Bomar v. Braunlich, Lieutenant at SCI-Greene

• Decision Date: 19 August 2021
• Docket Number: 2:17-CV-01035-NBF
• Parties: PITTSBURGH ARTHUR BOMAR, Plaintiff, v. BRAUNLICH, LIEUTENANT AT SCI-GREENE; CODY, CORRECTIONAL OFFICER; C. MARTIN, CORRECTIONAL OFFICER; HICKS, CORRECTIONAL OFFICER; T. LEWIS, CORRECTIONAL OFFICER; J. MCCUNE, CORRECTIONAL OFFICER; GUMP, CORRECTIONAL OFFICER; RONNIE FEATHER, CORRECTIONAL OFFICER; MILLS, CORRECTIONAL OFFICER; SHALLENBERGER, CORRECTIONAL OFFICER; STANDARD, CORRECTIONAL OFFICER; SICKLES, CORRECTIONAL OFFICER; JENKINS, CORRECTIONAL SERGEANT OFFICER; MAZON, CORRECTIONAL OFFICER; MCGEE, CORRECTIONAL OFFICER; R. MAYER, CORRECTIONAL OFFICER; BRANT, CORRECTIONAL OFFICER; MCANANY, CORRECTIONAL INSTITUTION ADMINISTRATION STAFF; CAPTAIN SWITZER, CORRECTIONAL CAPTAIN/SHIFT COMMANDER; TATE, RN; DICE, RN; LORI RIDINGS, RN; DR. DENISE SMYTH, NATALIE AUSTIN, PA-C; HENDERSON, CORRECTIONAL OFFICER; ORBASH, CORRECTIONAL OFFICER; LT. PROCE, CORRECTIONAL LIEUTENANT; AND ASHLEY BOOKER, RN; Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

PITTSBURGH ARTHUR BOMAR, Plaintiff,
v.
BRAUNLICH, LIEUTENANT AT SCI-GREENE; CODY, CORRECTIONAL OFFICER; C. MARTIN, CORRECTIONAL OFFICER; HICKS, CORRECTIONAL OFFICER; T. LEWIS, CORRECTIONAL OFFICER; J. MCCUNE, CORRECTIONAL OFFICER; GUMP, CORRECTIONAL OFFICER; RONNIE FEATHER, CORRECTIONAL OFFICER; MILLS, CORRECTIONAL OFFICER; SHALLENBERGER, CORRECTIONAL OFFICER; STANDARD, CORRECTIONAL OFFICER; SICKLES, CORRECTIONAL OFFICER; JENKINS, CORRECTIONAL SERGEANT OFFICER; MAZON, CORRECTIONAL OFFICER; MCGEE, CORRECTIONAL OFFICER; R. MAYER, CORRECTIONAL OFFICER; BRANT, CORRECTIONAL OFFICER; MCANANY, CORRECTIONAL INSTITUTION ADMINISTRATION STAFF; CAPTAIN SWITZER, CORRECTIONAL CAPTAIN/SHIFT COMMANDER; TATE, RN; DICE, RN; LORI RIDINGS, RN; DR. DENISE SMYTH, NATALIE AUSTIN, PA-C; HENDERSON, CORRECTIONAL OFFICER; ORBASH, CORRECTIONAL OFFICER; LT. PROCE, CORRECTIONAL LIEUTENANT; AND ASHLEY BOOKER, RN; Defendants.

No. 2:17-CV-01035-NBF

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

August 19, 2021

Arthur Bomar Pro Se.

Nora Barry Fischer, District Judge.

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REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS ECF NOS. 133, 135

LISA PUPO LENIHAN, United States Magistrate Judge.

I. RECOMMENDATION

For the reasons stated below, it is respectfully recommended that the Motions to Dismiss by Defendants of the Pennsylvania Department of Corrections (“DOC Defendants”) and by Defendants Ridings, Smyth, and Austin of the medical staff at SCI-Greene (“Medical Defendants”) be granted in part, with the exception of the deliberate indifference claim against Defendant Tate. The Motion should be denied as to the deliberate indifference claim against Tate. It is recommended that the remaining Defendants be terminated from the case.^[1]

II. REPORT

A. Factual and Procedural Background

This matter has a long and complicated procedural background. Plaintiff Arthur Bomar (“Plaintiff”), pro se, filed this action pursuant to 42 U.S.C. § 1983 against the Corrections and Medical staff at SCI-Greene for claims of excessive force and deliberate indifference under the Eighth Amendment, a claim for violation of the due process clause of the Fourteenth Amendment, as well as a claim for assault and battery. ECF No. 1. The Complaint was filed in

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the Commonwealth Court of Pennsylvania on July 24, 2017, and DOC Defendants removed it to the United States District Court for the Western District of Pennsylvania. Id.

Plaintiff alleges that when he was incarcerated at SCI-Greene, two officers (not named as defendants in the Second Amended Complaint) told him on December 14, 2016 that he was being transferred to SCI-Graterford because he had an upcoming court date. ECF No. 116 ¶ 34. Plaintiff told the officers that he did not have a court date and would refuse to go. Id. ¶ 37. The next day, more officers (also not named as defendants) came to his cell to escort him to intake for transfer to SCI-Graterford. Plaintiff refused to go, and the officers left. Id. ¶¶ 38, 39.

Four days later, on December 19, 2016, Defendant Braunlich, along with a “seven man extraction team” of Defendants Cody, Martin, Hicks, Lewis, McCune, Gump, and Standard, came to Plaintiff's cell. Id. ¶ 40. Without warning, Braunlich opened the cell door wicket and sprayed Plaintiff with a large container of OC spray, covering his face and the rest of him. Id. ¶¶ 41, 42. Plaintiff then placed his hands outside the wicket and Defendant McCune cuffed them. Id. ¶¶ 43, 44. McCune also shackled Plaintiff's feet when Plaintiff exited his cell and was placed on his knees. Id. ¶ 44. Defendants Lewis and Martin then escorted Plaintiff to the medical room, where Defendant Tate, who is an RN, was waiting. Id. ¶ 45. Plaintiff states, “at that time nothing was done to decontaminated [sic] Plaintiff of the chemical agent.” Id. ¶ 46.

Defendants McCune, Lewis, and Martin placed Plaintiff in a restraint chair. Then Defendants Braunlich, McCune, Lewis, Martin, Cody, Hicks, Feather, Henderson, Mills, and Tate escorted Plaintiff to intake for the prison transfer. Id. ¶ 47. Defendants Lewis and McCune removed Plaintiff from the restraint chair. Defendants Martin and Henderson strip searched Plaintiff. Plaintiff still had not been decontaminated at this point. Id. ¶¶ 48, 49. After the search, Defendants Martin and Henderson gave Plaintiff back the same clothes which he was wearing

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when he was sprayed, and which were also not cleaned off. Id. ¶ 51. Plaintiff states that he was “not allowed to clean himself by taking a shower, or wash-up, obtain clean clothing, underwear, jumpsuit, etc.” He also did not receive medical treatment. Id. ¶ 52.

Defendants Martin and Henderson then placed Plaintiff back into hand cuffs and leg shackles. Id. ¶ 53. Defendants Henderson, Mills, and Orbash escorted Plaintiff to SCI-Camp Hill in the transport van, with Plaintiff still covered in the OC spray. Id. ¶¶ 54, 55. When Plaintiff arrived at SCI-Camp Hill, Defendant Proce escorted him from the transport van into the prison, to intake, and then to a cell. Id. ¶ 56. Plaintiff waited for about one and a half hours in the cell still covered in OC. Id. Plaintiff states that “nothing was done to decontaminated [sic] Plaintiff of the chemical agent, ” and that he was “again denied medical treatment.” Id. ¶ 58. Plaintiff spent nine hours covered in the chemical agent. Id. ¶ 59. Plaintiff experienced “physical burning of the skin, eyes, face, hands, legs, tongue, and throat plus chest pain.” Id. ¶ 60.

Plaintiff alleges that Defendants Switzer and McAnany both authorized the use of the OC spray on Plaintiff, and they should have known by their training and commonsense that Plaintiff should have been decontaminated right after he was sprayed, and not be denied medical treatment for nine hours after being sprayed. Id. ¶¶ 61, 62. Plaintiff also alleges that Defendants Tate, Dice, Austin, Smyth, Booker, and Ridings also authorized the use of the OC spray on Plaintiff, and should have known by their training and commonsense that Plaintiff should have been decontaminated and given medical treatment soon after being sprayed. Id. ¶ 63.

Plaintiff submitted a grievance on February 13, 2017, complaining of being forcibly extracted from his cell on December 19, 2016, and how he was not decontaminated and received no medical attention for nine hours after being sprayed with the OC chemical agent. ECF No. 136-1 at p. 2. The grievance names Defendant Braunlich, “John/Jane Doe's (1-99, those who

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were directly involved in the use of chemical agents and/or extraction of Grievant), ” several other defendants who have since been terminated from this case, and “John/Jane Doe's (1-99, as to those unknown at this time due to a lack of discovery, but those who were directly involved in the incident, either pretransfer or subsequent.” Id. at p. 3. The security staff at SCI-Greene investigated his grievance and found it to be unsubstantiated with regard to abuse. Id. at p. 1. Plaintiff appealed the denials to the final stage, which was again denied by the Secretary's Office of Inmate Grievances and Appeals. Id.

Plaintiff claims that all named DOC Defendants used excessive force against him in violation of the Eighth Amendment. ECF No. 116 ¶ 66. Plaintiff also claims that their actions in using physical force against Plaintiff without need or provocation constitutes assault and battery under Pennsylvania law. Id. ¶ 67. Plaintiff claims that Defendants Switzer, Braunlich, McAnany, Tate, Dice, Austin, Smyth, Booker, Ridings, and Proce, were deliberately indifferent to his need for medical attention after he was sprayed with OC, and thus violated the prohibition against cruel and unusual punishment under the Eighth Amendment. Id. ¶ 68.

In September 2017, DOC Defendants filed the first Motion to Dismiss to the original Complaint and a Motion to Stay Discovery. ECF Nos. 4, 6. Plaintiff motioned to quash the Motion to Stay Discovery; the Court denied that motion due to the pending Motion to Dismiss, which argued for dismissal based on issues that required little to no discovery. ECF Nos. 11, 13. In October 2017, Plaintiff submitted a Motion to Amend Complaint and Response to Defendants' Motion to Dismiss. ECF No. 15. The Court granted Plaintiff leave to file a new, complete Amended Complaint within fourteen days. ECF No. 16. One month later, when the Court did not receive an Amended Complaint, it ordered Defendants to proceed with their response to Plaintiff's original Complaint. ECF No. 23.

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In November 2017, Defendants who have since been terminated filed their respective Motions to Dismiss the original Complaint. ECF Nos. 24, 26, 28. After Plaintiff was granted two extensions to file responses and one extension to file Objections to the Report and Recommendation, the District Court adopted the Report and Recommendation terminating certain defendants from the case on May 3, w, 2017. ECF No. 42. The District Court granted Plaintiff an additional 21 days to submit an Amended Complaint. Id. Plaintiff requested another extension of ninety days, which this Court rejected but allowed thirty days. ECF Nos. 43, 44.

On August 1, 2018, when Plaintiff failed to submit an Amended Complaint by the deadline, the Court entered an Order to Show Cause why the case should not be dismissed for Plaintiff's failure to prosecute. ECF No. 45. Plaintiff responded that he was trying to find a lawyer to assist him. ECF No. 46. The District Court then administratively closed the case on the condition that Plaintiff was to file status reports of his efforts to find representation every 60 days. ECF No. 47. Plaintiff submitted updates in late 2018 and early 2019. ECF Nos. 48-50. The case was reopened in March 2019 without Plaintiff securing counsel. ECF No. 53. Plaintiff was granted one month to submit an Amended Complaint. Id. Plaintiff motioned to strike the order to reopen the case, which was denied. ECF Nos. 54, 55. Plaintiff then...