PHILADELPHIA – Curran-Fromhold Correctional Facility and its leading officials say that a former inmate seeking two depositions from fellow prisoners who may corroborate his cruel and unusual punishment claims connected to a two-month incarceration, will not be able to prove his case with their testimony.
Franky Mills filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 15, 2022 versus the City of Philadelphia (doing business as “Curran-Fromhold Correctional Facility”), its Commissioner Blanche Carney, its Warden Michelle Farrell, its Deputy Commissioner Terrence Clark, its Deputy Wardens Edwin Cruz and Robert Rose, plus John Does 1-10.
Mills was incarcerated at the Curran-Fromhold Correctional Facility from November 2020 through December 2020, according to his complaint. He alleged that for no reason, he was subjected to “barbaric and inhumane treatment” including not being able to leave his cell and not being given a single shower or toothbrush. Mills also alleged he was not allowed to remove trash and food trays, causing leftover food to spoil and smell.
He claimed he was also not allowed to change his sheets, get a clean jumper or receive or make any phone calls. Mills alleged the defendants were aware of his “deplorable treatment” and did nothing about it, which caused him to suffer physical and psychological stress.
Counsel for the Curran-Fromhold Correctional Facility officials filed a motion to dismiss the complaint on May 11.
“In his complaint, plaintiff identifies several conditions that he complains violate his constitutional rights. As stated above, he alleges that he was not allowed to leave his cell, take a shower or brush his teeth, make or receive phone calls, and being exposed to unsanitary conditions. These alleged conditions, which plaintiff purports to have lasted approximately one month, are claimed to have caused him to suffer from ‘severe physical and psychological stress.’ However, these conditions are de minimis impositions – to the extent they are impositions at all – which do not rise to the level of a Constitutional violation,” the dismissal motion stated, in part.
“Further, plaintiff has failed to allege that his conditions existed for a requisite period of time that would give rise to a constitutional violation, nor even an injury associated with these restrictions. In Barndt v. Wenerowicz, the U.S. Court of Appeals for the Third Circuit found that ‘the temporary denial of out of cell exercise for 28 days was not a substantial deprivation,’ particularly where the plaintiff had not demonstrated he suffered ill effects or needed medical care as a result of the alleged deprivation. In addition to out-of-cell exercise, the Barndt Court considered the plaintiff’s allegation that he was denied access to showers for that 28-day period. However, the Court determined such conditions did not violate the plaintiff’s Eighth Amendment rights. In this case, the Court should find that Barndt instructs that a similar deprivation, for approximately one month, did not rise to the genuine hardship over an extended period of time to implicate the Constitution under Bell. Accordingly, plaintiff’s claims should be dismissed.”
The defendants continued that the plaintiff’s allegations “clearly fail to impart personal involvement of any of the moving defendants”, as the plaintiff did not articulate to whom he made his various requests.
“As for Commissioner Carney, Deputy Commissioner Clark, Warden Farrell and Deputy Wardens Cruz and Rose, plaintiff only alleges that these supervisors knew or should have known of the treatment, a hypothesizing similar to that found to be insufficient in Evancho. Indeed, plaintiff makes no mention of asking the named defendants directly or filing a grievance when such alleged requests were denied as is required by the Prison Litigation Reform Act,” the dismissal motion stated.
“Even if an official’s failure to favorably respond to a grievance was sufficient to constitute a constitutional violation – and Okey instructs it is not – these supervisors could not possibly have been considered deliberately indifferent to the alleged conditions by failing to improve them. Because plaintiff fails to allege the personal involvement of moving defendants, he fails to state a claim and they should be dismissed.”
A Dec. 1 judicial order deemed the dismissal motion and other relevant issues to be moot without prejudice, so that the issues could be brought once again after a future conference between the parties.
“Upon consideration of the defendants’ motion to dismiss for failure to state a claim, plaintiff’s motion to compel with cross-motion for extension of time to amend the complaint, plaintiff’s motion to extend the discovery deadline and motion to compel and the telephone conference with the parties on Nov. 30, 2022, it is ordered that the motions are deemed moot without prejudice to the parties, to raise the issues again following the next status conference with the Court scheduled for Jan. 17, 2023,” U.S. District Court for the Eastern District of Pennsylvania Judge Gene E.K. Pratter said.
On March 27, the plaintiff filed a motion for leave to take depositions from two of Mills’ fellow inmates, Justford Doe and Calvin Grey, who were housed in close proximity to Mills and to whom, counsel argues, can speak to the conditions he encountered during his incarceration.
“This is a civil rights action involving inhumane conditions of confinement, including plaintiff not being given a shower or toothbrush for about a month, and not having trash removed from his cell. Plaintiff intends to depose two prisoners that were housed in close proximity to plaintiff in plaintiff’s unit during the same time period when plaintiff was incarcerated. Plaintiff discovered the identities of these prisoners from rosters produced by defendants. These prisoners are currently incarcerated in the Philadelphia prison system. It is believed that these prisoners’ testimony will corroborate the inhumane conditions of confinement that plaintiff experienced,” the motion stated.
“Defendant has indicated that he objects to these depositions and that he has no authority to accept subpoenas on behalf of the prisoners. Defendant’s characterization of these depositions as a ‘fishing expedition’ is plainly untrue. On the contrary, as described above, these prisoners’ experiences while incarcerated are believed to be the same as plaintiff’s experience, during the same time period and location where plaintiff was incarcerated. Therefore, plaintiff respectfully requests leave to depose prisoners, Justford Doe and Calvin Grey, because their anticipated testimony is highly relevant to plaintiff’s circumstances and theory of the case. Plaintiff will be highly prejudiced if he cannot proceed with these depositions.”
UPDATE
The defendants filed a response in opposition to the plaintiff’s motion seeking the depositions, on April 4.
“Defendants oppose plaintiff’s motion to depose incarcerated persons Justford Doe and Calvin Grey, because plaintiff’s counsel has not provided an offer of proof as to what, if any, helpful information/evidence either individual would provide if deposed. By his own admission, plaintiff’s counsel has not spoken with either Mr. Doe or Mr. Grey. There is no indication that plaintiff has even attempted to investigate or make contact with either individual. Further, despite plaintiff’s contention that Mr. Doe and Mr. Grey would provide helpful testimony, the discovery indicates otherwise. Thus, unless and until plaintiff provides some reasonable offer of proof, or at least conducts some reasonable investigation into whether Mr. Doe or Mr. Grey will provide helpful testimony proportional to the needs of this case, defendants ask this Court to deny their motion for leave to depose Mr. Doe and Mr. Grey. Defendants respectfully request that this Court consider an imposition of the discovery deadline,” the response filing stated.
“Despite admitting to not speaking with either individual, plaintiff’s counsel argues that ‘It is believed that these prisoners’ testimony will corroborate the inhumane conditions of confinement that plaintiff experienced.’ However, there is nothing that suggests these individuals would corroborate plaintiff’s allegations that he was not allowed to leave is cell, not allowed a toothbrush, fresh linens, a new jumper, to use the phone and not allowed to clear trash out of his cell for three consecutive weeks. To the contrary, all evidence developed thus far has come to contradict plaintiff’s allegations in this case. Defendants have produced to plaintiff: (1) Housing/recreation logs, (2) Medical records, and (3) The deposition testimony of a Sergeant on the block, all of which undermine plaintiff’s allegations. The records indicate that plaintiff was housed for those three weeks at the intake section at CFCF because he had just come off the street so he was placed in the segregation unit to best avoid the transmission of COVID-19. The medical records also show that plaintiff was experiencing drug withdrawals and did not want to leave his cell on several occasions. Further, the housing logs indicate that plaintiff did leave his cell, take showers and make phone calls on several occasions during this three-week period. Plaintiff’s claims are unsupported.
The defendants argued that Grey only appears to have been housed on the block for one day during plaintiff’s alleged deprivation period, Nov. 27, 2020, and on that one day, Grey received recreation time from 8:45 p.m. to 9:45 p.m. and used the phone.
As for Mr. Doe, the defendants added that “available housing/recreation records reflect that he received recreation time and phone calls consistently while housed on that same block, one example being on Dec. 1, 2020, where Mr. Doe received recreation time from 8 p.m. to 10:30 p.m. and phone access.”
For a count of violating the Eighth Amendment to the U.S. Constitution through cruel and unusual punishment, the plaintiff is seeking damages, individually, jointly and/or severally, in excess of $75,000, together with interest, costs, punitive damages, attorney’s fees and such other and further relief as this Honorable Court deems just, including equitable injunctive relief.
The plaintiff is represented by Gary Schafkopf of Hopkins Schafkopf in Bala Cynwyd, plus Matthew Weisberg and David A. Berlin of Weisberg Law, in Morton.
The defendants are represented by Assistant City Solicitor Daniel Cerone and Matthew K. Hubbard, of the City of Philadelphia Law Department’s Civil Rights Unit.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01474
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com