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Gerald Keehn v. C/O Lucas; C/O Chipikitas; C/O

December 3, 2010

GERALD KEEHN, PLAINTIFF
v.
C/O LUCAS; C/O CHIPIKITAS; C/O ELSTNER; FORMER SUPERINTENDENT) HARRY E. WILSON; CAPTAIN MCCOMBIE; LT. TKACS. SGT. HOGAN; C. SHAFFER, CONTROL SGT.; C/O DELBRIDGE, DEFENDANTS



The opinion of the court was delivered by: Magistrate Judge Bissoon

MEMORANDUM AND ORDER

I. MEMORANDUM

Gerald Keehn ("Keehn" or "Plaintiff"), a former inmate at the State Correctional Institution in Fayette, County, Pennsylvania ("the Prison") filed this action pursuant to 42 U.S.C. § 1983, alleging violation of his rights under the United States Constitution and related state law claims. In Count I of the six count Amended Complaint (ECF No. 17), Plaintiff alleges that corrections officers Kenneth Lucas ("Lucas") and Jeffrey Chipikitas ("Chipikitas") used excessive force against him in violation of the Eighth Amendment*fn1 when they slammed his head into a wall, held him in place, and shocked him repeatedly with an electronic body immobilization device ("EBID"). Officer Kenneth Elstner ("Elstner") is alleged to have transgressed the same right by failing to intervene to stop the attack. Count II focuses on the conduct of former Prison Superintendent, Harry E. Wilson ("Wilson"), alleging that Wilson's failure adequately to supervise, train and discipline corrections officers with a history of assaulting prisoners constituted deliberate indifference to Keehn's Eighth Amendment rights. In addition, Keehn alleges that Wilson acted with deliberate indifference in failing to implement adequate screening procedures for hiring and supervising corrections officers, to establish, maintain, and enforce adequate staffing, and to enforce policies regarding key control. In Count III, Keehn contends that Captain William McCombie ("McCombie"), Sergeant Daniel Hogan, *fn2 and Lieutenant Michael Tkacs ("Tkacs") violated his rights under the Eighth and Fourteenth Amendments by failing adequately to supervise Lucas, Chipikitas and Elstner, failing to secure weapons at the Prison, and failing to ensure that the unit in which Keehn was housed was adequately staffed. Counts V and VI *fn3 set out state law assault and battery claims against Lucas and Chipikitas, and intentional infliction of emotional distress claim claims against Lucas, Chipikitas, and Elstner.

The Court addresses here the pending Motion for Partial Summary Judgment (ECF No.36) filed on behalf of Defendants Wilson, McCombie, and Tkacs. The Motion will be granted in its entirety.

BACKGROUND

The events underlying this suit took place on August 20, 2007, when Keehn was incarcerated in Administrative Custody ("AC") status in the L-Unit, C-Pod, of the Prison's Restricted Housing Unit ("RHU"). (ECF No. 17 at ¶ 13; ECF No. 37 at ¶9). *fn4 He was assigned to AC at his own request because of a confrontation with other inmates in the Prison's general population. (Id. at ¶ 11). At the time, Wilson, the Prison Superintendent, was responsible for managing and supervising staff in the day to day operation of the institution. (ECF No. 37 at ¶¶ 12-13). McCombie, a Prison Captain, was shift commander on the 2:00 p.m - 10:00 p.m. shift, working out of the Prison's main control room. (Id. at ¶¶ 20-22). Tkacs was the RHU Lieutenant assigned to the L-Unit on the same shift. (Id. at ¶¶ 23-24).

About a month prior to the incident, Keehn became a block worker for J-Block, performing work seven days per week under the supervision of corrections officers. (ECF No. 38 Ex.5 at 11). He spent most of each day out of his cell performing duties including cleaning, packing essentials for other inmates, and handling request slips and grievances. (Id. at 10, 11,12). Keen alleges that two days prior to the events at issue, he asked Elstner if he could borrow a television, because the one in his cell was "on the fritz." (Id. at 14). Keehn contends that in the evening of August 20, 2010, when he returned to his cell on L-Block after finishing his work on J- Block, the following events transpired:

I came back in with the other block worker. Lucas stopped me by the sergeant's bubble and said, do you want to borrow a TV? I said yeah. He said wait here. He goes into the control room. He's in there maybe a minute, two minutes, comes back out and says, follow me. We walked around his right side. He goes in the armory and says, stay here. I stood there at the armory. He was gone maybe another minute, two minutes. He comes back out. He says, follow me.

We went to D Pod where we met up with CO Elstner and the other block worker . . . We went upstairs on D Pod. We went in the back room. CO Lucas asked Elstner if he had the keys to the [property room] door. Elstner opened up the door for us. We went in, and we was asking if he had the TV. We looked for the TV. It wasn't in that room. So Elstner and [the other block worker] left. They came back in with the TV. \ Elstner set the TV up on the desk. We're trying to get it to work . . . I asked CO Elstner, are we done, and he said yeah.

Then CO Lucas said, well, not yet. He said either I was going to give them all a blow job or get tasered . . . And I looked at him. I was like, tasered? And he pulled the taser our of his pocket. And I go, I'm cool. I'm good. I go to walk out of the room, and CO Chipikitas was walking in as I was about to leave. And he's like, where are you going, convict? And he started to laugh. I was like, I'm out of here. He pushed me back in the room. When he pushed me back, CO Lucas grabbed the back of my jumpsuit that I had tied around and pushed me over to the wall.

And from what I could see Chipikitas was on my left side; Lucas was on my right. And Chipikitas had his arm on my left side holding me against the wall. Lucas had his left hand on my shoulder, and I got tasered. (Id. at 12-13). The transcript of Keehn's deposition then reflects the following exchange:

Q. Do you know how many times?

A. Three

Q. On your right? Chipikitas was on your-A. Left.

Q. -- left? And they were holding you against the wall?

A. Wall.

Q. As they were holding you that's when you were struck with the EBID?

A. Well, Lucas let go of me when he tasered me, but Chipikitas still had a hold of me on my left side. And he jumped back,

and Lucas tasered me two more times.

Q. And then what happened?

A. After the third time I fell to the floor. I got up, and I lost control of my bowels and I urinated on myself. They laughed. As I was walking toward the desk because there's

[a] chair at the desk, I went to sit down, and Lucas hands me the TV and said, keep your mouth shut, thanks for participating in our little experiment.

Q. Then what happened?

A. Elstner left. Lucas left. Me - - not Elstner, but Chipikitas and Lucas left first. There's me, Elstner and [the other inmate] left. I picked the TV up, walked outside on the catwalk and went to my cell.(Id. at 13).

The next day, Keehn completed a sick call slip stating that he had been tasered by guards, and that the resulting welts appeared to be infected. (Id. at 14). On August 22, a physician's assistant examined him through the door of his cell, stating that the welts did not seem to be infected and were healing. (Id. at 15). Keehn then wrote a letter to Wilson, and filed a grievance. Two Lieutenants visited Keehn three or four days after the examination by the physician's assistant, and a nurse photographed the marks on Plaintiff's right side. (Id. at 16).

Lucas ultimately was terminated from his position, and faced criminal charges, to which he pled guilty. (ECF No. 17)*fn5 . Elstner received a single day suspension for failing to report the incident. Chipikitas was not disciplined. (ECF No. 37 at ¶ 39).

The allegations made against Defendants Wilson McCombie and Tkacs focus on their failure to establish and maintain "systems and procedures governing access to weapons in the L-5 armory," and "to ensure that corrections officers on the L-5 Unit were adequately monitored[,] supervised and . . . staffed." (ECF No. 42 at 6). Keehn also alleges that Wilson failed adequately to screen Lucas during the hiring process. (Id.).

STANDARD OF REVIEW

Summary Judgment is appropriate only where there are no genuine issues of material fact. Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue of material fact exists only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). While the moving party must demonstrate the absence of any genuine factual dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986), the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita, 475 U.S. at 586-87 (1986) (emphasis in original removed).

In evaluating the evidence, the Court must view the facts and the inferences to be drawn therefrom in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255. At the summary judgment stage, the Court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. When examining the record to see ...


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