Farlow v. B. Conway

Full title: HASHIM FARLOW, Plaintiff, v. B. CONWAY, Defendant.

Court: United States District Court, Middle District of Pennsylvania

Date published: Aug 5, 2021

CIVIL 3:20-CV-349 (M.D. Pa. Aug. 5, 2021)

Opinion

CIVIL 3:20-CV-349

08-05-2021

HASHIM FARLOW, Plaintiff, v. B. CONWAY, Defendant.

Martin C. Carlson United States Magistrate Judge

Mannion Judge

REPORT AND RECOMMENDATION

Martin C. Carlson United States Magistrate Judge

I. Introduction

This case, which comes before us for consideration of a motion for summary judgment (Doc. 31), calls upon the court to examine the contours of the Eighth Amendment's prohibition against cruel and unusual punishment in the context of verbal harassment and the alleged use of a homophobic slur on a single occasion by a correctional officer. As discussed below, while we condemn the conduct alleged here and conclude that such alleged conduct is thoroughly deplorable, under prevailing constitutional norms that have developed in this field it cannot be said that this isolated incident rose to the level of a constitutional infraction. Therefore, it is recommended that the defendant's motion for summary judgment be granted. 1

II. Statement of Facts and of the Case ¹

1 This statement of facts is taken from the parties' submissions to the extent that those submissions are supported by independent evidence.

Construed in a light most favorable to the plaintiff, the essentially undisputed facts in this case are as follows: In September of 2019, the plaintiff, Hashim Farlow, was an inmate housed at the State Correctional Institution (SCI) Dallas. At SCI Dallas, inmates were required to produce a state identification card to prison staff in order to move from their housing units to the prison cafeteria for meals, and inmates were expected to safeguard and retain their state identification cards. However, if an inmate did not possess a state identification card, the prisoner could request and receive a temporary pass from correctional staff. Prisoners provided these temporary passes would then turn the pass into a correctional officer at the conclusion of each trip. Correctional staff retained the temporary passes, and inmates were required to request new passes each time they left the housing unit for meals. In September of 2019, Farlow, who had lost his state identification card, was familiar with this procedure and had used it approximately 10 times prior to September 23, 2019.

On September 23, 2019, Farlow asked the defendant, Correctional Officer Conway, to issue him a temporary pass so he could go to his noon meal. Conway issued the pass to Farlow, making notations on the pass which Farlow did not 2 initially notice. Later, when Farlow examined the pass he could see that Conway had written a homophobic slur, “Homo, ” on the pass next to his name.

Farlow did not utilize the pass or share it with anyone else within the institution. Instead, he skipped his noon meal and obtained a different temporary pass from another correctional officer at dinner time on September 23, 2019. While this single incident in which Farlow alleges that Conway placed a homophobic slur on a temporary pass is the only episode of sexual harassment that Farlow directly attributes to Conway, Farlow has stated that he was the subject of rumors and harassment regarding his perceived sexual orientation within his housing unit over the next two days. Farlow suspected that Conway instigated this harassment, but when questioned regarding the basis for this suspicion, Farlow simply based this conclusion on what he described as hearsay statements from unidentified prisoners whose names he refused to disclose.

After two days of alleged verbal harassment by other, unnamed persons, on September 25, 2019, Farlow became angry and punched a window in the housing unity dayroom. Farlow suffered a self-inflicted injury to his left wrist as a result of this incident, was treated at a local hospital, and received stitches for his injury.

Thus, Farlow's Eighth Amendment sexual harassment claim against Defendant Conway rests upon a single encounter in which Conway wrote a homophobic slur on a temporary pass issued to Farlow, a pass that Farlow did not 3 disseminate to anyone else inside the prison. There is no other admissible, direct evidence tying Conway to any sexual harassment allegedly experienced by Farlow, and there are no allegations that Conway ever physically or sexually assaulted Farlow or engaged in any other kind of inappropriate or offensive physical contact with the plaintiff.

It is against the backdrop of these undisputed facts that the defendant has moved for summary judgment, arguing that even taken in a light most favorable to the plaintiff, this conduct does not rise to the level of a constitutional infraction. (Doc. 31). While the actions attributed to Conway are entirely inappropriate, abhorrent, and unprofessional, for the reasons set forth below, we conclude that this single isolated use of a slur on a document that was not otherwise disseminated does not constitute a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Therefore, we recommend that the defendant's motion for summary judgment be granted.

III. Discussion

A. Motion for Summary Judgment - Standard of Review

The defendant has filed this motion for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant 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. 4 P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id, at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary 5 judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue 6 of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall 660 F.2d 517, 519 (3d Cir. 1981)).

Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:

To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court

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cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.

Id In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

B. Standard of Review-Eighth Amendment Claims of Verbal and Sexual Harassment

In a single, simple declarative sentence, the Eighth Amendment to the United States Constitution provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth Amendment's prohibition against cruel and unusual punishment applies in a correctional setting and thus imposes substantive constitutional limits upon correctional staff in their contacts with inmates who are entrusted to their care and custody.

Courts have considered the application of this constitutional provision to allegations of verbal and sexual harassment of inmates by correctional staff, and over time a number of guiding legal principles have emerged. First, as a general matter:

It is well settled that verbal harassment of a prisoner, although deplorable, does not violate the Eighth Amendment. See McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); see also Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (rejecting the Eighth Amendment claim of a prisoner who alleged that he "was verbally harassed, touched, and

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pressed against without his consent" because "[n]o single incident that he described was severe enough to be 'objectively, sufficiently serious.'").

Robinson v. Taylor, 204 Fed.Appx. 155, 156 (3d Cir. 2006). See, e.g., Rister v. Lamas, 4:CV-10-1574, 2011 WL 2471486 (M.D. Pa. June 21, 2011); Patterson v. Bradford, CIV. 10-5043 NLH, 2011 WL 1983357 (D.N.J. May 20, 2011); Williams v. Bradford, CIV. 10-5120 JBS, 2011 WL 1871437 (D.N.J. May 13, 2011); Ringgold v. Lamby, 565 F.Supp.2d 549, 553 (D. Del. 2008); Sharpe v. Costello, 1:06 CV 1493, 2007 WL 1098964 (M.D. Pa. Apr. 11, 2007). Therefore, generalized allegations of verbal harassment, standing alone, fail to state a valid Eighth Amendment claim. Mimms v. U.N.I.C.O.R., 386 Fed.Appx. 32, 35 (3d Cir. 2010) (verbal harassment of a prisoner, without more, does not violate the Eighth Amendment); Lindsey v. O'Connor, 327 Fed.Appx. 319, 321 (3d Cir. 2009) (verbal harassment of a prisoner, although distasteful, does not violate the Eighth Amendment).

However, there are corollaries and caveats to this general principle that apply in cases involving allegations of inmate sexual harassment or abuse by correctional staff. According to the Third Circuit:

[P]rison sexual abuse can violate the Constitution. See Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012); Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000); Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). We agree that “sexual abuse of prisoners, once overlooked as a distasteful blight on the prison system, offends our most basic

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principles of just punishment.” Crawford v. Cuomo, 796 F.3d 252, 260 (2d Cir. 2015). Sexual abuse invades the most basic of dignity interests: to be treated as a human being. We condemn such abuse as it is “simply not part of the penalty that criminal offenders pay for their offenses against society.” Boddie, 105 F.3d at 861 (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).

Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018).

In determining when institutional sexual harassment or abuse constitutes the type of cruel and unusual punishment forbidden by the Eighth Amendment, the appellate court adopted a subtle and multi-faceted approach, noting that:

As this inquiry is necessarily contextual, fact-specific, and to be conducted in the first instance by the District Court, we decline to craft a mechanical factors test for when sexual contact is objectively, sufficiently serious. The scope, place, and timing of the offensive conduct will bear on its severity, as will the details of the alleged contact. But it goes without saying that objectively serious sexual contact would include sexualized fondling, coerced sexual activity, combinations of ongoing harassment and abuse, and exchanges of sexual activity for special treatment or to avoid discipline. In context, including whether it violates established prison procedures, other sexualized touching may also be objectively serious.

Id at 478.

Further, in undertaking this constitutional calculus,

[A] single incident, if sufficiently serious or severe, can run afoul of the Eighth Amendment as surely as can multiple, less egregious incidents. While a pattern of harassment and sexualized touching may more clearly be considered objectively “cruel and unusual, ” that does not diminish the harm that may arise from an isolated act.

Id at 477. 10

In addition, the presence or absence of physical force or compulsion, while relevant, is not determinative of whether incidents of sexual abuse or harassment offend constitutional principles. As the Court of Appeals has observed:

[T]he absence of force or injury will not doom a sexual abuse claim outright. Although physical injury will certainly signal severity, it is not the touchstone for objective seriousness. Whether an action is sufficiently harmful to be cruel and unusual cannot be determined only by looking at physical injury, because an abusive sexual encounter may not leave any marks. Indeed, sexual abuse “tend[s] rather to cause significant distress and often lasting psychological harm.” Washington, 695 F.3d at 643.

Id. (footnote omitted).

It is against this analytical paradigm that we assess Farlow's Eighth Amendment sexual harassment claim.

C. The Defendant is Entitled to Summary Judgment.

Applying the multi-facetted analysis prescribed by the court in Ricks, we are constrained to conclude that the actions ascribed to Correctional Officer Conway, while deplorable, do not reach the level of a violation of the Eighth Amendment. While the contextual and fact-specific inquiry called for by Ricks allows for Eighth Amendment claims based upon “combinations of ongoing harassment and abuse, ” the understandable focus of the Ricks test is upon physically invasive actions or conduct that breaches intimate privacy interests. Id. Moreover, the Ricks court's emphasis upon “ongoing harassment and abuse” strongly suggests that a single, 11 isolated instance of alleged verbal harassment will meet the threshold for a constitutional violation in only the most aggravated and severe of cases.

Given these legal guideposts, this episode simply does not fit within the paradigm described by the Court of Appeals in Ricks. Even when we construe the evidence in a light most favorable to the plaintiff, the only action we can attribute to Correctional Officer Conway is writing a homophobic slur on a temporary pass that was issued to Farlow on September 23, 2019, but was never used or disseminated by Farlow to others inside the prison. Thus, there is no evidence of any physical contact between Farlow and Conway, and the direct evidence against Conway is limited to this single instance in which the officer inscribed a homophobic invective on a pass tendered to Farlow.

Farlow's efforts to broaden his claim beyond this single isolated incident into something that more closely resembles ongoing harassment and abuse by suggesting that Conway also spread rumors about his sexuality throughout the housing unit are unavailing. On this score, Farlow relies upon rank hearsay in making this claim, alleging that unidentified declarants whose identities he refused to disclose attributed these rumors to Conway. Farlow's efforts to defeat this summary judgment motion through this type of hearsay evidence run afoul of a basic rule of summary judgment practice. A party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual 12 disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). This rule applies with particular force to parties who attempt to rely upon hearsay statements to establish material issues of fact which would preclude summary judgment. With respect to such claims, it is well-settled that: “In this circuit, hearsay statements can be considered on a motion for summary judgment [only] if they are capable of admission at trial.” Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220, 223, n.2 (3d Cir. 2000), citing Stelwagon Mfg. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275, n.17 (3d Cir. 1995). In this regard it has been aptly observed that:

It is clear that when considering a motion for summary judgement, a court may only consider evidence which is admissible at trial, and that a party cannot rely on hearsay evidence when opposing a motion for summary judgment. See Buttice v. G.D. Searle & Co., 938 F.Supp. 561 (E.D. Mo. 1996). Additionally, a party must respond to a hearsay objection by demonstrating that the material would be admissible at trial under an exception to hearsay rule, or that the material is not hearsay. See Burgess v. Allstate Ins. Co., 334 F.Supp.2d 1351 (N.D.Ga. 2003). The mere possibility that a hearsay statement will be admissible at trial, does not permit its consideration at the summary judgment stage. Henry v. Colonial Baking Co. of Dothan, 952 F.Supp. 744 (M.D. Ala. 1996).

Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582, * 9 (W.D.Pa. Aug. 26, 2005). Thus, a party may not rely upon inadmissible hearsay assertions to avoid summary judgment. Therefore, where a party simply presents inadmissible 13 hearsay declarations in an attempt to establish a disputed material issue of fact, courts have typically rebuffed these efforts and held instead that summary judgment is appropriate. See, e.g., Synthes v. Globus Medical Inc., No. 04-1235, 2007 WL 2043184 (E.D. Pa. July 12, 2007); Bouriez v. Carnegie Mellon Univ., No. 02-2104, 2005 WL 2106582, * 9 (W.D. Pa. Aug. 26, 2005); Carpet Group Int'l v. Oriental Rug Importers Assoc, Inc., 256 F.Supp.2d 249 (D.N.J. 2003). Accordingly, to the extent that Farlow turns to this type of inadmissible hearsay from unknown declarants to attempt to bolster his Eighth Amendment claim, this effort fails.

In the final analysis in this case we are presented with a single instance in which a correctional officer used an offensive homophobic term on a pass that was given to the plaintiff, but not otherwise distributed by that inmate. This conduct is to be condemned and we condemn the actions ascribed to Officer Conway as antithetical to the standards of conduct expected of correctional staff. However, under the prevailing constitutional norms prescribed by the courts, it cannot be said that this single episode of offensive verbal conduct, which was unaccompanied by any other physical contact or sexual abuse that can be attributed to Defendant Conway, constituted the type of cruel and unusual punishment forbidden by the Eighth Amendment. Therefore, the defendant is entitled to summary judgment in this case. 14

IV. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 31) be GRANTED, and that the plaintiff's complaint be dismissed.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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