Hickox v. Karabinos

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JUSTIN M. HICKOX,

Plaintiff, CIVIL ACTION NO. 3:20-CV-00980

v. (MEHALCHICK, M.J.)

LT. BERNIE KARABINOS, et al.,

Defendant.

MEMORANDUM OPINION

Before the Court is a Motion for Summary Judgment filed by Defendants Captain

Foster and Lt. Bernie Karabinos (“Defendants”) on December 10, 2020. (Doc. 20). This civil

rights action arises from Plaintiff Justin M. Hickox’s allegations of sexual harassment and

improper ensuing discipline. (Doc. 10). For the reasons set forth herein, the Court GRANTS

Defendants’ Motion. (Doc. 20).

I. BACKGROUND AND PROCEDURAL HISTORY

On February 28, 2020, Hickox initiated the instant action by filing the original

Complaint against eight employees of the State Correctional Institution at Benner Township

(SCI-Benner) and the Pennsylvania Department of Corrections in the Court of Common

Pleas of Centre County, Pennsylvania. (Doc. 1-1, at 5-7). Defendants removed the case to this

Court on June 17, 2020. (Doc. 1). On August 5, 2020, Defendants filed a Motion to Dismiss,

to which Hickox responded with a Motion to Amend. (Doc. 6; Doc. 7). Hickox filed his

Amended Complaint on August 27, 2020, naming only Captain Foster and Lieutenant Bernie

Karabinos as the Defendants. (Doc. 10). This Amended Complaint (“the Complaint”) stands

as the operative complaint in this matter. (Doc. 10).

As alleged in the Complaint, Hickox, while housed at SCI-Benner, submitted a written

complaint of sexual abuse under the Prison Rape Elimination Act. (Doc. 10, ¶ 1). After

investigating the complaint, Hickox was placed in the Restricted Housing Unit due to a charge

of Lying to an Employee. (Doc. 10, ¶¶ 27-30). The misconduct report that was issued to

Hickox stated that his complaint was “unfounded,” and he was sentenced to 30 days in the

Restricted Housing Unit. (Doc. 10, ¶¶ 31, 33). Hickox alleges that Defendants failed to adhere

to Department of Corrections (“DOC”) policy regarding disciplining mentally ill inmates.

(Doc. 10, ¶¶ 34-40). Furthermore, Hickox alleges that Defendant Karabinos manufactured

the status of the complaint as “unfounded” by telling Hickox’s accuser what to write in his

statement. (Doc. 10, ¶¶ 52-54). Hickox claims that his First and Eighth Amendment rights

were violated as a result of Defendants’ conduct. (Doc. 10, ¶ 56).

Following a period of discovery, Defendants now move for summary judgment. (Doc.

20). This motion has been fully briefed and is now ripe for disposition. (Doc. 22; Doc. 26;

Doc. 30).

II. MOTION FOR SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “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 fact is “material” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

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non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994).

A federal court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

In deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion,” and demonstrating the absence of a genuine dispute

of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must go beyond the pleadings with affidavits or declarations,

answers to interrogatories or the like in order to demonstrate specific material facts which give

rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must

produce evidence to show the existence of every element essential to its case which it bears

the burden of proving at trial, because “a complete failure of proof concerning an essential

element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex,

477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony,

whether made in the complaint or a sworn statement, cannot be used to obtain or avoid

summary judgment when uncorroborated and contradicted by other evidence of record. See

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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ.,

626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential).

III. STATEMENT OF FACTS

This factual background is taken from Defendants’ Statement of Facts and admissible

evidence in the record. (Doc. 23; Doc. 21; Doc. 28). Where a statement is disputed and not

supported by evidence in the record, the Court shall not take that fact as true. Hickox

responded with his statement of material facts pursuant to Local Rule 56.1 on January 4,

2021.1 (Doc. 27). The facts have been taken in the light most favorable to Hickox as the non-

moving party, with all reasonable inferences drawn in his favor.

Hickox is incarcerated by the Pennsylvania Department of Corrections (“DOC”).

(Doc. 23, ¶ 1; Doc. 27, ¶ 1). The events alleged in Hickox’s Complaint occurred at SCI-Benner

Township (“SCI-Benner”). (Doc. 23, ¶ 2; Doc. 27, ¶ 2). On August 22, 2019, Hickox made a

report of sexual abuse by another inmate and indicated he needed to file a Prison Rape

Elimination Act (“PREA”) complaint. (Doc. 23, ¶ 3; Doc. 27, ¶ 3). At the time, Defendants

believed Hickox was classified as having a C Code stability rating. (Doc. 23, ¶ 4; Doc. 27, ¶

4). Hickox’s allegation of sexual abuse was investigated by Lt. Karabinos. (Doc. 23, ¶ 5; Doc.

27, ¶ 5). On September 25, 2019, Lt. Karabinos determined the allegation of sexual abuse to

be unfounded. (Doc. 23, ¶ 6; Doc. 21-7, at 3-5).

Hickox is currently classified as a D stability score. (Doc. 23, ¶ 7; Doc. 21-2, at 7). On

November 27, 2019, the Bureau of Investigations and Intelligence determined the

1 Hickox includes responsive statements of material facts – all “admitted” – to only

five of Defendants 15 enumerated paragraphs. (Doc. 23; Doc. 27). Still, since Hickox is pro

se, the Court shall ensure that the record supports Defendants’ statements prior to taking them

as true.

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investigation of sexual abuse and sexual harassment to be satisfactory. (Doc. 23, ¶ 8; Doc. 21-

7, at 2). In accordance with DC-ADM 008, an investigation that results in determination of

false allegations requires the issuance of DC-141, Part 1. (Doc. 23, ¶ 9; Doc. 21-5, at 2). On

December 2, 2019, Hickox was issued a charge of misconduct for reporting false allegations.

(Doc. 23, ¶ 10; Doc. 21-5, at 2). On December 2, 2019, Hickox was cleared by the medical

department to undergo the formal misconduct hearing procedure. (Doc. 23, ¶ 11; Doc. 21-5,

at 3). On December 2, 2019, Hickox was placed in Administrative Custody pursuant to DC-

ADM 802, Section 1.B.1.b. (Doc. 23, ¶ 12; Doc. 21-4, at 2).

On December 5, 2019, Hickox was found guilty at a misconduct hearing, was given

thirty days of disciplinary custody, and lost his job. (Doc. 23, ¶ 13; Doc. 21-5, at 4). On

December 17, 2019, the Program Review Committee informed Hickox that there was nothing

that precludes D-Roster inmates from the sanctioning guidelines set forth in DC-ADM 801,

ultimately upholding the Hearing Examiner’s decision and sanctions. (Doc. 23, ¶ 14; Doc.

21-5, at 6). On January 7, 2020, Superintendent Marsh upheld the Hearing Examiner’s

decision. (Doc. 23, ¶ 15; Doc. 21-5, at 8).

IV. DISCUSSION

Hickox asserts a federal civil rights claim brought pursuant to 42 U.S.C. §

1983. Section 1983 provides a private cause of action with respect to violations of federal

constitutional rights. The statute provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for

redress....

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42 U.S.C. § 1983.

Section 1983 does not create substantive rights, but instead provides remedies for rights

established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To make a §

1983 claim, a plaintiff must establish that a defendant, acting under color of state law,

deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of

Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). Hickox brings claims under the First and Eighth

Amendments of the United States Constitution. (Doc. 10, at 8-11).2 These protections are

incorporated against state actors through the substantive due process clause of the Fourteenth

Amendment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947).

Defendants submit that they are entitled to summary judgment on three grounds. First,

they assert that they are shielded by qualified immunity because they were performing their

job duties as trained, and conduct similar to theirs has been upheld by the Third Circuit Court

of Appeals. (Doc. 22, at 3-8). Second, they submit that Hickox’s Eighth Amendment claim

must fail because his custodial conditions were not atypical of incarceration in general. (Doc.

22, at 8-10). Third, they state that Hickox’s retaliation claim is duplicative of his retaliation

claim and so they should be combined, and that this claim must fail because Defendants had

a legitimate non-retaliatory reason for their actions. (Doc. 22, at 10-13).

2 Hickox challenges the process by which he was disciplined in his Brief in Opposition

to Defendants’ Motion for Summary Judgment. (Doc. 26, at 5-6). However, no procedural

due process claim appears in his Amended Complaint, so the Court will not consider the

adequacy of the disciplinary process at this juncture. (Doc. 26, at 5-6); see McMahon v. Salmond,

573 F. App’x 128, 135 (3d Cir. 2014) (affirming a district court’s decision not to consider the

plaintiff’s retaliation claim in a case where the district court concluded that the plaintiff had

not pleaded such a claim in the operative complaint).

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A. DEFENDANTS ESTABLISH THAT HICKOX’S EIGHTH AMENDMENT

RIGHTS WERE NOT VIOLATED.

Defendants submit that they are entitled to summary judgment on Hickox’s Eighth

Amendment claim because Hickox fails to satisfy the objective and subjective prongs of a

conditions of confinement claim. (Doc. 22, at 8-9). Hickox does not show that he was

confined in a way which was atypical of prison conditions or which deprived him of basic

human needs, according to Defendants. (Doc. 22, at 9-10). Furthermore, Defendants assert

that Hickox provides no evidence that they acted with a sufficiently culpable state of mind.

(Doc. 22, at 10).

Hickox avers that he suffered hardship which was atypical of ordinary prison life.

(Doc. 26, at 6). As a mentally ill inmate, Hickox asserts that he should have been subjected

to the disciplinary process outlined in DC-ADM-801. (Doc. 26, at 6). Defendants entered a

settlement agreement which requires them to follow this policy and they conducted cruel and

unusual punishment by not following the policy, according to Hickox. (Doc. 26, at 6-7).

To establish an Eighth Amendment conditions of confinement claim, a plaintiff must

show that he was deprived of “the minimal civilized measure of life's necessities.” Young v.

Quinlan, 960 F.2d 351, 359 (3d Cir. 1992). “The Eighth Amendment prohibition against cruel

and unusual punishment demands that prison officials do not house inmates under conditions

that deprive them of one or more basic human needs, such as the basic human need for

reasonable safety, adequate physical space, and the need for some degree of ventilation and

fresh air.” Caldwell v. Luzerne County Corrections Facility Management Employees, 732 F. Supp.

2d 458, 470 (M.D. Pa. 2010) (citing Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125

L.Ed.2d 22 (1993)). However, the Eighth Amendment does not mandate that prisons be free

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of discomfort. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811

(1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).

“No static test determines whether conditions of confinement are ‘cruel and unusual.’ These

terms must ‘draw [their] meaning from the evolving standards of decency that mark the

progress of a maturing society.’” Tillery v. Owens, 719 F.Supp. 1256, 1261 (W.D. Pa.

1989) (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)).

The plaintiff must prove that (1) the deprivation was sufficiently serious; and (2) the

prison official acted with deliberate indifference in subjecting him to that deprivation. Griffin

v. Vaughn, 112 F.3d 703, 709 (3d. Cir. 1997). Deliberate indifference is subjective and requires

that defendants know of and disregard an excessive risk to health and safety. Johnson v. Wetzel,

209 F. Supp. 3d 766, 778-79 (M.D. Pa. 2016). To infer such knowledge, “the official must

both be aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.” Beers-Capitol v. Whetzel, 256 F.3d

120, 131 (3d Cir. 2001) (quoting Farmer, 511 U.S. at 837).

First, the record establishes that Hickox was never confined in the RHU during the

time period at issue. (Doc. 21-6, at 3). Hickox’s cell history shows that he was transferred

from the general population to a Psychiatric Observation Cell (“POC”) on December 2, 2019.

(Doc. 21-6, at 3). After four days, Hickox was transferred to the Diversity Treatment Unit

(“DTU”), where he stayed until January 28, 2020. (Doc. 21-6, at 3). Hickox also testified to

being placed in the DTU as a result of his misconduct. (Doc. 21-1, at 26-27).

When presented with a mentally ill inmate’s claim that his mental health issues were

exacerbated by his being confined in the RHU, the United States District Court for the

Western District held that, without more, the RHU’s “harsh conditions of confinement” do

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not violate the Eighth Amendment. Norris v. Davis, 2011 WL 5553633, at *4, 6 (W.D. Pa.

Nov. 15, 2011). The court explained that it is well-established that reasonable discipline in

state prisons cannot be supervised by the Federal courts. Norris, 2011 WL 5553633, at *4. “It

is only when confinement becomes so foul, so inhuman, and so violative of the basic concepts

of decency that a federal court should interfere with prison official who purportedly have the

experience and expertise in matters of prison discipline.” Norris, 2011 WL 5553633, at *4.

The plaintiff, who as a mentally ill individual was regularly treated by a psychiatrist while

confined in the RHU, did not state a claim for a violation of his rights as protected by the

Eighth Amendment. Norris, 2011 WL 5553633, at *2, 7.

Here, the record establishes that Hickox was not subjected to RHU, but rather was

held in DTU. (Doc. 21-1, at 26-27; Doc. 21-6, at 3). Hickox testifies that when he was in the

DTU he had access to the medical and mental health departments, he could leave his cell

multiple times per day for group activities and to shower, and he could go to the yard in the

afternoon. (Doc. 21-1, at 27-28). Hickox states that “because of your mentally ill status the

Department of Justice had required them to set this up like this.” (Doc. 21-1, at 27-28).

Because “the federal and state Pennsylvania courts unanimously have found that the harsh

conditions of confinement in the various restrictive housing units in the Pennsylvania state

institutions … without more, does not violate the Eighth Amendment,” Hickox fails to

present evidence sufficient to raise a genuine issue of material fact as to his Eighth

Amendment claim. See Norris, 2011 WL 5553633, at *6 (collecting cases). The plaintiff in

Norris was also mentally ill and was confined to more restrictive housing than that experienced

by Hickox. Norris, 2011 WL 5553633, at *2. The confinement in Norris did not violate the

plaintiff’s Eighth Amendment rights. Norris, 2011 WL 5553633, at *2. Since the record fails

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to show that Hickox was exposed to conditions more harmful than mere placement in

restrictive housing, Defendants are entitled to summary judgment on Hickox’s Eighth

Amendment claim. See Norris, 2011 WL 5553633, at *2-7.

B. DEFENDANTS ESTABLISH THAT HICKOX’S FIRST AMENDMENT RIGHTS

WERE NOT VIOLATED.3

Defendants assert that they are entitled to summary judgment on Hickox’s First

Amendment claim because Hickox’s complaint of sexual abuse and harassment was frivolous

so that act was not a protected activity. (Doc. 22, at 12). Furthermore, Hickox’s First

Amendment claim must fail because there is no evidence that he suffered any physical harm

that was atypical of prison conditions, according to Defendants. (Doc. 22, at 13). Finally,

Defendants submit that their conduct was not in retaliation for Hickox making a valid claim

– so a protected activity – but rather for him making a false claim to staff. (Doc. 22, at 13).

Hickox states that he denies making a false complaint of sexual abuse and retaliation. (Doc.

26, at 7).

In order to establish a prima facie case of First Amendment retaliation, a plaintiff must

show: “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person

of ordinary firmness from exercising his constitutional rights, and (3) a causal link between

the constitutionally protected conduct and the retaliatory action.” Thomas v. Independence

Twp., 463 F.3d 285, 296 (3d Cir. 2006); see also Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.

2001); Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). “Government actions,

which standing alone do not violate the Constitution, may nonetheless be constitutional torts

3 All parties agree that Hickox’s First Amendment and retaliation claims should be

combined. (Doc. 22, at 11; Doc. 26, at 7).

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if motivated in substantial part by a desire to punish an individual for exercise of a

constitutional right.” Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000). When a

retaliation claim arises from a charge of misconduct, “most prisoners’ retaliation claims will

fail if the misconduct charges are supported by the evidence.” Watson v. Rozum, 834 F.3d 417,

425 (3d Cir. 2016).

It is undisputed that Hickox’s allegation of sexual abuse was investigated by Lt.

Karabinos, who determined that the allegation was unfounded. (Doc. 23, ¶ 5, 6; Doc. 27, ¶ 5;

Doc. 21-7, at 3-5). Karabinos interviewed witnesses and staff, including the staff member who

was in sole possession of the key to the closet where the alleged abuse occurred. (Doc. 21-7,

at 4). Karabinos learned from that witness that the closet was locked at the time of the alleged

abuse. (Doc. 21-7, at 4). Evidence shows that Karabinos also reviewed video and

correspondence. (Doc. 21-7, at 5). Karabinos concluded that Hickox’s sexual abuse allegation

was unfounded “due to a staff confirming that no one entered the utility closet and the DIVAR

Video confirming that staff member was in that area at time of the alleged abuse.” (Doc. 21-

7, at 5). This constitutes a sufficient quantum of evidence to demonstrate that the discipline

imposed on Hickox was reasonably related to a legitimate penological interest. See Watson,

834 F.3d at 426. Hickox identifies no evidence in support of his allegation that the

investigation’s results were faulty, so fails to raise a genuine issue of material fact that he

engaged in constitutionally protected conduct. (Doc. 26). As such, Defendants are entitled to

summary judgment on Hickox’s First Amendment retaliation claim.

V. CONCLUSION

For the reasons set forth in this Memorandum Opinion, Defendants’ Motion for

Summary Judgment is GRANTED. (Doc. 20). The Clerk of Court shall be directed to close

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this case. Therefore, Plaintiff’s Motion for a Protective Order is DENIED AS MOOT. (Doc.

15).

An appropriate Order shall follow.

Dated: April 7, 2021 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

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