Mayo v. Little

Full title: SHANNON MAYO, Plaintiff, v. TIMOTHY LITTLE, et al., Defendants

Court: United States District Court, W.D. Pennsylvania

Date published: Feb 10, 2022

3:18-cv-125-KRG-KAP (W.D. Pa. Feb. 10, 2022)

Opinion

3:18-cv-125-KRG-KAP

02-10-2022

SHANNON MAYO, Plaintiff, v. TIMOTHY LITTLE, et al., Defendants

KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE

Recommendation

Plaintiff Shannon Mayo is an inmate at S.C.I. Houtzdale who filed a complaint in June 2018, claiming that defendants Timothy Little, Officer Havens, Officer Barbour, and Mr. Links, all employees of the Department of Corrections, violated his civil rights. The defendants filed a motion for summary judgment, ECF no. 70, brief in support, ECF no. 71, statement of material facts, ECF no. 72, appendix, ECF no. 73, that has been fully briefed, see plaintiff's response, ECF no. 76, brief, ECF no. 77, statement of material facts, ECF no. 75, and exhibits attached to ECF no. 78. I recommend that the defendants' motion be granted and this case ended.

Report

The standard for summary judgment is well settled. A party moving for summary judgment bears the initial burden of pointing the district court to the basis in the record for its argument that there is no genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so, Fed.R.Civ.P. 56 then obliges the party opposing summary judgment to show by competent evidence that there is a genuine factual dispute, that is, that sufficient evidence exists so that a reasonable jury applying the relevant law could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). Where there is a factual dispute, all reasonable inferences must be drawn in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Mayo claims that (1) on March 27, 2017, corrections officer Barbour used excessive force against him; (2) defendants Link, Havens and Little were deliberately indifferent to the prospect that plaintiff would be attacked by his cellmate on May 19, 2016; and (3) in June 2016 Little was deliberately indifferent to the prospect of injury to plaintiff from environmental tobacco smoke.

Review of the first claim for excessive use of force is aided by the existence of a video record of the incident in question. Defendants assert the video shows that the force used was “pursuant to valid penological interests of maintaining order and ensuring compliance . . ..” ECF no. 71 at 4-6. As defendants view the video, it is undisputed that as Barbour escorted plaintiff to a video conference, plaintiff was non-compliant with Barbour's directives to stop moving/turning towards Barbour and that Barbour secured plaintiff against a table to regain control of him. Defendants add that the use of force ceased after compliance was effected and there is no objective evidence of physical injury from the incident other than a bruise on Mayo's right thigh.

Mayo does not dispute the defendants' description of the video but asserts that he has “not been able to view the video evidence” and that the motion for summary judgment should be dismissed on that basis. ECF no. 77 at 2. This is not a valid argument. Mayo's claim does not suggest defendants prevented his review, and if they had access to the video could and should have been raised during discovery. Failure to review evidence cannot be used to dispute that evidence. If it is black letter law that a party cannot defeat a properly supported motion for summary judgment by offering only conclusory allegations or denials, see Hardwick v. Packer, 546 Fed.Appx. 73, 77 (3d Cir. 2013)(affirming summary judgment for corrections officer defendants against a claim of excessive use of force), a party surely cannot offer only a claim of ignorance.

I have reviewed the video record, which in relevant part is almost exactly five seconds long, and it corroborates the defendants' version of events completely. There are two camera angles, one from overhead and one from the far wall of the standard triangular two-tier housing unit. The far-wall camera shows Mayo, handcuffed, walking between two corrections officers. Mayo looks like he is talking throughout the escort, and he repeatedly turns his head toward the larger officer, including once as they approach the table fixed to the floor on the first floor of the unit. Here, the officer identified as Barbour pushes Mayo into the table in a single one-handed push that moves Mayo through a distance of only a few inches before Mayo makes contact with the table. Mayo goes up onto his side and back on the table because Mayo's center of gravity is above where his outer right thigh contacts the table surface, but Mayo neither is pushed again nor falls off the table. The two corrections officers immediately turn Mayo around and begin walking him back in the direction they came from, and almost simultaneously an officer (a “white shirt”) enters the unit and follows the corrections officers and Mayo.

Mayo, although explaining why he is in the right, does not dispute that he was talking to Barbour and did not follow Barbour's orders not to turn his head toward him, ECF no. 75 at ¶ 19, or that he turned his head towards Barbour immediately preceding the use of force, ECF no. 77 at ¶ 6. Mayo quibbles with unimportant details like the defendants' use of prepositions (whether he was put “against” versus “on” the table, ECF no. 75 at ¶ 12). His claim that he personally presented no threat is not relevant. Any court would have to inform a jury or itself take judicial notice that inmates frequently use spit, not to mention urine and other available biologic material, to injure or harass corrections officers. Mayo may indeed have presented no threat to Barbour, but a policy that requires inmates not to face officers during escort is certainly permissible, as is an order from Barbour that Mayo face forward. There is no prerequisite to any such policy or order, or to the enforcement of them, that Mayo personally have assaulted anyone. In layman's terms, Barbour was not required to actually run the risk of being spit on before taking steps to secure Mayo.

The only relevant factual dispute concerns Mayo's claim that the use of force resulted in more injury than defendants acknowledge. Mayo told the medical staff after the March 27, 2017, incident that he did not appreciate any injury on that date, but two weeks later on April 12, 2017, he did seek medical attention for pain in his left shoulder and for a bruise on his right thigh. ECF no. 75 ¶ 17. The medical staff found that to be treatable by plaintiff's already-prescribed dose of Excedrin.

The relevant law is well-settled: to restore or to maintain order, corrections officers are permitted to use force that would not be acceptable in other contexts. See Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (shotgun used against inmate plaintiff). Whitley v. Albers requires Mayo to show at this stage of the proceeding that there is a genuine issue of fact about whether Barbour acted “maliciously and sadistically for the very purpose of causing harm.” Id. Excessiveness is not the test - that is applicable to pretrial detainees, see Kingsley v. Hendrickson, 576 U.S. 389, 402 (2015) - nor is deliberate indifference, see Whitley v. Albers, id. The Court of Appeals has explained many times:

The unnecessary and wanton infliction of pain is considered cruel and unusual punishment under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). When evaluating excessive force claims, the key inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 7. In making this inquiry, courts examine a number of factors: “(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them; and (5) any efforts to temper the severity of a forceful response.” Brooks [v. Kyler], 204 F.3d [102] at 106 [(3d Cir. 2000)]. De minimis injuries may suffice to state a claim for excessive force. Id. at 103.

Proctor v. Burke, 630 Fed.Appx. 127, 131-32 (3d Cir. 2015). When evaluating the use of force,

“[a] court (judge or jury) cannot apply this standard mechanically.”

[Graham v. Connor, 490 U.S.] at 397 [(1989)]. Instead, it requires “careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S. at 396. Those circumstances include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley [v. Hendrickson], 576 U.S. [389] at 397 [2015].

We analyze these circumstances “from the perspective of a reasonable officer on the scene.” Id. Running a jail is “an inordinately difficult undertaking.” Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). “Safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” Kingsley, 576 U.S. at 399 (internal quotation marks omitted) (quoting Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 326, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012)). Officers facing disturbances “are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving.” Id. (internal quotation marks omitted) (quoting Graham, 490 U.S. at 397). And “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, ” violates an inmate's constitutional rights. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted) (quoting Johnson [v. Glick], 481 F.2d [1028] at 1033 [(2d Cir. 1973)]).

Jacobs v. Cumberland County, 8 F.4th 187, 194-95 (3d Cir. 2021)(jury issue presented when video showed officer striking inmate while inmate was defenseless and obeying orders). Using the factors set out by the Court of Appeals, a jury would have to find that some need for force existed because Mayo was not complying with Barbour's orders, that there was brief use of a minimal amount of force to control Mayo that ceased as soon as compliance was obtained. Assuming as Mayo suggests that Mayo's body took time to show the effects of contact with the table it is still undisputed that Mayo suffered no injury that was immediately apparent in the medical examination following the incident. The evidence of a single bruise on Mayo's thigh is inconsistent with the excessive use of force. There is no evidence from which a reasonable jury could conclude that Barbour's conduct was malicious and sadistic.

As to the second claim, defendants argue that plaintiff has failed to establish the necessary elements for a claim of failure to protect plaintiff from an attack by his cellmate, Carlos Diaz. A prison official cannot be found liable under the Eighth Amendment for failure to protect an inmate unless:

the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). The second prong of this test requires an actual, subjective appreciation of a substantial risk. Day v. Bureau of Prisons, 233 Fed.Appx. 132, 133 (3d Cir.2007). In support of the motion for summary judgment, defendants argue that plaintiff has failed to provide any evidence that the relevant defendants were aware of any risk posed by Diaz to plaintiff's health and safety. ECF no. 71 at 10. In reply, Mayo offers three vague and conclusory paragraphs, ECF no. 77, ¶¶ 7-10, about the general duty to protect under Farmer v. Brennan with a single citation to the record, Exhibit 16 at ECF no. 78. That report, taken after the fact to document events, does not indicate in any way that Diaz was a threat, or that Diaz should have been seen as a threat, much less that any defendant knew that Diaz was a threat to Mayo and disregarded that knowledge.

One way for an inmate to demonstrate subjective knowledge by corrections officers of a serious risk to the inmate is to provide evidence that they heard a credible complaint about a specific threat from Diaz. Day, 233 Fed.Appx. at 134. A second way for plaintiff to demonstrate deliberate indifference is circumstantially, through facts known to the defendants that (if proved) made the excessive risk of serious harm so obvious that it can be plausibly inferred that the defendants in fact knew of it. Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.2001); see also Haley v. Gross, 86 F.3d 630, 642 (7th Cir.1996) (the risk of injury to plaintiff from being locked in a cell because of his cellmate's actions, who was acting “like he was crazy” and openly threatening to set cell on fire, was sufficiently obvious that jury could conclude it was known to corrections officers).

Plaintiff has presented evidence of neither a specific threat from Diaz known to defendants nor circumstantial evidence of obvious excessive risk of serious harm posed by Diaz. On the date of the attack by Diaz, May 19, 2016, corrections officer Havens notified unit manager Little that plaintiff and Diaz -who had both signed a voluntary celling agreement-were “having issues” and Havens had told Diaz to start packing to move to another cell. ECF no. 72 ¶ 37; ECF no. 73-1 at 39. There is no evidence or mention of threats of violence or any suggestion of danger of any sort. Even in plaintiff's complaint he only alleges that after a few months together Mayo and Diaz began to argue, noisily but not violently, about whether Mayo's legal work late at night, and particularly the noise from Mayo's memory typewriter, was excessive. In his opposition to summary judgment, Mayo states that just before the attack, Mayo took the opportunity presented by Diaz' absence from their cell to take out his memory typewriter and begin to print legal documents. Diaz then returned, saw and heard this, and hit Mayo. See ECF no. 75, ¶37. Plaintiff's argument that from these two facts defendants knew that Diaz had threatened immediate bodily injury to Mayo is pure self-serving speculation.

As Farmer discusses, even when corrections personnel know of a risk, they cannot be found liable when they respond reasonably to what they do perceive, “even if the harm ultimately was not averted.” Farmer v. Brennan, 511 U.S. at 844. There is nothing to indicate that Havens' action -ordering a separation- was not reasonable. Mayo has failed to produce any evidence of any defendants' actual, subjective appreciation of a substantial risk to Mayo from Diaz, and has failed to raise any genuine dispute about whether Havens' actions were reasonable.

As to plaintiff's environmental tobacco smoke (ETS) claim, I previously summarized it as follows:

Plaintiff's third claim is that … defendant Little was in June 2016 deliberately indifferent to plaintiff's serious pulmonary disease by assigning plaintiff to CA-block where there was a high level of environmental tobacco smoke, rather than to the No. Smoking Tobacco Free (NTSF) side of C-Block. This claim may ultimately be inadequate because plaintiff does not allege any more than de minimis injury and it appears that his stay on CA-block was of short duration….

ECF no. 3 at 4-5. Since that assessment of Mayo's present-injury ETS claim more than three years ago, Mayo has failed to develop any element of a present-injury ETS claim. The undisputed evidence shows that plaintiff was moved to the CA-block after a stay in the RHU, and that move was due to space limitations. Mayo was not moved to a non-smoking block because he had not properly applied for it. When he filed a grievance about this issue, he was told that all housing units were considered to be non-smoking and that if his cellmate was smoking in the cell, he should report it to staff. ECF no. 75 ¶¶ 42-43, ECF No. 73-1 at 49.

In opposition to the motion for summary judgment, Mayo presents no evidence as to the duration of his assignment in what he calls the smoking area, he presents no evidence as to the level of ETS to which he was exposed, and he presents no evidence as to the effects of the ETS on him. He does state that in 2016 he had COPD (unrelated to the objected-to housing assignment) and asthma, and he asserts that his need at that time to be housed on a nonsmoking block superseded anyone else's. ECF no. 75 ¶ 45. But that is it. Mayo contends that he is “in the discovery process” as to this claim. ECF no. 77 ¶ 11. If he is suggesting that this means he has no duty come forward with evidence at this point he is incorrect. The Court of Appeals set forth the applicable law as follows:

In Helling v. McKinney, the Supreme Court recognized that a prisoner may state an Eighth Amendment claim for exposure to levels of ETS that pose an unreasonable risk of serious damage to the prisoner's future health. 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); see also Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003). An inmate alleging such a violation can base his claim on either a present or future injury, both types involving an objective and subjective element. For a present injury case, a plaintiff must show (1) a sufficiently serious medical need related to the ETS exposure and (2) deliberate indifference by prison authorities. Atkinson, 316 F.3d at 266. For a future injury case, a plaintiff must show (1) that "the risk of which [plaintiff]

complains is not one that today's society chooses to tolerate," and (2) deliberate indifference by prison authorities. Helling, 509 U.S. at 36.

Spellman v. Sec'y Pa. Dep't of Corr., 751 Fed.Appx. 251, 252-53 (3d Cir. 2018). Spellman also holds that vague and conclusory claims about ETS exposure and health issues are not sufficient to show either a present-injury or a future-injury ETS claim, and that the element of deliberate indifference is negated by a good faith policy prohibiting smoking and taking inmate grievances about violations seriously. Mayo does not dispute defendants' assertion that he was told that if he witnessed violations of the smoking policy he should report them for action.

Mayo's claims concerning his exposure to ETS in mid-2016 were enough to state a claim when he raised them in a complaint two years later. But plausible allegations of fact in a complaint are entitled to a presumption that they are true. That presumption does not apply at the summary judgment stage. Almost six years after his alleged exposure, Mayo's inability to produce or cite or point to any evidence relevant to liability or damages is fatal to his claim.

Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).