                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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"Kenneth McCullough v. Eric Miller" (2009). 2009 Decisions. Paper 1334.
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ALD-174                                                    NOT PRECEDENTIAL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.




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