Free MEMORANDUM in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WONELL RINGGOLD Plaintiff, v. CORRECTIONS OFFICER LAMBEY1 Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 06-368-SLR JURY TRIAL DEMANDED

DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HER MOTION FOR SUMMARY NATURE AND STAGE OF THE PROCEEDINGS 1. Wonell Ringgold ("Plaintiff" or "Ringgold") initiated this action pursuant

to 42 U.S.C. § 1983 by filing a Complaint and Motion to Proceed In Forma Pauperis with the Court on June 1, 2006. (D.I. 1, 2). The plaintiff named Correctional Officer Kelley Lambey ("Officer Lambey") as a defendant in her individual capacity only. (Exhibit "A" ­ Complaint, at n.1). The Court granted the plaintiff in forma pauperis status on February 7, 2007 (D.I. 14) and issued a service order on April 19, 2007. (D.I. 15). 2. Officer Lambey answered the Complaint on August 10, 2007. (D.I. 20).

The Court issued a Scheduling Order on October 11, 2007. (D.I. 24). Officer Lambey served Interrogatories and Requests for Production on the plaintiff on December 14, 2007. (D.I. 24, 25). The plaintiff has not responded to the discovery requests, or otherwise participated in this litigation since returning the waiver of service forms in May of 2007.
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Improperly named as Lamby in the Complaint.

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3.

The plaintiff alleges a claim for a "clear and overt application of deliberate

indifference amounting to cruel and unusual punishment under the Eighth Amendment." (Exhibit "A" ­ Complaint, at ¶8). The bulk of the plaintiff's Complaint, however, does not allege constitutionally actionable claims, and specifically does not sufficiently allege an Eighth Amendment claim. Officer Lambey moves for summary judgment asserting that the plaintiff has failed to allege or adduce evidence for an actionable Eighth Amendment claim. And to the extent that the Court construes the Complaint as alleging a claim of disclosure of the plaintiff's personal information, there is no evidence to support an actionable claim under the Fourteenth2 or Eighth Amendments. STATEMENT OF FACTS 4. The plaintiff's Complaint accounts various problems he alleges that he had

with Officer Lambey. Much of the Complaint is based entirely on hearsay assertions from what another inmate, William Webb, allegedly told the plaintiff. Ringgold asserts that Webb told him that Officer Lambey called the plaintiff names and discussed his hygiene with Webb. (Exhibit "A" ­ Complaint, at ¶1). The plaintiff also alleges that Webb told him that Officer Lambey told Webb that the plaintiff "stunk so badly because of the vast amount of medications that he takes" and that these medications were also taken by Inmate Jones, an inmate with HIV. Id. The plaintiff asserts that Webb was shocked and Officer Lambey "promptly disclosed" his name, cell number, and date of birth. Id. at ¶2. The plaintiff alleges that within days his HIV status was "leaked to the entire `East Side' of H.R.Y.C.I.". Id. 5.
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The plaintiff then asserts that he encountered Officer Lambey on April 21,

The plaintiff did not allege a violation of his Fourteenth Amendment right of privacy in the Complaint, and has not amended the Complaint to assert this claim. 2

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2006 and she taunted him by talking negatively about him to other inmate workers and that she tried "to cajole Webb into firing the plaintiff." Id. at ¶4. The plaintiff next recounts an incident he alleges occurred on April 26, 22006 where Officer Lambey would not let him out of his cell. Id. at ¶5. 6. As indicated in the affidavit of Officer Lambey attached hereto as Exhibit

"B", she did not disclose any personal information about the plaintiff. Officer Lambey did not know that the plaintiff was HIV positive and she did not discuss the plaintiff's medications with any other inmates. Further, Officer Lambey did not have any

discussions with William Webb, or any other inmate about the plaintiff's hygiene or otherwise. Officer Lambey did not have personal or social discussions with inmates, but only spoke to the inmates to the extent necessary to do her job. (Exhibit "B" ­ Lambey Affidavit). 7. Officer Lambey does not deny the incident that the plaintiff alleges

occurred on April 26, 2006. However, it actually occurred on April 19, 2006 and does not amount to any constitutionally actionable claim. The plaintiff angrily approached Officer Lambey on April 19, 2006 after she opened the cells for breakfast. The plaintiff was yelling and pounding his fist into a hand and demanding he speak to a lieutenant. Officer Lambey contacted the lieutenant through the chain of command. (Exhibit "B" ­ Lambey Affidavit). 8. The lieutenant appeared and spoke with the inmate and Officer Lambey

and resolved the situation. (Exhibit "B" ­ Lambey Affidavit). Apparently, the plaintiff had begun a job as the food carter worker and food cart workers are typically let out of their cell early, but Officer Lambey had not been informed that he was the food cart

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worker and thus had not opened his cell. (Exhibit "B" ­ Lambey Affidavit). This was the extent of the incident on April 19, 2006, nothing more and certainly nothing that is constitutionally actionable as deliberately indifferent or cruel and unusual. ARGUMENT Federal Rule 56(c) permits a Court to grant summary judgment, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The United States Supreme Court holds that a court must enter summary judgment, "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Carter, 477 U.S. 317, 322-23 (1986). "Argument supported by hearsay, not admissible at trial, cannot be considered on a motion for summary judgment." Philbin v. Trans Union Corp., 101 F.3d 957, 961 (3d Cir. 1996). I. Plaintiff Cannot Establish an Eighth Amendment Claim Against Officer Lambey. None of the plaintiff's allegations are actionable under the Eighth Amendment. A prison official's deliberate indifference to a substantial risk of serious harm to an inmate violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994). The Supreme Court requires that to establish deliberate indifference the plaintiff must demonstrate that the prison official knew of and disregarded an excessive risk to the inmate's health or safety and that the official acted recklessly by consciously disregarding a substantial risk of harm. Id. at 837 (adopting subjective recklessness standard from criminal law as the test for deliberate indifference under the Eighth Amendment).

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The plaintiff makes various allegations that Officer Lambey commented on his hygiene or spoke negatively about him to other inmates. The plaintiff has adduced no evidence in support of these assertions. Regardless, allegations of verbal abuse or

harassment are not constitutionally actionable. Robinson v. Taylor, 204 Fed. Appx. 155, (3d Cir. 2006)(verbal harassment of a prisoner does not violate the Eighth Amendment); See also Murray v. Woodburn, 809 F.Supp. 383, 384 (E.D. Pa. 1993); McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001); Prisoners' Legal Ass'n v. Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993). Moreover, Officer Lambey never discussed the plaintiff's

hygiene or made any comments about the plaintiff, negative or otherwise, to the plaintiff or any other inmate. (Exhibit "B" ­ Lambey Affidavit). The plaintiff asserts that Officer Lambey did not open his cell door in time for him to pick up his food cart. This is not disputed. Indeed, Officer Lambey did not let the plaintiff out of his cell on April 19, 2006 because she did not know that he was the food cart worker. (Exhibit "B" ­ Lambey Affidavit). An officer's failure to let an inmate out of his cell to work a job which he is not constitutionally entitled to work3 is not cruel and unusual punishment. The plaintiff does not allege that there was a substantial risk of harm from his cell door not being opened. The plaintiff does not allege that he suffered any harm at all. Moreover, the plaintiff himself was displaying threatening behavior. When all of the cell doors opened for breakfast, the plaintiff approached Officer Lambey angry and yelling, and stepped beyond an established boundary. Officer Lambey's first reaction was to report the plaintiff's behavior up the chain of command. (Exhibit "B" ­ Lambey Affidavit). Officer Lambey did not know of or disregard a substantial risk of Abdul-Akbar v. Dep't of Correction, 910 F. Supp. 986 (D. Del. 1995)(inmates have no "legitimate entitlement" to employment or rehabilitation).
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harm to the plaintiff. It is further questionable whether the plaintiff would have any actionable Eighth Amendment claim based on the allegation that his medical information was disclosed. The plaintiff has not alleged, and has not produced any evidence to support that the alleged disclosure put him in a substantial risk of harm or that Officer Lambey disclosed such information with a reckless and conscious disregard for such harm. Indeed, as the record establishes, Officer Lambey never disclosed the information in the first instance. (Exhibit "B" ­ Lambey Affidavit). A reasonable trier of fact could not conclude that the plaintiff's rights were violated under the Eighth Amendment because either the plaintiff's claims are not actionable or the plaintiff has produced no evidence to support his claims. II. Ringgold Cannot Establish a Fourteenth Amendment Claim Against Officer Lambey. To the extent that the Court construes the plaintiff's Complaint as asserting a Fourteenth Amendment right of privacy claim, such a claim is unsupported by any evidence. The Third Circuit has recognized a constitutional right to privacy in a

prisoner's medical information. Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001). The Doe Court explained that this "right is subject to substantial restrictions and limitations in order for correctional officers to achieve legitimate correctional goals and maintain institutional security." Id. "A prisoner does not enjoy a right of privacy in his medical information to the same extent as free citizen." Id. The plaintiff has provided no support for the assertion that his medical or personal information was disclosed. Indeed, even in the plaintiff's Complaint the allegation is based on the hearsay statement of another inmate, Webb. At the summary judgment

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stage, hearsay evidence should not be considered unless the party offering the evidence can establish either that it can be reduced to a form that is admissible at trial or that it is not inadmissible hearsay under the Federal Rules of Evidence. Celotex Corp. v. Cartrett, 477 U.S. 317, 327 (1986)(evidence produced at summary judgment stage must be admissible at trial). Officer Lambey did not discuss the plaintiff's hygiene, medical condition(s), medications, or any other information with Inmate Webb or any other inmate. (Exhibit "B" ­ Lambey Affidavit). At this stage of the litigation, the plaintiff cannot rest upon his bald unsupported allegations based on hearsay statements, but must set forth specific facts through evidence to establish a genuine issue for trial. Celotex, 477 U.S. at 322. The record establishes that Officer Lambey did not disclose any personal information about the plaintiff and, given the absence of evidence from the plaintiff, there is no genuine issue of material fact to present to a jury. The plaintiff cannot establish that he has been denied the federal right to privacy, his claim must be dismissed, and Officer Lambey is entitled to judgment as a matter of law. III. Plaintiff's Claim is Not Actionable Under § 1983 Because He Has Not Suffered Any Physical Injury. The plaintiff does not allege an actionable injury. Section 1983, as a tort statute, requires an injury to be actionable. Under § 1983, damages are available for actions

found to be in violation of constitutional rights and to have caused compensable injury. Allah v. Al-Hafeex, 226 F.3d 247, 250 (3d. Cir. 2000). A limitation on prisoner recovery is established in 42 U.S.C. 1997e(e). The statute provides as follows: No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

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Thus to have an actionable claim for compensatory damages on the basis of mental or emotional injury, a prisoner must first establish some physical injury. Further, where a plaintiff's claims have no basis in law or fact, he should be barred from the recovery of damages entirely. Waples v. Kearney, 2005 WL 724175, at 4 (D.Del. 2005) (citing Ostrander v. Horn, 145 F.Supp.2d 614, 619 (M.D. Pa. 2001))(Exhibit "C"). The plaintiff seeks punitive and compensatory damages. (Exhibit "A"­

Complaint, at last page.). The plaintiff's Complaint, however, does not allege any injury, emotional, physical, or otherwise. Nor can Ringgold establish that he suffered any injury. His claim for compensatory damages should be dismissed for failure to allege

any physical injury. Further, because the plaintiff's claims do not have an arguable basis in law or fact, Ringgold should be barred from recovering damages entirely, compensatory or otherwise. IV. Officer Lambey is Immune from Liability for the Plaintiff's Claims Pursuant to the Doctrine of Qualified Immunity. The plaintiff cannot maintain an action against Officer Lambey in her individual capacity pursuant to the doctrine of qualified immunity. Government officials

performing discretionary functions are immune from liability for damages, provided that their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly established when, "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Furthermore, defendants are entitled to qualified immunity where they acted in good faith, without gross or wanton

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negligence, in the performance of their discretionary duties. Vick v. Haller, 512 A.2d 249 (1986) (aff'd in part and rev'd in part on procedural grounds). As discussed above, precedent clearly establishes that harassment or verbal threat claims are not constitutionally actionable under the Eighth Amendment. Should the Court find that these claims are actionable, Officer Lambey is entitled to qualified immunity because this conduct was not clearly established as actionable in 2006. Regardless, there is no evidence to support these claims. Further, there is no actionable constitutional claim for Officer Lambey's inadvertently not allowing the plaintiff out of his cell to work a job. The plaintiff suffered no harm from this incident and there is no evidence of deliberate indifference on the part of Officer Lambey, thus she did not violate a clearly established right of the plaintiff. Indeed, she was executing her job duties in good faith and without and without gross or wanton negligence. Finally, because there is no evidence that Officer Lambey disclosed personal information about the plaintiff, there is no actionable claim and Officer Lambey is entitled to immunity because she did not violate any right of the plaintiff. Given that Officer Lambey is immune from liability in her individual capacity, the plaintiff cannot maintain this action and the Motion for Summary Judgment should be granted. V. CONCLUSION For the above stated reasons, Defendant Lambey respectfully request that this Honorable Court grant her Motion for Summary Judgment and dismiss the plaintiff's claims against her with prejudice.

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DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Stacey Xarhoulakos Stacey Xarhoulakos (#4667) Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for Defendant Lambey Dated: February 15, 2008

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CERTIFICATE OF SERVICE I hereby certify that on February 15, 2008, I electronically filed Defendant Lambey's Memorandum of Points and Authorities in Support of Motion for Summary Judgment with the Clerk of Court using CM/ECF and have mailed by United States Postal Service, the document to the following non-registered party at both of the following addresses: Wonell Ringgold SBI # 382856 HRYCI P.O. Box 9561 Wilmington, DE 19809 and 510 Buttonwood St. Wilmington, DE 19801 /s/ Stacey Xarhoulakos Stacey Xarhoulakos, I.D. No. 4667 Deputy Attorney General Department of Justice Carvel State Office Building 820 North French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendant Lambey

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