Filed: May 21, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-21-2009 Kenneth McCullough v. Eric Miller Precedential or Non-Precedential: Non-Precedential Docket No. 08-4339 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Kenneth McCullough v. Eric Miller" (2009). 2009 Decisions. Paper 1334. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1334 This decision is brought to you for free and open a
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 5-21-2009 Kenneth McCullough v. Eric Miller Precedential or Non-Precedential: Non-Precedential Docket No. 08-4339 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Kenneth McCullough v. Eric Miller" (2009). 2009 Decisions. Paper 1334. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1334 This decision is brought to you for free and open ac..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-21-2009
Kenneth McCullough v. Eric Miller
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4339
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Kenneth McCullough v. Eric Miller" (2009). 2009 Decisions. Paper 1334.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1334
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-174 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4339
___________
KENNETH MCCULLOUGH,
Appellant
v.
ERIC M. MILLER, Pa. Corr. off.; T. STANLEY, Pa. C.O.;
LYNN DAVENPORT, Pa. C.O.; N. NEAL, Pa. Cor. Off.;
F. DALEY, Pa. Cor. Off. Witness; R. CULP, Pa. Cor. Off. Capt.;
SIMPSON, Pa. Cor. Off. Capt.; ELEANORE WEAVER, Pa. Misconduct
Hearing Examiner/Judge; DAVID MCCRAY, Pa. Cor. Off.; KATY WIMBUSH,
Pa. Cor. Off.; CHARLES SHANE, Pa. Corr. Off.; MARLENE STEWARD,
Pa. Corr. Off.; DAVID GOOD, Pa. Corr. Off.; PAUL STOWITZKY, Cor. Off.;
CHRISTINA SORBIN, Cor. Off.; LEE JOHNSON, Cor. Off. (African American);
HOLMES, Cor. Off. Lt.; JOHNSON, Cor. Off. (Caucasian); ROBERT S. BITNER,
Pa. Cor. Off. (Harrisburg); MCCONNELL, Pa. Cor. Off. Capt. Any and all other
Respondents later added
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 06-cv-00514)
District Judge: Honorable Gary L. Lancaster
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 30, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: May 21, 2009)
_________
OPINION
_________
PER CURIAM
Kenneth McCullough, an inmate at SCI at Pittsburgh, appeals from an order by the
District Court granting defendants’ motion for summary judgment. For substantially the
same reasons provided by the District Court, we will affirm.
I.
Because we write primarily for the parties, it is not necessary to recite the facts or
procedural history of this case except insofar as they are helpful to our brief discussion.
McCullough filed a civil rights action against defendants alleging a violation of his
Eighth Amendment rights. He based his complaint on an incident that occurred on July
15, 2004, in which he alleges that he was the victim of excessive force used by Officers
Miller, Davenport, Stanley, and Neal. According to McCullough, Officer Miller placed
him in a choke hold until he nearly passed out and then pushed him down a flight of
concrete and steel stairs. While he was semi-conscious at the bottom of the steps, Officer
Stanley spit in his face and repeatedly kicked him, Officer Davenport kicked him in the
face and ribs and continued to kick and stomp him when he fell on his side, and Officer
Neal stomped on him and called him a “worthless inmate.” McCullough also alleged that
Officer Daley was a witness to the incident. As to the remaining defendants, McCullough
claimed that Officers Culp, Simpson, Weaver, McCray, Wimbush, Shane, Steward, Good,
2
Stowitzky, Bitner, and McConnell had knowledge of McCullough’s assault, but
“exercised acquiescence” by signing a false misconduct report, affirming sanctions, or
refusing to investigate his assault claim.1
In addition to his excessive force claim, McCullough alleged that Officer Lee
Johnson spit in his food and put his mail in the trash, and that although Officer Holmes
knew that Lee Johnson had done so, he “exercised acquiescence” by standing by and
doing nothing to stop him.2 McCullough also alleged that another officer named Johnson
stuck his fingers in McCullough’s food and wiped his fingers with McCullough’s bread.
Defendants filed a motion for summary judgment arguing that (1) they were
entitled to qualified immunity; (2) McCullough failed to exhaust his administrative
remedies pursuant to 42 U.S.C. § 1997e; (3) McCullough cannot demonstrate that certain
named defendants had personal involvement necessary to establish liability; and (4) that
McCullough failed to show that the actions of officers Miller, Stanley, Davenport, Neal,
Lee Johnson, and Johnson constitute excessive force or cruel and unusual punishment in
violation of the Eighth Amendment. The defendants supported their contentions with
sworn declarations, prison disciplinary records, internal reports, and medical records.
McCullough filed a response to defendants’ motion, arguing that he was about to
1
It is not entirely clear what McCullough means by the phrase “exercise
acquiescence.” He may be alleging that these defendants are liable based on respondeat
superior.
2
McCullough also alleges that defendant Sorbin “exercised acquiescence,” but does
not explain how.
3
be paroled and had no motivation to jeopardize his release by assaulting a staff member.
He suggested that the incident occurred because the defendants “hated [him] so much.”
To show that he was about to be paroled, he attached an exhibit detailing his individual
treatment plan for his mental health and substance abuse problems. McCullough also
attached the same medical report that defendants attached to their motion to show that he
sustained minor injuries from the July 15 incident. He provided no other evidence to
counter defendants’ motion.
The District Court granted defendants’ motion for summary judgment based on the
report and recommendation provided by the Magistrate Judge. McCullough timely
appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. Because McCullough is proceeding
in forma pauperis, we must dismiss the appeal under 28 U.S.C. § 1915 (e)(2)(B) if it is
legally frivolous. We may summarily affirm if McCullough’s appeal presents no
substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. We exercise
plenary review over a district court’s grant of summary judgment. See Kaucher v. County
of Bucks, 455 F.3d 418, 422 (3d Cir. 2006). The District Court’s grant of summary
judgment will be affirmed if the record demonstrates that there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). An issue is material if “the evidence is such that a reasonable jury could return a
4
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
To overcome a motion for summary judgment, the non-moving party must “set out
specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). McCullough has
not done so. The attachments he provided are either unsworn, irrelevant, or support
defendants’ argument that McCullough sustained only minor injuries. See Adickes v. S.
H. Kress & Co., 398 U.S. 144, 158 n. 17 (1970) (unsworn statements in a brief do not
constitute evidence for purposes of summary judgment); Thornton v. United States,
493
F.2d 164, 167 (3d Cir. 1974).
III.
Turning to the defendants’ specific arguments, under the Prison Litigation Reform
Act (“PLRA”), prisoners must first exhaust their administrative remedies before filing an
action under section 1983. 42 U.S.C. §1997e(a); Spruill v. Gillis, 372 F.3d 218, 234 (3d
Cir. 2004) (failure to properly identify named defendants in a grievance constitutes a
failure to properly exhaust). Based on an affidavit by a prison official involved in
processing inmate grievances and appeals, defendants maintain that McCullough never
filed a grievance with regard to his claims against four of the defendants: Lee Johnson,
Sorbin, Holmes, and Johnson. In addition, this affidavit attests that McCullough did not
properly appeal a single grievance to the level of final review. McCullough does not
provide any evidence to counter this declaration. Based on the unchallenged affidavit,
5
summary judgment was appropriate in favor of all the defendants.
IV.
Finally, with respect to the remaining 11 defendants, McCullough’s main
allegation is that each had knowledge of the July 15 incident but “exercised
acquiescence” by approving false misconduct reports, affirming sanctions, or refusing to
investigate the assault. Prisoners cannot claim they were denied a constitutional right
based solely on the contention that officials filed false or unfounded misconduct charges.
Smith, 293 F.3d at 653-54 (“so long as certain procedural requirements are satisfied, mere
allegations of falsified evidence or misconduct reports, without more, are not enough . .
.”). Moreover, McCullough has presented no evidence to show that these reports were in
fact false. To the contrary, he attached to his response the same medical reports for which
defendants based their contention that his injuries were minor. McCullough also has not
shown that any prison official refused to investigate. Notably, defendants attach to their
motion a report of investigation conducted by defendant McConnell into McCullough’s
allegations of abuse, evidence which McCullough has not countered with evidence of his
own.
V.
As McCullough’s appeal presents no substantial question, we will summarily
affirm the District Court judgment. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
6
