SUSAN PARADISE BAXTER, Magistrate Judge.
United States Magistrate Judge Susan Paradise Baxter
Plaintiff Maurice Stokes, a prisoner formerly incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania ("SCI Forest"), brings this action pursuant to 42 U.S.C. § 1983 against Captain Riskus ("Riskus"), Lieutenant Settnek ("Settnek"), Lieutenant Hidalgo ("Hidalgo"), and Sergeant Freeman ("Freeman"), all of whom are corrections officers at SCI-Forest; Michael Overmyer ("Overmyer"), the Superintendent of SCI-Forest who, during the relevant time period, was a Deputy Superintendent at SCI-Forest; and John Wetzel ("Wetzel"), Secretary of the Pennsylvania Department of Corrections ("DOC"). Pending before the Court are a motion for summary judgment [ECF No. 48] and supplemental motion for summary judgment [ECF No. 67] filed by Defendants. For the following reasons, the motions will be granted.
On June 25, 2013, Plaintiff returned to SCI-Forest following a temporary transfer to SCI-Graterford, where he was incarcerated while testifying against a co-defendant in a criminal case. As per his plea agreement, Plaintiff was eventually to be transferred out of state out of concern for his safety, but in the interim, he was to be housed at SCI-Forest. When Plaintiff returned to SCI-Forest, he met with the Initial Review Committee ("IRC") to determine his cell placement. Plaintiff requested to be placed in a single cell because of his cooperation and was issued an "Other" report, placing him in Administrative Custody ("AC"). Plaintiff also advised the IRC that the Philadelphia District Attorney's Office had a list of inmates from whom he needed to be separated, but the inmates' names were not provided at that time.
At the time, Hidalgo and Dietrich were working in the Restricted Housing Unit ("RHU"). Hidalgo was responsible for determining in which cell to place Plaintiff. Typically, when an inmate arrived in the RHU, Hidalgo would ask him questions about physical or sexual assaults or gang affiliations to determine where to place him. He would also ordinarily check the inmate's "separations" and other information about the inmate and his potential cellmate on DOCNET. In this case, however, Hidalgo has no memory of Plaintiff or the matters alleged in this lawsuit.
According to Plaintiff, when he was taken to the RHU, he reiterated his request to be placed in a single cell because he feared for his safety. He was apparently told, however, that there was not enough room to place him in a single cell. Hidalgo, instead, placed Plaintiff in Cell JA 1010. Once he was taken to his cell, he went inside without incident, though he did continue to complain that he wanted a single cell.
Plaintiff's cellmate was Mustafa McCloud, who had been transferred from SCI-Huntington to SCI-Forest on June 20, 2013. While at SCI-Huntington, McCloud had been in Disciplinary Custody ("DC") after a fight with another inmate and then was placed on AC status pending a separation transfer to SCI-Forest. The report placing McCloud on AC status indicated that "he [was] a danger to others." [Ex. 31, ECF No. 51-7 at 117]. Upon his arrival at SCI-Forest, McCloud was to be kept on AC status for one week before transitioning into general population.
Although Plaintiff did not realize it when he entered his cell, he and McCloud were from the same neighborhood, and Plaintiff used to "see him around." [Pl.'s Dep. at 15:9, ECF No. 51-2 at 23]. Plaintiff had not seen McCloud for approximately 10 years, though, nor was Plaintiff close to him; they had mutual friends but did not "deal with each other." [Pl.'s Dep. at 15:13, ECF No. 51-2 at 23]
When Plaintiff entered the cell, McCloud "didn't let [him] know that he knew who [Plaintiff] was." [Pl.'s Dep. at 15:20, ECF No. 51-2 at 23]. In the middle of that night, Plaintiff awoke to McCloud punching him and trying to pull him out of his bunk. A scuffle allegedly ensued, with the inmates punching each other and wrestling around the cell. During a lull in the fighting, McCloud asked Plaintiff "you don't know who I am"? [Pl.'s Dep. at 22:5, ECF No. 51-2 at 30]. When Plaintiff said "no," McCloud "told [him] who he was. And he said he [knew] that [Plaintiff] testified on Saheed, [Plaintiff's] co-defendant, and he said . . . that's why that happened." [Pl.'s Dep. at 22:6-9, ECF No. 51-2 at 30]. Plaintiff testified that he had swelling and bruising from the assault, along with a "busted" lip. But he did not seek any medical attention for his injuries, nor does he have any lingering effects from the injuries. [Pl.'s Dep. at 58:2, ECF No. 51-2 at 66].
The next day, Plaintiff approached Freeman while he was in the yard and told him that he had been assaulted in his cell and that he "wasn't going back in there." [Pl.'s Dep. at 29:17, ECF No. 51-2 at 37]. Freeman remembers that Plaintiff would not return to his cell but does not recall why. According to Plaintiff, Freeman seemed to blow him off and went to get Settnek, who was also on duty in the RHU that day. [Pl.'s Dep. at 30:1-2, ECF No. 51-2 at 38]. When they returned, Plaintiff explained what happened to Settnek, who was initially going to make Plaintiff go back to a cell with another inmate. Plaintiff refused. At that point, Plaintiff testified, Freeman and Settnek discussed the matter alone and then came back and told Plaintiff that they would put him in a single cell but that "[he] better not run [his] mouth or [Settnek] was going to let everybody know that [Plaintiff] was a rat or a snitch." [Pl.'s Dep. at 31:4-6, ECF No. 51-2 at 39]. Settnek and Freeman deny threatening to call Plaintiff a rat or a snitch.
Thereafter, Plaintiff was placed in a single cell on the B pod, Cell JB 2014. The next day, Plaintiff was seen by the Program Review Committee ("PRC"), which decided to keep Plaintiff in AC in a single cell. He was housed in a single cell until he was transferred from SCI-Forest to SCI-Huntington in September 2013.
Plaintiff claims that after he was placed in Cell JB 2014, other inmates started to harass him by banging on their cell walls and yelling that he was a rat or a snitch. When asked during his deposition whether he was alleging that either Settnek or Freeman told these inmates that he had cooperated against his co-defendant, Plaintiff testified, "I can't say that they told them because I didn't hear them tell them that, but it was widespread of what happened, so it's a possibility they found out on their own." [Pl.'s Dep. at 37:9-11, ECF No. 51-2 at 45]. Plaintiff was then asked, "So you don't have anything specifically that Setnick [sic] or Freeman or any staff person told [the other inmates]? You just don't know one way or the other?" [Pl.'s Dep. at 37:13-15, ECF No. 51-2 at 45]. Plaintiff responded, "Right." [Pl.'s Dep. at 37:16, ECF No. 51-2 at 45].
Plaintiff claims that sometimes he would go days without sleeping because of the banging and yelling. He also alleges that other inmates threw urine or feces at him on about four occasions. [Pl.'s Dep. at 46:1, ECF No. 51-2 at 54]. On two of those occasions, the urine and feces was thrown "at a distance" so it did not "touch [Plaintiff]." [Pl.'s Dep. 47:7, ECF No. 51-2 at 55]. Plaintiff testified that, as a result of the alleged incidents, he stopped coming out of his cell.
On July 20, 2013, Plaintiff sent a request slip to then-Deputy Superintendent Overmyer, in which he wrote, in pertinent part:
[Ex. 12, ECF No. 51-1 at 88]. Overmyer responded on July 23, 2013, explaining, "The separations are being processed between Central Office [and] the D.A. When [SCI-Forest] staff know what is happening, you will be notified." [
On July 22, 2013, the Philadelphia D.A.'s Office faxed a "Request for Separation" to Lt. Haggerty containing a list of Plaintiff's "separations." E-mails indicate that on that same day, Corrections Classification and Program Manager ("CCPM") William Cole was asked to determine where the inmates on the separations list were housed. Cole, in turn, forwarded the list to Unit Manager Edward Heberling and asked him to investigate. Heberling determined that two of the individuals on the separations list were housed at SCI-Forest and forwarded that information to Deputy Superintendent Eric Tice and Overmyer.
Plaintiff testified that he told Settnek and Riskus about the alleged harassment and asked to be moved to a different cell because of the noise and because every time he left his cell, someone was throwing something at him. [Pl.'s Dep. at 50:20, ECF No. 51-2 at 58]. Moreover, on July 24, 2013, Plaintiff wrote a request slip to "RHU Lieutenant" asking to be moved to a shower cell on D pod because of the alleged harassment. (This request slip was not answered, so it is not clear whether it was, in fact, sent.). The next day, Plaintiff made the same request to Riskus, complaining that he could not leave his cell because he had "people tryna [sic] throw `ass and shit' on [him]." [Ex. 12, ECF No. 51-1 at 90]. Riskus responded that he could not authorize the move if Plaintiff did not have a Z-code, which denotes single-cell status, because D pod only contains single cells.
On July 28, 2013, Plaintiff sent a request slip to Cole "to find out what separations were submitted by the D.A.'s office." [Ex. 12, ECF No. 51-1 at 91]. Cole responded, "The DA Office needs to relay that to you." [
On July 29, 2013, Plaintiff wrote to his counselor, David Perry, asking for a copy of the separations list. [Ex. 12, ECF No. 51-1 at 92]. Perry responded, "No we do not tell you who you have separations from." [
The following day, Plaintiff wrote a request slip to Ms. Ashbaugh-Tenney, a licensed professional counselor at the prison, complaining that he was "being denied [his] eighth amendment right to be free from cruel and unusual punishment as [he was] the victim of constant verbal and physical abuse and everyone up to Capt. Riskus has been made aware and told me there's nothing they can do about it." [Ex. 12, ECF No. 51-1 at 93]. Plaintiff claimed that he was "barely sleeping due to the constant banging on [his] wall" and that he "had urine thrown on [him] twice and feces thrown at [him]." [
On August 5, 2013, Plaintiff wrote to Perry, telling him that he was wrong that Plaintiff was "not allowed to know separations entered on [his] behalf as it is not privileged information nor is it a security risk." [Ex. 12, ECF No. 51-1 at 93]. Thus, Plaintiff requested a copy of his separations list. However, Perry again refused to provide it, saying that he was not allowed. [
On August 15, 2013, Plaintiff was moved to Cell JC 1011, where he remained until he was transferred to SCI-Huntington on September 17, 2013. According to Plaintiff, he did not have any problems with continued harassment after he was transferred to the C pod.
On August 20, 2013, Major Paul Ennis of SCI-Forest sent an e-mail to Tracy Comeaux, a staff member in the DOC's Office of Population Management, explaining that SCI-Forest
[Ex. 16, ECF No. 61-1 at 4 (under seal)]. The next day, a vote sheet was sent around to various SCI-Forest officials, who approved the separation requests. [
On September 17, 2013, Plaintiff was transferred to SCI-Huntington, where he was given temporary Z-code status and housed in a single cell. On September 27, 2013, officials at SCI-Huntington approved the Philadelphia DA Office's request for an interstate transfer, and he was transferred out of state.
Plaintiff filed Grievance 469864 on July 21, 2013, alleging that his Eighth Amendment rights were being violated because prison administrators refused to take steps to protect him from assaults. In addition, he alleged that SCI-Forest officials had "done nothing but ignore [his] requests for separations." [Ex. 10, ECF No. 51-1 at 72]. Overmyer was the only Defendant named in this grievance. On August 19, 2013, the grievance was denied by Capt. Hacherl on the basis that Plaintiff's unit team had updated him as to the status of his separation requests. It was also noted that, on July 22, 2012, SCI-Forest received a document from the Philadelphia DA's Office on behalf of Plaintiff requesting that Plaintiff be separated from certain identified inmates. Hacherl, moreover, found that SCI-Forest had taken reasonable efforts to ensure Plaintiff's safety by placing him in AC. Plaintiff did not appeal the denial of Grievance 469864.
On July 25, 2013, Plaintiff filed Grievance 470926, in which he alleged that he had been assaulted in his cell on June 25, 2013. [Ex. 11, ECF No. 51-1 at 77-78]. He also described how he informed Freeman and Settnek about the assault and how they threatened to label him a "snitch." Aside from Freeman and Settnek, no other CO is named in this grievance. As relief, Plaintiff requested an "adjustment be made to the administrative custody procedures. So that protective custody inmates are separated and only housed with protective custody inmates." [
On August 11, 2013, Plaintiff filed Grievance 472637, alleging, in part, as follows:
[Ex. 13, ECF No. 51-1 at 96-97]. Plaintiff requested to be moved to a single shower cell on C pod to limit further harassment and to have Riskus reprimanded. On September 5, Tice issued a response upholding in part and denying in part Plaintiff's grievance. Tice also directed that Plaintiff be moved to another pod in the RHU "to ease [the] burden of feeling targeted." [
On September 12, 2013, Plaintiff filed Grievance 477290, complaining that he had not been allowed to see a copy of the separations list. He also provided the names of individuals from whom he needed to be separated. In response, Plaintiff was given the names of the individuals on the separations list forwarded by the DA's Office.
Plaintiff instituted this action on February 28, 2014, by filing a pro se complaint pursuant to 42 U.S.C. § 1983, against Riskus, Settnek, Freeman, Overmyer, Wetzel, and "John Doe." On August 29, 2014, Defendants filed a partial motion to dismiss [ECF No. 14] with respect to the claims against Wetzel and the claims against all named Defendants to the extent they arose from the alleged conduct of the John Doe Defendant and other unnamed guards. By Opinion and Order dated March 24, 2015, the Court granted the motion in part and denied it in part, dismissing all claims against Wetzel, except for Plaintiff's claim alleging a failure to write into policy procedures to protect the safety of protective custody inmates; all claims against Riskus, Settnek, Freeman, and Overmyer to the extent they related to the conduct of John Doe, the unnamed guards, and Wetzel; and all claims against John Doe. [ECF No. 20 at 10].
On May 11, 2015, Plaintiff sent the Court a letter, asking to reinstate his claim against John Doe. [ECF No. 25]. The Court construed Plaintiff's request as a motion to appoint counsel, and directed the Clerk of Courts to request an attorney to consider representing Plaintiff in this matter. [ECF No. 28]. On August 31, 2015, Plaintiff's current counsel accepted the request to represent him and entered their appearances on his behalf. [ECF Nos. 32-34].
Following the close of discovery, Defendants filed a motion for summary judgment, with a concise statement of material facts ("CSMF"), appendix, and a brief in support. [ECF Nos. 48-51]. That same day, Plaintiff, through counsel, sought leave to file an amended complaint to clarify his Eighth Amendment failure to protect claim against Defendants; to add Hidalgo as a party, as he had been identified during discovery as the John Doe Defendant; and to add a "claim" for punitive damages. [ECF No. 53 at 3]. On January 6, 2017, the Court held a telephonic hearing, during which it granted Plaintiff's motion for leave, while permitting Defendant to supplement their summary judgment motion to address the new claim against Hidalgo. [ECF No. 62].
Plaintiff filed his amended complaint later that day. [ECF No. 64]. In count I, Plaintiff alleges an Eighth Amendment failure to protect claim against Hidalgo. In count II, he alleges a failure to protect claim against Riskus, Settnek, Freeman, and Overmyer. More specifically, he alleges that "[b]y failing to protect [him] from McCloud's assault and the subsequent harassment by other inmates, and by failing to timely process [his] separations, Defendants deprived [him] of his Eighth Amendment right . . . ." [
Defendants filed their supplemental motion for summary judgment [ECF No. 67], with a brief in support, on January 27, 2017, in which they address the claim against Hidalgo as well as what they label Plaintiff's "[n]ew [c]laim [r]egarding [the] [s]eparation [p]olicy." [ECF No. 68 at 7]. Plaintiff filed a brief in opposition to Defendants' motion and supplemental motion, along with a response to Defendants' CSMF, on February 27, 2017. [ECF Nos. 69-70]. Having been fully briefed, the motion and supplemental motion are ripe for disposition.
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be granted if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(e)(2) further provides that when a motion for summary judgment is made and supported, "an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in this rule-set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party."
A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. Fed. R. Civ. P. 56(C). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims.
The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim.
When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material.
A material fact is a fact whose resolution will affect the outcome of the case under applicable law.
Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This language is mandatory.
The PLRA also mandates that inmates "properly" exhaust administrative remedies before filing suit in federal court.
Defendants argue that Plaintiff failed to exhaust his administrative remedies with respect to his claim against Hidalgo. Plaintiff does not dispute that Hidalgo was not identified in his grievances; however, he argues that SCI-Forest excused his failure to identify Hidalgo during the grievance process.
The PLRA, itself, does not require a prisoner to have named each individual whom he sues in a prior grievance.
The Pennsylvania Department of Corrections ("DOC") has implemented an official Inmate Grievance System, which is governed by Administrative Directive 804 ("DC-ADM 804").
Relying on
Plaintiff alleges that Overmyer demonstrated deliberate indifference by ignoring his requests for help when he complained about the alleged harassment. According to Defendants, Plaintiff failed to exhaust his administrative remedies with respect to this claim because "[h]e only filed one grievance, Grievance 472637, about the alleged harassment he faced" and that grievance "in no way can be construed to be asserted against Supt. Overmyer." [ECF No. 49 at 15]. The Court disagrees.
In Grievance 472637, which was unsuccessfully appealed to both levels of review, Plaintiff wrote that "everyone from the c/os to the superintendent either has personal knowledge or I have written informing them asking nothing more than to be moved and no one will help." [Ex. 13, ECF No. 51-1 at 96]. He also wrote that he had "written PRC and the deputies, [his] counselor (Mr. Perry), the psychologist and Superintendent asking and begging them" for help, but to no avail. [
Plaintiff alleges that Wetzel "failed to implement a policy to deal with the processing of inmate separations." [ECF No. 69 at 36]. He further alleges in the amended complaint that other Defendants "failed to diligently process the list of `separations' and [he] was housed for nearly two months at SCI-Forest without the proper separations in place." [ECF No. 64 ¶¶ 55, 57]. Defendants contend that Plaintiff did not exhaust administrative remedies with respect to this claim because "Plaintiff only brought this issue up in one grievance, Grievance 469864, which was not exhausted because it was not appealed to final review." [ECF No. 68 at 8].
Defendants are correct that "[a]n inmate must exhaust all three levels of review and comply with all procedural requirements of the grievance review process in order to fully exhaust an issue."
To begin with, Plaintiff's appeal to equitable considerations must be rejected out of hand. Since it is framed in mandatory terms, "the PLRA prevent[s] a court from deciding that exhaustion would be unjust or inappropriate in a given case."
While Plaintiff contends that this exception to the exhaustion requirement is met, the Court reaches the opposite conclusion. A prison's administrative remedies are considered "available" if they are "`capable of use' to obtain `some relief for the action complained of.'"
The facts here do not fall into any of those categories. Plaintiff's first argument — that the grievance process was not available because "he was never made aware of the extent of the DOC's failure to diligently obtain and process his separations" — is a nonstarter. The Court fails to see how the Defendants' decision not to provide Plaintiff with information about his separation requests prevented him from appealing Grievance 469864. He had enough information to file the grievance, so it is inexplicable why he did not also have enough information to file an appeal. If anything, each of the alleged failures described by Plaintiff gave him reason to file additional grievances. But in no way did they did not foreclose his ability to appeal the initial denial of Grievance 469864. The same is true for Plaintiff's second argument — that he was thwarted from using the grievance process because of the unit manager's alleged delay in responding to his appeal of an entirely separate grievance, Grievance 470926. While such a delay may have affected Plaintiff's ability to timely appeal Grievance 470926 to the final level of review, there is no basis for concluding that it affected his ability to appeal Grievance 469864, which is the grievance that actually dealt with the separations issue. Accordingly, the Court concludes that Plaintiff failed to establish that the prison grievance system was unavailable to him with regard to Grievance 469864. Since he did not appeal the denial of that grievance through all three levels of review, he failed to exhaust his administrative remedies, and summary judgment must be granted in Defendants favor as to this claim.
To state a claim under the Eighth Amendment, a prisoner must show that "(1) he was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to that substantial risk to his health and safety, and (3) the official's deliberate indifference caused him harm."
Plaintiff claims that Settnek and Freeman exhibited deliberate indifference to his safety by labeling him a snitch or a rat. Defendants move for summary judgment as to this claim, arguing that there is no evidence that either Settnek or Freeman actually carried out the alleged threat to label him a snitch or a rat. Plaintiff, however, argues that there is a genuine issue of fact as to whether they did so. In support of that assertion, Plaintiff points to the fact that after he "was placed in a single cell, other inmates began banging on the walls of his prison cell, calling him a `snitch.'" [ECF No. 70 at 23].
Courts in the Third Circuit have recognized that "`[l]abeling an inmate as a snitch may give rise to an Eighth Amendment violation if the prison official acted with deliberate indifference to a substantial risk of serious harm to the inmate.'"
Upon review of the record, the Court concludes that Plaintiff has not adduced sufficient evidence to create a genuine issue of fact as to whether he was labelled a snitch by Settnek and Freeman and, in turn, whether he faced a substantial risk of harm. In fact, there is no evidence to support Plaintiff's contention. As Plaintiff, himself, testified during his deposition:
[Pl.'s Dep. at 37:9-16, ECF No. 51-2 at 45].
While Plaintiff invites the Court to infer that Settnek and Freeman carried out their alleged threat because other inmates banged on his cell walls and called him a snitch, this is not a reasonable inference to draw from the evidence of record. It is pure speculation. Absent any evidence that Settneck or Freeman labelled Plaintiff a snitch or a rat (e.g., testimony or affidavits from other inmates or Plaintiff himself, for that matter), Plaintiff cannot succeed on this claim since it is well established that verbal threats and harassment, in and of themselves, do "not give rise to a constitutional violation."
Plaintiff claims that the Defendants "failed to ensure that [he] was not subjected to harassment by other prisoners as a result of his being labeled a `snitch.'" [ECF No. 64 ¶ 55]. Defendants argue that Plaintiff failed to establish that he was subjected to a substantial risk of harm or that any of these Defendants subjectively believed that Plaintiff faced such a risk.
The Court agrees with Defendants that Plaintiff has not established the two requisite elements to impose liability on these Defendants under the Eighth Amendment. "To meet the objective criteria of an Eighth Amendment claim, a plaintiff must show that the risk of injury from the conditions to which he was exposed was `so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.'"
Plaintiff, moreover, testified about two occasions when urine and/or feces was thrown at him and actually made contact. Courts in the Third Circuit have considered similar allegations insufficient to state a claim under the Eighth Amendment.
Nor has Plaintiff adduced evidence that Settnek, Riskus, or Overmyer was deliberately indifferent. As Defendants argue, there is no evidence that Overmyer was ever informed that Plaintiff was being harassed because he was perceived to be a "snitch." In addition, although Plaintiff claims that he told Settnek and Riskus about what was occurring, there is no evidence that their response was not reasonable, let alone deliberately indifferent. Accordingly, these Defendants are entitled to summary judgment as to this claim.
Plaintiff alleges that the DOC's AC Policy creates an unreasonable risk of harm by allowing inmates who are in AC because they have cooperated in the prosecution of criminal cases to be housed with inmates who are in AC for other reasons.
As the Third Circuit Court of Appeals has explained:
Here, Plaintiff has not established that Wetzel was subjectively aware of the risk created by the allegedly inadequate policy. There is no evidence of a pattern of prior assaults against inmates in AC for their own protection by inmates in AC for other reasons. Additionally, the Court cannot infer that the risk of harm to inmates in Plaintiff's position was so obvious under these circumstances that Wetzel should be charged with awareness of it.
An appropriate Order follows.
