MITCHELL v. BOYLSTEIN

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

VICTOR LLOYD MITCHELL, :

Plaintiff :

v. : Case No. 3:22-cv-154-KAP

DON BOYLSTEIN, :

Defendant :

Memorandum Order

Plaintiff Victor Mitchell, an inmate in the custody of the Pennsylvania Department

of Corrections at S.C.I. Somerset, filed a complaint in September 2022, ECF no. 5, alleging

that his unit manager, defendant Donald Boylstein, violated the Eighth Amendment and

the Prison Rape Elimination Act by failing to protect Mitchell from sexual assault by his

cellmate, Terrance Morgan. Because as explained below there is no evidence that raises a

genuine issue of fact relevant to Boylstein’s liability, defendant’s motion for summary

judgment at ECF no. 69 is granted. The Clerk shall enter judgment for the defendant and

mark this matter closed. This is a final appealable order.

Defendant has moved for summary judgment, ECF no. 69 (motion), ECF no. 70

(defendants’ brief), ECF no. 71 (statement of material facts or SMF), ECF no. 71 (appendix

of exhibits). Plaintiff did not file a reply and the time to do so has expired. In the

complaint, Mitchell alleged that Boylstein assigned Morgan and Mitchell to the same E-

Unit cell on December 3, 2021, knowing aware in advance that Morgan was “an aggressive

homosexual,” Complaint at ¶13, “assessed as being a higher risk of being sexually

abusive,” Complaint at ¶18, was seriously mentally ill and noncompliant with his

medication orders, listed as a high security risk, and under investigation for sexual

misconduct. Complaint at ¶¶ 30-36. Meanwhile, Mitchell was assessed as being “a higher

risk of being sexually victimized,” Complaint at ¶18, was mentally ill, Complaint at ¶41,

and “fits the known profile of prison rape victim.” Complaint at ¶50.

Mitchell alleged that between December 3, 2021 and the end of January 2022 he

was sexually assaulted by Morgan; Morgan also encouraged Mitchell to kill himself.

Complaint ¶¶ 59-66. Mitchell alleged that he sought assistance from mental health care

providers on February 1, 2022. Mitchell was removed, that day, to a psychiatric

observation cell. Complaint ¶67. On February 7, 2022, Mitchell for the first time accused

Morgan of “sexual contact” in order to avoid being returned to a cell with Morgan.

Mitchell wrote an ambiguous statement that did not use the word “assault,” that asserted

Mitchell had had sexual contact with Morgan ending about two weeks earlier, that “not

every sexual act was consensual,” and that Mitchell did not want “it” to continue. ECF no.

72-4, Exhibit D. Morgan was “immediately” removed from the unit. Complaint ¶¶ 68-69.

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Mitchell’s fellow inmates deduced that Mitchell had accused Morgan and so labeled

Mitchell a “snitch.” Mitchell did not allege any further injury as a result of that alleged

label: to the contrary, he alleges that corrections personnel transferred him to protect him

from the “lambasting” of his character. Complaint ¶¶ 70-75.

Mitchell claims that by putting Morgan in the same cell with him Boylstein

violated the Eighth Amendment. Complaint at ¶85. The Eighth Amendment imposes

liability on prison officials who, by being deliberately indifferent to the risk of serious

harm, fail to prevent inmates from being injured by their fellow inmates. Proof of

liability has two elements: that objectively speaking there was a substantial risk of

serious harm to an inmate’s health or safety, and that the defendant was subjectively

aware of that risk and knowingly or recklessly disregarded it. Farmer v. Brennan, 511

U.S. 825, 834 (1994); Bistrian v. Levi, 696 F.3d 352, 367-68 (3d Cir. 2012). The

subjective element requires more than ordinary negligence, and a mistake in

professional judgment “cannot be” deliberate indifference. See Whiting v. Wexford

Health Sources, Inc., 839 F.3d 658, 662 (7th Cir. 2016)(Estelle v. Gamble claim).

Mitchell makes a parallel claim that the same facts constitute a violation of the

Prison Rape Elimination Act by Boylstein, Complaint at ¶86, but the PREA is Spending

Clause legislation that normally does not provide a private right of action and in particular

does not impose individual liability for money damages. See e.g. Bowens v. Wetzel, 674

Fed.Appx. 133, 137 (3d Cir. 2017); Lee v. Kramer, No. 3:17-CV-190-KAP, 2017 WL

6729865 at *1 (W.D. Pa. Nov. 8, 2017). The PREA claim (which would be redundant if it

existed) need not be discussed further.

For Farmer v. Brennan claims based on cell assignments, just as with other failure

to protect claims, deliberate indifference can be established by direct or circumstantial

evidence. A claim is established by evidence: 1) that a defendant knew of a concrete

threat to plaintiff from a particular person but declined to act or to seek more

information, or 2) that a defendant, while not aware of the particular risk that a

particular person posed to a particular plaintiff, was aware of “an unreasonable and

excessive risk of abuse” to inmates “generally.” Beers-Capitol v. Whetzel, 256 F.3d 120,

133 (3d Cir. 2001)(failure to protect inmate from sexual assault by staff member).

Mitchell is therefore required to point to evidence either that Boylstein was “informed

of a specific threat of harm” to Mitchell or that Boylstein was aware of a “pervasive risk

of harm” from Morgan that threatened Mitchell because the Mitchell’s physical or

psychological characteristics made him an exceptionally vulnerable target. See Day v.

Federal Bureau of Prisons, 233 Fed.Appx. 132, 133-34 (3d Cir. 2007).

What a defendant knew and when a defendant knew it must be defined with the

proper level of specificity because one cannot be deliberately indifferent to a danger that

must be inferred from facts a defendant does not know. A plaintiff cannot rest on “the

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generally recognized but unquantified risk that inmates will assault other inmates.”

Hazel v. McCullough, 2007 WL 1875807 at *7 (W.D. Pa. June 27, 2007), citing Beers-

Capitol v. Whetzel, supra. A general complaint that a plaintiff is “not getting along” with

a cellmate does not suffice to establish a genuine issue of fact that a defendant had

knowledge of a specific threat. Ned v. Kardin, 779 Fed.Appx. 75, 76 (3d Cir. 2019). The

Court of Appeals has also held that knowledge of particular prior incidents of

“qualitatively dissimilar” misconducts is inadequate to show knowledge of and therefore

deliberate indifference to risks generally: in particular, knowledge of several consensual

sexual contacts between corrections staff and inmates “could not (my emphasis)” place

a defendant on notice of a substantial risk of rape and sexual assault by other corrections

staff members on plaintiff inmates. Heggenmiller v. Edna Mahan Correctional

Institution for Women, 128 Fed. Appx. 240, 245 (3d Cir.2005). On the other hand, while

the presence of evidence of prior episodes of assaultive behavior by the attacker or of

prior assaults on the plaintiff is certainly relevant, the absence of such evidence is not a

bar to a finding of deliberate indifference. Hazel v. McCullough, supra, 2007 WL

1875807 at *3, analyzing Urrutia v. Harrisburg County Police Department, 91 F.3d 451,

456 (3d Cir. 1996).

Summary judgment is appropriate if, drawing all inferences in favor of the non-

moving party, the record indicates that “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).

Summary judgment may be granted against a party who fails to adduce facts sufficient to

establish the existence of any element to that party's case and for which that party will

bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A dispute

is genuine if and only if the evidence is such that a reasonable jury properly instructed as

to the substantive law governing the disputed claim or defense could find for the non-

moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[W]hether a

given factual dispute requires submission to a jury must be guided by the substantive

evidentiary standards that apply to the case.”) Where the evidence “is so one-sided that

one party must prevail as a matter of law,” summary judgment is appropriate. Brown v.

Grabowski, 922 F.2d 1097, 1111 (3d Cir.1990)(citations omitted).

Regardless of the liberal construction afforded the pleadings of pro se litigants, a

court is not required to help make a case for a party who does not present evidence or

argument. Scott v. Vantage Corporation, 845 Fed.Appx. 170, 179 (3d Cir. 2021), citing

Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001)(in turn quoting

Forsberg v. Pacific N.W. Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir. 1988)) and Herman

v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989). Mitchell’s complaint asserts both

that Morgan would be a danger to anyone he was celled with, and that Mitchell’s known

vulnerabilities put Mitchell in particular danger. Mitchell, however, does not point to any

evidence that would allow an inference that before Mitchell’s disclosure on February 7,

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2022, Boylstein knew that Morgan presented an unusual risk to anyone or a particular

risk of harm to Mitchell. This is notable because in Mitchell’s administrative grievance

filed in February 2022, see ECF no. 72-5, Exhibit E, Mitchell claimed that he had already

“received documentary evidence establishing that: … prison officials actually knew about

the substantial risk of serious harm to which I was exposed.”

Mitchell does not name Boylstein -or anyone else- in his administrative

grievance. Boylstein does not defend on the basis of the requirement in the

administrative grievance process that an inmate identify the person whose actions are

the subject of the grievance. However, it is relevant that even after the alleged receipt of

documentary evidence that “prison officials” knew of Morgan’s dangerousness, Mitchell

did not point to Boylstein as one of those officials: Mitchell’s claim to have evidence does

not serve as evidence. If Mitchell did have evidence that “prison officials” had

knowledge, that would not be evidence that Boylstein individually had knowledge,

because reliance on that sort of transferred atmospheric knowledge is not permitted

even at the pleading stage. See Africa v. Dukes, 492 Fed.Appx. 251, 253 (3d Cir. 2012):

The Amended Complaint alleged that Africa's cellmate was unstable and

had previously attacked other inmates, and that Dukes was well aware of the

cellmate's dangerous history. The Amended Complaint does not allege or allow for

the reasonable inference that Kerker, McKeown, Teasdale, or Noel knew of

the cellmate's dangerous history, and thus fails to state an Eighth Amendment

failure to protect claim against these defendants (my emphasis).

Boylstein states that as a unit manager Boylstein received training about the

PREA’s standards as they apply to housing assignments. SMF ¶¶1-2. Boylstein also

received training in the use of the Department of Corrections’ in-house tool called the

PREA Risk Assessment Tool (PRAT). SMF ¶5. There is no claim that PRAT is an

inadequate tool, much less evidence that Boylstein used it knowing it was inadequate.

PRAT divides inmates into three categories: (1) predator, (2) potential victim, and (3)

no housing concern. Using PRAT, both Morgan and Mitchell were considered to have

no housing concerns. SMF ¶¶6-8. Boylstein moved Morgan from a cell on the unit’s

upper tier to a cell with Mitchell on the unit’s bottom tier on December 3, 2021 because

Morgan was considered an escape risk. SMF ¶¶3-4. Boylstein did not know of any

complaints by other inmates about Morgan and did not know whether Morgan had been

convicted for violent or sexual offenses. SMF ¶¶9-10. Boylstein does not explore the

point further but the public docket sheets indicate that Morgan had one prior offense

and that it was not for a sexual assault: the record for Commonwealth v. Morgan, Case

no. CP-09-CR-3197-2008 (C.P. Bucks) indicates that Morgan was convicted in 2008

after a guilty plea to robbery and related offenses and to fleeing and eluding; Morgan’s

confinement at the time of the assault was as a result of a probation violation for which

he was sentenced in 2019.

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Boylstein received no report from Morgan or Mitchell in the two months after

December 3, 2021 of issues between them: when on February 7, 2022, Mitchell reported

that Morgan had nonconsensual sexual contact with him more than two weeks earlier,

Boylstein separated them. SMF 915-17. In the subsequent investigation completed in

September 2022 Mitchell gave a statement to a PSP trooper and a PREA Lieutenant that

Mitchell had sexual contact with Morgan from “fear” on the first day they were celled

together, but that Mitchell did not report that incident or Morgan’s subsequent sexual

relations with him for two months because Morgan’s provision of drugs and commissary

items after the sexual contact on December 3, 2021 caused Mitchell to “second guess”

his fear. See ECF no. 72-3, Exhibit C. Both Mitchell and the local District Attorney

declined criminal prosecution of Morgan; both inmates were sanctioned for sexual

conduct; Mitchell was provided a z-code (single cell); and Morgan was assessed as being

an institutional sexual predator. Id.

As the non-moving party, Mitchell must present affirmative evidence of

Boylstein’s deliberate indifference -and therefore his knowledge- in order to defeat

Boylstein’s properly supported motion for summary judgment. Williams v. Borough of

West Chester, 891 F.2d 458, 460 (3d Cir. 1989). In Williams, Judge Becker discussed

the problem of affirmative evidence after the lower court granted summary judgment to

police officers who failed to remove the belt from a pretrial detainee who committed

suicide by hanging himself. Although the decedent’s suicidal tendencies were “widely

known” in the “small” police department there was no direct evidence that the specific

defendant officers knew of them. The defendant officers denied that they had knowledge

of the decedent’s risk of suicide. Neither the fact that the decedent’s several unusual

suicide attempts were recorded on the police blotter accessible to the defendants nor the

recognized “propensity of human beings to talk about bizarre behavior” were enough to

allow an inference that the defendants had actual knowledge. Id.

Following the holding in Williams, to create a genuine issue for trial Mitchell was

required to point to direct or circumstantial evidence from which a jury could conclude

that Boylstein knew before Mitchell’s last sexual contact “over two weeks” before

February 7, 2022, ECF no. 72-4, Exhibit D, of facts from which Boylstein inferred that

Morgan was a substantial threat to Mitchell. Because Mitchell did not do that, no

properly instructed jury could find Boylstein liable.

bP

DATE:_ March 31, 2025

Keith A. Pesto,

United States Magistrate Judge

Notice by ECF to counsel and by U.S. Mail to:

Victor L. Mitchell MX-8108

S.C.I. Somerset

1590 Walters Mill Road

Somerset, PA 15510

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