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Sepulveda v. Ebbert

United States District Court, M.D. Pennsylvania

February 7, 2017

GEORGE SEPULVEDA, et al., Plaintiffs
v.
WARDEN DAVID EBBERT, et al., Defendants

          MEMORANDUM

          Kane Judge

         I. Background

         On April 24, 2014, Plaintiffs George Sepulveda, Eddie Wright, Matthew A. Turner, Sony Sanchez, and Stephen McCall, inmates at the United States Penitentiary at Canaan, Waymart, Pennsylvania (“USP-Canaan”), filed a Bivens-styled unverified complaint pursuant to 28 U.S.C. § 1331[1] relating to strip searches which they allegedly were subjected to on March 22 and August 23, 2013, while housed in Unit E2 of the penitentiary. (Doc. No. 1.) Named as defendants in the complaint were the following individuals employed at USP-Canaan: (1) David Ebbert, Warden; (2) Leonard Oddo, Associate Warden; (3) Gary Miller, Associate Warden; (4) Robert Kaszuba, Captain; (5) William Rosler, Lieutenant; (6) Ryan Rosencrance, Lieutenant; (7) Christopher Ficken, Senior Officer Specialist (“SOS”); (8) Andrew Burgh, Correctional Officer; (9) Brian Alvaro, SOS; and (10) Kyle Lindsay, Unit Manager. Id. The Plaintiffs also named 12 “John Does” as defendants. Id. Plaintiffs alleged that their rights under the Fourth and Eighth Amendments to the United States Constitution were violated by defendants when they were subjected to the visual strip searches on March 22 and August 23, 2013. Id.

         As relief Plaintiffs requested (1) that the Court issue a declaratory judgment finding that their rights were violated by the Defendants; (2) award compensatory damages in the amount of $100, 00.00 against each Defendant; (3) award punitive damages in the amount of $100, 000 against each Defendant; and (4) issue a preliminary and permanent injunction directing Defendants to terminate the practice of conducting strip searches with two inmates “in a dirty one man shower.” Id. at 15.

         Defendants Ebbert, Oddo, Miller, Kaszuba, Rosler, Rosencrance, Ficken, Burgh, Alvaro, and Lindsay were served with the complaint on October 28, 2014, and after being granted two extensions of time, they appropriately filed on March 27, 2015, a motion to dismiss and/or for summary judgement in lieu of an answer to the complaint.[2]

         In the motion to dismiss and/or for summary judgment and the supporting brief, Defendants made the following arguments: (1) sovereign immunity prevents the Court from entertaining Plaintiffs' official capacity claims; (2) Plaintiffs failed to state a claim upon which relief could be granted because (a) Plaintiffs failed to allege in the complaint the personal involvement of Defendants Ebbert, Oddo, Miller, Kaszuba, Alvaro and Lindsay in the searches, (b) Defendants Ebbert, Oddo, Miller and Kaszuba could not be held liable based on respondeat superior, (c) there was no liability under the Eighth Amendment because the facts alleged did not reveal that Defendants were deliberately indifferent or used excessive force, and (d) Plaintiffs could not recover compensatory damages for emotional or mental injuries because they failed to allege any physical injury; and (3) summary judgment should be granted in favor of Defendants Rosler, Rosencrance, Ficken, Burgh and Alvaro because the undisputed facts demonstrated they had no personal involvement in the alleged searches and, in the alternative, Defendants were entitled to qualified immunity because the undisputed record reveals their conduct was objectively reasonable and lawful.

         On April 10, 2015, Defendants filed a brief in support of their motion and a statement of material facts[3] in accordance with Local Rule 56.1. M.D. Pa. L.R. 56.1. On May 12, 2015, Plaintiffs filed (1) a brief in opposition (Doc. 41) to Defendants' motion and (2) a document entitled “Plaintiffs Counterstatement of Material Facts” attached to which were unsworn declarations under penalty of perjury pursuant to 28 U.S.C. § 1746 from Plaintiffs McCall, Wright, Turner, and Sanchez. (Doc. 40.) On May 26, 2015, Plaintiff Sepulveda filed an unsworn declaration under penalty of perjury. (Doc. 44.) Thereafter, on June 9, 2015, Defendants filed a reply brief. In the reply brief, Defendants with respect to Plaintiffs' Fourth Amendment claims conceded that those claims should proceed pending further discovery.

         On March 3, 2016, the Court issued a decision which granted in part and denied in part Defendants' motion to dismiss and/or for summary judgment. (Doc. Nos. 52, 53.) The Court dismissed Plaintiffs' (1) official capacity claims for damages against the Defendants, including the “John Doe” Defendants, without leave to file an amended complaint; (2) the Eighth Amendment claims asserted against Defendants, including the “John Doe” Defendants, without leave to file an amended complaint; (3) the Fourth Amendment claims for compensatory damages asserted against Defendants without leave to file an amended complaint; and (4) the Fourth Amendment claims both for nominal and punitive damages and injunctive relief asserted against Defendants Ebbert, Oddo, Miller, Lindsay, Alvaro and Kaszuba with leave to file an amended complaint within 21-days. Furthermore, the court denied the motion for summary judgment of Defendants Ficken, Rosencrance, Rosler and Burgh with respect to Plaintiff's Fourth Amendment claims.

         In the order disposing of Defendants' motion to dismiss and/or for summary judgment, the Court also provided that (1) Plaintiffs were to identify the “John Doe” defendants by June 1, 2016; (2) discovery was to be completed by June 1, 2016;(3) any further dispositive motions were to be filed by July 1, 2016; and (4) failure of Plaintiffs to identify the “John Doe” defendants would result in the dismissal of the claims asserted against those defendants. Plaintiffs did not file an amended complaint and because Plaintiffs failed to identify the “John Doe” defendants, and the Court, on July 15, 2016, dismissed the claims asserted against them. (Doc. No. 67.)

         On July 1, 2016, the remaining Defendants Ficken, Rosencrance, Rosler and Burgh filed a motion for summary judgment. (Doc. No. 65.) After being granted an extension of time, those Defendants on August 12, 2016, filed a supporting brief and a statement of material facts in accordance with Local Rule 56.1. The Defendants also filed 88 pages of evidentiary materials in support of their motion. (Doc. No. 71-1.) On August 26, 2016, Plaintiffs filed a 3-page document entitled “Objection to Summary Judgment” which was docketed by the Clerk of Court as a brief in opposition. (Doc. No. 72.) Plaintiffs did not file any evidentiary materials[4] or a response to the Defendants' statement of material facts. Consequently, the facts set forth in Defendants' statement of material facts and evidentiary materials are deemed admitted.[5] Defendants' motion for summary judgment became ripe for disposition on September 9, 2016, when they filed a reply brief. (Doc. No. 73.) For the reasons set forth below, Defendants' motion for summary judgment will be granted.

         II. Motion for Summary Judgment

         Federal Rule of Civil Procedure 56(a) requires the court to render summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

         When determining whether there is a genuine issue of material fact, the court must view the facts and all reasonable inferences in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. When the party seeking summary judgment satisfies its burden under Rule 56 of identifying evidence which demonstrates the absence of a genuine issue of material fact, the nonmoving party is required by Rule 56 to go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts the burden of production to the nonmoving party, that party must produce evidence to show the existence of every element essential to its case which it bears the burden of proving at trial, for "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

         III. Statement of Material Facts

         The statement of material facts and the evidentiary materials (Doc. Nos. 47, 47-1), to which Plaintiffs failed to respond, reveal:

(1) the security of any Bureau of Prisons facility will be affected by the presence of contraband within its secure perimeter;
(2) contraband such as prison made weapons, commonly referred to as “shanks, ” create an extremely dangerous situation for both the inmates as well as the staff members at the facility;
(3) as a direct result of this threat, a significant effort is made by staff members to discover as well as remove such items from the facility;
(4) the presence of such items in the prison is the result of the inmates fashioning weapons out of readily available materials used by inmates and the lengths the inmates will go to conceal the items from staff;
(5) 28 C.F.R. § 552.11 provides in relevant part that staff of the Bureau of Prisons may conduct “a visual inspection of all body surfaces and body cavities . . . where there is a reasonable belief that contraband may be concealed on the person, or a good opportunity for concealment has occurred” and “visual search[es] shall be made in a manner designed to assure as much privacy to the inmate as practicable;”
(6) on February 25, 2013, an inmate using multiple homemade weapons killed a correctional officer at USP-Canaan;
(7) following the killing the entire institution was placed on lockdown status;
(8) while the institution is on lockdown status, inmates are confined to their cells;
(9) to come off lockdown status, besides maintaining the daily operations of the institution, security measures had to be taken to ensure that any remaining weapons ...

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