PHILADELPHIA – A federal judge has upheld an earlier ruling which disqualified testimony from a witness in litigation brought a former inmate of SCI-Graterford, who claimed local law enforcement officials did not take proper care in transporting him and others who were confined to wheelchairs – leading him to suffer a concussion, chest and spinal injuries.
On Nov. 14, 2016, plaintiff Jermaine Williams was being transported from SCI-Graterford to the Criminal Justice Center in Philadelphia. Defendants Deputy Sheriff V. Lopez and Deputy Sheriff Valasco were responsible for transporting plaintiff and several other inmates to the Criminal Justice Center. At the time of transportation, plaintiff was in a wheelchair. Some of the other inmates being transported were also in wheelchairs. All of the inmates, including plaintiff, were shackled and handcuffed during the entire trip,” U.S. District Court for the Eastern District of Pennsylvania Judge Richard Barclay Surrick said.
“Plaintiff alleges that defendants did not secure plaintiff’s wheelchair, or the wheelchairs of any of the other inmates, inside the van. Plaintiff also alleges that defendants did not secure plaintiff or any of the other inmates with a seatbelt or any other safety apparatus. Plaintiff alleges that the inmates “complained to the [defendants] about the unsafe situation they were in.” Defendants ignored these complaints.”
According to the suit, defendant Valasco then began to drive the van to the Criminal Justice Center, at which time the plaintiff claimed that Valasco was driving too fast and that the inmates asked Valasco to slow down on multiple occasions.
The plaintiff added that several inmates began to “sway side to side and back and forth” during the trip, and that his wheelchair and those of the other inmates began to lift off the floor and slide back and forth inside of the van – but that the defendants’ only response to those events was, “Don’t come to jail.”
“Valasco sped around a curve on the east side of Philadelphia City Hall too fast, and had to abruptly ‘slam on the brakes’ in order to gain control of the van. When the van stopped abruptly, plaintiff was ‘thrown out of his wheelchair head first into the metal grate of the van.’ Several other inmates were simultaneously thrown out of their seats. Plaintiff was thrown upside down in the van, and two of the other inmates were thrown on top of him. Plaintiff suffered severe injuries, including a concussion, chest injuries and an injury to his spine at the cervical and lumbar levels,” Surrick said.
“Plaintiff filed the complaint in this Court on June 15, 2017. Plaintiff asserts both federal and state law violations in his complaint. With regard to the federal claim, plaintiff alleges that defendants violated his constitutional rights under the Eighth and Fourteenth Amendments, pursuant to 42 U.S.C. Section 1983 (Count I). With regard to the state law claim, plaintiff alleges that the defendants negligently operated a Pennsylvania motor vehicle, in violation of 42 Pa. Cons. Stat. Ann. Section 8542 (Count II). On July 24, 2017, defendants filed a motion to dismiss. Defendants’ motion seeks dismissal of plaintiff’s federal claim (Count I), and remand the case to state court in order to address the plaintiff’s state law claim. On Aug. 16, 2017, the plaintiff filed a memorandum in opposition to defendants’ motion.”
Said motion was soon granted on Aug. 22, 2017, dismissing the federal claim against the City of Philadelphia’s Sheriff’s Office, but retaining the federal claims against Lopez and Valasco. Though the defendants filed a motion for summary judgment in September 2019, it was denied in January 2020.
In a Jan. 10 trial brief, plaintiff counsel asserts Williams, due to the defendants’ driving and lack of through seat-belting, was thrown out of his wheelchair, likely suffered a seizure, lost consciousness and awakened to find two other inmates on top of him.
“In the instant case, the truck was not on its roof and never was, yet the plaintiff was thrown from his wheelchair into the wall of the van and suffered a seizure.’ At the very least, this seems to be prima facie evidence that the prisoner was not properly secured at all. The incident would not have even happened had he been properly secured for the conditions of the trip in the motor van. Likewise, the inmates who fell on him, who may have contributed to his permanent injuries, were never secured, as the City designee testified,” plaintiff counsel’s trial brief stated.
The same day, defense counsel presented its own brief, denying the veracity of the plaintiff’s allegations.
“This case arises from allegations in plaintiff’s amended complaint that on Nov. 14, 2016, the deputies were deliberately indifferent to the safety of plaintiff by failing to properly secure him and his wheelchair during a trip from SCI-Graterford to the Criminal Justice Center in Philadelphia. In the amended complaint, plaintiff claims Deputy Valasco was driving the van at an unsafe speed around City Hall, and on the east side of City Hall, he suddenly stopped, causing the plaintiff to be thrown out of his wheelchair head first into the metal grate of the van,” the defense brief said.
“The deputies deny they are liable. They have no idea why or how the plaintiff fell off his wheelchair as the van was traveling around City Hall, at around 10 a.m., at a very slow speed due to the van’s size and the usual heavy traffic around Penn Square. Plaintiff was strapped and buckled in prior to departure and defendants maintain that they heard no complaints from plaintiff or any other inmate about any alleged unsafe conditions in the van prior to the claimed accident.”
The defense pointed to deputies in the Transportation Unit having transported 1,145 wheelchair-bound inmates over the past five and a half years, with only three incidents being reported (including the one in question).
On Feb. 6, plaintiff counsel motioned for the Court to reconsider an earlier ruling which disqualified the testimony of one of its witnesses, Terrance Mitchell.
“On the first day of the original trial date (Jan. 17), plaintiff sought to take the Zoom testimony of one of the eyewitnesses listed on the City incident report, that the City has known about since the morning of the incident and is among eight eyewitnesses the City never interviewed. Defendants objected, seemingly on the basis that they were ‘around all weekend’ and plaintiff, presumably, should have notified them when he contacted and spoke to the eyewitness, Terrance Mitchell, that Saturday,” the motion stated.
“If the City made any other objection, plaintiff is unaware of it. On Jan. 19, after consulting relevant case law, plaintiff renewed his request to present Mr. Mitchell’s testimony in light of the three-week trial delay, via an email addressed to the Court. The trial is now set for Feb. 27, six weeks after plaintiff first notified the Court and defendants of his intention to use the testimony of Mr. Mitchell.”
According to Mitchell, he was in the van at the time of the incident, saw Williams and the other inmates fall all over the van as a result of a “hard brake” by the driver and that Williams appeared injured.
Plaintiff counsel added that the City, when conducting its investigation, never attempted to speak to the plaintiff or any of the witnesses inside the van, nor consulted the EMS report from Hahnemann Hospital, which confirmed that Williams had a “witnessed” seizure in the van that day.
“Plaintiff seeks evidentiary penalties for the City’s willful blindness here, particularly in not interviewing eyewitnesses, including plaintiff. In reacting to plaintiff’s pre-trial argument for such evidentiary ‘compensation’ the Court observed that the eyewitnesses were ‘equally available’ to both sides, which would implicitly preclude an ‘adverse inference’ from the Court for the whitewashed ‘investigation,” the motion stated.
“The City can avoid any purported prejudice from the eyewitness’s testimony by deposing him on any and all relevant subjects. If it chooses not to avail itself of the opportunity, which the New Jersey prison is willing to provide, it must be deemed to have refused to mitigate any alleged prejudice. If this Court does not reconsider its earlier ruling precluding the witness, based on the intervening time between the trial dates, it is respectfully submitted that the witness should be allowed for rebuttal purposes.”
UPDATE
On Feb. 20, Surrick ruled to deny the plaintiff’s motion for reconsideration in a memorandum opinion – finding in his view that it was both filed in an untimely fashion and groundless.
“The Court denied plaintiff’s oral motion and precluded Mitchell’s testimony from the bench, on the record, on Jan. 17, 2023, and that order was recorded in the proceeding minutes docketed the same day. Accordingly, plaintiff was required to file any motion for reconsideration no later than Jan. 31, 2023, but did not file it until Feb. 6, 2023. This untimeliness alone is a proper ground for denial of the motion,” Surrick stated.
“Turning to the substance of the motion, plaintiff fails to mention, let alone demonstrate, any of the grounds for a cognizable motion for reconsideration. It is abundantly clear that there has been no intervening change in controlling law nor the emergence of previously unavailable evidence since the Court’s Jan. 17, 2023, order. The Court can only assume that had plaintiff addressed the standard, he would have claimed that reconsideration is necessary to correct a clear error of law or fact or to prevent manifest injustice. No manifest justice can be found unless the court is persuaded ‘not only [that] the prior decision [was] wrong, but that it was clearly wrong and that adherence to the decision would create a manifest injustice.’ Not only is the Court unpersuaded that the Jan. 17, 2023 order was clearly wrong, it is satisfied that the ruling was and remains correct and just under the standards discussed [in Section II(B)].”
Surrick added that “allowing plaintiff to call Mitchell – who was not deposed or identified as a witness by plaintiff at any time, up to and including in his witness list submitted to the Court only days before trial – would work substantial prejudice to defendants.”
“Defendants’ inability to cure the prejudice and the disruption the undisclosed witness would cause to the efficient trial of the case can be addressed together. Plaintiff suggests that any prejudice or disruption can be cured by simply allowing defendants to take Mitchell’s deposition. Plaintiff, however, does not address the obvious fact that this ‘cure’ of deposing just this one incarcerated witness would almost certainly require a further continuance of the trial in a case that has already been pending for more than five years,” Surrick said.
“Moreover, if the Court were to allow Mitchell as an eleventh-hour witness and authorize his prior deposition, defendants would likely – and understandably – seek to depose each of the other seven prisoner passengers to ascertain whether their accounts of the van incident are consistent with Mitchell’s. The Court will not open that Pandora’s Box. Plaintiff’s insistence that Mitchell is vital to his case is woefully insufficient to overcome the factors above, particularly when plaintiff has known that he was a potential witness for at least four years and did not seek to depose him during discovery or at any time prior to the day of trial. Moreover, the alleged importance of Mitchell’s testimony to plaintiff cuts both ways, as it is further evidence that allowing his testimony at this juncture would greatly prejudice defendants.”
While Surrick did not find the plaintiff exhibited bad faith or willfulness, he did find that the request that the Court allow Mitchell’s surprise testimony “reflects, at a minimum, unfamiliarity with, or disregard of, both well-established discovery rules and this Court’s orders.”
The plaintiff is represented by Stuart M. Niemtzow of the Law Offices of George Twardy Jr., in Havertown.
The defendants are represented by Matthew K. Hubbard and Daniel Cerone of the City of Philadelphia’s Law Department.
U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-02697
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com