidence
that the force used was applied not in a good-faith effort to
maintain or restore discipline, but maliciously and sadistically
to cause harm.*fn1 Although it is true that de minimis use of force, which is
itself not repugnant to human decency, does not state an Eighth
Amendment claim of excessive force, it does not necessarily
follow that infliction of de minimis injury fails to state an
Eighth Amendment excessive force claim. See, e.g., Hudson,
503 U.S. at 9-10 ("The Eighth Amendment's prohibition of `cruel
and unusual' punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that
the use of force is not of a sort `repugnant to the conscience of
mankind.'"); Id. at 9 ("When prison officials maliciously and
sadistically use force to cause harm, contemporary standards of
decency always are violated. See Whitley, supra,
475 U.S., at 327, 106 S.Ct., at 1088. This is true whether or not significant
injury is evident."); Smith v. Mensinger, 293 F.3d 641, 649 (3d
Cir. 2002) ("de minimis injuries do not necessarily establish
de minimis force.").
The summary judgment record reveals that at his deposition,
Plaintiff testified that while handcuffed behind his back, two
guards assaulted him for his refusal to obey an order to sit
down. Specifically, Plaintiff testified that Defendant Zuzo,
stuck his knee in Plaintiff's lower back and then Defendant Rosco
came over and punched Plaintiff in his ribs. Doc. 46, Attachment
F at 12. Apparently, Plaintiff fell to the floor because he also
testified that the two defendants started kicking him and punching him while on the floor. Id. Defendants, on the other
hand, deny that they engaged in any of the actions about which
Plaintiff had testified. See, e.g., Doc. 46, Att. H at ¶ 7
(Zuzo's affidavit) ("I did not at any time punch, kick, nor place
a knee in the back of inmate Muse. I did not use excessive
force."); id., Att. I at ¶ 7 (Rosco's affidavit) ("I did not at
any time punch, kick, nor place a knee in the back of inmate
Muse. I did not use excessive force."). The Court finds this
summary judgment record creates a genuine issue of material fact
with respect to whether the Defendants engaged in the conduct
Plaintiff alleged and whether this conduct amounted to an
"unnecessary and wanton infliction of pain." Hudson,
503 U.S. at 10.
Defendants appear to argue that, even assuming the accuracy of
Plaintiff's description of the events, their use of force was not
excessive given that Plaintiff had created a prison disturbance
by his refusal to obey and the force utilized was necessary to
restore prison discipline. Doc. 47 at 4.
To the extent that the Defendants rest on the claim that this
"prison disturbance" justified their use of force, the court may
even accept that the use of some force was required.
Nevertheless, the amount of force, recounted in Plaintiff's
deposition, presents a jury question of whether excessive force
was utilized when one considers that throughout the alleged beating of the Plaintiff he had his hands in handcuffs behind his
back. See Smith v. Mensinger, 293 F.3d at 649 ("Punching and
kicking someone who is handcuffed behind his back and under the
control of at least six prison guards as he is being thrown into
cabinets and walls is `repugnant to the conscience of mankind,'
absent the extraordinary circumstances necessary to justify that
kind of force."). In light of the Plaintiff's deposition
testimony and the uncontroverted fact that Plaintiff was
handcuffed throughout the incident, a jury question is presented
on this record as to whether the force ...