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Demetrius Bailey v. David Diguglielmo

February 8, 2011


The opinion of the court was delivered by: O'neill, J.


Plaintiff Demetrius Bailey is a state prisoner who is presently incarcerated at SCI-Fayette. On December 4, 2007, he filed a four count amended complaint against twenty-two defendants, alleging violations of various constitutional rights.*fn1 Pretrial motions resulted in the dismissal of one count and fourteen defendants.*fn2 I held a three-day bench trial*fn3 on the remaining three counts against defendants Thomas Achey, Heather Craiter, Steven Gavlik, John Lozar, Kevin MacGreggor, Jeffery McCusker, Andrew Thomas and Jeffery Trower.


Plaintiff is a thirty-seven year old native of Keysport, Pennsylvania. He was incarcerated at SCI-Graterford during the events giving rise to this lawsuit. He claims that on three separate occasions defendants violated his Eighth Amendment rights. Defendants wholly deny plaintiff's allegations. I will recount the relevant testimony of each witness and then set forth my findings of fact.

I. November 28, 2006

A. Plaintiff's Testimony

On November 28, 2006, plaintiff was an inmate at SCI-Graterford. Trial Tr. 18:2-3 (Pl. Test.) (Aug. 2, 2010). That morning, he was escorted from his cell in C block, id. at 64:18-19, to the internal security department and placed on a wooden bench in the hallway. Id. Aaron Washington, an inmate from C block, id. at 64:20-24, who was in the internal security department to provide a urine sample, sat down next to him on the bench. Id. at 22:1-2. The two inmates had a "general conversation" about why plaintiff was in the internal security department and "then . . . went on to talk about some other stuff that was on TV Friday night." Id. 22:2-5. During the conversation, plaintiff had his legs stretched across the hallway, leaving approximately twelve inches between his feet and the opposite wall. Id. 20:20-21:2; Trial Tr. 15:10-16:14 (Pl. Test.) (Aug. 3, 2010) (plaintiff demonstrating how he was seated). He claimed that during the conversation, Achey approached the two men sitting on the bench and, as he passed them, stated to plaintiff "[i]f you don't move your legs, I'm going to break them." Trial Tr. 22:7-8 (Pl. Test) (Aug. 2, 2010). Plaintiff later characterized Achey's statement slightly differently: "[h]e said, I'm going to fucking break [your legs]." Id. at 23:15-16. Although plaintiff claimed that he regarded Achey's statement as a threat to his life, id. at 23:16-17, he did not respond. Id. at 23:4-5.

Plaintiff, believing that Achey had sufficient room to pass, did not move his legs. Id. at 22:9-10; 23:11-12.. He testified that when Achey returned and saw plaintiff's legs in the same position, he stepped on plaintiff's left kneecap "trying to break [plaintiff's] leg forcefully and violently." Id. at 22:10-12. Plaintiff then stood up "because [his] knee was in pain." Id. at 22:13-14. At that point, McCusker punched plaintiff multiple times in his face and jaw, which caused plaintiff to fall downward toward the bench. Id. at 22:14-15. According to plaintiff, as he was falling McCusker attempted to grab the front of his shirt but Achey grabbed his shirt from behind and both officers "participated in slamming [him] to the floor." Id. at 22:16-20. While plaintiff was on the ground, Achey punched him in the back of his head and McCusker, though attempting to punch him in the face, succeeded only in hitting his shoulders and body. Id. at 22:21-25. The assault lasted for five minutes, during which Gonzalez, Thomas and Marshall watched without intervening. Trial Tr. 25:12-24 (Pl. Test) (Aug. 3, 2010). Afterwards, plaintiff was then lifted to his feet, slammed against the wall and taken to the medical department. Trial Tr. 22:24-25 (Pl. Test) (Aug. 2, 2010). Plaintiff testified that he limped all the way to the medical department. Trial Tr. 27:8-11 (Pl. Test) (Aug. 3, 2010).

B. Washington's Testimony

Washington was an inmate at SCI-Graterford on November 28, 2006. Trial Tr. 55:17-19 (Washington Test.) (Aug. 3, 2010). He knew plaintiff from "seeing him around [the prison]."

Id. at 55:14. On the morning of November 28, 2006, Washington was in the security department to provide a urine sample. Id. at 57:1-15. He testified that after providing a sample he was told to sit on the same bench upon which plaintiff was seated. Id. at 58:19-59:2. As they were sitting there, Achey came out of his office and "asked [plaintiff] to move his leg." Id. at 60:8-9. After plaintiff refused to move his legs, Achey stepped over them and stated "[i]f you don't have your legs moved when I come back, I'm going to break them." Id. at 61:6-8. Achey then walked toward the front of the security department. Id. at 61:16-20.

As Achey was returning to his office, he again stated to plaintiff "move your legs." Id. at 61:22-62:2. Plaintiff again refused to move his leg. Id. at 62:6. Achey then "stomped on [plaintiff's] leg a couple times." Id. at 62:8-9. McCusker ran to the scene and repeatedly punched plaintiff in his face and on his head. Id. at 63:1-5. Although Achey did not punch plaintiff, he stomped on plaintiff's leg "a few times" and pulled him off the bench as McCusker continued to punch him. Id. at 63:9-13. The officers then threw plaintiff to the ground, id. at 63:22-64:2, and several other officers "picked him up off the ground and escorted him out." Id. at 63:18-19. Washington never heard plaintiff threaten the officers and never saw him try to punch or kick the officers. Id. at 17-24.

C. Achey's Testimony

On November 28, 2006, Achey was employed as a corrections officer at SCI-Graterford. Trial Tr. 73:17-19 (Achey Test.) (Aug. 4, 2010). He was assigned to take urine samples from inmates. Id. at 73:22-25.

On the morning of November 28, 2006, Achey had been informed that plaintiff needed to provide an investigative urine sample. Id. at 74:10-11. Achey stepped out of his office and "ordered [plaintiff] to produce an investigative urine within two hours." Id. at 74:18-20. Plaintiff, in response, stated "[f]uck you. I ain't giving you no fucking urine." Id. at 74:22-23. Achey did not respond. Id. at 74:25-75:1. He instead returned to his office to print out the "urine results" that he had received that morning. Id. at 74:24-75:2. The printer was located near the front of the security department. Id. at 75:4-8. In order to get the printed results, Achey needed to walk past the bench upon which plaintiff was seated. Id. at 76:1-3. He testified that plaintiff was "lounging on the bench [with] his feet . . . extended in the hallway towards the opposite wall . . . ." Id. at 76:8-10. Despite plaintiff's position, Achey testified that he was able to walk past, id. at 13, and did so without incident. Id. at 76:13-18. After retrieving the urine results from the printer, Achey proceeded back toward his office. Id. at 76:20. This time, plaintiff kicked him in the leg as he passed the bench. Id. at 22-24. Plaintiff then stood up, which prompted McCusker to order him to sit back down on the bench. Id. at 77:4-6. Plaintiff initially complied but then stood up again. Id. at 77:6-7. McCusker and Achey "grabbed [plaintiff] to put him back on the bench." Id. at 77:7-8. As they attempted to return him to the bench, "he kind of slid off the end of the bench and landed on the floor." Id. at 77:8-10. While the officers were attempting to regain control over plaintiff, he kicked Achey several more times. Id. at 77:11-14. Achey and McCusker then escorted plaintiff back to his cell. Id. at 77:22-24. They reported to the sergeant in charge of plaintiff's cell block that "he [had] not see[n] medical." Id. at 78:4-5.

D. McCusker's Testimony

McCusker was employed as a corrections officer at SCI-Graterford on November 28, 2006. Trial Tr. 55:9-17 (McCusker Test.) (Aug. 4, 2010). He was assigned to the internal security department at the prison. Id. at 55:11-12.

On the morning of November 28, 2006, McCusker was ordered to obtain a urine sample from Washington. Id. at 56:18-24; 57:7-8. He obtained the sample and then escorted Washington to the waiting area outside of the security department. Id. at 57:15-17. The waiting room is separated from the hallway in which plaintiff was sitting by a mirrored door. Id. at 57:4-5. An individual standing in the waiting area would be unable to see into the hallway. Id. McCusker testified that he placed Washington in the waiting room because "the [inmate] count hadn't cleared yet, so there's no movement [allowed] in the institution. He would have had to wait [in the security department waiting room] until the internal count cleared [before returning] to his housing unit." Id. at 57:20-23.

After placing Washington in the waiting room, McCusker returned to the security department where he found plaintiff sitting on the bench in the hallway. Id. at 57:24-58:1. McCusker heard Achey tell plaintiff that he "[had] two hours to produce a urine sample." Id. at 57:25-60:1. Plaintiff responded to the request by stating "[f]uck you, I'm not going to give you any urine." Id. at 60:15-16. Achey went into his office and then, seconds later, returned to the hallway, walked past plaintiff and walked into the printer room at the end of the hallway. Id. at 60:19-25. As Achey passed by plaintiff on the way back to his office, McCusker observed plaintiff lunge at and kick Achey. Id. at 61:2-4. As plaintiff lunged, "he was coming up off the bench." Id. at 62:14. McCusker "grabbed [plaintiff] by his lapels [and] ordered him to sit back onto the bench, which he did under his own power." Id. at 62:15-16. McCusker then asked plaintiff "are you done?" Id. at 62:17. Plaintiff responded in the affirmative so McCusker let him go. Id. at 62:18. Upon being released, plaintiff immediately "came back up again off the bench towards [Achey] . . . ." Id. at 62:19-20. This time Achey and McCusker each grabbed one of plaintiff's arms and "put him back to the bench." Id. at 62:21-22. As McCusker ordered plaintiff to sit, "he hit the end of the bench and fell to the floor." Id. at 62:23-24. McCusker did not see plaintiff hit his head or face when he fell to the floor. Id. at 68:11-12. Upon notifying the shift commander of what had happened, McCusker and Achey were ordered to escort plaintiff to his cell. Id. at 63:9-10. When they got there, the officers notified the unit sergeant "that [plaintiff] had not been seen by medical at that point." Id. at 64:2-3.

E. Earl Thomas's Testimony

Earl Thomas*fn4 was employed as a corrections officer at SCI-Graterford on November 28, 2006. Trial Tr. 30:7-8 (E. Thomas Test.) (Aug. 4, 2010). He was assigned to the internal security department as a member of the search team. Id. at 30:1.

On the morning of November 28, 2006, Earl Thomas escorted plaintiff and his cellmate, Carl Whitehead, from their cell to the internal security department, where he placed plaintiff on a wooden bench in the hallway, id. at 35:13-16, and Whitehead on a bench around the corner. Id. 35:22-36:2. He then entered an office to complete his paperwork. Id. at 36:24-37:1. From the hallway, Earl Thomas heard a loud voice state "[w]ell, why did you kick me? Why did you kick me?" Id. at 37:7-8. He then heard "scuffling" outside the door of his office which prompted him to step into the hallway. Id. at 9-11. Upon entering the hallway, he saw plaintiff sitting on the floor. Id. at 37:15-19. McCusker and Achey were each holding one of plaintiff's arms and they were helping him to his feet. Id. at 37:18-19. When Earl Thomas saw that the officers had the situation under control, he immediately proceeded around the corner to where Whitehead was seated to prevent him from getting involved. Id. at 37:20-25. Earl Thomas testified that Whitehead was the only inmate other than plaintiff who was in the hallway at the time of the incident. Id. 38:1-3.

F. Marshall's Testimony

Marshall was employed as a corrections officer at SCI-Graterford on November 28, 2006. Trial Tr. 40:23-24 (Marshall Test.) (Aug. 4, 2010). He was assigned to the internal security department that day, where he worked from 6:00 A.M. to 2:00 P.M. Id. at 40:25-41:4. His partner was Earl Thomas. Id. at 42:1.

On the morning on November 28, 2006, Marshall and Earl Thomas escorted plaintiff and Whitehead to internal security. Id. at 46:4-8. Plaintiff was seated on a bench in the hallway and his cellmate was seated on a bench around the corner from him. Id. at 46:4-47:2. The benches were approximately six feet apart and there was no line of sight between the two men. Id. at 47:5-13. After placing the inmates on their respective benches, Marshall entered his office to do his paperwork. Id. at 47:23-48:4. While he was in the office, he heard a "little ruckus" in the hallway. Id. at 48:13. When he entered the hallway, he found Achey and McCusker picking plaintiff up and placing him back on the bench. Id. at 48:13-16.

G. Drumheller's Testimony

Theresa Drumheller is a registered nurse who has been employed by SCI-Graterford for more than ten years. Trial Tr. 70:15-20 (Drumheller Test.) (Aug. 3, 2010). At 7:10 A.M. on November 28, 2006, she examined plaintiff who reported that he had been "assaulted by two corrections officers." Id. at 75:6-7. Drumheller observed that plaintiff walked into the dispensary without any difficulty and had no visible bruising or swelling on his leg. See Pl.'s Ex.

48. She checked his vital signs which revealed that his heart rate and blood pressure were in the normal range. See id.; Trial Tr. 80:24-81:4 (Drumheller Test.) (Aug. 3, 2010). She observed "minimal swelling" on the left side of plaintiff's jaw, just below his ear. See Pl.'s Ex. 48; Trial Tr. 76:22-77:3 (Drumheller Test.) (Aug. 3, 2010). She also noted, however, that plaintiff was able to move his jaw freely and that he didn't have a broken jaw or any loose teeth. Trial Tr. 76:25-77:3 (Drumheller Test.) (Aug. 3, 2010). Plaintiff did not complain of any pain in his chest, shoulders, back or abdomen. Id. at 77:8. She told plaintiff that if he experienced any further symptoms he should submit a "sick call slip" to see the doctor the next day. Id. at 80:6-8.

H. Freeman's Testimony

Gia Freeman is a physician's assistant, who was employed from October 2005 until October 2007 at SCI-Graterford. Trial Tr. 85:8-17 (Freeman Test.) (Aug. 3, 2010). She worked from 8:00 A.M. to 4:00 P.M. on November 28, 2006. Id. at 86:3-5. At 8:25 A.M., she examined plaintiff, id. at 87:18-20, who claimed that he had been assaulted by corrections officers. Id. at 89:16-17. Freeman diagnosed plaintiff as suffering from "[m]uscular and skeletal pain that was due to trauma." Id. at 90:3. Trauma, according to Freeman, includes "any injury that may have occurred that wasn't natural. It could have been from an accident, fall, [or] assault [including a punch.]" Id. at 90:5-10. She prescribed 600 milligrams of ibuprofen to be taken twice a day for as long as plaintiff was in pain. Id. at 93:7-9.

II. December 15, 2006

A. Plaintiff's Testimony

In late 2006, plaintiff was housed on the E wing of J block. Trial Tr. 29:18-19 (Pl. Test.) (Aug. 2, 2010). J block is a prison building that is shaped like a cross. Pl.'s Ex. 44. Each arm of the cross contains two wings. Id. There are eight wings in total and each has been assigned a letter from A through H. Id. In the center of the cross is a room that inmates and prison officials refer to as "the bubble" because occupants can see into all eight wings. Trial Tr. 31:1-3 (Pl. Test) (Aug. 3, 2010) Plaintiff shared his cell with a cellmate. Id. at 28:21-23. He testified that "I told them, before they put me in [the cell], that I'm not going to be able to cope with no cellmate, so but they forced me in there . . . ." Id. at 32:13-15. He disputed, however, testimony by several witnesses that he threw his cellmate's property out of the cell. Id. at 32:16-17.

On December 14, 2006, he received "threats" from Andrew Thomas and "the guards."*fn5

Trial Tr. 51:16-19 (Pl. Test.) (Aug. 2, 2010). Plaintiff filed a grievance, complaining about such threats. Id. at 51:13-22.

The next day, he visited the medical department, which is outside of J block, to have his blood pressure checked. Id. at 33:10-11. Upon returning from his medical examination between 6:00 P.M. and 8:00 P.M., he entered J block through the entrance between A wing and H wing.

Id. at 33:10-11; id. at 49:14-15 (noting that the assault happened between 6:00 P.M. and 8:00 P.M.). His hands and his feet were in shackles and a chain bound his leg irons to his handcuffs. Id. at 36:18-20. Immediately upon entering the building, he observed Andrew Thomas and MacGreggor with their shirts off. Id. at 33:10-14. The two officers placed plaintiff into a small cell, which the prison uses as a barbershop, located just to the left of the main entrance to J block.

Id. at 33:15-22. Plaintiff waited in the barbershop for approximately five to ten minutes until Andrew Thomas, MacGreggor and Gavlik returned. Id. at 33:21-24. The three officers escorted plaintiff clockwise around the bubble. Id. at 33:23-25. Plaintiff, assuming that he was being returned to his cell, attempted to enter E wing when the trio reached the E wing gate. Id. at 33:23-34:1. At that point, Andrew Thomas grabbed plaintiff and then Gavlik and MacGreggor "reacted" and "[plaintiff] was slammed to the floor." Id. at 34:1-3. They dragged plaintiff approximately ten feet from the E wing entrance to the adjacent D wing entrance. Id. at 34:4-6. When they arrived at the D wing entrance, plaintiff was "knocked up against the door." Id. at 34:5-6. Then, while he was on the floor, Gavlik and MacGreggor hit and kicked him and Andrew Thomas punched him in the face. Id. at 34:6-8. At this point a fourth officer, who plaintiff was unable to identify, joined the group. Id. at 38:18-19. The four officers then lifted plaintiff into the air and carried him to cell D-12, which was located ...

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