Mateo v. Waltz

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

FRANCISCO MATEO, #QE7489,

Plaintiff, CIVIL ACTION NO. 3:21-cv-00552

v. (SAPORITO, M.J.)

SERGEANT DANIEL WALTZ,

et al.,

Defendants.

MEMORANDUM

This is a fee-paid § 1983 federal civil rights action for damages,

brought by an incarcerated plaintiff, Francisco Mateo, appearing through

counsel. The plaintiff claims that the defendants—Sergeant Daniel

Waltz, Correctional Officer Dustin Gonzalez, and Correctional Officer

Chris Wolfe—used excessive force in connection with a cell extraction

that occurred on May 14, 2019. As a result of a so-called “bend over” or

“escort” restraint technique used by the defendants on Mateo while he

was restrained in handcuffs and incapacitated by OC spray,1 Mateo

1 “OC spray, commonly known as pepper spray, is a nonlethal

aerosol used to blind and incapacitate temporarily in order to subdue a

subject for arrest.” , 934 F.3d 1169, 1173 n.1

(11th Cir. 2019); , 250 F.3d 843, 849 (4th Cir. 2001)

(describing the physiological effects of OC spray).

suffered a serious injury to his shoulder, which ultimately required

surgical treatment, and which nevertheless caused residual permanent

impairment.

At the time of this incident, Mateo was a pretrial detainee,

incarcerated at the Lebanon County Correctional Facility. His cellmate—

who also happened to be his brother, Gabriel Jimenez—refused to comply

with staff instructions to “secure in his cell.”2 As a consequence, Waltz

ordered that Jimenez be relocated to a medical isolation cell, and a seven-

member cell extraction team, lead by Waltz, was assembled.

Due to Jimenez’s continued noncompliance,3 Waltz deployed OC

spray into the cell to gain compliance. After a few minutes, both Jimenez

and Mateo submitted to being handcuffed through the port in their cell

door.

Mateo and his cellmate were then removed from their cell by

2 Based on the context, we understand this to mean that Jimenez

refused to turn around and place his hands behind his back and through

a port in the cell door for correctional staff to secure with handcuffs.

3 The defendants contend that Mateo was also noncompliant, but

he has disputed this, citing his own deposition testimony, in which he

testified that the conversation was strictly between Waltz and Jimenez,

and that he had previously expressed his willingness to comply to

another correctional officer at the cell door.

members of the cell extraction team to be escorted to decontamination

closets. Mateo was physically removed from the cell and escorted by

Gonzalez and Wolfe, with Gonzalez on Mateo’s right-hand side and Wolfe

on Mateo’s left-hand side. The escorting correctional officers used a “bend

over” or “escort” hold. At their depositions, the defendants testified that

the purpose of this technique is to keep the inmate off balance and to

keep the escorting officers balanced, ensuring the safety of the escorting

officers. They testified that the technique is utilized by the officers

bending the handcuffed inmate over at the waist and pressing down on

his shoulders, thereby lifting the inmate’s elbows and keeping the inmate

bent over as he walks.

Gonzalez and Wolfe utilized the “bend over” hold over a period of

about one minute as they escorted Mateo from his cell to a

decontamination closet. While being escorted, Mateo was subdued and

fully compliant with instructions. Waltz ordered the escorting officers to

bend him over twice, and then a few moments later, he ordered them to

“bend him down more.” At his deposition, Mateo testified that, at some

point while being escorted to the decontamination closet, he told the

guards that he was hurt, saying “Ow, it hurts.”

After decontamination, Mateo was escorted to a medical isolation

cell. He was not seen by medical staff, however, until four days later.

Beginning the day after the cell extraction, Mateo experienced

recurrent and painful shoulder dislocations. The first time his shoulder

dislocated was the day after the cell extraction, when he tried to do

pushups. He began to complain about the injured shoulder and was seen

by medical staff. Within ten days after the cell extraction, he was seen by

an orthopedic physician. After medical imaging, he was diagnosed with a

glenoid labral tear and possible Bankart lesion. By November 2019, he

underwent surgery to repair the injured shoulder.4

Among the exhibits submitted into the record on summary

judgment is a handheld digital video recording of the cell extraction. It

does not depict all of the events concerning Mateo, however, as the

camera operator followed Jimenez when the two inmates were split up,

about one minute after the cell extraction.

I. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary

4 We note that the complaint alleges that Mateo continues to have

a significantly impaired range of motion in the injured shoulder, post-

surgery.

judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome

of the case. , 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” only if the evidence “is such that a

reasonable jury could return a verdict for the non-moving party.”

, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

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

movant’s, then the non-movant’s must be taken as true.”

, 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” , 477 U.S. at

251–52.

In evaluating a motion for summary judgment, the Court must first

determine if the moving party has made a prima facie showing that it is

entitled to summary judgment. Fed. R. Civ. P. 56(a); , 477 U.S.

at 331. Only once that prima facie showing has been made does the

burden shift to the nonmoving party to demonstrate the existence of a

genuine dispute of material fact. Fed. R. Civ. P. 56(a); , 477

U.S. at 331.

Both parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). “Although evidence may be considered in a which is

inadmissible at trial, the of the evidence must be capable of

admission at trial.” , 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); , 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

II. DISCUSSION

Mateo has asserted three distinct claims against the defendants:

(1) a Fourteenth Amendment substantive due process claim against all

three correctional officers for excessive use of force; (2) a Fourteenth

Amendment substantive due process claim against Waltz only for failure

to protect; and (3) state-law tort claims against Gonzalez and Wolfe only

for assault and battery. The defendants have moved for summary

judgment on all three sets of claims.

A. § 1983 Excessive Force Claim

Most of the briefing on this motion is focused on the appropriate

legal standard that governs Mateo’s § 1983 excessive force claim, which

is brought under the Fourteenth Amendment’s due process clause.5 In

their initial brief, the defendants champion a subjective standard:

“whether force was applied in a good-faith effort to maintain and restore

discipline, or maliciously and sadistically to cause harm.” In support,

5 As a pretrial detainee, Mateo was not subject to the Eighth

Amendment’s cruel and unusual punishment clause, which applies to

convicted prisoners only.

they cite a 2000 decision by the Third Circuit involving excessive force in

the pretrial detention context, , 206 F.3d 335 (3d Cir.

2000), together with several decisions applying the Eighth Amendment’s

subjective standard applicable to convicted prisoners only.6 They contend

that the force used by the defendants on May 14, 2019, was a

constitutionally permissible good-faith effort to restore discipline, rather

than an attempt to maliciously or sadistically cause harm.

In his brief in opposition, the plaintiff notes at the outset that the

subjective legal standard exclusively relied upon by the defendants was

inappropriate, as it had been expressly rejected by the Supreme Court of

the United States in a 2015 decision, , 576 U.S.

389 (2015). In , the Supreme Court squarely rejected the very

same subjective standard relied upon by the defendants here—“ , that

the plaintiff must prove that the use of force was not ‘applied in a good-

faith effort to maintain or restore discipline’ but, rather, was applied

6 The defendants cite , 503 U.S. 1 (1992),

, 204 F.3d 102 (3d Cir. 2000), , 475 U.S.

312 (1986), , Civil No. 3:11-CV-1431, 2016 WL 3621279

(M.D. Pa. Mar. 31, 2016), and , No. CIV. A. 92-4877, 1994

WL 463400 (E.D. Pa. Aug. 25, 1994), all of which concerned convicted

prisoners under an Eighth Amendment standard, not pretrial detainees.

‘maliciously and sadistically to cause harm.’” at 400. Instead, the

Supreme Court held that “a pretrial detainee must show only that the

force purposely or knowingly used against him was objectively

unreasonable.” at 396–97. The Supreme Court further explained:

A court (judge or jury) cannot apply this standard

mechanically. Rather, objective reasonableness turns

on the “facts and circumstances of each particular

case.” A court must make this determination from the

perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with

the 20/20 vision of hindsight. A court must also account

for the “legitimate interests that stem from the

government’s need to manage the facility in which the

individual is detained,” appropriately deferring to

“policies and practices that in the judgment” of jail

officials “are needed to preserve internal order and

discipline and to maintain institutional security.”

Considerations such as the following may bear on the

reasonableness or unreasonableness of the force used:

the relationship between the need for the use of force

and the amount of force used; the extent of the

plaintiff’s injury; any effort made by the officer to

temper or to limit the amount of force; the severity of

the security problem at issue; the threat reasonably

perceived by the officer; and whether the plaintiff was

actively resisting. We do not consider this list to be

exclusive. We mention these factors only to illustrate

the types of objective circumstances potentially

relevant to a determination of excessive force.

at 397 (citations and brackets omitted). Based on the foregoing, the

plaintiff argues, in essence, that the defendants have failed to make a

prima facie showing that they are entitled to summary judgment.

Fed. R. Civ. P. 56(a); , 477 U.S. 317, 323 (1986).

In their reply brief, the defendants make a misguided attempt to

rehabilitate their original argument, doubling down on the applicability

of a subjective legal standard. In an attempt to reconcile with

, they contend that

the Third Circuit Court of Appeals has recognized an

exception to this general rule when an excessive force

claim arises in the “context of a prison disturbance.”

, 206 F.3d 335, 347 (3d Cir. 2000). In

this context, the appellate court has held that the

Eighth Amendment’s cruel and unusual punishment

standard applies to a pretrial detainee’s excessive force

claim.

(Defs. Reply Br. 2, Doc. 35.)7 The reply brief then cites an additional

Eighth Amendment convicted-prisoner decision,8 a pre-

Fourteenth Amendment pretrial detainee decision utilizing the

subjective standard,9 and a post- decision that applied both

objective and subjective standards alternately because it was unclear

7 Although they did not cite it at this point in their reply brief, this

passage appears to be a verbatim copy of language in ,

Civil Action No. 19-4671, 2021 WL 2826439, at *3 (E.D. Pa. July 6, 2021).

8 , 475 U.S. 312 (1986).

9 , Civ. No. 10-893-LPS, 2011 WL 2119347 (D. Del.

May 26, 2011).

whether the plaintiff was a pretrial detainee or a convicted inmate.10 The

only post- pretrial detainee decision that supports the

defendants’ position is , Civil Action No. 19-4671, 2021

WL 2826439 (E.D. Pa. July 6, 2021), which reconciled with

in (literally) an identical manner as our defendants do here.

at *3.

About one month after our sister court decided , however, the

Third Circuit expressly recognized that the Supreme Court’s decision in

“abrogated the portion of that applied the Eighth

Amendment’s malicious-and-sadistic standard to pretrial detainees.”

, 8 F.4th 187, 194 n.5 (3d Cir. 2021).11 The

court explained:

In [ , 441 U.S. 520 (1979)], the Supreme

Court explained that “pretrial detainees, who have not

been convicted of any crimes, retain those

constitutional rights that we have held are enjoyed by

convicted prisoners.” Later, in [ , 490

U.S. 386 (1989)], the Court explained that it was “clear”

10 , Civil Action No. 19-CV-5763, 2020 WL

1244184 (E.D. Pa. Mar. 13, 2020).

11 We note that the defendants’ reply brief included in a

string citation together with and to support the

proposition that “a pretrial detainee must show not only that the force

was excessive, but that the force was applied maliciously and

sadistically.” (Defs. Reply Br. 3.) But holds the exact opposite.

that the Fourteenth Amendment protects pretrial

detainees from “the use of excessive force that amounts

to punishment.” But it was not always clear what the

punishment standard entailed.

Courts were left to decide whether the punishment

standard was objective . . . or subjective . . . . For

example, in , we held, in part, that

“the Eighth Amendment cruel and unusual

punishments standards apply to a pretrial detainee’s

excessive force claim arising in the context of a prison

disturbance.” Thus, in the context of a disturbance, we

required pretrial detainees to show not only that force

was excessive, but also that the force was applied

maliciously and sadistically. In such a case, the Eighth

and Fourteenth Amendment inquiries became

identical.

In 2015, [in ,] the Supreme Court clarified

that the subjective Eighth Amendment standard does

not apply to pretrial detainees. “The language of the

two Clauses differs, and the nature of the claims often

differs. And, most importantly, pretrial detainees

(unlike convicted prisoners) cannot be punished at all,

much less ‘maliciously and sadistically.’” Instead, the

Court held that “a pretrial detainee must show

that the force purposely or knowingly used against him

was objectively unreasonable.” The Court thus clarified

that the Fourteenth Amendment, like the Fourth,

exclusively employs an objective-reasonableness

standard.

at 194 (citations and alterations omitted).

Based on the foregoing, we find that the defendants have failed to

make a prima facie showing that they are entitled to summary judgment

on the plaintiff’s § 1983 excessive force claim. Fed. R. Civ. P. 56(a);

, 477 U.S. at 323. Moreover, based on the facts and evidence

of record, viewed in the light most favorable to the non-moving plaintiff,

we find that a reasonable jury could conclude that the force used on

Mateo in the wake of the cell extraction that occurred on May 14, 2019,

was objectively unreasonable. Under the circumstances presented, there

remain genuine disputes of material fact with respect to the relationship

between the need for the use of force and the amount of force used, the

extent of the plaintiff’s injury, the severity of the security problem at

issue, the threat reasonably perceived by the officers, and whether the

plaintiff was actively resisting. , 576 U.S. at 397. In

particular, it is beyond dispute that the use of allegedly excessive force

occurred the plaintiff and his cellmate had been subdued and

handcuffed, the parties dispute whether the plaintiff’s serious shoulder

injury was caused by this allegedly excessive force, and the plaintiff has

adduced evidence to suggest that, while his cellmate had actively

resisted, he did not.

B. Qualified Immunity Defense

Our inquiry with respect to the plaintiff’s § 1983 excessive force

claim does not end there. In addition to seeking summary judgment on

the merits of the plaintiff’s claim, the defendants have interposed the

affirmative defense of qualified immunity.12

“The doctrine of qualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” , 555 U.S.

223, 231 (2009) (internal quotation marks omitted). “Qualified immunity

balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Qualified immunity “provides ample

protection to all but the plainly incompetent or those who knowingly

violate the law.” , 475 U.S. 335, 341 (1986). “Thus, so long

as an official reasonably believes that his conduct complies with the law,

qualified immunity will shield that official from liability.”

, 669 F.3d 144, 159 (3d Cir. 2012) (citing , 555 U.S. at

244). Although qualified immunity is generally a question of law that

12 We note that the defendants have not raised the issue of qualified

immunity with respect to the plaintiff’s § 1983 failure to protect claim.

should be considered at the earliest possible stage of proceedings, a

genuine dispute of material fact may preclude summary judgment on

qualified immunity. , 571 F.3d 318, 325–26 (3d Cir. 2009).

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.” , 533

U.S. 194, 201 (2001), , 555 U.S. at 236

(permitting federal courts to exercise discretion in deciding which of the

two prongs should be addressed first). “The relevant, dispositive

inquiry in determining whether a right is clearly established is whether

it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” at 202. In the Third Circuit, it is the

party asserting the affirmative defense of qualified immunity who bears

the burden of persuasion. , 750 F.3d 273, 288 (3d Cir.

2014). Thus, the moving defendants must

show that there was no genuine dispute of material fact

to refute their contention that they did not violate [the

plaintiff’s] constitutional rights as he asserted them, or

show that reasonable officers could not have known

that their conduct constituted such a violation when

they engaged in it.

As discussed above, there exists a genuine dispute of material fact on

the merits of the plaintiff’s § 1983 excessive force claim. But the

defendants may nevertheless prevail on summary judgment with respect

to this claim under the second prong of the analysis.

“In determining whether a right has been clearly established, the

court must define the right allegedly violated at the appropriate level of

specificity.” , 669 F.3d at 159. If the right is defined too broadly, at

a high level of generality, it risks “convert[ing] the rule of qualified

immunity that our cases plainly establish into a rule of virtually

unqualified liability simply by alleging violation of extremely abstract

rights.” , 483 U.S. 635, 639 (1987). “We are thus

required to frame the right at issue in a more particularized, and hence

more relevant, sense, in light of the case’s specific context, not as a broad

general proposition.” , 800 F.3d 633,

638 (3d Cir. 2015) (citations and internal quotation marks omitted).

The contours of the right must be sufficiently clear that

a reasonable official would understand that what he is

doing violates that right. This is not to say that an

official action is protected by qualified immunity unless

the very action in question has previously been held

unlawful; but it is to say that in the light of pre-existing

law the unlawfulness must be apparent.

, 483 U.S. at 640 (citation omitted).

Here, the defendants suggest that the specific context is the use by

correctional officers of OC spray and the particular hold used in this

case—the “bend over” or “escort” hold—to transport an uncooperative

inmate during a high-risk extraction with his hands handcuffed behind

his back and held at an angle. ( Defs. Br. 13, Doc. 31; Defs. Reply Br.

5.) They argue that the plaintiff is unable to point to a prior decision

addressing identical facts.

At that level of specificity, there indeed appears to be no prior

caselaw. But this articulation of this case’s specific context would

effectively require us to find the defendants “protected by qualified

immunity unless the very action in question has previously been held

unlawful.” , 483 U.S. at 640. The plaintiff’s articulation of

the specific context is closer to the mark: whether a correctional officer

can raise a shackled pretrial detainee’s arms so high above his back that

it injures him. (Pl. Opp’n Br. 8, Doc. 33.) Ultimately, in the context of

summary judgment, where we are required to view the facts in the light

most favorable to the non-moving plaintiff, we find the specific context

presented to be whether a correctional officer can, while transporting a

physically restrained and nonthreatening pretrial detainee a cell

extraction has been completed, gratuitously twist the detainee’s shackled

arms behind and above his back so far or with sufficient force to dislocate

the inmate’s shoulder and seriously injure him.

Viewed in this context, it is apparent to us that any reasonable

officer would have known in May 2019 that this gratuitous forceful

twisting or contortion of a subdued detainee’s shackled arms was

unlawful. , 8 F.4th at 196–97 (finding that by February 2015

it was clearly established that a correctional officer may not strike or

otherwise use gratuitous force against a physically restrained and

nonthreatening pretrial detainee); , 623 F.3d 975,

990 (9th Cir. 2010) (Beezer, J., concurring in part) (noting that it was

clearly established “that causing fractures and dislocating shoulders

while handcuffing a suspect is excessive force”) (arrestee);

, 837 F.3d 444, 454 (5th Cir. 2016) (“We have little difficulty

concluding that in 2009, the time of the incident, it was well-established,

in sufficiently similar situations, that officers may not ‘use gratuitous

force against a prisoner who has already been subdued . . . [or]

incapacitated.’” (alteration in original)) (convicted prisoner);

, 779 F.3d 401, 419 (6th Cir. 2015) (“[S]ince at least 2009, the use of

violence against a subdued and non-resisting individual has been clearly

established as excessive, regardless of whether the individual had been

placed in handcuffs.”) (arrestee); , 571 F.3d at 326 (“[A]t the time of

the incident in 2001, it was established that an officer may not kick or

otherwise use gratuitous force against an inmate who has been

subdued.”) (convicted prisoner); , 297 F.3d 114, 121–22 (2d

Cir. 2002) (finding a reasonable jury could conclude that the use of force

sufficient to dislocate arrestee’s shoulder was excessive);

, 280 F.3d 1295, 1303 (11th Cir. 2002) (“By 1998, our precedent

clearly established that government officials may not use gratuitous force

against a prisoner who has been already subdued or, as in this case,

incapacitated.”) (convicted prisoner).

Accordingly, we find that the defendants have failed to meet their

burden of persuasion with respect to the affirmative defense of qualified

immunity.

C. § 1983 Failure to Protect Claim

The defendants seek summary judgment on the plaintiff’s § 1983

failure-to-protect claim against Waltz as well. They argue exclusively

that Waltz cannot be held liable for failure to protect because no excessive

force occurred. We have rejected that underlying premise on summary

judgment, however, finding that the issue must be left to the jury to

resolve based on evidence presented at trial. Thus, the defendants have

failed to demonstrate that they are entitled to judgment as a matter of

law on the plaintiff’s § 1983 failure to protect claim against Waltz.

D. State-Law Tort Claims

The defendants also seek summary judgment on the plaintiff’s

state-law tort claims against Gonzalez and Wolfe for assault and battery.

As this court has previously recognized, “incidental and necessary

touchings by correctional officers of inmates in the performance of their

duties are not batteries, but are privileged contacts.” ,

491 F. Supp. 1026, 1038 (M.D. Pa. 1980). Under Pennsylvania law,

“officials charged with the custody of prisoners are privileged to use force

which is reasonable under the circumstances to maintain control of their

charges.” ; , No. 1:17-CV-00016, 2017

WL 2778524, at *6 (M.D. Pa. June 27, 2017) (“While corrections officers

have the authority to use necessary force under appropriate

circumstances, the reasonableness of this force in relation to their

employment duties determines whether particular conduct is considered

an assault and battery.”). Thus, if a correctional officer uses reasonable

force necessary to carry out his duties, that amount of force when applied

to an inmate is not tortious. , 491 F. Supp. At 1041.

For the same reasons articulated above with respect to the

plaintiff’s § 1983 excessive force claim, based on the facts and evidence of

record, viewed in the light most favorable to the non-moving plaintiff, we

find that a reasonable jury could conclude that the quantum of force used

by the defendants was not reasonable under the circumstances. Thus,

there remains a genuine dispute of material fact on this issue.

III. CONCLUSION

For the foregoing reasons, the defendants’ motion for summary

judgment (Doc. 31) will be denied.

An appropriate order follows.

Dated: September 28, 2023

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge