Complaint 5-4-15 - tribwpmt.files.wordpress.com · Case 1:15-cv-00865-JEJ-JFS Document 1 Filed 05/04/15 Page 1 of 21. 2 of 1990 (ADA) Title II, 42 U.S.C. § 12132, and 42 U.S.C. §

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID M. WRIGHT, : Civil Action No.: ________________

Plaintiff, : (Filed: May 4, 2015)

:

v. : District Judge:

:

MARK A. HAYNES; : CIVIL ACTION – LAW

DAVID M. WHITCOMB; : JURY TRIAL DEMANDED

DANIEL H. GRAFF; :

JOHN DARYMAN; :

JOEY A. RUDD; :

CARL E. NEEPER; :

DENISE MORALES; :

LAWRENCE A. HARTMAN, III; :

MICHAEL BUONO; :

JOHN STEINER; :

CLAIR DOLL; :

MARY E. SABOL; :

JOHN DOE 1-10; and :

YORK COUNTY PRISON BOARD; :

Defendants. :

COMPLAINT

AND NOW comes the Plaintiff, David M. Wright, by and through his

undersigned counsel, Devon M. Jacob, Esquire, of the law firm of Jacob Litigation,

A Civil Rights Law Firm, and avers the following:

Jurisdiction and Venue

1. This action is brought pursuant to the Americans with Disabilities Act

Case 1:15-cv-00865-JEJ-JFS Document 1 Filed 05/04/15 Page 1 of 21

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of 1990 (ADA) Title II, 42 U.S.C. § 12132, and 42 U.S.C. § 1983.

2. Jurisdiction is founded upon 28 U.S.C. § § 1331 (federal question) and

1343 (civil rights and elective franchise).

3. Venue is proper in this Court, as the cause of action arose in the Middle

District of Pennsylvania.

4. Plaintiff, David M. Wright, has exhausted his administrative remedies

related to the complaints raised herein.

Parties

5. Plaintiff, David M. Wright, is an adult, who, currently resides in

Cumberland County, Pennsylvania.

6. Defendant, Mark A. Haynes, is an adult, who, is believed to reside in

York County, Pennsylvania. During all relevant times, Defendant Haynes was

employed by the York County Prison as a correctional officer. All of Defendant

Haynes’ actions or inactions were taken under color of state law. He is sued in his

individual capacity.

7. Defendant, David A. Whitcomb, is an adult, who, is believed to reside

in York County, Pennsylvania. During all relevant times, Defendant Whitcomb was


Whitcomb’s actions or inactions were taken under color of state law. He is sued in

his individual capacity.


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8. Defendant, Daniel H. Graff, is an adult, who, is believed to reside in

York County, Pennsylvania. During all relevant times, Defendant Graff was


Graff’s actions or inactions were taken under color of state law. He is sued in his

individual capacity.

9. Defendant, John Daryman, is an adult, who, is believed to reside in

York County, Pennsylvania. During all relevant times, Defendant Daryman was

employed by the York County Prison as a correctional officer, with the rank of

Captain. All of Defendant Daryman’s actions or inactions were taken under color of

state law. He is sued in his individual capacity.

10. Defendant, Joey Rudd, is an adult, who, is believed to reside in York

County, Pennsylvania. During all relevant times, Defendant Rudd was employed by

the York County Prison as a correctional officer, with the rank of Captain. All of

Defendant Rudd’s actions or inactions were taken under color of state law. He is

sued in his individual capacity.

11. Defendant, Carl Neeper, is an adult, who, is believed to reside in York

County, Pennsylvania. During all relevant times, Defendant Neeper was employed

by the York County Prison as a correctional officer, with the rank of Captain. All

of Defendant Neeper’s actions or inactions were taken under color of state law. He

is sued in his individual capacity.


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12. Defendant, Denise Morales, is an adult, who, is believed to reside in

York County, Pennsylvania. During all relevant times, Defendant Morales was


Captain. All of Defendant Morales’ actions or inactions were taken under color of


13. Defendant, Lawrence Hartman, is an adult, who, is believed to reside

in York County, Pennsylvania. During all relevant times, Defendant Hartman was


Captain. All of Defendant Hartman’s actions or inactions were taken under color of


14. Defendant, Michael Buono, is an adult, who, is believed to reside in

York County, Pennsylvania. During all relevant times, Defendant Buono was


Deputy Warden. All of Defendant Buono’s actions or inactions were taken under

color of state law. He is sued in his individual capacity.

15. Defendant, John Steiner, is an adult, who, is believed to reside in York

County, Pennsylvania. During all relevant times, Defendant Steiner was employed

by the York County Prison as a correctional officer, with the rank of Deputy Warden.

All of Defendant Steiner’s actions or inactions were taken under color of state law.

He is sued in his individual capacity.


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16. Defendant, Clair Doll, is an adult, who, is believed to reside in York

County, Pennsylvania. During all relevant times, Defendant Doll was employed by

the York County Prison as a correctional officer, with the rank of Deputy Warden.

All of Defendant Doll’s actions or inactions were taken under color of state law. He

is sued in his individual capacity.

17. Defendant, Mary E. Sabol, is an adult, who, is believed to reside in

York County, Pennsylvania. During all relevant times, Defendant Sabol was


Warden. All of Defendant Sabol’s actions or inactions were taken under color of

state law. She is sued in her individual capacity.

18. Defendants, John Doe 1-10, are adults, who, are believed to reside in

York County, Pennsylvania. During all relevant times, Defendants, John Doe 1-10,

were employed by the York County Prison as correctional officers. All of

Defendants John Doe 1-10’s actions or inactions were taken under color of state law.

They are sued in their individual capacities.

19. Defendant, York County Prison Board of Inspectors (“Prison Board”),

manages the operation of the York County Prison. During all relevant times, the

Individual Defendants acted pursuant to the policies, practices, and customs, adopted

or ratified by Prison Board.


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Background

20. It is expected that discovery will reveal that from approximately 2008

through approximately 2013, the “Retard Olympics” and the “Fight Club,” were

established and widely known events occurring regularly at the York County Prison

(“YCP”).

21. It is believed that in 2008, York County Corrections Officers Adam

Marcini, Shane Druck and Chad Abel started the Retard Olympics.

22. Historically, the Retard Olympics and Fight Club included, among

other things, the following activities:

a. Correction officers carotid choking of inmates for amusement;

b. Correction officers punching inmates in the arms and legs (“dead legs”)

for amusement;

c. Compelled wrestling matches between inmates, and between inmates

and corrections officers;

d. Correction officers compelling inmates to consume large amounts of

milk until they vomit;

e. Correction officers compelling inmates to consume large amounts of

cinnamon until they vomit;

f. Correction officers compelling inmates to snort seasoning, spices, and

crushed candies;

g. Correction officers compelling inmates to consume entire fruits (fruit,

seeds, and skin);

h. Correction officers compelling inmates to consume water contaminated

by pepper foam; and

i. Correction officers compelling inmates to consume “soups” that

contained spoiled food and chemicals used for cleaning.

23. It is expected that discovery will reveal that all of the Defendants knew

that the aforementioned activities were occurring, had an appreciable opportunity


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and the requisite authority to stop these activities, but failed to do so.

24. In or around 2012, Defendants Mark A. Haynes, David A. Whitcomb,

and Daniel H. Graff, restarted the “Retard Olympics,” and started the “Fight Club.”

25. On or around May 20, 2015, through June 30, 2015, Plaintiff, David M.

Wright, was an inmate at YCP.

26. At the time, Defendants Haynes, Whitcomb, and Graff, were employed

as corrections officers at YCP.

27. All of the Individual Defendants knew, or should have known, that

Wright had been diagnosed as suffering from certain mental illnesses, including but

not limited to, major depressive disorder, bi-polar disorder, psychosis, dissociative

disorder, and intermittent explosive disorder, and was regularly taking medication

for the treatment of same.

28. Instead of receiving appropriate mental healthcare, with the knowledge

of the Co-defendants, Defendants Haynes, Whitcomb, and Graff, targeted Wright

because of his mental illnesses to participate in the Retard Olympics and the Fight

Club.

29. While Wright consented to participating in the Retard Olympics and

Fight Club, his consent was not voluntary.

30. To the contrary, Wright participated in the Retard Olympics and the

Fight Club for fear that if he did not do so, he would be further harmed and/or placed


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in disciplinary custody.

31. While Wright was promised additional food and privileges in exchange

for his participation, Wright often did not receive the promised items.

32. In addition to being forced to participate in activities similar to the type

of activities identified in paragraph 22 above, the following activities also occurred:

33. Defendant Haynes placed his arm around Wright’s neck and choked

him, while Defendant Graff watched.

34. The incident was captured on YCP’s video surveillance system.

35. The Defendants who were required to regularly monitor the video

surveillance, either failed to do so, or could not properly do so because the Defendant

Prison Board failed to maintain the system, and as a result, the audio was not

recorded.

36. In addition, Defendants Haynes, Whitcomb, and Graff, directed Wright

and another inmate to engage in a physical fight in a closet at YCP.

37. The only fight restriction was that punching in the face was not allowed.

38. The fight was witnessed by Defendants Haynes, Whitcomb, and Graff,

and two inmates.

39. At least two of the Defendants bet money on who would win the fight.

40. Wright fought the inmate as directed and won, causing Defendant Graff

to lose a bet that he had placed on the fight.


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41. After Wright won, Defendant Graff entered the closet out of anger and

fought Wright.

42. During the fight, Defendant Graff, a former U.S. Marine, choked

Wright.

43. In self-defense, Wright kneed Graff in the midsection, which caused

Defendant Graff to release his hold of Wright and to fall to the ground.

44. When this occurred, Defendant Haynes entered the closet and punched

Wright in the face.

45. The force of the punch caused Wright to fall backwards, and to bang

the back of his head on a hard object, which caused him to suffer a laceration to his

head.

46. During another incident, Defendants Haynes and Whitcomb punched

Wright in the arm and leg for the sole purpose of seeing if Wright could take the

pain.

47. During other incidents, Defendants Graff and Whitcomb directed

Wright to snort chili powder and coffee, while Defendant Haynes watched from

another room.

48. Defendant Graff also pepper foamed Wright on several occasions for

his and others’ amusement.

49. Defendant Graff also gave Wright coffee that contained raisins and


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toothpaste.

50. Eventually, Defendants Haynes, Whitcomb, and Graff, were criminally

charged with official oppression, conspiracy, and harassment.

51. Wright was subpoenaed to testify at their Preliminary Hearing, which

took place on November 13, 2013.

52. As a result of Wright’s testimony, Wright was harassed by one or more

of the John Doe Defendants.

53. Upon his return to YCP after testifying, one or more of the John Doe

Defendants told Wright that as long as he was represented by undersigned counsel,

and cooperating as a witness for the Commonwealth, they intended to “make his life

a living hell.”

54. One or more of the Defendants moved Wright to suicide watch for

several days, even though he was not suicidal, and provided him with a one-on-one

supervision.

55. While on suicide watch, Wright was not permitted to leave his cell or

to have visitors.

56. One or more of the John Doe Defendants withheld toilet paper and

meals from Wright.

57. One or more of the Defendants then moved Wright to protective

custody for a couple of weeks, advising him that the prison was full and that there


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was nowhere else to place him.

58. Wright, however, had not asked to be placed in protective custody,

where he was locked down for most of the day.

59. As a result of the continued harassment and retaliation, undersigned

counsel managed to have Wright transferred to the Dauphin County Prison.

60. Defendants Prison Board, Sabol, Doll, Steiner, Buono, Daryman, Rudd,

Neeper, Morales, and/or Hartman, were responsible for properly training Defendants

Haynes, Whitcomb, and Graff, but they failed to do so, which was the moving force

that caused Plaintiff’s constitutional injuries.


Neeper, Morales, and/or Hartman, were responsible for properly supervising

Defendants Haynes, Whitcomb, and Graff, but they failed to do so, which was the

moving force that caused Plaintiff’s constitutional injuries.


Neeper, Morales, and/or Hartman, were responsible for the health and safety of all

inmates, which included the Plaintiff.


Neeper, Morales, and Hartman, knowingly created, encouraged, or permitted, a

prison culture where the aforementioned unlawful incidents, and similar type

unlawful conduct, was encouraged and permitted, which was the moving force that


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caused Plaintiff’s constitutional injuries.

64. Based upon their job descriptions, assignments, rank, and Prison Board

policies and procedures, Defendants Sabol, Doll, Steiner, Buono, Daryman, Rudd,

Neeper, Morales, and Hartman knew of the occurrence of each of the

aforementioned incidents that caused Plaintiff’s injuries.

65. The Defendant Prison Board knowingly failed to properly supervise the

York County Prison, which resulted in the creation and implementation of policies

and practices that permitted Defendants Haynes, Whitcomb, and Graff, to assault

and torture the Plaintiff, and for other Defendants to retaliate against Wright.

COUNT I

Plaintiff v. Defendant York County Prison Board of Inspectors

Americans with Disabilities Act, Title II, 42 U.S.C. § 12132

66. Paragraphs 20-65 are incorporated herein by reference.

67. Pursuant to the Americans with Disabilities Act of 1990 (ADA) Title

II, 42 U.S.C. § 12132 “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination

by any such entity.” 42 U.S.C. § 12132.

68. As used in this provision, a “public entity” is defined in part as “(A)

any State or local government; [or] (B) any department, agency, special purpose

district, or other instrumentality of a State or States or local government[.]” 42




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U.S.C. § 12131.

69. To state an ADA claim, a Plaintiff must establish that he:

(1) is a handicapped person; (2) that he is otherwise qualified; and that

[prison officials’] actions either (3) excluded his participation in or

denied him the benefits of a service, program, or activity; or (4)

otherwise subjected him to discrimination on the basis of his physical

handicap.

Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996).

70. The ADA requires that the impairment substantially limit one or more

of the individual’s major life activities. 42 U.S.C. § 12112(a).

71. “Major life activities” include “functions such as caring for oneself,

performing manual tasks, walking, seeing, speaking, breathing, learning and

working.” 29 C.F.R. § 1630.2(i).

72. The Defendant Prison Board, through its officials and employees,

targeted Wright for torture and abuse because he suffered from one or more

qualifying mental illnesses.

73. As a result, the Defendant Prison Board deprived Wright of the benefits

of public services offered to other persons who were incarcerated at YCP.

74. This unlawful deprivation caused Wright to become paranoid, be

unable to properly care for himself when he was released from prison, and to be

involuntarily committed to a mental health facility.


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COUNT II

Plaintiff v. Individual Defendants

Eighth and Fourteenth Amendments

Pursuant to 42 U.S.C. § 1983


76. The Eighth Amendment provides that “cruel and unusual punishments

[shall not be] inflicted.” U.S. Const. amend. VIII.

77. To establish a violation of the Eighth Amendment, a Plaintiff must

establish (1) a “sufficiently serious” deprivation, and (2) a “sufficiently culpable

state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, (1994).

78. Courts have defined the level of culpability as “deliberate indifference”

to the health and safety of inmates. See Farmer, 511 U.S. at 834; Wilson v.

Seiter, 501 U.S. 294, 302-04, (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976).

79. While comfort within prisons is not constitutionally required,

see Rhodes v. Chapman, 452 U.S. 337, 349, (1981), prisoners are entitled to

satisfaction of their “basic human needs-- e.g., food, clothing, shelter, medical care,

and reasonable safety.” Helling v. McKinney, 509 U.S. 25, 32 (1993)

(quoting DeShaney, 489 U.S. at 199-200 (1989)).

80. A Plaintiff “must prove that the conditions of his confinement violate

contemporary standards of decency.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.

2002).


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81. “An official acts with the requisite deliberate indifference when that

official knows of and disregards an excessive risk to inmate health or safety[.]”

Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000).

82. “[P]rison officials may not abuse prisoners directly, nor may they

indirectly subject prisoners to harm by facilitating abuse at the hands of prisoners’

fellow inmates.” Randle v. Alexander, 960 F.Supp.2d 457, 471 (S.D.N.Y. 2013).

83. Each of the Individual Defendants either directly abused Wright, or

knew about the abuse and permitted it to continue.

84. As a result of the abuse that he suffered at the hands of the Defendants,

Wright suffered bruising, lacerations, permanent scarring, pulled muscles, decreased

consciousness, head pain, stomach illness, insomnia, and post-traumatic stress

disorder.

85. In addition, Wright suffered embarrassment, humiliation, emotional

injury, insecurity, and paranoia.

COUNT III

Plaintiff v. Individual Defendants

First and Fourteenth Amendments

Pursuant to 42 U.S.C. § 1983


87. To make out a First Amendment retaliation claim pursuant to §1983, a

Plaintiff must establish three elements: (1) constitutionally protected conduct, (2)


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retaliatory action sufficient to deter a person of ordinary firmness from exercising

his constitutional rights, and (3) a causal connection between the constitutionally

protected conduct and the retaliatory action. See Cooper v. Menges, 2013 U.S. App.

LEXIS 20110, 2013 WL 5458015 at *3 (October 2, 2013 3d Cir.) (quoting Thomas

v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).

88. To establish a causal connection, a Plaintiff must prove either “an

unusually suggestive temporal proximity between the protected activity and

allegedly retaliatory action” or “a pattern of antagonism coupled with timing to

establish a causal link.” Cooper, 2013 U.S. App. LEXIS 20110, 2013 WL 5458015

at *3 (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.

2007).

89. Since First Amendment claims contain an intent element, the

Defendants’ subjective motivations are relevant and admissible. See Siegert v.

Gilley, 895 F.2d 797, 802 (D.C. Cir. 1990) (“Inquiry into subjective intent unrelated

to knowledge of the law is permissible where the constitutional violation turns on an

unconstitutional motive.”), aff’d, 111 S.Ct. 1789 (1991).

90. Testifying in a criminal trial and filing civil rights litigation are

constitutionally protected activities.

91. Being placed on suicide watch, placed in protective custody, physically

threatened, locked down in a prison cell, denied visitors, and having toilet paper and


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meals withheld, are retaliatory actions sufficient to deter a person of ordinary

firmness from exercising his constitutional rights.

92. The aforementioned retaliatory conduct began as soon as the

Defendants learned that Wright had obtained counsel with the intent of filing a civil

rights case, and that he had testified against Defendants Haynes, Graff, and

Whitcomb, during their preliminary hearings.

COUNT IV

Plaintiff v. Defendant York County Prison Board of Inspectors

First, Eighth, and Fourteenth Amendments

Municipal Liability – Pursuant to 42 U.S.C. § 1983


94. “Local governing bodies . . . can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where . . . the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance, regulation,

or decision officially adopted and promulgated by that body’s officers.” Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).

95. Moreover, under Pennsylvania law, “the board and the officers

appointed by it shall provide for the safekeeping, discipline and employment of

inmates and the government and management of the correctional institution.” 61 Pa.

C.S. § 1731 (a)(3).


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96. Furthermore, “a chief administrator, deputy warden or corrections

officers of a county correctional institution may exercise the powers of a peace

officer in the performance of that person’s duties generally in guarding, protecting

and delivering inmates.” 61 Pa. C.S. § 1734 (1).

97. The Defendant Prison Board breached its duties under state and federal

law.

98. The Defendant Prison Board either participated in, authorized, or

acquiesced in, the unlawful conduct discussed herein; adopted, implemented, and

enforced, policies and practices that did not comport with state and federal law; or

failed to adopt, implement, and enforce, policies and practices that comport with

state and federal law.

99. Defendant Prison Board maintained policies, practices, and customs,

which were the moving force that resulted in Plaintiff’s constitutional and statutory

rights being violated.

100. Moreover, Defendant Prison Board was on notice of a need for further

training related to the issues discussed herein, but failed to provide the training,

which resulted in Plaintiff’s constitutional and statutory rights being violated.

101. It is believed that discovery will reveal, and therefore averred, that

Defendant Prison Board failed to implement a policy, enforce a policy, or train the

Individual Defendants on the following:


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a. The Americans with Disabilities Act;

b. The Eighth Amendment to the U.S. Constitution;

c. The standards that must be met pursuant to Pennsylvania state law in

order to properly and safely run a county prison;

d. How to properly supervise corrections officers;

e. How to properly and safely supervise inmates;

f. The minimum rights and entitlements that inmates are entitled to

receive pursuant to state and federal law;

g. The prohibition of compelled contests between officers and inmates, or

inmates against inmates;

h. The ability to detect and deter unlawful contests such as the Retard

Olympics and Fight Club;

i. The discipline of corrections officers who engaged in unlawful conduct

such as the Retard Olympics and Fight Club.

102. It is believed that discovery will reveal, and therefore averred, that the

Defendant Prison Board failed to implement an effective process to ensure that

policies and training of the Defendant Prison Board were followed by its officials

and employees.

103. It is believed that discovery will reveal, and therefore averred, that

when it has been determined that officials and employees have violated the

constitutional or statutory rights of inmates, failed to follow policies and practices,

or when Defendant Prison Board has settled civil lawsuits, the Defendant Prison

Board has not required officials and employees to receive corrective or additional

training.


Defendant Prison Board did not discipline or retrain all of the Individual Defendants

for the conduct discussed in this Complaint.


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Defendant Prison Board did not revise or adopt policies to prevent the harm

discussed in this Complaint from occurring again, despite paying a significant

amount of money to settle a related lawsuit.

106. If it is ultimately determined that discipline, training, or policy revisions

occurred, it is believed that discovery will reveal, and therefore averred, that the

discipline, training, or policy revisions, were triggered by the threat or filing of civil

litigation (so as to be a defense to the litigation), as opposed to when the Defendants

first learned of the incidents discussed herein.

107. The Defendant Prison Board’s policies and practices caused Wright to

suffer the constitutional and statutory injuries described herein.

108. As a result of the abuse that he suffered at the hands of the Defendants,

Wright suffered bruising, lacerations, permanent scarring, pulled muscles, decreased

consciousness, head pain, stomach illness, insomnia, and post-traumatic stress

disorder.

109. In addition, Wright suffered embarrassment, humiliation, emotional

injury, insecurity, and paranoia.

WHEREFORE, Plaintiff respectfully requests that judgment be entered in

Plaintiff’s favor as follows:

A. That this Court declare that the Defendants’ actions violated Plaintiff’s


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constitutional and statutory rights;

B. Compensatory damages;

C. Punitive damages (except against Defendant Prison Board);

D. Reasonable attorney’s fees and costs;

E. A jury trial; and,

F. Such other financial or equitable relief as is reasonable and just.

Jury Trial Demand

Plaintiff respectfully requests a trial by jury on all claims/issues in this matter

that may be tried to a jury.

Respectfully Submitted,

Date: May 4, 2014

DEVON M. JACOB, ESQUIRE Pa. Sup. Ct. I.D. 89182

Counsel for Plaintiff

JACOB LITIGATION

P.O. Box 837, Mechanicsburg, Pa. 17055-0837

717.796.7733 | [email protected]


Documents

Complaint 5-4-15 - tribwpmt.files.wordpress.com · Case 1:15-cv-00865-JEJ-JFS Document 1 Filed 05/04/15 Page 1 of 21. 2 of 1990 (ADA) Title II, 42 U.S.C. § 12132, and 42 U.S.C. §