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Green v. Ferdarko

United States District Court, W.D. Pennsylvania

April 30, 2018

TYRONE GREEN, Plaintiff
v.
JAMIE FERDARKO, et al., Defendants.

          MEMORANDUM ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Arthur J. Schwab, United States District Judge

         This case was commenced by Plaintiff Tyrone Green, proceeding pro se, on February 2, 2015, and was referred to United States Magistrate Judge Susan Paradise Baxter for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges. Subsequent to discovery and an initial Partial Motion for Summary Judgment by certain Pennsylvania Department of Corrections Defendants, ECF No. 60, the Court granted Plaintiff's motion to file an amended complaint. ECF No. 83. Plaintiff's Amended Complaint was filed, adding claims and parties to this action. ECF No. 85. Thereafter, Motions for Summary Judgment were filed on behalf of all Defendants, with the exception of Defendants Abraham and Maddie, who had not been served with the Complaint or Amended Complaint. ECF Nos. 143, 147, 152.

         On December 6, 2017, Magistrate Judge Baxter filed a Report and Recommendation, ECF No. 180, recommending that (1) the motion for summary judgment filed on behalf of Defendants Apadaca, Brian, Burkhart, Cole, Conrad, Estate of Bill Dombrowski, Ferdarko, Friedline, Gearhart, Gilara, Hagerty, Horton, Hulse, Jordan, Mahany, Marde, Moore, Oberlander, Siegel, Smead, Wentz and Williams be granted; (2) the motion for summary judgment filed on behalf of Defendant McCue be granted; (3) the motion for summary judgment filed on behalf of Defendants Herbick, Jin, Maxa and Stroup be granted; (4) that pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and the factors set forth in Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984), Defendants Abraham and PA Maddie be dismissed from this action without prejudice; and (5) that the Motion with New Matter filed by Plaintiff, ECF No. 170, be granted, but that summary judgment as the claims asserted therein be entered in favor of Defendants Friedline, Smead and Gilara. Further, in light of the recommendation that summary judgment be granted as to all federal claims, and that Defendants Maddie and Abraham be terminated from the docket of this action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, Judge Baxter recommended that the Court decline to exercise supplemental jurisdiction over any remaining state law claims, and that such claims be dismissed without prejudice.

         Plaintiff was served with a copy of the Report and Recommendation (“R&R”) and advised that any objections thereto were to be filed by December 20, 2017. Thereafter, Plaintiff sought and was granted an extension to filed his objections until January 5, 2018, and his extensive objections were filed on January 9, 2018. (ECF Nos. 181, 182, 183). Plaintiff has also filed a Motion with New Evidence, ECF No. 184, attaching the affidavit of a fellow inmate, relevant to Plaintiff's Eighth Amendment failure to protect and First Amendment retaliation claims against certain DOC Defendants.

         Where, as here, objections have been filed, the court is required to make a de novo determination about those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept, reject, or modify the recommended disposition, as well as receive further evidence or return the matter to the magistrate judge with instructions. In this instance, the Report itself is an adequate answer to Plaintiff's objections. Nonetheless, the Court will briefly respond to some of those objections which are not merely a restatement of his arguments and claims, which were discussed and addressed in the R&R.

         I. Failure to Protect/Retaliation Related to Placement in General Population

         Plaintiff objects to the R&R on the grounds that there are disputed issues of material fact regarding, inter alia, injuries allegedly sustained in an assault which occurred on July 17, 2014. In particular, Plaintiff points to contemporaneous medical records documenting his complaints of numbness and nerve damage to his right lower extremities and his treatment with pain medication. However, the issue is not whether Plaintiff sustained an injury, but whether Plaintiff has presented evidence upon which any reasonable juror could conclude that a named Defendant was deliberately indifferent to his medical needs or to a known risk to Plaintiff's safety when he was assigned to a general housing unit. Farmer v. Brennan, 511 U.S. 825, 833-34 (1994). The Magistrate's thorough review of the record demonstrates that Plaintiff has not met his burden.

         The undisputed evidence establishes that upon Plaintiff's return to SCI-Forest after a two-week transfer to attend unrelated court proceedings, Defendant Dombrowski, SCI-Forest's unit manager, mistakenly assigned Plaintiff to general population rather than continuing a prior administrative custody placement. Plaintiff points to an investigation report that establishes Defendant Dombrowski was aware that Plaintiff had previously been placed in administrative custody status, but this does not establish that his error was the result of a deliberate indifference to an excessive risk of harm. In conjunction with Plaintiff's current objections, Plaintiff provides the Court with evidence of the various reasons for an administrative custody rating, including presenting a danger to self, a danger to others, being suspected of instigating a disturbance, and situations when placement in general population would endanger the inmate's safety and it is not possible to protect him/her by other means. ECF No. 183-4 pp. 2-3. However, Plaintiff does not point to any evidence that Dombrowski was aware of the reasons for Plaintiff's administrative custody rating, such that he deliberately disregarded a current known risk to Plaintiff's safety.[1]To overcome summary judgment, “the official must actually be aware of the existence of the excessive risk; it is not sufficient that the official should have been aware.” Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). Such evidence is wholly lacking here.

         Similarly, Plaintiff fails to raise a genuine dispute of material fact with regard to whether Defendants Burkhart, Mahany or Haggerty were deliberately indifferent to a known risk to Plaintiff's safety as a result of his placement in G Block. Plaintiff's deposition testimony establishes that Defendants Burkhart and Mahany implemented Defendant Dombrowski's housing assignment, and Defendant Haggerty wished him a “good day.” While Plaintiff disputed his placement, he did not raise a concern for his safety with any of these individuals. ECF No. 155-1 p. 11. With his objections, Plaintiff has filed the declaration of an inmate who attests to being present when Plaintiff received his housing assignment. ECF No. 184. According to this witness, he observed Plaintiff argue with Defendants Mahany and Burkhart regarding his placement and, after Plaintiff left the area, observed Defendant Burkhart place a call requesting confirmation of the propriety of Plaintiff's assignment to general population. Id. The alleged assault occurred just forty-five minutes later. Plaintiff's evidence confirms that Defendant Burkhart addressed Plaintiff's concerns, took steps to confirm his release to general population, and was not deliberately indifferent to a known risk of harm. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012).

         Plaintiff next objects to the Court's recommendation that summary judgment be granted in favor of Defendants Haggerty and Burkhart with regard to his First Amendment retaliation claims. ECF 183, pp. 8-9. These claims are predicated upon their alleged participation in Plaintiff's placement in general population on July 17, 2014. Plaintiff contends that each knew he would be in danger, but placed him in general population in retaliation for prior grievances and a lawsuit filed by Plaintiff against both Defendants.

         As indicated in the R&R, to prevail on a retaliation claim, a plaintiff must show three things: (1) that the conduct in which he engaged was constitutionally protected; (2) that he suffered “adverse action” at the hands of prison officials; and (3) that his constitutionally protected conduct was a substantial motivating factor in the defendants' conduct. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). It is Plaintiff's burden to establish all three elements of a prima facie retaliation claim. With regard to the third element, the Plaintiff must show a causal connection between his constitutionally protected activity of filing complaints and grievances and the adverse action he allegedly suffered at the hands of the Defendants. “To establish the requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267-67 (3d Cir. 2007). “In the absence of that proof the plaintiff must show that from the ‘evidence gleaned from the record as a whole' the trier of the fact should infer causation.” Id. quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). The Third Circuit has emphasized that courts must be diligent in enforcing these causation requirements Id.

         The R&R indicates that Plaintiff failed to present evidence related to the timing and substance of his prior grievances, so as to support an inference that his constitutionally protected conduct motivated Defendants Burkhart and Haggerty to assign Plaintiff to a general population unit. ECF No. 180, p. 11. Magistrate Judge Baxter further concluded that “the record as a whole does not support an inference that Defendants [Burkhart and Haggerty] acted with a retaliatory motive when Plaintiff was assigned to a general population unit for his temporary stay at SCI-Forest.” ECF No. 180 at 11.

         Plaintiff presents for the first time a Joint Trial Exhibit List from a separate lawsuit filed against, inter alia, Defendants Burkhart and Haggerty, which appears to confirm that he had filed grievances against both in 2013 and early 2014, related to the confiscation of a television and boots, and that both were involved in the review response through at least May 2014. ECF Nos. 183, p. 8; 183-5. This new evidence does present a plausible suggestive temporal proximity between the protected activity and the alleged misconduct on July 17, 2014. However, this merely shifts the burden to the Defendants to demonstrate, by a preponderance of the evidence, that their actions would have been the same, even if Plaintiff were not engaging in the constitutionally protected activities. Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002). On the record presented, Plaintiff's claim fails.

         First, Plaintiff's housing assignment was made, albeit in error, by Defendant Dombrowski, the housing unit manager, who is not alleged to have acted in retaliation, and who was not present at the facility on the day of Plaintiff's transfer to SCI-Forest.[2] Second, as indicated by Plaintiff's new inmate witness statement, ECF No. 184, after Plaintiff verbally objected to his assignment, Defendant Burkhart placed a phone call to confirm the propriety of Plaintiff's release to general population. Third, there is no evidence that the individuals involved in Plaintiff's prior inmate altercation were housed in the general population unit to which Plaintiff was assigned, or that either Defendant Burkhart or Defendant Haggerty were aware that his placement in G Block would present a danger or risk of harm so as to infer that either was deliberately indifferent to a known risk of harm. Under these circumstances, no reasonable juror could ...


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