Barclay v. Stabley

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ERIK BARCLAY, No. 4:19-CV-02054

Plaintiff, (Chief Judge Brann)

v.

STABLEY, et al.,

Defendants.

MEMORANDUM OPINION

JANUARY 12, 2022

Pro se Plaintiff Erik Barclay (“Plaintiff”), who is presently incarcerated in

the State Correctional Institution-Greene (“SCI-Greene”) and was incarcerated in

the State Correctional Institution-Rockview (“SCI-Rockview”) at all relevant

times, brought this case asserting that his civil rights were violated when

Defendant prison officials used excessive force against him during and after a

search of his cell. Defendants have moved for summary judgment. I will grant the

motion in part and deny it in part.

I. BACKGROUND

Plaintiff initiated this case through the filing of a civil rights complaint under

42 U.S.C. § 1983 on October 18, 2019 in the Centre County Court of Common

Pleas.1 Defendants removed the case to this District on December 2, 2019.2

1 Doc. 1-2.

Following removal, Plaintiff moved for leave to amend his complaint on March 13,

2020.3 I granted the motion on March 27, 2020,4 and Plaintiff’s amended

complaint was docketed on the same day.5

In the amended complaint, Plaintiff alleges generally that Defendants

Stabley and McCurdy assaulted him during a search of his cell on May 15, 2017,

that Defendants McHenry, Lee, and Kauert joined in the assault shortly after it

began, that Defendant Campbell failed to intervene in the assault, and that

Defendants McHenry, Phillips, and Ortiz used excessive force when they

transported Plaintiff to the prison’s medical unit after the alleged assault.6

Defendants moved for dismissal of the complaint or summary judgment on the

grounds that Plaintiff had failed to exhaust administrative remedies on April 2,

2020.7 I denied the motion on February 9, 2021.8 Defendants then answered the

amended complaint on March 2, 2021.9

Following the close of discovery, Defendants filed the instant motion for

summary judgment on August 4, 2021.10 Defendants filed a brief in support of the

motion and a statement of material facts as required by Local Rule 56.1 on the

3 Doc. 10.

4 Doc. 12.

5 Doc. 13.

6 Id.

7 Doc. 14.

8 Docs. 25-26.

9 Doc. 27.

10 Doc. 37.

same day.11 Plaintiff filed a brief in opposition to the motion on April 8, 2021

along with a response to Defendants’ statement of material facts.12 Although

Plaintiff’s statement was titled “Statement of Material and Disputed Factual

Issues,” in substance it responded directly to Defendants’ statement of material

facts, including numbered paragraphs that corresponded to Defendants’ numbered

paragraphs as required by Local Rule 56.1.13 Defendants filed a reply brief in

support of the motion for summary judgment on November 1, 2021.14 In the reply

brief, Defendants argue, inter alia, that I should disregard Plaintiff’s statement of

material facts because of its purported noncompliance with Rule 56.1.15 Plaintiff

moved for leave to file a sur reply on November 17, 2021.16 I granted the motion

on November 19, 2021,17 and Plaintiff filed a sur reply in opposition to the motion

for summary judgment on December 13, 2021.18 Plaintiff has additionally filed a

motion for leave to amend the title of his statement of material facts, asserting that

Defendants have taken issue only with the title of his statement and that changing

the title would resolve the issue of whether his statement should be considered by

the Court.19

11 Docs. 38-39.

12 Doc. 45.

13 See id.

14 Doc. 48.

15 Id. at 1-2.

16 Doc. 49.

17 Doc. 50.

18 Doc. 51.

19 Doc. 52.

II. STANDARD OF REVIEW

Summary judgment is appropriate where “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.”20 “Facts that could alter the outcome are ‘material facts,’ and

disputes are ‘genuine’ if evidence exists from which a rational person could

conclude that the position of the person with the burden of proof on the disputed

issue is correct.”21 “A defendant meets this standard when there is an absence of

evidence that rationally supports the plaintiff’s case.”22 “A plaintiff, on the other

hand, must point to admissible evidence that would be sufficient to show all

elements of a prima facie case under applicable substantive law.”23

“The inquiry involved in a ruling on a motion for summary judgment or for

a directed verdict necessarily implicates the substantive evidentiary standard of

proof that would apply at the trial on the merits.”24 Thus, “if the defendant in a

run-of-the-mill civil case moves for summary judgment or for a directed verdict

based on a lack of proof of a material fact, the judge must ask himself not whether

he thinks the evidence unmistakably favors one side or the other but whether a fair-

20 Fed. R. Civ. P. 56(a).

21 Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (first citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); and then citing Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)).

22 Clark, 9 F.3d at 326.

23 Id.

24 Anderson, 477 U.S. at 252.

minded jury could return a verdict for the plaintiff on the evidence presented.”25

“The mere existence of a scintilla of evidence in support of the plaintiff’s position

will be insufficient; there must be evidence on which the jury could reasonably

find for the plaintiff.”26 “The judge’s inquiry, therefore unavoidably asks . . .

‘whether there is [evidence] upon which a jury can properly proceed to find a

verdict for the party producing it, upon whom the onus of proof is imposed.”27 The

evidentiary record at trial, by rule, will typically never surpass that which was

compiled during the course of discovery.

“A party seeking summary judgment always bears the initial responsibility

of informing the district court of the basis for its motion, and identifying those

portions of the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.”28 “Regardless of whether the moving

party accompanies its summary judgment motion with affidavits, the motion may,

and should, be granted so long as whatever is before the district court demonstrates

that the standard for the entry of summary judgment, as set forth in Rule 56(c), is

satisfied.”29

25 Id.

26 Id.

27 Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).

28 Celotex, 477 U.S. at 323 (internal quotations omitted).

29 Id.

Where the movant properly supports his motion, the nonmoving party, to

avoid summary judgment, must answer by setting forth “genuine factual issues that

properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.”30 For movants and nonmovants alike, the

assertion “that a fact cannot be or is genuinely disputed” must be supported by: (i)

“citing to particular parts of materials in the record” that go beyond “mere

allegations”; (ii) “showing that the materials cited do not establish the absence or

presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot

produce admissible evidence to support the fact.”31

“When opposing summary judgment, the non-movant may not rest upon

mere allegations, but rather must ‘identify those facts of record which would

contradict the facts identified by the movant.”32 Moreover, “if a party fails to

properly support an assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . . consider the fact

undisputed for purposes of the motion.”33 On a motion for summary judgment,

“the court need consider only the cited materials, but it may consider other

materials in the record.”34

30 Anderson, 477 U.S. at 250.

31 Fed. R. Civ. P. 56(c)(1).

32 Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).

33 Fed. R. Civ. P. 56(e)(2).

34 Fed. R. Civ. P. 56(c)(3).

Finally, “at the summary judgment stage the judge’s function is not himself

to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.”35 “There is no issue for trial unless there

is sufficient evidence favoring the nonmoving party for a jury to return a verdict

for that party.”36 “If the evidence is merely colorable . . . or is not significantly

probative, summary judgment may be granted.”37

III. MATERIAL FACTS

Local Rule 56.1 requires a party moving for summary judgment to submit “a

separate, short and concise statement of the material facts, in numbered

paragraphs, as to which the moving party contends there is no genuine issue to be

tried.”38 The non-movant must file a statement in response to the movant’s

statement that responds to the numbered paragraphs in the movant’s statement and

sets forth which paragraphs present a genuine issue of material fact.39 Any facts

that are set forth in the movant’s statement that are not contradicted by the non-

movant’s statement are “deemed to be admitted.”40

In this case, Defendants filed a statement of material facts as required by

Local Rule 56.1, and Plaintiff filed a document titled “Statement of Material and

35 Anderson, 477 U.S. at 249.

36 Id.

37 Id. at 249-50 (internal citations omitted).

38 M.D. Pa. L.R. 56.1.

39 Id.

40 Id.

Disputed Factual Issues” that is, in substance, a response to Defendants’ statement

of material facts.41

Defendants argue that Plaintiff’s statement of material facts should be

disregarded for its purported noncompliance with Local Rule 56.1.42 A review of

Plaintiff’s statement, however, shows that it responds to Defendants’ statement of

material facts in the exact manner contemplated by Local Rule 56.1. I will,

therefore, reject Defendants’ argument that Plaintiff’s statement should be

disregarded. Additionally, I will deny Plaintiff’s motion to amend the title of his

statement as moot. The statement will be treated as a response to Defendants’

statement in accordance with Local Rule 56.1, and there is accordingly no need to

amend the title of the statement. With that in mind, I turn my attention to the

material facts. I will cite directly to the parties’ statements of material fact to the

extent that factual assertions in the statements are undisputed or supported by

uncontroverted record evidence.

At all times relevant to this case, Plaintiff was incarcerated in SCI-

Rockview.43 On May 17, 2017, Defendants Stabley and McCurdy came into

Plaintiff’s cell to search him and the cell.44 The Defendants ordered Plaintiff to

hand his clothing to them, and while he was doing this a piece of white tissue came

41 See Docs. 39, 45.

42 Doc. 48 at 1-2.

43 Doc. 39 ¶ 1; Doc. 45 ¶ 1.

44 Doc. 39 ¶ 2; Doc. 45 ¶ 2.

into view.45 Video evidence shows the tissue subsequently being thrown or kicked

out of the cell and landing on the floor of the hallway outside of the cell.46 The

parties dispute how the tissue came to be outside of the cell. Defendants assert that

Plaintiff kicked the tissue out of the cell in an effort to hide it from the officers,

while Plaintiff disputes this account.47 Although the video evidence does not show

the inside of Plaintiff’s cell, it confirms that the tissue was inside the cell and was

propelled outside of the cell during the search.48

At some point during the search, Defendant Stabley used force to take

Plaintiff down to the ground.49 The parties provide differing accounts of what

occurred prior to the use of force. According to Defendants, Stabley attempted to

take Plaintiff into custody after he had kicked the tissue out of the cell, Plaintiff

resisted, and Stabley used force in response to Plaintiff’s resistance.50 Plaintiff

asserts that he did not resist arrest and that the use of force arose from a dispute

45 Doc. 39 ¶ 3; Doc. 45 ¶ 3. The parties dispute what exactly happened to the tissue. Defendants

assert that Plaintiff attempted to hide the tissue while he was handing his socks to Stabley and

McCurdy. Doc. 39 ¶ 3. Plaintiff disputes this contention. Doc. 45 ¶ 3.

46 See Doc. 39-4 – Hallway Footage at 2017-05-17, 06:54:43. Copies of the relevant video

footage were submitted to the Court by Defendants’ counsel with Doc. 39-4 listed as a

placeholder for the physical production. There are two videos—one showing security footage

of the hallway outside Plaintiff’s cell, the other showing handheld video of officers

transporting Plaintiff to the medical department. I will cite the videos respectively as Hallway

Footage and Handheld Footage, and I will use date and time stamps where appropriate, which

will be cited in the manner in which they appear in the videos.

47 See Doc. 39 ¶¶ 3-4; Doc. 45 ¶¶ 3-4.

48 See Hallway Footage at 2017-05-17, 06:54:43

49 See Doc. 39 ¶ 5; Doc. 45 ¶ 5.

50 See Doc. 39 ¶ 5.

between Plaintiff and Stabley over who should pick up Plaintiff’s sock.51

According to Plaintiff, he dropped his sock during the search, at which point

Stabley grabbed him by the neck and screamed “pick it up, pick it the fuck up!”52

Stabley then purportedly “body slam[med]” Plaintiff to the floor and applied

handcuffs.53 Plaintiff suffered an injury to his right elbow as a result of Stabley’s

actions.54 Medical records following the incident characterized the injury as a

“superficial abrasion” and indicated that no other injuries were noted or reported.55

After Stabley’s initial use of force, Defendants McCurdy, McHenry, Lee,

and Kauert entered the cell.56 Plaintiff alleges that the Defendants used additional

force on Plaintiff after Stabley first took him to the ground.57 According to the

allegations in Plaintiff’s amended complaint, McCurdy punched and kicked

Plaintiff in the back, neck, elbows, and legs after he was already on the ground,

McHenry, Lee, and Kauert placed their feet on Plaintiff’s neck and punched and

kicked Plaintiff, and McHenry “delivered two super hard kicks” to Plaintiff’s right

elbow.58 After the officers secured and handcuffed Plaintiff, they searched the

51 Doc. 45 ¶ 5; Doc. 44-1 ¶ 12.

52 Doc. 44-1 ¶ 12.

53 Id.

54 Doc. 39 ¶ 6; Doc. 45 ¶ 6.

55 Doc. 39-2 at 5.

56 Doc. 39 ¶ 7; Doc. 45 ¶ 7.

57 See Doc. 13 ¶¶ 20-21. Defendants’ statement of material facts does not address whether

additional force was applied after the initial use of force by Stabley, except to note that Plaintiff

“speculated” that McHenry, Lee, and Kauert assaulted him. See Doc. 39 ¶ 7.

58 Doc. 13 ¶¶ 20-21.

tissue that was outside of the cell and found two pieces of sharpened aluminum.59

The parties dispute whether Defendant Campbell was present during the use of

force.60

Following the initial use of force, Defendants took Plaintiff into custody and

Defendants McHenry, Phillips, and Ortiz escorted him to the medical department.61

Lieutenant Wilt also assisted in escorting Plaintiff, but he is not named as a

defendant.62 Plaintiff alleges that while they were escorting him, McHenry,

Phillips, and Ortiz “were forcibly twisting his arms and shoulder’s rotary cuff [sic]

upward to purposefully cause injury and inflict pain.”63 Footage of the officers

escorting Plaintiff is captured on video by a handheld camera that Ortiz operated.64

IV. ANALYSIS

Plaintiff’s constitutional claims are brought under 42 U.S.C. § 1983, which

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. . . .

59 Doc. 39-1 at 14, 18.

60 Doc. 39 ¶ 10; Doc. 45 ¶ 10.

61 See Doc. 39-1 at 16.

62 See id.; Doc. 13.

63 Doc. 13 ¶ 24.

64 Doc. 39 ¶¶ 11-12; Doc. 45 ¶¶ 11-12; see also Handheld Footage.

42 U.S.C. § 1983.

“To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must demonstrate

a violation of a right secured by the Constitution and the laws of the United States

[and] that the alleged deprivation was committed by a person acting under color of

state law.”65 “The first step in evaluating a section 1983 claim is to ‘identify the

exact contours of the underlying right said to have been violated’ and to determine

‘whether the plaintiff has alleged a deprivation of a constitutional right at all.’”66

Plaintiff’s claims in this case sound in excessive force in violation of the

Eighth Amendment. The Eighth Amendment “protects convicted prisoners from

any force applied ‘maliciously and sadistically for the very purpose of causing

harm.’”67 Thus, the question a court must answer in considering an excessive force

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

discipline, or maliciously and sadistically to cause harm.”68 Courts must consider

several factors in conducting this analysis, including:

(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

65 Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993).

66 Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting County of Sacramento v. Lewis,

523 U.S. 833, 841 n.5 (1998)).

67 Jacobs v. Cumberland Cty., 8 F.4th 187, 193 (3d Cir. 2021) (quoting Whitley v. Albers, 475

U.S. 312, 320-21 (1986)).

68 Hudson v. McMillian, 503 U.S. 1, 7 (1992).

of facts known to them; and (5) any efforts made to temper the severity

of the forceful response.69

Excessive force “may constitute cruel and unusual punishment even when the

inmate does not suffer serious injury.”70 Injury and force “are only imperfectly

correlated, and it is the latter that ultimately counts. An inmate who is gratuitously

beaten by guards does not lose his ability to pursue an excessive force claim

merely because he has the good fortune to escape without serious injury.”71

Defendants in this case raise four arguments for summary judgment as to

Plaintiff’s Eighth Amendment excessive force claims. First, they argue that

Defendants Stabley, McHenry, McCurdy, Lee, and Kauert are entitled to summary

judgment because the force used was reasonable in proportion to the threat posed

by Plaintiff.72 Second, they argue that Plaintiff has not established the personal

involvement of Defendants McHenry, Lee, and Kauert in the alleged assault.73

Third, they argue that Defendant Campbell is entitled to summary judgment

because the claim against him is based on his alleged failure to intervene, but he

did not have a reasonable opportunity to intervene in the alleged assault.74 Finally,

Defendants argue that McHenry, Phillips, and Ortiz are entitled to summary

69 Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir. 2002) (quoting Brooks v. Kyler, 204 F.3d 102,

106 (3d Cir. 2000)).

70 Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (internal alterations omitted) (quoting Hudson, 503

U.S. at 7).

71 Id. at 38.

72 Doc. 38 at 3-5.

73 Id. at 5-6.

74 Id. at 6-8.

judgment for the claims arising from the transporting of Plaintiff to the medical

department because the force they used was reasonable and because they are

entitled to qualified immunity. I will analyze these arguments seriatim.

A. The Initial Use of Force

I will first address Defendants’ summary judgment argument arising from

the initial use of force in Plaintiff’s cell. Defendants argue that they are entitled to

summary judgment because the use of force was reasonable in proportion to the

threat posed by Plaintiff.

Having reviewed the parties’ arguments and the facts of record, I will deny

summary judgment with respect to the use of force inside Plaintiff’s cell because

there are several genuine issues of material fact as to whether the use of force was

reasonable. Most notably, the amount of force that Defendants used is still in

dispute. It is undisputed that Defendant Stabley took Plaintiff down to the ground,

but it is not clear from the record before the Court what additional force, if any,

was used after this happened. Plaintiff alleges in his amended complaint that

Defendants punched and kicked him several times after he was on the ground,75

and Defendants’ statement of material facts does not address whether these

punches and kicks actually happened except to say that Plaintiff “speculated” that

they did.76

75 See Doc. 13 ¶¶ 20-21.

76 See Doc. 39 ¶ 7.

There is also a question of fact as to whether the use of force was justified,

and, if so, how much force was justified. Although it is undisputed that two

sharpened pieces of aluminum were found in the tissue outside of Plaintiff’s cell

after the use of force, the record indicates that Defendants did not know the

aluminum pieces were there when they began the use of force.77 Whether the use

of force in a particular instance is reasonable must be based on what the officers

knew and perceived at the time of the incident and not what was discovered after

the fact.78 Here, it appears that the officers knew only that Plaintiff was in

possession of a white tissue; they did not know at the time that the tissue contained

sharpened pieces of aluminum. Moreover, it is undisputed that the tissue was

outside of the cell and not within Plaintiff’s reach at the time Defendants began the

use of force. Whether these facts presented such a clear risk to Defendants to

justify the use of force is a question of fact that cannot be determined at the

summary judgment stage.

Finally, there is a question of fact as to whether Plaintiff was resisting the

Defendants before and during the use of force. The parties provide differing

accounts as to whether Plaintiff was resisting when Defendant Stabley first took

him to the ground.79 Defendants’ statement of material facts is also silent as to

77 See Doc. 39-1 at 14, 18.

78 Kingsley v. Hendrick, 576 U.S. 389, 397 (2015); Graham v. Connor, 490 U.S. 386, 396 (1989).

79 See Doc. 39 ¶ 5; Doc. 45 ¶ 5; Doc. 44-1 ¶ 12.

whether Defendants used additional force after Plaintiff was on the ground and, by

extension, whether Plaintiff was resisting during that time.

B. Personal Involvement

I will next consider the argument that Plaintiff has not established the

personal involvement of Defendants McHenry, Lee, and Kauert. A defendant

cannot be liable for a violation of a plaintiff’s civil rights unless the defendant was

personally involved in the violation.80 In a case of alleged excessive force, a

defendant cannot be held liable merely because he was in the “immediate vicinity

of where excessive force occurred.”81 Rather, a plaintiff must establish that the

defendant participated in the alleged excessive force through his own actions.82

Defendants argue that Plaintiff cannot establish the personal involvement of

McHenry, Lee, and Kauert because, by Plaintiff’s own admission, he could not see

which officers were striking him during the alleged assault.83 Defendants argue

that this case is analogous to Jutrowski v. Township of Riverdale,84 where the Third

Circuit held that four police officer defendants were entitled to summary judgment

80 Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018).

81 Id. at 289.

82 Id.

83 See Doc. 38 at 5-6; see also Plaintiff’s Deposition at 16, Doc. 39-3 at 18 (acknowledging that

he could not see which defendants were kicking him and stating “I only pieced it together after

I was escorted out of the cell judging by who had my left arm and who had my right arm”).

84 904 F.3d at 280.

in an excessive force case based on plaintiff’s failure to establish their personal

involvement in the alleged excessive force.85

The facts of Jutrowski arose from a one-car accident that occurred when the

plaintiff was driving under the influence of alcohol and crashed his vehicle along

the shoulder of a highway.86 Five police officers responded to the scene, including

the four who were subsequently named as defendants.87 While the officers were

there, the plaintiff exited his vehicle and stood in close proximity to passing

traffic.88 One of the officers, observing that the plaintiff was unsteady on his feet

and becoming concerned for the plaintiff’s safety, reached out for the plaintiff’s

right wrist to steady him.89 The plaintiff reacted by pulling his hand away, which

led him to strike the officer in the forehead.90 The officer then performed a “front

leg sweep” and took plaintiff down to the ground.91 The officers attempted to

handcuff the plaintiff while he was lying on the ground, and while he was in this

position “one of the officers kicked Jutrowski hard on the right side of his face,

hard enough to inflict a ‘blow out fracture,’ that is, a broken nose and broken eye

socket, requiring surgery.”92 The plaintiff brought suit against the four officers

85 Id. at 289.

86 Id. at 285.

87 Id.

88 Id. at 286.

89 Id.

90 Id.

91 Id.

92 Id.

who were in the immediate vicinity when the kick occurred, though he was unsure

which of the defendants had committed the act.93 Discovery in the case did not

reveal which of the defendants had kicked plaintiff, and none of the defendants

admitted to doing so.94 The district court granted summary judgment to the

defendants, concluding that the plaintiff had not established the personal

involvement of the defendants because the facts indicated that only one of the

officers had kicked him and he had not produced any evidence that could

conclusively determine which of the officers had performed the act.95 The Third

Circuit affirmed, stating that it was “simply not the law” that a plaintiff could “haul

before a jury all officers who were ‘in the immediate vicinity of where excessive

force occurred’ without any proof of their personal involvement.”96 Absent

evidence as to which individual defendant kicked the plaintiff, the court held,

summary judgment was appropriate.97

In conducting its analysis, the Third Circuit contrasted the facts of the case

with an earlier Third Circuit case, Smith v. Mensinger,98 where a prisoner plaintiff

brought suit against five correctional officer defendants who had allegedly

93 Id. at 286-87.

94 Id. at 287.

95 Id. at 288.

96 Id. at 289.

97 Id. at 291-92.

98 293 F.3d at 641.

assaulted the plaintiff.99 The defendants in Smith sought summary judgment on the

grounds that the plaintiff had failed to establish their personal involvement, but the

Third Circuit rejected this argument, holding that the plaintiff had sufficiently

shown their personal involvement through allegations and testimony that all of the

officers had participated in the assault.100 Thus, where the factual dispute is about

“the extent of each officer’s participation,” as in Smith, summary judgment based

on a lack of personal involvement is not appropriate, but where the dispute is about

“the possibility of each officer’s participation,” as in Jutrowski, summary judgment

is appropriate.101

Defendants argue that the present case is analogous to Jutrowski and that

Plaintiff is attempting to hold them liable merely because they were in the

immediate vicinity where excessive force allegedly occurred.102

I disagree. The facts of this case are legally indistinguishable from Smith,

where the Third Circuit held that summary judgment based on lack of personal

involvement was not warranted. Like the plaintiff in Smith, Plaintiff alleges that he

was assaulted by several corrections officers at once, all of whom allegedly

participated in the assault.103 Also like the plaintiff in Smith, Plaintiff

99 Jutrowski, 904 F.3d at 290-91 (citing Smith, 293 F.3d at 650).

100 Smith, 293 F.3d at 650.

101 Jutrowski, 904 F.3d at 291 (cleaned up) (citing Smith, 293 F.3d at 650).

102 Doc. 38 at 5-6.

103 See Doc. 13 ¶ 21 (“[D]efendants McHenry, Lee, [and] Kauert entered the cell, and placed their

feet on Barclay’s neck and ankle applying all of the pressure of their body weight on this body

acknowledges that he could not see what each officer was doing during the alleged

assault,104 but “the fact that [Plaintiff] has acknowledged that he could not see

those defendants during the beating neither negates their involvement nor their

liability as a matter of law.”105 Plaintiff has alleged and testified that all of the

Defendants who were allegedly present in the cell—Stabley, McHenry, McCurdy,

Lee, and Kauert—participated in the assault, which is sufficient to create a genuine

issue of material fact and defeat Defendants’ summary judgment argument.106

C. Failure to Intervene

Defendants next argue that Defendant Campbell is entitled to summary

judgment because the claims against him are predicated on an alleged failure to

intervene that is not properly pleaded in the amended complaint and because he

lacked a meaningful opportunity to intervene even if he had been present.107

Defendants’ argument that Plaintiff fails to plead Campbell’s failure to

intervene is plainly belied by Plaintiff’s amended complaint. The amended

complaint alleges that:

Defendant Campbell is liable for his personal involvement of engaging

in violating Barclay’s civil rights of being free from the cruel and

unusual punishment of excessive force under the Eighth Amendment

of the U.S. Constitution when he watche[d] defendant[s] enter[] the cell

parts and began punching and kicking Barclay. Defendant McHenry delivered two super hard

kicks to Barclay’s right elbow.”)

104 Doc. 39-3 at 18.

105 Smith, 293 F.3d at 650.

106 See id.; Jutrowski, 904 F.3d at 290-91.

107 Doc. 38 at 6-8.

and began punching and kicking Barclay in the back, neck, elbows, and

legs areas [sic] while he was completely restrained. Allowing them to

violate Barclay.108

Defendants’ argument that Campbell did not have a realistic opportunity to

intervene also fails. Although it is true that a defendant can only be held liable for

failing to intervene in an assault “if there is a realistic and reasonable opportunity

to intervene,”109 the record of this case is not sufficiently clear for the Court to

conclude as a matter of law that Campbell could not have intervened. Video

evidence depicts multiple officers standing and watching the events inside the cell

for approximately thirty seconds from the time that Defendants McHenry, Lee, and

Kauert entered the cell to the time that the Defendants began to leave to cell.110

Because none of the parties have identified the observing officers, the Court must

draw the reasonable inference that one of them is Campbell.111

I cannot say as a matter of law that Campbell did not have a realistic and

reasonable opportunity to intervene in the alleged assault in the thirty seconds that

he stood and observed. Accordingly, Campbell is not entitled to summary

judgment.

108 Doc. 13 ¶ 36.

109 Smith, 293 F.3d at 651.

110 See Hallway Footage at 2017-05-17, 06:55:00–06:55:30.

111 See Scott v. Harris, 550 U.S. 378 (2007) (noting that courts reviewing motions for summary

judgment must view evidence and draw reasonable inferences in the light most favorable to

the nonmoving party).

D. Use of Force During Transportation

Finally, Defendants argue that summary judgment should be granted to the

extent that Plaintiff claims Defendants used excessive force while transporting him

to the medical unit because the video evidence blatantly contradicts Plaintiff’s

version of events.112

I agree. In his amended complaint, Plaintiff alleges that Defendants forcibly

twisted his arm and rotator cuff to cause him injury while they were walking to the

medical department.113 Video evidence, however, glaringly contradicts this

account, as it does not show any instance in which Defendants forcibly twisted

Plaintiff’s arms or otherwise applied excessive force while transporting him to the

hospital.114

Although courts reviewing motions for summary judgment are required to

view evidence and draw reasonable inferences in the light most favorable to the

non-moving party, they are not required to adopt the non-movant’s version of

events when it is “blatantly contradicted by the record.”115 Thus, where the non-

moving party’s version of evidence is “utterly discredited” by video evidence, the

court should view the facts in the light depicted by the video evidence.116

112 Doc. 38 at 8-9.

113 See Doc. Doc. 13 ¶ 24.

114 See Handheld Footage at 00:32-08:20.

115 Scott, 550 U.S. at 380.

116 Id.

In this case, the only instance depicted in the video evidence that could be

characterized as force is an approximately thirteen-second period when one of the

officers briefly lifts up Plaintiff’s hand and then the officer puts his hand under

Plaintiff’s arm.117 At best, this portion of the video depicts de minimis force that is

not sufficient to support an Eighth Amendment claim. Accordingly, I will grant

summary judgment to the extent that Plaintiff complains of excessive force while

Defendants were transporting him to the prison’s medical unit. Because

Defendants Phillips and Ortiz are only named as Defendants with respect to this

claim, I will dismiss them from the case.

V. CONCLUSION

For the foregoing reasons, I will grant Defendants’ motion for summary

judgment in part and deny it in part. Summary judgment will be granted to the

extent Plaintiff complains of excessive force while Defendants were transporting

him to the prison’s medical unit but denied in all other respects. I will also deny as

moot Plaintiff’s motion to amend the title of his statement of material facts.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

117 See id. at 00:52-01:05.