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Proctor v. Burke

United States District Court, W.D. Pennsylvania

April 21, 2015



CYNTHIA REED EDDY, Magistrate Judge.

Plaintiff, Anthony E. Proctor, is a pro se state prisoner committed to the custody of the Pennsylvania Department of Corrections ("DOC") and at all times relevant to this lawsuit was incarcerated at SCI-Mercer. Plaintiff has filed this civil rights suit pursuant to 42 U.S.C. § 1983, naming as Defendants the following SCI-Mercer officials and employees: Sgt. Burke, C.O. Hart, Capt. Byers and Hearing Examiner P. McKissack. Discovery is now complete.

Presently pending is the Motion for Summary Judgment filed by Defendants, with brief in support (ECF Nos. 21 and 22) and Plaintiff's Memorandum of Law in Opposition thereto. (ECF No. 28). The parties have consented to our jurisdiction.[1]The Court has reviewed the record. Accordingly, the Defendants' Motion is ripe for disposition. For the reasons that follow, the Motion will be granted.

This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and§ 1343(a).


In adjudicating a motion for summary judgment, we apply the well-established legal standard presently set forth in Fed.R.Civ.P. 56(a), pursuant to which summary judgment shall be granted when no genuine dispute exists as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When applying this standard, the court must examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); UPMC Health Sys. v. Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the nonmovant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989) (the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance _ which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party "cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument, " Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), but must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).

When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The inquiry, then, involves determining "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991) (quoting Anderson, 477 U.S. at 251-52). "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J, 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)).

With this standard in mind, we review the evidence of record. Except as otherwise indicated, the following facts are undisputed.


In support of their Motion, Defendants have submitted numerous Declarations of DOC employees as well as DOC documentation of the misconduct reports and subsequent disciplinary hearing reports. Plaintiff has also submitted an "Affidavit of Confession" to support his version of events. [ECF No. 25].

A. Misconduct B 172125

On July 27, 2011, Defendant Charles Hart, a yard officer at FCI-Mercer responsible for observing the outside yard and supervising inmate movement, saw Plaintiff attempt to enter the yard at an improper time. [ECF No. 24-1]. Defendant Hart told Plaintiff to return to his cell and wait until his unit was called, which he did. [ECF No. 24-3 ¶ 4]. Upon Plaintiffs return to the prison yard at the appropriate time, Defendant Hart told Plaintiff to step aside for a pat search. [ECF No. 24-3 ¶ 5]. Such searches are randomly conducted throughout the prison to maintain discipline and ensure the safety and security of inmates and staff. [ECF No. 24-3 ¶ 6]. Plaintiff refused to comply with Defendant Hart's orders, and grew "verbally abusive and visibly agitated." [ECF No. 24-3 ¶ 7]. He was ordered numerous times to stand still and keep his arms up. Plaintiff did not comply as he kept turning around and eventually put his arms down. [ECF No. 24-4 ¶ 8]. According to the Misconduct Report filed that day, Plaintiff stated "If I whipped one of you pigs asses, you would quit picking on a n----." [ECF No. 24-1 at 2]. While Defendant Hart placed Plaintiff in handcuffs, Plaintiff "insisted on making movements in an apparent attempt to free himself." [ECF No. 24-3 ¶ 9]. Plaintiff refused to walk. [ECF No. 24-4 ¶ 10]. With the help of another officer, Officer Hart attempted to escort Plaintiff to the Restricted Housing Unit ("RHU"), however Plaintiff continued to make "threatening movements" and they placed him on the ground until other officers could assist. [ECF No. 24-3

Responding to the call for help, Defendant Shift Commander David Byers witnessed Plaintiffs yelling, and gave Plaintiff two direct orders to be quiet and comply with orders, but Plaintiff refused. [ECF No. 24-5 ¶ ¶ 4, 5]. Additionally, Defendant Thomas Burke, a sergeant in charge of the outside yard, its correctional officers and inmates, ordered Plaintiff to comply with orders, including submission to a pat search, and when Plaintiff refused, Defendant Burke contacted control and all movement in the yard was stopped. [ECF No. 24-4 ¶ ¶ 2, 7, 8]. Eventually, the officers proceeded to carry him to the RHU. [ECF No. 24-3 ¶ ¶ 10, 11]. Defendant Hart describes Plaintiffs behavior as "verbally abusive and physically combative" during the entire escort. [ECF No. 24-3 ¶ 12]. The Misconduct Report notes that Plaintiff ordered the officers to carry him, stating, "Not one of you would look at me on the street, carry me[, ]mother f---ers." [ECF No. 24-1 at 2].

According to the Plaintiffs version of events, defendants were retaliating against him for an incident which occurred approximately three (3) weeks prior. Plaintiff states that he grew frustrated with inmate Keith Davis' treatment of Davis' cellmate Cannon and Plaintiff punched Davis in the face and knocked him on his back while in the prison yard. [ECF No. 25 at 3]. Plaintiff claims that a rumor was circulating that Plaintiff was the person who had punched inmate Davis. [ECF No. 25 at 4]. About one week after the fight in the prison yard, Plaintiff contends that Defendant Burke ordered Plaintiff out of his cell and asked him if he knew anything about the assault on inmate Davis. Plaintiff replied, "I don't know what you are talking about. I have no comment about Keith" and invoked his "Constitutional Right to Free Speech" and his "Fifth Amendment right to remain silent." [ECF No. 25 at 4.] Defendant Burke then ordered Plaintiff back to his cell. According to Plaintiff, a week later, another officer named Petre, with Defendant Burke observing, conducted a pat search and further "custodial interrogation" about the fight with Davis. [ECF No. 25 at 5].

Defendants Hart, Burke and Byers each have filed declarations in which they deny retaliating against Plaintiff, deny discussing inmate Davis with Plaintiff, deny knowing Davis, and deny knowing anything about an alleged altercation involving Davis in the summer of 2011 [ECF No. 24-3 ¶ ¶ 13, 14, 15, ECF No. 24-4 ¶ ¶ 12, 13, 14, 15, ECF No. 24-5 ¶ ¶ 14, 15, 16].

These three Defendants' understanding is buttressed by the declaration of Christopher Meure, the Intelligence Gathering/Security Captain at SCI-Mercer in charge of conducting investigations into allegations of abuse by staff members. [ECF No. 24-7 ¶ 1, 2]. Captain Meure, in conducting an internal investigation into Plaintiffs allegations of abuse against Defendant Hart, found no evidence of any alleged inmate on inmate assault in the summer of 2011 involving inmate Davis or Davis' cellmate Cannon. [ECF No. 24-7 ¶ ¶ 5, 6]. Captain Meure explained that had inmate Davis been involved in an altercation, inmate Davis would not have been eligible for his ultimate transfer to SCI-Fayette in August 2011 to attend a welding program. [ECF No. 24-7 ¶ 7].

Regardless, on the day of the pat search, once subdued, Plaintiff was taken to RHU and placed in administrative custody pending a misconduct hearing. He was charged with (i) threatening an employee, (ii) using abusive, obscene or inappropriate language to an employee, (iii) presence in an unauthorized area; and (iv) refusing to obey an order ("Misconduct B 172125") [ECF No. 24-1]. The record indicates that the pat search incident occurred at approximately 6:35 p.m. [ECF No. 24-1 at 2].

B. Misconduct B 288794

Later that evening, at approximately 9:15 p.m., Defendant Byers came to Plaintiffs cell in the RHU and ordered him to put his hands through the wicket so that his hands could be photographed. [ECF No. 24-2 at 2]. Photographs of known or possible injuries are required to be taken immediately following any such incident to ensure that the injuries are not agitated to imply wrongful actions. [ECF No. 24-5 ¶ 13]. Plaintiff held his hands up but he refused to let them be photographed. He subsequently was issued a misconduct for refusing to obey an order. ("Misconduct B 288794"). [ECF No. 24-2]. No injuries were seen on his hands. [ECF No. 24-6]. Plaintiff permitted photographs to be taken of his chin, which had a small abrasion on it from turning his head repeatedly when he was lying on the sidewalk shouting at staff. [ECF No. 24-5 ¶ 11]. Plaintiff continued to be housed in the RHU pending his misconduct hearing. [ECF No. 24-2 at 2].

C. The Disciplinary Hearings

On August 3, 2011, Defendant Hearing Examiner McKissack conducted a misconduct hearing on Misconduct Report B 172125. At the hearing, Plaintiff stated that he felt "set up." Defendant McKissack continued the hearing so that she could view a video of the incident. [ECF No. 24-1 at 3].

On August 10, 2011, the hearing was resumed and Defendant McKissack rendered her decision, finding Plaintiff guilty of (i) threatening an employee; (ii) using abusive, obscene or inappropriate language to an employee; and (iii) refusing to obey an order. [ECF No. 24-1 at 3]. Plaintiff was found not guilty on the charge of presence in an unauthorized area. [ECF No. ...

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