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Perry v. Erie County

Commonwealth Court of Pennsylvania

August 25, 2017

Thor D. Perry, Appellant
Erie County, Warden James Veshecco, Jason H. Worcester, and Clifford J. Palmer

          Argued: May 1, 2017




         Thor D. Perry appeals from the order of the Court of Common Pleas of Erie County (trial court) granting the summary judgment motion of Erie County (County) and Warden James Veshecco (Warden). We affirm.

         In January 2012, Perry was incarcerated in the Erie County Prison (Prison) following charges that he had assaulted his former girlfriend. Unbeknownst to Perry, his former girlfriend's uncle, Jason Worcester, worked at the Prison as a corrections officer at that time.

         On January 28, 2012, Perry was severely beaten by other inmates. Worcester and another corrections officer, Clifford Palmer, were present in Perry's housing pod in the Prison and had arranged for the inmates to commit the assault. Worcester and Palmer were fired and ultimately convicted of criminal charges arising out of the assault.

         On January 15, 2014, Perry filed a civil complaint alleging, in relevant part, that the County and the Warden violated his constitutional rights under the Eighth and Fourteenth Amendments[1] to the United States Constitution and sought relief under 42 U.S.C. §1983 (Section 1983).[2] Perry's complaint asserted that the Warden was responsible for the violations because he failed to establish or enforce any policy, practice, or custom that might have prevented or stopped the assault. Perry claimed that the County was also responsible for the violations by and through the actions or inactions of the Warden and its general administration of the Prison.

         Specifically, Perry's second amended complaint asserted a direct causal link between the Prison's policies and customs and his assault, identifying six specific practices. First, Perry argued that Prison policy limiting when and who may terminate an officer offered no effective means to terminate Worcester before he became a danger to Perry. Second, Perry argued that sergeants and corporals acting as the officer in charge (OIC) on weekends provided ineffective supervision for the other union officers. Third, Perry asserted that the policy of self-reporting pre-existing relationships with inmates was ineffective in preventing conflicts of interest. Fourth, Perry argued that there was no effective policy or practice to prevent officers from gaining unauthorized access to areas of the Prison to which they were not assigned. Fifth, Perry asserted that the Prison had no policy, procedure, or practice that would allow inmates to identify the OIC on weekends. Finally, Perry argued that the Prison had a persistent, unaddressed problem of understaffing that meant no other corrections officers were in the vicinity at the time of the assault on Perry. On August 17, 2015, following discovery, the County and the Warden filed a Motion for Summary Judgment and the matter was argued before the trial court on January 4, 2016.

         In disposing of the motion, the trial court initially found that Worcester had started his employment at the Prison in 2008 where he was required to complete a probationary period. At the time, only the Warden could terminate a probationary employee. The Warden intended to dismiss Worcester prior to the end of his probationary period, however, a family emergency required the Warden to be absent when Worcester's probationary period ended. Upon his return, the Warden attempted to terminate Worcester but a labor arbitrator determined that the grounds for termination were insufficient. In the subsequent years, nothing in Worcester's job performance, until the incident in question, merited termination. Trial Court's Findings of Fact (F.F.) at C, JJ-NN.

         The trial court concluded that the limitation on who could terminate a probationary employee was not constitutionally defective in the context of a Section 1983 claim. The trial court noted that the Warden testified that he tried to have Worcester terminated as a result of his laziness and unreliability, not his propensity for violence or criminal behavior. Notes of Testimony (N.T.) at 55-57. The trial court determined that there was nothing in the record to point to either the County's or the Warden's awareness that its policy regarding probationary terminations would create a possibility that a prisoner's constitutional rights would be violated. Thus, the trial court concluded that there was insufficient proof for a jury to find deliberate indifference to Perry's rights on the part of the County or the Warden as a result of this policy.

         The trial court next found that the assault on Perry occurred on a weekend night when a sergeant, assisted by a corporal, was the OIC. Captains normally served as the OIC of the Prison. Sergeants were designated as unit managers and were responsible for ensuring that the unit operated properly. Corporals assumed the roles of sergeants in their absence. In accordance with a long-standing practice at the Prison to facilitate time off for captains, the OIC on weekends was usually a sergeant or a corporal. The Prison had no particular uniform or insignia designating the OIC. The Warden had no indication of a greater propensity for incidents of misconduct during weekends when a sergeant was the OIC. F.F. at H, I-L, N, V-W, GG.

         The court found that supervision duties and responsibilities at the Prison were generally the same for sergeants, corporals, and captains. Sergeants and corporals directly supervised the training and performance of corrections officers. They were responsible for ensuring that all employees carried out their duties in accordance with the standards, policies, and procedures of the Prison, including maintaining a safe working environment for both staff and inmates. Sergeants and corporals reported directly to captains and the Deputy Warden for Security. F.F. at U, X-Z.

         The court further found that the only significant difference that existed in terms of supervisory duties was that sergeants and corporals, because of their membership in the Prison's union, were not permitted to directly discipline or formulate performance evaluations of subordinate corrections officers. Instead, sergeants and corporals were responsible for reporting misconduct, as well as exceptional or deficient job performance, of a subordinate to a captain and providing any necessary counseling to fellow corrections officers. Only captains could issue written warnings but sergeants and corporals could recommend such action and provide input to captains in regards to performance evaluations. Through its investigation subsequent to the incident, the United States Department of Justice, National Institute of Corrections (NIC) concluded that the inability to make formal performance evaluations or initiate discipline did not impair the performance of sergeants or corporals to act as the OIC. F.F. at O-S, HH-II.

         The trial court concluded that neither the County nor the Warden had any reason to believe that having a sergeant acting as the OIC increased the likelihood of the violation of inmates' constitutional rights. The trial court determined that there was no evidence of prior similar incidents occurring at any other time when sergeants or corporals were the OIC, let alone a pattern of incidents to implicate that the Prison's practice of not requiring a captain to be the OIC was a direct cause of Perry's assault. The trial court noted that Perry offered no evidence outside of bald speculation that a captain acting as the OIC could or would have done anything differently in terms of ...

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