Fattah v. John Doe 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ABDEL FATTAH,

Plaintiff NO. 3:10-cv-1607

v. (JUDGE CAPUTO)

JEFF RACKOVAN, et al.,

Defendant.

MEMORANDUM

Presently before me is Magistrate Judge Arbuckle’s Report and

Recommendation (“R&R”) (Doc. 202) regarding Defendants Rackovan, Somich, and

Granlund’s Motion for Summary Judgment (Doc. 155). Plaintiff Abdel Fattah, a

prisoner at SCI Rockview, claims that Rackovan, Somich, and Granlund (the

“Defendants’’) violated his civil rights. The Defendants moved for summary judgment,

arguing that Fattah failed to exhaust administrative remedies at the prison and that

Fattah has not produced evidence supporting his claims. (See Doc. 158). I will adopt

Magistrate Judge Arbuckle’s Report and Recommendation in full, as the Defendants

did not violate Fattah’s constitutional rights to adequate medical care and safe

conditions of confinement under the Eighth Amendment. The Defendants’ Motion for

Summary Judgment will therefore be granted.

I. Background

The parties are familiar with the facts, so I provide here only a brief

background. (I will address additional facts as they become relevant to my analysis of

Fattah’s specific objections.) During the time period relevant to this action, Fattah was

an inmate at the State Correctional Institution at Rockview (“SCI-Rockview’’). (See

Doc. 119, at 3).While incarcerated, Fattah developed an eating disorder, and as a

result, had a feeding tube implanted. (See Doc. 196-2). Fattah filed grievances

regarding a number of matters during his time at SCI Rockview, which can be

categorized two ways: medical grievances and grievances about the conditions of his

confinement, i.e., detention in a suicide cell. (See Doc. 196-7, at 4-6). Fattah’s medical

grievances stated, inter alia, Somich and other members of the medical staff at SCI-

Rockview did not: (1) provide his medication with milk as instructed by his medical

provider, Dr. Symons, (2) administer his medication on schedule, causing pain and

vomiting, or (3) use sanitary syringes to complete his gastric feedings. (See id. at 4-5).

In Fattah’s confinement grievances, he alleged, inter alia, Granlund placed him in a

suicide cell and clothed him in a suicide smock. (See id. at 5-6). Accordingly, Fattah

filed this action. (See Doc. 1).

Fattah has since amended his complaint three times, and the operative complaint

is the Third Amended Complaint. (See Doc. 119). After a lengthy period of motions

practice, only two causes of action remain, i.e., the Defendants violated Fattah’s

Eighth Amendment right to medical care and Eighth Amendment right to safe

conditions of confinement. (See Docs. 35, 61, 144, 145). The only remaining

Defendants in this case are: Rackovan, Somich, Granlund, and Dr. Symons". (See id.).

The Defendants moved for summary judgment in December 2017, filing a Brief

in Support (Doc. 158) and a Statement of Facts (Doc. 159). In response, Fattah filed

a Brief in Opposition (Doc. 180-1), and a two page response to the Defendants’

Statement of Facts (Doc. 179). When the Defendants failed to comply with one of the

Middle District of Pennsylvania’s Local Rules, Magistrate Judge Arbuckle, acting sua

sponte, gave the Defendants leave to file compliant evidentiary exhibit indices in

support of their Motions for Summary Judgment. (See Docs. 173). The Defendants

timely did so. (See Docs. 176-78). In answering the Defendants’ Statements of Facts,

however, Fattah also failed to comply with one of the Middle District of

Pennsylvania’s Local Rules. (See Doc. 179). In light of this error, Magistrate Judge

' Dr. Symons filed a separate a motion for summary judgment. (See Doc. 156).

Arbuckle, proceeded to issue a Report and Recommendation granting the Defendants’

Motion for Summary Judgment, which rested upon deeming Defendants’ facts

admitted. (See Doc. 187 at 40).

I rejected Magistrate Judge Arbuckle’s Report and Recommendation after

concluding that it was inequitable for the Defendants to receive a chance to remedy

a failure to comply with the Local Rules when Fattah was not afforded the same

opportunity. (Doc. 193). I granted Fattah a similar opportunity to cure his

noncompliance with Local Rule 56.1 and recommitted the matter to Magistrate Judge

Arbuckle for further proceedings. (See Doc. 193). Fattah timely complied. (See Docs.

194-196). Magistrate Judge Arbuckle proceeded to recommend that summary

judgment be granted in favor of the Defendants, because Fattah has not demonstrated

as a matter of law any violation of either his Eighth Amendment right to medical care

or his Eighth Amendment right to safe conditions of confinement. (See Doc. 202).

Fattah objected to the Report and Recommendation. (See Doc. 203). The Report and

Recommendation and the objection is thus now ripe for review.

II. Legal Standard

A. Review of the R&R

If objections to a magistrate judge's R&R are filed, I must conduct a de novo

review of the R&R’s contested portions. Sample v. Diecks, 885 F.2d 1099, 1106 n.3

(3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)). I may accept, reject, or modify, in

whole or in part, the factual findings or legal conclusions of the magistrate judge. See

28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993).

Although the review is de novo, the law permits me to rely on the recommendations

of the magistrate judge to the extent I deem it proper. See United States v. Raddatz,

447 U.S. 667, 675—76 (1980). Uncontested portions of the report may be reviewed at

a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154

(1985). At the least, courts should review uncontested portions for clear error or

manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa.

1998).

B. Summary Judgment

Summary judgment shall be granted “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). “A court may grant a motion for summary

judgment if, after it considers all probative materials of record, with inferences

drawn in favor of the non-moving party, the court is satisfied that there are no

genuine issues of material fact and the movant is entitled to judgment as a matter of

law.” Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d 210, 218 (3d Cir. 2015) (citing

Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 2556, 91 L. Ed. 2d

265 (1986); Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000)). “A fact is

‘material’ under Rule 56 if its existence or nonexistence might impact the outcome

of the suit under the applicable substantive law. A dispute over a material fact is

‘genuine’ if ‘a reasonable jury could return a verdict for the nonmoving party.’”

Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)).

“In determining whether the dispute is genuine, the court’s function is not to weigh

the evidence or to determine the truth of the matter... .” American Eagle

Outfitters v. Lyle & Scott Ltd., 584 F.3d 587, 581 (3d Cir. 2009) (citing Anderson,

477 U.S. at 248-49, 106 S. Ct. 2505).

The moving party bears the initial burden to identify “specific portions of the

record that establish the absence of a genuine issue of material fact.” Santini, 795

F.3d at 416 (citing Celotex, 477 U.S. at 323, 106 S. Ct. 2548, 2553). If this burden

is satisfied by the movant, the burden then “shifts to the nonmoving party to go

beyond the pleadings and ‘come forward with specific facts showing that there is a

genuine issue for trial.’” /d. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). The

nonmovant’s burden is not satisfied by “simply show[ing] that there is some

metaphysical doubt as to the material facts.” Chavarriaga, 806 F.3d at 218.

III. Discussion

As explained by Magistrate Judge Arbuckle, the operative complaint is best

construed as asserting the following claims against the Defendants: (1) Rackovan is

liable for the allegedly unconstitutional acts committed by Somich, Granlund, and

other DOC staff members as a “supervisor” who had actual knowledge of and

acquiesced to the conduct of his subordinates (See Doc. 202, at 13-14 ), (2) Somich

is liable for violating Fattah’s Eighth Amendment right to medical care (See Doc. 202,

at 14-15), and (3) Granlund is liable for violating Fattah’s Eighth Amendment right

to safe conditions of confinement (See Doc. 202, at 15-16).’

A. Jeff Rackovan

Magistrate Judge Arbuckle recommended summary judgment be granted with

respect to all claims against Rackovan, because Fattah did not exhaust the available

administrative remedies against Rackovan and failed to articulate a proper claim of

supervisory liability for the conduct of Defendants Somich, Granlund, and other DOC

staff members. (Doc. 202, at 25). I will adopt this portion of Magistrate Judge

Arbuckle’s Report and Recommendation in full.

Fattah failed to exhaust his administrative remedies against Rackovan. The

Prison Litigation Reform Act (“PLRA”) requires that “[n]Jo action shall be brought

with respect to prison conditions under section 1983 of this title, or any other Federal

law, by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.”42 U.S.C. § 1997e(a). “The

Fattah did not object to Magistrate Judge Arbuckle’s analysis of which claims have been

asserted against each Defendant, so I will proceed with the same analysis.

Supreme Court has held that this exhaustion requirement is mandatory and that a

prisoner must properly exhaust administrative remedies.” Kantamanto v. King, 651 F.

Supp. 2d 313, 321 (E.D. Pa. 2009) (citing Woodford v. Ngo, 548 U.S. 81, 85, 90–92

(2006)). “[E]xhaustion is a question of law to be determined by a judge, even if that

determination requires the resolution of disputed facts.” Small v. Camden Cnty., 728

F.3d 265, 269 (3d Cir. 2013). “Proper exhaustion requires pursuing a grievance

through all available levels of appeal.” Kantamanto, 651 F. Supp. 2d at 321 (citing

Woodford, 548 U.S. at 89, 93; Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir.2004)).

Federal courts must analyze exhaustion “within the applicable prison grievance

system.” Spruill, 372 F.3d at 231. “The level of detail necessary in a grievance to

comply with the grievance procedures will vary from system to system and claim to

claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries

of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 204 (2007).

In objecting to Magistrate Judge Arbuckle’s finding on proper exhaustion,

Fattah explains how he stated in his deposition that the Defendants have not provided

an accurate record of the grievances that he filed “based on his own recollections.”

(Doc. 203, at 9). Fattah relies on Paladino v. Newsome to demonstrate that this sworn

statement presents a genuine dispute of material fact regarding whether he exhausted

his administrative remedies against Rackovan. 855 F.3d 203 (3d Cir. 2018). In

Paladino, the plaintiff stated in his deposition that “he filed ‘numerous forms’ and

‘appealed numerous responses’ that “vanished after being properly submitted and/or

filed.” Id. at 206. He further stated that many of his grievances, specifically related to

the use of excessive force, had gone missing. Id. The Third Circuit held that the

plaintiff’s sworn statements were sufficient to create a material dispute, because they

set forth specific facts regarding the use of excessive force. Id. at 209-210. Fattah

analogizes Paladino to his case, because he “stated at deposition that he filed

approximately 5000 [sic] grievances while at Rockview,” but “[t]he Defendants have

only presented evidence as to 80 odd grievances.” (Doc. 197 at 11).

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Here, the Pennsylvania Department of Corrections Policy, which applies at SCI-

Rockview, provides a three-step process for the resolution of inmate grievances. (Doc.

196-7, at 9-10 4 7). The grievance policy, in relevant part, states:

The inmate will identify any person(s) who may have information that

could be helpful in resolving the grievance... the inmate will also

of Departthent directives, regulations, court orders, or othes law, If the

inmate desires compensation or other legal relief normally available from

a court, the inmate shall request the specific relief sought in his/her initial

grievance.

(Doc. 196-7, at 10 4 7). The Defendants have provided a record of eighty-four (84)

grievances filed by Fattah, none of which include any allegation of a concern about

Rackovan’s behavior. (Doc. 196-7, at 3 9] 7-8). While it is true that Fattah did state

in his deposition that he filed “approximately thousand [sic] grievance [sic],” he does

not specifically state that any of these grievances involved the actions of Rackovan or

his knowledge or acquiescence in the misdeeds of Somich and Granlund. (Doc. 196-2,

p 80:4-16). There is no other evidence that suggests Fattah filed a grievance against

Rackovan. Thus, Fattah’s statements about the thousands of missing grievances that

he filed are insufficient to create a genuine dispute regarding whether Fattah exhausted

his administrative remedies against Rackovan before pursuing this action.

Fattah’s theory of respondeat superior liability against Rackovan, due to his

involvement in the grievance process, also fails. “Section 1983 imposes civil liability

upon any person who, acting under the color of state law, deprives another individual

of any rights, privileges, or immunities secured by the Constitution or laws of the

United States.” Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).

“TA] supervisor may be personally liable under § 1983 if he or she participated in

violating the plaintiff’s rights, directed others to violate them, or, as the person in

charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex rel.

J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir.2004).

“TA]|ctual knowledge can be inferred from circumstances other than actual sight.”

Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995). Acquiescence occurs when

“ a supervisor with authority over a subordinate knows that the subordinate is violating

someone's rights but fails to act to stop the subordinate from doing so...” Robinson v.

City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997), abrogated on other grounds

by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L.

Ed. 2d 345 (2006). Nevertheless, an official who actually knew of a substantial risk

to inmate health or safety will not be liable where the official acted reasonably in

response, even if the harm ultimately ensues. Reese v. Ginocchetti, No. 3:CV-05-0452,

2006 WL 618440, at *2 (M.D. Pa. Mar. 8, 2006). Furthermore, “where actual

supervisory authority is lacking, mere inaction, in most circumstances, does not

reasonably give rise to a similar inference.” Id. “Permitting supervisory liability where

a defendant, after being informed of the violation through the filing of grievances,

reports or appeals, failed to take action to remedy the alleged wrong is not enough to

show that the defendant has the necessary personal involvement.” Hodge v. United

States, No. 3:06CV1622, 2007 WL 2571938, at *13 (M.D. Pa. Aug. 31, 2007); see

also Greenwaldt v. Coughlin, 1995 WL 232736, at *4 (S.D.N.Y. Apr.19, 1995) (“ an

allegation that an official ignored a prisoner's letter of protest and request for an

investigation of allegations made therein is insufficient to hold that official liable for

the alleged violations.”).

In objecting to Magistrate Judge Arbuckle’s finding regarding supervisory

liability, Fattah claims that Rackovan’s supervision over the grievance process

qualifies him as a “supervisor” and due to this role “he was aware of and disregarding

[sic] excessive risks to [Fattah’s] health or safety as the individual who processed the

grievance paperwork.” (Doc. 203, at 11). It is undisputed that Rackovan was the

Corrections Superintendent Assistant and part of his job responsibilities included

acting as the grievance coordinator at SCI-Rockview. (Doc. 196-3, pp 12:6-7, 12:17-

20). In this role, grievances would come to his office first, and then he would direct

them to the most appropriate department head for investigation. (Doc. 196-3, pp

12:20-13:1). Fattah submitted various allegations of constitutional violations to

8

Rackovan as required by the prison’s grievance policy through grievances or requests.

(Doc. 196-3, p 25:5-8). Rackovan’s role as the grievance coordinator only gave him

supervisory authority over the mechanics of the prison’s grievance policy and not

prison personnel. (Doc. 196-3, p 23:7-13). Though he did have minor authority over

inmates, he did not have control over medical issues or personnel, namely Defendants

Somich, Granlund, and other staff members at SCI-Rockview. (Doc. 196-3, p 23:7-

13). There is no evidence that Rackovan had authority over Fattah’s medical care or

the conditions of his confinement. Moreover, Fattah has not cited to any evidence that

would demonstrate Rackovan exceeded the scope of his authority over the grievance

process or failed to act in accordance with his job duties. Due to the lack of a genuine

dispute over whether Fattah properly exhausted his administrative remedies against

Rackvan and his supervisory liability, summary judgment will be granted in favor of

Rackovan on Fattah claims that Rackovan is liable for the acts committed by Somich,

Granlund, and other DOC staff members.

B. Somich and Granlund

1. The Claims for Monetary Damages Against Somich and Granlund

With respect to Fattah’s claim for monetary damages against Somich and

Granlund, Magistrate Judge Arbuckle recommends granting summary judgment in

their favor, because Fattah did not exhaust the administrative remedies available to

him for this type of relief. (Doc.202, at 29). Fattah objects to this recommendation by

arguing that Magistrate Judge Arbuckle misapplied the summary judgment standard.

(Doc. 203, at 3-9). I will adopt Magistrate Judge Arbuckle’s recommendation on this

issue in full.

As previously explained, § 1997e(a)’s exhaustion requirement is mandatory in

order to pursue an action in federal court. See Kantamanto, 651 F. Supp. 2d at 321

(internal citations omitted). Exhaustion of administrative remedies is required even if

the prison grievance system cannot afford the inmate the relief that he seeks in federal

court. /d. at 322 (citing Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir.2000)). “[P]rison

grievance procedures supply the yardstick for measuring procedural default.” Spruill,

372 F.3d at 231. Courts must “look to the rules governing the prison’s grievance

system to ascertain whether [a litigant] has procedurally defaulted his claim for

monetary relief.” /d. at 233. When an inmate is required but fails to request monetary

damages in his original grievances, the inmate cannot request such relief in the

complaint. Sanders v. Beard, No. 3:09-CV-1384, 2013 WL 1703582, at *6 (M.D. Pa.

Apr. 19, 2013).

The relevant portion of the grievance policy at SCI-Rockview reads:

Ifthe inmate desires compensation or other legal relief normally available

from a court, the inmate shall request the specific relief sought in his/her

initial grievance.

(Doc. 196-7, at 10 4 7); see also Spruill, 372 F.3d at 234 (reasoning that a regulation

in a grievance policy with verbatim language “could give rise to a procedural default

for failure to plead properly for relief.”’).

Here, Fattah only submitted one grievance, No. 332011, containing allegations

against Somich (Doc. 196-7, at 4 4] 13) and one grievance, No. 334327, including

claims against Granlund (Doc. 196-7, at 4 4 9). Fattah does not request to be

compensated with monetary damages in either of these grievances. (Doc. 196-7, at 3-4

q§| 11,14). Furthermore, Fattah does not allege that the Defendants failed to produce

any grievances specifically concerning Somich and Granlund. Thus, Fattah has

procedurally defaulted any claim for monetary relief against Somich and Granlund by

failing to properly exhaust his administrative remedies.

In the Third Amended Complaint, Fattah also requests “[a] decalation that the

acts and omissions described herein violated plaintiff's rights under the US

Constitution and/or federal statute.” (Doc. 119, at 40 1). Since § 1997e(e) does not

apply to claims seeking injunctive or declaratory relief See Mitchell v. Horn, 318 F.3d

523, 533 (3d Cir. 2003), summary judgment is not proper with respect to the

declaratory relief that Fattah has requested against Somich and Granlund. Thus, I will

proceed to analyze Fattah’s allegations that Somich violated his Eighth Amendment

10

right to medical care and Granlund violated his Eighth Amendment right to safe

conditions of confinement.

2. The Claim Against Somich

Regarding Fattah’s claim that Somich violated his Eighth Amendment right to

medical care, Magistrate Judge Arbuckle recommends granting summary judgment in

favor of Somich, because Somich did not deny or know of and disregard an excessive

risk to Fattah’s health or safety. (See Doc. 202, at 33). Fattah objects to this

recommendation by arguing that he “misconstrued” and did not draw inferences in

favor of his claims that Somich provided inadequate medical care. (See Doc. 203 at

11-12). Iwill adopt Magistrate Judge Arbuckle’s recommendation on this issue in full.

Since Fattah alleges that Somich failed to provide Fattah with adequate medical

care during his time at SCI-Rockview, I will use the Eighth Amendment standard that

is applicable to such claims. See Hudson v. McMillian, 503 U.S. 1, 8 (1992) (stating

that different standards apply depending on the type of Eighth Amendment violation

alleged). The Eighth Amendment requires that prison officials provide adequate

medical care to inmates, and make reasonable efforts to assure prisoner health and

safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state a claim under the

Eighth Amendment’s right to adequate medical care, an inmate must cite evidence that

shows: (1) a serious medical need and (2) acts or omissions by prison officials that

demonstrate deliberate indifference to that medical need. Rouse v. Plantier , 182 F.3d

192, 107 (3d Cir. 1999). A deliberate indifference to a serious medical need involves

causing “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97

(1976). This type of indifference could exist in a variety of different circumstances,

including where (1) there is knowledge of the need for medical care coupled with

intentional refusal to provide it, (2) delayed care for non-medical reasons, (3) or prison

authorities prevent an inmate from receiving the prescribed treatment. Durmer v.

O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993). While prison systems have a duty to

provide prisoners with adequate medical care, simple medical malpractice is

11

insufficient to present a constitutional violation. /d. Likewise, not every illness or

injury enjoys constitutional protection; only serious medical needs or injuries will give

rise to constitutional scrutiny. Gerber v. Sweeney, 292 F.Supp.2d 700, 706 (E.D. Pa.

2003). “Indeed, prison authorities are accorded considerable latitude in the diagnosis

and treatment of prisoners.” Durmer, 991 F.2d at 67.

Fattah states that Somich deliberately disregarded a risk to his health, because

Somich failed to: (1) serve his medication with milk as recommended by Dr. Symons,

(2) adhere to his strict medication schedule as recommended by Dr. Symons, and (3)

use sanitary syringes during his force feedings. (See Doc. 119, at 24 4119). Holding

these facts in the light most favorable to Fattah, Somich’s treatment, at most, rises to

the level of simple medical malpractice, let alone a constitutional violation.

Here, Somich worked at SCI-Rockview from September 2008 to July 2012 as

a registered nurse. (Doc. 196-5, pp 12:16-14:3, 12:7-9, 14:16-17). In this role, Somich

was tasked with providing medical care for inmates, ranging from chronic to

emergency care. (Doc. 196-5, pp 13:7-13). He did not have the authority to supervise

Fattah’s care or make decisions about his treatment plan. (Doc. 196-5, pp 18:7-10;

21:1-5). Somich’s interactions with Fattah, in relevant part, include force feeding

Fattah pursuant to court order,” telling Dr. Symons of Fattah’s concerns about his peg

tube cite, cleaning the skin around Fattah’s peg tube cite, and offering Fattah supplies

to change the dressing at the peg tube cite. (See Docs. 159-9, at 7, 27, 30, 31, 46, 61,

63, 67, 68, 69; 159-10, at 1, 12, 14, 24). Somich did not have any indication from

It is true that Fattah did point out the existence of a discrepancy (See Doc. 197, at 14) between

Somich’s deposition testimony, where he stated that Fattah ate by himself when he encountered

him (Doc. 196-5, p 23:16-25), as opposed to Fattah’s medical records, which indicate that

Somich was actually present during some of Fattah’s gastric tube feedings (See Docs. 159-9,

159-10). Lagree with Magistrate Judge Arbuckle’s finding that this discrepancy does not rise to

the level of a genuine dispute of material fact that would serve to defeat summary judgment in

favor of Somich.

12

Fattah or otherwise that Fattah was having difficulties with pain management,

infection, breathing, vomiting, overfeeding, or the cleanliness of his gastric tube. (See

Doc. 196-5, pp 25:23-25, 26:1-3, 27:9-20, 28:1-4). Furthermore, Somich had no notice

that the nurses, including himself, were not following Dr. Symons’s treatment protocol

for Fattah, specifically regarding Fattah’s feeding schedule or his insistence on taking

his Motrin with milk.4 (Doc. 196-5, pp 25:23-25, 28:6-9). Thus, summary judgment

in favor of Somich is appropriate with regard to Fattah’s claim that Somich failed to

provide him with adequate medical care in violation of the Eighth Amendment.

3. The Claim Against Granlund

With respect to Fattah’s remaining claim5 against Granlund that he violated his

rights under the Eighth Amendment by placing him in a suicide cell and smock,

Magistrate Judge Arbuckle recommends granting summary judgment in Granlund’s

favor, because Granlund was not personally involved in placing Fattah in a suicide cell

or suicide clothing. (Doc. 202, at 40). Fattah objects to this recommendation by

4

On one occasion, Fattah refused to take his medication without milk. (Doc. 159-9 at 63).

Somich offered to procure the milk that Fattah requested but mentioned that it may take

him awhile to do so. (Doc. 159-9 at 63). He also offered to provide Fattah with the Motrin

after he was fed. (Doc. 159-9 at 63).

5

Magistrate Judge Arbuckle declined to address Fattah’s claims against Granlund regarding (1)

the allegedly improper cell searches and seizure of Fattah’s mail and (2) the alleged excessive

force claims, relating to a cell door being shut in his face and the use of a restraint chair for

feeding. (Doc. 199 at 24 ¶ 122). The Report and Recommendation (Doc. 60), which was

adopted (Doc. 61), dismissed Fattah’s fourth cause of action, concerning the alleged illegal

searches and seizures, and his second cause of action, regarding the alleged excessive force

claims. (See Doc. 134 at 2, n.2). These claims, however, were improperly included in the Third

Amended Complaint. (See Doc. 119). Magistrate Judge Arbuckle further explained that Fattah

should not be permitted to reassert his illegal search and seizure and excessive force claims

under his third cause of action, which implicates violations of the Eighth Amendment. (See Doc.

202 at 17-18). I agree with Magistrate Judge Arbuckle’s determination that the only remaining

claims asserted against Granlund are related to his conditions of confinement regarding his

placement in a suicide cell and smock. (See Doc. 202 at 18).

13

arguing that Magistrate Judge Arbuckle misapplied the law applicable to this claim

and failed to explain the reasoning behind his recommendation. (Doc. 203, at 13-14).

I will adopt Magistrate Judge Arbuckle’s recommendation on this issue in full.

The Eighth Amendment protects against cruel and unusual punishment.“[P]rison

officials violate the Eighth Amendment's proscription of cruel and unusual punishment

when they exhibit deliberate indifference to serious medical needs of prisoners.”

Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005) (internal quotations

omitted). “A particular vulnerability to suicide represents a serious medical need.” Id.

at 320. Thus, temporary placement on suicide watch does not rise to level of cruel and

unusual punishment. See Starks v. Couch, No. 08–cv–407, 2009 WL 331357, at *2

(S.D.Ill. Feb.11, 2009) (“[T]here is no constitutional right to avoid being placed on

suicide watch.”). Moreover, several courts have found that placement on suicide watch

for a short duration, even when unnecessary, does not rise to the level of cruel and

unusual punishment. See, e.g., Sheldon v. Smith Cty. Jail Med. Clinic, No. CIVA

6:08CV68, 2010 WL 1658217, at *4 (E.D. Tex. Apr. 22, 2010), aff'd, 439 F. App'x

343 (5th Cir. 2011) (stating that placing an inmate on suicide watch was not

“unreasonable or unconstitutional” even though these precautions were unnecessary);

Marshall v. Burden, No. 5:09CV00128 BSM-JJV, 2010 WL 670079, at *4 (E.D. Ark.

Feb. 22, 2010) (stating id.).

In support of his claim against Granlund, Fattah broadly states:

This Court has already determined that the Plaintiff sufficiently pled his

claims against Granlund, irrespective of the Defendant’s displeasure with

that determination. The Defendant has not established that there is not

genuine issue of material fact regarding the claims against Granlund and

he certainly has not established that he is entitled to prevail on his motion

as a matter of law.

(Doc. 197, at 16). Granlund, however, was not personally in control of the decision to

place Fattah in a suicide cell and did not place the suicide smock on Fattah. Granlund

was a Unit Manager at SCI-Rockview during the time period relevant to this action.

(Doc. 196-4, p 10:17-20). For a short period of time, Granlund supervised the block

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where Fattah was housed. (Doc. 196-4, pp 18:12-14, 19:9-12). Regarding the

procedure for placement on suicide watch, Granlund explained that the Mental Health

Department was in charge of determining whether to place an inmate in a suicide cell,

the duration of his confinement in the suicide cell, and the conditions for his release.

(Doc. 196-4, p 29:8-11). The Corrections Healthcare Administrator reviewed Fattah’s

situation and approved his placement in the Restricted Housing Unit. (Doc. 159-9, at

5). In addition, Dr. Symons placed the suicide smock on Fattah, not Granlund. (Doc.

196-2, p 136:6-16). Fattah has not articulated any facts that dispute this evidence.

Moreover, even if it was unnecessary for Granlund to assist in placing Fattah on

suicide watch, this does not amount to a violation of Fattah’s Eighth Amendment right

to safe conditions of confinement. Thus, summary judgment in favor of Granlund is

appropriate with regard to Fattah’s claim that Granlund failed to provide him with

safe conditions of confinement in violation of the Eighth Amendment.

IV. Conclusion

For the above stated reasons, Magistrate Judge Arbuckle’s R&R will be

adopted, and the Motion for Summary Judgment filed by Defendants Rackovan,

Somich, and Granlund will be granted.

An appropriate order follows.

18/2019 isl ae Caputo

United States District Judge

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