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Gary W. Barbour v. Allegheny County

October 5, 2012

GARY W. BARBOUR,
PLAINTIFF,
v.
ALLEGHENY COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF Nos. 40, 55

MEMORANDUM OPINION AND ORDER

This case is before the Court on the Motions to Dismiss filed by Defendant Allegheny County (ECF No. 40) and Defendants Coulter, Mazzocca, McGovern, Metz, Smarra, Springel, Williams and Zoller (ECF Nos. 55, 57). Plaintiff has filed Briefs in Opposition to the pending Motions (ECF Nos. 44, 63). After careful consideration of the submissions of the parties, the Motions will be denied.

I.Background

On October 7, 2011, Plaintiff filed a Complaint pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983. (ECF No. 1.) With leave of Court, Plaintiff filed an Amended Complaint on April 4, 2012. (ECF No. 33.) Plaintiff's claims stem from incidents that allegedly occurred following his attempted escape from the Allegheny County Jail on April 6, 2010. The Amended Complaint identifies the following Defendants: Allegheny County, Major James Donis ("Donis"); Sgt. Andrew J. Coulter ("Coulter"); C.O. Domenic D. Mazzocca, Jr. ("Mazzocca"); Cpt. James F. McGovern, Jr. ("McGovern"); C.O. Arii Metz ("Metz"); Sgt. August J. Smarra ("Smarra"); C.O. Scott Springel ("Springel"), Sgt. Carmelita D. Williams ("Williams"), and Sgt. Albert A. Zoeller ("Zoeller"). The individual Defendants are sued in their individual capacities, only. The Amended Complaint avers ten Counts and Defendants move to dismiss all Counts against them for various reasons.

II.Plaintiff's Allegations

A.The Assault

According to Plaintiff's Amended Complaint, a Code Red indicating a possible inmate escape was issued at the Allegheny County Jail ("ACJ") on the evening of April 6, 2010. (ECF No. 33 at ¶ 17.) Personnel at the ACJ suspected Plaintiff of attempting to escape. Id. During the next three hours, the individual Defendants and other personnel communicated with each other directly and by telephone and radio as they searched the facility. Id. at ¶ 18. Plaintiff alleges that during these communications, the individual Defendants reached a common agreement or understanding to physically batter him as punishment for attempting to escape. Id. at ¶ 19. Presumably Defendant Smarra apprehended Plaintiff in the ACJ's ventilation system near the employee parking lot, an unauthorized area for inmates. Id. at ¶ 20. Plaintiff contends that once he was seen, he immediately laid down on his stomach with his arms extended and repeated to Smarra: "I'm not resisting; I'm not resisting." Id. at ¶ 21. Smarra then grabbed Plaintiff and removed him from the ventilation duct. Id. at ¶¶ 21, 23. After that, Smarra allegedly threw Plaintiff through an opening in the ventilation panel, which caused him to drop three feet to the concrete floor in a mechanical room, then he continued to push Plaintiff into the walls and bounce him off nearby equipment. Id. at ¶¶ 23-24. Plaintiff landed in the doorway with his abdomen across a metal angle iron that formed the bottom part of the frame. Id. at ¶ 24. While Plaintiff was lying on the floor with his abdomen stretched across the angle iron, Smarra struck him in the back with his foot, which caused Plaintiff to involuntarily soil himself. Id. at ¶ 25. Certain individual Defendants and others then arrived at the scene. Id. at ¶ 26.

Plaintiff was detained and removed to a secure area of the jail and several other guards arrived at the scene, including Defendant Donis and the remainder of the individual Defendants. Id. at ¶ 27. One guard was carrying and using a handheld video camera. Id. According to Plaintiff, the individual Defendants forced him to his knees but did not give him any orders. Id. at ¶ 29. After allegedly putting on leather gloves and stating, "I'm your worst nightmare," Donis began striking Plaintiff in the face. Id. at ¶ 30. Plaintiff contends that none of the individual Defendants made any attempts to stop Donis' attack and then they all took turns punching him in the face, landing at least 40 punches and ultimately breaking his nose. Id. Plaintiff was then restrained in handcuffs, which he contends were applied unnecessarily tight and in a painful manner, and the individual Defendants continued to punch him. Id. at ¶ 31. Plaintiff was then lifted by his arms, causing his shoulders to over-rotate in a painful manner. Id. at ¶ 32. He was forced to walk down a hallway hunched over with his head down because his hands were pulled upward, and he maintains that he was repeatedly kicked in the groin from behind by one of the individual Defendants who was following. Id. He alleges that he was repeatedly shoved into the walls and doorframes by the individual Defendants as he made his way down the hall. Id. At one spot that was blind to the ACJ's video surveillance system, one individual Defendant struck Plaintiff in the face with his knee, causing Plaintiff to momentarily lose consciousness. Id. at ¶ 33.

Plaintiff contends he was then thrown onto a medical gurney, at which point a nurse gave him a brief medical examination and determined that he needed to go to the hospital. Id. at ¶¶ 34-35. Plaintiff further contends that his uniform was changed prior to his transportation to the hospital so that the evidence of the assault could be destroyed (i.e., bootprints, feces, and blood). Id. at ¶ 36. He maintains that the individual Defendants used unnecessary and excessive force to accomplish the task and then forced him into a restraint chair to wait for several hours before transporting him to the hospital. Id. at ¶¶ 37-38. Contrary to ACJ custom and policy, Plaintiff was transported to the hospital in an ACJ vehicle with no paramedic present. Id. at ¶ 38.

B.Continued Mistreatment

Plaintiff was taken to UPMC Mercy Hospital where hospital personnel examined his left wrist and back by x-ray and his head by MRI. Id. at ¶ 39. Plaintiff was provided with a prescription for Motrin and a referral and appointment with a specialist for surgical repair of a deviated septum. Id. He was then returned to the ACJ and never transported to his surgical appointment. Id.

The following day, Plaintiff was transported to a hearing in Cecil Township, Washington County for an unrelated matter. Id. at ¶ 40. The constable who transported Plaintiff to the hearing took pictures of Plaintiff's face with his mobile phone, allegedly to protect himself from any claims that he was responsible for Plaintiff's injuries. Id. When Plaintiff was returned to the ACJ, he was housed in a psychological observation room even though he contends that he never demonstrated a risk of harm to himself or others. Id. at ¶ 41. The next day, an ACJ employee, presumably Captain Pofi, took photographs of Plaintiff. Id. Plaintiff remained in the psychological observation room for over a month, allegedly for the sole purpose of restricting his access to writing instruments necessary for completing a formal written complaint. Id. at ¶ 42. Plaintiff was then transferred to a Restricted Housing "shoe" where he feared for his safety due to the fact that one of the individual Defendants was assigned to the "shoe." Id. at ¶ 43.

After Plaintiff's prescription for Motrin expired, the ACJ offered Plaintiff Tylenol on several occasions, even though he had indicated a medical allergy to Tylenol during intake. Id. at ¶ 44. Plaintiff alleges he was given neither the prescribed Motrin nor a reasonable alternative. Id.

Plaintiff contends that he made a number of informal complaints to correctional officers regarding the assault on April 6, 2010, but no staff member attempted to resolve the matter and no one asked Plaintiff to initiate a standard complaint. Id. at ¶ 45. Plaintiff made numerous requests for a complaint form and a pencil and no staff member provided them to Plaintiff despite ACJ policy that requires personnel to provide a complaint form upon request. Id. at ¶ 46. According to Plaintiff, this was done as part of an unwritten policy, practice and custom among ACJ personnel to deny access to the complaint process to prisoners who had been assaulted by guards. Id. at ¶¶ 48-49. Eventually, Plaintiff was able to obtain a complaint form and a pencil from an inmate in a neighboring cell, and he submitted the complaint which addressed all of the events of April 6, 2010. Id. at ¶ 50. However, he received no response to his complaint because he was thereafter released from ACJ custody and committed to the custody of the Pennsylvania Department of Corrections upon pleading guilty to a charge of attempted escape and criminal mischief. Id. at ¶¶ 50-51. Because he was released prior to receiving a response to his complaint, he no longer had standing with respect to administrative remedy. Id. at ¶¶ 47, 51.

C.Incomplete Reporting of the Events of April 6, 2010

According to Plaintiff, Captain Douglas Maust ordered all staff and officers "directly involved" with the April 6, 2010 incident to submit incident reports pursuant to the ACJ Use of Force Policy. Id. at ¶¶ 52-56. With respect to the individual Defendants named herein, only Donis, McGovern, Smarra, and Williams filed incident reports. Id. at ¶ 57. The others did not and no supervisor required them to do so despite the fact that they were allegedly involved in or witnessed the incident on April 6, 2010. Id. ¶¶ 57-58. The incident reports that were filed state that Plaintiff had lacerations on his arms and hands, he was bleeding from his facial area, and he was escorted to medical, but none state that Plaintiff was struck with a closed fist by an ACJ employee. Id. at ¶ 59. Defendant Donis, however, later amended his initial report and admitted that he struck Plaintiff several times with a closed fist and his report allegedly made it clear that other individual Defendants were present for these events. Id. at ¶ 60. Donis further ...


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