Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-11-2006
Counterman v. Warren Cty Corr Fac
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1572
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1572
CHRISTOPHER COUNTERMAN,
Appellant
v.
WARREN COUNTY CORRECTIONAL FACILITY;
JOHN DOES, CORRECTIONAL OFFICERS 1 THROUGH 20,
IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES;
BYRON M. FOSTER, WARREN COUNTY CORRECTIONS WARDEN,
IN HIS OFFICIAL CAPACITY; WILLIAM BENSON,
WARREN COUNTY CORRECTIONS DEPUTY WARDEN, IN HIS
OFFICIAL CAPACITY; STEVE MARVIN, WARREN COUNTY
ADMINISTRATOR, IN HIS OFFICIAL CAPACITY;
CORRECTIONS OFFICERS JOHN DOES 11 THROUGH 20,
said names being fictitious, in their individual
and official capacities; ARAMARK, INC.;
MARIE A. DORSHIMER; CECELIA WISEBURN,
in her individual and official capacities;
FRANK MURPHY, in his individual and official capacities;
NICHUA LIACI, in her individual and official capacities;
ERIC JANSEN, in his individual and official capacities;
GREG FARMER, in his individual and official capacities;
HARRY BOWLBY, in his individual and official capacities;
JOHN BORDER, said first name being fictitious, in his individual
and official capacities; KEVIN BERGMAN, in his individual
and official capacities; ELBER BARNES, in his individual and
official capacities; ROBERT ACKERMAN, in his individual and
official capacities; THE COUNTY OF WARREN
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-cv-01974)
District Court Judge: Honorable Stanley R. Chesler
Argued March 29, 2006
Before: McKEE, BARRY, and VAN ANTWERPEN, Circuit Judges.
(Filed: April 11, 2006)
Christian M. Perrucci (Argued)
Florio, Perrucci & Steinhardt, L.L.C.
235 Frost Avenue
Phillipsburg, NJ 08865
Counsel for Appellant
Patrick J. Madden (Argued)
Madden, Madden & Del Duca, P.A.
108 Kings Highway East, Suite 200
Haddonfield, NJ 08033
Counsel for Appellees
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Appellant Christopher J. Counterman asks this Court to reverse the January 27,
2005 Order of the United States District Court for the District of New Jersey granting
summary judgment to Appellees, the Warren County Correctional Facility (“WCCF”),
and several of its employees and officials, on the Eighth Amendment claims he brought
against them under 42 U.S.C. § 1983 for harassment and sexual assault he suffered at the
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hands of inmates while incarcerated at WCCF. We find no error, and will affirm.
I
Inasmuch as we write only for the parties, we detail the facts only as necessary to
our analysis of Counterman’s claims. Counterman was incarcerated at WCCF between
March 29, 2002 and September 24, 2002. Starting in June of that period, he was
designated a “trustee.” Trustee status carried several privileges, including greater
freedom within the facility, expanded work experience, and more recreation. Trustee
inmates resided in two trustee blocks, designated H and J; a foyer connected the two
blocks, and prisoners could generally pass between them freely. Counterman lived on H
Block. During his stay there, Counterman endured a number of indignities at the hands of
fellow trustee inmates. A group of trustees, including inmates Lombardo, Sutton,
Harrington, and others, would strike him (on one occasion chipping a tooth), strip him of
his clothes and force him to run the cell block naked, throw garbage cans of hot and cold
water at him, rub their genitals on him, and verbally harass him. None of these incidents
was reported.
The situation culminated on the evening of August 17, 2002, when Lombardo,
Sutton, and Harrington, residents of J Block, waited for Corrections Officer Frank
Murphy to leave H Block, then grabbed Counterman and violently dragged him into his
cell. There, inmates Ballard, Rodriguez, and Woods held Counterman down on his bed,
and turned him on his stomach with his face against the wall. The assailants proceeded to
sodomize Counterman using a lotion bottle. Throughout the incident, from the time
Lombardo, Sutton, and Harrington set upon him to its conclusion, Counterman resisted
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and yelled for aid. None came. The attack caused a commotion among inmates on H
Block, and many gathered at the cell to see what was happening. Afterward, an inmate
shut Counterman in his cell, locking him in. Counterman testified at his deposition that
he was “banging on the door trying to get an officer to come down and yelling for
inmates to go try to get hold of an officer so he could unlock my cell door.” Officer
Murphy unlocked the door about an hour later, but Counterman did not report the attack
at that point. The next day, a fellow inmate reported the assault to officials who then
initiated an investigation. Counterman received medical attention that day; he was also
moved to another block, and his assailants were placed in isolation. The case was
referred to the prosecutor. On August 20, Counterman was returned to H Block.
Counterman alleges that prior to the August 17, 2002 assault, a number of WCCF
officials knew that he was a target of harassment and aggression. In particular, he points
to deposition testimony of fellow inmate Walter Van Scoten to the effect that Lombardo,
Woods, and other inmates boasted to Officer Harry Bowlby about their mistreatment of
Counterman, and that Bowlby found the accounts humorous and told Counterman to
stand up for himself. Counterman also cites his own testimony in which he related how
Officer Cecelia Wiseburn told him that she knew what was going on, and that he had to
“fight back.”
Counterman argues there were a number of shortcomings in WCCF’s policies,
procedures, and supervision that led to the attack on him. These include the fact that
inmates could pass freely between H and J Blocks, in apparent contravention of WCCF
policy, and that officials allowed Trustee Blocks H and J to go unsupervised for as long
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as three hours at a time. Counterman also asserts that WCCF, specifically its
classification Officer Joseph Border, improperly allowed a known violent inmate,
Lombardo, to become a trustee, thereby exposing other trustee inmates to a heightened
risk of violence.
On May 2, 2003, Counterman filed a complaint asserting claims under 42 U.S.C.
§§ 1983, 1985, and 1988 for deprivation of his Eighth Amendment right to be free from
cruel and unusual punishment, as well as state law claims. With leave of Court, he
amended the Complaint twice to reach the present configuration of defendants and
claims. This appeal concerns only claims against WCCF, Warden Byron M. Foster,
Deputy Warden William Benson, and Officers Border, Bowlby, Murphy, and Wiseburn
(collectively, “Defendants” or “Appellees”). On November 12, 2004, the defendants
moved for summary judgment, which the District Court granted as to all counts on
January 27, 2005. This appeal timely followed.
II
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a), and
1367; our jurisdiction to review its final Order is founded on 28 U.S.C. § 1291. In
exercising plenary review of a grant of summary judgment, we take the evidence in the
light most favorable to the non-moving party, determining whether there is any genuine
issue of material fact, and whether the moving party is entitled to judgment as a matter of
law. Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). A non-moving plaintiff must
produce more than a “mere scintilla” of evidence in support of its claims in order to
support a genuine issue of material fact sufficient to survive summary judgment. Advo,
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Inc. v. Phila. Newspapers, Inc., 51 F.3d 1191, 1197 (3d Cir. 1995).
III
Counterman’s claims are grounded in the Eighth Amendment proscription of cruel
and unusual punishment. U.S. CONST. amend. VIII. While “prison officials have a duty
to protect prisoners from violence at the hands of other prisoners,” injury at the hands of a
fellow prisoner itself does not amount to an Eighth Amendment violation. Farmer v.
Brennan, 511 U.S. 825, 833-34 (1994) (citations and quotations omitted). Rather,
plaintiffs must prove deliberate indifference on the part of correctional officials. Beers-
Capitol v. Whetzel, 256 F.3d 120, 131 (3d Cir. 2001) (citing Farmer, 511 U.S. at 837).
Under this standard, “a prison official cannot be found liable . . . for denying an inmate
humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.” Id. (quoting Farmer, 511 U.S. at 837)
(quotations omitted). Thus, the mere presence of circumstances from which a reasonable
person could infer “an excessive risk to inmate health or safety” is insufficient; rather, the
official must actually make the inference and disregard it. Id. (citing Farmer, 511 U.S. at
837).
This aspect of the deliberate indifference test is subjective: that is, it looks to what
an official knew; not what she or he should have known. Id. Actual knowledge can be
proven circumstantially where the general danger was obvious; that is, where “a
substantial risk of inmate attacks was longstanding, pervasive, well-documented, or
expressly noted by prison officials in the past,” and where “circumstances suggest that the
defendant-official being sued had been exposed to information concerning the risk and
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thus must have known about it.” Id. (quoting Farmer, 511 U.S. at 842-43). Officials need
not have been certain that the particular harm would actually befall a prisoner: the
standard looks to disregard of a known excessive risk. Id. On the other hand, our inquiry
into the risk of harm itself, as distinct from the official’s knowledge of it, is objective. Id.
at 132 (citing Farmer, 511 U.S. at 846). For purposes of summary judgment, it is
incumbent on the plaintiff to marshal evidence sufficient to raise the inference that a
prison official “knowingly and unreasonably disregarded an objectively intolerable risk of
harm.” Farmer, 511 U.S. at 846.
A
Counterman asserts that because inmates Lombardo and Woods bragged to Officer
Bowlby about beatings and harassment perpetrated against Counterman, Bowlby had the
requisite knowledge for deliberate indifference. However, the portion of the Van Scoten
deposition presented in support of the claim to the District Court does not show the
requisite knowledge of an objectively unacceptable risk. In particular, Van Scoten
testified that one inmate, Lombardo, would “be telling stories what they did to them the
night before” to Officer Bowlby, and that Bowlby would, in turn, laugh and tell
Counterman not to take it, and to stand up for himself. Van Scoten also testified that
Bowlby laughed in response to similar reports from other inmates, including that they had
called him “a punk and a pussy and bitch.” As the District Court rightly held, these
would not be sufficient to create a subjective awareness, on Bowlby’s part, of an
objectively excessive risk to Counterman’s safety.
The inmates’ boasts conveyed harassment and unpleasantness; not “an objectively
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intolerable risk of harm.” While behavior of this sort is patently offensive, knowledge of
it does not lead to the inference that Bowlby must have known of an intolerable danger to
Counterman that would evince an Eighth Amendment violation. Nor is it enough that
Bowlby should have deduced from this that Counterman or others faced a serious risk.1
See Beers-Capitol, 256 F.3d at 138 (“deliberate indifference requires more than evidence
1
Another portion of the Van Scoten deposition might lend more credence to
Counterman’s position, but Counterman neglected to present it to the District Court. The
relevant portion reads:
Q. . . . [T]here is no doubt in your mind that Inmate
Lombardo used to brag about harassing and beating up on
Mr. Counterman in the presence of Officer Bowlby?
A. Yes.
Q. And . . . Inmate Wood would also brag about beating on
Mr. Counterman in the presence of Correctional Officer
Bowlby?
***
A. Yes.
App. 647 (emphasis added). Counterman’s request to consider this testimony
notwithstanding, we cannot review summary judgment evidence not before the District
Court. See Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir.
1986) (“The only proper function of a court of appeals is to review the decision below on
the basis of the record that was before the district court.”); Drexel v. Union Prescription
Centers, Inc., 582 F.2d 781, 784 n.4 (3d Cir. 1978) (“It is hornbook law that this court
generally cannot consider evidence which was not before the court below.”). While we
have entertained the possibility – but not held – that either Federal Rule of Appellate
Procedure 10(e) or some inherent equitable power might afford a basis to supplement an
appellate record with evidence not presented below, In re Capital Cities/ABC, Inc., 913
F.2d 89, 96-97 (3d Cir. 1990), such power, if we had it, certainly would not extend to a
situation where, as here, a party “accidentally omitted” documents from the district court
record, and provides no further explanation. Accordingly, we can only consider what
Counterman presented to the District Court, which, as we have concluded, is inadequate
to survive summary judgment.
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that the defendants should have recognized the excessive risk and responded to it”); see
also Hansard v. Barrett, 980 F.2d 1059, 1064 (6th Cir. 1992) (“Prisons are often an
unpleasant place to live in . . . .”).
B
Counterman’s claim against Officer Wiseburn fares no better. Counterman
testified at his deposition that during a conversation, Wiseburn told him, “Look, I know
what is going on. I know what they are doing . . . . You got to fight back.” To begin
with, it is unclear from Counterman’s account of their conversation what Wiseburn
thought was “going on.” A reasonable jury could not permissibly speculate as to what her
statement, as related by Counterman, meant. It does not create a genuine issue of material
fact sufficient to endure summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel.
M.E., 172 F.3d 238, 254 (3d Cir. 1999) (rejecting “ambiguous allegations and vague
inferences that cannot defeat summary judgment.”); Shaver v. Independent Stave Co.,
350 F.3d 716, 723 (8th Cir. 2003) (vague testimony insufficient to save claim from
summary judgment). Nonetheless, assuming for purposes of summary judgment that
Wiseburn knew that Lombardo and others were pushing Counterman around and
harassing him, we reach the same result as we did with respect to Officer Bowlby: the
evidence does not show that Wiseburn knew of, but disregarded, “an objectively
intolerable risk of harm.”
C
The claim against Officer Murphy fails as well. Apparently preferring Murphy’s
version of events to his own, Counterman argues that the officer remained at his post on
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H Block throughout the August 17, 2002 attack, even though at his own deposition,
Counterman claimed that Murphy left the area after briefly walking through.
Accordingly, if Murphy were nearby when Counterman was assaulted, he would have
heard Counterman’s cries and the general commotion that accompanied the event. His
failure to respond might evince deliberate indifference. However, Counterman’s own
testimony notwithstanding, he neglects to account for Murphy’s uncontradicted testimony
that he did not hear anything unusual that night. As Appellees point out, Counterman
testified that it would be difficult to hear anything from the office where Murphy was
stationed; Murphy’s testimony is not to the contrary. Thus, the record would not support
a reasonable jury in concluding that Murphy was aware of an excessive risk to
Counterman’s safety.
IV
Counterman next claims that the inmate classification policy at WCCF evinced
deliberate indifference to an unreasonable risk of serious injury to him. He argues this on
the basis that Corporal Border, WCCF’s classification officer, allowed Lombardo to gain
trustee status despite “a violent history of assaults against both inmates and police
officers.” Br. of Appellant, at 24. We agree with the District Court “that WCCF policies
and practices in this regard are a far cry from the type of deliberate neglect . . . required to
support a deliberate indifference claim.” Counterman v. Warren County Corr. Facility,
No. 03-cv-1974, slip op. at 36 (D.N.J. Jan. 27, 2005). The weightiest evidence
Counterman brings on this head is the opinion of his expert witness on correctional
practices; however, his expert’s criticisms of WCCF’s policies and practices with respect
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to classification evince only negligence, if any misfeasance at all. This is not sufficient to
support Counterman’s claim of deliberate indifference. See Singletary v. Pa. Dept. of
Corr., 266 F.3d 186, 193 n.2 (3d Cir. 2001) (citing Rouse v. Plantier, 182 F.3d 192, 197
(3d Cir.1999) (negligence insufficient to establish deliberate indifference in context of
Eighth Amendment claim predicated on lack of medical care). Counterman also points to
Officer Border’s deposition testimony that neither the fact that an inmate was a state
prisoner, nor that an inmate was charged with a violent crime, would preclude him from
gaining trustee status. He appears to argue that these shortcomings in classification
policy resulted in improperly according trustee status to Lombardo, who assaulted him.
Notwithstanding Lombardo’s less-than-saintly record, we can discern no conscious
disregard of an unacceptable risk to inmates from either the policy, or allowing Lombardo
to gain trustee status.
V
Counterman next claims that it was error for the District Court to grant summary
judgment to Wardens Foster and Benson on his supervisory deliberate indifference claims
against them. Again, we disagree. With respect to supervisory liability for Eighth
Amendment claims, plaintiffs must first identify a “specific supervisory practice or
procedure” that the defendant supervisor failed to employ, and then prove the following:
“(1) the existing custom and practice without that specific practice or procedure created
an unreasonable risk . . .” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989); “(2) the
supervisor was aware that the unreasonable risk was created; (3) the supervisor was
indifferent to that risk; and (4) the injury resulted from the policy or practice.” Beers-
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Capitol, 256 F.3d at 134 (citing Sample, 885 F.2d at 1118). The simplest way for a
plaintiff to make out such a claim is to demonstrate a supervisor’s failure to respond
appropriately when confronted by a pattern of injuries similar to the plaintiff’s, thereby
suggesting deliberate indifference on the part of the supervisor. Sample, 885 F.2d at
1118. However, “there are situations in which the risk of constitutionally cognizable
harm is so great and so obvious that the risk and the failure of supervisory officials to
respond will alone support findings of the existence of an unreasonable risk, of
knowledge of that unreasonable risk, and of indifference to it.” Id.
Counterman specifically argues that Foster knew of Lombardo’s record of violence
when he was assigned to the trustee block, and that both Foster and Benson acquiesced in
leaving the trustee blocks unsupervised for long periods of time, up to three hours.
Counterman makes much of Lombardo’s spotted history at WCCF. We do not discern in
the record a pattern of violence sufficient to evince a actual knowledge of a substantial
risk to safety. The practice of leaving the trustee blocks unattended does not appear to
have given rise to a pattern of violence among inmates. Furthermore, given that there
were procedures for screening inmates for suitability as trustees, it was not so obviously
dangerous to leave the block unsupervised as to raise the inference that Foster or Benson
must have known that it exposed prisoners to an excessive risk. See Sample, 885 F.2d at
1117 (citing City of Canton v. Harris, 489 U.S. 378, 392 (1989), which noted that
plaintiffs can almost always “point to something [that] ‘could have been done’ to prevent
the unfortunate incident,” but key is to establish deliberate indifference). At most,
Counterman has established negligence.
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VI
Counterman finally claims that the District Court erred by granting summary
judgment to WCCF as a municipal entity on his claims that by its policies and procedures
(1) inmates were left unsupervised; (2) officials improperly classified inmates; (3)
inmates were permitted to intermingle between the two trustee blocks; and (4) officials
did not respond to “reports of [his] repeated physical and sexual abuse at the hands of his
fellow inmates.” Br. of Appellant at 27. With the exception of (3), these are all wrongs
that we have addressed above, and found not to amount to violations of Eighth
Amendment proportions. As for the claim that allowing trustee inmates to mingle
between the two trustee blocks, this claim, like the others, does not succeed. While the
intermingling may have had something to do with the tribulations Counterman faced as
an inmate, he does not point to evidence in the record that shows awareness that WCCF
policy or practice created an unacceptable risk of their occurrence.
VII
While we note our sympathy and outrage for the harrowing events Mr.
Counterman suffered while an inmate at WCCF, he lacks a basis for his Eighth
Amendment claims. At best, he has shown no more than negligence, which,
unfortunately, does not suffice where the deliberate indifference standard applies.
For the foregoing reasons, we will affirm the Order of the District Court granting
summary judgment to the Defendants-Appellees.
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