Nichols v. Konycki

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

AARON J. NICHOLS, et al., :

Plaintiffs : CIVIL ACTION NO. 4:21-218

V. : (MANNION, D.J.)

(ARBUCKLE, M.J.)

C.0. KONYCKI, et a/., :

Defendants :

MEMORANDUM

Pending before the court is the report of the magistrate judge to whom

this matter was referred, which recommends that the defendants’ motion to

dismiss the plaintiffs’ amended complaint be granted in part and denied in

part. Specifically, it is recommended that the plaintiffs’ official capacity claims

against all defendants be dismissed, the plaintiffs’ Eighth and Fourteenth

Amendment excessive force claim against defendant Konycki be dismissed,

and all other claims be permitted to proceed. (Doc. 42).

The defendants have filed objections to the report and

recommendation. In their objections, the defendants first argue that the

magistrate judge erred in liberally construing the plaintiffs’ counseled

amended complaint as presenting legal claims against some defendants that

were not expressly delineated by counsel. Second, the defendants argue

that, even if liberal construction is proper, the magistrate judge erred in

making an improper inference from one fact asserted against some

defendants as against all defendants. The defendants request the court to

conduct a de novo review and modify the recommendation by allowing only

a deliberate indifference to medical claim and conditions of confinement

claim against defendants Konycki and Scott to proceed unless the plaintiffs

appropriately amend their complaint. (Doc. 44). The plaintiffs have neither

filed objections to the report, nor responded to the defendants’ objections.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. [1636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

Where no objection is made to a report and recommendation, the court

should, as a matter of good practice, “satisfy itself that there is no clear error

on the face of the record in order to accept the recommendation.” Fed. R.

Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v.

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Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing

Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges

should give some review to every report and recommendation)).

Nevertheless, whether timely objections are made or not, the district court

may accept, not accept, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1);

Local Rule 72.31.

By way of relevant background, on February 6, 2021, the plaintiffs, four

individuals formerly confined at the State Correctional Institution at Retreat,

(“SCl-Retreat”)', through counsel, filed a complaint alleging violations of their

Eighth and Fourteenth Amendment rights in relation to a pepper spray

incident at that facility. (Doc. 1). The complaint named Correctional Officers

Corey Konycki, Gregory Scott and Justin Kerschner? as the “Individual

Defendants” in this action. In addition, the plaintiffs named “the correctional

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' Since the filing of this action, plaintiff Nichols was released from

confinement and the remaining plaintiffs are incarcerated at other facilities.

(Doc. 24).

2 Defendant Kerschner has not in any way participated in these

proceedings and default has been entered against him by the Clerk of Court.

(Doc. 30). As noted by the magistrate judge, the plaintiffs filed a motion for

default judgment against defendant Kerschner. The motion was denied,

without prejudice, with a finding that it was more appropriate to rule on the

default judgment issue once the claims against the non-defaulting parties are

resolved. (Doc. 40, Doc. 41).

officers that worked third shift on the night of the pepper spray incident on

the same range who the Plaintiffs expect to identify in discovery” and

“supervisory members and/or officials of the Pennsylvania Department of

Corrections (hereinafter, “the DOC”) who the Plaintiffs expect to identify in

discovery.” (Doc. 1, p. 2).

Over one year later, after a period of discovery between the parties, on

May 6, 2022, the plaintiffs, again through counsel, filed an amended

complaint. In the amended complaint, defendants Konycki, Scott and

Kerschner are again designated as the “Individual Defendants’. In addition,

the plaintiffs identified “the correctional officers that worked third shift on the

night of the pepper spray incident on the same range” as David Stockholm

and Clayton Yost. Finally, the plaintiffs identified “the supervisory members

and/or officials of the Pennsylvania Department of Corrections (hereinafter,

“the DOC”)’, as defendants Ronald Bronsburg, Donald Klick and Michael

Wassel.

Factually?, the counseled amended complaint reads as follows:

24. On Super Bowl Sunday, February 2, 2020 at SCI

Retreat in Luzerne County, Pennsylvania at or around 7 pm the

3 The amended complaint contains an “Introduction” section (Doc. 24,

pp. 2-4) and a “Factual Background” section (Doc. 24, pp. 6-8), which set

forth nearly identical allegations. For purposes of the instant memorandum,

the court has taken the plaintiffs’ factual allegations from the “Factual

Background” section of the amended complaint.

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Plaintiffs where in two locked jail cells adjacent to each other on

Range number 2 of the FA Unit.

25. Defendants Konycki, Scott and Kerschner were on duty

on Range number 2 of the FA Unit at 7 pm on February 2, 2020.

26. The Defendants Konycki, Scott and Kerschner had

access to a utility breezeway located behind the Plaintiffs’ jail

cells.

27. Konycki handed Kerschner a canister of chemical

oleoresin capsicum pepper spray (hereinafter, the “pepper

spray”) and Kerschner entered said breezeway and admittedly

sprayed the pepper spray through holes in walls of the Plaintiffs’

jail cells for no justifiable reason.

28. The pepper spray hit the Plaintiffs in the face and chest

and got into their eyes and lungs.

29. Plaintiffs were in distress and requested medical help

but were denied not only by the Individual Defendants but also

by the correctional officers that worked the subsequent shift.

30. Plaintiffs’ conditions were worsened by having only a

small meal tray hole in which to try to breath fresh air.

31. Plaintiffs’ conditions were also worsened by having the

water shut off by Kerschner so they could not wash the pepper

spray from their eyes.

32. Plaintiffs suffered for approximately twelve (12) hours

until two correctional officers who started first shift the next day

discovered the conditions and took them for medical treatment

and documentation while their jail cells were decontaminated of

the pepper spray.

33. The violations of Plaintiffs’ rights that are described in

this Complaint arose from the policies and customs of the

supervisory members and/or officials of the Pennsylvania

Department of Corrections, as implemented by the Individual

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Defendants and other Correctional Officers, to allow and/or

condone the practices to which they complain of herein.

34. Plaintiffs were physically injured by the above-

described actions and/or inactions of the Defendants.

(Doc. 24, pp. 6-8).

Based upon these factual allegations, the plaintiffs identify one single

count in their amended complaint. That count sets forth violations of the

Eighth and Fourteenth Amendments pursuant to 42 U.S.C. §1983 against

the “Individual Defendants.” Here, the plaintiffs provide, in relevant part, that

“fo]n February 20, 2020, all four Plaintiffs were viciously assaulted by

Kerschner with the assistance of his accomplice, Konycki, through the use

of pepper spray without any justifiable reason for doing.” The plaintiffs allege

that they “were then denied medical assistance by the Defendants of that

range and/or the supervisors of that evening and night,” were “also denied

water in their jail cells that was needed to flush the pepper spray from their

eyes,” and “were stuck in the contaminated jail cells without proper air to

breathe for approximately twelve hours.” The plaintiffs allege that the acts of

“the Defendants” were intentional and outrageous, such that a reasonable

person, upon being told of them, would find the acts intolerable in a civilized

society.

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The defendants moved to dismiss the plaintiffs’ complaint arguing that:

(1) the plaintiffs failed to plausibly allege facts showing defendant Konycki

“assisted” defendant Kerschner to violate their rights; (2) the plaintiffs failed

to plausibly allege facts showing defendants Konycki, Scott, Stockholm,

Yost, Bronsburg, Klick, and Wassel violated the Eighth Amendment by

“denying” medical assistance, access to water, or a transfer out of the pepper

spray “contaminated” cell; and (3) the plaintiffs’ amended complaint,

independently, seeks relief unavailable in a §1983 action by virtue of the

Eleventh Amendment. (Doc. 37).

In considering the defendants’ motion to dismiss, despite

acknowledging that the plaintiffs’ complaint contains only one unspecified

Eighth and Fourteenth Amendment count against the “Individual

Defendants”, who were specifically identified by the plaintiffs as defendants

Konycki, Scott and Kerschner, the magistrate judge liberally construed this

count to assert six separate legal claims. These claims were identified as

Eighth and Fourteenth Amendment claims for excessive force against

defendants Kerschner and Konycki for the use of pepper spray; Eighth and

Fourteenth Amendment claims for denial of access to medical care following

the exposure to pepper spray against all defendants; and Eighth and

Fourteenth Amendment claims for unconstitutional conditions of confinement

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based on the plaintiffs’ allegations that their cells were contaminated by

pepper spray and without running water against all defendants.

As to the arguments raised in the defendants’ motion, the magistrate

judge agreed that the plaintiffs’ excessive force claim against defendant

Konycki should be dismissed. Specifically, it was found that the plaintiffs did

not adequately plead that defendant Konycki conspired with defendant

Kerschner to use excessive force. Moreover, it was found that the plaintiffs

did not adequately plead a claim that defendant Konycki failed to intervene

in defendant Kerschner’s use of force. Finally, it was found that the plaintiffs

did not adequately plead that defendant Konycki was personally involved in

the use of force. The magistrate judge therefore recommends that the

plaintiffs’ Eighth and Fourteenth Amendment excessive force claims against

defendant Konycki should be dismissed.

Moreover, as the defendants argued and the plaintiffs conceded, the

magistrate judge found that all official capacity claims should be dismissed.

The plaintiffs acknowledged that they are not pursuing any claim against the

defendants in their official capacity, or against the Department of Corrections

or the Commonwealth of Pennsylvania. It was therefore recommended that

all official capacity claims against all defendants be dismissed.

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Next, the magistrate judge determined that the plaintiffs have pleaded

plausible medical care and conditions of confinement claims against all

defendants. It is pointed out that, after the use of pepper spray, the plaintiffs

allege that they were in distress and requested, but were denied, medical

assistance or help from defendants Konycki, Kerschner, Scott, Stockholm

and Yost. The magistrate judge noted that courts in the Third Circuit have

acknowledged that a lay person could readily recognize that an individual

exposed to pepper spray needs some medical assistance to alleviate the

effects of the spray, and further, it is unlikely as a matter of common sense

that the odor of pepper spray would escape the notice of corrections officers

doing regular rounds through a facility. As such, the magistrate judge found

that the plaintiffs alleged sufficient facts to state a plausible claim that all

defendants were deliberately indifferent to a serious medical need and

substantial risk of harm. Addressing an alternative argument on the

inadequate medical care claim, the magistrate judge determined that, given

the type of injury, the length of delay in treatment, and the early stage of the

proceedings in this case, the plaintiffs have alleged a plausible denial of

medical care claim against all defendants. Therefore, the magistrate judge

recommends that these claims be permitted to proceed as to all defendants.

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Finally, the magistrate judge indicated that the plaintiffs should be

permitted to file a second amended complaint as it was not clear whether

amendment would be futile with respect to the plaintiffs’ excessive force

claim against defendant Konycki. He therefore recommends that the

plaintiffs be granted leave to file a second amended complaint.

As set forth above, the defendants have filed objections to the report

and recommendation. In their objections, the defendants first assert that the

magistrate judge improperly liberally construed the amended complaint as

presenting legal claims against some defendants that were not expressly

delineated by counsel. The defendants argue that the only claims which

should be allowed to proceed are a deliberate indifference to medical claim

and conditions of confinement claim against defendants Konycki and Scott

unless the plaintiffs properly amend their complaint to include separate

claims against the other defendants. The court agrees.

Despite acknowledging that the amended complaint contains only one

count against the “Individual Defendants,” which the plaintiffs themselves

have identified as defendants Konycki, Scott and Kerschner, the magistrate

judge liberally construed that single count to contain six separate legal claims

against all defendants. While the court has a duty to liberally construe pro se

pleadings and submissions, Haines v. Kerner, 404 U.S. 519 (1972), it has no

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such duty to liberally construe inartful pleadings or submissions by counsel.

Thus, the plaintiffs’ amended complaint should have been construed as

presented by counsel — as setting forth one count for Eighth and Fourteenth

Amendment violations against the “Individual Defendants”, i.e., defendants

Konycki, Scott and Kerschner only. While certain facts are alleged as to

defendants Stockholm, Yost, Bronsburg, Klick, and Wassel, no claims are

asserted with respect to these defendants. Therefore, the defendants’

motion to dismiss should have been granted with respect to these

defendants.* The court agrees with the magistrate judge, however, that there

is no showing that allowing plaintiffs to file a second amended complaint

would be futile or inequitable. The defendants themselves; seem to point in

that direction when they indicate that “only a deliberate indifference to

medical claim and conditions of confinement claim against Defendants

Konycki and Scott [should] proceed, unless Plaintiffs appropriately amend

their complaint.” (Doc. 44, p. 2).

On the basis of the foregoing, the defendants’ initial objection to the

report and recommendation will be sustained. The report and

4 To the ‘extent that the court has sustained the defendants’ first

objection, the court need not address the defendants’ second objection

which argues in the alternative to the extent that the court allows the liberal

construction of the pleading.

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recommendation will be adopted in part and not adopted in part. The report

will be adopted to the extent that: (1) the plaintiffs’ official capacity claims

against all defendants will be dismissed; (2) the plaintiffs’ Eighth and

Fourteenth Amendment excessive force claim against defendant Konycki will

be dismissed; and (3) to the extent they wish to do so, the plaintiffs will be

permitted to file a second amended complaint. The report will not adopted to

the extent it construes the plaintiffs’ amended complaint as bringing any

claim other than Eighth Amendment and Fourteenth Amendment deliberate

indifference to medical claim and conditions of confinement claim against

defendants Konycki, Scott and Kerschner. An appropriate order shall issue.

pln

MALACHY E. MANNION

United States District Judge

DATE: September 28, 2023

21-218-01

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