Carl M. SMITH, Appellant, v. Robin MENSINGER; David Novitsky; Jerome Paulukonis; Mary Canino; Paul Burgard; Martin Dragovich, Jeffrey Yurkiewicz, Paul Androshick, Bernard McCole, James Zubris, and Raymond Jones.
No. 99-1382.
United States Court of Appeals, Third Circuit.
Argued: July 31, 2001. Filed: June 11, 2002.
293 F.3d 641
Calvin R. Koons (argued), John G. Knorr, III, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, for appellees.
OPINION OF THE COURT
McKEE, Circuit Judge.
Carl M. Smith, an inmate at the Pennsylvania State Correctional Facility at Frackville (“SCI-Frackville“) filed this civil rights action under
I. Background
A. The Misconduct Reports
Sometime during the morning of June 3, 1995, Corrections Officer Robin Mensinger issued a misconduct report citing Smith with refusing to obey an order to return to his cell after cell cleanup, and for using foul language towards a corrections officer. Later that afternoon, Mensinger cited Smith in a second misconduct report for allegedly punching her in the eye. That evening, Sergeant Paulukonis issued a third misconduct report against Smith. That report cited Smith for assaulting corrections officers as they were escorting him to the Restricted Housing Unit (“RHU“).
Smith denies that he assaulted Mensinger or struggled with other corrections officers later that evening. He admits that he did not return to his cell when Mensinger requested him to, but claims that he only refused because his cell was still wet. According to Smith, Mensinger was drunk and out of control when she issued the first misconduct report. He claims that as he was leaving his cell during an organized prisoner movement later that day, he heard a whistle blow and looked up to see Mensinger pointing at him. A few seconds later, Corrections Officers Jones and Yoder purportedly arrived on the cell block. Smith claims that Mensinger told the corrections officers that Smith had punched her in the eye. Smith maintains that Yoder then handcuffed him behind his back, and walked him to a bench where Smith was ordered to sit down. According to Smith, other corrections officers (including Androshick, Zubris and McCole) entered the area a few minutes later. The officers then purportedly grabbed Smith by both arms and followed Corrections Officer Novitsky to the Unit Manager‘s Office. There, Smith claims that Yurkiewicz and Jones joined the group and Yoder left.
Once inside the Unit Manager‘s Office, the officers allegedly rammed Smith‘s head into walls and cabinets and knocked him to the floor. He claims that while he was on the floor, Yurkiewicz kicked and punched him, and Novitsky “pulled him to his feet, pushed him against the wall, punched him in the stomach, and choked him with both hands....” Brief for Appellant at 15. Smith alleges that Paulukonis saw the beating, but did nothing to intervene or restore order.
Smith further alleges that after the beating in the Unit Manager‘s office, two or three guards took him to the RHU where Yurkiewicz placed him face-down on a bench, tightened the handcuffs as much as possible, and hit him on the back of the head while verbally threatening him and showering him with racial epithets.
Smith alleges that his head was bleeding and the beating also resulted in pain in his ribs, ears, and right eye. His ribs were purportedly red and bruised and remained sore for a couple of weeks after the beating. Smith was seen by the medical staff each of the following two days, but according to the medical records, he was treated only for chronic asthma. In his deposition, Smith stated that a doctor gave him ice for his ribs and told him to keep a wet towel against them the day after the incident. However, a report prepared by the defendants’ medical expert states that an examination of Smith soon after the incident failed to disclose any wounds, marks, or bruises near his rib cage or anywhere else.
C. The Aftermath of the June 3, 1995 Incident
On June 4, 1995, Pennsylvania State Trooper Leo Luciani interviewed Smith regarding Smith‘s alleged attack of Mensinger. During that interview Luciani purportedly showed Smith a photograph of Mensinger that Smith claims supports his claim that he never hit her in the face. Nevertheless, the Commonwealth filed a criminal complaint against Smith based upon Mensinger‘s allegation, and Luciani testified for the prosecution at the preliminary hearing on those charges. The charges included assault, assault by a prisoner, and retaliation for past official action. The Commonwealth subsequently added the charge of disorderly conduct, and Smith eventually pled nolo contendere to that charge. The trial court then granted the Commonwealth‘s request to nol pros the remaining charges.
Meanwhile, a hearing on the three misconduct reports was scheduled at SCI-Frackville, and Smith completed a “Request for Representation” form listing two inmates he wanted to call as witnesses at that hearing.1 He claims that those two inmates would have testified that he did not strike Mensinger as she had charged. When Smith arrived at the hearing, Hearing Officer Mary Canino informed him that his witnesses were not available and that the hearing would be delayed until that afternoon. However, the hearing did not proceed that afternoon, and Smith was transferred to the State Correctional Institution at Mahoney (“SCI-Mahoney“) the next day.
Smith‘s misconduct hearing reconvened at SCI-Mahoney a few days later. However, since Smith‘s witnesses remained at SCI-Frackville, Canino offered to continue the hearing to afford Smith an opportunity to submit written statements from his witnesses. Smith refused the offer because he did not trust that prison officials would obtain accurate statements. Rather than submit those statements, Smith sought a continuance in order to attempt to recover the allegedly exculpatory photograph that Trooper Luciani had shown him. Canino denied Smith‘s request for a continuance, and Smith‘s hearing on the misconduct reports proceeded without his witnesses.
Canino credited the testimony against Smith, and found Smith guilty of the conduct charged in all three misconduct reports. He received seven months disciplinary confinement for assaulting Mensinger and for resisting the officers who were escorting him to the RHU. Canino also ordered that Smith‘s prison account be assessed for “medical and other expenses” to pay for contact lenses for Officer Mensinger even though no evidence of any such expenses had been produced at the hearing. App. at 63. According
II. Procedural History
On May 23, 1997, Smith filed the instant pro se civil rights action under
Smith claimed that several corrections officers used excessive force during the June 3 incident, and that they thereafter falsified reports regarding that incident in order to cover up their use of excessive force. Smith also claimed that Canino violated his due process rights by improperly assessing his inmate account, and that Burgard and Dragovich did not adequately investigate his grievance on appeal.
Although the district court granted Smith‘s request to amend his Complaint to join Dragovich as a defendant, the court later dismissed the claim against Dragovich as well as Smith‘s claim against unknown defendant, “John Doe.” Mensinger, Paulukonis, Canino, and Burgard thereafter moved to dismiss Smith‘s claims against them pursuant to
The district court allowed Smith to proceed against the remaining corrections officers on his Eighth Amendment claim, but later granted defendants’ motion for summary judgment, dismissing that claim, as well. In a second unreported opinion, Smith v. Mensinger, No. CIV.A. 97-3613, 1999 WL 178539 (E.D. Pa. March 31, 1999) (hereinafter “Smith II“), the court concluded that Smith could not prevail under the Eighth Amendment because the minimal nature of his injuries established that any force that may have been used against him must have been de minimis and therefore insufficient to constitute an Eighth Amendment violation. The court also concluded that whatever force the corrections officers had used was justified by Smith‘s assault of Mensinger, and the fact that he struggled with the other corrections officers. The court did note that Smith denied assaulting Mensinger and struggling with corrections officers. However, the court refused to credit that denial because Smith offered nothing to support it, and the hearing officer had found him guilty of the charged misconduct. This appeal followed.2
III. Discussion
Smith argues the district court
A. Standard of Review
In reviewing a grant of summary judgment, we must view the facts in the light most favorable to the non-moving party. See Brooks v. Kyler, 204 F.3d 102, 105 n. 5 (3d Cir. 2000). Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”
A motion to dismiss under
We will first address Smith‘s Eighth Amendment claims and then examine his due process claim.
B. The Eighth Amendment Claim Based Upon Excessive Force
The district court correctly noted that prison guards who maliciously and sadistically use force against an inmate violate “contemporary standards of decency even if the resulting injuries are not significant.” Smith II, 1999 WL 178539, at *3 (internal quotations omitted). However, after noting that Smith could establish an Eighth Amendment violation even absent evidence of serious physical injuries, the district court then focused exclusively on the severity of Smith‘s injuries in denying his claim. The court stated:
Even assuming that plaintiff could show that defendants acted with the requisite state of mind, the Court concludes that the alleged wrongdoing by defendants was not objectively harmful enough to establish a constitutional violation. Initially, the Court notes that the injuries suffered by plaintiff were relatively minor.
....
Additionally, accepting as true plaintiff‘s version of the facts, including being handcuffed, punched, kicked, and thrown into cabinets and walls, and given the slight injuries suffered by plaintiff, the
Court finds that the incident between plaintiff and defendants involved a de minimis use of force that was not repugnant to the conscience of mankind.
Id. at *4. Thus, although the court acknowledged that the absence of severe injuries did not preclude Smith‘s Eighth Amendment claim as a matter of law, the court concluded that the evidentiary value of the absence of injuries was too compelling to ignore. See id. Citing Smith‘s alleged attack on Mensinger, the court also noted that “the record shows that defendants reasonably perceived plaintiff to be a threat and the need for application of force was apparent.” Id. at *5.
We begin our analysis of that ruling with the Supreme Court‘s decision in Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992). There, an inmate sued prison guards under
We applied the teachings of Hudson in Brooks v. Kyler, 204 F.3d 102 (3d Cir. 2000). There, an inmate sued four prison guards under
The district court dismissed Smith‘s claims before we decided Brooks. Accordingly, the court did not have the benefit of that analysis when, in denying Smith‘s claims here, it focused almost exclusively on “the lack of a serious physical injury....” Smith II, 1999 WL 178539, at *4, quoting Eppers v. Dragovich, No. 95-7673, 1996 WL 420830, at * 4 (E.D. Pa. July 24, 1996). It is now clear that the district court erred in focusing so narrowly on the absence of serious injuries in deciding if Smith could establish a claim based upon excessive force. As we clearly stated in Brooks, the Eighth Amendment analysis must be driven by the extent of the force and the circumstances in which it is applied; not by the resulting injuries.
Requiring objective or independent proof of minor or significant injury, would ignore this teaching and place protection from injury, instead of protection from wanton force, at the hub of the Eighth Amendment.
Brooks, 204 F.3d at 108, citing Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993).
Nevertheless, it is true that the Eighth Amendment does not protect an inmate against an objectively de minimis use of force. See Hudson, 503 U.S. at 9-10. Rather, as noted
In determining whether a correctional officer has used excessive force in violation of the Eighth Amendment, courts look to several factors including: (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 the 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 facts known to them; and (5) any efforts made to temper the severity of the forceful response.
Brooks, 204 F.3d at 106, citing Hudson, 503 U.S. at 7. Therefore, de minimis injuries do not necessarily establish de minimis force.
If we were to adopt the District Court‘s reasoning, a prisoner could constitutionally be attacked for the sole purpose of causing pain as long as the blows were inflicted in a manner that resulted in visible (or palpable or diagnosable) injuries that were de minimis.
We do not, of course, suggest that a fact finder could not consider the de minimis nature of injuries along with all of the other circumstances in concluding that the force that was employed could not have risen to the level required for an Eighth Amendment violation. A properly instructed fact finder could, after considering all of the evidence, conclude that Smith‘s injuries were so minor that the defendants’ account of the incident is more credible than Smith‘s, and/or that the force used was not of constitutional dimension. That may have been exactly what the district court did here. However, that is an issue of fact to be resolved by the fact finder based upon the totality of the evidence; it is not an issue of law a court can decide.4
Punching and kicking someone who is handcuffed behind his back and under the control of at least six prison guards as he is being thrown into cabinets and walls is “repugnant to the conscience of mankind,” absent the extraordinary circumstances necessary to justify that kind of force. Hudson, 503 U.S. at 10. Smith alleges he was the victim of an unprovoked and unjustified beating. The district court dismissed his Eighth Amendment claims, noting that “the record shows that defendants reasonably perceived plaintiff to be a threat and the need for the application of force was apparent.” Smith II, 1999 WL 178539, at *5. The court reached that conclusion in part because it found that Smith had created a disturbance by “allegedly punching C.O. Mensinger twice in the eye,” as well as “continually struggling with the defendants....” Id. (emphasis added). However, Smith alleges that he was handcuffed behind his back during the “disturbance,” and he maintains he did not hit Mensinger or struggle with the guards as they punched and kicked him, and rammed his head into
Defendants argue that we should nevertheless affirm the grant of summary judgment in favor of Officers Androshick, McCole, Zubris, and Jones because Smith concedes that he is not sure that they participated in the beating at all. However, the fact that Smith has acknowledged that he could not see those defendants during the beating neither negates their involvement nor their liability as a matter of law. Smith testified: “Officer Yurkiewicz, Zubris, Androshick, McCole, Jones, all of them was in back of me and they were pushing my head, right, into the cabinets in the wall, cabinets and walls. And then after that, I was knocked to the floor.” App. at 166 (emphasis added). He further testified: “... the full force of all the guards [was] behind me, they rammed my head into the cabinet and into the wall ... No, I didn‘t say he [Yurkiewicz] did. I said all of them.” Id. at 168 (emphasis added). That testimony is sufficient to create a genuine issue of material fact as to each of those defendants. See Brooks, 204 F.3d at 109.
Moreover, it is undisputed that all of the named officers were in the vicinity at some point when Smith alleges he was beaten. The extent of each officer‘s participation is thus a classic factual dispute to be resolved by the fact finder. Accordingly, we will vacate the judgment in favor of defendants Novitsky, Yurkiewicz, Androshick, McCole, Zubris, and Jones and remand the matter for further proceedings.
C. Officer Paulukonis’ Duty to Intervene
As noted earlier, Smith does not allege that Paulukonis took part in the beating. Rather, Smith claims that Paulukonis can be liable under the Eighth Amendment if he failed to intervene. We agree. We hold that a corrections officer‘s failure to intervene in a beating can be the basis of liability for an Eighth Amendment violation under
Courts have held that a police officer has a duty to take reasonable steps to protect a victim from another officer‘s use of excessive force, even if the excessive force is employed by a superior. “If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986); accord Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972).
In Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), we held that a police officer who was the senior officer involved in executing a search warrant could be liable in a suit under
The duty to uphold the law does not turn upon an officer‘s rank. It is neither affected by, nor proportional to, a non-intervening officer‘s relationship to an offending colleague. The approving silence emanating from the officer who stands by and watches as others unleash an unjustified assault contributes to the actual use of excessive force, and we cannot ignore the tacit support such silence lends to those who are actually striking the blows. Such silence is an endorsement of the constitutional violation resulting from the illegal use of force.6 It is incompatible with the restrictions imposed under the Eighth Amendment, and is therefore unacceptable. We will not immunize such conduct by suggesting that an officer can silently contribute to such a constitutional violation and escape responsibility for it. The restriction on cruel and unusual punishment contained in the Eighth Amendment reaches non-intervention just as readily as it reaches the more demonstrable brutality of those who unjustifiably and excessively employ fists, boots or clubs.
Although our case law refers to police officers, not corrections officers, this does not change our analysis.7 Both are law enforcement officers, both are sworn to uphold the law, and both are authorized to use force (even deadly force) toward that end. We are, of course, aware of the obvious security concerns inside the close confines of a prison. However, that is simply one factor that must be considered in determining if a particular application of force is reasonable. It does not suggest a different Eighth Amendment inquiry for corrections officers as opposed to police officers. The law does not allow either to
Therefore, “if [Smith] can show at trial that an officer attacked him while [Paulukonis] ignored a realistic opportunity to intervene, he can recover.” Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000). Moreover, neither rank nor supervisory status is a factor in assessing whether Paulukonis had “a realistic opportunity to intervene.” Id.8
There is some evidence that Paulukonis witnessed the beating that his fellow officers allegedly administered to Smith. Smith alleges that Paulukonis stated in his misconduct report that “[t]he minimum amount of force was used to place inmate Smith onto the floor.” App. at 329. This appears to be based upon first-hand observations Paulukonis made while standing at the door of the Unit Manager‘s office during the incident. Smith further testified that the door of the office remained open throughout the incident and that Paulukonis saw the beating. A fact finder could conclude that Paulukonis knew that his fellow officers were using excessive force against Smith, had an opportunity to intervene, but refused to do so. Accordingly, the district court erred in dismissing Smith‘s Eighth Amendment claim against Paulukonis.
D. Smith‘s Due Process Claim
In a separate opinion, the district court also held that Smith could not establish a due process claim under Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997). See Smith I, 1998 WL 151803, at *5. The district court reasoned that Smith “was subjected to seven months disciplinary time, a period of time half of that implicated in Griffin.” Id. The court reasoned that, even assuming that the misconduct reports were issued to cover up the use of excessive force, the disciplinary sanction still did not constitute a due process violation as it did not rise to the level of an “atypical and significant hardship in relation to the ordinary incidents of prison life.” Id., quoting Griffin, 112 F.3d at 706.
Smith argues that the district court misinterpreted the basis of his due process claim. Smith does not claim that the seven months disciplinary sanction was a violation of a liberty interest and therefore a denial of due process. Rather, Smith claims that Mensinger issued a misconduct report to retaliate against Smith for his conduct toward Mensinger and to cover up a beating. Thus, Smith claims that the misconduct report was not intended to enforce prison regulations at all, and it was therefore improper to impose a disciplinary sanction.9 However, even assuming that the district court did misconstrue the crux of Smith‘s due process claim, it is nevertheless evident that the court‘s rejection of that claim was correct.
In Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), an inmate had been charged with multiple disciplinary infractions, but the inmate‘s request to produce certain witnesses at his hearing was refused by the
Prison disciplinary proceedings may, however, constitute a denial of due process in the context of a civil rights action under
Sandin instructs that placement in administrative confinement will generally not create a liberty interest. Retaliation may be actionable, however, even when the retaliatory action does not involve a liberty interest. [G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right.
Seiverling, 229 F.3d at 224 (internal citations and quotation marks omitted).
We have previously held that falsifying misconduct reports in retaliation for an inmate‘s resort to legal process is a violation of the First Amendment guarantee of access to the courts. See Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981). In Milhouse, the inmate alleged that prison officials retaliated against him by fabricating misconduct charges in response to his civil rights suit against the prison officials. We concluded that “[s]uch allegations, if proven at trial, would establish an infringement of Milhouse‘s first amendment right of access to the courts.” Milhouse, 652 F.2d at 374.
Although Milhouse also involved an allegation that prison officials fabricated misconduct charges, that case is distinguishable from Smith‘s because the conduct in Milhouse implicated a constitutional right—the First Amendment right to access to the courts. Smith‘s purported liberty deprivation, on the other hand, implicates no constitutional right and therefore can not overcome the hurdle erected by the holding in Sandin. See Sandin, 515 U.S. at 486. Under Sandin, an administrative sentence of disciplinary confinement, by itself, is not sufficient to create a liberty interest, and Smith does not claim that another constitutional right (such as access to the courts) was violated. Accordingly, we hold that the district court correctly dismissed Smith‘s due process claim.
In dismissing the claims, the district court correctly relied upon the analysis of the Court of Appeals for the Second Circuit in Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986). In Freeman, an inmate brought a due process claim against prison authorities under
Smith argues that “there is more” to his claim However, he must clear two hurdles to overcome the district court‘s reliance on Freeman. First, it is now clear that the sanction Smith challenges (seven months disciplinary confinement) does not, on its own, violate a protected liberty interest as defined in Sandin. Therefore, he can not establish that the defendants’ conduct denied him substantive due process by infringing upon a liberty interest. Second, he was afforded a hearing and therefore had the opportunity to confront and challenge the allegedly perjured testimony offered in support of the misconduct reports. Under Freeman, that is all he was entitled to.
Smith cites several cases in arguing that the district court erred in relying upon Freeman. However, the cases he cites are either distinguishable, or were decided before Sandin, and are therefore of little precedential value.10 We therefore find that the district court did not err in dismissing Smith‘s due process claims.
IV. Conclusion
Accordingly, we will affirm the district court‘s dismissal of Smith‘s due process claims.11 However, we hold that the district court erred in dismissing Smith‘s claims under the Eighth Amendment. Consequently, we vacate the entry of summary judgment in favor of defendants Novitsky, Yurkiewicz, Androshick, McCole, Zubris, and Jones. We also hold that cor