HUTCHINSON v. OVERMYER

a IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

AKEEM HUTCHINSON, )

Plaintiff, Civil Action No. 19-0003E

) District Judge Susan Paradise Baxter

V. ) Magistrate Judge Maureen P. Kelly

MR. OVERMYER, Superintendant, D.F. ECF No. 41 and 49

OBERLANDER, Deputy Superintendant, MS. _ )

SHEESLEY, PSS, Individually and in their )

Official Capacities, )

Defendants.

_ MEMORANDUM ORDER

I. FACTUAL AND PROCEDURAL BACKGROUND □□

Plaintiff Akeem Hutchinson (“Plaintiff”) is an inmate at the State Correctional Institution

at Forest (“SCI — Forest”) in Marienville, Pennsylvania. Plaintiff has filed this civil rights action

pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 and alleges that Defendants Mr.

Overmyer, Superintendent of SCI — Forest, D.F. Oberlander, Deputy Superintendent, and Ms.

Sheesley, a psychologist employed at SCI — Forest, have acted in deliberate indifference

Plaintiff's serious mental health issues by failing to provide necessary treatment and in housing

him in the Restricted Housing Unit (“RHU”) despite his serious mental illness. Plaintiff alleges

these acts violate his rights under the Eighth and Fourteenth Amendments of the United States

Constitution. ECF No. 3.

Pending now are two self-styled non-dispositive motions that shall be construed by the

Court as Motions for a Preliminary Injunction. First, on September 24, 2019, Plaintiff filed a

“Motion for Help.” ECF No. 41. In this motion, Plaintiff alleges that he remains in SCI-Forest’s

RHU and is not receiving mental health treatment despite the deterioration of his mental illness.

In addition, Plaintiff claims that he has not been provided showers for over 90 days, has been

denied yard time for over 30 days, is being starved by inadequate food portions, and has had his

property and legal paperwork removed, lost, or intentionally misplaced. In addition, he claims that

staff are retaliating against him with false misconducts, cell searches, and negative comments. As

a result, Plaintiff states his life is in danger and his mental health is deteriorating. im addition,

Plaintiff states that his release date from DOC custody is in March 2020, and that he needs mental

health treatment and assistance with his transition back into society. Id. Accordingly, Plaintiff

seeks this Court’s assistance in obtaining appropriate care during his remaining months in DOC

custody.

On September 25, 2019, this Court ordered Defendants to respond to Plaintiff's Motion for

Help. ECF No. 45. Defendants filed their response on October 8, 2019, and provided the Court

with detailed information disputing each of Plaintiff's allegations as to the denial of mental health

treatment, showers, and yard time. ECF No. 48.

Based upon the evident conflicts raised by Defendants’ response and the serious nature of

Plaintiff's allegations, this Court scheduled a hearing for October 23, 2019, and required Plaintiff

to appear by video. ECF No. 46.

Thereafter, Plaintiff filed a “Motion for the Court to Listen/Motion to Get Sent to a Mental

Health Hospital for Mental Health Treatment.” ECF No. 49. In this second motion, Plaintiff

alleges that since filing his Motion for Help, staff at SCI-Forest have been retaliating against him

and threatening him with discipline if he persists in filing complaints with the Court. Id.

Also pending before the Court is Defendants’ Partial Motion to Dismiss, filed on May 24,

2019. ECF No. 17. Plaintiff’s response was due July 15, 2019. ECF No. 21. As of September 11,

2019, Plaintiff had not filed a response to the Partial Motion to Dismiss, and this Court entered an

Order to Show Cause, requiring Plaintiff to respond by October 1, 2019, and show why the motion

should not be granted due to Plaintiff's failure to file his response as previously ordered. ECF No.

38. As of this date, Plaintiff has not filed a response to the Order to Show Cause, or Defendants’

Partial Motion to Dismiss.!

The hearing on Plaintiff's pending motions occurred on October 23, 2019. Plaintiff

appeared by video, accompanied by Kevin Cowan, a Psychology Services Specialist; Captain

_ William Gill, the RHU administrator; and three corrections officers. Plaintiff's personal hygiene

appeared to be appropriate, and his clothing was clean. The Court determined that he was able to

understand and appropriately respond to questions posed. Accordingly, the Court directed the

parties to address each issue presented in Plaintiff's motions, which are resolved as follows.

1. Showers □

Plaintiff concedes that while housed in general population or in the RHU, showers are

available. However, he has chosen not to participate because he is afraid of retribution from guards

or other inmates. Plaintiff states he screams and kicks his cell door for hours each day and so is

afraid that other inmates will retaliate by throwing feces on him while showering. In addition,

Plaintiff states there are times when he loses shower privileges because guards will state he has his

cell window covered or is not ready when required.

'By dated October 23, 2019, Plaintiff was directed to file his response by November 13, 2019, and notified

at the failure to do so will result in the recommendation that the Partial Motion to Dismiss be granted. ECF No.

Captain Gill testified that the showers in the RHU are individual stalls and have doors, so

that each inmate showers alone. He has ordered Plaintiff to take a shower on at least one occasion

when it was clear that his personal hygiene was not within acceptable bounds, and stated that

Plaintiff has access to a sink in his cell and routinely performs “bird baths.” Plaintiff had

previously requested a cell with a shower to accommodate his anxiety. However, when this

privilege was recently granted, Plaintiff dismantled a portion of the in-cell shower and removed

screws that he later ingested. The walls of in-cell showers are metal, and-Plaintiff would bang on

them, creating loud echoes that disturbed inmates and guards on the cell block. Accordingly, staff

continue to offer Plaintiff access to a shower in the RHU three times per week, but Plaintiff

declines and opts to use his sink to maintain personal hygiene.

2. Yard Time

Plaintiff is offered yard time for one hour per day, five days per week. However, as with

- showers, Plaintiff declines to participate because he is afraid to be outside of his cell in the presence

of other inmates, who he believes will throw feces at him. Captain Gill testified that RHU inmates _

attend yard in individual outdoor blocks, separated by fencing. All inmates are searched before

entering the yard, and inmates with known conflicts are separated throughout the 200-foot divided

yard. He is aware of a recent incident when an inmate defecated in the yard and threw it at another

inmate, but this conduct has not been directed at Plaintiff. That inmate was disciplined with the

loss of yard privileges for some time. As with showers, staff continue to offer Plaintiff yard time,

but Plaintiff declines this opportunity to get out of his cell.

3. RHU Lockdown Conditions

Plaintiff is currently housed in the RHU on administrative custody status because he has

threatened to carry a weapon if released to general population, but he can be released to general

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population once he renounces his intention to violate prison regulations and is otherwise not

subject to disciplinary custody.

Plaintiff alleges that he is maintained on 24-hour lockdown in solitary confinement.

Plaintiff concedes that he has access to showers and yard but is afraid to leave his cell for either.

Plaintiff contends that he is denied access to the law library and has not been offered psychology

services outside of his cell. Asa result, he states he is isolated 24 hours each day.

Captain Gill reiterated that even though Plaintiff is in the RHU, he has the option to attend

yard and take showers outside of his cell. In addition, he is allowed law library time, but only

signed up on one occasion since his August placement in the RHU.

4. Food

Plaintiff alleges that he has been deprived of meals, receives small portions when meals

are provided, but guards routinely remove food from his tray. Plaintiff states that since August 14,

_ 2019, he has been denied meals on nine occasions. Captain Gill testified that at mealtimes, a bell

is rung, and inmates are to be at their door ready to receive the food tray through the “pie hole.”

Plaintiff has often been combative and kicked on the cell door. Because his aggressive behavior

may present a danger of an officer passing a food tray through a wicket, Plaintiff is deemed to have

declined a meal on these occasions. Captain Gill noted, however, that Plaintiff is in administrative

custody and so has commissary privileges. Accordingly, he can purchase snacks to supplement his

meals. ‘

5. Law Library

Plaintiff alleges he has been denied access to the law library and even if granted, is not

fully capable of utilizing the library due to his inability to read or write. Plaintiff states that he has

not been offered assistance in pursuing this lawsuit by a librarian or other prison staff, and other |

inmates who may have helped him are no longer available. Plaintiff concedes he has requested law

library access only once since August 14, 2019.

Captain Gill testified that RHU inmates are permitted to submit a request for law library

time three to five times per week, and time is made available based on the number of requests and

slots. Plaintiff has submitted only one request since August 14, 2019, but he may attend the law

library if he follows the applicable procedures. In addition, on September 23, 2019, Plaintiff

attended law library, a assistance was requested on his behalf. ECF No. 48-1 at 51-2.

The Court notes that Plaintiff has demonstrated an ability to read and write, as evidenced

by his numerous filings in this case.

6. Retaliation by Staff in the RHU

Plaintiff alleges that staff threaten him with discipline because of his litigation. On October

1, 2019, Theresa Skillman (“Skillman”), a counselor at SCI — Forest, came to his cell door to

address his allegation that he had been denied showers. Plaintiff states that she informed him that

if he “keeps it up, it will get bad” for him. In addition, Captain Gill threatened he would “get street

charges” if he failed to comply with their demands. Plaintiff further alleges that during a two-week

transfer to the Allegheny County Jail in June 2019, all of his legal documents, multiple pairs of

tennis shoes, a music tablet and headphones were taken by guards and not returned to him. Plaintiff

believes this was retaliatory because he complains and has filed suit. Plaintiff has provided a copy

of a grievance dates July 11, 2019, and his DC-135A “Inmate’s Request to Staff Member” dated

August 29, 2019, complaining that upon his return from the Allegheny County Jail, his property

was not returned. Plaintiff listed his missing property as shower shoes, pictures, legal work,

hygiene products, books and magazines. ECF No. 41-2 at 1, 5. In this regard, it is apparent the

Plaintiff did not complain that tennis shoes, a music tablet, or headphones were missing or not .

returned until his appearance in Court today.

Captain Gill testified that the “street charges” reference was in response to Plaintiffs

threats to staff and other inmates. Plaintiff has made veiled threats of force upon his release in

March 2020, and Captain Gill explained that such threats could subject him to criminal charges.

Captain Gill also testified that he has not received any information or grievances regarding alleged

retaliation against Plaintiff and he has not witnessed any such behavior.

7. Mental Health Treatment

Plaintiff states he suffers from paranoia, bipolar disease, anxiety, and depression and that

because of his conditions, he is not sleeping and spends hours of each day screaming and kicking

his cell door. Plaintiff refuses to shower or attend yard time because of his paranoia and anxiety,

he has suicidal thoughts and self-mutilates or bangs his head frequently. Plaintiff contends he

is not receiving appropriate mental health treatment for his obvious serious mental illness. He

contends that a psychology services specialist sees him once or twice per month at his cell door,

but talks down to him, and he has not been seen by a psychiatrist in 90 days. Plaintiff is assigned

to Kevin Cowan (“Cowan”), a psychology services specialist, who he believes is related to a guard

~ at SCI-Greene that he successfully charged with professional misconduct. As a result, he believes

Cowan is retaliating against him by failing to provide necessary treatment. He has been prescribed

Haldol to be delivered by injection once per month, however, he does not believe this drug is

appropriate for his condition and so has rejected treatment.” Plaintiff has requested medication

that is appropriate for his illness, but nothing has been prescribed to help him.

2 Haldol is the brand name for Haloperidol, a drug used to treat schizophrenia, and control motor and verbal tics.

When prescribed by injection, Haloperidol is usually given once every four weeks.

https://medlineplus.gov/druginfo/meds/a615023.htm1

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Cowan testified that Plaintiff is diagnosed with Antisocial Personality Disorder and has a

“C” Code, indicating he is on the DOC active mental health roster. A “D” Code indicates a serious

mental health disorder, and Plaintiff's diagnosis does not merit this code. “C” Code inmates

typically receive monthly counseling with a psychologist and are seen and treated by a psychiatrist

once every 120 days. However, Plaintiff has had fourteen psychologist contacts in the past 90

days, but often refuses to discuss his issues or be seen. He frequently refuses to leave his cell for

treatment, most recently on October 21, 2019, and deflects or threatens psychology staff. While

Plaintiff would like to be placed in a special housing residential treatment program, he is not

eligible because of his diagnosis, his history of violence, and his manipulative behavior. Inmates

housed in these units are particularly vulnerable and severely mentally ill. According to Cowan,

Plaintiff has a behavioral diagnosis. He has and can control his behavior but will act out or threaten

self-harm to manipulate staff and his living conditions.

Counselor Skillman has been assigned to Plaintiff on several occasions. Skillman has

explained to Plaintiff that social workers are available to assist him in planning for his release in

March 2020, but “he refuses to cooperate or take simple steps to obtain help.” ECF No. 48-1 at 47.

In addition, Plaintiff has repeatedly threatened Skillman with accusing her of sexual nerecemen!

making it necessary for her to be accompanied by security personnel for counseling sessions. Id.

48-1 at 30.

The Court has also reviewed Plaintiffs mental health records for the past two years, which

have been provided to the Court for in-camera review. It is apparent that Plaintiff was seen on

July 9, 2019, by a psychiatrist and reported that he was suffering from poor mental health and

requested that he be moved to a special housing unit. Plaintiff was unable to describe any

symptoms and refused medication because he did not want to attend a “pill line” or receive □

medication that wouldn’t help. Plaintiff was noted to be “demanding, entitled and ©

confrontational,” with poor insight and judgment, but not otherwise impaired or distressed. He

was logical and goal oriented, but angry that he was not recommended for housing placement in

his preferred unit. Id. at 2-5.

Plaintiff had his annual Z code review for single cell housing on July 24, 2019, and □□□ □

angered that staff determined there was no psychiatric indication for a Z code. This prompted

Plaintiffto make statements that were deemed threatening, “I know what you’re doing. I’m a wolf.

You're all out to get me. I get out in seven months. You’ll see.” Id. at 7. However, Plaintiff has

had times when he has engaged with psychology staff and responded to offers of assistance and

medication. Treatment goals include impulse control, anger management, and transition services.

Finally, Plaintiffs records show that for the period July 3, 2019 through August 14, 2019,

- Plaintiff was in a general population unit, able to schedule showers at one of two times per day,

seven days per week. ECF No. 48. On August 14, 2019, Plaintiff was issued a misconduct for

possessing weapons consisting of a padlock wrapped in a sheet and a piece of metal with a handle

fashioned from cloth. He was found guilty and sanctioned to 30 days of disciplinary custody. Id.

On September 12, 2019, Plaintiff's disciplinary sanction expired, but he threatened to always carry

weapon once he returned to general population. Accordingly, Plaintiff was placed on

administrative custody status and remains in the RHU.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 65, as well as the case law interpreting this rule, provide

that in order to obtain a preliminary injunction, a plaintiff must demonstrate areasonable likelihood

of ultimate success on the merits; that irreparable harm would result if the relief sought is not

granted; that the issuance of the injunctive relief would not result in greater harm to the nonmoving

party; and that the public interest would best be served by granting the relief sought. Campbell

Soup Co. v. Conagra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992). Thus, “[t]o obtain a preliminary

injunction, the moving party must demonstrate both a likelihood of success on the merits and the

probability of irreparable harm if relief is not granted.” Hohey v. Casey, 868 F.2d 69, 72 (3d Cir.

_ 1989), cert. denied, 493 U.S. 848 (1989).

Il. DISCUSSION

A. Food and Privileges

Despite the content of his pleadings and motions filed with the Court, Plaintiff concedes

he has had access to showers, food, yard time, and law library, but is opting to remain in his □□□□

because of anxiety and fear of retaliation. Under these circumstances, Plaintiff has not established

that he is entitled to injunctive relief as to these items.

B. Mental Health Treatment —

Based upon the evidence presented by the parties, Plaintiff has not established that he is

entitled to a Court Order requiring his placement in a mental health facility at this time as requested

in the pending motions. Based on the record before it, including Plaintiff's testimony and

demeanor, the Court is unable to determine whether his conduct (manipulative behavior) is

sufficiently within his control as alleged by SCI-Forest representatives or, whether, given his

acknowledged history of self-harm, his present housing and mental health treatment constitutes

deliberate indifference to his serious medical need for mental healthcare, warranting immediate

relief by granting Plaintiff’s pending motions for injunctive relief. Palakovic v. Wetzel, 854 F.3d

209, 228-29 (3d Cir. 2017)(providing guidance on the issue of deliberate indifference to serious

mental health needs).

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Therefore, for purposes of determining the merits of his pending motions and the merits of

the claims asserted in his Complaint related to mental health treatment, the Court deems it

necessary that Plaintiff undergo a psychiatric evaluation. See, Boyd v. Werner, 416 F. Supp. 1222,

1224 (W.D. Pa. 1976) (after hearing on motion for preliminary injunction challenging, inter alia,

alleged failure to treat mental health illness by placing plaintiff in a mental health facility, Court

ordered psychiatric examination to “facilitate a determination of the complaint”). Defendants are

directed to schedule an independent examination by a board-certified psychiatrist to be completed

within 60 days and provide the Court with a report addressing the identified concerns.

An appropriate Order follows.

ORDER

AND NOW, this 28" day of October, 2019, upon consideration of Plaintiff's Motion for

Help, ECF No. 41, and Motion for the Court to Listen/Motion to get sent to a Mental Health

Hospital for Mental Health Treatment, ECF No. 49, Defendants’ Brief in Opposition, ECF No. 45,

Defendants’ Exhibits thereto, ECF No. 48, and the testimony presented in the hearing of this matter

on October 24, 2019, and for the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED that the two pending motions, ECF Nos, 41 and 49, are denied

as they relate to the alleged denial of showers, yard time, food, lockdown conditions, law library

access, and retaliation. As to the remaining allegations of the denial mental health treatment, the

Court defers ruling. Defendants shall schedule and provide an independent psychiatric

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examination of Plaintiff and submit a report of the examination, specifically to address the

concerns identified by this Court.

BY THE COURT:

MAQREF LLY

UNITED STATES MAGISTRATE JUDGE

ce: All counsel of record via CM/ECF

Akeem Hutchinson

KP-4715

SCI — Forest

PO Box 945

Marienville, PA 16239

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