Hitner v. Reese

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CLINTON HITNER, : CIVIL ACTION NO. 1:21-CV-430

:

Plaintiff : (Judge Conner)

:

v. :

:

CORRECTIONS CAPTAIN REESE, :

CORRECTIONS LIEUTENANT :

NEWBERRY, CORRECTIONS :

OFFICER MACKEY, CORRECTIONS :

OFFICER JORDAN, CORRECTIONS :

OFFICER ERDLEY, :

:

Defendants :

MEMORANDUM

Plaintiff Clinton Hitner (“Hitner”), an inmate who was housed at all relevant

times at the State Correctional Institution at Frackville, Pennsylvania (“SCI-

Frackville”), commenced this action pursuant to 42 U.S.C. § 1983. (Docs. 1, 19, 40).

Named as defendants are Corrections Captain Reese, Corrections Lieutenant

Newberry, and Corrections Officers Mackey, Jordan, and Erdley. Before the court

are the parties’ cross-motions for summary judgment pursuant to Federal Rule of

Civil Procedure 56. (Docs. 41, 52, 57). For the reasons set forth below, the court will

grant defendants’ motion (Doc. 52) for summary judgment and deny plaintiff’s

motions (Docs. 41, 57) for summary judgment.

I. Factual Background & Procedural History1

Hitner claims that three alleged DMI gang members2, Joey Oswald, TY, and

Stretch, informed him that the DMI gang had a hit out on him at an unspecified

date and time. (Doc. 53 ¶ 1; Doc. 60 ¶ 1; Doc. 53-1, Deposition of Clinton Hitner

(“Hitner Dep.”) at 34-35, Notes of Transcript (“N.T.”) 33:22-34:2). Hitner claims that

he was not a member of the DMI gang, nor was he affiliated with any organization

or gang. (Doc. 53 ¶ 2; Doc. 60 ¶ 2). Oswald, TY, and Stretch did not inform Hitner

about why, when, how, or who would attack him. (Id. ¶ 3).

Hitner sent defendants Reese and Newberry a request to staff member form

on or about September 12, 2018, reporting that he believed the DMI gang had a hit

out on him and sought protective custody. (Id. ¶ 4). When presented with copies of

the two requests to staff member forms he completed, Hitner acknowledged them

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 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. Unless otherwise

noted, the factual background herein derives from the parties’ Rule 56.1 statements

of material facts. (Docs. 42, 50, 53, 57-1 at 3, 60, 63). To the extent the parties’

statements are undisputed or supported by uncontroverted record evidence, the

court cites directly to the statements of material facts.

2 Although immaterial to the court’s decision, we note that the record lacks

any specific identification of the DMI gang or related gang affiliations. Internet

research indicates that a prison gang known as “Dead Man Incorporated” or DMI

originated in the state of Maryland. (See https://www.justice.gov/entity-

popup/file/432121) (last visited August 15, 2022).

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as true and accurate versions of the forms he submitted to Reese and Newberry in

September 2018. (Id. ¶ 5). In so doing, Hitner identified only the DMI gang as a

whole organization and did not inform Reese and Newberry of any specific

individual, nor identified the three DMI gang members who had reported to him

that there was a hit out on him. (Id. ¶ 6). Hitner was housed in the Restricted

Housing Unit at the time of submitting these requests to staff forms to defendants

Reese and Newberry. (Id. ¶ 7). Defendants Reese and Newberry contend that they

informally investigated Hitner’s claims but were unable to substantiate any of

Hitner’s vague claims. (Doc. 53 ¶ 8). Hitner asserts that defendants Reese and

Newberry did not complete an informal investigation. (Doc. 60 ¶ 8).

On July 6, 2019, a third-party inmate, Shannon DeGeorge, attacked Hitner in

the yard with two razors molded to a toothbrush. (Doc. 53 ¶ 9; Doc. 60 ¶ 9; Doc. 53-1,

Hitner Dep. at 20, N.T. 19:23-24). As a result of the attack, Hitner avers that he

suffers from post-traumatic stress disorder and has scars on his neck and face.

(Doc. 42 ¶ 4). This attack occurred approximately ten months after Hitner’s report

in September 2018. (Doc. 53 ¶ 2; Doc. 60 ¶ 2). Hitner knew the third-party inmate

incidentally prior to the attack on July 6, 2019. (Id. ¶ 10). The third-party inmate

never made any threat to Hitner prior to the attack on July 6, 2019. (Id. ¶ 11). To

Hitner’s knowledge, the third-party inmate was not a member of the DMI gang. (Id.

¶ 12). The parties dispute whether the third-party inmate was incarcerated at SCI-

Frackville in September 2018, when Hitner made his report. (Id. ¶ 13). Hitner

claims that the third-party inmate had a history of stabbing people and behavior

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management issues. (Id. ¶ 14). Other than his deposition testimony, Hitner

provides no evidence as to whether the inmate who attacked him was a member of

the DMI gang, was hired by the DMI gang to attack Hitner, or that the third-party

inmate was present at the prison when he made the report to defendants in

September 2018. (Id. ¶ 15).

Defendants Mackey, Jordan, and Erdley were working at SCI-Frackville on

July 6, 2019. (Id. ¶ 16). The parties dispute whether defendants Mackey, Jordan,

and Erdley were working in the metal detector building on July 6, 2019. (Doc. 57-1

at 3 ¶ 1; Doc. 63 ¶ 1). Defendants maintain that there is no record of which

correctional officers were assigned to work within the metal detector building in the

yard at SCI-Frackville on July 6, 2019, at 1:00 p.m. (Doc. 53 ¶ 17). Hitner has

submitted a witness statement identifying defendants Mackey, Jordan, and Erdley

as the correctional officers working in the metal detector building at SCI-Frackville

on July 6, 2019 at 1:00 p.m. (Doc. 60 ¶ 17; Doc. 40-1).

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that

do not present a “genuine dispute as to any material fact” and for which a jury trial

would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of

proof tasks the non-moving party to come forth with “affirmative evidence, beyond

the allegations of the pleadings,” in support of its right to relief. Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most

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favorable to the non-moving party and draw all reasonable inferences in that party’s

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

evidence must be adequate, as a matter of law, to sustain a judgment in favor of the

non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-

57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89

(1986). Only if this threshold is met may the cause of action proceed. See Pappas,

331 F. Supp. 2d at 315.

Courts are permitted to resolve cross-motions for summary judgment

concurrently. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008); see

also Johnson v. Fed. Express Corp., 996 F.Supp.2d 302, 312 (M.D. Pa. 2014); 10A

Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 2015).

When doing so, the court is bound to view the evidence in the light most favorable

to the non-moving party with respect to each motion. FED. R. CIV. P. 56; Lawrence,

527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir.

1968)).

III. Discussion

A. Qualified Immunity

The doctrine of qualified immunity protects a state actor who has committed

a constitutional violation if the plaintiff’s rights were not “clearly established” when

the individual acted. Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). “Qualified

immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials

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from harassment, distraction, and liability when they perform their duties

reasonably.” Id. at 231. “Thus, so long as an official reasonably believes that his

conduct complies with the law, qualified immunity will shield that official from

liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555

U.S. at 244). The burden to establish qualified immunity rests with the defendant

claiming its protection. Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir.

2001).

A qualified immunity determination involves a two-pronged inquiry: (1)

whether a constitutional or federal right has been violated; and (2) whether that

right was “clearly established” at the time of the alleged violation. Saucier v. Katz,

533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting

federal courts to exercise discretion in deciding which of the two Saucier prongs

should be addressed first). In addressing Hitner’s Eighth and Fourteenth

Amendment claims, we only reach the first prong of the qualified immunity

analysis.

B. Eighth Amendment Claim

The Eighth Amendment requires a prison official to “take reasonable

measures to protect prisoners from violence at the hands of other prisoners.”

Farmer v. Brennan, 511 U.S. 825, 833 (1994). While a prison official has a duty to

protect prisoners from attacks by other prisoners, not every injury suffered by a

prisoner at the hands of another translates to constitutional liability for the official

responsible for the prisoner’s safety. Id. at 833-34. An inmate making a failure to

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protect claim has the burden of proof to establish that a prison official both knew of

and chose to disregard an “excessive risk to inmate health or safety.” Beers-Capitol

v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001) (citing Farmer, 511 U.S. at 837). The

United States Court of Appeals for the Third Circuit has further held that the

knowledge requirement is subjective, “meaning that the official must actually be

aware of the existence of the excessive risk; it is not sufficient that the official

should have been aware.” Id.; see Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.

1997). Actual knowledge can be proven circumstantially where the general danger

was obvious. Farmer, 511 U.S. at 842. For example, if the prisoner-plaintiff

presents evidence showing that a substantial risk of inmate attacks

was longstanding, pervasive, well-documented, or expressly noted by

prison officials in the past, and the circumstances suggest that the

defendant-official being sued had been exposed to information

concerning the risk and thus must have known about it, then such

evidence could be sufficient to permit a trier of fact to find that the

defendant-official had actual knowledge of the risk.

Id. at 842-43 (quotation marks and citation omitted). However, “a defendant can

rebut a prima facie demonstration of deliberate indifference either by establishing

that he did not have the requisite level of knowledge or awareness of the risk, or

that, although he did know of the risk, he took reasonable steps to prevent the harm

from occurring.” Beers-Capitol, 256 F.3d at 133.

Here, Hitner alleges that defendants failed to protect him from inmate

DeGeorge, who allegedly attacked him with two razors molded to a toothbrush.

Hitner asserts that, prior to this incident, he warned defendants Reese and

Newberry about threats of violence from gang members at SCI-Frackville.

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Specifically, he contends that he submitted request to staff member forms to

defendants Reese and Newberry in September of 2018. Defendants argue that

Hitner’s claim must fail because he never reported any threat made by the third-

party inmate to him to any of the defendants, he has not established that the third-

party inmate posed a serious risk of harm to him and that they were aware of any

such threat of harm. (Doc. 54 at 15-16).

The uncontroverted record reflects that Hitner’s request to staff member

forms did not mention inmate DeGeorge and did not alert defendants about any

danger posed by inmate DeGeorge. (Doc. 53-3 at 8-9). Based on Hitner’s own

account, the request to staff member forms merely stated that he was in danger

after a threat by DMI gang members. (Id.) Hitner has not provided any specific

details of what, if anything, he told prison officials about inmate DeGeorge and has

not provided any evidence that inmate DeGeorge threatened him or was prone to

violence against him. Importantly, Hitner admits that inmate DeGeorge was not

even a member of the DMI gang. (Doc. 53 ¶ 12; Doc. 60 ¶ 12; Doc. 53-1, Hitner Dep.

at 35, N.T. 34:4-6). At his deposition, Hitner testified that he did not have any

previous problems with inmate DeGeorge, inmate DeGeorge never threatened him,

and he did not view him as a threat. (Doc. 53 ¶¶ 10, 11; Doc. 60 ¶¶ 10, 11; Doc. 53-1,

Hitner Dep. at 21-22, N.T. 20:25-21:14). He further testified that he had a friendly

relationship with inmate DeGeorge, he was not worried to be in his presence, and

when inmate DeGeorge attacked him, Hitner was “caught . . . off guard.” (Doc. 53-1,

Hitner Dep. at 21-22, N.T. 20:3-21:14). Additionally, the incident wherein Hitner

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alleges that he was threatened by DMI gang members was ten months before his

assault. From September 12, 2018—the date Hitner submitted the request to staff

member forms—to July 6, 2019—the date of the assault, Hitner does not appear to

have had any contact with prison staff about this issue. (See generally Doc. 53-3).

Moreover, Hitner has not provided any evidence to refute defendants’ document

that inmate DeGeorge was not even incarcerated at SCI-Frackville when Hitner

made his report in September of 2018. (Doc. 53-3 at 4). The alleged threat and the

assault are too temporally remote to constitute deliberate indifference in violation

of the Eighth Amendment. These instances were nearly one year apart with little to

connect them aside from Hitner’s subjective sense that they were related and

inmate DeGeorge’s alleged statement that he was acting on behalf of the DMI gang.

Even if defendants were aware that inmate DeGeorge had a history of

violence, the Third Circuit has held that the risk that “an inmate with a history of

violence might attack another inmate for an unknown reason” is too speculative to

maintain a failure to protect claim against prison officials. Bistrian v. Levi, 696 F.3d

352, 371 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d

Cir. 2020). The Third Circuit reiterated this, affirming a grant of summary

judgment to prison officials even where the inmate had reported a prior attack to an

unnamed guard. See Zuniga v. Chamberlain, 821 F. App’x 152, 157 n.8 (3d Cir.

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2020).3 In the instant case, the record establishes that the assault by inmate

DeGeorge was not the product of “longstanding, pervasive, well-documented, or

previously noted tensions between” Hitner and inmate DeGeorge. Blackstone v.

Thompson, 568 F. App’x 82, 84 (3d Cir. 2014).

Hitner further asserts that defendants Mackey, Jordan, and Erdley were

working in the yard metal detector building and allowed inmate DeGeorge to pass

through the metal detectors with a shank. He has submitted the declaration of a

fellow inmate identifying defendants Mackey, Jordan, and Erdley as the

correctional officers working in the yard metal detector building on July 9, 2019 at

1:00 p.m. (Doc. 40-1). However, Hitner has failed to establish that defendants

Mackey, Jordan, and Erdley knowingly allowed inmate DeGeorge to enter the yard

with a weapon or that they were aware of and disregarded any specific threat of

harm prior to the attack. Nor did Hitner plead that inmate assaults regularly

occurred in the prison yard, such that the prison officials should have been aware of

a risk of harm. While courts have entertained failure-to-protect claims based on the

failure to use metal detectors, those cases involved allegations that prison officials

had knowledge of a pervasive problem with prior attacks and showed deliberate

indifference by failing to use metal detectors to prevent subsequent attacks. See,

e.g., Warren v. Goord, 476 F. Supp. 2d 407, 411 (S.D.N.Y. 2007) (denying a motion to

3 The court acknowledges that nonprecedential decisions are not binding

upon federal district courts. Citations to nonprecedential decisions reflect that the

court has carefully considered and is persuaded by the panel’s ratio decidendi.

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dismiss a claim that a metal detector would have prevented the inmate’s attack,

where the inmate had alleged that the defendants were “aware that assaults and

stabbings regularly took place in the prison yards,” that weapons were often stored

in the yards, and that an inmate had previously been killed in the yard for lack of

metal detectors); cf. Emile v. SCI-Pittsburgh, No. 2:04-cv-974, 2008 WL 4190782, at

*6 (W.D. Pa. Sept. 10, 2008) (granting summary judgment based on the lack of

“evidence [ ] show[ing] that [the defendants] w[ere] aware of a pervasive risk of

inmate attacks from metal objects in the exercise yards”); Hannah v. Vanguilder,

No. 08-cv-441, 2010 WL 1372385, at *5 (N.D.N.Y. Feb. 11, 2010) (recommending, inter

alia, that the court grant summary judgment on a claim that a prison facility

implemented a policy or custom under which metal detectors were used

sporadically, noting that, “[a]t best, [the plaintiff had] assert[ed] that defendants

were negligent in failing always to use the metal detectors”), report and

recommendation adopted, No. 9:08-cv-441, 2010 WL 1404276 (N.D.N.Y. Apr. 7, 2010).

Hitner fails to meet the deliberate indifference standard under the Eighth

Amendment as he only sets forth facts against defendants Mackey, Jordan, and

Erdley amounting to mere negligence. See Burton v. Kindle, 401 F. App’x 635, 637-

38 (3d Cir. 2010) (finding inmate plaintiff failed to allege the prison official behaved

with deliberate indifference because his complaint did not set forth any facts

suggesting the official personally knew another inmate would attack him and noting

that mere negligent conduct is not actionable under § 1983).

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The record would not permit a reasonable factfinder to conclude that

defendants knew that inmate DeGeorge posed a risk of harm to Hitner and

deliberately ignored that risk. Therefore, summary judgment in favor of defendants

is appropriate. Because Hitner failed to establish an Eighth Amendment violation,

defendants are entitled to qualified immunity.

C. Fourteenth Amendment Claim

In the amended complaint, Hitner alleges that defendants Mackey, Jordan,

and Erdley violated his “equal protection rights to be free from cruel and unusual

punishment under the 8th Amendment.” (Doc. 19 ¶ 18). Defendants have thus

construed the amended complaint as asserting a Fourteenth Amendment equal

protection claim. (Doc. 54 at 20-21).

The Equal Protection Clause of the Fourteenth Amendment provides that a

state may not “deny to any person within its jurisdiction the equal protection of the

laws,” which is essentially a direction that all persons similarly situated should be

treated alike. U.S. CONST., amend. XIV; City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202, 216 (1982)). An equal

protection claim can be brought by a “class of one,” a plaintiff alleging that he has

been “intentionally treated differently from others similarly situated and that there

is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech,

528 U.S. 562, 564 (2000); Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003); see also

Jean-Pierre v. Bureau of Prisons, 497 F. App’x 164, 168 (3d Cir. 2012). If a

distinction between persons does not implicate a suspect or quasi-suspect class,

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state action will be upheld if it is rationally related to a legitimate state interest. See

Tillman, 221 F.3d at 423. Proof of disparate impact alone, however, is not sufficient

to succeed on an equal protection claim; a plaintiff also must prove that the

defendant intended to discriminate. See Vill. of Arlington Heights v. Metro.

Housing Dev. Corp., 429 U.S. 252, 264-66 (1977); Washington v. Davis, 426 U.S. 229,

242, 244-45 (1976). Thus, discriminatory intent must be a motivating factor in the

decision, even though it need not be the sole motivating factor. See Vill. of

Arlington Heights, 429 U.S. at 265-66. Moreover, to prove a lack of rational basis, a

plaintiff must negate every conceivable rational basis for his differential treatment.

See Bd. of Trustees v. Garrett, 531 U.S. 356, 367 (2001); Ramsgate Court Townhome

Ass’n v. West Chester Borough, 313 F.3d 157, 160 (3d Cir. 2002).

Prisoners do not constitute a protected class for Fourteenth Amendment

purposes. See Myrie v. Comm’r, N.J. Dep’t of Corr., 267 F.3d 251, 263 (3d Cir. 2001).

Furthermore, Hitner has not adequately alleged that he was treated differently

from others who were similarly situated. See Phillips v. Cty. of Allegheny, 515 F.3d

224, 243 (3d Cir. 2008) (to state an equal protection claim on a “class of one” theory,

“a plaintiff must allege that (1) the defendant treated him differently from others

similarly situated, (2) the defendant did so intentionally, and (3) there was no

rational basis for the difference in treatment”).

In Crawford-El v. Britton, 523 U.S. 574 (1998), in noting that summary

judgment serves as the ultimate screen to “weed out truly insubstantial lawsuits

prior to trial,” the Supreme Court held that in order to overcome summary

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judgment on a § 1983 claim where intent is an element of the claim, “the plaintiff

may not respond simply with general attacks upon the defendant's credibility, but

rather must identify affirmative evidence from which a jury could find that the

plaintiff has carried his or her burden of proving the pertinent motive.” Id. at 600

(citing Anderson, 477 U.S. at 256-57).

Hitner appears to assert that defendants Mackey, Jordan, and Erdley

intentionally treated him differently when they allowed an inmate to bring a shank

into yard. However, his deposition testimony and his declaration do not provide

affirmative evidence of intent, and do not address an equal protection claim.

Additionally, in his brief in opposition to defendants’ motion for summary

judgment, Hitner neglected to address the equal protection claim. Hitner’s equal

protection statement is speculative, wholly conclusory, and unaccompanied by any

corroborating facts or affirmative evidence of defendants’ intent. “[A] complete

failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Allegations

made without any evidentiary support may be disregarded. See Jones v. UPS, 214

F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d

654, 657 (3d Cir. 1990) (stating “[U]nsupported allegations . . . and pleadings are

insufficient to repel summary judgment.”). Hitner’s equal protection claim simply

has no evidentiary support. Accordingly, the court will grant defendants’ motion

for summary judgment with respect to the Fourteenth Amendment equal

protection claim.

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IV. Conclusion

Defendants’ motion (Doc. 52) for summary judgment will be granted and

plaintiff’s motions (Docs. 41, 47) for summary judgment will be denied. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: August 15, 2022