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Pierre Cidone v. C.O. Blume

June 16, 2011

PIERRE CIDONE,
PLAINTIFF
v.
C.O. BLUME, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

Plaintiff Pierre Cidone ("Cidone"), an inmate currently incarcerated at the United States Penitentiary at Hazelton in Bruceton Mills, West Virginia, commenced this action pro se by filing a civil rights complaint pursuant to the provisions of 42 U.S.C. § 1983. (Doc. 1.) Cidone names the following Defendants, all of whom were employed at Cidone's former place of confinement, the Lackawanna County Prison ("LCP") in Scranton, Pennsylvania: Correctional Officer Blume; Correctional Officer Sedlack; Correctional Care Services; and Captain Kazinetz. In the complaint, Plaintiff asserts that Defendants Blume and Sedlack used excessive force upon him during an altercation in violation of the Eighth Amendment, and Defendants Kazinetz and Correctional Care Services failed to respond to his grievances and treat his injuries, respectively.*fn1

Before the court is a motion for summary judgment, filed on behalf of Defendants. (Doc. 73.) For the reasons set forth below, the motion for summary judgment will be denied as to Defendants Blume, Sedlack, and Correctional Care Services, and will be granted as to Defendant Kazinetz.*fn2

I. Background

In addressing the instant motion, the court first will set forth the relevant facts and procedural history. In setting forth the relevant facts, the court will note any factual disputes between the parties by presenting both parties' contentions.*fn3

A. Facts

On September 22, 2007,*fn4 Officer Blume and Correctional Officer Talutto performed a search of Cidone's cell.*fn5 (Doc. 78 ¶ 5; Doc. 83-1 ¶ 2.) At some point, Officer Sedlack replaced Officer Talutto in the cell. (Doc. 83-1 ¶ 3.) During the search, contraband prescription medications were found in the cell. (Doc. 78 ¶ 5, Doc. 83-1 ¶ 6.) When Officers Blume and Sedlack questioned Cidone about the contraband, Cidone attempted to force his way out of the cell, pushing and punching them in the process. (Id.) While the Officers attempted to gain control of Cidone, he struck both of them, punching one in the face and kicking another in the head.*fn6 (Id.)

Cidone provides a different account of the cell search. (Doc. 83-1.) He counters that during the search Officer Blume pushed him against the cell wall "with his hand closed into a fist" and struck Cidone in the face, causing an injury. (Doc. 83-1 ¶ 10.) Officer Sedlack then grabbed his legs, causing him to fall forward onto the floor. (Id. ¶ 11.) At that time Cidone yelled, "He's not resisting!" but Officer Sedlack placed him in handcuffs and held him down while Officer Blume kicked Cidone in the face. (Id. ¶ 12.) While he was kicking Cidone, Officer Blume asked, "Are you fucking done fucking around?" and Cidone responded, "Why are you kicking me in the face?" (Id. ¶ 13.) Officer Blume then stated, "You can file a lawsuit against me like your buddy inmate Williams did and inmate Williams' lawsuit didn't make it far in court." (Id. ¶ 14.)

The parties agree that after the search a Code Blue was called into the Delta T-7 Unit and several Officers and other staff members responded. (Doc. 78 ¶ 6; Doc. 83-1 ¶ 15.) Defendants assert that Cidone was subdued and handcuffed at that time and then taken to a camera cell and placed on a behavioral watch. (Doc. 78 ¶ 6.) Two nurses from LCP's Medical Department examined both Officers and determined they were both "okay." (Doc. 83-1 ¶ 16; Doc. 83-1 at 6, Misconduct Report, Page 2.) In addition, Cidone was examined by a nurse, who noted in an incident report the following: "Evaluated [Cidone's] [small] cuts to lower lip. No sutures needed." (Doc. 75 at 5.) Cidone counters that the nurses examined him and found wounds to his mouth area, a black eye, and a nose injury.*fn7 (Doc. 83-1 ¶ 17.) There is nothing in the record indicating that medical treatment was performed for a black eye or a nose injury to Cidone.*fn8

Further, both Officers Blume and Sedlack filed misconduct reports relating to the incident.*fn9 In his report, Officer Blume recounted the following facts: While searching T-7 on a tip, several pills were found hidden in Mr. Cidone's property. Also found hidden in a mattress was a radio and headphones. The brown mattress was removed to Delta control area to do a more detailed search. At this time C.O. Talutto had to leave T-7 and C.O. Sedlack entered T-7 to assist in the completion of the cell search. It was at this time C.O. Sedlack unwrapped several pieces of toilet tissue that were used to hide approx. 13 pills. Sgt. Masci and nurses were called to Delta to identify the medication. At this time Mr. Cidone tried to push his way out of T-7. When C.O. Blume told him to go in, Cidone pushed C.O. Blume, then punched, hitting me (C.O. Blume) in the cheek. Inmate was put on the ground after a brief scuffle which resulted in C.O. Sedlack being kicked in the head. Inmate was forced into compliance using an open hand strike to stop him from punching or kicking C.O.s Blume and Sedlack. A "Code Blue" was called and inmate was placed in G-6, checked by the nursing staff for a wound to his mouth/lip area. C.O.s Blume and Sedlack were checked by Medical. Both are O.K. (Doc. 1-2 at 9, 11.) Officer Sedlack offered the following account in his misconduct report:

At app. 14:35 hrs, during cell search of Delta T-7 a numbers of pills were found in property. At this point inmate was informed pills would be taken to medical and report written. At this time Officer Blume asked I/M to lock up. It was at this point he refused, saying he did not have his mattress. He was told it has to be searched and would be returned later. Officer again asked I/M to lock up. It was then I/M Cidone pushed Officer Blume. Officer Blume then informed I/M to keep his hands to himself. At that being said, I/M Cidone took a swing at Officer Blume, hitting him in face. At this point I, Officer Sedlack, went for I/M legs while Officer Blume had inmate against wall still resisting. Code Blue was called. Officers responded. Officer Sedlack was kicked on R side of head and punched . . . . Inmate taken down. Cuffed. Medical called.

(Id. at 10.)

B. Procedural History

Cidone initiated this action on October 16, 2007. (Doc. 1.) Along with the complaint, Cidone also filed a motion for leave to proceed in forma pauperis. (Doc. 4.) On November 26, 2007, the court granted Cidone's motion for leave to proceed in forma pauperis and directed service of the complaint on the Defendants named therein. (Doc. 10.)

On December 27, 2007, summons with respect to all Defendants were returned executed. (See Doc. 12.) After a lengthy period of time of inaction or delay by the parties,*fn10 Defendants filed a motion for summary judgment, seeking dismissal of Cidone's complaint on the basis that he failed to exhaust his administrative remedies related to his claims prior to filing this action. (See Docs. 37-39.) In a memorandum and order dated November 9, 2009, the court denied the motion for summary judgment based on Defendants' failure to submit any evidence in support of their affirmative defense that Cidone failed to exhaust his administrative remedies. (See Doc. 45.) The court also directed ...


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