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Brown v. Lemasters Correctional Sergeant

September 10, 2009

WALKEEN BROWN, PLAINTIFF,
v.
LEMASTERS CORRECTIONAL SERGEANT; NELSON CORRECTIONAL OFFICER; KERR CORRECTIONAL OFFICER; OLINGER CORRECTIONAL OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge

Chief Magistrate Judge Amy Reynolds Hay

Re: Dkt. [51]

MEMORANDUM OPINION

Walkeen Brown ("Plaintiff"), having been convicted of, inter alia, attempted murder and aggravated assault, is serving a lengthy sentence in the state prison system. He has filed a prisoner civil rights action, alleging the use of excessive force twice on June 11, 2007. Because, in his response to the Defendants' summary judgment motion, he has failed to adduce relevant evidence supporting his allegations, the Defendants' summary judgment motion is properly granted.

Plaintiff alleged in his complaint*fn1 the following: On June 11, 2007, at approximately 2:15 P.M., while taking a shower at SCI-Greene, he was ordered by Defendant Nelson to hurry up and get done. Dkt. [16] at 4, ¶ 2. Plaintiff then put his hands through the wicket or slot so as to get handcuffed; Plaintiff felt someone pull his arms through the "slot with force while putting the handcuffs on." Id., at ¶ 3. Once Plaintiff got out of the shower, Defendant LeMasters was allegedly "bending Plaintiff's right wrist in an upward position." Id., at ¶ 6. Rather than taking Plaintiff to his normal cell, he was taken to a hard cell or strip cell. Id., at ¶ 8. While Plaintiff was being escorted to the strip cell, Defendant LeMasters allegedly continued to bend Plaintiff's right wrist and Defendants Nelson and Olinger allegedly stepped on Plaintiff's shower shoe heels. Id., at ¶ 11. Plaintiff's water in the strip cell was allegedly turned off by Defendant Olinger. After Plaintiff was placed in the strip cell, Defendants allegedly twisted Plaintiff's wrist, with one of the Defendants holding Plaintiff's right forearm while the left handcuff was removed. Id., at 5, ¶ 14. Plaintiff then alleged that all three of the Defendants continued to pull on the Plaintiff's left cuff and bending his right wrist while Defendant LeMasters told the Plaintiff to stop resisting, when Plaintiff was allegedly not resisting. Id., at ¶ 15. Plaintiff complains that the three Defendants finally removed his right handcuff, "leaving him with a broken right wrist." Id., at 5, ¶ 16.

The second alleged use of excessive force is as follows. Later on the same day, i.e., June11, 2007, at around 3:30 P.M., Plaintiff complained to a nurse, making her rounds, that his right wrist was broken, telling her it happened because the guards were bending it while he was coming back from the shower. The nurse said she would have to return later. Around 4:45 P.M., Defendants Lemasters, Olinger, Nelson and Kerr allegedly approached Plaintiff's strip cell with one of them operating a video camera recorder, in order to escort Plaintiff to the medical unit. After Plaintiff was handcuffed, and taken out of his cell, Defendant LeMasters, allegedly "threw Plaintiff up against the wall with excessive force." Id., at 6, ¶ 26. Defendant LeMasters then allegedly whispered in Plaintiff's ear, "Now ther[e] isn't any cameras out here, if you say anything, we'll f___ you up." Id., at ¶27. Then as Plaintiff was being walked to the medical unit, Defendant LeMasters allegedly began to bend Plaintiff's right wrist again. Id., at ¶ 28. After arriving in the medical unit, the nurse asked him what was wrong and he allegedly told her that he was assaulted. Id., at ¶ 30. Plaintiff claims that the nurse noted Plaintiff's right wrist was swollen and could not move. Id., at ¶ 32. Plaintiff was then escorted back to his strip cell by the four defendants, and while being escorted, one of the defendants allegedly kicked Plaintiff in both of his ankles, causing Plaintiff to fall. Id., at ¶ 33. When Plaintiff fell to the floor, one of the Defendants allegedly grabbed Plaintiff's ankles and twisted it in a fast motion "causing it to break." Id., at ¶ 35. After arriving back at the strip cell, Plaintiff was allegedly told by Defendant LeMasters, if "you want to run you mouth, you won't eat, [and] I'll break your wrist more." Id., at 7, ¶ 37. The Defendants placed Plaintiff back in his strip cell while all of them allegedly pulled Plaintiff cuffs and the tether attached to the cuffs bending his right wrist more. Id., at ¶ 38. Defendants then allegedly left Plaintiff in his cell in excruciating pain. Id., at ¶ 39.

Plaintiff claims that the foregoing establishes his Eighth Amendment right to be free of excessive force was violated.

Procedural History

After discovery was closed, Defendants filed a motion for summary judgment, Dkt. [51], a brief in support, Dkt. [52], a concise statement of material facts, Dkt. [53], an appendix of evidentiary materials, Dkt. [54], and a pretrial statement, Dkt. [55]. Thereafter, Defendants filed two supplements to their summary judgment motion, Dkt. Nos. [56] & [57], both of which were simply affidavits from two of the defendants that had been included in the appendix of evidentiary materials but that had originally not been signed by the affiants; the supplements cured these oversights. The Court ordered Plaintiff to file a response by a date certain, Dkt. [58], but Plaintiff failed to do so and so the Court issued a rule to show cause why this case should not be dismissed for failure to prosecute, i.e., essentially for failing to comply with court orders. Plaintiff filed a response to the Order to Show Cause, Dkt. [60], which the Court treated as a motion for appointment of counsel, and which the Court denied and directed Plaintiff to file a response to the summary judgment motion by a date certain. Dkt. [61]. On July 1, 2009, Plaintiff filed yet another motion for appointment of counsel, Dkt. [62], and a response to the motion for summary judgment, Dkt. [63], and a supplemental response, Dkt. [64]. Finally, Plaintiff also filed evidentiary exhibits in opposition to the summary judgment motion, which consisted of: (1) two private criminal complaints filed by a fellow prisoner in the state courts against guards at SCI-Greene who are not the defendants herein, complaining of alleged mistreatment, and (2) a second affidavit from a fellow prisoner at SCI-Greene complaining of alleged mistreatment at the hands of guards, none of whom is one of the four defendants herein. Dkt. [65]. After being directed to do so, Dkt. [66], Defendants filed affidavits from the custodians of records authenticating documents that they had included in their appendix in support of the their summary judgment motion. Dkt. [68]. The motion for summary judgment is now ripe.

The parties have consented to have the Magistrate Judge exercise plenary jurisdiction. Dkt. [7] & [33].

Standard of Review

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden to show or point out why there is no genuine issue of material fact. Walters ex rel. Walters v. General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial . . ." or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the evidentiary record to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).

"The substantive law governing the dispute will determine which facts are material, and only disputes over those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004)(internal quotations omitted). An issue of material fact is genuinely disputed only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587. The inquiry involves determining whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50. Moreover, it is not enough for the non-movant to show that there is some dispute as to facts, rather, "only disputes over facts that might affect the outcome of the suit will prevent summary judgment." Anderson, 477 U.S. at 248. Accord Rexnord Holdings v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) ("[T]he mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]"); Dykes v. DePuy, Inc., 140 F.3d 31, 36 (1st Cir. 1998) ("summary judgment is not precluded by just any factual quibble").

In short, the summary judgment motion is an evidence testing device to see if there is sufficient evidence to support a party's position with respect to an issue for which that party bears the burden of proof at trial so as to justify holding a trial. See, e.g., Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001)(summary judgment "is the . . . moment in a lawsuit, when a party ...


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