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Savage v. Judge

July 8, 2009

THEODORE B. SAVAGE, ET AL. PLAINTIFFS,
v.
CHUCKY JUDGE, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Jones, J.

MEMORANDUM

I. Introduction

The above-captioned matter involves Inmate Plaintiffs Theodore B. Savage and Edward K. Abraham's allegations of civil rights violations by various prison officials. Namely, Plaintiffs alleged that they were retaliated against by said officials, for filing two prior lawsuits against these and other prison personnel. Defendants have filed a Motion for Summary Judgment and for the reasons which follow, said Motion will be granted in part and denied in part.

Plaintiffs initially filed their Complaint on June 28, 2005.*fn1 (Doc. No. 6) Defendants filed a Motion to Dismiss in response thereto. (Doc. No. 13) However, after seeking several extensions of time within which to file a response,*fn2 Plaintiffs filed a Motion to Stay Proceedings, which was granted by the Honorable Mary A. McLaughlin on February 21, 2006. (Doc. No. 21) On June 28, 2006, Plaintiffs filed their Response to Defendants' Motion to Dismiss, along with an Amended Complaint. (Doc. Nos. 29, 30) Defendants filed a Reply to Plaintiffs' Response and on July 5, 2006, Judge McLaughlin denied Defendants' Motion as moot. (Doc. No. 34) On August 4, 2006, Defendants filed a Motion to Dismiss Plaintiffs' Amended Complaint. (Doc. No. 38) On August 29, 2006, Plaintiff James S. Pavlichko voluntarily dismissed all of his claims against Defendants. (Doc. No. 42) After several more Responses, Replies and newly-filed Motions to Dismiss, said Motions were granted with respect to: (1) Plaintiff Savage's retaliatory restricted housing unit placements and retaliatory prison transfer claims; (2) the Conspiracy claim against Defendants Judge, Matello, Canino, Murray and Trojan; and, (3) all claims against Defendants Moyer, Owen and Williamson. (Doc. No. 57)

Defendants filed their Answers to Plaintiffs' Amended Complaint and Plaintiffs ultimately dismissed Defendant Kovalchik from the case. (Doc. Nos. 61, 64, 70) Discovery commenced and on November 19, 2007, Defendants Kopinski, Thomas, Johnson, Radle, Smith, DiGuglielmo and Dohman filed a Motion for Summary Judgment. (Doc. No. 84) That same day, Plaintiffs motioned to amend/correct their Amended Complaint. (Doc. No. 86). Plaintiffs also sought appointment of counsel or alternatively, a stay of Defendants' Motion for Summary Judgment pending further discovery. On November 27, 2007, Judge McLaughlin ordered further discovery and directed that in view of the extensive wait list for appointment of counsel, Plaintiffs were to advise her within two weeks as to whether or not they wished to proceed with appointment and have the matter placed in suspense. (Doc. No. 89) Plaintiffs responded affirmatively and on December 7, 2007, the Clerk was directed to obtain counsel for Plaintiffs and their case was placed in suspense.

On May 16, 2008, Attorney Lawrence E. Woods was appointed to represent Plaintiffs and on May 27, 2008, the case was removed from suspense. (Doc. Nos. 94, 95) Counsel subsequently moved for an extension of time to file a Response to Defendants' Motion for Summary Judgment, ultimately filing said Response on October 15, 2008. (Doc. No. 100) On November 13, 2008, the within matter was referred to this Court for further proceedings. (Doc. No. 103). Over the course of the next several months, further supplements and replies were filed by both parties. (Doc. Nos. 104, 105, 106). The matter is now ripe for review.

II. Undisputed Facts*fn3

In January of 2006, Plaintiffs Theodore Savage (hereinafter "Savage") and Edward Abraham (hereinafter "Abraham") shared cell B-2011 on Graterford's L-Unit, a Restricted Housing Unit ("RHU"). (Doc. Nos. 85 & 106, ¶ 1). On January 6, 2006, Correction Officer Weaver wrote Misconduct Report #757280, which stated that he had removed a playing card that was obstructing the wicket locking apparatus on Plaintiffs' cell and Plaintiff Abraham became agitated. Later that day when Weaver was collecting razors and mirrors from the inmates, he observed the same obstruction. When Weaver went to remove the card, he felt a substance on his left hand, at which time Abraham reportedly said "Yeah, it's cum Weaver, get the fuck out of here asshole. You can lick it and taste it." (Doc. Nos. 85 & 106, ¶ 2) The DOC Hearing Examiner ultimately found Abraham guilty of the misconduct charges set forth in Report #757280 and sanctioned him to 90 days in disciplinary custody. (Doc. Nos. 85 & 106, ¶ 4)

That same day, Weaver informed Defendants Smith and Kopinski (L-Unit Lieutenant and Sergeant, respectively) of the incident and said Defendants decided to have Abraham moved to a more secure cell within the Unit. (Radle Decl. at 11; Kopinski Decl. ¶ 7) Accordingly, Defendant Kopinski, along with two correctional officers, Defendants Thomas and Johnson, went to Abraham's cell to commence the move to Cell C-111, which had a secure pass way wicket system designed to prevent an inmate from obstructing the locking apparatus and making it virtually impossible for an inmate to assault staff through the aperture, if used properly. (Doc. Nos. 85 & 106, ¶ 8; Kopinski Decl. ¶ 9 ) On this day, Abraham sustained an injury to his head. (Doc. Nos. 85 & 106, ¶ 24)

On January 6, 2006 at approximately 6:25 p.m., Abraham was given a copy of Misconduct Report No. A740561. (Doc. Nos. 85 & 106, ¶ 31) In Misconduct Report No. A740561, Defendant Thomas wrote that while escorting Abraham that day, Abraham "became combative and non-compliant, he called me a bald headed nigger, kicked me on my right leg and tried to spit in my face. At that time he was taken to the ground and was immediately carried to his cell with the least amount of force necessary." (Doc. Nos. 85 & 106, ¶ 32)*fn4 The DOC Hearing Examiner found that Abraham was guilty of the misconduct and sanctioned him to 90 days disciplinary custody. (Doc. Nos. 85 & 106, ¶ 33) Savage subsequently told Defendant Smith that he wanted to move to C Wing with Abraham. (Doc. Nos. 85 & 106, ¶ 38)*fn5

On January 18, 2006, Abraham was moved from L-Unit to J-Unit by the Program Review Committee. (Doc. Nos. 85 & 106, ¶ 47)*fn6 By letter dated January 18, 2006, Savage told Defendant DiGuglielmo (hereinafter "DiGuglielmo") that he and Abraham had been physically abused by L-Unit staff, and requested to be moved to J-Unit to be with Abraham to conduct their joint litigation and to prevent retaliatory assault by L-Unit staff. (Doc. Nos. 85 & 106, ¶ 48)

On January 20, 2006, DiGuglielmo, Graterford's Superintendent, received Savage's allegation of abuse by L-Unit staff. (Doc. Nos. 85 & 106, ¶ 49) DiGuglielmo referred Savage's allegation of abuse to Michael Lorenzo, Graterford's Deputy Superintendent for Internal Security, who in turn assigned the matter to Defendant Radle, a Security Lieutenant, for investigation. (Doc. Nos. 85 & 106, ¶ 50) After Savage made his allegation of abuse, he too was transferred to J-Unit. (Doc. Nos. 85 & 106, ¶ 52) Other than the fact that both L-Unit and J-Unit are Restricted Housing Units, there is no other real difference between them. (Doc. Nos. 85 & 106, ¶ 53) DiGuglielmo gave Savage and Abraham permission to attend the law library together and on each day from February 9 to February 14, Savage and Abraham did attend the law library together.*fn7 (Doc. Nos. 85 & 106, ¶¶ 56, 60)

By memorandum dated February 13, 2005,*fn8 Radle detailed Plaintiffs' allegations of abuse and the steps he had taken in his investigation, including but not limited to his interviews with Savage, Abraham, Smith, Kopinski, Johnson, and Thomas. (Doc. Nos. 85 & 106, ¶ 61) Radle's Report stated as follows:

(a) On January 6, 2006, Abraham accidentally put hair conditioner on the wicket of the cell door. CO Weaver touched the hair conditioner as he was collecting razors and mirrors from the inmates on the Unit and Abraham stated in a playful manner that the substance was a bodily fluid;

(b) Approximately half and hour later, Kopinski, Johnson and Thomas arrived at cell LB 2011 and ordered Abraham to cuff up;

( c) Abraham asked where he was going and what was going on, and was again ordered to come to the door to cuff up;

(d) Kopinski yelled for the cell door to be opened and the officers "bum rushed" Abraham;

(e) Johnson pushed Abraham in the body;

(f) Thomas grabbed Abraham by the back of his hair, causing Abraham to hit his head off [sic] the wall and bed frame;

(g) Savage saw blood on Abraham's right eye;

(h) The officers carried Abraham across the top of B wing and down the stairs;

(i) Later, an officer whom Savage refused to identify, escorted Savage to Abraham's new cell, and Savage observed a cut over Abraham's eye;

(j) Savage instructed Abraham not to seek medical attention;

(k) On January 17, 2006, Johnson approached Savage's cell and made a threatening statement, which Savage could not recall;

(l) Johnson ordered the control room to open Savage's cell, then entered Savage's cell and struck him in the back of the head with a closed fist, then punched him in the kidney area;

(m) Johnson told Savage that he would have him killed and he would never see his family again;

(n) Savage then stated that his intention was to get a pen to "poke" Johnson in the face, adding "that's what I would have done if he had entered the cell"; and,

(o) Savage admitted that he did not seek medical attention, stating that he did not want medical attention until after he had written to the Superintendent.

(Doc. Nos. 85 & 106, ¶ 62)*fn9

On January 26, 2006, Radle conducted a tape-recorded interview of Abraham, a summary of which follows:*fn10

(a) CO Weaver had removed a playing card form the wicket, and the card had a substance on it which Weaver believed was a male bodily fluid;

(b) Abraham denied telling Weaver "Yeah Weaver, it's cum";

( c) Later that day, Kopinski, Johnson and Thomas arrived at his cell and ordered him to be handcuffed;

(d) Abraham responded by asking, "Where am I going?";

(e) Abraham was again directed to submit to ...


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