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Paluch v. Dawson

June 16, 2009

JAMES A. PALUCH, JR., PLAINTIFF
v.
J. DAWSON, ET AL.,
DEFENDANTS



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

(Judge Rambo)

MEMORANDUM

Plaintiff James A. Paluch, Jr. ("Paluch"), an inmate currently incarcerated at the State Correctional Institution at Smithfield in Huntingdon, Pennsylvania, initiated this action pro se by filing a civil rights complaint pursuant to the provisions of 42 U.S.C. § 1983. (Doc. 1.) Since filing the complaint, counsel has been appointed to represent Paluch.*fn1 In the complaint, Paluch names as defendants four (4) corrections officers from the State Correctional Institution at Huntingdon, Pennsylvania ("SCI- Huntingdon"),*fn2 his former place of confinement, as well as Roger Smith, his former cellmate at SCI-Huntingdon.*fn3 Paluch contends that Defendants failed to protect him from Smith, despite knowing of Smith's history of aggressive and assaultive behavior, and despite receiving multiple warnings and requests for a cell move or separation. Paluch claims that Defendants' deliberate indifference led to Smith assaulting him in their cell on September 9, 2004, thereby causing Paluch physical and psychological injuries. He sets forth both federal and state law claims related to the incident. As relief, he seeks compensatory and punitive damages.

Before the court is a motion for summary judgment, filed on behalf of Defendants. (Doc. 225.) For the reasons set forth below, the motion for summary judgment will be denied.

I. Background

In addressing the instant motion, the court first will set forth the relevant facts and procedural history. In setting forth the relevant facts, the court will note any factual disputes between the parties by presenting both parties' contentions.

A. Facts

Paluch was incarcerated at SCI-Huntingdon from February 17, 2004 until his transfer on February 1, 2005. (Doc. 227 ¶ 3.) Prior to arriving at SCI-Huntingdon, Paluch wrote a book entitled "A Life for a Life: Life Imprisonment - America's Other Death Penalty," about prison conditions in the Pennsylvania Department of Corrections, his experiences as a lifer, and the efforts to achieve parole eligibility for lifers. (Doc. 281-1, Paluch Dep., May 22, 2007, 22.) Once at SCI-Huntingdon, Defendant Schmidt saw the book during a cell shakedown prior to September 9, 2004, and asked Paluch if he had made any profits off the sale of the book.*fn4 (Id. at 24-25.) Defendant Dawson was also aware of the book and made several comments to Paluch about it "as a harassing sort of thing" between June and December 2004.

(Id. at 26.) Defendant Mosley was also aware that Paluch had written this book. (Doc. 281-7, Mosley Dep., Nov. 20, 2007, 21.)

On August 17, 2004, Defendant Mosley assigned Paluch and Roger Smith to cell GD-1004 in the Restricted Housing Unit ("RHU"). (Doc. 227 ¶ 4.) Initially, Paluch and Smith communicated with each other, but that changed when a fellow inmate began taunting Smith with information that Paluch was Jewish.*fn5 (Paluch Dep. 51-52.) Defendants also believed that Paluch is Jewish based on his religious practices.*fn6 (Id. at 38-39.) In addition, Paluch heard Defendant Dawson tell Smith that "your celly [Paluch] is not white." (Id. at 40.) Smith expressed to Paluch his dislike for "nonwhites, meaning those that are black, Jewish or any of that affiliation, any type of minority." (Id. at 54.) Further, staff members and other inmates informed Paluch of Smith's history of assaultive behavior. (Id. at 95.)

On August 20, 2004, Paluch and Smith each received a misconduct report for placing a live mouse on a meal tray. (Doc. 282-2.) As a result, both inmates were moved to cell GD-1009 in the RHU on August 21, 2004. (Doc. 227 ¶ 4.) Paluch did not object when they were moved together to cell GD-1009 because "[t]here was no real need to at that time." (Paluch Dep. 93.) However, Smith informed Paluch that he wanted a different cellmate. (Id. at 70.)

Separate hearings before a hearing examiner on both misconducts were scheduled for August 24, 2004. (Doc. 282-2.) Prior to the hearings, Paluch and Smith discussed the August 20, 2004 incident in their cell. (Paluch Dep. 62-65.) No one else was present at the time. (Id. at 70.) Smith threatened to physically harm Paluch if he told the hearing examiner that Smith had placed the mouse on the meal tray. (Id. at 64.) Smith then physically confronted Paluch "in an intimidating way." (Id.) However, Smith did not raise his hands or fists, rather just came within three feet of Paluch.*fn7 (Id. at 65.)

Later on August 24, 2004, the hearing examiner found both inmates guilty and sanctioned each with sixty (60) days of disciplinary custody in the RHU. (Id.) When Paluch returned to the cell and informed Smith that he had told the hearing examiner that it was Smith who had placed the mouse on the meal tray, Smith "[w]asn't too pleased with it, at the time." (Paluch Dep. 67.) As a result, Paluch called Defendant Schmidt to the cell to tell him that "one of us needed to leave this cell, that there is a need for separation, or it is possible either one of us is going to get injured - -something along them lines."*fn8 (Id. at 83.) Paluch recalled Defendant Schmidt telling him that he had to submit a request slip for a separation from Smith to Defendant Kendrick, an RHU sergeant. (Id.) Paluch completed a request slip, addressed to Defendant Kendrick and dated August 25, 2004, which stated, in part, "my present cellmate Roger Smith . . . and I are not getting along. He is a 'white supremacist,' and I am not. We are not compatible and I'm asking you to please separate us as soon as possible." (Doc. 282-3 at 2.) Defendant Schmidt took the request slip, but later informed Paluch that Defendant Kendrick denied his request for a separation because "unless like you do something to him or he does something to you, that is the only way that he will move you." (Paluch Dep. 83.) According to Paluch, Schmidt returned to their cell one more time before September 9, 2004 and asked, "I see you guys are still celled up, are you getting along with each other." (Id.) Smith replied, "yeah, right," while Paluch recalled not responding at all. (Id. at 83-84.)

In his deposition, Defendant Schmidt provided a different account of the August 24th exchange. Defendant Schmidt recalled that while he was on a security round of the RHU that day, Paluch verbally asked for a separation from Smith because the two inmates were "incompatible."*fn9 (Doc. 281-4, Schmidt Dep., Nov. 20, 2007, 9.) According to Schmidt, Paluch gave no specific or concrete reason for a separation other than incompatibility, nor did he explain what he meant by incompatibility. (Id. at 18.) Defendant Schmidt did not ask Paluch to elaborate on his request. (Id. at 19.) He directed Paluch to put his request in writing to Defendant Kendrick, but claimed that he never received that written request for delivery to Kendrick.*fn10 (Id. at 20.) He did relay Paluch's verbal request to Defendant Kendrick, but had no knowledge of whether Kendrick took any action. (Id. at 10.) To that end, Schmidt stated that his role in the RHU was "to simply relay the information to the next person in the chain of command." (Id.) Moreover, Defendant Schmidt claimed to have no knowledge of who has the ultimate authority to make a decision to separate inmates. (Id. at 10-11.)

Defendant Kendrick testified at his deposition that he never received Paluch's August 25, 2004 inmate request slip asking for a separation from Smith. (Doc. 281-5, Kendrick Dep., Nov. 20, 2007, 8.) He did recall speaking to Defendant Schmidt about Paluch's verbal request for a separation, but did not understand what Paluch meant by "incompatible." (Id. at 8-9.) To him, "incompatible" means "they're not of like personalities. . . . Maybe he had other interests than he did." (Id. at 11-12.) When defense counsel asked him, "Did it ever cross your mind that the term might mean that Paluch and Smith were not getting along well together," Defendant Kendrick replied, "No, not really it didn't." (Id. at 12.) He also stated "we don't separate people because they're not compatible." (Id. at 9.) As a result, Defendant Kendrick did not follow up on Paluch's request, as relayed by Defendant Schmidt. (Id. at 11.) He did not question Paluch or Smith at their cell or conduct any investigation.*fn11 (Id.)

Paluch filed an inmate request on August 27, 2004, addressed to a Lieutenant Wilt,*fn12 an RHU supervisor. In that request, he stated, Lt. Wilt: Please help me out. I sent a request slip to you on Aug. 24 via C.O. A. Schmidt requesting to be separated from my cellmate Roger Smith. I also asked Sgt. Kendrick this same request. Smith is a white supremacist and you know that I am not. I am very concerned for my personal safety. If anything does happen to myself or Smith, prison officials will be responsible. We are really incompatible and I am asking you to please separate us. (Doc. 282-4 at 2-3.) An inmate in a nearby cell, Jamal Bennett, recalled hearing Paluch ask both Defendants Kendrick and Mosley for a separation from Smith based on his fear for his personal safety prior to September 9, 2004. (Doc. 281-6, Bennett Decl., Nov. 16, 2006, ¶ 5.) On one occasion, Paluch told Defendant Kendrick that he would be held accountable if anything happened to Paluch, and Kendrick replied, "Yeah right!" and walked away. (Id.)

Paluch filed another inmate request on August 31, 2004, addressed to Defendant Mosley. In that request, he stated,

Mosley, as you know, Roger Smith and I are not getting along. I'm not looking for any problems with RHU staff. Smith is a white supremacist and I am a Yahwist. We cannot co-exist peacefully. He wants to cell up with Charlie Campbell (FF-1812) on D2. Please give me another cellmate, preferably white. (Doc. 282-5 at 2.) When Defendant Schmidt was asked if this type of request would lead to a separation, he responded,

Based on what's written here in front of me and looking at it, we make no separations, if you will, based upon a person being a white supremacist or a Yahwist unless one was black and one was white, and then there would certainly exist a problem based upon race simply having a white supremacist and a black person together.

So, based on that merit alone, no, because this to me, looking at it, Smith is a white supremacist. I know Paluch to be a white or Caucasian, and according to his request he's a practicing Yahwist. To me I don't understand the degree of separation between a white supremacist and a Yahwist. I don't understand the beliefs of a Yahwist or the beliefs of a white supremacist. (Schmidt Dep. 29.) Further, Defendant Mosley initially testified at his deposition that he would have denied Paluch's August 31, 2004 request because he read it as one for a convenience move, which is impermissible in the RHU. (Mosley Dep. 8.) However, he agreed that a request for separation would be granted when "a Jewish person is celled with a white supremacist and the Jewish person requests another cellmate." (Id. at 11.)

Paluch sent another request slip, addressed to Defendant Mosley, on September 8, 2004, which stated, "Would you please consider moving me in the same cell with Jason Betz FB 4105 if he is on DC status. If not, could you please just move me out of this cell or separate myself from my current cellmate?" (Doc. 282-6 at 2.) Defendant Mosley responded on September 11, 2004 as follows: "You are a double-celled inmate, so you will not be left alone in a cell by yourself. There are no convenience moves done in the RHU." (Id.) Mosley did not look into the matter any further. (Mosley Dep. 7-8.)

An inmate in a nearby cell, John Boskie, heard Paluch talk to Defendants Schmidt, Mosley and Kendrick about problems with Smith approximately eight times. (Doc. 281-3, Boskie Dep., Nov. 8, 2007, 64-65.) According to inmate Boskie, Paluch asked to be separated from Smith on all occasions: "generally he's saying can you please move me or my cellie, we're not getting along, I don't want nothing to happen, can you move one of us before something do happen." (Id. at 65.) The ...


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