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Zimmerman v. Schaeffer

August 17, 2009

DUSTIN ZIMMERMAN, ET AL., PLAINTIFFS
v.
CRAIG SCHAEFFER, ET AL., DEFENDANTS.



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

MEMORANDUM

Plaintiffs, a number of current and former prisoners at the Mifflin County Correctional Facility ("MCCF") in Lewistown, Pennsylvania bring suit pursuant to 42 U.S.C. § 1983 claiming that they were abused by MCCF officials during their incarceration. Defendants are Craig Schaeffer, Ronald Bilger, Chuck Chambers, Kathy Weaver, Barry Kearns, and Bernie Zook-all of whom are corrections officers and prison officials at MCCF-and Mifflin County, Pennsylvania. Before the court are Defendants' motions for summary judgment against Plaintiffs on all counts. (Docs. 81, 84, 87, 90.) Defendant Kearns also seeks summary judgment against Plaintiff Burns on his counterclaims for assault and battery. For the reasons that follow, the motions will be granted in part and denied in part.

I. Background

A. Facts

Viewed in the light most favorable to Plaintiffs, the facts are as follows.*fn1

1. MCCF

Mifflin County Correctional Facility ("MCCF") is a small county jail housing inmates sentenced to limited terms of incarceration. The facility is staffed by thirty-two corrections officers. Defendant Bernie Zook is the warden of the facility.

Defendant Mifflin County hired Zook to be Warden of MCCF in 2003. Zook had previously served as a corrections officer with the Pennsylvania Department of Corrections. He was terminated from that position for using excessive force against a fully restrained inmate, falsely alleging that the inmate was armed with a knife, and directing a subordinate to file a false report about the incident. (Plaintiff's Statement of Material Facts, Ex. 2.) At the time he was promoted to warden, Zook disclosed to Mifflin County the fact that he had been terminated for excessive force, but did not reveal that he had also made false allegations and directed a subordinate to submit a false report. (McCartney Dep. 50, 52--55.) The Mifflin County Commissioners made no further inquiry about the incident before hiring Zook, nor did they interview any of his prior employers. (McCartney Dep. 48--55.)

Once Zook was hired, the County Commissioners and the County Prison Board gave Zook wide latitude in running the prison. Zook was responsible for selecting and hiring correctional officers at the facility. (McCartney Dep. 22--24.) Zook ran the facility as he pleased, and he did not permit dissent or disagreement from his staff. For instance, CO Reik testified at his deposition that when staff disagreed with Zook, "he may say well, that's fine, but it's my way. It's my jail. That's the way it's going to be." (Reik Dep. 107:22--25.) Likewise, Chambers testified that he did not feel as though Zook would consider a dissenting opinion, noting that when he had disagreed with Zook in the past, Zook's response was "it's his jail and he'll run it the way he wants to." (Chambers Dep. 100:21--24.) Kinslow testified that Zook had strong opinions about how the facility should be run, and "[u]sually if your opinion is different than his, he's usually not very happy about it." (Kinslow Dep. 105:11--13.)

The Mifflin County Commissioners approved the use of force guidelines promulgated by Zook. (Pls. Statement of Material Facts, Ex. 53.) The use of force guidelines define excessive force as "[f]orce than an employee uses against an inmate in which the use of force is justified but goes beyond the force necessary to control the situation or which continues after the inmate complies or is restrained. (Pls. Statement of Material Facts, Ex. 53.) The guidelines prohibit excessive force:

Even in those situations where all reasonable alternatives to the use of force have been exhausted and the use of force is unavoidable and clearly justified. The amount of force used must not exceed that which is required to control the situation.

1. Striking an inmate after he/she has ceased to offer resistance is an excessive use of force.

2. Using a mechanical restraint, such as handcuffs and shackles, for an excessive period of time or in an unauthorized manner, such as hogtying, is an excessive use of force.

(Id.) With respect to mechanical restraints, the policy provides that such restraints may be used to prevent serious property damage or inmate self-harm, but not as a method of punishment. (Id.) Additionally, where such restraints are applied, they may be used "no longer than absolutely necessary under the circumstances" and the inmate must be under continuous observation and periodically examined by medical personnel. (Id.)

MCCF possesses a number of mechanical restraints. MCCF has a restraint chair, in which an inmate may be immobilized in a sitting position with his hands cuffed behind his back. The manufacturer's literature advises that "[i]n most circumstances, a prisoner should not be retained in the chair for over a four-hour period. If it becomes necessary to restrain the prisoner for a longer period of time, approval from the watch commander should be obtained with the appropriate medical staff review." (Pls. Statement of Material Facts, Ex. 47.) Additionally, the manufacturer advises that soft restraints rather than metal handcuffs should be used where the restraint is longer than one hour, and that a back support should be used where a prisoner is soft-cuffed for more than three hours. (Id.)

Warden Zook also created three four-point restraint systems of his own design. He directed the facility's maintenance man to drill holes in the four corners of two metal bed frames. (Kinslow Dep. 24, 28--29; Ramsey Dep. 39--43.) Inmates were restrained in this four point system with plastic flexicuffs attached to metal handcuffs and leg shackles. (Wiseman Decl. ¶ 6.) In his expert report for Plaintiffs, Dr. Mintzes, a former warden of a large Michigan prison, notes that the state of Michigan has never used restraint chairs, and that the existence of such restraints encourages their use. (Pls. Statement of Material Facts, Ex. 59 at 7.)

As will be discussed in greater detail below, restraint chairs were often employed by MCCF staff and Warden Zook for lengthy periods of time against inmates who caused minor property damage to their cell, and even after inmates were subdued. Since 2005, this 125 inmate facility has restrained inmates for more than nineteen hours at a time on more than 19 separate occasions. (Pls. Statement of Material Facts, Ex. 54.) On more than 26 occasions, inmates were restrained more than four hours but less than ten hours. (Pls. Statement of Material Facts, Ex. 55.)

The Commissioners expressly approved Zook's requests to use mechanical restraints on inmates for lengthy periods of time, including the restraint of Plaintiffs Searer and Herb. (McCartney Dep. 70--74.) On other occasions, the Commissioners learned of lengthy restraints of inmates after the fact, but did not oppose the practice or conduct any further inquiry. (McCartney Dep. 74.)

At the time of the events at issue in this litigation, MCCF had in place a prison grievance policy for inmates. (Defs. Statement of Material Facts for Sassaman, Ex. 15.) This policy requires inmates to file a grievance within fifteen days of a grievable event, including complaints of constitutional violations at the MCCF. (Id.) According to the policy, a grievance may be either oral or written. (Id.) The parties dispute whether Defendants made this grievance policy available to Plaintiffs. The grievance policy was not included in inmate handbooks prior to September 2007 (Pls. Statement of Material Fact, Ex. 43 (inmate handbook lacking section on grievance procedure).) Moreover, as Warden Zook acknowledged in his deposition, dissemination of the policy was haphazard:

Q: . . . [D]oes this version of the inmate handbook have a section on grievance procedure?

A: No. We didn't have it in as part of the inmate handbook before [September 2007]. We had a grievance procedure in effect, but we never put in the handbook. It was in our policies and procedures manual. It had been in there since about, I believe it was 2004 it was put in the policies and procedures manual. And it was posted, like, numerous times throughout in the cell blocks. But every time we would post it, it would eventually get taken down by the other inmates in the block. What they did with it, I don't know. We always had-we didn't have a formal written policy on inmate grievances before that, but we had a box on our request forms. There was a box they could check for inmate complaint or grievance and then they could just write it out on the form and it would be answered, you know, in writing.

Q: So the inmates didn't have access to the policies and procedures manual, did they?

A: No. A copy was posted in their cell block.

Q: At various times?

A: At various times.

Q: So sometimes it was available and sometimes it wasn't?

A: Yes.

Q: Did there come a time when you stopped posting it completely?

A: I would say not that we stopped, that we would post it, it would come down, and then we would put it back up. It wasn't that we just stopped posting it altogether. It wasn't up on the bulletin board on a continuous basis, but we would periodically re-post it until we put it actually in the handbook, so you know, the formalized procedure that was in the procedures manual. Now it's not necessary to post it because it's in the procedures manual.

(Zook Dep. 212:2--214:3.) Similarly, in denying a grievance by Plaintiff Sassaman as untimely filed, Zook acknowledged that the grievance policy was not regularly posted: "on several occasions, we have posted the policy on inmate complaints and grievances on the cell block bulletin board so all inmates in the block can read it. However, when we do, they have been removed from the board by inmates. So it is no longer posted." (Pls. Statement of Material Fact, Ex. 60.)

There is also evidence of record that the policy was not understood by the MCCF staff members who were responsible for enforcing it. For example, Schaeffer testified that he was unfamiliar with the grievance policy. (Schaeffer Dep. 54.) Although he testified that he had heard of inmates filing grievances, he did not realize that they could be either oral or written, or that a grievance could be made to any MCCF staff member, himself included. (Id.) Defendants point to statements in Plaintiffs' depositions in which they acknowledge knowing that the prison had a grievance procedure, and describing how to file a grievance. (See, e.g., Searer Dep. 43 (stating 2002 inmate handbook he received contained information about grievances);Herb Dep. 63--67 (same).) Nevertheless, based on Zook's description of the dissemination of the grievance procedure, a reasonable trier of fact could conclude that the policy was not available to MCCF inmates.

1. Dustin Zimmerman

On September 11, 2005, Plaintiff Dustin Zimmerman was extracted from his cell, placed in a restraint chair, electric shocked while fully restrained and compliant, and kept in restraints for a an extended period of time. The extraction was documented in a video recording, which has been submitted into evidence by the parties.*fn2 (Pls. Statement of Material Fact, Zimmerman Cell Extraction Video, Wiseman Decl., Ex. 1; Defs. Statement of Material Facts for Zimmerman, Ex. 18. ) Although the parties also offer numerous deposition transcripts and other documentary evidence describing the events in question, to the extent that this evidence conflicts with the video, the court will rely on the video. Scott v. Harris, 550 U.S. 372, 378--81 (2007) (holding that there is no genuine issue of material fact where testimony clearly contradicts video that captured the event in question). Except where noted, the following description of the events of September 11, 2005 is based on the videotape by prison officials submitted by the parties, viewed in the light most favorable to Plaintiffs.

On September 11, 2005, Zimmerman heard a rumor from someone shouting through his window that his brother had been seriously injured in a car wreck and that he needed to contact his family. (Zimmerman Dep. 107.) Zimmerman later learned that the rumor was false, though he did not realize it at the time. (Zimmerman Dep. 110.) Zimmerman asked MCCF officials for permission to contact his family, but they refused his requests to do so on the grounds that inmates in the restricted housing unit ("RHU") were not permitted to use the phones.

(Zimmerman Dep. 107--109.) Zimmerman and his cell mate Carlos Mendez became angry, and started kicking their cell door and shouting. (Zimmerman Dep. 111--116.) Zimmerman's goal was to convince the staff to let him contact his family. (Zimmerman Dep. 115.)

Corrections officers ordered Zimmerman to stop kicking the door, and when he persisted, they began videotaping his conduct. Defendants have submitted a portion of the videotape, in which Zimmerman and Mendez repeatedly kick their cell door, pace around the cell, and make rude gestures to the officers through the window. (Defs. Statement of Material Facts for Zimmerman, Ex. 18.) Once Zimmerman and Mendez realized that they were about to be extracted from the cell, they gathered sheets and mattresses to resist the officers.

Zimmerman's extraction was led by Weaver. Prior to the extraction, Weaver held briefing session and assigned Reik, Taylor, Kearns, Chambers, Bilger and Schaeffer to various tasks. Weaver assigned Taylor to handle the electronic body immobilizing device ("EBID"). During the briefing session, one officer commented "we don't care if they give up or not, we need to take them down hard." (Taylor Decl. ¶ 2.) The officers understood that regardless of whether Zimmerman and Mendez offered to cuff up and comply, they were going to proceed with the cell extraction. (Reik Dep. 29; Schaeffer Dep. 88.) This contradicted MCCF policy, which requires that force only be used when necessary. (Pls. Statement of Material Facts, Ex. 53.) It also went against Pennsylvania Department of Corrections policywhich requires that inmates be given a final chance to cuff up prior to a cell extraction. (Pls. Statement of Material Fact, Ex. 56)

The extraction team approached the cell suited up in masks and other protective gear. Zimmerman can be heard kicking the door and screaming immediately prior to entry. Weaver opened the door and three officers stormed into the cell, immediately followed by the others. Within seconds, three officers pinned Zimmerman to the floor face down, and sprayed Zimmerman with oleoresin capsicum spray ("OC spray") a number of times in his face at close range. Zimmerman repeatedly shouted "I'm done" "I'm cuffing up" "I'm down" and "I'm not fighting brother." Zimmerman did not visibly resist the officers. Zimmerman also stated "I can't breath" and at one point, he tried to turn over, but was ordered to stay down. Throughout this time, the corrections officers coughed repeatedly, and several left the cell briefly when they appeared to be overcome by OC spray.

Once handcuffed, Zimmerman was escorted from the cell and placed in the restraint chair in the booking area. He was handcuffed in the back and held down by three officers, one of whom held his head still while the other two began to cuff his legs to the chair with flex cuffs. Zimmerman repeatedly said "I'm not going anywhere." Zimmerman also complained repeatedly about pain in his face and eyes from the OC spray. Zimmerman was told he would be in the chair for twelve hours, and that he could not clear the OC spray out of his eyes for that time. At one point, Lt. Weaver walked over, smiling, and flicked water in Zimmerman's eyes. Her motivation for this action is unclear. Defendants claim that the purpose for this was to wash the OC spray out of Zimmerman's eyes. However, Plaintiff's offer testimony from Kearns that OC spray burns and becomes more painful when small drops of water are placed in one's eyes. (Kearns Dep. 66.) Weaver's motivation for flicking water in Zimmerman's eyes is genuinely in dispute, and there is sufficient evidence for a reasonable trier of fact to conclude that her purpose in doing so was to inflict pain on Zimmerman.

As Zimmerman was being restrained, Taylor walked over to the camera operator with the EBID in his hand, and said "[w]hy don't you go down there and check him out." After the camera turned away, Taylor proceeded to shock Zimmerman with the EBID, despite the fact that Zimmerman was fully restrained in the chair and compliant. Zimmerman immediately screamed that he had been shocked. According to Kinslow, who witnessed Taylor's actions, Taylor responded, "funny, I didn't feel anything." (Kinslow Dep. 70.) Zimmerman remained restrained in the chair for ten hours before he was released. (Pls. Statement of Material Fact, Ex. 10.) At one point, Zimmerman requested to use the bathroom. (Chambers Dep. 45.) Chambers refused to release Zimmerman from the chair, and gave him a diaper to use instead. (Id.) Chambers explained that he made this decision because Zimmerman was not compliant but rather yelling and carrying on. (Id.) However, this characterization is contradicted by the observation log, which indicates that Zimmerman was talking, but otherwise remained compliant the entire time he was restrained. (Pls. Statement of Material Fact, Ex. 10.) As a result of this incident, Zimmerman has developed post traumatic stress disorder ("PTSD"). (Pls. Statement of Material Fact, Ex. 57.) Although Taylor's use of the EBID was not mentioned during the debriefing session following Zimmerman's extraction from the cell, the officers who witnessed the shock brought it to the attention of Weaver shortly afterwards. (Kinslow Dep. 77.) The officers omitted mention of the incident in their reports describing the extraction filed the same day. (Pls. Statement of Material Fact, Ex. 7.) However, after learning about the incident, Weaver informed Zook and directed the officers to file separate reports documenting the incident. (Weaver Dep. 75; Pls. Statement of Material Facts, Ex. 8.)

Taylor was fired as a result of his conduct against Zimmerman, and criminal charges were brought against him. Taylor was originally named as a defendant to this action, but was later voluntarily dismissed by Plaintiffs. Though Taylor is no longer a Defendant, Plaintiffs maintain that the remaining Defendants are liable for Taylor's conduct on two theories: first, that a number of Defendants at the scene had the opportunity to prevent Taylor from shocking Zimmerman; and second, that Taylor's lengthy history of misconduct towards inmates at MCCF put Defendants on notice.

The parties dispute whether any other MCCF staff members had prior warning that Taylor was going to shock Zimmerman, or whether anyone could have prevented it. Plaintiffs point to deposition testimony by Kearns, who heard Taylor "test arc" the EBID before applying it to Zimmerman. (Kearns Dep. 93--96.) The only purpose of a test arc is to ensure that the EBID is fully charged and functional. Plaintiff also points out that Taylor had to walk several feet towards Zimmerman before shocking him, (Kinslow Dep. 73) and argue that Kearns or some other supervisor should have stopped him before Taylor administered the shock. However, Defendants respond with evidence that even though a number of officers saw Taylor approach Zimmerman with the EBID, they did not stop him because they did not realize that he intended to apply it to Zimmerman. (See, e.g., Chambers Dep. 34--38.)

Plaintiffs also point to Taylor's extensive record of misconduct towards inmates. Although Taylor was not disciplined by Weaver for misconduct towards female inmates. (Pls. Statement of Material Fact, Ex. 52.) The EBID incident with Zimmerman was the last in a long history of Taylor's mistreatment of inmates and lack of professionalism. From the very beginning, Taylor was known for his poor interpersonal skills and his habit of instigating and escalating conflict with inmates. (Pls. Statement of Material Facts, Ex. 52.) After the incident with Zimmerman, Kinslow remarked that she was surprised at Taylor's conduct, but not shocked. (Kinslow Dep. 68--70.)

For instance, at the conclusion of Taylor's probationary period as a new employee, an evaluator noted that Taylor needed improvement in his communications, commenting that "the content of his oral communication has at times been offensive to staff and inmates." (Pls. Statement of Material Facts, Ex. 52.) During this period, Taylor's interpersonal skills were found to be unsatisfactory. The evaluator commented that "[u]pon consulting with the other shift commanders, Acting Lts. and different department heads I am of the opinion that C.O. Taylor does not always take constructive criticism well and has on numerous occasions been apathetic to the sensitivities of both staff and inmates." (Id.) The overall evaluator comment notes that "C.O. Taylor has had several disagreements with both staff and inmates during his probationary period. He needs to be more conscientious of derogatory comments that he has made to both." (Id.) On February 2, 2004, Taylor received a written reprimand from Lt. Weaver for arguing with an inmate and enticing him to violence. (Id.)

Taylor's Employee Performance Evaluation for 2004 stated that Taylor needed improvement in his interpersonal relations. (Id.) The evaluation notes that "C.O. Taylor needs to treat the inmates the way he would want to be treated. At times he has shown a pattern of provoking inmates. He doesn't take criticism well." (Id.) In his performance evaluation for the previous year, it was noted that Taylor's interpersonal skills needed improvement. The comments stated that "C.O. Taylor treats staff with respect but he needs to strive better to treat inmates with respect." (Id.) In the overall comments for 2003, the evaluator concluded that "C.O. Taylor is a good officer, but he lacks in communicating with the inmates. When he is there to defuse the problem he will create a bigger one just by the words he chooses." (Id.)

Taylor had a reputation among his supervisors and fellow corrections officers for having a chip on his shoulder and routinely provoking inmates. (Chambers Dep. 54--57.) Chambers, who once supervised Taylor, testified that Taylor would unnecessarily escalate tensions with inmates over minor matters to the point where force was required. (Chambers Dep. 54--67.) Likewise, Reik testified that it was well known that Taylor instigated conflicts with inmates. (Reik Dep. 83.)

There is also evidence that Zook personally observed Taylor use excessive force against inmates. For instance, Taylor and Zook both participated in the restraint of an inmate Josh Pennington. During the restraint, which was recorded, as Taylor holds down Pennington, who was restrained, Pennington suddenly cries out that he had been punched in the testicles by Taylor. (Wiseman Decl. ¶ 6.) Defendants dispute this, and Taylor's hands are obscured in the video, nonetheless there is sufficient evidence that a reasonable trier of fact could determine that Taylor did indeed use excessive force against Pennington in the presence of Zook. Taylor was not disciplined for this incident.

Defendants respond that prior to the incident with Zimmerman, Taylor had never had a claim of excessive force filed against him, and point to differences between that incident and those for which he was previously disciplined. (See, e.g., Pls. Statement of Material Fact, Ex. 52 (Taylor disciplined for inappropriate contact with female inmates).) This is a genuine dispute of material fact, and for the purpose of resolving Defendants' summary judgment motion the court concludes that there is sufficient evidence for a trier of fact to conclude that based on Taylor's past misconduct, Defendants knew or should have known that Taylor would apply excessive force to Zimmerman, and could have prevented it.

2. Gary Searer and Justin Herb

Plaintiffs Gary Searer and Justin Herb shared a cell at MCCF in the fall and winter of 2005--2006. Beginning on November 8, 2005, both inmates were subjected to lengthy periods of mechanical restraint and confinement to a dark cell without artificial light or mattresses.

There is no dispute that both Searer and Herb had a long history of behavioral problems, and both accumulated numerous prison disciplinary violations and criminal sanctions as a result of violent and destructive behavior against other inmates, prison staff, and prison property in the months leading up to November 2005. (See, e.g. Defs. Statement of Material Facts for Searer and Herb, Ex. 13 (disciplinary sanctions against Searer for assault); Ex. 14 (assault charge against Searer); Ex. 16 (Searer disciplined for kicking cell door); Ex. 17 (Searer disciplined for kicking cell door); Ex. 18 (Searer disciplined for threatening inmate and disobeying orders); Ex. 19 (Searer disciplined for failure to follow orders); Ex. 21 (Searer disciplined for damaging cell); Ex. 23 (Searer disciplined for damaging cell); Ex. 24 (Seearer disciplined for kicking cell door); Ex. 25 (Searer and Herb disciplined for kicking cell door); Ex. 28 (Herb disciplined for damaging property); Ex. 29 (Herb disciplined for kicking cell door and yelling); Ex. 30 (Herb disciplined for assaulting another inmate); Ex. 31 (Herb disciplined for kicking cell door and yelling).) As a result of these infractions, Herb and Searer were restrained for more than ten hours on numerous occasions. (Pls. Statement of Material Facts, Exs. 10--12, 14--15.)

Staff at MCCF were aware that both Searer and Herb were mentally ill, and they were eventually diagnosed as bipolar by prison medical staff. (Wawrose Dep. 95--96, 122--23, 135.) The MCCF medical team certified both inmates for involuntary commitment to Warren State Hospital, Pennsylvania's institution for mentally ill criminals. (Pls. Statement of Material Facts, Ex. 23.)

On November 8, 2005, Searer and Herb damaged their cell by breaking the glass window in the door, damaging the overhead light and toilet, and kicking the cell door. (Pls. Statement of Material Facts, Ex. 22.) MCCF sprayed OC spray into the cell, and Searer and Herb ceased their destructive behavior and complied with an order to cuff up. Thereafter, Searer and Herb were both placed in four-point restraints. (Id., Ex. 17.) Zook ordered that they remain in restraints until their cell could be repaired, regardless of their behavior while restrained. (Id.) The Mifflin County Commissioners were notified by Zook that he intended to restrain Herb and Searer until the cell was replaced, and the extended restraint was approved. (McCartney Dep. 113--14.)

Searer and Herb were each held in restraints for fifty-five hours before they were finally released. (Pls. Statement of Material Facts, Exs. 18, 21.) There is no evidence explaining why the decision was made to release Herb and Searer at that time, or whether any staff considered releasing them prior to that point. At the time they were released, their cell had not yet been repaired. In any event, the testimony of both medical staff and corrections officers demonstrates that all staff believed that the continued restraint of Herb and Searer had been ordered by Zook, and that no one but Zook had the power to release the inmates from the restraints regardless of whether they were compliant. (See Ingram Dep. 70; Connor Dep. 41, 99; Dawe Dep. 36--37.) As Weaver testified in her deposition,

We were all concerned for their safety, both inmates in there. But like I said, our hands were tied. We were given orders to keep them. We went in, we talked to them. We tried to, you know, do the best we could for them. We just were not allowed to untie 'em, except for a couple of times a day. (Weaver Dep. 265:14--22.) Weaver further testified that staff were prohibited from bringing Searer and Herb into the light. (Weaver Dep. 266.)

The parties dispute whether Searer and Herb were compliant in the restraints. For the most part, the facts indicate that both Searer and Herb remained compliant throughout their restraint. (Pls. Statement of Material Facts, Ex. 22.) During the restraint period, MCCF kept observation logs indicating the condition of the inmates at fifteen minute intervals. (Id.) The log indicates that Searer was crying for the first fifteen hours and the final sixteen hours that he was restrained. For the remaining time, the log notes that he was talking, and occasionally yelling or mumbling incoherently. (Id.) However, after he had been restrained for twelve hours, Searer began making threats against Zook and vowed to destroy more property. (Pls. Statement of Material Facts, Ex. 19.) Both prior to and after these threats were made, the observation log indicates that Searer was otherwise compliant. (Pls. Statement of Material Facts, Ex. 22.) Herb was observed crying or talking for almost the entire fifty-five hour period. (Id.)

Upon release from the restraints, Herb and Searer were returned to the same cell they had damaged, even though it had not yet been repaired. On Zook's orders, the broken glass in the window was replaced with opaque steel plates. (Pls. Statement of Material Facts, Ex. 17.) The damaged light on the ceiling was not repaired, so the only source of light in the cell was a small translucent window at the top of the back of the cell that let in very little natural light during the day, though the parties dispute the amount of light. At night, the cell was pitch black. The cell also lacked mattresses, and Searer and Herb were forced to sleep on the bare steel beds. The parties genuinely dispute the degree of light in the cell, and Defendants submit evidence suggesting that on sunny days, it may have been bright enough to read. However, there is sufficient evidence of record for a reasonable trier of fact to conclude that Searer and Herb were deprived of light.

On November 11, 2005, after less than a day in the darkened cell, Searer and Herb began striking their heads against the walls of the cells, resulting in cuts and bruises to their foreheads and blood stains on the cell walls. (Pls. Statement of Material Facts, Exs. 24, 61 (photographs depicting cuts and bruises on inmates foreheads and blood stains on the cell walls).) Searer and Herb were removed from the cell, and Searer was placed in the restraint chair, while Herb was restrained in the four-point restraint for another thirteen hours. (Id., Ex. 24) The observation logs of this restraint indicate that Searer was crying for the entire thirteen hour period. (Id.) Herb was observed talking and crying for almost the entire period, and occasionally screaming. (Id.)

The MCCF medical staff became increasingly concerned about the treatment and well being of Herb and Searer. On November 11, 2005, Nurse Ingram, who is also a corrections officer at MCCF, spoke with Justin Herb about his self-injurious conduct, and subsequently issued a memorandum to Chambers describing that meeting:

Inmate Justin Herb asked to speak to me before I left. He started crying and saying he didn't know how much more of this he could take. I asked what he meant and he said being restrained and in the dark cell back on the block. He said that both of them are enough to make you crazy. We talked for a few minutes about why these things were happening to him. He wondered if I could do anything about it, and I explained that I had nothing to do with it. He said throw him in 7 cell in booking and watch him all day he doesn't care but anything is better than what he has been through in the last week. Throughout our entire conversation he continued to cry at regular intervals. He had a hard time looking at me when he was crying. Unsure where this is leading but I am beginning to get concerned for his safety. (Pls. Statement of Material Fact, Ex. 25.) Five days later, Ingram sent a fax to Suzanne Ward with the following comment: "Suzanne -- the latest self-inflicted injury to Searer & Herb. It's way out of control." (Pls. Statement of Material Fact, Ex. 29.) Nurse Miller was also concerned about the inmates' self-injury and made efforts to have them committed to Warren State Hospital. (Miller Dep. 67--72.) Marlin Conner, the mental health counselor for MCCF worried about the effects of sensory deprivation on Herb and Searer due to lack of contact with people. (Conner Dep. 46--48.) Searer complained to MCCF medical staff that he felt pain behind his eyes when they were exposed to light. (Pls. Statement of Material Facts, Ex. 37.)

Searer also reported that he had begun to hallucinate and hear voices. (Wawrose Dep. 105--06.)

During this time, Zook suspended visiting privileges for both Searer and Herb, and issued a memo forbidding corrections staff from distributing aspirin, Tylenol, or writing implements to Searer and Herb. (Pls. Statement of Material Facts, Exs. 20, 28 (Searer denied Tylenol he requested from a corrections officer).) Generally, inmates may obtain pain relievers from corrections officers or medical staff. (Miller Dep. 24.) Zook testified that he denied pain relievers to Searer and Herb because he believed that they may have been receiving too much medication, and that pain relievers were still available to them by prescription from the medical staff. (Zook Dep. 266.) Plaintiffs challenge this explanation, noting that medical staff were unaware of any prior situation in which an inmate had been deprived of access to over the counter pain medication, (see Ingram Dep. 103--06), and the fact that Searers' medical records indicate that he received no pain medication from the medical department from November 8, 2005 to November 22, 2005. (Wawrose Dep. 108--115.) Accordingly, there is a genuine dispute of fact as to Zook's motivation for denying pain relievers to Searer and Herb.

Searers' mother attempted to send him a letter telling him about his legal rights, but the letter was returned to her undelivered. (Wyland Decl. ¶ 3.) Defendants dispute this, presenting other evidence suggesting that Searer continued to send and receive mail throughout the period he remained in the darkened cell. (Defs. Statement of Material Facts, Ex. 59 (mail log).) Thus there is also a genuine dispute of fact as to whether Searer was denied legal mail.

After being housed in the darkened cell for twenty-eight days, medical staff persuaded Zook to permit Herb to be housed in another cell in the booking area where he would have access to more light. (Conner Dep. 54.) However, Searer remained in the darkened cell from November 8, 2005 until January 20, 2006, for a total of seventy-one days. On ...


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