The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALFONSO PERCY PEW, No. 3:15-CV-01611
Plaintiff, (Chief Judge Brann)
v.
COL. E.A. JONES, et al.,
Defendants.
MEMORANDUM OPINION
DECEMBER 15, 2021
Pro se Plaintiff Alfonso Percy Pew (“Plaintiff”), who is presently
incarcerated in the State Correctional Institution-Phoenix (“SCI-Phoenix”),
complains that various officials violated his civil rights when he was formerly
incarcerated in the State Correctional Institution-Camp Hill (“SCI-Camp Hill”).
After a long and circuitous procedural history in which many of the original
Defendants were dismissed from the case, the remaining Defendants have moved
for summary judgment. For the reasons that follow, the motion for summary
judgment will be granted in part and denied in part.
I. BACKGROUND
Plaintiff initiated this case through the filing of a complaint under 42 U.S.C.
§ 1983 on August 18, 2015.1 In the original complaint, Plaintiff alleged that he
was being denied meals, threatened, and otherwise retaliated against by prison
officials to prevent him from reporting sexual harassment and abuse under the
Prison Rape Elimination Act (“PREA”).2 The case was initially assigned to my
late colleague United States District Judge Edwin M. Kosik, and referred to United
States Magistrate Judge Martin C. Carlson.3 By Order dated June 9, 2016, Judge
Kosik addressed multiple reports and recommendations by Magistrate Judge
Carlson and dismissed several of Plaintiff’s claims. Plaintiff was granted leave to
amend.4 Plaintiff subsequently amended his complaint, moved for leave to add
seven defendants to the case, and moved for leave to file a supplemental
complaint.5 Judge Kosik assumed inactive status on February 10, 2017, and the
case was reassigned to me on February 21, 2017.
I reviewed Plaintiff’s amended complaint and the associated motions on
May 30, 2017.6 I concluded that Plaintiff’s complaint did not comply with the
pleading requirements of Federal Rule of Civil Procedure 8.7 I accordingly granted
Plaintiff a final opportunity to file an amended complaint that complied with Rule
2 Id.
3 Doc. 26.
4 Id.
5 Docs. 33, 38, 40.
6 Doc. 51.
7 Id.
8.8 I cautioned that the amended complaint must be limited “to those defendants
and claims which were originally raised and not previously dismissed.”9
Plaintiff filed his second amended complaint on June 14, 2017.10 In the
second amended complaint, Plaintiff alleges that between February and September
of 2015, Defendant Jones subjected Plaintiff to sexual harassment and terroristic
threats.11 Plaintiff alleges that Jones threatened to rape and murder Plaintiff and
his family, denied him meals, hit his cell door with a “metal pike,” destroyed
Plaintiff’s mail, deprived him of cleaning supplies, and took away his paperwork
and clothing.12 Plaintiff also alleges that Jones frequently exposed his penis to
Plaintiff and gave Plaintiff pornography.13
Plaintiff alleges that Defendant Dempsey denied Plaintiff meals, tampered
with his food, denied him clothing, cleaning supplies, and paperwork, and
interfered with his mail.14 Plaintiff alleges that Dempsey took these actions in
retaliation for Plaintiff filing grievances against Defendant Jones.15 Plaintiff
alleges that Defendant Youch distributed pornography to Plaintiff, sexually and
verbally harassed him, and threatened him.16 Plaintiff also alleges that Defendant
8 Id.
9 Id. at 5.
10 Doc. 52.
11 Id. at 2.
12 Id. at 2-3.
13 Id. at 3.
14 Id.
15 Id.
16 Id.
Youch regularly denied him meals and took away his clothing, cleaning supplies,
and paperwork.17 Plaintiff alleges that Defendant Brown denied Plaintiff meals,
tampered with his food, and denied him clothing, cleaning supplies, and
paperwork.18 Both Youch and Brown were allegedly acting in retaliation for
Plaintiff filing PREA complaints of sexual harassment.19 Plaintiff asserts that
Defendants Jones, Dempsey, Youch, and Brown violated his rights under the First,
Eighth, and Fourteenth Amendments and requests compensatory and punitive
damages.20 He also seeks injunctive relief requiring Defendants to “put cameras in
blind spots” in SCI-Camp Hill and “stop torture cell use.”21
In addition to the claims against Jones, Dempsey, Youch, and Brown,
Plaintiff also names several supervisory officials as defendants. Plaintiff alleges
that Defendant Harry was aware of the actions by Jones, Dempsey, Youch, and
Brown but “failed to protect Plaintiff by separation transfer.”22 Plaintiff similarly
alleges that Defendant Francis was aware of the actions by Jones, Dempsey,
Youch, and Brown but failed to take actions to stop them.23 Plaintiff alleges that
Defendant Horner was told directly about the abuses Plaintiff was suffering and
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id. at 4.
23 Id.
that, shortly after this, Plaintiff was moved to a “torture cell” that was illuminated
24 hours a day.24 Plaintiff does not allege that Horner was responsible for
transferring Plaintiff to the “torture cell.”25 Plaintiff also alleges that Defendants
Wetzel and Smeal were aware of the alleged wrongdoing by Jones, Dempsey,
Youch, and Brown and did nothing to stop it.26 Defendants answered the second
amended complaint on September 7, 2018.27 Following the Defendants’ answer,
discovery in the case continued for over two years, and the court resolved eight
motions for preliminary injunctions filed by Plaintiff as well as numerous motions
to compel discovery and other miscellaneous motions.
Following the close of discovery, Defendants filed a motion for summary
judgment on May 19, 2021.28 Briefing on the motion for summary judgment is
complete and it is ripe for the Court’s disposition.29
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.”30 “Facts that could alter the outcome are ‘material facts,’ and
24 Id.
25 Id.
26 Id. at 4-5.
27 Doc. 63.
28 Doc. 168.
29 See Docs. 171, 181, 198.
30 Fed. R. Civ. P. 56(a).
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.”31 “A defendant meets this standard when there is an absence of
evidence that rationally supports the plaintiff’s case.”32 “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.”33
“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.”34 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-
minded jury could return a verdict for the plaintiff on the evidence presented.”35
“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.”36 “The judge’s inquiry, therefore unavoidably asks . . .
31 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)).
32 Clark, 9 F.3d at 326.
33 Id.
34 Anderson, 477 U.S. at 252.
35 Id.
36 Id.
‘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.”37 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.”38 “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.”39
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.”40 For movants and nonmovants alike, the
assertion “that a fact cannot be or is genuinely disputed” must be supported by: (i)
37 Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).
38 Celotex, 477 U.S. at 323 (internal quotations omitted).
39 Id.
40 Anderson, 477 U.S. at 250.
“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.”41
“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.”42 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.”43 On a motion for summary judgment,
“the court need consider only the cited materials, but it may consider other
materials in the record.”44
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.”45 “There is no issue for trial unless there
is sufficient evidence favoring the nonmoving party for a jury to return a verdict
41 Fed. R. Civ. P. 56(c)(1).
42 Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).
43 Fed. R. Civ. P. 56(e)(2).
44 Fed. R. Civ. P. 56(c)(3).
45 Anderson, 477 U.S. at 249.
for that party.”46 “If the evidence is merely colorable . . . or is not significantly
probative, summary judgment may be granted.”47
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.”48 In this case, Defendants filed a statement of material facts as required by
Local Rule 56.1, but their statement bears almost no relation to the claims that
Plaintiff brings in his second amended complaint. Many of the factual allegations
in Defendants’ statement of material facts amount to nothing more than ad
hominem attacks on the Plaintiff’s mental health.49 Defendants’ assertions that are
actually pertinent to Plaintiff’s claims are largely limited to reciting the allegations
that Plaintiff makes in his complaint.50 Of the thirty-six factual assertions in
Defendants’ statement of material facts, only six address the actual substance of
46 Id.
47 Id. at 249-50 (internal citations omitted).
48 M.D. Pa. L.R. 56.1.
49 See, e.g., Doc. 169 ¶¶ 5-6, 13-17.
50 See id. ¶¶ 7, 11, 18, 22-24. Defendants also attempt to limit the scope of Plaintiff’s legal claims
based on things Plaintiff said during his deposition. See id. ¶¶ 23, 26, 28-32. I will disregard
Defendants’ characterizations of the scope of Plaintiff’s legal claims, as a complaint may not
be amended by a party’s deposition testimony. See Fed. R. Civ. P. 15 (specifying rules for the
amendment of pleadings); cf., e.g., Pinson v. United States, 826 F. App’x 237, 241 n.10 (3d
Cir. 2020) (noting that plaintiff may not amend complaint through brief in opposition to motion
for summary judgment). This is especially true where the attempted amendment is advanced
not by the testifying party but rather by an adverse party’s characterization of the party’s
testimony.
Plaintiff’s claims.51 Specifically, Defendants assert (1) that Plaintiff did not
remember the dates on which Defendant Jones had threatened to rape and murder
Plaintiff and his family during his deposition;52 (2) that Plaintiff “did not remember
what happened on February 20, 2015”;53 (3) that Plaintiff filed numerous PREA
complaints with the prison, all of which were found to be unsubstantiated;54 (4)
that showers were not given on the shifts that Defendants worked;55 (5) that
Plaintiff admitted that he was not physically assaulted by the Defendants;56 and (6)
that Plaintiff “did not file timely Grievances against the Defendants in the amended
complaint.”57
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,
51 See Doc. 159.
52 Id. ¶ 8. Plaintiff acknowledges that he could not remember specific dates during his deposition
but asserts that defense counsel prevented him from reviewing his notes during the deposition.
See Doc. 185 ¶ 8.
53 Id. ¶ 9. Defendants do not themselves explain what happened on that date. See id.
54 Id. ¶ 10.
55 Id. ¶ 25. Plaintiff disputes this and asserts that showers were sometimes given on Defendants’
shifts. Doc. 185 ¶ 25.
56 Id. ¶ 34.
57 Id. ¶ 36. Defendants include as an exhibit to their statement of material facts a printout listing
all grievances Plaintiff filed between 2013 and 2021, with no additional explanation. Plaintiff
asserts that he did file timely grievances. Doc. 185 ¶ 36.
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
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.”58 “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.’”59
Defendants seek summary judgment based on Plaintiff’s purported failure to
exhaust administrative remedies and based on the merits of Plaintiff’s claims. I
address Defendants’ arguments below.
A. Exhaustion
Under the Prison Litigation Reform Act (“PLRA”), prisoner plaintiffs must
exhaust all available administrative remedies before they may file suit in federal
court.60 The statute requires “proper exhaustion,” meaning the prisoner must
complete the administrative review process in accordance with the procedural rules
58 Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993).
59 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)).
60 42 U.S.C. § 1997e(a); Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 304 (3d Cir. 2020).
set by the prison.61 Failure to exhaust is an affirmative defense the defendant must
plead and prove; it is not a pleading requirement for the prisoner-plaintiff.62
Defendants here have not met their burden to show that Plaintiff failed to
exhaust administrative remedies. Defendants assert in conclusory fashion that
Plaintiff did not file any timely grievances against them, but the only evidence they
offer to support this contention is a printout of Plaintiff’s grievances from 2013 and
2021.63 That printout does not establish that Plaintiff failed to exhaust, as the
limited information on the printout suggests that Plaintiff filed numerous
grievances during the relevant period of time that may have pertained to the subject
matter of Plaintiff’s claims.64 Accordingly, because there is a genuine issue of
material fact as to whether Plaintiff exhausted administrative remedies, I find that
summary judgment on the issue of exhaustion is precluded at this time.
B. Merits
1. Jones, Dempsey, Youch, and Brown Are the Only Remaining
Defendants
At the outset of my analysis, I will address a dispute between the parties as
to whether Plaintiff still has viable claims against Defendants other than Jones,
61 Downey, 968 F.3d at 305 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
62 Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013) (citing Jones v. Bock, 549 U.S. 199,
212, 216-17 (2007)).
63 Doc. 169 ¶ 36; Doc. 170 at 15.
64 See Doc. 169-2 at 5-6 (listing grievances between February and September of 2015 for “food”;
“problems with staff – officers”; “allegations of abuse”; “sexual harassment – staff”;
“conditions”; and “safety/sanitation”).
Dempsey, Youch, and Brown.65 Defendants assert that Jones, Dempsey, Youch,
and Brown are the only remaining defendants, while Plaintiff asserts that Harry,
Francis, Horner, Smeal, and Wetzel are still defendants in the case.66
Defendants are correct. In my May 30, 2017 Order granting Plaintiff leave
to file a second amended complaint, I stated that the second amended complaint
was limited to “those defendants and claims which were originally raised and not
previously dismissed.”67 Defendants Harry, Francis, Horner, Smeal, and Wetzel
were dismissed from this case by order of Judge Kosik on June 9, 2016.68 Thus,
although Plaintiff named them as Defendants in his second amended complaint on
June 14, 2017,69 he did not have leave of the Court to do so. Accordingly, Harry,
Francis, Horner, Smeal, and Wetzel are no longer a part of this lawsuit. Jones,
Dempsey, Youch, and Brown are the only remaining Defendants.
2. Eleventh Amendment Immunity
Defendants assert that they are entitled to immunity under the Eleventh
Amendment to the extent that Plaintiff attempts to sue them in their official
capacities.70 Plaintiff concedes this point.71 Accordingly, I will grant Defendants
65 See Doc. 169 ¶¶ 1-3; Doc. 185 ¶¶ 1-3.
66 Id.
67 Doc. 51 at 5.
68 Doc. 26.
69 See Doc. 52.
70 Doc. 171 at 5-6.
71 Doc. Doc. 181 at 4.
summary judgment to the extent that Plaintiff’s claims are brought against them in
their official capacities.
3. Eighth Amendment Claim Based on Threats and
Harassment
Defendants argue that Plaintiff’s Eighth Amendment claim fails to the extent
that it is based on verbal threats and harassment.72 Defendants are correct, as
verbal sexual harassment unaccompanied by any other injury is not sufficient to
establish an Eighth Amendment violation.73 I will therefore grant summary
judgment to the extent that Plaintiff raises an Eighth Amendment claim based on
threatening and harassing language.
4. Eighth Amendment Claim Based on Denial of Food
Defendants next argue that Plaintiff’s Eighth Amendment claim fails to the
extent it is based on the denial of food because Plaintiff’s deposition “revealed that
he had no idea as to how often this occurred or why it happened.”74 Defendants
note that isolated incidents of the denial of meals does not rise to the level of a
constitutional violation.75
72 Doc. 171 at 7-9.
73 See, e.g., Sears v. McCoy, 851 F. App’x 668, 670 (3d Cir. 2020) (“A prisoner's allegations of
verbal harassment, unaccompanied by another injury, are not cognizable under § 1983.”);
accord Proctor v. James, 811 F. App’x 125, 128 n.2 (3d Cir. 2020); Gandy v. Reeder, 778 F.
App’x 149, 151 (3d Cir. 2019); Washington v. Rozich, 734 F. App’x 798, 801 (3d Cir. 2018);
McCormick v. Kline, 670 F. App’x 764, 765 (3d Cir. 2016); Robinson v. Taylor, 204 F. App’x
155, 156 (3d Cir. 2006).
74 Doc. 171 at 11.
75 Id. (collecting cases).
Defendants’ account of Plaintiff’s deposition testimony is not supported by
the transcript of the deposition. In the deposition, Plaintiff did not state that he had
no idea how often he was denied meals.76 To the contrary, Plaintiff testified that
he was denied meals whenever one of the defendants was responsible for meals on
the 2:00 p.m. to 10:00 p.m. shift.77 Accordingly, based on the record before me, I
conclude that there is a genuine dispute of material fact as to how often Defendants
denied Plaintiff meals. I will therefore deny this portion of Defendants’ motion for
summary judgment.
5. Retaliation
Defendants argue they are entitled to summary judgment as to Plaintiff’s
retaliation claim because the claim is based on his transfer from SCI-Mahanoy and
none of the Defendants were involved in that transfer.78
Defendants’ argument misapprehends Plaintiff’s second amended complaint.
There is no allegation in the second amended complaint that Plaintiff’s retaliation
claim is based on his transfer from SCI-Mahanoy.79 In fact, SCI-Mahanoy is not
even mentioned in the second amended complaint.80 Defendants’ argument
appears to be based on a portion of Plaintiff’s deposition testimony where Plaintiff
76 Doc. 169-1 at 34-35.
77 Id.
78 Doc. 171 at 12.
79 See Doc. 52.
80 See id.
stated that his transfer from SCI-Mahanoy was retaliatory in nature.81 Plaintiff did
not state, however, that the allegedly retaliatory nature of the transfer was the basis
for his retaliation claim in this case.82 Moreover, as noted above, a plaintiff’s
complaint may not be amended by the text of the plaintiff’s deposition testimony
or by an adverse party’s characterization of that deposition testimony.
Accordingly, because Defendants’ motion for summary judgment as to Plaintiff’s
retaliation claim is based on an erroneous reading of the second amended
complaint and does not address the substance of Plaintiff’s retaliation claim, the
Court will deny summary judgment as to that claim.
6. Americans With Disabilities Act
Defendants argue they are entitled to summary judgment to the extent
Plaintiff attempts to raise a claim under the Americans With Disabilities Act
(“ADA”).83 Plaintiff concedes this point.84 I will therefore grant summary
judgment to the extent that Plaintiff raises an ADA claim.
7. Fourteenth Amendment Claim
Finally, Defendants seek summary judgment as to Plaintiff’s Fourteenth
Amendment claim because there are no allegations relating to that claim in the
81 See Doc. 169-1 at 27.
82 See id.
83 Doc. 171 at 12.
84 Doc. 181 at 11.
second amended complaint.85 I will grant this portion of the motion for summary
judgment, as a review of the second amended complaint confirms that Plaintiff
makes no allegations in support of any Fourteenth Amendment claim.86
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment will
be granted in part and denied in part.87
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
85 Doc. 171 at 13.
86 See generally Doc. 52.
87 Plaintiff has also filed a request for the Court to conduct an in camera review of certain
documents as part of the review of the summary judgment motion. See Doc. 188. Plaintiff
specifically requests an in camera review of (1) records of trauma treatment services that
Plaintiff received; (2) pornographic photos that Defendants allegedly gave to Plaintiff; (3) a
copy of the DOC’s “starvation protocol,” and (4) an additional document relating to the impact
of being denied food. Id. The decision of whether to conduct an in camera review of
documents is generally left to the sound discretion of the district court. See, e.g., ACLU of N.J.
v. FBI, 733 F.3d 526, 534 (3d Cir. 2013); Haines v. Liggett Grp. Inc., 975 F.2d 81, 96 (3d Cir.
1992). I will exercise my discretion and decline to conduct the requested in camera review, as
the pornographic photos are not relevant to the instant motion, the documents related to the
withholding of food are not material given that the Court has otherwise found that Defendants
are not entitled to summary judgment as to the withholding of food claims, and Plaintiff has
not explained the relevance of the trauma treatment records.