The opinion of the court was delivered by: (Judge Caputo)
Plaintiff, Jeffrey Clark, an inmate presently incarcerated at the United States Penitentiary, in Lewisburg, Pennsylvania (USP-Lewisburg), filed this Bivens-styled*fn1 civil rights action pursuant to 28 U.S.C. § 1331 asserting a conspiracy claim and an Eighth Amendment excessive use of force claim against several USP-Lewisburg officials.*fn2 Specifically, Mr. Clark alleges that on June 25, 2009, after having an altercation with his cellmate (Joe Toney), Officer Kulago and Lt. Fleming used excessive force against him while escorting him to a basement holding cell. Doc. 1, Compl. at pp. 4-5.*fn3 Specifically, he avers CO Kulago slammed his face into a wall and broke his arm, and that Lt. Fleming choked him and spit on him. Id. Jeffrey Clark also alleges that after Physician Assistant (PA) Hemphill advised Lt. Galletta that Mr. Clark needed additional medical care for his injuries, Lt. Galletta "denied that request". Id. at p. 5. Jeffrey Clark claims to have been denied medical treatment until June 29, 2009 when x-rays revealed his arm was broken. Id. Although named as defendants, Unit Manager Brewer and USP-Warden Bledsoe are not mentioned in the Complaint.
Presently before the Court is the defendants' Motion to Dismiss and for Summary Judgment. Doc. 25, Mot. to Dismiss and for Summ. J. The motion argues: (1) Jeffrey Clark's conspiracy claim should be dismissed for failure to state a claim; (2) Mr. Clark has failed to demonstrate the personal involvement of either defendant Bledsoe or Brewer; and (3) there is no material fact in dispute with regard to Mr. Clark's claims of excessive use of force claim against the defendants as he admits to have injured himself during his earlier altercation with inmate Toney; and finally that, (4) Plaintiff fails to state a claim of deliberate indifference to his serious medical need against Lt. Galletta as he received treatment the day he was injured. In addition to the declaration of many non-defendants, and portions of Mr. Clark's medical records, Defendants submit a videotape of Mr. Clark's removal from the G-block basement holding cell prior to being escorted to another cell in a different location of the facility in support of their motion. Jeffrey Clark denies ever admitting that anyone other than CO Kulago broke his arm. Doc. 37, Opp'n to Defs.' Summ.
J. Mot. at p. 2. He also alleges the events of the submitted video tape all occurred after Officer Kulago, and Lt. Fleming assaulted him while escorting him to the G-block basement holding cell. Id. Mr. Clark adamantly denies any involvement with a use of force team prior to his placement in the basement holding cell. Id. at p. 7. Additionally, he notes it was only when the use of force team removed him from the holding cell, in preparation to take him to his new housing location, that RN DeLeon (a non-defendant) first medically assessed him, and then only briefly. Id. at 3. He denies receiving any treatment at that time. Id. at pp. 8 - 9. Jeffrey Clark also states that he seeks to hold Warden Bledsoe and Unit Manager Brewer liable because they are responsible for the facility or the Special Management Unsit, where the general level of violence is unacceptable. Id. at pp. 12-15.
For the reasons that follow, the defendants' motion to dismiss and for summary judgment will be granted in part, and denied in part. As there are genuine issues of material fact concerning whether excessive force was used by CO Kulago and Lt. Fleming against Mr. Clark prior to his placement in the basement cell, the defendants' motion for summary judgment will be denied. However, as there is no dispute of fact as to the alleged conspiracy or denial medical of medical care claim, these claims will be dismissed. Likewise, as there is no assertion of the personal involvement of Brewer or Bledsoe in the original Complaint, they will be dismissed from the action.
On a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted). A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), giving the defendant "fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)). Although detailed factual allegations are not required, Twombly, 550 U.S. at 93, 127 S.Ct. at 2200, the complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court " 'is not bound to accept as true a legal conclusion couched as a factual allegation.' " Id., 127 S.Ct. at 1965 (quoted case omitted).
Under Fed.R.Civ.P. 56, the moving party is entitled to summary judgment "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)(2). The party opposing summary judgment "may not rely solely on allegations or denials in its own pleadings ...." Fed.R.Civ.P. 56(e)(2). Nor may it rely on statements in briefs. Smith v. Kyler, 295 F. App'x. 479, 481 (3d Cir.2008) (per curiam) (nonprecedential) (quoting Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511-12 (3d Cir. 1994)). "[R]ather, its response must-by affidavits or as otherwise provided in [Rule 56]-set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). "'The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Colwell v. Rite Aid Corp., 602 F.3d 495, 500-01 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
From the pleadings, declarations and exhibits submitted therewith, the following facts can be ascertained as undisputed.
On June 25, 2009, Defendant Kulago and Officer Carpenter escorted Jeffrey Clark to a new cell on the G-block housing unit where inmate Toney was housed. Doc. 34, Defs.' Statement of Material Fact (DSMF) at ¶ 3. Defendant Kulago carried Mr. Clark's personal property to the new cell. Id. at ¶ 4. Per procedure, Jeffrey Clark was handcuffed behind his back while escorted to his new cell where inmate Toney, who was also handcuffed behind his back, was already located.
Once placed in the cell, Jeffrey Clark's handcuffs were removed first as he placed his hands through an opening in the cell door. Id. at ¶¶ 6 - 10. Once Mr. Clark's restraints were removed, inmate Toney was ordered to come to the door so Officer Carpenter could repeat the procedure and remove Toney's handcuffs. Before inmate Toney's handcuffs were removed, Mr. Clark attacked inmate Toney with a weapon, stabbing him in the back and punching him in the head. Id. at ¶¶ 16-17. Officer Carpenter immediately called for assistance and ordered the inmates to stop fighting. Id. at ¶ 18. After ignoring several orders from Officer Carpenter, Mr. Clark stopped assaulting Toney, flushed a weapon down the toilet, and then submitted to hand through the door again to be handcuffed. Id. at ¶¶ 20 - 23. Prior to placing Mr. Clark in the cell with Toney, there was no indication that Clark posed a risk to Toney. Id. at ¶ 24.
Jeffrey Clark was removed from the cell and escorted to a holding cell in the basement of G-block by Lt. Fleming, Lt. Galletta and Senior Officer Kulago. Id. at ¶ 28. Lt. Galletta did not observe Lt. Fleming and Officer Kulago threaten or abuse Clark. Id. at ¶ 29.
At approximately 11:02 a.m., a use of force team was assembled to move Jeffrey Clark from the basement holding cell in G-block to I-block due to his continued disruptive behavior. Id. at ¶¶ 34 - 35. A use of force team is involved in a calculated use of force to move an inmate, normally five staff members are involved in securing the inmate, a Health Services staff member is present to check restraints and assess the inmate medically, and a Lieutenant supervises the move. Doc. 34-2, Exh. D, Dreese Decl. at ¶ 4. Lt. Galletta was the supervising Lieutenant of the use of force team.*fn4 Doc. 34-2, Exh. B, Galletta Decl. at ¶ 2. D. DeLeon, R.N., was the Health Services staff member assigned to participate in the calculated use of force event moving Mr. Clark from the holding cell in G-Block housing unit to a cell in I-Block. Doc. 34-2, Exh. E, DeLeon Decl. Nelson Dreese, a Bureau of Prisons (BOP) Special Investigative Support Technician at USP-Lewisburg operated the video camera that filmed the use of force team's interaction with Mr. Clark. Dreese Decl. at ¶ 2 and Attach. 1, DVD.
Mr. Clark was non-combative when the use of force team arrived at his G-block holding cell to place him in ambulatory restraints. Exh. D, Attach. 1, DVD. The video footage shows Mr. Clark was removed from his cell and held by several officers while he was stripped searched, redressed, and placed in ambulatory restraints. Id. Jeffrey Clark was talking and cooperative throughout the process of the strip search and application of the ambulatory restraints. He did not complain of neck or head discomfort. Id. He did, however, repeatedly state that his right arm hurt. Id.; DSMF at ¶ 38. Once placed in restraints, Jeffrey Clark was medically assessed and his restraints were checked for proper application. Exh. D, Attach. 1, DVD; DSMF at ¶ 37. The following exchange took place between Nurse DeLeon and Mr. Clark.
Clark: "Will you look at my arm, sir? I think it's broke right there, man."
DeLeon: "Your arm is broke?"
DeLeon: "What happened? What happened to your arm?"
Clark: "The incident that just took place, man." DeLeon: "From ...