NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-1026 __________

JEROME WASHINGTON, Appellant

v.

GEORGE ONDREJKA; MICHAEL WENEROWICZ; JOHN WETZEL; J. WILLIAMS, Correctional Officer 1; F. WEBSTER, Correctional Officer 1; B CARLSON, Correctional Officer 1; B. BOYD, Correctional Officer 1; R GIBBS, Correctional Officer 1; J. TAYLOR, Correctional Officer 1 ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2:14-cv-05540) District Judge: Honorable Eduardo C. Robreno ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 12, 2019

Before: MCKEE, COWEN and ROTH, Circuit Judges

(Opinion filed: August 13, 2020) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Jerome Washington appeals from the judgment of the United

States District Court for the Eastern District of Pennsylvania granting summary judgment

in favor of the defendants. For the following reasons, we will affirm the judgment of the

District Court.

In September 2014, Washington, an inmate confined at the State Correctional

Institution at Camp Hill (“SCI-Camp Hill”), filed this pro se civil rights action pursuant

to

; he was later permitted to amend the complaint. Washington alleged

that defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights, when,

on March 17, 2013 (while he was housed in the Restricted Housing Unit), he was

assaulted by officers of the Correctional Emergency Response Team (“CERT”) unit.

Washington alleged that he was sprayed with mace, was almost drowned, had his face

slammed into a metal desk, was punched in the genitals, was held in a restraint chair for

five hours, and was denied medical treatment.

In January 2017, following discovery, defendants moved for summary judgment.

By order entered November 30, 2017, the District Court granted the defendants’ motion

for summary judgment. After viewing a video of the use of force provided by the

defendants, the District Court found that Washington’s “version of the [events] [was] ‘so

utterly discredited by the record that no reasonable jury could have believed him.’” Dkt #

100, at 2 (citing Scott v. Harris,

, 380–81 (2007)). Additionally, the District

Court concluded that Washington’s claim regarding the restraint chair was insufficient to

state an Eighth Amendment claim; that Defendants Wetzel, Wenerowicz, and Ondrejka 2 had no personal involvement; and that Washington’s Fourteenth Amendment claim

lacked merit as he did not allege any atypical or significant hardship during his time in

the Restricted Housing Unit. Washington subsequently filed two motions for

reconsideration and a motion for the appointment of counsel. After the District Court

denied the first motion for reconsideration, Washington filed a notice of appeal. 1

Washington has filed three motions for appointment of counsel in this Court, one of

which was previously denied. He also presents a motion for an emergency phone

conference and a motion for an order compelling discovery.

We have jurisdiction pursuant to

. We exercise plenary review of

orders granting motions for summary judgment. Giles v. Kearney,

(3d

Cir. 2009). Summary judgment is appropriately entered only when there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56. In making this determination, “[t]he evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.

Liberty Lobby, Inc.,

(1986). However, in a case such as this one,

where there is a video recording of the incidents in question, we need not adopt the non-

movant’s version of the facts if the recording “blatantly contradict[s]” the non-movant’s

version “so that no reasonable jury could believe it.” Scott,

. We may

1 The District Court later denied the other motion for reconsideration and the counsel motion, but Washington did not file an amended, see Fed. R. App. P. 4(a)(4)(B)(ii); Witasick v. Minn. Mut. Life Ins. Co.,

(3d Cir. 2015), or additional notice of appeal, so those orders are not before us. 3 affirm on any basis supported by the record. Murray v. Bledsoe,

(3d

Cir. 2011) (per curiam).

We agree with the District Court that the defendants were entitled to summary

judgment on Washington’s excessive use of force claim regarding the alleged assault.

The record reveals that the altercation Washington complains of was a planned cell

extraction; that is, a planned use of force to remove Washington from his cell due to his

uncooperative behavior. The videotape provided by the defendants, which shows the

extraction, refutes Washington’s assertion that the CERT defendants’ use of force was

applied “maliciously and sadistically to cause harm.” Hudson v. McMillian,

(1992) (holding that, to determine whether the force used by a prison official amounts

to a constitutional violation, “the core judicial inquiry is . . . whether force was applied in

a good-faith effort to maintain or restore discipline, or maliciously and sadistically to

cause harm”). As noted by the District Court, Washington conceded that he was suicidal

and disorderly, warranting the extraction. 2 In light of Washington’s behavior and his

attempts to resist extraction from his cell, 3 the force used by the CERT officers was

2 In his deposition, Washington admitted that he blocked the wicket in his cell so that officers were prevented from providing him food, see dkt # 92, at 87 (PDF page number); he was banging and kicking the door to his cell, see id.; and he intentionally flooded his cell, which resulted in approximately 5–6 inches of water at the bottom of his cell, see

at 88–89. 3 In his deposition, Washington concedes that he fought against the CERT officers, including throwing items at the shields carried by the officers and attempting to run away from the shields. See dkt # 92, at 90. It appears that Washington believed that the shields were electric and would kill him, which explains his desire to resist. See

4 proportional to the need for the use of force. Additionally, the record does not contain

evidence of serious injuries as a result of the extraction, and the officers reasonably

believed that Washington posed on ongoing threat. Finally, the defendants have detailed

the efforts taken to temper the severity of the response, including pre-extraction warnings

provided to the CERT officers in order to prevent asphyxia. On this record, Washington

cannot show that the officers’ use of force was excessive, and accordingly, summary

judgment was properly entered in favor of the defendants. See Brooks v. Kyler,

(3d Cir. 2000) (stating that, in evaluating whether an officer used excessive

force, courts should look to several factors including the need for force, the relationship

between the need and amount of forced used, the extent of injuries inflicted, the extent of

the threat to the safety of staff and inmates, and any efforts to temper the severity of the

forceful response) (citing Whitley v. Albers,

(1986)).

We also agree with the District Court that defendants were entitled to summary

judgment on Washington’s claims regarding the use of the restraint chair. As we noted in

Young v. Martin, the Supreme Court’s decision in Hope v. Pelzer,

(2002), instructs us to analyze an Eighth Amendment claim based on the use of a restraint

chair under the excessive use of force test.

(3d Cir. 2015). 4 In Hope,

the Supreme Court held that (1) where the inmate had “already been subdued,

4 Though the District Court analyzed this claim under Fuentes v. Wagner,

(3d Cir. 2000), which analyzed a restraint chair claim under a conditions of confinement analysis, we conclude, as discussed above, that the District Court’s grant of summary judgment was nevertheless proper under the standard set out in Hope. 5 handcuffed, [and] placed in leg irons,” and (2) there was a “clear lack of an emergency

situation” such that “[a]ny safety concerns had long since abated,” then (3) subjecting the

inmate to “substantial risk of physical harm” and “unnecessary pain” serves no

penological justification.

.

The record contains no evidence that the defendants acted maliciously or

sadistically in subjecting Washington to the restraint chair. As noted above, Washington

was actively combative during the extraction and resisted being restrained by the CERT

officers. Immediately after Washington was removed from his cell, he was transferred to

the shower, however, Washington refused to place his face in the water and to comply

with the officer’s instructions. Given Washington’s continued uncooperative behavior

throughout the extraction and subsequent shower (though the officers had already placed

his arms and legs in restraints), he was not yet subdued and cooperative when placed in

the restraint chair. Additionally, as noted above, Washington conceded that he was

suicidal and disorderly, and thus we cannot conclude that there was a “clear lack of an

emergency situation” which gave rise to the use of the restraint chair. Hope,

. Because the event portrayed in the videotape showed a continuing episode and

Washington remained uncooperative throughout the officers’ use of force, we cannot

conclude that the force used subjected Washington to a substantial risk of physical harm

and unnecessary pain that served no penological justification. See

at 737–38. The

video confirms that a nursed assessed Washington’s condition, while he was in the

restraint chair, and indicated that there were no visible injuries except for swollen eyes. 6 Finally, Washington was restrained in the restraint chair for a total of five hours, within

the eight-hour maximum permitted by prison regulations, and far less time than where

this Court has found a constitutional violation. See, e.g., Young, 801 F.3d at 181–82

(ruling that the use of a restraint chair violated the constitution when a prisoner was kept

in a restraint chair for 14 hours). Accordingly, on the facts of this case, the District

Court’s grant of summary judgment on this claim was proper.

To the extent that Washington’s Fourteenth Amendment claim is based on his

placement in the Restricted Housing Unit, we agree with the District Court that the

defendants were entitled to summary judgment since Washington did not allege any

atypical or significant hardship. See Sandin v. Conner,

(1995); Smith

v. Mensinger,

(3d Cir. 2002) (holding that seven months’ disciplinary

confinement “does not, on its own, violate a protected liberty interest as defined in

Sandin”). Additionally, the District Court correctly concluded that, though Washington

claimed that defendants violated his First and Fifth Amendment rights, he failed to allege

any facts that could support either a First or Fifth Amendment violation, and therefore

summary judgment was properly granted in favor of the defendants. Finally, the District

Court properly granted summary judgment in favor of Defendants Wetzel, Wenerowicz,

and Ondrejka on all claims. Washington’s claims against these defendants are not based

on personal involvement, as required to establish liability in a § 1983 claim; they are

based solely on the operation of respondeat superior. See Rode v. Dellarciprete,

, 1207–08 (3d Cir. 1988). 7 For the foregoing reasons, we will affirm the judgment of the District Court. 5

Washington’s motions for appointment of counsel, his motion for an emergency phone

conference, and his motion for an order compelling discovery are denied.

5 To the extent that Washington seeks to challenge the District Court’s order denying his first motion for reconsideration, we conclude that the District Court did not abuse its discretion in denying Washington’s motion. Washington did not set forth grounds for reconsideration, such as an intervening change in controlling law, new evidence, or a need to correct a clear error of fact or law or prevent manifest injustice. See Lazaridis v. Wehmer,

(3d Cir. 2010). 8