BROWN v. GEO GROUP INC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GARTOR KIKI BROWN, :

Plaintiff, : CIVIL ACTION

: No. 19-1971

v. :

:

GEO GROUP, INC., et al. :

Defendants. :

:

:

McHUGH, J. July 31, 2020

MEMORANDUM

This is a prisoner civil rights case. Gartor Brown alleges that he was subjected to

excessive force and retaliation, and he also alleges that he received inadequate medical

treatment for injuries he sustained at the hands of corrections officers.1 Seven of the

twelve defendants named in the action now move for dismissal2, asserting that Brown has

failed to state a claim upon which relief may be granted. For the reasons that follow, the

motion will be granted in its entirety.

I. Relevant Background

The crux of Brown’s allegations is that, in retaliation for filing a grievance,

members of prison staff subjected Brown to excessive force, which caused injuries, and

then denied him treatment for those injuries after the fact. The allegations center,

1 It is the third case of his in which the Court has ruled on a dispositive motion in the past several months.

2 The remaining defendants have not been served.

specifically, on two purportedly violent interactions Brown claims to have had with

corrections officers and treatment he claims was denied in May 2017.

Brown alleges that the trouble first started on May 14, 2017, when C/O Bagwell

and another official entered his cell to perform a strip search and used excessive force to

accomplish that task. (Compl. ¶¶ 21-22.) During the incident, Brown says the pair

slammed his head into the wall repeatedly, hit him in the ribs, and wrapped a TV cord

around his neck. (Id. ¶ 26.) Brown claims the attack was the physical culmination of

earlier threats and harassment to which he was subjected in retaliation for his having filed

a grievance against their colleagues. (Id. ¶ 23.) The attack purportedly resulted in

injuries to Brown’s head, neck, back and ribs. (Id. ¶ 26.)

Brown then avers that he sought treatment from medical personnel for those

injuries on May 15, 2017, but that the treatment was denied. Specifically, he alleges that

Dr. Phillips and Nurses Cynthia and Tuttle performed what he believed was an

inadequate examination of his injuries, and he claims that Phillips told one of the other

defendants “he likes to litigate, he gets nothing.” (Id. ¶ 27.) Brown was seen the

following day by Nurse Bouvier, who Brown claims admitted that Phillips instructed her

not to treat him but nevertheless proceeded to conduct an examination. (Id. ¶ 28.) As

with the previous encounter, Brown claims that Bouvier’s examination was inadequate

and failed to note injuries he suffered two days prior. (Id.)

On May 17, 2017, the alleged physical abuse and lack of treatment described

above pushed Brown to stage a protest in the recreation area of his cell block. Although

not entirely clear from the Complaint, Brown appears to plead that he climbed to the top

of a 40-foot tall fenced cage on which he alleges prison officials constructed a platform to

accommodate frequent prisoner protests. (Id. ¶¶ 29-30.) Brown climbed through a hole

in the top of the cage, and once on the platform, demanded to see the Warden to complain

about the purported lack of treatment. (Id.) Brown avers that he disclaimed any intent to

harm himself, stating that his purpose for the act was “nonviolent protest pertaining to his

mistreatment and deprivation of medical treatment.” (Id. ¶ 31.) The protest had the

desired effect of drawing out a Deputy Warden to whom Brown aired his grievances,

after which Brown says he agreed to come down from the cage. (Id.)

According to the Complaint, Brown was met with excessive force from officers

tasked with bringing him down from the cage.3 Brown claims that as he prepared to

descend along the outside of the cage, C/O Zglszweksi, who was positioned on a ladder

nearby, grabbed and pulled on him. (Id. ¶ 32). Brown avers that he told Zglszewski that

he was afraid he might fall, asked Zglszewski to stop touching him, and ostensibly

offered to go back through the hole he used to climb on top. (Id.) At that point, C/O

Campagna is alleged to have hit him with a mace can, and Lieutenant Moore is alleged to

have first hit him and then pulled him down by his hair. (Id.) When Brown still did not

release his grip on the cage, Campagna allegedly maced him and he was pushed by one

or more of the defendants, causing him to fall. (Id.)

Brown says the fall knocked him unconscious for “no less than 5 minutes.” (Id.

¶ 34.) His next memory afterward was of Davis, Campagna, Laughlin, and Zglszewski

3 Brown’s allegations are inconsistent as to how far off the ground he was when the interaction began, but it seems

most plausible that he was approximately 20 feet up. (See Compl. ¶ 32.)

using force to cut off his clothing and place him in an “anti-suicide smock” as well as

being hit in the head “to comply.” (Id. ¶ 38.) Brown says that after being secured, he

was taken to a special cell and left there without medical treatment, though he does not

specify for how long. (Id. ¶ 39.)

Brown next alleges that “records [show he] was evaluated by Nurse Cassidy on

[May 17, 2017] after the fall.” (Id. ¶ 35.) According to Brown, Cassidy determined he

suffered no injuries and she, like her colleagues, was instructed by Phillips not to provide

treatment. (Id. ¶¶ 36-37.) Four days later, Brown claims he again presented to the

medical team to inform them about hitting his head in the fall and also to complain of

injuries to his head, neck, shoulder, ribs, and heel along with slow gait and numbness

extending down the right side of his body. (Id. ¶ 39.) Brown claims that he received no

medication during this encounter and that his “injuries were ignored by defendants.” (Id.

¶ 40.)

Based on these allegations, Brown now asserts a series of claims against the

facility in which he was incarcerated at the time, as well as several individuals who

worked there. Though the allegations of the Complaint are somewhat hard to follow,

Brown appears to assert claims under 42 U.S.C. § 1983 for excessive force, inadequate

medical treatment, retaliation, and municipal liability. The moving defendants who seek

dismissal here comprise seven of the twelve parties against whom Brown has filed claims

in this matter.

II. Standard of Review

In this Circuit, motions to dismiss under Federal Rule of Civil Procedure 12(b)(6)

are governed by the well-established standard set forth in Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009). Because Plaintiff is proceeding pro se, his pleadings

must be liberally construed. Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 265

(3d Cir. 2011).

III. Discussion

Preliminary Considerations

Before turning to the merits of Defendants’ Motion, I begin with two threshold

matters that bear on my analysis. First, the parties do not specify whether Mr. Brown

was a pretrial detainee or sentenced prisoner at the time of the incidents in question. But

Brown’s status affects my determination of what standards apply to some of his claims.

Based on a review of the state court dockets, it appears Brown became a sentenced

prisoner as of April 4, 2017.4 This has practical consequences because pretrial detainees

are entitled to “greater constitutional protection than that provided by the Eighth

Amendment,” Hubbard v. Taylor, 399 F.3d 150, 167 n.23 (3d Cir. 2005), while claims by

sentenced prisoners are evaluated under the Eighth Amendment, which bars cruel and

unusual punishment, id. at 164 (quoting Graham v. Connor, 490 U.S. 386, 392 (1989)). I

4 See Court Summary available at https://ujsportal.pacourts.us/DocketSheets/CourtSummaryReport.ashx

?docketNumber=CP-23-CR-0002127-2016&dnh=ox6zCY2MlhbhwSeRRDOSZA%3d%3d (last accessed July 17,

2020). The Court may take judicial notice of a fact that “can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see also United States ex rel. Spay v. CVS

Caremark Corp., 913 F. Supp. 2d 125, 139 (E.D. Pa. 2012) (“On a motion to dismiss, courts take judicial notice of

documents which are matters of public record.”) (citation omitted).

conclude that the applicable Eighth Amendment standards govern his excessive force and

inadequate medical treatment claims and will analyze them accordingly.

Defendants further contend that Brown’s Complaint should be dismissed because

the Complaint indicates he has filed a previous lawsuit concerning the events here.

(Defs.’ Mot. to Dismiss, at 15, ECF 10.) My review of the docket reveals no such claims,

although Brown has previously sued some of the same defendants. Defendants’

contention on this point is therefore rejected, and I will proceed to the merits of Brown’s

claims.

Brown fails to state a claim for excessive force against the moving

Defendants.

In this Circuit, “the pivotal inquiry in reviewing an inmate’s § 1983 claim for

excessive force is whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Smith v. Mensinger, 293 F.3d

641, 649 (3d Cir. 2002) (citing Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)). To

satisfy that inquiry, District Courts must consider five factors: “(1) the need for the

application of force; (2) the relationship between the need and the amount of force that

was used; (3) the extent of 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.”

Id. at 649 (quoting Brooks, 204 F.3d at 106). “The objective component of the excessive

force inquiry is met when ‘the inmate’s injury was more than de minimis.’” Ricks v.

Shover, 891 F.3d 468, 479-80 (3d Cir. 2018) (quoting Fuentes v. Wagner, 206 F.3d 335,

345 (3d Cir. 2000)).

The analysis required of Brown’s claims for excessive force differs as to each of

the incidents he alleges in the Complaint, so I will discuss them in turn.

1. The strip search in Brown’s cell

Brown alleges that during a strip search performed in his cell, C/O Bagwell and an

unnamed officer slammed his head into the wall repeatedly, hit him in the ribs, and

wrapped a TV cord around his neck. (Compl. ¶ 26.) The moving Defendants argue that

Brown fails to state a claim against them related to the strip search because Brown’s

allegations center on Bagwell and another unnamed officer, neither of whom are one of

the defendants moving for dismissal here. (ECF 10, at 10.) I agree.

The Court of Appeals has stressed that “a defendant’s § 1983 liability must be

predicated on his direct and personal involvement in the alleged violation.” Jutrowski v.

Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018). Thus, a district court evaluating a

§ 1983 claim must “eschew any theory of liability in which defendants played no

affirmative part in depriving anyone of any constitutional rights—including theories of

vicarious or respondeat superior liability.” Id. at 290 (cleaned up). To prevail on a

§ 1983 claim, a plaintiff must “plead that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution.” Id. at 290 (cleaned

up) (emphasis in original).

As the moving Defendants point out, Brown’s Complaint alleges that Bagwell and

another officer performed the strip search during which he claims to have been physically

assaulted. Because Brown alleges no facts that point to the involvement of any of the

moving Defendants in that incident, they are entitled to dismissal.

2. Brown’s protest in the recreation yard

Brown also alleges that he was subjected to excessive force after climbing atop a

fenced cage in the recreation area of his cell block. Defendants stress that Brown does

not state a claim for excessive force related to this incident because officers used the

force necessary to secure Brown’s compliance after he created a disturbance in the area.

(ECF 10, at 5-6.) Once again, I agree.

When analyzing excessive force claims in the context of a prison disturbance, the

Third Circuit has recognized that corrections officers may use reasonable force against an

inmate to restore or preserve order. See Giles v. Kearney, 571 F.3d 318, 327 (3d Cir.

2009). The determination of “whether force was applied in a good faith effort to restore

discipline turns in part on the extent of the threat as reasonably perceived by the officers

on the basis of facts known to them.” Id. at 328. And the Third Circuit has affirmed

dismissal of claims where officers merely overreacted to an emergency situation, rather

than engage in the “malicious, sadistic behavior” necessary to establish a claim of

excessive force. Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000).

As the Third Circuit requires, I look to the factors set forth in Smith to determine

whether the officers here used force as part of “a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” 293 F.3d at 649. Applying

those factors, I conclude that the former is true because the facts alleged in Brown’s

Complaint demonstrate that Brown created a disturbance and that officials acted within

reasonable limits to subdue him after he did so.

Brown affirmatively pleads that he created the disturbance for the purpose of

drawing out someone in prison leadership to whom he could air his grievances, and the

disturbance had precisely that effect: it gave Brown the opportunity to speak with a

Deputy Warden. But Brown’s disturbance also necessitated a response because he

endangered his own safety, and given the nature of his conduct, that response also put

correctional officers at risk.

The risk to Brown continued even after the first part of the incident ended when

Brown spoke with a Deputy Warden. Regardless of whether the height was 20 feet or 40

feet, Brown was clearly some meaningful distance off the ground. By way of reference,

the Occupational Safety & Health Administration (OSHA) recognizes a risk of injury at

heights of just four feet.5 Under the circumstances, the responsible officers were not

obligated to accept his representations that he would not harm himself and they were not

required to endorse the method or route by which he proposed to come down. Nor, for

that matter, did they have to place themselves at unnecessary risk by prolonging the

incident.

Even assuming officials used the level of force Brown alleges as events unfolded,

their intervention does not rise to the level of malicious or sadistic. He was not shot,

tased, or repeatedly beaten. On the contrary, the circumstances confronting prison

5 United States Department of Labor, Occupational Safety and Health Administration (OSHA), Safety and Health

Topics, Fall Protection, https://www.osha.gov/SLTC/fallprotection/, (last visited July 27, 2020).

officials here were precisely the kind that make courts reluctant to second-guess an

officer’s decisions when acting to restore order.

Furthermore, even crediting Brown’s allegation that he told the Deputy Warden he

was not a harm to himself, there are no facts that indicate the officers who restrained him

were privy to that conversation. Their actions would still be justifiable if the facts

showed otherwise, because Brown’s ascent to the platform demonstrated that he posed a

potential danger to himself, and the officers’ need to ascend and secure him entailed risk

on their part. Moreover, Brown’s alleged injuries, while regrettable, are a natural

consequence of putting himself in a position that required corrections officers to exercise

their discretion to intervene using some level of force. Brown does not have a

constitutional right to negotiate the terms under which he will come into compliance.

Because the Complaint fails to establish the use of excessive force as Brown was

subdued coming down, I will dismiss the claim as to this incident in its entirety.

3. The anti-suicide smock

Brown finally urges that after corrections officers got him down from the fence,

they subjected him to excessive force when placing him in an anti-suicide smock. I note

before going further that the mere fact of the officers placing him in the anti-suicide

smock lends further credence to the notion that the officers interpreted Brown’s actions at

the time as indicative of a dangerous and unstable situation requiring physical

intervention. Defendants stress that the claim as to this incident should be dismissed for

two reasons: (1) Brown has failed to specify which officers were involved, and (2) he

does not allege in what way the officers used excessive force to get him into the smock. I

disagree with Defendants’ first contention because Brown specifically alleges that Davis,

Campagna, Laughlin, and Zglszewski used force to cut off his clothing and place him in

the smock. (Compl. ¶ 38.) But Defendants’ second point lands on solid ground: Brown

does not allege facts that point to any specific actions by the officers that constituted

excessive force. He ascended to a dangerous height and created a disturbance in defiance

of prison regulations. Securing him in a manner that would prevent him from repeating

that conduct cannot be deemed excessive force under the facts he has pleaded.

In sum, Brown’s excessive force claims will be dismissed in their entirety as to the

climbing incident and the attempt to fit him with an anti-suicide smock and dismissed in

connection with the alleged strip search as to the moving Defendants only.

Brown fails to state a claim for inadequate medical treatment.

Brown alleges that members of the medical staff were deliberately indifferent to

his needs, citing as evidence Dr. Phillips’s alleged instruction to members of the staff not

to care for him and purportedly receiving inadequate medical treatment for his injuries. I

disagree.

Under the Eighth Amendment, prison officials are required to provide inmates

with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-05 (1976). But an

inmate’s “mere disagreement as to the proper medical treatment” will not “support a

claim of an Eighth Amendment violation.” Monmouth Cty. Corr. Inst. v. Lanzaro, 834

F.2d 326, 346 (3d. Cir. 1987). Rather, officials “violate an inmate’s Eighth Amendment

rights when they are deliberately indifferent to an inmate’s serious medical need.”

Dooley v. Wetzel, 957 F.3d 366, 375 (3d Cir. 2020) (citing Estelle, 429 U.S. at 106

(1976)). An inmate’s medical need is serious “where failure to treat can be expected to

lead to substantial and unnecessary suffering, and a doctor has diagnosed the condition,

or the need for treatment would be obvious to a lay person.” Id. (cleaned up). And a

prison official is “deliberately indifferent to [that need] when they are actually aware of a

substantial risk of serious harm and disregard that risk.” Id. (cleaned up).

I conclude that the allegations of the Complaint are insufficient to support an

Eighth Amendment violation for denial of medical treatment. If true, Dr. Phillips’s

purported instruction not to treat Brown would qualify as deliberate indifference. But no

denial of medical care followed. Brown pleads that despite allegedly giving the

instruction, Phillips himself performed an examination. The Complaint further avers that

Brown received an evaluation by staff members during each visit to the medical facility

even though he did not receive the diagnosis or treatment he thought was appropriate.

And as to the final visit, the crux of Brown’s issue with the treatment seems to be that he

was not provided with medication when he thought he should be.

These allegations represent Brown’s “mere disagreement” with the medical staff’s

evaluation and resultant treatment of his injuries, Lanzaro, 834 F.2d 346, rather than a

wholesale deprivation of medical care. Accordingly, I conclude that Brown fails to

establish an Eighth Amendment violation due to inadequate medical treatment, and the

claims will be dismissed in their entirety.

Brown fails to state a municipal liability claim.

Brown advances a number of theories of municipal liability against GEO Group,

all of which ultimately fail.

Municipal defendants may not be held liable for constitutional violations under

Monell v. Dept. of Soc. Servs, 436 U.S. 658, 694 (1978), on a theory of respondeat

superior. Brown v. City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009). Plaintiffs

seeking to impose that liability must allege that the defendant had a policy or custom

fairly attributable to the defendant that was responsible for causing any injuries that

resulted. Id. But “proof of a single incident of unconstitutional activity is not sufficient

to impose liability under Monell, unless proof of the incident includes proof that it was

caused by an existing . . . municipal policy, which policy can be attributed to a municipal

policymaker.” Id. (cleaned up).

Here, aside from conclusory allegations, Brown provides no facts that point to a

GEO Group policy or custom that led to the injuries he claims to have suffered. Rather

he focuses his allegations on the actions of specific members of the staff at the facility in

which he was incarcerated.

Brown’s claims against GEO Group will therefore be dismissed.

Dismissal of these claims will be with prejudice

Ordinarily, dismissal at this stage comes with leave to amend. In this instance, as

to these dismissed claims, leave will not be granted. Mr. Brown is an experienced and

prolific pro se litigant. He has set forth the facts in sufficient detail to weigh the legal

validity of his claims. In other cases, he has resorted to repeated amendments and

significantly altered his versions of the facts in an attempt to secure a strategic advantage.

See, e.g., Brown v. Upper Darby Police Dep’t, 2020 WL 733108, at *6-7 (E.D. Pa. Feb.

13, 2020). Denial of leave to amend may be premised on “bad faith or dilatory motives,

truly undue or unexplained delay, repeated failures to cure the deficiency by amendments

previously allowed, or futility of amendment.” Lorenz v. CSX Corp., 1 F.3d 1406, 1414

(3d Cir. 1993). The Court’s experience with Mr. Brown calls into question his good

faith, particularly in light of his previous use of the court system in a manner that appears

to serve purposes other than vindication of his constitutional rights. Leave to amend is

therefore not warranted.

IV. Conclusion

For the reasons set forth above, Defendants’ Motion will be GRANTED. An

appropriate Order follows.

/s/ Gerald Austin McHugh

United States District Judge