United States District Court, M.D. Pennsylvania
Richard P. Conaboy United States District Judge
Peraza, an inmate presently confined at the United States
Penitentiary, Beaumont, Texas initiated this pro se
civil rights action. An Amended Complaint was thereafter
filed. See Doc. 6.
Memorandum and Order dated September 17, 2014,
Defendants’ motion for partial dismissal was granted in
part. Dismissal was granted with respect to: (1) the claims
against Defendants Kane, Watts, Norwood, Breckton, and
Holt; (2) all claims associated with the
handling of grievances and the allegations of conspiracy; and
(3) Counts Two and Four of the Amended Complaint. The motion
to dismiss was denied with respect to the allegations of
retaliation. Those claims, along with the unaddressed failure
to protect and excessive force allegations, were allowed to
Defendants are the following officials at Plaintiff’s
prior place of confinement the Canaan United States
Penitentiary, Waymart, Pennsylvania (USP-Canaan):
Physician’s Assistant (PA) Kenneth Kaiser; Lieutenant
Jamie Burning; Lieutenant Brian Sudul; Unit Manager Kyle
Lindsay; Case Manager Kylie Bigart; Disciplinary Hearing
Officer (DHO) Marc Renda; as well as Correctional Officers
(CO) Jeremy Dominick, Ryan Burns, John Schwartz, Michael
Moran, Jessie Seana, Jenkens, and Joseph Pellicano.
Amended Complaint asserts claims based on events which
purportedly transpired between May 11, 2011 and July 4, 2011.
Plaintiff first states that on May 11, 2011 his cell mate
Inmate Burke signed up for outdoor recreation in order to
inform prison staff that he could no longer live with
Peraza. See Doc. 6, ¶ 28. A few
minutes later, Defendants Schwartz, Burning, Dominick, and
Moran allegedly brought Burke back to the cell he shared with
the Plaintiff. Those officers then asked Plaintiff to submit
to handcuffs. After receiving a second command, Peraza
eventually agreed and while still handcuffed Burke was placed
in the cell.
admits that after the cell door was closed and his handcuffs
were removed first, he struck Burke on the side of his head.
See Doc. 252, ¶ 11. Schwartz then directed that
Burke be uncuffed. Plaintiff responded by striking his cell
mate an additional 3 or 4 more times. Peraza was again
handcuffed and taken from the cell. It is next asserted that
Correctional Officer Schwartz verbally abused Plaintiff and
identified him as being a child molester as the inmate was
being removed from his cell to the prison’s Special
Housing Unit (SHU). Peraza acknowledges that he responded to
those remarks with an obscenity. See id. at ¶
escorting correctional officers allegedly physically and
excessively assaulted Peraza after escorting him from his
cell to a security camera blind spot. It is alleged that the
officers attempted to make it appear that they were
responding to resistance from the Plaintiff. This attack
purportedly included a sexual battery in that Schwartz ran
his hand over the inmate’s buttocks and subjected the
prisoner to additional verbal sexual harassment. Peraza
claims that he lost consciousness and suffered loss of vison
in his left eye for approximately five (5) minutes;
dizziness; nausea; a sprained left ankle; knee and wrist
pain; and a forehead laceration that caused nerve damage.
the incident, Plaintiff was shackled in leg irons and placed
in a nearby holding cell. He was then taken to a medical
examination room where his injuries were assessed and
initially treated by Defendant PA Kaiser. See id.
at ¶ 65. Peraza was later transported to an outside
hospital for further treatment of his forehead laceration and
closer examination of his ankle and wrists. See id.
at ¶ 70. It is alleged that Kaiser refused to report the
incident allegedly informing Peraza that the prisoner could
personally report any claim to the Captain.
Amended Complaint next asserts that one day later, Plaintiff
discovered that his newly assigned SHU cell mate, Inmate
Rodriguez, had been classified as being a protective custody
inmate. In light of that development, Peraza asserts that the
prisoners agreed that they should no longer be housed
together. However, Defendants Pelicano and Sudul denied their
mutual request for a cell change. The Plaintiff then
admittedly struck Rodriguez on the side of the head in order
to have that prisoner moved from the cell. See id.
at ¶ 83.
about May 17, 2011, Plaintiff states that he was handcuffed
and brought to the Lieutenants’ office where he met
with a member of the prison’s Psychology staff with
respect to a sexual assault claim which the inmate filed
against Officer Schwartz. Defendants Schwartz and Burning
were initially present during this meeting, however, Schwartz
was later directed to leave the room. The psychology staff
member told Plaintiff that allegations of sexual abuse by
staff should be reported to Special Investigative Services
(SIS). Thereafter, Plaintiff tiled an internal complaint with
SIS via Case Manager Smith which allegedly went unanswered.
21, 2011 Plaintiff had a disciplinary hearing regarding
misconduct charges he was issued for the May 11 & 12,
2011 incidents. He was found guilty of the charges and
received sanctions which included loss of good time credits.
Amended Complaint next asserts that during the week of May
23, 2011 Plaintiff and his latest cell mate, Inmate Anderson,
were put in an outdoor recreation cage. A Mexican gang member
in an adjoining cage had a private conversation with Anderson
and subsequently told Plaintiff that Defendants Schwartz and
Jenks were telling prisoners that Peraza was a child
molester. On or about June 7, 2011, Defendant Schwartz
assigned Inmate Salmoran to be Peraza’s new cellmate
after Salmoran had been in a fight with his former cellmate.
See id. at ¶ 115. When Plaintiff discovered
that Salmoran was a protective custody inmate, the prisoners
agreed to request a cell change. However, Defendant Schwartz
refused Salmoran’s request to be moved.
admits that he proceeded to physically assault Inmate
Salmoran in order to obtain the cell change. See id.
at ¶¶ 127-132. During a resulting medical
assessment, PA Kaiser refused to report the incident although
Plaintiff had stated that SHU officers were forcing inmates
to fight one another like gladiators. See id. at
¶ 143. Peraza was then left in the handicapped shower
area for two hours with his hands handcuffed behind his back.
4, 2011, Correctional Officer Schwartz allegedly placed two
inmates in a recreation cage with Plaintiff for the purpose
of having those prisoners attack Peraza. The two inmates
proceeded to assault Plaintiff based upon their belief that
he was a child molester. Peraza suffered lacerations and
bruising to the face and neck which required treatment at an
outside hospital. Following the incident, Defendant
Jenkens/Jenks purportedly planted and then confiscated a
homemade weapon from Peraza during a pat down search. See
id. at ¶¶ 162-63.
concludes that he was subjected to excessive use of force and
improperly labeled as being a child molester in an effort to
place him at risk of assault by other prisoners. The Amended
Complaint also asserts that many of the above actions were
taken in retaliation for his initiation of administrative
grievances. Plaintiff seeks compensatory and punitive damages
as well as injunctive relief, namely, a transfer to a medium
security correctional facility.
pending is Remaining Defendants’ motion for summary
judgment. See Doc. 219. The motion argues that entry
of summary judgment is appropriate because: (1) the naming of
Defendant Jenkens is improper; (2) Plaintiff failed to
exhaust his available administrative remedies regarding any
of the claims in his Amended Complaint; (3) his allegations
which imply the invalidity of disciplinary findings rendered
against Peraza are barred by the favorable termination rule;
(4) the undisputed record shows that a viable excessive force
claim has not been stated; (5) the record fails to support
Peraza’s deliberate indifference claims; (6)
Plaintiff’s allegations do not support actionable
claims of retaliation; and (7) Defendants are entitled to
judgment is proper if “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c); See also Saldana v.
Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A
factual dispute is “material” if it might affect
the outcome of the suit under the applicable law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “genuine” only if
there is a sufficient evidentiary basis that would allow a
reasonable fact-finder to return a verdict for the non-moving
party. Id. at 248. The court must resolve all doubts
as to the existence of a genuine issue of material fact in
favor of the non-moving party. Saldana, 260 F.3d at
232; see also Reeder v. Sybron Transition Corp., 142
F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments
made in briefs are not considered evidence of asserted facts.
Versarge v. Township of Clinton, 984 F.2d 1359, 1370
(3d Cir. 1993).
the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the
non-moving party may not simply sit back and rest on the
allegations in its complaint. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Instead, it must
“go beyond the pleadings and by [its] own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id.
(internal quotations omitted); see also Saldana, 260 F.3d at
232 (citations omitted). Summary judgment should be granted
where a party “fails to make a showing sufficient to
establish the existence of an element essential to that
party’s case, and on which that party will bear the
burden at trial.” Celotex, 477 U.S. at 322-23.
“‘Such affirmative evidence – regardless of
whether it is direct or circumstantial – must amount to
more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”
Saldana, 260 F.3d at 232 (quoting Williams v.
Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir.
Amended Complaint names Correctional Officer Jenkens as a
defendant. See Doc. 6, ¶ 24. Remaining Defendants
contend that there no correctional officer named Jenkens or
Jenkins was employed at USP-Canaan during the relevant time
period. See Doc. 230, p. 8, n. 1. As such they assert that
this improperly named defendant should be dismissed.
review of the record shows that Correctional Officer Shawn
Jenks, Sr. previously executed a waiver of service of the
summons. See Doc. 30, p. 14. Since Jenks has previously
indicated that he is the Defendant named Jenkens in the pro
se Amended Complaint this argument will be dismissed as
Defendants maintain that the assertion that Peraza was
subjected to excessive force on May 11, 2011 should not
proceed because the undisputed record, including videotape
footage, shows that the actions of the escorting officers
“were necessary to bring Peraza under control.”
Doc. 230, p. 20.
correctional officer's use of force in order to
constitute cruel and unusual punishment, must involve the
"unnecessary and wanton infliction of pain."
Whitley v. Albers, 475 U.S. 312, 319
(1986). “It is obduracy and wantonness, not
inadvertence or error in good faith, that characterize[s]
that conduct prohibited by the Cruel and Unusual Punishment
Clause, whether the conduct occurs in connection with
establishing conditions of confinement, supplying medical
needs, or restoring official control over a tumultuous
later ruling, the United States Supreme Court recognized that
the use of force may constitute cruel and unusual punishment
even if the prisoner does not sustain "significant"
injuries. Hudson v. McMillian, 503 U.S. 1, 9 (1992).
The core judicial inquiry is “whether force was applied
in a good faith effort to maintain or restore discipline or
maliciously and sadistically to cause harm.”
Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir.),
cert. denied, 531 U.S. 821(2000); Brooks v.
Kyler, 204 F.3d 102, 106 (3d Cir. 2000)(even a de
minimis use of force, if repugnant to the conscience of
mankind, may be constitutionally significant). As explained
Resolution of an Eighth Amendment claim therefore
‘mandate[s] an inquiry into a prison official’s
state of mind.’ Two considerations define that inquiry.
We must first determine if the deprivation was sufficiently
serious to fall within the Eighth Amendment’s zone of
protections. If not, our inquiry is at an end. In other
words, we must determine if they were motivated by a desire
to inflict unnecessary and wanton pain. ‘What is
necessary to establish an “unnecessary and wanton
infliction of pain. . .” varies according to the nature
of the alleged constitutional violation.’However, if
the deprivation is sufficiently serious, we must determine if
the officials acted with a sufficiently culpable state of
Fuentes, 206 F.3d at 344.
undisputed that on May 11, 2011, Peraza physically assaulted
his cell mate. Following this incident, Plaintiff permitted
himself to be handcuffed and was removed from his cell. The
escorting officers were Schwartz, Burning, Dominick, and
Moran with Schwatrz being on one side of Peraza and Moran on
the other side.
to the Amended Complaint, Schwartz became verbally abusive,
Plaintiff admittedly responded to that officer with an
obscenity. See Doc. 6, ¶ 50. Upon reaching a security
camera blind spot, Schwartz purportedly pulled on
Plaintiff’s handcuffs and falsely stated that the
inmate was resisting. It is next asserted that Schwartz pushed
Peraza forward slamming him to his knees and with the
assistance of the other escorting officers eventually to the
floor. Plaintiff states that he suffered a laceration when
his head hit the floor. See Doc. 252, ¶ 26. Peraza
maintains that Defendant Moran then ...