United States District Court, M.D. Pennsylvania
ANGELO L. DAVIS, Plaintiff,
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
CONNER, C. J.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE
plaintiff, Angelo L. Davis, filed his original pro
se complaint in this prisoner civil rights action on
March 25, 2016. (Doc. 1.) At the time of filing, he was no
longer incarcerated, having been released from prison nine
days earlier. On January 11, 2018, with leave of court, Davis
filed his amended complaint. (Doc. 68; Doc. 71; see
also Doc. 73.)
April 15, 2019, the defendants filed a motion for summary
judgment (Doc. 126), together with their statement of
material facts and supporting exhibits (Doc. 127). On April
29, 2019, the defendants filed their brief in support of the
motion for summary judgment. (Doc. 130.) Several months
later, after multiple extensions of time, the plaintiff has
failed to file any substantive response in opposition to the
defendants' motion. (See Doc. 132; Doc. 133;
Doc. 134; Doc. 135; Doc. 136; Doc. 137; Doc. 138; Doc. 139;
Doc. 140; Doc. 141; Doc. 142; Doc. 143.)
matter is ripe for disposition.
plaintiff's claims arise out of a pair of
“shakedown” cell searches that occurred on
October 9 and 13, 2014. Correctional officers conducting the
searches were looking for K2 synthetic marijuana, none of
which was found in the plaintiff's possession. At the
time, Davis was incarcerated at SCI Camp Hill, located in
Cumberland County, Pennsylvania. He had only recently arrived
there from another prison.
items of the plaintiff's personal property were
confiscated as a result of these “shakedown”
searches, and he received a misconduct report charging him
with possession of contraband, lying to an employee, loaning
and borrowing property, and failure to report contraband.
Some of these items had been received by Davis from other
inmates when they were released from prison. Prior to his
arrival at SCI Camp Hill, Davis had been through multiple
“shakedown” cell searches at other institutions,
where he had been permitted to keep the same items of
property without confiscation or misconduct charges.
October 15, 2014, a disciplinary hearing on the misconduct
charges was held before a hearing examiner. Davis was found
guilty and sanctioned with 30 days in the restricted housing
unit (“RHU”). In his complaint, Davis alleged
that he was not provided with copies of property confiscation
slips or his legal property, which impaired his ability to
mount a defense at the disciplinary hearing. He
unsuccessfully appealed the disciplinary sanction.
in the RHU, Davis has alleged that his cell was unfit for
human habitation. He claims that it had rodent droppings on
the floor, a broken sink and toilet, and water (including
urine) on the floor. He has further alleged that he had a
hernia at the time and was denied medical attention or
treatment, and that he was forced to jump up to and down from
the top bunk while suffering from this untreated hernia.
also alleged that he was actively litigating two federal
civil rights actions at that time, and the confiscation of
his legal property interfered with his ability to litigate
those actions: Davis v. Harlow, W.D. Pa. No.
2:11-cv-01506, and Davis v. Pennsylvania Dep't of
Corrs., W.D. Pa. No. 2:14-cv-01551.
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute of material
fact is “genuine” only if the evidence “is
such that a reasonable jury could return a verdict for the
non-moving party.” Anderson, 477 U.S. at 248.
In deciding a summary judgment motion, all 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.” Pastore v.
Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, ” and demonstrating the absence of a
genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts,
supported by the record, demonstrating that “the
evidence presents a sufficient disagreement to require
submission to the jury.” Anderson, 477 U.S. at
evaluating a motion for summary judgment, the Court must
first determine if the moving party has made a prima
facie showing that it is entitled to summary judgment.
See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331. Only once that prima facie showing has
been made does the burden shift to the nonmoving party to
demonstrate the existence of a genuine dispute of material
fact. See Fed. R. Civ. P. 56(a); Celotex,
477 U.S. at 331.
parties may cite to “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only),
admissions, interrogatory answers or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
56(c)(4). “Although evidence may be considered in a
form which is inadmissible at trial, the
content of the evidence must be capable of admission
at trial.” Bender v. Norfolk S. Corp., 994
F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v.
Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d
Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at
the defendants have moved for summary judgment, but the
plaintiff has failed to submit a brief in opposition or any
other papers contesting the defendant's motion. The
plaintiff's failure to actively oppose the
defendant's motion for summary judgment implicates two
local rules, which provide that a party who fails to file a
brief in opposition to a motion “shall be deemed not to
oppose such motion, ” L.R. 7.6, and that all material
facts set forth in the movant's statement of material
facts “will be deemed to be admitted unless
controverted” by a counter-statement of material facts
by the non-movant, L.R. 56.1.
the plaintiff's failure to respond to the motion does not
mean that the defendants are automatically entitled to
summary judgment. See Anchorage Assocs. v. Virgin Islands
Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990).
These local rules must be construed and applied in a manner
consistent with Rule 56 of the Federal Rules of Civil
Procedure. See Id. at 174. Thus, in the context of a
motion for summary judgment, a non-movant's failure to
file an opposition brief and counter-statement of material
facts is “construed as effecting a waiver of [the
non-movant's] right to controvert the facts asserted by
the moving party in the motion for summary judgment or the
supporting material accompanying it.” Id. at
175-76. The moving party must nevertheless establish that,
based on the facts set forth in support of its motion, it is
entitled to judgment as a matter of law. See id.;
see also Lorenzo v. Griffith, 12 F.3d 23, 28 (3d
Cir. 1993); Miller v. Ashcroft, 76 Fed. App'x
457, 462 (3d Cir. 2003) (“Even though the applicable
[Middle District of Pennsylvania] local rules provide that a
summary judgment motion is to be considered unopposed and its
statement of material facts admitted where a responsive brief
is not timely filed, the Magistrate Judge was still required
to find that the undisputed facts warranted judgment as a
matter of law.”) (citations omitted).
other words, in the absence of active opposition by the
non-movant, the two-step, burden-shifting analysis that
normally applies on summary judgment is abbreviated to just
the first step, requiring the moving party to make a prima
facie showing that it is entitled to summary judgment, based
on the undisputed facts of record. See Fed. R. Civ.
P. 56(a); Celotex, 477 U.S. at 331.
asserts federal civil rights claims pursuant to 42 U.S.C.
§ 1983. Section 1983 provides a private cause of action
with respect to the violation of federal constitutional
rights. The statute provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or any other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.
1983 does not create substantive rights, but instead provides
remedies for rights established elsewhere. City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To
establish a § 1983 claim, a plaintiff must establish
that the defendant, acting under color of state law, deprived
the plaintiff of a right secured by the United States
Constitution. Mark v. Borough of Hatboro, 51 F.3d
1137, 1141 (3d Cir. 1995).
Davis claims that the defendants conducted an unreasonable
search of his prison cell for contraband and confiscated
legal documents and other personal property from his cell, in
violation of his Fourth Amendment rights. He claims that his
Fourteenth Amendment equal protection rights were violated
because some of the property seized from his cell had
previously been in the possession of other inmates without
seizure of the property or disciplinary charges against them.
He claims that his Fourteenth Amendment due process rights
were violated by the seizure of his personal property. He
claims that he was denied his First and Fourteenth Amendment
right of access to courts because the seizure of his legal
property interfered with his ability to litigate two civil
rights actions. Davis claims that he was denied his
Fourteenth Amendment due process right to present documentary
evidence in his defense at his disciplinary hearing. He
claims that his due process rights were also violated when a
deputy superintendent failed to timely respond to his
misconduct appeal. Davis claims that his confinement in an
RHU cell with mouse droppings and the stench of urine
constituted cruel and unusual punishment in violation of his
Eighth Amendment rights. Davis further claims that one of the
defendants was deliberately indifferent to his serious
medical needs because she assigned him to a top bunk even
though he had a hernia. He claims, in cursory fashion only,
that he was deprived of his Thirteenth Amendment right to be
free from involuntary servitude or slavery. Finally, Davis
claims that he was held by Pennsylvania Department of
Corrections (“DOC”) illegally because it had
failed to receive and maintain a valid copy of his sentencing
Sentencing Order Claim
begin with the last of these claims. Davis claims that he was
illegally incarcerated because the DOC was unable to provide
him with a copy of his sentencing order-implying that no
valid sentencing order ever existed. This claim is barred by
the doctrine of res judicata. Under this doctrine, a claim is
barred where three circumstances are present: “(1) a
final judgment on the merits in a prior suit involving (2)
the same parties or their privies and (3) a subsequent suit
based on the same cause of action.” Lubrizol Corp.
v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991). With
respect to the first factor, Davis presented the very same
claim in a prior lawsuit, where it was dismissed with
prejudice for failure to state a claim upon which relief
could be granted. See Davis v. Pa. Dep't ofCorrs., Civil Action No. 14-1551, 2016 WL 1639623
(W.D. Pa. Apr. 26, 2016). No. appeal was taken. This