Kimmel v. Doughty

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVEY JAMES KIMMEL, : Civil No. 1:23-CV-00016

:

Plaintiff, :

:

v. :

:

C.O. DOUGHTY, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is an uncontested motion for summary judgment filed by

Defendant Correctional Officer Doughty (“Doughty”). (Doc. 30.) Despite the

court extending the period for Davey James Kimmel (“Plaintiff”) to respond to the

pending motion, there has been no response. (Docs. 33, 35.) After reviewing the

motion for summary judgment and supporting documents, the court will grant the

motion, and enter judgment in Defendant Doughty’s favor.

PROCEDURAL BACKGROUND AND HISTORY

In January of 2023, Plaintiff, an inmate currently housed at the State

Correctional Institution at Camp Hill, Pennsylvania (“SCI-Camp Hill”), filed the

complaint in this matter. (Doc. 1.) The complaint is difficult to read and alleges

multiple claims arising from multiple factual scenarios under the umbrella of 42

U.S.C. § 1983. (Id.) Following a screening pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii), the court dismissed all claims and all defendants except the

August 2022 use of excessive force claim against Defendants Doughty, Deputy

Warden Becky Davis (“Davis”), and Captain Mease (“Mease”). (Doc. 8.) In the

complaint, Plaintiff did not identify the facility at which the alleged incident of

excessive force took place. However, the three defendants have working addresses

located in Lebanon, Pennsylvania and one of the attached documents is from

Lebanon County Correctional Facility. (Doc. 1, p. 3; Doc. 1-2.)1 Therefore, the

court has concluded that the alleged incident took place at the Lebanon County

Correctional Facility. (Doc. 23, p. 2.)

The alleged facts surrounding the August 2022 incident are contained in a

single paragraph in the complaint:

[I]n August of 2022 on about the middle of the month I was having

issues with another inmate[,] and the COs did nothing[.] [S]o I

covered my gate after being refused a white shirt[.] [T]hen[,] White

Shirt Doughty came[.] [H]e asked me to come cuff up[,] and I did

so[.] [A]s I was heading to my gate to cuff up[,] White Shirt Doughty

pepper sprayed me for no valid reason. I reported this to ex[-]captain

Mease, Deputy Warden Becky Davis at the time of DB.

(Doc. 1, p. 13.) As discussed above, the court dismissed all claims and all

defendants except the August 2022 use of excessive force claim against

Defendants Doughty, Deputy Warden Becky Davis (“Davis”), and Captain Mease

(“Mease”). (Doc. 8.) Plaintiff was granted leave to amend his complaint and

1 For ease of reference, the court use the page numbers from the CM/ECF header.

provided copies of the court’s civil rights complaint form for the use of amending

his complaint. (Doc. 24.) No amended complaint was received by the court.

The court forwarded waiver of service forms to the above three named

defendants, who promptly returned them. (Docs. 9, 12, 13, 14.) Defendant

Doughty filed an answer to the complaint on March 27, 2023. (Doc. 17.)

Defendants Davis and Mease filed a motion to dismiss the complaint under Fed. R.

Civ. P. 12(b)(6) and a brief in support. (Docs. 15, 16.) The court granted this

motion on December 22, 2023 and dismissed all claims against Defendants Davis

and Mease. (Doc. 24.)

Defendant Doughty filed a motion for summary judgment on August 23,

2024. (Doc. 30.) The court received no response to the motion within the period

prescribed by the Local Rule 7.6. On September 18, 2024, the court sua sponte

granted Plaintiff additional time to respond to the dispositive motion. (Doc. 33.)

The mail was returned to the court as undeliverable marked as “RTS REF” which

the court construes as “Return to Sender, Refused.” (Doc. 34.) The court then

entered an order granting additional time, until November 15, 2024, for Plaintiff to

respond to the motion for summary judgment. (Doc. 35.) The court has not

received any response from Plaintiff. Therefore, the court will now address the

motion for summary judgment as unopposed.

JURISDICTION AND VENUE

The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §

1331, which allows a district court to exercise subject matter jurisdiction in civil

cases arising under the Constitution, laws, or treaties of the United States. Venue is

proper in this district because the alleged acts and omissions giving rise to the

claims occurred at Lebanon County Correctional Facility, located in Lebanon

County, Pennsylvania, which is located within this district. See 28 U.S.C. §

118(b).

SUMMARY JUDGMENT STANDARD

A court may grant a motion for summary judgment when “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 dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

A. Summary of Defendant Doughty’s Statement of Undisputed Material

Facts.

Along with the motion for summary judgment and brief in support,

Defendant Doughty filed a statement of undisputed material facts. (Doc. 31.) On

September 12, 2022, Plaintiff was incarcerated at the Lebanon County Correctional

Facility. (Id., ¶ 1.) Defendant Doughty was employed as a Correctional Officer at

the Lebanon County Correctional Facility on September 12, 2022, and was

stationed in the central control at the facility. (Doc. 31, ¶ 2; Doc. 31-1 ¶¶ 1–2.)

According to Defendant Doughty, there was no evidence of any event involving

Plaintiff covering his cell gate in August of 2022, but there was such an incident in

the records on September 12, 2022.2 (Doc. 31, ¶¶ 3–4; Doc. 31-1, p. 7–8.)

According to the Misconduct Report authored by Defendant Doughty and

filed in this action as evidence, on September 12, 2022, Defendant Doughty saw

Plaintiff, via camera, kick his cell gate/plexiglass covering, and cover the cell gate

with his uniform and bed sheet. (Doc. 31-1, p. 7.) Defendant Doughty and PFC

Marderness, Officer McDaniels, Officer Torres, and Officer Batz entered the

Secured Housing Unit and removed the items that were blocking the cell gate.

(Id.) Plaintiff then became “agitated.” (Id.) Defendant Doughty wrote in the

report that he turned to pick up the uniform and sheet from the floor, and Plaintiff

kicked the cell gate and threatened to kill himself so that he could be seen by

medical. (Id.) Defendant Doughty states that “I then pulled my OC can from my

duty belt and stuck my hand inside the cell and delivered a one (1) second burst of

OC.” (Id.) Plaintiff then covered his face and moved to the back of his cell

“causing the spray to be ineffective.” (Id.) Defendant Doughty then removed his

hand from the cell and told Plaintiff to come to the cell gate so he could be

handcuffed. (Id.) Inmate refused, and lowered the t-shirt that was covering his

face. (Id.) The report states that “[i]t was at this time that a second one (1) second

2 The September 12, 2022 date is consistent with the Disciplinary Board Hearing summary

attached to Plaintiff’s complaint, which states the date of the offense was September 12, 2022.

(Doc. 1-2.)

burst of OC was deployed into the cell.”3 (Id.) Defendant Doughty then ordered

the witnessing officers to exit the block. (Id.) He then gave Plaintiff orders to lay

on his stomach with his hands on his back. (Id., p. 8.) The officers then went into

his cell and placed wrist restraints on Plaintiff. (Id.) Defendant Doughty and

Corporal Geth assisted Plaintiff to his feet and escorted him to the detail cleaning

closet so he could be decontaminated. (Id.)

B. Judgment Will Be Entered In Favor of Defendant Doughty.

As discussed above, the sole remaining claim in this matter is an Eighth

Amendment use of excessive force claim. (Doc. 8.)

“The Eighth Amendment, made applicable to the States through the

Fourteenth Amendment, prohibits the infliction of ‘cruel and unusual

punishments.’” Glossip v. Gross, 576 U.S. 863, 876 (2015). “The Supreme Court

has interpreted this prohibition . . . to bar prison officials from using excessive

force against inmates[.]” Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015)

(citing Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)).

To demonstrate that a prison official defendant has violated the Eighth

Amendment, a plaintiff must establish two (2) elements: a subjective and an

objective element. See Hudson, 503 U.S. at 8. First, a plaintiff must show that the

3 The court notes that the Misconduct Report does not state who sprayed Plaintiff with OC spray

the second time, but Defendant Doughty’s affidavit states “I then deployed a second, one-second

burst of OC spray.” (Doc. 31-1, p. 3.)

defendant acted with a “sufficiently culpable state of mind[,]” and second, a

plaintiff must show that the defendant’s conduct was objectively “sufficiently

serious[.]” See Wilson v. Seiter, 501 U.S. 294, 297–98 (1991). Where a prison

official is alleged to have used excessive force in violation of the Eighth

Amendment, the pertinent inquiry for the subjective element is “whether [the]

force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” See Hudson, 503 U.S. at 7;

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 231 (3d. Cir. 2015) (explaining

that “[w]hen prison officials maliciously and sadistically use force to cause harm,

contemporary standards of decency always are violated[,]” and “[t]his is true

whether or not significant injury is evident”). There are several factors that courts

consider in determining whether a prison official has used excessive force against a

prisoner, including:

(1) “the need for the application of force”; (2) “the relationship between

the need and the amount of force that was used”; (3) “the extent of

injury inflicted”; (4) “the extent of the threat to the safety of staff and

inmates, as reasonably perceived by responsible officials on the basis

of the facts known to them”; and (5) “any efforts made to temper the

severity of a forceful response.”

See Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers,

475 U.S. 312, 321 (1986)).

Here, Defendant Doughty has presented evidence in the form of his affidavit

and the misconduct report that demonstrates Plaintiff had presented a threat to

himself and others and Defendant Doughty used the OC Spray as a means to

maintain or restore discipline. (Doc. 31-1.) The affidavit states “I removed

Plaintiff’s uniform from the cell gate and Plaintiff became agitated and began

kicking his cell gate and threatening to kill himself,” “[i]n light of Plaintiff’s

defiant and disruptive behavior, coupled with his threat of imminent self harm, I

deployed a single, one-second burst of Oleoresin Capsicum (“OC”) spray into

Plaintiff’s cell,” “I instructed Plaintiff to comply with directives to be cuffed,”

“Plaintiff refused to comply with directives to be cuffed,” and “[i]n light of

Plaintiff’s continued resistance, I then deployed a second, one-second burst of OC

spray.” (Id., ¶¶ 7–8, 10–12.) This was repeated in the misconduct report: “I turned

to pick up the uniform and sheet from the floor and it was at this time that Inmate

Kimmel kicked the cell gate and threatened to kill himself . . .” (Id., p. 7.)

With this evidence, Defendant Doughty met his initial responsibility of

identifying the portion of the complaint that he believed demonstrated an absence

of genuine issue of material fact under Celotex Corp: that he used the OC spray as

a means to maintain or restore discipline. The burden then shifts to Plaintiff to

oppose the motion by presenting evidence showing that there is a genuine issue for

trial. Jutrowski, 904 F.3d at 288–89. Despite being provided multiple

opportunities to oppose the evidence submitted by Defendant Doughty, Docs. 33,

35, Plaintiff did not respond. Therefore, summary judgment is appropriate because

Plaintiff “fail[ed] to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex, 477 U.S. at 322.

CONCLUSION

For the reasons set forth above, the court will grant Defendant Doughty’s

motion for summary judgment and enter judgment in favor of Defendant Doughty.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: February 24, 2025