Brown v. Dell

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ADAM JOSEPH BROWN, No. 4:20-CV-00698

Plaintiff, (Chief Judge Brann)

v.

ERIC TICE, et al.,

Defendants.

MEMORANDUM OPINION

APRIL 19, 2022

Plaintiff Adam Joseph Brown filed this pro se Section 19831 action,

asserting constitutional tort claims against various prison officials at the State

Correctional Institution, Smithfield (SCI Smithfield), in Huntingdon, Pennsylvania.

Presently pending is Defendants’ motion for summary judgment2 pursuant to

Federal Rule of Civil Procedure 56. For following reasons, the Court will grant in

part and deny in part Defendants’ Rule 56 motion. The Court will also dismiss

with prejudice several of Brown’s claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim on which relief may be granted.

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

v. Doe, 536 U.S. 273, 284-85 (2002).

I. FACTUAL BACKGROUND3

Brown was transferred to SCI Smithfield in April 2018 and housed in the

Behavioral Management Unit (BMU).4 His placement in this unit appears to be the

result of his history of suicidal thoughts and self-harm, for which Brown asserts he

was deemed “a behavior problem.”5 Brown admits that—before being transferred

to SCI Smithfield—he was criminally charged for assaulting defendant Lieutenant

Louis Lusk when they were both at a different state prison,6 an incident that Brown

believes motivated the constitutional torts at SCI Smithfield.7

In his complaint, Brown outlines three separate incidents during which he

contends that SCI Smithfield officials violated his constitutional rights. The first

event occurred on July 3, 2018.8 Brown avers that while he was in a psychiatric

observation cell on suicide watch, defendant Corrections Officer Steve Dell—who

3 Local Rule of Court 56.1 requires that a motion for summary judgment be supported “by 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.” LOCAL RULE OF COURT

56.1. A party opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving party’s statement

and identifying genuine issues to be tried. Id. Brown did not file a responsive statement of

material facts. Accordingly, Defendants’ statement of material facts, Doc. 33, will be

considered admitted unless clearly contradicted by the record. See LOCAL RULE OF COURT

56.1.

4 Doc. 33 ¶ 3. Brown was transferred to SCI Benner in late 2020 and is currently incarcerated

at SCI Phoenix. See id. ¶ 1.

5 Id. ¶¶ 3-4; Doc. 34-1, Jan. 27, 2021 Brown Deposition 6:15-25 [hereinafter “Brown Dep.”].

6 Doc. 1 ¶ 11. Brown filed a verified complaint signed under penalty of perjury. See id. at 10.

The assault on Lusk appears to have been an incident where Brown spit on Lusk. Brown Dep.

35:7-18.

7 See, e.g., Doc. 1 ¶¶ 12, 14, 16, 18, 19, 22, 23, 29-32, 40.

8 Id. ¶ 20.

was assigned to monitor Brown during the prison’s third shift—provided Brown

with a razor blade, encouraged him to “go for his jugular vein,” and observed

Brown cutting his neck for 30 minutes without taking any action to intervene.9

The next incident occurred three days later, on July 6.10 After again cutting

his neck,11 he was placed in a “restraint chair” by defendant Lieutenant Lynn Smith

and a “compliance team” of correctional officers.12 Brown avers that, during this

placement, he informed Smith and a registered nurse who was present that he had

swallowed the razor blade used “to cut up with multiple times.”13 Brown claims

that neither Smith nor the nurse14 took any action or sought medical attention, and

further alleges that Smith told him that “if he died that’s what he gets for what he

did to Lt. Lusk.”15 Defendants maintain that Brown was assessed by the nurse

several minutes after being placed in the restraint chair and that he did not tell her

that he had swallowed a razor blade or request additional medical treatment.16

9 Id. ¶¶ 20-21, 25.

10 Id. ¶ 26.

11 Brown attests that he cut himself with a razor, see id.; Defendants cite to a prison report that

states that on July 6 Brown cut himself “presumably with his fingernail,” Doc. 34-1 at 2.

12 Doc. 1 ¶ 26; Doc. 33 ¶ 23.

13 Doc. 1 ¶ 27.

14 Brown initially sued this nurse as a “Jane Doe” defendant. See id. ¶ 8. However, Brown never

properly identified the nurse for service purposes and therefore this Jane Doe defendant was

eventually dismissed under Federal Rule of Civil Procedure 4(m). See Doc. 19.

15 Doc. 1 ¶¶ 28-29.

16 Doc. 33 ¶¶ 21, 23-25.

Finally, Brown avers that on August 3, 2018, defendant Sergeant Donald

Britton sprayed him with “Oleoresin Capsicum” spray, otherwise known as “OC”

or pepper spray, without justification and while Brown was confined in his cell.17

Brown maintains that Britton told him that he pepper sprayed him for what Brown

had done to Lusk in SCI Benner, and that Lusk was offering money to anyone who

“got” Brown for him.18 Defendants assert that OC spray was administered because

Brown had covered the inside of his cell door (in violation of prison rules), made

threats of self-harm, and refused to comply with orders to uncover the door.19

Brown filed suit in April 2020, alleging First Amendment retaliation and

what appears to be Eighth Amendment claims of failure to protect, deliberate

indifference to serious medical needs, and excessive force.20 Brown also invokes

the Equal Protection Clause of the Fourteenth Amendment, although he does not

elaborate on this claim whatsoever.21 Brown names as defendants Eric Tice

(Superintendent of SCI Smithfield), Britton, Smith, Dell, and Lusk.

Defendants move for summary judgment on all claims against them.22 Their

Rule 56 motion is fully briefed and ripe for disposition.

17 Doc. 1 ¶ 15.

18 Id. ¶ 16.

19 Doc. 33 ¶¶ 5-7.

20 Doc. 1 ¶ 40.

21 Id.

22 Doc. 32.

II. STANDARD OF REVIEW

“One of the principal purposes of the summary judgment rule is to isolate

and dispose of factually unsupported claims or defenses.”23 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.”24 Material

facts are those “that could alter the outcome” of the litigation, 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.”25

At the Rule 56 stage, the Court’s function is not to “weigh the evidence and

determine the truth of the matter” but rather “to determine whether there is a

genuine issue for trial.”26 The Court must view the facts and evidence presented

“in the light most favorable to the non-moving party” and must “draw all

reasonable inferences in that party’s favor.”27 This evidence, however, must be

adequate—as a matter of law—to sustain a judgment in favor of the nonmoving

party on the claim or claims at issue.28 A “scintilla of evidence” supporting the

nonmovant’s position is insufficient; “there must be evidence on which the jury

23 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

24 FED. R. CIV. P. 56(a).

25 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

26 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

27 Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014).

28 Liberty Lobby, 477 U.S. at 250-57; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587-89 (1986).

could reasonably find for the [nonmovant].”29 Succinctly stated, summary

judgment is “put up or shut up time” for the nonmoving party.30

III. DISCUSSION

Before addressing Defendants’ Rule 56 arguments, the Court must identify

the claimed constitutional violations and the actors involved.31 Brown alleges

First, Eighth, and Fourteenth Amendment infringements. Yet careful examination

demonstrates that only the Eighth Amendment claims warrant full discussion, and

only as to certain Defendants.

A. First Amendment Retaliation

Although a prisoner’s constitutional rights are necessarily circumscribed, an

inmate still retains First Amendment protections when they are “not inconsistent”

with prisoner status or with the “legitimate penological objectives of the

corrections system.”32 To establish a First Amendment retaliation claim, a prisoner

must show that (1) “he was engaged in constitutionally protected conduct,” (2) he

suffered an “adverse action” by prison officials sufficient to deter a person of

29 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192 (3d Cir. 2015) (quoting Liberty Lobby, 477

U.S. at 252) (alteration in original).

30 Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (quoting Berkeley Inv. Grp.

v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).

31 Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The first step in any [Section 1983] claim is to

identify the specific constitutional right allegedly infringed.”); Graham v. Connor, 490 U.S.

386, 394 (1989) (explaining that analysis of a Section 1983 claim requires “identifying the

specific constitutional right allegedly infringed by the challenged” conduct).

32 Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d

775, 781 (3d Cir. 2010)).

ordinary firmness from exercising his First Amendment rights, and (3) the inmate’s

protected conduct was a “substantial or motivating factor” in the prison officials’

decision to take the adverse action.33

Simple recitation of the elements demonstrates that Brown’s First

Amendment retaliation claim fails for two obvious reasons. First, Brown has not

identified constitutionally protected conduct in which he was engaged. Second,

Brown has not pled or established causation; that is, he has not shown that he was

retaliated against for engaging in conduct protected by the First Amendment. The

gravamen of Brown’s retaliation claim is that he was singled out and mistreated at

SCI Smithfield because he had previously assaulted Lusk. Simply put, criminal

assault is not constitutionally protected conduct. Thus, Brown’s claim of First

Amendment retaliation must be dismissed.34

B. Fourteenth Amendment Equal Protection

The Equal Protection Clause of the Fourteenth Amendment provides that

“[n]o State shall . . . deny to any person within its jurisdiction the equal protection

33 Id. (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)); Mitchell v. Horn, 318 F.3d

523, 530 (3d Cir. 2003) (quoting Rauser, 241 F.3d at 333).

34 See 28 U.S.C. § 1915(e)(2)(B)(ii). Dismissal will be with prejudice because amendment of

this claim would be futile. Brown’s allegations do not implicate the First Amendment, nor

could they. See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015)

(explaining that courts must “identify the exact contours of the underlying right said to have

been violated” and determine “whether the plaintiff has alleged a deprivation of a constitutional

right at all”) (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000)).

of the laws.”35 To state a Fourteenth Amendment equal protection claim, a

prisoner must allege “that he was treated differently than other similarly situated

inmates, and that this different treatment was the result of intentional

discrimination based on his membership in a protected class[.]”36

Once again, cursory review of the elements exposes the deficiencies in

Brown’s equal protection claim. Brown alleges that he was treated differently than

other inmates, but not based on his membership in a protected class (for example,

because of race or religion). Instead, Brown contends that he was subjected to

disparate treatment because he previously assaulted a correctional officer. These

allegations do not, and cannot, set forth a Fourteenth Amendment equal protection

claim. This claim, therefore, must also be dismissed with prejudice.37

C. Personal Involvement

It is well established that, in Section 1983 actions, liability cannot be

“predicated solely on the operation of respondeat superior.”38 Rather, a Section

1983 plaintiff must aver facts that demonstrate “the defendants’ personal

involvement in the alleged misconduct.”39 Personal involvement can include direct

wrongful conduct by a defendant, but it can also be demonstrated through

35 U.S. CONST. amend. XIV, § 1.

36 Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016).

37 See 28 U.S.C. § 1915(e)(2)(B)(ii); Chavarriaga, 806 F.3d at 222.

38 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also Ashcroft

v. Iqbal, 556. U.S. 662, 676 (2009) (affirming same principle in Bivens context).

39 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citing Rode, 845 F.2d at 1207).

allegations of “personal direction” or of “actual knowledge and acquiescence”;

however, such averments must be made with particularity.40

The only claims remaining are Brown’s allegations of various Eighth

Amendment violations. Liberally construing his complaint, as the Court must, it

appears that Brown is asserting failure to protect for the July 3 event where he

alleges he was aided and encouraged to commit self-harm; deliberate indifference

to serious medical needs for the July 6 restraint-chair incident; and excessive force

for being pepper sprayed without cause on August 3. These claims, however, only

involve three41 Defendants: Dell, Smith, and Britton, respectively. None of the

other named Defendants had any personal involvement in the alleged Eighth

Amendment violations and therefore cannot be held liable under Section 1983.

Accordingly, the Court turns to Brown’s remaining Eighth Amendment claims

against Dell, Smith, and Britton.

D. Eighth Amendment Claims

1. Failure to Protect – Dell

To establish an Eighth Amendment failure-to-protect claim against a prison

official, the inmate must show that “(1) he was incarcerated under conditions

posing a substantial risk of serious harm, (2) the official was deliberately

40 Id. (quoting Rode, 845 F.2d at 1207).

41 As explained above, the unidentified prison nurse involved in the July 6 incident has been

dismissed from this case.

indifferent to that substantial risk to [the prisoner’s] health and safety, and (3) the

official’s deliberate indifference caused [the prisoner] harm.”42 In this context,

deliberate indifference is a subjective standard; that is, “the prison official-

defendant must actually have known or been aware of the excessive risk to inmate

safety.”43 Actual knowledge or awareness of a substantial risk to an inmate’s

safety can be proven “in the usual ways, including inference from circumstantial

evidence.”44

Brown’s sworn allegations regarding his failure-to-protect claim are

troubling. He attests that Dell—who was specifically assigned to monitor Brown

on suicide watch—not only stood idly by while Brown cut his neck with a razor

blade for half an hour, but that Dell actually supplied the razor blade and

encouraged Brown to “go for his jugular vein.”45

Defendants argue that prison video footage from the July 3 incident

contradicts Brown’s allegations and does not show him harming himself.46 The

trouble with Defendants’ argument is that the hand-held video footage they

submitted begins around 11:54 p.m., when prison officials are preparing to perform

a cell extraction of Brown after the self-harm had already occurred. In his prison

42 Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack

v. Yost, 968 F.3d 311 (3d Cir. 2020) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

43 Id. (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001)).

44 Id. (quoting Farmer, 511 U.S. at 842).

45 Doc. 1 ¶¶ 20-21; Brown Dep. 17:8-19:14.

46 See Doc. 46 at 3.

grievances, Brown claimed that the razor blade neck-cutting incident with Dell

occurred around “11:30 p.m.”47 The video provided does show that (1) Dell was

on duty around the time in question and participated in the cell extraction; and (2)

when Brown is extracted, the right side of his neck and his clothing are covered in

what appears to be blood.48

Consequently, there is a genuine dispute of material fact regarding what

occurred in the late hours of July 3 in the psychiatric observation cell while Dell

was stationed on suicide watch. Defendants’ video evidence does not conclusively

disprove Brown’s sworn allegations and deposition testimony.49 The video, in fact,

substantiates Brown’s claim that he cut his neck in his cell. Taking Brown’s

version of the disputed facts as true, as the Court must,50 a jury could reasonably

find for Brown on his Eighth Amendment failure-to-protect claim.51 The Court,

therefore, must deny Defendants’ motion for summary judgment as to this claim.52

47 See Doc. 1 at 18-19.

48 See 7/3/18 Video at 2:18-20, 9:32-36, 10:20-40, 13:53-58. All times refer to the video

playback times and not the time of day.

49 Brown maintains that in-cell video from July 3 exists and is being intentionally withheld by

Defendants because it “would be devastating to their defense.” Doc. 50 at 2. Defendants

neither confirm nor deny whether in-cell video from the relevant time exists, but none was

provided to the Court or, apparently, to Brown.

50 Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992).

51 See Daniels, 776 F.3d at 192 (quoting Liberty Lobby, 477 U.S. at 252).

52 Defendants alternatively argue that, even if Brown establishes a constitutional violation,

qualified immunity applies. Doc. 35 at 14. This argument is patently meritless with respect to

the failure-to-protect claim. Under the facts as proffered by Brown, where he avers that Dell

provided the razor blade and encouraged suicide, any argument that these actions were

reasonable and thus insulated from suit by qualified immunity is a nonstarter.

2. Deliberate Indifference to Medical Needs – Smith

Brown’s claim regarding the July 6 restraint-chair incident, as best the Court

can tell, appears to be an assertion of deliberate indifference to serious medical

needs. In the context of prison medical care, the Eighth Amendment “requires

prison officials to provide basic medical treatment to those whom it has

incarcerated.”53 To establish an Eighth Amendment deliberate indifference claim

regarding inadequate medical care, a plaintiff must demonstrate “(i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate

indifference to that need.”54 A serious medical need is “one that has been

diagnosed by a physician as requiring treatment or one that is so obvious that a lay

person would easily recognize the necessity for a doctor’s attention.”55 Deliberate

indifference by prison officials may be evidenced by intentional refusal to provide

care known to be medically necessary, delayed provision of medical treatment for

non-medical reasons, denial of prescribed medical treatment, or denial of

reasonable requests for treatment resulting in suffering or risk of injury.56

Brown avers that he swallowed a razor blade, informed Smith and the nurse

present that he did so, and that no medical treatment or evaluation was undertaken

53 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

54 Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).

55 Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).

56 See Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d at 346).

by anyone at SCI Smithfield. Defendants counter that the video footage from the

July 6 restraint-chair placement directly refutes Brown’s allegation that he

informed the attending nurse about swallowing a razor.57 They also maintain that

Brown’s claim fails because he has not demonstrated that he suffered any harm

from the incident.

Upon review of the July 6 video, it is indisputable that Brown informed the

nurse and correctional officers present (including Smith) that he had swallowed a

piece of “razor wire” taken from the institution’s fence, which he had recently used

to cut himself.58 Brown does so on four separate occasions in the span of

approximately three and a half minutes.59 At one point, he even asks Smith to

repeat what he has told him, and Smith eventually responds that Brown stated that

he “swallowed something.”60

Nevertheless, Brown’s Eighth Amendment medical indifference claim fails

as a matter of law because Brown has not proffered any evidence of harm resulting

from the purported lack of medical treatment.61 In other words, Brown has failed

57 Doc. 35 at 13.

58 See 7/6/18 Video at 12:42-13:08, 14:22-31, 15:20-42, 16:04-11.

59 See id.

60 Id. at 15:20-42.

61 See Brooks v. Kyler, 204 F.3d 102, 105 n.4 (3d Cir. 2000) (explaining that prisoner’s claim

could not survive Rule 56 challenge because “he presented no evidence of any harm resulting

from a delay in medical treatment”) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)); Joh

v. Suhey, 709 F. App’x 729, 731 (3d Cir. 2017) (nonprecedential) (finding that brief delay in

treatment did not demonstrate that medical provider disregarded “an excessive risk” to

to establish that he had a “serious medical need” to which prison officials were

deliberately indifferent. Brown does not include any allegations of injury in his

verified complaint, nor does he provide a declaration or affidavit to such effect.

He has likewise failed to adduce evidence that the purported lack of medical

treatment exposed him to “undue suffering or the threat of tangible residual

injury.”62 Rather, Brown testified that he has swallowed razor blades to conceal

them from prison authorities on more than ten occasions.63

Defendants, on the other hand, have produced medical records showing that

immediately after the July 6 incident Brown was assessed by a medical provider,

his neck injuries were deemed “superficial,” he refused further medical treatment,

and he was told to follow up by sick call as needed.64 On this record, the Court

must grant summary judgment in Defendants’ favor on Brown’s Eighth

Amendment medical indifference claim.

3. Excessive Force – Britton

In a Section 1983 claim for excessive force, the “pivotal inquiry” is whether

“force was applied in a good-faith effort to maintain or restore discipline, or

inmate’s safety because inmate did not allege that “the delay in treatment led to any serious

harm”).

62 Lanzaro, 834 F.2d at 346 (citations omitted).

63 Brown Dep. 30:21-24.

64 Doc. 34-5 at 1-2.

maliciously and sadistically to cause harm.”65 The factors analyzed when making

this inquiry include: “(1) the need for the application of force; (2) the relationship

between the need and the amount of force that was used; (3) the extent of the

injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as

reasonably perceived by responsible officials on the basis of facts known to them;

and (5) any efforts made to temper the severity of the forceful response.”66

Brown’s excessive force claim against Britton requires some initial

clarification. Brown maintains that on August 3, Britton deployed OC spray into

his BMU cell without justification.67 Defendants assert that it was actually a

different correctional officer—“Officer Glass”—who deployed OC spray into

Brown’s cell.68 This distinction, however, is immaterial. The prison’s August 3

“Extraordinary Occurrence Report” plainly states that “Sgt. D. Britton directed

Officer T. Glass to retrieve OC spray” and “Officer Glass administered several

bursts of OC into the cell[.]”69 And, during the videotaped debriefing of the

incident, the commanding correctional officer likewise recounts that Britton

“ordered” another officer to retrieve OC spray and deploy it into Brown’s cell.70

65 Ricks v. Shover, 891 F.3d 468, 480 (3d Cir. 2018) (quoting Smith v. Mensinger, 293 F.3d 641,

649 (3d Cir. 2002)).

66 Id. (quoting Smith, 293 F.3d at 649).

67 See Doc. 1 ¶¶ 15-18; Brown Dep. 7:22-8:4.

68 See Doc. 33 ¶ 8; Doc. 35 at 8, 10.

69 Doc. 34-2 at 2.

70 See 8/3/18 Video at 54:24-37.

Because Glass appears to have acted on Britton’s personal direction, Defendants’

assertion the Britton lacked personal involvement in the incident is meritless.71

The parties offer competing versions of the August 3 events. According to

Brown, Britton deployed the OC spray without any justification, and later told him

that it was “for what he did to Lusk” at SCI Benner.72 Brown avers that he did not

make any threats of self-harm at that time,73 and in his deposition testified that he

“did not cover [his] door.”74

Defendants assert that Brown both covered his door (in contravention of

prison rules) and threatened self-harm to two prison officials before OC spray was

used. Defendants cite the August 3 Extraordinary Occurrence Report, which

indicates that Brown “had covered his cell door and made several threats of self-

harm,” and also “refused to comply with orders to uncover the door.”75 In the

video from the incident, the commanding correctional officer recounts during the

debriefing that Brown had covered his door and had told two prison officials, one

of whom was Britton, that he was going to “cut his neck.”76 When Brown refused

to comply with orders to uncover his door, OC spray was deployed.77

71 See Dooley, 957 F.3d at 374 (citing Rode, 845 F.2d at 1207).

72 Doc. 1 ¶¶ 15-16; Brown Dep. 6:4-7,

73 See Brown Dep. 9:15-10:3; 8/3/18 Video at 46:17-23, 46:40-52, 52:07-30.

74 Brown Dep. 7:9-21, 9:9-14.

75 Doc. 33 ¶ 5; Doc. 34-2 at 2.

76 8/3/18 Video at 54:11-25.

77 Id. at 54:25-36.

The Court’s role at summary judgment is not to decide disputed factual

issues.78 And the nonmovant’s version of facts must be taken as true when there is

a genuine dispute as to those facts.79 However, when video evidence of an incident

is available, district courts must review that evidence and cannot accept a version

of facts that is “visible fiction” in light of what is depicted in the footage.80

Two things are evident from review of the August 3 video. First, contrary to

Brown’s deposition testimony, he had fully covered the window on the door of his

BMU cell so that officers could not see inside the cell.81 Second, Brown refused to

comply with orders to remove the covering on the door before OC spray was

deployed.82 The Court cannot accept a version of facts from Brown that is

“blatantly contradicted” by what is depicted in the video from that day.83

Thus, the only material fact that is genuinely disputed for this claim is

whether Brown threatened self-harm before OC spray was used. Brown

maintains—both during the August 3 video and in this lawsuit—that he did not

threaten self-harm that day; Defendants argue that the post-incident debriefing and

78 Liberty Lobby, 477 U.S. at 249; Scott v. Harris, 550 U.S. 372, 380 (2007).

79 Big Apple BMW, Inc., 974 F.2d at 1363.

80 Scott, 550 U.S. at 380-81 (“When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”);

see Jacobs v. Cumberland County, 8 F.4th 187, 192 (3d Cir. 2021).

81 See 8/3/18 Video at 00:00-20, 10:27-41.

82 See id. at 00:00-20.

83 Scott, 550 U.S. at 380; Jacobs, 8 F.4th at 192.

occurrence report prove otherwise. Because Brown is the nonmovant, however,

the Court must take Brown’s version as true.84

When applying the excessive-force factors to the record evidence, the result

strongly favors Defendants’ position. First, there was obviously a need for the use

of force. Brown—a BMU inmate with a history of mental illness who had just

recently committed self-harm in July—had covered the door to his cell and refused

to comply with orders to uncover the window.85 Correctional officers could have

no way of knowing what Brown was doing in his cell, whether he was armed, or

whether he was attempting to harm himself. Even if Brown did not threaten self-

harm that day, that would not alter the fact that Brown was housed in the BMU for

mental health issues and—by his own admission—had attempted to seriously harm

himself the previous month. This first factor, therefore, favors Defendants.

The amount of force that was applied appears to be minimal with respect to

the need for force to be used. A correctional officer deployed short bursts of OC

spray into the front of Brown’s cell—once through the food aperture and then

again through an opening at the top of the door.86 When weighed against the

potential risk of Brown seriously injuring himself if correctional officers could not

84 Big Apple BMW, Inc., 974 F.2d at 1363.

85 Brown admits that he knew covering his cell door was prohibited by prison policy. See Brown

Dep. 7:1-8.

86 See 8/3/18 Video at 00:20-45.

see into his cell (and Brown’s noncompliance with verbal orders to uncover his

door), this factor likewise cuts in favor of Britton’s use of force being reasonable.

The extent of the injury inflicted is minimal. During the video, when Brown

exits his cell, he tells the nurse present that he is “not contaminated” by the OC

spray and that he is “fine.”87 Several minutes later, when asked if he wanted

photographs taken, he declines and states, “I did not get sprayed.”88 At one point

during the video, Brown even questions Britton’s competency as a correctional

sergeant for not knowing how to properly deploy OC spray.89 Furthermore, Brown

refused any medical treatment.90 This factor thus weighs heavily in Defendants’

favor.91

The fourth factor examines “the extent of the threat to the safety of staff and

inmates, as reasonably perceived by responsible officials on the basis of facts

known to them.”92 This factor, too, cuts against Brown. Based on Brown’s BMU

87 Id. at 46:08-17.

88 Id. at 46:52-47:08.

89 Id. at 49:02-10.

90 Doc. 34-2 at 2.

91 The Court observes that, in light of what is depicted on the video, it is doubtful whether Brown

can meet the “de minimis” injury threshold for an excessive force claim. See Ricks, 891 F.3d

at 480 (quoting Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000)). Taking Brown at his

word on August 3, he did not get sprayed, was “fine,” and thus suffered no injury at all. Stated

differently, the “force” employed did not contact Brown’s person. Nevertheless, the Court will

address the excessive-force factors because, during his deposition, Brown testified that he did

suffer some skin irritation from the OC spray in the days following the incident. Brown Dep.

15:8-21. In Eighth Amendment excessive force claims, the primary focus is the “nature of the

force” employed, not the “extent of the injury” sustained. See Wilkins v. Gaddy, 559 U.S. 34,

34 (2010); Brooks, 204 F.3d at 109.

92 Ricks, 891 F.3d at 480 (citation omitted).

placement and recent episodes of self-harm, Britton’s use of OC spray was a

reasonable mitigation tactic in light of the substantial risk of harm to Brown from

Brown. This reasonable perception of significant risk, moreover, does not depend

on whether Brown threatened self-harm that day.

The fifth and final factor is not susceptible to analysis and thus is neutral.

The August 3 video begins at the point when Glass has retrieved the OC spray as

requested by Britton. It does not depict what occurred leading up to when the OC

spray was requested, other than that Brown’s door was covered and he was

refusing Britton’s commands to uncover it. And neither party addresses this factor

through briefing or evidence. Accordingly, it is not possible to tell if attempts

were made to temper the severity of the application of force.

In sum, four of the five factors weigh in favor of Defendants’ argument that

force was applied in a good-faith effort to maintain or restore discipline, and some

tilt the scales heavily toward this result. In contrast, none of the factors support

Brown’s position. On this record, a jury could not reasonably find that Britton’s

use of force was excessive under the circumstances, so the Court must grant

summary judgment for Defendants on this claim.

IV. CONCLUSION

Based on the foregoing, the Court will grant in part and deny in part

Defendants’ motion (Doc. 32) for summary judgment. The Court will grant

Defendants’ Rule 56 motion as to Brown’s Eighth Amendment claims of medical

indifference and excessive force. The Court will deny Defendants’ motion as to

Brown’s failure-to-protect claim against Dell. The Court will also dismiss with

prejudice Brown’s First and Fourteenth Amendment claims. An appropriate Order

follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge