United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Holloway, Jr. was an inmate at State Correctional
Institute-Chester (“SCI-Chester”) on August 30,
2016 when he was allegedly assaulted by Correctional Officer
Jamaine Anderson. Holloway claims that another Correctional
Officer, Sergeant Michael Velasquez, was present but failed
to protect Holloway from Anderson.
sued Anderson, Velasquez, and Correctional Officer Doe, who
is also alleged to have witnessed but failed to stop
Anderson's assault. Holloway asserts against Anderson a
Section 1983 excessive force claim in violation of his Eighth
and Fourteenth Amendment rights (Count 1) and assault and
battery under Pennsylvania law (Count 4). Holloway alleges
that Velasquez and Doe “failed to intervene” to
protect Holloway, again pursuant to 42 U.S.C. § 1983 and
the Eighth and Fourteenth Amendments (Count 2). Holloway
further asserts a claim against all Defendants for
retaliation, purportedly in violation of his First Amendment
rights (Count 3). Velasquez moved to dismiss the Second
Amended Complaint (ECF No. 34) and the Court granted the
motion in part, dismissing the retaliation claim in its
entirety and the failure to intervene claim against Velasquez
in his official capacity (ECF No. 42). He moves now for
summary judgment with respect to the failure to intervene
claim brought against him in his individual capacity. (Mot.
for Summ. J., ECF No. 53.) Holloway urges the Court to watch
the video “because [it] speaks for itself.” (Pl.
Resp. in Opp. at 3, 6, ECF No. 55.) Holloway is correct-and
based on the video, the Court concludes that no reasonable
juror could return a verdict for Holloway on his failure to
began serving his prison sentence in April 2014 and was
transferred to SCI-Chester that August. (Mot. for Summ. J.,
Ex. B (“Holloway Dep.”) at 16:23-18:3.) He was
returning to his cell around 8:00 p.m. on August 30, 2016,
when he asked Anderson to open his cell door. (Id.
at 19-21.) Thinking that Anderson was ignoring his request,
Holloway walked back to the officer desk and confronted
Anderson. (Id. at 21:17-24.) Holloway then
approached Velasquez who was walking into the day room where
the desk was located. (Id.)
to Velasquez, Holloway was ranting and somewhat incoherent;
he told Velasquez that Anderson would not let Holloway back
into his cell. (Mot. for Summ. J., Ex. D (“Velasquez
Dep.”) at 19.) Holloway agreed to go back inside and
wait by his cell door while Velasquez spoke to Anderson.
(Id. at 21.) Once inside, Holloway did not go
directly to his cell door but instead lingered between the
cell door and the officer desk. (Id. at 22-24.) In
response to questions from Velasquez, Anderson explained that
the monitor at the officer desk showed that Holloway's
cell door was already open. (Id. at 24-26.)
went to turn off the televisions in the day room while
Velasquez remained seated at the officer desk with his back
to Holloway. (Id. at 26:12-22.) The prison camera,
which captured the area in front of the officer desk,
recorded the following sequence of events. (Mot. for Summ.
J., Ex. B (“Video”).) As Anderson is walking back
to the officer desk, he passes Holloway and they appear to
bump each other. (Video at 0:43.) Two seconds later, Holloway
and Anderson turn toward one another and appear to exchange
words. (Video at 0:45.) Holloway and Anderson continue to
move around the day room, chest to chest. (Id. at
0:45-0:55.) Anderson then points in Holloway's face
(id. at 0:55), and while remaining close to
Holloway, turns toward the officer desk and appears to say
something which Holloway claims was “I'm going to
beat this motherfucker up” (id. at 0:58;
Holloway Dep. at 25:22-26:1).
seconds later, Holloway and Anderson grab each other and
begin to struggle. (Video at 1:04.) Anderson punches Holloway
(id. at 1:07) and throws him to the ground
(id. at 1:11). Five seconds after the first punch,
Velasquez enters the video frame while simultaneously placing
his radio in his holster and walking toward Anderson and
Holloway. (Id. at 1:12.) As Velasquez approaches the
pair, Anderson is on top of Holloway while Holloway is
punching Anderson's back. (Video at 1:12-1:18.) Velasquez
tries to restrain Holloway and from this point forward,
Anderson does not punch, shove, or kick Holloway.
(Id. at 1:18; Velasquez Dep. at 102:18-103).
Velasquez grabs Holloway's arm and leg, places handcuffs
on one of Holloway's hands, pushes Anderson off Holloway,
and finishes handcuffing Holloway. (Video at 1:16-1:40.)
Fifty-seven seconds elapse from the time Holloway and
Anderson's shoulders touched until Holloway was
restrained and the fight ended; a mere thirty-six seconds
elapse between the moment Velasquez sees the fight start and
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the nonmoving party, the moving party is entitled to judgment
as a matter of law. Smathers v. Multi-Tool,
Inc./Multi-Plastics, Inc. Emp. Health & Welfare
Plan, 298 F.3d 191, 194 (3d Cir. 2002); see
also Fed. R. Civ. P. 56(c). A genuine issue of material
fact exists when “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A mere
scintilla of evidence in support of the nonmoving party will
not suffice; there must be evidence by which a jury could
reasonably find for the nonmoving party. Id. at 252.
Summary judgment is appropriate where “the nonmoving
party has failed to make a sufficient showing on an essential
element of her case with respect to which she has the burden
of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
reviewing the record, a court “must view the facts in
the light most favorable to the nonmoving party and draw all
inferences in that party's favor.” Prowel v.
Wise Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009). The
court may not, however, make credibility determinations or
weigh the evidence in considering motions for summary
judgment. See Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk.
Comm'n, 293 F.3d 655, 665 (3d Cir. 2002). Where
there is video evidence that contradicts the testimony of an
opposing party, the Court should not adopt the nonmoving
party's facts over the clear video evidence to the
contrary. Scott v. Harris, 550 U.S. 372, 380 (2007);
see, e.g., Fennell v. Cambria County
Prison, 607 Fed.Appx. 145, 148 (3d Cir. 2015) (finding
the district court properly relied on the videotape of
alleged excessive force by an officer against a state
prisoner in resolving any factual disputes); McDowell v.
Sheerer, 374 Fed.Appx. 288, 291 (3d Cir. 2010) (stating
that where there are video recordings of the incident in
question, the court need not adopt the nonmovant's
version of the facts if the recording contradicts the
Holloway was serving a sentence, his excessive force claim is
analyzed under the Eighth Amendment. Graham v.
Connor, 490 U.S. 386, 395 n.10 (1989). Velasquez can be
liable for failing to intervene in the fight between Anderson
and Holloway only if Anderson's conduct amounted to a
constitutional violation and Velasquez “had a
reasonable opportunity to intervene and simply refused to do
so, ” Smith v. Mensinger, 293 F.3d 641, 650
(3d Cir. 2002). Santiago v. Warminster Twp., 629
F.3d 121, 130 (3d Cir. 2010).
is no evidence that Velasquez had the opportunity to
intervene yet failed to do so. Cf. Smith, 293 F.3d
at 653 (reversing the district court's dismissal of a
failure to intervene claim where there was evidence that the
officer stood watching a beating through an open door but did
nothing to intervene); Kates v. Packer, No.
13-01525, 2018 WL 724444, at *5 (M.D. Pa. Feb. 6, 2018)
(denying summary judgment where there was a genuine issue of
fact as to whether the officer watched an inmate get attacked
for thirty to forty five seconds without intervening). In
fact, the video demonstrates the opposite: Velasquez
immediately attempted to break up the fight between Holloway
and Anderson. Within twelve seconds of Anderson grabbing