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Bourne v. Lancaster County Prison

October 28, 2009

ROBERT M. BOURNE, PLAINTIFF
v.
LANCASTER COUNTY PRISON, ET AL., DEFENDANTS.



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

MEMORANDUM

Plaintiff Robert M. Bourne sues the Lancaster County Prison ("LCP"), LCP Warden, Vincent Guarini, and former LCP Mental Health Counselor, Troy Waltz, pursuant to 42 U.S.C. § 1983 and Pennsylvania law, seeking damages and other relief for alleged violations of his rights during his incarceration at LCP. For his § 1983 claims, plaintiff alleges that all three defendants are liable because Waltz used excessive force against him and he was denied access to outdoor exercise for a period of more than one hundred days, both in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff also asserts state law claims for assault, battery, gross negligence/willful misconduct, intentional infliction of emotional distress, and negligent infliction of emotional distress arising out of Waltz's use of force against him. Before the court are defendants' motion for summary judgment*fn1 and plaintiff's response thereto. For the reasons that follow, the motion will be granted in part and denied in part.

I. Factual Background

In March 2005, plaintiff was incarcerated at LCP following his arrest on charges of indecent assault of a person less than thirteen years of age and corruption of a minor. (3d Am. Compl. ¶¶ 10-11; Answer to Pl.'s 3d Am. Compl. ¶¶ 10-11; see Pl.'s Ex. A ("Pl.'s Dep.") 49.) Plaintiff was convicted of the indecent assault charge in the Court of Common Pleas of Lancaster County in December 2005 (Defs. Lancaster County Prison and Troy Waltz's Statement of Undisputed Material Facts ("Defs.' Statement") ¶ 3; Pl.'s Counterstatement of Undisputed Facts ("Pl.'s Counterstatement") ¶ 3), and he remained at LCP for a period of time thereafter.

In March 2006, the Court of Common Pleas ordered plaintiff to undergo a psychiatric evaluation and a pre-release sex offender assessment prior to being released on parole. (Defs.' Statement ¶ 8 & Ex. D (Commonwealth v. Bourne, No. 2149-05, Order (Ct. Com. Pl. Mar. 10, 2006)); Pl.'s Counterstatement ¶ 8.) The Lancaster County Office of Special Offenders arranged for Dr. Anthony Russo, who previously had worked as a psychiatric consultant for the Office of Special Offenders, to perform the court-ordered psychiatric evaluation. (See Defs.' Ex. E ("Russo Dep.") 12, 16-17.) Although plaintiff met with Dr. Russo at LCP on April 16, 2006, as scheduled, Dr. Russo was unable to perform the evaluation. The parties' accounts of this meeting and its immediate aftermath differ markedly in several critical respects.

At his deposition, plaintiff testified that on the day of the evaluation, he arrived in the counseling room where Dr. Russo and defendant Waltz were waiting for him, entering through a door leading from the medical housing unit. (Pl.'s Dep. 82-83, 85.) At plaintiff's request, Waltz left the room, exiting through a second door leading back into the prison medical department. (Id. at 84-85.)*fn2 Dr. Russo then asked plaintiff to sign a medical malpractice waiver, explaining that he couldn't help him without it.*fn3 (Id. at 85-86, 89.) Plaintiff refused to sign the waiver and asked to be returned to his cell, and Dr. Russo told him he could do so. (Id. at 87, 89-90.)

Following this exchange, Waltz re-entered the counseling room through the door to the medical department and began yelling at plaintiff, repeatedly asking him why he wouldn't sign the malpractice waiver. (Id. at 90, 95.) Waltz then told plaintiff, pointing to the door to the medical department, which was still open, "you can go through that door if you want, but you won't get out of prison." (Id. at 90-91, 95.) In response to Waltz's statement, plaintiff stood and proceeded to walk out the door to the medical department. (Id. at 95-96.) Plaintiff had taken about two steps through the door when, without telling him to stop or saying anything to him, Waltz came up behind him, grabbed him around the waist, picked him up off of his feet, and threw him to the ground. (Id. at 93, 96-101, 146.)*fn4 According to plaintiff, as he was throwing plaintiff to the ground, Waltz said that he shouldn't have told plaintiff to "go out that way" and that he would "kick [plaintiff's] ass." (Id. at 101, 146, 159.) Plaintiff hit the ground on his left side and then landed face up before Waltz rolled him over onto his stomach. (Id. at 98-101.) A group of "white shirts" then arrived, handcuffed plaintiff, and escorted him back to his cell where they "stripped [him] down" and took photographs of his back and bruising. (Id. at 101-02, 113.)*fn5

Although defendants do not dispute that plaintiff "was taken to the ground" by Waltz after he attempted to leave the counseling room (Defs.' Statement ¶¶ 17, 20), they offer a competing account of the circumstances surrounding Waltz's actions. Dr. Russo testified that plaintiff became "very argumentative" during their meeting, ranting and raving and making "lots of threatening and hostile remarks." (Russo Dep. 19-20; see also id. at 20 (stating that plaintiff's "judgment was totally impaired" and that he was "[t]otally irrational, argumentative, loud ranting and raving").)*fn6 According to Waltz, as he was waiting outside the counseling room, plaintiff's voice got louder and louder, and when it became a little more aggressive in tone, Waltz reentered the room and tried to convince plaintiff to cooperate with the evaluation. (Waltz Dep. 85, 97-98.) At some point during the exchange, plaintiff stood up, opened the door to the medical department, and proceeded to walk across the room to the door leading to the medical waiting area. (Id. at 86, 98-99.) Waltz followed plaintiff, telling him several times to stop, but plaintiff continued to walk toward the door to the medical waiting area without responding. (Id. at 86, 100-01.) Once plaintiff got to the door of the medical waiting room, Waltz testified he "wrapped [his] arms around [plaintiff] and took him to the floor," falling to the ground himself in the process. (Id. at 86, 100-01.) While on the ground, Waltz instructed Dr. Russo to hit a panic button, and within a few seconds, several corrections officers came in, handcuffed plaintiff, and took him back to his cell. (Id. at 86-87, 102.)

At his deposition, Waltz acknowledged that plaintiff made no verbal threats while leaving the counseling room, and that plaintiff could not have gotten more than twenty feet away had Waltz not intervened, given the presence of other security officers in the medical department. (Waltz Dep. 103, 105-06.) However, Waltz testified that he was concerned that plaintiff could be a threat to the female inmates who were in the medical waiting area at the time, given his "irritated and upset and paranoid" frame of mind. (Id. at 104-05, 131.)

As a result of the incident, plaintiff had pain and bruising in his left hip, right buttocks, and left elbow. (Pl.'s Dep. 113-14, 192-93.) The next day, on April 17, 2006, he was examined for abrasions to his left shoulder and pain in his left wrist. (Defs.' Statement ¶ 22 & Ex. F (patient progress sheet for plaintiff); Pl.'s Counterstatement ¶ 22.) According to medical records, plaintiff refused treatment for the shoulder abrasions, which were superficial, and he had full range of motion and no swelling in his wrist. (Defs.' Statement ¶¶ 22-23 & Ex. F; Pl.'s Counterstatement ¶¶ 22-23.) The medical records also reflect that plaintiff was told to ask to be seen if the pain in his wrist continued. (Defs.' Ex. F.) Following the incident, plaintiff requested medical attention for his injuries on April 21, 22, and 24, 2006, complaining on April 22 that his hip continued to be "very painful" and his left wrist "very numb." (Pl.'s Exs. I-K (Inmate Requests for Medical Services).) Plaintiff testified that it took three months for the deep bruising in his hip to heal. (Pl.'s Dep. 199.) He also testified that the incident made him scared to take drugs or to talk to counselors. (Id. at 172.)

At the time of the incident with defendant Waltz, plaintiff was on house alone/block alone ("HA/BA") status, which meant that he was permitted to be out of his cell only when other inmates were in their cells and had to remain in his cell when other inmates were out of their cells. (Pl.'s Dep. 103, Pl.'s Ex. G ("LCP 30(b)(6) Dep.") 51-52, 54.) Plaintiff had been placed on HA/BA status the previous month for threatening other inmates and writing threatening letters (Defs.' Statement ¶ 6; Pl.'s Counterstatement ¶ 6), and he apparently was not taken off HA/BA status until July 2006, more than one hundred days later (Pl.'s Ex. M (July 8, 2006, email from Carrie McWilliams stating that plaintiff "can be taken off HA/BA status"); see also Pl.'s Dep. 108, 171 (plaintiff's testimony that he remained on HA/BA status for a period of one hundred days)). Plaintiff testified that during this more than one hundred-day period, he was not permitted to use the prison's urban yard despite his requests to do so.*fn7 (Id. at 105-108.) He identified three corrections officers -- officers Flagherty, Sutton, and Weaver -- as the particular individuals who would not allow him access to the urban yard during this time. (Id. at 105-07.) Although plaintiff did not mind being on HA/BA status, which protected him from being harassed by other inmates, he did object to the lack of exercise outside of his cell and demanded to see a doctor about this issue. (Defs.' Statement ¶ 7; Pl.'s Counterstatement ¶ 7; Pl.'s Dep. 135-36.)

Proceeding pro se, plaintiff commenced this civil action in January 2006. Between May 2007, when plaintiff was granted leave to proceed in forma pauperis, and November 2007, plaintiff filed a complaint and two amendments thereto. In his second amended complaint, plaintiff asserted claims against various defendants alleged to have been involved in his underlying criminal case and added Eighth Amendment claims against LCP and Waltz based on plaintiff's assault by Waltz and denial of access to exercise. By order dated November 19, 2007, the court directed that LCP and Waltz be added as defendants in the case and dismissed the claims against all of the remaining defendants. Plaintiff thereafter filed a motion for appointment of counsel, which the court granted, and counsel was appointed for plaintiff in June 2008. In October 2008, plaintiff, by counsel, filed a third amended complaint, adding Warden Guarini as a defendant, and asserting claims pursuant to 42 U.S.C. § 1983 and state law arising out of the incident with Waltz and the denial of access to exercise.

II. Summary Judgment Standard

A motion for summary judgment must be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this initial burden, the nonmoving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). "Facts that could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal ...


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