Primus v. Wentzel, CIVIL 1:19-CV-1597

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
PartiesMICHAEL R. PRIMUS, SR., Plaintiff, v. JOHN E. WENTZEL, et al., Defendants.
Docket NumberCIVIL 1:19-CV-1597
Decision Date09 August 2021

MICHAEL R. PRIMUS, SR., Plaintiff,

JOHN E. WENTZEL, et al., Defendants.

CIVIL No. 1:19-CV-1597

United States District Court, M.D. Pennsylvania

August 9, 2021



Martin C. Carlson, United States Magistrate Judge

I. Statement and Facts of the Case

This is a prisoner civil rights case filed by the pro se plaintiff, Michael Primus, Sr., a state inmate incarcerated in the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Mahanoy in Frackville, Pennsylvania. Primus alleges that he was assaulted by another inmate at SCI Mahanoy, and that the correctional defendants failed to protect him from this inmate assault in violation of the Eighth Amendment to the Constitution. Three of the defendants have now filed a motion for summary judgment, arguing that the plaintiff's claims are unexhausted and without merit. For the following reasons, we will recommend that the motion be granted with respect to Defendants Wetzel and Delbalso[1], but that the motion be denied with respect to Defendant Reichner.

The facts of the instant case can be simply stated:[2] Primus has been incarcerated at SCI Mahanoy since 2015. Primus became a Certified Peer Specialist (“CPS”) in the facility, which required him to meet with inmates who wanted to discuss problems they were having. On December 5, 2018, while he was sitting in the dayroom on D-Block, he was attacked by another inmate, Charles Warren, without warning. Defendant Belt was the officer on duty in D-Block, and he ordered Warren to stop hitting the plaintiff, an order which Warren eventually obeyed. According to the complaint, Warren had allegedly assaulted two other inmates just days prior to the assault on Primus but was never disciplined for those incidents. Primus contends that Defendant Reichner, who was the counselor assigned to D-Block, was aware of these two prior assaults. Primus also alleges that Reichner had heard about a “hit” that was put out on Primus and had asked Primus about it days before the assault.

The attack left Primus unconscious, and when he came to in the dayroom, he was surrounded by several correctional officers, none of whom he could identify. He was taken to the infirmary, where a correctional officer told him that inmate Warren had attacked him. Following the assault, Primus received information from other inmates about what had occurred during the assault, including that Warren had punched, kicked, and stomped on Primus, and that CO Belt did not intervene in the attack. Primus was diagnosed with Post-Concussion Syndrome and suffered severe injuries to his right eye.

Primus filed two grievances pursuant to the DOC's policy DC-ADM 804, alleging that he was attacked by inmate Warren, and that CO Belt and “Unit Staff” did not protect him from the assault. In his first grievance, No. 776004, he additionally asserted that staff knew of the two prior assaults by Warren and failed to discipline him. This first grievance was denied, as it encompassed two separate incidents. Primus did not appeal this grievance for further review. The second grievance, No. 777402, was also denied, and the denial stated that CO Belt did not physically intervene per DOC policy because he did not have assistance, and thus there was no evidence that the DOC was negligent in its response to the assault. The second grievance was appealed to the Facility Manager and to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), but the appeals were ultimately denied.

Thus, Primus filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 16, 2019. (Doc. 1). In his complaint, he alleges that the defendants violated his Eighth Amendment rights when they failed to protect him from this inmate assault. His complaint names Secretary Wetzel, former Superintendent Delbalso, Counselor Reichner, and CO Belt as defendants. Three of these defendants-Wetzel, Delbalso, and Reichner-have now filed a motion for summary judgment. The motion first asserts that the plaintiff has not exhausted his administrative remedies, as these three defendants were not named in the plaintiff's grievances. Additionally, the defendants assert that the plaintiff has not demonstrated the personal involvement of any of these defendants, as is required to show a constitutional violation.

After review of the record, we conclude that the plaintiff has failed to exhaust his administrative remedies as to Defendants Wetzel and Delbalso, and further, that the Eighth Amendment claims against these defendants fail on their merits. However, with respect to Defendant Reichner, we conclude that there are factual disputes that preclude the entry of summary judgment in favor of this defendant at this time. Accordingly, we recommend that summary judgment be granted as to Defendants Wetzel and Delbalso, but that summary judgment be denied as to Defendant Reichner, without prejudice to renewal of the exhaustion claim on a more fulsome record.

II. Discussion

A. Motion for Summary Judgment - Standard of Review

The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).

Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. And...

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