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Boomer v. Lewis

September 9, 2009


The opinion of the court was delivered by: Judge Vanaskie



Plaintiff commenced this civil rights action by filing a complaint on April 25, 2006. Plaintiff later filed amended complaints on September 29, 2006 (Dkt. 76), and January 12, 2007. (Dkt. 109.)*fn1 Plaintiff's claims concern more than a dozen discrete incidents that occurred during his initial arrest by the Pocono Mountain Police Department and his subsequent incarceration as a federal court pretrial detainee in the Lackawanna County Prison ("LCP"), and the Pike County Correctional Facility ("PCCF").*fn2 Following various pretrial rulings, there remain six separately represented groups of Defendants. The groups of Defendants are as follows: (1) the Pocono Mountain Regional Police Department Defendants, consisting of the Police Department itself, former Chief of Police John P. Lamberton, Sergeant Harry Lewis, and Police Department members Michael Robson, Michael Rice, Daniel Smelas, Jeffery Lutz, and Richello Stapleton; (2) LCP Medical Defendants, consisting of Barbara Fox, L.P.N., and Dr. Edward Zaloga; (3) LCP Officers, consisting of Warden Janine Donate, C.O. Columbia, Lt. Walsh, and Sgt. Yavoroski; (4) PrimeCare Medical, Inc., and its employees, Patti Bunting, and Dr. William Sprague, who provided health care services at the PCCF; (5) PCCF Nurses, consisting of William Checho, Susan Shaffer, and Catherine Moreiko; and (6) the PCCF, along with Warden Craig Lowe, Assistant Warden Romance, Lt. Kumburis, Ms. Lastarza, Lt. Campos, Lt. Gattuso, Sgt. DeMarco, C.O. Francis, C.O. Schwartz, and C.O. Schappert. (This last group of Defendants will be referred collectively to as the "PCCF Defendants.") Each group has moved for summary judgment. On April 1, 2006, Magistrate Judge J. Andrew Smyser issued a comprehensive Report and Recommendation addressing each of the summary judgment motions as well as a motion for sanctions filed by Gerard Maritato, M.D.*fn3 (Dkt. 545.) Magistrate Judge Smyser recommended granting the motions for summary judgment filed on behalf of the LCP Medical Defendants, the LCP Officers, the Prime Care Medical Defendants, and the PCCF Nurses. As to the Pocono Mountain Regional Police Department Defendants and the PCCF Defendants, he recommended granting the motions in part. Finally, Magistrate Judge Smyser recommended denying the motion for sanctions. The matter is now before this Court on objections filed by Plaintiff (Dkt. 546); PCCF Officers Francis, Kumburis, Campos, and Shepard (Dkt. 547); and the Pocono Mountain Regional Police Department Defendants (Dkt. 553).


Where, as here, objections to a Magistrate Judge's Report and Recommendation are filed, the court must perform a de novo review of the contested portions of the Report. See, e.g., Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. 636(b)(1)(C)). Although review is de novo, the Court is permitted to "rely upon the Magistrate Judge's proposed findings and recommendations to the extent [it], in the exercise of sound discretion, deem[s] proper." Owens v. Beard, 829 F.Supp. 736, 738 (M.D. Pa. 1993) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984)). To trigger de novo review, however, the objections must be specific. See, e.g., Goney, 749 F.2d at 6-7. In this regard, Local Rule of Court 72.3 requires "written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for those objections." Where only general objections are asserted, review may properly be limited to ascertaining whether there is "clear error" or "manifest injustice" in the Report and Recommendation. See Shields v. Astrue, No. 3:CV-07-417, 2008 WL 4186951, at *6, *9 (M.D. Pa. Sept. 8, 2008).

A. Plaintiff's Objections

Plaintiff objects to the Report and Recommendation on the ground that Magistrate Judge Smyser erred in treating Local Rule of Court 56.1 Statements of Material Facts as undisputed because Plaintiff failed to respond to them. Plaintiff observes that he had relied upon his verified second amended complaint (Dkt. 109),*fn4 as well as exhibits he submitted (Dkts. 534 through 536). Plaintiff, however, did not respond to the Statements of Material Fact as required by Local Rule of Court 56. 1, which provides that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."

Plaintiff was required to respond to the numbered paragraphs of the moving parties' statements of material fact, indicating specifically what facts were disputed and identifying the part of the record that sufficed to create a genuine dispute of fact material to the outcome of a particular claim. His failure to comply with Local Rule of Court 56.1 provided ample justification for Magistrate Judge Smyser's treatment of the moving parties' Statements of Material Fact as undisputed. Accordingly, this objection is overruled. Furthermore, as Plaintiff has not complied with Local Rule of Court 72.3 by specifying particular findings made by the Magistrate Judge to which he objects, review of the record in connection with the parts of the Report and Recommendation adverse to Plaintiff will be limited to ascertaining whether is "clear error" or a result that is "manifestly unjust." See Shields, 2008 WL 4186951, at *6, *9 (M.D. Pa. Sept. 8, 2008).

B. Defense Objections

Those Defendants who have objected to the Report and Recommendation have specified the parts of the Magistrate Judge's analysis to which they take exception. Accordingly, review of the record dealing with the pertinent parts of the record will be de novo.


A. Pocono Mountain Regional Police Department Motion

On February 20, 2006, at approximately 2:00 p.m, Cathy Boomer, Plaintiff's wife, called the Pocono Mountain Regional Police Department, claiming that the Department had property that belonged to her, and sought to pick it up. (Id.) Defendant Robson discovered from Defendant Lewis that the Bureau of Alcohol, Tobacco and Firearms (ATF) had issued warrants for the arrest of Plaintiff and Mrs. Boomer as a result of a federal grand jury indictment. (Id. at ¶9.)

Defendant Robson asked Plaintiff and Mrs. Boomer to come to the police station the next day, February 21, 2006. (Dkt. 464, at ¶11; Dkt. 109, at 3.) Plaintiff and Mrs. Boomer arrived at the police station and were escorted into an interview room where they were advised that they were under arrest based on warrants issued by the ATF. (Dkt. 464, ¶12; Dkt. 109, at 3.) Mrs. Boomer was handcuffed and placed in a holding cell without incident. (Dkt. 464, at ¶14.) Plaintiff, however, screamed "this is b[******]t and I want to see the warrants," was argumentative, and after officers mistakenly began to place him in his wife's cell, believing it to be unoccupied, demanded to be placed in the cell with his wife. (Id. at ¶13, ¶15.) Plaintiff pulled away from Robson and demanded to be placed in the cell with his wife and Robson told Plaintiff he was not allowed in the cell. (Id. at ¶16.) Plaintiff continued to pull away as Robson again informed him he was not allowed in the cell. (Id. at ¶17.) Plaintiff yelled in Robson's face, "who the f[**]k do you think you are, don't f[*****]g touch me man." (Id. at ¶18.) Defendant Robson told Plaintiff to sit on the bench several times so that Plaintiff's leg could be cuffed to the bench, but Plaintiff did not comply and continued screaming in Robson's face. (Id. at ¶11.)

In his second amended complaint, Plaintiff alleges that he informed Defendant Lewis that he could not be handcuffed behind his back due to spinal problems resulting from a car accident, and that he required a cane to ambulate.*fn5 (Id. at 3.) Defendant Lewis handcuffed Plaintiff with his hands behind his back, and then allegedly "mishandled him" while placing him inside the holding cell. (Id. at 3.)

Plaintiff states that while awaiting the arrival of the ATF agents to take the Boomers into custody, he experienced a violent epileptic seizure that caused him to bang against concrete and steel. (Dkt. 109, at 4.) Defendants Lewis, Stapleton and Robson proceeded to the cell, and Robson called the Communications Center by radio, requesting an ambulance and Advanced Life Support unit for Plaintiff who was possibly experiencing seizures. (Id. at ¶27.) After Lewis and Robson lifted Plaintiff's head from the bench and removed a handcuff, Plaintiff regained consciousness and began arguing with Lewis. (Id. at ¶28.) Plaintiff was then handcuffed in front and hooked to a belly belt with the handcuffs in front. (Id. at ¶29.) Plaintiff replied "yes" when asked if he was alright, and was given a glass of water when he requested one. (Id. at ¶30.)

The ambulance arrived at the police station and while being examined, Plaintiff and Mrs. Boomer stated their backs hurt from a previous automobile accident. (Id. at ¶31.) Plaintiff was uncooperative with the ambulance personnel, who stayed at the police station until the ATF arrived, and did not request treatment. (Id.) Plaintiff states that the "EMS persons" did nothing more than flash a light into his eyes. (Dkt. 109, at 5.) Plaintiff alleges that video/audio cameras located inside both holding cells captured these events on film. (Id. at 4.) Plaintiff states that he was not transported to an emergency room for evaluation or treatment for his violent seizure that resulted in serious spinal injuries. (Id. at 5.)

The Defendants moved for summary judgment on two claims: the claim against Defendant Lamberton for being in charge of the Police Department and the claim arising from the alleged insufficient medical care after Plaintiff's seizure. (Dkt. 462.) Magistrate Judge Smyser recommended granting Defendants' motion as to both claims. Magistrate Judge Smyser, interpreting the second amended complaint as asserting an excessive force claim that the parties had not addressed, recommended that the case proceed against all Pocono Mountain Regional Police Department Defendants with the exception of Chief Lamberton.

The Pocono Mountain Regional Police Department Defendants object to Magistrate Judge Smyser's finding that Plaintiff asserted an excessive force claim. (See Dkt. 553 & 554.) Defendants also argue that even if such a claim could be gleaned from the second amended complaint, the claim would fail.

Magistrate Judge Smyser's recommendation to grant summary judgment in favor of Defendant Lamberton will be adopted. Plaintiff has provided no evidence Lamberton was in any way involved in his arrest, other than the fact that Lamberton was the head of the Police Department. Because "[i]t is . . . well established that a defendant in a civil rights case cannot be held responsible for a constitutional violation which he or she neither participated in nor approved," Magistrate Judge Smyser correctly ruled that Defendant has shown no reasonable trier of fact could find for Plaintiff and that Lamberton is entitled to summary judgment. See C.H. ex. rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000).

Magistrate Judge Smyser recommended granting summary judgment in favor of the Pocono Mountain Regional Police Department Defendants on the failure to provide medical care in response to Plaintiff's seizure, and this recommendation will also be adopted.

There is no dispute that Defendants promptly called an ambulance and the ambulance arrived and Plaintiff was examined. There is no evidence that any of the Pocono Mountain Regional Police Department Defendants prevented or impeded Plaintiff from being examined by the ambulance attendants. Accordingly, as there is no evidentiary basis for a claim of deliberate indifference to serious medical needs, the recommendation to grant summary judgment in favor of the Pocono Mountain Regional Police Department Defendants on this claim will be adopted.

As noted above, Magistrate Judge Smyser found an excessive force claim asserted against the Pocono Mountain Regional Police Department Defendants in connection with Plaintiff being handcuffed behind his back and shackled to a steel bench. (Dkt. 545, at 17.) Defendants contend that no such claim was presented in the second amended complaint.

Plaintiff's second amended complaint alleges that he informed Defendants not to cuff him behind his back, and that they ignored his request. He further asserts in conclusory fashion that he was "mishandled." These averments do not suffice to support an inference that any member of the Pocono Mountain Regional Police Department used excessive force in placing Plaintiff in restraints. In this regard, the fact that a belligerent person being taken into custody demands to be cuffed in front of his waist does not mean that a denial of this demand is tantamount to use of excessive force. A law enforcement officer is not required to abandon standard restraint protocols at the demand of the person being arrested. And the bare assertion of being "mishandled" does not suffice to state a claim of excessive force.

Federal Rule of Civil Procedure 8(a)(2) requires that, in order to state a claim, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," which "'give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Cop. v. Twombly, 550 U.S. 544, 545 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). In this regard, "[a] party must state its claims . . . in numbered paragraphs, each limited to a single set of circumstances" and, "if doing so would promote clarity, each claim founded on a separate transaction or occurrence . . . must be stated in a separate count . . . ." Fed. R. Civ. P. 10(b). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Twombly, 550 U.S. at 547. Although pro se pleadings are held to a less stringent standard than formal pleadings drafted by lawyers, the complaint must still put the defendants on notice as to the claims against them, and must include specific facts, not mere allegations, in support of the claims. Haines v. Kerner, 404 U.S. 519, 521 (1972). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but has not 'shown' -- 'that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (May 18, 2009).

In this case, the Pocono Mountain Regional Police Department Defendants cannot be faulted for failing to address an excessive force claim in their summary judgment motion because no such claim is apparent from the face of the second amended complaint. Alleging that he was "mishandled" is not sufficient. Asserting that it was "cruel and unusual" to cuff Plaintiff behind his back is also insufficient to state a viable excessive force claim. In this regard, there is no averment that the cuffs were too tight and were used in such a manner as intending to cause pain. Compare Kopec v. Tate, 361 F.3d 772, 774 (3d Cir. 2004) (plaintiff alleged that handcuffs were put on so tightly that "he suffered permanent nerve damage to his right wrist"). The Third Circuit cautioned that its denial of summary judgment in that case was not intended "to open the floodgates to a torrent of handcuff claims." Id. at 777. In this case, the mere averment that Plaintiff was cuffed behind his back as opposed to in front of his waist does not suffice to suggest excessive use of force. What is clear is that Plaintiff complained of the lack of medical attention he received as a result of his seizure, and the Pocono Mountain Regional Police Department Defendants plainly established a right to summary judgment on that claim. Under these circumstances, the Pocono Mountain Regional Police Department Defendants' objection to the Report and Recommendation will be sustained, and their motion for summary judgment will be granted.

B. The LCP Medical Defendants' Motion

Plaintiff's allegations against Defendants Fox and Zaloga surround events occurring while he was a federal detainee at the LCP from February 21 through March 10, 2006, March 17 through March 24, 2006, and April 24 through April 28, 2006. (Dkt. 458, at ¶2.) Plaintiff alleges that immediately following his arrest, while housed at the LCP, nurse administrator Fox and Dr. Zaloga ignored his medical needs and failed to provide adequate medical treatment. (Dkt. 109, at 6-11.) Plaintiff alleges that he had another epileptic seizure in the prison's medical housing unit on either February 22, or 23, 2006. (Id. at 7.) He also allegedly had another seizure on or about March 5, 2006, at the prison. (Id.) Plaintiff alleges that Fox and Dr. Zaloga refused to provide the appropriate treatments and diagnostic tests to determine whether he sustained injuries as a result of the seizures. (Id.)

According to Fox and Dr. Zaloga, Plaintiff was provided medication while in the prison, including Dilantin, Motrin, Naprosyn, Atenolol, Tenormin, Adalat, Clindamycin and Tylenol. (Dkt. 458, ¶ 3-4; see Dkt. 456-3, at 9-40 (logs of medication provided); Dkt. 456-5, at 60-62 (Plaintiff's deposition).) Dr. Zaloga performed blood tests on Plaintiff and changed Plaintiff's medication in response to the results of the test. (Dkt. 458, at ¶ 5; see Dkt. 456-3, at 4-5.) According to Defendants, Plaintiff refused to take his medication, or was noncompliant in taking his medication, on numerous occasions. (Dkt. 458, at ¶ 6; see Dkt. 456-3, at 9-25 (logs showing Plaintiff refused to take medication).) Magistrate Judge Smyser, concluding that Plaintiff "has not presented evidence from which a reasonable trier of fact could conclude that defendants Zaloga and Fox were deliberately indifferent to his medical needs," recommended that summary judgment be granted in their favor. (Dkt. 545, at 22.)

In the present case, Plaintiff has provided no competent evidence of any deliberate indifference of Zaloga or Fox to his medical conditions. Plaintiff's submissions, in fact, tend to show that an appropriate degree of care was provided. Plaintiff's "Exhibit B" contains reports and forms from the Lackawanna County Prison that show Plaintiff was given medical examinations, and that a form was issued within the prison to allow Plaintiff to use his cane. (Dkt. 534-3.) This submission also contains a letter from Dr. Matt Vegari that says Plaintiff was receiving medication during the time period in question.

Plaintiff bears the burden of proving deliberate indifference to serious medical needs, and has failed to provide the evidence necessary to create a genuine issue of material fact. In addition, Defendants have provided affirmative evidence that proper care was provided. Therefore, the recommendation to grant summary judgment in favor of Defendants Fox and Dr. Zaloga will be adopted.

C. The LCP Officers

Plaintiff allegedly suffered a seizure while at the William J. Nealon Federal Courthouse on March 21, 2006. (Dkt. 109, at 10.) Plaintiff was brought by ambulance to the emergency room at Mercy Hospital. (Id. at 12.) Defendants Yavoroski and Columbia went to Mercy Hospital to transport Plaintiff back to the Lackawanna County Prison. (Id. at 14.) Plaintiff alleges that he was grabbed out of his hospital bed by Defendants Yavoroski and Columbia, placed in a wheelchair, and brought to a car where he was "thrown" into the back seat. (Id.) Plaintiff alleges he was put into solitary-confinement status pending disciplinary charges for allegedly refusing to get up and walk out of Mercy Hospital. (Id. at 15.) Plaintiff alleges he was kept "disciplinary confined" for approximately five (5) days without the issuance of an institutional misconduct report ...

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