MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Jonathan B. Eichelman (“Plaintiff’ or “Eichelman”) brought this action
Presently before the Court is the motion for summary judgment filed on behalf of the County, Warden Guarini, and Corrections Officer King (collectively “the County Defendants”). (Doc. No. 31.) Also before the Court is the motion for summary judgment filed by C.O. Torres. (Doc. No. 32.) Both motions have been fully briefed and are now ripe for resolution. For the reasons set forth below, we will grant in part and deny in part Defendants’ motions.
II. FACTUAL BACKGROUND 2
Plaintiff was arrested on June 3, 2005 for a shooting incident that took place the previous day outside a Lancaster County Taco Bell restaurant in which a two-year old Hispanic boy was wounded. He protested his innocence while being taken to the police department and before the district justice. He was then transported to the Prison in the early morning hours of Saturday, June 4, 2005. The police officer who transported him to the Prison advised a Prison intake official, C.O. Riley, that Eichelman was “the one that shot the two year old at Taco Bell.” At some point thereafter, and within earshot of inmates, C.O. Riley proceeded to inform two constables who happened to be present in the commitment area that Eichelman was charged in that particular shooting. (Aponte Dep. [Ex. D] at 7, 23-24, 29; Laureano Dep. [Ex. Q] at 22-25; Br. in Supp. of Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 5.)
Another new detainee, Jose Soto, was also brought to the Prison on June 4. Soto had been within earshot of C.O. Riley when he commented to the constables that they were detaining the individual involved in the baby shooting.
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Eichelman observed Soto and another Hispanic inmate turn and look at him as law enforcement personnel in the commitment area appeared to talk about him and look at him. Soto and the other inmate were then placed in the same holding cell as Eichel-
Constable Aponte witnessed the assault and advised C.O. Riley, who had been standing behind the desk, that the “Spanish guy” just “popped the shit out of that white boy.” C.O. Riley advised Constable Aponte to ignore it and not look so obvious, making reference to the surveillance cameras in the commitment area. (Aponte Dep. [Ex. D] at 8-10; Aponte Stmt, dated Sept. 19, 2005 [Ex. MM].)
Eichelman remained in the commitment section until he could be more formally classified by appropriate personnel. A supervisory officer, however, determined that while he was in the commitment section he should be housed in a cell by himself, “based on the inmate’s charges and the event surrounding those charges.” (Ennis Stmt, dated June 9, 2005 [Ex. S].) Eichelman’s formal classification interview was conducted by the incoming supervisor on the next shift, Sgt. Terlikowsky. When asked in the course of that interview whether there were potential problems with inmates, Eichelman responded in the affirmative, but the form completed by Sgt. Terlikowsky indicates that the identity of those persons was “unknown.” (Terlikowsky Dep. [Ex. J] at 22-27; Lane. Cty. Prison Med. Dep’t Intake Questionnaire [Ex. T].)
Pursuant to Prison policies in place at the time, an inmate who meets certain criteria may be recommended by the officer performing the classification interview for placement in protective custody. Protective custody status may also be requested by the inmate or his attorney, the police or the prosecutor, although such requests are reviewed by the Prison’s Classification Committee. Alternatively, with the approval of a supervisor or Classification Committee member, an inmate may be placed on “house alone / block alone” (“HA/BA”) status, in which the inmate is housed with the general population but without a cellmate. Another alternative, which can be elected by the correctional officers on a given shift at their discretion, is that an inmate may be locked down in his cell in the general population, with or without a cellmate, for the duration of the shift. (Jacob Dep. [Ex. L] at 10-18; Guar-ini Dep. [Ex. O] at 47-52.) Based on the amount of bail set for Eichelman and the fact that there was no room in the administrative segregation unit, Sgt. Terlikow-sky assigned him to the “3-2” pod, which is a general population area of the Prison designated for maximum security inmates. Sgt. Terlikowsky was not aware that, on the previous shift, Sgt. Ennis had directed that Eichelman be held in a cell by himself. (Terlikowsky Dep. [Ex. J] at 27-28, 33-34.)
Before Eichelman arrived on the pod, news of the Taco Bell shooting had spread throughout the pod’s inmate population through media coverage and rumors that a close relative of the victim was housed on the 3-2 pod. The identity of the shooter, however, was not known to them.
(E.g.,
Mackey Dep. [Ex. G] at 20; Strama Dep. [Ex. N] at 13-14, 31-32; Colon Dep. [Ex. U] at 101; Dixon Dep. [Ex. V] at 18.) Either just prior to or in conjunction with Plaintiffs arrival on the pod, however, C.O. King, who was the officer in charge of
C.O. King escorted Eichelman to a cell on the bottom tier of the 3-2 pod, in the corner farthest from the correctional officer’s desk. A large pillar partially obstructed the limited view into the cell. (Ramsey Dep. [Ex. F] at 14.) When C.O. King walked around the pod later that evening and an inmate asked if Eichelman was the one who shot the Hispanic baby, C.O. King pulled on his shirt and commented that he did not want to lose his job but answered in the affirmative. (Mackey Dep. [Ex. G] at 11.) By Sunday morning, June 5, 2005, threats against Eichelman—who was recognized as the guy who shot the Hispanic child—continued. (Cotton Dep. [Ex. Y] at 75-77.)
At the afternoon shift change meeting held on Sunday, June 5, C.O. King advised his colleagues that Eichelman had been identified in the news media as the shooting suspect and that “they should pay very close attention to him.” (King Dep. [Ex. M] at 31.) The fact that inmates “knew what Eichelman was being charged with” and that they had made threats against Eichelman was also discussed. (Walton Dep. [Ex. X] at 23.) Sgt. Terlikowsky instructed C.O. Walton, who was the officer assigned to the 3-2 pod for the next shift, to place Eichelman in “lock down” status for that 4:00 p.m. to 12:00 a.m. shift, meaning that Eichelman remained locked in his cell at all times that other inmates were permitted out of their cells. (Walton Dep. [Ex. X] at 14. See also Unusual Activity Report of Scott Kearse, dated June 13, 2005 [Ex. W] (reporting that C.O. Kearse was told that Eichelman was placed on lockdown status by supervisor of previous shift “because of his charge”).) C.O. Walton asked Sgt. Terlikowsky at the shift change meeting whether Eichelman should be placed on HA/BA status. He was told, however, to mind his own business and do his job, as there was not a potential risk. (Walton Dep. [Ex. X] at 15.) C.O. Walton’s supervisor also told him not to put any information in the “Pass On” book to the next shift about the earlier threats against Eichelman, as they had not occurred on that shift’s watch and no one during that shift had approached Eichelman’s cell. (Walton Dep. [Ex. X] at 17.) During that shift, officers did not observe any taunting of Plaintiff or become aware of any new threats. (Walton Dep. [Ex. X] at 16-18.)
C.O. Torres worked the 8:00 a.m. to 4:00 p.m. shift on the 3-2 pod on Monday, June 6, 2005. He was advised by the correctional officer he was relieving that a guy who shot a two-year-old was on the pod and that, while he heard some rumors that inmates were making threats, nothing had happened. He was not advised that Ei-chelman had been on lockdown status earlier. (Torres Dep. [Ex. I] at 19-20.) During his shift, C.O. Torres recruited and incited various Hispanic inmates on the pod to assault Eichelman. He asked one inmate, Carlos Colon, and other inmates, in Spanish, whether they were “going to let him” — meaning Eichelman — “get away with that, what he did to the little Spanish kid.” He also told the inmates that if they wanted to “assault him or do anything” to
At the same time, C.O. Torres prepared an “Unusual Activity Report” (“UA”) stating that Inmate Mendez had stated that he was going to assault Eichelman because he “was the one who shot the 2 year old boy.” (Unusual Activity Report of Luis Torres dated June 6, 2005 [Ex. Z].) At the beginning of his lunch break, at approximately 10:00 a.m., C.O. Torres took his UA report to the office of his supervisor, Lt. Billy. At the time, Lt. Billy was meeting with four other Prison officials about another matter. C.O. Torres placed the UA report face down on Lt. Billy’s desk, did not say anything to anyone about it, and took his lunch ticket and left the office. (Torres Dep. [Ex. I] at 23-24; Billy Dep. [Ex. BB] at 18-20.) Around 10:45 a.m., Lt. Billy had an opportunity to review the UA report. He gave it to Sgt. Wolfe and asked him to “handle it,” as Lt. Billy was being called away to take care of another matter elsewhere in the prison. Sgt. Wolfe agreed to handle it right after finishing with the matter about which the group was meeting in the supervisors’ office. Neither Lt. Billy nor Sgt. Wolfe, however, called down to the 3-2 pod to inquire about the situation or to confirm their expectation that C.O. Torres would have locked Eichelman down. (Billy Dep. [Ex. BB] at 20-21; Wolfe Dep. [Ex. CC] at 13-18; Billy Memo for Record dated June 8, 2005 [Ex. DD]; Wolfe Memo for Record dated June 8, 2005 [Ex. EE].)
C.O. Torres returned to the pod from his lunch break around 10:30 a.m. He tried unsuccessfully to reach his supervisors by phone regarding his UA report. Just after 11:00 a.m., he had the control center open the doors of all of the bottom tier of the pod to allow those inmates out for lunch. (Torres Dep. [Ex. I] at 24-27.) Around this time, at least two Hispanic inmates — Inmate Mendez and another inmate known as “Major,” who had previously made threats directly to Eichelman—rushed into Eichelman’s cell. “Major” punched Eichelman, causing him to fall to the floor. The inmates then punched and kicked Eichelman repeatedly. Other inmates watched from just outside the cell. Eichelman screamed for help and then came rushing out of the cell with a towel held up to his bleeding face. (Eichelman Dep. [Ex. C] at 166-72; Torres Dep. [Ex. I] at 27-28; Cotton Dep. [Ex. Y] at 83-84.) C.O. Torres had been standing at the far end of the pod during the incident and was approximately 12-15 feet away when he first heard Plaintiff cry out in pain. He yelled in Spanish to the inmates in the cell “stop!” or “get out!” (Torres Dep. [Ex. I] at 36; Cotton Dep. [Ex. Y] at 83-86.)
After the pod was secured, Eichelman was taken to the medical department, where he was examined and treated. At Lt. Billy’s direction, he was taken back to the same cell but was housed by himself and was placed on HA/BA status, which meant that his cell door was unlocked only when all other inmates were locked in their cells. (Eichelman Dep. [Ex. C] at 172-75, 182; Wolfe Dep. [Ex. CC] at 21.) When passing by his cell, inmates would bang on his cell door, yell “baby shooter” or “baby killer” and threaten to kill or sexually assault him. (Eichelman Dep. [Ex. C] at 174, 176; Cotton Dep. [Ex. Y] at 97-99.) Two days later, he was moved to a protective custody section of the prison. The following day, he was released. (Eichelman Dep. [Ex. C] at 182-83, 195-96.) He was subsequently hospitalized for the injuries he sustained in the June 6th assault in his cell.
III. PROCEDURAL HISTORY
On February 6, 2006, Eichelman filed this action seeking compensatory damages,
The various defendants filed their answers to the complaint and the parties proceeded with discovery. The County Defendants and C.O. Torres now seek summary judgment as to all claims against them.
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc.,
V. DISCUSSION
A. Section 1983, Qualified Immunity
Section 1983 imposes civil liability upon any person who, under color of state law, deprives someone of the rights, privileges, or immunities secured by the federal Constitution or the laws of the United States.
Gruenke v. Seip,
A municipality cannot be held liable for the allegedly unconstitutional actions of its employees on a theory of
respondeat superior. See Monell v. Department of Social Servs.,
Individual municipal officials named in a § 1983 action in their individual or personal capacities enjoy qualified immunity from liability under § 1983 so long as “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Sharrar v. Felsing,
“[T]he right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” [Anderson v. Creigh ton,] 483 U.S. [635,] at 640,107 S.Ct. 3034 ,97 L.Ed.2d 523 [(1987)]. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.
Id.
Before proceeding to discuss each of the four counts of the complaint that are the subject of the pending motions for summary judgment, we note that Plaintiff alleged in his complaint as to several of these counts that the defendants’ actions violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution, Article I §§ 8 and 9 of the Constitution of the Commonwealth of Pennsylvania, and “the laws of the United States and the Commonwealth of Pennsylvania.” (S ee Compl. ¶¶ 68 (Count I), 74 (Count II), 80 (Count III), 85 (Count IV).) In their motion, the Lancaster County Defendants challenged the apparent contention that state law or the state constitution could provide a basis for § 1983 relief. (See Br. in Supp. of Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 13.) Plaintiffs opposition brief focuses on the conduct that he contends violated his Fourteenth Amendment liberty interest. (See Pl.’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 16.) As the Lancaster County Defendants observe, Plaintiffs opposition appears to demonstrate that he has abandoned claims premised on the state constitution or the Eighth Amendment. {See Lane. Cty. Defs.’ Reply at 13.)
We agree that any violation by Defendants of the Pennsylvania Constitution would not, in and of itself, support any of Plaintiffs claims under § 1983.
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B. Count I: Failure to Protect
In Count I, Plaintiff asserts that various Correctional Officers “deliberately, recklessly and maliciously failed to take reasonable measures to ensure Plaintiffs safety from attack by other inmates and instead acted in such a manner as to encourage, facilitate and incite inmates to assault other inmates such as the Plaintiff.” (CompU 65.) He contends that the conditions of his incarceration posed a substantial risk of harm to him of which the Defendant Correctional Officers were aware but to which they were deliberately indifferent. (Comply 66.) 5
In
County of Sacramento v. Lewis,
Where a defendant is confronted with a hyperpressurized environment such as a high-speed chase ... it is usually necessary to show that the officer deliberately harmed the victim. Where a defendant has the luxury of proceeding in a deliberate fashion ... deliberate indifference may be sufficient to shock the conscience. Where a defendant has to act with some urgency, but does not have to make split-second decisions — such as when a social worker attempts to remove a child from the parents’ custody — the defendant’s actions must reach a level of gross negligence or arbitrariness that indeed shocks the conscience.
Kaucher v. County of Bucks,
With respect to alleged constitutional violations occurring in the prison context, as another court in this district has noted, pretrial detainees asserting a constitutional violation based on conditions of them confinement must prove that prison officials acted with deliberate indifference; a lack of due care by an official that results in unintended injury is not actionable under the Due Process Clause.
See Lassiter v. Buskirk,
Civ. A. No. 03-5511,
We proceed to analyze the record as to each of the remaining moving defendants.
1. C.O. King
As part of their argument in their brief that the various individual Lancaster County Defendants are entitled to summary judgment on the grounds of qualified immunity, Defendants acknowledge that Plaintiff alleges that it was C.O. King who informed inmates of the charges against Plaintiff. Defendants contend, however, that because Plaintiff himself told his cellmate what charges were pending against him, “[t]he actions of the plaintiff himself, as well as the independent source for the information regarding [the] charges” — the newspaper — “establish that Officer King is not the source of the plaintiffs injuries.” (Br. in Supp. of Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 28.) They argue that this claim cannot proceed against C.O. King as a matter of law because Plaintiff has failed to establish any damages as a result of conduct by this officer.
In response, Plaintiff points to contrary record evidence that, prior to Plaintiffs arrival, the inmates on that particular pod knew only generally that a man had shot a two-year-old Hispanic boy at Taco Bell but did not know who that person was. (Pl.’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 20-21 (citing Colon Dep. [Ex. U] at 101-02 and Strama Dep. [Ex. N] at 31-32).) C.O. King bridged that gap for them by, according to one version of events, announcing that the shooter in that incident was being brought up to the pod, waiving in front of the inmates the newspaper article identifying Eichelman as the suspect in that shooting, and responding in the affirmative when, after Eichelman was brought to his cell, an inmate asked if Eichelman was “the guy.” (Ex. G [Mackey Dep.] at 11.) Plaintiff also points to the absence of any evidence that the one per
Given the posture of the case, we must accept as true the facts most favorable to Plaintiff that are supported by the record. On this record, there is sufficient evidence from which a reasonable jury could conclude that C.O. King was responsible, through his deliberate actions, for various inmates on the pod learning of the particular crime with which Eichelman was charged and, through his announcements to this effect, suggesting that this information would be useful to the other inmates. The next question, however, is the extent to which this knowledge by the inmates gave rise to a risk of serious harm to which C.O. King was deliberately, recklessly or callously indifferent when he provided the inmates this information.
The extent to which someone believed to have shot a young child is at greater risk of an inmate assault is another factual issue on which the parties disagree. For purposes of this claim, the significant fact is C.O. King’s testimony that he believed that an inmate charged with “crimes against children” was more likely to be “harassed” by other inmates. (King Dep. [Ex. M] at 18.) He himself did not discount the real possibility of such violence, as he identified at the shift change meeting on Sunday, June 5 that inmates were threatening to assault Eichelman. Moreover, there is no evidence that Eichelman was at risk of an inmate assault for any other reason other than based on the charges on which he was being detained.
Applying the standards set forth for claims of failure to protect, we conclude that C.O. King may be liable to Plaintiff for actions taken with deliberate or reckless indifference to the risk of an inmate assault on Eichelman. Furthermore, we conclude that the record before us provides sufficient evidence from which a reasonable jury could find, that C.O. King acted with deliberate indifference to Plaintiffs safety when, knowing that Eichelman was not in protective custody but rather was in the general population among violent offenders with whom he would have contact (i.e., at meal times) and was housed in a cell furthest from the guard post, he informed inmates of the arrival of the Taco Bell shooter, provided inmates the newspaper article that identified Ei-chelman as the suspect, and confirmed for an inquiring inmate that Eichelman was “the guy” involved in the shooting.
We note that the individual Lancaster County Defendants have invoked the doctrine of qualified immunity as a shield to all of the counts brought against them in their individual capacities. They correctly note that if the Court finds that there has been a constitutional infraction, it must then inquire as to whether the right violated by the defendant was clearly established at the time of the infraction such that it would have been clear to a reasonable official in the situation confronting him that his conduct would be unlawful.
(See
Br. in Supp. of Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 26-27.) With respect to C.O. King in particular, defendants do not point to any mistaken but reasonable belief by C.O. King that his actions were constitutionally permissible. Rather, they merely repeat them factual argument — which is misplaced at this summary judgment stage given contrary evidence in the record — that Eichelman’s alleged role in the Taco Bell shooting was publicized by Eichelman himself and by the local newspaper.
(See id.
at 27-28.) Defendants do not direct us to any authori
2. C.O. Torres
In his motion for summary judgment, C.O. Torres seeks to distance himself from the earlier assault on Eichelman in the holding cell, the decision to house Eichel-man in the 3-2 pod, and the events through which the inmates learned of the particular charges against Eichelman. (Br. in Supp. of Torres Mot. for Summ. Jmt. at 3^1, 9-10.) As Plaintiffs response did not attempt to relate the events of June 4 and June 5 to any actions by C.O. Torres, we agree with Torres that those allegations do not support a failure to protect claim against him. (See also Reply Br. in Supp. of Torres Mot. for Summ. Jmt. at 3-5.) That conclusion does not, however, resolve all of the issues as to C.O. Torres.
With respect to the events that did occur during his shift on June 6, 2005, C.O. Torres attempts to paint himself as a proactive, responsible official who acted in the interest of Eichelman’s safety to the extent to which he believed he had authority to take various measures. (Br. in Supp. of Torres Mot. for Summ. Jmt. at 10-11.) He argues that he was under a duty only to take reasonable measures to ensure Ei-chelman’s safety and that any failure to have done so can be characterized only as “mere negligence and/or carelessness”— which does not amount to a constitutional violation. (Id. at 11; Torres Reply at 6.)
In response, Plaintiff points to the evidence of record of C.O. Torres’s personal involvement in the attack that occurred on June 6. According to one inmate, C.O. Torres was “recruiting various prisoners or inciting various Spanish prisoners to assault Mr. Eichelman because of the kid he had shot.” (Colon Dep. [Ex. U] at 17.) Among the prisoners that C.O. Torres approached — asking if he was going to let “him” (Eichelman) get away with what he did — was Inmate Mendez, who ultimately proved to be one of the two assailants in the attack of Eichelman in his cell. (Id. at 20.) C.O. Torres also allegedly offered to help to facilitate an inmate assault on Eichelman. (Id. at 17-18.) Plaintiff asserts that a reasonable jury could conclude from this evidence alone that C.O. Torres played a role in instigating the assault on Eichelman.
Plaintiff also points to C.O. Torres’s decision — shortly after writing up a “UA” report for supervisors informing them of what he believed was a credible threat of harm towards Plaintiff by Inmate Mendez — to include Plaintiffs cell door in the general cell door opening for the lunch hour. Plaintiff characterizes this action as deliberate, reckless, and callous. (Pl.’s Br. in Opp. to Torres Mot. for Summ. Jmt. at 18.) C.O. Torres attributes this action to the lack of any instructions to the contrary from his supervisors, with whom he had not spoken personally about Eichelman’s situation. (Br. in Supp. of Torres Mot. for Summ. Jmt. at 10-11.) He testified that he did not believe that he had the authority to order an inmate to be locked down in his cell. (Id. at 10 (citing Torres Dep. [Ex. I] at 24).)
Regardless of whether or not the failure to have excluded Plaintiffs cell door
As did the other defendants, C.O. Torres also invokes the doctrine of qualified immunity as a defense to the aspect of this claim that is brought against him in his individual capacity. (See Br. in Supp. of Torres Mot. for Summ. Jmt. at 15-16.) The only basis for his assertion of qualified immunity is his contention that “the facts of record do not establish any cognizable § 1983 claims against Defendant Torres.” (Id. at 16.) For the same reasons that we declined to extend qualified immunity to C.O. King, we find that C.O. Torres has not met his burden, at this stage of the litigation, to show that he is entitled to qualified immunity as to the failure to protect claim asserted against him in his individual capacity in Count I. Accordingly, we will not grant C.O. Torres’s request for summary judgment as to this count.
C. Count III: Conspiracy
In Count III, which invokes § 1983 and which Plaintiff captions “conspiracy,” Plaintiff asserts that the defendants “entered into an agreement and/or reached a meeting of their minds to violate Plaintiffs Constitutional Rights by permitting, encouraging, facilitating and inciting other inmates to cause physical harm to the Plaintiff’ and that the defendants “performed overt acts in furtherance of the conspiracy.” (Compile 77-78.) In his response to the Lancaster County Defendants’ motion for summary judgment and at the final pre-trial conference, however, Plaintiff withdrew this claim as to certain defendants. (E.g., Pl.’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 33.) As a result, the named defendants remaining in this count are C.O. King, C.O. Torres, and Warden Guarini. 7
Municipal officials may be liable under § 1983 for a conspiracy to deprive an individual of a right protected under the Constitution or federal law. In order to state a claim for conspiracy under § 1983, the plaintiff must demonstrate (1) the existence of a conspiracy involving state action; and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.
See Marchese v. Umstead,
Defendants contend that Plaintiff has failed to meet his burden at this stage of the litigation to support his conspiracy claim, pointing to a lack of evidence in the record that any of the defendants spoke to each other about Eichelman or were involved in any common plot or plan to deprive him of his constitutional rights. (See Torres Reply at 10; Lanc. Cty. Defs.’ Reply at 27.) Plaintiffs opposition to the summary judgment motions recites what he believes is evidence of a practice at the Prison of “intentionally ‘looking the other way’ when it comes to protecting inmates charged with heinous crimes against children from violence at the hands of other inmates.” (Pl.’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 24; Pl.’s Opp. to Torres Mot. for Summ. Jmt. at 20.) He contends that “[t]he conspiracy to facilitate an assault on the Plaintiff largely involved Defendants King and Torres.” (Pl.’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 25; Pl.’s Opp. to Torres Mot. for Summ. Jmt. at 20.) He proceeds to describe the fact that C.O. King and C.O. Torres incited inmates to assault Plaintiff and that they both failed to ensure that Plaintiff would be protected from other inmates. (Id.) He contends that the conspiracy “further included” two supervisors who were aware of C.O. Torres’s unusual incident report and who failed to act to ensure Plaintiffs safety. (Id.) Plaintiff asserts that he “has alleged facts that establish an understanding among correctional and supervisory staff to intentionally and deliberately disregard clear warnings that Plaintiff was in serious and imminent danger of being assaulted by other inmates” and facilitated the assault by putting him in the general populations rather than in a more secure setting. (PL’s Opp. to Lane. Cty. Ref.’ Mot. for Summ. Jmt. at 25-26; PL’s Opp. to Torres Mot. for Summ. Jmt. at 21.)
1. C.O. King
As discussed above, the record as to C.O. King’s involvement in this matter pertains to his unsolicited announcements to inmates on June 4 that Eichelman was the suspect in the Taco Bell shooting and his affirmative response to questions from inmates about whether Eichelman was the one who shot the Hispanic baby. The inmates’ response, in turn, was to bang on their cell doors and yell that they were going to “f — up” Eichelman. The record does not indicate that King tried to dissuade them in any way. Rather, it appears that C.O. King’s conduct was designed to facilitate this reaction and to demonstrate his support for the inmates’ stated intention of assaulting Eichelman.
The record supports a reasonable inference that there was an agreement between C.O. King and the inmates on the pod that Eichelman should be assaulted due to the nature of the crime with which he was charged. This would constitute a conspiracy involving state action and, given the assault sustained by Plaintiff by inmates on the pod, a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy.
See Marchese,
2. C.O. Torres
As with C.O. King, the record supports that C.O. Torres communicated to inmates
3. Warden Guarini
There is no evidence in the record that Warden Guarini entered into any agreement with any Prison personnel or inmates to violate Eichelman’s constitutional rights. Plaintiffs papers describe no personal involvement the Warden had with any of incidents upon which this complaint is based. While Plaintiff suggests that there was an “understanding” among corrections officers and supervisory staff to ignore risks to particular inmates, this does not provide the agreement or overt act required to assign liability to Warden Guarini on a § 1983 conspiracy theory. Therefore, Warden Gaurini is entitled to summary judgment on this count.
D.Count IV: Monell Claim
In Count IV, which is brought against the County and Warden Guarini, Plaintiff asserts that “Defendants have adopted and maintained for many years recognized and accepted policies, customs, and practices within the prison ... which knowingly place inmates such as the Plaintiff in dangerous positions and/or increase the risk of danger to inmates such as the Plaintiff.” (ComplV 84.) Plaintiffs complaint describes ten different policies, customs, or practices that demonstrate the defendants’ deliberate indifference to individuals such as Eichelman:
A. Having a custom, policy and practice of permitting correctional officers to discuss with other inmates the nature of the crimes that new inmates/pre-trial detainees are charged with, thereby encouraging, facilitating and inciting potential inmate on inmate assaults;
B. Having a custom, policy and practice whereby correctional officers facilitate, encourage and incite inmate fights by taunting inmates and allowing inmates to taunt and threaten other inmates;
C. Having a custom, policy and practice whereby correctional officers facilitate, encourage and incite inmate fights by opening otherwise locked cell doors, allowing violent inmates access to other inmates;
D. Having a custom, policy and practice whereby correctional officers facilitate, encourage and incite inmate on inmate assaults by failing to properly and timely respond to them and break them up;
E. Having a custom, policy and practice of ignoring and/or downplaying the seriousness of inmate on inmate violence, thereby acquiescing to an environment where inmate on inmate violence is accepted;
F. Having a custom, policy and practice of failing to properly train, supervise, investigate and discipline correctional staff in order to prevent inmate on inmate assaults from occurring;
G. Having a custom, policy and practice of improperly classifying and/or housing pre-trial detainees with violent convicted individuals;
H. Having a custom, policy and practice of failing to appropriately identify inmates who should be placed in protective custody and/or failing to place those inmates in protective custody;
I. Having a custom, policy and practice of failing to ensure that inmates (including but not limited to pre-trial detainees) are humanely treated at all times, including but not limited to being provided food and timely medical treatment; [and]
J. Having a custom, policy and practice of failing to provide adequate, proper and timely medical care to individuals such as the Plaintiff who have been assaulted within the facility[.]
(Comply 84.)
1. The County
It is well-established that a municipal entity is not liable under § 1983 on a vicarious liability or respondeat superior theory.
Monell v. Department of Social Servs.,
As demonstrated above, Plaintiff has identified ten alleged municipal customs, practices, or policies about which he argues there are sufficient facts to proceed to trial, several of which are interrelated. It is not necessary for us to review the state of the record as to each alleged policy, as we conclude that there are sufficient issues for trial as to at least one of the policies.
For example, Plaintiff contends that correctional officers facilitated, encouraged and incited inmate assaults by taunting inmates and sharing with them the nature of the crimes of new inmates/pre-trial detainees. Plaintiff also contends that the defendants generally have a custom, policy and practice of ignoring and/or downplaying the seriousness of inmate on inmate assaults, which has led to an environment in which such assaults are accepted. Defendants point to the testimony of the officers that they did not engage in any improprieties, the lack of any formal policy permitting these activities, and the lack of evidence that the allegedly violent environment of which Plaintiff complained was something to which Defendants acquiesced.
In response, Plaintiff points to inmate testimony during discovery that guards routinely volunteered criminal charge information about an inmate to other inmates. Plaintiff points to evidence that both C.O. King and C.O. Torres disclosed information about the charges against Ei-chelman to other inmates on the pod and that C.O. Riley informed two constables in the commitment area — who would presumably have no law enforcement need to know — of the charges against Eichelman. (Pl/s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 27-28.) He also points to the fact that, prior to the assault on Plaintiff, another inmate had filed numerous grievances with Warden Guarini and the Deputy Warden about officers’ disclosure of confidential inmate information and of violence between inmates on the pod. The fact that the Warden allegedly stopped responding to the grievances suggests that he — the ultimate policymaker for the Prison — was acquiescing in this conduct by his subordinates. (PL’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 29 (citing Cotton Dep. [Ex. Y] at 57-61).) The fact that there was no investigation by the Prison of the earlier assault on Eichelman in the holding cell by Inmate Soto nor any discipline of Soto for that assault also could evidence a downplaying of the seriousness of inmate on inmate attacks. (PL’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 31.) In a similar vein, Plaintiff contends that “neither of the inmates who assaulted Plaintiff on the pod were given misconducts or otherwise disciplined by the prison staff.”
(Id.
at 30.) He complains that the failure to convey in the “Pass On” book to the next shift information about prior threats to Plaintiff which resulted in a one-shift lock-down also demonstrated a downplaying of the risk of harm.
(Id.
at 31.) Finally, he argues that the failure of the Prison to seek to identify and correct errors made by correctional and supervisory staff relating to the attack in the pod demonstrates that
We conclude at this stage that Plaintiff has presented sufficient evidence from which a jury could reasonably conclude that, notwithstanding any formal policy prohibiting correctional officers from discussing with inmates (and others who have no need to know of the information) the nature of the charges pending against a pre-trial detainee or convicted criminal, there was such a well-settled practice among at least some corrections officers as to constitute a custom and, moreover, that there is sufficient evidence upon which a reasonable jury could conclude that Warden Guarini must have known of the risk. As these customs and policies bear a sufficient causal connection to the assault that Plaintiff experienced on June 6, 2005, we conclude that Plaintiff may proceed to trial on this theory of Monell liability against the County.
2. Warden Guarini
Plaintiff also identifies Warden Guarini as a defendant in the count captioned as the “policy, custom, pattern and practice” claim. While claims relating to policies, customs, and practices ordinarily pertain to the liability that may be attributed to a local governmental unit as opposed to an official under the Monell case, we see no reason that Plaintiff cannot proceed with this § 1983 claim against Warden Guarini individually, particularly in light of the fact that Defendants’ papers do not provide any reason he should be dismissed from this action apart from Plaintiffs alleged failure to identify a custom, practice, or policy that cause his harm. (See Br. in Supp. of Lanc. Cty. Defs.’ Mot. for Summ. Jmt. at 19-27; Lane. Cty. Reply Br. at 33-34.)
“[D] eliberate indifference claims implicating supervisors for their deficient policies are more complicated than the other, more direct deliberate indifference claims, because the former add another level to the analysis.”
Beers-Capitol v. Whetzel,
Although the parties’ briefing as to this count of the complaint does not separately address the propriety of this claim as to Warden Guarini, Plaintiffs opposition to the Lancaster County Defendants’ motion for summary judgment points to evidence in the record that, prior to the assault on Plaintiff, another inmate had filed numerous grievances with Warden Guarini and the Deputy Warden about officers’ disclosure of confidential inmate information and of violence between inmates on the pod. The fact that the Warden allegedly stopped responding to the grievances arguably suggests that he was ratifying the conduct of his subordinates, which contributed to the creation of an environment in which the assault on Plaintiff was bound to occur. (Pl.’s Opp. to Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 29.)
We conclude that, at this stage, Plaintiff has presented sufficient evidence from which a jury could reasonably conclude that, notwithstanding any formal pol
Again, we recognize that the individual Lancaster County Defendants have invoked the doctrine of qualified immunity as a shield to all of the counts brought against them in their individual capacities, noting that if the Court finds that there has been a constitutional infraction, it must then inquire as to whether the right violated by the defendant was clearly established at the time of the infraction such that it would have been clear to a reasonable official in the situation confronting him that his conduct would be unlawful. (See Br. in Supp. of Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 26-27.) Defendants do not, however, point to any mistaken but reasonable belief by Warden Guarini that his actions were constitutionally permissible. Defendants do not direct us to any authority for the proposition that a reasonable official might have mistakenly believed that the broadcast by prison officials to violent inmates of the fact and nature of the charges against Eichelman in this situation would not violate Eichelman’s due process rights. Therefore, we find that Warden Guarini has not met his burden, at this stage of the litigation, to show that he is entitled to qualified immunity as to the claim asserted against him in his individual capacity in Count IV. Accordingly, we will not grant Warden Guarini’s request for summary judgment as to this count.
VI. CONCLUSION
For the foregoing reasons, we find that Plaintiff has adduced sufficient evidence from which a reasonable jury could find in his favor with respect to Count I against C.O. King and C.O. Torres; Count III against C.O. King and C.O. Torres; and Count IV against the County and Warden Guarini. Summary judgment is appropriate, however, as to Warden Guarini on Count III.
An appropriate Order follows.
ORDER
AND NOW, this 21st day of August, 2007, upon consideration of the Motion for Summary Judgment filed by Defendants Lancaster County, Warden Vincent Guari-ni, Deputy Warden Doe, Corrections Officer King, Corrections Officer Volroth, Corrections Officer Lambert, Corrections Officer Neff, Corrections Officer Walton, and Corrections Officer Sultzbach (Doc. No. 31) and the Motion for Summary Judgment of Corrections Officer Luis Torres (Doc. No. 32), the memoranda of law filed in support thereof and in opposition thereto as well as defendants’ replies, and for the reasons stated in the accompanying memorandum, IT IS HEREBY ORDERED that said motions are GRANTED IN PART AND DENIED IN PART as follows:
(1) The Motion for Summary Judgment filed by Defendants Lancaster County, Warden Vincent Guarini, Deputy Warden Doe, Corrections Officer King, Corrections Officer Volroth, Corrections Officer Lambert, Corrections Officer Neff, Corrections Officer Walton, and Corrections Officer Sultzbach (Doc. No. 31) is GRANTED as to all claims brought under Count III (conspiracy) against Warden Guarini in his individual and official capacities.
(3) The Motion for Summary Judgment filed by Defendants Lancaster County, Warden Vincent Guarini, Deputy Warden Doe, Corrections Officer King, Corrections Officer Volroth, Corrections Officer Lambert, Corrections Officer Neff, Corrections Officer Walter, and Corrections Officer Sultzbach (Doc. No. 31) is DENIED in all other respects.
(4) The Motion for Summary Judgment’ of Corrections Officer Luis Torres (Doc. No. 32) is DENIED AS MOOT as to all claims brought under Count II (bystander liability) against Corrections Officer Torres in his individual and official capacities, in light of Plaintiffs withdrawal of this claim in correspondence dated August 16, 2007.
(5) The Motion for Summary Judgment of Corrections Officer Luis Torres (Doe. No. 32) is DENIED in all other respects. 8
Notes
. Other defendants — various corrections officers, a doctor in the County prison medical department, and "John” or "Jane Doe” persons — have been dismissed from this suit. (See Orders dated Aug. 10, 2007 (Doc. No. 66) and Aug. 15, 2007 (Doc. No. 76.))
. The memoranda of law in support of Defendants’ motions contained narrative sections describing the "factual background” of the case. Plaintiff’s responses to the two motions contain his own narrative section entitled "counter statement of facts.” Apart from a few footnotes in Plaintiff’s papers highlighting contested facts, for the most part, the parties’ papers do not make it readily apparent which facts (whether or not deemed "material”) are disputed as to create issues for the jury to resolve. In light of the summary judgment standard, we assume to be true, for purposes of this motion, the facts asserted by Plaintiff that have some support in the record. We do not purport to describe contrary facts as to issues for which Plaintiff presents sufficient evidence to defeat summary judgment. Obviously, at trial the jury will hear differing versions of events, will have an opportunity to judge the credibility of the source, and will be tasked with the responsibility of determining what probably occurred.
.Soto indicated in a statement that a "sheriff” pointed out Eichelman to him and informed him that "[the] white guy over there, he abused a young child. You should go in there and tell those guys to give him a beating.” (Soto Stmt, (unsigned) dated Sept. 29, 2005 [Ex. R].)
. To the extent a plaintiff might seek to recover damages directly for a violation of the Pennsylvania Constitution apart from 42 U.S.C. § 1983, we observe that "[t]he courts in this Circuit that have considered whether there is a private cause of action for damages under the Pennsylvania Constitution have concluded that no such right exists.”
Morales
. We note that the Lancaster County Defendants' motion, while citing parenthetically to the Lewis case, characterized this claim as based on the Fourteenth Amendment's Equal Protection Clause. (See Br. in Supp. of Lane. Cty. Defs.’ Mot. for Summ. Jmt. at 14-15.) We see nothing in the complaint to suggest that Plaintiff's claim was premised on an equal protection argument, and Plaintiff's opposition to the summary judgment motion makes clear that "Plaintiff is not, as the Defendants assert, arguing an equal protection claim." (See PL's Opp. to Lane. Cty. Defs.' Mot. for Summ. Jmt. at 16 n. 4.)
. We note that there is also evidence in the record suggesting that the attack occurred just before the general opening of the doors for lunch.
. During the oral argument held at the final pre-trial conference, the parties did not focus on this aspect of the claim as against Warden Guarini. However, as Plaintiff did not affirmatively withdraw his claim as to Warden Guarini under Count III, we discuss it here.
. Accordingly, the claims proceeding to trial are as follows: Count I against C.O. King and 1 C.O. Torres; Count III against C.O. King and C.O. Torres; and Count IV against the County and Warden Guarini.