The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOE N. HARRELL, : CIVIL ACTION NO. 3:22-CV-730
:
Plaintiff : (Judge Neary)
:
v. :
:
MATTHEW MAYER, et al., :
:
Defendants :
MEMORANDUM
This is a prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. Plaintiff,
Joe N. Harrell, alleges that his civil rights were violated when one defendant
assaulted him and the other defendants interfered with his ability to file grievances
about the assault. All parties have filed motions for summary judgment. Plaintiff’s
motion will be denied, defendant Kothe’s motion will be granted, and defendant
Mayer and Kimmick’s motion will be granted in part and denied in part. The case
will proceed solely with respect to plaintiff’s excessive force claim against Mayer.
I. Factual Background & Procedural History
Harrell filed this case on April 29, 2022, and the court received and docketed
his complaint on May 17, 2022. (Doc. 1). The case was initially assigned to United
States District Judge Malachy E. Mannion. Defendants moved to dismiss the
complaint on August 22, 2022. (Doc. 14). On June 22, 2023, Judge Mannion
converted the motion into a motion for summary judgment to the extent it asserted
the affirmative defense of failure to exhaust administrative remedies. (Doc. 36).
After receiving supplemental material on the exhaustion issue, Judge Mannion
issued a memorandum and order on September 29, 2023, which granted the motion
in part and denied it in part, allowing the case to proceed solely as to: (1) Harrell’s
excessive force claim against defendant Mayer; and (2) his grievance interference
claim against defendants Kothe and Kimmick. (Docs. 43-44). Defendants answered
the complaint on October 19, 2023, and March 20, 2024. (Docs. 45, 59). All parties in
the case subsequently moved for summary judgment. (Docs. 78, 81, 85). Briefing
deadlines for these motions have expired, and the motions are ripe for review.
II. Legal Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary
judgment is appropriate if the moving party shows 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). A factual dispute is material if resolution of it “might affect the
outcome of the suit under the governing law” and genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Mall
Chevrolet, Inc. v. General Motors LLC, 99 F.4th 622, 631 (3d Cir. 2024) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Tolan v. Cotton, 572 U.S. 650, 657 (2014) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). The court’s duty is not “to
weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson, 477 U.S. at 242-43.
There are “two closely related methods for a movant to succeed at summary
judgment.” Mall Chevrolet, 99 F.4th at 630. “First, under the standard approach, the
moving party may produce material facts, established as genuinely undisputed, that
entitle it to judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(a)). “Second,
under the Celotex approach, a moving party may instead demonstrate that the
nonmoving party has not made ‘a showing sufficient to establish the existence of an
element essential to that party’s case on which that party will bear the burden of
proof at trial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The nonmoving party can defeat a motion for summary judgment by
producing evidence to establish a genuine issue of material fact. Anderson, 477 U.S.
at 256. The nonmoving party “may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for
trial.” Id. The party “must do more than simply show that there is some
metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). “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. Moreover, if the nonmovant’s version of disputed facts is “blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
III. Material Facts
Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” M.D. Pa. L.R. 56.1. A party
opposing a motion for summary judgment must file a separate statement of material
facts, responding to the numbered paragraphs set forth in the moving party’s
statement and identifying genuine issues to be tried. Id. In this case, plaintiff has
failed to file a statement of material facts in support of his motion for summary
judgment. Additionally, defendants have filed statements of material facts in
support of their motions for summary judgment, (see Docs. 82, 86), but plaintiff has
failed to respond. Accordingly, plaintiff’s motion for summary judgment will be
denied for failure to comply with Local Rule 56.1,1, 2 and the factual assertions in
defendants’ statements will be deemed admitted for purposes of resolving the
instant motions in accordance with Rule 56.1. See M.D. PA. 56.1. The court cites
directly to defendants’ statements of material facts for the below statement of facts.
At the time of the facts giving rise to this case, Harrell was a pretrial detainee
in Dauphin County Prison (“DCP”). (Doc. 82 ¶ 1). He is now incarcerated in Dallas
State Correctional Institution (“SCI-Dallas”). (Id. ¶ 2). Harrell’s claims arise from an
alleged assault by defendant Mayer on January 23, 2022. (Id. ¶¶ 6-8). The incident
was captured on video footage from a body camera worn by Mayer. (Id. ¶ 41).
1 Even if Harrell had complied with Local Rule 56.1, his motion would be
denied. As discussed below, Harrell’s claims against defendants Kimmick and
Kothe fail because prison inmates do not have a constitutional right to a grievance
process, and there are genuine issues of material fact on his excessive force claim
against Mayer that preclude the entry of summary judgment for either party.
2 Harrell’s motion also appears to request issuance of a subpoena. (See Doc.
78). This request is deemed withdrawn for his failure to file a supporting brief. See
M.D. PA. L.R. 7.5.
The video evidence depicts Harrell standing near a stairwell in the prison.
(See video evidence at 2022-01-23, 13:02:08).3 Harrell walks from where he is
standing to a door, and Mayer follows him. (See id. at 13:02:11 – 13:02:19). At that
point, the following verbal exchange occurs:
Mayer: “What are you doing?”
(Automated voice): “Yes?”
Harrell (speak towards the door): “I need a toothbrush.”
Mayer: “Alright come on, lock in.”
Harrell: “We not gonna do that. That’s what we not gonna do.”
Mayer: “Well if you’re not listening that’s what we’re gonna do.”
Harrell: “What happened?”
Mayer: “So if you’re not gonna listen, that’s what we’re gonna do, come on.”
Harrell: “Come on man, you ain’t gonna talk to me like I’m a fucking dog.”
Mayer: “I’m not talking to you like anything, lock in.”
Harrell: “Yes you are, my n*****.”
Mayer: “Lock in, come on, come on.”
(See id. at 13:02:19 – 13:02:49). After this exchange, Mayer reaches out and appears
to grab Harrell by the arm. (See id. at 13:02:49). Harrell repeatedly tells Mayer,
“Don’t touch me,” to which Mayer responds, “Don’t do that.” (See id. at 13:02:49 –
13:02:54). Mayer then calls for backup from other officers. (See id. at 13:02:54). After
Harrell repeatedly tells Mayer, “Don’t touch me,” Mayer appears to approach
Harrell and initiate physical contact.4 (See id. at 13:02:54 – 13:02-59). A physical
altercation then begins, and it becomes impossible to see what is happening during
the altercation for approximately 38 seconds. (See id. at 13:02:59 – 13:03:37).
3 The video evidence has been produced to the court in electronic form as an
exhibit to Mayer and Kimmick’s motion for summary judgment.
4 Defendants contend that “the video clearly shows Plaintiff squaring up
against Mayer” as though he was preparing to fight him, (see Doc. 83 at 17), but the
court disagrees that this fact is clear from the video. Viewing the video in the light
most favorable to plaintiff as the non-moving party, it appears that Mayer
approaches Harrell and solely initiates the physical contact.
After the altercation, Harrell is shown being wrestled to the ground. (See id.
at 13:03:37). As Mayer and other officers roll Harrell onto his belly, Harrell yells that
officers punched him, while the officers deny doing so. (See id. at 13:03:37 –
13:03:41). After Harrell is on his belly, Mayer calls for another officer to “give me
spray,” and to “spray him.” (See id. at 13:03:46 – 13:03:51). Another officer then
appears to pepper spray Harrell, which causes the officers to cough and Harrell to
repeatedly shout, “I can’t breathe.” (See id. at 13:03:55 – 13:04:17). As this happens,
the officers handcuff Harrell behind his back. (See id.) Video of the incident then
concludes with Mayer walking out of the area towards the prison’s medical unit.
(See id. at 13:04:29 – 13:06:20). Medical records following the incident indicate that
Harrell was sprayed with pepper spray and that he suffered a small laceration to his
right lower lip and neck pain. (Doc. 82 ¶ 37).
Harrell names defendant Kimmick as a defendant based on his actions in
investigating the incident as an employee of the Dauphin County District Attorney’s
office. (Id. ¶ 9). Harrell names Kothe as a defendant based on his actions in handling
Harrell’s grievances regarding the incident. (Id.) Although Judge Mannion
previously construed Harrell’s claims against Kimmick as arising from alleged
interference with the grievance process, (see Doc. 43), Harrell has since admitted
that Kimmick played no role in the grievance process and did not interfere with his
grievances. (Doc. 82 ¶ 11).
IV. Discussion
Harrell brings his constitutional claims under 42 U.S.C. § 1983. Section 1983
creates a private cause of action to redress constitutional wrongs committed by
state officials. 42 U.S.C. § 1983. The statute is not a source of substantive rights, but
serves as a mechanism for vindicating rights otherwise protected by federal law.
See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d
1199, 1204 (3d Cir. 1996). To state a Section 1983 claim, plaintiffs must show a
deprivation of a “right secured by the Constitution and the laws of the United
States . . . by a person acting under color of state law.” Kneipp, 95 F.3d at 1204
(quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
Defendants Mayer and Kimmick argue that they are entitled to summary
judgment because Harrell’s claims fail on their merits and because they are entitled
to qualified immunity. (Doc. 83). Defendant Kothe argues that he is entitled to
summary judgment because Harrell does not have a constitutional right to a
grievance process, because Harrell fails to establish his personal involvement, and
because he is entitled to qualified immunity. (Doc. 87).
At the outset, summary judgment will be granted in favor of defendants
Kimmick and Kothe. The only remaining claim against them is for their alleged
interference with the grievance process.5 Prison inmates, however, do not have a
5 Judge Mannion construed the complaint as asserting a claim against
Kimmick for grievance interference. Defendants argue this claim fails because
Kimmick is an employee of the district attorney’s office rather than a prison
employee and that any other claims the complaint asserts against him fail to state a
claim. (Doc. 83 at 22-23). The court agrees with Judge Mannion’s finding that the
complaint asserts a claim against Kimmick only for grievance interference. (See
Doc. 1 at 5 (“Dauphin County Prison is trying to hide what’s going on in this prison
with William H. Kimmick and Jake Kothe by making the grievances going missing
because he is handling the grievance. . .”). Defendants are also correct that the
complaint fails to state any other claims against Kimmick. There are simply no
other allegations in the complaint against Kimmick.
constitutional right to a grievance process. See, e.g., Gerholt v. Wetzel, 858 F. App’x
32, 33-34 (3d Cir. 2021); Rivera v. Pa. Dep’t of Corrs., 346 F. App’x 749, 751 (3d Cir.
2009); Jackson v. Gordon, 145 F. App’x 774, 777 (3d Cir. 2005). Thus, interference
with Harrell’s ability to file grievances would not violate his constitutional rights.
Turning to the excessive force claim against defendant Mayer, because
Harrell was a pretrial detainee when the facts of this case occurred, his excessive
force claim is governed by the Due Process Clause of the Fourteenth Amendment
rather than the Eighth Amendment. Wharton v. Danberg, 854 F.3d 234, 247 (3d Cir.
2017) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)).
Pretrial detainees are entitled to at least as much protection from excessive
force as prisoners who have been convicted of a crime. Bistrian v. Levi, 912 F.3d 79,
91 (3d Cir. 2018) (citing Kost v. Kozakiewicz, 1 F.3d 176, 188 n.10 (3d Cir. 1993)).
Unlike prisoners who have been convicted of a crime, who may not be subjected to
cruel and unusual punishment, pretrial detainees “cannot be punished at all under
the Due Process Clause.” Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005) (citing
Bell, 441 U.S. at 520). Thus, pretrial detainees may not be subjected to “excessive
force that amounts to punishment.” Jacobs v. Cumberland Cnty., 8 F.4th 187, 194
(3d Cir. 2021) (quoting Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)).
Unlike excessive force claims under the Eighth Amendment, which require
plaintiffs to establish both an objective element and a subjective element to prove
excessive force, excessive force claims under the Fourteenth Amendment are based
exclusively on an objective-reasonableness standard. Id. (citing Kingsley v.
Hendrickson, 578 U.S. 389, 396-400 (2015)). Thus, a pretrial detainee seeking to
establish that the use of force was excessive “must show only that the force
purposely or knowingly used against him was objectively unreasonable.” Id.
(emphasis in original) (citing Kingsley, 578 U.S. at 396-97).
There is no mechanical formula for determining when force is objectively
unreasonable under the Fourteenth Amendment. Kingsley, 578 U.S. at 397 (citing
County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998)). Instead, courts and juries
must look to the particular facts and circumstances of the case, including “the
relationship between the need for the use of force and the amount of force used; the
extent of the plaintiff’s injury; any effort made by the officer to temper or to limit
the amount of force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff was actively
resisting.” Id. (citing Graham, 490 U.S. at 396). These circumstances should be
considered “from the perspective of a reasonable officer on the scene.” Id. (quoting
Graham, 490 U.S. at 396). A plaintiff can establish that the force used was excessive
if he shows that the force was “not ‘rationally related to a legitimate nonpunitive
governmental purpose’” or that the force used was “excessive in relation to that
purpose.” Id. (quoting Bell, 441 U.S. at 561).
Here, there are genuine issues of material fact as to whether the force used
by Mayer was excessive. Mayer argues that the force was reasonable and necessary
to gain control over Harrell when he refused to comply with Mayer’s orders, (Doc.
83 at 12), but because it is impossible to determine what is occurring during the
relevant portion of the video evidence, (see video evidence at 13:02:59 – 13:03:37),
there are genuine issues of material fact as to what force Mayer used and whether
such force was reasonable. Additionally, viewing the video evidence in the light
most favorable to Harrell, it appears that Mayer directed another officer to pepper
spray Harrell after the officers had already obtained physical control over Harrell
by wrestling him to the ground. Whether the use of pepper spray was reasonable in
these circumstances is a genuine issue of material fact.
Mayer’s qualified immunity argument fails for the same reason. A
government official is entitled to qualified immunity if the official’s conduct “does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5
(2021) (quoting White v. Pauly, 580 U.S. 73, 78-79 (2017)). “Qualified immunity
shields an officer from suit when [he] makes a decision that, even if constitutionally
deficient, reasonably misapprehends the law governing the circumstances [he]
confronted.” Taylor v. Riojas, 592 U.S. 7, 9 (2020) (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004)). Qualified immunity “protects all but the plainly incompetent
or those who knowingly violate the law.” Kisela v. Hughes, 584 U.S. 100, 104 (2018)
(quoting White, 580 U.S. at 79). Because qualified immunity is an affirmative
defense, the defendant asserting the defense has the burden to establish that it
applies. Mack v. Yost, 63 F.4th 227 (3d Cir. 2023) (citing Halsey v. Pfeiffer, 750 F.3d
273, 288 (3d Cir. 2014)).
Defendant Mayer acknowledges that the constitutional right at issue in this
case—the duty to be free from excessive force—was clearly established, but he
argues that he is entitled to qualified immunity because the use of force was
objectively reasonable in this case. (Doc. 83 at 25-26). This argument is
unpersuasive. As noted above, it simply cannot be concluded at this stage what
force Mayer used or whether such force was reasonable in the circumstances given
the lack of clarity in the relevant video evidence. Mayer’s motion for summary
judgment will accordingly be denied because there are genuine issues of material
fact as to whether plaintiff can establish his excessive force claim on its merits and
whether Mayer is entitled to qualified immunity from the claim.
IV. Conclusion
Plaintiff’s motion for summary judgment is denied, defendant Kothe’s motion
for summary judgment is granted, defendant Mayer and Kimmick’s motion for
summary judgment is granted in part and denied in part, and the case will proceed
solely with respect to the excessive force claim against Mayer. A status conference
will be scheduled to discuss whether the parties wish to proceed with mediation or
whether the case should be scheduled for trial. An appropriate order shall issue.
/S/ KELI M. NEARY
Keli M. Neary
United States District Judge
Middle District of Pennsylvania
Dated: July 16, 2025