Washington v. Gilmore

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JEROME JUNIOR WASHINGTON, Plaintiff, v. SUPERINTENDENT GILMORE, LIEUTENANT TROUT, SERGEANT DEMASKE, UNIT MANAGER LACKEY, C.O. ULIZIO, JOHN DOES 1-4, Defendants.

Civil Action No. 19-1461

United States District Court, W.D. Pennsylvania

March 17, 2022

Lisa Pupo Lenihan Magistrate Judge

OPINION

JOY FLOWERS CONTI, SENIOR UNITED STATES DISTRICT JUDGE

I. Introduction

This action arises under 42 U.S.C. § 1983 and was initiated by pro se plaintiff Jerome Junior Washington (“Washington” or “plaintiff”). Washington, who is presently incarcerated at the State Correctional Institution at Rockview (“SCI Rockview”) (ECF No. 68-1), was previously incarcerated at the State Correctional Institution at Greene (“SCI Greene”). He alleges that the defendants, Gilmore Trout, Demaske, Lackey, and Ulizio^[1] (collectively “named defendants”), who were employed by SCI Greene at all times relevant to this case, violated his rights guaranteed by the First, Eighth, and Fourteenth Amendments to the United States Constitution.

Currently pending before the court is a partial motion for judgment on the pleadings (ECF No. 33) filed by the named defendants. The motion was referred to a United States Magistrate Judge in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72 of the Local Rules for Magistrate Judges. The magistrate judge in a Report and Recommendation (“R&R”) recommended that the court grant the partial motion for judgment on the pleadings. Washington's timely objections to the R&R are now before this court.

As set forth in this opinion, Washington's objections are overruled, the R&R will be adopted in part and rejected in part. The partial motion for judgment on the pleadings will be: (1) granted to the extent some claims are dismissed with prejudice and some claims are dismissed without prejudice; and (2) denied with respect to the Fourteenth Amendment claim based upon violations of the Eighth Amendment, because that claim is subsumed into the Eighth Amendment claim.

II. Procedural History

On April 9, 2021, the named defendants filed a motion for judgment on the pleadings with respect to all claims, except for Washington's claim based upon violations of the Eighth Amendment (excessive force) and a brief in support of the motion. (ECF Nos. 33, 34.) On June 24, 2021, Washington filed a response in opposition to the motion. (ECF No. 51.) The motion for judgment on the pleadings was referred to the magistrate judge.

On December 15, 2021, the magistrate judge filed a R&R in which she recommended the court grant the partial motion for judgment on the pleadings. (ECF No. 62 at 1.) The magistrate judge explained that the parties had 14 days to file written objections to the R&R.

On February 8, 2022, Washington filed objections to the R&R. (ECF No. 65.) On February 23, 2022, the named defendants filed a response in opposition to the objections. (ECF No. 67.) On February 25, 2022, Washington filed a supplement to his objections. (ECF No. 68.) On March 15, 2022, Washington filed a second supplement to his objections. (ECF No. 73.) Washington's objections to the R&R are now ripe for disposition by the court.

III. Allegations in the Pleadings

A. Complaint-Washington's Factual Allegations

At all times mentioned in the complaint: Washington was a prisoner at SCI Greene; Gilmore was the Warden at SCI Greene; Trout was a correctional officer and held the rank of lieutenant at SCI Greene; Demaske was a unit manager at SCI Greene; Ulizio was a correctional officer at SCI Greene; and John Does 1, 2, 3, and 4 were correctional officers at SCI Greene. (ECF No. 20 at 1-2.) Trout, Demaske, Ulizio, and John Does 1, 2, 3, and 4 were assigned to the mental health “SRTU” program at SCI Greene. (Id.)

On December 13, 2018, at or around 8:35 a.m., Washington was in the nude taking a shower in “GB Unit Bottom T[ier] Shower.” (ECF No. 20 at 2.) Ulizio “continuously” went to the shower to “spy” on Washington and asked him “are you th[rough] yet[?]” (Id.) Washington would not respond to Ulizio. (Id.) At or around 9:38 a.m., Demaske asked Washington if he was ready to come out of the shower. (Id.) Washington did not respond to Demaske. (Id.) At or around 9:41 a.m., Demaske turned off the “GB Unit” shower water. He again asked Washington whether he was coming out of the shower. Washington did not respond. (Id.) Demaske said: “I don't care if you don't come out[.] I am going to leave your ass in [there]…all damn day[…]thinking I'm playing with you.” (Id.) Washington did not respond to Demaske. (Id.)

At or around 9:50 a.m., Demaske, Ulizio, and John Does 1, 2, 3, and 4 came back to the shower with a “big-can [sic] of mace already drawn.” (ECF No. 20 at 2.) Demaske yelled “put the razor down[, ] put the razor down[, ] and put your hand w[h]ere I can see them.” (Id.) Washington did not have a razor, and he put his hands up in the air. (Id.) Demaske yelled “y[‘]all see the razor[?]” (Id.)

On December 13 or 18, 2018, ^[2] two prison officials escorted Washington to receive his legal mail. (ECF No. 20 at 3.) Trout told the prison officials to take Washington to the law library after he received his legal mail. (Id.) McCone, another correctional officer, told the prison officials to take Washington to the “strip cage” because the law library was being used and “Trout would see … [Washington] in the strip cage.” (Id.) Trout said that on the same day:

- Trout either received a call or heard himself that there was a “disturbance on GB Unit and somebody got spray[ed]” (id.);

- Trout was told that Washington had the back end of a razor in the shower (id.);

- Trout retrieved his gas mask, went to Washington in the shower, and ordered Washington to “push the razor under the shower door” (id.);

-as Washington was on his knees, Washington “pushed out the back end to the razor” and Trout told Washington to “cuff up” so Washington could be “assess[ed] by medical” (id.);

- after Trout placed handcuffs on Washington, Washington was falling to the ground, and Trout ordered his officers to hold up Washington and to get something to cover Washington's naked body (id.);

- an orange smock was used to cover up Washington (id.);

- the razor blade did not have fingerprints on it because any fingerprints were washed off by the shower water (id.);

- Trout did not pick up the razor off the shower floor because he was “dealing” with Washington (id.);

- Trout lost track of the razor (id.);

- Washington was assessed and placed in the “P.O.C.” cell (id.); - Lackey ordered “accountability status” and sent her recommendation to Crum who signed off on the recommendation (id.);

- Crum conducted a security search of Washington's cell and could “destroy anything that belong[ed] to the state or that was… [given to Washington] by the state” and a confiscation slip was not required (id.);

- Trout would have to see the “tape” to determine what was taken out of Washington's GB10 cell and destroyed during the security search (id. at 4); and

- Lackey did not have to provide Washington with a “write up” to place Washington on “accountability status” (id.).

According to Washington, Trout participated in the “planned use of force” against Washington. (ECF No. 20 at 4.) Washington did not have a razor on December 18, 2018. (Id.) As a result of the planned use of force, Washington suffered burning in his penis, no sleep, “hair burning and [the] rest of… [his] body was on fire….” (Id.) Washington was deprived of showers, yard, and group. (Id.) Washington requests the removal from the positions of rank of Trout, Lackey, Demaske and Crum and for those officials to be laid off for one year without pay. Washington also requests $1, 500.00 until his grievance is resolved, punitive damages, monetary damages and compensation, and an injunction order that the defendants in this case must “stop abusing their authority.” (Id at 6-7.)

According to Washington, the defendants did not respond to his grievances with respect to the events set forth in the complaint. (ECF No. 20 at 6.)

Washington asserts § 1983 claims based upon the deprivation of his rights guaranteed by the First (access to the courts), Eighth (cruel and unusual punishment, excessive force), and Fourteenth (cruel and unusual punishment) Amendments to the United States Constitution. (ECF No. 20 at 6.)

B. Answer-The Named Defendants' Factual Allegations

At all times relevant to the complaint: Washington was a prisoner at SCI Greene (ECF No. 32 ¶ 1); Gilmore was a superintendent at SCI Greene (id. at ¶ 2); Trout was a lieutenant at SCI Greene (id. at ¶ 3); Demaske was a sergeant at SCI Greene (id. at ¶ 4); Lackey was a unit manager at SCI Greene (id. at ¶ 5); and Ulizio was a corrections officer at SCI Greene (id. at ¶ 6).

On December 13, 2018, Washington was involved in an incident in the shower of GB Housing Unit. (ECF No. 32 ¶ 9.) Uliizio, Demaske, and Trout were involved in the incident. (Id.) Washington was in the shower of GB Housing Unit and subjected to a burst of “OC spray” after refusing multiple orders to exit the shower and “making physical indications that he was going to commit self-harm with a razor.” (Id ¶ 9-1.)

Trout said:

- Trout either received a call or heard himself that there was a “disturbance on GB Unit and somebody got spray[ed]” (ECF No. 32 ¶¶ 10-2 10-4b);

- Trout was told that Washington had the back end of a razor in the shower (id.);

- Trout retrieved his gas mask, went to Washington in the shower, and ordered Washington to “push the razor under the shower door” (id. ¶ 10-2);

-as Washington was on his knees, Washington “pushed out the back end to the razor” and Trout told Washington to “cuff up” so Washington could be “assessed] by medical” (id. ¶ 10-3);

- after Trout placed

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