# Nichols v. Konycki

> District Court, M.D. Pennsylvania · September 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10413838

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413838

## How later opinions describe it (automated extraction)

- explaining judges should give some review to every report and recommendation

## Opinion text

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

| Se
' 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.
-4-

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

-7-

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.

-8-

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.

_9-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413838. Public record. Not legal advice.