The opinion of the court was delivered by: (Judge Rambo)
Plaintiff Bryan Aponte Luciano ("Luciano"), an inmate currently confined at the State Correctional Institution in Somerset, Pennsylvania ("SCI-Somerset"), filed this civil rights complaint pursuant to 42 U.S.C. § 1983 on July 15, 2009, as amended on April 14, 2010. (Doc. 38.) In the amended complaint, Luciano alleges an access to the courts claim and three separate excessive use of force claims against several prison officials from his former place of confinement, the State Correctional Institution in Coal Township, Pennsylvania ("SCI-Coal Township").*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 granted in favor of Defendants.
The following facts are related to Luciano's claims. The court notes any factual disputes between the parties by presenting both parties' contentions.
On June 6, 2005, Luciano pleaded guilty to first degree murder in the Lackawanna County Court of Common Pleas. (Doc. 76 ¶ 43.) He was transferred to SCI-Coal Township on August 31, 2005. (Id. ¶ 30.) From January 8, 2008 through October 14, 2008, Luciano was housed in SCI-Coal Township's Restricted Housing Unit ("RHU"). (Id. ¶ 32.) Luciano filed the instant civil rights action stemming from alleged incidents occurring during his stay in the RHU. (Id. ¶ 2.) Remaining are a denial of access to the courts claim against Defendant Lindberg, and three separate excessive use of force claims against Defendants McCoy, Madden, and Fago. (Id. ¶ 3.)
The Pennsylvania Department of Corrections ("DOC") has three different grievance or administrative remedy processes which collectively provide an inmate with a forum to challenge every aspect of confinement. (Id. ¶ 8.) Those policies are: (1) the Inmate Discipline Policy, DC-ADM 801; (2) the Inmate Grievance Policy, DCADM 804; and (3) the Administrative Custody Policy, DC-ADM 802. (Id. ¶ 9.) Within the DC-ADM 804, the DOC has established a three-step inmate grievance system so that inmates have an avenue to seek resolution to specific problems. (Id. ¶ 19.) Pursuant to DC-ADM 804, all inmates under the jurisdiction of the DOC shall have access to a formal procedure for the resolution of problems or other issues of concern arising during the course of confinement. (Id. ¶ 20.) An inmate may file a grievance within fifteen (15) working days after the events upon which the claims are based. (Id.) RHU inmates are not precluded from filing grievances under DC-ADM 804, related to issues impacting their quality of life, other than the reasons for the RHU confinement. (Id. ¶ 18.)
After the receipt of the initial review decision, an inmate may file an appeal to the Facility Manager within ten (10) working days. (Id. ¶ 21.) Once an inmate receives the Facility Manager's decision, he may file a final appeal to the Secretary's Office of Inmate Grievances and Appeals within fifteen (15) working days. (Id. ¶ 22.) If a grievance is determined to be improperly submitted, it is assigned a grievance number and returned to the inmate unprocessed. (Id. ¶ 23.) An improperly submitted grievance, if resubmitted, must be resubmitted under the same grievance number within five (5) working days. (Id. ¶ 24.) An appeal to final review cannot be completed unless an inmate complies with all established procedures. (Id. ¶ 25.)
In this case, Kandis Dascani, Assistant to SCI-Coal Township's Superintendent, reviewed the grievance records filed by Luciano from January 8, 2008 to October 14, 2008, and found the following three grievances relevant to the remaining claims. (Id. ¶¶ 26-29, 33.)
Grievance number 236205, filed by Luciano on July 15, 2008, accused
Defendant Lindberg, in part, of refusing to make copies which resulted
in the Pennsylvania Superior Court closing his case.*fn2
(Id. ¶ 34.) According to Defendants, an initial review
response was issued denying the grievance, and an appeal was taken to
the Superintendent, who upheld the initial response. (Id.) The final
appeal on this grievance was dismissed as untimely and for containing
reference to the UCC. (Id.) Luciano disputes this summary, instead
stating that a "correct interpretation of the file is that the
grievance was timely filed on July 15, 2008, denied July 25, 2008,
appealed July 30, 2008, appeal denied August 7, 2008 and appealed to
the third level on August 18, September 9 and September 17,
2008.*fn3 (Doc. 82 ¶ 34.)
Grievance number 220052, filed by Luciano on February 28, 2008, accused Defendant McCoy of being non-responsive to an alleged use of excessive force by other officers. (Doc. 76 ¶ 35.) According to Defendants, an initial review response was issued denying the grievance, and an appeal was taken to the Superintendent, who likewise denied it as untimely. (Id.) Luciano disputes this summary, instead stating, The grievance was filed on February 28, 2008, denied on March 21, 2008, filed "without action" in the Secretary's Office of Inmate Grievances based on a failure to appeal to the Facility Manager on May 16, 2008,[ ] appealed to the Facility Manager on May 30, 2008 and notated that "all these grievances were acted upon by Central Office, final review, no further action is needed" by the Facility Manager (Superintendent) and then it is clear that further appeals were taken to the Secretary's Office of Inmate Grievances on June 3, 2008, filed "without action" on June 9, 2008, on June 18, 2008 filed "without action" on July 2, 2008, on July 7, 2008 (discussed in Superintendent's memo July 9, 2008) and denied in the Secretary's Office for UCC references on an undiscerable [sic] date. (Doc. 82 ¶ 35.)
According to Defendants, there is no record of any grievance being filed by Luciano relating to Defendant Madden and a use of excessive force on March 26, 2008. (Doc. 76 ¶ 37.) Luciano disputes this statement, instead stating,
The testimony in this case shows that after the assault complained of on March 26, 2008, the Plaintiff Luciano was stripped naked, thrown into an unsanitary cell with no running water for one month, and deprived of all ability to file grievances intentionally by the individuals perpetrating the assault. Moreover, Plaintiff Luciano, immediately upon having the capability of filing a grievance, prepared and filed one which was not accepted on the basis that it was untimely (leaving no written record). The inference being that the grievance was destroyed by the very same individuals that perpetrated the assault. Under these circumstances, Plaintiff Luciano did not have access to a grievance procedure and, therefore, exhaustion of remedies is not required. (Doc. 82 ¶ 37) (citations omitted).
Grievance number 241268, filed by Luciano on August 20, 2008, accused Defendant Fago and others of excessive force. (Doc. 76 ¶ 36.) According to Defendants, an initial review response was issued denying the grievance, and then an appeal was taken to the Superintendent, who upheld the initial response. (Id.) The final appeal on this grievance was dismissed for containing reference to the UCC. (Id.) Luciano disputes this summary, instead stating, "The record shows a timely grievance, a denial on September 11, 2008 (30 days later), a timely appeal to the Facility Manager on September 14, 2008 (3 days), denial by the Facility Manager on September 17, 2008, a timely appeal on September 23, 2008, and a denial on October 9, 2008, because of reference to the UCC." (Doc. 82 ¶ 36.)
Additionally, the DOC currently employs Leilani Sears as an Administrator Officer 2 in the Secretary's Office of Inmate Grievances and Appeals ("SOIGA"). (Doc. 76 ¶ 39.) Officer Sears reviewed the grievance appeal records for those grievances filed by Luciano from January 8, 2008 through October 14, 2008, and determined that he did not properly appeal any grievances filed during this time period through to SOIGA, the final stage of appeal. (Id. ¶ 40.) Luciano disputes this fact, in part, instead claiming that an effective grievance procedure was not available to him for some of his claims. (Doc. 82 ¶ 40.)
The court will now set forth the specific material facts with respect to the four claims in Luciano's second amended complaint, again noting any factual disputes between the parties.
1. Access to the Courts Claim
Luciano alleges Defendant Lindberg, SCI-Coal Township's librarian, caused his appeal that was pending in the Pennsylvania Superior Court to be dismissed by refusing to make copies of a request for an extension of a deadline. (Doc. 76 ¶ 4.) By way of background, the court notes the following. Luciano filed a petition for post-conviction collateral relief ("PCRA") following his June 2005 guilty plea in the Lackawanna County Court of Common Pleas. (Id. ¶ 44.) Thereafter, Luciano's attorney was permitted to withdraw representation. (Id. ¶ 45.) On June 22, 2007, Luciano's PCRA petition was denied. (Id. ¶ 46.) Luciano appealed to the Pennsylvania Superior Court. (Id. ¶ 47.) Luciano's appeal was dismissed by the Superior Court on May 1, 2008, for failure to file a brief. (Id. ¶ 48.)
Before the dismissal, Luciano requested three extensions of time to file a brief, which the Superior Court granted. (Id. ¶ 49.) Luciano's fourth request for an extension of time was denied by the Superior Court prior to dismissing his appeal. (Id. ¶ 50.) Luciano was provided with copying services at SCI-Coal Township during the relevant time period, and was able to file four requests for extensions of time. (Id. ¶¶ 51, 52.) None of Luciano's requests for extension of time to the Superior Court accuse Defendant Lindberg of hindering his ability to prosecute his appeal. (Id. ¶ 53.)
2. February 18, 2008 Incident
Luciano alleges that on February 18, 2008, Defendant McCoy was present and failed to intervene and stop an assault on Luciano by other corrections officers. (Id. ¶ 5.) Defendants assert the following background with respect to this incident. Defendant McCoy was a Lieutenant at SCI-Coal Township on February 18, 2008, serving as the RHU Lieutenant on the 6:00 a.m. to 2:00 p.m. shift. (Id. ¶¶ 54, 55.) Defendant McCoy does not recall any usual incident or assault of Luciano on that date and time period. (Id. ¶ 56.) Further, there is no documentation or recording of any incident on February 18, 2008, as described by Luciano. (Id. ¶ 57.) The RHU logbook and inmate log for Luciano on February 18, 2008, do not contain any notation of the alleged incident. (Id. ¶ 58.)
In turn, Luciano alleges that on February 18, 2008, he was removed from his cell on the second floor by two officers in order to clean his cell. (Id. ¶ 63.) He alleges that Defendant McCoy was on the first floor in an office at the time. (Id. ¶ 64.) Luciano is not certain that Defendant McCoy could hear his call for help. (Id. ¶ 65.) He alleges that Defendant McCoy left the RHU pod when Luciano was placed in a shower cell, and returned as he was escorted back to his cell. (Id. ¶¶ 66, 67.) He further alleges that he was pushed, lifted, smashed into a wall and thrown into his cell, causing swelling in his face and cuts to his arms. (Id. ¶ 68.) Luciano alleges that at that time Defendant McCoy moved toward the stairs, and did not participate in the assault. (Id. ¶¶ 69, 70.) Luciano alleges that this incident at his cell door lasted ten (10) seconds. (Id. ¶ 71.)
Luciano had an outside medical appointment on February 19, 2008, that had been previously scheduled on January 19, 2008. (Id. ¶ 59.) The record from the outside medical appointment noted that Luciano complained of some pain from intermingling or cuffing by the guards. (Id. ¶ 60.) However, there is no notation of visible injury to Luciano's face or arms. (Id. ¶ 62.) Luciano's exam was negative. (Id. ¶ 61.)
Luciano disputes Defendants' material facts, in part, and instead sets forth the following account. (See Doc. 82 ¶¶ 54-71.)
The McCoy incident occurred on or about February 18, 2008. Luciano was held in the second tier, Cell 16, when a prisoner in another cell flooded his cell and contiguous cells with water. Luciano was handcuffed behind his back, attached to a leash, removed from his cell and, from the actions of the guards, became fearful that he was going to be injured or killed. Lt. McCoy was on the cell block within sight and hearing range and Luciano called to him asking him to help and to control the guards that had leashed him. As he was being moved by these guards, Luciano was yelling to Lt. McCoy. Luciano saw Lt. McCoy on the lower tier and was certain Lt. McCoy knew that Luciano was in the process of being assaulted.
Lt. McCoy did not do anything and he and another guard named Procoppio laughed while Luciano was being assaulted by Butts and another correctional officer. Butts slammed Luciano against the wall and Lt. McCoy saw it. Lt. McCoy also would have heard it because Luciano was screaming and calling McCoy's name. Lt. McCoy would have also been able to see that when Luciano was transferred from his cell a large unidentified guard was continually pulling Luciano up in the air with the leash causing great pain. Luciano testified Lt. McCoy could see exactly what was going on.
Luciano requested medical care, he talked to the "Chief Commander," the Superintendent, everybody he could talk to on all three shifts including Lt. McCoy.
Luciano was taken to a doctor at Geisinger Clinic for a scheduled visit the next day and reported his injuries from the encounter with the guards and told the Geisinger doctor what occurred.
Luciano talked to numerous people to obtain a grievance slip and testified he filed a grievance. The record shows that Grievance 220052 was filed on February 28, 2008 against Defendant McCoy for being unresponsive to the use of excessive force by other officers. It was denied by SA Moyer CO3 on March 21, 2008 (Grievance 215434) and appeal to the Secretary's Office of Inmate Grievances resulted in a form being generated on May 16, 2008 designated "file without action" because it was not appealed to the Facility Manager. Most importantly, on May 30, 2008 a form appears in the file containing the notation "all these grievances were acted upon by Central Office, final review, no further action is needed, signed Supt. 5/30/2008." This indicates exhaustion and that no further appeals will be considered. Another attempt at appeal to the Superintendent was dated June 3, 2008 and a final appeal to the Secretary's Office of Inmate Grievances was denied on June 9, 2008, with the checked off reason being "you have not yet appealed this issue to the Facility's Manager." On June 18, 2008, Luciano wrote to the Secretary's Office of Inmate Grievance and Appeals calling to their attention that he had received the file back without an action sheet and indicating that he had appealed to the Superintendent and that he enclosed a copy of the appeal to their office citing the indication that "all those grievances were acted upon by the Central Office" by the Superintendent and asking for a better resolution. Another "file without action" checkoff form was returned to Luciano on July 2, 2008 with the blank checked "you have not yet appealed this issue to the Facility Manager." On July 7, 2008, Luciano again attempted to appeal to the Superintendent for a resolution of this specific grievance and other grievances and on July 9, 2008 the Superintendent wrote back indicating that that specific grievance was denied as being untimely submitted since the initial response is dated March 21, 2008.
On July 22, 2008, Luciano wrote to the Secretary's Office of Inmate Grievances again complaining about the beatings and a "file without action" checkoff slip with reason K checked states that the correspondence "is being filed without action due to the fact that you included UCC references in your document." (Doc. 81 at 8-10) (citations omitted).
3. March 26, 2008 Incident
Luciano alleges that on March 26, 2008, officers and/or Defendant Madden were involved in an incident concerning the return of Luciano's food tray, whereupon Luciano was sprayed in the face with OC (pepper) spray and then taken to a holding cell and assaulted. (Doc. 76 ¶ 6.) Defendants assert the following background with respect to this incident. Defendant Madden was RHU Lieutenant at SCI-Coal Township on March 26, 2008. (Id. ¶ 72.) On that date, Luciano broke a food tray. (Id. ¶ 73.) Further, Luciano threw an unknown liquid substance at an officer. (Id. ¶ 74.) As a result, Defendant Madden prepared a team of officers, an extraction team, to remove Luciano from his cell. (Id. ¶ 75.) At his cell, Luciano refused orders to be cuffed. (Id. ¶ 76.) Defendant Madden then directed CO Seedor to use OC (pepper) spray two times. (Id. ¶ 77.) At that point, Luciano allowed himself to be cuffed and transferred to another cell. (Id. ¶ 78.) While being escorted, Luciano complained that he could not breathe. (Id. ¶ 83.) However, a nurse noted that he had no difficulty breathing. (Id. ¶ 84.) This incident was recorded by a video camera. (Id. ¶ 79.) It was noted afterwards that Luciano had superficial scratches but no bleeding. (Id. ¶ 82.) Luciano was issued three misconducts related to this incident. (Id. ¶ 85.) Luciano alleges that Sgt. Ritchey*fn4 sprayed him four or five times with the OC (pepper) spray. (Id. ¶ 86.) However, Defendants assert that Sgt. Ritchey did not administer the OC (pepper) spray and in fact was not on the extraction team. (Id. ¶¶ 80, 81.) Luciano also alleges that eight or nine officers opened his cell door and assaulted him, and dragged him on the floor. (Id. ¶ 87.) Defendants assert that the video recording does not support Luciano's allegations related to this incident. (Id. ¶ 88.)
Luciano disputes Defendants' material facts, in part, and instead sets forth the following account. (Doc. 82 ¶¶ 72-88.)
The incident involving Defendant Madden occurred on March 26, 2008. The Plaintiff Luciano appealed to Lt. Madden because a Sgt. Ricci apparently had it in for the Plaintiff and was tampering with his food or other necessities[ ] and the Plaintiff asked Lt. Madden to intervene and protect him from Sgt. Ricci, who Luciano believed intended to eventually do serious bodily harm to him. The Plaintiff was also having an asthma attack and the COs put his asthma pump right outside the cell door in an apparent taunting maneuver. The Plaintiff became angry and refused to return his food tray. Lt. Madden and Sgt. Ricci came to Luciano's cell again and asked him why he would not return the food tray. Luciano told Lt. Madden that he needed medical treatment and Lt. Madden demanded the return of ...