The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge
(Magistrate Judge Smyser)
I. Background and Procedural History
On August 8, 2005, the plaintiff, a prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a complaint. On December 19, 2005, the plaintiff filed an amended complaint. In his amended complaint, the plaintiff named as defendants twenty-four corrections officials and employees. He also named as defendants an additional twenty John and Jane Does.
The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c), and the case was reassigned to the undersigned on January 19, 2006.
By a Memorandum and Order dated March 2, 2006, we granted in part and denied in part the defendants' motion to dismiss the amended complaint. The plaintiff's due process claims against defendants Hearing Examiners Jones and McKeown were dismissed, the claims against defendants Cywinski, Mosier and Bleich were dismissed, and the claims against the defendants in their official capacities for monetary damages were dismissed. In all other respects the defendants' motion to dismiss the amended complaint was denied.
On May 30, 2006, after being granted leave of court, the plaintiff filed a second amended complaint. In the second amended complaint, the plaintiff named only six defendants. The defendants named in the second amended complaint were: Lisa Bolka, Corrections Officer Jeffrey Cywinski, Corrections Officer Fritz Bleich, Correction Officer Moiser, Hearing Examiner Donald Jones and Hearing Examiner Charles McKeown.
By an Order dated November 13, 2006, we addressed the defendants' motion to dismiss the second amended complaint. The claims against the defendants in their official capacities for monetary damages were dismissed. Also the case was dismissed as to all defendants who were named in the amended complaint but not named in the second amended complaint, i.e. the case was dismissed as to all defendants except defendants Bolka, Cywinski, Bleich, Moiser, Jones and McKeown.
On November 20, 2006, the plaintiff filed a motion for leave to file a third amended complaint to cure the defects in the first and second amended complaints. The plaintiff asserted that he misunderstood the Order granting him leave to file a second amended complaint. He stated that he did not understand that he had to include in his second amended complaint claims that were not dismissed in connection with the defendants' motion to dismiss the amended complaint. He stated that he included in his second amended complaint only the claims against defendant Bolka (originally identified as a Jane Doe) and the defendants who were dismissed as a result of the defendants' motion to dismiss the amended complaint. The plaintiff stated that if he is allowed to file a third amended complaint he will cure all defects in his amended and second amended complaints.
The remaining defendants at the time - defendants Bolka, Cywinski, Bleich, Moiser, Jones and McKeown - did not file a brief in opposition to the plaintiff's motion for leave to file a third amended complaint. However, on February 15, 2007, the defendants filed a motion for summary judgment, a statement of material facts, a brief and documents in support of their motion. After being granted leave of court, on February 22, 2007, the defendants filed additional documents in support of their motion.
In an Order dated March 20, 2007, we recognized that granting the plaintiff leave to file a third amended complaint will delay this case which has already been pending for a considerable period of time. However, since the plaintiff is proceeding pro se, since the plaintiff explained that his failure to comply with the requirement that his second amended complaint be complete in all respects was based on his misunderstanding of that requirement, since the plaintiff indicated that he will comply with the requirement that any third amended complaint be complete in all respects and since the defendants did not oppose the motion, we granted the plaintiff's motion for leave to file a third amended complaint.
On March 19, 2007, the plaintiff filed a third amended complaint.
The third amended complaint names twenty four individuals as defendants: 1) Kennith Jones, a corrections officer at SCI-Dallas; 2) Joseph M. Bendick, a corrections officer at SCI-Dallas; 3) Michael J. Zablotney, a corrections officer at SCI-Dallas; 4) John Galabinski, a corrections officer at SCI-Dallas; 5) John Gottshall, a corrections officer at SCI-Dallas; 6) John Konycki; a sergeant at SCI-Dallas; 7) Bruce Mosier, a sergeant at SCI-Dallas; 8) Daniel J. Kowalski, a lieutenant at SCI-Dallas; 9) Frederick Bleich, a lieutenant at SCI-Dallas; 10) Jeffrey Cywinski, a lieutenant at SCI-Dallas; 11) Stanly Pohlidal, a captain at SCI-Dallas; 12) Peter Cwalina, a captain at SCI-Dallas; 13) Donald Jones, a hearing examiner at SCI-Dallas; 14) Charles McKeown, a hearing examiner at SCI-Dallas; 15) Dianna J. Dean, a corrections counselor at SCI-Dallas; 16) Lisa Bolka, a secretary of E-block at SCI-Dallas; 17) Donald Jones, a major of the guards at SCI-Dallas; 18) James McGrady, the deputy superintendent for facility management at SCI-Dallas; 19) Edgar Kneiss, the deputy superintendent for centralized services at SCI-Dallas; 20) Norman Demming, the corrections classification program manager at SCI-Dallas; 21) Kenneth Burnett, a corrections counselor and grievance coordinator at SCI-Dallas; 22) James T. Wynder, the Superintendent at SCI-Dallas; 23) Sharon M. Burks, the Chief Grievance Officer for the Pennsylvania Department of Corrections (DOC); and 24) Jeffrey A. Beard, the Secretary of the DOC.*fn1
The plaintiff alleges the following facts in his third amended complaint. On June 28, 2004, the plaintiff, while locked in his cell, witnessed an altercation between staff and another inmate. Third Amended Complaint at ¶20. The plaintiff unsuccessfully attempted to talk the other inmate into avoiding the altercation. Id.
After the incident the plaintiff observed defendants Bolka and Dean on the block. Id. at ¶21. After the incident and after the plaintiff spoke with defendant Dean at his cell, officer Kubiak and defendants Bendick and Kennith Jones came to the plaintiff's cell. Id. at ¶23. Defendant Jones stated to the plaintiff: "Hey Dunbar, you didn't like what happened to your hommie you Faggot! I got something for you, you like to run your mouth, I got something for you." Id. The defendants then left the plaintiff's cell but defendant Jones later returned and said: "Fuck that you little NIGGER FAGGOT! I'm going to get you, you like to run your mouth, pack your shit." Id. at ¶24. At the time, defendant Bolka was standing directly in front of the plaintiff's cell and witnessed what was being said by defendant Jones. Id.
After defendant Jones left, the plaintiff called out to defendant Zablotney and requested to speak to defendant Kowalski because the officers had just threatened him. Id. at ¶25. Defendant Zablotney told the plaintiff to stay out of it (meaning the incident with the other inmate). Id. Again, defendant Bolka witnessed this exchange. Id.
Defendants Kennith Jones and Bendick along with officer Kubiak ran back onto the block, handcuffed the plaintiff, removed the plaintiff from his cell and led him into the stairwell. Id. at ¶26. This occurred in front of defendants Bolka, Zablotney, Kowalski and other inmates. Id. In the stairwell, defendant Jones repeatedly punched the plaintiff in the face and called him a "faggot" and "nigger." Id. at ¶27. Officer Kubiak slammed the plaintiff's head into the wall, helped knock the plaintiff to the ground, and then repeatedly banged the plaintiff's head into the ground while calling him racial names and threatening to kill him. Id. Defendant Bendick repeatedly kicked the plaintiff in the back and stomped on him while also calling him racial names. Id.
Defendants Dean, Bolka, Kowalski and Zablotney failed to intervene or stop the attack on him by the other officers.
Id. at ¶35. These defendants had a reasonable opportunity to intervene and simply refused to do anything to help the plaintiff. Id.
After the assault, the plaintiff was escorted to the control center by defendant Kowalski. Id. at ¶36. The plaintiff attempted to tell defendant Major Donald Jones that he was just assaulted. Id. Defendant Jones stated that the plaintiff was not to bother coming to the program review committee. Id. The plaintiff was then taken to the medical department where he was examined and photographs of his injuries were taken. Id. at ¶37. From there the plaintiff was taken to the restricted housing unit (RHU) where he later received two misconduct reports based on the incident. Id. at ¶38. The misconduct reports were fabricated to cover up the assault on the plaintiff. Id.
At the disciplinary hearing on the two misconducts, defendant Hearing Examiner Jones found the plaintiff guilty of the fabricated misconducts. Id. at ¶51. The plaintiff indicated that he was in his cell at the time alleged and he requested to call witnesses who would have testified that he was in his cell and that he did not assault the officers or refuse any orders. Id. Defendant Jones stated to the plaintiff: "If you would have kept your mouth shut Mr. Dunbar, you would never have been in this predicament." Id. Defendant Hearing Examiner Jones did not investigate the plaintiff's allegations and found him guilty based solely on defendant Bendick's and defendant Kennith Jones' version of what had happened. Id. The plaintiff alleges that defendant Hearing Examiner Jones conspired to violate his rights. Id.
The plaintiff wrote to and filed inmate requests with defendants Cwalina, Wynder, Kneiss, Demming, McGrady, Pohlidal, Major Jones, Kowalski and Beard about the assault as well as appealing the ...