United States District Court, M.D. Pennsylvania
Submitted this 4th day of December, 2014.
Horatio DeMarios Smith, Plaintiff, Pro se, Florence, CO.
For R. Lindsey, Gonzalez, Sudul, Defendants: G. Thiel, U.S. Attorney's Office, Scranton, PA; Mark Morrison, U.S. Attorney's Office - Prisoner, Harrisburg, PA.
Martin C. Carlson, United States Magistrate Judge. Judge Caldwell.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Statement of Facts and of the Case
A. Factual Background
This case, which comes before us on an uncontested motion for summary judgment filed by the defendants, involves allegations by the plaintiff, Horatio DeMarios Smith, that prison officials used excessive force to subdue the plaintiff when they discovered him assaulting a fellow inmate. With respect to this excessive force claim advanced by Smith, the currently undisputed facts are largely reflected by immutable witnesses, prison surveillance videos. Those undisputed facts reveal the following:
On March 30, 2013, Horatio Smith was assigned to E Unit, cell 103 at the United States Penitentiary, Canaan. (Doc. 38, ¶ 1.) Smith's cellmate was inmate Galen Fisher. (Id., ¶ 2.) On March 30, 2013, at approximately 8:20 a.m., while completing rounds on the unit's upper tier, Senior Officer Keith Ball heard shouting coming from cell 103. Approaching the cell, Senior Officer Ball observed an affray between Smith and his cellmate Fisher, an assault in which Smith appeared to be the aggressor and was striking Fisher with a closed fist. (Id., ¶ ¶ 3 and 4.) Senior Officer Ball also observed Smith holding a weapon in his right hand, a weapon which was later recovered and was found to be two padlocks placed into a sock. (Id., ¶ ¶ 5 and 6.)
Senior Officer Ball immediately radioed the institution's Control Center for assistance before proceeding directly to cell 103, and ordering Smith to drop his weapon and submit to hand restraints. (Id., ¶ ¶ 7 and 8.) Smith ignored these instructions, stating he was not going to put the weapon down until inmate Fisher was placed in handcuffs. (Id., ¶ 9.) Additional staff arrived on the scene, observing the affray between Smith and Fisher, and repeatedly instructing Smith the drop his weapon and submit to restraints. (Id.,
¶ ¶ 10-17.) Smith failed to comply with all of these direct orders. (Id., ¶ 18.) Ultimately, approximately twenty staff members arrived to assist with the incident, including Lieutenant Robert Thomas. (Id., ¶ 19.)
Upon arriving at the scene, Lieutenant Thomas took control of the situation. Lieutenant Thomas observed Smith striking inmate Fisher in the head and upper body with the object later determined to be a combination lock placed in a sock, and also ordered Smith to drop the weapon and submit to restraints to no avail. (Id.,
¶ ¶ 20-23.) Instead, Smith was observed stepping towards inmate Fisher in an attempt to strike him again with the weapon. (Id., ¶ 24.) Presented with this assaultive violence by Smith, Smith's refusal to relinquish the weapon, and the inability of staff to approach him safely without placing themselves in danger, Lieutenant Thomas discharged five to eight pepper ball chemical rounds into the cell to gain the compliance of these inmates. (Id., ¶ 25.) These chemical agents had the desired effect, and at 8:25 a.m., Smith finally surrendered the weapon and submitted to hand restraints and both inmates were removed from the cell. (Id., ¶ 26.)
While Smith has alleged that he was subjected to excessive force and has asserted both that crushing force was administered to his chest effectively choking him and claimed that correctional staff stood on his head, the videotaped evidence does not support this claim. Instead, that immutable evidence shows that upon exiting the cell, Smith was ordered to lay face down on the floor. Smith was placed face down on the ground using a minimal amount of force. (Id., ¶ ¶ 27-29.) After Smith was removed from his cell, he was placed on the floor by Unit Manager Lindsay and Lieutenant Gonzalez assisted staff in searching Smith to assure Smith was not concealing any other weapons. (Id., ¶ 37.) No additional weapons were discovered. (Id., ¶ 38.) At no time during this search does the video depict Unit Manager Lindsay or Lieutenant Gonzalez standing on Smith's head. Nor does the video show any responding staff member placing crushing weight on Smith to restrict his breathing. (Id., ¶ ¶ 39-40.)
During the course of this search, neither Unit Manager Lindsay nor Lieutenant Gonzalez recall Smith asserting any complaints concerning his inability to breathe and/or a shortness of breath caused by the actions of staff. (Id.,
¶ 41.) Moreover, the videotaped medical assessment of Smith made by prison medical staff immediately following this incident contradicts Smith's claims regarding the severe injuries he alleged that he suffered in this episode. Smith was medically assessed by Paramedic Jarrett Tuttle immediately after this incident. (Id., ¶ 46.) In the course of this viedotaped medical assessment, Paramedic Tuttle asked Smith, " [d]o you have any injuries?" In response to this specific inquiry Smith did not describe the crushing chest injuries he now alleges in his complaint, or the severe head injuries he claims to have suffered in his pleadings, and the physical examination reveals no such injuries. Instead, Smith replied, " Ah, I believe my wrist." After a seven-second pause, Smith also added, " it feels like the right side of my face." When asked, Smith clarified it was his right wrist that was injured. While a small abrasion was noted on Smith's right cheek, Paramedic Tuttle did not observe any outward signs of injury to Smith's right wrist. (Id., ¶ ¶ 47-52.) Smith was then advised to seek out follow-up care if his condition worsened. (Id. ¶ 53.) At no time, however, did Smith complain of numbness, visual disturbances or head pain, nor did he assert any complaints that excessive force was used during the pat search affecting his ability to breathe. (Id., ¶ 54.)
B. Procedural History
This pro se civil rights action was initially brought by the plaintiff, through the filing of a complaint on December 3, 2013. (Doc. 1.) As a pro se litigant the plaintiff was advised by this Court at this outset of this lawsuit of his responsibilities in this litigation. Thus, on December 3, 2013, the District Court entered its Standing Practice Order in this case, an order which informed the plaintiff of his responsibility to reply to defense motions, and warned him in clear and precise terms of the consequences which would flow from a failure to comply with briefing schedules on motions, stating:
If the party opposing the motion does not file his or her brief and any evidentiary material within the 14-day time frame, Local Rule 7.6 provides that he or she shall be deemed not to oppose the moving party's motion. The motion may therefore be granted if: (1) the court finds it meritorious; or (2) the opposing party fails to comply with Local Rule 7.6 despite being ordered to do so by the court.
(Doc. 5, p. 2.)
On August 4, 2014, the defendants filed a second motion for summary judgment, in this case. (Doc. 28.) Relying upon the uncontested viedotaped evidence, the defendants argued in this motion that Smith's excessive force claims failed as a matter of law since nothing depicted in the video displayed sadistic or malicious abuse of this inmate. On October 7, 2014, Smith sought an extension of time in which to respond to this motion, (Doc. 39.), a request which we granted, permitting Smith to respond to the motion by November 7, 2014. (Doc. 40.) Smith did not meet this deadline, but requested a second extension of time, (Doc. 42.), which we also granted, (Doc. 43.), instructing Smith to respond to the motion by November 28, 2014, and warning the plaintiff in clear and precise terms that: " It is now well-settled that 'Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency " if a party fails to comply with the [R]ule after a specific direction to comply from the court." Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (1991).' Williams v. Lebanon Farms Disposal, Inc., No. 09-1704, 2010 WL 3703808, *1 (M.D. Pa. Aug. 26, 2010). Therefore, a failure to comply with this direction may result in the motion being deemed unopposed and granted." (Id.)
Despite this explicit warning, the plaintiff has not responded to this summary judgment motion, and the time for responding has now passed. Therefore, in the absence of any timely response by the plaintiff, we will deem the motion to be ripe for resolution. For the reasons set forth below, we recommend that this summary judgment motion be granted.
A. Under The Rules of This Court This Motion to Dismiss Should Be Deemed ...