United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
Anthony Phillips ("Phillips"), an inmate who was
housed at all relevant times at the State Correctional
Institution at Mahanoy, in Frackville, Pennsylvania
("SCI-Mahanoy"), commenced this civil rights action
pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as
Defendants are Superintendent John Kerestes, Deputy
Superintendent Hugh Beggs, Lieutenant Kevin
Clark, Lieutenant Charles Butts, Lieutenant Ryan
Reese, Unit Manager Joseph Holly, Correctional Officer Eugene
Kabilko, Correctional Officer James Murphy, Correctional
Officer Thomas Connors, and Corrections Food Service
Instructor Damian Joy. (Id.).
pending before the Court is Defendants' motion for
summary judgment pursuant to Federal Rule of Civil Procedure
56. (Doc. 26). The motion is ripe for resolution and, for the
reasons set forth below, the motion will be granted in part
and denied in part.
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, ... [o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore,
the non-moving party may not oppose summary judgment simply
on the basis of the pleadings, or on conclusory statements
that a factual issue exists. Anderson, Ml U.S. at
248. "A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to
particular parts of materials in the record ... or showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary
judgment should be granted, "[t]he court need consider
only the cited materials, but it may consider other materials
in the record." Fed.R.Civ.P. 56(c)(3). "Inferences
should be drawn in the light most favorable to the non-moving
party, and where the non-moving party's evidence
contradicts the movant's, then the non-movant's must
be taken as true." Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992),
cert, denied 507 U.S. 912 (1993).
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). If a
party has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. 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. When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
Id. (internal quotations, citations, and alterations
Statement of Undisputed Facts
September 16, 2015, at approximately 8:00 a.m., a use of
force incident occurred between Phillips and Defendants
Kabilko, Reese, and other unnamed correctional officers
outside the inmate dining hall. (Doc. 27, Statement of
Material Facts, ¶ 2). The incident began inside the
dining hall. While in the dining hall, Phillips requested a
diet meal, but he did not have a diet card. [Id. at
¶ 3). At this point, Defendant Kabilko called to
Defendant Reese for assistance, and they escorted Phillips
out of the dining hall. [Id. at ¶¶ 4-5).
Defendants contend that video of the incident shows Phillips
refusing orders and backing away from the officers.
[Id. at ¶ 6). Defendant Joy and several other
officers were then called to the area to help with a
noncompliant inmate. [Id. at ¶ 7). Phillips
maintains that he was not threatening anyone, and that it is
unreasonable to conclude that by backing away from officers
he placed them in fear. (Doc. 32, ¶¶ 7, 10, 32).
to the Use of Force Policy and Procedures Manual, DC-ADM 201,
the Department of Corrections ("DOC") authorizes
use of force against an inmate when a staff member reasonably
believes such force is necessary to accomplish any of the
following objectives: (1) protection of self or others; (2)
protection of property from damage or destruction; (3)
prevention of an escape; (4) recapture of an escapee; (5)
prevention of an act of crime; (6) effect compliance with the
rules and regulations when other methods of control are
ineffective or insufficient; and/or, (7) protection of the
inmate from self-inflicted harm. (Doc. 27, ¶ 8). When
force is used, the least amount of force the staff member
reasonably believes is necessary to achieve the authorized
purpose is to be used and the use of force will stop once
control is achieved. (Id. at ¶ 9). Use of force
is applied in accordance with the force continuum, unless the
acting staff member reasonably believes the situation
requires immediate escalation to a greater degree of force to
accomplish any of the above-mentioned objectives.
(Id. at ¶ 10). The following components
sequentially make up a force continuum: (1) show of force;
(2) control techniques, oleoresin capsicum, Electronic Body
Immobilizing Device ("EBID"), and/or Pepperball
System; (3) chemical munitions other than oleoresin capsicum;
(4) active counter measures (strikes against the inmate)
and/or Specialty Impact Munitions; and, (5) firearms.
(Id. at ¶ 11).
Phillips was subdued and he was placed in restraints, he was
escorted to the Restricted Housing Unit ("RHU") to
be treated by medical. (Id. at ¶ 12).
Phillips' medical injury report notes that the examining
nurse treated small abrasions on his right hand middle and
ring fingers, and suggested that he follow-up with a sick
call slip. (Id. at ¶ 13).
September 17, 2015, a physician assistant treated Phillips.
(Id. at ¶ 14). Phillips was informed that his
finger looked dislocated, and an x-ray would be ordered.
(Id. at ¶ 15). On September 18, 2015, Phillips
returned to medical and was advised that his finger was
dislocated. (Id. at ¶ 16). Medical staff
wrapped his finger in a splint. (Id. at ¶ 17).
contends that more than a de minimis amount of force
was used against him. (Doc. 32, ¶ 5). Phillips claims
that he was punched him in the eye, his finger was
dislocated, and an EBID was twice used on him. (Id.
at ¶¶ 10-11). He further contends that there is a
genuine issue as to whether Defendant Reese punched him in
the eye, and ...